Rogers v. South Star Logistics, Inc., et al.

Filing 77

ORDER directing as follows: (1) The Defendants' first Motion in Limine (Doc. # 40 ) is GRANTED, as further set out; (2) The Defendants' third Motion in Limine (Doc. # 42 ) is DENIED as moot; (3) The Defendants' sixth Motion in Limine (Doc. # 46 ) is DENIED, as further set out; (4) The Defendants' seventh Motion in Limine (Doc. # 47 ) is GRANTED to the extent that the records of Dr. Waldrop and Dr. Bernard will be excluded, along with any testimony by the Plaintiffs about their doctors' statements to the Plaintiffs; and DENIED to the extent that the Plaintiffs may testify about their own experiences and symptoms; (5) The Defendants' second Objection to the Witness List (Doc. # 43 ) is SUSTAINED as to Jimmie Rogers, Jr.. Signed by Honorable Judge W. Harold Albritton, III on May 28, 2015. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

JIMMIE ROGERS and
ROBERT ROGERS,
Plaintiffs,
v.

SOUTH STAR LOGISTICS, INC.
and GILL SINGH,
Defendants.

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CASE NO. 3:14-CV-179-WHA-WC
(WO)

ORDER
This cause is before the court on four of the Defendants’ Motions in Limine (Docs. # 40,
42, 46, 47) and Objections to the Witness List (Doc. # 43). Also before the court are the
Plaintiffs’ Responses to the motions (Docs. # 60, 62, 64, 65). Because one of the Defendants’
Objections to the Plaintiffs’ Witness List is directly related to one of these Motions in Limine,
the court will dispose of it based upon the discussion of the Motion in Limine.
Motions in Limine not addressed in this Order will be disposed of by a later Order.
1. Motion to Exclude Jimmie Rogers, Jr. as a Witness
In the Defendants’ first Motion in Limine (Doc. # 40), they move to prevent Plaintiffs’
witness Jimmie Rogers, Jr. from testifying on the grounds that the Plaintiffs “failed to disclose
him on their Initial Disclosures, in their Interrogatory Responses, and failed to disclose him as a
potential witness in a timely manner.” (Doc. # 40 at 1–2.) According to the Defendants, the first
time the Plaintiffs disclosed Jimmie Rogers, Jr. as a witness was May 4, 2015, and the
Defendants were not able to depose him before the discovery deadline.
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In response, the Plaintiffs contend that Jimmie Rogers, Jr.’s name “came to light during
the Plaintiffs’ deposition on March 31, 2015,” and he is therefore “not a surprise witness.” (Doc.
# 60 at 1.) The Plaintiffs further assert that his testimony “would simply confirm and bolster the
testimony of both Robert Rogers and Jimmie Rogers, Sr.” (Id.)
The parties agree that Jimmie Rogers, Jr. was not disclosed as a witness until May 4,
2015, one week before the discovery deadline in this case. The Plaintiffs maintain he is not a
surprise witness because his name “came to light” on March 31, 2015. A person being
mentioned in a deposition is not adequate notice to opposing counsel that the person will be used
as a witness at trial. The Plaintiffs could have supplemented their disclosures following the
deposition on March 31, 2015, in order to disclose that they considered Jimmie Rogers, Jr. to be
a potential witness. The Plaintiffs have not shown any good cause for their failure to do so
before May 4, 2015. For these reasons, the court finds the Defendants’ first Motion in Limine is
due to be GRANTED to the extent that Jimmie Rogers, Jr. will be precluded from testifying at
trial.
2. Motion to Exclude Evidence of Defendant Gill’s Immigration Status
In the Defendants’ third Motion in Limine (Doc. # 42), they move to exclude any
discussion or evidence of Mr. Gill’s immigration status.1 The Defendants argue that any mention
of Mr. Gill’s immigration status “is irrelevant, prejudicial, and is only an attempt to appeal to the
jury’s potential bias regarding immigrants.” (Doc. # 42 at 1.) In response, the Plaintiffs have
withdrawn their Exhibits 2 and 3, both of which related to the Defendant’s immigration status
and were referenced in the Defendants’ Motion in Limine. Because the Plaintiffs have
withdrawn this evidence, the Defendants’ third Motion in Limine is due to be DENIED as moot.

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Mr. Gill is legally in the United States on a work visa. (Doc. # 42 at 1.)

