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LeTourneau v. Venture Corp.

United States District Court, D. Kansas

July 23, 2018

MARK LETOURNEAU, Plaintiff,
v.
VENTURE CORPORATION, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This matter came before the court on July 20, 2018, for a hearing on pending motions and for a final pretrial conference. The court made several oral rulings at the hearing, which are summarized below. This order additionally sets out procedures for trial and other matters discussed with the parties at the hearing.

         1. Defendant's Motion in Limine (Doc. 85)

         a. Any other motorcycle accident occurring in the construction zone

         Defendant seeks to exclude the evidence of three separate motorcycle accidents that occurred before Plaintiff's accident. Defendant argues that Plaintiff did not provide any notice to Defendant of Plaintiff's intent to introduce the evidence. Defendant further argues that the accidents are not substantially similar.

         Plaintiff responds that Defendant was on notice because the accidents were discussed in Plaintiff's expert report which was disclosed in August 2016, eight months prior to the pretrial conference. (Docs. 51, 66.) The court finds that Defendant was on notice regarding Plaintiff's intention to introduce evidence of the other accidents.

         Kansas and the Tenth Circuit allow the introduction of other accidents to show “notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards.” Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir. 1987). In order for the evidence to be admitted, the prior accidents must be “substantially similar to those involved in the present case.” Id.

         The accident reports for all three accidents are attached to Defendant's response. (See Doc. 86, Exhs. 6-8.) After review, the court finds that the Bruce accident is substantially similar to Plaintiff's accident and will allow the introduction of the accident at trial. Both Bruce and Plaintiff were traveling Highway 281 in the northbound lane and both motorcycles lost control on the shoulder due to the height difference in the new pavement. Any differences in the two accidents goes “to the weight to be given the evidence.” Ponder, 834 F.2d at 1560.

         The other two accidents were not substantially similar and will be excluded. The Gonzalez accident occurred as Gonzalez was crossing the center of the highway and he was struck by a truck. The Cavendar accident is not substantially similar as Cavendar was under the influence at the time of the accident. Therefore, Defendant's motion to exclude the evidence of the prior accidents is granted in part and denied in part.

         b. Any other lawsuits filed against Defendant relative to the construction work

         Evidence of other lawsuits is not relevant and will be excluded.

         c. Any post-accident changes made in the construction zone

         Defendant seeks to exclude any evidence of remedial measures taken by Defendant after the accident pursuant to Fed.R.Evid. 407. The evidence of post-accident remedial measures is inadmissible under Rule 407. In the event that evidence introduced at trial shows that there is an issue regarding control or feasibility of putting up a sign, the court will revisit the issue should Plaintiff seek to introduce the evidence for rebuttal.

         d. Any opinions, statements, suggestion, or conclusion by Plaintiff or Plaintiff's wife (Deborah LeTourneau) concerning causation and/or the standard of care applicable to Defendant's construction work.

         Defendant argues that Plaintiff and his wife should not be able to testify regarding the standard of care. Defendant cites to Plaintiff's and Deborah's depositions where they reference safety regulations in California. Plaintiff responds that Plaintiff should be allowed to testify “regarding the expectations of Plaintiff regarding the roadway condition.” (Doc. 90 at 6.)

         Plaintiff may testify as to what he observed on the highway and the circumstances of the accident. Plaintiff and Deborah LeTourneau cannot render any opinions regarding the standard of care, ...


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