The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court are five motions in limine filed by Defendant J.P. Murray regarding potential evidence that Plaintiff Piasa might advance at trial (See Docs. 148, 149, 150, 151, & 152). Plaintiff Piasa has filed Responses to all of the motions (See Docs. 156, 159, 157, 155, & 158 respectively). Defendant has filed Replies (See Docs. 165, 168, 169, 166, & 167 respectively). Defendant J.P. Murray has also filed a Motion to Strike Plaintiff's Request to Bar Evidence Found in Plaintiff's Response to Murray Company's Second and Fourth Motions in Limine (Doc. 163). Plaintiff Piasa has also filed a Response to that motion (Doc. 173). Defendant has filed a Reply (Doc. 175). The Court rules as follows:
Defendant J.P. Murray has filed a motion to strike Plaintiff's request to bar evidence as argued in Plaintiff's responses to Defendant's second and fourth motions in limine (Doc. 163). In both Plaintiff's response to Defendant J.P. Murray's second and fourth motions in limine, Plaintiff argues that evidence regarding the condition of the fireproofing after the broom tests should not be admitted as a sanction for the spoliation of evidence (See Doc. 155 pp. 6-7 & Doc. 159 p. 3). While Plaintiff argues that it has not moved the Court for sanctions nor has it filed a motion to bar the evidence, Plaintiff's response clearly argues that the evidence should be barred under the rules governing evidence spoliation. Defendant J.P. Murray argues that those requests should be strickenbecause it did not act in bad faith in removing the fireproofing, the broom test is a valid test for testing fireproofing, and Plaintiff had the opportunity to test the fireproofing before it was removed.
A sanction for spoliation of evidence requires a showing of bad faith. Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). A partying seeking sanctions for the destruction of evidence must show that the destruction was done in bad faith. Id. (citing Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998) ("That the documents were destroyed intentionally no one can doubt, but 'bad faith' means destruction for the purpose of hiding adverse information")); see also Keller v. United States, 58 F.3d 1194, 1197 (7th Cir. 1995).
Here, the Court finds no evidence of bad faith. While Piasa offers evidence claiming that Defendant J.P. Murray acted in bad faith in not providing reports to Piasa, in failing to pay Piasa, and in failing to disclose internal discussions to Piasa, Piasa offers no evidence to the matter at issue in Defendant J.P. Murray's motion: the bad faith of J.P. Murray in removing the fireproofing after the broom testing. Piasa offers no evidence to support its argument that the removal of the fireproofing was in bad faith, but instead only argues that it was never allowed to test the fireproofing after the broom testing and that the broom testing results would not be admissible at trial. To the contrary, the Court finds that J.P. Murray's removal of the fireproofing was not in bad faith. J.P. Murray contends, and Piasa does not deny, that it removed the fireproofing at the request of the Hospital because the Hospital was concerned that delaminated fireproofing might get into the ventilation system and affect patients' health (See Doc. 163, Ex. F at ¶¶ 11-14). Piasa has offered no evidence to the contrary, nor have they offered any evidence that J.P. Murray's actions in removing the fireproofing was some how nefarious and done to hide evidence.
In Piasa's response to Defendant's fourth motion in limine (Doc. 155), Plaintiff does argue that the removal of the fireproofing prevented Piasa from conducting its own tests on the fireproofing. However, the evidence shows that Piasa did have access to the project before the broom testing and in fact performed tests on the fireproofing. On May 16, 2007, Mr. Randy Sneegas, who worked for Isolatek, Piasa's material supplier, and another Isolatek representative inspected the fireproofing project and submitted reports to Piasa. (See Doc. 163 Ex. A at pp. 72-78; Docs. 90 Ex. X). While Piasa argues in its response that it was barred from the project after the termination of its subcontract, as Defendant J.P. Murray points out, it only informed Piasa that it could not return to work on the project after Piasa had informed J.P. Murray that it would return to the project at a time contrary to the schedule (See Docs. 155 Exs, E &F; Doc. 90 Ex 1 at ¶ 41). There is no evidence that Piasa asked to view the site in order to test the fireproofing and no evidence that J.P. Murray would have prevented Piasa from accessing the fireproofing work for testing purposes. While Piasa argues that they needed J.P. Murray's reports to conduct a subsequent review of the fireproofing, they provide no support to this argument, nor have they explained why they were entitled to the reports or why the reports were needed in order for them to conduct further testing.
Further, the Court finds no issues with the broom testing performed on the fireproofing. While Piasa argues in its response that the broom testing would not be admissible under the Daubert standards, it offers no evidence to support that argument. Instead, the evidence shows that broom testing was an acceptable procedure (See Doc. 163 Ex. D at p.6).
Accordingly, the Court finds no basis for the sanctions for spoliation of evidence as Plaintiff refers to in its responses. Thus, the CourtGRANTS Defendant's Motion to Strike (Doc. 163) and STRIKES the request for sanctions in Plaintiff's response to Defendant's Second and Fourth Motions in Limine (Docs. 159 & 155).
B. First Motion in Limine
Defendant J.P. Murray's first motion in limine (Doc. 148)focuses on a piece of metal deck referred to in a videotaped deposition. Specifically, Defendant J.P. Murray seeks to bar any use of John Hahn's videotaped deposition regarding pieces of the metal deck, any reference to the pieces, or any demonstration involving the pieces of metal deck. Plaintiff has filed a response to the motion arguing that the use of the pieces are merely for demonstrative purposes to show the jury the shape of the steel deck (Doc. 156). Defendant has filed a reply (Doc. 165).
Defendant J.P. Murray argues that the use of the pieces of the metal deck would be irrelevant and misleading to the jury. Specifically, J.P. Murray argues that the pieces, particularly when held overhead, show a noticeable sag which is far greater than occurs under normal site conditions and would be misleading to the jury as to the deck's strength and stability. Further, J.P. Murray argues that Plaintiff cannot establish that demonstration of the pieces are under similar conditions to the pieces on the roof deck or substantially similar to those used on the roof.
Defendant J.P. Murray seeks to bar the use of metal pieces as a demonstrative exhibit. However, the decision to allow the use of demonstrative exhibits is within the discretion of the trial court.Wipf v. Kowalski, 519 F.3d 380, 387 (7th Cir. 2008). However, Defendant argues that use of such an exhibit will mislead the jury. See FEDERAL RULE OF EVIDENCE 403 ("[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury."). Here, Plaintiff contends that it only wishes to use the materials as a demonstrative exhibit for the purpose of showing the shape and configuration of the roof deck, and not for the purpose of showing that the deck was too lightweight for the application of the fireproofing. The Court finds that the use of the pieces of metal deck are reasonable for this purpose and will not mislead the jury. Thus, the Court DENIES Defendant's first motion in limine as to the pieces of metal deck. The pieces may be used as demonstrative evidence to show the shape of the ...