Bullock v. Freightliner, LLC et al

Filing 365

ORDER granting in part and denying in part 344 Plaintiff's Motion in Limine by Judge William J. Martinez on 9/28/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 08-cv-00491-WJM-MEH
AMY BULLOCK, as an individual, as the next of kin and personal representative of
JEFFREY BULLOCK, deceased, and as parent and next friend of ADAM BULLOCK,
CHELSEA BULLOCK, and MELISSA BULLOCK,
Plaintiff,
v.
DAIMLER TRUCKS NORTH AMERICA, LLC, formerly known as Freightliner, LLC,
Defendant.

ORDER ON PLAINTIFF’S MOTION IN LIMINE

Plaintiff Amy Bullock brings this products liability action against Defendant
Daimler Trucks North America, LLC, alleging that Plaintiff’s husband’s death in a 2006
truck rollover accident was caused by design defects in the truck, which was
manufactured by Defendant.
This matter is before the Court on Plaintiff’s Motion in Limine. (ECF No. 344.)
The motion seeks to preclude evidence from being admitted at trial (1) of whether
Plaintiff’s husband, Jeffrey Bullock, was using the safety restraint in the sleeper
compartment of the truck at the time of the accident, (2) of a separate truck accident
that occurred in 2008, and (3) of life insurance, Social Security, restitution, and workers’
compensation proceeds paid to Plaintiff following Mr. Bullock’s death. (See id.) The
motion is fully briefed and ripe for disposition. (See also ECF No. 354, 360.) For the
following reasons, Plaintiff’s Motion in Limine is GRANTED in part and DENIED in part,

with one issue being deferred for a ruling at a later date.
I. ANALYSIS
“The admissibility of evidence in diversity cases in federal court is generally
governed by federal law.” Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 880 (10th Cir.
2006). “Nevertheless, it is well recognized that Congress did not intend the procedural
rules to preempt the so-called substantive state rules of evidence . . . .” Id.; see also
Romine v. Parman, 831 F.2d 944, 945 (10th Cir. 1987) (stating that, although
“admissibility of evidence in diversity cases in federal court is generally governed by
federal law,” state law must be applied when “an evidentiary question is so dependent
on a state substantive policy”). In addressing each evidentiary issue below, the Court
will analyze what law applies as to each issue.
A.

Evidence Regarding Whether Mr. Bullock Was Using the Safety Restraint at
the Time of the Accident
Plaintiff first asks the Court to exclude any evidence at trial of whether Mr.

Bullock was using the safety restraint in the sleeper compartment of the truck at the
time of the accident.1 In support of the request, Plaintiff cites to Colorado Revised
Statute § 42-4-237, which provides:
(2) . . . [E]very driver of and every front seat passenger in a motor vehicle
equipped with a safety belt system shall wear a fastened safety belt while
the motor vehicle is being operated on a street or highway in [Colorado]. .
..
(7) Evidence of failure to comply with the requirement of subsection (2) of
this section shall be admissible to mitigate damages with respect to any
1

Although it does not appear that the parties have formally stipulated that Mr.
Bullock was riding in the sleeper compartment of the truck at the time of the accident
(see, e.g., ECF No. 226 ¶ 15; ECF No. 231 ¶ 15), there are indications that the parties
agree on this point (see, e.g., Defendant’s MADYMO modeling analysis).
2

