Motion 15 - product liability motion in limine to exclude evidence

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Motion in Limine #2

Kilgallon & Craig, Michael B. Kilgallon, One of the Attorneys for, Defendant, NBS Parts & Service, Inc., Kilgallon & Craig, 218 North Jefferson Street, Suite 401, Chicago, Illinois 60661, (312) 379-0379 Firm I.D. No. 40763.

Now comes this Defendant, NBS PARTS & SERVICE, INC., by its attorneys, KILGALLON & CRAIG, and requests this Honorable Court, in Limine, to exclude any mention or reference, direct or indirect, to any conditions relative to labels missing, or dusty or dirty conditions or any other conditions noticed at plaintiff's expert's inspections of the product in question, or any mention by any other witnesses concerning said conditions of the product, and, in support thereof, states:

1. The law is clear in Illinois that in order to be admissible, evidence regarding the condition of a product at the time of an inspection or at any time after the accident must be supported by a foundation that the condition is substantially similar to the condition of the product at the time of the incident. Shelton v. Sunny Day Chevrolet, 97 Ill. App. 3d 543 (1981).

2. Plaintiff's experts have not, and cannot, establish any foundation as to whether any labels they indicate were missing at the time of their inspection were missing at the time of this incident, and whether any other conditions of the product they noticed at the time of their inspections, such as dusty or dirty conditions, were present at the time of this incident.

WHEREFORE, this defendant, NBS PARTS & SERVICE INC, requests this Honorable Court to enter an order, in limine, precluding any mention or reference, direct or indirect, to the above.

KILGALLON & CRAIG

Michael B. Kilgallon, One of the Attorneys for

Defendant, NBS PARTS & SERVICE, INC.

KILGALLON & CRAIG

218 North Jefferson Street, Suite 401

Chicago, Illinois 60661

(312) 379-0379 Firm I.D. No. 40763

MOTION IN LIMINE #3

Now comes this Defendant, NBS PARTS & SERVICE, INC., by its attorneys, KILGALLON & CRAIG, and requests this Honorable Court, in Limine, to preclude any mention or reference, direct or indirect, to labeling put on the machine after the manufacture of the machine in question involved in this case, on other dough break machines and, in support thereof, states:

1. The law is clear in Illinois that a manufacturer does not have a continuing duty to warn after the date of manufacture of the product in question. This includes a duty to modify labels on the machine or provide additional labels to the buyer of a machine after the date of sale or manufacture and this also, under Illinois law, precludes admission of the fact that a manufacturer has, post manufacture, utilized additional labels on a product. Carrizales v. Rheem Manufacturing Company, Inc., 226 Ill. App. 3d 20 (1991) ; Smith v. Black and Decker, 272 Ill. App. 3d 451, 456 (3rd Dist. 1995).

WHEREFORE, this defendant requests that this Honorable Court enter an order, in limine, precluding the mention that this particular manufacturer, after the manufacture of the machine involved in this case, utilized an additional pictorial label on similar machines that it manufactured.

KILGALLON & CRAIG

Michael B. Kilgallon, One of the Attorneys for

Defendant, NBS PARTS & SERVICE, INC.

KILGALLON & CRAIG

218 North Jefferson Street, Suite 401

Chicago, Illinois 60661

(312) 379-0379 Firm I.D. No. 40763

MOTION IN LIMINE #4

Now comes this Defendant, NBS PARTS & SERVICE, INC., by its attorneys, KILGALLON & CRAIG, and requests this Honorable Court, in Limine, to exclude any mention or reference, direct or indirect, to the facts or alleged facts surrounding the going out of business of Volpi Manufacturing Company or Volpi & Sons, and, in support thereof, state:

1. It has become apparent though plaintiff's naming of witnesses and the taking of the evidence deposition of one, Joseph Volpi, as well as through plaintiff's expert's disclosures and testimony that plaintiff intends to try to have admitted at this trial the facts surrounding a company that manufactured the dough breaker tables such as were manufactured by NBS Parts & Services Inc, prior to NBS Parts & Services, Inc, a company at which Mr. Mel Chance, the president of NBS Parts & Service, Inc, and owner thereof, worked, apparently relative to the issue of notice of the machine in question being dangerous or being in an unreasonably dangerous or defective condition.

2. While Mr. Volpi did testify, in his evidence deposition, that the fact that there had been some claims regarding injury against his company prior to his company going out of business, the fact that his company went out of business, and the reasons it went out of business, are clearly irrelevant to the issues in this case. In addition, he testified that one of the reasons or considerations was how much insurance was costing them. In fact, plaintiff's attorneys attempted to portray that as the main reason his company went out of business. The claims and the amount of insurance that they had to obtain or the fact that they might have to go self insured, that evidence regarding why that company went out of business or even the fact that it went out of business is not relevant to the issues in this case.

3. The law is clear, in Illinois, that mention of whether a party has insurance or not is irrelevant. Twait v. Olson, 104 Ill. App. 3d 191 (182); Wiersema v. Lockwood and Strickland Company, 147 Ill. App. 33 (1909). To suggest or present evidence to the jury of another company that manufactures the same type of machine or manufactured the same type of machine prior to NBS doing so and that it had insurance or didn't have insurance or had concerns regarding whether it could get insurance is clearly irrelevant to the issues in this case. Further, clearly, the mention of the insurance in any way of the prior company or “claims” as opposed to notice of injuries, is irrelevant and inadmissible under the above case law.

