United States District Court, D. Nevada
OMNIBUS ORDER ON
MOTIONS IN LIMINE [DOCS. 183, 184, 185, 186, 187, 188, 189, 190], AND MOTION FOR
LEAVE TO FILE SUPPLEMENT [DOC. 213]
JENNIFER A. DORSEY, District Judge.
This is a product-liability crashworthiness case. Doc. 33. Plaintiff Nicole Thompson generally alleges that on April 27, 2007, she was driving a 1998 Dodge Neon in Las Vegas, Nevada, when another vehicle swerved into her lane and struck the side of her car. Id. at 4. The force of the collision caused Thompson's vehicle to veer off of the road, where it first struck the curb and then a large power pole "virtually head on" at approximately 27 miles per hour. Id. The driver and passenger-side airbags in Thompson's car did not deploy, and Thompson suffered personal injuries. Id.
Thompson sued airbag-system designer and manufacturer TRW Automotive U.S. LLC ("TRW") and seatbelt manufacturers Autoliv Safety Technology, Inc., and Autoliv ASP, Inc. (collectively, "Autoliv") for negligence, gross negligence, negligence per se, and product defects, theorizing that the seatbelt and airbag systems were defective, fell below industry standards, and proximately caused her "massive, life-threatening, and permanent injuries." See generally id. She settled the seatbelt claims and dismissed all claims against Autoliv in 2011, Docs. 74, 78, 79, leaving TRW as the only remaining defendant.
In anticipation of trial, Plaintiff and TRW have filed motions in limine seeking dozens of evidentiary rulings. Finding that all of these motions can be resolved without oral argument in accordance with Local Rule 78-2, the Court considers each of the motions herein.
A. Motions in Limine
Although the Federal Rules of Evidence do not explicitly authorize motions in limine, the trial courts' general authority to manage trials permits trial judges to rule on evidentiary issues before the start of trial. Pretrial consideration of evidentiary issues serves to avoid the futile attempt of "unring[ing] the bell" when jurors have seen or heard inadmissible evidence, even when stricken from the record. Motions in limine may also save expensive trial time because ruling on evidentiary disputes in advance minimizes side-bar conferences and other disruptions at trial, and potentially obviates the need to call certain witnesses.
These policy considerations must be weighed against the loss of the court's ability to consider evidence in the context of the trial when the court is "better situated... to assess the value and utility of evidence." Limine rulings are provisional; they are "not binding on the trial judge [who] may always change [her] mind during the course of a trial." "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." With these principles in mind, the Court addresses these motions in limine in turn.
B. Plaintiff's First Omnibus Motions in Limine (Doc. 183)
1. Thompson's Parents' Unsuccessful Claims
Thompson first notes that her parents, Shirley and Dennis, originally filed intentional infliction of emotional distress claims in this suit after witnessing their daughter suffer a massive stroke in front of them. Doc. 33 at 14-16. Their claims were dismissed on summary judgment. Docs. 48, 183 at 2. Thompson asks the Court to preclude any evidence of those failed claims under Rules 401, 402, and 403, and TRW represents that it has no intention of introducing evidence of Thompson's parents' lawsuit and prior claims, and that it will approach the bench if it changes its mind at trial. Doc. 205 at 2. TRW's response leaves no controversy in this regard for the Court to resolve. Accordingly, the motion in this regard is denied without prejudice.
2. Plaintiff's Autoliv Claims and Settlement
Plaintiff's Amended Complaint alleges that Autoliv-the manufacturer of the seatbelt in Plaintiff's vehicle-is also responsible for her injuries. Doc. 33 at 3-10. Plaintiff settled with Autoliv for an undisclosed amount, and she asks the Court to "exclud[e] any reference (i) to" Autoliv, "(ii) to the previous state court actions, or (iii) to any settlements" with the Plaintiff. Doc. 183 at 22-23. TRW responds that it has no intention of introducing evidence of the Autoliv settlement and its amount, but Autoliv's role in Plaintiff's injuries remains fair game. Doc. 205 at 3-4. Indeed, this Court has previously rejected Plaintiff's argument that the approval of her good-faith settlement with Autoliv prevents TRW from pointing the finger at Autoliv and its seatbelt design. See Doc. 208 at 5-8. Evidence of any settlement and its amount are plainly inadmissible. However, as the Nevada Supreme Court explained in Banks, this defendant may attempt to establish that "the entire responsibility" for Thompson's "injuries rests with nonparties, including those" like Autoliv, "who have separately settled their liabilities with the plaintiff." TRW must do so without referencing Autoliv's settlement or its amount. Accordingly, this motion is granted in part.
