Carroll v. United States of America
ORDER granting in part and denying in part 47 Motion in Limine. Signed by Honorable Timothy D. DeGiusti on 1/17/2017. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DIANA CARROLL, as Special
Administrator of the Estate of
Rodney James Carroll, deceased,
UNITED STATES OF AMERICA,
Case No. CIV-15-674-D
Before the Court is the United States’ Motion in Limine [Doc. No. 47].
Plaintiff has filed her response in opposition [Doc. No. 56] and the United States
has replied [Doc. No. 57]. The matter is fully briefed and at issue.
This action stems from an automobile accident in which a Bureau of Indian
Affairs school bus struck and killed Plaintiff’s husband. In a previous Order, the
Court denied the government’s Motion to Dismiss, finding Plaintiff’s SF-95 claim
form adequately presented a wrongful death claim and genuine issues of material
fact existed regarding the bus driver’s negligence.1 With an impending bench trial
The Court assumes the parties’ familiarity with the facts of this case and they will
not be restated here. For a more complete discussion of the facts, the Court
references its order denying the government’s Motion to Dismiss [Doc. No. 59].
in this matter,2 the government has filed the present motion in limine, asking the
Court to: (1) limit the opinions and testimony of Plaintiffs’ expert witness, Ronald
Blevins, to the issues relevant to this proceeding; (2) prevent Plaintiff from
offering testimony and evidence relating solely to issues over which the Court does
not have jurisdiction; (3) exclude all references to the Federal Motor Carrier Safety
Administration regulations and exclude certain of Blevins’ opinions as unreliable
and irrelevant; (4) exclude evidence and testimony relating to whether or not the
government took subsequent remedial measures; (5) exclude prior written witness
statements that were not made under oath; (6) exclude lay witness opinions on the
ultimate issues of negligence, causation, and liability; and (7) exclude testimony
and evidence that would disclose the identity of minors present on the school bus
when the accident occurred.
Although motions in limine are not formally recognized under the Federal
Rules, district courts have long recognized the potential utility of pretrial rulings
under the courts’ inherent powers to manage the course of trial proceedings. Luce
v. United States, 469 U.S. 38, 41 n. 4 (1984). “A motion in limine presents the trial
court with the opportunity ‘to rule in advance of trial on the relevance of certain
forecasted evidence, as to issues that are definitely set for trial, without lengthy
There is no right to a jury trial under the Federal Tort Claims Act (FTCA). See 28
U.S.C. § 2402; United States v. Neustadt, 366 U.S. 696, 701 (1961).
argument at, or interruption of, the trial.’” Wilkins v. Kmart Corp., 487 F. Supp. 2d
1216, 1218 (D. Kan. 2007) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996)). Although such pretrial rulings can save time and avoid interruptions at
trial, “a court is almost always better situated during the actual trial to assess the
value and utility of evidence. Consequently, a court should reserve its rulings for
those instances when the evidence plainly is ‘inadmissible on all potential grounds’
. . . and it should typically defer rulings on relevancy and unfair prejudice
objections until trial when the factual context is developed[.]” Id. (citations
omitted); see also Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398,
1400 (N.D. Ill. 1993) (“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.”).3
Some in limine rulings, such as relevance, are preliminary in nature because
the required balancing may be reassessed as the evidence is actually presented.
Accordingly, “[a] district court may change its ruling at any time for whatever
As noted, this case is scheduled for a bench trial as there is no right to a
jury trial in FTCA cases. To this end, some courts have held that “[i]n a bench trial,
[motions in limine] are unnecessary, as the Court can and does readily exclude
from its consideration inappropriate evidence of whatever ilk.” Cramer v. Sabine
Transp. Co., 141 F.Supp.2d 727, 733 (S.D. Tex. 2001). Nevertheless, motions in
limine can be a useful tool in streamlining the case and providing “a valuable aid to
the Court when deciding the competence of the evidence presented.” Americans
United for Separation of Church and State v. Prison Fellowship Ministries, 395 F.
Supp. 2d 805, 807 (S.D. Iowa 2005).
reason it deems appropriate.” United States v. Martinez, 76 F.3d 1145, 1152 (10th
Cir. 1996) (citation omitted) (quoting Jones v. Stotts, 59 F.3d 143, 146 (10th Cir.
1995)); see also Luce, 469 U.S. at 41 (“The ruling is subject to change when the
case unfolds, particularly if the actual testimony differs from what was contained
in the defendant’s proffer. 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.”).
