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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

ASPEN AMERICAN INSURANCE CO., ) 

as subrogee of Eastern Fish Company, ) 

 ) 

 Plaintiff, ) Case No. 1:14-CV-383-WCL-SLC

 ) 

 v. ) 

 ) 

INTERSTATE WAREHOUSING, INC., ) 

et al. ) 

 ) 

 Defendants. ) 

PLAINTIFF'S MOTION IN LIMINE #8 – MOTION IN LIMINE TO (I) PRECLUDE 

OBJECTIONS TO INFERENCES MADE DUE TO SPOLIATION OF EVIDENCE & (II) 

PERMIT WITNESSES TO TESTIFY ABOUT SPOLIATED EVIDENCE

Pursuant to Federal Rules of Evidence 104(a) and 702, Plaintiff, Aspen American 

Insurance Co., as subrogee of Eastern Fish Company (“Plaintiff” or “Aspen”), by its attorneys, 

respectfully moves in limine for this Court to bar any and all objections to inferences made and 

conclusions drawn by Plaintiff’s experts in their reports, deposition testimony, or during the course 

of their trial testimony which were made out of necessity due to the spoliation of evidence by 

Interstate Warehousing, Inc. (“Defendant” or “IW”). Plaintiff further moves for an order allowing 

its witnesses, including expert witnesses James Goes and Jeremy Swensen, to testify with respect 

to spoliation of evidence, as provided in this Court’s Opinion and Order of December 5, 2019 (Dkt. 

75), which states: “The jury will be permitted to hear and consider evidence from both parties 

about Interstate’s failure to preserve the structural components (or make them available for 

inspection) and how and to what degree Aspen American was prejudiced by Interstate’s actions in 

that regard.” Id. at p. 18. 

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Plaintiff foresees that Defendant’s counsel will seek to object to Plaintiff’s expert 

testimony and reports on the basis of alleged lack of foundation and reliability of evidence. 

However, under well-established Indiana case law, any inferences required to be drawn due to the 

spoliation of evidence are to be against the spoliating party. In addition to such negative inference 

against Defendant, Defendant should also not be able to object to testimony regarding such 

destroyed evidence on the basis of lack of knowledge or otherwise seek to benefit from its own

misconduct. 

In further support of this Motion, Aspen respectfully refers this Court to the Memorandum 

of Law that follows.

MEMORANDUM OF LAW 

IN SUPPORT OF PLAINTIFF’S MOTION IN LIMINE #8 

A. PRELIMINARY STATEMENT

Plaintiff previously filed its Motion for Sanctions Based on Defendant’s Spoliation of 

Evidence seeking sanctions against Defendants for its failure to preserve evidence related to 

collapse of the roof of the warehouse that stored Plaintiff’s product. (See Dkt. 64-65). The Court 

found that Defendant did indeed spoliate evidence in its subsequent Opinion and Order (Dkt. 75), 

ruling that it would instruct the jury that evidence that might have been obtained from the removed 

warehouse components would have been “unfavorable” to IW. 

Such order ensures that Defendant cannot benefit from the lack of evidence from an 

evidentiary perspective. Likewise, Defendant should not be permitted to object to the lack of 

evidence and therefore lack of personal observation by Plaintiff’s experts as a foundation to draw 

their conclusions. Therefore, Plaintiff seeks an order prohibiting Defendant’s counsel from doing 

just that. 

 

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B. BACKGROUND

Plaintiff refers to the background facts stated in its Motion in Limine No. 1 – Motion In 

Limine to Exclude any Evidence in Support of Defendant’s “Act of God” Affirmative Defense 

(Dkt. 108) which are fully incorporated herein. 

C. ARGUMENT

I. Legal Standard 

“The Federal Rules of Evidence do not explicitly authorize in limine rulings. However, the 

District Court has inherent authority to manage the course of trials. Fed. R. Evid. 103(c); Luce v. 

United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). District courts have 

broad discretion in ruling on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 

664 (7th Cir. 2002).” Ledford v. Lamartz, 462 F.Supp.3d. 905, 908 (N.D. Ind. 2020). 

II. Admission of Expert Testimony, Generally

The admissibility of expert testimony is guided by Fed. R. Evid. 702 which provides, in 

relevant part: 

A witness who is qualified as an expert by knowledge, skill, experience, training, 

or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will 

help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of 

the case. 

