United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
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
Defendant's Motion in Limine (Doc. 85)
Any other motorcycle accident occurring in the construction
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
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.
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.
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.
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.
Any other lawsuits filed against Defendant relative to the
of other lawsuits is not relevant and will be excluded.
Any post-accident changes made in the construction
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
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.
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.)
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, ...