Haines v. Get Air LLC

          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 ...