UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. DEDICATED LOGISTICS, INC.

Filing 195

ORDER indicaing that upon consideration of Penn Power's Motion in Limine Concerning Utility Inspection Practices 142 , its Brief in Support, and attachments 143 , and Dedicated's Brief in Opposition and attachments 174 , and further cons idering the Court's prior rulings denying Penn Power's Motion in Limine Regarding "Low Hanging" Lines 185 and granting Penn Power's Motion in Limine to Preclude Pole "Rot" Assertion 193 , it is hereby ordered tha t Penn Power's Motion in Limine Concerning Utility Inspection Practices 142 is granted, in part, and denied, in part. Such Motion is granted to the extent that evidence concerning the pre-4/20/11 inspections of the pole are excluded given th e Court's ruling precluding Dedicated from presenting evidence of the pole "rot" assertion (See Docket No. 193 ). Such Motion is denied insofar as Dedicated shall be permitted to introduce evidence that there was no inspection performed by Penn Power after the 4/20/1111 repair which is challenged in this case (details more fully stated in said Order). Signed by Judge Nora Barry Fischer on 5/21/15. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEDICATED LOGISTICS, INC.,

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Cross Claimant /Counterclaim Defendant,
v.
PENNSYLVANIA POWER COMPANY,
Cross Claimant / Counterclaimant.

Civil Action No. 11-1153
Hon. Nora Barry Fischer

ORDER OF COURT
AND NOW, this 21st day of May, 2015, upon consideration of Penn Power’s Motion in
Limine Concerning Utility Inspection Practices, (Docket No. [142]), its Brief in Support, and
attachments, (Docket No. [143]), and Dedicated’s Brief in Opposition and attachments, (Docket
No. [174]), and further considering the Court’s prior rulings denying Penn Power’s Motion in
Limine Regarding “Low Hanging” Lines, (Docket No. [185]) and granting Penn Power’s Motion
in Limine to Preclude Pole “Rot” Assertion, (Docket No. [193]),
IT IS HEREBY ORDERED that Penn Power’s Motion in Limine Concerning Utility
Inspection Practices [142] is GRANTED, IN PART, and DENIED, IN PART. Such Motion is
granted to the extent that evidence concerning the pre-April 20, 2011 inspections of the pole are
excluded given the Court’s ruling precluding Dedicated from presenting evidence of the pole
“rot” assertion. (See Docket No. 193). Such Motion is denied insofar as Dedicated shall be
permitted to introduce evidence that there was no inspection performed by Penn Power after the
April 20, 2011 repair which is challenged in this case.
At present, given all of the Court’s rulings, it is difficult for the Court to predict how or if
Penn Power will contest this undisputed fact that no inspection was completed in the timeframe
after the April 20, 2011 repair but before the May 19, 2011 accident. However, the Court may
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revisit this ruling in the event that Penn Power “opens the door” to its inspection practices by
relying upon same to argue to the jury that they were not required to conduct an inspection after
the April 20, 2011 repair.

If, for example, Penn Power argues or one of its witnesses testifies

that it had a 12-year inspection cycle and the subject pole was not due for an inspection until
2012, at that point, some of Penn Power’s inspection practices and procedures may become
relevant but such evidence will be limited in accordance with Rules 403 and 611. It will be
incumbent upon Dedicated to present a proffer to the Court demonstrating the admissibility of
any evidence that it will seek to utilize for impeachment purposes.
As always, the parties should meet and confer on this issue and advise the Court at the
Pretrial Conference if Penn Power intends to utilize its inspection practices in any manner. They
should also negotiate the extent of cross-examination and evidence that Dedicated intends to
introduce to dispute any such evidence.

s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
cc/ecf: All counsel of record.

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