Free Motion in Limine - District Court of Connecticut - Connecticut

Case 3:01-cv-02402-AWT

Document 108

Filed 05/29/2007

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT PETER D. MAINS and LORI M. MAINS Plaintiffs, v. SEA RAY BOATS, INC. Defendant. : CASE NO. 301 CV 2402 (AWT) : : : : : : : : MAY 29, 2007

DEFENDANT'S MOTION IN LIMINE TO PRECLUDE CUMULATIVE EXPERT TESTIMONY I. INTRODUCTION Defendant Sea Ray Division of Brunswick Corporation (improperly designated in the Complaint as "Sea-Ray Boats, Inc.") ("Sea Ray") respectfully submits this motion in limine to preclude Plaintiffs from introducing the testimony of four different experts on the condition of the boat that is the subject of this action. As set forth below, the testimony of four different experts on the same subject would be cumulative, would cause undue delay and waste of time, and would be unduly prejudicial. Accordingly, Sea Ray respectfully submits that, under Fed. R. Evid. 403, Plaintiffs should be permitted to introduce the testimony of, at most, two of these four experts. II. FACTUAL BACKGROUND On or about May 21, 1998, Plaintiffs purchased a boat manufactured by Sea Ray (the "boat"). Compl. ¶ 5. Plaintiffs allege that the boat was defective within the meaning of the Connecticut Product Liability Act, Conn. Gen. Stat. §§ 52-572m et seq., and that the boat was further damaged as a result of Sea Ray's alleged negligence. Plaintiffs initially disclosed five experts to testify as to the condition of the boat. Subsequently, Plaintiffs indicated to Sea Ray

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through counsel that they would not produce the testimony of one of the five experts, David Pascoe. Plaintiff's expert Thomas Wicander, has offered opinions concerning the condition of the boat's engines, and is not the subject of this motion. All three of the Plaintiffs' other proposed experts have offered opinions on the condition of the non-mechanical components of the boat. 1 Plaintiff's expert Thomas P. Greaves, a marine surveyor, has offered opinions as to the general condition of the boat. Report of Thomas P. Greaves ("Greaves Report") at 1 (attached hereto as Ex. 1) ("The survey was conducted for the purpose of ascertaining and reporting upon the general condition of the vessel and to make recommendations upon the findings."); id. at 1-3 (inspection categories include "GENERAL," TOPSIDES," "BOTTOM," "DECKS," "INTYERIOR," "ENGINE," "ELECTRICAL," "FUEL SYTEM," "FIRE EXTINGUISHERS," and "VENTILATION"). Plaintiff's expert Anthony Knowles, another marine surveyor, has also offered opinions as to the boat's general condition, and has not limited his opinions to any particular feature or features of the boat. See Report of Anthony Knowles ("Knowles Report") ¶¶ A-X (attached hereto as Ex. 2). Plaintiff's expert Bruce Pfund limited his inspection to the boat's composite construction. See Report of Bruce Pfund at 2 (attached hereto as Ex. 3). His opinions are cumulative of those of Mr. Greaves and Mr. Knowles. See Greaves Report at 1, 2 (inspection included, inter alia, "TOPSIDES," "BOTTOM," and "DECKS"); Knowles Report ¶¶ A, I (describing "moisture

The report of Thomas P. Greaves describes the installation of the engines, but notes that "engines were inspected by yard mechanic at Pilots Point Marina." Report of Thomas P. Greaves at 3. -2-

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content . . . in the foredeck," "voids in the cabin top," and cracks in the hull allegedly resulting from "the stress generated by lifting the boat by the [towing] rings"). III. ARGUMENT The testimony of two of the three marine surveyors regarding the same subject should be excluded under Fed. R. Evid. 403, because testimony by more than one would be needlessly cumulative and would cause undue delay and waste of time. See, e.g., In re Air Disaster at Lockerbie Scotland, 37 F.3d 804, 824 (1994)("the trial court . . . may, in its discretion, refuse to entertain expert testimony it thinks unhelpful, cumulative, confusing to the jury, or more prejudicial than probative.")(emphasis added)(citing 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence P 702[02], at 702-18 to -20 (1993)); F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1258 (2d Cir. 1987) (District Court's exclusion of proffered expert testimony was proper because that testimony would have been cumulative). Plaintiffs are not entitled to present three expert witnesses on the condition of the same parts of the boat. While they are entitled to present the testimony of a mechanical expert with respect to the Boat's engines as well as the testimony of a another expert with respect to the boat's general condition, there is no justification for permitting the Plaintiffs to introduce the testimony of three experts on the boat's general condition. Moreover, permitting the Plaintiffs to do so would be unfairly prejudicial, because it may lead the jury to decide contested issues based on the number of witnesses offered. IV. CONCLUSION For the foregoing reasons, Sea Ray respectfully requests that the Court preclude Plaintiffs from introducing the testimony more than one of the three marine surveyors identified by them as potential expert witnesses. -3-

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Respectfully submitted, DEFENDANT, SEA RAY BOATS, INC.

By

/s/ Daniel J. Foster James H. Rotondo (ct05173) Daniel J. Foster (ct 24975) Day Pitney LLP CityPlace I Hartford, Connecticut 06103-3499 Phone: (860) 275 -0100 Fax: (860) 275-0343 Its Attorney

CERTIFICATION I hereby certify that on this date a copy of foregoing Defendant's Motion in Limine was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System. /s/ Daniel J. Foster Daniel J. Foster (ct24975)

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