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Pitman v. Ameristep Corp.

United States District Court, E.D. Missouri, Northern Division

November 3, 2016

DENNIS D. PITMAN, Plaintiff,
v.
AMERISTEP CORPORATION, et al., Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff's Motion and Brief in Support of Motion to Compel Attendance at Trial [ECF No. 84], Plaintiff's Daubert Motion to Exclude the Testimony of Marc Zupan, George Saunders, and Lorne Smith [ECF No. 64], Defendants' Motions in Limine [ECF No. 75, 86], and Plaintiff's Motion in Limine to Exclude Lack of Prior Accidents Evidence [ECF No. 89].

         I. Plaintiff's Motion and Brief in Support of Motion to Compel Attendance at Trial [ECF No. 84].

         Plaintiff requests the court compel Jeremy Lees to attend and testify at trial. According to Plaintiff, Mr. Lees was an employee of Ameristep and was intimately involved in the design of the ratchet straps at issue. Although Mr. Lees is outside of the 100 miles contemplated by the Federal Rules of Civil Procedure, Plaintiff requests his attendance at trial because only live attendance can provide the jury with the tools to hear and evaluate his testimony.

         At the pretrial conference, Plaintiffs stated to the Court they do not have an address for Mr. Lees or any way of contacting him to serve a subpoena for attendance at trial. Additionally, Defendants stated they have designated another Rule 30(b)(6) witness to testify at trial, and this will eliminate any potential prejudice to Plaintiff. Therefore, the Court will deny Plaintiff's Motion to Compel Mr. Lee's attendance at trial.

         II. Plaintiff's Daubert Motion to Exclude the Testimony of Marc Zupan, George Saunders, and Lorne Smith [ECF No. 64].

         Plaintiff asserts the Court should exclude the testimony of three of Defendants' experts: Marc Zupan, George Saunders, and Lorne Smith, because they lack sufficient expertise to present testimony, their opinions are cumulative, and their opinions about foreseeable misuse would only confuse and mislead the jury and waste the Court's time. Defendants have assured the Court their experts will only testify to the areas of their expertise and there will be minimal repetitive testimony among the three experts.

         Defendants' experts are qualified to testify regarding their respective fields. Mr. Zupan is qualified to testify about materials analysis, Mr. Saunders is qualified to testify about tree stands, and Mr. Smith is qualified to testify about hunting safety and proper use of tree stands. There may be some overlap between their opinions because they relied upon each other's opinions, but this should be minimal. Therefore, the Court will deny Plaintiff's Motion to Exclude.

         III. Defendants' Motions in Limine [ECF No. 75, 86].

         Defendants asserted five motions in limine. First, Defendants assert the Court should exclude any testimony or evidence of prior claims made against Defendants for breaking ratchet straps. Defendants assert evidence of prior claims regarding similar ratchet straps will confuse the jury and result in five mini trials. Defendants argue introduction of this evidence would be a significant waste of time, unduly prejudicial and would confuse and mislead the jury.

         The Court agrees introduction of this evidence will result in five mini trials and juror confusion. However, some of this evidence may be used on cross-examination against Defendants' experts who have testified in similar cases and made determinations on the subject of age and condition of straps. The Court will allow Plaintiff to raise relevant issues through cross-examination, but Plaintiff may not introduce evidence of prior claims in his case-in-chief.

         Second, Defendants assert Plaintiff's failure to preserve evidence should result in sanctions. According to Defendants, Plaintiff consciously chose to destroy most of the evidence including the tree stand, safety harness, stick ladder, and safety steps. Defendants argue this evidence is crucial to the case and its destruction harms the defense. Defendants ask the Court for a negative inference.

         The Court will not grant the motion at this time, but the destruction of evidence is concerning. Depending on how the evidence develops at trial, the Court may give a negative inference through a jury instruction. Defendants may inform the jury in opening statement of Plaintiff's actions and cross-examine him about disposal of these objects.

         Third, Defendants request Plaintiff be precluded from presenting speculative evidence to support any claim for damages for wage loss and loss of future earnings capacity. Defendants assert Plaintiff must present substantial evidence which he cannot do. Therefore, according to Defendants, he should not be ...


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