PAUL D. BORMAN, District Judge.
Defendants have filed 14 motions in limine and Plaintiff has filed three. Oral argument on motions in limine is scheduled for
For the reasons that follow, the Court:
DENIES Defendants' Motion in Limine to Exclude any Theory of Causation by Plaintiff Based on Speculation Concerning Decedent's Conduct (ECF No. 39; Response ECF No. 69; Reply ECF No. 78);
DENIES Defendants' Motion in Limine to Preclude Any Reference to Decedent Being "In Harm's Way" (ECF No. 55; Response ECF No. 64; Reply ECF No. 79);
GRANTS Plaintiff's Second Amended Motion in Limine to Exclude Portions of the Testimony of Defendants' Expert William Field (ECF No. 62; Response ECF No. 82);
DENIES AS MOOT Plaintiff's Amended Motion in Limine to Exclude Portions of the Testimony of Defendants' Expert William Field (ECF No. 31; Response ECF No. 36);
GRANTS Defendants' Motion in Limine to Exclude Evidence of Subsequent Remedial Measures (ECF No. 40; Response ECF No. 59; Reply ECF No. 75); and
GRANTS Plaintiff's Motion in Limine to Exclude Defendants' Proposed Exhibit 501, the UD-10 Traffic Crash Report. (ECF No. 56; Response ECF No. 81; Reply ECF No. 84.)
This wrongful death action arises out of an accident that occurred on a pig farm operated by the decedent, Randy Malburg. Defendant Brian Grate was driving a truck with a trailer carrying 300 feeder pigs for delivery to the Malburg farm. During the process of positioning the trailer for unloading, Randy Malburg became pinned at his head and neck between the trailer being driven by Mr. Grate and the chute attached to Mr. Malburg's barn, onto which the pigs were to have been unloaded. Plaintiff, the personal representative of decedent's estate, Kevin W. Malburg, brings this action on behalf of the estate.
In an Opinion and Order dated September 6, 2013, this Court denied Defendants' Motion for Summary Judgment. Malburg v. Grate, et al., No. 11-14856, 2013 WL 4784436 (E.D. Mich. Sept. 6, 2013). The Court concluded that genuine issues of material fact remain as to whether Defendants breached a duty to the Plaintiff, whether Mr. Grate's alleged negligence was a proximate cause of Randy Malburg's death, and whether Randy Malburg was more than 50% responsible for his own death. The facts of the case are set forth in detail in the Court's September 6, 2013 Opinion and Order and will be reiterated here only as necessary to provide context for the Court's rulings on these motions in limine.
"The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures-including motions in limine-in order to narrow the issues remaining for trial and to minimize disruptions at trial." United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999). District courts have broad discretion over matters involving the admissibility of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991).
Defendants move to exclude any theory of causation that Plaintiff seeks to proffer that is based on alleged speculation about what Mr. Malburg may have been doing just prior to being crushed between the trailer and the chute. In particular, Defendants seek to preclude Plaintiff from arguing to the jury the theory that Mr. Malburg was reaching to secure the trailer rope to the cleat at the back of the trailer at the time of impact. In fact, because there were no eye witnesses to the accident (Mr. Malburg is dead and Mr. Grate could not see the space between the tractor and chute when he was behind the wheel of the truck), no one knows with absolute certainty what Mr. Malburg was doing in the seconds before his head and neck became pinned. But this lack of certainty does not require the Court to exclude competent testimony about what he might have been doing — as long as that testimony is grounded to some extent in the evidence that has been adduced in the case. "That there was no eyewitness to the accident does not always prevent the making of a possible issue of fact for the jury." Skinner v. Square D Co., 445 Mich. 153, 164 (1994) (internal quotation and citation omitted).
