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Stock v. Rodriguez

United States District Court, D. Nebraska

October 2, 2019

ROBERT STOCK, Plaintiff,
ELIAS D. RODRIGUEZ, SR., and C.R. ENGLAND, INC., a Utah Corporation, Defendants.


          Michael D. Nelson, United States Magistrate Judge.

         This matter is before the Court on the motions in limine filed by Plaintiff (Filing No. 74) and Defendants (Filing No. 81). The Court will grant the motions in part, and deny them in part, as set forth below.

         I. Plaintiff's Motions in Limine

         Plaintiff moves the Court for an order in limine to prevent Defendants from offering any evidence or testimony regarding: (1) Plaintiff's criminal history on the basis that any of his felony convictions are more than ten years old, Fed R. Evid. 609(b); (2) Plaintiff's work conduct at any job before or after this accident because Plaintiff is not presenting a claim for future wage loss, Fed.R.Evid. 401, 403; and (3) Plaintiff's alcohol detox and/or treatment, Fed.R.Evid. 403. (Filing No. 74).

         As to (1), Defendants argue that it is premature for the Court to rule on the admissibility of Plaintiff's criminal history until the time of trial. Defendants further argue that Plaintiff's felony conviction will be admissible as impeachment evidence under Fed.R.Evid. 609(a)(1) because Plaintiff was released from confinement less than 10-years ago and the Rule 403 balancing test weighs in favor of its admissibility. (Filing No. 84). Rule 609(a)(1) provides that evidence of a crime “punishable by . . . imprisonment for more than one year . . . must be admitted, subject to Rule 403, in a civil case . . .” to attack a witness's credibility. Fed.R.Evid. 609(a)(1)(emphasis added). Rule 609(b) provides that, “if more than 10 years passed since the witness's conviction or release from confinement for it, whichever is later, ” a felony conviction may nevertheless be admissible if “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and if the proponent provides the opposing party with reasonable notice of its use. See Fed.R.Evid. 609(b)(emphasis added). During the Final Pretrial Conference, counsel represented to the Court that Plaintiff's felony conviction, for burglary or other theft-related offense, was in 2008, but he was released from confinement from that conviction less than 10-years ago. Therefore, Rule 609(b) is inapplicable. Pursuant to Rules 609(a)(1) and 403, the Court finds that Plaintiff's credibility is important to the issues in the case and, at least at this time, it appears that evidence of this felony conviction is admissible to impeach Plaintiff as its probative value outweighs any prejudice. Accordingly, the Court will deny Plaintiff's motion as to (1) subject to reassertion at trial.

         Defendants object to (2) because, although Plaintiff withdrew his claim for future lost wages, he still is claiming past lost wages in the amount of $110, 000. Defendants assert that testimony from Plaintiff's past employers as to the employability of Plaintiff is relevant to his claim that he would have stayed at his employer for the duration that he claims and to show the unreasonableness of the amount he seeks for past wages. The Court finds that Plaintiff's work performance and employability are relevant to his claim for past lost wages, and will therefore deny Plaintiff's motion as to (2) subject to reassertion at trial.

         Defendants do not object to Plaintiff's motion as to (3) to the extent the topic is not admissible in and of itself. Therefore, the Court will grant Plaintiff's motion in limine as to (3), subject to reconsideration at trial if Plaintiff places its relevance at issue.

         II. Defendants' Motions in Limine

         Defendants move the Court for an order in limine to prevent Plaintiff from offering evidence or testimony regarding: (1) the existence of liability insurance or insurance coverage indemnifying Defendants or Plaintiff for damages that may be awarded as a result of a judgment in this matter, and regarding the payment of workers' compensation benefits to Plaintiff following the accident in this case, Fed.R.Evid. 411, 401, and 403; (2) the alleged danger or threat that semi-trucks or tractor-trailers pose to other drivers on public roadways, Fed.R.Evid. 411, 401, 403; (3) Plaintiff's claim for $110, 000 in past lost wages as it is speculative and unparticularized and was not pled; (4) Plaintiff's claim for loss of future earning capacity; (5) Plaintiff's claim for any property damage; (6) a certain video tape produced for Hoy Trial Lawyers; (7) Plaintiff's cancer diagnosis following the accident and any alleged relation to the accident; (8) medical bills incurred by Plaintiff after March 30, 2016; (9) any report, opinion, or testimony from any of Plaintiff's retained or non-retained expert witnesses that are not identified as a testifying witness for trial, including, but not limited to, Dr. James Brunz; (10) any photographs, and/or other documents that were not disclosed or produced by Plaintiff; and (11) any witnesses that Plaintiff did not properly disclose pursuant to Rule 26(a).

         Plaintiff does not object to (1), (2), (4), (8), (10), or (11), and therefore the Court will grant Defendants' motions as to those items.

         Plaintiff objects to (3) because he disclosed past lost wages in his Answers and Responses to Defendants' Interrogatories and Request for Production of Documents (First Set) served August 22, 2017, and in his trial exhibits. Plaintiff has at least one exhibit addressing his claim for past lost wages, and the Court cannot say at this time that Plaintiff's claim is so speculative or unsupported that he should be precluded from presenting his evidence on that claim. The Court will deny Defendants' motion as to (3).

         As for (5), Plaintiff agrees he is not asking for an award of property damage but asks to show the jury the amount of property damage as a part of his proof of the mechanism of injury. While the probative value of the evidence is somewhat limited, the Court cannot say at this time that Defendants will be unduly prejudiced given the evidence will be submitted to the jury for this limited purpose. Therefore, the Court will deny Defendants' motion as to (5).

         Plaintiff objects to (6) because the video shows in part the inside of the truck's cab and the height of the bed and is relevant to show the mechanism of injury that caused Plaintiff's injuries. As discussed during the Final Pretrial Conference, Defendants' motion as to (6) will be granted in part; the video will be admissible with the limitation that any audio or other commentary by Plaintiff's counsel must be redacted or omitted.

         As to (7), Plaintiff agrees that his cancer diagnosis is not related to the accident and will not seek to introduce evidence claiming the contrary, but maintains his cancer diagnosis may be relevant for other purposes. Specifically, Plaintiff's previous opioid addiction may be put at issue and therefore evidence that he was recently diagnosed with cancer and prescribed opioids as a result may ...

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