Trinidad v. Moore et al

Filing 175

MEMORANDUM OPINION AND ORDER: This cause is before the court on the Defendants Objections to Plaintiffs Amended Exhibit List (Defendants Objections) (Doc. 107 ). Plaintiff, Jose A. Trinidad, filed an Exhibit List (Doc. 70 ) on August 15, 2016, to w hich Defendants, Daniel Joe Moore and RDB Trucking, LLC, timely objected (Doc. 88 ). However, due to a lack of specificity in identifying their exhibits, the court ordered the parties to file Amended Exhibit Lists by 9/12/2016 and to file objections to any newly-identified exhibits by 9/19/2016 (Doc. 76 ). Pursuant to the courts order, Plaintiff filed a First Amended Exhibit List (Doc. 82 ), and Defendants filed these Objections (Doc. 107 ). For reasons discussed below, Defendants Objections are due to be SUSTAINED in part and OVERRULED. It is hereby ORDERED that Defendants' Objections are SUSTAINED in part and OVERRULED in part as further set out in the opinion and order. Signed by Honorable Judge W. Harold Albritton, III on 12/22/2016. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOSE A. TRINIDAD
Plaintiff,
v.
DANIEL JOE MOORE, JR., and RDB
TRUCKING, LLC,
Defendants.

)
)
)
) CIVIL ACTION NO.: 2:15CV323-WHA
) (WO)
)
)
)
)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on the Defendants’ Objections to Plaintiff’s Amended
Exhibit List (“Defendants’ Objections”) (Doc. # 107). Plaintiff, Jose A. Trinidad, filed an Exhibit
List (Doc. # 70) on August 15, 2016, to which Defendants, Daniel Joe Moore and RDB
Trucking, LLC, timely objected (Doc. # 88). However, due to a lack of specificity in identifying
their exhibits, the court ordered the parties to file Amended Exhibit Lists by September 12, 2016
and to file objections to any newly-identified exhibits by September 19, 2016 (Doc. # 76).
Pursuant to the court’s order, Plaintiff filed a First Amended Exhibit List (Doc. # 82), and
Defendants filed these Objections (Doc. # 107).1 For reasons discussed below, Defendants’
Objections are due to be SUSTAINED in part and OVERRULED in part.

Instead of merely filing objections to any newly-identified exhibits in Defendants’ Objections
to Plaintiff’s Amended Exhibit List (Doc. # 107), as ordered by the court (Doc. # 76)—yet
perhaps out of an abundance of caution—Defendants re-filed all of their initial objections
alongside their additional objections to Plaintiff’s newly-identified exhibits. As such, it appears
to the court that Defendants’ Objections to Plaintiff’s Amended Exhibit List (Doc. # 107) take
the place of Defendants’ [initial] Objections to Plaintiff’s Exhibit List (Doc. # 88). Likewise,
Plaintiff’s Response to Defendants’ Objections to Plaintiff’s Amended Exhibit List (Doc. # 149)
takes the place of Plaintiff’s Response to Defendants’ Objections to Plaintiff’s Exhibit List (Doc.
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II. DISCUSSION
Plaintiff’s First Amended Exhibit list contains a list of eighty-six (86) exhibits (Doc. #
82). Defendant objected to sixty-seven (67) of them (Doc. # 107). Though Plaintiff responds to
some of Defendants’ Objections, Plaintiff concedes thirty-two (32) of them, leaving thirty-five
(35) objections to be decided by the court. The court will address the objections Plaintiff has
conceded first and then will turn to the remainder of Defendants’ Objections.
1. Conceded Objections – Plaintiff’s Exhibits No.’s 5, 9, 11, 12, 13, 18, 19, 21, 22, 24,
26, 27, 29, 30, 42, 53, 54, 57, 62, 63, 64, 65, 66, 67, 73, 74, 77,79, 80, 81, 83, 85
First, Plaintiff failed to respond to some of Defendants’ Objections or responded that
Plaintiff “will not offer [said Exhibit]” for Defendants’ Objections to Plaintiff’s Amended
Exhibit List No.’s 5, 9, 11–13, 18–19, 21–22, 24, 26–27, 29–30, 53–54, 57, 62–67, 73–74, 77,
79–81, 83, 85. Accordingly, Plaintiff concedes these objections. Thus, Defendants’ Objections as
to these exhibits are due to be sustained and these exhibits will not be admitted.
2. Plaintiff’s Exhibit No. 3
Defendants object to Plaintiff’s Exhibit No. 3, labeled Police Report, citing Ala. Code §
32-10-11, hearsay, improper lay opinion, Rule 403, and relevance as bases for their objection.
Plaintiff responds by reference to its Response to Defendant’s Motion in Limine # 6, in which
the Plaintiff argued that the same “report is admissible as impeachment evidence because it
contains witness testimony for witnesses who may be called at trial.” (Doc. # 122, p. 1).
Since the court has already denied Defendants’ Motion in Limine # 6 (Doc. # 95) as to
the same evidence so long as it is used for impeachment purposes as a prior inconsistent

