Aspen American Insurance Company v. Interstate Warehousing Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

ASPEN AMERICAN INSURANCE CO., )

as subrogee of Eastern Fish Company, )

)

Plaintiff, )

)

v. ) Case No. 1:14-CV-383

)

INTERSTATE WAREHOUSING, INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court for resolution of numerous pretrial motions. The motions,

in the order they were docketed, include the following:

1) Motion in Limine Regarding Trial Issues filed by Defendant Interstate Warehousing, Inc.

(ECF No. 105);

2) Motion for Separation of Witnesses filed by Interstate (ECF No. 107);

3) First Motion in Limine to Exclude any Evidence in Support of Defendant’s Act of God

Defense filed by Plaintiff Aspen American Insurance Co. (ECF No. 108);

4) Second Motion in Limine to Exclude Unauthenticated Climatological or Meteorological Data

filed by Aspen American (ECF No. 109);

5) Third Motion in Limine to Exclude Expert Opinions by Persons Who Have Not Been Timely

Disclosed filed by Aspen American (ECF No. 110);

6) Fourth Motion in Limine to Exclude Testimony of Witnesses Who Have Not Been Timely

Disclosed filed by Aspen American (ECF No. 111);

7) Fifth Motion in Limine to Exclude Reference to Snow Removal Policies filed by Aspen

American (ECF No. 112);

8) Sixth Motion in Limine to Exclude Defendant’s Untimely Document Production filed by

Aspen American (ECF No. 113);

9) Seventh Motion in Limine to Preclude Objections to Admission of FEMA Snow Load Safety

Guide Pursuant to FRE 902 filed by Aspen American (ECF No. 114);

10) Eighth Motion in Limine to (I) Preclude Objections to Inferences Made Due to Spoliation of

Evidence & (II) Permit Witnesses to Testify About Spoliated Evidence filed by Aspen American

(ECF No. 115); and

11) Motion to Amend/Correct Seventh Motion in Limine filed by Aspen American (ECF No.

116).

STANDARD OF REVIEW

The Federal Rules of Evidence do not explicitly authorize in limine rulings. However, a

district court has inherent authority to manage the course of trials. Fed. R. Evid. 103(c); Luce v.

United States, 469 U.S. 38, 41 n. 4 (1984). District courts have broad discretion in ruling on

motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); Aldridge

v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011). However, evidence should be

excluded only when inadmissible on all possible grounds. Hawthorne Partners v. AT & T Techs.,

Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). As a result, in some instances courts should defer

rulings until trial, particularly where context would be helpful in determining matters such as

relevancy, foundation, and potential prejudice. See id. A pre-trial ruling denying a motion in

limine does not automatically mean that all evidence contested in the motion will be admitted at

trial. Id. at 1401. And while a pre-trial ruling granting a motion in limine does bar the

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introduction of certain evidence, trial judges remain free to alter previously issued in limine

rulings, within the bounds of sound judicial discretion. Luce, 469 U.S. at 41-42.

DISCUSSION

I. Motion in Limine Regarding Trial Issues filed by Defendant Interstate

Warehousing, Inc. (ECF No. 105).

Interstate Warehousing presents its pretrial issues in a single motion (ECF No. 105) and

supporting brief (ECF No. 106), although the issues presented are numerous. Interstate “moves

the Court to issue an order in limine prohibiting Plaintiff, its attorneys, and Plaintiff’s witnesses

from introducing evidence of, making statements concerning, or attempting to convey to the jury

in any manner, either directly or indirectly, at any time during the trial of this action, the

following:

1. Defendant’s financial, economic, or insured status;

2. Settlement agreements or negotiations;

3. A heightened or different standard of care for a bailee/property owner;

4. Evidence of claims of privilege by Defendant;

5. Defendant’s failure to call witnesses;

6. Defendant’s prior or subsequent acts;

7. The existence of any motion in limine;

8. The suggestion that this litigation is Plaintiff’s only opportunity for relief;

9. Evidence for which no foundation is laid, which is not relevant, which was not disclosed in

accordance with the Court’s orders, and testimony that fails to meet Rule 702 standards;

10. Statements intended to demonize Defendant Interstate Warehousing, Inc. as a company;

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11. Claims of negligent hiring, retention, training, and/or supervision of any of Interstate’s

employees and/or agents.

12. Statements advancing a ‘Golden Rule’ argument;

13. Testimony, argument, comment or statements advancing Plaintiff’s claim that Defendant

committed spoliation of evidence outside or beyond the instruction the Court has stated will be

read to the jury;

14. Testimony, argument, comment or statements advancing Plaintiff’s claim that Defendant was

‘grossly negligent’;

15. Testimony, argument, comment or statements regarding the limitation of damages clause

contained in the warehousing agreement at issue in this case;

16. Testimony, argument, comment or statements implying that the substantive law of any other

jurisdiction, other than Michigan Law should apply to this case; and

17. Testimony, argument, comment or statements based on pure speculation and conjecture and

are not supported by known facts or evidence.”

Defendant’s Motion In Limine, pp. 1-2. The Court will address each issue in turn.

A. Defendant’s financial, economic, or insured status.

Interstate argues that Aspen American “should be prohibited from introducing into

evidence, or conveying to the jury in any manner, Defendant’s relative economic or financial

status. Such discussion or evidence is inappropriate argument which is presented to sway a jury

that the Defendant can afford to pay Plaintiff and can afford a substantial verdict.” Id., p. 1

(citing Igo v. Coachman Industries, Inc. (Sportscoach), 938 F.2d 650, 653 (1991)).

Aspen American acknowledges that, as a general rule, evidence of a party’s financial,

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economic, or insured status is not admissible. Nonetheless, Aspen American argues that in this

instance Interstate’s motion “should be denied in its entirety. All of the ‘references’ and evidence

challenged by the Defendant are entirely germane to matters that are at issue in this case, and

therefore all exceed (by a considerable margin) the low threshold needed to establish relevance.”

Plaintiff’s Opposition to Defendant’s Motion In Limine (ECF No. 128), p. 2. Aspen American

contends that while “[Federal Rule of Evidence] 411 states: ‘[e]vidence that a person was or was

not insured against liability is not admissible to prove whether the person acted negligently or

otherwise wrongfully . . . the court may admit this evidence for another purpose, such as proving

a witness’s bias or prejudice or proving agency, ownership, or control.’ . . . Under this plain

language, there are certain circumstances in which Defendant’s financial, economic, or insured

status would be relevant and admissible. Defendant’s blanket, generalized Motion to preclude

evidence of its ‘financial, economic, or insured status’ must therefore be denied.” Id., p. 3. Aspen

American insists that “[n]one of the cases cited by Defendant in support of this generalized

Motion show evidence of insurance as uniformly impermissible.” Id. In other words, because

such evidence may become relevant and admissible during trial, Aspen American asks the Court

to deny Interstate’s motion on this point.

Aspen American is correct that such evidence can be relevant and admissible in certain

instances, depending on the evidence and issues presented at trial. But as Interstate argues in its

reply brief, the possibility that such evidence might become relevant and admissible at trial is not

grounds for denying Interstate’s motion in limine:

Interstate is completely surprised at Plaintiff’s objection to Interstate’s first

Motion in Limine. While it is true that there may be valid reasons from

introduction evidence [sic] of a party’s financial, economic [or] insurance status at

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a trial, none of the reasons exist in this case. Th[e] issues in this case, that being

Interstate’s culpability in causing or allowing the collapse of the subject

warehouse roof, do not appear to necessitate advising the jury about the

Interstate’s financial, economic or insurance status. As such, those issues should

be excluded because they are not relevant to any issue to be tried to the jury in this

case. As such, such evidence should be excluded unless, during the course of trial,

one of those issues becomes relevant pursuant to Federal Rule of Evidence 402.

Reply in Support of Defendant’s Motion In Limine (ECF No. 130), pp. 2-3.

The Court agrees with Interstate and GRANTS the motion in limine to preclude evidence

of Interstate’s financial, economic or insured status. Should this evidence become relevant to an

issue during trial, the Court will revisit the matter if raised by a party outside the presence of the

jury. This is true of all the Court’s rulings since by their nature rulings on motions in limine are

preliminary in nature and can be changed or tailored during trial if circumstances warrant. Ocasio

v. Turner, No. 2:13-CV-303, 2015 WL 13817409, at *1 (N.D. Ind. Sept. 15, 2015).

B. Evidence of settlement agreements or negotiations.

Interstate’s motion in limine includes another common and standard request: to preclude

evidence of any settlement negotiations between the parties. Interstate’s argument in support of

this request is simple and concise:

Federal Rule of Evidence 408 provides, in relevant part:

Evidence of the following is not admissible–on behalf of any party–either to

prove or disprove the validity or amount of a disputed claim or to impeach

by a prior inconsistent statement or a

contradiction:

(1) furnishing, promising, or offering–or accepting, promising to accept, or

offering to accept–a valuable consideration in compromising or attempting

to compromise the claim; and (2) conduct or a statement made during

compromise negotiations about the claim…

Fed. R. Evid. 408. Consequently, any testimony or evidence regarding any

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attempts to negotiate a settlement of this matter should not be admitted at trial and

the Plaintiff should be precluded from making any comments about settlement

negotiations before the jury.

Memorandum of Law in Support of Defendant’s Motion In Limine (ECF No. 106), pp. 2-3.

Again, this is a common and standard pretrial request, as even Aspen American concedes

(see Plaintiff’s Opposition Brief, p. 5: “evidence of settlement agreements or negotiations [is]

generally inadmissible.”). Still, Aspen American opposes Interstate’s motion, arguing that:

A trial court only has power to exclude evidence in limine when the specific piece

of evidence is clearly inadmissible on all potential grounds. See Hawthorne

Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993).

Defendant does not point to any particular evidence of such settlement discussion

or negotiations that should be excluded. Apart from the limitations set by Fed. R.

Evid. 408, no further limitations on admissibility of evidence in this respect

should be applied by this Court.

Id., p. 5. Interstate replies by stating that “Interstate, again, is surprised that Plaintiff stated an

objection hereto because such evidence is categorically excluded by the Federal Rules of

Evidence. As such, it appears Plaintiff is objecting simply for the purposes of objecting.”

Defendant’s Reply (ECF No. 130), p. 4. Interstate reiterates that Rule 408 expressly excludes

such evidence except in very limited circumstances. Interstate argues that “[s]hould one of the

exception situations arise in this case, then the appropriate course of action would, again, be to

approach the Court outside the presence of the jury to advise the Court of the issue and allow the

Court to make a determination as to whether such evidence is more probative than prejudicial

and should be presented to the trier of fact.” Id., p. 5. Interstate concludes by noting that the

parties in this case have engaged in several settlement discussions and negotiations, and that

“both parties engaged in these settlement discussions with the belief that the trier of fact would

never be advised of the settlement efforts, to include the respective settlement demands and

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offers exchanged between the parties. To deny Interstate’s Second Motion in Limine would

frustrate the entire purpose of F.R.E. 408, which is to facilitate settlement of case without the

ramifications of such efforts being used against the party at trial.” Id. The Court agrees and

therefore GRANTS Interstate’s motion in limine as to evidence of settlement negotiations.

C. Evidence of a heightened or different standard of care for a

bailee/property owner.

Interstate moves the Court to preclude any evidence “that Interstate was, or should be

subjected to, a heightened and/or different standard of care because it was a bailee and the owner

of the subject warehouse where Plaintiff’s goods were stored at the time of the subject incident.”

Memorandum of Law in Support of Defendant’s Motion In Limine (ECF No. 106), p. 3.

Interstate argues as follows:

The duties of a bailee are well settled under Michigan law. Specifically, the

Michigan Supreme Court has held that when a bailment is beneficial to both

parties (i.e. a mutually beneficial bailment) then the duty of the bailee in keeping

the property is “to keep and preserve the property with ordinary care–that care

which a prudent man ordinarily takes of his own property.” Godfrey v. City of

Flint, 284 Mich. 291, 297, 279 N.W. 516, 518 (1938). It is clear in this case that

the bailment of Plaintiff’s goods was a mutually beneficial bailment because

Plaintiff need a refrigerated location to store its goods until such time as the goods

(frozen seafood) were distributed to costumers. Defendant provided Plaintiff a

refrigerated location to store its goods for a fee. As such, Defendant provided

Plaintiff with a needed refrigerated storage facility and Plaintiff compensated

Defendant for the use of Defendant’s refrigerated storage facility. Thus, the facts

of this case clearly show that the bailment in this case was a mutually beneficial

bailment and Defendants only needed to exercise ordinary care in storing

Plaintiff’s goods. As such, Plaintiff should not be allowed to introduce evidence,

make statements or arguments, or otherwise convey to the jury in any manner that

Interstate should be held to a higher standard of care or that Defendant is strictly

liable for the incident giving rise to this matter.

Additionally, Defendant anticipates that Plaintiff will attempt to argue or

otherwise convey to the jury that FEMA Guidelines, relied on by Plaintiff’s snow

removal expert Jeremey Swenson, regarding snow and ice removal procedures

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and considerations provided the appropriate standard of care. However, the

FEMA Guidelines relied on by Mr. Swenson are not synonymous with industry

standards and, further, the FEMA Guidelines themselves disclaim any legal

liability or responsibility for the information contained therein. Because of the

explicit limitation of the FEMA Guidelines, Plaintiff should not be allowed to

argue, or otherwise insinuate, that the FEMA Guidelines create a duty or a legal

standard of care. At most, the FEMA Guidelines are, perhaps, evidence of

Interstate’s alleged negligence. However, allowing Plaintiff to use the FEMA

Guidelines to create a standard of care would confuse the jury and be unduly

prejudicial to Defendant and should be excluded under Federal Rule of Evidence

403.

Id., pp. 3-4.

Aspen American again concedes the general rule regarding the standard of care, but

argues that Interstate’s motion should be denied on this issue:

There is no dispute that a bailor-bailee relationship existed between Aspen’s

insured and Defendant. And there is no dispute that a mutually beneficial

bailment, under Michigan law, requires the bailee to keep and preserve the

property with ordinary care. See Godfrey v. City of Flint, 284 Mich. 291 (1938).

