Thomas v. Barnett et al
Filing
227
ORDER granting in part, denying in part and reserving ruling in part on Plaintiff's 204 MOTION in Limine. Signed by District Judge Keith Starrett on November 16, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
RICKY BARNETT
PLAINTIFF
V.
CIVIL ACTION NO. 2:15-CV-2-KS-MTP
DEERE & COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
The Court previously discussed the background of this case,1 and it already
addressed numerous motions.2 The Court now grants in part, denies in part, and
reserves ruling in part on Plaintiff’s Omnibus Motion in Limine [204].
1
See Thomas v. Barnett, No. 2:15-CV-2-KS-MTP, 2015 U.S. Dist. LEXIS
181554, at *2-*5 (S.D. Miss. May 15, 2015).
2
See, e.g. Memorandum Opinion and Order, Barnett v. Deere & Co., No. 2:15CV-2-KS-MTP (S.D. Miss. Nov. 14, 2016) (addressing various motions in limine),
ECF No. 223; Memorandum Opinion and Order, Barnett v. Deere & Co., No. 2:15CV-2-KS-MTP (S.D. Miss. Nov. 14, 2016) (denying motion to exclude Defendant’s
expert), ECF No. 222; Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S.
Dist. LEXIS 156218 (S.D. Miss. Nov. 10, 2016) (granting in part and denying in part
motion for summary judgment); Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP,
2016 U.S. Dist. LEXIS 154774 (S.D. Miss. Nov. 8, 2016) (granting in part and
denying in part Defendant’s motion to exclude the testimony of Thomas Berry);
Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 154099 (S.D.
Miss. Nov. 7, 2016) (granting Defendant’s motion to exclude the testimony of
Edward Karnes); Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist.
LEXIS 128002 (S.D. Miss. Sept. 20, 2016) (granting in part and denying in part
Defendant’s motion to exclude the testimony of Nathaniel Fentress); Barnett v.
Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 128003 (S.D. Miss.
Sept. 20, 2013) (granting in part and denying in part Defendant’s motion to exclude
certain testimony by Molly Struble); Barnett v. Deere & Co., No. 2:15-CV-2-KSMTP, 2016 U.S. Dist. LEXIS 123114 (S.D. Miss. Sept. 11, 2016) (denying
Defendant’s motion to exclude the testimony of Dr. Philip Blount); Barnett v. Deere
& Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 117312 (S.D. Miss. Aug. 31,
2016) (denying Plaintiff’s motion for sanctions for alleged spoliation of evidence).
A.
Comments by Opposing Counsel
First, Plaintiff argues that the Court should bar Defendant’s counsel from
making any statements during closing argument to the effect of: “This may be the last
time I see you because your job is done if you check the liability box ‘no.’” Plaintiff
contends that such statements would suggest to the jurors that they may shirk their
obligation to consider the evidence and decide the case according to the law. In
response, Defendant argues that it must be allowed to explain the verdict form to the
jury, and that such an explanation is not advising the jury to shirk their duty, as
Plaintiff claims.
The Court agrees with Defendant. In the Court’s experience, jurors often need
detailed instructions on how to complete a verdict form. In fact, this Court’s standard
practice is to present the jury with a series of interrogatories, with instructions
following each question as to how to proceed depending on their answer. The Court
routinely instructs jurors that they are finished if they answer “no” to the first question
on the verdict form. These instructions are not encouragements to disregard the law,
as Plaintiff contends. Rather, they are accurate statements of the law, insofar as the
jury must not consider damages and other secondary questions if it does not render a
verdict in the plaintiff’s favor as to liability. Furthermore, the Court also instructs the
jury to consider all of the evidence presented during trial, and to follow each of the
instructions given by the Court. And the “jury is presumed to follow its instructions.”
Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000). The
Court denies this part of Plaintiff’s motion.
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B.
Switch Bypassed
Plaintiff argues that the Court should exclude all evidence that the operator
presence switch in the mower’s seat had been bypassed prior to the accident. Plaintiff
contends that such evidence is irrelevant to the facts at issue, as it has no bearing on
the rollover which caused his injuries. Plaintiff also contends that it would be more
misleading than probative. In response, Defendant argues that it does not intend to
offer evidence of the bypassed switch to prove that it contributed to the roll over.
