MARILYN L. HUFF, District Judge.
This matter is scheduled to go to trial on March 11, 2019. (Doc. No. 71.) On February 8, 2019, Plaintiffs filed three motions in limine, (Doc. Nos. 73-75), and Defendant filed five motions in limine, (Doc. Nos. 76-80). The parties filed their respective opposition briefs on February 22, 2019. (Doc. Nos. 81-88.) On March 1, 2019, the Court issued a tentative order on the motions. (Doc. No. 91.) The Court held a hearing on the motions on March 8, 2019. John Gomez and Jessica Sizemore appeared for Plaintiffs, and Peter Doody and Robin Clay Hoblit appeared for Defendant. Having reviewed the parties' submissions and heard their arguments, the Court orders as follows:
Plaintiffs' first motion in limine asks the Court to exclude any and all evidence, testimony, and argument relating to the lack of prior similar coffee spill incidents at Omni properties. (Doc. No. 73.) The Court denies Plaintiffs' motion because the lack of prior incidents is admissible and relevant to Defendant's case. Relying on an Arizona Supreme Court case,
Plaintiffs' second motion in limine asks the Court to exclude the expert opinion of Defendant's billing expert, Tamara Rockholt. (Doc. No. 74.) Plaintiffs argue that Rockholt's opinion of reasonable value of future medical treatments is inadmissible because it was based exclusively on past insurance rates, and she merely adopted Plaintiffs' reasonable value and applied a percentage discount to take into account insurance reimbursement rates. (
Under California law, damages for past medical expenses are limited to the lesser of: (1) the amount paid or incurred or (2) the reasonable value of the services.
After considering the parties' arguments, the Court grants in part and denies in part Plaintiffs' motion. The Court concludes that Rockholt's estimate of reasonable value is consistent with California law. However, the Court orders that Rockholt may not make any direct mention of insurance.
Plaintiffs' third motion in limine asks the Court to permit the parties to give mini opening statements during jury selection. (Doc. No. 75.) Defendant opposes the motion. (Doc. No. 83.) The Court denies this motion because such mini opening statements would be an inefficient use of trial time and would be redundant of the jointly-drafted case summary given in the juror questionnaire. (
Defendant's first motion in limine asks the Court to exclude post-skin graft photographs taken of Plaintiff Hadley DeRuyver, arguing that such images will cause extreme prejudice because they are graphic and inflammatory in nature. (Doc. No. 76.) After considering the parties' arguments, the Court concludes that the probative value of the photographs outweighs any risk of prejudice.
Defendant's second motion in limine asks the Court to exclude an incident report drafted after the incident by Defendant's loss prevention relief supervisor. (Doc. No. 77.) Defendant argues that the incident report is protected by the attorney work-product doctrine and should be excluded at trial because it incorporates subsequent remedial measures taken by Defendant. (
The Court grants in part and denies in part without prejudice the motion. The Court concludes that the issue of whether the incident report is protected by the work-product doctrine was already determined by the magistrate judge's prior order compelling production. (
Defendant's third motion in limine asks the Court to exclude Plaintiffs' standard-of-care expert Jeff Nelken. (Doc. No. 78.) Defendant argues that: the testimony does not assist the trier of fact because there is no standard of care; Nelken intends to opine what constitutes as reasonable care under the circumstances, which is a question that should be left for the jury; and Nelken's opinions fail the reliability prong under
The Court grants in part and denies in part Defendant's motion. After reviewing Nelken's report, the Court concludes that Nelken is qualified to testify based on his industry experience and his testimony will help the jury to determine facts at issue in this case.
Defendant's fourth motion in limine asks the Court to exclude the testimony of Tyler Johnson of Trimark R.W. Smith, any reference to communications with Johnson, and a document created by Johnson entitled "PEX 95." (Doc. No. 79.) Defendant argues that Plaintiffs did not disclose Johnson as a witness in their Federal Rule of Civil Procedure 26 initial disclosure or provide any supplemental disclosure, and permitting Defendant's expert witness Nelken to rely on communications with Johnson and PEX 95 will cause substantial undue prejudice. (
Johnson and the document PEX 95 were identified as a basis for Nelken's opinion in Nelken's expert report. (Doc. No. 78-1.) Nelken can testify to the reasons for his opinion, including investigation of the safest coffee server options, which includes contacting Johnson.
The Court grants the motion as to Johnson's testimony because he was not separately identified as an expert witness by the deadline set by the magistrate judge and it would be duplicative for both Nelken and Johnson to testify.
Defendant's final motion in limine asks the Court to exclude any use of the "reptile theory" and other references intended to supplant the applicable standard of care, including reference to the "golden rule," "community safety," and "the safest possible action." (Doc. No. 80.) The Court denies this motion as moot because there has been no indication that Plaintiffs' counsel intends to engage in such tactics. The Court expects that counsel will comply with standards set by law for opening statements and argument. The Court reminds the parties that this is a negligence case. However, safety of the consumer may be an issue in this case, and Defendant's concerns are too vague at this time.
For the foregoing reasons, the Court: denies without prejudice Plaintiffs' motion to exclude lack of prior incidents; grants in part and denies in part Plaintiffs' motion to exclude Tamara Rockholt's testimony; denies Plaintiffs' motion for mini opening statements; denies Defendant's motion to exclude post-skin graft photographs; grants in part and denies in part with prejudice Defendant's motion to exclude the incident report; grants in part and denies in part Defendant's motion to exclude Jeff Nelken's testimony; grants in part and denies without prejudice in part Defendant's motion to exclude Tyler Johnson's testimony, reference to communications with Johnson, and document PEX 95; and denies as moot Defendant's motion to exclude reptile theory and other tactics.
These rulings are without prejudice, and the parties may make valid contemporaneous objections at trial concerning the matters discussed in this order. The Court reserves the right to change any of these rulings based on the testimony developed at trial. However, the parties may not reference any subject excluded by the Court in front of the jury, absent further order of the Court.