LOUIS GUIROLA, JR., District Judge.
This lawsuit arose out of a motor vehicle accident involving a tractor trailer driven by D&D Express Transport employee Adolfo Perez and a car driven by the plaintiff Daryl D. Williams. The plaintiffs Jametrius McCon, Larry Henderson, and Lamario Henderson were passengers in Williams' vehicle.
The defendants ask the Court to prohibit the plaintiffs from offering evidence and argument at trial regarding documents that were not produced during discovery. The only specific documents referenced in the defendants' Motion are documents obtained via subpoena by McCon that were never produced to the defendants. McCon does not appear to dispute that the documents were not timely provided to the defendants, but he states that he has now provided all of the available documents referenced in the defendants' Motion.
The defendants filed their Motion pursuant to Fed. R. Civ. P. 37(c)(1), which provides, "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless. . . ." This Court's Local Rules explain:
Uniform Local Rule 26(a)(3). The defendants never filed a motion to compel pursuant to Fed. R. Civ. P. 37(a), even though they knew that McCon served the subpoenas in September and October 2017. "The Court will not use the procedural device of a motion in limine to enforce the provisions of Federal Rule of Civil Procedure 37." United States ex rel. Jamison v. McKesson Corp., No. 2:08cv214-SA-DAS, 2012 WL 12931443, at *2 (N.D. Miss. Feb. 14, 2012); see also Caldwell v. Wal-Mart Stores East, LP, No. 3:10cv651-DPJ-FKB, 2012 WL 1712377, at *1-2 (S. D. Miss. May 14, 2012) (denying a motion in limine seeking relief pursuant to Fed. R. Civ. P. 37(c) where the defendant did not file a motion to compel). The defendants' Motion in Limine to Preclude Documents Not Produced in Discovery is denied.
The defendants explain that they live in Miami-Dade County Florida and attendance at trial may cause a hardship for them. The defendants argue, "Should Defendants be unavailable to appear at trial, such lack of appearance is not material or relevant to any issue before the Court, and therefore, Plaintiffs should be prohibited from making any argument or reference at trial to their absence." (Defs.' Mem. 2, ECF No. 333). The Court will grant this portion of the Motion and will provide further explanation and instruction to the parties at the pretrial conference.
The defendants also ask the Court to prevent the plaintiffs from making any reference, directly or indirectly, to the defendant's insurance coverage. The defendants further seek to prevent the plaintiffs from calling David Wilton, the independent adjuster hired by the defendants' insurer, to testify. Fed. R. Civ. P. 411 provides, "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control." Therefore, the Court will grant the defendants' Motion to this extent. The plaintiffs will be prohibited from referencing the defendants' insurance coverage in any way. If the plaintiffs wish to introduce evidence or testimony concerning insurance "for another purpose" under Fed. R. Evid. 411, the plaintiffs believe that the defendants have opened the door to admissibility of evidence or testimony concerning insurance, or the plaintiffs wish to call David Wilton to testify, the plaintiffs must first notify the Court outside the presence of the jury, so that the Court can determine whether the evidence or testimony is admissible.
In his [280] First Motion in Limine, McCon sought permission to present argument and evidence of spoliation due to the defendants' failure to preserve Perez's logbooks and the Freightliner's electronic control module ("ECM"). The Court entered an [323] Order denying McCon's spoliation Motion, because there was no evidence that the defendants destroyed the logbooks or ECM in bad faith. The defendants now ask the Court to prohibit the plaintiffs "from seeking to offer evidence or arguments regarding spoliation of evidence, including the loss of or access to logbooks and/or ECM data." (Defs.' Mem. 5, ECF No. 335). The defendants also ask the Court to prohibit the plaintiffs from offering evidence or argument regarding Perez's and Laguna's proficiency in speaking the English language. In addition, the defendants argue that the Court should not permit the defendants to present evidence or argument concerning claims that have been dismissed by the Court.
"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. "Irrelevant evidence is not admissible." Fed. R. Evid. 402. "The court may exclude relevant evidence 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. The loss of logbooks and ECM data, the English proficiency of Perez and Laguna, and evidence and argument that solely concerns dismissed claims are matters that are both irrelevant and unduly prejudicial. Therefore, the Motion in Limine is granted to this extent. During the trial, if the plaintiffs believe that the defendants have opened the door or that one or more of these matters has become relevant, the plaintiffs must notify the Court outside the presence of the jury, so that the Court can reevaluate the admissibility of the proposed evidence or testimony.
The defendants also claim that the plaintiffs should not be permitted to submit evidence and arguments regarding alleged violations of the Federal Motor Carrier Safety Regulations and/or Department of Transportation Regulations. McCon wishes to argue that the defendants violated the following provisions of the FMCSR:
(McCon's Proposed Am. Compl. 3, ECF No. 119-1.)
The defendants argue that the plaintiffs should not be permitted to present medical bills at trial that exceed those that have previously been presented to the defendants. The plaintiffs assert that they do not wish to present bills that exceed those previously submitted to the defendants.
The defendants also argue that the Court should prohibit the plaintiffs from asking the jury for a specified amount of non-economic damages at trial, because they have not provided a computation to the defendants. Fed. R. Civ. P. 26(a)(1)(A)(iii) requires the parties to disclose a computation of each category of damages claimed "without awaiting a discovery request." The defendants did not follow the proper procedure of filing a motion to compel, and the defendants' request is not the proper subject of a motion in limine. See Uniform Local Rule 26(a)(3); see also Caldwell, 2012 WL 1712377 at *1-2 (denying a motion in limine asserting a failure to disclose computation of damages for first time). The defendants Motion must be denied, but the plaintiffs are ordered to provide a computation of damages to the defendants' within five days of the date of this Order.
The defendants claim that Williams has not presented any admissible evidence to support his claim for property damage and towing and expenses related to his vehicle. Williams counters that he has produced all of the information he has regarding his vehicle. The defendants ask the Court to prevent Williams from offering evidence or presenting argument regarding the property damage to his vehicle. The defendants' Motion is denied, but the defendants will be permitted to present contemporaneous objections to evidence or testimony presented at trial.