Based on the foregoing standard, the Court finds as follows:
Mr. Ronald Blevins
The government first moves to exclude evidence from Plaintiff’s expert
witness, Ronald Blevins, who opines the government is responsible for the death of
Plaintiff’s husband. The Court previously granted in part the government’s
Daubert motion with respect to such opinions [Doc. No. 58], and that order is
incorporated here as it relates to the government’s current objections. Accordingly,
the government’s motion is granted as set forth the Court’s previous order.
Evidence Regarding Negligence Allegations
The government next contends Plaintiff never presented a claim for
negligent hiring, training, or supervision, and she should thus be precluded from
presenting evidence relating to the bus driver’s qualifications and training. Plaintiff
states she does not intend to introduce evidence to support a cause of action for
such claims; however, she states such evidence is relevant as to whether the driver
violated his duty of care. Pursuant to Federal Rule of Evidence 403, “the court may
exclude relevant evidence if its probative value is substantially outweighed by ...
unfair prejudice, confusing the issues ... undue delay, wasting time, or needlessly
presenting cumulative evidence.” Id. The Court finds such evidence is relevant
with respect to the bus driver’s actions the night of the accident, and the
government has failed to meet its burden of showing that such evidence is either
irrelevant or its probative value is substantially outweighed by unfair prejudice.
Moreover, the risk of confusion or prejudice resulting from this evidence is slight
as this is a bench trial, and the Court can accord whatever weight to such evidence
it deems appropriate.
Federal Motor Carrier Safety Administration Regulations
On this issue, Plaintiff concedes that the driver’s familiarity with FMCSA
regulations is irrelevant and does not object to the government’s motion to exclude
such evidence. Accordingly, the government’s motion is granted on this issue.
Subsequent Remedial Measures
Pursuant to Rule 407, “[w]hen measures are taken that would have made an
earlier injury or harm less likely to occur,” evidence of subsequent measures is not
admissible to prove, among other things, negligence or culpable conduct. Id. In this
regard, the government seeks to exclude reference to a Serious Accident
Investigation Report (SAIR) prepared after the subject accident. According to the
government, the SAIR constitutes a subsequent remedial measure. Plaintiff
contends the SAIR is not a subsequent remedial measure because its creation was
mandatory, it was not prepared for any remedial reason, and it did not implement
any remedial measures.
The Court finds any ruling on this issue should be deferred until trial. As
noted supra, a court should avoid rendering in limine rulings unless the proffered
evidence is plainly inadmissible on all potential grounds, and based on the record
before it, the Court is unwilling to make a determination that the SAIR at issue
meets this standard. Even assuming the report constituted a subsequent remedial
measure, such evidence is admissible for other purposes, such as impeachment or
the feasibility of precautionary measures. See Fed. R. Evid. 407. Moreover, with
respect to post-accident reports, the Tenth Circuit has previously stated that “[i]t
would strain the spirit of the remedial measure prohibition in Rule 407 to extend its
shield to evidence contained in post-event tests or reports.” Rocky Mountain
Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907, 918 (10th Cir. 1986).
Accordingly, the government’s motion on this issue is deferred until the record is
more fully developed at trial.
The government next seeks to exclude two written witness statements it
contends constitute inadmissible hearsay under Rule 801. Specifically, the
government alleges the statements were not made under oath and not given under
penalty of perjury. Plaintiff contends the statements are admissible because they
(1) fall under the party opponent exception to the hearsay rule, (2) are being
presented for impeachment purposes, (3) constitute a recorded collection, and (4)
are not being presented for the truth of the matter asserted. In light of the factual
dispute surrounding the documents in question, the Court reserves ruling on this
issue until the record is more fully developed at trial.
The government next asserts that the testimony of two Oklahoma highway
patrolmen listed by Plaintiff should be restricted to prevent them from testifying as
to the ultimate issues of negligence, causation, and liability. Plaintiff agrees that
said witnesses should be prohibited from testifying on such ultimate issues, and
further asserts that such testimony should be prohibited as to all witnesses. The
government’s motion on this issue is granted accordingly.
VII. Identification of Minors
Plaintiff agrees that all references to minors should be redacted from any
documents admitted at trial; therefore, the government’s motion is granted on this
In sum, and subject to the requirements of the Federal Rules of Evidence and
subsequent developments, the Court’s rulings are as follows:
Testimony of Ronald Blevins – Granted;
Allegations of Negligence – Denied;
References to FMCSA Regulations – Granted;
Subsequent Remedial Measures – To be determined at trial;
Prior Witness Statements – To be determined at trial;
Ultimate Issues – Granted; and
Identification of Minors – Granted.
IT IS THEREFORE ORDERED that Defendant’s Motion in Limine [Doc.
No. 47] is GRANTED IN PART and DENIED IN PART as set forth herein.
IT IS SO ORDERED this 17th day of January, 2017.
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