United States District Court, S.D. Mississippi, Eastern Division
ROBERT E. GUY PLAINTIFF
FORNEA 5, LLC DEFENDANT
STARRETT UNITED STATES DISTRICT JUDGE.
reasons and in the manner provided below, the Court grants in
part and denies in part Defendant's Motion in Limine
Evidence Not Disclosed During Discovery
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.
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).
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.
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.
Property Damage Settlement
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
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.
“Good Driver” Evidence
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.