Gilliland et al v. Harley-Davidson Motor Company Group, LLC

Filing 166

MEMORANDUM AND ORDER that Plaintiffs' Motion in Limine 130 is granted in part and denied in part. Defendant Harley-Davidson's Motion in Limine No. 4 To Exclude Evidence of Dissimilar Accidents or Incidents 132 is granted. Defendant Harl ey-Davidson's Motion in Limine No. 5 to Exclude Evidence of Plaintiff Denise Gilliland's Cancer 133 is denied, without prejudice to Harley-Davidson asserting its objections at the time of trial. Defendant Harley-Davidson's Motion in Limine No. 1 to Exclude Evidence of Harley-Davidson's Customer Contacts and Warranty Claims 134 is granted, provided that Plaintiffs may request an evidentiary hearing outside the presence of the jury to determine the admissibility of such evi dence. Defendant Harley-Davidson's Motion in Limine No. 2 to Exclude any Evidence of Harley-Davidson Service Bulletin M-1215, M1215A and M-1215B 136 is granted, provided that Plaintiffs may request an evidentiary hearing outside the presence o f the jury to determine the admissibility of such evidence. Defendant Harley-Davidson's Motion in Limine No. 3 to Exclude Evidence of Plaintiffs' Hearsay Statements 138 is granted. Defendant Harley-Davidson's Request for Oral Argument on Motions in Limine 140 is denied. Ordered by Chief Judge Laurie Smith Camp. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRENCE N. GILLILAND, DENISE M.
GILLILAND, and LUIS S. GALLEGOS,
8:12CV384
Plaintiffs,
vs.

MEMORANDUM
AND ORDER

HARLEY-DAVIDSON MOTOR COMPANY
GROUP, LLC,
Defendant.

This matter is before the Court on the Plaintiffs’ Motion in Limine (Filing No. 130)
in which Plaintiffs Terrence N. Gilliland (“Gilliland”), Denise M. Gilliland (“Mrs. Gilliland”),
and Luis S. Gallegos (“Gallegos”) seek to preclude Defendant Harley-Davidson Motor
Company Group, LLC (“Harley-Davidson”) from presenting evidence or argument in 43
different categories.

Also before the Court are six motions presented by Harley-

Davidson: Motion to Exclude Evidence of Dissimilar Accidents or Incidents (Filing No.
132), Motion to Exclude Evidence of Plaintiff Denise Gilliland’s Cancer (Filing No. 133),
Motion to Exclude Evidence of Harley-Davidson’s Customer Contacts and Warranty
Claims (Filing No. 134), Motion to Exclude Evidence of Harley-Davidson Service
Bulletin M-1215A and M-1215B (Filing No. 136), Motion to Exclude Evidence of
Plaintiffs’ Hearsay Statements (Filing No. 138), and Request for Oral Argument on
Pending Motions in Limine (Filing No. 140).
DISCUSSION
This case arises out of a motorcycle accident that occurred on April 22, 2010, in
Mills County, Iowa. Gilliland purchased the motorcycle, a 2007 Harley-Davidson
VRSCAW V-Rod (“subject motorcycle”), from Dillon Brothers Harley-Davidson in

Omaha on or about July 23, 2007. At the time of the accident, Gilliland was operating
the subject motorcycle. Gallegos was a passenger. Neither Gilliland nor Gallegos can
recall, or knew at the time, what caused the accident. Plaintiffs claim the accident
occurred because the center post of the subject motorcycle’s triple-tree assembly came
apart, causing the crash.

Plaintiffs filed their action in the District Court of Dodge

County, Nebraska, and Harley-Davidson removed the action to this Court, invoking the
Court’s diversity jurisdiction.
I. Plaintiffs’ Motion in Limine
Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs’ history
of traffic violations, criminal charges, or criminal convictions. Harley-Davidson responds
that it will comply with the provisions of Fed. R. Evid. 609(a) with respect to the felony
conviction of Gallegos for burglary, and will comply with the provisions of Fed. R. Evid.
609 (b) with respect to the felony conviction of Gilliland for credit card fraud. The
Plaintiffs’ Motion and Harley-Davidson’s brief provide no further guidance for the Court.
Plaintiffs’ Motion will be granted, in that Harley-Davidson will be precluded in limine from
making reference to Plaintiffs’ history of traffic violations, criminal charges, or criminal
convictions until the Court rules on the admissibility of such evidence pursuant to Fed.
R. Evid. 609, outside the presence of the jury.
Plaintiffs seek to bar Harley-Davidson from inviting the jury to speculate about
possible causes of the motorcycle accident. Harley-Davidson responds that it does not
intend to invite speculation, but will offer evidence of causation as disclosed in its expert
reports. Plaintiffs’ Motion will be granted, in that Harley-Davidson will be precluded in
limine from inviting the jury to speculate about the cause of the accident.
2

Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs’ prior or
subsequent accidents, injuries, claims, suit or settlements, or the amount thereof, that
did not occur under reasonably similar circumstances.

