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United States Fire Insurance Company, A/S/O Mafcote v. Omnova Solutions

May 7, 2012

UNITED STATES FIRE INSURANCE COMPANY, A/S/O MAFCOTE INTERNATIONAL, INC.,
PLAINTIFF,
v.
OMNOVA SOLUTIONS, INC.,
DEFENDANT.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION AND ORDER OF COURT

The factual and procedural details of this subrogation action are well known to the parties and I need not repeat them in detail here. Pending are several Motions in Limine that the parties have filed. Through its only Motion, Plaintiff seeks to exclude certain witnesses and evidence allegedly not previously disclosed by the Defendant and to compel production of certain documents and photographs allegedly disclosed for the first time in Defendant's Pretrial Statement. In its Motions, Defendant seeks the following: (1) to exclude evidence, testimony, and argument that Omnova Solutions Committed a trespass; (2) to exclude evidence of prior occurrences of flooding; (3) to exclude evidence, testimony, and argument of alleged corporate relation or succession; and (4) permission to move in limine at a later date to exclude Plaintiff's as-yet-undisclosed demonstrative exhibits. After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, Plaintiff's Motion in Limine is denied and Defendant's Motions in Limine are granted in part and denied in part.

I. Applicable Standards

Federal Rules of Evidence 401 and 403

Relevant evidence is defined as 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 than it would be without the evidence." Fed. R. Evid. 401. In turn, relevant evidence may be excluded if its "probative value is substantially outweighed 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." Fed. R. Evid. 403. "Rule 403 authorizes a district court in its broad discretion to exclude collateral matters that are likely to confuse the issues." United States v. Casoni, 950 F.2d 893, 919 (3d Cir. 1991). The inquiries under Rules 401 and 403 are fact-intensive, and context-specific. Sprint v. Mendelsohn, 552 U.S. 379 (2008). A court should be wary of excluding evidence in limine under Rule 403 because "[a] court cannot fairly ascertain the potential relevance of evidence for Rule 403 purposes until it has a full record relevant to the putatively objectionable evidence." In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1999). "[W]hen the trial judge is in doubt, Rule 403 requires admission." Coleman v. Home Depot, Inc., 306 F.3d 1333, 1244 (3d Cir. 2002).

The burden of establishing the admissibility and relevance of evidence rests on the proponent. See, e.g., Phillips v. Potter, Civ. A. No. 7-815, 2009 WL 258830, at *1 (W.D. Pa., Aug. 19, 2009).

II. Plaintiff's Motion

Plaintiff moves in limine to exclude certain witnesses and evidence not previously disclosed by Defendant. (Docket No. 31). Plaintiff also moves to compel production of certain documents and photographs allegedly disclosed for the first time in Defendant's Pretrial Statement. Id. For the following reasons, Plaintiff's Motion is denied:

First, with respect to Exhibits H, I, FF, GG, and PP listed in Defendant's Pretrial Statement, Defendant identified these items in its Initial Disclosures and produced the same either with the Initial Disclosures or in response to Plaintiff's requests for production of documents. Def.'s Opp. Br. (Docket No. 32) at 2-3. With respect to Exhibits B and QQ, Defendant represents that it had identified these items in its Initial Disclosures and that it would produce copies of the pertinent documents/photographs to Plaintiff on or before March 16, 2012.*fn1

Second, with respect to Exhibits AA, OO, VV, DDD, and EEE listed in Defendant's Pretrial Statement, Defendant represents that the parties previously exchanged these documents during discovery. Def.'s Br. Opp. at 4.

Third, with respect to Exhibits K, L, M, N, O, T, U, V, W, X, BB, CC, DD, EE, II, JJ, and NN, Defendant represents that Plaintiff did not request these items during discovery. Def.'s Br. Opp. at 5-6. Defendant further notes that these exhibits are documents in the public domain. Id. at 5. Defendant indicates in its opposition brief that it would produce copies of these previously non-requested exhibits to Plaintiff by March 16, 2012 in accordance with Fed. R. Civ. P. 26(a)(3)(B).*fn2 Id. at 6.

Fourth, Defendant admits that it did not produce the document listed as Exhibit Q on its Pretrial Statement (FM Global Loss Prevention Report dated April 22, 2004) in discovery although the document was responsive to Plaintiff's discovery requests. Def. Br. Opp. at 6. Defendant explains, however, that its counsel only located the document within a week of filing its Pretrial Statement and that it has since produced a copy to Plaintiff in accordance with Fed. R. Civ. P. 26(a)(3)(B) and (e)(1)(A).*fn3 Nothing in the record before me gives me any reason to disbelieve Defendant's representations in this regard.

Fifth, Plaintiff's motion is denied with respect to the four "new" fact witnesses Plaintiff alleges Defendant identified for the first time in its Pretrial Statement (Messrs. Pillsbury, Zomok, Bixler, and Jotzke). Pl.'s Mot. ¶ 5. Defendant represents that it intends to call Bixler, Jotzke, and Pillsbury solely for impeachment purposes and, therefore, was not required to identify them in its Initial Disclosures. See Fed. R. Civ. P. 26(a)(1)(A)(i), (a)(3). Defendant further states that it does not intend to call Zomok as a witness at trial. Def.'s Br. Opp. at 8.

In short, Defendant has identified and/or produced all of the documents and/or witnesses at issue in Plaintiff's Motion in Limine in a timely manner. Moreover, Plaintiff's fairness objections are without merit in light of the fact that the trial date in this case has been postponed, thus providing Plaintiff adequate time to evaluate the items at issue prior ...


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