Ehrlich et al v. Crown Enterprises, Inc. et al

Filing 188

ORDER Granting in Part and Denying in Part 146 Defendants' Motion in Limine. Signed by District Judge Gina M. Groh on 4/10/2014. (cmd)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

STEVE ALLEN EHRLICH and
JACQUELINE EHRLICH,
Plaintiffs,
v.

CIVIL ACTION NO. 3:13-CV-23 (Lead Case)
(JUDGE GROH)

CENTRAL TRANSPORT, LLC,
Defendant,
and
PETER GARCIA, JR.,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-CV-42
(JUDGE GROH)

RONALD J. COFFEE and
CENTRAL TRANSPORT, LLC,
Defendants,
and
WILLIAM S. ALLEN,
Plaintiff,
v.

CIVIL ACTION NO. 3:13-CV-43
(JUDGE GROH)

RONALD J. COFFEE and
CENTRAL TRANSPORT, LLC,
Defendants.

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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTIONS IN LIMINE
On February 18, 2014, Defendants filed their motions in limine [Doc. 146]. On
February 25, 2014, Plaintiffs Steve and Jacqueline Ehrlich filed their response. Also on
February 25, 2014, Plaintiff Peter Garcia, Jr. and Plaintiff William S. Allen filed their
responses. Defendants did not file a reply. Therefore, the motions in limine are ripe for
this Court’s review.
1.

Defendants’ Motion in Limine to Exclude Per Diam Arguments1

Defendants seek to exclude any argument which “seeks to address a plaintiff’s
asserted pain and suffering damages in units of time or to assign a monetary value to
such damages.” Defs.’ Mot., p. 2. However, Plaintiffs object to Defendants’ motion.
Specifically, Plaintiffs Steve and Jacqueline Ehrlich contend that the Court has
discretion to permit Plaintiffs to suggest a monetary figure for Plaintiffs’ pain and
suffering claim, and the Court, to limit any prejudicial effect, could instruct the jury that
the monetary figure is not evidence but merely represents Plaintiffs’ arguments.
The Fourth Circuit Court of Appeals provided that district courts have “discretion
to impose reasonable limitations on counsel’s arguments regarding damages for pain
and suffering because they are difficult to evaluate in monetary terms.” Murphy v. Nat’l
R.R. Passenger Corp., 547 F.2d 816, 818 (4th Cir. 1977). If the district court concludes,
in its discretion, “that the summation would not have an unduly prejudicial effect, it may
permit counsel to suggest a monetary figure for the award or to illustrate damages for a
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The Court notes that Defendants have combined several motions into their first
motion in limine. However, to avoid confusion, this Court will address each sub-part of
the first motion in limine as a separately numbered motion.
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unit of time multiplied by the expected duration of suffering.” Id.
In this case, the “per diem” argument is inadmissible. First, the argument is not
relevant. Federal Rule of Evidence 401 provides that evidence 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.” Determining damages for
pain and suffering is “peculiarly a jury question” and there is “no known method of
arriving at any money value.” Crum v. Ward, 122 S.E.2d 18, 25 (W. Va. 1961).
Second, even assuming the per diem argument has some relevance pursuant to
Federal Rule of Evidence 401, it should nonetheless be excluded under Federal Rule of
Evidence 403 because its “probative value is substantially outweighed by a danger of . .
. unfair prejudice.” Indeed, the West Virginia Supreme Court of Appeals has held that
per diem arguments constitute prejudicial error. See Crum, 122 S.E.2d at 25.
Accordingly, Defendant’s first motion in limine to exclude per diem arguments is
GRANTED.
2.

Defendants’ Motion in Limine to Exclude “Golden Rule” Arguments

Defendants move this court to prohibit Plaintiffs from referencing or using the
golden rule argument that asks jurors to place themselves into the Plaintiffs’ position in
determining the amount of damages that they would find sufficient. Defendants
essentially argue that such an argument would be unduly prejudicial. Plaintiffs do not
object to this motion.
Courts have prohibited the “golden rule” argument that asks jurors to determine
damages as if they themselves had been the victims. See Arnold v. E. Air Lines, Inc.,

