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IN THE DISTRICT COURT OF TULSA COUNTY
STATE OF OKLAHOMA
CARL JORDAN, an individual,
Plaintiff,
Case No. CJ-2013-4500
v. The Honorable Rebecca Nightingale
JEFF HECKENKEMPER, an individual,
and PERFORMANCE REAL ESTATE
SERVICES, INC., d/b/a JEFF
HECKENKEMPER RENOVATIONS,
DISTRICT COURT
FILED
DEC 16 2014
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Defendants/ )
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ARE BOG
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Third-Party Plaintiffs
vs.
1ST CALL ELECTRIC, LLC, an Oklahoma
Corporation; STEVE MOORE, an individual;
SNOWDEN ENGINEERING, INC., an Oklahoma
Corporation; ALBERTO CHINCHILLA, an
individual, and d/b/a TRANSFORMATIONS BY
ALBERTO, LLC, an Oklahoma Corporation;
MATT SHOPE, an individual, d/b/a MATT
SHOPE PLUMBING & DRAIN; PERSI PEREZ,
an individual; DANIEL REYES, an individual;
GREGORY PATTON, an individual, and SAUL
BRAVO, an individual,
Third-Party Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANTS’
“MOTION IN LIMINE TO PRECLUDE EVIDENCE OF PUNITIVE DAMAGES”
Plaintiff, Carl Jordan (“Jordan”), respectfully submits this Response in opposition to the
“Defendants’ Motion in Limine to Exclude Evidence of Punitive Damages,” filed November 24,
2014 (the “Motion in Limine” or the “Motion”).
INTRODUCTORY STATEMENT
Defendants’ Motion in Limine is improper and should be summarily denied. In effect,
defendants have sought a partial summary adjudication on punitive damages before Jordan hashad the opportunity to present evidence at trial to establish his right to punitive damages claims. It
is well-recognized that a motion in limine is not a substitute for a motion for summary judgment
or motion for partial summary adjudication on damages.
ARGUMENT AND AUTHORITY
I. The Motion in Limine is Improper and Should be Denied.
The defendants’ Motion in Limine seeks to preclude the introduction of “any claims,
testimony, arguments, or other evidence referencing punitive damages.” (Motion in Limine, p. 3).
Despite labeling the Motion as a motion in limine to exclude evidence, the Motion actually seeks
to exclude Jordan’s punitive damages claim. Utilizing the motion in limine process as a substitute
for summary judgment or partial summary adjudication on punitive damages, as is the case here,
is improper; thus, the Motion in Limine should be denied.
The purpose of a motion in limine is to “preclude the introduction of prejudicial matters to
the jury...” Clark vy. Turner, et al., 2004 OK CIV APP 69, 23, 99 P.3d 736, 741. A motion in
limine affords the trial court with the opportunity “to rule on the admissibility of evidence in
advance” of trial. Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121, 127; see
also Poore v. Glanz, 2014 WL 4286481 at *1 (N.D. Okla. 2014) (“The purpose of a motion in
limine is to aid the trial process by enabling the Court to rule in advance of trial on the relevance
of certain forecasted evidence. . . .”) Defendants cite no authority that a motion in limine can
serve as a substitute for a motion for summary judgment or motion for partial summary
adjudication on punitive damages.In Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F.Supp.2d 1093, 1094 (C.D. Cal.
2012) (attached as Exhibit A), the court provided a helpful lesson on “improper reasons for
motions in limine.” The court noted as follows:
Some examples of improper reasons for motions in limine follow.
(A) _ To present all conceivable evidentiary objections that might arise at trial.
(B) As a substitute for motions to compel discovery or for discovery sanctions
that should have been brought earlier.
(C) Asa substitute for summary judgment.
(D) _ To reiterate or reinforce obvious or trivial points.
(E) To “educate the judge” on a particular issue.
(F) To control or cabin items that can’t be controlled or cabined in the progress
of a trial.
(G) To resolve issues prematurely before they are viewed in the context of trial.
(Exhibit A, p. 2, emphasis added). That it is improper to use the in limine process as a substitute
for summary judgment is well-recognized. See Tulsa Trailer & Body, Inc. v. Trailmobile, Inc. et
al., 1986 U.S. Dist. LEXIS 26395, *3 (N.D. Okla. 1986); Jefferson v. Lyon Sheet Metal Works,
376 S.W.3d 37, 41 (Mo. App. 2012) (reversing trial court where it permitted litigant to use motion
in limine process to preclude entire defense because “motion in limine is not a substitute for a
summary judgment motion” and a motion in limine should not be employed “to choke off an
entire claim or defense.”); Meador v. Total Compliance Consultants, Inc., 425 $.W.3d 718, 721
(Ark. 2013) (“A motion in limine is not to be used to eliminate an entire claim or defense or a
sweeping means of testing issues of law.”); Village of Roseville v. Thompson, 567 N.E.2d 1334,1336 (Ohio App. 1989) (motion in limine was not appropriate means to obtain declaratory
judgment prior to trial).
In Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn. App. 2008), the court
confronted the exact “motion in limine” at issue here — to preclude evidence of punitive damages.
The court there rejected the defendant’s argument, explaining that:
A motion for partial summary judgment is an appropriate way to challenge a claim
for punitive damages. Berenger v. Frink, 314 N.W.2d 388, 390 (Iowa 1982);
Lundgren v. Eustermann, 370 N.W.2d 877, 882 (Minn.1985); see also Chapman v.
Jones, No. M1999-02178-COA-R9-CV, 2000 WL 13793, at *2-4 (Tenn.Ct.App.
Jan.10, 2000) (No Tenn. R.App. P. 11 application filed), Rather than testing Ms.
Cook's punitive damage claim using a motion for summary judgment, the Hyundai
defendants waited until approximately one week before trial to file their motion in
limine whose purpose was to choke off Ms. Cook's punitive damage claim by
preventing her from introducing the very evidence she would be required to
present during the first phase of the trial to establish that she had a right to punitive
damages. Had the trial court considered the motion in limine, it would have
permitted the Hyundai defendants to skirt the notice and burden of persuasion
requirements normally associated with summary judgment motions. The Hyundai
defendants, however, did not press their motion in limine. Had they done so, the
trial court would properly have denied it.
271 S.W.3d at 193 (excerpt attached as Exhibit B). As was the case in Duran, a motion for partial
summary adjudication is the appropriate way to challenge a claim for punitive damages, not a
motion in limine. See, e.g, White v. Lim, 2009 OK 79, 224 P.3d 679 (motion for summary
judgment on punitive damages); Wallace v. Transport Life Ins. Co., 1992 OK CIV APP 20, 841
P.2d 613 (affirming trial court’s granting of partial summary judgment on punitive damages).
Consistent with this case law, none of the authorities cited by defendants in their Motion
in Limine support the use of the motion in limine process to bar claims for punitive damages. In
Payne v. DeWitt, 1999 OK 93, 995 P.2d 1088, cited at page 3 of the Motion in Limine, the
Oklahoma Supreme Court reversed the award of punitive damages. However, it did not say thatthe decision on punitive damages was appropriate for a motion in limine. Id. Similarly, while
State Farm Mutual Auto Ins. Co. v. Campbell, 538 U.S. 408 (2002), cited at page 5 of the Motion
in Limine, discusses certain aspects of punitive damages, it does not say that the issue of punitive
damages should be decided by motion in limine.
The other authorities cited by defendants actually support the submission of the issue of
punitive damages to the jury. In all three sections of 23 Okla. Stat. § 9.1 cited by the defendants,
it states the issue of punitive damages is subject to a finding of the jury upon the review of the
evidence. (Motion in Limine, pp. 3-4). The only other authority cited by defendants is Black v.
M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001). (/d., p. 4). Again, the court in Black did not
involve a motion in limine seeking to preclude punitive damages. Further, Black reversed the trial
court’s judgment as a matter of law on punitive damages finding that the issue should have been
presented to the jury. 269 F.3d at 1240.
The Defendants’ “Motion in Limine” to obtain a summary adjudication on punitive
damages is a textbook example of this type of improper motion in limine, and should be denied.'
I. Even if the Court were to Treat the Motion in Limine as a Motion for Partial
Summary Adjudication on Punitive Damages, it should be Denied.
As discussed in Section I, supra, the Motion in Limine is improper and should be denied.
However, if the Motion in Limine were treated as motion for partial summary adjudication on
punitive damages, it is without merit.
First, it is untimely. Under the applicable Scheduling Order, the deadline for dispositive
motions, which would include motions for partial summary adjudication, was September 2, 2014.
' Oklahoma law already provides a remedy to the defendants in the event that Jordan “fails to
provided evidence” of punitive damages at trial — a demurrer or motion for directed verdict. See
12 Okla. Stat. § 577; Badillo v. Mid Century Ins. Co., 2005 OK 48, 121 P.3d 1080, 1092-93.
5Second, the Motion in Limine fails to comply with District Court Rule 13 regarding
motions for summary judgment and summary adjudication. The Motion in Limine does not
contain a statement of undisputed material facts. See Rule 13(a) of the Rules for District Court’s
of Oklahoma. It also contains no references to portions of the record to support any facts that
would justify summary adjudication. As this Court is aware, summary judgment is warranted
only where the Court is convinced that “there is no substantial controversy as to any material
fact.” Liberty Bank & Trust Co. of Oklahoma City v. Bachrach, 1996 OK 143, 916 P.2d 1377,
1379-80. The Oklahoma Supreme Court has explicitly placed the burden of this showing first on
the moving party:
It is incumbent on the moving party to present evidentiary material to
support its allegation that no genuine material facts are in dispute. Only when
the moving party has met this requirement does the obligation shift to the
non-moving party to show that a controversy as to the material facts exist.
