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Row Equipment, Inc. v. Terex USA, LLC

United States District Court, S.D. Georgia, Waycross Division

November 21, 2019

ROW EQUIPMENT, INC., Plaintiff,
v.
TEREX USA, LLC d/b/a TEREX ENVIRONMENTAL EQUIPMENT, Defendants.

          ORDER

          R. STAN BAKER UNITED STATES DISTRICT JUDGE.

         Plaintiff ROW Equipment, Inc. (“ROW”) sued Terex USA, LLC (“Terex”), seeking damages for its purchase (from Terex) of wood chippers that ROW contends were faulty, frequently malfunctioned, and were never properly repaired or replaced by Terex. The Court granted summary judgment in favor of Terex on all but one of Plaintiff's claims. (Doc. 57.) The sole claim remaining for adjudication at trial is a claim that Defendant Terex breached its express standard warranty that the chippers would be free of “defects in manufacture or materials” and that it would adequately repair or replace the chippers. (Doc. 51, pp. 11, 13; doc. 57, p.p. 16-17; see also doc. 15.) The case is presently before the Court on Defendant's “Motion in Limine to Exclude Previously Unidentified Witnesses, ” (doc. 82), “Motion in Limine to Exclude Lay Opinions, ” (doc. 83), and “Motion in Limine to Exclude Testimony on the Operation and Repair of the [Wood] Chippers, ” (doc. 84), as well as Plaintiff's “Motion in Limine, ” (doc. 97). For the reasons set forth more fully below, the Court GRANTS IN PART, DENIES IN PART and DEFERS ITS RULING IN PART as to Terex's Motion in Limine to Exclude Previously Unidentified Witnesses, (doc. 82); GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART Terex's Motion in Limine to Exclude Lay Opinions, (doc. 83); and DENIES WITHOUT PREJUDICE Terex's Motion in Limine to Exclude Testimony on the Operation and Repair of the Chippers, (doc. 84). As to ROW's Motion in Limine, the Court DEFERS ITS RULING as to Part 1, and DENIES Part 2 of that Motion, (doc. 97).

         STANDARD OF REVIEW

         “The real purpose of a Motion in Limine is to give the trial judge notice of the movant's position so as to avoid the introduction of damaging evidence, which may irretrievably affect the fairness of the trial.” Stewart v. Hooters of Am., Inc., No. 8:04-CV-40-T17-MAP, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007). “The court excludes evidence on a Motion in Limine only if the evidence is clearly inadmissible for any purpose.” Id. “Accordingly, if evidence is not clearly inadmissible, evidentiary rulings must be deferred until trial to allow questions of foundation, relevancy, and prejudice to be resolved in context.” Id. (citation and emphasis omitted).

         DISCUSSION

         I. Terex's Motion in Limine to Exclude Previously Unidentified Witnesses (Doc. 82)

         In the at-issue Motion in Limine, Terex seeks an order prohibiting ROW from calling as witnesses at trial the following individuals, whom ROW listed in its Witness List for trial (which was filed in accordance with this Court's Trial Preparation Scheduling Order (doc. 77)), but who, according to Terex, were never disclosed as potential witnesses during discovery: Christy Houck, Sam Cason, “Danny (mechanic, last name unknown), ” Matt Twig, and Chuck Snyder. (Doc. 82, p. 7.) Terex also seeks the exclusion of Terry Tyre, who was included on the Witness List and had been identified during another witness's deposition, but for whom ROW never provided Terex contact information. (Id.) Notably, ROW has not responded to this particular Motion in Limine and thus apparently admits that these witnesses were either never disclosed or, in the case of Tyre, were insufficiently identified.

         A party must disclose “the name and, if known, the address and telephone number” of any individual likely to have discoverable information that the party may use to support any of its claims or defenses within fourteen days of the Rule 26(f) conference.[1] Fed.R.Civ.P. 26(a)(1). “If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). The non-disclosing party bears the burden of showing that its failure to disclose was substantially justified or harmless. Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. 2009) (internal quotation marks and citation omitted).

