Hammond v. System Transport, Inc. et al

Filing 62

ORDER & OPINION entered by Judge Joe Billy McDade on 4/26/13: IT IS THEREFORE ORDERED that Defendants' Motion in Limine 52 is DENIED IN PART and GRANTED IN PART and Defendants' Motion for Protective Order 53 is DENIED IN PART and GRANTE D IN PART. Defendant Austin SHALL appear for a deposition within twenty-eight days of the date of this Order. Evidence of Defendant Austin's observations or actions prior to the vehicle collision WILL NOT be admitted at trial, and Plaintiff SHAL L refrain from asking questions about them during the deposition. Plaintiffs amended response to Defendants' Motion for Summary Judgment is DUE twenty-one days after the deposition of Defendant Austin. Defendants' reply to this response is DUE fourteen days after Plaintiff's response is filed. The currently scheduled dates the final pretrial conference and trial are VACATED, to be reset after the pending Motion for Summary Judgment is resolved. SEE WRITTEN ORDER. (AEM, ilcd)

E-FILED

Friday, 26 April, 2013 03:10:30 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
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Plaintiff,
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v.
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SYSTEM TRANSPORT, INC., a
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Washington corporation, TRANSSYSTEM, INC., an Indiana corporation, )
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and ROBERT D. AUSTIN,
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Defendants.
CURTIS J. HAMMOND, JR., as
Independent Administrator of the Estate
of CURTIS J. HAMMOND, SR.,
Deceased, and CURTIS J. HAMMOND,
JR., as Independent Administrator of the
Estate of EILEEN M. HAMMOND,
Deceased,

Case No. 11-cv-1295

ORDER & OPINION
This matter is before the Court on Defendants’ Motion in Limine (Doc. 52)
and Defendants’ Motion for Protective Order (Doc. 53). Plaintiff filed Responses in
opposition to both Motions (Docs. 55 & 56).1 For the reasons stated below, both
Motions are denied in part and granted in part.
BACKGROUND2
On July 30, 2011, a semi-tractor trailer driven by Defendant Robert Austin
collided with a vehicle driven by Curtis J. Hammond, Sr. at the intersection of U.S.
Routes 136 and 24 in Fulton County, Illinois. Defendant Austin was an employee of
Defendants’ Motion for Summary Judgment as to Counts IX and X (Doc. 49) is also
pending, which has not been fully briefed and will not be decided in this Order.
2 Unless otherwise noted, the facts in this background section are undisputed, as
they were admitted in Defendants’ Amended Answer (Doc. 37).
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Defendants System Transport, Inc., and Trans-System, Inc., who owned, operated,
and maintained the semi-tractor trailer. Both Curtis J. Hammond, Sr. and Eileen
M. Hammond, the passenger of the vehicle, died as a result of the crash.
Plaintiff Curtis J. Hammond, Jr., as the Administrator of the Estates of
Curtis J. Hammond, Sr. and Eileen M. Hammond, filed a ten-count First Amended
Complaint against Defendants on August 29, 2011. (Doc. 5). Counts I, III, V, and
VII seek recovery under the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. 180/1
et seq. Defendants have admitted liability with respect to these wrongful death
claims,3 but dispute the extent of damages. Counts IX and X seek recovery under
the Illinois Survival Act, 755 Ill. Comp. Stat. 5/27-6. In the pending Motion for
Summary Judgment, Defendants seek dismissal of these two claims as a matter of
law. Counts II, IV, VI, and VIII were previously dismissed upon Defendants’
motion. (Doc. 34).
DISCUSSION
Both of Defendants’ Motions primarily revolve around one question: What
evidence is relevant to prove damages for grief, sorrow, and mental suffering in an

