Manion v. Ameri-Can Freight Systems Inc.

          ORDER

          Dominic W. Lanza, United Slates District Judge.

         The Final Pretrial Conference in this case is scheduled for August 26, 2019. (Doc. 91.) In anticipation of trial, the parties have filed 10 motions in limine. (Docs. 97, 99-107.) Having reviewed those motions and the responses thereto, the Court hereby rules as follows. The parties will be free at the Pretrial Conference to present additional argument concerning any of these rulings and attempt to convince the Court to change its mind.

         I. Plaintiff Blyler's Motion re: Post-Separation Sexual Relationships (Doc. 97)

         Plaintiff Lisa Blyler seeks the preclusion of evidence that she engaged in sexual relationships with two other men after separating from Johnathan Blyler (“the Decedent”). (Doc. 97.) She contends such evidence is irrelevant because “[w]hile the fact that Lisa Blyler may have begun dating after her separation from Johnathan Blyler may be relevant to a determination of damages, whether she engaged in sex while dating is not relevant.” (Id. at 2.) She further contends that such evidence should be excluded under Rule 403 because it would be unfairly prejudicial and likely to inflame the jurors. (Id. at 2-3.) Finally, she contends the potential for juror confusion is exacerbated by the fact that she is suing in two different capacities in this case-statutory beneficiary and personal representative of the Decedent's estate-and the jurors may find it difficult to consider the disputed evidence only with respect to her claim as a beneficiary. (Id.)

         In their response, Defendants argue the disputed evidence is relevant because Lisa Blyler is seeking damages based on the loss of “love, affection, companionship, protection, and guidance from Johnathan Blyler” and the other courts have recognized that “[w]hen claiming the loss of a relationship, the extent and nature of that relationship is essential to the claims.” (Doc. 115 at 2, quoting Doc. 115-1 at 7.) They continue: “If the parties were estranged, such that Plaintiff was dating or having sexual relationships outside of a previously monogamous relationship, this goes to the heart of Plaintiff's damages and is likely the most important and relevant information for a jury to evaluate a marital relationship.” (Id.) Defendants also contend the disputed evidence isn't unfairly prejudicial and that any risk of confusion stemming from Lisa Blyler's dual role as beneficiary/representative can be eliminated by forcing Plaintiffs to stick with a single representative in the wrongful death claim. (Id. at 3-4.)

         This motion will be denied. Plaintiff Blyler has placed the nature of her relationship with Decedent at issue by asserting what is effectively a claim for loss of consortium. Defendants are therefore entitled to present evidence bearing on that issue. A rational juror could conclude that an estranged spouse who was engaging in sexual relationships with others is not entitled to the same range of loss-of-consortium damages as a spouse who had merely separated from her partner, and perhaps engaged in some casual dating, but remained monogamous. Indeed, Arizona law specifically recognizes that “[c]onsortium includes . . . in the marital relationship, sexual relations” and that “[t]he purpose of a consortium claim is to compensate for the loss of” this, along with other elements. Barnes v. Outlaw, 964 P.2d 484, 487 (Ariz. 1998) (quotation omitted).

         Nor does Rule 403 preclude the admission of this evidence. Exclusion under Rule 403 is “an extraordinary remedy to be used sparingly.” United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (citation omitted). “Under the terms of the rule, the danger of prejudice must not merely outweigh the probative value of the evidence, but substantially outweigh it.” Id. Here, the relevance of the disputed evidence is more than marginal, given the nature of Plaintiff Blyler's damage claim, and it seems unlikely that a jury of adults would be inflamed to the point of irrationality by the presentation of evidence that a person who had separated from her spouse was sexually active. Finally, any risk of confusion stemming from Plaintiff Blyler's role as both statutory beneficiary and personal representative can be addressed through jury instructions, if requested by the parties.

         II. Plaintiffs' Motion re: Inadmissible Hearsay Of Unknown Witnesses (Doc. 104)

         During his deposition, Defendant Steven Robertson (“Robertson”)-the driver of the semi-truck that collided with Decedent's vehicle-testified that an unknown witness stopped at the scene of the collision and they “had a conversation . . . about whether [Decedent's] Jeep had its lights on and/or whether [Decedent's] Jeep was completely stopped on the roadway.” (Doc. 104 at 2.) Plaintiffs move to exclude any evidence concerning this alleged conversation at trial because it is hearsay and because Defendants' experts did not rely on it and could not reasonably have relied on it. (Id. at 2-3.)

         In their response, Defendants “do not object to the preclusion of testimony made by unknown witness to Defendant Steven Robertson.” (Doc. 108 at 1.) Accordingly, this motion will be granted.

         III. Plaintiffs' Motion re: Hearsay Crash Report Witness Statement (Doc. 105)

         The police report in this case states that a witness named Mario Duran witnessed the accident and provided a written statement to the police officer stating that he “did not see any lights or hazards on [Decedent's] Jeep.” (Doc. 105 at 2.) However, the parties were unable to locate or depose Mr. Duran during the discovery process in this case. (Id. at 2.) Thus, Plaintiffs move to preclude, on hearsay grounds, any evidence or argument concerning “statements made by Mario Duran in the Arizona Crash Report.” (Id. at 3-4.)

         In their response, Defendants “do not object to the preclusion of hearsay statements in the Crash Report which were attributed to other persons. This includes statements made by . . . Mario Duran . . . .” (Doc. 109 at 1-2.) Accordingly, this motion will be granted.

         IV. Plaintiffs' Motion re: Decedent Being Sleepy Or Sleeping At The Wheel (Doc. 106)

         During discovery in this case, Defendants propounded requests for admission that, in a nutshell, asked Plaintiffs to admit Decedent had been awake for about 21 hours straight at the time of the collision. (Doc. 106 at 2.) Based on these requests (which Plaintiffs denied, because they “lack[] information to know [Decedent's] sleeping habits during the time period in question”), Plaintiffs suspect that Defendants will attempt to argue at trial that Decedent fell asleep at the wheel before the fatal collision. (Id.) Thus, Plaintiffs move under Rules 403, 602, and 701 to exclude any evidence or argument that Decedent “was sleepy or fell asleep at the wheel just prior to the collision at issue in this matter, ” arguing that it would be “pure speculation” to suggest Decedent was asleep. (Id. at 2-4.)

         In their response, Defendants state they have documentary evidence (in the form of text messages) showing that Decedent was awake by 5:30 am on the day before the accident and have other evidence showing that Decedent engaged in additional activities throughout that day and evening. (Doc. 116 at 2.) They contend they “seek only to provide evidence to the jury that the decedent had not slept for twenty plus hours at the time of the accident” and that such evidence is relevant because “Defendants' main defense in this matter is comparative fault upon the Decedent . . . [and] [a] regular lay person can review the evidence at hand and determine if a party was fatigued and whether it impacted their driving under the totality of the evidence.” (Id. at 2-3.)

         Plaintiffs' motion will be denied. Defendants have evidence that tends to suggest Decedent had been awake for 21 hours at the time of the collision. It does not require expert testimony to conclude that a person who's been awake for 21 hours may be sleepy and, thus, less attentive as a driver-this is a common-sense conclusion that a juror could draw based on his or her own personal experience as a human being. And because comparative fault is one of the key disputed issues in the case, evidence tending to suggest that Decedent had been awake for 21 hours at the time of the collision is both relevant and not subject to exclusion under Rule 403.

         V. Plaintiffs' Motion re: Alcohol ...