ABOUT THIS FORM
This is a plaintiff’s Motion in Limine (a type of bench motion filed just prior to trial) which asks the trial judge to block the defense from presenting a contributory negligence defense at trial. The motion seeks to preclude any evidence or argument from the defense which suggests that the plaintiff’s negligence caused the accident and should therefore preclude any damages.
IN THE CIRCUIT COURT OF MARYLAND FOR BALTIMORE CITY
RICHARD CONRAD *
Plaintiff, * Case No.:
DISNEY THEATRICAL PRODUCTIONS, LTD *
d/b/a DISNEY THEATRICAL GROUP, et al. *
* * * * * * * * * * * *
PLAINTIFF’S FIRST MOTION IN LIMINE TO PRECLUDE
EVIDENCE OR ARGUMENT THAT PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT
Plaintiff, Richard Conrad, by and through his counsel, Laura G. Zois, John B. Bratt and Miller & Zois, LLC hereby files Plaintiff’s First Motion in Limine to Preclude Evidence or Argument That Plaintiff Was Contributorily Negligent
Plaintiff anticipates that Defendants will attempt to introduce evidence and present argument that he was contributorily negligent in three ways. First, Plaintiff anticipates that Defendants will argue that Plaintiff was contributorily negligent by attempting to push the deck cart at issue in this case, despite suffering from left foot drop and a limited range of motion in his left shoulder. Second, Plaintiff anticipates that defendants will argue that Plaintiff was contributorily negligent by attempting to push the deck cart using fewer than four people. Third, Plaintiff anticipates that defendants will argue that Plaintiff was contributorily negligent by moving the cart from its short side, thereby causing it to tip over.
There are three reasons these arguments and any testimony supporting them should not be permitted. First, contributory negligence is not a defense as a matter of law to Plaintiff’s strict liability claims. Second, Defendants lack the required expert medical and engineering testimony to prove a causal link between Plaintiff’s physical disabilities and the occurrence. Finally, Defendants lack the required expert testimony to prove a causal connection between the number of people pushing the cart and the occurrence, or between Plaintiff’s position while moving the cart and the occurrence.
This is a product liability case. Richard Conrad was working as a stagehand on the load-out of the traveling production of The Lion King in Baltimore, Maryland. He was injured when a “deck cart,” storing elements of the stage, fell on him while he was helping to move it. The deck cart was about eight feet tall, was approximately two feet by three feet, and weighed about 1200 pounds. It was designed by Buena Vista Theater Group, Ltd. (“BVTG”), and Hudson Scenic Studios, Inc. (“Hudson”), and manufactured by Hudson.
Prior to this incident, Plaintiff suffered from certain physical disabilities. He suffered from chronic left foot drop dating back to the 1970′s. “Foot drop” is an inability to adequately raise the ankle which resulted in tendency for Plaintiff’s left foot to drag. Plaintiff also suffered a left shoulder injury in approximately 1993. As a result of this injury he was unable to raise his left arm higher than chest level.
I. Defendants should be precluded from arguing or presenting evidence of contributory negligence as to Plaintiff’s strict liability claims.
Under Maryland law, contributory negligence does not bar strict liability claims. Montgomery Co. v. Valk Manuf. Co., 317 Md. 185, 188, 562 a.2d 1246, 1247 (1989). It “is not a defense in an action of strict liability in tort.” Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597, 495 A.2d 348, 356 (1985). Accordingly, Plaintiff moves, in limine, to preclude Defendants from presenting any evidence or making any argument that Plaintiff was contributorily negligent in opposition to Plaintiff’s strict liability claims.
Plaintiff has also pled causes of action sounding in negligence. On these counts, it is possible that a defendant may be entitled to a jury instruction on contributory negligence. Id. at 599, 495 A.2d at 357. As is argued below, Plaintiff does not believe that Defendants are able to produce legally sufficient evidence for the affirmative defense of contributory negligence to go to the jury on even Plaintiff’s negligence claims.
