Gulley v. FLW, LLC et al

Filing 131

ORDER GRANTING DEFENDANT'S MOTIONS IN LIMINE 123 124 125 126 . Signed by Chief Judge S. Thomas Anderson on 1/22/18. (skc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
______________________________________________________________________________
ROBERT GULLEY,

)
)
Plaintiff,
)
)
and
)
)
THE HARTFORD INSURANCE
)
COMPANY,
)
)
Intervenor Plaintiff,
)
)
vs.
)
No. 1:14-cv-01138-STA-egb
)
SHINICHI FUKAE,
)
)
Defendant.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTIONS IN LIMINE
______________________________________________________________________________
Before the Court are the Motions in Limine of Defendant Shinichi Fukae (ECF Nos. 123,
124, 125, & 126). As noted in the Setting Letter (ECF No. 45), motions in limine were due at
least two weeks before the trial date—a deadline that Defendant complied with. But as also
noted in the Setting Letter, the responses to any motions in limine were due within five days of
service of those motions. Here, Plaintiff Robert Gulley failed to timely respond to any of
Defendant’s Motions in Limine. Plaintiff did, however, file a Response to the Motions (ECF No.
130) several days late and on the eve of trial. Under Local Rule 7.2(a)(2), this failure to timely
respond to a motion constitutes sufficient grounds to grant the motion. Nonetheless, the Court
now reviews each Motion on its merits. For reasons set forth below, Defendant’s Motions in
Limine are hereby GRANTED.

I.

DISCUSSION
Plaintiff contends, with one exception, that all of these Motions are moot in light of the

Court’s December 5, 2017 Order on Defendant’s Motion for Partial Summary Judgment and the
related Motions by Defendant’s co-Defendants (ECF No. 114). Plaintiff only asserts that the
testimony of Dr. Train remains relevant. The general rule for admissibility of evidence is that
“[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it
would be without the evidence . . . and . . . the fact is of consequence in determining the action.”
Fed. R. Evid. 401. But “[t]he [C]ourt may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. The admissibility of certain types “of evidence
depends on whether a fact exists, [and] proof must be introduced sufficient to support a finding
that the fact does exist.” Fed. R. Evid. 104(b). For “an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
Fed. R. Evid. 901(a). When a witness provides testimonial evidence but not
as an expert, [such] testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
Fed. R. Evid. 701. A witness who is qualified as an expert, however, may provide testimony
based on his or her own “scientific, technical, or other specialized knowledge.” Fed. R. Evid.
702. “An opinion is not objectionable just because it embraces an ultimate issue,” but the Rule
does not permit an expert witness to substitute for the Court in relating to jury applicable law.
Fed. R. Evid. 704(a); Stoler v. Penn Cent. Transp. Co., 583 F2d 896, 899 (6th Cir. 1978).

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In Defendant’s First Motion in Limine (ECF No. 123), Defendant seeks to exclude (1) the
testimony of Dr. Brian Fagan and (2) medical records from North East Orthopedics and Dr.
Brian Fagan. While Dr. Fagan was listed as a witness who may be called by Plaintiff, no party
has taken his deposition. While the medical records were received during discovery, no party
has identified the medical records or testified as the procedure of their creation. The records
indicate that Dr. Fagan saw and possibly treated Plaintiff for right knee pain.