A claim of negligence may be based on circumstantial evidence but that evidence must suggest more than a mere possibility that is just as likely as other equally plausible possibilities. "To be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation." Id. at 164. "The proffered evidence must fairly indicate[] a logical sequence of cause and effect." Id. at 167-68 (internal quotation marks and citations omitted) (alteration added). In this case, although the inference may be tentative, Plaintiff "nevertheless has demonstrated a logical sequence of cause and effect which could support an inference" that Grate's "unreasonable conduct . . . caused the injury."
Defendants object to Plaintiff suggesting that its theory, i.e. that Mr. Malburg was crouched down and reaching to secure the rope to the cleat and that Mr. Grate should have known that this dangerous move was going to occur, has any greater support in the record than any other possible theory. Defendants propose, for example, that it is equally likely that Mr. Malburg intentionally placed his head between the chute and the trailer in a self-destructive act. Defendants concede that Plaintiff may attempt to establish causation based upon circumstantial evidence, but argue that the circumstances in evidence do not "take the case out of the realm of conjecture and within the field of legitimate inferences from established facts." Defs.' Reply at 1 (quoting Cote v. Lowe's Home Ctr., Inc., 896 F.Supp.2d 637, 647 (E.D. Mich. 2012)). Defendants assert in their motion that there is no evidence that Mr. Malburg had wrapped the rope around the cleat as part of the backing process in the past or that he intended to do so on this occasion, but facts in evidence contradict this assertion. Among the evidentiary facts supporting an inference that Mr. Malburg had performed this maneuver in the past and that Mr. Grate would have known that Mr. Malburg was going to reach down to secure the rope to the cleat are the following:
Ott Dep. at 33-34, 38. Mr. Ott also testified that it is impossible to raise and secure the door with one hand, see Ott Dep. at 38, and that Mr. Malburg, once up in the chute, would be holding the sorting board with one hand to keep the pigs on the truck until the truck came to a stop and the chute sides were inside the truck, see Ott Dep. at 32-33.
This evidence supports an inference that Mr. Grate, who was very familiar with the design of his trailer, knew that Mr. Malburg would be dealing with raising the door and securing the rope while the backing process was underway. Mr. Grate testified that he heard the door being raised after Mr. Malburg got up in the chute but before Mr. Grate actually began the final backing process. See Grate Dep. at 61. But he also testified that when Mr. Malburg's hand went out of his sight, Mr. Grate presumed that Mr. Malburg was "holding the door rope," suggesting that he was expecting that Mr. Malburg would still need to hold/secure the rope while the truck was moving. Mr. Grate testified that he chose not to insist that the door be opened and secured before the final backing process took place — but he wished that he had.
To be sure there is evidence in the record to contradict this theory and it will be appropriate for Defendants to explore these contradictions on vigorous cross examination. But Skinner only requires that there be enough evidence to suggest that Plaintiff's proffered scenario has a reasonable likelihood of probability rather than a mere possibility. 445 Mich. at 267. Plaintiff's evidence "need not negate all other possible causes" but must have greater than equal probability as compared with any other possible cause. Plaintiff's evidence on this theory suggests a reasonable inference of causation and is sufficient to permit the jury to determine whether it is possible that Mr. Malburg was attempting to secure the rope just before he became pinned between the trailer and the chute and that Mr. Grate was fully aware that he would be attempting this maneuver — a theory that the jury will be free to accept or reject as they consider all of the evidence ultimately presented. Accordingly, Defendants' motion in limine (ECF No. 39) to exclude Plaintiff from suggesting this theory of causation is DENIED.