         The Court has reviewed ROW's initial disclosures as well as its responses to Terex's written discovery requests (copies of which were provided as exhibits to Terex's Motion in Limine). None of these documents identified Christy Houck, Sam Cason, Matt Twig, Chuck Snyder, or Terry Tyre as potential witnesses (much less provided telephone numbers or addresses for them). The Court has also reviewed portions of two deposition transcripts provided by Terex, which show that Terry Tyre was twice identified as an operator of one or both of the chippers. (Docs. 82-9, 82-10.) While there is no indication that Terex affirmatively requested telephone number or address information for Tyre during those depositions or thereafter, there is also no indication that this information was not known to ROW and thus not subject to mandatory disclosure to Terex per Fed.R.Civ.P. 26(a)(1).[2] Finally, as to the witness identified as “Danny (mechanic, last name unknown), ” ROW did disclose-in its Responses to Terex's First Interrogatories-“Danny Parker” as a “Mechanic” with “knowledge about the defective Chippers” and it provided a phone number for him. (Doc. 82-3, pp. 6, 16.)

         Despite bearing the burden to do so, ROW has made no effort to show either that it made proper and timely disclosures of any or all of the at-issue witnesses or that its failure to do was substantially justified or harmless. The Court finds that ROW failed to properly disclose Christy Houck, Sam Cason, Matt Twig, and Chuck Snyder as potential witnesses. and it therefore cannot affirmatively call any of them as a fact witness. As to Terry Tyre, given ROW's failure to respond to the Motion in Limine, no justification or other argument has been offered for ROW's failure to formally identify Tyre as someone ROW may use to supports its claims. Moreover, even if the Court found that the deposition testimony about Tyre constituted sufficient identification, there is no indication that Tyre's telephone number and/or address were unknown to ROW such that ROW was excused from providing such information. As a result, Terex cannot call Tyre as a fact witness. The Court emphasizes, however, that the failure to properly disclose each of the foregoing individuals as a witness does not prevent ROW from eliciting testimony from them to rebut testimony offered by a witness for Terex.

         Finally, if the witness identified as “Danny (mechanic, last name unknown)” in ROW's Witness List is Danny Parker (the individual identified in ROW's interrogatory responses), then ROW may call him as a witness at trial. To the extent, however, “Danny (mechanic, last name unknown)” is someone other than the Danny Parker previously identified in ROW's interrogatory responses, then that individual cannot be called by ROW as a fact witness (though he may be called to rebut testimony offered by a witness for Terex). Certainly, by the time of the Pretrial Conference, ROW should have determined the last name of this individual whom it expects to call as a witness at trial. Therefore, at the Pretrial Conference for this case, the Court will issue its ruling on whether “Danny” will be permitted to be called as a witness by ROW. Accordingly, Plaintiff's Motion in Limine to Exclude Previously Unidentified Witnesses, (doc. 82), is GRANTED IN PART, DENIED IN PART, and DEFERRED IN PART (as to witness “Danny”).

         II. Terex's Motion in Limine to Exclude Lay Opinions (Doc. 83)

         In its Motion in Limine to Exclude Lay Opinions, Terex seeks to exclude “testimony regarding the engineering, design, manufacture, and repair of the [two at-issue wood chippers] from lay witnesses who are not qualified to testify on such issues.” (Doc. 83, p. 6.) Terex notes that ROW has not identified any expert witnesses to opine on these topics, (id.), and it therefore anticipates that ROW will seek to elicit this sort of “evidence, testimony or opinions” from lay witnesses, which it argues should be excluded as “contrary to the law, not relevant, and on the grounds it will only confuse the jury.” (Id. at p. 2.)

         In its Response, ROW concedes that none of its witnesses should be permitted to testify as to what “should have been incorporated into the design of the chippers” or as to the alleged reasons “why repairs were necessary.” (Doc. 104, p. 1 (quoting doc. 83, pp. 8, 10).) ROW takes issue, however, with limiting its witnesses' abilities to testify about repairs to the chippers, particularly where the witnesses have “personal knowledge of the simple fact that, at least on certain occasions, the chippers did not work.” (Id. at p. 1.) ROW also points out that Terex has designated, for use at trial, portions of ...


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