3. Collateral Source Evidence
Thompson argues that although TRW has already agreed to redact all insurance information from medical records it will likely introduce at trial, "out of an abundance of caution" she requests a formal order that the collateral source rule will be applied in this case. Doc. 183 at 23. Specifically, Thompson points to TRW's proposed exhibits 548, 551, and 553. Id. at 24. In response, TRW argues that it does not intend to introduce evidence that TRW was or was not insured, and promises to approach the bench before attempting to introduce Exhibits 548, 551, and 553 in any event. Doc. 205 at 5.
Under Federal Rule of Evidence 411, "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control." It appears that the collateral source issue has been resolved by agreement of the parties as to the three exhibits identified in this motion, and any further application of this rule is best reserved for trial when the Court will have greater context. Thompson's motion in limine in this regard is denied as moot.
4. Thompson's Chrysler Lawsuit
Thompson next notes that she sued the vehicle's manufacturer, Chrysler, in Nevada state court, and that separate lawsuit was stayed due to Chrysler's bankruptcy filing. Doc. 183 at 24. She contends that no evidence of that lawsuit should be introduced at this trial because Chrysler is not a party to this lawsuit,  and TRW should not be permitted to use an empty-chair defense against Chrysler because its bankruptcy precludes Plaintiff from every recovering against the car manufacturer. TRW cites to the Nevada Supreme Court's decision in Banks v. Sunrise Hospital for the proposition that it has the unfettered right to blame Chrysler for Plaintiff's injuries, and when Plaintiff's own approach to this case has been to blame Chrysler, Autoliv (the now-settled-out seatbelt manufacturer), and TRW, her allegations against those other parties are now judicial admissions that she and her experts cannot avoid. Doc. 205 at 6-8.
TRW's reliance on Banks is misplaced. Banks interprets and applies two Nevada statutes that have no application in this Chrysler discussion: NRS § 17.245, which provides the effect of a release or a covenant not to sue against a joint tortfeasor (there is no evidence that plaintiff gave Chrysler a release or covenant), and NRS § 41.141, Nevada's comparative negligence statute (which has no relevance to a third-party liability argument or in a strict or products-liability suit such as this one). Banks does not address the admissibility of claims asserted in a separate lawsuit against a co-tortfeasor. It does suggest, however, that when a plaintiff is proceeding against "an additional tortfeasor, " the court has an obligation "to prevent improper speculation by the jury" and thus should place limitations on the information about any empty chair defendant.
The difficulty with Plaintiff's argument that her allegations against Chrysler should be subject to a blanket exclusion is that Plaintiff, herself, gives Chrysler an active role in her allegations against TRW in this case. She contends "that Chrysler could not reasonably have been expected to understand how TRW's suppression feature would work and under what circumstances the airbags would be suppressed, " that TRW failed to disclose key information to Chrysler, "that TRW should have immediately realized"-based on the "misrepresentations" in Chrysler's owner's manual-that "Chrysler didn't understand" how its airbag system would function in a frontal collision, and that TRW never asked Chrysler to correct those misrepresentations. Doc. 183 at 8. She argues in this motion that "one of the central issues to be decided in the case will be whether or not this was a condition requiring warning and whether or not TRW had failed to warn the public." Id. at 28. When Plaintiff has given Chrysler such an active role in her allegations against TRW, she cannot seriously argue that TRW should not be permitted to introduce evidence of Chrysler's roles and responsibilities with respect to the vehicle's components relevant to her own claims and theories or place the blame for those allegations on Chrysler.
