United States District Court, E.D. Missouri, Northern Division
DENNIS D. PITMAN, Plaintiff,
AMERISTEP CORPORATION, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.
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].
Plaintiff's Motion and Brief in Support of Motion to
Compel Attendance at Trial [ECF No. 84].
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.
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.
Plaintiff's Daubert Motion to Exclude the Testimony of
Marc Zupan, George Saunders, and Lorne Smith [ECF No. 64].
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.
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.
Defendants' Motions in Limine [ECF No. 75, 86].
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.
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.
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.
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.
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