Bryant v. State of Colorado, Department of Transportation et al
Filing
149
ORDER granting in part and denying in part 100 Motion in Limine. By Magistrate Judge Nina Y. Wang on 5/31/2018. (nywlc1, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01638-NYW
TAMARA BRYANT,
Plaintiff,
v.
STATE OF COLORADO, DEPARTMENT OF TRANSPORTATION,
EARL BYRON REAMS, II, and
THE H. NEIL REAMS FAMILY LLLP, a Colorado limited liability limited partnership,
Defendants.
ORDER ON MOTION IN LIMINE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Plaintiff Tamara Bryant’s (“Plaintiff” or “Ms.
Bryant”) Partially Unopposed Motion in Limine (“Motion in Limine”) [#100, filed April 27,
2018]. The Motion is before the court pursuant to the Order of Reference dated August 19, 2016
[#39], 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. The court has
carefully considered the Motion and related briefing, the entire case file, and the applicable case
law. For the following reasons, the Motion in Limine is GRANTED IN PART and DENIED
IN PART.
BACKGROUND
On December 21, 2015, Ms. Bryant was a passenger in a truck travelling westbound on
Colorado State Highway 145 in or around the Nucla/Naturita community. At approximately
7:00 p.m., the truck in which Plaintiff was riding struck a cow that another motorist had
previously hit and immobilized. [#28 at ¶¶ 13-17]. The cow was owned by John William
Reams, Earl Brown Reams, II, and/or the H. Neil Reams Family LLLP (collectively, the “Reams
Defendants”). [Id. at ¶ 15]. The collision caused the vehicle to flip onto its passenger side and
skid along the pavement at a high velocity, during which Plaintiff’s right arm “was pulled out of
the passenger window and ground down to a stump as a result of road friction.” [Id. at ¶¶ 1819]. Plaintiff sustained multiple injuries in addition to losing her right arm, and seeks damages
including but not limited to present and future hospital and medical expenses, past and future lost
wages, and loss of enjoyment of life. [Id. at ¶ 20].
Plaintiff initiated this personal injury action on June 24, 2016 by filing a Complaint that
asserted four common law claims against Defendants the State of Colorado, Department of
Transportation (“CDOT”), John William Reams (“John Reams”), Earl Brown Reams, II (“Earl
Reams”), and the H. Neil Reams Family LLLP (the “Partnership”). [#1]. The case ultimately
proceeded with a Second Amended Complaint asserting claims for premises liability pursuant to
Colo. Rev. Stat. § 13-21-115 and for negligence as to CDOT, [#56 at 4-6], and for negligence
and exemplary damages as to the Reams Defendants. [Id. at 6-8]. CDOT and the Reams
Defendants respectively designated as a nonparty at fault Kirk Powell, the driver of the vehicle in
which Plaintiff was riding at the time of the accident. [#43; #44].
On May 25, 2017, CDOT filed a Motion for Summary Judgment, arguing that there is no
evidence to support finding that the subject cow wandered through a CDOT fence, and there is
no evidence that CDOT was provided with actual notice of a defect in a CDOT fence line
through which the subject cow ultimately escaped. [#66].
The Reams Defendants filed their
own Motion for Summary Judgment regarding the negligence claims. [#69]. The briefing of the
Motions for Summary Judgment was delayed pending additional discovery that Plaintiff
requested, and which the court granted, but was completed by the end of August 2017.
On December 14, 2017, the court held limited oral argument on the Motions for
2
Summary Judgment and presided over a Final Pretrial Conference, [#86], and subsequently
entered a Final Pretrial Order setting a ten-day jury trial to commence on June 4, 2018 at the
federal courthouse in Grand Junction, Colorado. [#87]. Shortly thereafter, the court issued a
written opinion and order denying CDOT’s Motion for Summary Judgment and granting the
Reams Defendants’ Motion for Summary Judgment with respect to the claims asserted against
John Reams and the claim for exemplary damages in general, but otherwise denying the Reams
Defendants’ Motion. [#90].1
On April 27, 2018, Plaintiff filed the Motion in Limine seeking to preclude admission
during trial of five categories of evidence: (1) all evidence or testimony concerning marijuana
use by Plaintiff or Mr. Powell; (2) testimony regarding the lack of citations issued following the
accident; (3) the traffic accident report and Trooper Mark Hanson’s testimony regarding the
speed at which Mr. Powell’s truck was traveling at the time it collided with the cow; (4) all
collateral source evidence of medical insurance payments; and (5) reference to Colo. Rev. Stat. §
35-46-111 in Deposition Exhibit 47. See [#100]. CDOT does not oppose the Motion in Limine;
the Reams Defendants oppose the Motion with respect to the first, third, and fifth categories of
evidence. [#107]. Plaintiff filed a Reply in support of the Motion in Limine on May 25, 2018.
