Motion in Limine in Strict Liability Case


By her personal representative James Martin,


By her Father and Next Friend, Robert Melton
– Plaintiffs,



CASE NO. 24-C-02-004042

Motion in Limine to Exclude Tank Level Readings

Plaintiffs, Estate of Patricia Martin, by her Personal Representative James Martin, and Deanna Marie Melton, by her Father and Next Friend, Robert Melton, by and through their undersigned counsel, request that this Court exclude tank level readings. In support, Plaintiffs state as follows:

Defendant is expected to seek to admit evidence of tank levels of various tanks of hot liquid slurry at Domino’s Sugar, specifically, those illustrated in the documents attached as Exhibit A. This data should not be permitted into evidence because: (1) the data cannot be replicated or reviewed because it was destroyed over two years ago; (2) the data is not reliable; and (3) Plaintiff’s expert agrees that one of the tank levels is both misleading and has unexplainable data.

Four weeks after the accident in question occurred, Defendant sought to determine the tank levels in an effort to gain further information about the accident, using computerized tank level readings. Defendant seeks to admit this evidence through its expert, Domino plant manager Richard Baker.

Plaintiff’s expert Richard Baker is expected to testify that: (1) he knew of a lawsuit involving this accident within eighteen months of the subject accident; and (2) Domino destroyed the information needed to replicate the data with respect to tank levels eighteen months after the accident occurred.

Moreover, Plaintiff’s expert will further concede that gauge of measurement in the tanks are not regularly calibrated, leading to inherent reliability problems. With respect to the 2-1-2 tank measurements, Mr. Baker is further expected to testify that the initial slope of the 2-1-2 tank shows readings that defy logic because the slope is such that it would appear that 2-1-2 tank was taking liquid slurry at a rate faster than was even possible. Finally, Mr. Baker will agree that the tank levels of other tanks were relevant to the readings and ramification of the tank levels in question. Mr. Baker is expected to testify if you were seeking to use the tank levels to determine the cause of this accident, the tank reading of the other tanks would be necessary to determine why the tanks had the levels that they did. This data as to the other tanks was available at one time but has since been destroyed.

Plaintiff does not suggest that data was maliciously destroyed and it does not seek a spoilation instruction (although it arguably could because the destruction was under the auspices of Defendant’s expert). But fairness dictates that Defendant not be permitted to put on evidence where replication of the underlying data prevents Plaintiff from a meaningful cross examination. Moreover, these graphs are admittedly in part unexplainable, non-calibrated, and omits critical data which was available that would have provided useful information about the variables that impacted the graphs that are depicted. Accordingly, this evidence should be stricken.

Respectfully submitted,
Ronald V. Miller, Jr.
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Counsel for Plaintiffs

J. Edward Martin
409 Washington Avenue, Suite 707
Towson, Maryland 21204
Co-Counsel for Minor Plaintiff

Certificate of Service

We hereby certify that a copy of the foregoing Motion in Limine to Exclude Tank Level Readings was sent via U.S. Mail, first-class, postage prepaid, this 1st day of June, 2004, to:

Douglas W. Biser, Esquire
Mudd, Harrison & Burch
Jefferson Building, Suite 300
105 West Chesapeake Avenue
Towson, Maryland 21204
Counsel for Defendant

Carmel J. Snow, Esquire
2701 W. Patapsco Avenue, Suite 109
Baltimore, Maryland 21230
Counsel for Minor Plaintiff

Ronald V. Miller, Jr.

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