But TRW can offer evidence of Chrysler's roles and responsibilities without referencing Plaintiff's lawsuit against Chrysler-which this Court finds has a risk of confusing the jury and should therefore be excluded. This case and TRW's defenses can be fully addressed and presented without mentioning that Plaintiff filed a lawsuit against Chrysler or what the outcome (or nonoutcome) of that lawsuit was. Just as the Banks court found that settlement details with codefendants should be excluded "to prevent improper speculation by the jury, " this Court concludes that evidence that Plaintiff filed a lawsuit against Chrysler is more prejudicial than probative of any fact at issue in this litigation because it risks confusion of the issues. Therefore, this request is granted in part; evidence that Plaintiff filed a lawsuit against Chrysler will be excluded from trial under FRE 403.
C. Thompson's Second Omnibus Motion in Limine to Exclude Evidence, Testimony and Arguments of Defense Counsel (Doc. 184)
1. Sled Testing Evidence
Plaintiff's expert Charles Benedict opines that the seatbelt retractor in Plaintiff's vehicle "failed to lock during the accident" and the airbag system was defective, and "but for" either of these defects, Plaintiff "would not have experienced hyperextension of her head and neck." Doc. 205-1 at 4-5. He relies, in part, on his conclusion that "[t]here was stress evidence on the driver's side restraint webbing with significant abrasions, puckering and creasing" that "correlate with the latch plate location when the restraint is worn by" the Plaintiff. Id. at 3. TRW's seatbelt expert Michael Klima rebuts Benedict's opinions. He relies, in part, on sled testing performed using a crash test dummy to test the seatbelt impact allegations Benedict relied on in forming his opinions. See Doc. 205-8 at 3. Based on his "experience, " "inspection of the Plaintiff's car, "the exemplar Dodge Neon vehicle inspection, sled demonstrations performed for this matter, and material" he has "reviewed to date, " he concluded that "there is no physical evidence that the driver's seat belt restraint system failed to function properly, " and "Ms Thompson" was not wearing her seat belt at the time of the crash. Id. at 5. Thompson moves to exclude the sled testing evidence because it was not conducted on the exact same conditions present in this crash and crash test dummies "behave nothing like an actual human being." Doc. 184 at 3.
Plaintiff overstates the relevance and intended use of this testing evidence. TRW's expert relies on this sled testing evidence to evaluate not the complete theory of the crash but a single conclusion by Plaintiff's expert that markings on the seat belt evidence its use in the crash. Klima testified at his deposition that he does not intend to suggest the sled demonstration is a replica of the accident; he was using the testing as "a tool to do a comparative of the physical evidence." Doc. 205-7 at 4-5 ("It's not intended to try to replicate any specific collision event but it is a fair representation of the amount of energy that an occupant could impart into a restraint system."). Plaintiff's complaint that the testing conditions are not sufficiently similar to the accident conditions misses the point. Testing must be similar in all respects only when offered "as direct proof of negligence, a design defect, or notice of the defect." The Court is persuaded by the Seventh Circuit's reasoning when upholding the inclusion of sled-testing results under similar circumstances in Gilbert v. Cosco, Inc.:
The sled tests were relevant evidence because they demonstrated physical principles that formed a basis for [defendant's] expert opinion and contradicted the opinion of the [plaintiffs'] expert witness.... When tests are allowed into evidence for limited purposes, the jury should be "carefully instructed as to the extent to which they can use and consider tests of this kind." Such an instruction helps prevent undue prejudice.
Any concern that the sled testing may mislead the jury should be sufficiently eliminated by a limiting instruction informing the jury that the sled testing is only relevant to the extent that it tests plaintiff's expert's opinion. Should Plaintiff desire such an instruction, Plaintiff must submit the proposed instruction to the Court prior to the introduction of this evidence and remind the Court of the need to read the instruction immediately in advance of the evidence. Although presentation of this evidence may take time, the Court is not persuaded that this evidence will result in an undue delay or waste of time. And to the extent that Plaintiff argues that any seatbelt evidence is no longer relevant because she has settled her claims with the seatbelt manufacturer, this Court has already ruled that the seatbelt evidence remains relevant in this case because the seatbelt-defect allegation has been inextricably intertwined with the airbag system defect theory in the complaint and Plaintiff's experts' opinions. See Doc. 208 at 6-7.