Id. (Internal citations omitted). The defendants have plainly failed to meet this burden with the
Motion in Limine on Punitive damages.
Third, the defendants rely upon their contention that they previously “provided this Court
with a showing of the lack of causal connection between any claimed damages by Plaintiff and
the actions or inactions of Defendants.” (Motion in Limine, p. 5). This is inaccurate. The only
“previous showing” that the Defendants could be referring to would be their overruled Motion for
Summary Judgment. To the extent that the Court deems it necessary, Jordan hereby incorporates
by reference the facts, evidence and argument contained in his Response to Motion for Summary
Judgment, filed September 22, 2014.CONCLUSION
For the foregoing reasons, Jordan respectfully requests that this Court deny Defendants’
“Motion in Limine to Exclude Evidence of Punitive Damages.”
Respectfully submitted,
LEE Leave
Joel L. Wohlgemuth, OBA #9811
David R. Ross, OBA # 19930
NORMAN WOHLGEMUTH CHANDLER & JETER
401 South Boston Avenue
2900 Mid-Continent Tower
Tulsa, OK 74103-4023
(918) 583-7571
(918) 584-7846 (facsimile)
ATTORNEYS FOR PLAINTIFF, CARL JORDANCERTIFICATE OF SERVICE
I hereby certify that on the 16th day of December, 2014, a true and correct copy of the
above and foregoing instrument was served via email on:
Douglas Borochoff, Esq.
601 South Boulder Suite 500
Tulsa, OK 74119
Attorney for Jeff Heckenkemper
Brad Heckenkemper, Esq.
110 W. 7® Street, Suite 900
Tulsa, OK 74119
Attorney for Jeff Heckenkemper and
Performance Real Estate Services, Inc.
Anthony P. Sutton, Esq.
8908 South Yale, Suite 245
Tulsa, OK 74137
Attorney for 1% Call Electric, LLC
And Steve Moore CZ
David R. KossMIXED CHICKS LLC v. SALLY BEAUTY SUPPLY LLC 1093
Cite as 879 F.Supp.2d 1093 (C.D.Cal. 2012)
Chemerinsky, supra, at 172-73; see also
Winterbottom v. Wright, 152 Eng. Rep.
402, 405-06 (1842) (“This is one of those
unfortunate cases ... in which, it is, no
doubt, a hardship upon the plaintiff to be
without a remedy but by that consider-
ation we ought not to be influenced. Hard
cases, it has frequently been observed, are
apt to introduce bad law.”).
Accordingly, this court declines to de-
part from the wisdom of precedent, and
reaffirms the longstanding rule that in-
junctions of speech in defamation cases are
impermissible under the First Amend-
ment. The court therefore DENIES
Plaintiffs’ Motion for a Permanent Injune-
tion with respect to Defendant’s speech.
IT IS SO ORDERED.
7
© Extrnnae aay
t
MIXED CHICKS LLC, Plaintiff,
ve
SALLY BEAUTY SUPPLY
LLC, Defendant.
Case No. SACV 11-452 AG (FMOx).
United States District Court,
C.D. California.
July 25, 2012.
Alan R. Wechsler, Kenneth G. Parker,
Haynes and Boone LLP, Irvine, CA, for
Plaintiff.
David J. Stewart, Kathryn Warren Bina,
Robert L. Lee, Alston & Bird LLP, Atlan-
ta, GA, Jonathan Mark Gordon, Mitra Me-
lisa Eskandari-Azari, Casondra K. Ruga,
Alston and Bird LLP, Los Angeles, CA,
for Defendant. .
ORDER RE JURY SELECTION
PROCEDURES AND MOTIONS
IN LIMINE
ANDREW J. GUILFORD, District
Judge.
With the trial approaching, the Court
here provides its instructions concerning
its jury selection procedure and its rulings
on the parties’ motions in limine.
1. JURY SELECTION PROCEDURE
General. The Court orders that the jury
be selected using the “Arizona Blind
Strike” method generally as here de-
seribed. There will be eight jurors, with
the entire jury deliberating. Fed.R.Civ.P.
48(a). Each side will have three peremp-
tory challenges. 28 U.S.C. § 1870; Fed.
R.Civ.P. 47(b). Every member of the jury
panel will be numbered, beginning with
one,
Jury Preliminaries. After the Court
greets the jury panel, counsel will intro-
duce themselves and their clients. Each
side will then have two minutes to present
a non-argumentative summary of the case.
The jury panel will be sworn, and the
Court will identify witnesses in the case.
The panel members will be asked if they
recognize any parties, counsel, or wit-
nesses. The Court will discuss calendar
and hardship issues with the entire panel.
Voir Dire. Every member of the panel
will answer standard biographical ques-
tions read by each member from a paper
circulated among the panel. The Court
will then conduct voir dire of the entire
panel, using standard questions, and if ap-
propriate, questions provided by counsel.
Each side may spend 10 to 20 minutes
conducting voir dire of the entire panel.
The principal purpose of voir dire to iden-
tify bias. See Patton v. Yount, 467 U.S.
1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 8471094
(1984); Scott v. Lawrence, 36 F.3d 871, 874
(9th Cir.1994). It is not to indoctrinate,
inculcate, influence, insinuate, inform, or
ingratiate.
Hardship Rulings. At some point be-
fore challenges for cause and peremptory
challenges, and after reviewing the matter
with counsel outside the panel’s presence,
the Court will rule on hardships. All panel
members found to have sufficient hardship
will be thanked and excused at the same
time.
Challenges. Outside the jury’s pres-
ence, the Court will hear and rule on
challenges for cause. Each side will then
submit in writing five proposed written
peremptory challenges. From this list,
the Court will determine the three actual
peremptory challenges, adjusting for du-
plicates as follows. Each side will get
their first three peremptory challenges as
listed by going back and forth from plain-
tiffs list to defendant’s list in the order
specified, not counting a peremptory chal-
lenge if it follows a previous duplicate
from the other list.
Seating the Jury. After removals from
the panel for hardship, challenges for
cause, and peremptory challenges, the first
eight remaining jurors with the lowest
original numbers will be placed in the box
and all remaining jury panel members will
be thanked and excused.
2. MOTIONS IN LIMINE
Before turning to the parties’ motions,
the Court briefly discusses proper and im-
proper reasons for bringing motions in
limine.
2.1 Proper Reasons for Motions In
Limine
Some examples of proper reasons for
motions in limine follow.
879 FEDERAL SUPPLEMENT, 2d SERIES
(A) To help the Court perform its prop-
er “gatekeeping” duty, including for pro-
posed experts subject to attack under
Rule 702 of the Federal Rules of Evi-
dence and Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 597 [113
S.Ct. 2786, 125 L.Ed.2d 469] (1993).
(But note that often the best remedy for
bad testimony is cross-examination.
Too often, parties do themselves a dis-
service by seeking exclusion of testimo-
ny, instead of using cross-examination to
expose the weakness of such testimony,
and by extension, the other side’s case.)
(B) To help trial planning and save trav-
el and other expenses by determining
whether a witness will be allowed to
testify.
(C) To help trial planning and save ex-
pense by eliminating a major issue at
trial.
(D) To help the Court thoroughly re-
search and review a significant and com-
plicated evidentiary issue outside the
pressure and parameters of a trial in
session.
(E) To resolve highly sensitive issues
before the “bell is rung” in front of the
jury in opening statements or questions
to witnesses. (But note that often the
best remedy for an improper comment
in opening statement is arguing to the
jury that counsel did not honor its prom-
ise when that comment is not supported
at trial (because a trial objection was
sustained).)
2.2 Improper Reasons for Motions In
Limine
Many motions in limine deal with obvi-
ous or trivial matters that cannot be decid-
ed outside the context of developments in
the actual trial. Thus, motions in limine
often must be granted or denied only with-
out prejudice to further review in the con-MIXED CHICKS LLC vy. SALLY BEAUTY SUPPLY LLC 1095
Cite as 879 F.Supp.2d 1093 (C.D.Cal. 2012)
text of trial. Some examples of improper
reasons for motions in limine follow.
(A) To present all conceivable evidentia-
ry objections that might arise at trial.
(B) As a substitute for motions to com-
pel discovery or for discovery sanctions
that should have been brought earlier.
(C) As a substitute for summary judg-
ment.
(D) To reiterate or reinforce obvious or
trivial points.
(E) To “educate the judge” on a particu-
lar issue.
(F) To control or cabin items that can’t
be controlled or cabined in the progress
of a trial.
(G) To resolve issues prematurely be-
fore they are viewed in the context of
trial.
3. RULINGS ON PLAINTIFF’S MO-
TIONS IN LIMINE
Plaintiff's first motion in limine is DE-
NIED. But Defendant may not introduce
evidence concerning the “Team Light
Skin” twitter post to show racial animus.
Plaintiff's second motion in limine is
DENIED without prejudice and without
impact on the June 14, 2012 stipulation.
Plaintiffs third motion in limine is DE-
NIED without prejudice.
Plaintiff's fourth motion in limine is DE-
NIED without prejudice.
Plaintiff's fifth motion in limine is DE-
NIED.
Plaintiff's sixth motion in limine is DE-
NIED without prejudice and without im-
pact on the June 14, 2012 stipulation.
Plaintiff's seventh motion in limine is
DENIED.
Plaintiff's eighth motion in limine is DE-
NIED without prejudice.
Plaintiff's ninth motion in limine is
GRANTED.
Plaintiff's tenth motion in limine is DE-
NIED.
4, RULINGS ON DEFENDANT'S MO-
TIONS IN LIMINE
Defendant's first motion in limine is DE-
NIED.
Defendant’s second motion in limine is
GRANTED in part and DENIED in part.
Defendant’s request to exclude Skorheim’s
corrective damages testimony is DENIED,
but Plaintiff may not introduce testimony
concerning corrective advertising damages
based on Jacoby’s confusion rate.
