United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Michael D. Nelson, United States Magistrate Judge.
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.
Plaintiff's Motions in Limine
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).
(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.
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.
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.
Defendants' Motions in Limine
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).
does not object to (1), (2), (4), (8), (10), or (11), and
therefore the Court will grant Defendants' motions as to
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).
(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).
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.
(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 ...