[#140].
That same day, Plaintiff filed a Notice of Settlement as to CDOT.
[#135].
The
settlement prompted the Reams Defendants to file an Unopposed Motion to Amend the
Scheduling Order to permit them to designate CDOT as a non-party at fault pursuant to Colo.
Rev. Stat. § 13-21-111.5 (“Motion to Designate Non-Party at Fault”), [#136], which was
accompanied by the Designation of CDOT as a Non-Party at Fault. [#137].
1
Henceforth, the designation the “Reams Defendants” refers to Earl Reams and the Partnership.
3
ANALYSIS
Motions in limine exist outside of the Federal Rules of Civil Procedure and Federal Rules
of Evidence and serve to enable the court “to rule in advance of trial on the relevance of certain
forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” United States v. Cline, 188 F. Supp. 2d 1287, 1291 (D. Kan.
2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (further citations omitted)).
Pretrial rulings issued in response to motions in limine can save time during trial as well as cost
and effort for the parties as they prepare their cases. However, “a court is almost always better
situated during the actual trial to assess the value and utility of evidence.” Koch v. Koch
Industries, Inc., 2 F. Supp. 2d 1385, 1388 (D. Kan. 1998) (citing Hawthorne Partners v. AT & T
Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence meets this high
standard [of clearly inadmissible], evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice may be resolved in proper context.”)).
I.
Evidence Regarding Mr. Powell’s Marijuana Use
A.
Arguments
Plaintiff asks the court to preclude during trial the admission of evidence, and associated
argument, regarding Mr. Powell’s use of marijuana. See [#100 at 5].2 Mr. Powell testified at his
deposition that at the time of the accident he had a medical marijuana card associated with a back
injury he had sustained and that he had used marijuana around 10:00 a.m. the morning of the
accident. [#107-1 at 21:9-25]. Plaintiff contends that whether she or Mr. Powell smoked or
otherwise ingested marijuana the day of the accident “is not relevant as it has no tendency to
make the existence of any fact that is of consequence to the determination of the action more
2
The Reams Defendants represent that they currently do not intend to offer any evidence
regarding marijuana use as to Ms. Bryant. [#107 at 1, n.1].
4
probable or less probable than it would be without the evidence.” [#100 at 5]. Plaintiff asserts
in particular that there is no evidence that marijuana use had any impact on Mr. Powell’s driving
on the night of the accident, and any potential probative value regarding this testimony “is
substantially outweighed by the risk of unfair prejudice, confusion of issues,” and possibility that
the jury would be misled. [Id.] The Reams Defendants argue in Response that “the fact that Mr.
Powell used marijuana on the date of the incident is relevant in multiple aspects, including his
negligence.” [#107 at 3]. They assert that “[a] jury can infer from drug use that Mr. Powell was
impaired while driving the vehicle, and expert testimony is not necessary to establish this link,
and that, rather, “it is common knowledge, well within the knowledge base and experience of the
average juror, that one should not operate vehicles or machinery after using marijuana.” [Id.] In
Reply, Plaintiff argues that (1) it is not clear that he used marijuana the day of the accident; (2)
there is no evidence that he was impaired by marijuana at the time of the accident; and (3) it
would be improper for a jury to infer that he was impaired. [#140].
B.
Applicable Law and Findings
Rule 401 of the Federal Rules of Evidence advises that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be without the evidence,” and “the
fact is of consequence in determining the action.” Fed. R. Evid. 401(a)-(b). The court may
nonetheless exclude relevant evidence “if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Id. at 403.