However, in the event that the Court allows contributory negligence to go to the jury, Plaintiff asks the Court to specifically instruct the jury that contributory negligence is not a defense to Plaintiff’s strict liability claims. “When theories of negligence and strict liability in tort are being presented to a jury, and the defense of contributory negligence is properly before the jury, a trial judge may well find it helpful to specifically instruct the jury that contributory negligence is not a defense to the strict liability action.” Id. at 599, 495 A.2d at 357. This is such a case, and Plaintiff requests that the jury be so instructed in the event the jury is permitted to consider contributory negligence on the appropriate claims.
II. Defendants should be precluded from presenting evidence or arguing that Plaintiff was contributorily negligent as a result of his pre-existing disabilities.
a. Defendants should be limited to the theories of contributory negligence disclosed in discovery.
Defendants were asked in discovery if they contended Plaintiff was contributorily negligent. Both defendants served identical answers, where no theory of negligence involving Plaintiff’s pre-existing physical problems was disclosed:
Interrogatory No. 3: Do you contend that any other entity or individual acted unreasonably or failed to act reasonably and is responsible for the occurrence or the damages complained of in Plaintiff’s Complaint? If so, identify that individual or entity and fully set forth the factual basis upon which you intend to rely upon at trial in support of this contention.
Answer No. 3: Upon information and belief, the defendant states that the Plaintiff caused or contributed to the occurrence by attempting to move the set cart by himself after being instructed that four people were required to safely move a set cart and by moving the set cart from the short of the cart which put the set cart at risk for toppling over.
The primary purpose of interrogatories is to ascertain the contentions of the adverse party. Baltimore Transit Co. v. Mezzanote, 227 Md. 8, 174 A.2d 768 (1961). Maryland Rule 2-421 requires that interrogatories be answered “separately and fully under oath….” An answer to an interrogatory “shall include all information available to the party directly or through agents, representatives, or attorneys.” Md. Rule 2-421(b). Moreover, the duty to answer interrogatories is a continuing one. “Except in the case of a deposition, a party who has responded to a request or order for discovery and who obtains further material information before trial shall supplement the response promptly.” Md. Rule 2-401(e).
Because Defendants have never disclosed an intent to rely upon any theory of contributory negligence beyond that which was revealed in their Answers to Interrogatories, they should be precluded from presenting any evidence or argument regarding contributory negligence beyond what was previously disclosed.
b. Defendants lack the required expert testimony to prove any causal connection between Plaintiff’s disabilities and the occurrence.
Contributory negligence is available as a defense in product liability cases where negligence claims are made. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 599, 495 A.2d 348, 357 (1985). “The burden of proving contributory negligence is on the defendant.” Moodie v. Santoni, 292 Md. 582, 586, 441 A.2d 323, 325 (1982). “Contributory negligence, if present, defeats recovery because it is proximate cause of the accident; otherwise the negligence is not contributory.” Batten v. Michel, 15 Md. App. 646, 652, 292 A.2d 707 (1972). In a product liability case, contributory negligence only exists where the Plaintiff’s conduct “was a direct contributing cause of the injury.” Moran v. Faberge, 273 Md. 538, 554, 332 A.2d 11, 21 (1975). “The defendant has the burden of proving that the plaintiff’s negligence was a cause of the plaintiff’s injury.” MPJI-Cv 19:11. “Contributory negligence… means negligence which contributes to cause a particular accident which occurs.” Schroyer v. McNeal, 323 Md. 275, 281, 592 a.2d 1119, 1122 (1990). The concept of proximate causation applies to the defense of contributory negligence. Ritter v. Portera, 59 Md.App. 65, 70-71, 474 A.2d 556, 558 (1984).
Applying these concepts to this case, even assuming that attempting to push the deck cart with foot drop and a limited range of motion in the left shoulder was negligent; to produce a jury issue Defendants must produce evidence that this negligence was a cause of the Plaintiff’s injuries. Simply put, Defendants must have some evidence as to what effect these disabilities had on Plaintiff, and how those effects contributed to the occurrence. This is evidence that Defendants do not have.