Neither of those facts prevents Plaintiff from arguing that Defendant was grossly

negligent in its handling of Plaintiff’s goods.

Plaintiff’s Opposition Brief (ECF No. 128), p. 5 (italics in original). Aspen American contends

that Interstate “attempts to smuggle an underlying evidentiary issue into this section of its Motion

in Limine, alleging that the FEMA Guidelines referenced by Mr. Swenson in his deposition do

not reflect the industry standard of care. This is a separate issue that should not be tied into the

legal standard applied to the Parties’ bailor/bailee relationship. Nonetheless, it is improper and

should be denied.” Id. Aspen American argues as follows:

Plaintiff addressed the FEMA Guidelines in its own Motion in Limine (Dkt. 114),

and those arguments are fully incorporated herein. Defendant is concerned that

Plaintiff may seek to utilize the FEMA Guidelines to set separate standards of

care. Instead, Defendant suggests that the FEMA Guidelines “[a]t most, […] are,

perhaps, evidence of Interstate’s alleged negligence.” (Dkt. 106 Sec. 3). As the

Court knows, bailment law involves a presumption of negligence on the part of

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the bailee, so such standards apply to bailment claims:

The mere fact that fires are sometimes spawned by other than negligent

conduct is, in our opinion, no reason to eviscerate the general rule. Such is

the result if the presumption of negligence is rebuttable by the sole fact that

the damage was occasioned by fire.

Certainly some losses caused by fire or theft may be totally excusable.

However, it is equally true that these losses may result from a lack of due

care. Because either one of these alternatives is possible we believe that

where the bailed property is lost, damaged or stolen, while it was in the

exclusive control of the bailee, he should be charged with the burden of

going forward to rebut the presumption with evidence to establish that the

loss, damage or theft was occasioned without his fault. This may require a

defendant-bailee to produce evidence of the actual circumstances

surrounding the origins of the fire or the theft, including the precautions

taken to prevent the loss.

Columbus Jack Corp. v. Swedish Crucible Steel Corp., 227 N.W.2d 506, 510-511

(Mich.S.Ct. 1975). As Defendant agrees, the FEMA Guidelines may be used as

evidence of negligence, which is part of a bailment claim. Section 3 of

Defendant’s Motion in Limine must therefore be denied.

Id., pp. 5-6.

Interstate replies by insisting that Aspen American, not Interstate, is attempting to impose

a different standard of care in this case:

Plaintiff attempts to defeat Interstate’s third Motion in Limine which seeks to

prevent Plaintiff from hijacking the standard of care by arguing that the FEMA

Guide creates the standard of care in this case. The FEMA Guide Plaintiff seek[s]

to utilize[] does not create a legal standard of care and should not be used to do

so. Of course, Plaintiff, through its expert witness(s), is free to advise the jury of

the contents of the FEMA Guide and what it claims are best practices. However,

to claim that the FEMA Guide creates an “industry standard” (i.e. a standard of

care in the warehousing industry) goes too far. In fact, the FEMA Guide itself

explicitly disclaims its use as an industry standard or a standard of care by

disclaiming any legal liability or responsibility for the information contained

therein. Therefore, Plaintiff should not be allowed to argue, or otherwise

insinuate, that the FEMA Guide create a duty, an industry standard or legal

standard of care. See Gannon v. Menard, Inc. 2019 WL 7584294 at 7 (S.D.Ind.

2019) (citing Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891 (Ind. 2002)

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(holding generally that policy manuals and rules as evidence of a standard of care

is inappropriate).

Defendant’s Reply (ECF No. 130), p. 6.

Interstate insists in its motion in limine that Aspen American should be precluded from

arguing that the FEMA Guidelines themselves delineate the applicable standard of care in this

case, while Aspen American insists the Guidelines are admissible to show that Interstate was

negligent. The parties appear to be arguing about an issue on which they both agree: “[T]here is

no dispute that a mutually beneficial bailment, under Michigan law, requires the bailee to keep

and preserve the property with ordinary care. See Godfrey v. City of Flint, 284 Mich. 291 (1938)”

(Plaintiff’s Opposition Brief (ECF No. 128), p. 5)); “To be clear, the standard of care of Interstate

as a bailee is in this case is the duty to use ordinary care. Godfrey v. City of Flint, 284 Mich. 291,

297, 279 N.W. 516, 518 (1938).” Defendant’s Reply (ECF No. 130), p. 6. Not only do the parties

agree on the standard of care and cite the same case in support, but Interstate even concedes that

“Plaintiff, through its expert witness(s), is free to advise the jury of the contents of the FEMA

Guide and what it claims are best practices.” Interstate is correct. Aspen American can present

the FEMA Guidelines at trial to support its argument that Interstate’s conduct leading up to the

roof collapse was negligent or grossly negligent, just as Interstate concedes, but cannot argue that

those Guidelines set the standard of care. Put another way, Aspen American can present the

FEMA Guidelines at trial to support its argument that Interstate was negligent or grossly

negligent in the way it handled (or failed to handle) the snow accumulation, but cannot argue that

Interstate’s alleged failure to follow those Guidelines, by itself, requires the jury to find that

Interstate was negligent. Accordingly, Interstate’s motion in limine on this point is GRANTED in

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part and DENIED in part. The motion is granted in that Aspen American cannot argue that the

FEMA Guidelines set the standard of care in this case (which is one of ordinary care); the motion

is DENIED in that Aspen American can present this evidence at trial in support of its argument

that Interstate was negligent.

D. Evidence of claims of privilege by Defendant.

Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .

from introducing evidence of, making statements or arguments concerning, or conveying to the

jury in any manner any objection by Defendant to certain discovery or any assertion of privilege

by Defendant during pre-trial proceedings in this case.” Memorandum in Support (ECF No. 106),

p. 4. Interstate argues as follows:

Such evidence is irrelevant, highly prejudicial, and, therefore, inadmissible under

Federal Rules of Evidence 402 and 403. Furthermore, Federal Rule of Evidence

states that in a civil lawsuit, “state law governs privilege regarding a claim or

defense for which state law supplies the rule of decision.” FED. R. EVID. 501. As

such this court must apply Indiana law regarding the use of claims of privilege at

trial. Indiana Rule of Evidence 501(d)(1) holds that, commenting on or attempting

to draw an inference from a claim of privilege is prohibited. As such, Plaintiff, its

counsel, and Plaintiff’s witnesses should be barred from introducing evidence of,

making statements or arguments concerning, or conveying to the jury in any

manner any objection by Defendant to certain discovery requests or any assertion

of privilege by Defendant during pre-trial proceedings in this case.

Id., pp. 4-5.

Aspen American opposes Interstate’s motion on this point, arguing that it “is overly broad

and fails to mention any specific piece of evidence here that Defendant wishes to be excluded.”

Plaintiff’s Opposition Brief (ECF No. 128), p. 7. Aspen American reiterates its argument that “a

trial court only has power to exclude evidence in limine when the specific piece of evidence is

clearly inadmissible on all potential grounds. . . . Here, a blanket motion to preclude ‘evidence of

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claims of privilege by Defendant’ is overly broad and fails to mention any specific piece of

evidence here that Defendant wishes to be excluded. Section 4 of Defendant’s Motion in Limine

must therefore be denied.” Id., p. 8 (internal citation omitted).

In reply, Interstate contends that Aspen American’s objection misses the point:

Plaintiff objects, again, for reasons that appear to be objection for the sake of

objection, to Interstate’s fourth Motion in Limine which seeks to prohibit Plaintiff

from presenting to the jury any evidence, argument or comment regarding any

claims of privilege asserted by Interstate. Oddly, Plaintiff objects by agreeing that

claims of privilege should be barred pursuant to Federal Rule of Evidence 501 and

state law authority regarding privilege. However, while agreeing that claims of

privilege should be barred at trial, Plaintiff then argues that the Court should deny

Interstate’s Motion in Limine, apparently because the request is too broad.

However, to Interstate’s knowledge, there were very few claims of privilege

asserted in this case. As such, it is readily apparent to Plaintiff what information it

cannot divulge to the jury. As such, this Court should prohibit Plaintiff from

presenting any evidence, argument or comment to the jury regarding any claim of

privilege asserted by Interstate in this case over Plaintiff’s objection. Of course,

should an instance arise at trial which may require evidence to be presented

regarding a privileged matter, then Plaintiff should raise that issue outside the

presence of the jury so that the Court can hear argument and determine if the

evidence should be presented to the jury over the claim of privilege.

Defendant’s Reply (ECF No. 130), pp. 6-7 (italics added).

Indiana Rule of Evidence 501(d) provides as follows1:

Except with respect to a claim of the privilege against self-incrimination in a civil

case:

1 The parties agree that Indiana state evidentiary rules on privilege apply in this diversity

case: see Plaintiff’s Opposition Brief (ECF No. 128), p. 7 (“Fed. R. Evid. 501 states that in civil

cases “state law governs privilege regarding a claim or defense for which state law supplies the

rule of decision.” See also, Arc Welding Supply Co., Inc. v. American Welding & Gas, Inc., 2017

WL 2901230, at *2 (S.D. Ind. May 4, 2017) (noting that “[i]f a case is before the court on

diversity jurisdiction, the court must apply state privilege law.”); Defendant’s Memorandum in

Support (ECF No. 106), p. 4 (“Federal Rule of Evidence states that in a civil lawsuit, “state law

governs privilege regarding a claim or defense for which state law supplies the rule of decision.”

FED. R. EVID. 501. As such this court must apply Indiana law regarding the use of claims of

privilege at trial.”).

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(1) Neither the judge nor counsel may comment upon the claim of a privilege,

whether in the present proceeding or on a prior occasion. No inference may be

drawn from the claim of a privilege.

(2) In jury cases, the judge, to the extent practicable, must conduct proceedings so

as to allow parties and witnesses to claim privilege without the jury’s knowledge.

(3) If requested by a party against whom the jury might draw an adverse inference

from a claim of privilege, the court must instruct the jury that the jury must not

draw an adverse inference from the claim of privilege.

Ind. R. Evid. 501(d). The language of the rule is clear and Interstate’s motion is GRANTED.

Accordingly, neither party may introduce evidence of, make statements or arguments concerning,

or convey to the jury in any manner any objection by either party to certain discovery or any

assertion of privilege by either party during pre-trial proceedings in this case.

E. Defendant’s failure to call witnesses.

Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .

from introducing evidence of, making statements concerning, or conveying to the jury in any

manner that Defendant failed to call any witness equally available to all parties in this case. Each

party has subpoena power consistent with the Federal Rules of Civil Procedure, and any undue

comment or reference to the fact that a witness is not called as part of the Defendant’s

case-in-chief would be irrelevant, highly prejudicial, and, therefore, inadmissible under Federal

Rules of Evidence 402 and 403.” Defendant’s Memorandum in Support (ECF No. 106), p. 5.

Aspen American opposes this request, too, arguing that “[i]nferences due to failure to call

certain witness have been permitted in civil cases by Indiana courts.” Plaintiff’s Opposition Brief

(ECF No. 128), p. 8.

In its reply brief, Interstate argues as follows:

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Plaintiff objects to Defendant’s fifth Motion in Limine which seeks to prevent

Plaintiff’s counsel from introducing evidence of, making statements concerning,

or conveying to the jury in any manner that Defendant failed to call any witness

equally available to all parties in this case. Interstate notes that its fifth Motion

in Limine does not seek to prevent any comment or argument regarding the failure

to call any witness that was under the exclusive control of Interstate. Again,

Interstate notes that each party has subpoena power consistent with the Federal

Rules of Civil Procedure and is free to request any person to appear and testify in

court. As such, if a witness is one that Plaintiff wants to call at trial, it should not

be allowed to refuse to call said witness in its case-in-chief on the hopes that

Defendant will call the witness, only to then make undue comment or reference to

the fact that Interstate did not call a witness Plaintiff could have easily called.

Allowing such a tactic would be irrelevant, highly prejudicial, and, therefore,

inadmissible under F.R.E. 402 and 403.

Defendant’s Reply (ECF No. 130), pp. 7-8 (boldface and underlining in original). Interstate’s

motion seeks only to bar comments or statements regarding Interstate’s failure to call “any

witness equally available to all parties” and is, once again, a standard and common request in

pretrial motions. United States v. Ogoke, 860 F.3d 924, 930 (7th Cir. 2017) (holding that a party

may not argue an adverse inference from an opposing party’s failure to call a witness, absent a

showing that the witness was available only to that party.”).

Accordingly, Interstate’s motion in limine on this point is GRANTED. Furthermore, the

Court precludes either party from introducing evidence of, or making statements concerning, or

conveying to the jury in any manner, that the other party failed to call a witness that was available

to both.

F. Defendant’s prior or subsequent acts.

Interstate moves the Court to preclude Aspen American from introducing any evidence of

Interstate’s prior or subsequent acts, arguing as follows:

Plaintiff, its counsel, and Plaintiff’s witnesses should be prohibited from

introducing evidence of, making statements or arguments concerning, or

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conveying to the jury in any manner any prior or subsequent acts involving

Defendant. Federal Rule of Evidence 404(b)(1) provides, “[e]vidence of a crime,

wrong, or other act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in accordance with the

character.” “It is well settled that prior acts may not be admitted to prove that a

person acted in a similar fashion in the case at hand.” Lataille v. Ponte, 754 F.2d

33, 35 (1st Cir. 1985). Moreover, any such evidence would also be highly

prejudicial and, therefore, inadmissible under Evidence Rule 403.

Defendant’s Memorandum in Support (ECF No. 106), p. 5.

In response, Aspen American argues again that Interstate’s motion should be denied

because it is over broad:

Defendant alleges that its prior or subsequent acts are highly prejudicial and are

allegedly inadmissible pursuant to Fed. R. Evid. 403. It provides no support as to

why such evidence is highly prejudicial and therefore inadmissible beyond the

limiting powers of Fed. R. Evid. 404(b), nor does it provide any statements,

arguments, documents, or other specific evidence that it seeks to exclude. Section

6 to Defendant’s Motion in Limine is therefore unspecific, overgeneralized, and

should be denied as duplicative of what procedural remedies are already available

to Defendant under Fed. R. Evid. 403 and 404.

