Howard v. Nucor-Yamato Steel Company et al
ORDER granting in part and denying in part 16 Motion in Limine; granting in part and denying in part 18 Motion in Limine; denying 19 Motion in Limine; and granting in part and denying in part 21 Motion in Limine. Signed by Judge J. Leon Holmes on 9/24/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT C. HOWARD
No. 3:14CV00202 JLH
NUCOR-YAMATO STEEL COMPANY;
and JOHN DOES 1-10
Robert C. Howard was a truck driver who was injured at a Nucor facility while loading a
large piece of heavy equipment onto a flatbed trailer, which he was to transport to another location.
Howard alleges that Nucor’s overhead crane struck dunnage that he was attempting to position on
the trailer, which caused him to fall from the trailer and suffer injuries. Nucor denies that the crane
struck the dunnage and contends that Howard fell due to his own negligence.
Howard has several preexisting conditions as a result of which he takes several medications,
including Lortab, Neurontin, Tramadol, Sulfasalazine, and Cymbalta. On the day of the injury, he
took his medications at 4:00 a.m., which was approximately ten and one-half hours before the
accident that resulted in his injuries. Because of his preexisting conditions, Howard was receiving
Social Security disability benefits at the time of the injury, although, he says, the wages he earned
while driving a truck were disclosed to the Social Security Administration and his income did not
exceed the maximum amount a person receiving disability benefits may earn before becoming
disqualified for those benefits.
Both parties have filed motions in limine.
Howard’s first motion in limine relates to the medications that he takes. The motion has four
parts. Howard first requests the Court to prohibit defense counsel from suggesting that he was
impaired or intoxicated as a result of having taking Lortab because, he says, there is no evidence that
he was impaired or intoxicated. Second, he requests the Court to prohibit defense counsel from
suggesting that Howard’s prescription for Lortab disqualifies him from being eligible for a
commercial driver’s license. Third, he requests that the Court prohibit defense counsel from
describing Neurontin as an anti-seizure medicine because there is no evidence that he has a seizure
disorder. Rather, Neurontin is prescribed to him for being associated with Crohn’s Disease,
rheumatoid arthritis, and a total hip replacement surgery. Fourth, Howard requests that the Court
prohibit defense counsel from describing Cymbalta, Tramadol, and Sulfasalazine as pain
medications because none of them is a narcotic drug.
Because he seeks damages for personal injury, including damages for medical expenses and
pain and suffering, Howard has placed his medical condition in issue. Consequently, all of his
medical conditions and the treatment for them will be appropriate subjects for evidence to be
presented to the jury. The jury will receive evidence regarding all of the medications that Howard
was taking at the time of the accident. The jury will be permitted to consider all of the evidence,
including the testimony of Drs. Stodghill and Day,1 regarding the medications that Howard was
taking and draw its own conclusion as to whether he was impaired at the time of the accident. The
Court will not prohibit Nucor from developing the evidence on that issue nor from making
arguments regarding the import of that evidence to the jury. Howard’s motion in limine requesting
that the Court prohibit Nucor from litigating the issue of whether he was intoxicated or impaired is
The questions on this topic asked by defense counsel during the depositions of these
physicians are appropriate cross-examination and may be used at trial.
As noted, Howard requests the Court to prohibit Nucor from referencing or suggesting that
his prescription for Lortab disqualified him from eligibility for a commercial driver’s license. That
portion of the motion is granted. It is apparently undisputed that Howard had a commercial driver’s
license, which means that he passed the physical examination and satisfied the other criteria for the
issuance of such a license.2 Whether the license should have been issued is not an issue that this jury
will resolve, and any evidence on the question of whether the commercial driver’s license was
erroneously issued would be irrelevant and unfairly prejudicial.3
Howard next requests the Court to prohibit Nucor from describing Neurontin as an antiseizure medicine. Neurontin is an anti-seizure medicine, but there is no evidence that Howard has
a seizure disorder, and apparently the Neurontin is prescribed for him to treat other conditions. In
the absence of evidence that Neurontin is prescribed for Howard as treatment for a seizure disorder,
Nucor will be prohibited from describing Neurontin to the jury as an anti-seizure medicine.