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3. Motion to Exclude Evidence Related to the Plaintiffs’ Wantonness Claim
In the Defendants’ sixth Motion in Limine (Doc. # 46), they ask the court to preclude any
mention of, reference to, or evidence of the Plaintiffs’ wantonness claim and related request for
punitive damages. They claim there is simply no evidence capable of establishing wantonness or
a basis for punitive damages, relying heavily on case law including Ex parte Essary, 992 So. 2d
5 (Ala. 2007), in which the Alabama Supreme Court affirmed the trial court’s decision to grant
summary judgment to the defendant in the case.
In response, the Plaintiffs argue that the motion in limine is really a motion for summary
judgment as it asks the court to “rule on specific claims in an untimely manner without proper
evidence to support a motion for summary judgment.” (Doc. # 62 at 2 ¶ 4.) The Plaintiffs also
point out that the deadline for dispositive motions in this case was March 17, 2015.
The Essary decision, from which the Defendants glean the bulk of their argument on this
Motion in Limine, reviewed a trial court’s order granting summary judgment to the defendant in
that case. Thus, that decision assessed the case below at a different procedural stage. This
Motion in Limine is not addressed to any specific evidence the Plaintiff has identified, but rather
claims there is not sufficient evidence to sustain the wantonness claim and request for punitive
damages as a matter of law. The court agrees with the Plaintiffs that a Motion in Limine is not
the proper mechanism by which to contest the legal sufficiency of the evidence. The Defendants
have not made any arguments based on the Federal Rules of Evidence in supporting the motion.
The court finds that the deadline for dispositive motions has passed, and that at this stage of the
case, it would not be appropriate to enter an order excluding any evidence of wantonness or
evidence meant to establish a basis for punitive damages. Defendants will be free to make an

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appropriate motion at the conclusion of the evidence. Therefore, this Motion in Limine is due to
be DENIED.
4. Motion to Exclude Medical Testimony
In the Defendants’ seventh Motion in Limine (Doc. # 47), they move to exclude: 1)
treatment, diagnoses, medical records, or recommendations by Dr. Waldrop or Dr. Bernard; and
2) testimony by the Plaintiffs as to their own medical conditions. As to Dr. Waldrop and Dr.
Bernard, the Defendants argue that in his deposition, Dr. Rehak had not reviewed the treatment
that Dr. Waldrop or Dr. Bernard performed on Plaintiff Robert Rogers. Neither Dr. Waldrop nor
Dr. Bernard has been deposed. The Defendants assert that without expert testimony, the
Plaintiffs cannot prove medical expenses or causation as to the treatment by Dr. Waldrop and Dr.
Bernard. As to testimony by the Plaintiffs about their own medical conditions, the Defendants
argue that under Alabama law, “statements made by a doctor are inadmissible hearsay,” even if
statements made for the purposes of medical diagnosis or treatment are subject to a hearsay
exception under Fed. R. Evid. 803(4). (Doc. # 47 at 2–3.) The Plaintiffs assert that under Rule
803(4), the declarant is assumed to be the patient, not the doctor.
In response, the Plaintiffs concede the first part of the Motion in Limine, stating that Dr.
Waldrop and Dr. Bernard’s records should be excluded. As to the second part of the motion, the
Plaintiffs argue that “to prohibit the Plaintiff Robert Rogers from testifying to his own injuries,
physical pain, and medical condition would be prejudicial.” (Doc. # 64 at 1.) The court finds
that such testimony by either Plaintiff, as to his own injuries and physical pain, would not be
hearsay. This is consistent with the Defendants’ argument that for the purposes of Rule 803(4),
the declarant is the patient. Statements related to the Plaintiffs’ injuries would only be hearsay if
they were diagnoses communicated by a physician to either Plaintiff. To the extent the declarant

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is one of the physicians, the Plaintiffs cannot testify as to the diagnoses. To the extent the
Plaintiffs will testify about their own experiences and symptoms, there is no issue of hearsay.
Therefore, this Motion in Limine is due to be GRANTED to the extent that the records of Dr.
Waldrop and Dr. Bernard will be excluded, along with any testimony by the Plaintiffs about their
doctors’ diagnoses; and DENIED to the extent that the Plaintiffs may testify about their own
experiences and symptoms.
CONCLUSION
For the reasons discussed, it is hereby ORDERED as follows:
1. The Defendants’ first Motion in Limine (Doc. # 40) is GRANTED. Jimmie Rogers, Jr.
will not be permitted to testify.
2. The Defendants’ third Motion in Limine (Doc. # 42) is DENIED as moot.
3. The Defendants’ sixth Motion in Limine (Doc. # 46) is DENIED, and the Plaintiffs will
be permitted to offer evidence on their wantonness claim.
4. The Defendants’ seventh Motion in Limine (Doc. # 47) is GRANTED to the extent that
the records of Dr. Waldrop and Dr. Bernard will be excluded, along with any testimony
by the Plaintiffs about their doctors’ statements to the Plaintiffs; and DENIED to the
extent that the Plaintiffs may testify about their own experiences and symptoms.
5. The Defendants’ second Objection to the Witness List (Doc. # 43) is SUSTAINED as to
Jimmie Rogers, Jr.
DONE this 28th day of May, 2015.

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

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