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Cusack v. Bendpak, Inc.

United States District Court, D. Idaho

September 13, 2018

COREY CUSACK, individually, Plaintiff,
v.
BENDPAK, INC., a foreign corporation, Defendant.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE U.S. DISTRICT COURT JUDGE.

         I. INTRODUCTION

         Pending before the Court are numerous Motions filed by the parties in preparation for trial. Both parties filed Motions in Limine seeking to preclude certain evidence and testimony from trial. Dkts. 92, 94. Additionally, BendPak has filed two Motions to Reconsider (Dkts. 99, 100) and Cusack has filed a Motion to Strike (Dkt. 111). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons outlined below, the Court will GRANT in PART and DENY in PART both sides' Motions in Limine, DENY BendPak's Motions for Reconsideration, and GRANT Cusack's Motion to Strike.

         II. DISCUSSION

         A. Motions in Limine

         1. Legal Standard

         "Motions in limine are well-established devices that streamline trials and settle evidentiary disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy and complex evidentiary issues." Miller v. Lemhi Cty., No. 4:15-CV-00156-DCN, 2018 WL 1144970, at *1 (D. Idaho Mar. 2, 2018) (citing United States v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). "The term 'in limine' means 'at the outset.' A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area." United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (quoting Black's Law Dictionary 803 (8th ed. 2004)).

         Because "[a]n in limine order precluding the admission of evidence or testimony is an evidentiary ruling," United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989) (citation omitted) "a district court has discretion in ruling on a motion in limine." United States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). Further, in limine rulings are preliminary and, therefore, "are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

         2. Analysis

         i. Cusack's Motions in Limine[1]

         1. Opinion testimony by defense witnesses that the rolling jack that fell on Corey was not defective.

         GRANTED. This argument requires an expert opinion as it deals with scientific, technical, and specialized knowledge. BendPak asserts that Jeff Kritzer, its 30(b)(6) deponent, can testify as to these issues, however BendPak has not disclosed him as an expert under Federal Rule of Evidence 702. The Court will limit both sides to expert witnesses properly disclosed under Rule 702 and fact witnesses whose testimony complies with Rule 602 and Rule 701.

         2. Testimony, evidence, or argument by defense witnesses suggesting Corey touched, moved, or tried to move the rolling jack that fell onto his foot.

         GRANTED to the extent that factual testimony must be based on personal knowledge and comply with Rule 602 and expert testimony must have been properly disclosed and comply with Rule702.

         3. Testimony, evidence, or argument that BendPak was the industry leader or that the rolling jack that fell on Corey exceeded industry standards.

         GRANTED. The only witness remaining that could testify to these issues is BendPak's 30(b)(6) deponent, Jeff Kritzer. However, as noted above, BendPak has only listed Kritzer as a fact witness. Accordingly, Kritzer can testify consistent with his personnel knowledge, but nothing more.[2] Any other testimony must strictly comply with Rules 602, 701, and 702.

         4. Testimony, evidence, or argument that, before Corey purchased the rolling jack, BendPak conducted testing to determine the potential for the rolling jack to fall from the four-post lift.

         DENIED. To the extent that there are individuals (fact witnesses) who have personal knowledge of testing, or expert witnesses who have been properly disclosed, the Court will allow in testimony on this topic. Cusack will have a chance to cross-examine any witness as to the scope and applicability of any testing.

         5. Testimony, evidence, or argument regarding Corey's marriage counseling.

         GRANTED. BendPak has stipulated to not introduce evidence on this topic.

         6. Testimony, evidence, or argument regarding settlements or settlement negotiations between Corey and any of the named defendants.

         GRANTED. However, there will be no double recovery in this case. Therefore, if a verdict is entered awarding damages to Cusack, BendPak will be allowed to conduct post-verdict discovery for collateral sources.

         7. Testimony, evidence, or argument suggesting Corey was harmed by the product beyond its useful safe life.

         GRANTED. BendPak has stipulated to not introduce evidence on this topic.

         8. Testimony, evidence, or argument suggesting Corey failed to inspect the rolling jack for a defective condition.

         GRANTED in PART, DENIED in PART. In the broad sense of the word "defect" Cusack is correct: the law does not require him to show that he inspected the product for a defective condition. Furthermore, there is no evidence that prior to the accident, Cusack was aware of the allegedly defective condition, i.e. that the Rolling Jack could fall. However, Cusack readily admits that he personally did not inspect the Rolling Jack to ensure it was secure before the Subaru was driven onto the lift and hoisted for work.

         Accordingly, the Court will not allow testimony that Cusack failed to inspect for a "defect" generally, but will allow testimony, evidence, and argument that Cusack did not inspect the Rolling Jack prior to it being hoisted in the air.

