Lewis v. Hearthside Food Solutions, LLC et al

Filing 83

ORDER denying 76 Motion in Limine. Signed by Judge Gregory L. Frost on 5/28/15. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANDREW LEWIS, et al.,
Plaintiffs,
Case No. 2:13-cv-00823
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.
HEARTHSIDE FOOD
SOLUTIONS, LLC, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiffs’ motion in limine regarding
the “DB Schenker Incident Investigation Report” (the “Report”), the “DB Schenker Coaching
and Counseling Form” (the “Form”), and expert testimony relying upon the same (ECF No. 76),
and Defendant Toll Packaging Services, LLC’s (“Toll”) response in opposition (ECF No. 81).
For the reasons that follow, the Court DENIES the motion.
I.
This case involves an accident in which Plaintiff Andrew Lewis (“Lewis”), who was
employed as a yard driver by DB Schenker at all times relevant, was injured after opening a
truck. The cargo inside the truck fell onto Lewis and caused him to break his leg. Lewis alleges
that Toll was negligent in packaging, loading, and securing the cargo inside of the truck.
This matter is scheduled for a jury trial to begin on July 6, 2015. Plaintiff filed the
present motion seeking to exclude two pieces of evidence, the Report and the Form, from trial.
The Report, prepared by an individual associated with DB Schenker, states (among other
things) that Lewis “tripped over the curb” as he was unloading the cargo from the truck and that
Lewis “failed to recognize the potential hazard of the product leaning against the door.” (ECF
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No. 76-1.) The Form states (among other things) that “[t]he accident was caused by not
following proper procedures in the yard, and ensuring that the load wasn’t leaning on the door
prior to opening.” (ECF No. 76-2.)
Plaintiff also seeks to exclude the testimony of expert Donald A. Taylor, who relied (at
least in part) on the Report and the Form in reaching his conclusions in this case. Toll has
disclosed Mr. Taylor as a liability expert.
II.
The inquiry involved in a motion in limine decision is well settled:
Motions in limine are generally used to ensure evenhanded and
expeditious management of trials by eliminating evidence that is clearly
inadmissible for any purpose. See Jonasson v. Lutheran Child and Family Serv.,
115 F.3d 436, 440 (7th Cir.1997). The court has the power to exclude evidence in
limine only when evidence is clearly inadmissible on all potential grounds. Cf.
Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460, 463 n.4, 83 L. Ed. 2d
443 (1984) (federal district courts have authority to make in limine rulings
pursuant to their authority to manage trials). Unless evidence meets this high
standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context.
(citations omitted). Denial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion will be admitted at trial. Denial merely
means that without the context of trial, the court is unable to determine whether
the evidence in question should be excluded. The court will entertain objections
on individual proffers as they arise at trial, even though the proffer falls within the
scope of a denied motion in limine. See United States v. Connelly, 874 F.2d 412,
416 (7th Cir.1989) (citing Luce, 469 U.S. at 41, 105 S. Ct. at 463) (“Indeed, even
if nothing unexpected happens at trial, the district judge is free, in the exercise of
sound judicial discretion, to alter a previous in limine ruling.”). Hawthorne
Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400-01 (N.D.
Ill.1993).
Weimer v. Honda of Am. Mfg., Inc., No. 2:06-cv-844, 2008 WL 4332525, at *1 (S.D. Ohio Sept.
17, 2008) (quoting Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846–47 (N.D. Ohio
2004)). In short, “[c]ourts are generally reluctant to grant broad exclusions of evidence in limine
because ‘a court is almost always better situated during the actual trial to assess the value and

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utility of evidence.’ ” Id. (quoting Koch v. Koch Indus., Inc., 2 F. Supp. 2d 1385, 1388 (D. Kan
1998)).
III.
In support of their motion, Plaintiffs present several arguments. None of these arguments
have merit.
First, Plaintiff suggests that neither the Report nor the Form can be “verified” because, in
response to a deposition subpoena, non-party DB Schenker produced a witness who “did not fill
out the form and did not have direct prior knowledge of the form as it pertained to Mr. Lewis’
incident.” (ECF No. 76, at PAGEID # 303.) It goes without saying, however, that Toll is free to
present witnesses to authenticate the Report and the Form other than the witness DB Schenker
selected in response to the subpoena. The Court therefore declines to exclude the Report and the
Form on the ground that they cannot be “verified.”
Second, Plaintiff argues that the Report and the Form contain hearsay statements.
Plaintiff anticipates that Toll will attempt to use these statements to prove the truth of the matter
asserted—i.e., to prove that Lewis’ own negligence contributed to or caused his accident. But
Plaintiffs’ speculation about the manner in which Toll will attempt to use this evidence is
insufficient to exclude the evidence before trial. Put simply, “without the context of trial, the
court is unable to determine whether the evidence in question should be excluded” as hearsay.
Weimer, 2008 WL 4332525, at *1.
Third, Plaintiffs suggest that the evidentiary value of the Report and the Form is weak
because the documents contain contradictory statements, contain statements from declarants who
were not present at the scene of the accident, and refer to policies and procedures that are not

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specifically identified. These arguments go to the weight of the evidence and not its
admissibility. These arguments therefore do not support Plaintiff’s motion.
Having declined to exclude the Report and the Form as inadmissible, Plaintiffs’ final
argument that Toll’s expert should be precluded from offering any testimony or opinion that
relies on the Report and/or the Form is not persuasive. That is especially true given that Rule
703 permits an expert to rely on inadmissible evidence in certain circumstances. Plaintiffs’
passing assertion that Rule 703 does not apply is insufficient to exclude Mr. Taylor’s testimony
before trial.
IV.
For the foregoing reasons, the Court DENIES Plaintiffs’ motion in limine. (ECF No.
76.)
IT IS SO ORDERED.

/s/ Gregory L. Frost_______________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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