McCorvey v. Alabama River Cellulose LLC et al

Filing 177

ORDER re: 149 Motion in Limine. The motion is denied as moot as to the McCollum incident and denied as to the Safe Shed. Signed by Chief Judge William H. Steele on 11/3/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID EARL MCCORVEY, JR.,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 13-0118-WS-N
)
ALABAMA RIVER CELLULOSE, LLC, )
et al.,
)
)
Defendants.
)
ORDER
This matter is before the Court on the defendant’s motion in limine to
exclude testimony regarding the safe shed and the McCollum incident. (Doc.
149). The parties have filed briefs and evidentiary materials in support of their
respective positions, (Docs. 150, 174), and the motion is ripe for resolution.
I. McCollum Incident.
The “McCollum incident” addresses events of February 17, 2011. (Doc.
120-9 at 37). The plaintiff agrees not to present testimony or other evidence about
the McCollum incident unless the defendant opens the door by suggesting it is
impossible for a log to fall from the Powerfeed in such a manner as to hit a log
truck on the unloading pad. (Doc. 174 at 1-2). Accordingly, this portion of the
motion in limine is denied as moot.
II. Safe Shed.
There is evidence that the defendant required drivers such as the plaintiff to
leave their trucks and enter a “safe shed,” and there is evidence that the plaintiff
was in the process of doing so when he was struck by a log ejected from the
Powerfeed. There is also evidence that, after the McCollum incident (which post-

dates the plaintiff’s incident), the safe shed was moved to a location more remote
from the Powerfeed. The defendant argues that evidence regarding the “location
and relocation” of the safe shed is irrelevant and that evidence of its relocation is
inadmissible as a subsequent remedial measure. (Doc. 150 at 2, 5-6).
The plaintiff responds that evidence of the safe shed’s location at the time
of his incident is relevant because it helps explain why he was where he was at the
time of the incident. (Doc. 174 at 2-3). The Court agrees.
“When measures are taken that would have made an earlier injury or harm
less likely to occur, evidence of the subsequent measures is not admissible to
prove” negligence, culpable conduct, defect in a product or its design, or the need
for a warning or instruction. Fed. R. Evid. 407. “But the court may admit this
evidence for another purpose, such as impeachment or – if disputed – proving
ownership, control, or the feasibility of precautionary measures.” Id.
As the plaintiff notes, (Doc. 174 at 4-5), the defendant has not attempted to
show, or even to assert, that his injury would have been less likely to occur had the
safe shed been in its current location. Without showing that Rule 407 applies, the
defendant cannot obtain relief.
The plaintiff continues that, even if Rule 407 applies, he may introduce
visual evidence of the property that depicts the current location of the safe shed,
because he offers the evidence “for another purpose,” specifically, to orient the
jury to the condition and configuration of the scene; to show where he and his
truck were in relation to the Powerfeed; to show where he was headed (and thus
why he was where he was when he was struck); and to show (from the video) a
log being ejected from the Powerfeed. (Doc. 174 at 5-7). The Court agrees that
use of the evidence for these purposes does not offend Rule 407 even were the
defendant to establish the rule’s applicability.
The plaintiff denies any purpose of pointing out to the jury from the visual
evidence that the safe shed had been moved after his incident. (Doc. 174 at 6).
Nevertheless, the plaintiff claims he is entitled to present other, unidentified
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evidence regarding the movement of the safe shed in order to “show the feasibility
that the Safe Shed could have been located away from the Powerfeed.” (Id. at 67). If Rule 407 applies, however, feasibility of precautionary measures is a proper
purpose for introducing evidence of subsequent remedial measures only if such
feasibility is disputed by the defendant, and there is no suggestion that the
defendant denies the safe shed could have been relocated earlier.
For the reasons set forth above, the defendant’s motion in limine as to the
safe shed is denied.1
DONE and ORDERED this 3rd day of November, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

The plaintiff has identified excerpts from McCollum’s video deposition for use
at trial, (Doc. 160 at 1-2), to which the defendant has objected. (Doc. 168). If the
Court’s ruling herein, and/or the plaintiff’s decision not to address the McCollum
incident, do not moot all the defendant’s objections, the parties are ordered to file, on or
before November 4, 2014, a joint list of remaining objections, along with a copy of the
deposition pages necessary to resolve those objections. If McCollum’s deposition will no
longer be presented by video, the parties are ordered to file a joint statement to that
effect, which will obviate pre-trial ruling on the objections.
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