Harley-Davidson does not

oppose this Motion, and it will be granted.
Plaintiffs seek to bar Harley-Davidson from making any reference to the time or
circumstances under which the Plaintiffs employed their attorney or experts. HarleyDavidson does not oppose the Motion as it relates to the time or circumstances under
which Plaintiffs employed their attorney, but does note that it will make reference to the
time devoted by Plaintiffs’ expert when formulating opinions prior to expressing them, as
such is relevant to the expert’s credibility and the weight, if any, that should be given to
the opinions. Plaintiffs’ Motion will be granted in part, and Harley-Davidson will be
precluded in limine from making reference to the time or circumstances under which the
Plaintiffs’ retained their attorneys.
Plaintiffs seek to bar Harley-Davidson from making reference to whether any
award to the Plaintiffs would be subject to taxation. Harley-Davidson does not oppose
this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from making reference to the Plaintiffs’
personal habits as they relate to consumption of alcohol, drugs, or narcotics. HarleyDavidson does not oppose this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs’ failure
to call any witness that is equally available to Harley-Davidson. Harley-Davidson does
not oppose this Motion and it will be granted.

3

Plaintiffs seek to bar Harley-Davidson and its non-expert witnesses from offering
inadmissible hearsay testimony. Harley-Davidson does not oppose this Motion, noting
that rules concerning expert witnesses’ reliance on inadmissible hearsay in support of
their opinions should be applied equally to Harley-Davidson and Plaintiffs.

The

Plaintiffs’ Motion will be granted as it requests the Court to follow the Federal Rules of
Evidence, which the Court will attempt to apply equally to all parties.
Plaintiffs seek to bar Harley-Davidson from referring to the probable testimony of
a witness who is absent, unavailable, or not called to testify. Harley-Davidson does not
oppose this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from calling any witness not disclosed to
Plaintiffs. Harley-Davidson does not oppose this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from suggesting to the jury that the
Plaintiffs are motivated by “secondary gain or malingering.” Harley-Davidson does not
oppose this Motion and it will be granted.
Plaintiffs

seek

to

bar

Harley-Davidson

from

requesting

any

physical

demonstrations by the Plaintiffs in the presence of the jury. Harley-Davidson does not
oppose this request, and it will be granted.
Plaintiffs seek to bar Harley-Davidson from making reference to any transactions
that would violate the attorney-client privilege. Harley-Davidson does not oppose this
Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from making reference to settlement
negotiations in violation of Fed. R. Evid. 408. Harley-Davidson does not oppose this
Motion, and it will be granted.
4

Plaintiffs seek to bar Harley-Davidson from making reference to when Plaintiffs’
expert James Weaver was supplied with information on which he based his opinions.
Harley-Davidson opposes this Motion, noting that the amount of time the expert had to
review materials and form his opinion is relevant to the expert’s credibility and the
weight to be given to the opinion. The Court agrees, and Plaintiff’s Motion will be
denied.
Plaintiffs seek to bar Harley-Davidson from referring to expert James Weaver’s
purported failure to comply fully with deposition notices with respect to production of
materials. Harley-Davidson does not oppose this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from referring to expert James Weaver’s
involvement in a motorcycle crash resulting in a broken leg. Harley-Davidson does not
oppose this Motion and it will be granted.
Plaintiffs seek to bar Harley-Davidson from eliciting testimony from Kimberly
Clark regarding whether or not Gilliland’s motorcycle was insured. Plaintiffs suggest
that such testimony would violate the “collateral source doctrine” and is irrelevant.
Harley-Davidson opposes the Motion, noting that Gilliland’s failure to insure the
motorcycle is relevant to the level of care he exercised in maintaining it. Plaintiffs’
reliance on the “collateral source doctrine” is misplaced.1 The Motion will be denied,
without prejudice to the Plaintiffs asserting their relevance objections at the time of trial.

