United States District Court, D. Arizona
Dominic W. Lanza, United Slates District Judge.
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.
Plaintiff Blyler's Motion re: Post-Separation Sexual
Relationships (Doc. 97)
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.
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.)
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
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.
Plaintiffs' Motion re: Inadmissible Hearsay Of
Unknown Witnesses (Doc. 104)
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.)
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.
Plaintiffs' Motion re: Hearsay Crash Report Witness
Statement (Doc. 105)
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.)
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.
Plaintiffs' Motion re: Decedent Being Sleepy Or
Sleeping At The Wheel (Doc. 106)
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.)
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.)
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.
Plaintiffs' Motion re: Alcohol ...