Philips v. Dull et al

Filing 102

ORDER denying 74 Motion in Limine; granting 77 Motion in Limine; granting 78 Motion in Limine; denying without prejudice 79 Motion in Limine; granting in part and denying in part 80 Motion in Limine. Signed by Magistrate Judge Paul M. Warner on 6/12/2017. (srs)

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

DERSTEA PHILLIPS,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:13-cv-384-PMW

TIM DULL and NATION’S TOWING,
INC.,
Defendants.

Chief Magistrate Judge Paul M. Warner

On June 25, 2013, all parties consented to having Chief United States Magistrate Judge
Paul M. Warner conduct all proceedings in the case, including entry of final judgment, with
direct appeal to the United States Court of Appeals for the Tenth Circuit. 1 See 28 U.S.C.
§ 636(c); Fed. R. Civ. P. 73. Before the court are the following motions in limine: (1) Derstea
Phillips’s (“Plaintiff”) Motion to Exclude Plaintiff’s Criminal Record; 2 (2) Tim Dull’s and
Nation’s Towing, Inc.’s (collectively, “Defendants”) Motion Re: Evidence of Plaintiff’s
Conviction for Credit Card Theft and Forgery; 3 (3) Defendants’ Motion to Preclude Plaintiff
from Seeking Damages for Lost Employment or Lost Vocational Capacity; 4 (4) Defendants’

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Dkt. No. 13.

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Dkt. No. 74.

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Dkt. No. 77.

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Dkt. No. 78.

Motion to Preclude Plaintiff from Seeking Punitive Damages; 5 and (5) Defendants’ Motion to
Preclude Statements and Argument as to “The Golden Rule” Together with Similar “Reptile” and
“Reptilian” Arguments. 6 The court has carefully reviewed the written motions and memoranda
submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court has concluded that oral argument is not
necessary and will determine the motions on the basis of the written memoranda. See DUCivR
7-1(f).
A. Plaintiff’s Criminal History
The parties each filed motions related to the admissibility of Plaintiff’s criminal history.
Plaintiff seeks to exclude from trial evidence of her convictions for breaking and entering and for
forgery and theft. While Defendants seek an order allowing the admission of evidence of
Plaintiff’s conviction for theft of a credit card and forgery, they do not seek admission of
Plaintiff’s convictions for breaking and entering as they occurred more than ten years ago and
would be precluded under Rule 609(b). Fed. R. Evid. 609(b) (“This subdivision (b) applies if
more than 10 years have passed since the witness’s conviction or release from confinement for it,
whichever is later.”).
Having reviewed the relevant law and considered the arguments set forth by the parties,
and being fully advised, the court now rules as follows. Evidence of Plaintiff’s conviction for
theft of a credit card and forgery is admissible as it occurred on August 27, 2007, less than 10
years ago. Pursuant to Rule 609(a)(2), evidence of a criminal conviction “must be admitted if
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Dkt. No. 79.

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Dkt. No. 80.
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the court can readily determine that establishing the elements of the crime required proving—or
the witness’s admitting—a dishonest act or false statement.” Fed. R. Evid. 609(a)(2). Because
forgery is a crime of dishonesty and the theft of the credit card was in connection to Plaintiff’s
forgery conviction, evidence of both may be introduced at trial. The court does not find that the
probative value of Plaintiff’s conviction is substantially outweighed by a danger of unfair
prejudice. See Fed. R. Evid. 403. Rather, crimes containing an element of deceit, untruthfulness,
or falsification like forgery, tend to show a party’s likelihood of testifying untruthfully. See
United States v. Mejia-Alarcon, 995 F.2d 982, 988-89 (10th Cir. 1993). Of course, Plaintiff may
provide evidence that she has turned her life around and has no arrests or convictions since the
2007 conviction.
Accordingly, Plaintiff’s Motion in Limine to Exclude Plaintiff’s Criminal Record is
DENIED and Defendants’ Motion Re: Evidence of Plaintiff’s Conviction for Credit Card Theft
and Forgery is GRANTED. Extrinsic evidence of Plaintiff’s 2007 conviction is excluded.
However, the court may allow extrinsic evidence if Plaintiff denies the existence of her
conviction and the evidence is properly before the court.
B. Evidence of Damages for Lost Employment or Vocational Capacity
Defendants seek an order excluding any evidence or argument that Plaintiff should be
awarded damages based on the loss of vocational capacity because Plaintiff failed to identify an
expert witness or supplement her initial disclosure to provide damage computations regarding
future income potential. In response, Plaintiff indicates that she was not working at the time of
the accident and, as a result, she will not offer any evidence or testimony quantifying claims for
wage loss, loss of earning capacity, or loss of vocational capacity. Plaintiff, however, opposes