Rather, Defendant intends to offer evidence of the bypassed switch to impeach the
testimony of Plaintiff’s expert, Thomas Berry. Berry apparently did not notice or
recognize that the switch has been bypassed, and Defendant contends that this failure
illustrates the lack of precision in his methodology and opinions.
The Court grants this request in part and denies it in part. Defendant may not
present any evidence regarding who bypassed the operator presence switch. Likewise,
Defendant’s counsel may not make any suggestions or insinuations regarding who
bypassed the switch. However, Defendant may elicit testimony from Berry as to
whether he noticed that the switch had been bypassed. In the Court’s opinion, such
testimony would not prejudice Plaintiff, insofar as Plaintiff will have the opportunity
on redirect to clarify the issue.
C.
Other Safety Devices
Plaintiff argues that the Court should exclude all evidence regarding safety
devices installed on Defendant’s lawn mowers that are not related to roll over
prevention as such evidence is irrelevant to the issues before the jury. In response,
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Defendant argues that it can not address the specific design issues in this case without
discussing the complete design of the machine. Defendant contends that other safety
features of the mower influenced its engineers’ decision to not include a roll over
protection system (“ROPS”).
This issue appears to be moot insofar as the Court granted Defendant’s Motion
for Summary Judgment [136] as to Plaintiff’s design defect claim. Accordingly, the
Court denies this request as moot. If, for some reason, Defendant does intend to offer
such evidence at trial, the Court will address Plaintiff’s objection at that time.
D.
Ownership of Other Mower
Plaintiff argues that the Court should exclude any evidence that Dennis
Thomas’s son, Mendel Thomas, owns a Bad Boy brand zero turn mower. Defendant has
no intention of offering such evidence, unless Plaintiff attempts to offer evidence or
otherwise discuss dissimilar mowers. The Court has not yet addressed Defendant’s
Motion in Limine [198] regarding dissimilar machines and incidents. However, the
Court presently grants this part of Plaintiff’s motion as unopposed, with the caveat
that Defendant may raise the issue again at trial if the Court’s eventual ruling
regarding dissimilar machines and incidents alters its position.
E.
Storage of Mower
Plaintiff argues that the Court should exclude any evidence that the shed where
Dennis Thomas stored the subject mower was littered with empty beer cans. Plaintiff
contends that evidence of the beer cans is irrelevant, and that it would be more
prejudicial than probative. In response, Defendant contends that it should be permitted
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to discuss where the mower was stored insofar as adding a ROPS would have altered
the machine’s height, and its height could affect its utility, desirability, and safety.
This issues appears to be moot insofar as the Court granted Defendant’s Motion
for Summary Judgment [136] as to Plaintiff’s design defect claim. Nevertheless, the
Court grants this request in part and denies it in part. Defendant may not present any
evidence of the beer cans in the shed. Such evidence would be more prejudicial than
probative because Defendant does not allege that Plaintiff operated the mower while
under the influence of alcohol. However, if it is relevant to any issue remaining in the
case, Defendant may present evidence of the shed where the mower was stored, as long
as it does not reveal the presence of the beer cans. The Court notes that Plaintiffs’
exhibit includes two photos – one that shows beer cans, and one that does not. See
Exhibit C to Memorandum in Support of Motion in Limine, Barnett v. Deere & Co., No.
2:15-CV-2-KS-MTP (S.D. Miss. November 2, 2016), ECF No. 205-3.
F.
Absence of Similar Incidents
Plaintiff argues that the Court should exclude any evidence or argument that
Defendant has had few, if any, roll overs of this particular model of lawn mower.
Plaintiff contends that such evidence would be misleading to the jury. The Court denies
this part of Plaintiff’s motion. The Fifth Circuit has noted that while evidence of no
prior accidents “may not be ideal, the sufficiency of foundation evidence from case to
case and must be determined by an exercise of the trial court’s discretion.” Fisher v.
