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First American Bank v. Western DuPage Landscaping

September 19, 2005

FIRST AMERICAN BANK AS SPECIAL ADMINISTRATOR FOR THE ESTATE OF JESUS MONTERO, LUZ MONTERO, JUAN ALCANTAR, EPIFANIO CONTRERAS, DECEASED, PLAINTIFFS,
v.
WESTERN DUPAGE LANDSCAPING, INC., AN ILLINOIS CORPORATION, GENERAL MOTORS CORPORATION, A DELAWARE CORPORATION, AND BRISKIN MANUFACTURING, INC., AN ILLINOIS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

RULING ON PLAINTIFF'S MOTIONS IN LIMINE

Plaintiff's Third Motion in Limine to Bar All Evidence and Argument that Any Witness or Plaintiff's Decedent is an "Illegal Alien," Unauthorized Alien, Undocumented Alien, or Otherwise Touches Upon the Witness' Immigration Status

Plaintiff's third motion in limine is granted. See memorandum opinion and order, First American Bank v. Western DuPage Landscaping, Inc., No. 00 C 4026, 2005 U.S. Dist. LEXIS 7882 (N.D. Ill. Apr. 11, 2005) (granting in part and denying in part GM's motion for partial summary judgment and ruling that GM waived the affirmative defense of illegality). Accordingly, the court will not allow evidence, testimony, or argument regarding the decedents' status as illegal aliens or otherwise.

With regard to the citizenship status of witnesses, GM has not identified any authority under Rule 608(b) standing for the broad proposition that the status of being an illegal alien impugns one's character for truthfulness or untruthfulness. But see Michalski v. Ford Motor Co., 935 F. Supp. 203, 207-08 (E.D.N.Y. 1996) (denying use of evidence of plaintiff's status as an illegal alien to impeach plaintiff's credibility). Accordingly, the court will not allow impeachment of witnesses on the basis of a witness's undocumented status.

Plaintiff's Fourth Motion in Limine to Bar All Evidence and Argument Concerning the Facts and Circumstances Surrounding How Any Witness or Plaintiff's Decedent Got into the United States Including Any Statement or Implication that the Witness's Entry into the United States was Unlawful or Otherwise Improper

Plaintiff's fourth motion in limine is granted. See memorandum opinion and order, First American Bank v. Western DuPage Landscaping, Inc., No. 00 C 4026, 2005 U.S. Dist. LEXIS 7882 (N.D. Ill. Apr. 11, 2005) (granting in part and denying in part GM's motion for partial summary judgment and ruling that GM waived the affirmative defense of illegality). Accordingly, the court will not allow evidence, testimony, or argument regarding the decedents' status as undocumented aliens.

In addition, the motion is granted regarding evidence that some witnesses may not be legally resident within the United States. Similar to the concerns raised by the third motion, this evidence is insufficiently probative of a witness's character for truthfulness to be appropriately admitted under Rule 608(b). Cf. United States v. Amaechi, 991 F.2d 374, 378 (7th Cir. 1993) (Treating Rule 609, "The calculus underlying this realm of evidence law--that people who lie in other contexts are more likely to perjure themselves than people who steal--is empirically questionable on a number of levels. . . .").

Plaintiff's Fifth Motion in Limine to Bar All Evidence and Argument that Any Witness or Plaintiff's Decedent Has Not Filed Federal or State Tax Returns

Plaintiff's fifth motion in limine is granted in part and denied in part. See memorandum opinion and order, First American Bank v. Western DuPage Landscaping, Inc., No. 00 C 4026, 2005 U.S. Dist. LEXIS 7882 (N.D. Ill. Apr. 11, 2005) (granting in part and denying in part GM's motion for partial summary judgment and ruling that GM waived the affirmative defense of illegality). The failure of decedents' to file a federal or state tax returns relates to their status as illegal aliens. Accordingly, the court will not allow evidence, testimony, or argument regarding the their failure to file tax returns.

Concerning witnesses, plaintiff seeks to exclude the absence of tax returns rather than affirmative misrepresentations contained on tax returns. The fact that a witness has not filed income tax returns is not, by itself, evidence of illegal conduct if that witness was not required by law to file a tax return. The failure to file a tax return when required to do so, however, is an act of dishonesty. See United States v. Wilson, 985 F.2d 348, 351 (7th Cir. 1993); United Statesv. Arnaechi, 991 F.2d 374, 379 (7th Cir. 1993); Michalski, 935 F. Supp. at 208 (failure to file income tax returns or pay income taxes "bears directly on a plaintiff's propensity for truthfulness and must be admitted for impeachment purposes if plaintiff takes the stand"). If defendant can show the presumptive duty to file a tax return, and because plaintiff has not asserted that any potential witness falls within any exemptions for filing a tax return, defendant may inquire as to a witness's failure to file a tax return. Again, the impeachment may not be proved with extrinsic evidence. Rule 608(b)(1). The motion is denied in this respect.

Plaintiff's Seventh Motion in Limine to Bar All Evidence and Argument Concerning Jesus Montero's Smoking Habits

Plaintiff's seventh motion in limine is granted. Plaintiff argues that GM should be precluded from introducing evidence of Montero's smoking habits and arguing that Montero had a reduced life expectancy in the absence of competent proof. GM argues, to the contrary, that evidence of Montero's smoking habits is relevant to his life expectancy, which, in turn, is relevant to the issue of damages.

Although juries are to consider relevant evidence relating to "the age, health, habits, and physical condition of the deceased at the time of death" when assessing damages in wrongful death actions, Balzekas v. Looking Elk, 254 Ill. App. 3d 529 at 534, 627 N.E.2d 84, 193 Ill. Dec. 926 (Ill. App. Ct. 1993), "[e]vidence of the physical condition of a decedent should not be admitted if it is so remote or speculative as to have no real bearing or impact upon the specific life expectancy of that particular individual." Id. at 533 (citing Fultz v. Peart, 144 Ill. App. 3d 364, 377-78, 494 N.E.2d 212, 98 Ill. Dec. 285 (Ill. App. Ct. 1986). In Balzekas, the Illinois Appellate Court affirmed the trial court's exclusion of the testimony of a defense expert that the decedent's life expectancy was lower than the average for a male person of a similar age despite the decedent's throat cancer because the expert did not have access to the type of information that would be necessary in order to make an accurate long-term prognosis for the decedent and to make a reasonable estimate of the decedent's life expectancy. Id. at 534. Such testimony, the appellate court reasoned, "was too vague and uncertain to justify its admission." Id. The trial court also had excluded evidence of the decedent's heart disease, laryngectomy, and smoking history. Id. at 533.

Although GM has evidence of Montero's smoking habit, it has not offered any competent medical evidence that Montero's smoking reduced his life expectancy. Neither has GM identified any epidemiological evidence that the life expectancy of a smoker would be decreased when compared to the general population. In the absence of ...


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