Below, Joshua et al v. Yokohama Tire Corporation et al

Filing 251

ORDER after final pretrial conference. Signed by District Judge William M. Conley on 02/28/2017. (mfh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSHUA J. BELOW, DEBRA BELOW,
CHARLIE ELIZABETH BELOW, PATRICK
JOSHUA BELOW, STAR BLUE BELOW-KOPF
and DEAN HEALTH PLAN, INC.,
Plaintiffs,

ORDER
15-cv-529-wmc

v.
YOKOHAMA
TIRE
CORPORATION,
YOKOHAMA
CORPORATION
OF
AMERICA, YOKOHAMA CORPORATION
OF NORTH AMERICA, YOKOHAMA TIRE
MANUFACTURING VIRGINIA, LLC, and
YOKOHAMA RUBBER COMPANY, LTD.,
Defendants.

This case is set for a jury trial commencing March 6, 2017. The court held a final
pretrial conference on February 28, 2017, at which the parties appeared by counsel.
Consistent with the rulings during today’s conference, the court issues the following
order with respect to the parties’ motions and the schedule going forward.
ORDER
IT IS ORDERED that:
1)

Defendants may file by noon tomorrow a 3–5 page brief presenting case law
and any new arguments in support of their motion to exclude specific
testimony from plaintiffs’ expert, Gary Derian, on which the court
continues to RESERVE. Plaintiffs may have until 6 p.m. on Thursday,
March 2nd, to file a response brief of a similar length. There will be no
reply.

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2)

Tomorrow, plaintiffs shall produce Terry Tadysak and Tom Malone for
depositions of up to one-hour each. Defendants may file, by the end of the
day on Friday, March 3rd, a short brief presenting new evidence from those
depositions and related argument in support of their motion for a
spoliation instruction, on which the court continues to RESERVE.
Plaintiffs may have until Sunday, March 5th at 5 pm to file a response.

3)

With respect to defendants’ 1st, 2nd and 3rd motions in limine, plaintiffs
may offer a summary exhibit presenting evidence of belt edge separation
warranty claims before the tire was manufactured in 2006 for the purpose
of establishing notice of the possible need for an alternative design, but not
for notice of a possible manufacturing defect. Should defendants “open the
door” by claiming no litigation has arisen out of a tire failure, then
plaintiffs may offer an expanded, summary exhibit, including any evidence
of similar claims after 2016 as well. Accordingly, those motions are
GRANTED in part and DENIED in part.

4)

Defendants’ 4th motion in limine is DENIED. Defendants may make an
advance proffer of a curative instruction regarding confidential information
to add to the introductory jury instructions on or before noon on Thursday,
March 2nd.

5)

In light of the court’s rulings as to defendants’ 1st, 2nd and 3rd motions in
limine, defendants’ 5th motion in limine is DENIED as moot.

6)

Defendants’ 6th motion in limine is GRANTED unless defendants open the
door with respect to bias during cross-examination of plaintiffs’ tire expert.
Plaintiffs’ counsel must advise the court outside of the presence of the jury
if they believe defendants have opened the door.

7)

The court continues to RESERVE in part on defendants’ 10th and 11th
motions in limine pending further briefing on the scope of testimony by
plaintiffs’ expert, Gary Derian. Defendants’ may file by noon tomorrow, a
limited brief supplementing their reasons to preclude Gary Derian’s opinion
regarding a reasonable alternative design and a manufacturing defect in the
belt curing process, quoting specific language from Derian’s deposition.
Plaintiffs may have until Thursday, March 2nd at 6:00 p.m. to file a
response.

8)

The court continues to RESERVE on defendants’ 13th motion in limine
pending further briefing on defendants’ spoliation motion as set forth
above.

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9)

Defendants’ 15th motion in limine is GRANTED with regard to lay opinion
testimony as to the cause of the tire failure or Below’s injuries during the
liability phase of trial. Plaintiffs may offer lay opinion testimony as to
injuries Joshua Below would have received had he been held in the vehicle
by a seatbelt during the damages phase of trial only.

10)

Defendants’ 16th motion in limine is DENIED as moot.

11)

With respect to defendants’ 18th motion in limine, the parties may file a
stipulation as to agreed-upon references to Joshua Below’s injuries during
the liability phase of trial by the end of the day on Thursday, March 2.

12)

Defendants’ 20th motion in limine is GRANTED with the following
clarifications: Dr. Grant’s disclosed opinions regarding Below’s brain
injuries, including those expressed at her deposition, will not be excluded.
If either side anticipates the presentation of undisclosed opinion evidence,
even in rebuttal, they should bring that to the court’s attention outside of
the presence of the jury well in advance.

13)

Notwithstanding the court’s earlier rulings, defendants’ 21st motion in
limine is GRANTED. There will be no references to guardians or guardians
ad litum during the liability phase of trial and the caption for purposes of
announcing the case at trial shall appear as set forth above.

14)

The court adds the following clarification to its ruling on defendants’ 23rd
motion in limine: any witnesses who will not testify during the liability
phase of trial may be present in the courtroom during that phase of trial.

15)

The court adds the following clarification to its ruling on defendants’ 30th
and 31st motions in limine: Plaintiffs may make a limited, closing argument
to the jury as to the reason for strict product liability law, but they must
make an advance proffer if they intend to present any further argument
with respect to the community’s interests or bringing their lawsuit for the
purpose of enhancing consumer safety.

16)

With respect to plaintiffs’ 1st motion in limine, defendants may file a brief
by Wednesday, March 8th, addressing the relevance during the damages
phase of trial, of any evidence regarding the relationship between the Below
family and Joshua Below’s ex-wife, quoting specific deposition testimony
they intend to elicit. Intervenor plaintiff may have until Monday, March
13th, to file a response.

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17)

Plaintiffs’ 4th motion in limine is GRANTED in part and DENIED in part
as set forth in paragraph (3) above, unless defendants present evidence of a
lack of other lawsuits.

18)

In light of plaintiffs’ withdrawal of their objection as to Jeff Wheeler’s
testimony, the reserved portion of plaintiffs’ 5th motion in limine is
DENIED.

19)

Defendants may file by Friday, March 3rd, a limited brief as to the
foundation required for the emergency management and control instruction
under Wisconsin law. Plaintiffs may have until Wednesday, March 8th, to
file a response.

20)

Plaintiffs may have until the end of the day on Monday, March 6th, to file
an additional damages instruction with respect to Dr. Davis’s testimony.
Defendants may have until the end of the day on Wednesday, March 8th,
to respond.

21)

By noon on Thursday, March 2nd, both parties shall file updated exhibit
lists indicating the grounds for any remaining objections. If neither party
files an updated exhibit list by that deadline, that party’s objections will be
treated as withdrawn.

22)

The court will hold a telephonic hearing at 9:00 a.m. on Friday, March 3rd,
to address objections to exhibits and any other remaining evidentiary issue.
Plaintiffs are to initiate that call.

23)

Both sides will present a copy of any deposition transcript to opposing
counsel at 5 pm on the day before that party intends to use it for
impeachment purposes or close of trial that day, whichever is later.

Entered this 28th day of February, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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