Ballard v. Keen Transport, Inc. et al

Filing 106

ORDER granting in part and denying in part 94 Motion in Limine. Defendants are ORDERED TO SHOW CAUSE why their comparative negligence per se claim should not be dismissed. Defendants must file all their evidence within 7 days of the pretrial conference. Ballard has 7 days from the Defendants' filing to enter a response. Replies shall only be allowed with leave of Court. Signed by Judge B. Avant Edenfield on 05/24/2011. (lmm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JAMES C. BALLARD,
Plaintiff,
v.

4: 10-cv-54

KEEN TRANSPORT, INC., WILLIAM
J. BROWN, and ZURICH AMERICAN
INSURANCE COMPANY,
Defendants.
ORDER
I. INTRODUCTION
Plaintiff James Ballard (“Ballard”) has
filed a motion in limine to exclude certain
subjects and witnesses from the trial of this
case. See Doc. 94.
II. ANALYSIS
A. Past Drug and Alcohol Use
Defendants agree not to introduce any
evidence of Ballard’s drug or alcohol abuse
unless he opens the door. See Doc. 95 at 1.
Plaintiff’s motion in limine, see Doc. 94, is
MOOT on this point.
B. Past Mental Health Treatment
Ballard argues that any evidence
regarding his past mental health treatment is
irrelevant because he is not claiming “the
wreck caused a brain injury or severe
depression.” See Doc. 94 at 3. But Ballard
is claiming damages for “mental and
psychological suffering.” See Doc. 1-1 at 6.
Ballard cites fifteen cases to the Court for
the proposition that “[P]laintiffs do not place
their mental condition in controversy merely

by claiming damages for mental anguish or
‘garden variety’ emotional distress.” See
Doc. 104 (quoting Stevenson v. Stanley
Bostitch, Inc., 201 F.R.D. 551, 553 (N.D.
Ga. Mar. 21, 2001)).
None of these cases are pertinent.
Ballard’s fifteen cases discuss: (1) whether a
litigant placed his mental condition “in
controversy” for purposes of ordering an
examination under Federal Rule of Civil
Procedure 35(a), see, e.g., Stevenson, 201
F.R.D. at 553, or (2) whether a litigant
placed his mental condition “‘at issue’ and
has therefore waived the psychotherapistpatient privilege,” see, e.g., DominguezSilva v. Harvey, 2006 WL 826091, at *2
(N.D. Ga. Mar. 23, 2006).
Here, the question is whether Ballard’s
claim for “mental and psychological
suffering,” see Doc. 1-1 at 6, makes his past
mental health treatment relevant. See Doc.
94 at 2. That is, whether such evidence has
“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.” F ED. R. E VID. 401.
Evidence regarding Ballard’s past
mental health treatment could make it less
likely that his psychological suffering
resulted from his collision with Defendants’
vehicle. This probative value is not
“substantially outweighed by the danger of
unfair prejudice.” See F ED. R. E VID. 403.
Plaintiff’s motion in limine, see Doc. 94,
is DENIED on this point.

until the plaintiff presented his damages
claims at trial. 2010 WL 3070376, at *4
(E.D. La. Aug. 2, 2010). The Court will
take the same position here as to Ballard’s
seven divorces. The Court reserves ruling
until Ballard presents his damages claims at
trial.

C. Dr. Michael Hilton
Ballard moves to exclude Dr. Hilton’s
testimony as irrelevant. See Doc. 94 at 3.
For the same reasons cited above, Dr.
Hilton’s is relevant and admissible.
Ballard also objects to Dr. Hilton
offering undisclosed opinions and
commenting on Ballard’s truthfulness. See
id. Dr. Hilton’s testimony regarding
Ballard’s pre-existing mental and physical
injuries were fairly disclosed in his expert
report. See Doc. 24 at 2-3. Neither Dr.
Hilton nor any other witness may comment
on the truthfulness of a witness. See
Snowden v. Singletary, 135 F.3d 732, 737
(11th Cir. 1998).

