The opinion of the court was delivered by: Magistrate Judge Young B. Kim
MEMORANDUM OPINION and ORDER
In this product-liability suit brought pursuant to this court's diversity jurisdiction, Jaroslaw Wielgus alleges that Ryobi Technologies, Inc., One World Technologies, Inc., and Home Depot, USA, Inc. (collectively, "the defendants"), are liable for hand injuries he sustained in March 2006 while using the Ryobi Model BTS10S-a table saw that the defendants manufactured and/or sold. His complaint includes claims for negligence, breach of implied warranty, and strict liability under Illinois law. (R. 84.) The parties consented to this court's jurisdiction, (R. 65, 90), and the case has progressed to the pre-trial phase. On May 16, 2012, the court issued its first opinion ruling on several pending motions in limine.
(R. 247-48.) In this second opinion, the court tackles defendants' motions in limine numbers 12, 16, 17, 18, 20, 24, 26, 28, and 30. For the following reasons, motion numbers 12 (R. 179), 24 (R. 191), and 30 (R. 197) are granted in part and denied in part without prejudice, motion numbers 16 (R. 183), 17 (R. 184), 18 (R. 185), and 28 (R. 195) are denied without prejudice, and motion numbers 20 (R. 187), and 26 (R. 193) are granted:
Included in the district court's inherent authority to manage trials is the broad discretion to rule on motions in limine. Aldridge v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011). The purpose of such motions is to perform a "gatekeeping function and permit the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not to be presented to the jury because they clearly would be inadmissible for any purpose." Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). The moving party bears the burden of demonstrating blanket inadmissibility. See Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). Absent such a showing, evidentiary rulings should be deferred until trial, where decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole. Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914, 917 (N.D. Ill. 2001)."A pre-trial ruling denying a motion in limine does not automatically mean that all evidence contested in the motion will be admitted at trial," Bruce v. City of Chicago, No. 09 CV 4837, 2011 WL 3471074, at *1 (N.D. Ill. July 29, 2011), for the court may revisit evidentiary rulings during trial as appropriate in its exercise of its discretion, see Luce v. United States, 469 U.S. 38, 41-42 (1984).
I. Motion in Limine No. 12 to Bar Wielgus's Counsel from Making Inflammatory Statements or Arguments Defendants' motion number 12 is granted in part and denied in part without prejudice.
The defendants seek to bar Wielgus's counsel from making "inflammatory statements, comments, argument, suggestion or innuendo." (R. 179, Mot. ¶ 2.) Pointing to statements made by Wielgus's counsel in a prior lawsuit, the defendants contend that Wielgus's counsel should be precluded from making similar comments in the present lawsuit, including, for example, the following: (1) urging the jurors to "send defendants a message"; (2) asking the jurors to "place themselves" in Wielgus's position; (3) attempting to connect the defendants to a conspiracy among table saw manufacturers to keep flesh-detection technology off the market; and (4) implying that the defendants destroyed documents. (Id. at ¶¶ 2, 4-6.) According to the defendants, such comments serve no purpose other than to inflame the passions of the jury.
The court finds that the defendants' objections are best dealt with during the course of the trial. The defendants may make more specific objections then if they believe that Wielgus's counsel has made an inflammatory or misleading statement, and the propriety of that statement can be resolved when presented in context. See Saad v. Shimano Am. Corp., No. 98 C 1204, 2000 WL 1036253, at *25 (N.D. Ill. July 24, 2000). The same is true of the defendants' objections to Wielgus's anticipated presentation of evidence regarding their supposed document destruction. The defendants may re-raise their objections regarding this evidence at trial when the court will be better able to judge that evidence in the context of the trial as a whole. As for comments relating to an alleged conspiracy among saw manufacturers, that objection will be addressed more specifically in a forthcoming opinion addressing the multiple motions in limine that the defendants filed relating to Wielgus's conspiracy theory.
