Lipp v. Ginger C, L.L.C.

Decision Date19 January 2017
Docket NumberCase No. 2:15–cv–04257–NKL
Citation229 F.Supp.3d 1018
Parties John P. LIPP and Stephanie S. Lipp, Plaintiffs, v. GINGER C, L.L.C., et al., Defendants.
CourtU.S. District Court — Western District of Missouri

Joseph A. Kronawitter, Robert A. Horn, Horn, Aylward & Bandy, LLC, Kansas City, MO, Aaron W. Smith, A. W. Smith Law Firm PC, Columbia, MO, for Plaintiffs.

Jeffrey Hyatt Blaylock, Clayton Thompson, Ford, Parshall & Baker, LLC, John L. Roark, Smith Lewis, LLP, Columbia, MO, James B. Ewbank, II, Mitchell F. Zoll, Cokinos, Bosien & Young, Austin, TX, Jack T. Bangert, Matthew David Moderson, Kutak Rock, LLP, Jacqueline Annette Cook, John G. Schultz, Suzanne R. Bruss, Martha Elizabeth Ravenhill, Franke, Schultz & Mullen, Kansas City, MO, J. Christopher Spangler, Sedalia, MO, for Defendants.

ORDER

NANETTE K. LAUGHREY, United States District Judge

Before the Court is Plaintiffs' Motion in Limine to Exclude Evidence and/or Argument Related to Alcohol, Drugs, and Partying [Doc. 431]. For the following reasons, the motion is granted in part and denied in part.

I. Background

Plaintiffs, the surviving parents of Jack Lipp, filed suit alleging negligence against Defendants Ginger C, five American Campus Communities entities (ACC), and Roland Management. The suit stems from Lipp's death, which occurred when he fell off a balcony at 507 South Fourth Street in Columbia, Missouri while attending a fraternity "rush" party.

Plaintiffs anticipate Defendants will attempt to introduce evidence and/or argument that decedent Jack Lipp was intoxicated at the time leading up to his death. [Doc. 431, p. 1]. Plaintiffs anticipate Defendants will proffer what Plaintiffs classify as circumstantial evidence in the following forms:

(1) "[T]he testimony of five witnesses, who were admittedly so intoxicated at the time their competency to testify is genuinely disputed and did not actually observe Jack Lipp consume any alcohol or other intoxicant";
(2) "[A] prior photograph of Jack Lipp holding a cup with unidentified liquid in it"; and
(3) "[T]he speculative notion that Jack Lipp must have been drinking because he was present at a college house party."

Id. at 1–2. Plaintiffs move to exclude this evidence under Fed. R. Evid. 401, 403, and 601.

II. Discussion

This Court has diversity subject matter jurisdiction and state law generally governs substantive issues and the Federal Rules of Evidence govern the admissibility of evidence. 28 U.S.C. § 1652 ; Erie Railroad Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ; Potts v. Benjamin , 882 F.2d 1320, 1324 (8th Cir. 1989). The evidence described above relating to alcohol, drugs, or partying could be relevant to the defense of comparative fault, which Defendants have asserted. Under the pure comparative fault principles adopted by Missouri in Gustafson v. Benda , 661 S.W.2d 11 (Mo. banc. 1983), the injured party's own negligence is compared to that of the negligence of defendant to determine whether any damages awarded should be diminished in proportion to the amount of negligence attributable to that plaintiff. Cornell v. Texaco, Inc. , 712 S.W.2d 680, 682 (Mo. banc. 1986). The Court will apply the Federal Rules of Evidence to determine relevancy, and Missouri law to determine the admissibility of evidence relating to the affirmative defense of comparative fault. See e.g., Potts , 882 F.2d at 1324 ("A statute modifying the content of state tort law doctrines of contributory and comparative negligence seems to us to be a classic example of the type of substantive rule of law binding upon a federal court in a diversity case."); Winningham v. Swift Trans. Co., Inc. , 2007 WL 2245888 *1 (W.D. Mo. August 2, 2007).

The Federal Rules of Evidence provide that all "relevant evidence" is admissible, unless otherwise prohibited. See Fed. R. Evid. 402. The trial court has broad discretion in deciding whether to admit evidence at trial. SeeFortune Funding LLC v. Ceridian Corp. , 368 F.3d 985, 990 (8th Cir. 2004).

A. Witness Testimony

Defendants may offer witness testimony of the following five individuals who were present at the house around the time that Jack Lipp fell to his death: (1) Christopher Strzalka, (2) Daniel Mikes, (3) Lukas Reichert, (4) Nicole Rochon, and (5) Scott Campbell.1 Plaintiffs challenge the competency of witnesses who admit to being intoxicated during the party, as well as the relevancy of their testimony. Plaintiffs further assert that under Fed. R. Evid. 403, the probative nature of this testimony is substantially outweighed by the prejudicial effect the evidence will have.