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681 F.2d 186, 196-200 (4th Cir. 1982) (stating “[t]he Golden Rule appeal in opening
statement and the blatant, direct appeal for sympathy in closing argument were plainly
improper . . . .” and such argument has “no legal relevance”); Leathers v. Gen. Motors
Corp., 546 F.2d 1083, 1086 (4th Cir. 1976) (condemning the golden rule argument used
by plaintiffs’ counsel); White, 2003 WL 23353600 *13-14 (granting defendant’s motion in
limine to the extent that the plaintiffs must “avoid ‘golden rule’ arguments asking the jury
to put itself in place of the plaintiffs”); State of W. Va. v. Clements, 334 S.E.2d 600, 606
(W. Va. 1985) (stating that a golden rule type of argument is impermissible if it asks the
jury to “put yourself in the place of . . . .”) (citing Keathley v. Chesapeake & Ohio Ry.
Co., 102 S.E. 244, 249 (W. Va. 1920) (holding golden rule argument improper)).
Accordingly, Defendants’ second motion in limine to exclude “Golden Rule”
arguments is GRANTED.
3.

Defendants’ Motion in Limine to Exclude Argument Referring to
Plaintiffs’ Ad Damnum Clause or Jurisdictional Amount in
Controversy Requirement

Defendants argue that Plaintiffs should be prohibited from referring to Plaintiffs’
ad damnum clause or the jurisdictional amount in controversy requirement because
“[s]uch references merely invite a jury to improperly base a damage award upon matters
which are not in evidence or which are inadmissible in evidence.” Defs.’ Mot., p. 6.
Plaintiffs Steve and Jacqueline Ehrlich do not object to this motion. Plaintiffs Garcia and
Allen state that their complaints do not contain monetary amounts, so this motion is
moot.
In this case, the introduction of the ad damnum clause or jurisdictional amount in

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controversy is inadmissible. First, the argument is not relevant. Federal Rule of
Evidence 401 provides that evidence 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.” Evidence of the ad damnum clause or
jurisdictional amount in controversy requirement is not relevant to the jury’s
determination of damages for pain and suffering. Even assuming the ad damnum
clause or jurisdictional amount has some relevance pursuant to Federal Rule of
Evidence 401, it should nonetheless be excluded under Federal Rule of Evidence 403
because its “probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Indeed, the West Virginia Supreme Court of Appeals has held that “the
better practice would be to withhold any monetary figure from the jury’s consideration
which might be suggestive of amounts of damage not proven in evidence.” Jordan v.
Bero, 210 S.E.2d 618, 629 (W. Va. 1974) (stating it did not approve of the exposition of
ad damnum clauses to the jury). Accordingly, Defendants’ third motion in limine to
exclude reference to the ad damnum clause or jurisdictional amount in controversy
requirement is GRANTED.
4.

Defendants’ Motion to Exclude Arguments Relating to Matters Not in
Evidence

Defendants request that the Court exclude any arguments relating to pain and
suffering damages that are not supported by the evidence in the record. Plaintiffs do
not object to this proposition that arguments must be supported by evidence in the
record.
The Fourth Circuit Court of Appeals has stated that for an argument to be proper,
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it must based on “record evidence or any reasonable inference that could be drawn
from it.” United States v. Wilson, 135 F.3d 291, 298 (4th Cir. 1998). Indeed, “argument
is limited to the facts in evidence.” Id. (quoting United States ex rel. Shaw v.
DeRobertis, 755 F.3d 1279, 1281 (7th Cir. 1985)). Therefore, Defendants’ fourth motion
in limine is GRANTED in that counsels’ arguments must be based on matters in
evidence or reasonable inferences that could be drawn from the evidence. However,
Defendants’ motion is not construed to prevent pain and suffering evidence that is
relevant and otherwise admissible.
5.

Defendants’ Motion to Preclude Plaintiffs from Arguing in Rebuttal
Beyond the Scope of the Issues Raised in Defendants’ Closing
Arguments, Specifically any Statements to Suggest to the Jury a
Figure or Verdict Range Regarding the Value of Plaintiffs’ Alleged
Claims

Defendants move to preclude Plaintiffs from introducing any new issues in their
rebuttal because Defendants would not have the ability to refute them, specifically in
regards to any statements suggesting a figure or verdict range regarding the value of
Plaintiffs’ alleged claims and injuries. Plaintiffs oppose the motion in as much as it
would prohibit them from repeating the arguments they made in their initial closing
argument.
Although Defendants cite no rule or case law to support their position, the Court
finds that Plaintiffs are precluded from introducing new arguments in their rebuttal to
Defendants’ closing arguments. Accordingly, Defendants’ fifth motion in limine to
preclude introduction of new arguments in Plaintiffs’ rebuttal closing argument is
GRANTED. However, Plaintiffs are permitted to revisit and mention arguments in their

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rebuttal that were addressed in their initial closing argument. See McGuire v. Tarmac
Envtl. Co., Inc., 293 F.3d 437, 442 (8th Cir. 2002) (upholding district court’s ruling
overruling an objection to a rebuttal closing argument where the subject matter of
punitive damages was briefly addressed in the plaintiff’s initial closing and specific
amounts mentioned on rebuttal were also addressed in the initial argument).
6.

