United States District Court, S.D. Mississippi, Northern Division
ORDER REGARDING PLAINTIFFS' MOTION IN
T. WINGATE, UNITED STATES DISTRICT COURT JUDGE
THIS COURT is the Plaintiffs' Motion in Limine
[Docket no. 245]. Plaintiffs seek an order
from this court excluding various categories of evidence
during a jury trial in this matter. Plaintiffs did not file a
memorandum brief in support of their motion in limine and the
motion in limine itself does not cite any authority for the
exclusions of the categories of evidence.
oppose such motion by response in opposition and memorandum
brief. Defendants here are Suzuki Motor Corporation
(hereinafter referred to as “SMC”) and Suzuki
Motor of America, Inc. (hereinafter referred to as
Motion in Limine Standard
States District Court Judge Debra M. Brown stated succinctly
the standard for a motion in limine.
“The purpose of a motion in limine is to allow the
trial court to rule in advance of trial on the admissibility
and relevance of certain forecasted evidence.”
Wechsler v. Hunt Health Sys., Ltd, 381 F.Supp.2d
135, 140 (S.D.N.Y. 2003) (citing Luce v. U.S., 469
U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984))
(emphasis omitted). “Evidence should not be excluded in
limine unless it is clearly inadmissible on all potential
grounds.” Fair v. Allen, No. 09-2018, 2011
U.S. Dist. LEXIS 27390, 2011 WL 830291, at *1 (W.D. La. Mar.
3, 2011); see also Hull v. Ford, No. C-05-43, 2008
U.S. Dist. LEXIS 3686, 2008 WL 178890, at *1 (S.D. Tex. Jan.
Harkness v. Bauhaus U.S.A., Inc., No.
3:13-CV-00129-DMB-SAA, 2015 U.S. Dist. LEXIS 17926, at *1-2
(N.D. Miss. Feb. 13, 2015).
court, after reviewing the pleadings, arguments of counsel,
and the relevant jurisprudence, makes the following rulings.
Categories Plaintiffs Seek to Exclude
seek to exclude several categories of evidence without
specific references to items of evidence or testimony. This
court will address each category individually below.
Jennifer Lind Testimony
seek to exclude the testimony of Jennifer Lind, who is the
mother of Preston Lind. According to defendants, plaintiffs
conducted a secret riding test of the subject motorcycle in
violation of a non-spoliation letter defendants tendered to
plaintiffs. The results of that secret testing were
purportedly favorable to defendants. Preston Lind is the test
rider who drove the subject motorcycle. Plaintiffs'
attorney, Mike Malouf, Jr. was the only other person present
at the secret riding test of the subject motorcycle. After
his test ride, Preston Lind died of unrelated causes.
Defendants later discovered the secret test ride and deposed
Jennifer Lind, who testified that Preston Lind said the
subject motorcycle had no mechanical problems when he test
state generically that Jennifer Lind's “testimony
is hearsay and not reliable” without citing the
specific testimony and/or statements that are excludable.
Plaintiffs also make the argument that Preston Lind was a
non-testifying consultant under the authority of Rule
26(b)(4)(D) of the Federal Rules of Civil Procedure.
responds that plaintiffs have failed to identify specific
evidence or testimony of Jennifer Lind and that this court
has already rejected plaintiffs Rule 26 objection on other
court is persuaded that Jennifer Lind's testimony, as
recited by the defendants, is relevant to whether the subject
motorcycle was experiencing mechanical failure. This court
must next address plaintiffs' hearsay objection. Hearsay
is “a statement that: the declarant does not make while
testifying at the current trial or hearing; and a party
offers in evidence to prove the truth of the matter asserted
in the statement.” Fed.R.Evid. 801. Hearsay is
generally excluded except where an exception applies.
See Fed. R. Evid. 802.
court finds that the residual exception may apply to Jennifer
Lind's expected testimony. Rule 807 of the Federal Rules
of Evidence provides:
(a) In General. Under the following circumstances, a hearsay
statement is not excluded by the rule against hearsay even if
the statement is not specifically covered by a hearsay
exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through
reasonable efforts; and
(4) admitting it will best serve the purposes of these rules
and the interests of justice.
(b) Notice. The statement is admissible only if, before the
trial or hearing, the proponent gives an adverse party
reasonable notice of the intent to offer the statement and
its particulars, including the declarant's name and
address, so that the party has a fair opportunity to meet it.
Fed. R. Evid. 807.
court has analyzed what it has of Jennifer Lind's
expected testimony in light of the mandates of Rule 807.
Jennifer Lind's statement may have circumstantial
guarantees of trustworthiness in that she is not a party to
this lawsuit and seemingly will gain no reward in testifying
about what her dead son said to her. This court finds further
that her testimony is Fed.R.Civ.P. 26 relevant evidence of
material fact - that plaintiffs' own expert did not find
any mechanical fault with the subject motorcycle - and that
it is more probative than any other evidence than can be
reasonably obtained by plaintiffs (with the possible
exception of the testimony of one of plaintiffs' attorney
which is also a subject of this motion in limine). Admitting
Jennifer Lind's testimony, this court finds, may best
serve the purposes of the Federal Rules of Evidence and the
interests of justice. Accordingly, this court recognizes that
the residual exception may apply, and, if so, and defendants
may call Jennifer Lind as a witness. Still, before this court
announces its final decision on this point, this court wants
to hear from Jennifer Lind and how, when, where, and before
whom, this alleged conversation occurred. Further, this court
wants to know what remuneration, if any, her son received
from plaintiffs, or was owed by plaintiffs at the time of his
death. This inquiry is to proceed out of the presence of the
jury before she is to testify.