But even if Defendants find it necessary
to qualify the jury as to these women, there
is no reason to refer to them as Ballard’s exwives.
Plaintiff’s motion in limine, see Doc. 94,
is GRANTED IN PART AND DENIED IN
PART on this point.
E. Tractor’s Registration &
Comparative Negligence

Plaintiff’s motion in limine, see Doc. 94,
is GRANTED IN PART AND DENIED IN
PART on this point.

Defendants intend to introduce evidence
that the tractor Ballard was driving was not
registered to be on a public road in violation
of O.C.G.A. § 40-2-20. See Docs. 95 at 2-3;
93 at 5. Defendants assert that this fact is
relevant to a comparative negligence per se
claim. See id.

D. Ballard’s Marriages
Ballard objects to the Defendants
introducing testimony regarding his eight
marriages to seven women as an attempt to
malign his character. See Doc. 94 at 4.
Defendants argue that the testimony is
relevant to Ballard’s emotional distress, pain
and suffering, and loss of enjoyment of life
claims. See Doc. 95 at 2. Defendants also
assert that they need to ask potential jurors
whether they know any of Plaintiff’s eight
wives, see Docs. 95 at 2, but then they omit
any such questions from their proposed voir
dire, see Doc. 98.

Defendants have yet to present any
evidence that would suggest how the
registration status of Ballard’s vehicle could
have caused the collision.
For a violation of the statute to be
negligence per se, the violation ‘must be
capable of having a causal connection
between it and the damage or injury
inflicted upon the other person.’ This
refers not to the proximate cause element
of the negligence action, which the
Defendants still must prove by a
preponderance of the evidence, but rather
to the character of the legal duty
involved. Is this statutory duty one which,

In Savarese v. Pearl River Navigation,
Inc., the court suggested that the plaintiff’s
divorce and child custody proceedings could
be relevant to the plaintiff’s loss of
enjoyment of life claim, but reserved ruling
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if breached, is capable of producing
injury . . .

less likely the collision caused Ballard’s
shoulder injuries.

Cen. Anesthesia Assocs. P. C. v. Worthy, 173
Ga. App. 150, 153 (1984) (quoting
Etheridge v. Guest, 63 Ga. App. 637, 640
(1940)); see also Xpress Cargo Sys., Inc. v.
McMath, 225 Ga. App. 32, 32 (1997)
(evidence that a plaintiff or defendant driver
in an automobile personal injury case had no
valid license is inadmissible unless a causal
connection exists between the accident and
the absence of a license).

Plaintiff’s motion in limine, see Doc. 94,
is DENIED on this point.
G. Benefits from Collateral Sources
Defendants agree not to introduce any
evidence of collateral sources unless he
opens the door. See Doc. 95 at 1. Plaintiff’s
motion in limine, see Doc. 94, is MOOT on
this point.
III. CONCLUSION

“It matters not whether the [plaintiff
driving his unregistered tractor on a
highway] may be considered negligence or
negligence per se in violation of the [traffic
code]—it cannot, alone, leap the common
law’s chasm of causation.” Lumpkin v.
Mellow Mushroom, 256 Ga. App. 83, 85
(2002).

Plaintiff’s motion in limine, see Doc. 94,
is GRANTED IN PART AND DENIED IN
PART.

This 24th day of May 2011.
?

s

B AVANT PDENFIELØ, JUDGE
UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

Defendants are ORDERED TO SHOW
CAUSE why their comparative negligence
per se claim should not be dismissed.
Defendants must file all their evidence
within seven (7) days of the pretrial
conference. Ballard has seven (7) days from
the Defendants’ filing to enter a response.
Replies shall only be allowed with leave of
Court.
F. 2006 Porch Attack
Ballard moves to exclude testimony
regarding a 2006 assault that occurred on his
porch. See Doc. 94 at 5. But he sustained
an injury to his right shoulder in that
attack—the same shoulder Ballard claims
required surgery because of the collision in
this case. See Doc. 95 at 3-4. Defendants
have the right to offer evidence that makes it
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