Defendant's third motion in limine is
DENIED.
Defendant’s fourth motion in limine is
DENIED. But Defendant may conduct
discovery concerning Wakia London and
Amina Mills and Plaintiff's communications
with them.
Defendant’s fifth motion in limine is
GRANTED.
Defendant’s sixth motion in limine DE-
NIED with prejudice as to Sally Beauty’s
objections under Rules 401, 408, 408, and
901. DENIED without prejudice as to
Sally Beauty’s objection under Rule 803.
Defendant’s seventh motion in limine is
GRANTED in part and DENIED in part.
The motion is GRANTED as to Exhibits
70, Ti, 72, %73 (pages MC002419,
MC002422, MC002423, and MC002424), 74,
75, 76, 77, 78, 480, and 481, and DENIED
as to Exhibit 73 (pages MC002418,
MC002420, MC002421).
Defendant’s eighth motion in limine is
GRANTED.1096 879 FEDERAL SUPPLEMENT, 2d SERIES
Defendant's ninth motion in limine is
GRANTED subject to reconsideration if
original media are unavailable.
UNITED STATES of America,
Plaintiff,
v.
SIERRA PACIFIC INDUSTRIES;
et al., Defendants.
No, CIV S-09-2445 KJIM-EFB.
United States District Court,
E.D. California.
May 31, 2012.
Background: United States filed action
against forest products company, licensed
timber operator, and landowners alleging
negligence and negligence per se, liability
under California Fire Liability Law, tres-
pass by fire, negligent supervision, and
negligent hiring with regard to forest fire
that started outside of federal lands but
spread into federal lands. Company moved
for summary judgment.
Holdings: The District Court, Kimberly J.
Mueller, J., held that:
(1) factual issue existed as to source and
time of ignition of forest fire;
(2) factual issue existed as to whether li-
censed timber operator was agent of
forest products company;
(3) company had not been put on notice of
theory of retained control based on
company’s possession of the land;
(4) factual issue existed as to whether
company had duty law to supervise
operator;
(5) factual issue existed as to whether
company knew of two prior fires and
operator’s connection to them and
failed to act on that information to
ensure that operator met fire safety
standards going forward;
(6) factual issue existed as to whether bull-
dozer had been negligently maintained,
operated, or used;
(7) regulation prohibiting “[cJausing tim-
ber, trees, slash, brush or grass to
burn except as authorized by permit”
did not apply to fires ignited on non-
federal land; and
(8) double damages were available for in-
jury to timber, trees or underwood
caused by negligent spread of fire.
Motion granted in part and denied in part.
1. Federal Civil Procedure 2539
The general rule is that a party can-
not create an issue of fact on a motion for
summary judgment by an affidavit contra-
dicting his prior deposition testimony, but
this rule should be applied with caution;
the sham affidavit rule does not apply to
every instance when a later affidavit con-
tradicts deposition testimony. Fed.Rules
Civ.Proe.Rule 56, 28 U.S.C.A.
2. Federal Civil Procedure =2539
Before applying the sham affidavit
rule, a district court must make a factual
determination that the contradiction was
actually a “sham”; the inconsistency be-
tween a party’s deposition testimony and
summary judgment affidavit must be clear
and unambiguous to justify striking the
affidavit. Fed.Rules Civ.Proc.Rule 56, 28
US.C.A.
3. Labor and Employment ¢=29
Under California law, a finding that a
speaker is an independent contractor does
not preclude a finding that the speaker is
also an agent for some purposes.178 Tenn. 271 SOUTH WESTERN REPORTER, 3d SERIES
Tl.
Having determined that the premiums
for Mr. McLean’s life insurance policy
were “payable monthly,” we answer the
first certified question by holding that
Tenn.Code Ann. § 56-7-2303(d) exempted
Reassure America from providing either
Mr. McLean or the trustee the notice re-
quired by Tenn.Code Ann. § 56-7-2303(a).
Accordingly, Mr. MeLean’s policy lapsed
before his death on September 25, 2007.
In light of this holding, it is unnecessary to
answer the second certified question. Ac-
cordingly, we pretermit it. The costs of
this appeal are taxed to Robert H.
Waldschmidt, trustee, for which execution,
if necessary, may issue.
Nickie DURAN
v.
HYUNDAI MOTOR AMERICA,
INC. et al.
Court of Appeals of Tennessee,
at Nashville.
Oct. 13, 2006 Session.
Feb. 13, 2008.
Order Denying the Petition for
Rehearing Feb. 27, 2008.
Permission to Appeal Denied by
Supreme Court Aug. 25, 2008.
Background: Driver injured in single ve-
hicle accident brought action against man-
ufacturer of automobile, alleging that the
automobile’s exhaust system was defective,
and asserting claims of negligence and var-
ious statutory violations. After a jury ver-
dict awarded driver compensatory and pu-
nitive damages, the Circuit Court, Dickson
County, No. CV-1319, George Sexton, J.,
granted a directed verdict on the punitive
damages claim, and reduced the compensa-
tory damages award to conform to the
driver’s amended prayer for relief. Manu-
facturer appealed, and driver appealed the
dismissal of her punitive damages claim.
Holdings: The Court of Appeals, William
C. Koch, Jr., P.J., held that:
(1) manufacturer was not entitled to grant
of motion in limine to exclude evidence
of driver’s punitive damages claim;
(2) cross-examination of manufacturer’s
medical expert permissibly included
questions regarding expert’s knowl-
edge of other consumer complaints re-
ceived by manufacturer;
(8) the Circuit Court acted within its dis-
cretion by denying car manufacturer’s
motions for a directed verdict on puni-
tive damages before the case was sub-
mitted to jury;
(4) evidence was sufficient to support
jury’s allocation of 100% of fault to car
manufacturer;
(5) driver did not make a submissible
claim of punitive damages;
(6) evidence supported compensatory
damages award; and
(7) modification of award of discretionary
costs was required.
Affirmed in part, and modified in part.
1, Appeal and Error €233(2)
Car manufacturer failed to preserve
for appellate review its argument that trial
court erred in admitting evidence of intent
that tended to show punitive damages in
driver's products liability case, even
though manufacturer filed pre-trial motion
to limit such evidence, where the motion
was deferred, driver abided by pre-trial
agreement not to introduce evidence of
manufacturer’s net-worth or assets, and190 Tenn.
ground that they established a defense to
Ms. Cook’s claims as a matter of law. In
the alternative, they sought a new trial or
a remittitur. Ms. Cook filed a motion
seeking permission to alter or amend her
pretrial motion to decrease the amount of
compensatory damages she was seeking.
Instead of placing a $2,000,000 cap on
these damages, Ms. Cook sought permis-
sion to set the cap at $3,000,000. Ms.
Cook also requested discretionary costs.
Ms. Cook died on October 19, 2005. On
November 7, 2005, the day the trial court
heard the parties’ post-trial motions, Ms.
Cook’s lawyer filed a suggestion of death
and a motion to substitute Nickie Duran,
Ms. Cook’s surviving daughter as the
plaintiff. On January 9, 2006, the court
entered an order (1) approving the verdict
of liability as thirteenth juror, (2) approv-
ing the $2,000,000 judgment for compensa-
tory damages, (3) denying the Hyundai
defendants’ motions for a judgment not-
withstanding the verdict, new trial, or re-
mittitur, and (4) denying Ms. Cook’s mo-
tion to amend her original ad damnum
clause and to reinstate the jury’s
$3,000,000 verdict for compensatory dam-
ages. The trial court also awarded Ms.
Cook $70,584.29 in discretionary costs.
Both parties have raised issues on ap-
peal. Ms. Cook argues that the trial court
erred by granting a judgment notwith-
standing the verdict on her punitive dam-
age claim. The Hyundai defendants insist
that the trial court erred with regard to (1)
admitting evidence relating to Ms. Cook’s
punitive damages claim, (2) allowing the
cross-examination of one of its expert wit-
nesses, (3) failing to direct a verdict on Ms.
Cook’s punitive damage claim at the close
of her proof and at the close of all the
proof, (4) the jury’s failure to assign any
fault to Ms. Cook, (5) the amount of the
compensatory damage award, and (6) im-
properly awarding discretionary costs.
271 SOUTH WESTERN REPORTER, 3d SERIES
The Hyundai defendants also insist that
Ms. Cook’s death either undermines the
compensatory damage award or requires
another remittitur.
I.
Tue Hyunpar Derenpants’ Motion in Lr
MINE To ExcLupE EvipeNce or ARGu-
ment Recarpinc Ms. Coox’s Punitive
Damace Charms
The Hyundai defendants take issue with
the trial court’s decision to permit counsel
for Ms. Cook to include arguments regard-
ing punitive damages in his opening state-
ment and to present evidence during Ms.
Cook’s case-in-chief regarding her entitle-
ment to punitive damages. They insist
that the trial court erred by denying their
motion in limine seeking to exclude this
argument and evidence. We find two fun-
damental flaws with this argument. First,
the trial court did not deny the Hyundai
defendants’ motion in limine; it simply
acceded to their request to defer the ruling
on the motion until the punitive damage
phase of the trial. Second, a motion in
limine is not the proper vehicle for seeking
a dispositive pretrial ruling on a claim for
punitive damages.
A.
The Hyundai defendants did not chal-
lenge Ms. Cook’s punitive damage claim
either with a motion to dismiss or a motion
for summary judgment prior to trial.
However, on the eve of trial, among their
fusillade of pretrial motions was a motion
in limine requesting the trial court to [e]x-
clude “any evidence or argument in sup-
port of Plaintiff's claim for punitive dam-
ages.” They asserted that the trial court
should grant this motion because “(1) the
undisputed evidence establishes that ...