Plaintiff’s Opposition Brief (ECF No. 128), p. 9.

Interstate, in its reply brief, once again accuses Aspen American of objecting for the sake

of objecting:

Another surprising objection, which again appears to be an objection for the sake

of objection, is Plaintiff’s objection to any prior or subsequent acts. Interstate

notes that Plaintiff agrees that F.R.E. 404 prohibits the introduction of prior or

subsequent acts of Defendant for the purpose of proving that Interstate was

negligent with respect to the collapse of the Hudsonville, Michigan warehouse

roof, which again leave Interstate pondering why there is an objection at all. At its

essence, Plaintiff’s argument really appears to take exception to Interstate’s

position that the evidence would be prejudicial under F.R.E. 403. However,

Interstate is not the entity that has made the determination that evidence of prior

or subsequent acts is prejudicial. That determination was made by the rules

committee which noted that “[prior or subsequent acts are] of slight probative

values and may be very prejudicial. [Such evidence] tends to distract the trier of

fact from the main question of what actually happened on a particular occasion.”

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FED R. EVID. 404 cmt. A. As such, the Court should grant Defendant’s sixth

Motion in Limine over Plaintiff’s objection and bar any evidence pertaining to

prior or subsequent acts of Interstate.

Defendant’s Reply (ECF No. 130), p. 8 (capitalization in original).

Federal Rule of Evidence 404 states in relevant part as follows:

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible

to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.

Fed. R. Evid. 404(b)(1), (2). Again, the language of the rule is clear and Aspen American’s

argument that Interstate’s request is unspecific and overgeneralized is unavailing. Accordingly,

Interstate’s motion in limine on this point is GRANTED and Aspen American, its counsel, and

its witnesses are prohibited from introducing evidence of, making statements or arguments

concerning, or conveying to the jury in any manner any prior or subsequent acts involving

Interstate.

G. The existence of any Motion in Limine.

Interstate moves the Court to preclude Aspen American from presenting “any testimony,

evidence or reference to the existence or filing of this motion in limine, or to the fact that

Defendants sought to exclude evidence, or to any ruling this Honorable Court has made

regarding this Motion in Limine. The filing of a motion to exclude certain inadmissible evidence,

and the fact that such a motion has been submitted to the Court is inadmissible under Federal

Rule of Evidence 403.” Defendant’s Memorandum in Support (ECF No. 106), p. 6.

Aspen American responds by arguing that “[a] generalized argument that the mention of

17

motions in limine is ‘inadmissible under Federal Rule of Evidence 403’ is too sweeping in scope

to be decided in limine. . . . In the unlikely event that either party chooses to introduce evidence

of pretrial motions in its case in chief, the other side will have the opportunity to object on

applicable evidentiary grounds at trial. Section 6 of Defendant’s Motion in Limine is thus overly

broad and must be denied.” Plaintiff’s Opposition Brief (ECF No. 128), pp. 9-10 (citation

omitted).

Interstate replies as follows:

Plaintiff also objects, again apparently for the sake of objecting, to Interstate’s

seventh Motion in Limine seeking to prevent Plaintiff from advising the jury of

the existence of the parties’ respective Motions in Limine. However, Plaintiff’s

objection, that Interstate’s Motion in Limine is too broad fails to state what is

actually objectionable. Interstate asks this Court to prevent Plaintiff from

mentioning the existence of its motion in limine, or the order ruling on

Defendant’s Motion, at trial. In fact, Plaintiff’s argument for its objection is not

cogent because Plaintiff agrees that a party should object to the introduction of

pre-trial motions at trial. As such, there appears to be no legitimate objection and

the Court should grant Interstate’s seventh Motion in Limine and prevent Plaintiff

from advising the jury about the existence of this Motion in Limine.

Defendant’s Reply (ECF No. 130), p. 9.

The purpose of a motion in limine is to obviate the need for a party to object to evidence

in the presence of the jury. Thus, Aspen American’s argument that Interstate’s motion in limine

should be denied because Interstate would have the right to object to any attempt by Aspen

American to introduce evidence that Interstate filed motions in limine, once again, misses the

point. Motions in limine are supposed to streamline, not complicate, evidentiary issues.

Interstate’s request is common and reasonable and is GRANTED. Neither party will be permitted

to present any testimony, evidence or reference to the existence or filing of any motion in limine,

or to the fact that the other party sought to exclude evidence, or to any ruling this Court has made

18

regarding any motion in limine.

H. The suggestion that this litigation is Plaintiff’s only opportunity for relief.

Interstate moves the Court to preclude “Plaintiff and Plaintiff’s counsel [from]

suggest[ing] or argu[ing] to the jury that Plaintiff’s only chance to receive compensation for its

alleged damages lies with the jury in this litigation.” Defendant’s Memorandum in Support (ECF

No. 106), p. 6. Interstate argues as follows:

The suggestion is irrelevant to the issues the jury must decide in this case and will

unfairly arouse the jury’s sympathy for Plaintiffs. In Stillman v. Norfolk &

Western Railway Co., the Court rejected a plaintiff’s claim that his counsel should

have been permitted to inform the jury that plaintiff would receive no worker’s

compensation benefits because he was limited to recovery under the Federal

Employers’ Liability Act. 811 F.2d 834, 838 (4th Cir. 1987). The court held that

plaintiff’s ineligibility for worker’s compensation was completely irrelevant to the

issues presented in the case and allowing the jury to consider such information

could have prejudiced the railroad. Id. at 838. See also, Weinell v. McKeesport

Connecting Railroad Co., 411 F.2d 510, 512 (3rd Cir. 1969).

Where the only purpose for injecting irrelevant evidence into a trial is to

improperly sway the jury in a particular party’s favor, such evidence should be

expressly prohibited. Id.; Fed. R. Evid. 403. Any suggestion that this lawsuit is

Plaintiff’s sole source of compensation for Plaintiff’s alleged damages would

undoubtedly generate sympathy for the Plaintiff and prejudice Interstate. Thus,

Plaintiff should not be permitted to argue or insinuate that this trial is its only

chance to receive compensation for its alleged injuries. Such a claim is

misleading, entirely irrelevant, and unduly prejudicial to Defendant and must be

barred pursuant to Federal Rule of Evidence 403.

Id., pp. 6-7.

In response, Aspen American claims the cases Interstate cites in support of its argument

are inapplicable, then again argues that Interstate’s motion should be denied because Interstate

does not cite any specific evidence it seeks to exclude and because Interstate is free to object at

trial:

19

Plaintiff should be afforded the opportunity to present its prima facie case to the

jury by whatever means it chooses to under the Federal Rules of Evidence. As

previously established, a trial court only has power to exclude evidence in limine

when the specific piece of evidence is clearly inadmissible on all potential

grounds. . . . Defendant fails to mention any specific piece of evidence here, and is

free to frame this motion, if applicable, as a proper objection during trial. At this

juncture, Section 8 of Defendant’s Motion in Limine must be denied.

Plaintiff’s Opposition Brief (ECF No. 128), p. 10.

In reply, Interstate argues that Aspen American is opposing its motion in limine on this

point because “Plaintiff clearly . . . intends to plead to the sympathy of the jurors to prevail in this

case. In fact, Plaintiff has no choice but to do so because Plaintiff is desperate to convince the

jury that Interstate was grossly negligent in causing the collapse.” Defendant’s Reply (ECF No.

130), p. 9.

In sum, Aspen American objects to Interstate’s motion on the grounds that it is over

broad and premature, while Interstate argues that Aspen American is attempting to clear a path to

appeal to the sympathy of the jury. The Court is not moved by either argument, but will grant the

motion anyway because any statements, comments or arguments that this case is Aspen

American’s only change to recoup its alleged damages is irrelevant and unduly prejudicial.

Accordingly, the motion is GRANTED and Aspen American’s counsel and witnesses are

precluded from mentioning or arguing to the jury that Plaintiff’s only chance to receive

compensation for its alleged damages lies with the jury in this litigation.

I. Evidence for which no foundation is laid, which is not relevant, which was

not disclosed in accordance with the Court’s orders, and testimony that fails

to meet Rule 702 standards.

Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s

witnesses . . . from introducing evidence for which no foundation is laid, which is not relevant to

20

the issues in this action, and which was not disclosed in accordance with the Court’s orders.”

Defendant’s Memorandum in Support (ECF No. 106), p. 7. Interstate argues as follows:

The Rules of Evidence require Plaintiff to show that their witnesses have personal

knowledge of the matters to which they are testifying, FED. R. EVID. 602, and

that the evidence they present is what they purport it to be. FED. R. EVID. 902(a).

Additionally, evidence that does not have any tendency to make a fact more or

less probable than it would be without the evidence is not relevant and, therefore,

not admissible at trial. FED. R. EVID. 401, 402. Further, any evidence not

disclosed in accordance with the Court’s Case Management Order must be barred

at trial absent a showing of good cause for its admission notwithstanding its

untimely disclosure. If the evidentiary prerequisites of a proper foundation,

relevance, and timely disclosure have not been satisfied, Plaintiffs’ evidence

should be barred at trial.

Additionally, Federal Rule of Evidence 702, along with Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and its

progeny, govern the admissibility of expert evidence. Winters v. Fru-Con, Inc.,

498 F.3d 734, 741 (7th Cir. 2007). Daubert requires the Court to safeguard that

expert testimony is both relevant and reliable by acting as a “gatekeeper” when

such evidence is proffered. Kumho Tire v. Carmichael, 526 U.S. 137, 141, 119

S.Ct. 1167, 1171, 143 L.Ed.2d 238, (1999). In Kumho Tire, the Supreme Court

noted that Rule 702 did not differentiate between “scientific” knowledge and any

other forms of specialized knowledge. Id. at 149. Thus, Kumho Tire extended

Daubert’s relevance and reliability requirements, such that they apply to all expert

testimony and not merely to scientific testimony. Id. at 137.

In light of Daubert and Kumho Tire, the Seventh Circuit adopted a two-step

methodology to help district courts determine whether an expert’s testimony

satisfies Rule 702. Bamcor, LLC v. Jupiter Aluminum Corporation, 767

F.Supp.2d 959, 973 (N.D. Ind. Feb. 7, 2011). First, the Court must satisfy the

reliability requirement by determining that: (1) the proffered expert is qualified in

the applicable field; and (2) the opinion is founded on sound methodology. Smith

v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). When analyzing an

expert’s qualifications to offer an opinion, the Court should consider the expert’s

“full range of practical experience as well as academic or technical training. . . .”

Id.

In this case, Defendant anticipate[s] that Plaintiff will attempt to introduce expert

testimony that does not meet the criteria laid out by Daubert and its progeny.

Specifically, it is anticipated that Plaintiff will attempt to introduce evidence and

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testimony from James Goes, Plaintiff’s structural engineering expert, who is

anticipated to opine that the subject collapse was not caused by the enormous

amount of snowfall, but was instead caused by an alleged joist connection failure.

However, as admitted by Mr. Goes, his “opinion is based on extremely limited

information” and is made “with very low certainty.” Based on Mr. Goes’ own

statements, his purported expert opinions do not meet the exacting standard for

admission set out in Daubert and its progeny. More specifically, Mr. Goes’

purported opinion is not founded on sound methodology as admitted by Mr. Goes

himself because his opinions are based on “extremely” limited information and

are made with “very low” certainty. Ford Motor Co., 215 F.3d at 718. Therefore,

because Mr. Goes’ opinions do not meet the exacting standards for admissibility

as set forth in Daubert and its progeny, his opinions are not admissible under

Federal Rule of Evidence 702 because they will not help the trier of fact, are not

based on sufficient facts or data, and are not the product of reliable principles and

methods. See FED. R. EVID. 702.

Mr. Goes’ opinions are also not admissible because his opinions are nothing more

than mere speculation or conjecture. Mr. Goes admits that he never actually

inspected the joist he claims failed and caused the subject collapse. As such, Mr.

Goes’ opinions are not based on any known or provable fact, making his joist

failure opinion nothing more than guess (i.e. conjecture). Skinner v. Square D.

Co., 516 N.W.2d 475, 480-481 (Mich. 1994). Therefore, this Court must not

allow Plaintiff, Plaintiff’s counsel, Mr. Goes, or another of Plaintiff’s other

witnesses to testify, comment or introduce any evidence which indicates that the

subject roof collapse was caused by an unverifiable joist failure.

Id., pp. 7-9.

Aspen American responds by arguing that Mr. Goes is qualified to testify as an expert in

this case and that Interstate’s motion to exclude his testimony is based on a mischaracterization

of his expected testimony. Plaintiff’s Opposition Brief (ECF No. 128), pp. 10-13.

The Court need not address the parties’ arguments on this point because the issue is the

weight to be given to Mr. Goes’ testimony, not its admissibility. If, as Interstate contends, Mr.

Goes’ testimony is based on speculation and conjecture, Interstate can establish that through

cross-examination and presentation of its own expert. At this juncture, however, Interstate’s

motion in limine on this point is DENIED.

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J. Statements intended to demonize Defendant Interstate Warehousing, Inc.

as a company.

Interstate moves the Court to preclude “Plaintiff, its counsel, and Plaintiff’s witnesses . . .

from making statements intended to demonize Interstate as a warehousing company. Whether

made during Plaintiffs’ opening statement, case-in-chief, or closing argument, such statements

could only serve to inflame the passions of the jury and unfairly prejudice Interstate. Such

statements and arguments are, therefore, barred by Federal Rule of Evidence Rule 403.”

Defendant’s Memorandum in Support (ECF No. 106), p. 9.

Not surprisingly, Aspen American opposes this request also. Aspen American insists as

follows:

In its three-sentence argument in Section 10 of its Motion in Limine, Defendant

fails to tell this Court what it means by “demonize Defendant Interstate

Warehousing Inc. as a company.” This is not a legal standard, but a subjective

phrase. It tends to show that Defendant is worried that its grossly negligent

behavior and its spoliation of evidence may make it look unfavorable in the eyes

of the jury. But this is the bed Defendant made; it now must lay in it.

