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First American Bank v. Western DuPage Landscaping

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION


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 such evidence, the fact that Montero smoked is not probative of his life expectancy.

Plaintiff's Ninth Motion in Limine to Bar All Evidence and Argument Concerning Any Statements by the Plaintiff's Decedents Regarding Concerns About Potential Deportation or Other Immigration Proceedings

Plaintiff's ninth motion in limine is granted. See 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.

Plaintiff's Tenth Motion in Limine to Preclude Defendant General Motors from Arguing that Any Individual Decedent was Comparatively Negligent in the Underlying Accident

The court denies plaintiff's tenth motion in limine without prejudice. The issue of any individual decedent's comparative negligence is relevant to the issue of GM's liability and a question of fact for the jury. A motion in limine, however, is not a proper vehicle with which to test the sufficiency of evidence. GM is entitled to present relevant, admissible evidence in its defense, including evidence on the issue of comparative negligence.

Plaintiff's Eleventh Motion in Limine to Exclude Illinois Department of Transportation Inspection and Audit Reports and Testimony of Sgt. Lamb

Plaintiff's eleventh motion in limine is granted in part and denied in part Sgt. Bart Lamb, an Illinois Department of Transportation ("IDOT") inspector, may testify regarding his observations of the scene and his inspection of the vehicles in the incident. Sgt. Lamb also may offer opinions that are rationally based on his perceptions, helpful to a clear understanding of his testimony or the determination of a fact in issue, and not based on scientific, technical or other specialized knowledge. See Fed. R. Evid. 701.

Sgt. Lamb's inspection report notes four motor carrier regulation violations: the trailer's brakes were inoperable; the trailer's breakaway brake system was inoperable (battery not charged, actuation switch missing, actuation cable broken); its load was unsecured (two skids of landscaping stones unsecured without straps); and its #2 axle right tires were in contact with each other. Because there is no evidence that the breakaway brake system, the unsecured load, or the contact between the #2 axle tires contributed to the accident, the testimony is irrelevant to causation. It may be used, however, to rebut the claim asserted by Western DuPage that it properly maintained its truck fleet. Sgt. Lamb's observations regarding the inoperable brakes is relevant to the issue of causation. He may testify as to his observations and, based on those observations, offer the opinion that the brakes were inoperable. The fact that Sgt. Lamb could not recall what test he performed on the trailer's brakes goes to the weight of his testimony, not its admissibility.

Sgt. Lamb may not offer an opinion regarding the cause of the accident, including his opinion that the trailer's inoperative brakes contributed to the accident, because he is not an expert and, therefore, not qualified to testify to this opinion. Sgt. Lamb will not be permitted to offer legal conclusions regarding the statutory violations, e.g., because all four brakes on the Western DuPage trailer were inoperable, motor carrier regulation 393.48(a) was violated.

Similarly, the IDOT terminal audit reports of Western DuPage's fleet of trucks contain the observations of IDOT's investigators, including Sgt. Lamb, regarding the state of such trucks. These reports are relevant to Western DuPage's claim that it properly maintained its truck and trailer and, subject to proof of foundation, admissible under Rule 803(6). In order for the evidence to be relevant to whether it was reasonable for Luz Montero to rely on the opinion of Western DuPage's mechanic that the truck and its brakes were operating properly, defendant must establish that Montero had knowledge of the opinion of Western DuPage's mechanic.

Plaintiff's Twelfth Motion in Limine to Preclude Defendant General Motors from Arguing that the Sole Proximate Cause of Plaintiff's Injuries was the "Actions, Nonactions, or Negligence of Another"

The court denies plaintiff's twelfth motion in limine. See Firstar Bank v. Peirce, 306 Ill. App. 3d 525 at 529, 714 N.E.2d 116, 239 Ill. Dec. 558 (Ill. App. Ct. 1999) ("[w]hether the defendant is entitled to a sole proximate cause instruction depends on the evidence [it] presents."). GM is entitled to offer evidence that shows that the actions, nonactions, or negligence of others was the sole proximate cause of decedents' deaths. Only after both parties have offered their evidence regarding the cause or causes of decedents' deaths will the court be able to decide whether the sole proximate cause instruction is appropriate.

