Somerlott v. McNeilus Truck and Manufacturing, Inc.
Filing
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ORDER ON MOTIONS IN LIMINE re: 105 107 signed by Judge Marsha J. Pechman. See order for details. (PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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BENJAMIN SOMERLOTT,
Plaintiff,
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CASE NO. C16-789-MJP
ORDER ON MOTIONS IN LIMINE
v.
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MCNEILUS TRUCK AND
MANUFACTURING INC,
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Defendant.
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THIS MATTER comes before the Court on Plaintiff’s Motions in Limine (Dkt. No. 105)
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and Defendant’s Motions in Limine (Dkt. No. 107.) Having reviewed the Motions, the
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Responses (Dkt. Nos. 115, 117), and all related papers, the Court rules as follows:
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I.
Plaintiff’s Motions in Limine
Motion in Limine No. 1 seeks to prohibit any mention of “[a]ny proximate cause
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opinions by any of the Defense expert witnesses that were not properly disclosed in Rule 26
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disclosures.” Plaintiff does not identify with sufficient specificity those opinions it seeks to
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exclude. Plaintiff’s Motion in Limine No. 1 is DENIED.
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ORDER ON MOTIONS IN LIMINE - 1
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Motion in Limine No. 2 seeks to prohibit “[a]ny mention of the Plaintiff’s L&I claim
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regarding his right wrist including any written document that describes or references the claim.”
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Plaintiff’s Motion in Limine No. 2 is GRANTED, with the exception that medical records
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generated in connection with Plaintiff’s L&I claim be redacted of all references to the L&I claim.
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Motion in Limine No. 3 seeks to prohibit “[a]ny mention of the L&I [medical
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examinations] regarding his right wrist,” which he contends are cumulative and duplicative. The
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Court finds that the medical examinations reveal Plaintiff’s condition at various times during his
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recovery and are relevant to determining whether his injury has prevented him from working.
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Plaintiff’s Motion in Limine No. 3 is DENIED, with the exception that medical records
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generated in connection with Plaintiff’s L&I claim be redacted of all references to the L&I claim.
Motion in Limine No. 4 seeks to prohibit “[a]ny mention of the L&I claim regarding his
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right shoulder.” Plaintiff’s Motion in Limine No. 4 is GRANTED, with the exception that
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medical records generated in connection with Plaintiff’s L&I claim be redacted of all references
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to the L&I claim.
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Motion in Limine No. 5 seeks to prohibit “[a]ny mention of the Defendant’s affirmative
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defenses of negligence of third parties, intervening superseding acts of third parties, comparative
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negligence and assumption of the risk, improper use and maintenance and altered condition and
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failure to mitigate.” The Court finds that the motion is essentially a request for disposition of an
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affirmative defense. Plaintiff’s Motion in Limine No. 5 is DENIED.
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Motion in Limine No. 6 seeks to prohibit “[a]ny mention of Defendant’s affirmative
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defense of negligence of third parties.” The Court finds that the motion is essentially a request
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for disposition of an affirmative defense. Plaintiff’s Motion in Limine No. 6 is DENIED.
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ORDER ON MOTIONS IN LIMINE - 2
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Motion in Limine No. 7 seeks to prohibit “[a]ny mention of Defendant’s affirmative
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defense of assumption of the risk.” The Court finds that the motion is essentially a request for
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disposition of an affirmative defense. Plaintiff’s Motion in Limine No. 7 is DENIED.
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Motion in Limine No. 8 seeks to prohibit “[a]ny mention of factual matters that
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Defendant’s 30(b)(6) witness, Mr. Forgas, failed to answer or didn’t know the answer to.”
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Plaintiff does not identify with sufficient specificity those factual matters it seeks to exclude.
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Plaintiff’s Motion in Limine No. 8 is DENIED.
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Motion in Limine No. 9 seeks to prohibit “[a]ny mention of Defendant’s affirmative
defense of spoliation.” The Court finds that spoliation does not apply on the facts of this case.
Plaintiff’s Motion in Limine No. 9 is GRANTED.
Motion in Limine No. 10 seeks to prohibit “[a]ny mention of any other information
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regarding the IME conducted by Dr. Sun.” Plaintiff contends that Dr. Sun’s opinions were not
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timely disclosed. The Court disagrees. Plaintiff’s Motion in Limine No. 10 is DENIED.
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Motion in Limine No. 11 seeks to prohibit “[a]ny mention of Defendant’s affirmative
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defense of offset.” Defendant does not intend to assert this affirmative defense and does not
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oppose the motion. Plaintiff’s Motion in Limine No. 11 is GRANTED.
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Motion in Limine No. 12 seeks to prohibit “[a]ny mention of the Plaintiff’s back injury,”
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which apparently occurred years ago and has been asymptomatic at all times relevant to this
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action. Plaintiff’s Motion in Limine No. 12 is GRANTED.
