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Guy v. Fornea 5, LLC

United States District Court, S.D. Mississippi, Eastern Division

February 14, 2017

ROBERT E. GUY PLAINTIFF
v.
FORNEA 5, LLC DEFENDANT

          ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons and in the manner provided below, the Court grants in part and denies in part Defendant's Motion in Limine [46].

         A. Evidence Not Disclosed During Discovery

         First, Defendant made a scattershot request to exclude “any witness, testimony, documents or evidence not previously identified during discovery, ” listing a few broad categories of evidence. Additionally, Defendant specifically seeks to exclude the following evidence: a death certificate, testimony from any witness other than Robert Guy, any document not identified in Plaintiff's response to Interrogatory No. 7, and any economic damages not identified in Plaintiff's response to Interrogatory No. 15.

         This Court has explained the rules regarding disclosure of evidence, including expert testimony, on numerous occasions. See, e.g. Walker v. Target Corp., 2016 U.S. Dist. LEXIS 172138, at *2-*3 (S.D.Miss. Dec. 12, 2016); Barnett v. Deere & Co., No. 2:15-CV-2-KS-MTP, 2016 U.S. Dist. LEXIS 123114, at *2-*6 (S.D.Miss. Sept. 11, 2016); Seibert v. Jackson County, No. 1:14-CV-188-KS-MTP, 2015 U.S. Dist. LEXIS 113106, at *3-*6 (S.D.Miss. Aug. 26, 2015). The Court has likewise explained the analysis to determine whether undisclosed evidence should be excluded from trial. See, e.g. Walker, 2016 U.S. Dist. LEXIS 172138 at *2-*3; Emerald Coast Finest Produce Co. v. Sunrise Fresh Produce, LLC, No. 2:14-CV-166-KS-MTP, 2016 U.S. Dist. LEXIS 57403. *4-*8 (S.D.Miss. Apr. 29, 2016).

         Among other things, the Court must consider the importance of the evidence and the potential prejudice to the party seeking exclusion - determinations that can not be made with regard to broad categories, rather than specific items, of evidence. Therefore, in the absence of more detailed argument from Defendant as to specific evidence to be introduced at trial - whether in the form of testimony, documents, or otherwise - this request is denied without prejudice. The Court notes, though, that the issue appears to be moot, insofar as Plaintiff's counsel represented in briefing that he has identified all evidence that he plans to introduce at trial.

         The Court grants Defendant's request to exclude any “statement that Defendant failed to call any particular witness available equally to all parties herein.” An “adverse inference is not appropriate when the witness is equally available to both parties.” United States v. Heard, 709 F.3d 413, 421 (5th Cir. 2013); see also Smith v. State Farm Mut. Auto. Ins. Co., No. 2:13-CV-35-KS-MTP, 2014 U.S. Dist. LEXIS 40994 at *3-*5 (S.D.Miss. Mar. 27, 2014). But determining whether a witness is“equally available” to both sides is not always a straightforward question. See, e.g. United States v. MMR Corp., 907 F.2d 489, 501-502 (5th Cir. 1990). Therefore, if any attorney plans to make any such argument or statement, they must first raise the issue outside the presence of the jury so the Court can determine whether the uncalled witness is actually “equally available” to both sides.

         B. Property Damage Settlement

         Defendant requests that the Court exclude any evidence of Plaintiff's property damage settlement with any insurer or party, pursuant to Rule 408's prohibition of evidence of compromise offer and negotiations. In response, Plaintiff represents that he presently has no intention of offering such evidence, but that if he does, he will offer it pursuant to the exceptions of Rule 408(b). Defendant's request is granted pursuant to Rule 408(a). Fed.R.Evid. 408(a). If Plaintiff intends to offer evidence of any compromise offer or negotiation pursuant to the exceptions of Rule 408(b), his counsel shall bring it up at trial outside the jury's presence.

         C. Miscellaneous Records

         Defendant seeks the exclusion of all evidence of its driver's (Thomas J. Owens) history and records related to his training, employment, personnel matters, criminal arrests or convictions, traffic citations, medical conditions, alcohol or drug use, and driver qualifications. The Court can not assess the admissibility of evidence that is not before it. Therefore, the Court denies this request without prejudice to Defendant's right to raise it again at or before trial with respect to specific items of evidence.

         D. “Good Driver” Evidence

         Defendant seeks to exclude any testimony that Plaintiff was a “good driver” or any evidence of prior acts introduced as character evidence, pursuant to Rule 404. However, Defendant contends that prior and subsequent acts of Plaintiff should still be admissible under Rule 406 as evidence of a habit or routine practice. Defendant has not directed the Court to any specific evidence, and the Court can not assess the admissibility of evidence not before it. This request is denied without prejudice to Defendant's right to raise it again at or before trial as to specific items of evidence.

         E. ...


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