In addition, opinion testimony based on scientific, technical, or other specialized
knowledge must be offered by an expert witness pursuant to Fed. R. Evid. 702. Fed. R. Evid.
701, 702; see LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004) (“[A]
5
person may testify as a lay witness only if his opinions or inferences do not require any
specialized knowledge and could be reached by any ordinary person.”) (quotation marks and
citation omitted).
Expert witnesses must be disclosed pursuant to Federal Rule of Civil
Procedure 26(a)(2)(A)-(B). The disclosure generally must be accompanied by a written report
for any witness who is retained or specially employed to provide expert testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). In relevant part, the report must contain “(i) a complete statement of
all opinions the witness will express and the basis and reasons for them; (ii) the facts or data
considered by the witness in forming them; [and] (iii) any exhibits that will be used to
summarize or support them.” Id. at 26(a)(2)(B)(i)-(iii). “A party is under a continuing duty to
supplement the expert report if there are additions or changes to what has been previously
disclosed.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 953 (10th Cir. 2002) (citing Fed. R.
Civ. P. 26(a)(2)(C), 26(e)(1)). A party who fails to disclose or supplement information required
under Rule 26(a) is not allowed to use that information to supply evidence at trial, “unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
As an initial matter, this court respectfully disagrees with Plaintiff that Mr. Powell’s
testimony regarding his marijuana use the morning of the accident is equivocal. When asked,
“[o]ne way or the other, you can’t remember if you had any marijuana that day,” Mr. Powell
responded, “[n]o, I told you I did this morning.” [#107-1 at 21:21-23]. Therefore, contrary to
Plaintiff’s argument, Mr. Powell’s deposition testimony is not unclear as to whether he used
marijuana the day of the accident. As the unrebutted testimony stands at this point, Mr. Powell
testified that he used marijuana that day, and his only equivocation is about the precise time of
use.
6
Nevertheless, I find that evidence of Mr. Powell’s marijuana use should be precluded
because expert testimony is necessary to establish the inference the Reams Defendants seek, i.e.,
that Mr. Powell’s use of marijuana rendered him impaired, resulting in the negligent operation of
his motor vehicle. A review of cases in the Tenth Circuit addressing similar issues indicates that
testimony regarding the impact of marijuana use on the operation of a vehicle is generally
offered through an expert witness. See, e.g., Indemnity Ins. Co. of North America v. Pettit, No.
04–CV–23–B, 2006 WL 8432396 (D. Wyo. Apr. 10, 2006); BNSF Railway Company v. Lafarge
Southwest, Inc., No. 06–1076 MCA/LFG, 2009 WL 9144600 (D.N.M. Jan. 27, 2009). Indeed, in
the case the Reams Defendants cite in support of their argument, an expert witness was used to
offer such testimony. See Durham v. Cty. of Maui, 742 F. Supp. 2d 1121 (D. Hawai’i 2010). In
Durham, a case involving fatal injuries resulting from an automobile accident, the plaintiffs
sought to exclude any evidence regarding a postmortem blood test and any testimony by the
physician who administered the test regarding the presence of tetrahydrocannabinol (“THC”) in
the decedent’s blood sample. The magistrate judge determined on referral that the physician’s
testimony was admissible under Rule 702 and relevant to the claims presented, and the district
court overruled plaintiffs’ objections. Id. at 1129-30. For the purpose of their argument, the
Reams Defendants rely on the Durham court’s finding that the jury could reasonably infer from
the postmortem blood test that marijuana had impacted the decedent’s ability to operate the
vehicle in a safe manner, notwithstanding the absence of opinion by the physician regarding
impairment. Id. at 1130-31. However, the defendants in Durham had designated the physician
as an expert witness for the purpose of his testifying as to both the presence of THC in the
decedent’s blood stream and the decedent’s recent use of marijuana prior to the accident. And
the cases relied on by the Durham court similarly involve the introduction of evidence, through
7
expert testimony, of the presence of THC or other impairment-causing narcotics in the system at
the time of the subject accidents. 3,4
The court finds the Pettit decision to be more instructive. The Pettit court considered a
motion in limine to suppress expert testimony regarding the presence of marijuana in the system
of one of the four individuals killed in the underlying automobile accident.
