Johnny v. Bornowski et al
ORDER granting in part and denying in part 151 plaintiff's motion in limine. Signed on 6/29/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
OSCAR L. JOHNNY, JR.,
LARRY BORNOWSKI and
STAMPEDE CARRIERS, LLC,
) Case No. 10-04008-CV-FJG
Plaintiff’s Motions in Limine (Doc. No. 151)
1. Plaintiff seeks to exclude all evidence of or reference to any negligence or fault of
the Oklahoma Department of Transportation, Becco Contractors, Inc., and/or any
other third party.
Defendants state that as a matter of trial strategy, a defendant can always elect
to assert a defense based on sole cause and argue that the jury should not
assign any fault to Plaintiff or Defendant on the jury verdict form because the acts
or omissions of a third party and/or in this case, condition of the roadway
constitutes the sole cause of the accident. There is a substantial difference
between Defendants not being entitled to request that the jury apportion fault to a
non-party on the verdict form and ruling that Defendants are precluded from
arguing sole cause as part of their defense strategy. The dangerous condition of
the roadway in question and conduct of third parties in placing cones on the
roadway is highly relevant to understanding the events surrounding the accident.
It relates to the reasonableness of the conduct of both Plaintiff and Defendant
Bornowski in operating their respective tractor-trailer combinations at the time of
Ruling: This Motion is GRANTED.
2. Plaintiff seeks to exclude all evidence of or reference to construction,
maintenance, and/or design of the roadway construction site near and/or around
where the collision at issue occurred.
Defendants argue that evidence and testimony concerning the condition of the
roadway is directly relevant to the reasonableness of the conduct of both Plaintiff
and Defendant in operating their respective tractor-trailer combinations at the
time of the accident. Furthermore, since reconstruction experts retained by each
party have admitted the roadway was in a dangerous condition on the date and
at the time of the accident, a description of the roadway provided by witnesses
within an hour and a half before, during, and within the time in which the accident
occurred is relevant and not unfairly prejudicial. There is almost no risk this
testimony would be confusing or misleading to the jury.
Ruling: This Motion is DENIED. The Court will allow evidence only from
witnesses at, near, and/or around where the collision at issue occurred and
whose names were timely provided to the Plaintiff.
3. Plaintiff seeks to exclude all evidence of or reference to roadway conditions
existing after the collision at issue occurred.
Defendants state that there has been sworn testimony that other vehicles lost
control and became stuck in the median in essentially the same area where
Plaintiff lost control of his tractor-trailer. Particularly, witnesses Brandon Wade
and Murray Underwood testified in their respective depositions about their
personal knowledge of the condition of the roadway at the time they arrived on
the scene of the accident and their personal knowledge of other vehicles losing
control and having to be towed out of the median within an hour and a half of the
accident at issue. Testimony related to other vehicles and/or tractor-trailer
combinations that lost control and became stuck in the median immediately after
the accident in question on the same day are substantially similar in nature and
highly relevant to assisting the jury in evaluating the condition of the roadway and
conduct of the parties.
Ruling: This Motion is GRANTED.
4. Plaintiff seeks to exclude all evidence of or reference to roadway conditions
existing at any time prior to Plaintiff’s vehicle encountering the pertinent roadway
Defendants argue the condition of the roadway is relevant. Testimony about
mud obstructing the left shoulder and left driving lane prior1 to the accident is a
central issue in this case. This testimony is based on witness Murray
Underwood’s actual observations and personal knowledge. As such, it is
relevant and has no unacceptable chance of misleading or confusing the jury.
Ruling: This Motion is DENIED.
5. Plaintiff seeks to exclude all evidence of or reference to Plaintiff’s no-contest plea
to marijuana possession.
Prior, in this case, according to Defendant means within an hour and a half of when the accident transpired.
Defense counsel argues it should be permitted to zealously and broadly
challenge the credibility of Plaintiff. By filing the instant lawsuit and alleging a
need for future psychological care claiming personal injuries, Plaintiff has placed
his credibility at issue. Federal Rue of Evidence 609 does not apply to protect
Plaintiff as many commentators do not believe that Rule 609 was intended to
protect civil litigants.
Ruling: This Motion is GRANTED.
6. Plaintiff seeks to exclude all evidence of or reference to Plaintiff’s employment
write-ups regarding destruction of a donation box, using a cell phone while at
work, and showing up to work unshaved.
Defendants acknowledge the three employment write-ups identified in Plaintiff’s
Motion did not result in a felony or misdemeanor conviction. However, Defendants
argue the lack of a criminal conviction does not operate to bar this evidence from
being presented to the jury. Defendants state Rule 607 specifically permits
defense counsel to zealously challenge Plaintiff’s credibility during trial. Moreover,
the Committee Notes to Rule 608 provide that specific instances of conduct may
be inquired into on cross-examination of the principal witness or of a witness
giving an opinion of his character for truthfulness. As such, defense counsel
argues it should be entitled to broad cross examination of Plaintiff for purposes of
challenging the legitimacy of the injuries and damages he is alleging and for
purposes of challenging his credibility which he has voluntarily placed at issue by
filing this lawsuit. Furthermore, Defendant submits that Plaintiff denied prior bad
conduct during his deposition. Given such, Plaintiff’s credibility may now be
This Motion is GRANTED.
IT IS SO ORDERED.
Date: June 29, 2012
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
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