United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTIONS IN LIMINE (DOC.
26 & 27)
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
a premises liability action arising out of Plaintiff Dorothy
Wedyke's fall at Defendant Speedway LLC's gas station
in Sterling Heights, Michigan. Now before the court are
Defendant's two motions in limine to exclude (1)
evidence of the death of Plaintiff's husband and
daughter, and (2) evidence of Plaintiff's cancer and
cancer-related treatment. For the reasons set forth below,
Defendant's motions shall be denied.
December 17, 2016, Plaintiff fell at a Speedway gas station
in Sterling Heights. Defendant maintains that Plaintiff
slipped on slush which was open and obvious. Plaintiff, on
the other hand, maintains that her boot caught in a defect in
the pavement which was hidden by the slush. There is no
dispute that Plaintiff broke her wrist and required surgery.
Plaintiff alleges it is a permanent injury, and that she
suffers dull pain daily. She is seeking pain and suffering
damages only and has no claim for economic losses or medical
daughter died more than five years before her fall, and
within a year after her daughter's death, her husband
died of a heart attack. Before her fall, Plaintiff was
treated for malignant skin cancer and has been receiving
treatment since 2015.
seeks to exclude all evidence pertaining to the death of
Plaintiff's daughter and husband and her skin cancer.
Defendant argues that the evidence is irrelevant because it
does not bear on the elements of Plaintiff's negligence
claim, and prejudicial because it will evoke sympathy for
her. Plaintiff responds that the evidence sought to be
excluded is relevant to understanding Plaintiff's
background and damages claim, and is not unduly prejudicial.
Standard of Law
motion in limine is a motion “'to exclude
anticipated prejudicial evidence before the evidence is
actually offered.'” Louzon v. Ford Motor
Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting Luce
v. United States, 469 U.S. 38, 40 n.2 (1984)). The goal
of a motion in limine is “'to narrow the
evidentiary issues for trial and to eliminate unnecessary
trial interruptions.'” Id. (quoting
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064,
1069 (3d Cir. 1990)). But motions in limine are
usually reserved for situations where the evidence to be
eliminated is clearly inadmissible for any purpose. See
Jonasson v. Lutheran Child & Family Servs., 115 F.3d
436, 440 (7th Cir. 1997). In general, “a better
practice is to deal with questions of admissibility of
evidence as they arise” at trial. Sperberg v.
Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th
is relevant if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the
action.” Fed.R.Evid. 401. Relevant evidence may still
be excluded by the court if “its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403.
Relevance under Fed.R.Evid. 401
argues the evidence sought to be excluded is irrelevant
because it does not address one of the elements of
Plaintiff's negligence claim. Defendant is no doubt
correct that in determining relevancy, the court must
consider the elements of Plaintiff's negligence claim.
But evidence which is admissible is not strictly limited to
those matters in dispute. The advisory notes to Federal Rule
of Evidence 401 provide, “[e]vidence which is
essentially background in nature can scarcely be said to
involve disputed matter, yet it is universally offered and
admitted as an aid to understanding.” “[C]ourts
have always admitted evidence ‘which is essentially
background in nature.'” 22 Charles Alan Wright
& Kenneth W. Graham, Jr., Federal Practice &
Procedure Evidence § 5164 (2d ed.) (quoting Advisory
Notes to Fed.R.Evid. 401). As one oft cited Evidence Treatise
explains, not all evidence must bear directly on the issues
at hand, as “some evidence that is merely ancillary to
evidence that bears directly on the issues may be admissible.
Leeway is allowed even on direct examination for proof of
facts that merely fill in the background of the narrative and
give it interest, color, and lifelikeness.” 1 McCormick
On Evid. § 185 (7th ed.).
evidence of Plaintiff's marital status, the death of her
husband and daughter, and her cancer, are background
information which will allow the jury to know the Plaintiff
and may be helpful in their analysis of her credibility.
These factors may also be relevant to a determination of her
pain and suffering damages claim as they may explain how her
injuries have impacted her daily routines, and how her
injuries after the fall may have exacerbated whatever pain
and suffering was owing to her skin cancer. The Sixth Circuit
has allowed evidence of a preexisting medical condition when
a subsequent tort injury is responsible for increasing
plaintiff's existing pain and suffering. Meyers v.
Wal-Mart Stores, East, Inc., 257 F.3d 625, 632 (6th Cir.
2001). In Meyers, the court observed that where the
plaintiff suffers from a preexisting medical condition the
case “is essentially a parallel to the classic textbook
example of the plaintiff with an eggshell skull, where the
tortfeasor must take the injured party as it finds him, and
is liable for the full extent of the harm caused by its
negligence, even if a more ‘normal' plaintiff would
not have suffered nearly as much.” Id. (citing
W. Page Keeton et al., Prosser and Keeton on The Law of Torts
§ 43 at 291-92 (5th ed. 1984)).
relies on Daley v. LaCroix, 384 Mich. 4, 13 (1970)
for the opposite proposition that a plaintiff cannot recover
for a “hypersensitive disturbance where a normal
individual would not be affected under the circumstances,
” but Defendant has lifted that language out of
context. Daley involved the very narrow situation
where a defendant's negligence involves no actual
physical contact with the plaintiff. Daley held
“where a definite and objective physical injury is
produced as a result of emotional distress proximately caused
by defendant's negligent conduct, the plaintiff . . . may
recover in damages for such physical consequences to himself
notwithstanding the absence of any physical impact upon
plaintiff at the time of the mental shock.”
Id. at 12-13. In that case, the Michigan Supreme
Court allowed plaintiffs to sue for physical illnesses
arising from their fright when defendant's automobile
sheared off a utility pole which caused high voltage
electrical lines to snap, striking the electrical lines
leading into plaintiffs' house, and resulting in
considerable property damage. Id. at 6-7. The Court
added the restriction that the physical manifestation
resulting from plaintiffs' fright must be foreseeable to
a “normal” individual to avoid opening the
floodgates of litigation. The limitation was warranted
because the Court was already vastly expanding a
tortfeasor's exposure well beyond its traditional scope
when it allowed liability for injuries arising solely from a
mental shock. The rule that the ...