The plaintiff
insurance company argued that the expert testimony was not relevant or reliable because neither
expert could testify to a reasonable degree of probability that the decedent’s driving ability was
impaired by marijuana, and that the prejudice resulting from any evidence of marijuana use by
the decedent substantially outweighed its relevance because the jury would be encouraged to
speculate about the cause of the accident.
Pettit, 2006 WL 8432396, at *2.
That court
considered expert testimony that marijuana produces 30–40 chemical compounds in the body,
known as cannabinoids, and that “[t]he only cannabinoid with psychoactive properties that may
cause impairment is…THC,” marijuana impairment occurs only when THC is in a person’s
blood, THC typically moves out of the blood within approximately four hours, and “[t]he only
chemical test that can provide a reliable foundation for a conclusion about impairment at any
3
See also Sundance Energy Oklahoma, LLC v. Dan D. Drilling Corp., No. CIV–13–991–R,
2015 WL 1957090, at *5 (W.D. Okla. Apr. 29, 2015) (admitting evidence as to decedent’s drug
use, despite lack of expert opinion as to impairment, where plaintiff presented evidence through
expert witness that decedent had methamphetamine in his system at time of accident and had
disobeyed orders regarding a drilling line, which led to the fatal accident, and where expert
testified as to possible effects of methamphetamine on a person’s behavior, “including causing
impulsive and aggressive behavior”).
4
The court also notes that the Durham court reasoned that “[e]vidence of drug consumption,
when combined with other evidence attributing fault, may be highly relevant to the issue of the
causal relationship between [a party’s conduct] and [ ] the injuries.” Durham, 742 F. Supp. 2d at
1130 (internal quotation marks and citation omitted) (emphasis added). Notwithstanding the
designation of Mr. Powell as a nonparty at fault, the Reams Defendants do not identify in their
Response other evidence in the record that attributes fault to Mr. Powell, and, for reasons
discussed later in this Order, the Reams Defendants will be precluded from admitting evidence
that Mr. Powell was speeding at the time of the accident.
8
particular time is a contemporaneous blood test for THC.” Id. at *3. That court also considered
that none of the postmortem tests established that THC was in the decedent’s blood at the time of
the accident, and thus the court found that the blood and urine tests showing the decedent’s past
marijuana use were “unreliable and irrelevant to whether [he] was impaired by marijuana at the
time of the accident.” Id. at *4.
Here, there is no evidence regarding whether the marijuana Mr. Powell smoked contained
the THC component, or even assuming it did, its concentration level. Furthermore, he testified
that he smoked marijuana at approximately 10:00 a.m., and the accident occurred at
approximately 7:00 p.m. There is no evidence in the record demonstrating that THC was in Mr.
Powell’s blood stream when the accident occurred, and the expert testimony in Pettit suggests
that THC would have left his system in the intervening nine hours.
Evidence is unfairly
prejudicial when it has an “undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” Advisory Committee Notes to Federal Rule of
Evidence 403. The Reams Defendants have not disclosed an expert witness to present testimony
that THC was in Mr. Powell’s system, or that his ability to drive was likely impaired by the
marijuana he had smoked that morning. See [#87 at 15]. Without evidence that THC was in fact
in Mr. Powell’s blood stream at the time of the accident, or any instruction from an expert
witness as to the timeline during which THC could have remained in Mr. Powell’s system for the
purpose of causing impairment or what effect such THC could have on Mr. Powell’s ability to
drive, I find both that his use of marijuana the morning of the accident is not relevant to any
claim that he was negligent in the operation of the truck that struck the cow, and that any
probative value associated with evidence of Mr. Powell’s use of marijuana is substantially
9
outweighed by the potential of unfair prejudice and possibility of confusing and/or misleading
the jury. The court will GRANT the Motion in Limine as to this issue.
II.