[Ms. Cook] cannot present clear and con-
vineing evidence that the Hyundai Defen-
dants acted with the requisite state ofDURAN v. HYUNDAI MOTOR AMERICA, INC. Tenn. 191
Cite as 271 S.W.3d 178 (Tenn.Ct.App. 2008)
mind to merit the imposition of punitive
damages; and, (2) a punitive damage
award in this case would violate the Hyun-
dai Defendants’ right to due process under
the United States and Tennessee Constitu-
tions.”
When the trial court heard the pretrial
motions on May 20, 2005, the following
exchange between the trial court and the
Hyundai defendants’ trial counsel oc-
curred:
MR. BIBB: Your Honor, I would like
to take up Motions in Limine No. 10—
for some reason they got out of order
when we were numbering them, 10, 12,
and 13. They all relate to issues relat-
ing to punitive damages.
I think, first of all, under the Hodges
case ... there should be no evidence of
the company’s net worth or value or
money from the Hyundai defendants ad-
mitted in all in terms of the prima facie
showing—
MR. RITCHIE: No objection.
THE COURT: It would be bifurcat-
ed.
MR. BIBB: I thought the court prob-
ably would, had we not formally asked
for that. I know that is the normal
practice here in this state to bifurcate
the damages issue.
I think the rest of the issues we can
reserve until we get to the—our motion
is based on United States Supreme
Court decisions, the Gore versus BMW
case, the State Farm decision about
what elements, what is now to consid-
ered for punitive damages, what is the
wealth to be considered, extraterritorial
10. This assertion is based on the Hyundai
defendants’ claim that the record contained
undisputed evidence that the 1988 Hyundai
Excel met or exceeded the requirements of
the flammability of interior materials and on
their assertion that “[t]he evidence does not
actions to be considered and those sorts
of matters.
I just assume we can defer that.
Hopefully, with any luck we won’t have
to deal with it, but we can take those up
before—if in the event we reach punitive
damage issues, we would take them up
at that time before any evidence is put
on.
THE COURT: Fair enough.
As she promised, Ms. Cook did not at-
tempt to present evidence during her case-
in-chief regarding the net worth or assets
of the Hyundai defendants. She did, how-
ever, present a great deal of evidence re-
garding the Hyundai defendants’ knowl-
edge of the allegedly defective reed valve
subassembly in the Hyundai Excel and
their failure or refusal to take steps to
remedy it or to warn the purchasers of the
automobile of the problem. This evidence
was directed at establishing that the
Hyundai defendants had acted recklessly
enough to be required to pay punitive
damages. The Hyundai defendants never
objected to any of this evidence on the
ground that it was not proper to present it
during the first phase of the trial.
B.
{1] The excerpt from the pre-trial
hearing leaves little question about the
trial court’s ruling on the Hyundai defen-
dants’ motion in limine. The court did not
deny the motion. Rather, it deferred con-
sidering the motion, at the request of the
Hyundai defendants’ trial counsel, until the
second phase of the trial. In accordance
with the commitments made during the
pretrial conference, Ms. Cook did not at-
support a finding that the Hyundai Defen-
dants were aware of a substantial and unjusti-
fiable risk of fire following a collision or [a]
fire within the passenger compartment due to
any alleged malfunction of the reed valve as-
sembly.”192 Tenn. 271 SOUTH WESTERN REPORTER, 3d SERIES
tempt to present evidence regarding the
Hyundai defendants’ net worth or income.
She did present evidence intended to prove
that Hyundai had acted intentionally,
fraudulently, maliciously, or recklessly
with regard to correcting the flaws in the
reed valve subassembly and warning its
customers of the potential hazards should
the reed valve subassembly fail. Hyundai
did not object to the introduction of this
evidence,
Thus, in addition to the fact that the
trial court did not deny Hyundai’s motion
in limine, we have concluded that the
Hyundai defendants are now in no position
to complain because they failed to take the
steps reasonably available to them during
Ms. Cook’s case-in-chief to prevent or miti-
gate the allegedly harmful effects of this
evidence. Tenn. R.App. P. 36(a); State v.
Thomas, 158 S.W.3d 361, 413 (Tenn.2005);
Hessmer v. Hessmer, 138 S.W.3d 901, 905
(Tenn.Ct.App.2003). They failed to object
to the introduction of the evidence they
now claim to be unduly prejudicial.
Cc.
[2,3] In addition to the Hyundai de-
fendants’ failure to renew their objections
to the evidence they now insist was errone-
ously introduced, there is an even more
basic reason to uphold the trial court’s
denial of the Hyundai defendants’ motion
in limine. A motion in limine is not the
proper vehicle to use to attempt to pre-
clude a claim or defense. It is not equiva-
lent to or a substitute for a motion to
dismiss or a motion for summary judg-
ment.
11. Ifa trial court has not “clearly and defini-
tively” acted on the motion in limine, the
moving party must renew the motion contem-
poraneously with the introduction of the ob-
jectionable evidence. Failure to do so pre-
cludes the moving party from taking issue on
appeal with the admission of the evidence.
[4-7] A motion in limine provides a
vehicle for requesting guidance from the
trial court prior to trial regarding an evi-
dentiary question which the court may
provide, at its discretion, to aid the parties
in formulating their trial strategy. Pul-
lum v. Robinette, 174 S.W.3d 124, 136 n. 12
(Tenn.Ct.App.2004) (quoting United States
v. Luce, 713 F.2d 1286, 1239 (6th Cir.
1983)); see also Jones v. Stotts, 59 F.3d
143, 146 (10th Cir.1995); Hunt v. K-Mart
Corp., 294 Mont. 444, 981 P.2d 275, 278
(1999); see also 1 McCormick on Evidence
§ 52, at 255-58 (Kenneth S. Brouned., 6th
ed. 2006) (“McCormick on Evidence”);
Neil P. Cohen et al., Tennessee Law of
Evidence § 1.03[4](f), at 1-20 to 1-21 (6th
ed. 2005) (“Tennessee Law of Evidence”).
It enables the trial court, prior to trial, to
exclude anticipated evidence that would
clearly be inadmissible for any purpose at
trial. Jonasson v. Lutheran Child &
Family Servs., 115 F.3d 436, 440 (7th Cir.
1997); Forsyth County v. Martin, 279 Ga.
215, 610 S.E.2d 512, 518 (2005). It is,
essentially, a substitute for an evidentiary
objection at trial. Premiwm Cigars Int'l,
Ltd. v. Former-Butler-Leavitt Ins. Agen-
cy, 208 Ariz, 557, 96 P.3d 555, 570 (Ct.App.
2004),11
[8-10] Motions in limine serve funda-
mentally different purposes than motions
for summary judgment. They are not sub-
ject to the same procedural safeguards.
Bradley v. Pittsburgh Bd. of Educ, 913
F.2d 1064, 1069-70 (3d Cir.1990). Thus, a
motion in limine should not be used as a
substitute for a dispositive motion such as
a motion for summary judgment.” Courts
Grandstaff v. Hawks, 36 S.W.3d 482, 488
(Tenn.Ct.App.2000).
12. See eg., Charles Alan Wright & Kenneth
W. Graham, Jr., Federal Practice and Proce-
dure § 5037.18 (2d ed.2005); Craig Lee
Montz, Trial Objections From Beginning to
End: The Handbook for Civil and Criminal|
2
|
2
|
DURAN v. HYUNDAI MOTOR AMERICA, INC. Tenn. 193
Cite as 271 S.W.3d 178 (Tenn.Ct.App. 2008)
that have addressed attempts to use a
motion in limine in such a manner, either
explicitly or implicitly, have found such use
to be in error. Bradley v. Pittsburgh Bd.
of Educ., 913 F.2d at 1069-70; Cannon ».
William Chevrolet/Geo, Inc. 341 Ill.App.3d
674, 276 Ill.Dec. 593, 794 N.E.2d 843, 849
(2003); Lin v. Gatehouse Constr. Co., 84
Ohio App.3d 96, 616 N.E.2d 519, 524-25
(1992); BHG, Inc. v. F.A.F., Inc, 784 A.2d
884, 886 (R.L2001). As several courts
have noted, a motion in limine should not
be used to “choke off” a party’s entire
claim or defense. McCracken v. Edward
D. Jones & Co., 445 N.W.2d 375, 379 (Iowa
Ct.App.1989); Cass Bank & Trust Co. v.
Mestman, 888 S.W.2d 400, 404 (Mo.Ct.
App.1994).
[11] A motion for partial summary
judgment is an appropriate way to chal-
lenge a claim for punitive damages. Ber-
enger v. Frink, 314 N.W.2d 388, 390 (lowa
1982); Lundgren v. Eustermann, 370
N.W.2d 877, 882 (Minn.1985); see also
Chapman v. Jones, No. M1999-02178-
COA-R9-CV, 2000 WL 13793, at *24
(Tenn.Ct.App. Jan.10, 2000) (No Tenn.
R.App. P. 11 application filed). Rather
than testing Ms. Cook’s punitive damage
claim using a motion for summary judg-
ment, the Hyundai defendants waited until
approximately one week before trial to file
their motion in limine whose purpose was
to choke off Ms. Cook’s punitive damage
claim by preventing her from introducing
the very evidence she would be required to
present during the first phase of the trial
to establish that she had a right to punitive
damages. Had the trial court considered
the motion in limine, it would have permit-
ted the Hyundai defendants to skirt the
notice and burden of persuasion require-
Trials, 29 Pepp. L.Rev. 243, 256 (2002) (stat-
ing that a motion in limine “may not be used
as a substitute for a motion for summary
judgment.” Even though a motion in limine
ments normally associated with summary
judgment motions. The Hyundai defen-
dants, however, did not press their motion
in limine. Had they done so, the trial
court would properly have denied it.
TIL.