As previously established, a trial court only has power to exclude evidence in

limine when the specific piece of evidence is clearly inadmissible on all potential

grounds. . . . Defendant once again fails to mention any specific piece of evidence

here. At this juncture, Section 10 of Defendant’s Motion in Limine must be

denied.

Plaintiff’s Opposition Brief (ECF No. 128), p. 13.

In reply, Interstate argues as follows: “[I]n Plaintiff’s objection to Interstate’s tenth

Motion in Limine, Plaintiff states, in relation to its purported gross negligence claim, which is

clearly not supported by any fact, that Interstate made its bed and ‘must lay in it.’ This statement

clearly underscores the need for the Court to issue an order in limine which directly prevents

Plaintiff, Plaintiff’s counsel and/or Plaintiff’s witnesses from making any statements which

23

demonize or disparage Interstate as a company at trial.” Defendant’s Reply (ECF No. 130), pp.

12-13.

Whether the evidence causes the jury to think poorly of Interstate is of no moment to the

Court. That said, comments or statements by Aspen American’s counsel or any of its witnesses

that are intended to disparage or “demonize” Interstate are not evidence, and those are the types

of comments Interstate seeks to exclude. Interstate’s request is reasonable and well-taken and its

motion in limine on this point is GRANTED.

K. Claims of negligent hiring, retention, training, and/or supervision of any

of Interstate’s employees and/or agents.

Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiffs’

witnesses . . . from making any claims of negligent hiring, training, supervision, and/or retention

of any of Interstate’s employees and/or agents.” Defendant’s Memorandum in Support (ECF No.

106), p. 9. Interstate states that it “has admitted, or will admit, that all of Interstate’s employees

and agents involved in the issues being litigated in this case were acting in the course and scope

of their employment with respect to the alleged acts or omissions Plaintiff has asserted against

Interstate.” Id. Interstate cites several cases in support of the proposition that “no independent

claim of negligence shall lie against an employer for negligent hiring, training, supervision, or

retention where the employer has stipulated that the employee was acting in the course and scope

of his employment with the employer when the alleged incident occurred.” Id., p. 10 (citations

omitted). Interstate then pivots a bit to a separate evidentiary issue by arguing that Aspen

American should be precluded from presenting evidence of Interstate’s employees’ employment

and training files:

24

Furthermore, Plaintiff should be barred from introducing any evidence related to

any employee’s or agent’s employment or training files because such files and

documents are irrelevant, highly prejudicial, and do not tend to make a fact at

issue more or less true under the circumstances of this case since Interstate has

admitted, or will admit, that its employees and agents involved in the subject

warehouse collapse, including those who were involved all pre-collapse activities

and inspections, were acting within the course and scope of their employment

when the subject incident occurred. Therefore, evidence regarding any of

Interstate’s employees and/or agents employment and training files are not

relevant to any triable issue in this case and are inadmissible under Federal Rules

of Evidence 402 and 403.

Id., pp. 10-11.

Aspen American responds by first noting that it has not alleged any claim for negligent

hiring, training or supervision. But Aspen American argues that it should be permitted to present

evidence that Interstate’s employees were not adequately trained. Aspen American argues as

follows:

Defendant asserts that . . . no independent claim of negligence shall be made

against an employer for negligent hiring, training, supervision, or retention.

Plaintiff has no direct claim for negligent hiring, training, supervision, or

retention against Defendant. Defendant also wrongly argues that Plaintiff should

be barred from introducing evidence related to any employee’s or agent’s

employment or training files due to supposed lack of relevance or highly

prejudicial nature but fails to explain why this evidence is highly prejudicial or

irrelevant. Defendant incorrectly alleges that evidence of an employee’s

employment and training materials is not relevant to any triable issue in this

matter under Fed. R. Evid. 402 and 403. Defendant’s employees’ employment

records and training materials are directly relevant to the duty and breach elements

of Plaintiff’s negligence and gross negligence claims. Gross negligence is found

when “conduct is so reckless as to demonstrate a substantial lack of concern for

whether an injury results.” Xu v. Gay, 668 N.W.2d 166, 170 (Mich. App. 2003).

The jury, as factfinder, could easily conclude that Defendant’s complete lack of

training materials available to its employees for snow incidents such as the one

that resulted in the damages to Plaintiff’s goods rises to the level of gross

negligence.

It also follows, then, that the method of Defendant’s employees’ work and training

could show how Defendant’s employees breached their duty to Plaintiff through

25

the manner of their training and work as warehousemen. Evidence of their work

and training materials directly shows that Defendant’s complete disregard for

training or educating its employees amounted to a “substantial lack of concern for

whether an injury results.” Xu, 668 N.W.2d at 170. Indeed, no one at the subject

warehouse had a background or received training related to building construction,

roofing work, snow removal or building maintenance. Dkt. 41-6, p. 39-40; p 73,

li. 11 to p. 74, li. 7. Defendant’s employees’ work records and training are clearly

relevant in this matter and should be admissible at trial of this matter.

Plaintiff’s Opposition Brief (ECF No. 128), pp. 13-14. It goes without saying that Aspen

American cannot present any argument or evidence in support of a nonexistent claim. But the

real issue here is whether Aspen American can present evidence of Interstate’s employees’

training and whether those employees were capable and competent to handle the situation

involving the warehouse roof. This evidence is relevant to Aspen American’s negligence and

gross negligence claims and is admissible in that context.

Accordingly, Interstate’s motion in limine on this point is GRANTED to the extent that

Aspen American will be precluded from presenting evidence or argument that Interstate is liable

for negligent hiring, retention or supervision–claims that Aspen American admits it does not

assert–and DENIED to the extent that Interstate seeks to preclude Aspen American from

presenting evidence of Interstate’s employees’ background and training. As stated, this evidence

is relevant to Aspen American’s claims and Interstate’s objection goes to the weight to be

accorded that evidence rather than its admissibility.

L. Statements advancing a “Golden Rule” argument.

Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s

witnesses . . . from introducing evidence, making statements concerning, or conveying to the jury

in any manner that the jury should imagine itself in the Plaintiff’s position and render a verdict in

26

Plaintiff’s favor because doing so will make the community safer and will prevent Defendant

and/or others similarly situated as Defendant from harming the jurors, the jurors’ families, or

someone close to the jurors. These so called “Golden Rule” arguments are “universally

recognized as improper because [they] encourage[] the jury to depart from neutrality and to

decide the case on the basis of personal interest and bias rather than on the evidence.” . . .

Accordingly, such arguments are highly prejudicial and therefore inadmissible under Federal

Rule of Evidence 403. Defendant’s Memorandum in Support (ECF No. 106), p. 11 (citations

omitted). Interstate elaborates as follows:

Allowing Plaintiff to make any argument, mention, or elicit testimony which is

designed to sway the jury away from its role as a neutral arbiter in this case is

misconduct which would play to large of a role in the outcome and could not be

cured by asking the jury to remain neutral. The only way to ensure a fair trial for

both parties is to prevent Plaintiff from asking, mentioning, or introducing any

testimony, argument or evidence which may seek to have the members of the jury

to abandon there [sic] duty to remain neutral.

. . .

Additionally, it is anticipated that Plaintiffs’ counsel will, throughout the course

of trial, argue that the jury has the power to improve the safety of themselves,

their family members, and their community by rendering a verdict that will reduce

or eliminate allegedly “dangerous” or “unsafe” conduct.

Id., pp. 11-12. Interstate then presents a lengthy discussion of the “Golden Rule” and “Reptile”

theories, which Interstate says supports its motion. According to Interstate, the “‘reptilian

imperative’ or ‘reptile tactic,’ is based on a book by David Ball and Don Keenan entitled

‘Reptile: The 2009 Manual of the Plaintiff’s Revolution’ and seeks to convince the jury that a

verdict for the plaintiff will make the community safer because it will prevent the defendants or

others similarly situated from harming the jurors, their families, or someone close to them. This

27

argument needs to be recognized for what it truly is–an attempt to resurrect ‘Golden Rule’

arguments.’” Defendant’s Memorandum in Support (ECF No. 106), p. 12. Interstate then devotes

seven pages, nearly a third of its memorandum, to a law review type discussion of the “Golden

Rule” and “Reptilian Complex” theories as presented in Mr. Ball’s and Mr. Keenan’s book, and

why such arguments should not be permitted at trial. Id., pp. 11-17.

Aspen American’s response, in its entirety, is as follows:

Despite using 2,100+ words to explain and argue the “Golden Rule” and “Reptile”

theories in its Motion in Limine Section 12, Defendant fails to devote even one of

those words to a specific piece of evidence that it seeks to exclude in limine.

Once again, a trial court only has power to exclude evidence in limine when the

specific piece of evidence is clearly inadmissible on all potential grounds. . . .

Despite its longwindedness, Section 10 of Defendant’s Motion in Limine is

vague, overly broad, and must be denied.

Plaintiff’s Opposition Brief (ECF No. 128), p. 15.

In its reply brief, Interstate argues that all it is asking the Court to exclude are comments

or statements to the jury implying that they should find in favor of Aspen American and award

damages because doing so would protect the jurors or other people from the dangers of

improperly stored food products. Interstate argues that such comments or statements “seek[] to

draw the jury away from logic and reason and base their determination of the case on fear and

emotion.” Plaintiff’s Reply (ECF No. 130), p. 15.

The Court agrees with Interstate and GRANTS the motion in limine on this point.

“Golden Rule” and “Reptile Complex” theories aside, what Interstate is asking for in its motion

in limine is an order precluding Aspen American from making comments or statements to the

jury, explicit or implied, that are intended to appeal to the jury’s fear or emotion as outlined in

28

Interstate’s memorandum. Such statements or comments are wholly inappropriate and improper

and the Court will not tolerate them, whether they are called “Golden Rule” arguments or

“Reptilian Complex” arguments or “Please Find in Our Favor Because Defendant is Mean”

arguments. Accordingly, Interstate’s motion in limine is GRANTED on this point.

M. Testimony, argument, comment or statements advancing Plaintiff’s claim

for spoliation of evidence outside or beyond the instruction this Court has

stated will be read to the jury.

Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel and Plaintiff’s

witnesses . . . from mentioning, arguing or commenting on the alleged spoiliation of evidence

committed by Defendant.” Defendant’s Memorandum, pp. 18-19. This Court ruled in a previous

order that Interstate committed spoliation of certain evidence following the roof collapse and that

the Court would give an instruction informing the jury that it could, but was not required to, find

that the evidence destroyed by Defendant’s pursuant to local health authority orders was

unfavorable to Defendant. See Opinion and Order (ECF No. 75), pp. 18-19 (“The Court will

provide a preliminary and final jury instruction that the jury may, but is not required to, conclude

that evidence that might have been obtained from an inspection of the warehouse components

removed from the site would have been unfavorable to Interstate. . . . The jury will be permitted

to hear and consider evidence from both parties about Interstate’s failure to preserve the

structural components (or make them available for inspection) and how and to what degree

Aspen American was prejudiced by Interstate’s actions in that regard. . . . The Court reserves the

right to alter the wording to, and supplement, the preliminary and final jury instruction and to

impose other sanctions for spoliation before or during trial, if appropriate.”).

Interstate argues that a jury instruction is all that is needed and that Aspen American

29

should be precluded from arguing or even mentioning that Interstate spoliated evidence.

According to Interstate:

After the roof collapse giving rise to this litigation, Plaintiff requested that one of

its experts inspect the roof collapse site to inspect, in part, the roof joist where the

subject collapse occurred. Plaintiff’s expert made numerous attempts to inspect

the collapse site but purportedly could not see the part of the roof he desired to

inspect. Ultimately, state and local health departments directed Defendant to

remove the debris, destroy Plaintiff’s contaminated product, and remove the

“harborage” from the area. Defendant notified Plaintiff about the orders from the

state and local health departments. After a sufficient time, but before the deadline

imposed by the health departments, Defendant destroyed the contaminated

product, cleared the collapse debris and removed the harborage as directed by

state and local health officials and destroyed the collapsed roof materials.

Defendant anticipates that, at trial, Plaintiff will argue, comment, or otherwise

insinuate that Defendant’s intentionally spoiliated [sic] evidence for the sole

purpose of attacking the character of Defendant and implanting in the minds of the

jury that Defendant is deceitful, fraudulent, or attempted to cover up its negligence

in this case. However, Plaintiff should be prevented from arguing, mentioning, or

otherwise commenting on the alleged spoliation of evidence in this case pursuant

to Federal Rule of Evidence 403.

Plaintiff’s spoliation of evidence claim has already been presented and addressed

by this court in Plaintiff’s Motion for Summary Judgment regarding Plaintiff’s

claim that Defendant’s spoliated evidence. After reviewing the arguments and

designated evidence, the Court determined that Defendant’s actions did

technically meet the definition of spoliation of evidence. However, the Court also

noted that Defendant was placed between “a rock and a hard place” because it was

faced with Plaintiff’s preservation of evidence letter demanding that Defendant

preserve the warehouse structure for inspection and directives from state and local

authorities to remove and destroy the very same evidence Plaintiff requested be

preserved. Ultimately, Defendant was forced to comply with health department

authorities directives. Thus, this Court found that Defendant’s spoliation of

evidence was not a deliberate attempt by Interstate to squirrel away evidence in an

effort to prevent Aspen American from conducting an inspection and investigation

into the cause of the roof collapse. Accordingly, the Court determined that it

would give an instruction informing the jury that it could, but was not required to,

find that the evidence destroyed by Defendant’s pursuant to local health authority

orders was unfavorable to Defendant.

If Plaintiff is permitted to comment, argue or otherwise mention throughout the

trial that Defendant spoliated evidence, it would leave the impression with the

30

members of the jury that Defendant’s actions were intentional and deliberate and

an attempt to destroy unfavorable evidence. Such a result would unduly and

substantially prejudice the Defendant at trial and create a clearly unfair benefit to

Plaintiff, especially when considering Plaintiff’s purported gross negligence

claim.