Plaintiff's request to exclude the sled testing evidence is denied.
2. Surrogate Modeling
Thompson seeks to exclude evidence of surrogate modeling performed by TRW's biomechanical expert, Elizabeth Raphael. Doc. 184 at 9. She argues that the surrogate testing-relied on by TRW's expert Benedict in his opinions, should also be excluded because there are substantial differences between the way Thompson customarily positioned herself in her automobile and the way the "surrogate" was situated. Id. TRW responds that Raphael's work is consistent with that of Thompson's own biomechanic, who placed the driver closer to the wheel than was analyzed in Thompson's seatbelt expert's report. Doc. 205 at 10. TRW suggests that if Thompson is concerned that its surrogate modeling is not identical to how Thompson would have sat in the car, it can explore those differences on cross-examination. Id. at 10-11.
At this point, and based upon the information and arguments offered by the parties, the Court cannot conclude that TRW's surrogate modeling is so deficient that it-and any opinions that rely on it-should be excluded. Accordingly, the motion is denied, and the Plaintiff remains free to explore any differences or deficiencies in this modeling on cross examination and by presenting her own expert's surrogate-modeling evidence.
3. Plaintiff's Comparative Negligence
Thompson next seeks to prevent TRW from arguing that she was comparatively negligent because she did not wear her seatbelt at the time of the crash. She argues that NRS § 41.141(5) precludes a product manufacturer from arguing the plaintiff's comparative negligence in a products liability case, and that her good-faith settlement with Autoliv and the operation of NRS § 17.245 precludes TRW from arguing that she was contributorily negligent for failing to wear her seatbelt. Doc. 184 at 10-11. TRW responds that it acknowledges that the jury may not consider evidence of seatbelt use to determine liability, but this Court has already rejected Plaintiff's argument that her settlement with Autoliv bars evidence of seatbelt use. Doc. 205 at 11. Further, TRW contends that Thompson's assertion of a negligence claim and its pleading of the affirmative defense of contributory negligence give this defendant the opportunity to argue this defense, which cannot be eliminated with a mere motion in limine. Id. 
The Court agrees that Thompson's argument merely rehashes the very arguments rejected in this Court's previous order regarding seatbelt use. See Doc. 208. Although TRW may not argue that Thompson is responsible for her own injuries because she was not wearing her seatbelt-a limitation that TRW acknowledges-TRW can rebut Plaintiff's theories with its own theories, which include the opinion that she was not wearing her seatbelt. As this Court has previously held, Plaintiff may offer a limiting instruction on the use of the seatbelt evidence. Doc. 208 at 7-8. A proper limiting instruction should cure any of Plaintiff's purported concerns, and her motion in limine in this regard is denied.
4. TRW's Thruster Testing
Thompson next seeks to exclude evidence that TRW's post-accident testing of the AECM device revealed that it was fully functional at the time of the crash. Thompson argues that she does not dispute that the device was functioning at the time of the crash; her theory is that the problem was not that it did not function as intended but that the as-intended design of the component is defective. Doc. 184 at 12. She contends that allowing the introduction of the thruster results will confuse the jury and unnecessarily increase the length of what is already going to be a long trial with irrelevant evidence. Id. at 13. TRW responds that it must be permitted to defend itself by demonstrating that the system operated as Chrysler specified and in accordance with the design called for by Chrysler. Doc. 205 at 13.
Plaintiff acknowledges in her own characterization of her key contentions in this case that she claims "that TRW had included an airbag suppression feature Chrysler never requested, " Doc. 183 at 7, thus Chrysler's specifications-and TRW's compliance with them-are relevant. Plaintiff has not demonstrated that the thruster-testing evidence will be so voluminous that it will unnecessarily elongate this trial or that the jury will be confused by it. Accordingly, Plaintiff's motion in this regard is denied.
