Ashike et al v. Mullen Crane and Transport et al

Filing 119

MEMORANDUM DECISION denying 85 Motion in Limine and For Sanctions AgainstDefendants for Lying in Discovery; denying 108 Motion in Limine to Limit the Testimony of Retained Experts to Opinions Contained in the Experts Reports or Depositions ; granting 109 Motion in Limine to Exclude the Testimony of Plaintiffs Expert Roger Allen with Regard to the Utah Trucking Guide; granting in part and denying in part 110 Plaintiffs Affirmative Motion in Limine. Signed by Judge Dale A. Kimball on 7/23/2014. (jds)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CHERYL ASHIKE and LATANYA
YAZZIE,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER

vs.
Case No. 2:12CV11DAK
MULLEN CRANE AND TRANSPORT,
INC., and BROCK FARNWORTH,

Judge Dale A. Kimball

Defendants.

This matter is before the court on several pre-trial motions in limine: Plaintiffs’ Motion in
Limine and For Sanctions Against Defendants for Lying in Discovery; Plaintiffs’ Affirmative
Motion in Limine; Defendants’ Motion in Limine to Exclude the Testimony of Plaintiffs’ Expert
Roger Allen with Regard to the Utah Trucking Guide; and Defendants’ Motion in Limine to
Limit the Testimony of Retained Experts to Opinions Contained in the Experts’ Reports or
Depositions. On July 22, 2014, the court held a hearing on the motions. At the hearing,
Plaintiffs were represented by Paul D. Barber and Forrest G. Buffington, and Defendants were
represented by Michael L. Ford. The court heard oral argument and took the motions under
advisement. The court has carefully considered all materials submitted by the parties and the law
and facts relevant to the motions. Now being fully advised, the court enters the following
Memorandum Decision and Order.