1

“The collateral source rule is a common law rule of evidence that bars evidence of
compensation received by an injured party from a collateral source.” Pexa v. Auto Owners Ins. Co., 686
N.W.2d 150, 156 (Iowa 2004) (citing Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990)). “The
rule prevents the jury from reducing the tortfeasor's obligation to make full restitution for the injuries
caused by the tortfeasor's negligence.” Id. The parties have agreed that Iowa substantive law applies.
(See Order on Pretrial Conference, Filing No. 144 at 2.)

5

Plaintiffs’ Motion at paragraph 15.B.ii. is entitled “Motorcycle License,” but simply
repeats the same language as in paragraph 15.B.i., regarding insurance and the
“collateral source doctrine.” (Filing No. 130 at ECF p. 6.) Harley-Davidson interprets the
Motion as a request for the Court to bar Harley-Davidson from presenting evidence of
Gilliland’s lack of a motorcycle license. The Motion will be denied.
Plaintiffs seek to bar Harley-Davidson from eliciting testimony from witness
Kimberly Clark regarding other accidents occurring along the roadway where the
accident at issue in this case occurred, and regarding speculation about the cause of
the accident. Harley-Davidson does not oppose this motion, with the caveat that it does
intend to elicit testimony from Clark that tire marks from an earlier accident prevented
her from discerning with precision which marks were caused by the Gilliland crash. The
Plaintiffs’ Motion will be granted, provided that Harley-Davidson may question Clark
about tire marks from a prior accident remaining visible after the Gilliland crash.
Plaintiffs seek to preclude Harley-Davidson from eliciting testimony from Gilliland
regarding his traffic record, including speeding tickets.

Harley-Davidson does not

oppose this Motion and it will be granted.
Plaintiffs seek to preclude Harley-Davidson from introducing in evidence any of
Gilliland’s speeding tickets. Harley-Davidson does not oppose this Motion and it will be
granted.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s 1973 conviction related to credit card “problems.” Harley-Davidson opposes
this Motion, noting that Gilliland’s conviction for credit card “fraud” bears on his
truthfulness, and may be admissible under Fed. R. Evid. 609(b). Harley-Davidson will
6

be precluded from making any reference to Gilliland’s 1973 conviction until the Court
has an opportunity to determine, outside the presence of the jury, whether the probative
value of the evidence substantially outweighs its prejudicial effect.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s business being sued for alleged defective workmanship or incomplete work.
Harley-Davidson does not oppose this Motion and it will be granted.
Plaintiffs seek to preclude Harley-Davidson from making any reference to a
motorcycle accident in which Gilliland was involved in 2007, asserting that the incident
was remote and unrelated.

Harley-Davidson opposes the Motion, noting that the

incident involved Gilliland losing control of the motorcycle and tipping it over when
carrying a passenger, which he rarely did. Plaintiffs’ Motion will be denied, without
prejudice to Plaintiffs raising objections at the time of trial.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
alleged negligence on the part of Jack Vaughn concerning the repair of the motorcycle,
suggesting that such allegations would be speculative and unduly prejudicial. HarleyDavidson does not oppose the Motion, provided that Harley-Davidson is not precluded
from questioning Vaughn and eliciting factual information about his mechanical
interactions with the motorcycle. The Plaintiffs’ Motion will be granted, provided that
Harley-Davidson will not be precluded from eliciting relevant factual testimony from
Vaughn.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
whether and when Gilliland replaced the motorcycle’s battery. Harley-Davidson opposes
the Motion, suggesting that Gilliland’s failure to keep the motorcycle’s battery charged
7

through winter months leads to an inference that he also failed to keep the tires on the
motorcycle properly inflated. While the relevance of the testimony concerning Gilliland’s
maintenance of the motorcycle’s battery is not apparent at this juncture, the Court will
not order Harley-Davidson, in limine, to refrain from references to the topic.

The

Plaintiffs’ Motion will be denied, without prejudice to assertion of objections at trial.
Plaintiffs seek to preclude Harley-Davidson from referring to a booklet Gilliland
possessed, containing “riding tips.” Harley-Davidson opposes the Motion, noting that
the booklet was part of the “Owner’s Kit,” provided by Harley-Davidson to purchasers of
new motorcycles and Gilliland’s possession of it is relevant to counter his contention
that he did not receive the Owner’s Kit, as well as to the issue of Gilliland’s maintenance
of the motorcycle. The Motion will be denied, without prejudice to Plaintiffs’ assertion of
objections at trial.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s failure to wear a helmet. Harley-Davidson opposes the Motion, noting that
Gilliland testified that he did not want to bother to walk back to his shed to retrieve his
helmet or other protective gear prior to his ride.