Defendants’ Motion to Preclude Plaintiffs from Introducing Evidence
or Suggesting that Defendants are Insured Against Liability

Defendants move this Court to preclude Plaintiffs, their counsel, or their
witnesses from introducing evidence or making any mention that Defendants are
insured against liability. Plaintiffs do not object to Defendants’ motion.
Federal Rule of Evidence 411 provides that evidence of liability insurance is “not
admissible to prove whether the person acted negligently or otherwise wrongfully.”
However, evidence of liability insurance is admissible for other purposes such as
“proving a witness’s bias or prejudice or proving agency, ownership, or control.” Fed. R.
Evid. 411. Plaintiffs have not presented any arguments that they intend to introduce
evidence of liability insurance for an admissible purpose. Accordingly, Defendants’ sixth
motion in limine is GRANTED.
7.

Defendants’ Motion to Preclude Plaintiffs from Introducing Evidence
or Referencing Any Offers of Compromise or Settlement or Conduct
or Statements Made During Compromise Negotiations

Defendants move to preclude Plaintiffs, their counsel, and their witnesses from
introducing evidence or making any mention regarding offers of compromise or
settlement or any conduct or statements made during the compromise negotiations.
Plaintiffs do not object to this motion.
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Federal Rule of Evidence 408 provides that evidence regarding compromise
offers and negotiations as well as conduct or statements made during compromise
negotiations about the claim are inadmissible to “prove or disprove the validity of a
disputed claim or to impeach by a prior inconsistent statement or a contradiction.”
However, the Court may admit such evidence for another purpose such as “proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.” Fed. R. Evid. 408(b). Plaintiffs have
not demonstrated that they intend to introduce this evidence for an admissible purpose.
Accordingly, Defendants’ seventh motion in limine is GRANTED.
8.

Defendants’ Motion to Preclude Plaintiffs from Introducing Evidence
or Otherwise Discussing the Timing of Defendants’ Admission of
Negligence

Defendants argue that Plaintiffs, their counsel, and their witnesses should be
precluded from introducing evidence or otherwise discussing, arguing, or making
reference to the timing of Defendants’ admission of negligence pursuant to Federal Rule
of Evidence 403. Plaintiffs Garcia and Allen do not object to Defendants merely seeking
to preclude the mention of the timing of their admission of liability. Plaintiffs Steve and
Jacqueline Ehrlich object to Defendants’ motion because they argue there is no
prejudice in revealing to the jury that Defendants stipulated to liability at some point prior
to the trial date.
Evidence 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. Defendants’ admission to liability is clearly relevant in

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this case. Although the timing may not be as relevant, it is still relevant that Defendants
admitted to liability prior to trial because this fact has resulted in the trial being
conducted mainly to determine the amount of Plaintiffs’ damages. However, even
relevant evidence may be excluded 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. Although Defendants argue that the evidence is
irrelevant, unfairly prejudicial, would engender unwanted sympathy, and confuse the
issues before the jury, Defendants cite no case law and provide no examples of how the
probative value of the evidence would be substantially outweighed by the considerations
in Rule 403. Therefore, the Court does not find that the relevant evidence is
substantially outweighed by the danger of unfair prejudice, confusing the issues, or
misleading the jury. Accordingly, Defendants’ eighth motion in limine is DENIED.
9.

Defendants’ Motion to Preclude Plaintiffs from Eliciting Certain
Testimony from Defendants’ Medical Experts

Defendants argue that Plaintiffs should be precluded from eliciting testimony from
the Defendants’ medical expert as to the following categories of information:
a.

the number of times Defendants’ medical experts examined Plaintiffs;

b.

the Defendants’ medical experts’ intent to treat or examine Plaintiffs in the
future;

c.

the Defendants’ medical experts prescription of or intent to prescribe in the
future any medications;

d.

the Defendants’ medical experts diagnostic tests or studies on Plaintiffs or
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their intent to conduct such tests or studies on Plaintiffs; and
e.

the introduction of any improper attack on the Defendants’ medical
experts’ reputation or character, unless first proffered in accordance with
Federal Rule of Evidence 405.