Howard also requests the Court to prohibit defense counsel from describing Cymbalta,
Tramadol, and Sulfasalazine as pain medicines because none of them contain any narcotics. They
are, however, admittedly prescribed for Howard to treat pain, so identifying them as pain
medications is not misleading or unfairly prejudicial. That portion of the motion in limine is denied.
Howard disclosed his Lortab prescription on the physical examination reports for
commercial driver fitness determination. Document #16-3 at 2 and 6.
In its response, Nucor cites several provisions of the Code of Federal Regulations that it
intends to argue were violated by Howard on the date in question, including 49 C.F.R. § 392.4(a),
which provides that no driver shall be on duty under the influence of or using any narcotic drug.
Howard has not moved in limine with respect to those regulations, so those are not addressed in this
Howard’s first motion in limine regarding evidence of medications is GRANTED IN PART
and DENIED IN PART. Document #16.
In a related motion in limine, Nucor requests the Court to take judicial notice of the
Physician’s Desk Reference as an authoritative work. Federal Rule of Evidence 803(18) provides
that a statement contained in a treatise is not excluded from evidence by virtue of the hearsay rule
if the statement is called to the attention of an expert witness on cross-examination or relied on by
the expert on direct examination and the publication is established as a reliable authority by the
expert’s admission or testimony, by another expert’s testimony, or by judicial notice. Nucor wishes
to read to the jury portions of the Physician’s Desk Reference that describe the potential side effects
of the medications that Howard was taking. Nucor says that the jury can consider these potential
side effects as evidence that Howard made a misstep and fell from the trailer on his own. While the
Court can take judicial notice that the Physician’s Desk Reference is an authoritative treatise, that
does not end the inquiry as to whether Nucor should be permitted to read portions of the Physician’s
Desk Reference describing medication side effects to the jury. The evidence must also be relevant
under Rule 401 and pass muster under Rule 403. In this instance, the evidence also must satisfy
Rule 702 because Nucor seeks to introduce statements from the Physician’s Desk Reference as
expert testimony. An expert witness could testify regarding the potential side effects of the
medications and answer questions, on direct or cross-examination, regarding the percentage of the
persons who suffered those side effects after taking the medications, the dosage required to cause
the potential side effects, and the length of time after consumption that the medication continues to
have an effect on the body. In the absence of testimony on these issues, the potential unfair
prejudice from reading the list of potential side effects substantially outweighs the probative value
of the information, and the information would not assist the jury in determining whether Howard
was actually intoxicated or impaired at the time of the accident. Nucor’s motion in limine requesting
that the Court take judicial notice of the Physician’s Desk Reference is DENIED. Document #19.
Howard’s second motion in limine has several parts, the most important of which is a request
that the Court exclude from evidence the fact that he was receiving Social Security disability
payments. That portion of the motion is granted. Whether Howard was receiving Social Security
disability benefits at the time of the accident is irrelevant and unfairly prejudicial. Howard’s
physical conditions that gave rise to the award of disability benefits are relevant and, as noted above,
evidence regarding all of his ailments will be received. That the Social Security Administration
determined Howard to be under a disability as that term is defined in the Social Security disability
laws adds nothing to the medical records upon which that determination is based. Submitting
evidence that Howard receives Social Security disability benefits would create a danger of unfair
prejudice that would substantially outweigh any probative value that the evidence might have.
Other than the issue with respect to Social Security disability, there is very little in Howard’s
second motion in limine that is contested. Nucor will not present evidence regarding his marital
history or that workers’ compensation or other collateral paid any of Howard’s damages. Howard
also requests that the Court prohibit Nucor from mentioning medical records that were not disclosed
in accordance with Ark. Code Ann. § 16-46-403 or any document that was not exchanged during
discovery. The Court will reserve ruling on any such issue unless and until it arises at trial.