# 129). Accordingly, Defendants’ [initial] Objections to Plaintiff’s Exhibit List (Doc. # 88) are
due to be OVERRULED as moot.
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statement (Doc. # 138, p. 3), to the extent Plaintiff seeks to offer the police report for purposes
other than impeachment, the court will sustain the objection.
However, because Plaintiff did not attach the Police Report to its Response to
Defendants’ Motion in Limine # 6, the court withheld ruling on the admissibility of it under Rule
403 of the Federal Rules of Evidence. Now, after having viewed the report, the court finds that
the Defendants’ Objection is due to be sustained as to the entire document being admitted, but if
the Plaintiff wishes to offer a redacted copy of the report for the sole purpose of impeachment
the offer must first be taken up outside the presence of the jury.
3. Plaintiff’s Exhibit No. 4
Defendants object to Plaintiff’s Exhibit No. 4, which consist of Defendant Moore’s
driver’s logs. Defendants claim that Moore’s driver’s logs are irrelevant. Plaintiff argues that
Moore’s driver’s logs are “relevant to potential fatigue as shown by poor decisions and lack of
adequate logs as testified to by R. Brock during his deposition.” (Doc. 149, p. 1). Rule 401 of the
Federal Rules of Evidence, which governs the test for relevant evidence, states that relevant
evidence is evidence that has any tendency of making a fact more or less probable than it would
be without the evidence; and (2) the fact is of consequence in determining the action. In this
case, Moore’s driver’s logs for the dates of October 13, 2014 and October 14, 2014, the date of
the accident, are relevant to show breach of the duty of care, an element of Plaintiff’s negligence
claim on the basis advanced by the Plaintiff. Questions concerning the weight to accord such
evidence are not for this court to make. See United States v. Goodman, 850 F.2d 1473, 1479
(11th Cir. 1988). Instead, the jury will have to decide whether evidence taken from Defendant
Moore’s driver’s log proves that he breached the standard of care for drivers in the tractor trailer

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industry. As such, Defendants’ objection to Plaintiff’s Exhibit No. 4 is overruled as to pages 1
and 2, but sustained as to the remainder.
4. Plaintiff’s Exhibits No.’s 6–8, 10, 14
Defendants object to seven (7) exhibits, including No.’s 6, 7, 8, 9, 10, 11, and 14, stating
they are “irrelevant because Moore’s agency has been stipulated to by RDB, thereby making the
negligent entrustment claim unnecessary” or, alternatively, that “the evidence identified here is
not relevant or material to how the accident made the basis of this lawsuit occurred or who
caused it” (Doc. # 107, p. 2, n.*). Moreover, Defendants argue that “[t]his evidence will serve
only to confuse and inflame the jury and will unduly prejudice the Defendants, as is explained in
the Motion to Bifurcate [Doc. # 75], which is adopted as if fully set forth herein, and which was
granted by the Order of the Court on September 16, 2016.”
As to Plaintiff’s Exhibit No. 6, entitled “Invoice & Bills of Lading,” Plaintiff responds
that he will only offer Plaintiff’s Exhibit No. 6 for rebuttal. However, because Plaintiff fails to
indicate the intended purpose for offering the Invoice & Bills of Lading, the court cannot rule on
their admissibility at this point. To the extent Plaintiff seeks to offer this evidence to prove
agency, however, it is inadmissible and Defendants’ objection is due to be sustained. Defendants
rightly point out in their objections that “Moore’s agency has been stipulated to by RDB” (Doc.
# 107, p. 1, n.*). However, to the extent it is offered for another purpose, Plaintiff must seek
approval outside the presence of the jury.
Plaintiff’s Exhibit No. 7 is a United States Department of Transportation Certificate.
Plaintiff responds to Defendants’ objection, saying it is “[r]elevant to negligent entrustment and
potential wantonness claim . . . .” (Doc. 149, p. 1). However, the copies of the exhibit attached to
Plaintiff’s Response (Doc. 149, Attachment 4, pp. 2–3) are completely illegible in the sense that