Defendants argue that the limited scope of cross examination is proper because
Defendants’ medical experts conducted their examinations of Plaintiffs in accordance
with Federal Rule of Civil Procedure 35 and any cross examination on the issues
identified above are “irrelevant, are designed to inflame the jury, and are outside the
scope of the examination contemplated by Rule 35.” Defs.’ Mot. p. 11. Defendants
have not cited any case law in support of their argument. On the other hand, Plaintiffs
argue that the aforementioned topics are proper subjects for cross examination to
determine the facts Defendants’ medical experts used in formulating their opinions, to
explore bias, and to determine the sufficiency of Defendants’ medical experts’
examinations and opinions.
Upon reviewing Defendants’ motion, the Court finds that the aforementioned
subject areas are proper subjects for cross examination. First, Federal Rule of
Evidence 607 permits any party to attack a witness’s credibility. Second, pursuant to
Federal Rule of Evidence 611, the scope of cross examination “should not go beyond
the subject matter of the direct examination and matters affecting the witnesses’s
credibility.” Therefore, Plaintiffs are permitted to cross examine Defendants’ medical
experts to any matters that Defendants discuss in direct examination, including the
basis of the experts’ reports and opinions, and matters affecting Defendants’ medical
experts’ credibility. Plaintiffs may also cross examine Defendants’ medical experts
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regarding any questions of bias or prejudice. See Powell v. United States, 149 F.R.D.
122, 124 (E.D. Va. 1993) (permitting plaintiff to cross examine the defendant’s medical
expert that conducted the Rule 35 examination “on any questions of bias or prejudice”).
The Court will not prematurely limit Plaintiffs’ scope of cross examination without having
the benefit of hearing Defendants’ direct examination of their medical experts.
Accordingly, Defendants’ ninth motion in limine is DENIED.
10.

Defendants’ Motion to Preclude Plaintiffs from Offering Evidence or
Testimony as to Future Medical Expenses or Treatment

Defendants move this Court to preclude Plaintiffs from offering evidence or
testimony as to future medical expenses or treatment. Defendants argue that under
West Virginia law, “[t]he permanency or future effect of any injury must be proved with
reasonable certainty in order to permit an injured party to recover future damages.”
Defs.’ Mot., p. 12. Defendants argue that Plaintiffs have failed to identify or disclose any
expert physician or other health care provider who can testify as to the necessity and
cost of any future medical treatment.
Plaintiffs object to Defendants’ motion for a few reasons, including that it is not
appropriate to use a motion in limine as a device to ask the Court to weigh and reject
evidence that may be adduced at trial. Rather, the Court should wait until trial to
determine whether sufficient evidence was presented on the issue of future medical
expenses or treatment.
In this case, evidence regarding Plaintiffs’ future medical expenses or treatment
is relevant as it directly relates to the alleged injuries Plaintiffs suffered as a result of the
collision. West Virginia law provides that “[t]he permanency or future effect of any injury
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must be proven with reasonable certainty in order to permit a jury to award an injured
party future damages.” Syl. Pt. 9, Jordan v. Bero, 210 S.E.2d 618 (1974). Defendants
seek to preclude any evidence or testimony regarding future medical expenses or
treatment because they contend it cannot be proved with reasonable certainty.
However, Defendants’ motion is premature. Plaintiffs have not had the opportunity to
present their witnesses or evidence at trial. Additionally, “where the permanent injury is
proven, reasonable inferences based upon sufficient evidence are all that is necessary
to carry the question to the jury for its consideration.” Liston v. Univ. of W. Va. Bd. of
Trs., 438 S.E.2d 590, 593 (W. Va. 1993) (internal quotation marks and citation omitted).
Therefore, this Court will not preclude evidence simply because Defendants assert that
Plaintiffs will not be able to prove the damages with reasonable certainty at trial.
Indeed, Plaintiffs may present evidence at trial regarding future medical expenses or
treatment in an attempt to prove the permanency or future effect of Plaintiffs’ injuries.
Accordingly, Defendant’s tenth motion in limine is DENIED.
11.

