United States District Court, D. Colorado
ORDER ON MOTION IN LIMINE
Nina
Y. Wang Magistrate Judge
This
matter comes before the court on Plaintiff Tamara
Bryant's (“Plaintiff” or “Ms.
Bryant”) Partially Unopposed Motion in Limine
(“Motion in Limine”) [#100, filed April 27,
2018]. The Motion is before the court pursuant to the Order
of Reference dated August 19, 2016 [#39], 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and D.C. COLO.L CivR 72.2. The court
has carefully considered the Motion and related briefing, the
entire case file, and the applicable case law. For the
following reasons, the Motion in Limine is GRANTED IN
PART and DENIED IN PART.
BACKGROUND
On
December 21, 2015, Ms. Bryant was a passenger in a truck
travelling westbound on Colorado State Highway 145 in or
around the Nucla/Naturita community. At approximately 7:00
p.m., the truck in which Plaintiff was riding struck a cow
that another motorist had previously hit and immobilized.
[#28 at ¶¶ 13-17]. The cow was owned by John
William Reams, Earl Brown Reams, II, and/or the H. Neil Reams
Family LLLP (collectively, the “Reams
Defendants”). [Id. at ¶ 15]. The
collision caused the vehicle to flip onto its passenger side
and skid along the pavement at a high velocity, during which
Plaintiff's right arm “was pulled out of the
passenger window and ground down to a stump as a result of
road friction.” [Id. at ¶¶ 18-19].
Plaintiff sustained multiple injuries in addition to losing
her right arm, and seeks damages including but not limited to
present and future hospital and medical expenses, past and
future lost wages, and loss of enjoyment of life.
[Id. at ¶ 20].
Plaintiff
initiated this personal injury action on June 24, 2016 by
filing a Complaint that asserted four common law claims
against Defendants the State of Colorado, Department of
Transportation (“CDOT”), John William Reams
(“John Reams”), Earl Brown Reams, II (“Earl
Reams”), and the H. Neil Reams Family LLLP (the
“Partnership”). [#1]. The case ultimately
proceeded with a Second Amended Complaint asserting claims
for premises liability pursuant to Colo. Rev. Stat. §
13-21-115 and for negligence as to CDOT, [#56 at 4-6], and
for negligence and exemplary damages as to the Reams
Defendants. [Id. at 6-8]. CDOT and the Reams
Defendants respectively designated as a nonparty at fault
Kirk Powell, the driver of the vehicle in which Plaintiff was
riding at the time of the accident. [#43; #44].
On May
25, 2017, CDOT filed a Motion for Summary Judgment, arguing
that there is no evidence to support finding that the subject
cow wandered through a CDOT fence, and there is no evidence
that CDOT was provided with actual notice of a defect in a
CDOT fence line through which the subject cow ultimately
escaped. [#66]. The Reams Defendants filed their own Motion
for Summary Judgment regarding the negligence claims. [#69].
The briefing of the Motions for Summary Judgment was delayed
pending additional discovery that Plaintiff requested, and
which the court granted, but was completed by the end of
August 2017.
On
December 14, 2017, the court held limited oral argument on
the Motions for Summary Judgment and presided over a Final
Pretrial Conference, [#86], and subsequently entered a Final
Pretrial Order setting a ten-day jury trial to commence on
June 4, 2018 at the federal courthouse in Grand Junction,
Colorado. [#87]. Shortly thereafter, the court issued a
written opinion and order denying CDOT's Motion for
Summary Judgment and granting the Reams Defendants'
Motion for Summary Judgment with respect to the claims
asserted against John Reams and the claim for exemplary
damages in general, but otherwise denying the Reams
Defendants' Motion. [#90].[1]
On
April 27, 2018, Plaintiff filed the Motion in Limine seeking
to preclude admission during trial of five categories of
evidence: (1) all evidence or testimony concerning marijuana
use by Plaintiff or Mr. Powell; (2) testimony regarding the
lack of citations issued following the accident; (3) the
traffic accident report and Trooper Mark Hanson's
testimony regarding the speed at which Mr. Powell's truck
was traveling at the time it collided with the cow; (4) all
collateral source evidence of medical insurance payments; and
(5) reference to Colo. Rev. Stat. § 35-46-111 in
Deposition Exhibit 47. See [#100]. CDOT does not
oppose the Motion in Limine; the Reams Defendants oppose the
Motion with respect to the first, third, and fifth categories
of evidence. [#107]. Plaintiff filed a Reply in support of
the Motion in Limine on May 25, 2018. [#140].
That
same day, Plaintiff filed a Notice of Settlement as to CDOT.
[#135]. The settlement prompted the Reams Defendants to file
an Unopposed Motion to Amend the Scheduling Order to permit
them to designate CDOT as a non-party at fault pursuant to
Colo. Rev. Stat. § 13-21-111.5 (“Motion to
Designate Non-Party at Fault”), [#136], which was
accompanied by the Designation of CDOT as a Non-Party at
Fault. [#137].
ANALYSIS
Motions
in limine exist outside of the Federal Rules of Civil
Procedure and Federal Rules of Evidence and serve to enable
the court “to rule in advance of trial on the relevance
of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or
interruption of, the trial.” United States v.
Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)
(further citations omitted)). Pretrial rulings issued in
response to motions in limine can save time during trial as
well as cost and effort for the parties as they prepare their
cases. However, “a court is almost always better
situated during the actual trial to assess the value and
utility of evidence.” Koch v. Koch Industries,
Inc., 2 F.Supp.2d 1385, 1388 (D. Kan. 1998) (citing
Hawthorne Partners v. AT & T Technologies, Inc.,
831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless
evidence meets this high standard [of clearly inadmissible],
evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice
may be resolved in proper context.”)).
I.
Evidence Regarding Mr. Powell's Marijuana Use
A.
Arguments
Plaintiff
asks the court to preclude during trial the admission of
evidence, and associated argument, regarding Mr. Powell's
use of marijuana. See [#100 at 5].[2] Mr. Powell
testified at his deposition that at the time of the accident
he had a medical marijuana card associated with a back injury
he had sustained and that he had used marijuana around 10:00
a.m. the morning of the accident. [#107-1 at 21:9-25].
Plaintiff contends that whether she or Mr. Powell smoked or
otherwise ingested marijuana the day of the accident
“is not relevant as it has no tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” [#100 at 5].
Plaintiff asserts in particular that there is no evidence
that marijuana use had any impact on Mr. Powell's driving
on the night of the accident, and any potential probative
value regarding this testimony “is substantially
outweighed by the risk of unfair prejudice, confusion of
issues, ” and possibility that the jury would be
misled. [Id.] The Reams Defendants argue in Response
that “the fact that Mr. Powell used marijuana on the
date of the incident is relevant in multiple aspects,
including his negligence.” [#107 at 3]. They assert
that “[a] jury can infer from drug use that Mr. Powell
was impaired while driving the vehicle, and expert testimony
is not necessary to establish this link, and that, rather,
“it is common knowledge, well within the knowledge base
and experience of the average juror, that one should not
operate vehicles or machinery after using marijuana.”
[Id.] In Reply, Plaintiff argues that (1) it is not
clear that he used marijuana the day of the accident; (2)
there is no evidence that he was impaired by marijuana at the
time of the accident; and (3) it would be improper for a jury
to infer that he was impaired. [#140].
B.
Applicable ...