Reagan et al v. Dunaway Timber Company et al

Filing 108

PRETRIAL ORDER granting in part and denying in part 56 Motion in Limine; granting 57 Motion in Limine; granting 58 Motion in Limine; denying 59 Motion in Limine; granting 60 Motion in Limine; denying 61 Motion in Limine; granting 62 Mot ion in Limine; denying 63 Motion in Limine; granting in part and denying in part 65 Motion in Limine; denying 66 Motion to Exclude; granting in part and denying in part 67 Motion in Limine; denying as moot 91 Motion in Limine; denying 93 Motion in Limine, as set forth. Signed by Honorable Paul K. Holmes, III on July 20, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
TERI REAGAN, Individually and as
Personal Representative of the
Estate of Roger Reagan; and
MAVERICK TRANSPORTATION, LLC.
v.

PLAINTIFFS

Case No. 3:10-CV-03016

DUNAWAY TIMBER COMPANY; MORGAN
QUISENBERRY; JOHN DOE TRUCKING;
and JOHN DOE INCORPORATED

DEFENDANTS/
THIRD PARTY PLAINTIFFS

v.
BARRY MCCOY

THIRD PARTY DEFENDANT
PRETRIAL ORDER

Before the Court are the parties’ thirteen various motions in
limine,

as

well

as

all

corresponding

supporting

documents,

responses and replies. The Court also held a pre-trial conference
on July 14, 2011

in which the parties were able to advance

additional arguments concerning these motions on the record. This
Order sets forth the Court’s rulings on the motions discussed
below. 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. Maverick Transportation LLC’s (“Maverick”) First Motion in
Limine (Doc. 56) - GRANTED IN PART, DENIED IN PART
Maverick’s First Motion in Limine is GRANTED IN PART and
DENIED IN PART. The Court finds the following to be inadmissible as
irrelevant: any statement to the effect that Roger Reagan failed to

Page 1 of

8

comply

with

Federal

Motor

Carrier

Safety

Regulations;

driver

employment and/or training records, etc. as to Roger Reagan;
insurance as to Maverick; willingness of any of the parties to
settle; the statement of any venire man after the close of voir
dire. As such, the parties are prohibited from introducing evidence
regarding

the

above.

Maverick’s

First

Motion

in

Limine

is,

therefore, GRANTED as to the above issues.
Concerning exclusion of the accident report, the Court, upon
conducting further research following the pre-trial conference,
finds that the accident report is admissible under Federal Rule of
Evidence 803(8). While a federal court sitting in diversity must
apply the substantive law of the forum state, procedure remains
governed by federal rules. Zunamon v. Brown, 418 F.2d 883, 889 (8th
Cir. 1969) (citing Erie Railroad Co. V. Tompkins, 304 U.S. 64
(1938)). A police officer’s report is admissible into evidence in
federal court if, under FRE 803(8)(B), the matters in the report
were observed by the officer “pursuant to duty imposed by law as to
which matters there was a duty to report,” or under FRE 803(8)(C),
if the officer’s report is offered in a civil action as to its
“factual findings resulting from an investigation made pursuant to
authority granted by law.” Fed. R. Evid. 803(8). Preparation of
accident reports is required under Arkansas law. Ark. Code. Ann. §
27-53-202. Law enforcement officers of Arkansas are also declared,
by law, “to be responsible for the investigation and reporting of
all traffic accidents and the deaths, injuries, and property damage
resulting therefrom.” Ark. Code. Ann. § 27-53-303. FRE 803(8) does

