United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge.
matter is before the Court on motions in limine by Defendant,
Caterpillar Global Mining America, LLC, to preclude the
introduction of certain evidence at trial [DN 115, DN 116].
Fully briefed, these matters are ripe for decision.
a product-liability case against Defendant, Caterpillar
Global Mining America, LLC (“CGM”), arising out
of an accident that happened in May of 2013. Plaintiff, Beau
Brooks, a Western Kentucky coal miner, sustained injuries to
his left hand when his hand was crushed between a rib of coal
and a Caterpillar RB220 Roof Bolter. Plaintiffs allege that
the injury occurred because Brooks was holding onto the
operator handle of the roof bolter that extended his hand
beyond the roof and outside the protective operator
compartment. Plaintiffs contend that the crush injuries would
not have occurred if CGM's operator handle had not been
located so close to the edge of the roof bolter's
operator compartment that Brooks left hand was left
unprotected. Brooks and his wife sued CGM.
Motion In Limine [DN 115]
Disclosure of Witnesses
requests the Court to require each party to provide to the
other parties the names and expected sequence of those
witnesses that the party intends to call at trial no later
than one full business day in advance. Plaintiffs object
arguing that it would hamper the parties' strategical
decisions regarding the sequence and timing of witnesses.
motion in limine is GRANTED. Disclosure of
expected witnesses in advance of their testimony at trial
will aid in the orderly progress of the trial. Disclosure
shall be made on or before 5:00 p.m. the day before the
testimony is expected.
requests that Plaintiffs' recovery for past medical
services, if any, be limited, post-trial, to those amounts
accepted as full and final payment by the various healthcare
providers and that Plaintiffs be required to plead and prove
those amounts at trial.
object to this motion arguing that the introduction of
charged-off medical expenses for any reasons, including
workers' compensation and/or health insurance, are not
admissible at trial. Similarly, Plaintiffs argue that the
reduction of the award of medical expenses for these
write-offs is improper. For the reasons set forth in the
Memorandum Opinion addressing Plaintiffs' motion to
preclude the entry of collateral source evidence [DN 122],
the motion in limine is DENIED.
Sequestration of Witnesses
seeks the sequestration of all lay witnesses pursuant to
Fed.R.Evid. 615 so that they cannot learn of the testimony of
other witnesses. Plaintiffs do not object to this motion in
limine except to the extent that the Defendant's seek to
exclude witnesses that are parties. Fed.R.Evid. 615 excepts
parties from being sequestered from the trial proceedings.
this motion is GRANTED.
Financial Condition of Defendant
moves the Court to exclude evidence and argument on its
wealth or financial condition. Specifically, Defendant moves
to preclude Plaintiffs from offering: (1) evidence of or
referring to Defendant's financial condition or net
worth; (2) offering evidence of or referring to the
Defendant's gross revenues, profits, or other evidence of
economic activity outside Kentucky; and (3) asking the jury
to “send a message” or to act as “the
conscience of the community” or engage in other similar
appeals to economic or sectional biases and prejudices, or
other improper factors that go beyond applying the law to the
facts of this case.
object arguing that the financial condition of parties can be
admissible to show a party's motive for its actions and
where a party opens the door to such evidence. Plaintiffs
maintain that two pieces of evidence should be admitted.
First, the press release indicating that Caterpillar, Inc.
purchased Bucyrus for 8.8 billion dollars should be
introduced so the jury knows the background and history of
the subject machine. According to Plaintiffs, this press
release evidences the acquisition of the equipment, including
the subject roof bolter. Second, Plaintiffs contend that the
general revenue reports from Defendant and its parent company
which reveal the profits both earned since Beau Brooks was
injured. Plaintiffs maintain that these reports should be
admitted to show that CGM had sufficient resources to conduct
risk assessments and make the appropriate modifications to
to longstanding Kentucky law, evidence of CGM's financial
condition or net worth is inadmissible. As noted by the
Kentucky Supreme Court, “the parties may not present
evidence or otherwise advise the jury of the financial
condition of either side of the litigation.”
Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910,
916 (Ky. 1998). Evidence of the financial information
“creates the potential that juries will use their
verdicts to express biases against big businesses,
particularly those without strong local presences.”
Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 167
(Ky. 2004). Moreover, CGM's financial condition is
irrelevant to this action. Fed.R.Evid. 401. See Parrish
v. Dollar General Corporation, 2016 WL 742925 (W.D. Ky.
Feb. 24, 2016). “Evidence is relevant if: (a) it has
any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed.R.Evid.
401. In the present case, CGM's financial condition and
the purchase price of Bucyrus are not relevant to the design
defect case. CGM has not put forth the argument that it was
not financially viable for the company to move the handhold
or that the company chose not to conduct a new product risk
assessment because of the lack of financial resources.
