The opinion of the court was delivered by: Richard Mills United States District Judge
RICHARD MILLS, U.S. District Judge
The case is before the Court on the Defendant's motion in limine and its motion to amend/correct its answer by stating an additional affirmative defense.
In its motion in limine, Defendant Townsend Vision, Inc. states that two matters have arisen in pretrial discovery which involve evidence that is inadmissible at trial. First, Townsend claims that before any evidence of other accidents, claims or lawsuits can be presented to the jury, Plaintiff Kimberly Wallis must make an in camera foundational showing of "substantial similarity." Second, Townsend seeks to prevent one of Wallis's expert witnesses, John Bloodgood, from testifying that the skinning machine operated by Wallis was defective in design because it did not have an emergency stop device.
Townsend asserts that absent a preliminary, foundational showing of "substantial similarity," evidence of other accidents, claims or lawsuits is inadmissible at trial. See Weir v. Crown Equipment Corp., 217 F.3d 453, 457-58 (7th Cir. 2000) (citing Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268-69 (7th Cir. 1988)). It contends that in order for the evidence to be relevant and admissible, Wallis must make this foundational showing outside of the presence of the jury, pursuant to Federal Rule of Evidence 104(a).*fn1
In her response brief, Wallis states that during the course of pretrial discovery, the deposition of Stephen Cate, president of Townsend, was taken and he testified as follows:
A. After Townsend became aware that some operators were wearing gloves, it became aware that some operators were getting their hands caught in its skinning machines.
B. In the late 1980s Townsend observed that some people were operating its open top skinning machines with "dishpan" gloves that you could buy at a hardware store or grocery store.
C. If an operator of a Townsend Model 7600 skinner was wearing woven cotton gloves and they got their hand caught in the roller, they would not be able to get their hand out.
D. Townsend tested gloves in 1985 and again in 1994 and 1995.
Wallis contends that Townsend's argument that Wallis must make a foundational showing of "substantial similarity" between the prior accidents involving the Townsend Model 7600 skinning machine and the accident in question mischaracterizes the evidence that she seeks to present.
Wallis asserts that she is not attempting to have evidence of specific accidents, claims or lawsuits admitted into evidence because she has no specific knowledge of other accidents, claims or lawsuits. Rather, Wallis claims to be alleging that the deposition testimony of Townsend's own witness, Stephen Cate, who testified that "after Townsend became aware that some operators were wearing gloves, it became aware that some operators were getting their hands caught in its skinning machines," should be admissible at trial. According to Wallis, the testimony shows that Townsend was on notice of prior accidents involving its skinning machines. The requirement of similarity is not as stringent when the evidence is sought to be admitted to show notice. See Nachtsheim, 847 F.2d at 1269 n.9. "For purposes of proving other accidents in order to show defendants' awareness of a dangerous condition, the rule requiring substantial similarity of those accidents to the accident at issue should be relaxed." Id. ...