Whether Plaintiff’s physical disabilities were a cause of his injuries is a “complicated medical question involving fact finding which properly falls within the province of medical experts…” Craig v. Chenoweth, 232 Md. 397, 400, 194 A.2d 78, 79 (1963). “It has been held that reliance upon lay testimony alone is not justified when the medical question involved is a complicated one, involving fact finding which properly falls within the province of medical experts.” Deremer v. Liston, 252 Md. 571, 577, 250 A.2d 622, 626 (1969). See, Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 441-42, 914 A.2d 113, 135 (2007).
Defendants have identified five expert medical witnesses: Richard M. Conant, an orthopedist; Robert B. Lehman, a psychiatrist; David Buchholz, a neurologist; and Melvin Bulmash and Barry Cohan, dentists. Exhibit 2. Of these, only Dr. Conant and Dr. Buchholz could conceivably have the required qualifications to testify as to whether Plaintiff’s disabilities were a cause of the occurrence. Neither of these witnesses was identified to offer an opinion on this issue. Exhibit 2. Defendants lack the required medical testimony to causally connect Plaintiff’s physical disabilities to the happening of the occurrence. Therefore, Defendants should be precluded from presenting any evidence or argument that Plaintiff was contributorily negligent as a result of attempting to push the deck cart knowing he suffered from physical disabilities.
III. Defendants should be precluded from arguing or presenting evidence that Plaintiff was contributorily negligent by pushing the deck cart using fewer than four people or by moving the cart from the short side because there is no evidence of any causal connection.
As is stated above, Defendants contend that Plaintiff was contributorily negligent “by attempting to move the set cart by himself after being instructed that four people were required to safely move a set cart and by moving the set cart from the short of the cart which put the cart at risk of toppling over.” Exhibit 1. Unfortunately, Defendants are again confronted with a glaring lack of evidence to establish a causal connection between pushing the cart with fewer than four people and the occurrence, or between Plaintiff’s positioning and the happening of the occurrence.
Making such a causal connection would involve testimony about the properties of the deck cart itself, its behavior on various surfaces, and the forces which might be generated in the event it became unstable, as well as the capabilities of the human body to handle those forces and to exert force on the cart. Defendants have no evidence as how much force Plaintiff could exert from the “short side” of the cart, or how much force would put the cart at risk for toppling over. Defendants have not identified a single expert in ergonomics, engineering or medicine who might offer this testimony.
“The general rule is well established that expert testimony is… required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman.” Hartford Acc. & Indemnity Co. v. Scarlett Harbor Assoc., 109 Md.App. 217, 257, 674 A.2d 106, 125 (1996)(requiring expert testimony in a design defect case), affirmed, 346 Md. 122, 681 A.2d 70 (1996). “Expert testimony is not required, however, on matters of which the jurors should be aware by virtue of common knowledge.” Id. “[M]ost jurors would not be sufficiently versed in engineering, physics, or construction” to make factual determinations in those areas without the assistance of expert testimony. Id., at 257, 674 A.2d at 126. This is also true for the evaluation of permanent injury, the standard of care in professional malpractice cases and for questions of medical causation. Id. at 258, 674 A.2d at 126.
Here, it would be impossible for a lay jury to make factual determinations about the physics of the falling deck cart, its behavior on various surfaces, and the ability of the human body to affect those properties without the assistance of expert testimony. Without expert testimony, it is impossible to connect Plaintiff’s failure to push the cart using four people or Plaintiff’s positioning to the happening of the occurrence. Because Defendants have not identified any experts who will offer such testimony, Defendants should be barred from presenting any evidence or argument to the effect that Plaintiff was contributorily negligent on those bases.
Plaintiff’s First Motion in Limine should be granted. First, evidence of contributory negligence is not admissible on Plaintiff’s strict liability claims. Second, Defendants lack the required expert testimony to prove that Plaintiff was contributorily negligent by attempting to push the cart with his pre-existing physical disabilities, by using fewer than four people, or by positioning himself on the short side of the cart. Accordingly, Plaintiff requests an Order that Defendants shall not present any evidence or make any argument that Plaintiff was contributorily negligent.
MILLER & ZOIS, LLC