Evidence Regarding the Speed of Mr. Powell’s Truck
A. Arguments
Plaintiff also asks the court to preclude during trial the admission of evidence, and
associated argument, regarding Trooper Hanson’s estimation of speed at which Mr. Powell’s
truck was traveling at the time of the accident. [#100 at 6]. Trooper Hanson is the law
enforcement officer who investigated the accident and drafted an accident report. During his
deposition and in the accident report, Trooper Hanson estimated that the truck was traveling at
approximately 65 miles per hour when it struck the cow.5 He based this estimation on statements
offered by witnesses Jonathan White and Misty Galley and on accident reconstruction
calculations that he performed with the help of a fellow state patrol trooper. See [#100-1 at
57:23-58:11, 60:8-61:9, 61:24-62:17, 63:1-67:17]. Plaintiff contends that Trooper Hanson was
not disclosed as an expert under Federal Rule of Civil Procedure 26(a)(2), and argues that the
estimation of speed based on the accident reconstruction calculations should be precluded as
inadmissible under Fed. R. Evid. 702 and, to the extent the estimate is based on the statements of
Ms. Galley and Mr. White, it should be precluded as inadmissible hearsay. [#100 at 7]. The
Reams Defendants argue in response that the testimony they wish to designate from Trooper
Hanson’s deposition does not concern “‘expert’ type opinions, but [is] rather based upon his
perceptions and the results of his observations,” and, moreover, the accident report is admissible
under Fed. R. Evid. 803(8) as a public record. [#107 at 5-6]. In Reply, Plaintiff argues that
whether or not the accident report is admissible is not dispositive. Rather, Plaintiff contends that
5
Trooper Hanson is not available for trial and the Parties have designated portions of his
deposition testimony to be read into the record.
10
Trooper Hanson’s testimony regarding Mr. Powell’s alleged speed is based on second-hand
information from lay witnesses, as he did not personally observe the rate of speed of Mr.
Powell’s vehicle, and that statements regarding the speed contained in the accident report are
unreliable double hearsay. [#140]
B. Applicable Law and Findings
The court agrees with Plaintiff that the estimation of speed based on the accident
calculations is testimony “based on scientific, technical, or other specialized knowledge,” which
must be offered within the scope of Rule 702. Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. By contrast, under Rule 701 testimony must be (1) rationally based on the
witness’s perception; (2) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (3) not based on scientific, technical, or specialized knowledge
within the scope of Rule 702.
Fed. R. Evid. 701.
“The perception requirement stems
from F.R.E. 602 which requires a lay witness to have first-hand knowledge of the events he is
testifying about so as to present only the most accurate information to the finder of fact.”
Dahlberg v. MCT Transportation, LLC, 571 F. App’x 641, 649 (10th Cir. 2014) (quoting United
States v. Bush, 405 F.3d 909, 916 (10th Cir. 2005) (internal quotation marks omitted)). “The
non-scientific-knowledge requirement, in turn, prohibits lay witnesses from expressing opinions
as to matters ‘which are beyond the realm of common experience and which require ... special
11
skill and knowledge.’” Dahlberg, 571 F. App’x at 649 (quoting James River Ins. Co. v. Rapid
Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011)).
Trooper Hanson testified that he arrived at the scene of the accident at approximately
8:00 p.m., about an hour after the collision occurred, see [#110-2 at 15:4-8], and proceeded to
take measurements at the scene for the purpose reconstructing the accident and writing an
accident report.
He testified that he “had one of our victim crime units” help him with
calculations regarding skid distance and drag factor, which helped them calculate the speed of
the truck when it collided with the cow: “I provided [the officer from the victim crime unit]
numbers and he plugged and played with the equations.” [#100-1 at 62:3-17; 62:24-66:9]; see
[#100-2 at 12-15]. Trooper Hanson’s estimations regarding speed are thus not the product of his
own perceptions or of experience common to everyday life; rather, the estimation is the product
of a collaborative effort using technical and/or specialized knowledge and the application of
multiple mathematic formulas.
See Fed. R. Evid. 701, Advisory Committee Note 2000
Amendment (“[T]he distinction between lay and expert witness testimony is that lay testimony
results from a process of reasoning familiar in everyday life, while expert testimony results from
a process of reasoning which can be mastered only by specialists in the field.”) (quotation marks
and citations omitted)).
The Reams Defendants did not disclose Trooper Hanson as an expert witness, and thus
any testimony he offers must be limited to the confines of Rule 701.6 See Dahlberg, 571 F.
