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Gilliland v. Harley-Davidson Motor Company Group, LLC

United States District Court, D. Nebraska

April 29, 2015

TERRENCE N. GILLILAND, DENISE M. GILLILAND, and LUIS S. GALLEGOS, Plaintiffs,
v.
HARLEY-DAVIDSON MOTOR COMPANY GROUP, LLC, Defendant.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, District Judge.

This matter is before the Court on the Plaintiffs' Motion in Limine (Filing No. 130) in which Plaintiffs Terrence N. Gilliland ("Gilliland"), Denise M. Gilliland ("Mrs. Gilliland"), and Luis S. Gallegos ("Gallegos") seek to preclude Defendant Harley-Davidson Motor Company Group, LLC ("Harley-Davidson") from presenting evidence or argument in 43 different categories. Also before the Court are six motions presented by Harley-Davidson: Motion to Exclude Evidence of Dissimilar Accidents or Incidents (Filing No. 132), Motion to Exclude Evidence of Plaintiff Denise Gilliland's Cancer (Filing No. 133), Motion to Exclude Evidence of Harley-Davidson's Customer Contacts and Warranty Claims (Filing No. 134), Motion to Exclude Evidence of Harley-Davidson Service Bulletin M-1215A and M-1215B (Filing No. 136), Motion to Exclude Evidence of Plaintiffs' Hearsay Statements (Filing No. 138), and Request for Oral Argument on Pending Motions in Limine (Filing No. 140).

DISCUSSION

This case arises out of a motorcycle accident that occurred on April 22, 2010, in Mills County, Iowa. Gilliland purchased the motorcycle, a 2007 Harley-Davidson VRSCAW V-Rod ("subject motorcycle"), from Dillon Brothers Harley-Davidson in Omaha on or about July 23, 2007. At the time of the accident, Gilliland was operating the subject motorcycle. Gallegos was a passenger. Neither Gilliland nor Gallegos can recall, or knew at the time, what caused the accident. Plaintiffs claim the accident occurred because the center post of the subject motorcycle's triple-tree assembly came apart, causing the crash. Plaintiffs filed their action in the District Court of Dodge County, Nebraska, and Harley-Davidson removed the action to this Court, invoking the Court's diversity jurisdiction.

I. Plaintiffs' Motion in Limine

Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs' history of traffic violations, criminal charges, or criminal convictions. Harley-Davidson responds that it will comply with the provisions of Fed.R.Evid. 609(a) with respect to the felony conviction of Gallegos for burglary, and will comply with the provisions of Fed.R.Evid. 609 (b) with respect to the felony conviction of Gilliland for credit card fraud. The Plaintiffs' Motion and Harley-Davidson's brief provide no further guidance for the Court. Plaintiffs' Motion will be granted, in that Harley-Davidson will be precluded in limine from making reference to Plaintiffs' history of traffic violations, criminal charges, or criminal convictions until the Court rules on the admissibility of such evidence pursuant to Fed.R.Evid. 609, outside the presence of the jury.

Plaintiffs seek to bar Harley-Davidson from inviting the jury to speculate about possible causes of the motorcycle accident. Harley-Davidson responds that it does not intend to invite speculation, but will offer evidence of causation as disclosed in its expert reports. Plaintiffs' Motion will be granted, in that Harley-Davidson will be precluded in limine from inviting the jury to speculate about the cause of the accident.

Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs' prior or subsequent accidents, injuries, claims, suit or settlements, or the amount thereof, that did not occur under reasonably similar circumstances. Harley-Davidson does not oppose this Motion, and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making any reference to the time or circumstances under which the Plaintiffs employed their attorney or experts. Harley-Davidson does not oppose the Motion as it relates to the time or circumstances under which Plaintiffs employed their attorney, but does note that it will make reference to the time devoted by Plaintiffs' expert when formulating opinions prior to expressing them, as such is relevant to the expert's credibility and the weight, if any, that should be given to the opinions. Plaintiffs' Motion will be granted in part, and Harley-Davidson will be precluded in limine from making reference to the time or circumstances under which the Plaintiffs' retained their attorneys.

Plaintiffs seek to bar Harley-Davidson from making reference to whether any award to the Plaintiffs would be subject to taxation. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making reference to the Plaintiffs' personal habits as they relate to consumption of alcohol, drugs, or narcotics. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making reference to Plaintiffs' failure to call any witness that is equally available to Harley-Davidson. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson and its non-expert witnesses from offering inadmissible hearsay testimony. Harley-Davidson does not oppose this Motion, noting that rules concerning expert witnesses' reliance on inadmissible hearsay in support of their opinions should be applied equally to Harley-Davidson and Plaintiffs. The Plaintiffs' Motion will be granted as it requests the Court to follow the Federal Rules of Evidence, which the Court will attempt to apply equally to all parties.

