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Hawn v. Speedway LLC

United States District Court, N.D. Indiana, Fort Wayne Division

May 14, 2018

NAIKOMA HAWN, Plaintiff,
v.
SPEEDWAY LLC, d/b/a SPEEDWAY #8029, Defendant.

          OPINION AND ORDER

          William C. Lee, Judge U.S. District Court.

         This matter is before the Court on the Plaintiff's Motions in Limine filed on April 23, 2018 (docket entry 46). Defendant Speedway filed a response in opposition (DE 54) and Plaintiff Hawn filed a reply (DE 61). For the reasons discussed below, the motion is GRANTED in part and DENIED in part.

         DISCUSSION

         Plaintiff Naikoma Hawn filed a motion in limine seeking to limit the testimony of Speedway's Federal Rule 30(b)(6) corporate designee, Shannon Ware. Hawn titled her pleading in the plural, i.e., motions in limine, because it purports to address two evidentiary issues, although both are related to Ms. Ware's testimony. First, Hawn argues that “Shannon Ware should not be permitted to testify at trial about any matters outside the scope of her personal knowledge.” Plaintiff's Motions in Limine, p. 2. This request appears reasonable on its face because it is axiomatic that a witness, with very few exceptions, cannot testify as to any fact or issue not within the scope of the witness' personal knowledge. Hawn's second argument is that Ware's testimony, if properly limited by the Court, in turn precludes Speedway “from attempting to argue that Hawn was negligent or careless or as not careful when entering the Speedway restroom.” Id., p. 3. In essence, Hawn is seeking to preclude Speedway from arguing comparative fault, arguing that Ware's deposition testimony binds Speedway to “its position . . . that Ms. Hawn didn't do anything that was unsafe or negligent with regard to the fall.” Id., p. 4.

         Speedway contends that “[n]o need exists for the Court to issue an Order in limine preemptively limiting Ms. Ware's testimony to her ‘personal knowledge, ' as Plaintiff requests. In addition, statements made in Speedway's Rule 30(b)(6) deposition do not constitute judicial admissions, and the Court should permit Speedway to argue its affirmative defense of comparative fault at trial.” Defendant's Response in Opposition, p. 1.

         I. Limitations on Shannon Ware's testimony.

         Hawn explains that in her “30(b)(6) notice [to Speedway] included ‘all company policies and procedures related to employee mopping of the interior of the store, including signage used . . . [and] training provided by Speedway to its employees regarding mopping practices, and schedule for mopping the interior floors including the bathrooms.' . . . Plaintiff also requested that the designee be able to address ‘all company knowledge and opinions relating to the incident.' . . . Speedway (through Shannon Ware) testified that it was only aware of the one warning sign depicted in [a photo of the scene at the time of the incident].” Plaintiff's Motion, pp. 2-3 (emphasis in original). Therefore, argues Hawn, “[i]t would be improper for Shannon Ware personally to testify that other signs existed in the store on the date of the incident, given that she was not present in the store and she could not identify any other signs based on her preparation for the deposition. Shannon Ware would only be able to rely on her review of the surveillance video itself. If she attempted to rely on hearsay statements of someone else, that would be improper[.]” Id., p. 3.

         Hawn also states that “in the corporate deposition, Speedway alleged that [employee] Larry Hart stated ‘he just inspected just to make sure there was-such as no used paper towels on the floor or pieces of toilet paper.' . . . Speedway also represented that Larry Hart told Shannon Ware that he used a dry mop without a bucket.” Id. Hawn argues that “[a]ny such allegations by Shannon Ware at trial would be inadmissible hearsay and outside the scope of her personal knowledge. Therefore, hearsay statements of what may or may not have been conveyed to Shannon Ware should be prohibited[.]” Id.

         Hawn's argument seems at first blush to be nothing more than a boilerplate motion in limine, based on a fundamental evidentiary principle, seeking to prevent a witness from uttering hearsay in front of the jury. The issue, though, is a bit more nuanced. As Speedway points out, “Rule 30(b)(6) provides an exception to the general rule that a witness's testimony must be based on personal knowledge. . . . Topic No. 3 for Plaintiff's Rule 30(b)(6) deposition of Speedway was ‘all company knowledge and opinions relating to the incident[.] . . . The information provided by Larry Hart, the only Speedway employee working at the time of Plaintiff's fall, together with the store's surveillance photos near the time that she fell are the only sources of Speedway's knowledge of Plaintiff's fall. To prevent Ms. Ware from testifying about what Mr. Hart told her would completely prohibit her from testifying regarding matters within the corporation's knowledge about Plaintiff's fall, would effectively prevent Speedway from presenting a full defense, and would result in prejudice to Speedway.” Defendant's Response, p. 2 (emphasis in original) (citations omitted). After all, Speedway points out, “Plaintiff apparently does not object to Ms. Ware testifying about the materials she reviewed in preparation for the 30(b)(6) deposition, including the Speedway surveillance video from the time of Plaintiff's fall, written statements of Speedway employees following Plaintiff's fall, and certain Speedway documents.” Id. Speedway concludes that “[t]o split hairs and pre-determine what topics Ms. Ware may and may not testify about at trial at this stage would be premature.” Id.[1]

         Hawn states in her reply brief that “Shannon Ware can be offered as a witness by Speedway to discuss matters within her personal knowledge, including stipulated records that she reviewed and the jury will have in their possession at the time of her testimony. . . . And, Defendant is correct that the 30(b)(6) deposition testimony is an exception to the general rule that a witness's testimony must be based on personal knowledge. . . . But this exception does not extend to Shannon Ware's trial testimony.” Plaintiff's Reply (DE 61), p. 1 (italics added). Hawn states that “[i]t is the intent of Plaintiff to offer portions of the 30(b)(6) corporate deposition during her case in chief. Rule 32(a)(3). Defendant would then be permitted to offer responses from that deposition if they exist. However, Defendant cannot offer Shannon Ware to testify to matters outside of her personal knowledge in its case in chief.” Id., p. 2. Finally, Hawn argues that “the purpose of this motion in limine is to prevent an employee from offering hearsay and requiring counsel to object to such improper matters in the presence of the jury.” Id.

         Hawn's motion will be granted to the extent it seeks to prevent the introduction of inadmissible hearsay. For example, Ware cannot testify about statements Larry Hart made to her, but she can testify as to any statements that she reviewed in her capacity as Speedway's corporate designee (whether made by Hart or anyone else). This would include the alleged statements by Hart concerning his mopping of the women's restroom. If Hart made such statements directly to Ware she cannot testify about them. This much is fundamental, made even more so by the fact that Hart is listed as a witness by both sides[2] and could testify as to the important facts concerning when and how he mopped the floors and where “wet floor” warning signs were positioned at the time of Hawn's fall. In any event, Hawn's motion in limine is granted in part and Ms. Ware will not be permitted to testify about any statements Hart made to her about this incident other than statements included in the materials she reviewed in her capacity as corporate designee.

         II. The Plaintiff's motion is denied to the extent that it seeks to preclude Defendant Speedway from “mention[ing], referenc[ing], [or] argu[ing]” that Hawn was negligent or careless and that her carelessness contributed, at least in part, to her fall.

         If Hawn's motion sought only to preclude the introduction of hearsay, then all of the argument about this point would be much ado about nothing. But Hawn seeks not only to exclude inadmissible hearsay, but also to foreclose entirely Speedway's ability to argue comparative fault on the part of Hawn, which is the ultimate goal of the motion in limine. Hawn's argument casts too wide a net, but it ...


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