App’x at 650 (noting, where defendants did not follow Rule 26(a)’s expert-disclosure
requirements, that the “dispositive question” was whether the officer’s testimony “about the safe
6
Plaintiff also asserts that the Reams Defendants could not have offered Trooper Hanson as an
expert witness because he has only Level I and Level II accident investigation training and has
never been qualified as an expert in accident reconstruction. [#100 at 8 (citing #100-1 at 9:6-21,
62:21-23]. The Reams Defendants do not respond to this contention, and the court does not pass
on it.
12
speed of travel and lack of driver error was based on his special skill and knowledge as a police
officer…or on his firsthand perceptions…”). As stated above, Rule 701 limits testimony in
relevant part to that which is “rationally based on the witness’s perception.” Fed. R. Evid.
701(a). The “prototypical example[s] of the type of evidence contemplated by the adoption of
Rule 701 relate[] to the appearance of persons or things, identity, the manner of conduct,
competency of a person, degrees of light or darkness, sound, size, weight, distance, and an
endless number of items that cannot be described factually in words apart from inferences.” Fed.
R. Evid. 701, Advisory Committee Note 2000 Amendment. Trooper Hanson arrived after the
accident occurred and thus did not witness Mr. Powell driving or the truck’s impact with the
cow. See [#100-1 at 59:18-24]. Accordingly, while Trooper Hanson could offer testimony
under Rule 701 as to the darkness of the night, the road conditions at the time he arrived on
scene, or the location of the truck’s skid marks, he does not possess the first-hand knowledge
necessary to opine as to the speed of the truck. Cf. Dahlberg, 571 F. App’x at 650 (concluding
that officer’s testimony regarding safe speed of travel was based on his perception “as a highway
motorist on the day of the accident,” and that it resulted “from a process of reasoning familiar in
everyday life.”). Therefore, the Parties will be precluded from offering Trooper Hanson’s
testimony regarding his estimate of the speed at which Mr. Powell was driving directly before
the accident and at the time of the collision.7
To the extent the Reams Defendants offer Trooper Hanson’s deposition testimony about
his conversations with Ms. Galley and Mr. White regarding their perception of how fast Mr.
Powell was traveling in the truck, the court agrees with Plaintiff that any such testimony
7
The court notes that Trooper Hanson testified at his deposition that he did not believe that the
speed of Mr. Powell’s truck was a contributing factor, “because even if he would have been
going the posted speed limit, he probably would have still hit the animal in the roadway...[the
cow] was laying down…[a]nd it was a black cow on a black highway at an unlit area.” [#110-2
at 52:24-53:11].
13
constitutes inadmissible hearsay. Hearsay is defined as a statement the declarant makes outside
of testifying at the current trial or hearing, which a party offers in evidence to prove the truth of
the matter asserted in the statement. Fed. R. Evid. 801(c). Additionally, and with the exception
of expert testimony offered pursuant to Rule 703, a witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter. Fed. R. Evid. 602. It is undisputed that Trooper Hanson did not have personal
knowledge of the vehicle’s speed, as he did not arrive at the scene of the collision until after it
occurred. During his deposition, Trooper Hanson testified that Ms. Galley told him “that she
was going the posted speed or a little bit slower,” when Mr. Powell passed her on the road right
before the collision. [#100-1 at 57:23-58:11]. Trooper Hanson also testified that he “ask[ed] Mr.
White how fast he thought the Toyota pickup was going. He thought about 65, as well,” based on
the fact that “[h]e was standing on the shoulder of the roadway right north of where the livestock
was in the roadway waving his arms,” and “he said based on how fast the vehicle that passed
him, he felt it was about 65.” [Id. at 60:19-61:3].
