Mid-America Pipeline Company LLC v. Wilson et al

Filing 143

MEMORANDUM AND ORDER tentatively denying 129 Plainitff's Motion in Limine; denying as moot 132 Plaintiff's Motion in Limine. Ordered by Chief Judge Joseph F. Bataillon. (SMS, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MID-AMERICA PIPELINE COMPANY,
LLC,
Plaintiff,
v.
WILSON EXCAVATING, INC., and
DALE D. WILSON,
Defendants.

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8:09CV370

MEMORANDUM AND ORDER

This matter is before the court on plaintiff’s motions in limine, Filing No. 129 and
Filing No. 132. The motion in limine regarding the opinions of César de León, Filing No.
132, has been resolved by the magistrate judge and the parties, as set forth in the Pretrial
Order, Filing No. 141, Page ID 715, page 6. Accordingly, the court will deny that motion
as moot.
With regard to the motion in limine regarding depth of cover, Filing No. 129, plaintiff
asks this court to prohibit defendants from presenting any evidence, statements or offers
of proof, or asking questions in front of the jury regarding the “depth of cover,” or how far
below the stream bed in the drainage ditch the damaged pipeline(s) were located on the
Widman property. Apparently the pipeline in question in this lawsuit was built in 1969.
Ground cover regulations were passed in 1970. Defendants now argue that the ground
cover was insufficient, causing them to hit the pipeline. Defendants’ expert wants to testify
that the pipeline should have been buried with 36 inches of cover and was probably not
covered to that depth at the time of the incident. Defendants claim that plaintiff was
contributorily negligent for failing to have sufficient ground cover over the pipeline below

the drainage ditch. Defendants contend they will offer evidence that it was the custom and
practice of the industry to place these pipelines a certain number of inches below the
streams, ditches or water courses. The defendants contend they are entitled to establish
custom and practice as it relates to the standard of care, relying on Anderson v. Malloy,
700 F.2d 1208, 1212 (8th Cir. 1983). The court, after reviewing the arguments and the
evidence, is inclined to permit the evidence to go forward on this issue. However, the court
will hear arguments in this regard prior to trial on July 18, 2011, and will issue a final ruling
at that time.
THEREFORE, IT IS ORDERED:
1. Plaintiff’s motion in limine, Filing No. 132, is denied as moot pursuant to the entry
in the Pretrial Order, Filing No. 141.
2. Plaintiff’s motion in limine, Filing No. 129, is tentatively denied, subject to a final
determination on July 18, 2011, before trial begins.
DATED this 7th day of July, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

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the opinion of the court.
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