Ultimately, evidence regarding the overall financial
condition or net worth of Defendant is not admissible. The
motion in limine is GRANTED.
moves the Court to preclude Plaintiffs from making references
to unrelated litigation at the trial of this matter. In
response, Plaintiffs indicate that they do not plan to make
reference to unrelated litigation and do not object to the
motion limine. Accordingly, the motion is
moves to preclude the Plaintiffs from suggesting or asking
jurors to place themselves in the position of Plaintiffs (the
“Golden Rule”). Plaintiffs do not object to the
motion in limine. Therefore, the motion is
Preclude Voir Dire Regarding Particular Verdict
moves to preclude Plaintiffs from engaging in any inquiry
calculated to have jurors indicate that they would award a
particular verdict amount based upon facts similar to the
case at bar. Defendant also seeks to prohibit counsel from
inquiring as to whether a juror “has a problem
with” awarding the same or similar verdict amount at
any time during voir dire and continuing through closing
argument. Defendant contends that such inquiries are improper
because they commit jurors to a particular verdict amount
without hearing any of the evidence of damages. Defendant
argues that the proper inquiry is whether jurors have the
ability to consider all evidence with respect to damages and
whether they have the ability to award a sum of money which
is fair and reasonable under the circumstances.
response, Plaintiffs indicate that they do not intend to
inquire or to suggest to potential jurors during voir dire a
particular amount of money to award in this case.
Accordingly, the motion in limine as it relates to this issue
is GRANTED. Furthermore, Plaintiffs are
precluded from eliciting promises or pledges from potential
jurors to return a specific verdict.
Plaintiffs argue that they should be able to explore whether
jurors are willing to award money if they believe a party
should be compensated. Plaintiffs contend that they should
know if a potential juror is uncomfortable awarding sums of
money or does not believe in awarding large sums of money.
Plaintiffs tender two examples of voir dire questions that
they argue should be explored with the jury to enable them to
exercise their peremptory challenges. Questions such as:
A. This case is a civil case, and in civil cases the only
remedy the law provides is monetary compensation. In a
criminal case, the law provides the remedy of jail, but in a
civil case, there is no jail . . . only money. How do you
feel about the idea that civil lawsuits allow for the
recovery of money damages?
B. After you hear the evidence if you believe, under the law,
defendant is liable for Beau's injuries, and if the
evidence establishes that his injuries are serious enough to
warrant compensating Beau with large sums of money, like
hundreds of thousands of dollars or millions of dollars is
there anybody that cannot award large sums of money; and who
would have a problem awarding hundreds of thousands of
dollars or millions of dollars and why?
(Plaintiffs' Response at 6.)
Court finds it appropriate to pursue the topic regarding the
jurors' thoughts on awarding large amounts of damages, as
long as the statements are supported by evidence. Ribeiro
v. Baby Trend, Inc., 2017 WL 1393088, at *8 (D. Neb.
Apr. 17, 2017). In the present case, Plaintiffs' economic
expert is expected to testify that Plaintiff has incurred
over 2.6 to 3.1 million dollars in lost wages and benefits
alone. Thus, general questioning regarding damages is
appropriate to determine if the jury is willing to consider
awarding the amount of damages Plaintiff is seeking. The
Court intends to question the jury regarding damages which
will avoid any potentially improper inquiry by the parties on
this issue. The motion in limine is DENIED IN
Disclosure of Pretrial Motions
moves to preclude Plaintiffs from disclosing that these or
other motions have been filed or ruled upon, or that
Defendant has moved to prohibit proof or that the Court has
excluded proof on any matter. Plaintiffs do not object to
this motion as long as the order is reciprocal. Accordingly,
the motion is GRANTED. The parties shall
refrain from referring to the filing of pretrial motions or
prior motions in limine to the jury.
Reference to Untimely Filed Claims or Causes of
moves to preclude Plaintiffs from referencing claims or
causes of action “not supported by timely filed trial
pleadings.” Plaintiffs object indicating that the
request is vague and does not reference any specific claims
or causes of action. This motion is DENIED
at this time. Any objections regarding this issue are better
handled at trial upon proper objection by Defendant.
Reference to Failure or Decision to Call or Not to Call a
moves to preclude Plaintiffs from making any reference to the
failure or decision to call, or not to call, any witness
during the trial. In response, Plaintiffs object arguing that
while they do not plan to reference this fact, they reserve
the right to do so if warranted. “It is impermissible
to draw any inference from a party's failure to call
witnesses that were equally available to both sides.”
Walker ex rel. his Court Appointed Curator v. United
Healthcare of Hardin, Inc., 2010 WL 3092648, *8 (W.D.
Ky. Aug. 6, 2010)(citing United States v. Virgen-
Moreno, 265 F.3d 276, 291 (6th Cir. 2001); Elam v.
Menzies, 594 F.3d 463, 469 (6th Cir. 2010)). See
also Von Wiegen v. Shelter Mut. Ins. Co., 2013 WL
6632020, *3 (E.D. Ky. Dec. 17, 2013). The Court finds that
this issue is better addressed at trial. Counsel should
approach the bench before commenting on the failure of
opposing counsel to call a witness.
Requesting Stipulation in Presence of Jury
moves the Court to preclude Plaintiffs from making any
attempt in the presence of the jury to seek or request
Defendant's attorneys to produce documents, to stipulate
to any fact, or to make any agreement. Plaintiffs do not
object to this motion as long as the order is reciprocal.
Accordingly, the motion is GRANTED. The
parties should refrain from requesting ...