Related to Defendants' motion to preclude Plaintiff from suggesting that Mr. Malburg was reaching to secure the rope to the cleat at the time he was crushed between the trailer and the chute is Defendants' motion to preclude reference to Mr. Malburg "being in harm's way while acting as a spotter." (ECF No. 55.) Defendants argue that it is pure conjecture to suggest that Mr. Grate should have known that Mr. Malburg would move from a "place of safety" standing up inside the chute to a place of danger, crouched and reaching to secure the door rope around the cleat. Defendants argue that because there is no evidence that Mr. Malburg told Mr. Grate that he intended to open the door while the truck was moving or that he would come between the trailer and the chute as he was trying to secure the rope, any suggestion that he did so is based on pure speculation. Defendants assert that Mr. Grate believed that the door was opened while the truck was still stationary but Mr. Grate's own testimony contradicts this, or at least leaves open the possibility that he was aware that the door had not been fully lifted, as he assumed that Mr. Malburg was dealing with the door rope when his hand disappeared.
As explained supra, there has been sufficient evidence presented to permit a jury reasonably to infer Plaintiff's suggested scenario. Furthermore, as discussed supra, there is sufficient evidence from which a jury might reasonably infer that Mr. Grate knew that Mr. Malburg would have to accomplish this task while the backing process was underway as he expressly testified that he assumed, when he lost sight of Mr. Malburg's hand, that Mr. Malburg was dealing with the door rope. This permits the reasonable inference that Mr. Grate presumed that the rope had not been finally raised and secured before he commenced his final backing toward the chute. Mr. Grate was also aware that the door had to be up in order for the truck to mesh with the chute. Also, as discussed supra, at least one witness familiar with the unloading process at the Malburg farm, Christopher Ott, testified that this was an inherently dangerous process, particularly if the driver were to totally lose sight of Mr. Malburg, which Mr. Grate has testified occurred in this case. For the same reasons that the Court denies Defendants' motion to preclude Plaintiff from suggesting that Mr. Malburg may have been reaching to secure the door rope at the time he became pinned between the truck and the chute, the Court also denies Defendants' motion to preclude Plaintiff from suggesting that Mr. Grate knew or should have known that Mr. Malburg may have been doing just that when his hand disappeared from Mr. Grate's sight. Accordingly, the Court DENIES Defendants' Motion in Limine to Preclude Reference to Decedent Being "In Harm's Way" While Acting as a Spotter. (ECF No. 55.)
In his Amended Motion in Limine, Plaintiff sought to preclude four different subparts, a-d, of the opinion of Defendants' expert, Dr. William Field. (ECF No. 31.) In his Second Amended Motion (ECF No. 62), Plaintiff seeks to preclude only the opinion contained in the fourth subpart in which Dr. Field opines that Randy Malburg may have committed suicide by intentionally placing his head between the chute and the trailer as the backing process was underway. The Court agrees with Plaintiff that this theory has zero evidentiary basis and goes far beyond the realm of possibility into the world of pure conjecture. Dr. Field will be precluded from offering Randy Malburg's suicide as a possible theory of how his head came to be crushed between Defendants' trailer and the chute. Plaintiff's Second Amended Motion in Limine (ECF No. 62) is GRANTED. Plaintiff's Amended Motion in Limine is DENIED AS MOOT (ECF No. 31).
Defendants ask the Court to exclude any evidence or reference to subsequent remedial measures implemented by Defendant Kagy Farms following the accident in this case. Fed. R. Evid. 407 provides that:
Fed. R. Evid. 407.
Plaintiff does not deny that evidence that Kagy Farms, subsequent to the accident in this case, adopted a policy prohibiting their drivers from backing to a delivery chute unless the person taking delivery is visible on the ground, is not admissible to prove negligence. Defendants do not dispute, and do not intend to dispute at trial, that such a policy was feasible at the time of the accident. Plaintiff however insists that Defendants enter into a written stipulation, presumably to be read to the jury, acknowledging that such a safety procedure was feasible at the time of the accident. In support of the assertion that a stipulation is necessary to take the issue of feasability out of the case, Plaintiff cites a Seventh Circuit case, Ross v. Black & Decker, Inc., 977 F.2d 1178, 1185 (7th Cir. 1992), in which defendant did contest feasability. The Court is not bound by the decision of the Seventh Circuit which, in any event, the Court finds distinguishable. In Ross, it was clear that the defendant openly contested feasability. Id. at 1185. Given the Defendants' representation that they do not intend to dispute feasability, the Court sees no basis for requiring a stipulation to that effect and GRANTS Defendants' motion in limine to exclude evidence of subsequent remedial measures. (ECF No. 40.)