DISCUSSION
I. Plaintiffs’ Motion in Limine and for Sanctions Against Defendants for Lying in
Discovery
Plaintiffs seek cross examination with respect to Defendants’ alleged dishonesty
regarding insurance coverage and Rule 37 sanctions for dishonesty in discovery. Defendants’
initial disclosures stated that Mullen Crane had $2 million in insurance coverage. Defendants
and Plaintiffs then entered into settlement discussions. Plaintiffs gave an offer for the $2 million
limit, and Defendants refused to settle for that amount. Subsequently, Defendants’ insurer got a
new adjuster assigned to the case. The new adjuster discovered that there was an excess
insurance policy also available with another $8 million in coverage. Defendants then disclosed it
to Plaintiffs.
Plaintiffs allege that Defendants lied under oath about coverage because Defendants’
initial disclosures did not mention the excess policy. Plaintiffs also assert that they were
prejudiced in giving a $2 million offer. Defendants contend that they disclosed the information
as soon as it learned of the excess coverage, they did not know about the excess coverage at the
time of the mediation, and Plaintiffs were not prejudiced by the late disclosure because
Defendants did not settle for the requested $2 million.
Plaintiffs, however, argue that Defendants’ dishonesty affected their ability to negotiate
for appropriate damages and Defendants should be precluded from introducing evidence on
Plaintiffs’ damages at trial. Plaintiffs also seek a jury instruction informing the jury that
Defendants’ lied under oath and the amounts of insurance available. In addition, Plaintiffs seek
costs associated with Plaintiffs’ settlement efforts–such as, Plaintiffs share of the settlement
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conference, travel costs, and attorneys fees. Finally, Plaintiffs seek an order in limine allowing
Plaintiffs to cross examine Defendants in front of the jury about their alleged dishonesty.
The evidence before the court does not support a finding that Defendants were dishonest.
The fact that Defendants discovered additional coverage after their initial disclosures and a
settlement conference is not evidence of dishonesty. The rules specifically contemplate that
initial disclosures and other discovery matters will be supplemented throughout the litigation. It
is not uncommon for new information to come to light during discovery. Defendants complied
with the rules and disclosed the new coverage to Plaintiffs when Defendants learned of the
coverage. The court finds no basis for sanctioning Defendants or for issuing an order in limine to
address the issue based on a delayed finding regarding an additional policy.
Furthermore, the court does not find that Plaintiffs were prejudiced by Defendants’ failure
to discover the extent of insurance coverage. The parties did not successfully settle the case with
the lower policy limit but there is no evidence that the amount of insurance coverage influenced
Defendants’ decisions at the settlement conference. If Defendants were unwilling to settle for $2
million, there is no reason to believe they would have been willing to settle for more. Moreover,
the issue of failed settlement discussion are confidential and will not impact anything at trial.
Finally, the court notes that the introduction of insurance issues, when such issues are
unnecessary, is inappropriate under Utah law. Utah law has long held that “the question of
insurance is immaterial and should not be injected into the trial.” Robinson v. Hreinson, 409
P.2d 121, 123 (Utah 1965). Although Plaintiffs claim that the issue could be admissible under
Federal Rule of Evidence 411 for another purpose, the court has found that there is no evidence
that the failure to find the excess policy is an issue of dishonesty. Thus, there are not grounds for
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the admission of such evidence for other purposes and the admission of such evidence would be
error. The court concludes that Plaintiffs’ requests for sanctions and an order in limine are
without merit. Accordingly, the court denies Plaintiff’s motion in limine.
II. Plaintiffs’ Affirmative Motion in Limine
Plaintiffs’ motion addresses three separate evidentiary issues for trial. The court will
address each in turn.
(1) Latanya Yazzie’s MRI
Plaintiffs seek to use the results of an MRI study of Latanya Yazzie and a radiology report
of Dr. Gary Stimac for purposes of cross-examining Defendant’s neuropsychological expert.
Plaintiffs also seek an order allowing Dr. Erin Bigler to testify regarding how those studies
supplemented his opinion regarding Latanya’s brain injury
Latanya Yazzie had a brain MRI on July 1, 2013. Dr. Stimac read her MRI along with
her emergency room CT scan. On July 11, 2013, he reported that he found uncontested signs of
traumatic brain injury in the DTI and MRI imaging. Plaintiffs attempted to use Dr. Stimac’s
report as rebuttal evidence to Defendants’ neuropsychologist Dr. Weight. Defendants moved to
strike Dr. Stimac’s report, and Magistrate Judge Wells granted the motion.
Magistrate Judge Wells determined that Dr. Stimac’s report exceeded the scope of proper
rebuttal evidence and was being used instead to bolster Plaintiff’s case-in-chief when Plaintiffs
had previously decided not to have a brain MRI done. Plaintiffs have objected to her ruling, but
the court concludes that Magistrate Judge Wells’s ruling was correct.
Regardless of the court’s ruling on the objection, Plaintiffs ask the court to allow them to
use Dr. Stimac’s MRI studies and report for cross-examination purposes of Defendants’ expert
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Dr. Weight. However, Plaintiffs strategically decided not to do a brain MRI to support their
case-in-chief. If Plaintiffs had done the MRI to support their case-in-chief, they ran the risk that
the results would be unfavorable and need to be disclosed. Instead, Plaintiffs waited until such
risk was gone, did the MRI, and then attempted to submit it on rebuttal. The court agrees with
Magistrate Judge Wells’s determination that the MRI and report were not proper rebuttal
evidence but, rather, a strategic attempt to bolster Plaintiffs’ case-in-chief. Dr. Stimac’s evidence
does not discuss Dr. Weights’ report or methodology. Thus, it is not rebuttal evidence. Rather, it
raises entirely new evidence that would require Defendants to retain an entirely new expert.
Defendant’s expert Dr. Weight is a neuropsychologist, not a radiologist. His opinions are not
medical or based on medical imaging. They are based on a neuropsychological test, school
records, and medical records. Plaintiffs’ evidence, therefore, is not proper rebuttal evidence.
