Otto v. Newfield Exploration Company et al
OPINION AND ORDER DENYING 60 Motion in Limine Signed by Judge Susan P. Watters on 12/22/2016. (AMC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
BRADLEY P. OTTO, as personal
representative of the estate of Blaine P.
OPINION AND ORDER
COMP ANY; NEWFIELD
PRODUCTION COMPANY; and
NEWFIELD EXPLORATION MIDCONTINENT, INC.,
Before the Court is a Motion in Limine filed by Defendants Newfield
Exploration Company, Newfield Product Company, and Newfield Exploration
Mid-Continent, Inc., (Newfield). (Doc. 60). Newfield asks the Court to exclude
any evidence of lost earning capacity damages. For the reasons discussed below,
the Court DENIES Newfield's Motion in Limine.
Blaine Otto (Otto) was employed by a company that provided tank
inspection services, among other things, to Newfield on a contract basis at various
well sites in the Bakken Shale Oil Field. (Doc. 1). On July 18, 2013, Otto was
found dead on the catwalk of an oil storage tank. (Doc. 1). Otto's estate filed suit,
alleging Otto died of exposure to deadly vapors due to intentional, reckless, and/or
negligent conduct by Newfield. (Doc. 1). Newfield disputes the cause of Otto's
death and denies its conduct was intentional, reckless, or negligent. (Doc. 6).
The complaint seeks damages on behalf of Otto's estate and his heirs. (Doc.
1, iii! 17-20). Otto did not have a spouse or children. At their depositions, Otto's
father and mother stated Otto did not contribute any of his income to them, other
than monthly $400 rent payments. Otto's brother likewise stated Otto did not
contribute any of his income to his siblings.
Motions in limine are procedural devices to obtain an early and preliminary
ruling on the admissibility of evidence. Judges have broad discretion when ruling
on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th
Cir. 2002). A motion in limine should not be used to resolve factual disputes or
weigh evidence. C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323
(D.D.C. 2008). To exclude evidence on a motion in limine "the evidence must be
inadmissible on all potential grounds." Ind. Ins. Co. v. K-Mart Corp., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004). Courts have wide discretion in considering
and ruling on motions in limine. See Luce v. US., 469 U.S. 38, 41 n.4 (1984).
The Court previously determined North Dakota law governs this case. (Doc.
Newfield argues any evidence of Otto's lost earning capacity is inadmissible
on relevancy grounds because none of Otto's family members are entitled to
recover damages based on lost earning capacity unless they received contributions
from Otto's income. While Newfield is correct, the evidence must be inadmissible
on all potential grounds before the Court will grant a motion in limine. As
explained below, Otto's estate is entitled to collect lost earnings on Otto's behalf.
Evidence of Otto's lost earning capacity is therefore admissible to prove the
A person's wrongful death gives rise to two actions under North Dakota law.
First, N.D.C.C. § 28-01-26.1 provides for survival actions: "No action or claim for
relief, except for breach of promise, alienation of affections, libel, and slander,
abates by the death of a party or of a person who might have been a party had such
death not occurred." Survival actions "are remedial in nature, and are intended to
permit recovery by the representatives of the deceased for damages the deceased
could have recovered had he lived ... a survival action merely continues in
existence an injured person's claim after death as an asset of his estate." Weigel v.
Lee, 752 N.W.2d 618, 621-22 (N.D. 2008) (citing Sheets v. Graco, Inc., 292
N.W.2d 63, 66-67 (N.D. 1980)).
Second, N.D.C.C. § 32-21-02 provides for wrongful death damages suffered
by the decedent's heirs:
In an action brought under the provisions of this chapter, the jury shall
give such damages as it finds proportionate to the injury resulting
from the death to the persons entitled to the recovery.
The North Dakota Supreme Court has interpreted N.D.C.C. § 32-21-02 as follows:
North Dakota's death by wrongful act law, Chapter 32-21, N.D.C.C.,
awards damages to a restricted class of beneficiaries, based on the loss
suffered by the beneficiaries, and not on the loss sustained by
decedent's estate. 32-21-02, N.D.C.C. Thus, the probable
contributions of the decedent to a beneficiary are the bases for a
Schneider v. Baisch, 256 N.W.2d 370, 371 (N.D. 1977). N.D.C.C. § 32-0.32-04
enumerates compensable damages available in wrongful death and personal injury
In any civil action for damages for wrongful death or injury to a
person and whether arising out of breach of contract or tort, damages
may be awarded by the trier of fact as follows:
Compensation for economic damages, which are damages
arising from medical expenses and medical care, rehabilitation
services, custodial care, loss of earnings and earning capacity,
loss of income or support, burial costs, cost of substitute
domestic services, loss of employment or business or
employment opportunities and other monetary losses.
Compensation for noneconomic damages, which are damages
arising from pain, suffering, inconvenience, physical
impairment, disfigurement, mental anguish, emotional distress,
fear of injury, loss of illness, loss of society and
companionship, loss of consortium, injury to reputation,
humiliation, and other nonpecuniary damage.
Had the complaint sought damages only on behalf of Otto's heirs, Schneider
would operate to bar evidence of Otto's lost earning capacity because there is no
evidence Otto contributed any of that income to his surviving family members. In
other words, under Schneider, Otto's surviving family members are not entitled to
recover Otto's lost earning capacity. However, the complaint also seeks damages
on behalf of Otto's estate. (Doc. 1, iii! 17, 20). Weigel and N.D.C.C. § 28-01-26.1
establish Otto's estate is entitled to collect "damages the deceased could have
recovered had he lived." 752 N.W.2d at 621-22; see also Nodak Mut. Ins. Co. v.
Stegman, 647 N.W.2d 133, 138-139 (N.D. 2002) (Where "[c]learly a personal
injury action existed" on behalf of man wrongfully killed). N.D.C.C. § 32-0.32-04
explicitly includes "loss of earnings and earning capacity" as damages recoverable
in a personal injury action. Therefore, evidence of Otto's lost earning capacity is
admissible to prove an element of the estate's damages.
Newfield's motion in limine (Doc. 60) is DENIED.
DATED the J<~ day of December, 2016.
U.S. DISTRICT JUDGE
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