person who was involved in a motor vehicle accident and who seeks in
any subsequent litigation to recover damages for injuries resulting from
the accident. Such mitigation shall be limited to awards for pain and
suffering and shall not be used for limiting recovery of economic loss and
medical payments.
In short, this statute provides that “[e]vidence regarding lack of seat belt use [in the front
seat] is admissible at trial, but only to reduce an award of damages for pain and
suffering.” Wark v. McClellan, 68 P.3d 574, 579 (Colo. App. 2003).
Plaintiff argues that “since Mr. Bullock was not a driver nor was he a front-seat
passenger [under the statute], evidence of his seat belt use cannot be used to reduce
his damages at all.” (ECF No. 344, at 2.) Plaintiff appears to be arguing that, because
Colorado Revised Statute § 42-4-237(7) allows evidence of seat belt non-use by front
seat passengers to be admitted at trial for certain purposes, that means evidence of
seat belt non-use by other passengers cannot be admitted at trial.
Plaintiff’s argument is logically flawed and lacks merit. Colorado Revised Statute
§ 42-4-237(2) only mandates seat belt use by drivers and front seat passengers of
motor vehicles. Section 42-4-237(7) allows evidence of seat belt non-use by drivers
and front seat passengers to be admitted at trial for certain purposes as an incentive to
promote seat belt use in the front seat. See Anderson v. Watson, 953 P.2d 1284, 1290
(Colo. 1998) (“By decreasing the amount of pain and suffering damages in proportion to
injuries attributable to seat belt non-use, the General Assembly sent a signal to drivers
and front-seat passengers to buckle up.”). Section 42-4-237(2) has no applicability to
the seat belt use of passengers other than drivers and front seat passengers, and
section 42-4-237(7) in no way speaks to the issue of the admissibility of evidence
regarding a rear seat passenger’s seat belt non-use. Therefore, section 42-4-237(7) is
3

inapplicable to Mr. Bullock’s use or non-use of the safety restraint in the sleeper
compartment, and has no bearing on the Court’s decision regarding whether the
evidence will be admissible at trial.2
The Court proceeds to make a pretrial ruling on whether Mr. Bullock’s use or
non-use of the safety restraint will be admissible at trial.3 “‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” Fed. R. Evid. 401. Relevant evidence is generally admissible at
trial, Fed. R. Evid. 402, but “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence,” Fed. R. Evid. 403.
Evidence related to Mr. Bullock’s use or non-use of the safety restraint at the
time of the accident is highly relevant evidence in this action, and its probative value is
not substantially outweighed by any competing concerns. Plaintiff brings strict liability
and negligence claims against Defendant based in part on the allegedly defective
design of the safety restraint itself.4 Whether Mr. Bullock was using the safety restraint

2

Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo. App. 1993), relied on
heavily by Plaintiff, is inapplicable because that case involved the seat belt non-use of a
driver of a vehicle who had gotten into an accident.
3

Because Colorado Revised Statute § 42-4-237 has no applicability in this
action, the default rule applies that federal law governs the admissibility of evidence of
Mr. Bullock’s use or non-use of the safety restraint.
4

All of the specific design defects that form the basis for Plaintiff’s claims are the
truck’s general lack of crashworthiness, the lack of crashworthiness of the sleeper
4

at the time of the accident is highly relevant to the issue of whether one or more design
defects in the safety restraint caused Mr. Bullock’s death. See Truck Ins. Exch. v.
MagneTek, Inc., 360 F.3d 1206, 1214 (10th Cir. 2004) (stating that, under Colorado law,
causation is an essential element both of (1) a strict products liability claim based on a
defective design, and (2) a negligent design claim); Camacho v. Honda Motor Co., Ltd.,
741 P.2d 1240, 1242-43 (Colo. 1987) (“Under [the ‘crashworthiness’ doctrine], a motor
vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in
a motor vehicle accident where a manufacturing or design defect, though not the cause
of the accident, caused or enhanced the injuries.”). If Mr. Bullock was not using the
safety restraint at the time of the accident, it appears that Plaintiff will have a very
difficult time establishing that a design defect in the safety restraint caused Mr. Bullock’s
death. However, if Mr. Bullock was using the safety restraint at the time of the accident,
Plaintiff’s product liability claims as to the safety restraint remain viable.
The Court denies Plaintiff’s Motion in Limine to exclude any evidence at trial of
whether Mr. Bullock was using the safety restraint in the sleeper compartment at the
time of the accident.5

compartment, and design defects in the safety restraint in the sleeper compartment.
(See Third Amended Complaint, ECF No. 226 ¶¶ 44-46, 53.)
5

In so ruling, the Court is not passing judgment on whether evidence of Mr.
Bullock’s use or non-use of the safety restraint would be admissible as evidence
relevant to Plaintiff’s claims of other design defects in the truck, namely, the truck’s
general lack of crashworthiness and the sleeper compartment’s lack of crashworthiness.
The Court instructs the parties to be prepared at the Final Pretrial Conference to
discuss whether a limiting instruction to the jury might be appropriate on this issue.
5

B.