Plaintiff's Thirteenth Motion in Limine Regarding Certain Opinions and Testimony of Defendant General Motors' Expert Ronald L. Woolley, P.E., PhD

The motion is granted. Dr. Woolley's use of the term "severe," such as severe collision is not improper when used in the context of the amount of force that the collision caused in terms of impact on the C-65 truck. In other words, severe is a broad term roughly equivalent to "forceful." Because there seems to be no relevance to the amount of force, however, as discussed below, there should be no occasion for this testimony to be admitted.

Dr. Woolley is qualified to state an opinion that the force of the collision was greater than it would have been had the C-65 trailer brakes functioned, had the other vehicle been an automobile rather than the Mack truck, and such factors that affected the force of impact between the two vehicles, such as the proper measure of force (the Delta-V issue). But the testimony is not relevant unless the force of the vehicle caused the fuel tank to rupture. Because Dr. Woolley's report does not state that the severe force of the impact caused the tank to fail, the testimony is not relevant. Dr. Woolley, of course, may testify to matters that show that, had the trailer brakes been operative, the accident likely would not have occurred, as this evidence is relevant to GM's position that negligence of Western DuPage and/or Montero caused the accident.

Dr. Woolley may not testify that the "over-ride collision" affected the "injury severity potential" because it is not relevant to any known evidence concerning whether the occupants of the vehicle were injured as a result of that aspect of the collision, nor is he a witness who is qualified to testify about the effect of that aspect of the collision on the occupants of the C-65 truck.

Plaintiff's Fourteenth Motion in Limine to Preclude Defendant General Motors' Expert Frederick Dahnke's References to Industry Custom or Practice

This motion in limine is taken under advisement.

Plaintiff's Fifteenth Motion in Limine Regarding Certain Opinions and Testimony of Defendant General Motors' Expert Jack L. Lytton

Plaintiff's fifteenth motion in limine is granted. Plaintiff seeks to preclude GM's metallurgy expert from testifyingregarding his opinion that the hole in the fuel tank that was present during testing was not caused by the impact but caused by crevice corrosion that occurred over the course of time while the subject vehicle sat in storage. Importantly, plaintiff does not take issue with Lytton's experience or qualifications as a metallurgical engineer. As a trained metallurgist, Lytton is qualified by training and experience to testify regarding the presence of crevice corrosion. Plaintiff, instead, argues that Lytton has no methodology or technique accepted in the scientific community to opine onthe presence of crevice corrosion in the fuel tank.

Lytton examined and photographed the truck and fuel tank on June 8, 2004. He stated that he inspected the tank for anything that would cause a leak, but he did not go there looking for crevice corrosion. He saw dirt and grass in the fold where the tank crumpled during the impact. He did not remove the debris, and he was informed that plaintiff's expert would do so the next day to conduct a leak test. Mr. Lytton was not present for that test or the removal of the debris. Mr. Lytton also did not take any measurements or conduct any tests for the composition of the debris that he saw in the fold, and he did not conduct any tests on the allegedly corroded area of the tank.

Plaintiff's experts brushed away the debris from the tank and performed a leak test on June 9, 2004. While cleaning the tank, plaintiff's experts found two holes in the "step" area of the tank, one hole at the base of the step or the lower hole, and one hole at the top of the step where the metal has been folded over or the upper hole. This upper hole was not visible until after the tank was cleaned. It is also this upper hole that is the basis of Lytton's opinion regarding crevice corrosion.

After plaintiff's experts located the upper hole, Lytton opined that the upper hole did not exist on the date of the accident,or the upper hole was smaller in size on the day of the accident but has grown over the past 5 or 6 years because of advancing crevice corrosion. This opinion is relevant to GM's argument that plaintiff's expert's flow rate calculation did not accurately measure the flow rate from the truck's fuel tank at the time of the accident. Either the tank did not fail in the area of the upper hole during the crash, or if the tank failed, the failure was relatively minor. Lytton did not examine the debris-free fold until the day before his deposition, after he had offered the opinion in his expert report that the hole was caused by crevice corrosion.

