United States District Court, D. Arizona
ORDER
HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUGDE.
Plaintiff
Blake Haines suffered cervical injuries at Get Air Tucson, an
indoor trampoline park owned by Get Air Tucson Trampolines,
LLC. He alleges that his injuries were proximately caused by
a defective employee handbook created by Defendant Get Air,
LLC (GALLC). In resolving GALLC's previously filed Motion
for Summary Judgment, this Court held that GALLC owed Mr.
Haines a duty to exercise reasonable care in developing
safety rules in the employee handbook. (Doc. 276 at
3-6.)[1] A jury trial is scheduled for November 5,
2019.
At a
Pretrial Conference held on February 5, 2019 (Doc. 300), the
Court denied without prejudice GALLC's Motion in Limine
No. 1 re: References to “Get Air Venture” (Doc.
285) and granted GALLC's Motion in Limine No. 3 re:
Condition of Premises (Doc. 287). On June 27, 2019, the Court
held a Daubert[2] hearing on GALLC's Motion to
Preclude Testimony of Anthony Gamboa. (Docs. 284, 317.)
Below,
the Court resolves Mr. Haines's Motion in Limine (Doc.
282), GALLC's Motion to Preclude Testimony of Richard
Hinrichs (Doc. 283), GALLC's Motion in Limine No. 2 re:
Piercing the Corporate Veil (Doc. 286), GALLC's Motion in
Limine No. 4 re: All Subsequent Remedial Measures (Doc. 288),
and GALLC's Motion in Limine No. 5 re: Termination of
Elyana Garcia (Doc. 289). The Court will resolve GALLC's
Motion to Preclude Testimony of Anthony Gamboa separately.
I.
Mr. Haines's Motion in Limine (Doc. 282)
Mr.
Haines asks the Court to preclude GALLC from introducing or
mentioning a document titled “Waiver, Release,
Assumption of Risk, and Indemnity Agreement” dated
August 25, 2013 (hereinafter, “Waiver”). (Doc.
282 at 2; see also Doc. 282-1 at 2-4.) Mr. Haines
signed the Waiver on his first visit to Get Air Tucson. He
was injured during his second visit on September 8, 2013.
(Doc. 282 at 3.) He argues that the Waiver is inadmissible
because GALLC was neither a party to it nor an intended
beneficiary of it and therefore cannot enforce it or benefit
from it. (Id. at 4-6.)[3] He further argues that GALLC
waived any right to enforce the Waiver. (Id. at
6-8.) Since the Waiver is unenforceable, according to Mr.
Haines, it is irrelevant under Federal Rule of Evidence 401,
and any relevance it may have is outweighed by Rule 403
concerns. (Id. at 8-10.)
GALLC
does not dispute that the Waiver is unenforceable and
concedes that Mr. Haines's relevance argument might have
merit if GALLC were relying upon a theory of express
assumption of risk; however, GALLC argues that it is
asserting an implied-assumption-of-risk theory and that the
Waiver is relevant to an element of that defense. (Doc. 297
at 3-4.) Accordingly, GALLC asks the Court to allow it to
introduce a redacted version of the Waiver for purposes of
showing Mr. Haines's knowledge of the risks of his
activities. (Id. at 1; see also Doc. 297-1
at 1-3.) GALLC asserts that the redaction of all contractual
recital provisions and the word “waiver” from the
document ameliorates any Rule 403 concerns. (Doc. 297 at 4.)
At the
Pretrial Conference held on February 5, 2019, the Court
ordered GALLC to file a usable redacted version of the
Waiver. (Doc. 300.) GALLC complied with the Court's
order, submitting two versions of the redacted Waiver-one
containing original print and noticeable redacted areas, and
another which is retyped such that the redactions are
undetectable. (Docs. 303-1, 303-2.) Both versions of the
redacted Waiver contain an acknowledgement that use of the
trampoline equipment at Get Air Tucson “constitutes an
inherently risky recreational activity that may result in
serious injury (such as paralysis and death), ” as well
as a statement that Get Air will not make the trampoline park
available to participants unless such participants “are
willing to take personal responsibility for any and all
injuries . . . that may result” from participation in
activities at the park. (Docs. 303-1, 303-2.)