Tue Cross-EXAMINATION OF THE HYUNDAI
Derenpants’ Mepicat Expert ReGarp-
ING Carson Monoxive Poisonine
The Hyundai defendants take issue with
the trial court’s decision to permit Ms.
Cook’s lawyer to cross-examine one of its
medical experts regarding his familiarity
with the consumer complaints received by
the Hyundai defendants about drivers of
Hyundai Excels who passed out while driv-
ing after smelling smoke or fumes. The
Hyundai defendants asserted (1) that this
evidence is inadmissible, (2) that it was
extremely prejudicial, and (8) that the trial
court’s limiting instruction was inadequate.
We find no reversible error in the cross-
examination of the Hyundai defendants’
medical expert.
A.
One of the essential parts of Ms. Cook’s
case was her assertion that a leak in the
exhaust system of the Hyundai Excel filled
the passenger compartment with carbon
monoxide that caused her to lose con-
sciousness before her automobile struck
the tree and burst into flames. The Hyun-
dai defendants responded to this claim by
calling Dr. Thomas L. Bennett, a forensic
pathologist, to refute Ms. Cook’s medical
evidence that her carboxyhemoglobin lev-
els after the incident were consistent with
her testimony that she blacked out before
the automobile hit the tree. On direct
may be used to narrow evidentiary issues in
advance of trial, it should not be mistaken for
a method to dismiss an opponent's claim.).
Preview
IN THE DISTRICT COURT OF TULSA COUNTY STATE OF OKLAHOMA CARL JORDAN, an individual, Plaintiff, Case No. CJ-2013-4500 v. The Honorable Rebecca Nightingale JEFF HECKENKEMPER, an individual, and PERFORMANCE REAL ESTATE SERVICES, INC., d/b/a JEFF HECKENKEMPER RENOVATIONS, DISTRICT COURT FILED DEC 16 2014 ) ) ) ) ) ) ) ) ) ) ) Defendants/ ) ) ARE BOG ) ) ) ) ) ) ) ) ) ) ) ) ) Third-Party Plaintiffs vs. 1ST CALL ELECTRIC, LLC, an Oklahoma Corporation; STEVE MOORE, an individual; SNOWDEN ENGINEERING, INC., an Oklahoma Corporation; ALBERTO CHINCHILLA, an individual, and d/b/a TRANSFORMATIONS BY ALBERTO, LLC, an Oklahoma Corporation; MATT SHOPE, an individual, d/b/a MATT SHOPE PLUMBING & DRAIN; PERSI PEREZ, an individual; DANIEL REYES, an individual; GREGORY PATTON, an individual, and SAUL BRAVO, an individual, Third-Party Defendants. PLAINTIFF’S RESPONSE TO DEFENDANTS’ “MOTION IN LIMINE TO PRECLUDE EVIDENCE OF PUNITIVE DAMAGES” Plaintiff, Carl Jordan (“Jordan”), respectfully submits this Response in opposition to the “Defendants’ Motion in Limine to Exclude Evidence of Punitive Damages,” filed November 24, 2014 (the “Motion in Limine” or the “Motion”). INTRODUCTORY STATEMENT Defendants’ Motion in Limine is improper and should be summarily denied. In effect, defendants have sought a partial summary adjudication on punitive damages before Jordan hashad the opportunity to present evidence at trial to establish his right to punitive damages claims. It is well-recognized that a motion in limine is not a substitute for a motion for summary judgment or motion for partial summary adjudication on damages. ARGUMENT AND AUTHORITY I. The Motion in Limine is Improper and Should be Denied. The defendants’ Motion in Limine seeks to preclude the introduction of “any claims, testimony, arguments, or other evidence referencing punitive damages.” (Motion in Limine, p. 3). Despite labeling the Motion as a motion in limine to exclude evidence, the Motion actually seeks to exclude Jordan’s punitive damages claim. Utilizing the motion in limine process as a substitute for summary judgment or partial summary adjudication on punitive damages, as is the case here, is improper; thus, the Motion in Limine should be denied. The purpose of a motion in limine is to “preclude the introduction of prejudicial matters to the jury...” Clark vy. Turner, et al., 2004 OK CIV APP 69, 23, 99 P.3d 736, 741. A motion in limine affords the trial court with the opportunity “to rule on the admissibility of evidence in advance” of trial. Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121, 127; see also Poore v. Glanz, 2014 WL 4286481 at *1 (N.D. Okla. 2014) (“The purpose of a motion in limine is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence. . . .”) Defendants cite no authority that a motion in limine can serve as a substitute for a motion for summary judgment or motion for partial summary adjudication on punitive damages.In Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F.Supp.2d 1093, 1094 (C.D. Cal. 2012) (attached as Exhibit A), the court provided a helpful lesson on “improper reasons for motions in limine.” The court noted as follows: Some examples of improper reasons for motions in limine follow. (A) _ To present all conceivable evidentiary objections that might arise at trial. (B) As a substitute for motions to compel discovery or for discovery sanctions that should have been brought earlier. (C) Asa substitute for summary judgment. (D) _ To reiterate or reinforce obvious or trivial points. (E) To “educate the judge” on a particular issue. (F) To control or cabin items that can’t be controlled or cabined in the progress of a trial. (G) To resolve issues prematurely before they are viewed in the context of trial. (Exhibit A, p. 2, emphasis added). That it is improper to use the in limine process as a substitute for summary judgment is well-recognized. See Tulsa Trailer & Body, Inc. v. Trailmobile, Inc. et al., 1986 U.S. Dist. LEXIS 26395, *3 (N.D. Okla. 1986); Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37, 41 (Mo. App. 2012) (reversing trial court where it permitted litigant to use motion in limine process to preclude entire defense because “motion in limine is not a substitute for a summary judgment motion” and a motion in limine should not be employed “to choke off an entire claim or defense.”); Meador v. Total Compliance Consultants, Inc., 425 $.W.3d 718, 721 (Ark. 2013) (“A motion in limine is not to be used to eliminate an entire claim or defense or a sweeping means of testing issues of law.”); Village of Roseville v. Thompson, 567 N.E.2d 1334,1336 (Ohio App. 1989) (motion in limine was not appropriate means to obtain declaratory judgment prior to trial). In Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178 (Tenn. App. 2008), the court confronted the exact “motion in limine” at issue here — to preclude evidence of punitive damages. The court there rejected the defendant’s argument, explaining that: A motion for partial summary judgment is an appropriate way to challenge a claim for punitive damages. Berenger v. Frink, 314 N.W.2d 388, 390 (Iowa 1982); Lundgren v. Eustermann, 370 N.W.2d 877, 882 (Minn.1985); see also Chapman v. Jones, No. M1999-02178-COA-R9-CV, 2000 WL 13793, at *2-4 (Tenn.Ct.App. Jan.10, 2000) (No Tenn. R.App. P. 11 application filed), Rather than testing Ms. Cook's punitive damage claim using a motion for summary judgment, the Hyundai defendants waited until approximately one week before trial to file their motion in limine whose purpose was to choke off Ms. Cook's punitive damage claim by preventing her from introducing the very evidence she would be required to present during the first phase of the trial to establish that she had a right to punitive damages. Had the trial court considered the motion in limine, it would have permitted the Hyundai defendants to skirt the notice and burden of persuasion requirements normally associated with summary judgment motions. The Hyundai defendants, however, did not press their motion in limine. Had they done so, the trial court would properly have denied it. 271 S.W.3d at 193 (excerpt attached as Exhibit B). As was the case in Duran, a motion for partial summary adjudication is the appropriate way to challenge a claim for punitive damages, not a motion in limine. See, e.g, White v. Lim, 2009 OK 79, 224 P.3d 679 (motion for summary judgment on punitive damages); Wallace v. Transport Life Ins. Co., 1992 OK CIV APP 20, 841 P.2d 613 (affirming trial court’s granting of partial summary judgment on punitive damages). Consistent with this case law, none of the authorities cited by defendants in their Motion in Limine support the use of the motion in limine process to bar claims for punitive damages. In Payne v. DeWitt, 1999 OK 93, 995 P.2d 1088, cited at page 3 of the Motion in Limine, the Oklahoma Supreme Court reversed the award of punitive damages. However, it did not say thatthe decision on punitive damages was appropriate for a motion in limine. Id. Similarly, while State Farm Mutual Auto Ins. Co. v. Campbell, 538 U.S. 408 (2002), cited at page 5 of the Motion in Limine, discusses certain aspects of punitive damages, it does not say that the issue of punitive damages should be decided by motion in limine. The other authorities cited by defendants actually support the submission of the issue of punitive damages to the jury. In all three sections of 23 Okla. Stat. § 9.1 cited by the defendants, it states the issue of punitive damages is subject to a finding of the jury upon the review of the evidence. (Motion in Limine, pp. 3-4). The only other authority cited by defendants is Black v. M&W Gear Co., 269 F.3d 1220 (10th Cir. 2001). (/d., p. 4). Again, the court in Black did not involve a motion in limine seeking to preclude punitive damages. Further, Black reversed the trial court’s judgment as a matter of law on punitive damages finding that the issue should have been presented to the jury. 269 F.3d at 1240. The Defendants’ “Motion in Limine” to obtain a summary adjudication on punitive damages is a textbook example of this type of improper motion in limine, and should be denied.' I. Even if the Court were to Treat the Motion in Limine as a Motion for Partial Summary Adjudication on Punitive Damages, it should be Denied. As discussed in Section I, supra, the Motion in Limine is improper and should be denied. However, if the Motion in Limine were treated as motion for partial summary adjudication on punitive damages, it is without merit. First, it is untimely. Under the applicable Scheduling Order, the deadline for dispositive motions, which would include motions for partial summary adjudication, was September 2, 2014. ' Oklahoma law already provides a remedy to the defendants in the event that Jordan “fails to provided evidence” of punitive damages at trial — a demurrer or motion for directed verdict. See 12 Okla. Stat. § 577; Badillo v. Mid Century Ins. Co., 2005 OK 48, 121 P.3d 1080, 1092-93. 