The court however grants the motion in part and bars Wielgus from making "send a message" comments as these comments are, and have been deemed, problematic when phrased as a request for punitive damages, which Wielgus is not seeking. See Betts v. City of Chicago, 784 F.Supp.2d 1020, 1033 (N.D. Ill. 2011); Christmas v. City of Chicago, 691 F.Supp.2d 811, 820 (N.D. Ill. 2010) (any "message" or "punishment" arguments must not imply entitlement to punitive damages where none available); see also Osorio v. One World Techs., Inc., 659 F.3d 81, 90 (1st Cir. 2011) (finding "problematic" counsel's suggestion during opening statements that jury "send a message" to Ryobi management). This case is about whether Wielgus is entitled to recover any compensatory damages for his injuries. As such, there is no place for comments such as "send a message to the defendants." In his response to this motion in limine, Wielgus argues that the First Circuit in Osorio found this particular "send a message" comment to be "within the bounds of acceptable zealous advocacy." (R. 233, Pl.'s Resp. at 69.) The court is perplexed by this argument because the First Circuit in Osorio commented that, "[w]e are most concerned by counsel's suggestion during opening statements that the jury 'send a message' to Ryobi management by imposing liability since, as Ryobi notes, we have deemed similar arguments improper in the past." Osorio, 659 F.3d at 90.
Nor are "golden rule" appeals appropriate. United States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007); see also Bruce, 2011 WL 3471074, at *7. The "golden rule" appeal asks the jury to place itself in the plaintiff's shoes. The Seventh Circuit has explained that "golden rule" appeals are "universally recognized as improper because it encourages the jury to depart from the neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." Roman, 492 F.3d at 806 (quoting United States v. Teslim, 869 F.2d 316, 328 (7th Cir.1989)). Therefore, Wielgus is barred from asking the jurors to place themselves in his shoes.
II. Motion in Limine No. 16 to Bar Wielgus from Referring to Any Deposition Testimony or Introducing Any Exhibits During Wielgus's Opening Statement Defendants' motion number 16 is denied without prejudice. The defendants ask the court to bar Wielgus from referring to any deposition testimony or introducing exhibits during his opening statement, arguing that such evidence should not be introduced before the evidentiary stage of the trial. (R. 183 ¶¶ 1, 3.) "The purpose of an opening statement is to state what evidence will be presented . . . . It is not an occasion for argument." Testa v. Village of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir. 1996) (citing United States v. Dinitz, 424 U.S. 600, 612 (1976)). The court agrees with Wielgus that this motion is premature and overly broad and that he is entitled to comment about his evidence and to tell the jury what he intends to demonstrate during the trial. (R. 222, Pl.'s Resp. at 77.) The defendants may renew their objections during Wielgus's opening statement when the court may deal with them in context and instruct the jury, if necessary, to disregard the objectionable references and to bear in mind that opening statements are not evidence. See Soltys v. Costello, 520 F.3d 737, 744 (7th Cir. 2008); Walden v. City of Chicago, ___ F.Supp.2d ___, 2012 WL 718435, at *1 (N.D. Ill. Mar. 6, 2012).
The court however cautions both parties that they must not attempt to introduce evidence during their opening statement or to publish the content of any exhibit without leave of court. There is a significant difference between telling the jury that the party expects to have certain witnesses provide certain testimony and comment on the expected testimony and quoting verbatim from a deposition transcript and then telling the jury that the quoted testimony is from a witness's deposition transcript. The former is permissible because the party is merely commenting on what the party intends to show during the trial, while the latter is not permissible because the party is offering evidence.
III. Motion in Limine No. 17 to Bar Wielgus from Presenting Video and In-Court Demonstrations of the SawStop Technology on a Model That is Not Substantially Similar to the BTS10S Defendants' motion number 17 is denied without prejudice. The defendants seek to bar Wielgus from introducing any demonstration (via video or live) of the SawStop technology on table saw models that are not substantially similar to the BTS10S. Citing Federal Rules of Evidence 402 and 403, the defendants argue that a demonstration of the flesh-detection ...