United States District Court, Eastern District of Michigan, Southern Division
Mona K. Majzoub, Mag. Judge.
OPINION AND ORDER GRANTING DEFENDANT’S  MOTION IN LIMINE TO PRECLUDE EVIDENCE OF THE LACK OF CRIMINAL PROSECUTION, DENYING DEFENDANT’S  MOTION TO BIFURCATE TRIAL, GRANTING DEFENDANT’S  MOTION IN LIMINE TO PRECLUDE EVIDENCE AND MENTION OF OTHER FIRES, AND GRANTING DEFENDANT’S  MOTION TO LEAD THE PROOFS AT TRIAL
Hon. Judith E. Levy, J.
This matter is before the Court on four motions in limine filed by defendant Allstate Property & Casualty Insurance Company. The Court held a hearing on the motions on February 19, 2014. Allstate moves (1) to preclude evidence and testimony of the lack of criminal prosecution of plaintiff Tanagra Andring, or of anyone connected to her, for the April 23, 2013 fire at 4505 3rd St., Ecorse, Michigan (“the Property”) that gave rise to Andring’s claim on her insurance policy with Allstate (Dkt. 17); (2) to preclude evidence of or references to other fires or arson fires in the neighborhood surrounding the property that is the subject of this suit, or in the City of Ecorse, Michigan (Dkt. 19); and (3) to lead the proofs at trial (Dkt. 20). For the reasons discussed below, these three motions will be granted. Allstate further moves (4) to bifurcate the trial in this matter into separate liability and damages phases (Dkt. 18). For the reasons discussed below, this motion will be denied.
I. Allstate’s Motion to Preclude Evidence or Testimony of the Lack of Criminal Prosecution (Dkt. 17)
Allstate moves to exclude any evidence or testimony regarding the lack of criminal prosecution of Andring, or of anyone connected to her, for causing the fire at the Property. Andring concedes that under Kelly’s Auto Parts No. 1, Inc. v. Boughton, 809 F.2d 1247, 1253 (6th Cir. 1987), “[e]vidence of non-prosecution for arson is inadmissible . . . in a civil case arising out of the same event as the criminal charges.”
Andring nonetheless maintains that testimony as to whether or not she is tied to the fire, as well as evidence of the circumstances surrounding the fire and its investigation, are admissible. (Dkt. 25, Pl.’s Resp. 2.) Allstate responds that fire investigators may testify as to their findings and conclusions regarding the fire, including how the fire was set, but may not testify as to who they believe was responsible for the fire. (Dkt. 29, Def.’s Reply 3-4.) Specifically, investigator or expert testimony that Andring and persons connected to her committed no wrongdoing in connection with the fire, were not suspects in an arson investigation, or were “cleared” as suspects, is inadmissible. (Id. at 5.)
Whether or not a person is deemed a suspect in a criminal investigation reflects the degree of proof necessary for a criminal conviction, not for civil liability. “A jury is unaccustomed to evaluating the differing burdens of proof in criminal and civil cases and is also inexperienced in evaluating reasons why a decision may be made not to prosecute.” Kelly’s, 809 F.2d at 1253. Testimony that Andring or persons connected to her were not suspects in an arson investigation, or were cleared as suspects, is therefore inadmissible.
On the other hand, testimony regarding the presence or absence of physical evidence linking Andring, or persons connected with her, to the fire is admissible. Sergeant Scott Douglas, who investigated the fire at the Property for the Ecorse Fire Department, testified at his deposition as follows:
Q: Is there any way [Andring] could have set this fire in your opinion – A: I don’t know.
Q: – Based on your investigation?
A: That – I can’t answer that.
Q: Could you put her at ...