Under
Rule 401 of the Federal Rules of Evidence, evidence is
relevant if it has any tendency to make a fact of consequence
in determining the action either more or less probable than
it would be without the evidence. Relevant evidence is
generally admissible, Fed.R.Evid. 402, but it may be excluded
if “its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence, ” Fed.R.Evid. 403.
Mr.
Haines's acknowledgement of the risks of use of the
trampoline equipment at Get Air Tucson is relevant to
GALLC's implied-assumption-of-risk defense. However, the
Court agrees with Mr. Haines that the Waiver-even in the
redacted form appearing at Documents 303-1 and 303-2-poses a
serious risk of unfair prejudice and jury confusion.
Furthermore, evidence of the Waiver would be cumulative if
Mr. Haines testifies at trial that Get Air Tucson conveyed to
him the inherent dangers of trampoline use, including
possible paralysis and death, and that he acknowledged those
dangers prior to his recreational use of the Get Air Tucson
trampoline park. If Mr. Haines so testifies, then the Waiver
is inadmissible under the balancing test of Rule 403 of the
Federal Rules of Evidence.
Accordingly,
Mr. Haines's Motion in Limine will be partially granted
to the extent that GALLC may introduce the Waiver only for
purposes of impeachment.[4] If GALLC intends to introduce the
Waiver for impeachment purposes at trial, it shall notify the
Court outside the presence of the jury and shall use a
retyped version of the Waiver such as that appearing at
Document 303-2, except that the font type and size should
more closely match the original, and the third paragraph of
the Waiver, [5] as well as the sentence currently
appearing in Document 303-2 concerning assumption of risk,
must be redacted in their entirety.[6]
II.
GALLC's Motion to Preclude Testimony of Richard Hinrichs
(Doc. 283)
GALLC
asks the Court to preclude Richard Hinrichs, Ph.D., from
testifying that, had GALLC's employee handbook prohibited
multiple flipping, foam-pit lifeguard Elyana Garcia would
have prevented Mr. Haines's accident from occurring.
(Doc. 283 at 1.) GALLC argues that Dr. Hinrichs's
testimony should be precluded under Federal Rule of Evidence
702, Daubert, and Kumho Tire.[7] (Id. at
2.) GALLC argues that Dr. Hinrichs' testimony is
speculative and unsupported, and that his training and
experience in biomedical engineering do not qualify him to
testify to the effect that a multiple-flip prohibition in the
employee handbook would have had on Ms. Garcia's
behavior. (Id. at 2-7.) GALLC further argues that
the same reasons require exclusion of Dr. Hinrichs's
opinion that it was reasonable for Jake Goodell, the owner of
Get Air Tucson Trampolines, LLC, to rely upon the Get Air,
LLC employee handbook. (Id. at 1.) In addition,
GALLC argues that this latter opinion was not timely
disclosed. (Id. at 1-2.)
Mr.
Haines argues that Dr. Hinrichs relied upon his expertise in
biomechanics and his training in trampolining and diving for
his opinion that allowing a single flip into foam pits is
reasonable but allowing multiple flips is not. (Doc. 295 at
2-3.) Mr. Haines also argues that Dr. Hinrichs's
experience in training lifeguards on safety rules and his
expertise in the “human factors” subset of
biomechanics allows him to opine regarding trampoline-park
safety rules. (Id. at 3.) Finally, Mr. Haines argues
that “an expert who is qualified through experience
should probably never be precluded under a Daubert
analysis, ” that “Dr. Hinrichs's experience
and expertise are uniquely applicable to the issues in this
case, ” and that Dr. Hinrichs's opinions will
assist the jury. (Id. at 7-8.)
Admissibility
of expert testimony is governed by Rule 702 of the Federal
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