R.D. Werner Co., Inc., 1 F.3d 1236, 1993 WL 309740, at *4 (5th Cir. 1993). But if a
plaintiff opens the door by offering evidence of prior accidents, a district court does not
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abuse its discretion in admitting “rebuttal testimony in the form of sales summaries
of similar machines used under similar circumstances, and of the number or reported
accidents, if any.” Id. Therefore, Defendant will be permitted an opportunity to lay a
foundation for testimony that there have been no or few incidents similar to this one.
Moreover, if Plaintiff opens the door by admitting evidence of prior accidents – as the
record indicates Plaintiff intends to do – then Defendant will be permitted to provide
appropriate rebuttal testimony.
G.
Exclusion of Experts
Plaintiff argues that the Court should exclude any evidence that his experts
have been excluded in other cases. Defendant represents that it does not intend to
introduce such evidence. Therefore, the Court grants this part of Plaintiff’s motion as
unopposed.
H.
Dennis Thomas’s Opinion Re: Fault
Plaintiff argues that the Court should exclude the opinions of his uncle, Dennis
Thomas, regarding the allocation of fault for the accident which is the subject of this
case. Plaintiff argues that such testimony is irrelevant, and that Thomas lacks
personal knowledge sufficient to offer it. In response, Defendant argues that it should
be permitted to elicit testimony from Thomas regarding the factual basis for his
lawsuit against Plaintiff,3 insofar as such testimony is relevant to the issues before the
Court. Defendant also argues that evidence of the subsequent settlement of Thomas’s
3
See Thomas, 2015 U.S. Dist. LEXIS 181554 at *2-*5.
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claim is admissible to demonstrate his bias.
The Court is skeptical as to the probative value of Thomas’s testimony on this
issue. Defendant wants to present testimony from Thomas regarding the factual basis
for his suit against Plaintiff, but it also wants to present evidence of the settlement to
demonstrate Thomas’s bias in favor of Plaintiff. In other words, Defendant apparently
anticipates a need to impeach the very testimony it wants to introduce. Nevertheless,
the Court will reserve ruling on this issue until trial, after Defendant has the
opportunity to lay a foundation for the testimony outside the presence of the jury. The
Court also notes that neither party has addressed the requirements for the
introduction of lay opinions under Rule 701, which would likely be implicated by this
testimony.
I.
Theft of Gift Cards
Plaintiff argues that the Court should exclude any evidence that he allegedly
stole gift cards while an employee at Target in 2012. Plaintiff contends this evidence
is irrelevant, highly prejudicial, and inadmissible pursuant to Rules 403 and 404. In
response, Defendant argues that Plaintiff put his work history in issue by claiming lost
earning capacity. Plaintiff’s expert, Stan Smith, intends to testify that Plaintiff would
have been promoted to a higher-paying supervisory position but for the lawn mower
accident. Defendant argues that it is not offering the evidence “to prove that on a
particular occasion [Plaintiff] acted in accordance with” any character trait. Fed. R.
Evid. 404(a)(1). Rather, Defendant contends that the evidence is offered to oppose
Plaintiff’s claim of lost earning capacity.
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If Plaintiff opens the door by putting Plaintiff’s earning capacity in issue, then
Defendant may introduce testimony relevant to that issue, including Plaintiff’s full
work history. If Plaintiff wishes, the Court will give the jury a limiting instruction
concurrent with any testimony regarding the work violation at Target to mitigate any
undue prejudice that may accrue from the evidence. The Court also notes that Plaintiff
represented in briefing that Plaintiff denied the allegations of theft, that he was never
charged, and that he was given a favorable performance review and raise a few months
after the incident. Plaintiff may elicit such testimony on direct examination or redirect,
further mitigating any unfair prejudice.
J.
Collateral Source Evidence
Plaintiff argues that the Court should exclude all evidence and argument
regarding other services, funds, or insurance which have been available to him for
medical and related services, citing the collateral source rule. Defendant argues that
Plaintiff’s motion is overbroad, and that it should be permitted to offer relevant
evidence of collateral sources for certain permissible purposes.