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the court cannot reasonably examine the Exhibits in the format in which they have been
presented. Therefore, the Objection to Exhibit 7 is due to be sustained, provisionally, and
Defendants, their counsel, and their witnesses are not to refer to this Exhibit unless and until their
admissibility has been taken up outside the presence of the jury.
Plaintiff responds to Defendants’ Objection to Plaintiff’s Exhibit No.’s 8 and 10, which
consist of Texas Commercial Vehicle Enforcement & Vehicle Reports (“Texas Reports”) and
Daniel Moore’s Personnel File, respectively, by referencing Plaintiff’s Response to Defendants’
Motions in Limine No.’s 2 (Doc. # 112) and 4 (Doc. # 113), in which Plaintiff argued that
Moore’s driving record and RDB’s safety policy violations were relevant to prove Moore’s
incompetence and RDB’s knowledge of Moore’s alleged incompetence. In response to those
Motions, the court explained that evidence of Moore’s driving record and RDB’s safety policy
violations are relevant to prove negligent entrustment. See Halford v. Alamo Rent-A-Car, LLC,
921 So. 2d 409, 417 (Ala. 2005) (“Evidence of [Plaintiff’s] driving record was highly relevant, if
not essential, to the plaintiff’s ability to show knowledge on the part of the corporate
defendants.”); see also Trinidad v. Moore, No. 2:15cv323-WHA, 2016 WL 4267951, at *4
(M.D. Ala. Aug. 11, 2016); (Doc. # 65, p. 7). Therefore, Defendants’ Objection to Plaintiff’s
Exhibit No. 8 and 10 are due to be overruled in accordance with this courts’ prior ruling, to the
extent that the Texas Reports are admissible, but only in the second trial to prove negligent
entrustment.
Plaintiff’s Exhibit No. 14 consists of “Accident Registries.” Plaintiff responds to
Defendants’ Objection to the Accident Registries by stating that it is relevant to Plaintiff’s
negligent entrustment claim and by referencing Plaintiff’s Response to Defendants’ Motion in
Limine # 13 to Exclude Evidence of a Clerical Mistake in RDB’s Accident Register (Doc. #