Plaintiff argues Lytton's failure to test or analyze any of the debris that allegedly initiated the corrosion, his failure to inspect the tank until three years after he was retained, and his failure to perform any type of measurements or testing whatsoever on the tank does not comport with any methodology or technique in the scientific community. Visual observation and inspection is standard metallurgical practice. However, as pointed out by plaintiff, Lytton failed to make any visual observation of key factors necessary to create "crevice corrosion," including the depth or width of the crevice, how deep into the fold the debris extended, the debris either before or after its removal, whether the debris had any moisture content, how long the debris existed in that fold, whether the fold had previously been cleaned out, or the fold, debris, or hole over time. Lytton also offers no explanation as to the existence of corrosion in other areas of the tank, nor does he rule out alternative explanations or causes, including the existence of the liquid level line. Accordingly, the court finds that Lytton's opinion regarding crevice corrosion lacks sufficient indicia of reliability and grants plaintiff's motion in limine.

Plaintiff's Sixteenth Motion in Limine to Preclude Defendant General Motors' Witnesses from Testifying about the Absence of Other Similar Incidents as Being Evidenced of Safe Design

Plaintiff's sixteenth motion in limine is denied. "Evidence of absence of prior accidents is properly admitted only if the party [seeking to introduce that evidence] shows, as foundation, that the absence of prior accidents took place with respect to machines substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident to allow the jury to connect past experience with the accident sued upon." Schwartz v. American Honda Motor Co., 710 F.2d 378, 382 (7th Cir. 1983). The product involved in this case is a1978 C-65 medium duty truck with a gas tank located outside the frame rails. The circumstance which resulted in the decedents' death was a post-collision fuel fire resulting from a frontal collision.

Between 1973 and 1978, there were 100,000 similar medium duty GM trucks in use, all of which had fuel tanks outside the rails. GM has proffered evidence that William Cichowski and Dennis Himmler have information regarding substantially similar medium duty trucks used in sufficiently similar circumstances. Cichowski is a retired GM engineer who worked in Engineering Analysis until 1992. While working at GM, Cichowski reviewed accidents involving medium duty trucks and post collision fuel fires. Cichowski testified that he remembered about 20 accidents involving medium duty trucks and post-collision fuel fires. Himmler works for GM in its Field Performance Assessment Area, analyzing the field performance of GM vehicles, including those vehicles that have been involved in fires and collisions. Himmler is familiar with the Fatal Accident Reporting System ("FARS") database, which contains information regarding fatal medium duty truck accidents, and a report generated regarding frontal impacts on medium duty trucks. In addition, Himmler has been assigned to work on cases in which medium duty trucks have been involved in frontal collisions and fuel fires.

Plaintiff argues that Cichowski and Himmler lack adequate knowledge of similar incidents because they have not sufficiently inquired into GM records involving similar incidents and because GM failed to compile and maintain adequate records regarding similar incidents. Plaintiff seems to argue that the party seeking to introduce evidence regarding an absence of similar incidents must satisfy some high threshold of data accumulation and review before the requisite foundation can be established. The court disagrees. The foundation established to admit evidence regarding a lack of similar accidents need not be ideal. Schwartz, 710 F.2d at 382. Rather, "the sufficiency of evidence varies from case to case and must be determined by an exercise of the trial court's discretion." Id.

In Schwartz, the defendant, Honda, sought to dispute the plaintiff's claim that his injuries resulted from the Honda Express's defective and unreasonably dangerous design. Id. at 380. To do so, Honda relied on a representative who testified that over 200,000 Expresses had been sold and that "he knew of no injuries or claims like the one at issue." Id. at 382 (emphasis added). The court did not specify whether Honda maintained records on the Express or whether the witness had reviewed such records. The witness could not testify that all of the Expresses of which he was aware were substantially identical. The plaintiff's Express did not have a certain feature that prevented accidents, and the witness did not know how many Expresses also lacked this feature. Id. Nevertheless, because the witness was "fairly observant" about Honda products and the majority of the Expresses he had seen were not equipped with the safety feature, the Seventh Circuit determined that the trial court had not abused its discretion by allowing in the testimony. Id. The court reasoned that any discrepancy in the evidence presented by the witness affected its weight, not its admissibility. Id.

Plaintiff's contentions regarding the failure of GM and its witnesses to personally and systematically collect and review data regarding medium duty trucks, the insufficiency of relying on Cichowski's recollection, and the inadequacy of Himmler's experience investigating the performance of medium duty trucks go to the weight of the testimony, not its admissibility. Thus, Plaintiff's sixteenth motion in limine is denied.

JOAN HUMPHREY LEFKOW United States District Judge

20050919

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