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Barry v. Shell Oil Co.

United States District Court, D. Alaska

May 22, 2018

Blane Barry, Plaintiff,
Shell Oil Company, et al., Defendants.

          ORDER AND OPINION [Re: Motion at docket 142]



         At docket 142 plaintiff Blane Barry (“Barry”) filed a motion asking the court to exclude certain evidence. Barry supported the motion with a memorandum filed at docket 143. Defendant Arctia Offshore, Ltd, (“Arctia”) responded at docket 145. Defendants Shell Oil Company and Shell Offshore, Inc. (jointly “Shell”) responded at docket 147. Defendant Safety Management Systems, LLC (“SMS”) responded at docket 149 by adopting the arguments and authorities advanced by Arctia and Shell. Barry did not file a reply.

         Oral argument was not requested and would not be of assistance to the court. The motion is ripe for decision.


         Barry claims to have suffered a personal injury while working as a rigger employed by EPS Cargo Handlers (“EPS”), a subcontractor working aboard the M/V NORDICA. The vessel is an ice-breaker owned by Arctia and supplied to Shell Offshore, Inc. (“Shell Offshore”) pursuant to a Master Time Charter. Shell Offshore entered a contract with SMS to provide a safety representative aboard the NORDICA.

         Barry's complaint alleges that he suffered serious back and neck injuries while lifting a cable aboard the vessel in August of 2012. Barry seeks damages for lost earnings, lost earning capacity, past and future medical expenses, physical and emotional pain, and the loss of enjoyment of life. The court earlier denied SMS' motion for summary judgment concluding that there were unresolved factual issues concerning the duty and responsibility of SMS' safety representative Joshua Wyatt and concerning the duty and responsibilities of SMS in its relationship with Shell Offshore.


         This court agrees with the Mississippi district court which wrote: “The purpose of motions in limine is not to re-iterate matters which are set forth elsewhere in the Rules of Civil Procedure or Rules of Evidence, but, rather, to identify specific issues which are likely to arise at trial, and which, due to their complexity or potentially prejudicial nature, are best addressed in the context of a motion in limine.”[1] A party making a motion in limine has the burden of showing that specific evidence is inadmissible.[2]

         With the preceding principles in mind, the court turns to consideration of Barry's motion. Barry's remarkably broad requests seek to exclude evidence falling into nineteen categories. The first category is evidence of settlement negotiations including settlement offers made by Barry. Such evidence is excluded by operation of Fed.R.Evid. 408.[3] Unsurprisingly, no defendant contends that such evidence is admissible. The court will exclude such evidence, but notes that this request was unnecessary.

         The second category consists of evidence relating to Barry's receipt of benefits from health insurance, disability insurance and the like. The well-known collateral source rule forecloses introduction of such evidence to limit or reduce a defendant's liability to pay damages. Defendants do not argue otherwise, but Arctia points out that evidence of collateral payments might, in appropriate circumstances, be admitted for other purposes such as to show malingering[4] or to refute a claim of destitution. Shell argues that inquiry might be appropriate to test Barry's credibility as it relates to the interplay between his maintenance payments and his disability benefits. Such an inquiry likely would not survive Rule 403 analysis. The court will apply the collateral source rule at trial. This does not foreclose a defendant making application to introduce some evidence of collateral sources if the defendant can establish outside the jury's presence that the evidence should be allowed for a specific purpose other than reducing damages to be paid by a defendant. If evidence were admitted for such a purpose, it would require an appropriate limiting instruction to be sure the jury would not use the evidence to reduce a defendant's damages liability.

         Barry's third and fourth categories overlap. Each concerns testimony by persons not timely identified pursuant to Fed.R.Civ.P. 26 and in responses to Barry's discovery requests. Defendants do not address this topic. Suffice it to say that this court always insists that any witness who is to testify at trial must, among other things, have been timely identified.

         Categories five and six seek exclusion of documents or tangible things not timely produced or disclosed pursuant to Fed.R.Civ.P. 26 or during the discovery process. All that need be said is that this court does not admit such evidence.

         Categories seven, eight, and nine address exclusion of expert testimony from persons not disclosed to Barry as experts or who offer testimony falling outside the opinions disclosed to him. The court will enforce the applicable rules ...

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