Harley-Davidson notes that air

compressors were also in the shed, and an inference may be drawn that Gilliland also
did not want to be bothered to return to the shed to ensure the tires were inflated
properly.

At this juncture, it appears that Harley-Davidson can elicit the relevant

testimony without direct reference to the helmet, and the Motion will be granted.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s failure to wear protective clothing. If Gilliland presents evidence of road rash
injuries and related pain and suffering, Harley-Davidson opposes the Motion.
8

The

Motion will be granted, but the Court will revisit the issue if Gilliland presents evidence
of road rash and related pain and suffering.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s failure to verify his interrogatories before his deposition. Harley-Davidson
does not oppose the Motion, and it will be granted.
Plaintiffs seek to preclude Harley-Davidson from making any reference to
Gilliland’s own speculation about what his injuries from the accident could have been,
e.g., paralysis. Harley-Davidson does not oppose the Motion, and it will be granted.
Plaintiffs seek to preclude Harley-Davidson from referring to Gilliland’s
application for credit to purchase the motorcycle, specifically suggesting that Gilliland
was untruthful when representing his income on the application.

Harley-Davidson

asserts that the Plaintiffs’ objections to Harley-Davidson’s Exhibit 103 (“Sale and
Purchase Documents”) have been waived, because they were not presented at the
pretrial conference, and the evidence has been received. Harley-Davidson expresses
an intention to question Gilliland about the truthfulness of his representations made on
the documents with respect to his income. While Exhibit 103 has been received into
evidence (see Order on Pretrial Conference, Filing No. 144 at ECF p. 20), HarleyDavidson will be precluded in limine from questioning Gilliland about the truthfulness of
his statements in the documents until the Court has made a determination, outside the
presence of the jury, as to whether the probative value of such evidence is substantially
outweighed by its unfair prejudicial impact.

9

Plaintiffs seek to bar Harley-Davidson from presenting evidence regarding
Gallegos’s lack of a driver’s license. Harley-Davidson does not oppose this Motion, and
it will be granted.
Plaintiffs seek to bar Harley-Davidson from presenting evidence of Gallegos’s
burglary conviction and parole revocation, although Plaintiffs acknowledge that
evidence of the fact that Gallegos has a felony conviction is admissible under Fed. R.
Evid. 609.

Harley-Davidson responds that, if it elicits evidence about Gallegos’s

criminal history at all, it will simply ask whether he has been convicted of a felony and
how many times.

The Motion will be granted in part, and Harley-Davidson will be

precluded, in limine, from eliciting evidence regarding the specific nature of Gallegos’s
felony convictions, or his parole violations.
Plaintiffs seek to preclude Harley-Davidson from eliciting evidence of Gallegos’s
domestic violence convictions. Harley-Davidson does not oppose this Motion, and it will
be granted.
Plaintiffs seek to preclude Harley-Davidson from presenting evidence that
Gallegos has not paid his taxes, that he works only for cash, and that he “never
punched a clock.” Plaintiffs note that Gallegos is not presenting any claim for loss of
income or diminished earning power. Harley-Davidson does not oppose the Motion and
it will be granted.
Plaintiffs seek to preclude Harley-Davidson from presenting any evidence
regarding Gallegos’s use of marijuana. Harley-Davidson does not oppose the Motion
and it will be granted.

10

Plaintiffs seek to preclude Harley-Davidson from presenting evidence that
Gallegos was “smashed on the weekends.”

Harley-Davidson does not oppose the

Motion and it will be granted.
Plaintiffs seek to preclude Harley-Davidson from presenting evidence that
Gallegos failed to wear a helmet. Harley-Davidson does not oppose this Motion and it
will be granted.
Plaintiffs seek to bar Harley-Davidson from making any reference to the Plaintiffs’
filing of their Motion in Limine. Harley-Davidson does not oppose this Motion and it will
be granted.
II.