The other basis for Magistrate Judge Wells’ decision was that the rebuttal evidence was
untimely because expert discovery was closed and trial was close at hand. Because of two delays
in the trial date, Plaintiffs now argue that Defendants have had the evidence for a year. However,
such an argument is disingenuous. Defendants moved to strike the evidence and the motion was
granted. The trial was then delayed twice. If the parties had attempted to reach an agreement
about reopening discovery during the delays in the trial, Plaintiffs may have some support for
their argument. However, at present, there is no basis for the court to find that Defendants’
expert has seen the MRI. Moreover, there is no evidence before the court that a
neuropsychologist would be qualified to opine on an MRI. Thus, cross examination on an MRI
or radiology report would yield very little probative evidence.
Plaintiffs also ask the court to allow Dr. Bigler to testify as to the MRI. However, as
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stated above, there is no evidence before the court that Dr. Bigler would be qualified to testify as
to the MRI. Rather, he would merely be stating that a radiologist agreed with his opinion. Such
testimony is improper and a back door way of getting evidence into trial that cannot come in
through the front door. Plaintiffs made the strategic decision to use Dr. Erin Bigler as their
expert. Dr. Weight and Dr. Bigler have the same specialty. Allowing Dr. Bigler to state that his
opinion was later supported by a doctor of a different specialty is improper rebuttal evidence.
Accordingly, the court denies Plaintiffs’ motion to introduce the MRI of Latanya Yazzie.
(2) Illustrations of Cheryl Ashike’s Brain MRI
Plaintiffs seek to use the illustrations made by Dr. Tracy Abildskov of Cheryl Ashike’s
brain MRI. Plaintiffs disclosed these three-dimensional color illustrations as part of Dr. Erin
Bigler’s report. Dr. Bigler’s report states that they accurately demonstrate the location of
pathology. Plaintiffs want an affirmative ruling that they can use these illustrations at trial
without further testimony by Tracy Abildskov.
Defendants, however, do not believe that Plaintiffs’ motion lays an adequate foundation
for the admission of the images at trial and assert that a proper foundation would need to be laid
at trial. The court agrees with Defendants that Dr. Abildskov needs to lay a foundation for the
illustrations. Based on the parties’ arguments, the court believes that such testimony could be
relatively brief. However, without Dr. Abildskov’s testimony, Plaintiffs run the risk of Dr.
Bigler not being able to lay a proper foundation and the illustrations being excluded altogether.
The court does not have the necessary information before it this time to conclude that Dr. Bigler
can explain Dr. Abildskov’s process or the accuracy and veracity of his work. Defendants should
have the opportunity to question the validity of the illustrations and the process used to create
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them.
Although the court concludes that Dr. Abildskov’s testimony is necessary to lay a proper
foundation, the court encourages the parties to attempt to reach a stipulation as to the foundation
for such evidence prior to trial, if possible. However, if the parties are unable to reach such
agreement, the court believes that Dr. Abildskov’s foundational testimony is necessary.
Accordingly, Plaintiffs’ motion is denied.
(3) Oversize Permit and Utah Trucking Guide
Plaintiffs seek to introduce the application for oversize permits under which Defendants
were operating at the time of the crash and the Utah Trucking Guide that Defendants agreed to
follow in obtaining that permit.
Defendants admit that they were bound by all the rules and regulations governing
oversize permits. The oversize permit that was in the truck at the time of the accident states that
“[t]he permit holder or authorized agent acknowledges that he/she has read and understands all
the laws and regulations governing the use of this permit.” Chapter 16 of the Utah Trucking
Guide states that “[t]he applicant or permittee, as a condition for obtaining an oversize permit,
shall assume all responsibility for crashes, including injury to any persons or damage to public or
private property caused by operations.”
This court has already decided on summary judgment that the language of the Utah
Trucking Guide does not apply to the determination of liability in this case. The court has
already ruled that the guide pertains to the relationship between Defendants and UDOT and is
irrelevant to Defendants’ potential liability to third parties. The Utah Trucking Guide does not
displace Utah’s comparative fault system. Nonetheless, the parties can make reference to the fact
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that Defendants were operating under a valid oversize use permit and that they agreed to be
familiar with all rules and regulations pertaining to that permit. However, the language from the
Utah Trucking Guide that Plaintiffs seek to get before the jury is irrelevant to Defendant’s
liability to Plaintiffs, would serve only to confuse the jury, and is not admissible. Therefore, the
court concludes that Plaintiffs can introduce the fact that an oversize permit was obtained and the
language contained on the oversize permit. However, the language from the Utah Trucking
Guide regarding the responsibility for crashes is not admissible. In addition, the court advises
Plaintiffs’ that they are not allowed to make any references in front of the jury to their position
that the Utah Trucking Guide makes Defendants more liable to Plaintiffs than Utah’s statutory
comparative negligence scheme provides. The court has already ruled that such position is
contrary to the law and Plaintiffs must abide by that ruling.
III. Defendants’ Motion in Limine to Exclude the Testimony of Plaintiffs’ Expert Roger
Allen With Regard to the Utah Trucking Guide
Defendants seek an order from the court excluding the testimony of Mr. Allen regarding
his opinions with respect to the Utah Trucking Guide and its application to this case. Plaintiffs
filed a Motion for Partial Summary Judgment arguing that Mullen Crane should be held liable for
the accident as a matter of law based on the language of the Utah Trucking Guide. The court
denied Plaintiffs’ Motion for Partial Summary Judgment, concluding that the Utah Trucking
Guide did not displace Utah’s comparative fault system.
Plaintiffs retained Mr. Roger Allen as an expert. Mr. Allen testified in his deposition that
Defendants had to comply with the Utah Trucking Guide while operating under an oversize use
permit and the Utah Trucking Guide states that Mullen Crane must take responsibility for this