Plaintiff appears to dispute that Defendants have admitted liability. However, in
Defendants’ Amended Answer, under each of these four counts, the relevant
Defendants “admit that [P]laintiff has established sufficient evidence of the claim
alleged in [this Count] and [Defendants] acknowledge liability for the same, but
deny the extent of claimed damages.” (E.g., Doc. 37 at 7). Defendants also
acknowledge their admission of liability in the present Motions. Moreover, though
no more is needed, the Minute Entry for proceedings before Magistrate Judge John
Gorman on November 14, 2012, states “[t]he Court finds that the [D]efendants have
admitted liability based on [D]efendants[’] statements and filed pleadings. Case will
therefore proceed with the liability admitted on behalf of [D]efendant[s].” (Docket
Entry, Nov. 14, 2012). Plaintiff can rest assured that Defendants have, in fact,
admitted liability for these claims, and the only issue to be tried is the amount of
damages.
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Illinois Wrongful Death Act claim? Defendants contend that evidence of the events
and circumstances leading up to and including the vehicle accident are irrelevant
and inadmissible. Plaintiff disagrees, arguing that under the amended version of
the Wrongful Death Act, allowing for damages for the emotional impact of the
death, evidence of the circumstances of the accident is relevant.
Defendants rely almost exclusively on the holding of one case in support of
their Motions. They argue that the Illinois Supreme Court has held that evidence of
the events leading up to an accident and the defendant’s failure to stop afterwards
are not relevant to a claim for damages under the Wrongful Death Act. Bullard v.
Barnes, 468 N.E.2d 1228, 1235 (Ill. 1984), aff’g 445 N.E.2d 485 (Ill. App. Ct. 1983).
Further, in the appellate decision, the court stated that any evidence of the “means
of his demise and the operative facts of the accident were immaterial.” Bullard, 445
N.E.2d at 492. As a result, Defendants argue, 1) any evidence of or reference to the
circumstances leading up to and including the accident should be excluded at trial
(Doc. 52 at 1); and 2) any information Defendant Austin could provide at a
deposition would be irrelevant to Plaintiff’s claim and thus such a deposition would
serve only to annoy embarrass, oppress, or place undue burden on Defendants (Doc.
53 at 3). Before turning to the substance of Defendants’ Motions, the Court will
provide an overview of the Wrongful Death Act and address the applicability of
state and federal law to these issues.
I. Damages under the Illinois Wrongful Death Act
The Illinois Wrongful Death Act allows a decedent’s spouse and next of kin to
recover damages for the injuries from a wrongful death. 740 Ill. Comp. Stat. 180/1

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to 180/2. The relevant portion for purposes of the present Motions states: “In every
such action the jury may give such damages as they shall deem a fair and just
compensation with reference to the pecuniary injuries resulting from such death,
including damages for grief, sorrow, and mental suffering, to the surviving spouse
and next of kin of such deceased person.” Id. § 2.
The term “pecuniary injuries” has long been interpreted by Illinois courts to
include non-economic losses, specifically loss of society. Elliott v. Willis, 442 N.E.2d
163, 168 (Ill. 1982). Loss of society is the “deprivation of love, companionship, and
affection from the deceased person.” Turner v. Williams, 762 N.E.2d 70, 77 (Ill. App.
Ct. 2001). However, courts specifically distinguished damages based on grief or
mental anguish, which they found were not allowable under the Act. E.g., id.4 Then,
in 2007, the Illinois legislature amended the Wrongful Death Act to allow for these
previously unrecoverable damages. The only change to the operative language of the
Act was to add the words “including damages for grief, sorrow, and mental
A footnote from a Supreme Court opinion discussing a wrongful death claim based
on federal law helps to clarify the distinction between these two different bases for
damages:
Loss of society must not be confused with mental anguish or grief,
which is not compensable under the maritime wrongful-death remedy.
The former entails the loss of positive benefits, while the latter
represents an emotional response to the wrongful death. The difference
between the two is well expressed as follows: ‘When we speak of
recovery for the beneficiaries' mental anguish, we are primarily
concerned, not with the benefits they have lost, but with the issue of
compensating them for their harrowing experience resulting from the
death of a loved one. This requires a somewhat negative approach. The
fundamental question in this area of damages is what deleterious
effect has the death, as such, had upon the claimants? In other areas of
damage, we focus on more positive aspects of the injury such as what
would the decedent, had he lived, have contributed in terms of support,
assistance, training, comfort, consortium, etc.[’]
Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 585 n.17 (1974) (citation omitted).

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suffering” to the description of available damages. See H.B. 1789, 95th Gen.
Assemb., Reg. Sess. (Ill. 2007). The amendment only applied to claims accrued after
May 31, 2007. Id. In the six years since then, no reported court decision has
squarely confronted the issue of whether evidence of the manner of death is
relevant to this type of damages claim.
II. Erie Doctrine
A federal court exercising its diversity jurisdiction over a state law claim
applies state substantive law, but it applies federal procedural law. Hanna v.
Plumer, 380 U.S. 460, 465 (1965). The Federal Rules of Evidence typically control
on matters of admissibility of evidence. E.g., Barron v. Ford Motor Co. of Can. Ltd.,
965 F.2d 195, 198-99 (7th Cir. 1992); In re Air Crash Disaster Near Chi., Ill. on May
25, 1979, 701 F.2d 1189, 1193 (7th Cir. 1983). Thus, the substantive law of the state
of Illinois5 applies to this case, but its procedural rules yield to federal procedural
rules. The parties failed to address this important issue in their briefs.
Defendants rely heavily on the state court decisions in Bullard to support
their arguments regarding admissibility of evidence, without explaining their force
and effect in this Court. As explained below, to the extent Illinois state courts would
extend the Bullard rule6 to preclude evidence of the circumstances and manner of