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Defendants’ motion to the extent that it seeks to exclude testimony regarding her physical
condition, capabilities, and limitations. Plaintiff asserts that she should be permitted to present
evidence of how the injuries she suffered in the accident have impacted, and will continue to
impact, her life.
Because Plaintiff does not oppose Defendants’ motion with respect to claims for wage
loss, earning capacity, or vocational capacity, this court GRANTS Defendants’ motion. This
ruling does not prohibit Plaintiff from presenting evidence regarding the full extent of her
injuries and their impact on her life.
C. Punitive Damages
Defendants move the court to exclude evidence suggesting or implying that Plaintiff
should be awarded punitive damages. Utah law provides that
punitive damages may be awarded only if compensatory or general
damages are awarded and it is established by clear and convincing evidence
that the acts or omissions of the tortfeasor are the result of willful and
malicious or intentionally fraudulent conduct, or conduct that manifests a
knowing and reckless indifference toward, and a disregard of, the rights of
others.
Utah Code Ann. § 78B-8-201(1)(a). Defendants argue that there is no allegation that they acted
with reckless indifference and that Plaintiff has only alleged a claim of simple negligence. In
response, Plaintiff acknowledges that the evidence to date does not support a claim for punitive
damages. However, Plaintiff contends that she should not be precluded from seeking punitive
damages if the evidence elicited at trial demonstrates that Defendants’ actions were willful,
malicious, and/or evince a knowing and reckless indifference toward and disregard of Plaintiff’s
rights.

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The court concludes that Defendants’ motion is premature. Plaintiff has indicated that
she will not seek punitive damages unless evidence at trial substantiates that claim. The court
will reserve on this issue pending the evidence presented at trial. Accordingly, Defendants’
motion is DENIED WITHOUT PREJUDICE.
D. The Golden Rule and/or Reptilian Arguments
Defendants seek an order prohibiting Plaintiff from making any arguments regarding the
golden rule or “reptile brain” arguments. Defendants argue that golden rule arguments are
improper because they are designed to encourage the jury to depart from their role of impartiality
and step into the shoes of a litigant. Defendants further contend that arguments based on the
“reptilian brain” (derived from a trial advocacy book by David Bell and Don Kennan entitled
Reptile: the 2009 Manual of the Plaintiff’s Revolution) are simply veiled golden rule arguments
because they seek to encourage jurors to decide the case on potential harms and losses that could
have occurred within the community rather than on the evidence presented.
Plaintiff asserts that she has no intention of making any golden rule arguments like those
discussed in Shultz v. Rice. See 809 F.2d 642, 651-52 (10th Cir. 1986) (holding that the use of
golden rule arguments is improper only “with respect to damages” but not “improper when urged
on the issue of ultimate liability”). However, Plaintiff argues that a prohibition against evidence
or argument that appeals to the “reptilian brain” regarding safety rules impermissibly restricts
counsel’s trial strategy and the standard of care with respect to negligence.
The court will permit Plaintiff to advance golden rule arguments on the issue of ultimate
liability but it will exclude golden rule arguments on the issue of damages. With regard to
arguments based on the “reptilian brain,” the court finds that Defendants have not shown with
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sufficient particularity what Plaintiff’s counsel should be precluded from saying at trial. The
court will instruct the jury to base its decision only on the proof admitted at trial and the law
given to the jury by the court but not on the statements or arguments of counsel. Appropriate
objections may be made at the time of trial and will be ruled upon accordingly. The court will
not tolerate any attempt by either party to incite the jury to render a verdict based on any other
consideration, including the passions and prejudice of the jurors.
Based on the foregoing, Defendants’ motion with respect to golden rule arguments is
GRANTED and Defendants’ motion with respect to arguments based on the “reptilian brain” is
DENIED WITHOUT PREJUDICE.
CONCLUSION
In conclusion, IT IS HEREBY ORDERED that:
A. Plaintiff’s Motion in Limine to Exclude Plaintiff’s Criminal Record 7 is DENIED and
Defendants’ Motion Re: Evidence of Plaintiff’s Conviction for Credit Card Theft and Forgery 8 is
GRANTED as set forth above;
B. Defendants’ Motion to Preclude Plaintiff from Seeking Damages for Lost
Employment or Lost Vocational Capacity 9 is GRANTED as set forth above;
C. Defendants’ Motion to Preclude Plaintiff from Seeking Punitive Damages is
DENIED WITHOUT PREJUDICE 10 as set forth above; and
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Dkt. No. 74.

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Dkt. No. 77.

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Dkt. No. 78.

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Dkt. No. 79.
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D. Defendants’ Motion to Preclude Statements and Argument as to “The Golden Rule”
Together with Similar “Reptile” and “Reptilian” Arguments 11 is GRANTED with respect to
golden rule arguments and DENIED WITHOUT PREJUDICE with respect to arguments
based on the “reptilian brain.”
IT IS SO ORDERED.
DATED this 12th day of June, 2017.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

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Dkt. No. 80.
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