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Brooks v. Caterpillar Global Mining America, LLC

United States District Court, W.D. Kentucky, Owensboro Division

August 8, 2017

BEAU BROOKS and TINA BROOKS PLAINTIFFS
v.
CATERPILLAR GLOBAL MINING AMERICA, LLC DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge.

         This 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.

         I. BACKGROUND

         This is 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.

         II. DISCUSSION

         A. Motion In Limine [DN 115]

         1. Disclosure of Witnesses

         Defendant 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.

         This 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.

         2. Medical Bills

         Defendant 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.

         Plaintiffs 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.

         3. Sequestration of Witnesses

         Defendant 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.

         Accordingly, this motion is GRANTED.

         4. Financial Condition of Defendant

         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.

         Plaintiffs 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 the machines.

         Pursuant 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.

         5. Unrelated Litigation

         Defendant 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 GRANTED.

         6. Golden Rule

         Defendant 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 GRANTED.

         7. Preclude Voir Dire Regarding Particular Verdict Amount

         Defendant 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.

         In 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.

         However, 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.)

         The 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 PART.

         8. Disclosure of Pretrial Motions

         Defendant 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.

         9. Reference to Untimely Filed Claims or Causes of Action

         Defendant 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.

         10. Reference to Failure or Decision to Call or Not to Call a Witness

         Defendant 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.

         11. Requesting Stipulation in Presence of Jury

         Defendant 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 ...


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