The Court previously concluded that Illinois law applied to the dismissed punitive
damages claims, (Doc. 34 at 25-26), and the same analysis supports applying Illinois
law to the other claims, which the parties do not appear to contest.
6 For many of the same reasons the Court concludes evidence of the manner of
death is relevant in this case, the Court believes Illinois state courts would reach
the same conclusion. However, because it is a procedural rule, the Court need not
make such a determination.
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death to prove damages claims for grief, sorrow, and mental suffering, the rule is
procedural and thus not binding on this Court under the Erie doctrine.
The Federal Rules of Evidence apply to determine whether particular
evidence is admissible in federal court. In re Air Crash Disaster, 701 F.2d at 1193;
Fed. R. Evid. 1101. However, “the relevance of the evidence is ascertainable only by
reference to the substantive law of the state.” In re Air Crash Disaster, 701 F.2d at
1193 (“To the extent that the state evidentiary rule defines what is sought to be
proved—here, the measure of damages—it may bind the federal court under Erie
principles.”); see also 22A Charles Alan Wright et al., Federal Practice and
Procedure § 5201 (2d ed. 2013) (“[B]ecause of the interrelationship between the
substantive law and the question of relevance, it is often difficult to determine
whether a state decision on admissibility of evidence is premised on some
peculiarity of the local substantive law or on an idiosyncratic notion of relevance.”).
If a rule is “closely linked with the state’s view of the measure of damages,” it is
binding under Erie. In re Air Crash Disaster, 701 F.2d at 1194. However, if the rule
is based simply on the competence of a court to deal with a type of evidence, such as
a rule excluding evidence to avoid confusion, it is procedural, and “a federal court
may assess its own capabilities differently.” Id. at 1195. The difference between a
rule of evidence and a substantive rule is that “[a] pure rule of evidence, like a pure
rule of procedure, is concerned solely with accuracy and economy in litigation . . .
while a substantive rule is concerned with the channeling of behavior outside the
courtroom.” Barron, 965 F.2d at 199-200.

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The rule set forth in Bullard is focused on the accuracy of the litigation, and
does not define the damages available or attempt to channel behavior outside the
courtroom. The Illinois Supreme Court concluded:
On remand, no evidence regarding defendant Barnes' passing
maneuver or failure to stop after the collision should be admitted. We
agree with defendants' argument that this evidence is not relevant on
any issue to be retried and with the appellate court's opinion that its
admission constituted reversible error. Relevancy is established where
a fact offered tends to prove a matter in controversy (People v. Free
(1983), 94 Ill.2d 378, 413, 69 Ill.Dec. 1, 447 N.E.2d 218; Marut v.
Costello (1966), 34 Ill.2d 125, 128, 214 N.E.2d 768), and in view of
defendants' admission of liability, these matters were not in
controversy.
Bullard, 468 N.E.2d at 1235. This analysis is an application of the then-common
law rules of evidence in Illinois. Illinois courts applying this holding of Bullard have
similarly treated the holding as an application of the rules of evidence. See, e.g.,
Cancio v. White, 697 N.E.2d 749, 756 (Ill. App. Ct. 1998). Thus, Bullard was an
application of state evidentiary rules to a claim for loss of society and loss of support
damages, and the rule it established and any extension of it are procedural in
nature and not binding on this Court. Therefore, the Federal Rules of Evidence,
particularly Rules 401 and 402, will be applied to determine the admissibility of
evidence of the circumstances and manner of death in the present case, without
regard for the Bullard rule of exclusion.
III. Motion in Limine
Defendants seek to prohibit Plaintiff from “offering reference, evidence, or
argument concerning the events, facts, and circumstances leading up to and
including the accident during the voir dire of the jury, opening statements, the

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presentation of evidence and witnesses, and closing statements.” (Doc. 52 at 1).
They argue that such evidence is irrelevant.
The Court applies Rules 401 and 402 to determine if the contested evidence is
relevant to Plaintiff’s claim. However, as noted above, whether evidence is relevant
depends on state substantive law, which delineates the scope of the claim and
informs the decision of whether a fact is of consequence. See In re Air Crash
Disaster, 701 F.2d at 1193. Therefore, the Court must first apply state substantive
law to determine the scope of a claim for grief, sorrow, and mental suffering. The
Court will then apply the Federal Rules of Evidence to determine whether evidence
of the circumstances surrounding the accident in the present case is relevant to
Plaintiff’s claim.
A. State Substantive Law
In interpreting a state statute, a federal court must apply that state’s
statutory construction principles. See Brownsburg Area Patrons Affecting Change v.
Baldwin, 137 F.3d 503, 507 (7th Cir. 1998). In Illinois, the intent of the legislature
is of primary importance, and the “most reliable indicator” of that intent is the
language of the statute, “which is to be given its plain, ordinary and popularly
understood meaning.” People v. Powell (In re Det. of Powell), 839 N.E.2d 1008, 1015
(Ill. 2005). The courts “look to the well-known meaning of statutory terms at the
time the law was passed.” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc., 939
N.E.2d 487, 491 (Ill. 2010). The Illinois Supreme Court approves the use of
dictionaries to determine the meaning of terms undefined in the statute. Price v.
Philip Morris, Inc., 848 N.E.2d 1, 37 (Ill. 2005). Only if the language is ambiguous