Howard’s second motion in limine is GRANTED IN PART and DENIED IN PART.
Nucor has filed a motion in limine requesting the Court to exclude certain items of evidence
listed in Howard’s pretrial disclosure sheet. The first issue regards the personnel file of Scott Norris,
who was operating the crane at the time of the accident. Nucor contends that Norris’s personnel file
is irrelevant to this action and any information in it would be unfairly prejudicial. Howard says that
he intends to use the personnel file solely for the purpose of establishing that Norris received
training that would have prevented the accident. Howard will be permitted to question Norris
regarding his training, and, if he denies attending the training that is reflected in his personnel file,
Howard may impeach him with the personnel file and offer those portions of the personnel file into
evidence. Howard may not refer to any other portion of Norris’s personnel file without first
notifying opposing counsel and, if there is a disagreement, seeking a ruling from the Court.
Nucor next moves in limine to exclude the maintenance records of remote-operated cranes.
Howard says he intends to use maintenance records to establish that the crane at issue here had
communication issues between the remote and the crane and was repaired four months prior to the
incident. That portion of the maintenance records is relevant and will be admitted. Otherwise,
Howard may not refer to any portion of the maintenance records of the cranes without first notifying
opposing counsel and, if there is a disagreement, seeking a ruling from the Court.
Nucor next moves to exclude evidence of other incident reports. Howard says that he will
use them to show that Nucor required drivers to secure their own loads on their trailers and will use
the other incident reports only if Nucor suggests that Howard should have been in his cab at the time
of the loading of the equipment in this case. The other incident reports will not be received into
evidence unless Nucor opens the door.
Nucor next moves in limine to exclude job safety analysis sheets on the ground that those
sheets involve discussion of subsequent remedial measures and therefore should be excluded under
Rule 407. Howard responds that the incident report can be used for impeachment purposes even
under Rule 407. Specifically, Howard points to a statement in the report referring to the fact that
Howard was not wearing a reflective vest. The incident report was prepared by someone at Nucor
after the incident occurred. The report has a space for causes or contributing factors. In that space,
the words “didn’t have reflective vest” are written. The recommendations to prevent reoccurrence
of the incident appear on a later page of the document. Wearing reflective vests is not one of the
recommendations to prevent reoccurrence. The recommendations to prevent reoccurrence are not
admissible under Rule 407. The statement in the incident report, “didn’t have reflective vest,” is not
one of the subsequent remedial measures and is not excluded under Rule 407.
Nucor has a separate section in its motion in limine seeking to exclude incident reports from
forklifts and cranes. Again, Howard says that he would offer such incident reports only for
impeachment purposes if Nucor denies that truck drivers are responsible for securing the loads. If
Nucor denies that truck drivers are responsible for securing the loads, the reports will be received
for impeachment purposes. Otherwise, they will be excluded from evidence.
Nucor also seeks to exclude internal safety guides, courses and manuals on the grounds that
those are not relevant under Rule 401 and should be excluded under Rule 403. Howard responds
that the policies and procedures confirm that a crane operator should keep his eyes on the truck
driver at all times and should stop operating the crane whenever a truck driver climbs on the trailer.
He also contends that these policies and procedures were violated on the day in question, which led
to his injuries. The safety recommendations, courses and manuals will be received solely for the
purpose of establishing that Nucor’s policies and procedures require a crane operator to keep his
eyes on the truck driver at all times and to stop operating the crane whenever a truck driver climbs
on the trailer. Otherwise, they will be excluded.
Finally, Nucor seeks to exclude answers to interrogatories and responses to requests for
admission. Howard says that he does not intend to offer them unless a Nucor witness testifies
inconsistently during trial. At this point, there seems to be no issue with respect to Nucor’s
discovery responses, so the Court will not rule at this time.
Nucor’s second motion in limine to exclude certain evidence in plaintiff’s pretrial
information sheet is GRANTED IN PART and DENIED IN PART. Document #21.
IT IS SO ORDERED this 24th day of September, 2015.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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