5Second, the Motion in Limine fails to comply with District Court Rule 13 regarding motions for summary judgment and summary adjudication. The Motion in Limine does not contain a statement of undisputed material facts. See Rule 13(a) of the Rules for District Court’s of Oklahoma. It also contains no references to portions of the record to support any facts that would justify summary adjudication. As this Court is aware, summary judgment is warranted only where the Court is convinced that “there is no substantial controversy as to any material fact.” Liberty Bank & Trust Co. of Oklahoma City v. Bachrach, 1996 OK 143, 916 P.2d 1377, 1379-80. The Oklahoma Supreme Court has explicitly placed the burden of this showing first on the moving party: It is incumbent on the moving party to present evidentiary material to support its allegation that no genuine material facts are in dispute. Only when the moving party has met this requirement does the obligation shift to the non-moving party to show that a controversy as to the material facts exist. Id. (Internal citations omitted). The defendants have plainly failed to meet this burden with the Motion in Limine on Punitive damages. Third, the defendants rely upon their contention that they previously “provided this Court with a showing of the lack of causal connection between any claimed damages by Plaintiff and the actions or inactions of Defendants.” (Motion in Limine, p. 5). This is inaccurate. The only “previous showing” that the Defendants could be referring to would be their overruled Motion for Summary Judgment. To the extent that the Court deems it necessary, Jordan hereby incorporates by reference the facts, evidence and argument contained in his Response to Motion for Summary Judgment, filed September 22, 2014.CONCLUSION For the foregoing reasons, Jordan respectfully requests that this Court deny Defendants’ “Motion in Limine to Exclude Evidence of Punitive Damages.” Respectfully submitted, LEE Leave Joel L. Wohlgemuth, OBA #9811 David R. Ross, OBA # 19930 NORMAN WOHLGEMUTH CHANDLER & JETER 401 South Boston Avenue 2900 Mid-Continent Tower Tulsa, OK 74103-4023 (918) 583-7571 (918) 584-7846 (facsimile) ATTORNEYS FOR PLAINTIFF, CARL JORDANCERTIFICATE OF SERVICE I hereby certify that on the 16th day of December, 2014, a true and correct copy of the above and foregoing instrument was served via email on: Douglas Borochoff, Esq. 601 South Boulder Suite 500 Tulsa, OK 74119 Attorney for Jeff Heckenkemper Brad Heckenkemper, Esq. 110 W. 7® Street, Suite 900 Tulsa, OK 74119 Attorney for Jeff Heckenkemper and Performance Real Estate Services, Inc. Anthony P. Sutton, Esq. 8908 South Yale, Suite 245 Tulsa, OK 74137 Attorney for 1% Call Electric, LLC And Steve Moore CZ David R. KossMIXED CHICKS LLC v. SALLY BEAUTY SUPPLY LLC 1093 Cite as 879 F.Supp.2d 1093 (C.D.Cal. 2012) Chemerinsky, supra, at 172-73; see also Winterbottom v. Wright, 152 Eng. Rep. 402, 405-06 (1842) (“This is one of those unfortunate cases ... in which, it is, no doubt, a hardship upon the plaintiff to be without a remedy but by that consider- ation we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.”). Accordingly, this court declines to de- part from the wisdom of precedent, and reaffirms the longstanding rule that in- junctions of speech in defamation cases are impermissible under the First Amend- ment. The court therefore DENIES Plaintiffs’ Motion for a Permanent Injune- tion with respect to Defendant’s speech. IT IS SO ORDERED. 7 © Extrnnae aay t MIXED CHICKS LLC, Plaintiff, ve SALLY BEAUTY SUPPLY LLC, Defendant. Case No. SACV 11-452 AG (FMOx). United States District Court, C.D. California. July 25, 2012. Alan R. Wechsler, Kenneth G. Parker, Haynes and Boone LLP, Irvine, CA, for Plaintiff. David J. Stewart, Kathryn Warren Bina, Robert L. Lee, Alston & Bird LLP, Atlan- ta, GA, Jonathan Mark Gordon, Mitra Me- lisa Eskandari-Azari, Casondra K. Ruga, Alston and Bird LLP, Los Angeles, CA, for Defendant. . ORDER RE JURY SELECTION PROCEDURES AND MOTIONS IN LIMINE ANDREW J. GUILFORD, District Judge. With the trial approaching, the Court here provides its instructions concerning its jury selection procedure and its rulings on the parties’ motions in limine. 1. JURY SELECTION PROCEDURE General. The Court orders that the jury be selected using the “Arizona Blind Strike” method generally as here de- seribed. There will be eight jurors, with the entire jury deliberating. Fed.R.Civ.P. 48(a). Each side will have three peremp- tory challenges. 28 U.S.C. § 1870; Fed. R.Civ.P. 47(b). Every member of the jury panel will be numbered, beginning with one, Jury Preliminaries. After the Court greets the jury panel, counsel will intro- duce themselves and their clients. Each side will then have two minutes to present a non-argumentative summary of the case. The jury panel will be sworn, and the Court will identify witnesses in the case. The panel members will be asked if they recognize any parties, counsel, or wit- nesses. The Court will discuss calendar and hardship issues with the entire panel. Voir Dire. Every member of the panel will answer standard biographical ques- tions read by each member from a paper circulated among the panel. The Court will then conduct voir dire of the entire panel, using standard questions, and if ap- propriate, questions provided by counsel. Each side may spend 10 to 20 minutes conducting voir dire of the entire panel. The principal purpose of voir dire to iden- tify bias. See Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 8471094 (1984); Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir.1994). It is not to indoctrinate, inculcate, influence, insinuate, inform, or ingratiate. Hardship Rulings. At some point be- fore challenges for cause and peremptory challenges, and after reviewing the matter with counsel outside the panel’s presence, the Court will rule on hardships. All panel members found to have sufficient hardship will be thanked and excused at the same time. Challenges. Outside the jury’s pres- ence, the Court will hear and rule on challenges for cause. Each side will then submit in writing five proposed written peremptory challenges. From this list, the Court will determine the three actual peremptory challenges, adjusting for du- plicates as follows. Each side will get their first three peremptory challenges as listed by going back and forth from plain- tiffs list to defendant’s list in the order specified, not counting a peremptory chal- lenge if it follows a previous duplicate from the other list. Seating the Jury. After removals from the panel for hardship, challenges for cause, and peremptory challenges, the first eight remaining jurors with the lowest original numbers will be placed in the box and all remaining jury panel members will be thanked and excused. 2. MOTIONS IN LIMINE Before turning to the parties’ motions, the Court briefly discusses proper and im- proper reasons for bringing motions in limine. 2.1 Proper Reasons for Motions In Limine Some examples of proper reasons for motions in limine follow. 879 FEDERAL SUPPLEMENT, 2d SERIES (A) To help the Court perform its prop- er “gatekeeping” duty, including for pro- posed experts subject to attack under Rule 702 of the Federal Rules of Evi- dence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993). (But note that often the best remedy for bad testimony is cross-examination. Too often, parties do themselves a dis- service by seeking exclusion of testimo- ny, instead of using cross-examination to expose the weakness of such testimony, and by extension, the other side’s case.) (B) To help trial planning and save trav- el and other expenses by determining whether a witness will be allowed to testify. (C) To help trial planning and save ex- pense by eliminating a major issue at trial. (D) To help the Court thoroughly re- search and review a significant and com- plicated evidentiary issue outside the pressure and parameters of a trial in session. (E) To resolve highly sensitive issues before the “bell is rung” in front of the jury in opening statements or questions to witnesses. (But note that often the best remedy for an improper comment in opening statement is arguing to the jury that counsel did not honor its prom- ise when that comment is not supported at trial (because a trial objection was sustained).) 2.2 Improper Reasons for Motions In Limine Many motions in limine deal with obvi- ous or trivial matters that cannot be decid- ed outside the context of developments in the actual trial. Thus, motions in limine often must be granted or denied only with- out prejudice to further review in the con-MIXED CHICKS LLC vy. SALLY BEAUTY SUPPLY LLC 1095 Cite as 879 F.Supp.2d 1093 (C.D.Cal. 2012) text of trial. Some examples of improper reasons for motions in limine follow. (A) To present all conceivable evidentia- ry objections that might arise at trial. (B) As a substitute for motions to com- pel discovery or for discovery sanctions that should have been brought earlier. (C) As a substitute for summary judg- ment. (D) To reiterate or reinforce obvious or trivial points. (E) To “educate the judge” on a particu- lar issue. (F) To control or cabin items that can’t be controlled or cabined in the progress of a trial. (G) To resolve issues prematurely be- fore they are viewed in the context of trial. 