Posel v. Dayton Power & Light et al.

Filing 165

OPINION AND ORDER denying 149 Motion in Limine No. 1 to Exclude Evidence Related to Zurich American Insurance Company; denying 150 Motion in Limine No. 2 to Exclude Evidence Related to Plaintiff's Alleged Hip and Low Back Injuries, denying 151 Defendant Mid Atlantic Construction, Inc's Memorandum in Support of it Presenting Evidence of Plaintiff's Settlements with Former Defendants. These motions are denied WITHOUT PREJUDICE to renewing at the time of trial. The Court further VACATES the 10/25/2011 trial date and RESETS trial to commence on 12/6/2011. Signed by Judge S Arthur Spiegel on 9/30/2011. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOHN M. POSEL,

:
:
Plaintiff,
:
:
v.
:
:
THE DAYTON POWER & LIGHT,
:
d/b/a STUART STATION, et al., :
:
Defendants.
:

NO. 1:09-CV-00149

OPINION AND ORDER

This matter is before the Court on Defendant Mid-Atlantic
Construction’s

(“Mid-Atlantic”)

Motion

in

Limine

to

Exclude

Evidence Related to Zurich American Insurance Company (doc. 149),
Plaintiff’s Response (doc. 155), and Defendant’s Reply (doc. 157);
Defendant Mid-Atlantic’s Motion in Limine to Exclude Evidence
Related to Plaintiff’s Alleged Hip and Low Back Injuries (doc.
150), Plaintiff’s Response (doc. 156), and Defendant’s Reply (doc.
158); and Defendant’s Memorandum in Support of It Presenting
Evidence of Plaintiff’s Settlements With Former Defendants (doc.
151), Plaintiff’s Response (doc. 154), and Defendant’s Reply (doc.
159).

For the reasons indicated herein, the Court DENIES each

motion without prejudice to refiling at time of trial.
I.

Background
This case involves an injured construction worker, John

Posel, who brings negligence claims in diversity against Defendant
Mid-Atlantic Construction, (“Mid-Atlantic”) the general contractor

responsible for installation of doors at the worksite, where a door
fell on Plaintiff’s right heel (doc. 121). Specifically, Plaintiff
alleges Mid-Atlantic was responsible for the unsecured door, in
failing to secure it, in allowing it to fall over, in failing to
warn workers of the dangers of the door, and in failing to cordon
off the area of the door or otherwise guard persons such as
Plaintiff from coming to its vicinity (Id.).

The Court denied

Defendant summary judgment, as well as to other Defendant entities
that ultimately all settled with Plaintiff.

As it currently

stands, only Mid-Atlantic remains as a Defendant in this case,
which is set for trial to commence on October 25, 2011.
II.

Defendant’s First Motion
In Defendant’s first motion, it seeks to exclude any

evidence related to or otherwise referencing payments made by nonparty Zurich American Insurance Company either to or on behalf of
Plaintiff (doc. 149).

In Defendant’s view, such evidence is

inadmissible under the collateral source rule, Federal Rule of
Evidence 403, and it is patently prejudicial (Id.).
In Plaintiff’s view, such evidence is not barred under
the collateral source rule, because he contends the rule does not
apply to plaintiffs, but only to Defendants (doc. 155).

Plaintiff

further contends that Defendant is not prejudiced by such evidence
while he would be substantially prejudiced if not allowed to
introduce such evidence (Id.).

In Plaintiff’s view he should be

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allowed to present evidence of Zurich’s statutory lien and his
legal obligation to reimburse Zurich for payments made to Plaintiff
(Id.).
III.

Defendant’s Second Motion
In

Defendant’s

Second

Motion,

it

seeks

to

exclude

evidence related to Plaintiff’s Alleged Hip and Low Back Injuries
(doc. 150).

Defendant contends Plaintiff has provided it with

evidence at the eleventh hour, and that it is prejudiced with the
impending trial.
Plaintiff responds that he has no evidence with regard to
his low back, but that he has indeed disclosed the hip injury,
which was first diagnosed in October 2010, and for which he
received surgery in February 2011 (doc. 156).
IV.

Defendant’s Third Motion
Defendant’s third motion is styled as a “Memorandum in

Support of It Presenting Evidence of Plaintiff’s Settlements with
Former Defendants,” which Plaintiff opposes.

Defendant contends

that such evidence is not excluded by Federal Rule of Evidence 408,
because such evidence is not offered to prove the validity or
amount of a disputed claim (doc. 151).

According to Defendant, it

should be allowed to introduce evidence that other Defendants were
in the case to show the bias or prejudice of a witnesses, and to
impeach witnesses (Id.). Plaintiff contends that every witness can
testify as to work performed by the Defendants who have settled

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without any need to reference the fact that Plaintiff settled with
those parties (doc. 154).

In Plaintiff’s view the Court can

instruct the jury that it will hear evidence regarding other
companies but that the jury should not concern itself with the
reasons why those companies are not parties to the case (Id.).
Finally, Plaintiff contends evidence of the settlements would be
highly prejudicial to his case, as Defendant may very well suggest
to the jury that the truly responsible parties have already paid
(Id.).
V.

Discussion
Having

reviewed

this

matter,

appropriate to deny each motion.

the

Court

finds

it

It is customary for this Court

to decide liminal motions at the trial rather than in advance,
because the issues raised may not arise in the circumstances
anticipated by the moving party.

The Court prefers to analyze the

substance of such evidentiary issues at the time of trial.
However, to assist the parties in their preparation for
trial, the Court finds it appropriate to indicate that in its view,
there appears to be merit to Plaintiff’s position regarding the
lien against him by Zurich because the collateral source rule is
regarded as a shield for the plaintiff and not a sword for
Defendant.
2009).

Ross v. Nappier, 924 N.E. 2d 916, 929 (Ohio Ct. App.

However, the Court finds that any evidence of settlements

by other parties is not relevant to the issue of whether Defendant

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is liable, and for what amount.

As such, it would appear that it

would be inappropriate to allow any reference to amounts realized
in settlement at trial.

The Court contemplates, however, that any

damages awarded to Plaintiff by the jury would be reduced by the
aggregate amount of the settlements.
Finally, the Court sees no reason why Plaintiff should
not be allowed to introduce evidence regarding his alleged hip
injury. Plaintiff has obtained a report by his treating physician,
Dr. Edward Snell, that relates his hip injury to the accident at
issue in this case.

A jury can evaluate and weigh the credibility

of such testimony.

The Court does not find that Defendant is

genuinely prejudiced by an “eleventh hour” disclosure of such
injury.

However, out of an abundance of caution, the Court finds

it appropriate to vacate the October 25, 2011 trial date, so as to
permit Defendant to take whatever relevant discovery it seeks
regarding the issue of Plaintiff’s hip injury.
VI.

Conclusion
Accordingly, for the reasons indicated herein, the Court

DENIES each of Defendant’s motions (docs.

149, 150, 151) without

prejudice to renewing such motions at the time of trial. The Court
further VACATES the October 25, 2011 trial date and RESETS trial to
commence on December 6, 2011.
SO ORDERED.
Dated: September 30, 2011

/s/ S. Arthur Spiegel
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