Bryant v. State

          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 ...