Evidence of a Separate 2008 Truck Rollover Accident
Plaintiff’s motion also seeks to preclude evidence related to a separate 2008

tractor-trailer rollover accident, arguing that the 2008 accident is not substantially similar
to the truck accident involving Mr. Bullock. See Wheeler v. John Deere Co., 862 F.2d
1404, 1407 (10th Cir. 1988) (case cited by Plaintiff, which states, “[F]ederal . . . law
permit[s] the introduction of substantially similar accidents in strict products liability
actions to demonstrate notice, the existence of a defect, or to refute testimony given by
a defense witness that a given product was designed without safety hazards.”)
(quotation marks omitted). In its supplemental response to the motion, Defendant has
clarified that it does intend to introduce evidence of the 2008 accident in order to show
“substantial similarity” to the accident at issue in this action, and also to more generally
show the mechanics and physics of a tractor-trailer rollover.
In terms of Defendant’s request to introduce evidence related to the 2008
accident for purposes of showing the general mechanics and physics of a tractor-trailer
rollover, the Court denies Plaintiff’s Motion in Limine as to Defendant’s introduction of
this evidence for that limited purpose. See Montag by Montag v. Honda Motor Co., Ltd.,
75 F.3d 1414, 1420 (10th Cir. 1996) (“Tests and experiments may be dissimilar from the
actual accident if they are meant to illustrate general physical principles rather than
re-create the accident.”). If the evidence is only allowed for that limited purpose, a
limiting instruction to the jury to that effect will be appropriate. See id. (“If a simulation is
offered, however, for the limited purpose of illustrating general principles, the district
court should instruct the jury that the evidence is not intended as a re-creation of the
accident.”).
6

In terms of Defendant’s request to introduce evidence related to the 2008
accident for purposes of showing “substantial similarity” to the accident at issue in this
action, the Court does not have enough information before it at this time to rule on
Plaintiff’s Motion in Limine as to this issue, and hereby defers ruling on this issue until a
later date. A separate hearing on this matter will be necessary, which will be held at a
later date. At the hearing, Defendant will need to present evidence to the Court
establishing the substantial similarity of the two accidents, and Plaintiff will be allowed to
present evidence showing dissimilarity of the two accidents. See Wheeler, 862 F.2d at
1407 (“Before introducing such evidence, the party seeking its admission must show the
circumstances surrounding the other accidents were substantially similar to the accident
involved in the present case. While this foundation may be laid in the presence of the
jury, the preferable approach is for the trial judge to hold a hearing outside its
presence.”). At the Final Trial Preparation Conference, the Court will discuss with the
parties the scheduling of this hearing and the evidence to be presented at the hearing.6
C.

Evidence of Life Insurance, Social Security, Restitution, and Workers’
Compensation Proceeds Paid to Plaintiff Following Her Husband’s Death
Finally, Plaintiffs move, pursuant to the collateral source rule, to preclude

evidence of life insurance, Social Security, restitution, and workers’ compensation
proceeds paid to Plaintiff following Mr. Bullock’s death.

6

The Court is not aware of any substantive Colorado rule of evidence or
Colorado substantive policy that would require the Court to depart from the general rule
that the Federal Rules of Evidence should govern the admissibility of the evidence
related to the 2008 accident. Unless the parties at the Final Pretrial Conference can
direct the Court to such a state rule or policy, the Court will apply federal law to the
issue of the admissibility of this evidence.
7

