Below I’ve included the text of a Motion in Limine that Fleet filed in a Phospho-Soda lawsuit.  A Motion in Limine is a motion a party files before the trial in which the party asks the court to either allow or permit something from happening.

In this case, Fleet didn’t want the plaintiff to be able to show the jury statements that Fleet’s own attorney made in public:

In the DVD, Mr. Gunn states in part as follows:

I was trying a pharmaceutical case last month in California, and the company that I was trying it for has about 80 lawsuits pending over the product and several law firms that are representing them….The president of the company was telling me how much he was hoping I was going to use these other lawyers as resources. And I told him I wasn't, that they really didn't have anything to offer to me. They were too concerned with the medicine and the details, and that at the time of trial we're way beyond that… problem was the product did cause a problem so there really wasn't any point in talking about the medicine.

I’m not sure if the order was granted, but I bet it was.  Statements like this are generally kept out of court.

Defendant C.B. Fleet Company, Inc. (“Fleet”), by counsel, pursuant to this Court's Order entered December 11, 2008, hereby submits this Motion in Limine, showing the Court as follows:

I. INTRODUCTION

By way of this Motion in Limine, Fleet respectfully requests this Court to enter an order prohibiting the introduction into evidence and any reference to any statements made by Defendant's attorney Earl W. “Billy” Gunn at a Continuing Legal Education Seminar (“the seminar”). Fleet anticipates that Plaintiff will attempt to show the DVD of the seminar and/or illicit testimony related to the seminar in an effort to imply that Fleet admitted that the product at issue as defective. The fact is, however, that there is no evidence that Mr. Gunn's comment was in any way such an admission. Accordingly, any evidence of or testimony regarding the seminar is irrelevant to the issues at trial, and introduction of the DVD or testimony related thereto provides no probative value.

II. ARGUMENT

In order to be admissible at trial, evidence must be relevant to the case. Relevance requires that evidence have a tendency to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Evidence that does not meet this test for relevance is not admissible. Fed. R. Evid. 402. In addition, relevant evidence should be excluded when any possible probative value of such “evidence” is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. See Fed. R. Evid. 403.

In the present action, Defendant believes that Plaintiffs will attempt to introduce a DVD and elicit testimony related to Defendant's attorney, Earl W. ‘Billy” Gunn's statement made as a speaker at a 2007 Continuing Legal Education (“CLE”) seminar. At the deposition of Douglas Bellaire, Mr. Bellaire was questioned as follows:

Q. Well, weren't you told in the Hayes [sic] case in California by your Counsel that the product caused the problem?

A. I don't know anything about that.

See Exhibit, p. 319.

Mr. Bellaire was then asked if, and confirmed that, Mr. Gunn was his attorney in the Hays case which took place in October of 2007. See Douglas Bellaire Depo., pp. 320-21, Exhibit attached hereto. Subsequently, a portion of the DVD reflecting Mr. Gunn's lecture was played. In the DVD, Mr. Gunn states in part as follows:

I was trying a pharmaceutical case last month in California, and the company that I was trying it for has about 80 lawsuits pending over the product and several law firms that are representing them….The president of the company was telling me how much he was hoping I was going to use these other lawyers as resources. And I told him I wasn't, that they really didn't have anything to offer to me. They were too concerned with the medicine and the details, and that at the time of trial we're way beyond that… problem was the product did cause a problem so there really wasn't any point in talking about the medicine.

See Exhibit, pp. 321-322.

Thereafter, Plaintiffs attorney questioned Mr. Bellaire as follows:

Q. Did your attorney in the Hayes [sic] case tell you that the product caused the problem, sir?

A. No.

Q. What Mr. Gunn told us there, was that true?

A. I don't remember what was — what was said.

See Exhibit, p. 324.

It is indisputable that evidence such as the testimony or DVD referenced above has no bearing on the ultimate facts to be determined by the jury because nothing in that evidence or testimony serves to prove or disprove any issue pending in this case. Hence, such evidence and testimony is patently irrelevant and inadmissible. Mr. Gunn's comments made during the seminar were limited to the facts and issues surrounding the medical causation defense in the Hays case, which are not relevant to this case. In addition, Mr. Gunn's comments were made in a casual atmosphere for the purpose of illustrating a point at a seminar given by and for lawyers. The issues to be determined in this case are whether the Defendant was somehow negligent in (or strictly liable for) the production or promotion of Phospho-Soda, whether Defendant's conduct caused Mr. Burk' s injuries and, if so, the amount of his damages. Clearly, the statement made by Mr. Gunn about another case to other attorneys at a legal seminar related to a different plaintiff is irrelevant to Mr. Burk's issues. Furthermore, even if such evidence could logically be argued to be relevant, it is clear that the prejudicial effects of such evidence would far outweigh any probative value to be obtained from its admission. Introduction of Mr. Gunn's remarks would confuse and inflame the jury and unfairly prejudice the Defendant. Accordingly, any evidence or testimony regarding Mr. Gunn's comments at a CLE seminar should be excluded at trial pursuant to Rule 403.

WHEREFORE, Fleet respectfully requests that this Court grant this Motion in Limine and prohibit Plaintiffs from introducing evidence or argument related to comments made by Earl W. “Billy” Gunn at a CLE seminar.
END OF DOCUMENT