Page 2 of

8

provide that such matters, while generally excepted from the
hearsay rule, may not be excepted when “the sources of information
or other circumstances indicate lack of trustworthiness.” Fed. R.
Evid. 803(8)(C). However, “[t]he party opposing the admission of
the matter reported as a public record has the burden of proving
lack of trustworthiness.” Simmons v. Chicago & N.W. Transp. Co.,
993 F.2d 1326, 1328 (8th Cir. 1993)(quoting Faries v. Atlas Truck
Body Mfg. Co., 797 F.2d 619, 622 (8th Cir. 1986)). Based on the
information provided by Maverick in this Motion in Limine, as well
as by Reagan in her Fifth Motion in Limine, the Court cannot find,
at this time, that the Plaintiffs have sufficiently proven a lack
of

trustworthiness

such

that

the

accident

report

should

be

excluded. Maverick’s First Motion in Limine is, therefore, DENIED
as to this aspect. Plaintiffs may, however, renew their objection
at trial.
Any remaining points raised in Maverick’s First Motion in
Limine are addressed through other Motions, below, or will be
addressed if and when the issue arises at trial.
II. Teri Reagan’s First Motion in Limine (Doc. 57) - GRANTED
Reagan’s First Motion in Limine is GRANTED. The introduction
and admission of collateral source evidence is precluded at trial.
III. Reagan’s Second Motion in Limine (Doc. 58) - GRANTED
While the Court views Reagan’s Second Motion in Limine as
unnecessary, the Motion is GRANTED to the extent that any such
issues arise. The parties are prohibited from making improper and
inflammatory

statements

during

opening statements

Page 3 of

8

and

closing

arguments.
arguing

Specifically,

that

Defendants

defense
are

counsel

“innocent

should

until

refrain

proven

from

guilty”;

mentioning contingent attorney’s fees; mentioning tax consequences
of a verdict for Plaintiffs; making any comparison of a personal
injury/wrongful death suit to gambling; or suggesting that the case
is only about money. Further, the Court presumes all of the
attorneys are familiar with and will practice proper and respectful
courtroom decorum, and, if not, the Court will take appropriate
measures at that time.
IV. Reagan’s Third Motion in Limine (Doc. 59) - DENIED
It appears to the Court that this Motion refers to the same
accident report already discussed, supra, in section I. For the
reasons already set forth above, Reagan’s Motion to Preclude the
Introduction and Admission of the Motor Vehicle Collision Report is
DENIED at this time. Reagan may, however, renew her objections at
trial should she find it appropriate to do so.
V. Reagan’s Fourth Motion in Limine (Doc. 60) - GRANTED
Reagan’s Fourth Motion in Limine is GRANTED. Defendants’
rebuttal expert, Steve Jackson, is precluded from testifying to
opinions that he did not give in his report or deposition and is
also precluded from basing his current opinions on different facts,
data, or testing.
VI. Reagan’s Fifth Motion in Limine (Doc. 61) - DENIED
Reagan’s Fifth Motion in Limine is DENIED at this time.
Corporal Evans will be allowed to testify. Any issues concerning
Evans’ qualifications as an expert may be raised at trial, if

Page 4 of

8

appropriate.

Issues

concerning

Evans’

methodologies

or

qualifications may also be dealt with on cross-examination and/or
with other testimony. In the alternative, the Court may consider
whether a preliminary Daubert hearing may be appropriate in order
to definitively rule on these issues before trial.
VII. Reagan’s Sixth Motion in Limine (Doc. 62) - GRANTED
Reagan’s Sixth Motion in Limine is GRANTED. Defendants are
precluded from raising arguments or introducing evidence regarding
the conduct of or any alleged fault of Roger Reagan. As Defendants
have not previously raised the issue of comparative fault of Roger
Reagan, such evidence at this point is irrelevant and potentially
unduly prejudicial.
VIII. Defendants’ First Motion in Limine to Permit Jury View (Doc.
63) - DENIED
Defendants’ First Motion in Limine to Permit Jury view is
DENIED. Other evidence in the record, including photographs, and
testimony of parties and witnesses should be sufficient to aid the
jury in making their determinations.
IX. Joint Motion in Limine by Maverick and Barry McCoy (Doc. 65) GRANTED IN PART, DENIED IN PART
This Motion is substantially similar to Maverick’s First
Motion in Limine addressed, supra, Section I, only adding Barry
McCoy as joining in the motion, and adopting Reagan’s Motion in
Limine concerning the exclusion of Defendants’ rebuttal expert
Steve Jackson. The Court’s findings regarding the issues raised in
the motion have, therefore, already been addressed, and the Court’s

Page 5 of

8

ruling on this motion is consistent with its ruling on those
parallel motions as already set forth and as set forth below.
X. Reagan’s Motion to Exclude Steven Jackson (Doc. 66) - DENIED
Reagan’s Motion to exclude Defendants’ rebuttal expert Steve
Jackson

from

offering

testimony

is

DENIED.