The Court applies state law in determining whether the collateral source rule
should bar admission of evidence regarding collateral sources of funds. See Sims, 469
F.3d at 880 (“[Federal procedural rules do not] preempt the so-called substantive state
rules of evidence, such as the parol evidence rule, the collateral source rule, or the
statute of frauds . . . .”) (emphasis added); Macsenti v. Becker, 237 F.3d 1223, 1241
(10th Cir. 2001) (applying state law in determining whether evidence would be
inadmissible under collateral source rule).
“Under the common law collateral source rule, . . . [a]ny third-party benefits or
gifts obtained by the injured plaintiff accrue solely to the plaintiff’s benefit and are not
deducted from the amount of the tortfeasor’s liability.” Volunteers of Am. Colo. Branch
v. Gardenswartz, 242 P.3d 1080, 1082-83 (Colo. 2010). In 1986, the Colorado General
Assembly passed Colorado Revised Statute § 13-21-111.6, which essentially overrules
the collateral source rule except with one significant exception. The statute provides,
In any action by any person or his legal representative to recover
damages for a tort resulting in death or injury to person or property, the
court, after the finder of fact has returned its verdict stating the amount of
damages to be awarded, shall reduce the amount of the verdict by the
amount by which such person, his estate, or his personal representative
has been or will be wholly or partially indemnified or compensated for his
loss by any other person, corporation, insurance company, or fund in
relation to the injury, damage, or death sustained; except that the verdict
shall not be reduced by the amount by which such person, his estate, or
his personal representative has been or will be wholly or partially
indemnified or compensated by a benefit paid as a result of a contract
entered into and paid for by or on behalf of such person. The court shall
enter judgment on such reduced amount.
Colo. Rev. Stat. § 13-21-111.6 (emphasis added).
1.

Life Insurance

Plaintiff moves to preclude any evidence being admitted regarding life insurance
8

benefits paid to Plaintiff following Mr. Bullock’s death. Defendant responds by
conceding that “life insurance is a collateral source.” The Court interprets Defendant’s
concession as a concession that any award of damages to Plaintiff in this action should
not be reduced based on any life insurance proceeds paid to Plaintiff following Mr.
Bullock’s death. The Court will not reduce any damage award to Plaintiff in this action
based on any life insurance proceeds paid to Plaintiff following Mr. Bullock’s death. See
Colo. Rev. Stat. § 13-21-111.6 (specifically excluding amounts by which the plaintiff
“has been or will be wholly or partially indemnified or compensated by a benefit paid as
a result of a contract entered into and paid for by or on behalf of such person”); Van
Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1077 (Colo. 1992) (stating that the
legislative history of the statute indicates that the legislature intended the exclusion to
apply to “sources such as retirement benefits, disability benefits and life insurance”);
Frost v. Schroeder & Co., Inc., 876 P.2d 126, 128 (Colo. App. 1994) (stating that the
purpose of the exclusion is “to allow recovery to a claimant who, through his or her own
efforts, contracted for and purchased, either directly or indirectly, some type of
insurance or other protection against accident- induced losses without penalizing such a
person for his or her prudence and thereby providing a windfall for a culpable
tortfeasor”). The Court grants Plaintiff’s Motion in Limine to that extent on this issue.

2.

Social Security

Plaintiff also moves to preclude any evidence being admitted regarding Social
Security payments made to Plaintiff following Mr. Bullock’s death. In its supplemental
response to the motion, Defendant “concedes that Barnett v. American Family Mut. Ins.
9

Co., 843 P.2d 1302, 1309 (Colo. 1993) makes Social Security benefits a collateral
source under the Colorado Collateral Source Statute.” The Court interprets Defendant’s
concession as a concession that any award of damages to Plaintiff in this action should
not be reduced based on any Social Security payments made to Plaintiff following Mr.
Bullock’s death. The Court will not reduce any damage award to Plaintiff in this action
based on any Social Security payments made to Plaintiff following Mr. Bullock’s death.
See Barnett v. Am. Family Mut. Ins. Co., 843 P.2d 1302, 1309 (Colo. 1993) (holding that
collateral source rule precluded setoff of Social Security benefits that were based on
payments made under a contributory insurance system). The Court grants Plaintiff’s
Motion in Limine to that extent on this issue.
3.