         9. Testimony, evidence, or argument suggesting a nonclaimant failed to inspect for defects or to observe an obvious defective condition of the rolling jack.

         GRANTED. As noted in the Court's discussion regarding Yanes' testimony on this topic, see infra Section B(2)(ii), this proposition is too speculative to present to a jury. Nobody can identify this individual's identity, let alone his behavior. All fact witnesses are limited to their personal knowledge of events and all expert witnesses are limited to their properly disclosed opinions.

         10. Testimony, evidence, or argument suggesting a nonclaimant product user knew the rolling jack was defective but voluntarily and unreasonably used or stored the rolling jack.

         GRANTED. As noted above, there is no way to know what the "phantom driver" (the unknown employee who drove the Subaru onto the lift and raised it off the ground) knew, or did not know; did, or did not do. The Court will allow testimony that nobody knows what this person did, [3] but not evidence speculating as to this person's actual behavior or knowledge.

         11. Testimony, evidence, or argument suggesting that Corey or another product user misused the rolling jack.

         GRANTED in PART, DENIED in PART. The Court will not preclude testimony or evidence of misuse to the extent that BendPak wishes to introduce evidence that Cusack did not follow a manual or guideline-i.e. that Cusack's behavior in raising the lift, or, in not lowering the lift to the ground for inspection, was a "misuse" of the product. The Court will, however, preclude any evidence that Cusack (or any unknown employee) was misusing the product in general as there is no evidence to support this fact.

         12. Testimony, evidence, or argument suggesting that Corey was injured by a defective condition that would have been obvious.

         GRANTED in PART, DENIED in PART. The impetus for this entire lawsuit is the fact that while working, Cusack noticed the Rolling Jack was out of alignment and went to correct the problem. There is no evidence, however, that prior to that moment Cusack was on notice that the Rolling Jack could fall. While it may have been "obvious" that Cusack should not have tried to address the problem while the lift was raised with a car on it, it was not obvious that there was a defective condition. In other words, the Rolling Jack being off the lift, in itself, was not a defective condition; regardless of how obvious it was.

         The Court will not allow testimony that any defective condition was obvious- after all BendPak alleges there is no defect-but will allow testimony that dealing with a dangerous condition involving large equipment was-as Cusack himself states- "obviously" a delicate situation.

         13. Testimony, evidence, or argument suggesting that Corey was injured by an altered or modified product.

         GRANTED in PART, DENIED in PART. This conclusion requires an expert opinion. Neither party has identified an expert opinion along these lines. Accordingly, no testimony or evidence will be presented that Cusack was injured by alterations or modifications. However, the fact that Cusack altered or modified the Rolling Jack before the accident is a relevant fact already in evidence that can be presented at trial. The Court does not see how Cusack's post-accident modifications are relevant. Under Federal Rule of Evidence 407 these modifications are most likely subsequent remedial measures and cannot be used by, or against, either party to prove negligent conduct.

         ii. BendPak's Motions in Limine

         1. To preclude evidence of "dicta" regarding telescoping arms and/or stop bolts as design defects and/or the proximate cause of the alleged injuries.

         DENIED. The Court noted in its prior Decision (Dkt. 89, at 14) that Cusack's assertion that these were expert opinions was slightly overstated because Kimbrough's fundamental opinion is that the Rolling Jack was defective because it could fall. The explanation for this conclusion includes the telescoping arms and stop bolts (for a pre- accident defect theory) and the secondary safety bracket (for a failure to warn of post manufacturing discovered defect theory). Importantly, the Court did not preclude this information or testimony, but merely noted that it was not itself an expert opinion, but rather supporting evidence for the overall proposition.

         2. To preclude evidence of BendPak's labels, warnings, instructions, and manuals as evidence of a design defect or knowledge of a defect.

         GRANTED in PART, DENIED in PART. As the Court has already noted, putting warnings on a product is good business practice-and wise consumer protection-not indications of known problems or defects. The Court will preclude any evidence of the original warnings and labels if introduced as evidence of a design defect.[4]

         However, Idaho Code section 6-1406(1) specifically outlines that changes in warnings or labels can be admissible under a duty to warn theory. The Court will therefore not exclude evidence or testimony of subsequent modifications to warnings or labels.

         3. To preclude any evidence of BendPak's other lawsuits, injuries, or knowledge the rolling jack could fall.

         GRANTED in PART, DENIED in PART. From a timing standpoint, anything that happened before Cusack's accident could be relevant as it goes to the theory that BendPak was on notice of possible defects but failed to warn Cusack and others. The Court finds it difficult, however, to accept ...


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