Therefore, Plaintiff, Plaintiff’s counsel and Plaintiff’s witnesses should be

prohibited from mentioning, arguing or commenting on the alleged spoiliation

[sic] of evidence committed by Defendant pursuant to Federal Rule of Evidence

403, and the only mention of spoiliation [sic] of evidence at trial should come

from the Court’s previously approved jury instruction as stated in the Court’s

summary judgment order.

Defendant’s Memorandum (ECF No. 106), pp. 17-19.

Aspen American responds by contending that Interstate is attempting to preclude Aspen

American from presenting any evidence or argument regarding spoliation even though this Court

has already ruled that such evidence and argument would be permitted. According to Aspen

American:

Defendant here attempts to have its cake and eat it too: impermissibly destroy the

evidence, and then prevent the jury from drawing negative inferences from that

improper conduct. In fact, Defendant goes a step further, moving this Court to

completely bar Plaintiff from even referencing Defendant’s sanctioned conduct,

seeking to pretend as though no evidence ever existed and that the Court’s Order

(Dkt. 75), is somehow superfluous. Such request is not based in law.

Defendant alleges that because this issue has already been addressed by the Court,

it does not need to be addressed further. This is not so. The Court’s Order of

December 5, 2019, (Dkt. 75), offered the following:

The jury will be permitted to hear and consider evidence from both parties

about Interstate’s failure to preserve the structural components (or make

them available for inspection) and how and to what degree Aspen American

was prejudiced by Interstate’s actions in that regard.

Dkt. 75, p. 18.

To pretend as though spoliation is not relevant would result in jury instructions

without a reason. Defendant is attempting to maximize its benefit from having

31

spoliated evidence while reducing any possible negative inferences that may be

drawn from such actions. This defeats the purpose of a determination of spoliation

of evidence and should not be granted.

Plaintiff’s Opposition Brief (ECF No. 128), pp. 15-16.

Interstate replies by reiterating its position that an instruction regarding spoliation, which

the Court indicated it would give to the jury, is all that is necessary to ensure that Aspen

American’s spoliation argument is presented to the jury and that argument or evidence on that

point would be unduly prejudicial. According to Interstate:

Predictably, Plaintiff argues that the Court’s sanction is not enough. Plaintiff

wants to deny Interstate all opportunity to present a defense in this matter in order

to present Plaintiff’s position and turn what is a minor sanction into the crux of

the case and prevent Interstate from receiving a fair trial. Of course, Plaintiff is

free to notify the jury that Mr. Goes was not able to perform all of the inspection

activities he wanted to perform because the components were removed. Mr. Goes

is also free to testify about what evidence he would have been looking for if he

would have performed the inspection he wanted to perform. However, that is as

far as Plaintiff’s evidence should be permitted to go. To allow Plaintiff to go

further would be to impose a more harsh sanction on Interstate than the Court

deemed was warranted under the circumstances, would severely prejudice

Interstate at trial, and would ensure that Interstate does not receive a fair trial. As

such, the Court must limit Plaintiff’s presentation of evidence and its references to

the word “spoliation” and the negative connotation that would surely be carried

with it.

Defendant’s Reply (ECF No. 130), pp. 16-17.

Interstate’s concern about the negative connotation of the word spoliation and the impact

that evidence of spoliation might have on the jury is understandable; but it goes with the territory.

As Aspen American points out, the Court has already addressed the issue of spoliation,

concluded that Interstate did commit spoliation, and expressly held that both parties would be

permitted to present evidence on this point and that an appropriate jury instruction would be

provided to the jury. The Court did not hold that Aspen American would be precluded from

32

presenting any evidence or argument on the issue of spoliation. Accordingly, Interstate’s motion

in limine is DENIED on this point.

N. Testimony, argument, comment or statements advancing Plaintiff’s claim

that Defendant was “grossly negligent.”

Interstate moves the Court to preclude Aspen American from presenting evidence or

argument on its claim for gross negligence, arguing as follows:

Interstate anticipates that Plaintiff, its counsel, or Plaintiff’s witnesses will attempt

to argue, suggest, or make comment that Interstate was grossly negligent in this

matter. However, Plaintiff, its counsel and Plaintiff’s witnesses should not be

allowed to argue, suggest, and or make any comment regarding Plaintiff’s belief

or claim that Interstate was grossly negligent in this case. Plaintiff’s sole purpose

for asserting a gross negligence claim in this case is because Plaintiff is seeking to

avoid the limitations of damages clause which was a part of the Warehouse

Contract between Plaintiff’s insured and Defendant.

Defendant’s Memorandum (ECF No. 106), p. 19.

In response, Aspen American insists that this section of Interstate’s motion in limine is an

improper attempt to preclude evidence of a claim that this Court has already ruled must be

presented to a jury. Aspen American argues as follows:

The primary claim of Plaintiff’s case in chief can be summarized in one simple

point that the jury must decide: whether the warehouse roof collapse was the

result of Defendant’s gross negligence. To somehow seek to prevent Plaintiff

from presenting the lynchpin issue in its case is bizarre, flawed on its face,

unfounded in relevant case law, and must be denied.

Defendant alleges that this evidence would somehow be prejudicial. This is a

clear tactic to attempt to avoid permitting the jury to find that Defendant was

grossly negligent. If successful, Defendant theorizes it would then be shielded by

alleged contractual limitations. The fear that the jury would not be able to

distinguish between the threshold of gross negligence and ordinary negligence is

baseless. This Court recognized the issue squarely when ruling on the parties’

summary judgment motions: “Genuine issues of material fact preclude a finding

that the limitation clause is enforceable as a matter of law. Fact issues exist

concerning the reasonableness of Interstate’s actions, i.e., whether they constituted

33

gross negligence, and so Interstate is not entitled to summary judgment on the

issue of its ability to limit its liability.” (Dkt. 56, p. 19). “The issue of Interstate’s

alleged gross negligence must be determined by a jury. . . .” Id. at p. 27.

Plaintiff’s Opposition Brief (ECF No. 128), pp. 16-17 (citing and quoting Court’s March 13,

2019, Opinion and Order (ECF No. 56)). Aspen American insists that “it is for the jury to decide

whether Defendant’s conduct rose to the level of gross negligence.” Id., p. 17. Interstate’s reply

reiterates its argument that a jury instruction is all that is needed to present the issue of gross

negligence to the jury and that no evidence on that point is needed (and that admitting it would

unduly prejudice Interstate).

Aspen American is correct that Interstate’s request is bizarre, especially in light of this

Court’s prior rulings on the issue of gross negligence. The issue is one for the jury to decide and

the jurors must hear evidence in order to do so. Interstate’s motion in limine on this point

amounts to a disguised motion for partial summary judgment, since Interstate argues that its

actions did not amount to gross negligence as that term is defined by Michigan law. But as Aspen

American points out, this issue has already been addressed and decided. Accordingly, Interstate’s

motion in limine on this point is DENIED.

O. Testimony, Argument, Comment or Statements regarding the limitation

of damages clause contained in the warehousing agreement at issue in this

case.

Interstate moves the Court to preclude “Plaintiff, Plaintiff’s counsel, and Plaintiff’s

witnesses . . . from mentioning, arguing, testifying or otherwise informing the jury about the

limitation of damages clause contained in the warehousing agreement between the parties

pursuant to Federal Rule of Evidence 403.” Defendant’s Memorandum (ECF No. 106), p. 21.

Interstate argues as follows:

34

On April 23, 2013, Plaintiff’s insured and Defendant entered into a warehousing

contract. The warehousing contract contained an explicit limitation of damages

clause which limited Defendant’s liability if Plaintiff’s stored goods were

damaged while stored in Defendant’s warehouse. . . .

First, the fact that there was a limitation of damages clause is not relevant to any

issue in this case. There is no dispute that the limitation of damages clause exists

in this case, that the clause is applicable if Defendant is found to be negligent, and

that the clause is not applicable if Defendant is found to be grossly negligent for

the warehouse collapse at issue in this case. Accordingly, the only issue that the

jury needs to determine is if the subject roof collapse was an Act of God under

Michigan law, whether Defendant was negligent and such negligence was the

proximate cause of the roof collapse, or, if Defendant was negligent, did

Defendant’s actions amount to gross negligence. The limitation of damages clause

has no bearing weather [sic] o[r] not Defendant was negligent (or grossly

negligent) or not [sic]. As such, the limitation of damages clause is not relevant

pursuant to Federal Rule of Evidence 402 and such evidence should be excluded

at trail.

Additionally, Defendant anticipates that Plaintiff will attempt to introduce the

limitation of damages clause at trial because of Plaintiff’s claim of gross

negligence. As noted by the Court during summary judgment proceedings, if

Defendant is found to have been simply negligent, then the limitation of damages

clause in this case will limit Plaintiff’s recovery. However, if Plaintiff can

convince the jury that Defendant was grossly negligent in preventing the

warehouse roof collapse, then the limitation of damages clause will not affect

Plaintiff’s recovery. As such, by mentioning the limitation of damages clause,

which is irrelevant to Defendant’s alleged negligence, Plaintiff can attempt to

inflame the passion and sympathy of the jury and prejudice Defendant by

indicating how much the limitation of damages clause in the warehousing contract

would limit Plaintiff’s recovery of its claimed full damages. Therefore, Plaintiff,

Plaintiff’s counsel, and Plaintiff’s witnesses should be barred from mentioning,

arguing, testifying or otherwise informing the jury about the limitation of damages

clause contained in the warehousing agreement between the parties pursuant to

Federal Rule of Evidence 403.

Id., pp. 20-21.

Aspen American responds by arguing that the limitation of damages clause is part of the

warehouse contract between the parties and insisting that “[t]here is no question that the entirety

of the contract between Plaintiff and Defendant, including the limitations of damages clause, is

35

relevant.” Plaintiff’s Opposition Brief (ECF No. 128), p. 18. Aspen American insists that “[t]he

jury, as finder of fact, is entitled to hear all relevant evidence, including the terms of the

agreement of the parties.” Id., p. 19.

Interstate replies by arguing that the warehouse agreement or contract between the parties

should be excluded from the evidence altogether because it is undisputed that a contract existed

and that Aspen American has alleged that Interstate breached it. Therefore, the

contract–including the limitations clause–is irrelevant to the issues the jury must decide and its

introduction into evidence would unduly prejudice Interstate because it could potentially cause

the jury to determine that Interstate was grossly negligent not based on the evidence of

Interstate’s conduct but instead on the fact that Aspen American could not recover as much in

damages if the jury were to conclude that Interstate was only liable for ordinary negligence. But

as Interstate points out, “by mentioning the limitation of damages clause, which is irrelevant to

Defendant’s alleged negligence, Plaintiff can attempt to inflame the passion and sympathy of the

jury and prejudice Defendant by indicating how much the limitation of damages clause in the

warehousing contract would limit Plaintiff’s recovery of its claimed full damages.” Defendant’s

Reply (ECF No. 130), p. 21. Interstate concludes by arguing as follows:

[D]espite the fact that the Agreement should not be presented to the jury, Plaintiff

seeks to introduce it at trial because, as indicated in Interstate’s Memorandum of

Law in Support of its Motion in Limine, Plaintiff wants to argue or comment

about the limitation of damages clause in front of the jury to engender sympathy

so that the jury will find that Interstate was grossly negligent. Plaintiff hopes that

the jury will find that the limitation of damages clause in the Agreement is unfair,

will abandon logic and reason, and will find that Interstate was grossly negligent

so that Plaintiff can avoid the limitation of damages clause. Because of this,

namely engendering sympathy, the Agreement’s probative value is greatly

outweighed by the risk of prejudice at trial. This is especially true in light of the

fact that there is no dispute about the existence of the Agreement or the

36

Agreements contents. As such, even if the Agreement was relevant, which it is

clearly not, the Agreement should be excluded at trial pursuant to F.R.E 403.

Id., p. 20.

The Court agrees with Interstate that the warehouse contract itself is not relevant and the

introduction of the contract, containing the limitations clause, would be unduly prejudicial. The

jury’s duty will be to determine whether Interstate was negligent or grossly negligent and the

limitations clause in the parties’ contract is not relevant to that issue. As Interstate points out, if

the jury finds that Interstate was not negligent, the limitations clause is rendered moot; if the jury

finds Interstate liable for ordinary negligence, the limitations clause would apply to limit Aspen

American’s recovery; and if the jury finds that Interstate was grossly negligent, the limitations

clause would not apply and the jury will assess damages accordingly. Therefore, the contract

itself is irrelevant–all the jury needs to know is the undisputed fact that the parties entered into a

contract for Interstate to store Aspen American’s insured’s food products and that Aspen

American alleges that Interstate breached that contract by negligently causing the destruction of

those products. Whether the limitation clause applies is not an issue the jury needs to decide. It

will be decided implicitly by the jury’s verdict on the issues of negligence and gross negligence,

which the jurors must render based only on their assessment of Interstate’s conduct, not on the

amount of damages Aspen American may or may not be able to recover as a result of that verdict.

Accordingly, the Court GRANTS Interstate’s motion in limine on this point.

P. Testimony, Argument, Comment or Statements implying than the

substantive law of any other jurisdiction, other tha[n] Michigan Law,

should apply to this case.

Interstates moves the Court to preclude “Plaintiff, Plaintiff’s counsel and Plaintiff’s

37

witnesses . . . from commenting, arguing, testifying or making any statements that the substantive

law of any other state other than the laws of Michigan should be applied in this case. During the

summary judgment proceedings in this case, both parties agreed that Michigan law controlled in

this case. In fact, the Court noted the parties[’] agreement in [its] summary judgment order and

found that Michigan law would apply in this case. Therefore, Plaintiff should be barred from

arguing or attempting to applying the substantive law of any other state other than the State of

Michigan.” Defendant’s Memorandum (ECF No. 106), p. 21-22.

For once Aspen American does not disagree with Interstate’s position. In keeping with

the tenor of this litigation, however, Aspen American does not simply concede the point, instead

responding as follows: “Plaintiff concedes that Michigan law applies to this case. By making this

contention, Plaintiff nonetheless maintains that the Federal Rules of Civil Procedure and the

Federal Rules of Evidence also apply to this case.” Plaintiff’s Opposition Brief (ECF No. 128), p.

