Opinion

Berbaum v. Amco Insurance Company

Court
District Court, W.D. Tennessee
Filed
Mar 17, 2022
Cited by
0 cases
Authority
More cited than 29.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

RICHARD BERBAUM, )

)

Plaintiff, )

)

vs. ) No. 1:21-cv-01004-STA-jay

)

AMCO INSURANCE COMPANY, )

)

Defendant. )

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING

DEFENDANT’S MOTION IN LIMINE

______________________________________________________________________________

Plaintiff Richard Berbaum filed this action against Amco Insurance Company alleging

breach of an insurance contract. Defendant has filed a motion in limine seeking to prohibit

Plaintiff or witnesses on his behalf from referring to him as an engineer or referring to his

training as an engineer at trial. (ECF No. 37.) Plaintiff has filed a response to the motion. (ECF

No. 39.) For the reasons set forth below, Defendant’s motion is PARTIALLY GRANTED and

PARTIALLY DENIED.

“In a diversity case, the admissibility of evidence is a procedural matter governed by

federal law.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 829 (6th Cir. 2000). A

motion in limine is a motion “‘to exclude anticipated prejudicial evidence before the evidence is

actually offered.’” Louzon v. Ford Motor Co., 718 F.3d 556, 581 (6th Cir. 2013) (quoting Luce v.

United States, 469 U.S. 38, 40 n.2 (1984)). The goal of a motion in limine is “‘to narrow the

evidentiary issues for trial and to eliminate unnecessary trial interruptions.’” Id. (quoting Bradley

v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)).

In the present case, the parties dispute the extent of the damage to Plaintiff’s house that

was caused by a tree strike. At issue is whether the house shifted on its foundation as a result of

the impact of the tree or because of other reasons. Each party has indicated that it will present

expert testimony from structural engineers as to the cause of the damage.

Defendant states that Plaintiff testified in his deposition that he was an engineer at

Lockheed Martin with a background in electrical engineering, but he is not a structural engineer

and has done no engineering assessment of the property. Plaintiff has not been disclosed as an

expert in this matter. Defendant contends that allowing Plaintiff to be identified as an engineer or

to testify as to his training and background in that field poses the risk of confusion for the jury as

well as the potential of the jury’s placing inappropriate weight on Plaintiff’s testimony regarding

his theories as to what damage resulted from the impact of the tree.

Plaintiff has responded that his educational background and work history will allow the

jury to assess his credibility and that cross-examination will minimize any risk of jury confusion.

He also contends that his opinions as to the condition of the property before and after the loss are

not based on special knowledge, but rather, his perceptions as the owner of the property.1 In

support of his response, Plaintiff points to the Advisory Committee Notes to Federal Rule of

Evidence 701 which explain:

The amendment incorporates the distinctions set forth in State v. Brown, 836

S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence

701, a rule that precluded lay witness testimony based on “special knowledge.” In

Brown, the court declared that the distinction between lay and expert witness

testimony is that lay testimony “results from a process of reasoning familiar in

1 In an excerpt from Plaintiff’s deposition, he specifically testified that he did not consider

himself to be an expert in structural engineering. (Pl’s Dep. PageID 496, ECF No. 39-1.)

2

everyday life,” while expert testimony “results from a process of reasoning which

can be mastered only by specialists in the field.” The court in Brown noted that a

lay witness with experience could testify that a substance appeared to be blood,

but that a witness would have to qualify as an expert before he could testify that

bruising around the eyes is indicative of skull trauma. That is the kind of

distinction made by the amendment to this Rule.

Fed. R. Evid. 701, Advisory Committee Notes, 2000 Amendments.

“[A] witness [who] is not testifying as an expert,” or a lay witness, may offer testimony

in the form of an opinion if it is “(a) rationally based on the witness’s perception; (b) helpful to

clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based

on scientific, technical, or other specialized knowledge within the scope of Rule 702.”2 Fed. R.

Evid. 701. “‘Such lay opinion testimony is permitted under Rule 701 because it has the effect of

describing something that the jurors could not otherwise experience for themselves by drawing

upon the witness’s sensory and experiential observations that were made as a first-hand witness

to a particular event.’” United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013) (quoting

United States v. Jayyousi, 657 F.3d 1085, 1120 (11th Cir. 2011)). The purpose of permitting lay

witnesses to offer opinion testimony, rather than only fact testimony, is to put “‘the trier of fact

in possession of an accurate reproduction of the event.’” Id. (quoting Fed. R. Civ. P. 701

advisory committee’s note).

The Court will allow Plaintiff to testify as to his education and work history to introduce

2 Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if: (a) the expert's

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the testimony is based

on sufficient facts or data; (c) the testimony is the product of reliable principles

3

himself to the jury and to help establish his credibility. The Court will also allow Plaintiff’s

testimony as to his observations, as well as any testimony on causation, that is within the realm

of a lay person’s knowledge. However, Plaintiff will not be allowed to testify or to imply that

his observations or opinions are based on “scientific, technical, or other specialized knowledge

within the scope of Rule 702.” If necessary, defense counsel can clarify on cross-examination

that Plaintiff is not a structural engineer and is not qualified to testify in this case as an expert.

Accordingly, Defendant’s motion in limine is PARTIALLY GRANTED and

PARTIALLY DENIED.

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

CHIEF UNITED STATES DISTRICT JUDGE

Date: March 17, 2022.

and methods; and (d) the expert has reliably applied the principles and methods to

the facts of the case.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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