1. Competency

In a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision. Fed. R. Evid. 601. Under Missouri law, "a witness is not incompetent because he was intoxicated at the time of the event testified to, unless he was so intoxicated as to have been insensible." State v. Pflugradt , 463 S.W.2d 566, 570 (Mo. App. 1971) (citations omitted).

Each of the five witnesses noted in Plaintiffs' Motion testified at their deposition that, on the night of the party, they themselves were drinking and/or intoxicated to the point that their memory may have been affected. Christopher Strzalka testified that he was "very intoxicated," that he "had taken some other drugs as well," and told the police he didn't remember anything. [Doc. 431–1, p. 74]. Daniel Mikes estimated that, on a scale from 1—10, with 10 being "blacked out," his intoxication was around a 7 when he saw Jack Lipp and that he does not remember walking home that evening. [Doc. 431–2, pp. 55–57]. Nicole Rochon estimated that, on the same 1–10 scale, her level of intoxication was "[p]robably like a 6 or a 7. Like I feel like I was pretty intoxicated, but not to the point where I couldn't function or couldn't talk or anything like that." [Doc. 431–4, p. 57]. Scott Campbell estimated his intoxication at "[r]ight around a 7 or 8." [Doc. 431–5, p. 67]. Campbell stated that he wasn't blacked out, but he had trouble walking and talking. Id. at 53–54.

Plaintiffs cite to the above excerpts to argue that "there is a genuine dispute as to whether these witnesses are competent to testify at all , let alone form a sufficient basis ... to allow admission of extremely prejudicial speculation that Jack Lipp was intoxicated when he fell." [Doc. 431, p. 4]. But "a witness is not incompetent because he was intoxicated at the time of the event testified to, unless he was so intoxicated as to have been insensible."

Pflugradt , 463 S.W.2d at 570. Plaintiffs put forth no legal argument that the witnesses were insensible, only that they were intoxicated. Both Campbell and Mikes testified that they were under the influence of alcohol during the party, but neither Campbell nor Mikes stated in their testimony that they were so intoxicated that they could not recall the events of the evening.

Further, Plaintiffs themselves have cited to the testimony of several of those witnesses in other briefings on motions currently before the Court with no mention of competency concerns. See, e.g. , [Docs. 398, 404, 406]. The Court will not exclude the testimony of Campbell or Mikes on the basis of competency. Any challenges to the witnesses' ability to accurately perceive the events of December 12–13 go to credibility, not admissibility, and may be resolved on cross-examination. See State v. Myers , 538 S.W.2d 892, 897 (Mo. Ct. App. 1976).

2. Relevancy

Christopher Strzalka testified that he never saw Jack Lipp the evening of the party. [Doc. 431–1, p. 28]. Lukas Reichert also testified that he never saw Jack Lipp that evening. [Doc. 431–3, p. 80]. Nicole Rochon, who noticed Jack Lipp on the ground sometime after he fell, testified that while inside the party did not recall seeing Lipp. [Doc. 431–4, p. 21]. Plaintiffs argue that the testimony of Strzalka, Reichert, and Rochon is not relevant because none of them can offer any testimony that has a tendency to make a fact of consequence more or less probable than it would be without the evidence. See Fed. R. Evid. 401. Plaintiffs do not seem to challenge Daniel Mikes and Scott Campbell on relevancy grounds; Mikes and Campbell each saw Jack Lipp on the night of the party and stated observations that Lipp may have been intoxicated. See [Doc. 446].

Defendants maintain that the testimony of Strzalka, Reichert, and Rochon provides the jury with a complete picture of the party and testimony regarding alcohol "is relevant to the perceptions and observations of the witnesses who attended the party." [Doc. 446, p. 2]. Defendants also argue the evidence "is necessary to permit the jury to properly assess the credibility of the witnesses who attended the party[,] and is necessary to provide the jury a complete story of the events of that night." Id.

The Court defers ruling on the testimony of Strzalka, Reichert, and Rochon.

3. Probative Value & Prejudicial Effect

Under Rule 403 relevant evidence may only be excluded if its probative value is substantially outweighed by the factors set forth in the rule including the danger of unfair prejudice. Fed. R. Evid. 403. "In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission." Block v. R.H. Macy & Co., Inc. , 712 F.2d 1241, 1244 (8th Cir. 1983). Unfair prejudice means an undue tendency to suggest decision on an improper basis. Wade v. Haynes , 663 F.2d 778, 783 (8th Cir. 1981) ; United States v. Myers , 503 F.3d 676, 681 (8th Cir. 2007). A decision on an "improper basis" is "commonly, though not necessarily, an emotional one." Fed. R. Evid. 403, Advisory Committee Notes.

Plaintiffs note that Defendants "do not have evidence of Jack Lipp's blood alcohol content. Defendants do not have evidence of witnesses who observed Jack Lipp actually drinking or consuming an intoxicant. In fact, there is no evidence from any...

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