United States District Court, S.D. California
DEBORAH MAIORANO, individually and as successor in interest to Anthony Maiorano, Plaintiff,
HOME DEPOT U.S.A., INC., and individually doing business as Husky; RESIN PARTNERS, INC., Defendants.
ORDER ON MOTIONS IN LIMINE
Roger T. Benitez, United States District Judge.
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. (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
preparation for trial, the parties filed several motions in
limine to exclude evidence. The motions are fully briefed.
The Court addresses each in turn.
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).
Plaintiff's Motions in Limine
Motion No. 1 - Character Evidence of Decedent Anthony
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
Motion No. 2 - Defendants' Expert and Employee
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.
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
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
Defendants' Motions in Limine
Motion No. 1 - Expert Opinions and Improper ...