Herbst v. L.B.O. Holding, Inc.
2011 DNH 072
D.N.H.2011Background
- Herbst was injured (broken ankle) after falling off Attitash Bear Peak alpine slide during summer use; he sues Attitash for strict products liability and negligence.
- Subject matter jurisdiction is diversity under 28 U.S.C. § 1332(a)(1).
- Both parties moved in limine to admit or exclude evidence for trial scheduled in May 2011.
- Attitash sought to admit Herbst's prior mail-fraud conviction, exclude the face amount of medical bills, and preclude the warnings/accuracy testimony of Herbst’s expert; Herbst sought to admit prior and subsequent accidents on the slide.
- The court ruled on the limine motions: (a) admit the prior conviction, (b) allow billed medical amounts (collateral source rule) but limit challenges to reasonableness, (c) permit the expert to testify about warnings despite disclosure gaps, and (d) admit four 2004–2006 accidents and the 2010 accident as substantially similar evidence in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Herbst's prior felony conviction | Herbst argues Rule 609(b) limits apply and conviction should be admitted given impeachment value. | Attitash argues conviction is too remote (over ten years) and prejudicial. | Conviction admissible; probative value substantially outweighs prejudice; limited limiting instruction allowed. |
| Medical bills evidence | Herbst should be allowed to present billed amounts. | The face amount is inappropriate to prove reasonable value. | Denied as to exclusion; billed amounts admissible under collateral source rule; defendant may challenge reasonableness without citing Medicaid write-offs. |
| Expert testimony on warnings | Mroszczyk's warning adequacy opinion should be admissible. | Only stated warning-related opinion in report is about signs; no explicit warning adequacy. | Denied; permitted to testify that warnings were inadequate if based on inferred opinion from report, with sufficient notice. |
| Evidence of other accidents | Prior and subsequent accidents show risk and notice; some highly similar circumstances. | Evidence may be unfairly prejudicial, confusing, or delaying. | Admit four 2004–2006 accidents as substantially similar; exclude others; admit 2010 accident as substantially similar but with trial-limiting safeguards. |
Key Cases Cited
- United States v. Orlando-Figueroa, 229 F.3d 33 (1st Cir.2000) (conviction admissible where it demonstrates dishonesty; Rule 609(a) considerations)
- United States v. Nguyen, 542 F.3d 275 (1st Cir.2008) (ten-year Rule 609(b) window; tailoring admission to circumstances)
- United States v. Brito, 427 F.3d 53 (1st Cir.2005) (impeachment value factors in Rule 609 analyses)
- United States v. Brown, 603 F.2d 1022 (1st Cir.1979) (limits on admitting old convictions; balancing prejudicial impact)
- Reed v. Nat’l Council of Boy Scouts of Am., Inc., 706 F. Supp. 2d 180 (D.N.H.2010) (collateral source rule; billed amounts admissible; insurer payments not controlling)
- Moulton v. Groveton Papers Co., 114 N.H. 505, 323 A.2d 906 (N.H.1974) (collateral source rule origins; plaintiff may recover if damages offset by collateral payments)
- Downey v. Bob's Disc. Furniture Holdings, Inc., 633 F.3d 1 (1st Cir.2011) (evidence of prior incidents evaluated for relevance; circumstances matter)