4. With regard to these issues, Mr. Volpi has specifically testified:

“Question: Again, this question is in the event that my objections are overruled relative to the issue about the claims history. In terms of the number of claims that Volpi & Sons had relative to hand injuries in say the 10 year period between 1980 and 1990, it was in the neighborhood of 3 to 5; is that accurate?

Answer: I would think that that's accurate, yes.

Question: And as far as these incidents, I think you kind of touched on this, but you really didn't have any idea exactly how those incidents that lead to those claims occurred?

Answer: That is correct.”

(See page 37 of Volpi evidence deposition).

Mr. Volpi also testified:

“Question: Okay. And this question is again just as the objections are overruled. It is true, is it not, Mr. Volpi, that in your experience, people will sue when they are injured, including on a machine even though the machine may be reasonably safely designed?

Answer: I would say that's true.

Question: Again, this question is if the objections are overruled. It is true, is it not, Mr. Volpi, that just like any business, Volpi's getting out of this particular business while claims or injuries were leading to claims played a factor, overhead, profit, all of that plays a factor?

Answer: That's true.

Question: Obviously if you are making money, even with claims, you may stay in the business?

Answer: Yes, but you can see where the industry is going, yeah.”

(See page 41 of Mr. Volpi evidence deposition).

5. Further, in his discovery deposition, Mr. Volpi actually testified to the full extent of the reasons why Volpi went out of business as follows:

“Question: as far as the business going out of business obviously, if you are making $10,000,000 a year profit and insurance is $1,000,000, your business could still be in business?

Answer: Yes.

Question: It has to do with what a company is making, and all the overhead and self insured costs?

Answer: Exactly.

Question: Its not just because of insurance reasons?

Answer: That's correct.”

(See page 33 and 34 of Mr. Volpi's discovery deposition).

6. Prior to that, at his discovery deposition, Mr. Volpi testified:

“Question: Why did it go out of business?

Answer: Exact same reason why we are sitting here now.

Question: Why?

Answer: Our product liability carrier Transit Casualty Insurance went out of business right after we paid them a nice chunk of insurance, and for all practical purposes we self insured for four years, and we couldn't afford to do it no more. So we sold - we just closed.”

WHEREFORE, this defendant request that this Honorable Court enter an order, in limine, precluding reference to the various reasons why a different company than the defendant in this case went out of business.

KILGALLON & CRAIG

Michael B. Kilgallon, One of the Attorneys for

Defendant, NBS PARTS & SERVICE, INC.

KILGALLON &CRAIG

218 North Jefferson Street, Suite 401

Chicago, Illinois 60661

(312) 379-0379 Firm I.D. No. 40763

MOTION IN LIMINE #5

Now comes this Defendant, NBS PARTS & SERVICE, INC., by its attorneys, KILGALLON & CRAIG, and requests this Honorable Court, in Limine, to exclude any mention or reference, direct or indirect, any mention by plaintiff or plaintiff's experts of alleged defective conditions of the product in question, a dough break machine which admittedly were not the proximate cause of plaintiff's accident, and in support thereof, states:

1. The law is clear, in Illinois, that in order to establish a prima facie strict liability products case, a plaintiff must present evidence that the injury in question was proximately caused by a condition of the product, second that the condition was an unreasonably dangerous one and, last that the condition existed at the time the product left the defendant's control. If there is not evidence that a defective condition was the proximate cause of an accident, if that is the only defective condition plaintiff alleges, defendant is clearly entitled to a directed verdict. Hepler v. Ford Motor Company, 27 Ill. App. 3d 508 (1975). Blue v. Environmental Engineering Co, Inc., 217 Ill. 2d 78 (2005).

2. It goes without saying, therefore, that, since plaintiff is required to prove, in a product liability case, whether under strict liability or negligence product liability , an unreasonably dangerous or defective condition of the product which proximately caused plaintiff's injuries, that a claimed unreasonably dangerous or defective condition of a product which was not related to the cause of plaintiff's injuries would not be admissible as it would be prejudicial and would not be relevant to any of the elements needed to be proven in the case.

3. Both plaintiff's experts, Mr. Ver Halen, on page 38 of Mr. Ver Halen's second deposition, and Mr. Marhefka, on page 17 of his deposition, testified that it was their opinion that the opening of the guard or the space between the guard an the hopper board, when the guard is on the machine, had no causal connection to the accident in question since they both concede that the guard in question was not on the machine at the time of this incident and nobody was trying to reach under that guard or through that opening that they testified was a defective condition, at the time of this incident.

WHEREFORE, this defendant requests that this Honorable Court, enter an order, in limine precluding any mention of said alleged defective condition of said dough breaker table.

KILGALLON & CRAIG

Michael B. Kilgallon, One the Attorneys for

Defendant, NBS PART & SERVICE, INC.

KILGALLON & CRAIG

218 North Jefferson Street, Suite 401

Chicago, Illinois 60661

(312) 379-0379 Firm I.D. No. 40763

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