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collision. His report states that “Mullen Crane agreed by obtaining an oversize load permit
through the State of Utah they acknowledge they had read and understood all the laws and
regulations governing the use of the permit, including that they accept responsibility for all
crashes.”
Mr. Allen’s testimony and report are contrary to this court’s prior ruling. In denying
Plaintiffs’ Motion for Partial Summary Judgment, the court has already ruled that the Utah
Trucking Guide has no application in establishing liability against Mullen Crane. The Order
constitutes the law of the case. The court found the Utah Trucking Guide to be irrelevant in
determining the liability of Defendants to third parties. The Utah Trucking Guide addressed
liability between the permit holder and UDOT. It does not displace Utah’s comparative fault
system for determining negligence. Mr. Allen cannot contradict what the court has already ruled.
It is the province of the court to opine on the legal duties of the parties. A trucking safety expert
is not qualified to testify as to relationship between the Utah Trucking Guide and Utah’s
comparative fault system. Such matters are issues of law which are decided by the court.
To the extent that Mr. Allen has opinions regarding trucking safety that is not tied to
whether Defendants have assumed liability to third parties by virtue of operating under an
oversize permit, he can testify as to industry standards and matters within his expertise. Thus,
the court’s ruling does not exclude him as a witness altogether. However, he cannot attempt to
give an opinion on the state of the law or liability between the parties. Accordingly, Defendants’
motion in limine is granted.
IV. Defendants’ Motion in Limine to Limit the Testimony of Retained Experts to Opinions
Contained in their Experts’ Reports or Depositions
Defendants seek an order precluding any retained experts from offering opinions which
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are not set forth in their respective reports or depositions. Defendants seek to ensure that the
parties are not ambushed by previously undisclosed expert opinions at trial. Plaintiffs argue that
Defendants’ motion should be denied because it lacks specificity.
Defendants’ motion reiterates the rule relating to expert witness disclosure but points to
no specific evidence to which they object. The court and parties agree that under the rules
opinions not previously disclosed will not be admissible. In Means v. Letcher, 51 Fed. Appx.
281, 284 (10th Cir. 2002), the Tenth Circuit referred to a motion in limine that excluded “from
trial any and all expert opinions offered by plaintiffs which were not set forth in the expert’s Rule
26 report or deposition.” Id. at 283.
Although the court recognizes that the Tenth Circuit did not object to such a broadly
phrased motion in limine, the court agrees with Plaintiffs that Defendants have not met their
burden of establishing that any specific evidence is inadmissible. In Maggette v. BL
Development Corp., 2011 WL 2134578, *4 (N. D. Miss), the court explained that “[t]he purpose
of motions in limine is not to re-iterate matters which are set forth elsewhere in the Rules of Civil
Procedure or Rules of Evidence, but, rather to identify specific issues which are likely to arise at
trial, and which, due to their complexity or potentially prejudicial nature, are best addressed in
the context of a motion in limine.”
Defendants motion is not concerned with a particular witness, only experts in general.
The court can caution the parties to follow the rules but there is no real indication that anyone is
planning to disregard the rules. Defendants should have identified which expert witness they
have concerns with and what additional testimony they think that witness may try to give at trial.
Because there is no specific witness or evidence at issue, the court denies Defendants’ motion in

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limine as being too vague.
CONCLUSION
Based on the above reasoning, Plaintiffs’ Motion in Limine and For Sanctions Against
Defendants for Lying in Discovery is DENIED; Plaintiffs’ Affirmative Motion in Limine is
DENIED IN PART AND GRANTED IN PART as discussed above; Defendants’ Motion in
Limine to Exclude the Testimony of Plaintiffs’ Expert Roger Allen with Regard to the Utah
Trucking Guide is GRANTED; and Defendants’ Motion in Limine to Limit the Testimony of
Retained Experts to Opinions Contained in the Experts’ Reports or Depositions is DENIED.
DATED this 23rd day of July, 2014.
BY THE COURT:

____________________________________
Dale A. Kimball,
United States District Judge

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