Fed. R. Civ. P. 702. 

Courts hold that the last prong of this test requires an expert’s opinion to be tied to case 

facts and issues. Smith v. Nexus RVs, LLC, 472 F.Supp.3d 470, 476 (N.D. Ind., South Bend 

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Division, 2020); citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 150. Expert testimony 

must relate to an issue in the case and be relevant, helping the jury decide an issue of consequence. 

Id. “‘[A]n opinion has a significance proportioned to the sources that sustain it,’ Huey v. United 

Parcel Serv., 165 F.3d 1084, 1087 (7th Cir. 1999) (citation omitted), and consequently an expert 

opinion that lacks a proper factual foundation is little more than ‘unscientific speculation offered 

by a genuine scientist,’ and thus is both unreliable and inadmissible. Rosen v. Ciba-Geigy Corp., 

78 F.3d at 316, 318 (7th Cir. 1996).” Comer v. American Elec. Power, 63 F.Supp.2d 927, 934 (N.D. 

Ind., Fort Wayne Division, 1999). 

That is, under ordinary circumstances, a party seeking to proffer expert testimony to the 

jury must demonstrate some reasonable connection between the methodologies relied upon by the 

expert and the evidence that the expert him or herself viewed, observed, or otherwise relied upon 

in applying his or her methodologies in reaching his or her expert conclusion. 

. poliation of vidence

It is well established under Indiana law that the courts have great discretion as to the 

repercussions for the party found to have spoliated evidence. See N. Indiana Pub. Serv. Co. v. 

Aqua Envtl. Container Corp., 102 N.E.3d 290, 302 (Ind. Ct. App. 2018) (stating that “a trial court 

has broad discretion to redress spoliation of evidence; its power to sanction spoliation is derived 

from its broad and inherent discretionary powers to issue evidentiary rulings and to manage the 

orderly and expeditious disposition of cases.”) (citations omitted).2

 

2 Indiana Trial Rule 37(B) also authorizes trial courts to respond to discovery violations with sanctions “as are just,” 

including, amongst others, ordering that designated facts be taken as established, prohibiting the introduction of 

evidence, dismissal of all or any part of an action, rendering a judgment by default against a disobedient party, and 

payment of reasonable expenses including attorney fees. See also N. Indiana Pub. Serv. Co., 102 N.E.3d at 302.

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Further, where a party has been found to have spoliated evidence, “the rules of evidence 

permit the jury to infer that the missing evidence was unfavorable to that party.” Id. 3

 

Where evidence has been spoliated, certain inferences about the occurrences may be 

drawn. “While this rule [inference that the production of evidence would be against the interest of 

the party which suppresses it] will not be carried to the extent of relieving a party of the burden of 

proving his case, it may be considered as a circumstance in drawing reasonable inferences from 

the facts established.” Porter v. Irvin’s Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1365 

(Ind. Ct. App. 1998) (internal citations omitted) (where the court permitted inferences made by an 

expert who relied on his experience to come to conclusions of what may have been the cause for 

the equipment failure and possible ways same could have been prevented where such inferences 

were arose out of spoliation of evidence by the opposing party in the case.). 

However, not only may inferences be made against the spoliator as to the missing evidence, 

and reasonable inferences may be drawn where the requirement to do so arose out of the spoliation 

of evidence, the spoliator is also prevented from benefitting from its own wrong and may be 

prohibited from objecting to inferences that were required to be drawn due to the spoliation of 

evidence. Id. (noting that if opposing counsel raises an evidentiary issue that would have been 

resolved had the evidence been available for the expert to examine, such inference would conclude 

that it was not to the benefit of defendant.) 

IV. Defendant should be prevented from objecting to inferences made resulting from 

its own spoliation of evidence.

In its Order granting (in part) Plaintiff’s Motion for Sanctions, “the Court conclude[d] that 

Interstate committed spoliation in that parts of the warehouse that were under Interstate’s exclusive 

3 The legal background of spoliation of evidence and the possible repercussions have been fully briefed in Plaintiff’s 

Motion for Sanctions Based on Defendant’s Spoliation of Evidence (Dkts. 64, 65, 68) and this Court’s order granting 

(in part) Plaintiff’s motion (Dkt. 75). 

