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.)
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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
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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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