5. Dr. Mark Kabins's Criminal Conviction
Thompson next seeks to exclude evidence that her orthopedic surgeon pled guilty to, and was convicted of misprision of felony in 2010, resulting in probation. Doc. 184 at 14. Thompson contends that this conviction has no relevance in this case and should be excluded under FRE 403. In response, TRW claims that Dr. Kabins is expected to testify regarding Thompson's medical damages, including a back surgery Kabins performed on the very day that he was sentenced. Doc. 205 at 14. Since Kabins's conviction required the Court to find a knowing and affirmative act of concealing a felony, for which a conviction may be more than one year in length, it is properly admissible under Federal Rule of Evidence 609(a)(1) or 609(a)(2). Id. at 14-15.
Federal Rule of Evidence 609 provides that, subject to Rule 403, the Court must admit evidence of "a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year... in which the witness is not a defendant." Additionally, it must be admitted "for any crime... if the court can readily determine that establishing the elements of the crime required proving-or the witness's admitting-a dishonest act or false statement." Dr. Kabins's conviction is just four years old, and one of the elements of misprision of a felony is the active concealment of a crime. An affirmative step to conceal a felony is more than an omission; it is an act from which dishonesty can be inferred, rendering it admissible under both FRE 609(a)(1) and (a)(2). Plaintiff has not demonstrated that evidence of this conviction is more probative than prejudicial in this case in which her medical condition is highly relevant and this physician's testimony about it will be central to her damages. However, the Court has no desire to turn Dr. Kabins's conviction into a sideshow. Accordingly, the evidence in this regard will be limited to referencing only that Dr. Kabins has been convicted of the felony of misprision of a felony and listing the elements of that felony offense.
6. The Non-human Hair on the Mirror of the Car
Thompson argues that it has been "scientifically established" that hair samples found on the rearview mirror of her car were not human, but from a cat. Doc. 184 at 15. Thus, "all photographs containing the hair on the mirror, and all mention of such hair to prove that" Plaintiff "struck her head on the mirror, should be excluded" as "legally irrelevant and of no probative value whatsoever." Id. TRW responds that it will not introduce the hair-on-the-mirror evidence and will approach the Court if it changes its mind. Doc. 205 at 16. As there appears to be no controversy on this topic for this Court to resolve, the motion in this regard is denied as moot.
7. Engineering Standards, Performance Standards, and Government Requirements
Thompson next seeks to exclude all engineering standards, performance standards, and government requirements except "Chrysler's Performance and Engineering standards of the AECM and airbag only, providing that the appropriate foundation can be laid...." Doc. 184 at 18 (emphasis in original). She argues that any other standards and requirements regarding the Dodge Neon are irrelevant to this very targeted claim against TRW, and such documentation should be excluded under the evidentiary rules regarding relevancy. Id. In response, TRW argues that evidence of the car's compliance with safety standards is generally relevant, and it is impossible to respond to a request to exclude "other" safety standards without knowing in advance what particular standards Plaintiff is seeking to exclude. Doc. 205 at 16-18.
Plaintiff has not demonstrated that any and all standards and regulations are irrelevant and should be excluded at trial, and she has not carved out-with sufficient specificity-which standards and regulations she finds admissible and inadmissible. Accordingly, the Court denies this motion without prejudice to Plaintiff's ability to raise specific objections regarding such standards and regulations at trial where the Court can better address this issue in appropriate context.
8. Plaintiff's Social Network Postings
Thompson next asks to exclude her posts to Facebook and other social networking accounts as irrelevant and more prejudicial than probative. Doc. 184 at 19. She argues that the postings may unfairly mask the emotional distress she is suffering. Id. at 20. She offers examples of cases in which trial courts have excluded or limited the scope of social networking postings. Id. at 20-21. She asks the Court to cull through nearly a thousand pages of postings (and some not even produced at the time the motion was filed) to determine their admissibility. TRW responds that the postings are relevant to Thompson's claims that the accident has caused her severe physical injuries, emotional distress, and impaired her quality of life. Doc. 205 at 19. It offers opinions from other trial courts that have recognized the relevance of social networking evidence and argues that there is "no basis for universally excluding all social networking data." Id. at 20.
