Motion to exclude evidence of claim denied during discovery

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Motion to exclude evidence of claim denied during discovery

Postby Administrator » Sun Nov 09, 2014 1:30 pm

Motion to exclude evidence of claim denied during discovery


[Attorney name, address]

Bar Number: [ ]

Attorney for Defendant

[Court Name]

[plaintiff's name], ) CASE NO.: [ ]
)
Plaintiff, ) MOTION IN LIMINE TO
) EXCLUDE EVIDENCE OF
v. ) PLAINTIFF'S WAGE LOSS
)
[defendant's name], )
) TRIAL:
Defendant. ) TIME:
_______________________________ ) DEPT: Honorable [ ]




MEMORANDUM OF POINTS AND AUTHORITIES



1. PRELIMINARY STATEMENT


This diversity action arises from a rear-end automobile accident between plaintiff's sedan and defendant's United States Postal Service mail truck that occurred on September 18, 2002. As a result of the accident, plaintiff claims to have sustained neck and back injuries, and now seeks to include a claim for lost wages.

On June 12, 2003, defendant noticed plaintiff's deposition. The notice, in part, requested that plaintiff produce documents pertaining to her wage loss claim. When asked at the deposition whether she had any documents to support the claim, plaintiff responded “None.” When asked whether she was seeking reimbursement for lost wages, the plaintiff responded, “I'm not sure, no.” See plaintiff's deposition transcript at Lines 10-15.

On August 21, 2003, defendant served a Request for Admission under Federal Rules of Civil Procedure Rule 36. The Request included the statement that plaintiff had no lost wages stemming from this accident. Plaintiff did not respond to the request within 30 days, and defendant therefore concluded that the matter was admitted.

Ten days before trial, plaintiff's counsel indicated that plaintiff would be offering several payroll documents at trial relating to plaintiff's earnings history, on the issue of plaintiff's lost wages.

By this motion, defendant seeks an order excluding any and all evidence pertaining to plaintiff's wage loss claim.

2. PLAINTIFF'S ADMISSION THAT SHE WAS NOT SEEKING DAMAGES FOR LOST WAGES BARS HER FROM PRESENTING EVIDENCE OF LOST WAGES


The purpose of allowing requests for admissions under Rule 36 is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial. Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245, 33 Fed. R. Serv. 2d 73 (9th Cir. 1981).

“Rule 36 was designed as a device by which at least some of the material facts of a case could be established without the necessity of formal proof at the trial. The Rule serves a very useful purpose in that it encourages admissions and thus, in many cases, eliminates the necessity of the formal proof of relevant facts. It is most advantageously used for that purpose prior to the pretrial conference, and the facts established by the answers to the request for admission may . . . be incorporated into the pre-trial order as undisputed material facts in the case, provided, the parties are in agreement about such facts.” Champlin v. Oklahoma Furniture Mfg. Co., 324 F.2d 74, 76, 7 Fed. R. Serv. 2d 758 (10th Cir. 1963).

Since plaintiff failed to respond to defendant's Rule 36 Request for Admissions, the matter of lost wages has been effectively settled and it is not an appropriate topic for trial testimony.

3. EVIDENCE OF PLAINTIFF'S LOST WAGE CLAIM SHOULD BE EXCLUDED TO PREVENT UNFAIR SURPRISE TO DEFENDANT


The Court has the inherent power to grant a motion in limine to exclude any kind of evidence that could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. See U.S. v. Copeland, 321 F.3d 582, 597-98, 61 Fed. R. Evid. Serv. 231, 2003 FED App. 0061A (6th Cir. 2003); U.S. v. Pablo Varela-Rivera, 279 F.3d 1174, 1179, 58 Fed. R. Evid. Serv. 641 (9th Cir. 2002); Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343, 59 Fed. R. Evid. Serv. 431 (3d Cir. 2002); Old Chief v. U.S., 519 U.S. 172, 180-92, 117 S. Ct. 644, 136 L. Ed. 2d 574, 45 Fed. R. Evid. Serv. 835 (1997); U.S. v. Aguilar-Aranceta, 58 F.3d 796, 800-02, 42 Fed. R. Evid. Serv. 843 (1st Cir. 1995).