Restitution

Plaintiff argues that restitution amounts being paid by non-party tortfeasor Donald
Green to Plaintiff cannot be setoff from the damages Defendant owes to Plaintiff.
Defendant entirely failed to respond to this argument. As the case cited by Plaintiff
indicates, Ҥ 13-21-111.6 . . . applies to payments from a collateral source independent
of any alleged tort liability. . . . [Thus, payments from tortfeasors are] not collateral
sources [and] § 13-21-111.6 is inapplicable to [such payments].” See Montoya v.
Grease Monkey Holding Corp., 883 P.2d 486, 490 (Colo. App. 1994); see also Smith v.
Vincent, 77 P.3d 927, 930 (Colo. App. 2003) (following Montoya and stating, Ҥ
13-21-111.6 does not require a reduction from the damages owed by remaining
tortfeasors where a joint tortfeasor entered into a settlement”). Therefore, the Court will
not reduce any damage award to Plaintiff in this action based on any restitution
payments made to Plaintiff from Donald Green. The Court grants Plaintiff’s Motion in
10

Limine to that extent on this issue.
4.

Workers’ Compensation

Plaintiff finally moves to preclude any evidence being admitted regarding
workers’ compensation benefits paid to Plaintiff following Mr. Bullock’s death. Plaintiff
represents to the Court that such payments were received by Plaintiff “as a result of Jeff
Bullock’s contracts of hire.” In support of the argument, Plaintiff cites Combined
Communications Corporation, Inc. v. Public Service Company of Colorado, 865 P.2d
893 (Colo. App. 1993), which held, “the verdicts were not subject to being set off by the
amounts of these benefits” because the “workers' compensation benefits were received
as a result of the employees' contracts of hire.” Id. at 902. That court based its
decision on the Colorado Supreme Court’s decision in Keelan, in which the court held
that the exception clause of section 13-21-111.6 should be read broadly “to protect
benefits that result from an employment contract for which a person gives consideration
in the form of services.” 840 P.2d at 1078.
In response, Defendant cites to the workers’ compensation statute itself, which
reads,
If any employee entitled to [workers’] compensation . . . is injured or killed
by the negligence or wrong of another not in the same employ, such
injured employee or, in case of death, such employee’s dependents, may
take compensation under said articles and may also pursue a remedy
against the other person to recover any damages in excess of the
compensation available under said articles.
Colo. Rev. Stat. § 8-41-203(1)(a) (emphasis added). Defendant argues that this
statute’s plain language indicates that Plaintiff may only recover amounts the jury
awards in this action that are in excess of the workers’ compensation benefits she has
11

already received. Thus, Defendant argues that any jury award to Plaintiff should be
reduced by the Court by any workers’ compensation payments made to Plaintiff.
The Court has not found a case explicitly reconciling this workers’ compensation
statute with Colorado Revised Statute § 13-21-111.6 (Colorado’s collateral source rule).
The closest any court has come to doing so is Combined Communications Corp., 865
P.2d 893 (Colo. App. 1993), which did not explicitly discuss the workers’ compensation
statute, but did hold that workers’ compensation payments made pursuant to contracts
of employment are not subject to setoff.7
None of the cases cited by Defendant in its Response and Supplemental
Response address the issue of the collateral source rule as it is applied to workers’
compensation payments. Instead, those cases generally deal with the rights of the
workers’ compensation carrier as compared to the rights of the injured employee, in
terms of each’s recovery of proceeds won in a lawsuit brought against a third party
tortfeasor. The Court interprets the workers’ compensation statute, these cases, and
other relevant cases as merely standing for the proposition that a workers’
compensation carrier has a right to reimbursement of any workers’ compensation
payments made to an injured employee, if that employee brings an action alone against
a third party tortfeasor and wins a settlement or jury award. See Kirkham v. Hickerson
Bros. Truck Co., 485 P.2d 513, 310 (Colo. App. 1971) (“[A]n injured employee does not
lose or waive his right of action against a third party by exercising his rights under a