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126). In ruling on Defendants Motion in Limine # 13, the court has previously stated that the
question of whether RDB’s notation was a clerical mistake or an intentional alteration is one to
be decided by the jury. Accordingly, Defendants’ Objection with respect to Plaintiff’s Exhibit
No. 14 is due to be overruled to the extent that it may be admitted in the second trial.
5. Plaintiff’s Exhibits No.’s 15, 16, & 17
Defendants object to Plaintiff’s Exhibit No.’s 15–17, which consist of thirty-two (32)
pages of truck maintenance records, six (6) pages of truck inspection reports, and one hundred
fifty-one (151) pages of a Commercial Driver’s License Handbook. Defendants argue that these
exhibits are irrelevant or, otherwise, inadmissible under Federal Rule of Evidence 403, because
claims related to the maintenance of Moore’s vehicle were abandoned and have been dismissed.
Plaintiff responds that they “would only be offered in rebuttal.” (Doc. # 149, p. 2).
Defendants’ objection is due to be sustained. If Plaintiff desires to offer any of these
exhibits, Plaintiff must take the issue up with the court outside the presence of the jury.
6. Plaintiff’s Exhibits No.’s 20, 23, 25, 28, & 31
Plaintiff’s Exhibits No.’s 20, 23, 25, 28, and 31 consist of expert curricula vitae (CV) for
Plaintiff’s experts Paul Dillard, Gary Johnson, Sasha Iversen, Randy Salmons, and Ken McCoin
(“Expert CVs”). Defendants object to these Expert CVs, arguing that they are hearsay and
irrelevant (Doc. # 107, pp. 2–3). Plaintiff responds that these Expert CV’s are not offered to
prove the truth of the matter asserted; 2 however, again, Plaintiff does not advise the court as to
any purpose Plaintiff is offering its Expert CVs (Doc. # 149, p. 2). Nevertheless, by themselves,
Expert CVs are out of court statements offered to prove the truth of the matter asserted and,
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In addition, Plaintiff argues in response that if he is not allowed to offer his Expert CVs,
Defendants should not be allowed to offer their Expert CVs. The Plaintiff did not object to
Defendants’ Expert CVs and the court ordered them admitted without objection. However,
Plaintiff may offer these CVs at trial and, if Defendants still object, the court will also not admit
CVs of the Defendants’ experts.
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accordingly, fall within the definition of hearsay. See Fed. R. Evid. 802; Sheffield v. State Farm
Fire & Cas. Co., No. 5:14-CV-38, 2016 WL 3548550, at *8 (S.D. Ga. June 23, 2016). Thus,
Defendants’ Objections to Plaintiff’s Exhibits No.’s 20, 23, 25, 28, and 31 are due to be
sustained.
7. Plaintiff’s Exhibit No. 32
Defendants’ next object to Plaintiff’s Exhibit No. 32, which includes a record of
Trinidad’s past social security earnings. Defendants argue that this evidence is irrelevant and
improper under Rule 403 of the Federal Rules of Evidence. Plaintiff responds that this evidence
is relevant to its lost wage claim. The court agrees. The jury is entitled to a complete picture of
Plaintiff’s recent work history and earnings, including any Social Security benefits, to determine
the proper amount of lost wages damages. See Beck v. Jet Equip. & Tools, Inc., No. CIV. A. 991687, 2001 WL 515243, at *2 (E.D. La. May 14, 2001). Accordingly, Plaintiff’s Exhibit No. 32
is admissible for proving his lost wages and Defendants’ Objection is due to be overruled.
8. Plaintiff’s Exhibit No. 33
Plaintiff’s Exhibit No. 33 contains a Summary Table of Trinidad’s alleged medical
expenses (“Summary Table”). Defendants object, stating summarily, “Authenticity, Rule 403,
Hearsay, lack of showing that treatment is reasonable or necessary.” (Doc. # 107, p. 3). Plaintiff
responds that this Summary Table is proper under Rule 1006 as a summary of voluminous
records and that Plaintiff will offer evidence on necessity through Dr. Iversen and/or treating
physicians Dr. Do and Dr. Kotecha. (Doc. 149, p. 3). Rule 1006 of the Federal Rules of Evidence
provides in pertinent part that a “proponent may use a summary [or] chart . . . to prove the
content of voluminous writings . . . that cannot be conveniently examined in court.” After a
review of this exhibit, the court has determined that it does not fit the requirements of being so
voluminous, in addition to the fact that the underlying bills and proof that they are reasonable
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and necessary will be required. A chart, based on evidence admitted, may be used as a
demonstrative aid, but will not be admitted as an exhibit. As noted at the bottom of the proposed
exhibit, the court encourages the parties to agree on past medical expenses. Defendants’
objection to Plaintiff’s Exhibit No. 33 is hereby due to be sustained.
9. Plaintiff’s Exhibits No.’s 35, 37, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50
Defendants next object to a variety of Trinidad’s medical and billing records. Defendants
argue that Exhibits No.’s 35, 37–41, and 43–50 lack authenticity, are inadmissible under Rule
403, are hearsay, and lack a showing that treatment listed is reasonable or necessary. Plaintiff
responds summarily to all objections that such evidence is authenticated and not hearsay via
records affidavit. Further, Plaintiff claims that he, Dr. Iversen, Dr. Do, and/or Dr. Kotecha will
offer the requisite causation and necessity foundation with respect to these exhibits. The court
finds that these exhibits currently lack adequate foundation. However, because Plaintiff notes in
his Response to Defendants’ Objections that he intends to offer appropriate foundation,
Defendants’ Objections as to these medical and billings records are due to be sustained
provisionally, subject to proper foundation.
10. Plaintiff’s Exhibit No. 51
Defendants object to Plaintiff’s Exhibit No. 51, which consists of two hundred and thirtyfive (235) pages of answers to Plaintiff’s first set of requests for production of documents and
answers to Plaintiff’s first set of interrogatories. Defendants argue that these responses to
discovery requests contain irrelevant information, are hearsay, and improper under Rule 403.
Plaintiff responds that various responses to Plaintiff’s discovery requests are relevant and
admissible as party admissions under Rule 801 of the Federal Rules of Evidence.
Rule 801(d) excludes from the definition of hearsay:

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(1) A Declarant-Witness’s Prior Statement. The declarant
testifies and is subject to cross-examination about a prior
statement and,
(A) is consistent with the declarant’s testimony and was
given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is
offered:
(i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a
recent improper influence or motive in so
testifying; or
(ii) to rehabilitate a person as someone the declarant
perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered
against an opposing party and:
(A) was made by the party in an individual or representative
capacity;
(B) is one the party manifested that it adopted or believed to
be true;
(C) was made by a person whom the party authorized to
make a statement on the subject;
(D) was made by the party’s agent or employee on a matter
within the scope of that relationship and while it
existed; or
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
In this case, Ron Brock’s statements likely fall under one of these two exclusions to
hearsay. However, because the court is not advised as to which statement(s) to examine,
Defendants’ objection is due to be sustained. Plaintiff may not offer all of Defendants’ responses
to Plaintiff’s discovery requests into evidence. Such evidence is unduly cumulative and, if
presented in whole, likely to confuse the jury. See Fed. R. Evid. 403. To present particular
portions of this evidence, Plaintiff must first seek approval outside the presence of the jury and

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file a new exhibit specifically identifying the statements Plaintiff wishes to admit into evidence.
See (Doc. # 76) (requiring the parties to “more specifically identify their exhibits”).
11. Plaintiff’s Exhibits No.’s 58, 59, & 60
Defendants object to Plaintiff’s Exhibits No.’s 58–60, including: (No.’s 58 and 59)
FMCSA Accident Countermeasures for “Passing” and “Using and Changing Lanes,” which
appear to come from a Florida Highway Administration (FHWA) Commercial Vehicle
Preventable Accident Manual; and (No. 60) a Smith System Driver Guide. Defendants argue that
all three (3) of these exhibits lack proper foundation, are irrelevant, and are inadmissible under
Rule 403. Plaintiff argues that they fall within the learned treatise exception to hearsay and that
Plaintiff’s expert Paul Dillard will establish a proper foundation for admitting them into
evidence. See Fed. R. Evid. 803(18).
Rule 803 provides an exception for “Learned Treatises” to the rule against hearsay for “a
statement made in a treatise, periodical, or pamphlet if: (A) the statement is called to the
attention of an expert witness on cross-examination or relied on by the expert on direct
examination; and (B) the publication is established as a reliable authority by the expert’s
admission or testimony, by another expert’s testimony, or by judicial notice.” Id. Under these
circumstances, Defendants’ Objections are due to be sustained to the extent that an expert must
first establish a proper foundation for them to be admitted into evidence. However, “[i]f
admitted, the statement may be read into evidence but not received as an exhibit.” Id. Therefore,
if a proper foundation is laid by a witness, statements from the treatises may be read, but these
documents will not be admitted as exhibits.

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III. CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
1. Defendants’ Objections as to Plaintiff’s Exhibits No.’s 4 (pages 1 and 2), 8, 10, 14, & 32
are OVERRULED;
2. Defendants’ Objections with respect to Plaintiff’s Exhibits No.’s 3, 4 (pages 3, et seq.), 5,
9, 11, 12, 13, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 42, 53, 54, 57, 62,
63, 64, 65, 66, 67, 73, 74, 77,79, 80, 81, 83, & 85 are SUSTAINED;
3. Defendants’ Objections to Plaintiff’s Exhibits No.’s 6, 7, 15, 16, 17, & 51 are
SUSTAINED. Plaintiff may seek to offer said exhibits at trial by first taking up their
admissibility outside of the presence of the jury;
4. Defendants’ Objections to Plaintiff’s Exhibits No.’s 35, 37, 38, 39, 40, 41, 43, 44, 45, 46,
47, 48, 49, 50, 58, 59, & 60 are SUSTAINED subject to the Plaintiff laying proper
foundation at trial.

Done this 22nd day of December, 2016.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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