This Court may also exclude evidence where there is substantial danger that the probative value will be outweighed by the danger of undue prejudice. See Softel, Inc. v. Dragon Medical and Scientific Communications, Inc., 118 F.3d 955, 961-62, 38 Fed. R. Serv. 3d 623 (2d Cir. 1997) (expert witness testimony properly excluded where it would prejudice opposing party).

To avoid unfair surprise, the Court may exclude evidence on issues where discovery responses and actions of counsel led opposing counsel to believe those issues would not be litigated. See Licciardi v. TIG Ins. Group, 140 F.3d 357, 363-64, 40 Fed. R. Serv. 3d 525 (1st Cir. 1998) (expert's changed testimony should have been excluded on the grounds of unfair surprise since party believed case would present one key issue only to have opposing party address a different predicate key issue); Voegeli v. Lewis, 568 F.2d 89, 96-97, 24 Fed. R. Serv. 2d 913 (8th Cir. 1977) (finding trial court's admission of expert testimony erroneous and prejudicial where expert had changed opinion since deposition and defendant did not alert plaintiff to this change).

Where relevant evidence is not disclosed during discovery, the appropriate course of action is to preclude the party from introducing that evidence at trial. See Musser v. Gentiva Health Services, 356 F.3d 751, 758, 63 Fed. R. Evid. Serv. 486, 57 Fed. R. Serv. 3d 947 (7th Cir. 2004) (“The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.”); Klonoski v. Mahlab, 156 F.3d 255, 271, 41 Fed. R. Serv. 3d 1427 (1st Cir. 1998) (“the appropriate sanction when a party fails to provide certain evidence to the opposing party as required in the discovery rules is preclusion of that evidence from the trial”); Matter of P & E Boat Rentals, Inc., 872 F.2d 642, 654 (5th Cir. 1989) (rejected by, Albuquerque Concrete Coring Co., Inc. v. Pan Am World Services, Inc., 118 N.M. 140, 879 P.2d 772 (1994)) (evidence excluded where not disclosed prior to trial).

In the present case, plaintiff's statements and actions lead defendant to reasonably believe that plaintiff would not be pursuing the wage loss claim. Plaintiff responded at her deposition that she would not be seeking reimbursement for her lost wages claim. See Deposition Transcript at Lines 10-15. Plaintiff produced no documentation that would support the claim, despite several formal discovery requests by defendant.

The first indication that plaintiff would be offering any evidence on the lost wages claim was just days before the commencement of trial and after the discovery cut-off date. Clearly, plaintiff knew or should have known that these documents existed when asked at deposition or through other discovery requests. Failure to produce the documents suggest strongly that they were suppressed by the plaintiff, or that plaintiff had no intention of bringing this claim.

The defendant will suffer undue prejudice if plaintiff is permitted to testify or introduce any documentation at trial to support her claim for lost wages. As such, this court should exclude any and all evidence, including any mention of evidence, relating to plaintiff's lost wage claim.

4. PLAINTIFF'S LOST WAGE EVIDENCE WAS NOT DISPUTED THROUGHOUT DISCOVERY


In the present case, the plaintiff testified under oath at her deposition that she was not seeking reimbursement for lost wages. Plaintiff also failed to respond to defendant's Request for Admission relating specifically to this issue. The plaintiff's failure to provide supporting documentation, despite several proper discovery requests by defendant, further supports this fact.

Plaintiff's clear indication throughout the discovery process, and up until just 10 days before trial, was that she was not seeking reimbursement for lost wages. It would be unfair and prejudicial to allow plaintiff, at this late date, to present evidence on an issue, which, until days before the start of trial, was not in dispute.

The Court should therefore exclude any and all evidence, including any mention of evidence, relating to plaintiff's wage loss claim.

5. CONCLUSION


For the foregoing reasons, defendant respectfully requests that this Court exclude any testimony or documentary evidence, or mention of any evidence, regarding plaintiff's claim for wage loss.

DATED: [ ]



By: _______________

[name of counsel]

Attorneys for Defendant,

[name of defendant]
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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