7

Defendant cursorily argues that Combined Communications Corp. “is
inapposite, primarily because the Court was not asked to and did not address the issue
of the statutory separation of claims between the workers’ compensation insurer and the
claimant in the context of a third party tort claim.”
12

workmen’s compensation act. . . . [S]uch acts do not concern rights of action by
employees against third party tortfeasors, except as to the proper allocation of the
amounts recovered under such actions equitably between the employee and the
employer.”) (quotation marks omitted); Cont’l Cas. Co. v. Gate City Steel, 650 P. 2d
1336, 1338 (Colo. App. 1982) (“The purpose of [the workers’ compensation statute] is to
adjust rights between the insurer and the employee by requiring that the insurer be
reimbursed out of the employee’s recovery against the third-party tortfeasor for worker’s
compensation benefits paid by the insurer, leaving the employee with the excess.”); see
also Jordan v. Fonken & Stevens, P.C., 914 P.2d 394, 395 (Colo. App. 1995) (“The
purpose of [Colo. Rev. Stat. § 8-41-203(1)] is to adjust the rights between a claimant
and an insurer by requiring reimbursement to the insurer out of the claimant’s recovery
against a third-party tortfeasor, thereby preventing a claimant’s double recovery of both
workers’ compensation benefits and litigation proceeds.”); Frohlick Crane Service, Inc.
v. Mack, 510 P.2d 891, 893 (Colo. 1973) (“[O]ur Workmen’s Compensation Act is not to
shield third-party tort-feasors from liability for damages resulting from their
negligence.”).
The Court’s role is not to reduce the amount of damages for which Defendant will
be liable simply because Plaintiff has received workers’ compensation payments from
Mr. Bullock’s former employer (which would result in the inefficiency of Mr. Bullock’s
former employer, who is not a current party to this action, having to go after Defendant
to recover the workers’ compensation payments it had paid to Plaintiff). Instead, after
any settlement or jury award in favor of Plaintiff, the law indicates that Mr. Bullock’s
former employer could seek reimbursement from Plaintiff for any workers’ compensation
13

proceeds paid to her. The Court will not reduce any damage award to Plaintiff in this
action based on any workers’ compensation payments made to Plaintiff following Mr.
Bullock’s death. See Combined Commc’ns Corp., 865 P.2d at 902. The Court grants
Plaintiff’s Motion in Limine to that extent on this issue.
As to all of these collateral sources, the Court also agrees that evidence of such
payments will be inadmissible at trial because the evidence’s probative value, if any, “is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .” Fed. R. Evid. 403. For the same reasons that it is not
appropriate for the Court to offset any damages award by the amounts of these
payments, it is not appropriate for evidence to be presented at trial regarding these
payments, or for any mention of these payments to be made at trial by counsel on either
side or by any witnesses. The Court therefore grants, without limitation, Plaintiff’s
Motion in Limine as to evidence of collateral sources of funds received by Plaintiff
following Mr. Bullock’s death.

II. CONCLUSION
In accordance with the foregoing, it is therefore ORDERED as follows:
1.

Plaintiff’s Motion in Limine is GRANTED in so much as the Court has ruled
that evidence of any life insurance, Social Security, restitution, or workers’
compensation proceeds paid to Plaintiff following Mr. Bullock’s death will
be inadmissible at trial.

2.

Plaintiff’s Motion in Limine is DENIED in so much as the Court has ruled
that evidence of Mr. Bullock’s use or non-use of the safety restraint in the
14

sleeper compartment at the time of the accident will be admissible at trial
as to Plaintiff’s claim that one or more design defects of the safety
restraint caused Mr. Bullock’s death.
3.

Plaintiff’s Motion in Limine is also DENIED in so much as the Court has
ruled that Defendant will be allowed to introduce evidence at trial related
to a 2008 tractor-trailer rollover accident for the limited purpose of showing
the general mechanics and physics of a tractor-trailer rollover accident.

4.

The Court hereby reserves ruling on the issue of whether Defendant will
be allowed to introduce evidence at trial related to the 2008 tractor-trailer
rollover accident for the purpose of showing “substantial similarity” with the
accident at issue in this action.

Dated this 28th day of September, 2011.

BY THE COURT:

William J. Martínez
United States District Judge

15