3. RULINGS ON PLAINTIFF’S MO- TIONS IN LIMINE Plaintiff's first motion in limine is DE- NIED. But Defendant may not introduce evidence concerning the “Team Light Skin” twitter post to show racial animus. Plaintiff's second motion in limine is DENIED without prejudice and without impact on the June 14, 2012 stipulation. Plaintiffs third motion in limine is DE- NIED without prejudice. Plaintiff's fourth motion in limine is DE- NIED without prejudice. Plaintiff's fifth motion in limine is DE- NIED. Plaintiff's sixth motion in limine is DE- NIED without prejudice and without im- pact on the June 14, 2012 stipulation. Plaintiff's seventh motion in limine is DENIED. Plaintiff's eighth motion in limine is DE- NIED without prejudice. Plaintiff's ninth motion in limine is GRANTED. Plaintiff's tenth motion in limine is DE- NIED. 4, RULINGS ON DEFENDANT'S MO- TIONS IN LIMINE Defendant's first motion in limine is DE- NIED. Defendant’s second motion in limine is GRANTED in part and DENIED in part. Defendant’s request to exclude Skorheim’s corrective damages testimony is DENIED, but Plaintiff may not introduce testimony concerning corrective advertising damages based on Jacoby’s confusion rate. Defendant's third motion in limine is DENIED. Defendant’s fourth motion in limine is DENIED. But Defendant may conduct discovery concerning Wakia London and Amina Mills and Plaintiff's communications with them. Defendant’s fifth motion in limine is GRANTED. Defendant’s sixth motion in limine DE- NIED with prejudice as to Sally Beauty’s objections under Rules 401, 408, 408, and 901. DENIED without prejudice as to Sally Beauty’s objection under Rule 803. Defendant’s seventh motion in limine is GRANTED in part and DENIED in part. The motion is GRANTED as to Exhibits 70, Ti, 72, %73 (pages MC002419, MC002422, MC002423, and MC002424), 74, 75, 76, 77, 78, 480, and 481, and DENIED as to Exhibit 73 (pages MC002418, MC002420, MC002421). Defendant’s eighth motion in limine is GRANTED.1096 879 FEDERAL SUPPLEMENT, 2d SERIES Defendant's ninth motion in limine is GRANTED subject to reconsideration if original media are unavailable. UNITED STATES of America, Plaintiff, v. SIERRA PACIFIC INDUSTRIES; et al., Defendants. No, CIV S-09-2445 KJIM-EFB. United States District Court, E.D. California. May 31, 2012. Background: United States filed action against forest products company, licensed timber operator, and landowners alleging negligence and negligence per se, liability under California Fire Liability Law, tres- pass by fire, negligent supervision, and negligent hiring with regard to forest fire that started outside of federal lands but spread into federal lands. Company moved for summary judgment. Holdings: The District Court, Kimberly J. Mueller, J., held that: (1) factual issue existed as to source and time of ignition of forest fire; (2) factual issue existed as to whether li- censed timber operator was agent of forest products company; (3) company had not been put on notice of theory of retained control based on company’s possession of the land; (4) factual issue existed as to whether company had duty law to supervise operator; (5) factual issue existed as to whether company knew of two prior fires and operator’s connection to them and failed to act on that information to ensure that operator met fire safety standards going forward; (6) factual issue existed as to whether bull- dozer had been negligently maintained, operated, or used; (7) regulation prohibiting “[cJausing tim- ber, trees, slash, brush or grass to burn except as authorized by permit” did not apply to fires ignited on non- federal land; and (8) double damages were available for in- jury to timber, trees or underwood caused by negligent spread of fire. Motion granted in part and denied in part. 1. Federal Civil Procedure 2539 The general rule is that a party can- not create an issue of fact on a motion for summary judgment by an affidavit contra- dicting his prior deposition testimony, but this rule should be applied with caution; the sham affidavit rule does not apply to every instance when a later affidavit con- tradicts deposition testimony. Fed.Rules Civ.Proe.Rule 56, 28 U.S.C.A. 2. Federal Civil Procedure =2539 Before applying the sham affidavit rule, a district court must make a factual determination that the contradiction was actually a “sham”; the inconsistency be- tween a party’s deposition testimony and summary judgment affidavit must be clear and unambiguous to justify striking the affidavit. Fed.Rules Civ.Proc.Rule 56, 28 US.C.A. 3. Labor and Employment ¢=29 Under California law, a finding that a speaker is an independent contractor does not preclude a finding that the speaker is also an agent for some purposes.178 Tenn. 271 SOUTH WESTERN REPORTER, 3d SERIES Tl. Having determined that the premiums for Mr. McLean’s life insurance policy were “payable monthly,” we answer the first certified question by holding that Tenn.Code Ann. § 56-7-2303(d) exempted Reassure America from providing either Mr. McLean or the trustee the notice re- quired by Tenn.Code Ann. § 56-7-2303(a). Accordingly, Mr. MeLean’s policy lapsed before his death on September 25, 2007. In light of this holding, it is unnecessary to answer the second certified question. Ac- cordingly, we pretermit it. The costs of this appeal are taxed to Robert H. Waldschmidt, trustee, for which execution, if necessary, may issue. Nickie DURAN v. HYUNDAI MOTOR AMERICA, INC. et al. Court of Appeals of Tennessee, at Nashville. Oct. 13, 2006 Session. Feb. 13, 2008. Order Denying the Petition for Rehearing Feb. 27, 2008. Permission to Appeal Denied by Supreme Court Aug. 25, 2008. Background: Driver injured in single ve- hicle accident brought action against man- ufacturer of automobile, alleging that the automobile’s exhaust system was defective, and asserting claims of negligence and var- ious statutory violations. After a jury ver- dict awarded driver compensatory and pu- nitive damages, the Circuit Court, Dickson County, No. CV-1319, George Sexton, J., granted a directed verdict on the punitive damages claim, and reduced the compensa- tory damages award to conform to the driver’s amended prayer for relief. Manu- facturer appealed, and driver appealed the dismissal of her punitive damages claim. Holdings: The Court of Appeals, William C. Koch, Jr., P.J., held that: (1) manufacturer was not entitled to grant of motion in limine to exclude evidence of driver’s punitive damages claim; (2) cross-examination of manufacturer’s medical expert permissibly included questions regarding expert’s knowl- edge of other consumer complaints re- ceived by manufacturer; (8) the Circuit Court acted within its dis- cretion by denying car manufacturer’s motions for a directed verdict on puni- tive damages before the case was sub- mitted to jury; (4) evidence was sufficient to support jury’s allocation of 100% of fault to car manufacturer; (5) driver did not make a submissible claim of punitive damages; (6) evidence supported compensatory damages award; and (7) modification of award of discretionary costs was required. Affirmed in part, and modified in part. 1, Appeal and Error €233(2) Car manufacturer failed to preserve for appellate review its argument that trial court erred in admitting evidence of intent that tended to show punitive damages in driver's products liability case, even though manufacturer filed pre-trial motion to limit such evidence, where the motion was deferred, driver abided by pre-trial agreement not to introduce evidence of manufacturer’s net-worth or assets, and190 Tenn. ground that they established a defense to Ms. Cook’s claims as a matter of law. In the alternative, they sought a new trial or a remittitur. Ms. Cook filed a motion seeking permission to alter or amend her pretrial motion to decrease the amount of compensatory damages she was seeking. Instead of placing a $2,000,000 cap on these damages, Ms. Cook sought permis- sion to set the cap at $3,000,000. Ms. Cook also requested discretionary costs. Ms. Cook died on October 19, 2005. On November 7, 2005, the day the trial court heard the parties’ post-trial motions, Ms. Cook’s lawyer filed a suggestion of death and a motion to substitute Nickie Duran, Ms. Cook’s surviving daughter as the plaintiff. On January 9, 2006, the court entered an order (1) approving the verdict of liability as thirteenth juror, (2) approv- ing the $2,000,000 judgment for compensa- tory damages, (3) denying the Hyundai defendants’ motions for a judgment not- withstanding the verdict, new trial, or re- mittitur, and (4) denying Ms. Cook’s mo- tion to amend her original ad damnum clause and to reinstate the jury’s $3,000,000 verdict for compensatory dam- ages. The trial court also awarded Ms. Cook $70,584.29 in discretionary costs. Both parties have raised issues on ap- peal. Ms. Cook argues that the trial court erred by granting a judgment notwith- standing the verdict on her punitive dam- age claim. The Hyundai defendants insist that the trial court erred with regard to (1) admitting evidence relating to Ms. Cook’s punitive damages claim, (2) allowing the cross-examination of one of its expert wit- nesses, (3) failing to direct a verdict on Ms. Cook’s punitive damage claim at the close of her proof and at the close of all the proof, (4) the jury’s failure to assign any fault to Ms. Cook, (5) the amount of the compensatory damage award, and (6) im- properly awarding discretionary costs. 271 SOUTH WESTERN REPORTER, 3d SERIES The Hyundai defendants also insist that Ms. Cook’s death either undermines the compensatory damage award or requires another remittitur. I. Tue Hyunpar Derenpants’ Motion in Lr MINE To ExcLupE EvipeNce or ARGu- ment Recarpinc Ms. Coox’s Punitive Damace Charms The Hyundai defendants take issue with the trial court’s decision to permit counsel for Ms. Cook to include arguments regard- ing punitive damages in his opening state- ment and to present evidence during Ms. Cook’s case-in-chief regarding her entitle- ment to punitive damages. They insist that the trial court erred by denying their motion in limine seeking to exclude this argument and evidence. We find two fun- damental flaws with this argument. First, the trial court did not deny the Hyundai defendants’ motion in limine; it simply acceded to their request to defer the ruling on the motion until the punitive damage phase of the trial. Second, a motion in limine is not the proper vehicle for seeking a dispositive pretrial ruling on a claim for punitive damages. A. The Hyundai defendants did not chal- lenge Ms. Cook’s punitive damage claim either with a motion to dismiss or a motion for summary judgment prior to trial. However, on the eve of trial, among their fusillade of pretrial motions was a motion in limine requesting the trial court to [e]x- clude “any evidence or argument in sup- port of Plaintiff's claim for punitive dam- ages.” They asserted that the trial court should grant this motion because “(1) the undisputed evidence establishes that ... [Ms. Cook] cannot present clear and con- vineing evidence that the Hyundai Defen- dants acted with the requisite state ofDURAN v. HYUNDAI MOTOR AMERICA, INC. Tenn. 191 Cite as 271 S.W.3d 178 (Tenn.Ct.App. 2008) mind to merit the imposition of punitive damages; and, (2) a punitive damage award in this