Blankenship v. USA Truck, Inc.
PRETRIAL ORDER denying 47 Blankenship's Motion in Limine and Protective Order; denying 49 USA's Motion to Exclude the testimony of George Byram and granting in part and denying in part 51 , as set out by the Court in the remainder of this Order. Signed by Honorable Paul K. Holmes, III on July 15, 2011. (sh)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
WILLIAM BLANKENSHIP, JR.
USA TRUCK, INC.
Before the Court are Plaintiff William Blankenship’s Motion in
Limine and Protective Order (Doc. 47), and Defendant USA Truck,
Inc.’s (“USA”) Motion to Exclude Testimony (Doc. 49) and Motion in
documents, responses and replies. The Court also held a pre-trial
conference on July 14, 2011 in which the parties were able to
record. This Order sets forth the Court’s rulings on the abovelisted motions. To the extent that this Order conflicts with any
oral pronouncement at the pre-trial conference, the findings in
this Order are the final and binding findings of the Court in the
current matter. The Court will address each Motion in turn.
I. Blankenship’s Motion in Limine and Protective Order (Doc. 47)
Concerning the testimony of Rodney Mills, Mr. Mills will be
allowed to testify as to his conversations with the Plaintiff
without waiving privilege, as those conversations would not be
subject to attorney-client or work product privilege. Similarly,
privilege was not generally waived by USA through the proper use of
an email to refresh a witness’ memory during deposition. However,
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Blankenship may renew his motion at that time, and the Court will
consider whether a finding of a general waiver is appropriate.
As to Tyler Higginbotham, the parties indicated that this is
a moot issue, as USA no longer intends to call Higginbotham at
trial. If USA calls Higginbotham, Blankenhship may renew his Motion
at that time. Blankenship’s Motion in Limine and Protective Order
II. USA’s Motion to Exclude Testimony
Concerning the testimony of George Byram, Byram’s testimony
will not be excluded at this time. As the underlying business
records in this case are voluminous, a summary of the relevant
objections be raised at trial, the Court will rule on Byram’s
qualifications as either a summary witness under Rule 1006 or as an
expert witness at that time. USA’s Motion to Exclude Testimony is,
III. USA’s Motion in Limine
canceled or breached agreements with any other agent or broker;
make any reference to USA having a history of treating its agents
compensation of USA personnel; make requests for stipulations in
front of the jury; or make references to whether or not USA has
insurance. The above information is not relevant to the instant
matter. Blankenship will not, however, be barred from addressing
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the above issues if the door is first opened by USA.
Neither party is to make reference to previous litigation in
which the parties were involved unless the issue somehow becomes
relevant at trial.
Blankenship commissions for any accounts other than Alcoa, Crane
Plumbing, Southwest Chemical, SST International, Tuesday Morning,
or Willamette. Based on the Court’s ruling on USA’s Motion for
Partial Summary Judgment concerning Sears and Whirlpool loads, both
parties are also instructed to refrain from mentioning the Sears
and Whirlpool accounts, as they are no longer relevant in this
financials of USA. The Court finds that Blankenship has elected to
pursue his fraud in the inducement action in contract - not in tort
- and punitive damages are, therefore, not an appropriate remedy.
Furthermore, “[p]unitive damages are merely incidental to the
primary cause of action and are dependent upon an award of actual
Howard W. Brill, Arkansas Practice Series: Law of
Damages, § 9.5 (5th ed. 2004) (citing Olmstead v. Moody, 311 Ark.
163 (1992)). Any compensatory damages Blankenship is seeking in
this case would result from the underlying breach of contract
action and not directly from the settlement agreement. Therefore,
on the fraudulent inducement claim, there could be no award of
actual damages on which a jury could base any award of punitive
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inducement as a defense to enforcement of the settlement agreement.
Should Blankenship succeed on his fraudulent inducement claim, his
remedy is merely rescission of the settlement agreement and the
ability to proceed on his breach of contract action as to the
underlying contract. Further, punitive damages are not generally
recoverable for breach of contract actions under Arkansas law.
McClellan v. Brown, 276 Ark. 28, 30 (1982); see also Brill, supra,
at § 9.3. Nor is there any allegation or evidence that punitive
damages would otherwise be appropriate in the underlying breach of
financials is, therefore, irrelevant.
All other issues raised in USA’s Motion will be addressed if
and when they arise at trial. USA’s Motion on the remaining points
is, therefore, DENIED.
If the parties believe any item excluded by the Court should
be admitted or becomes relevant, they are instructed to approach
the bench and discuss the matter barside.
clarification as to the parties’ arguments regarding any temporal
limitations on damages as to the underlying contract between the
cancellation. (Doc. 1-1). After the 90 days have passed, USA is
required to “cease hauling for all of the accounts listed.” Id. The
18 month period is renewed, under the contract, if USA were to haul
loads for any of Blankenship’s accounts during the cease-hauling
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period. Id. The Court cannot, based on the information presented in
the parties’ briefs and at the hearing, find that the above
provisions are invalid as a matter of law. A fact question remains
for the jury as to whether damages should otherwise be temporally
IT IS SO ORDERED this 15th day of July, 2011.
/s/Paul K. Holmes, III
PAUL K. HOLMES, III
UNITED STATES DISTRICT
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