19.

In reply, Interstate makes an additional (and equally unnecessary) point:

Plaintiff does not appear to object to Interstate’s sixteenth Motion in Limine

regarding the fact that Michigan law controls the substantive issues in this case.

Plaintiff’s argument, to the extent there is an argument, is that the Federal Rules

of Civil Procedure and the Federal Rules of Evidence also apply in this case.

However, Interstate’s sixteenth Motion in Limine only applies to the substantive

law governing this case. The Federal Rules of Civil Procedure and the Federal

Rules of Evidence are procedural laws which Interstate agrees control the

procedural aspects of this case.

Defendant’s Reply (ECF No. 130), p. 20. Both sides are correct: Michigan law applies to the

substantive claims, which both sides concede, and the Federal Rules of Civil Procedure and the

Federal Rules of Evidence apply to the procedural aspects of the trial. So why was the Court

38

required to spend time reviewing the parties’ briefs on this issue and addressing the matter?2 In

any event, Interstate’s motion in limine is GRANTED on this point and neither party may present

evidence or argument that any law other than Michigan state law applies to the substantive

claims in this case (assuming either side was going to do so). Moving on.

Q. Testimony, argument, comment or statements based on pure speculation

and conjecture and are not supported by known facts or evidence.

Lastly, Interstate moves the Court to preclude “Plaintiff’s counsel or Plaintiff’s witnesses

[from] attempt[ing] to introduce evidence or testify about facts or evidence which are not known

or supported in this case[]” on the basis that “speculation and conjecture are not sufficient to

support negligence under Michigan law.” Defendant’s Memorandum (ECF No. 106), p. 22

(citation omitted). Interstate insists that “based on well-settled Michigan law, and Federal Rules

of Evidence 401, 402 and 403, Plaintiff, Plaintiff’s counsel, and Plaintiff’s witnesses should be

barred from introducing evidence or testimony which is based on speculation and conjecture.” Id.

Aspen American responds by arguing as follows:

Defendant once again fails to mention any specific piece of evidence . . . . Instead,

it merely presents the broad assertion that speculation and conjecture are not

sufficient to support a theory of negligence.

As fully briefed in Plaintiff’s Motion in Limine #8 . . . , Plaintiff’s witnesses, both

2 As noted above, Interstate repeatedly accuses Aspen American of lodging unnecessary

objections to its motion in limine simply for the sake of objecting, which is largely true. But on

this point both Interstate and Aspen American engage in unnecessary quibbling over a matter on

which they agree, playing a game of one-upmanship over the applicability of the Federal Rules.

Rather than simply stating its agreement that Michigan law applies, Aspen American felt

compelled to jump in and add that the Federal Rules also apply, causing Interstate to poke back

by arguing, “Yes, but the Federal Rules only apply to procedural matters!” Neither party has put

much effort at all into picking its battles, opting instead to throw all manner of issues–real and

concocted–into their motions in limine, and to contest or argue about issues on which there is no

real dispute.

39

expert and lay, will necessarily offer certain speculations and implications due to

Defendant’s spoliation of evidence. And as more fully explained in Section XIII

supra, to pretend as though spoliation is not relevant, and therefore speculations

and implications are barred from being made, would result in Defendant

benefitting from spoliating evidence and reducing any possible negative

inferences that may be drawn from such actions.

Plaintiff’s Opposition Brief (ECF No. 128), p. 19.

In its reply, Interstate does not completely agree with nor completely dispute Aspen

American’s argument:

[W]hile Interstate agrees that Plaintiff’s witnesses can testify about the evidence

for which they would have looked if they had performed a through inspection

during the numerous times they were onsite. However, Plaintiff’s witnesses

should not be allowed to testify what they “believe” or “think” the evidence would

have shown. Such testimony would violate the Court’s sanction order, would

severely prejudice Interstate, and would deny Interstate a fair trial.”

Defendant’s Reply (ECF No. 130), p. 21. Once again, both sides have a point. Aspen American is

correct that it is proper for witnesses to offer opinions or assessments under certain

circumstances; and Interstate is correct that opinions that are based solely on speculation or

conjecture are rarely admissible. In this instance Aspen American’s argument that Interstate’s

motion in limine on this point is overly broad is correct. Whether any witness, expert or lay, may

offer opinion testimony depends on the nature and context of that witness’ testimony (and, of

course, their personal knowledge of the facts about which they are testifying). This is not an issue

that can be addressed now and a blanket order precluding Aspen American from presenting any

testimony containing opinion, speculation or conjecture is unwarranted. Instead, such issues can

only be resolved during trial upon objection of a party to the testimony of a witness. Accordingly,

the Court DENIES Interstate’s motion in limine on this point.

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II. Motion for Separation of Witnesses.

In addition to its motion in limine, Interstate filed a separate motion for separation of

witnesses, stating as follows:

Defendant, Interstate Warehousing, Inc., by counsel, hereby respectfully moves

the Court, pursuant to Rule 615 of the Federal Rules of Evidence, for an order

separating each witness on Plaintiff’s witness list and any rebuttal witnesses called

by Plaintiff, excluding the designated representative of Aspen American Insurance

Co. who will be representing Plaintiff at trial, during the trial of this matter and

precluding such witnesses from remaining inside the courtroom during any

portion of the trial apart from the time each witness must be in the courtroom to

give his or her testimony. Defendant further requests that the Court instruct the

witnesses to refrain from discussing with any other witnesses what his or her

testimony was or is expected to be or what occurred inside the courtroom during

that witness’s testimony.

Defendant’s Motion for Separation of Witnesses (ECF No. 107), p. 1. This, of course, is a

common and perfunctory pretrial request and Aspen American does not oppose it (having not

filed a response to the motion). Accordingly, the motion for separation of witnesses is

GRANTED.

III. Motions in Limine and Motion to Correct filed by Plaintiff Aspen American.

Aspen American filed eight motions in limine (ECF Nos. 108 through 115, inclusive) and

a Motion for Leave to Correct Its Motion In Limine #7 (ECF No. 116). In the latter motion,

Aspen American requests leave to attach an exhibit to its motion in limine #7 that was

inadvertently not included when the motion was filed. Interstate did not file a response to the

motion and so it is unopposed. The Court GRANTS the motion. The exhibit, attached as Exhibit

1 to Aspen American’s motion (and docketed as ECF No. 116-1) is admitted and will be

considered by the Court when addressing Aspen American’s motion in limine #7.

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A. Plaintiff’s Motion in Limine #1–Motion in Limine to Exclude any

Evidence in Support of Defendant’s “Act of God” Affirmative Defense.

Aspen American moves the Court “to bar any and all voir dire, statement, testimony,

questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or

otherwise, at any time during the course of trial to convey to the jury information regarding or

making references or comparison that an act of God may have contributed to or was the

proximate cause of the injuries sustained by Plaintiff.” Plaintiff’s Motion in Limine #1 (ECF No.

108), p. 1. Interstate, of course, has asserted the Act of God affirmative defense, claiming it is not

liable for the roof collapse and subsequent destruction of the food products because those losses

were the result of an act of God, i.e., the alleged historic snowfall, not the result of any

negligence on the part of Interstate. Aspen American, however, argues that Interstate should be

precluded from presenting evidence or argument in support of this defense because it is

unsupported under Michigan law. Aspen American argues as follows:

Michigan law recognizes “act of God” as an affirmative defense that requires a

defendant to show that the roof collapse . . . proceed[ed] from natural causes and

cannot be anticipated and provided against, such as unprecedented storms, or

freshets, lightning, earthquakes, etc.” Golden & Boter Transfer Co. v. Brown &

Sehler Co., 177 N.W. 202, 204 (Mich. 1920).

There is little argument as to the material facts themselves in this matter: the snow

accumulation on the roof of Defendant’s warehouse gradually increased over the

weeks leading up to the collapse itself. Defendant knew that heavy snow

accumulations could cause the roof to collapse. Further, defendant had the ability

to shore the roof from the inside or remove snow from the roof to reduce the

weight on the roof.

As such, Defendant should be barred from presenting evidence to the factfinders

that it could not have anticipated or provided against this snow. Human

agency–that is, the conscious decision to allow the snow to continue to

accumulate atop the roof–at minimum contributed to Aspen’s losses. “Act of

God” must be eliminated from Defendant’s arsenal.

42

Id., p. 2.

Interstate responds by arguing as follows:

At the heart of this issue is the question of whether the snow storm(s) prior to the

subject collapse was/were unprecedented. Interstate argues that the storms were

unprecedented and not anticipated while Plaintiff claims the opposite. Which

party’s position is correct is a quintessential question that must be resolved by the

jury. The meteorological data, which will be presented at trial, clearly shows that

the region where the subject collapse occurred experienced one of the highest

snowfalls in history. As such, the historical data indicates that the snow storm

giving rise to the subject collapse could be deemed “unprecedented” by the trier of

fact. Plaintiff claims that the snowfall was not unprecedented, but fails to provide

any cogent argument that shows why the storm was not unprecedented. The best

Plaintiff can do is argue that the snow fall giving rise to subject collapse occurred

for over a period of weeks. This argument might go to the anticipation element of

the unprecedented storm, but by no means proves that the storm could be

anticipated.

This again is a question for the jury to decide. To perform its function, the jury

must be presented the evidence. If Defendant is successful in carrying its burden,

there is sufficient evidence for the jury to find that the subject collapse was an

“Act of God.”

Defendant’s Response to Plaintiff’s Motion in Limine #1 (ECF No. 119), pp. 2-3.

In reply, Aspen American reiterates its arguments that Interstate should be precluded from

presenting its Act of God defense because it has no evidence to support it and because Interstate

spoliated evidence thereby preventing either side from determining the proximate cause of the

roof collapse. Plaintiff’s Reply (ECF No. 141), pp. 1-3.

This Court declines Aspen American’s invitation to preclude Interstate from presenting

its Act of God defense, since doing so would require the Court to find facts and weigh the

evidence. As the Court stated in its previous order ruling on Aspen American’s motion for partial

summary judgment, “[i]n the present case, whether an Act of God was the sole proximate cause

43

of the injury underlying this lawsuit is for a jury to decide, since Interstate’s affirmative defense

is intertwined with the issue of its alleged gross negligence.” Opinion and Order of March 13,

2019 (ECF No. 56), p. 19. Accordingly, Aspen American’s motion in limine #1 is DENIED.

B. Plaintiff’s Motion in Limine #2–Motion in Limine to Exclude

Unauthenticated Climatological or Meteorological Data.

Aspen American moves the Court “to bar evidence Defendant may attempt to admit

relating to the weather conditions that existed both at the time Plaintiff suffered its damages and

the months leading up to said event.” Plaintiff’s Motion in Limine #2 (ECF No. 109), p. 1. Aspen

American argues as follows:

In its responses to Plaintiff’s discovery requests, and throughout its motion

practice, Defendant has referenced documents that either purport to explain

weather conditions that existed in the months leading up to the Roof Collapse, or

purport to provide historical context for annual snowfall in “Grand Rapids Area,

MI.” See Defendant’s Designation of Evidence in Support of Motion for Partial

Summary Judgment (Dkt. 37), Exhibits G and H. However, at no point has

Defendant identified a witness that can lay proper foundation establishing that

these documents accurately and verifiably provide snowfall data for Grand

Rapids, MI, let alone that this data can somehow be traced back to the snowfall at

the warehouse location specifically.

Moreover, admission of these documents without proper authentication, or

without a witness to explain how the data relates to the warehouse location itself,

would unfairly prejudice Plaintiff and mislead the jury, encouraging them to

simply apply the broad snowfall data to the warehouse location itself without the

requisite corroboration of a climatological/meteorological expert or the individual

who compiled the data him/herself.

Id., p. 2.

In response, Interstate contends that the climatological data at issue is admissible on

several bases, including pursuant to Federal Rule of Evidence 901 because Interstate “may call an

individual from the NOAA to testify at trial to authenticate the subject climatological data

44

previously produced by Interstate[,]” that the data is self-authenticating pursuant to Fed.R.Evid.

902(5) as a publication of an official agency (the NOAA), and/or that this Court could take

judicial notice of the document pursuant to Federal Rule of Evidence 201. Defendant’s Response

(ECF No. 120), pp. 1-5. Interstate also points out that Aspen American “has been in possession

of the historical weather data for upwards of five (5) years and its purported meteorological

expert, Mark McGinnis, utilized the same historical weather data, as well as additional data, in

his expert witness report. Accordingly, if deemed necessary, Plaintiff can have Mr. McGinnis

give context to the historical weather data in his testimony at trial.” Id., p. 5.

In reply, Aspen American reiterates its argument that “the identification of the ‘Grand

Rapids Area’ does little to aid the jury in determining how much snowfall was at the precise

location where the Roof Collapse occurred.” Plaintiff’s Reply (ECF No. 142), p. 1.

Interstate’s arguments are well taken and sufficient to defeat Aspen American’s motion in

limine #2. But there is another more fundamental reason to deny it, which is that Aspen

American’s objection goes to the weight to be accorded the evidence rather than its admissibility.

Accordingly, Aspen American’s motion in limine #2 is DENIED.

C. Plaintiff’s Motion in Limine #3–Motion in Limine to Exclude Expert

Opinions by Persons Who Have not Been Timely Disclosed.

Aspen American moves the Court “[p]ursuant to Federal Rules of Evidence 104(a) and

Federal Rules of Civil Procedure 26 and 37, . . . for this Court to preclude Interstate . . . from

offering at trial any expert witnesses. Defendant has never disclosed any expert witnesses in this

matter.” Plaintiff’s Motion in Limine #3 (ECF No. 110), p. 1.

Interstate responds by stating that it “does not object to the principle that Defendant

45

should not be permitted to call any witness who was not or has not been disclosed in this matter.

However, Interstate does object to Plaintiff’s Motion in Limine as it pertains to Lisa

Stefanovsky.” Defendant’s Response to Plaintiff’s Motion in Limine #4 (ECF No. 122), p. 1.

