Motion in Limine - United States District Court

Case 1:06-cv-22644-ASG Document 364 Entered on FLSD Docket 07/23/2008 Page 44 of 45
warn), and even one case in which an appellate court determined that the jury had
sufficient evidence to find a breach of the duty even where no evidence of other accidents
was offered, because the manufacturer knew how its drilling machine was being used in
the field and was therefore in a position to realize that such use might cause a serious
accident, see Simon v. Am. Crescent Elevator Co., 767 So.2d 64, 74-75 (La. App. 4th Cir.
2000). Florida recognizes the duty, and there are at least three other substantially similar
incidents which resulted in the exact injury suffered by Mr. Moncrieffe following an alleged
foreseeable tipover. I now find that these circumstances are sufficient to let the jury decide
whether the evidence is sufficient to support a post-sale duty to warn claim against Clark.
IV. Order
The Court, being duly advised in the premises, for the reasons discussed above and
at the hearing, it is hereby ORDERED AND ADJUDGED:
1. Plaintiffs’ Motion Regarding Cause of Tipover [DE 242] is DENIED without
prejudice.
2. Defendant’s Motion to Bar Testimony of Jeffrey Warren [DE 246] is
DENIED.
3. Plaintiffs’ Motion to Exclude OSHA File [DE 247] is GRANTED as to
introduction of the evidence in Defendant’s case in chief. However, whether
the statement attributed to Mr. Diaz may be admissible for impeachment will
be determined at trial.
4. Defendant’s Motion to Preclude Other Accidents of Bobcat Compact
Excavator X320 [DE 250] is GRANTED as to the accidents involving Rapich
and Pritz, and DENIED as to the accidents involving Collins, Jones, and
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