Evidence of social networking postings is not subject to heightened admissibility standards simply because of its nature. Photos and similar postings about Thompson's physical and emotional condition and lifestyle are relevant to her claims, and If TRW can demonstrate its admissibility under the rules of evidence, this material may likely be admissible. However, some limitations on this evidence is appropriate to ensure that it does not unduly delay the trial. The Court is not inclined to pour through hundreds of pages of social media postings without any indication of which pages, if any, any party intends to introduce at trial, and it appears that additional evidence has been exchanged (or ordered to be produced) since Plaintiff filed this motion. Accordingly, the parties are hereby ordered to meet and confer on this topic before trial. Plaintiff and Defendant shall both identify for the other the specific pages they will seek to introduce. If agreement about the admissibility cannot be reached, then any party seeking to introduce this evidence must submit the specific pages to the Court for review no less than 48 hours before seeking to use this information at trial. The Court will defer any ruling on this issue until such time as the parties have completed this meet-and-confer requirement.
9. Plaintiff's Tattoos
Thompson next asks the Court to prevent the jury from seeing her tattoos because "unfair prejudice to the plaintiff is more probable than not if the jury is allowed to see her tattoos." Doc. 184 at 26. In response, TRW argues that it "has no intention of and no interest in denigrating [Thompson] because of her tattoos, " but a blanket exclusion of any such evidence will result in the exclusion of all photos of the Plaintiff except those staged by Plaintiff's counsel for this litigation. Doc. 205 at 21.
Plaintiff has not demonstrated any reason for this Court to make the blanket ruling she suggests. Indeed, her request is lacking in the most important information for this Court-the nature and location of the tattoos that she claims a jury will judge her for. As the Plaintiff has not given this Court all the information it needs to determine the prejudicial nature of her tattoos, the motion is denied.
10. Evidence of Prescription Antibiotics Found in Plaintiff's Car
The last request in Thompson's Second Omnibus motion is to exclude evidence that a bottle of prescription antibiotics was found in her car after the accident because physical condition at the time of the accident has no bearing on her recovery in this case; even if the evidence is marginally probative, its prejudicial effect greatly outweighs this value such that the evidence must be excluded. Doc. 184 at 26. In response, TRW argues that it has no intention of offering evidence of the antibiotics found in Thompson's car at this time. Doc. 205 at 22. TRW will be held to its representation, and with no controversy on this point, the Court denies Thompson's motion in limine in this regard.
11. Motion for Leave to File Supplement to Doc. 184 (Doc. 213)
Thompson also moves for leave to file supplemental authority into the Court supporting her omnibus motion. Doc. 213. This "authority" consists of an opinion issued by the Supreme Court of Texas, issued on March 28, 2014, which was not available to Thompson at the time she filed her original motion in limine. Doc. 213-1 at 7. Thompson claims this opinion relates to whether TRW can properly rely on compliance with specific federal standards to support its defense that its airbag functioned normally. Id. Opinions from the Supreme Court of Texas are persuasive in nature only. The Court finds no compelling reason to consider this supplemental authority, and Thompson's motion for leave to file this supplement is denied.
D. Thompson's Third Omnibus Motion in Limine to Exclude Evidence, Testimony and Arguments of Defense Counsel (Doc. 189)
1. Preclude TRW's Statements Contradicting its Rule 36 Admissions
Thompson argues that TRW should be precluded from "attempting to deny, alter, amend, or modify" specific statements contained in TRW's Rule 36 Requests for Admissions. Doc. 189 at 2. Specifically, these statements are:
A. As far as the AECM was concerned, the de-powered airbag made no difference in the function and calibration of the AECM (RFA No. 1 at 6:2-10).
B. The AECM in the Plaintiff's vehicle functioned exactly as designed (RFA No. 11, at 8:12-15).
C. TRW is in the business of making, designing and manufacturing airbags and airbag components. ...