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Lipp v. Ginger C, L.L.C.

United States District Court, W.D. Missouri, Central Division

January 19, 2017

JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
v.
GINGER C, L.L.C., et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Before the Court is Plaintiffs' Motion in Limine to Exclude Evidence and/or Argument Related to Alcohol, Drugs, and Partying [Doc. 4');">431');">1');">4');">431');">1]. For the following reasons, the motion is granted in part and denied in part.

         I. Background

         Plaintiffs, the surviving parents of Jack Lipp, filed suit alleging negligence against Defendants Ginger C, five American Campus Communities entities (ACC), and Roland Management. The suit stems from Lipp's death, which occurred when he fell off a balcony at 507 South Fourth Street in Columbia, Missouri while attending a fraternity “rush” party.

         Plaintiffs anticipate Defendants will attempt to introduce evidence and/or argument that decedent Jack Lipp was intoxicated at the time leading up to his death. [Doc. 4');">431');">1');">4');">431');">1, 1');">1');">p. 1');">1]. Plaintiffs anticipate Defendants will proffer what Plaintiffs classify as circumstantial evidence in the following forms:

(1');">1) “[T]he testimony of five witnesses, who were admittedly so intoxicated at the time their competency to testify is genuinely disputed and did not actually observe Jack Lipp consume any alcohol or other intoxicant”;
(2) “[A] prior photograph of Jack Lipp holding a cup with unidentified liquid in it”; and
(3) “[T]he speculative notion that Jack Lipp must have been drinking because he was present at a college house party.”

Id. at 1');">1-2. Plaintiffs move to exclude this evidence under Fed.R.Evid. 4');">401');">1, 4');">403, and 601');">1.

         II. Discussion

         This Court has diversity subject matter jurisdiction and state law generally governs substantive issues and the Federal Rules of Evidence govern the admissibility of evidence. 28 U.S.C. § 1');">1652; Erie Railroad Co. v. Tompkins, 304');">4 U.S. 64');">4 (1');">1938); Potts v. Benjamin, 1');">1320');">882 F.2d 1');">1320, 1');">1324');">4 (8th Cir. 1');">1989). The evidence described above relating to alcohol, drugs, or partying could be relevant to the defense of comparative fault, which Defendants have asserted. Under the pure comparative fault principles adopted by Missouri in Gustafson v. Benda, 1');">1 S.W.2d 1');">11');">1');">661');">1 S.W.2d 1');">11');">1 (Mo. banc. 1');">1983), the injured party's own negligence is compared to that of the negligence of defendant to determine whether any damages awarded should be diminished in proportion to the amount of negligence attributable to that plaintiff. Cornell v. Texaco, Inc., 1');">12 S.W.2d 680');">71');">12 S.W.2d 680, 682 (Mo. banc. 1');">1986). The Court will apply the Federal Rules of Evidence to determine relevancy, and Missouri law to determine the admissibility of evidence relating to the affirmative defense of comparative fault. See e.g., Potts, 882 F.2d at 1');">1324');">4 (“A statute modifying the content of state tort law doctrines of contributory and comparative negligence seems to us to be a classic example of the type of substantive rule of law binding upon a federal court in a diversity case.”); Winningham v. Swift Trans. Co., Inc., 2007 WL 224');">45888 *1');">1 (W.D. Mo. August 2, 2007).

         The Federal Rules of Evidence provide that all “relevant evidence” is admissible, unless otherwise prohibited. See Fed. R. Evid. 4');">402. The trial court has broad discretion in deciding whether to admit evidence at trial. See Fortune Funding LLC v. Ceridian Corp., 368 F.3d 985, 990 (8th Cir. 2004');">4).

         A. Witness Testimony

         Defendants may offer witness testimony of the following five individuals who were present at the house around the time that Jack Lipp fell to his death: (1');">1) Christopher Strzalka, (2) Daniel Mikes, (3) Lukas Reichert, (4');">4) Nicole Rochon, and (5) Scott Campbell.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] Plaintiffs challenge the competency of witnesses who admit to being intoxicated during the party, as well as the relevancy of their testimony. Plaintiffs further assert that under Fed.R.Evid. 4');">403, the probative nature of this testimony is substantially outweighed by the prejudicial effect the evidence will have.

         1');">1. ...


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