United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge
the Court are Defendants’ Motions in Limine Numbers 1
through 7. ECF No. 36. Plaintiff has responded. ECF No. 38.
The matter is ripe for the Court’s consideration. The
motion will be granted in part and denied in part as follows:
Defendants ask the Court to prohibit any reference to
settlement negotiations of the parties and any mentions of
statements made during settlement negotiations. Plaintiff
agrees that this motion in limine should be granted.
Accordingly, Defendants’ Motion in Limine Number 1 is
Defendants ask the Court to exclude any attempt to introduce
any document, photograph, table, chart, or any other
demonstrative evidence not provided pursuant to formal
discovery in this matter. Plaintiff states that he agrees
this evidence should be excluded, with one exception.
Plaintiff states that he should be allowed to introduce
photographs of the original radiator prototype at issue in
this case, even though the original radiator prototype has
not been produced during discovery. The complaint alleges
that Plaintiff’s original radiator prototype is missing
and that Defendants either lost or converted the prototype.
Thus, the Court will allow Plaintiff to introduce photographs
of the original radiator prototype. Accordingly,
Defendants’ Motion in Limine Number 2 is GRANTED IN
PART and DENIED IN PART.
Defendants ask the Court to exclude any claim for damages for
pain and suffering, mental anguish, or any related type of
damage because these damages have not been pled by Plaintiff.
Plaintiff argues that he has adequately pled damages pursuant
to Federal Rule of Civil Procedure 8. However, Rule 9(g)
requires an item of special damage to be specifically stated.
Fed.R.Civ.P. 9(g). The obligation to plead special damages
with specificity is designed to alert the defending party to
the nature of the claimed damages and guard against unfair
surprise. Bowles v. Osmose Utilities Serv., Inc.,
443 F.3d 671, 675 (8th Cir. 2006). In diversity cases,
special damages are defined by the pertinent state’s
law. Carnell Constr. Corp. v. Danville Redevelopment
& Housing Auth., 745 F.3d 703-725-26 (4th Cir.
2014). In Arkansas, “special damages are those damages
that do not automatically and necessarily flow from the
wrong; rather, they arise from the particular circumstances
of the case.” Howard W. Brill, Arkansas Law of
Damages, § 4:1 at 52 (6th ed. 2014).
present case, Plaintiff alleges that Defendants either lost
or converted a radiator prototype that he had built and
shipped to them for further development. Generally, the
measure of damages for conversion is the market value of the
personal property at the time and place of the conversion.
JAG Consulting v. Eubanks, 72 S.W.3d 549, 553 (Ark.
2002). Thus, the Court concludes that damages for mental
anguish or emotional distress are not damages that
necessarily flow from Defendants’ alleged conversion of
the prototype or negligence related to the shipping and
handling of the prototype. Under the circumstances of this
case, damages for mental anguish or emotional distress are
special damages that must be pled with specificity. See
Blackard v. Hercules, Inc., 17 F.Supp.3d 576, 580
(S.D.Miss. 2014) (“Damages for emotional distress and
mental anguish must be pled with specificity under Federal
Rule of Civil Procedure 9(g).”). There is no explicit
claim for mental anguish or emotional distress damages in
Plaintiff’s complaint. Keeping the purpose of Rule 9(g)
in mind, the Court is not aware of any evidence in the record
from which it could infer that Defendants were aware, or
could have been expected to be aware, that Plaintiff had
suffered these special damages. Accordingly,
Defendants’ Motion in Limine Number 3 is GRANTED.
Defendants ask the Court to prohibit any mention of any
allegations of theft, loss, or misappropriation of
intellectual property unless and until such time as the Court
has ruled that Plaintiff has a good faith basis for making
such claim. Plaintiff agrees that this motion should be
granted. Accordingly, Defendant’s Motion in Limine
Number 4 is GRANTED.
Defendants ask the Court to exclude any reference by
Plaintiff as to how long he spent traveling to and from his
place of business to originally construct the prototype
and/or to recreate the prototype. Plaintiff argues that the
jury can consider “all evidence with respect to the
fair market value of the prototype, including the value of
Plaintiff’s time and effort.” ECF No. 38, ¶
3. Plaintiff cites no law in support of this argument.
market value is defined as the price the personalty would
bring between a willing seller and a willing buyer in the
open market after negotiations.” JAG
Consulting, 72 S.W.3d at 553. “In determining the
market value for converted property, purchase price,
replacement cost, and rental price are not controlling
standards, but they may be used as evidence to determine the
market value.” Howard W. Brill, Arkansas Law of
Damages, § 33:7 at 772 (6th ed. 2014). The Court
concludes that any evidence regarding Plaintiff’s time
and transit between his home and his place of business is not
relevant to determining the fair market value of the
prototype. Thus, Defendants Motion in Limine Number 5 is
Defendants ask the Court to exclude from evidence any
statements of witnesses not identified and produced at trial
and available to testify. Plaintiff agrees that this evidence
should be excluded. Thus, Defendants’ Motion in Limine
Number 6 is GRANTED.
Defendants ask the Court to exclude from evidence any
reference to any element of damage other than the fair market
value of Plaintiff’s alleged prototype. Plaintiff
argues that expenses occurred as the result of a conversion
can be a proper measure of damages. The Court stated earlier
that, ordinarily, the measure of damages for conversion is
the market value of the personal property at the time and
place of the conversion. JAG Consulting, 72 S.W.3d
at 553. However, the fair market value of the property is not
the only measure of damages recoverable in an action for
conversion. The circumstances of the case may require a
different measure, including the expenses incurred as a
result of the conversion. First Nat’l Bank of
Brinkley v. Frey, 282 Ark. 339, 342 (1984). The Court
does not know what evidence will be presented to support an
award of damages in this case. Defendants’ request to
exclude from evidence any reference to a measure of damage
other than fair market value is broad, and the Court is not
prepared to rule on this issue without more information from
the parties. Thus, Defendants’ Motion in Limine Number
7 is DENIED WITHOUT PREJUDICE subject to renewal at the
pretrial conference or during trial.
reasons stated above, the Court finds that Defendants’
Motions in Limine Numbers 1 through 7 (ECF No. 36) should be