Defendant

contends that both the testimony and record itself are irrelevant because the Court entered
summary judgment as to Plaintiff’s alleged knee injury. Defendant further argues that the records
have not been properly authenticated under Federal Rule of Evidence (“FRE”) 901.
In Defendant’s Second Motion in Limine (ECF No. 124), Defendant seeks to exclude (1)
the testimony of Dr. Joseph Bailey and (2) medical records from Tree of Life Free Clinic. While
Dr. Bailey was listed as a witness who may be called by Plaintiff, no party has taken his
deposition. Plaintiff produced two documents from the Free Clinic—where Dr. Bailey is a
Physician—that are dated November 2, 2016, and January 4, 2017. While it is unclear from the
record who actually saw Plaintiff, Plaintiff maintains that he saw Dr. Bailey. An unknown Nurse
Practitioner, however, appears to have signed the January 4, 2017 medical record. Plaintiff’s
visit to Dr. Bailey, the records indicate, pertained to neck pain. Defendant contends that both the
testimony and records themselves are irrelevant because the Court entered judgment as to
Plaintiff’s alleged neck injury. Defendant further argues that the records have not been properly
authenticated under FRE 901.
In Defendant’s Third Motion in Limine (ECF No. 125), Defendant seeks to exclude the
testimony of Dr. F. Mitchell Massey. Plaintiff has identified Dr. Massey as a witness whose
testimony he intends to present by deposition. But based on Dr. Massey’s deposition testimony,

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it is clear he saw and treated Plaintiff for right knee pain only. Thus, Defendant argues once
again that such evidence is irrelevant in light of the Court’s entry of summary judgment.
In Defendant’s Fourth Motion in Limine (ECF No. 126), Defendant seeks to exclude (1)
any testimony or evidence relating to or referencing Plaintiff’s alleged neck or knee injuries; (2)
any testimony or evidence relating to or referencing Plaintiff’s earning capacity, loss of earning
capacity, loss of past earnings, or loss of future earnings; (3) any testimony or evidence relating
to or referencing Plaintiff’s future medical expenses; (4) the GPS Download and Analysis for
Incident 111019 by the Tennessee Wildlife Resources Agency; and (5) any evidence or
testimony relating to or referencing Defendant’s contractual relationship with Operation Bass or
any other sponsors. Defendant argues that evidence as to these injuries is irrelevant in light of
the Court’s entry of judgment that the accident did not cause these injuries.

Defendant

references a deposition where Plaintiff’s counsel stated that Plaintiff is waiving all claims for
past and future wages as well as earning capacity. Defendant then argues that any evidence
admitted to establish any of these claims would be irrelevant. Defendant points out that Court
entered judgment in its favor as to future medical expenses after Plaintiff could produce no
evidence to support a claim for such expenses and argues that any such evidence would now be
irrelevant. Plaintiff indicated in the Proposed Pre-Trial Order that he will seek to introduce a
document titled “GPS Download and Analysis – Incident 111019” that was prepared by the
Tennessee Wildlife Resources Agency. Defendant argues that the document should be excluded
because it has not been authenticated under FRE 901 as Plaintiff has introduced no evidence to
support a finding that the document is what it purports to be. Defendant also argues that the
document contains impermissible opinion testimony under FRE 701 as it offers a conclusion that
Defendant was inattentive to the course of the vessel and this resulted in the accident. Defendant

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notes that Plaintiff failed to offer evidence establishing this opinion as rationally based on the
Investigator’s perception, helpful to determining a fact in issue, rather than technical knowledge
within the scope of FRE 702. Defendant also asserts that the conclusion is a legal conclusion on
an ultimate issue rather than a factual opinion and should be excluded under FRE 704(a).
Defendant argues that its contractual relationship with Operation Bass and other sponsors,
particularly his compensation and benefits, is irrelevant to Plaintiff’s claims and should therefore
be excluded. Defendant alternatively argues that the information is confidential, as he is bound to
maintain confidentially regarding his compensation under any contract and this outweighs any
probative value by being unfairly prejudicial.
With the exception of Defendant’s alternative argument in the Fourth Motion regarding
prejudice, Defendant’s arguments are well taken. As for Plaintiff’s sole argument, Dr. Train is
not mentioned specifically in any of Defendant’s Motions that are currently before the Court.
And Plaintiff does not clarify which Motion in Limine seeks to exclude Dr. Train’s testimony or
why Dr. Train’s testimony continues to be relevant beyond Plaintiff’s belief that it “continues to
be admissible” in conjunction with Plaintiff’s own testimony. Thus, the Court finds no reason to
limit the Order it enters today.

II.

CONCLUSION
For the foregoing reasons, Defendant’s Motions in Limine are GRANTED.

IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE

Date: January 22, 2018.
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