United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter is before the Court on Shaklee's Motion in Limine
(Doc. 256) and Superior's Response thereto (Doc. 275).
term "in limine" has been defined as "on the
threshold; at the very beginning; preliminarily."
Luce v. U.S., 469 U.S. 38, 40 n.2 (1984) (citing
Black's Law Dictionary 708 (5th ed. 1979)). "A
motion in limine seeks a protective order prohibiting the
opposing party, counsel, and witnesses from offering
offending evidence at trial, or even mentioning it at trial,
without first having its admissibility determined outside the
presence of the jury." 75 Am. Jur. 2d Trial § 39
(2008). A motion in limine may be proper where the evidence
at issue is highly prejudicial or inflammatory; where the
evidentiary issue is significant and unresolved under
existing law; where the issue involves a significant number
of witnesses or volume of material, making it more economical
to have it resolved prior to trial; or where the movant does
not wish to object in the presence of the jury. Id.
"Motions in limine are disfavored; admissibility
questions should ordinarily be ruled upon as they arise at
trial." Stewart v. Hooters of America, Inc.,
2007 WL 1752843 at *1 (M.D. Fla. June 18, 2007).
"Accordingly, if evidence is not clearly inadmissible,
evidentiary rulings must be deferred until trial to allow
questions of foundation, relevancy, and prejudice to be
resolved in context." Id. Denial of a motion in
limine does not insure that the evidence contemplated by the
motion will be admitted at trial. Instead, denial of the
motion means the court cannot determine whether the evidence
in question should be excluded outside the trial context.
U.S. v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).
A district judge is free, in the exercise of sound judicial
discretion, to alter a previous in limine ruling, even if
nothing unexpected happens at trial. Luce, 469 U.S.
Motion, Shaklee seeks to exclude, in limine, various
forms of evidence. The Court rules on these in the order
presented in Shaklee's Motion.
Superior's confidential information. DENIED. The
Court cannot in limine rule on "notions"
or "insinuations" to be drawn from the lack of
Stacking inferences. GRANTED. Plaintiff implies that
Mrs. Steeves-Kiss ("Kiss"), while employed by
P&Gin 2005, knew about Superior's Healthprint
service, and ten years later used that knowledge to
facilitate the development of Shaklee's on-line
Heathprint questionnaire. Shaklee contends that there is no
direct evidence of either inference, which runs afoul of the
rule against pyramiding inferences. In its motion, Plaintiff
contends that under federal law, "there is no
prohibition against pyramiding inferences, " citing
Preferred Care Partners v. Humana, 2009 WL 982433,
at *11 (S. D. Fla. April 9, 2009). The relevant discussion is
at pages 9-10 of that opinion, and Plaintiff conveniently
omits the concluding clause of the quote: ". . . so long
as they are reasonable." (Emphasis added.) The
court went on to evaluate the reasonableness of the inference
there involved. Similarly, in Nat7 Union v.
Tyco, 2015 WL 3905018 at *21 (S.D. Fla. 2015), the court
recognized that there is no prohibition against pyramiding
inferences (especially in the context of a motion for summary
judgment); "instead all inferences are permissible so
long as they are reasonable." Thus, the question here is
whether the predicate inference (Kiss's knowledge of
Superior's Heathprint mark) is reasonable under the
circumstances. The Court concludes it is not a reasonable
inference and will be excluded at trial unless Plaintiff can
present direct evidence of her knowledge.
David & Goliath portrayal. DENIED. Evidence of
Shaklee's income, i.e., gross sales and net
profits during the relevant period are relevant to Plaintiffs
damages claim and will not be excluded. However, evidence of
Shaklee's net worth or any attempt to denigrate Shaklee
by reason of its relative size will not be permitted. The
Court will not exclude, in limine, evidence of
Shaklee's landmark study. DENIED. The landmark
study may have some relevance to the "relatedness"
factor in a trademark infringement analysis. The study,
however, should not be used to imply that Shaklee performs
blood testing as a part of its Healthprint service.
Insinuating that Shaklee approved Superior's use of
the Shaklee mark in connection with Superior's
advertisements. DENIED. This motion is based on the
general proposition that Shaklee's distributors, as
independent contractors, cannot approve the use of
Shaklee's mark in connection with Superior's
advertising. While this is true, the Court cannot, in
limine, control efforts to insinuate otherwise.
Objections in this regard will be handled at trial.
The Cheney/Lagoni PowerPoint. DENIED.
Cheney and Lagoni are Shaklee distributors who
ostensibly authored a Powerpoint document that promotes the
use of Shaklee supplements to treat cancer (Doc. 256-8).
Superior has listed this document as an exhibit for trial.
Shaklee is concerned that Superior will use this evidence to
show that Shaklee is engaged in the same unlawful conduct -
the illegal practice of medicine - that Shaklee accuses
Cullen of engaging in. But, Cheney and Lagoni are independent
contractors, not employees of Shaklee; whereas, Cullen is the
principal owner of Superior. The manner in which Shaklee
deals with its "rogue" distributors is not relevant
to the issues in this case. However, Superior claims that the
Powerpoint is admissible to attack the credibility of Lagoni
as a witness at trial. If Lagoni testifies for Shaklee at
trial, the Court will determine at that time whether this
evidence is proper impeachment.
Evidence of Superior's financial performance prior to
2012. GRANTED, by agreement.
Rule 26 Disclosures. This issue is now moot and is,