Interstate explains that:

Lisa Stefanovsky is a Health Officer with the Ottawa Department of Public

Health. On or about March 11, 2014, one day after the roof collapse giving rise to

this matter, Ms. Stefanovsky authored a letter advising Interstate that the certain

food products stored in the warehouse at the time of the collapse, including the

food owned by Plaintiff’s insured, was seized by the Michigan Department of

Agriculture. In addition, Ms. Stefanovsky’s March 11, 2014 letter directed

Interstate to destroy the seized food product and remove the collapsed portion of

the warehouse roof.

Plaintiff’s attempt to exclude Ms. Stefanovsky from testifying must be denied.

First, Plaintiff, or Plaintiff’s counsel, was provided Ms. Stefanovsky’s March 11,

2014 letter during discovery in this case. As such, Ms. Stefanovsky was disclosed

during discovery and Plaintiff, or Plaintiff’s counsel, knew, or should have

known, that she had information relevant to Plaintiff’s claims and Interstates

defenses in this case. As such, Plaintiff’s claim that Ms. Stefanovsky was not

disclosed and that her testimony would surprise and prejudice Plaintiff is

completely baseless.

Additionally, one of the claims asserted by Plaintiff against Interstate is that

Interstate committed conversion with respect to Plaintiff’s insured’s food product

stored at the Warehouse. Ms. Stefanovsky’s testimony in this case is highly

relevant in this case, in particular, as it relates to Plaintiff’s conversion claims

asserted against Interstate. Ms. Stefanovsky’s testimony will clearly demonstrate

that Interstate did not convert Plaintiff’s insured’s food products in this case.

Even assuming that Ms. Stefanovsky was not disclosed in discovery, which she

clearly was, her testimony is highly relevant, extremely probative, and Ms.

Stefanovsky should be allowed to testify at the trial of this matter.

Furthermore, Ms. Stefanovsky is the author of the March 11, 2014 letter. As such,

Ms. Stefanovsky is the record custodian who can, if necessary, provide testimony

to authenticate the Ottawa Department of Public Health Record for admission at

trial. As such, even if Ms. Stefanovsky does not provided any substantive

testimony at the upcoming trial of this matter, she should be permitted to testify

for purposes of authenticating the March 11, 2014 letter from the Ottawa

Department of Public Health at trial.

46

Id., pp. 1-3.

In reply, Aspen American argues as follows:

Defendant argues that it should be spared the consequences of its failure to

disclose Lisa Stefanovsky pursuant to Fed. R. Civ. P. 26 because, during the

course of discovery, it provided to Plaintiff a letter authored by Ms. Stefanovsky.

Dkt. 122 at 2. Notably, nowhere in the Response does Defendant even attempt to

convince the Court that it complied with the requirements of the Rule.

Fed. R. Civ. P. 26 has no exception for instances where a party provides a letter

written by a third party during the course of discovery to the opposing party but

fails to identify the letter author as a potential witness. Nor does Defendant offer

any case law in its Response to support this peculiar position.

Plaintiff’s Reply (ECF No. 133), p. 1.

Interstate argues that Ms. Stefanovksy’s testimony would be relevant to Aspen

American’s conversion claim. However, on July 30, 2021, while the motions in limine were

pending, the Court ruled on Interstate’s motion for partial summary judgment and granted the

motion as to Aspen American’s conversion claim. Opinion and Order (ECF No. 144). Since there

is no conversion claim remaining in this case, Ms. Stefanovsky’s testimony is not needed on that

issue. Accordingly, Aspen American’s motion in limine will be GRANTED in part and DENIED

in part. The Court holds that neither party will be permitted to call any expert witness who has

not been timely disclosed. However, to the extent that Ms. Stefanovsky’s testimony would be

required to authenticate her letter, the motion is denied.3

D. Plaintiff’s Motion in Limine #4–Motion in Limine to Exclude Testimony

of Witnesses Who Have Not Been Timely Disclosed.

3 A stipulation by the parties that the letter is authentic would obviate the need for Ms.

Stefanovsky’s appearance at trial. The Court encourages the parties to put forth a more concerted

effort to stipulate to the admission of as many exhibits as possible when they construct a Final

Pretrial Order.

47

Aspen American moves the Court “ to preclude Interstate . . . from offering testimony

from any witnesses that it has not yet disclosed. Plaintiff seeks to prevent Defendant from

offering at trial any testimony from witnesses who have not been disclosed within the required

time. Under Fed. R. Civ. P. 26 and 37, parties cannot introduce testimony at trial by a witness

that was not disclosed prior to the discovery deadline and within a timely manner.” Plaintiff’s

Motion in Limine #4 (ECF No. 111), p. 1. In the body of its motion, Aspen American again

addresses the testimony of Ms. Stefanovsky and argues that it should be excluded due to

Interstate’s alleged failure to properly identify her as a witness. Id., pp. 2-5. Aspen American

does not challenge any other specific witnesses, but contends that Interstate “has failed to

disclosure [sic] the identity of Stefanovsky until the eve of trial. Accordingly, Defendant should

be precluded from calling Stefanovsky, or anyone else not timely disclosed, as witnesses at trial.”

Id., p. 5.

The Court has already ruled on the admissibility of Ms. Stefanovsky’s testimony, limiting

it as outlined above. In that regard, Aspen American’s motion is moot. However, as to the basic

proposition that Interstate “should be precluded from calling [any witness] not timely disclosed”

is a valid request that, once again, applies equally to both sides. To that extent, the motion is

GRANTED and neither party shall be permitted to call any witness not previously and properly

disclosed.

E. Plaintiff’s Motion in Limine #5–Motion in Limine to Exclude Reference

to Snow Removal Policies.

Aspen American moves the Court “to bar any and all voir dire, statement, testimony,

questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or

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otherwise, at any time during the trial that conveys to the jury information regarding, making

references to, or comparing alleged policies and procedures that Interstate . . . had in place for

snow removal at the time of the incident.” Plaintiff’s Motion in Limine #5 (ECF No. 112), p. 1.

Aspen American elaborates as follows:

Not once has Defendant come forward with evidence of the existence of any

policy and procedure regarding snow removal or snow events in effect at the time

of the incident throughout the course of discovery in this matter. In fact,

Defendant’s employee, Nate Tippmann (“Tippmann”), testified that Defendant

did not have a policy or procedure in effect regarding snow removal or snow

events in 2014. Defendant has blatantly admitted this point in past filings: “While

there were no written procedures or instructions for snow removal from the roofs

of any of Defendant’s facilities prior to March 2014, maintenance personnel at the

Hudsonville warehouse would routinely remove snow from around the openings

of scuppers (drains) and drainage paths when the accumulation would exceed an

estimated ten (10) inches.” Defendant’s Memorandum of Law in Support of

Defendant’s Motion for Partial Summary Judgment (Dkt. 36) at 3. Defendant

cannot now introduce a policy or procedure regarding snow removal or snow

events at the time of the incident at the trial of this matter, and this Court should

enter an order barring Defendant from doing so at trial.

Id., p. 2 (italics in original).

In response, Interstate contends that:

Plaintiff’s argument that Defendant never provided evidence of a policy or

procedure with regard to snow removal during the pendency of this litigation

clearly misstates the evidence and is not supported by admissible evidence

developed in this matter. Plaintiff cites to the Deposition of Nate Tippmann dated

June 11, 2015 to support this statement; however, a reading of the deposition

transcript shows that Mr. Tippmann, in reality, stated that Interstate did not have

formal written policies and/or programs in place regarding snow event response

or snow removal. See PLAINTIFF’S EXHIBIT 5, DEPOSITION OF NATE

TIPPMANN DATED JUNE 11, 2015 at page 250, lines 2-14. However, earlier in

the same deposition, Mr. Tippmann described the informal verbal snow removal

policies, those being that warehouse personnel would routinely remove snow from

around the opening of the scuppers (drains) and drainage paths when the

accumulation would exceed an estimated ten (10) inches. See PLAINTIFF’S

EXHIBIT 5, DEPOSITION OF NATE TIPPMANN DATED JUNE 11, 2015 at

page 119, lines 5-8; 121, lines 1-4. See also PLAINTIFF’S EXHIBIT 6 AT 47,

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LINES 15-18. Further, Plaintiff’s own purported snow removal expert

acknowledged in his deposition various verbal policies Interstate Warehousing

had in place at the time of the collapse with respect to addressing and monitoring

snow loads on the warehouse roof. See DEPOSITION OF JEREMY SWENSON

at page 43, lines 14-16, page 44, lines 10-20; [Exhibit A]. Therefore, Plaintiff’s

claim that Interstate had no policies for snow removal is not supported by the

evidence developed in this case. In fact, the opposite is true, and Plaintiff’s own

expert, Mr. Swenson, has so acknowledged this in his deposition.

Defendant’s Response to Plaintiff’s Motion in Limine #5 (ECF No. 123), p. 2 (italics and

capitalization in original; boldface added).

In reply, Aspen American concedes that Interstate can introduce evidence of its informal

procedures for snow removal, but continues to maintain that Interstate cannot present evidence at

trial of any formal written policies or procedures (because none existed):

Defendant concedes in its Response that “it did not have a written snow removal

policy in place, and that it has not produce[d] a written snow removal policy in

discovery.” Dkt. 123 at 3. Defendant also agrees that it should not be allowed to

introduce evidence of a written policy at trial. Id. Plaintiff concurs with these

admissions by Defendant. Based upon these two concessions alone, Plaintiff’s

underlying Motion should be granted.

Even if the Court grants Plaintiff’s underlying Motion, Defendant will be free to

present evidence that its conduct did not rise to the level of gross negligence. An

order preventing Defendant from making references or comparisons to snow

removal policies or procedures would not necessarily prevent its witnesses,

whether employees, officers, or the like, from testifying to the discussions they

had amongst themselves regarding the removal of the snow during the date and

time in question, or at any point prior. But to now allege after over six years of

litigation that these verbal discussions rose to the level of “policies” or

“procedures” and then to characterize them as such within the purview of the jury

would be highly prejudicial to Plaintiff.

Plaintiff’s Response (ECF No. 134), pp. 1-2 (italics added).

Once again there does not appear to be any disagreement here. As Interstate concedes in

its response brief:

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Interstate agrees that it did not have a written snow removal policy in place on the

date of the subject accident, and that it has not produce a written snow removal

policy in discovery. Therefore, at most, Interstate should not be allowed to

introduce evidence of a written snow removal policy. However, barring Interstate

from presenting any evidence of its verbal snow removal policies would be

extremely prejudicial and would, essentially, prevent Interstate from providing

any defense against Plaintiff’s claim in this matter.

Defendant’s Response to Plaintiff’s Motion in Limine #5 (ECF No. 123), p. 3. So Interstate

concedes that it cannot introduce evidence of any formal or written snow removal policy, but

contends that it can still present evidence of its informal procedures for snow removal, which is

correct. This evidence, obviously, is relevant to the issues in this case, especially the linchpin

claims of negligence and gross negligence. Accordingly, Aspen American’s motion in limine on

this point is GRANTED in part (precluding Interstate from mentioning or presenting any

evidence of a formal snow removal policy or written procedure) and DENIED in part (permitting

Interstate to present evidence and testimony regarding its informal procedures for dealing with

excessive snow accumulation on the warehouse roof.)

F. Plaintiff’s Motion in Limine #6–Motion in Limine to Exclude Defendant’s

Untimely Document Production.

Aspen American moves the Court “to bar any and all voir dire, statement, testimony,

questioning, impeachment, cross-examination, expert testimony, or argument, by innuendo or

otherwise, at any time during trial that conveys to the jury information stemming from

Interstate[’s] . . . untimely, amended discovery responses (and documents produced therewith).

Further, Plaintiff moves for an order from this Court barring Defendant’s use or citation to

documents not produced in discovery, including but not limited to Document 67-1 (email from

Ralph Den Hartigh); Document 67-3 (Affidavit of Nate Tippmann); Document 67-3, Exhibit A

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(unknown log); and Document 67-3, Exhibit B (letter).” Plaintiff’s Motion in Limine #6 (ECF

No. 113), p. 1. Aspen American argues that these documents should be excluded from evidence

because they were not timely disclosed during discovery, which it notes “closed on September

28, 2019.” Id., p. 3. The documents at issue were submitted by Interstate as part of its response in

opposition to Aspen American’s motion for sanctions for spoliation, which this Court ruled on in

an Opinion and Order entered on December 5, 2019 (ECF No. 75). As Aspen American correctly

points out, the Court denied Aspen American’s motion to strike the untimely exhibits because the

Court did not rely on them when ruling on the motion for sanctions. Aspen American renews its

objection to the documents now on the grounds that they were not disclosed timely pursuant to

Fed.R.Civ.P. 26 and 37. Aspen American argues as follows:

On April 17, 2019, this Court granted Aspen leave to file a motion related to

Interstate’s spoliation of evidence. . . . Aspen filed its spoliation motion on May 1,

2019. . . . Interstate filed its response to Aspen’s spoliation motion on May 16,

2019. . . . In its responsive filing, Interstate relied on the Untimely Documents that

were never disclosed during discovery.

On May 20, 2019, without leave of Court, Interstate served Aspen with

Defendant’s Responses to Plaintiff’s Requests for Admission . . . and Defendant’s

Responses to Plaintiff’s Request for Documents . . . , which Aspen received by

mail on May 23, 2019.

Plaintiff’s Motion in Limine #5 (ECF No. 113), p. 3.

