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Rossi v. Groft

United States District Court, Seventh Circuit

May 31, 2013

ANTHONY ROSSI, Plaintiff,
v.
STEVEN GROFT and U.S. XPRESS, INC., a Nevada Corporation, Defendants.

MEMORANDUM OPINION AND ORDER

GERALDINE SOAT BROWN, Magistrate Judge.

Plaintiff Anthony Rossi alleges that he has suffered a permanent disability as a result of a January 2010 automobile accident caused by a truck driven by defendant Steven Groft and owned by defendant U.S. Xpress, Inc. (Not. Rem., Ex. D, Compl.) [Dkt 1.] The court has jurisdiction under 28 U.S.C. § 1332, and the parties have consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636 [dkt 55]. A jury trial is scheduled to begin on July 8, 2013. Before the court are defendants' motions in limine no. 1, 3-5 and plaintiff's motions in limine no. 1-5.[1] [Dkt 99-103, 106, 108, 110 and 112.] The motions are ruled on as set forth below.

Legal Standard

Generally, "[m]otions in limine are disfavored." Mi-Jack Prods. v. Intl. Union of Operating Engrs., Loc. 150, No. 94 C 6676, 1995 WL 680214 at *1 (N.D. Ill. Nov. 14, 1995). A motion in limine should only be granted when "the evidence is clearly inadmissable for any purpose." Obrycka v. City of Chicago, No. 07 C 2372, 2012 WL 4060293 at *1 (N.D. Ill. Sept. 14, 2012). The movant bears the burden of showing that the evidence that it seeks to preclude is "clearly inadmissible." Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D. Ill. 1994). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partns. v. AT&T Techs., Inc. 831 F.Supp. 1398, 1400-01 (N.D. Ill. 1993). Denial of a motion in limine is not a ruling that the material subject to the motion is necessarily admissible. Rather, it "means only that outside the context of trial, the court cannot determine whether the evidence in question is admissible." Plair, 864 F.Supp. at 69.

Defendants' Motion in Limine No. 1

Defendants move to bar "[a]ny statements, comments or inferences as to testimony or arguments regarding comparison or proportion damages incurred, lost, will incur or potentially lose in relation to per diem, to monetary compensation and/or salaries of professional athletes, entertainers or celebrities, the value of art, horses or any equivalent, or the monetary compensation received by corporations, businesses or others during any part of the trial without first demonstrating substantial similarity." (Defs.' MIL No. 1 ¶ 1.) [Dkt 112.] In his response, Rossi stipulates that he will not make any per diem argument and suggests that he will not be presenting any comparison evidence. (Pl.'s Resp. Defs.' MIL No. 1 ¶¶ 1, 3.) [Dkt 116.] He argues, however, that his "counsel should not be prohibited from comparing [Rossi's] losses to the value of horses, art, or compensation/salaries of celebrities, professional athletes, and corporate entities." ( Id. ¶ 4.)

Neither party has cited any federal cases that concern these types of comparison arguments. In general, "[t]hough the scope of closing argument is broad, counsel may not make reference to matters not in evidence." Trytko v. Hubbell, Inc., 28 F.3d 715, 727 (7th Cir. 1994). "A district court has considerable discretion in supervising the arguments of counsel." Id. Illinois courts that have considered such arguments conclude that it is impermissible to argue that the plaintiff's damages are equivalent to the value of a car or a horse, but have not reversed on the basis of such arguments where the focus is on the losses sustained by the plaintiff and not on the worth of the horses or cars. See Goad v. Evans, 547 N.E.2d 690, 707-08 (Ill.App. 4th Dist. 1989); Dotson v. Sears, Roebeck & Co., 510 N.E.2d 1208, 1041-42 (Ill.App. 1st Dist. 1987).

It is not clear from defendants' motion or Rossi's response exactly how Rossi's counsel might incorporate such references into his closing argument. Thus, any ruling on the matter is best left for trial. Accordingly, defendants motion is denied as moot with respect to per diem arguments and submission of comparison evidence, and denied without prejudice to an objection made at trial as to any such arguments made by Rossi's counsel.

Defendants' Motion in Limine No. 3

Defendants argue that Rossi "not be permitted to present any evidence of any past or future lost income" as Rossi did not file tax returns and nor has he produced any 1099 income statements or wage loss verifications from any employer to document his pre-accident income. (Defs.' MIL No. 3 ¶ 1.) [Dkt 108.] Prior to the accident, Rossi testified, he worked as a loan officer and never made more than $10, 000 a year. Rossi did not file any tax returns and apparently did not keep his 1099 income statements.

Defendants argue that it is the "common law of Illinois that a plaintiff's lost income claim may be barred when a plaintiff has not offered tax returns or proofs of his loss of income for support and when not complying with court orders and rules." (Def.'s MIL. No. 3 ¶ 6 (citing Hawkins v. Wiggins, 415 N.E.2d 1179 (Ill.App. 1st Dist. 1980)).) In Hawkins, the appellate court upheld the trial court's decision to bar plaintiff from making a lost income claim for failure to comply with discovery requests that asked for the plaintiff's tax returns. Id. at 1185. Here, however, defendants have not demonstrated that Rossi has failed to comply with any such discovery requests. Rather, he simply has no documents to prove his past income.

The parties' use of the term "past and present lost income" blurs the distinction between a lost earnings claim and a diminished earning capacity claim. In general, a lost earnings claim compensates the plaintiff for the amount time that he or she was incapacitated and unable to work at the job that the plaintiff had at the time of injury. See, e.g., Turner v. Chicago Transit Auth., 461 N.E.2d 551, 558 (Ill.App. 4th Dist. 1984). A diminished earning capacity claim, on the other hand, "is calculated by deducting the amount plaintiff is capable of earning after his injury from the amount he was capable of earning prior to his injury, and awarding plaintiff the difference." LaFever v. Kemlite Co., 706 N.E.2d 441, 455 (Ill. 1998) (internal citations omitted). Past income is relevant for a diminished earning capacity claim but is not dispositive. Bruce L. Ottley, Rogelio A. Lasso & Michael J. Polelle, Illinois Tort Law, § 24.10, 24-21 (4th ed., LexisNexis 2011); see also Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 726-29 (6th Cir. 2012) (discussing differences between lost earnings and diminished earning capacity). Damages for diminished earning capacity can be can be awarded even for parties who have never worked, such as children. See, e.g., Stennis v. Rekkas, 233 N.E.2d 1059 (Ill.App. 1st Dist. 1992.)

The Turner case describes the differences between a lost earnings claim and a diminished earning capacity claim. There, the plaintiff Turner was unemployed at the time of the accident, which incapacitated him for 18 months. Turner, 461 N.E.2d at 558. Prior to his unemployment, plaintiff had worked as a heavy machine operator. Id. After the accident, plaintiff alleged that due to his injuries, he was limited to working as a light machine operator. Id. The court found that plaintiff's unemployment at the time of the accident precluded him from making a lost earnings claim for his 18 month incapacitation. Id. His unemployment, however, did not preclude him from claiming an amount for diminished earning capacity as he was unable to work in his prior position as a heavy machine operator. Id.

It not clear from the materials before the court on the motion that Rossi intends to present a lost income claim, that is, a contention that, because of the injury he was unable to work at his position as a loan officer for any period of time. At his deposition, he testified that he was not working at the time of the accident, the offices were closing, and that he did not know the date he last worked. ( See Defs.' Mot. Strike David Gibson, Ex. E, Dep. Anthony Rossi at 44-45.) [Dkt 63.] The ...


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