case would violate the Hyun- dai Defendants’ right to due process under the United States and Tennessee Constitu- tions.” When the trial court heard the pretrial motions on May 20, 2005, the following exchange between the trial court and the Hyundai defendants’ trial counsel oc- curred: MR. BIBB: Your Honor, I would like to take up Motions in Limine No. 10— for some reason they got out of order when we were numbering them, 10, 12, and 13. They all relate to issues relat- ing to punitive damages. I think, first of all, under the Hodges case ... there should be no evidence of the company’s net worth or value or money from the Hyundai defendants ad- mitted in all in terms of the prima facie showing— MR. RITCHIE: No objection. THE COURT: It would be bifurcat- ed. MR. BIBB: I thought the court prob- ably would, had we not formally asked for that. I know that is the normal practice here in this state to bifurcate the damages issue. I think the rest of the issues we can reserve until we get to the—our motion is based on United States Supreme Court decisions, the Gore versus BMW case, the State Farm decision about what elements, what is now to consid- ered for punitive damages, what is the wealth to be considered, extraterritorial 10. This assertion is based on the Hyundai defendants’ claim that the record contained undisputed evidence that the 1988 Hyundai Excel met or exceeded the requirements of the flammability of interior materials and on their assertion that “[t]he evidence does not actions to be considered and those sorts of matters. I just assume we can defer that. Hopefully, with any luck we won’t have to deal with it, but we can take those up before—if in the event we reach punitive damage issues, we would take them up at that time before any evidence is put on. THE COURT: Fair enough. As she promised, Ms. Cook did not at- tempt to present evidence during her case- in-chief regarding the net worth or assets of the Hyundai defendants. She did, how- ever, present a great deal of evidence re- garding the Hyundai defendants’ knowl- edge of the allegedly defective reed valve subassembly in the Hyundai Excel and their failure or refusal to take steps to remedy it or to warn the purchasers of the automobile of the problem. This evidence was directed at establishing that the Hyundai defendants had acted recklessly enough to be required to pay punitive damages. The Hyundai defendants never objected to any of this evidence on the ground that it was not proper to present it during the first phase of the trial. B. {1] The excerpt from the pre-trial hearing leaves little question about the trial court’s ruling on the Hyundai defen- dants’ motion in limine. The court did not deny the motion. Rather, it deferred con- sidering the motion, at the request of the Hyundai defendants’ trial counsel, until the second phase of the trial. In accordance with the commitments made during the pretrial conference, Ms. Cook did not at- support a finding that the Hyundai Defen- dants were aware of a substantial and unjusti- fiable risk of fire following a collision or [a] fire within the passenger compartment due to any alleged malfunction of the reed valve as- sembly.”192 Tenn. 271 SOUTH WESTERN REPORTER, 3d SERIES tempt to present evidence regarding the Hyundai defendants’ net worth or income. She did present evidence intended to prove that Hyundai had acted intentionally, fraudulently, maliciously, or recklessly with regard to correcting the flaws in the reed valve subassembly and warning its customers of the potential hazards should the reed valve subassembly fail. Hyundai did not object to the introduction of this evidence, Thus, in addition to the fact that the trial court did not deny Hyundai’s motion in limine, we have concluded that the Hyundai defendants are now in no position to complain because they failed to take the steps reasonably available to them during Ms. Cook’s case-in-chief to prevent or miti- gate the allegedly harmful effects of this evidence. Tenn. R.App. P. 36(a); State v. Thomas, 158 S.W.3d 361, 413 (Tenn.2005); Hessmer v. Hessmer, 138 S.W.3d 901, 905 (Tenn.Ct.App.2003). They failed to object to the introduction of the evidence they now claim to be unduly prejudicial. Cc. [2,3] In addition to the Hyundai de- fendants’ failure to renew their objections to the evidence they now insist was errone- ously introduced, there is an even more basic reason to uphold the trial court’s denial of the Hyundai defendants’ motion in limine. A motion in limine is not the proper vehicle to use to attempt to pre- clude a claim or defense. It is not equiva- lent to or a substitute for a motion to dismiss or a motion for summary judg- ment. 11. Ifa trial court has not “clearly and defini- tively” acted on the motion in limine, the moving party must renew the motion contem- poraneously with the introduction of the ob- jectionable evidence. Failure to do so pre- cludes the moving party from taking issue on appeal with the admission of the evidence. [4-7] A motion in limine provides a vehicle for requesting guidance from the trial court prior to trial regarding an evi- dentiary question which the court may provide, at its discretion, to aid the parties in formulating their trial strategy. Pul- lum v. Robinette, 174 S.W.3d 124, 136 n. 12 (Tenn.Ct.App.2004) (quoting United States v. Luce, 713 F.2d 1286, 1239 (6th Cir. 1983)); see also Jones v. Stotts, 59 F.3d 143, 146 (10th Cir.1995); Hunt v. K-Mart Corp., 294 Mont. 444, 981 P.2d 275, 278 (1999); see also 1 McCormick on Evidence § 52, at 255-58 (Kenneth S. Brouned., 6th ed. 2006) (“McCormick on Evidence”); Neil P. Cohen et al., Tennessee Law of Evidence § 1.03[4](f), at 1-20 to 1-21 (6th ed. 2005) (“Tennessee Law of Evidence”). It enables the trial court, prior to trial, to exclude anticipated evidence that would clearly be inadmissible for any purpose at trial. Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Forsyth County v. Martin, 279 Ga. 215, 610 S.E.2d 512, 518 (2005). It is, essentially, a substitute for an evidentiary objection at trial. Premiwm Cigars Int'l, Ltd. v. Former-Butler-Leavitt Ins. Agen- cy, 208 Ariz, 557, 96 P.3d 555, 570 (Ct.App. 2004),11 [8-10] Motions in limine serve funda- mentally different purposes than motions for summary judgment. They are not sub- ject to the same procedural safeguards. Bradley v. Pittsburgh Bd. of Educ, 913 F.2d 1064, 1069-70 (3d Cir.1990). Thus, a motion in limine should not be used as a substitute for a dispositive motion such as a motion for summary judgment.” Courts Grandstaff v. Hawks, 36 S.W.3d 482, 488 (Tenn.Ct.App.2000). 12. See eg., Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Proce- dure § 5037.18 (2d ed.2005); Craig Lee Montz, Trial Objections From Beginning to End: The Handbook for Civil and Criminal| 2 | 2 | DURAN v. HYUNDAI MOTOR AMERICA, INC. Tenn. 193 Cite as 271 S.W.3d 178 (Tenn.Ct.App. 2008) that have addressed attempts to use a motion in limine in such a manner, either explicitly or implicitly, have found such use to be in error. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d at 1069-70; Cannon ». William Chevrolet/Geo, Inc. 341 Ill.App.3d 674, 276 Ill.Dec. 593, 794 N.E.2d 843, 849 (2003); Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 616 N.E.2d 519, 524-25 (1992); BHG, Inc. v. F.A.F., Inc, 784 A.2d 884, 886 (R.L2001). As several courts have noted, a motion in limine should not be used to “choke off” a party’s entire claim or defense. McCracken v. Edward D. Jones & Co., 445 N.W.2d 375, 379 (Iowa Ct.App.1989); Cass Bank & Trust Co. v. Mestman, 888 S.W.2d 400, 404 (Mo.Ct. App.1994). [11] A motion for partial summary judgment is an appropriate way to chal- lenge a claim for punitive damages. Ber- enger v. Frink, 314 N.W.2d 388, 390 (lowa 1982); Lundgren v. Eustermann, 370 N.W.2d 877, 882 (Minn.1985); see also Chapman v. Jones, No. M1999-02178- COA-R9-CV, 2000 WL 13793, at *24 (Tenn.Ct.App. Jan.10, 2000) (No Tenn. R.App. P. 11 application filed). Rather than testing Ms. Cook’s punitive damage claim using a motion for summary judg- ment, the Hyundai defendants waited until approximately one week before trial to file their motion in limine whose purpose was to choke off Ms. Cook’s punitive damage claim by preventing her from introducing the very evidence she would be required to present during the first phase of the trial to establish that she had a right to punitive damages. Had the trial court considered the motion in limine, it would have permit- ted the Hyundai defendants to skirt the notice and burden of persuasion require- Trials, 29 Pepp. L.Rev. 243, 256 (2002) (stat- ing that a motion in limine “may not be used as a substitute for a motion for summary judgment.” Even though a motion in limine ments normally associated with summary judgment motions. The Hyundai defen- dants, however, did not press their motion in limine. Had they done so, the trial court would properly have denied it. TIL. Tue Cross-EXAMINATION OF THE HYUNDAI Derenpants’ Mepicat Expert ReGarp- ING Carson Monoxive Poisonine The Hyundai defendants take issue with the trial court’s decision to permit Ms. Cook’s lawyer to cross-examine one of its medical experts regarding his familiarity with the consumer complaints received by the Hyundai defendants about drivers of Hyundai Excels who passed out while driv- ing after smelling smoke or fumes. The Hyundai defendants asserted (1) that this evidence is inadmissible, (2) that it was extremely prejudicial, and (8) that the trial court’s limiting instruction was inadequate. We find no reversible error in the cross- examination of the Hyundai defendants’ medical expert. A. One of the essential parts of Ms. Cook’s case was her assertion that a leak in the exhaust system of the Hyundai Excel filled the passenger compartment with carbon monoxide that caused her to lose con- sciousness before her automobile struck the tree and burst into flames. The Hyun- dai defendants responded to this claim by calling Dr. Thomas L. Bennett, a forensic pathologist, to refute Ms. Cook’s medical evidence that her carboxyhemoglobin lev- els after the incident were consistent with her testimony that she blacked out before the automobile hit the tree. On direct may be used to narrow evidentiary issues in advance of trial, it should not be mistaken for a method to dismiss an opponent's claim.).