In response, Interstate argues that the documents at issue were not untimely, but were

proper supplemental discovery responses pursuant to Fed.R.Civ.P. 26: “Rule 26(e) simply

requires parties to supplement or correct its responses “in a timely manner if the party learns that

in some material respect the disclosure or response is incomplete or incorrect, and if the

additional or corrective information has not otherwise been made known to the other parties

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during the discovery process or in writing.” Defendant’s Response to Plaintiff’s Motion in

Limine #6 (ECF No. 124), p. 4 (citing Fed. R. Civ. P 26(e)(1)(A)). Interstate also argues that

even assuming the disclosures were untimely, Aspen American cannot claim that it is prejudiced

by the alleged late disclosure:

[A]ll the subject documents were formally produced in discovery on May 20,

2019, nearly two (2) years ago. As such, Plaintiff had ample time and

opportunity2 to examine witnesses or seek additional discovery related to the

information in the alleged untimely responses. However, Plaintiff simply elected

to take no action and instead appears to attempt to prejudice defendants by

seeking outright exclusion of relevant evidence which it had in its possession

since May 2019.

Id., p. 5.

In reply, Aspen American continues to assert that Interstate’s discovery responses were

untimely. Aspen American also argues that its motion should be granted because “Plaintiff has

been severely prejudiced, and Defendant provided no justification for its failure to provide timely

and proper discovery responses.” Plaintiff’s Reply (ECF No. 135), p. 3. Aspen American doesn’t

explain exactly how it has been unduly prejudiced by the (arguably) untimely disclosure of

documents it has had in its possession for over two years, it simply states in conclusory fashion

that it has been. The Court also notes that Aspen American raises no issue as to the relevance of

the documents at issue–instead moving to exclude them altogether because they were disclosed

after the close of formal discovery. The Court concludes that the documents at issue are

admissible at trial and DENIES Aspen American’s motion in limine #6.

G. Plaintiff’s Motion in Limine #7–Motion in Limine to Preclude Objections

to Admission of FEMA Snow Load Safety Guide Pursuant to FRE 902.

Aspen American moves the Court “ to preclude all objections to admission of FEMA’s

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Snow Load Safety Guide (FEMA p-957/January 2013–Catalog No: 13052-4) into evidence that

may be raised by Interstate . . . .” Plaintiff’s Motion in Limine #7 (ECF No. 114), p. 1. Aspen

American argues as follows:

Plaintiff produced the expert report of Jeremy Swenson, CSP (“Swenson”) during

the discovery of this case to review case documents and opine on the

reasonableness of Defendant’s conduct with respect to snow and ice removal (or

lack thereof) in the weeks leading up to the Roof Collapse. Swenson relied on

multiple sources in conjuring up [sic] his opinions, one such resource being the

FEMA P-957–Snow Load Safety Guide (“FEMA Guide”), which was attached to

Swenson’s expert report and previously produced to Defendant. A January 2013

copy of the FEMA Guide is attached hereto as Exhibit 1.

Aspen respectfully requests that this Court admit the FEMA Guide prior to trial.

In doing so, the Court would relieve FEMA employees from the burden and

expense of testifying at trial for the sole purpose of laying the foundation to admit

a self-authenticating document. The admission of this exhibit would also conserve

judicial resources by shortening the length of trial, as the live testimony of an

additional foundation witness would no longer be necessary.

Plaintiff’s Motion in Limine #7 (ECF No. 114), pp. 1-2.

In response, Interstate argues as follows:

At the outset it is highly unusual for a party to seek to prohibit a party from stating

an objection to the admission of evidence or testimony at a trial. The purpose of a

Motion in Limine is not to ask a court to force a party to waive . . . potential

appeal issues by prohibiting the party from raising an objection. “The purpose of a

motion in limine is to prevent the display of potentially prejudicial material to the

jury until the trial court has the opportunity to rule on its admissibility.” Lehman

v. State, 777 N.E.2d 69, 76 (Ind. Ct. App. 2002). As such, since Plaintiff’s Motion

in Limine #7 does not actually seek to exclude any evidence, it should be den[ied]

in its entirety.

Additionally, Interstate anticipates that Plaintiff will attempt to argue or otherwise

convey to the jury that the FEMA Guide prescribes the legal standard of care in

this matter. If fact, Plaintiff essentially admits in Motion in Limine #7 that

“According to Swenson, the FEMA Guide is used in the snow and ice removal

industry as an industry standard by property owners, building and facility

managers, and snow removal contractors.” As such, Interstate firmly believe that

Plaintiff intends to use the FEMA Guide to blur the lines between the practices

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and procedures contained in the FEMA Guide, and the legal standard of care for

negligence. In order to do so, Plaintiff has to prevent Interstate from objecting to

the introduction of the FEMA Guide at trial.

Defendant’s Response to Plaintiff’s Motion in Limine #7 (ECF No. 125), pp. 1-2.

In its reply, Aspen American argues as follows:

At the outset, it bears repeating that Plaintiff’s request in its underlying Motion in

Limine #7 is not a blanket request for FEMA’s Snow Load Safety Guide (the

“Guide”) to be used for any and all purposes that Plaintiff sees fit. Rather, it is a

narrow request seeking a preliminary ruling from this Court that said Guide is

self-authenticating under Fed. R. Evid. 902 and admissible as a public records

exception to the rule against hearsay under Fed. R. Evid. 803(8). Nowhere in

Defendant’s Response . . . does Defendant argue against the self-authenticating

nature of the Guide. Nor does the Response contain any allegation that the Guide

is inadmissible hearsay. Therefore, absent objection, Plaintiff’s underlying Motion

should be granted.

. . .

With a preliminary ruling that the Guide is both self-authenticating and admissible

as a hearsay exception, judicial resources will be conserved by eliminating the

need of live witness testimony regarding foundational aspects of the document

itself. Because Defendant addressed neither point in its Response, it is self-evident

that it will not be prejudiced by this narrow preliminary ruling.

Plaintiff’s Reply (ECF No. 136), pp. 1-2. Aspen American acknowledges that Interstate “will

[not] be prevented from raising any of its objections to the substance or purpose of the Guide at

the appropriate time during the trial.” Id., p. 2.

The Court agrees with Aspen American that the FEMA Guide should be admitted into

evidence as a self-authenticated record pursuant to Rule 902 and an exception to the hearsay rule

pursuant to Fed.R.Evid. 803(8) as it is a public record. The admission of the document, as Aspen

American points out, will expedite and streamline the trial (a bit, anyway) by obviating the need

for Aspen American to call a FEMA employee or officer to testify for the purpose of

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authenticating the exhibit at issue. Most importantly, though, Interstate objects not to the

admission or relevance of the exhibit, but rather the concern that “Plaintiff will attempt to argue

or otherwise convey to the jury that the FEMA Guide prescribes the legal standard of care in this

matter.” This objection is well taken, but has already been resolved by the Court’s ruling on

Interstate’s motion in limine seeking to preclude Aspen American from introducing evidence of a

heightened or different standard of care for a bailee/property owner,” in which the Court

concluded that “Aspen American can present the FEMA Guidelines at trial to support its

argument that Interstate’s conduct leading up to the roof collapse was negligent or grossly

negligent, just as Interstate concedes, but cannot argue that those Guidelines set the standard of

care.” See page 11, above. Therefore, Interstate’s objection to the exhibit has already been

granted: Aspen American cannot state or imply that the FEMA Guide sets the legal standard of

care applicable in this case, but it can introduce the Guide as one piece of evidence in support of

its claims that Interstate’s actions prior to the roof collapse were negligent or grossly negligent.

That leaves Aspen American’s request for a ruling that the FEMA Guide is admissible

without the need for testimony from a FEMA employee and as an exception to the hearsay rule

under Rule 803(8). This is a reasonable request that will serve to expedite the trial and is

GRANTED.

I. Plaintiff’s Motion in Limine #8–Motion in Limine to (I) Preclude

Objections to Inferences Made Due to Spoliation of Evidence & (II) Permit

Witnesses to Testify About Spoliated Evidence.

Aspen American moves the Court “to bar any and all objections to inferences made and

conclusions drawn by Plaintiff’s experts in their reports, deposition testimony, or during the

course of their trial testimony which were made out of necessity due to the spoliation of evidence

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by Interstate . . . . Plaintiff further moves for an order allowing its witnesses, including expert

witnesses James Goes and Jeremy Swenson, to testify with respect to spoliation of evidence, as

provided in this Court’s Opinion and Order of December 5, 2019 (Dkt. 75), which states: “The

jury will be permitted to hear and consider evidence from both parties about Interstate’s failure to

preserve the structural components (or make them available for inspection) and how and to what

degree Aspen American was prejudiced by Interstate’s actions in that regard.” Plaintiff’s Motion

in Limine #8 (ECF No. 115).

Interstate responds by arguing as follows:

At the outset, Interstate notes that what Plaintiff is actually requesting that the

Court judicially permit Plaintiff to introduce evidence at trial without any right to

objections or cross-examination by Interstate. Granting Plaintiff’s Motion in

Limine #8 would certainly tip the “scales of justice” in Plaintiff’s favor and

eliminate the adversarial system of justice in favor of a lopsided one-way fight. As

such, the Court should deny Plaintiff’s Motion in Limine #8 in its entirety to

preserve an element of fundamental fairness in this case.

Additionally, Interstate does not object to Plaintiff’s expert witnesses testifying

with respect to the fact that Interstate cleared the debris from the collapse site (the

alleged spoliation of evidence) and what evidence the respective experts would

have been attempting to find in the collapsed warehouse debris. However,

Interstate reasonably believes that Plaintiff’s experts intend to go well beyond

what they would have attempted to find and draw numerous unreasonable

inferences and conclusions about what they were sure to find. Allowing Plaintiff

or Plaintiff’s expert witnesses to draw unreasonable inference and conclusions,

unchecked by an appropriate and timely objection, would be unduly prejudicial to

Interstate and would not further the interests of justice.

Defendant’s Response (ECF No. 126), p. 2.

Aspen American replies by arguing as follows:

As yet another example of what became a theme in Defendant’s responses to

Plaintiff’s various motions in limine, Defendant once again misconstrued the

specific request in the underlying Motion. At its core, Plaintiff moves this Court

to prevent Defendant from objecting to expert testimony reports on foundational

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grounds based on the simple fact that Plaintiff’s experts were prevented from

obtaining requisite foundational knowledge by Defendant’s spoliation of

evidence. If Defendant were afforded the opportunity to benefit from this

spoliation by keeping Plaintiff’s expert testimony out of the purview of the jury,

this would grossly “tip the scales of justice” in Defendant’s favor despite

Defendant’s argument to the contrary in its Response.

Plaintiff’s Reply (ECF No. 137), p. 2.

Again, both sides have a point. The Court will not enter an order permitting Aspen “to

introduce evidence at trial without any right to objections or cross-examination by Interstate” and

to that extent the motion is DENIED. However, Aspen American expressly states that such a

blanket preclusion is not what it is seeking and that it merely moves the Court to preclude

Interstate from objecting to Aspen American’s expert evidence on foundational grounds. Aspen

American’s motion is GRANTED, however, in that Aspen American will be permitted to present

evidence and testimony that its agents were unable to access or observe parts of the warehouse

after the collapse since they had been removed by Interstate, and what they would have looked

for if the relevant parts of the structure had not been removed. Even Interstate concedes this

when it states that it “does not object to Plaintiff’s expert witnesses testifying with respect to the

fact that Interstate cleared the debris from the collapse site (the alleged spoliation of evidence)

and what evidence the respective experts would have been attempting to find in the collapsed

warehouse debris.” Interstate’s objection is founded on its concern “that Plaintiff’s experts intend

to go well beyond what they would have attempted to find and draw numerous unreasonable

inferences and conclusions about what they were sure to find.” Interstate will not be denied the

right to object to any such testimony or to conduct cross-examination of any witnesses offering

such testimony. At the same time, the Court declines Interstate’s invitation to “deny Plaintiff’s

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Motion in Limine #8 in its entirety to preserve an element of fundamental fairness in this case.”

For these reasons, Aspen American’s motion in limine #8 is granted in part and denied in part.

CONCLUSION

For the reasons explained above, the Motion in Limine Regarding Trial Issues filed by

Defendant Interstate Warehousing, Inc. (ECF No. 105) is GRANTED in part and DENIED in

part; the Motion for Separation of Witnesses filed by Interstate (ECF No. 107) is GRANTED; the

Motion to Amend/Correct Seventh Motion in Limine filed by Aspen American (ECF No. 116) is

GRANTED; the First Motion in Limine to Exclude any Evidence in Support of Defendant’s Act

of God Defense filed by Plaintiff Aspen American Insurance Co. (ECF No. 108) is DENIED; the

Second Motion in Limine to Exclude Unauthenticated Climatological or Meteorological Data

filed by Aspen American (ECF No. 109) is DENIED; the Third Motion in Limine to Exclude

Expert Opinions by Persons Who Have Not Been Timely Disclosed filed by Aspen American

(ECF No. 110) is GRANTED in part and DENIED in part; the Fourth Motion in Limine to

Exclude Testimony of Witnesses Who Have Not Been Timely Disclosed filed by Aspen

American (ECF No. 111) is GRANTED; the Fifth Motion in Limine to Exclude Reference to

Snow Removal Policies filed by Aspen American (ECF No. 112) is GRANTED in part and

DENIED in part; the Sixth Motion in Limine to Exclude Defendant’s Untimely Document

Production filed by Aspen American (ECF No. 113) is DENIED; the Seventh Motion in Limine

to Preclude Objections to Admission of FEMA Snow Load Safety Guide Pursuant to FRE 902

filed by Aspen American (ECF No. 114) is GRANTED; and the Eighth Motion in Limine to (I)

Preclude Objections to Inferences Made Due to Spoliation of Evidence & (II) Permit Witnesses

to Testify About Spoliated Evidence filed by Aspen American (ECF No. 115) is GRANTED in

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part and DENIED in part.

The parties, their attorneys, and their witnesses are prohibited from introducing evidence

of, making statements concerning, or attempting to convey to the jury in any manner, either

directly or indirectly, at any time during the trial of this action, the evidence or arguments

precluded by this order. The Court reiterates that rulings on motions in limine are preliminary in

nature and the Court has the discretion to alter previously issued in limine rulings, within the

bounds of sound judicial discretion. Luce, 469 U.S. at 41-42. The Court will exercise that

discretion and alter or amend the rulings contain herein if warranted during trial.

Date: August 14, 2021.

/s/ William C. Lee

William C. Lee, Judge

U.S. District Court

Northern District of Indiana

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