McBride v. VF Outdoor, LLC et al

Filing 58

ORDER granting in part and denying in part defendants' 42 motions in limine by Judge Robert S. Lasnik. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL MCBRIDE, as parent and
guardian for L.M., a minor child,
Plaintiff,

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v.
VF OUTDOOR, LLC, d/b/a LUCY, et al.,

Case No. C16-0754RSL
ORDER REGARDING
DEFENDANT’S MOTIONS IN
LIMINE

Defendants.

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This matter comes before the Court on “Defendant VF Outdoor, LLC’s Motions in

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Limine.” Dkt. # 42. Having reviewed the memoranda, declarations, and exhibits

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submitted by the parties and having heard from counsel at the pretrial conference held on

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May 23, 2017, the Court finds as follows:

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The parties agree, and it is therefore ORDERED, that evidence and argument
regarding the following topics shall be excluded from trial:

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1. Other incidents involving defendant or a lucy store;

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2. Repair of the door hinge on which L.M. was injured, including any delay or

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failure to repair the hinge;

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3. Appeals to the jury to punish or send a message to defendant;

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4. Other lawsuits or regulatory actions involving defendant or an affiliated entity;

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ORDER REGARDING DEFENDANT’S
MOTIONS IN LIMINE - 1

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5. Litigation-induced anxiety or damages;

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6. Settlement offers or negotiations;

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7. Any party’s insurance;

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8. Appeals to the jury to place themselves in plaintiff’s position;

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9. Motions in limine; and

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10. Defendant’s decision not to call any live witnesses at trial.

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The contested motions in limine are discussed below.

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A. Evidence or Reference to Fault, Negligence, or Breach of Duty

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The fact that defendant’s negligence is not in dispute does not mean that it is not

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relevant or that it should be hidden from the jury. The jury will be told by the Court in the

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statement of the case and in the Court’s instructions about L.M.’s injury, that defendant

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admits it was negligent (i.e., that it breached a duty owed to L.M.), and that defendant

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acknowledges that it is liable for the damages caused by that breach. The sole issue before

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the jury is what are those damages, and the Court expects the focus of the parties’

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presentations to be on that issue. This motion in limine is DENIED without prejudice to it

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being raised again if plaintiff’s questioning or proffered evidence wastes time, causes

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confusion, or is needlessly cumulative.

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B. Lay Witness Testimony Regarding Need for Future Medical Care

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Lay witnesses will not be permitted to testify that L.M. will or is likely to undergo

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a second scar revision surgery or other unspecified medical treatment in the future.

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Whether a particular medical treatment or therapy is appropriate and within the standard

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of care for L.M.’s current condition is beyond the knowledge of a lay witness. This

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motion in limine is therefore GRANTED. Whether defendant’s expert has provided

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admissible evidence that could support a finding that a second scar revision surgery will

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ORDER REGARDING DEFENDANT’S
MOTIONS IN LIMINE - 2

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be necessary is not properly before the Court.

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C. Photographs of L.M.’s Scar

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Defendant seeks to exclude all but one photograph of L.M.’s scar from evidence

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on the ground that they are duplicative and cumulative. While there is some duplication,

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the series of photos show how the scar looked before revision surgery, how it looks when

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wet, how it looks in different poses, and its size. As long as plaintiff’s counsel avoids

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wasting time by displaying these photos briskly, the minimal duplication does not

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substantially outweigh their probative value. This motion is DENIED.

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D. Testimony of Christina Zellerhoff

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Ms. Zellerhoff is a friend of L.M.’s mother and the mother of L.M.’s friend. She is

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familiar with L.M. and has seen her in public and at the swimming pool. She has personal

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knowledge of how L.M. has responded to her scar and how others react to it. This motion

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is limine is DENIED.

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For all of the foregoing reasons, defendant’s motions in limine are GRANTED in
part and DENIED in part.

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Dated this 25th day of May, 2017.
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A

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Robert S. Lasnik
United States District Judge

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ORDER REGARDING DEFENDANT’S
MOTIONS IN LIMINE - 3