The

Court

finds

Jackson’s opinions to be sufficiently reliable, and Jackson will be
allowed to testify. Any issues concerning Jackson’s qualifications
and methodologies may be dealt with on cross-examination and with
other testimony. Plaintiffs and/or Mr. McCoy may renew their
objections at trial if appropriate.
XI. Defendants’ Second Motion in Limine (Doc. 67) - GRANTED IN
PART, DENIED IN PART
Concerning Defendants’ contention that any evidence going
solely

to

support

claims

of

negligent

hiring,

supervision,

retention of training as to Dunaway should be excluded, the Court
finds that Defendants’ Motion should be DENIED. Plaintiffs’ claims
of negligent hiring, retention, etc. remain viable, there having
been no dispositive motions from any party seeking their dismissal
or seeking summary judgment as to those claims. The Court cannot
ascertain from one paragraph in a Motion in Limine that such claims
should be disregarded in the instant matter. Therefore, Defendants’
Motion is likewise DENIED in that the Court will not exclude, at
this time, evidence regarding Morgan Quisenberry’s DUI charges; the
fact that Quisenberry lied about the suspensions resulting from his
DUI charges on his application for employment; or testimony from
Henry Christ that Quisenberry’s application would likely have been

Page 6 of

8

rejected had he been truthful on his application. Such evidence
remains relevant as to Plaintiffs’ negligent hiring claim.
Concerning the exclusion of testimony and opinions of Larry
Cole, Defendants’ Motion is DENIED as moot, as Plaintiffs no longer
intend to offer the testimony or opinions of Larry Cole.
Defendant’s

motion

is

GRANTED

in

that

Plaintiffs

are

prohibited from offering into evidence what defense counsel may
have told Morgan Quisenberry about the possible cause of his loss
of control. Such evidence would be subject to attorney-client
privilege and would also be irrelevant and potentially misleading
to the jury. Quisenberry will be permitted to testify, however, to
his own recollections and observations related to the steering of
the vehicle at the time of the accident, including his own views as
to the cause, if any, of any loss of control.
XII. Reagan’s Seventh Motion in Limine (Doc. 91) - DENIED AS MOOT
Reagan’s
Defendants

Seventh

have

stated

Motion
they

in

Limine

have

no

is

DENIED

intention

of

AS

MOOT.

usurping

Planitiffs’ withdrawn expert, Larry Cole. Plaintiffs have likewise
indicated that their current experts have not relied on Cole’s
opinions in forming their own conclusions. As such, Cole’s report
should not become relevant for Defendant to address in crossexamination. If the parties’ positions change as to this issue,
however, the issue will be revisited.
XIII. Reagan’s Eighth Motion in Limine (Doc. 93) - DENIED
Morgan Quisenberry was recently diagnosed with cancer. Reagan
moves to exclude evidence of or reference to Quisenberry’s medical

Page 7 of

8

condition

at

trial,

arguing

that

it

is

irrelevant

and

may

improperly appeal to the jury’s sympathy. Quisenberry is a party to
this case as well as a material witness, and Defendants are hopeful
that he will be able to appear at trial. Because the Court cannot
predict

how

or

whether

Quisenberry’s

medical

condition

and

treatment might affect his presence and participation at trial, and
thus cannot

conclude

with

certainty

that

it

will

not

become

relevant, Reagan’s motion to exclude that evidence is, therefore,
DENIED at this time, with the understanding that Reagan may renew
her objections at trial.
XIV. Other
Any issues not addressed in this opinion will be addressed if
and when they arise at trial.
If the parties believe any item excluded by the Court should
be admitted or becomes relevant at trial, they are instructed to
approach the bench and discuss the matter barside.

IT IS SO ORDERED this 20th day of July, 2011.

/s/Paul K. Holmes, III
PAUL K. HOLMES, III
UNITED STATES DISTRICT

Page 8 of

8

JUDGE