The Court reserves ruling on this issue until the parties present an argument
concerning a specific payment, service, or collateral source. For counsel’s reference,
however, the collateral source rule provides that “a tort feasor is not entitled to have
the damages for which he is liable reduced by proving that an injured party has
received compensation from a collateral source wholly independent of the tort feasor.”
Preferred Risk Mut. Ins. Co. v. Courtney, 393 So. 2d 1328, 1332 (Miss. 1981). The
collateral source rule does not prevent a defendant from offering evidence of
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compensation from collateral sources for a purpose other than reducing his own
liability, such as impeachment or demonstrating causation. Ernestine v. Hi-Vac LLC,
No. 2:15-CV-23-KS-MTP, 2016 U.S. Dist. LEXIS 141290, at *3-*4 (S.D. Miss. Oct. 12,
2016) (defendant permitted to introduce collateral source evidence if plaintiff testified
about difficulty in paying medical bills, and to demonstrate causation of plaintiff’s
injury); Robinson Prop. Group, LP v. Mitchell, 7 So. 3d 240, 244-45 (Miss. 2009).
K.
Past Medical Care/Treatment
Plaintiff argues that the Court should exclude all evidence of past medical care
or treatment unrelated to the injuries he sustained in the accident which is the subject
of this case. In response, Defendant represents that it currently has no intention of
offering such evidence, but that it should not be prohibited from doing so if the door is
opened at trial. The Court presently denies this part of Plaintiff’s motion, but the
parties may raise the issue on a case-by-case basis at trial.
L.
Retention of Counsel
Plaintiff argues that the Court should exclude all evidence regarding when,
where, why, and how Plaintiff employed counsel in this case. In response, Defendant
argues that such information may be relevant for impeachment of Plaintiff’s physician,
Philip Blount, insofar as Dr. Blount purportedly changed his medical opinions after
being contacted by Plaintiff’s counsel.
The Court denies this part of Plaintiff’s motion, for the same reasons provided
in Ernestine, 2016 U.S. Dist. LEXIS 141290 at *11. If Plaintiff’s physician altered his
medical opinions after being contacted by Plaintiff’s counsel, that is relevant to the
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physician’s credibility.
M.
Attacks on Counsel/References to Tort Reform
Plaintiff argues that the Court should exclude all references, suggestions,
argument, or evidence attacking the court system, plaintiffs’ attorneys, or tort reform
once voir dire has been completed. Defendant has no objection, and the Court grants
this part of Plaintiff’s motion as unopposed.
N.
Appeal for Forgiveness/Sympathy
Plaintiff argues that the Court should bar Defendant’s counsel from expressing
regret, making apologies, or asking for forgiveness on behalf of Defendant. Plaintiff
contends that such statements will encourage the jury to disregard the law and base
its verdict on improper considerations. Deere represents that it does not intend to
apologize or ask forgiveness, as it contests liability. Deere argues that it should be
permitted to explain its concern and regret over all accidents involving its products, as
it prioritizes product safety.
The Court denies this part of Plaintiff’s motion. Defendant’s expression of
concern and regret for those injured by its products is not an invitation to nullify the
law. Even if such statements could reasonably be construed as encouragement of
nullification, the Court will thoroughly instruct the jury as to its duties under the law,
including an instruction that bias, prejudice, and sympathy should not govern the
jury’s decision. And the Court presumes that the jury will follow its instructions.
Weeks, 528 U.S. at 234.
O.
Vouching for Defendant
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Finally, Plaintiff argues that the Court should bar Defendant’s counsel from
expressing pride or gratitude in representing Defendant. In response, Defendant
argues that its attorneys should be permitted to introduce their client and express
gratitude in representing it.
The Court denies this part of Plaintiff’s motion, but it assures Plaintiff that the
undersigned judge does not waste time during trial nor permit counsel to do so. The
Court trusts that the counsel of record will conduct themselves appropriately.
SO ORDERED AND ADJUDGED this 16th day of November, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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