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Motion in Limine No. 13 seeks to prohibit “[a]ny mention of the lack of similar injuries
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based upon Defendant’s records.” Plaintiff contends that because Defendant has no “in-house
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injury database,” its claims regarding similar injuries are unreliable. The Court disagrees.
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Plaintiff’s Motion in Limine No. 13 is DENIED.
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ORDER ON MOTIONS IN LIMINE - 3
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Motion in Limine No. 14 seeks to prohibit “[a]ny reference to unverified complaints.”
Defendant does not oppose the motion. Plaintiff’s Motion in Limine No. 14 is GRANTED.
II.
Defendant’s Motions in Limine
Motion in Limine No. 1 seeks to preclude “lay opinion testimony from Plaintiff or third
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parties regarding design defect or the reasonableness and effectiveness of alternate designs.”
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The Court finds that Plaintiff’s observations are not subject to the requirements of expert
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testimony under Fed. R. Evid. 702. Defendant’s Motion in Limine No. 1 is DENIED.
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Motion in Limine No. 2 seeks to “exclude cumulative damage witnesses.” Defendant
does not identify which witnesses it seeks to preclude or how it might be prejudiced by their
testimony. Defendant’s Motion in Limine No. 2 is DENIED.
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Motion in Limine No. 3 seeks to preclude “Plaintiff from proceeding under the
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consumer expectation test.” The Court finds that the motion is essentially a request for
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disposition of a theory of the case. Defendant’s Motion in Limine No. 3 is DENIED.
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Motion in Limine No. 4 seeks to preclude “any argument for future lost wages or
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earning capacity not based on Plaintiff’s initial disclosures,” namely the expert reports of Mr.
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Cary or Mr. Bennett. Defendant does not identify with sufficient specificity those arguments or
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opinions it seeks to exclude. Defendant’s Motion in Limine No. 4 is DENIED.
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Motion in Limine No. 5 seeks to exclude “any reptile theory, Golden Rule, or
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conscience of the community arguments.” Plaintiff agrees that counsel will not “ask the jury to
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put itself in the shoes of the Plaintiff,” and the Court will instruct the jury on the law, including
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the standard for liability and the appropriate measure of damages. Defendant’s Motion in
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Limine No. 5 is DENIED.
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ORDER ON MOTIONS IN LIMINE - 4
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Motion in Limine No. 6 seeks to exclude “reference to the number and location of
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defense counsel and the size of their firms.” Plaintiff does not oppose the motion. Defendant’s
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Motion in Limine No. 6 is GRANTED.
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Motion in Limine No. 7 seeks to preclude “Plaintiff from commenting on MTM’s
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experts or corporate witness’ personal financial information beyond what compensation the
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witnesses have received for their time addressing the issues involved in this case.” The Court
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finds that while compensation received by expert and corporate witnesses is relevant to issues of
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motive and bias, the specific details of such compensation is not. Defendant’s Motion in Limine
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No. 7 is DENIED, with the exception that Plaintiff may not comment on the specific personal
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financial information of Defendant’s corporate witnesses.
Motion in Limine No. 8 seek to preclude “Plaintiff from offering argument or evidence
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regarding MTM’s financial condition or suggesting that Plaintiff is entitled to punitive
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damages.” Punitive damages are not at issue in this case. Defendant’s Motion in Limine No. 8
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is GRANTED.
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Motion in Limine No. 9 seeks to preclude “any reference to Mr. Bennett or his opinions,
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any mention of the circumstances regarding his attempted designation, or any attempt to explain
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or address before a jury why MTM may present an economist but Plaintiff cannot.” Plaintiff
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does not oppose the motion. Defendant’s Motion in Limine No. 9 is GRANTED.
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Motion in Limine No. 10 seeks to preclude “introduction of vocational rehabilitation
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opinions regarding household services and domestic assistance not based upon statistically valid
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basis.” Specifically, Defendant seeks to preclude Plaintiff’s vocational rehabilitation expert,
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John Cary, from opining that Plaintiff will need professional home services and future household
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and yard maintenance, and from estimating the costs of such services based upon “an
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ORDER ON MOTIONS IN LIMINE - 5
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unsubstantiated website called HomeAdvisor.com,” which “prices home services based on ad
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hoc input from people who get paid to perform the services.” The Court finds that Mr. Cary’s
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use of HomeAdvisor.com is not a reliable methodology. Defendant’s Motion in Limine No. 10
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is GRANTED.
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Motion in Limine No. 11 seeks to preclude “introduction of opinions, evidence, or
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testimony regarding the Ontario Guidelines.” The Court finds that the Ontario Guidelines
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evidence an alternative design for side-loading commercial refuse trucks. Defendant’s Motion in
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Limine No. 11 is DENIED.
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The clerk is ordered to provide copies of this order to all counsel.
Dated January 8, 2018.
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A
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Marsha J. Pechman
United States District Judge
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ORDER ON MOTIONS IN LIMINE - 6
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