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Below v. Yokohama Tire Corp.

United States District Court, W.D. Wisconsin

February 28, 2017

JOSHUA J. BELOW, DEBRA BELOW, CHARLIE ELIZABETH BELOW, PATRICK JOSHUA BELOW, STAR BLUE BELOW-KOPF and DEAN HEALTH PLAN, INC., Plaintiffs,
v.
YOKOHAMA TIRE CORPORATION, YOKOHAMA CORPORATION OF AMERICA, YOKOHAMA CORPORATION OF NORTH AMERICA, YOKOHAMA TIRE MANUFACTURING VIRGINIA, LLC, and YOKOHAMA RUBBER COMPANY, LTD., Defendants.

          ORDER

          WILLIAM M. CONLEY District Judge

         This case is set for a jury trial commencing March 6, 2017. The court held a final pretrial conference on February 28, 2017, at which the parties appeared by counsel. Consistent with the rulings during today's conference, the court issues the following order with respect to the parties' motions and the schedule going forward.

         ORDER

         IT IS ORDERED that:

1) Defendants may file by noon tomorrow a 3-5 page brief presenting case law and any new arguments in support of their motion to exclude specific testimony from plaintiffs' expert, Gary Derian, on which the court continues to RESERVE. Plaintiffs may have until 6 p.m. on Thursday, March 2nd, to file a response brief of a similar length. There will be no reply.
2) Tomorrow, plaintiffs shall produce Terry Tadysak and Tom Malone for depositions of up to one-hour each. Defendants may file, by the end of the day on Friday, March 3rd, a short brief presenting new evidence from those depositions and related argument in support of their motion for a spoliation instruction, on which the court continues to RESERVE. Plaintiffs may have until Sunday, March 5th at 5 pm to file a response.
3) With respect to defendants' 1st, 2nd and 3rd motions in limine, plaintiffs may offer a summary exhibit presenting evidence of belt edge separation warranty claims before the tire was manufactured in 2006 for the purpose of establishing notice of the possible need for an alternative design, but not for notice of a possible manufacturing defect. Should defendants “open the door” by claiming no litigation has arisen out of a tire failure, then plaintiffs may offer an expanded, summary exhibit, including any evidence of similar claims after 2016 as well. Accordingly, those motions are GRANTED in part and DENIED in part.
4) Defendants' 4th motion in limine is DENIED. Defendants may make an advance proffer of a curative instruction regarding confidential information to add to the introductory jury instructions on or before noon on Thursday, March 2nd.
5) In light of the court's rulings as to defendants' 1st, 2nd and 3rd motions in limine, defendants' 5th motion in limine is DENIED as moot.
6) Defendants' 6th motion in limine is GRANTED unless defendants open the door with respect to bias during cross-examination of plaintiffs' tire expert. Plaintiffs' counsel must advise the court outside of the presence of the jury if they believe defendants have opened the door.
7) The court continues to RESERVE in part on defendants' 10th and 11th motions in limine pending further briefing on the scope of testimony by plaintiffs' expert, Gary Derian. Defendants' may file by noon tomorrow, a limited brief supplementing their reasons to preclude Gary Derian's opinion regarding a reasonable alternative design and a manufacturing defect in the belt curing process, quoting specific language from Derian's deposition. Plaintiffs may have until Thursday, March 2nd at 6:00 p.m. to file a response.
8) The court continues to RESERVE on defendants' 13th motion in limine pending further briefing on defendants' spoliation motion as set forth above.
9) Defendants' 15th motion in limine is GRANTED with regard to lay opinion testimony as to the cause of the tire failure or Below's injuries during the liability phase of trial. Plaintiffs may offer lay opinion testimony as to injuries Joshua Below would have received had he been held ...

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