Harley-Davidson’s Motion to Exclude Evidence of Dissimilar Accidents or
Incidents
Harley Davidson seeks to preclude Plaintiffs from presenting evidence of

customer complaints, accidents, or incidents involving alleged defects in HarleyDavidson motorcycles unless the Plaintiffs can make a showing of “substantial
similarity” to the facts of this case. Plaintiffs respond that they have no intention of
presenting evidence of dissimilar accidents or incidents, but reserve the right to
introduce evidence of other accidents or incidents on rebuttal, with proper foundation, if
Harley-Davidson’s case in chief discloses the existence of similar accidents.

The

Motion will be granted.
III.

Harley-Davidson’s Motion to Exclude Evidence of Mrs. Gilliland’s Cancer
Harley-Davidson seeks to preclude the Plaintiffs from making any reference to

Mrs. Gilliland’s cancer, arguing that any relevance her medical condition may have to
the issues in this case are substantially outweighed by unfair prejudice to Harley11

Davidson under Fed. R. Evid. 403. Plaintiffs contend that her medical condition is
relevant to her claim for loss of consortium, because she depended on her husband to
provide many services for her that he was unable to provide after the accident. The
Court cannot conclude at this juncture that the danger of unfair prejudice to HarleyDavidson substantially outweighs the probative value of Mrs. Gilliland’s medical
condition, and the Motion will be denied, without prejudice to Harley-Davidson’s
objections at the time of trial.
IV.

Harley Davidson’s Motion to Exclude Evidence of Customer Contacts and
Warranty Claims
Harley-Davidson seeks to preclude Plaintiffs from producing evidence of, or

making reference to, customer contacts or warranty data relating to alleged issues with
Harley-Davidson

motorcycle

front

triple

tree

assemblies,

noting

that

such

communications from customers and related warranty data constitute inadmissible
hearsay.
Plaintiffs argue that such evidence will not be offered for the truth of the matters
asserted, i.e., defects in the other customers’ motorcycles, but as evidence that HarleyDavidson was on notice of potential problems with the specific model of motorcycle and
failed to warn the Plaintiffs of the potential defects. Plaintiffs further argue that their
experts may rely on otherwise inadmissible hearsay when offering expert opinions.
While Plaintiffs’ Complaint (Filing No. 1 at ECF 5-16) presented theories of
recovery based on Harley-Davidson’s alleged failure to warn of potential defects in the
motorcycle, the Pretrial Order that supersedes the Complaint presents a single

12

“controverted and unresolved Issue” on the subject.”2 (Filing No. 144 at ECF 4-8.); see
also Friedman & Friedman, Ltd. v. Tim McCandless, Inc., 606 F.3d 494, 498 (8th Cir.
2010) (recognizing the rule that “issues identified in the pretrial order supersede the
pleadings.”).

Though Plaintiffs’ experts may rely on hearsay in forming opinions

regarding matters properly at issue, such hearsay may be disclosed to the jury “only if
[its] probative value in helping the jury evaluate the opinion substantially outweighs [its]
prejudicial effect.” Fed. R. Evid. 703.
Plaintiffs have stated that they have no intention of presenting evidence of
dissimilar accidents or incidents, but reserve the right to introduce evidence of other
accidents on rebuttal, with proper foundation, if Harley-Davidson’s case in chief
discloses the existence of similar accidents or incidents. (See Part II, above.) The Court
infers that the Plaintiffs also have no intention of presenting evidence of customer
contacts or warranty claims or data, except as such contacts, claims, or data relate to
substantially similar accidents or incidents. At Plaintiffs’ request, the Court will conduct
a hearing outside the presence of the jury to determine whether any evidence of
customer contacts, warranty claims, or warranty data that Plaintiffs wish to introduce, or
make reference to, concern accidents or incidents substantially similar to the facts of
this case.

The Court will determine whether the probative value of such evidence

2

To prevail on a claim against a manufacturer for negligent failure to warn, unless the danger is
open and obvious, a plaintiff must establish (1) the manufacturer knew or should have known of the
danger, (2) any warnings given were inadequate, and (3) an adequate warning would have altered the
plaintiff's conduct and avoided the injury. Lovick v. Wil-Rich, 588 N.W.2d 688, 700 (Iowa 1999); Olson v.
Prosoco, Inc., 522 N.W.2d 284, 289-90 (Iowa 1994). The only reference to Plaintiffs’ failure-to-warn claim
in the Pretrial Order’s list of Controverted and Unresolved Issues states: “Whether Defendant was obliged
to directly contact customers to warn them of the matters leading to Service Bulletin M-1215.” (Filing No.
144 at ECF 7.)