Plaintiffs seek to bar Harley-Davidson from referring to the probable testimony of a witness who is absent, unavailable, or not called to testify. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from calling any witness not disclosed to Plaintiffs. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from suggesting to the jury that the Plaintiffs are motivated by "secondary gain or malingering." Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from requesting any physical demonstrations by the Plaintiffs in the presence of the jury. Harley-Davidson does not oppose this request, and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making reference to any transactions that would violate the attorney-client privilege. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making reference to settlement negotiations in violation of Fed.R.Evid. 408. Harley-Davidson does not oppose this Motion, and it will be granted.

Plaintiffs seek to bar Harley-Davidson from making reference to when Plaintiffs' expert James Weaver was supplied with information on which he based his opinions. Harley-Davidson opposes this Motion, noting that the amount of time the expert had to review materials and form his opinion is relevant to the expert's credibility and the weight to be given to the opinion. The Court agrees, and Plaintiff's Motion will be denied.

Plaintiffs seek to bar Harley-Davidson from referring to expert James Weaver's purported failure to comply fully with deposition notices with respect to production of materials. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from referring to expert James Weaver's involvement in a motorcycle crash resulting in a broken leg. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to bar Harley-Davidson from eliciting testimony from Kimberly Clark regarding whether or not Gilliland's motorcycle was insured. Plaintiffs suggest that such testimony would violate the "collateral source doctrine" and is irrelevant. Harley-Davidson opposes the Motion, noting that Gilliland's failure to insure the motorcycle is relevant to the level of care he exercised in maintaining it. Plaintiffs' reliance on the "collateral source doctrine" is misplaced.[1] The Motion will be denied, without prejudice to the Plaintiffs asserting their relevance objections at the time of trial.

Plaintiffs' Motion at paragraph 15.B.ii. is entitled "Motorcycle License, " but simply repeats the same language as in paragraph 15.B.i., regarding insurance and the "collateral source doctrine." (Filing No. 130 at ECF p. 6.) Harley-Davidson interprets the Motion as a request for the Court to bar Harley-Davidson from presenting evidence of Gilliland's lack of a motorcycle license. The Motion will be denied.

Plaintiffs seek to bar Harley-Davidson from eliciting testimony from witness Kimberly Clark regarding other accidents occurring along the roadway where the accident at issue in this case occurred, and regarding speculation about the cause of the accident. Harley-Davidson does not oppose this motion, with the caveat that it does intend to elicit testimony from Clark that tire marks from an earlier accident prevented her from discerning with precision which marks were caused by the Gilliland crash. The Plaintiffs' Motion will be granted, provided that Harley-Davidson may question Clark about tire marks from a prior accident remaining visible after the Gilliland crash.

Plaintiffs seek to preclude Harley-Davidson from eliciting testimony from Gilliland regarding his traffic record, including speeding tickets. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to preclude Harley-Davidson from introducing in evidence any of Gilliland's speeding tickets. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to preclude Harley-Davidson from making any reference to Gilliland's 1973 conviction related to credit card "problems." Harley-Davidson opposes this Motion, noting that Gilliland's conviction for credit card "fraud" bears on his truthfulness, and may be admissible under Fed.R.Evid. 609(b). Harley-Davidson will be precluded from making any reference to Gilliland's 1973 conviction until the Court has an opportunity to determine, outside the presence of the jury, whether the probative value of the evidence substantially outweighs its prejudicial effect.

Plaintiffs seek to preclude Harley-Davidson from making any reference to Gilliland's business being sued for alleged defective workmanship or incomplete work. Harley-Davidson does not oppose this Motion and it will be granted.

Plaintiffs seek to preclude Harley-Davidson from making any reference to a motorcycle accident in which Gilliland was involved in 2007, asserting that the incident was remote and unrelated. Harley-Davidson opposes the Motion, noting that the incident involved Gilliland losing control of the motorcycle and tipping it over when carrying a passenger, which he rarely did. Plaintiffs' Motion will be denied, without prejudice to Plaintiffs raising objections at the time of trial.

Plaintiffs seek to preclude Harley-Davidson from making any reference to alleged negligence on the part of Jack Vaughn concerning the repair of the motorcycle, suggesting that such allegations would be speculative and unduly prejudicial. Harley-Davidson does not oppose the Motion, provided that Harley-Davidson is not precluded from questioning Vaughn and eliciting factual information about his mechanical interactions with the motorcycle. The Plaintiffs' Motion ...


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