Defendants' proposed Exhibit 501 is the UD-10 State of Michigan Traffic Crash Report that indicates on its face that it was created under the authority of and in compliance with Mich. Comp. Laws § 257.622. Pl.'s Mot. Ex. A, UD-10 Traffic Crash Report. Mich. Comp. Laws § 257.622 provides that an "officer receiving the report [of a driver of a motor vehicle involved in an accident that injures or kills any person] . . . shall immediately forward each report to the director of the department of state police on forms prescribed by the director of the department of state police." (Alteration added.) There is no question that the UD-10 Traffic Crash Report that Plaintiff seeks to exclude is a report prepared in compliance with Mich. Comp. Laws § 257.622.
Mich. Comp. Laws § 257.624 provides in pertinent part as follows:
Mich. Comp. Laws § 257.624.
The Michigan Supreme Court has held that this statutory provision "is confined to the reports mandated by the statute, and has no effect on the rules of evidence regarding the police officer's personal notes or the routine report, usually entitled `Motor Vehicle Accident Report,' that the officer takes at the scene of the accident." Moncrief v. City of Detroit, 398 Mich. 181, 191 (1976). Defendants suggest that the "report" referred to in section 624 is only the "verbal" report given to the investigating officer and is not the physical written report that appears on the official form as mandated by the statute. Defendants provide no authority for such a proposition. Defendants' reliance on this Court's opinion in Weinstein v. Siemens, No. 07-cv-15000, 2010 WL 4824952 (E.D. Mich. Nov. 22, 2010) is misplaced. In that case, the reports being offered into evidence were not UD-10 Reports and did not appear on a "State of Michigan Traffic Crash Report" form, indicating on their face that they was prepared in compliance with Mich. Comp. Laws § 257.622. Quite the contrary, the reports in Siemens were the officers' narrative investigative reports and did not fall within the narrow category of the "red-line" reports statutorily mandated by section 622 and expressly barred from admission in a court proceeding by section 624. The report in this case, by contrast, is precisely the type of statutorily mandated report contemplated for exclusion under section 624. The statute does not say that the "verbal part" of the 622 report shall be excluded from evidence — it says the 622 report shall be excluded from evidence. And so it shall be. Apart from their own unsupported interpretation of the statute, Defendants' suggest no authority for separating from the UD-10 Report the driver's "verbal" report so that only some "portion" of the Traffic Crash Report would be excluded under section 624. Accordingly, the Court GRANTS Plaintiff's Motion in Limine to Exclude Defendants' Proposed Exhibit 501, the UD-10 Traffic Crash Report. (ECF No. 56.)
For the foregoing reasons, the Court:
DENIES Defendants' Motion in Limine to Exclude any Theory of Causation by Plaintiff Based on Speculation Concerning Decedent's Conduct (ECF No. 39);
DENIES Defendants' Motion in Limine to Preclude Any Reference to Decedent Being in Harm's Way (ECF No. 55);
GRANTS Plaintiff's Second Amended Motion in Limine to Exclude Portions of the Testimony of Defendants' Expert William Field (ECF No. 62);
DENIES AS MOOT Plaintiff's Amended Motion in Limine to Exclude Portions of the Testimony of Defendants' Expert William Field (ECF No. 31);
GRANTS Defendants' Motion in Limine to Exclude Evidence of Subsequent Remedial Measures (ECF No. 40); and
GRANTS Plaintiff's Motion in Limine to Exclude Defendants' Proposed Exhibit 501, the UD-10 Traffic Crash Report. (ECF No. 56.)
The Court will proceed to hear argument, as scheduled on
IT IS SO ORDERED.