13

outweighs its prejudicial effect. Harley-Davidson’s Motion will be granted, provided that
Plaintiffs may request a hearing outside the presence of the jury as described above.
V.

Harley-Davidson’s Motion to Exclude Evidence of Bulletin M-1215, M-1215A
and M-1215B
Harley-Davidson seeks to exclude evidence of certain service bulletins it

published in 2008, suggesting that the material in the bulletins is irrelevant, and that the
material’s prejudicial impact substantially outweighs its probative value.
Plaintiffs suggest that the bulletins are relevant to their theories of recovery
based on “failure to warn,” and provide a basis for their expert’s opinion that the
motorcycle was not properly manufactured or assembled.

The information in the

bulletins appears to be closely aligned with the evidence of customer contacts and
warranty claims and data, discussed above. Accordingly, the Court will grant HarleyDavidson’s Motion, provided that Plaintiffs may request a hearing outside the presence
of the jury to determine whether the probative value of the bulletins outweighs their
prejudicial impact.
VI.

Harley-Davidson’s Motion to Exclude Evidence of Plaintiffs’ Hearsay
Statements
Harley-Davidson seeks to preclude Plaintiffs from making any reference to

hearsay statements made by Gilliland and Gallegos to other witnesses or through
affidavit related to the cause of the accident. Plaintiffs have not submitted any brief in
opposition to this Motion, and it will be granted.
VII. Harley-Davidson’s Motion for Oral Argument

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While the Court may conduct certain evidentiary hearings outside the presence
of the jury, as described above, to determine the admissibility of certain evidence at the
time of trial, the Court will deny Harley-Davidson’s request for a hearing on its Motions
in Limine. “In general the court does not allow oral argument or evidentiary hearings on
motions.” NECivR 7.1(d).
IT IS ORDERED:
1. Plaintiffs’ Motion in Limine (Filing No. 130) is granted in part as follows:
a.

Defendant Harley-Davidson will comply with Fed. R. Evid. 609;

b.

Defendant Harley-Davidson will be precluded from inviting the jury to

speculate about the cause of the motorcycle accident at issue in this case;
c.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiffs’ prior or subsequent accidents, injuries, claims, suits or settlements, or
the amount thereof, that did not occur under reasonably similar circumstances;
d.

Defendant Harley-Davidson will be precluded from making any reference

to the time or circumstances under which the Plaintiffs employed their attorneys;
e.

Defendant Harley-Davidson will be precluded from making reference to

whether any award to the Plaintiffs would be subject to taxation;
f.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiffs’ personal habits as they relate to consumption of alcohol, drugs, or
narcotics;
g.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiffs’ failure to call any witness that is equally available to Harley-Davidson;
h.

Defendant Harley-Davidson will follow the Federal Rules of Evidence with

respect to hearsay and expert testimony;
i.

Defendant Harley-Davidson will refrain from referring to the probable

testimony of any witness who is absent, unavailable, or not called to testify;
j.

Defendant Harley-Davidson will be precluded from calling any witness not

disclosed to the Plaintiffs;
15

k.

Defendant Harley-Davidson will be precluded from suggesting to the jury

that the Plaintiffs are motivated by “secondary gain or malingering;”
l.

Defendant Harley-Davidson will be precluded from requesting that the

Plaintiffs engage in any physical demonstrations in the presence of the jury;
m.

Defendant Harley-Davidson will be precluded from making reference to

any transactions that would violate the Plaintiffs’ attorney-client privilege;
n.

Defendant Harley-Davidson will be precluded from making reference to

settlement negotiations in violation of Fed. R. Evid. 408;
o.

Defendant Harley-Davidson will be precluded from referring to Plaintiffs’

expert witness James Weaver’s purported failure to comply fully with deposition
notices with respect to production of materials;
p.

Defendant Harley-Davidson will be precluded from referring to Plaintiffs’

expert witness James Weaver’s involvement in a motorcycle crash resulting in a
broken leg;
q.

Harley-Davidson will be precluded from making reference to other

accidents occurring in the same location as the motorcycle accident, provided
that Harley-Davidson may question witnesses about tire marks from prior
crashes remaining visible after the Gilliland crash;
r.

Defendant Harley-Davidson will be precluded from eliciting testimony from

Plaintiff Terrence N. Gilliland regarding his traffic record, including speeding
tickets;
s.