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control were ultimately rendered unavailable for a complete and thorough inspection by Aspen 

American’s expert [...] The Court will [] impose one of the sanctions requested by Aspen 

American, which is that the jury be informed of Interstate’s destruction of evidence and instructed 

that it can draw a negative inference from the destruction of evidence. [...] The jury will be 

permitted to hear and consider evidence from both parties about Interstate’s failure to preserve the 

structural components (or make them available for inspection) and how and to what degree Aspen 

American was prejudiced by Interstate’s action in that regard. The Court reserves the right to alter 

the wording to, and supplement, the preliminary and final jury instruction and to impose other 

spoliation before or during trial, if appropriate” (Dkt. 75; 18-19). This not only permits the jury to 

infer that the spoliated evidence is unfavorable to Defendant, but also allows for further sanctions 

to be imposed by this Court. Preventing Defendant’s counsel from objecting to expert testimony 

and reports on foundational grounds is an additional sanction that is not only appropriate, but 

necessary to ensure that Plaintiff is afforded the opportunity to present its case as it would have 

but for the sanctioned conduct of Defendant. 

As noted above, expert testimony under Rule 702 must be reliable. Experts may rely on a 

scientific method for their testimony, but they may also rely on their experience or their skills. 

Plaintiff’s experts, Mr. James Goes and Mr. Jeremy Swenson (the “Experts”), were forced to make 

inferences in their expert reports as to the cause and origin of the roof collapse of the Warehouse. 

Had Defendants not spoliated the relevant evidence, such inferences would not have been 

necessary. 

Defendants cannot destroy evidence necessary to Plaintiff’s case and then benefit from its 

wrongdoing. The preliminary and final jury instruction as the Court provides in its previous Order

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will guard against the argument Defendants would otherwise make that the destroyed evidence

was not relevant or did not show Defendants’ gross negligence. 

As the manager of the course of this trial, this Court is afforded broad discretion in 

providing relief to a party based on its motions in limine. This Court is also afforded broad 

discretion as to the sanctions and other repercussions imposed on a party found to have spoliated 

evidence. It is therefore well within this Court’s authority to ensure that Defendant in no way 

benefits from its spoliation of evidence by way of making foundational objections to expert 

testimony and expert reports put forth by the Plaintiff. 

Defendant should be prohibited from making such objections where the cause of any lack 

of foundation or required speculation or inferences was Defendant’s own spoliation of evidence. 

The negative inferences that a jury may draw from the lack of evidence is of little service to 

Plaintiff if its Experts may not testify to it. 

CONCLUSION

Defendant prevented Plaintiff from examining the Warehouse. The Court found that 

Defendant spoliated evidence when it removed the Warehouse and prevented any inspection by 

the Plaintiff or any of its witnesses/experts. Defendant should therefore not be able to benefit from 

their own wrongdoing by being able to object to expert testimony and expert reports which had to 

rely on inference due to the spoliation of evidence by Defendant. 

For all the foregoing reasons, Plaintiff respectfully requests that this Court enter an Order 

that prevents Defendant from objecting to inferences drawn by the Experts based upon spoliated 

evidence caused by Defendant, for an order permitting witnesses to testify about spoliated 

evidence, and for any further relief this Court deems just. 

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Dated: March 1, 2021 

Respectfully submitted, 

/s Timothy S. McGovern

Timothy S. McGovern 

ZEILER FLOYD ZADKOVICH (US) LLP

500 West Madison Street, 10th Floor 

Chicago, Illinois 60661 

tim.mcgovern@zeilerfloydzad.com

(312) 545 4994 

Attorneys for Plaintiff 

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CERTIFICATE OF SERVICE

I hereby certify that on March 1, 2021 the foregoing was filed using the CM/ECF system 

and served via such system upon all interested parties. 

/s Timothy S. McGovern

Timothy S. McGovern 

ZEILER FLOYD ZADKOVICH (US) LLP

500 West Madison Street, 10th Floor 

Chicago, Illinois 60661 

tim.mcgovern@zeilerfloydzad.com

(312) 545 4994 

Attorneys for Plaintiff

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