Free Motion in Limine - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

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Filed 07/01/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 04-cv-1070-PSF-PAC DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico corporation, and ROSS A. REED, Defendants. ______________________________________________________________________________ DEFENDANTS' MOTIONS IN LIMINE ______________________________________________________________________________ COME NOW the Defendants, Overright Trucking, Inc., a New Mexico corporation (hereinafter "Overright") and Ross A. Reed, by and through their attorneys of record, Wittman & McCord, and for their Motions in Limine, Defendants state as follows: I. MOTIONS IN LIMINE RE: Emotional Distress The plaintiffs' in their Complaint, have asserted a claim for Negligence arising out of property damage to their residence, and allege that as a result of the damage to their home, that they incurred damages for emotional distress. In order to plead a claim for emotional distress arising out of mere negligence, however, plaintiffs must plead not only that they suffered emotional distress which resulted in serious physical manifestations or mental illness, but also must plead that they were in the zone of danger, and that such gave rise to damages for emotional distress. Atsepoyi v. Tandy Corp., 51 F. Supp. 2d 1120 (D. Colo. 1999); Towns v. Anderson, 197 Colo. 517, 579 P.2d 1163(1978). The Complaint does not contain such allegations, and therefore any assertion that

Case 1:04-cv-01070-PSF-PAC

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plaintiff should be entitled to emotional distress damages would be beyond the scope of the pleadings as asserted by the plaintiffs in this matter. Furthermore, even where a claim for negligent infliction of emotional distress has been properly plead, damages for mere emotional distress are not recoverable on a negligence claim in the absence of physical manifestations of the distress, creation of an unreasonable risk of bodily harm or willful and wanton conduct, none of which had been alleged in the Complaint. See Webster v. Boone, 992 P.2d 1193(Colo. App. 1999); Calvaresi v. National Development Co., 772 P.2d 640(Colo. App. 1980); Towns v. Anderson, Supra. Further, there is no recovery in tort for mental suffering resulting from injury to property. Webster v. Boone, Id. at 1185. In discovery to date, plaintiffs have asserted in their responses to interrogatories that their emotional distress consists of eye twitches, sleep disturbance, adrenaline rushes and jumpiness. Plaintiffs also apparently assert arm twitches and weight gain. These are not the types of serious physical manifestations which give rise to damages recoverable under Colorado Law. Rather, courts have found that generally recognized symptoms such as headaches, insomnia, crying spells, vomiting and diarrhea are insufficient to constitute a serious physical manifestation. Atsepoyi v. Tandy Corp., 51 F. Supp. 2d 1120 (D. Colo. 1999). Defendants respectfully request, therefore, that the plaintiffs be precluded from attempting to introduce evidence of emotional distress at time of trial. The Complaint does not contain a claim for negligent infliction of emotional distress, and even were it broadly construed to contain such a claim, the alleged manifestations identified by plaintiff do not give rise to recoverable damages for emotional distress as a matter of law.

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II.

Motion in Limine re: Evidence of Drug Test Results for Ross A. Reed. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence.

F.R.C.P. 401. Although relevant, evidence may be excluded if its probative value is substantially out weighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. F.R.C.P. 304. In the present matter, this is an action wherein plaintiffs Complaint asserts that Ross Reed, while in the course and scope of his employment for defendant Overright Trucking, was negligent in the operation of his vehicle causing it to leave the highway and to collide with their residence, causing damage to their home. On October 7, 2004, Defendants submitted responses to requests for admissions admitting the negligence of Mr. Reed, and admitting that his negligence was the sole cause of the damage to that residence. F.R.C.P. 36(b) provides that "any matter admitted under this Rule is conclusively established unless the Court on motion permits withdrawal or amendment of the admission." The Advisory Committee Notes to Rule 36 states that the Rule is designed to serve two vital purposes, "... to facilitate proof with respect to issues that cannot be eliminated from the case and secondly, to narrow the issues by eliminating those that can be." The Committee Notes recognize that "(i)n form and substance a Rule 36 admission is comparable to an admission in pleadings or a stipulation

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drafted by counsel for use at trial,..." The Rule seeks to promote trial efficiency by eliminating uncontested factual matters. Howell v Maytag, 168 F.R.D. 502, 504 (M.D. PA., 1996). Defendants contest only the nature and extent of Plaintiffs' claimed damages and have withdrawn affirmative defenses relative to comparative negligence, pro rata degree of fault, that the damages were the result of the acts and/or omissions of other parties for which Defendant was not responsible, assumption of risk and sudden emergency and have further confirmed such in their Summary of Defenses, contained in the final Pre-Trial Order herein. Plaintiffs, however, seek to preserve these affirmative defenses to their own claims, solely for the purpose of expanding the scope of evidence which may be admissible at trial. The lack of any disputed issues as to negligence renders evidence of a positive drug test as to the subject accident irrelevant to any of the issues to be tried at trial. In the alternative, to the extent it has any probative value whatsoever, this probative value is substantially out weighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, should they receive evidence of such at time of trial. Clearly, the only purpose for which plaintiffs may seek introduction of such evidence at trial would be to create prejudice in the minds of the jurors, as the defendants have admitted that Mr. Reed was negligent as to the operation of his vehicle and that such was the sole cause of the subject accident and damage to the home. Rather, defendants contest only the nature and extent of the damages claimed by plaintiffs in this matter, to which the results of any drug testing for Mr. Reed bear no relevance. It is respectfully requested therefore, that the Court enter an order precluding any admission of evidence and/or any testimony regarding an alleged positive drug test result for Mr. Reed following the subject accident. 4

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Respectfully submitted this 1st day of July, 2005. WITTMAN & McCORD

s/ J. Bradley Hardman J. Bradley Hardman (#17122) 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919 Telephone: (719) 590-9899 Fax: (719) 590-9984 Email: [email protected] Attorney for Defendants

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing DEFENDANTS' MOTIONS IN LIMINE was served this 1st day of July, 2005, on the following via the U.S. District Court of Colorado ECF filing system: Michael W. Baty, Esq. 1040 Main Avenue P.O. Box 1157 Durango, CO 81301 Randolph H. Phillips, Esq. 609 Pine Avenue P.O. Box 2303 Albany, GA 31702

Regina Dineen

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