Defendant Harley-Davidson will be precluded from introducing evidence of

Plaintiff Terrence N. Gilliland’s speeding tickets;
t.

Harley-Davidson will be precluded, in limine, from making reference to

Plaintiff Terrence N. Gilliland’s 1973 conviction related to his credit card use,
pending the Court’s determination of whether the probative value of the evidence
substantially outweighs its prejudicial effect, outside the presence of the jury;
u.

Defendant Harley-Davidson will be precluded from making any reference

to Plaintiff Terrence N. Gilliland’s business being sued for alleged defective
workmanship or incomplete work;
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v.

Defendant Harley-Davidson will be precluded from making any reference

to alleged negligence on the part of Jack Vaughn concerning the repair of the
motorcycle, provided that Harley-Davidson will not be precluded from eliciting
relevant factual testimony from Vaughn;
w.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiff Terrence N. Gilliland’s failure to wear a helmet;
x.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiff Terrence N. Gilliland’s failure to wear protective clothing, provided that if
Gilliland presents evidence of road rash and related pain and suffering, the Court
will revisit the relevance of the evidence of Gilliland’s failure to wear protective
clothing;
y.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiff Terrence N. Gilliland’s failure to verify answers to his interrogatories
before his deposition;
z.

Defendant Harley-Davidson will be precluded from making reference to

Plaintiff Terrence N. Gilliland’s own speculation about what his injuries from the
accident could have been, e.g., paralysis;
aa.

Defendant Harley-Davidson will be precluded from questioning Plaintiff

Terrence N. Gilliland about the truthfulness of his statements in his application to
purchase the motorcycle until after the Court has made a determination, outside
the presence of the jury, as to whether the probative value of such evidence is
substantially outweighed by its prejudicial impact;
bb.

Defendant Harley-Davidson will be precluded from presenting evidence

regarding Gallegos’s lack of a driver’s license;
cc.

Defendant Harley-Davidson will be precluded from eliciting evidence

regarding Plaintiff Luis S. Gallegos’s parole violations or the specific nature of his
felony convictions;
dd.

Defendant Harley-Davidson will be precluded from eliciting evidence of

Plaintiff Luis S. Gallegos’s domestic violence convictions;

17

ee.

Defendant Harley-Davidson will be precluded from presenting evidence

that Plaintiff Luis S. Gallegos has not paid his taxes, that he only works for cash,
or that he never “punched a time clock;”
ff.

Defendant Harley-Davidson will be precluded from presenting evidence of

Plaintiff Luis S. Gallegos’s use of marijuana;
gg.

Defendant Harley-Davidson will be precluded from presenting evidence

that Plaintiff Luis S. Gallegos was “smashed on weekends;”
hh.

Defendant Harley-Davidson will be precluded from presenting evidence

that Plaintiff Luis S. Gallegos failed to wear a helmet;
ii.

Defendant Harley-Davidson will be precluded from making reference to

the Plaintiffs’ filing of their Motion in Limine; and
the Motion is otherwise denied, without prejudice to the Plaintiffs asserting their
objections at the time of trial;
2. Defendant Harley-Davidson’s Motion in Limine No. 4 To Exclude Evidence of
Dissimilar Accidents or Incidents (Filing No. 132) is granted;
3. Defendant Harley-Davidson’s Motion in Limine No. 5 to Exclude Evidence of
Plaintiff Denise Gilliland’s Cancer (Filing No. 133) is denied, without prejudice to HarleyDavidson asserting its objections at the time of trial;
4. Defendant Harley-Davidson’s Motion in Limine No. 1 to Exclude Evidence of
Harley-Davidson’s Customer Contacts and Warranty Claims (Filing No. 134) is granted,
provided that Plaintiffs may request an evidentiary hearing outside the presence of the
jury to determine the admissibility of such evidence;
5. Defendant Harley-Davidson’s Motion in Limine No. 2 to Exclude any Evidence
of Harley-Davidson Service Bulletin M-1215, M1215A and M-1215B (Filing No. 136) is
granted, provided that Plaintiffs may request an evidentiary hearing outside the
presence of the jury to determine the admissibility of such evidence;
6. Defendant Harley-Davidson’s Motion in Limine No. 3 to Exclude Evidence of
Plaintiffs’ Hearsay Statements (Filing No. 138) is granted; and

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7. Defendant Harley-Davidson’s Request for Oral Argument on Motions in Limine
(Filing No. 140) is denied.
Dated this 29th day of April, 2015
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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