Defendants’ Motion to Preclude Plaintiffs from Introducing Evidence
or Referencing Defendants’ Monetary Assets or Net Worth

Defendants move to preclude Plaintiffs from making any mention of Defendants’
monetary assets and/or net worth in the presence of the jury or from attempting to
introduce into evidence any matters pertaining to the monetary assets and/or net worth
of the Defendants during trial because Plaintiffs are not seeking punitive or exemplary
damages.
Plaintiffs Garcia and Allen do not object to the limited motion in limine to preclude
evidence of or references to Defendants’ monetary assets or net worth. Plaintiffs Steve
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and Jacqueline Ehrlich object to the motion in limine because they argue Defendants’
revenue is relevant as a jury may be hesitant to award damages if it was a small momand-pop business in comparison to a national corporation.
Evidence 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. However, even relevant evidence may be excluded 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.
In this case, evidence of Defendants’ monetary assets or net worth is not
relevant. This is a negligence case, and Plaintiffs are not seeking punitive damages.
Indeed, even assuming evidence of Defendants’ monetary assets or net worth may
have some probative value, it should be excluded because its probative value is
substantially outweighed by the danger of unfair prejudice. Accordingly, Defendants’
eleventh motion in limine is GRANTED. However, Plaintiffs are not precluded from
introducing evidence of the size of Defendants’ operation, how many trucks Defendants
have on the road, and other similar matters.
12.

Defendants’ Motion to Preclude Reference to the Police Report and
its Findings

Defendants argue that the police report and its findings should be excluded
because the police report is hearsay and the findings are irrelevant. Defendants
provide no additional explanation and do not cite case law or Federal Rules of Evidence
to support their motion. Plaintiffs Allen and Garcia object because the police report is
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relevant to the litigation and is excluded from the prohibition of hearsay because it is a
public record.
In this case, neither party has attached the police report that is the subject of this
motion. Therefore, the Court is unable to weigh the relevance of the police report or
determine the applicability of the hearsay rules without examining its contents.
Accordingly, Defendant’s twelfth motion in limine is DENIED without prejudice.
13.

Defendants’ Motion to Preclude Reference to Central Transport
Michigan, LLC

Defendants have moved to preclude reference to Central Transport Michigan,
LLC. Defendants argue that references to Central Transport Michigan, LLC would be
irrelevant because it did not employ or have any control over Mr. Coffee or his vehicle.
Additionally, Defendants argue that, even if the Court believes it has some relevance,
the evidence should be excluded pursuant to Rule 403 because its minimal probative
value would be substantially outweighed by the danger of unfair prejudice. Plaintiffs
Allen and Garcia request that this Court defer ruling on this motion because it is the
subject matter of a motion for summary judgment. Plaintiffs Steve and Jacqueline
Ehrlich do not oppose the motion.
Evidence 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. However, relevant evidence may be excluded 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.
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In this case, the Court granted Defendants’ motion for summary judgment as to
Defendant Central Transport Michigan, LLC on March 24, 2014. Therefore, Central
Transport Michigan, LLC is no longer a party to this action. Additionally, Central
Transport Michigan, LLC had no involvement in the underlying collision or control over
Defendant Coffee or the vehicle he was driving. Therefore, evidence or references
regarding Central Transport Michigan, LLC are not relevant because such evidence or
references would not have a tendency to make a fact more or less probable than it
would be without the evidence. Accordingly, Defendants’ thirteenth motion is
GRANTED.
14.

Defendants’ Motion to Preclude Introduction of Post-Accident
Photographs Depicting Damage to the Involved Vehicles

Defendants’ final motion seeks to preclude the introduction of post-accident
photographs depicting damage to the involved vehicles. Defendants do not attach the
photographs that are the subject of this motion. However, Defendants argue that the
photographs depicting the damage to both vehicles are not relevant, have no probative
value, and are prejudicial. Plaintiffs Allen and Garcia argue that the photographs are
relevant because they demonstrate that the accident was not a mere fender bender, but
rather a serious accident.
Evidence 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. However, relevant evidence may be excluded 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
15

needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
In this case, the photographs depicting the damage to both vehicles were not
attached to Defendants’ motion. However, photographs that fairly and accurately depict
the accident scene are relevant as they have a tendency to make a fact more or less
probable than it would be without the evidence. Mainly, the photographs of the accident
are relevant as they depict the severity of the impact and where the impact occurred.
Additionally, the probative value of the photographs is not substantially outweighed by
the danger of unfair prejudice. Therefore, so long as Plaintiffs are able to lay a proper
foundation showing that the photographs fairly and accurately depict the scene, the
photographs will be admissible. Accordingly, Defendants’ fourteenth motion in limine is
DENIED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record
herein and all pro se parties by certified mail, return receipt requested.
DATED: April 10, 2014

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