The Reams Defendants do not specifically address Plaintiff’s argument that the rule
prohibiting hearsay prevents Trooper Hanson from testifying as to Ms. Galley and Mr. White’s
comments regarding the speed of the truck. Rather, they argue that Trooper Hanson’s accident
report, which includes the estimation of speed¸ see e.g. [#100-2 at 12], does not constitute
hearsay because it qualifies as a public record under Fed. R. Evid. 803(8). Public records are
considered exceptions to hearsay if: (1) the record sets out the office’s activities and a matter
observed while under a legal duty to report, or factual findings from a legally authorized
investigation; and (2) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness. Fed. R. Evid. 803(8). Here, even assuming the
14
accident report constitutes a public record, the estimation regarding speed derives either from
evidence that must be offered by an expert witness pursuant to Rule 702 (i.e., the calculations of
estimated speed found at [#100-2 at 12-15]), or from inadmissible hearsay. Rule 701 precludes
Trooper Hanson from testifying as a lay witness as to an estimation of speed derived from
technical or specialized knowledge, and he cannot testify as to his own perceptions regarding the
truck’s speed because he did not witness the accident. Accordingly, the court will GRANT the
Motion in Limine as to this issue as well, and will preclude the admissibility of [#100-2 at 1215].
III.
Deposition Exhibit 47
Finally, Plaintiff asks the court to redact or otherwise preclude during trial the admission
of a paragraph included in Deposition Exhibit 47, which is a letter written by Earl Reams and
addressed to CDOT, mailed March 22, 2005 (the “Letter”). [#100-3]. The paragraph in dispute
reads:
Please accept this letter as official notification as described in C.R.S. § 35-46-111
that states “...it is the duty of the division of highways to maintain right-of-way
fences along and adjacent to all federal aid highways constructed by the division,
where such highways are maintained by the division.” In further explanation of
this law, the CCA News goes on to explain “However, they only have the duty to
repair such fences upon actual notice that the fence is in need of repair. It is the
duty on both motorists and landowners to give that notice.”
[#100 at 11]. Plaintiff argues that presentation of the partial quote from Colo. Rev. Stat. § 35-46111 “invades the province of the court to instruct the jury on the law,” and is misleading “in that
it creates the impression that CDOT has an unequivocal duty to maintain fencing along all
highways when, in reality, CDOT is only responsible for maintaining CDOT fencing that already
exists.” [Id.] The Reams Defendants contend in response that the suggested redaction “would
result in the letter not making sense,” and the court can both instruct the jury not to view the
15
letter as an accurate statement of law and provide the jury with appropriate instructions regarding
the applicable legal standards at the conclusion of the trial. [#107 at 7]. In Reply, Plaintiff
asserts that the Reams Defendants fail to articulate how the proposed redaction would create
confusion under Rule 403 of the Federal Rules of Evidence, and that leaving the statement intact
would cause confusion. [#140 at 9-10].
Up until the time the Parties settled, Plaintiff was asserting a statutory claim against
CDOT under Colo. Rev. Stat. 35-46-111. The statute states in relevant part that neither CDOT
“nor the landowner is liable for any damages caused by the failure to adequately construct,
maintain, or repair the right-of-way fence unless actual notice is given to [CDOT].” Colo. Rev.
Stat. § 35-46-111(1)(a). Since the filing of the Motion in Limine, Plaintiff and CDOT have
settled, [#135], thus eliminating the statutory claim from this action. The court finds that the
Letter is relevant to at least the issue of apportioning fault between CDOT and the Reams
Defendants, see Colo. Rev. Stat. § 13-21-111.5(2).
The court also finds that the statute is properly quoted, albeit not in its entirety.
Nonetheless, the court will require that a portion of the paragraph be redacted, as the portion
characterizes a legal obligation:
In further explanation of this law, the CCA News goes on to explain “However,
they only have the duty to repair such fences upon actual notice that the fence is
in need of repair. It is the duty on both motorists and landowners to give that
notice.”
[#100-3]. As to the remainder of the paragraph, the court finds that it can address, and avert, any
potential confusion the partial quote might cause the jury by instructing the jury appropriately
prior to discharging the jurors for deliberation. See, e.g., Weeks v. Angelone, 528 U.S. 225, 234
(2000) (“A jury is presumed to follow its instructions.”).
As part of its final instructions,
the court will inform the jury that its instructions are the law to be applied to this case and, to the
16
extent any party’s argument and/or any evidence is contrary to the court’s instructions,
the court’s instructions must prevail.
For the foregoing reasons, IT IS ORDERED that Plaintiff’s Partially Unopposed Motion
in Limine [#100] is GRANTED IN PART and DENIED IN PART.
DATED: May 31, 2018
BY THE COURT:
_________________________
United States Magistrate Judge
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