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Maiorano v. Home Depot U.S.A., Inc.

United States District Court, S.D. California

May 9, 2018

DEBORAH MAIORANO, individually and as successor in interest to Anthony Maiorano, Plaintiff,
v.
HOME DEPOT U.S.A., INC., and individually doing business as Husky; RESIN PARTNERS, INC., Defendants.

          ORDER ON MOTIONS IN LIMINE

          Hon. Roger T. Benitez, United States District Judge.

         On September 29, 2016, Plaintiff Deborah Maiorano, individually and as successor in interest to Anthony Maiorano, filed her initial complaint against Defendant Home Depot U.S.A., Inc. (“Home Depot”) in the California Superior Court.[1] (Docket No. 1-3.) On November 22, 2016, Home Depot removed the action to this Court. (Docket No. 1.) On March 21, 2017, the Court granted Plaintiff's motion to amend her complaint to add Resin Partners, Inc. (“Resin”) as a defendant. (Docket No. 23.) On March 22, 2017, Plaintiff filed the operative First Amended Complaint (“FAC”), which asserts eight claims for relief under theories of negligence, strict products liability, failure to warn, breach of implied warranties, personal injury, and wrongful death, all of which arise from the death of her husband, decedent Anthony Maiorano, while using Defendants' 23” Husky sawhorse (the “Subject Sawhorse”).

         In preparation for trial, the parties filed several motions in limine to exclude evidence. The motions are fully briefed. The Court addresses each in turn.

         LEGAL STANDARD

         Rulings on motions in limine fall entirely within this Court's discretion. United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)). Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for any purpose. Fresenius Med. Care Holdings, Inc., v. Baxter Int'l, Inc., No. C 03-1431 SBA (EDL), 2006 WL 1646113, at *3 (N.D. Cal. June 12, 2006). If evidence is not clearly inadmissible, evidentiary rulings should be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context. See Bensimon, 172 F.3d at 1127 (when ruling on a motion in limine, a trial court lacks access to all the facts from trial testimony). Denial of a motion in limine does not mean that the evidence contemplated by the motion will be admitted at trial. Id. Instead, denial means that the court cannot, or should not, determine whether the evidence in question should be excluded before trial. Id.; see also McSherry v. City of Long Beach, 423 F.3d 1015, 1022 (9th Cir. 2005) (rulings on motions in limine are subject to change when trial unfolds).

         DISCUSSION

         I. Plaintiff's Motions in Limine

         A. Motion No. 1 - Character Evidence of Decedent Anthony Maiorano

         Plaintiff seeks to exclude evidence of decedent Anthony Maiorano's “history with alcohol, drugs, and ‘partying', ” and “the fact that he had been ‘clean and sober for many years prior to the accident.'” (Docket No. 48 at p. 3.) Defendants filed a notice of non-opposition to this motion. (Docket No. 55.) The Court finds good cause exists to exclude evidence that decedent Anthony Maiorano had a history of “partying, ” consuming alcohol and/or drugs, or was “clean and sober” prior to the incident that is the subject of Plaintiff's action. The motion is GRANTED.

         B. Motion No. 2 - Defendants' Expert and Employee Witness Testimony

         Plaintiff next asks the Court to exclude any expert reports and testimony Defendants might attempt to introduce because Defendants failed to designate any such expert or serve any such reports as required under Federal Rule of Civil Procedure 26(a)(2). (Docket No. 49.) In particular, Plaintiff seeks to exclude the testimony of Marc Zupan (“Zupan”), who they assert is a retained expert.

         In their opposition, Defendants indicate they do not object to the portion of Plaintiff's motion that requested exclusion of “expert testimony from retained experts” or “prevent[ed] Defendants' company employees from offering expert testimony.” (Docket No. 56 at p. 2.) Defendants only oppose the exclusion of Zupan's testimony at trial. They contend Zupan is a percipient, rather than expert witness, and should be allowed to testify as a lay witness as to his percipient knowledge that may impeach the testimony of Mark Peterman, one of Plaintiff's witnesses.

         It is undisputed that Defendants did not designate an expert witness pursuant to Federal Rule of Civil Procedure 26(a)(2). Accordingly, the motion is GRANTED as to Plaintiff's request to exclude any expert reports and testimony. However, to the extent Plaintiff seeks a blanket exclusion of Zupan's testimony, because it is unclear how Defendants will elicit Zupan's testimony, the motion is DENIED.

         II. Defendants' Motions in Limine

         A. Motion No. 1 - Expert Opinions and Improper ...


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