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can courts consider legislative history or other interpretive aids. Powell, 839 N.E.2d
at 1015. If other states have similar laws, their decisions are “entitled to respect
and consideration.” Urban v. Loham, 592 N.E.2d 292, 296 (Ill. App. Ct. 1992)
(internal quotation marks omitted). A court can also examine “the reason and
necessity for the law, the evils to be remedied, and the objects and purposes to be
obtained.” Carter v. SSC Odin Operating Co., LLC, 976 N.E.2d 344, 355 (Ill. 2012).
In amending the Wrongful Death Act, the Illinois legislature chose not to
define the terms grief, sorrow, and mental suffering, instead contemplating that the
courts would make such interpretations. See Ill. H.R. Transcript, 95th Gen.
Assemb., 44th Legis. Day, at 54, 60.7 Though undefined, those terms have ordinary,
non-technical meanings. Grief is “suffering, pain, [or] distress,” or “emotional
suffering.” Webster’s Third New International Dictionary 998-99 (1986). Similarly,
sorrow is defined as “uneasiness or anguish due to loss.” Id. at 2175. These words
indicate the Illinois legislature clearly intended to expand the damages available
under the Wrongful Death Act to include recovery for the emotional impact on the
deceased person’s spouse and next of kin, distinct from the loss of companionship
already recoverable under the Act.
Of course, there is still the question of what the source of the grief, sorrow, or
mental suffering may be. The Act specifies that damages are given as the jury
deems to be “fair and just compensation with reference to the pecuniary injuries
resulting from such death, including damages for grief, sorrow, and mental
suffering.” 740 Ill. Comp. Stat. 180/2 (emphasis added). Thus, the grief, sorrow, and
Available at http://www.ilga.gov/house/transcripts/htrans95/09500044.pdf (last
visited Apr. 23, 2013).
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mental suffering are compensable only insofar as they are injuries stemming from
the wrongful death. This could be interpreted to mean only the grief from the mere
fact of death, or it could more broadly include the manner or circumstances of the
death. Death is defined in a variety of ways, including “the state of being no longer
alive” and “the act, process, or fact of dying.” Webster’s Third New International
Dictionary 581 (1986). Black’s Law Dictionary defines death as “[t]he ending of life;
the cessation of all vital functions and signs.” Black’s Law Dictionary 428 (8th ed.
2004). These definitions indicate that death, as ordinarily understood, includes
more than the mere fact that a person is dead. The intent of the legislature, based
on the meaning of these key terms, was to compensate for the spouse’s and next of
kin’s emotional consequences from the end of decedent’s life, including the process
or manner of death.
In the only reported Illinois case the Court could find discussing damages
under the amended version of the Act,8 there is a brief mention of what was
relevant to the affirmation of the damages award. The daughter of a decedent
brought a wrongful death claim against her brother, who had killed their mother.
Dougherty v. Cole, 934 N.E.2d 16, 17-18 (Ill. App. Ct. 2010). The defendant appealed
the jury award of $200,000 on the wrongful death claim, arguing it was “outside the
limit of fair and reasonable compensation.” Id. at 23. In affirming the award, the

There is one other recent state court decision that may appear to entirely reject
the new statutory provision for damages based on grief. Watson v. S. Shore Nursing
& Rehab. Ctr., LLC, 965 N.E.2d 1200, 1208 (Ill. App. Ct. 2012) (“[L]oss of society
does not include the grief and mental anguish resulting from the death, and such
damages are therefore not recoverable in a wrongful death suit.”). However, the
decedent in that case died a few days before May 31, 2007; thus, the amendment did
not apply to the claim.

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court said: “Considering Alycia's close relationship with her mother and the manner
in which she died, $200,000 is not outside the scope of fair and reasonable
compensation.” Id. (emphasis added). Though the issue was not central to the
appeal, this suggests that Illinois courts would agree the manner of death is within
the scope of the source of damages allowable for grief, sorrow, and mental suffering.
Moreover, if the grief were only compensable if it stemmed from the fact that the
loved one is no longer alive, it would be virtually indistinguishable from damages
for loss of society, already allowed before the Act was amended. Thus, the grief and
mental suffering resulting from the manner of death may be compensable under the
Wrongful Death Act.
Common sense further supports this reasoning. Anyone who has lost a loved
one knows that the manner in which he or she died can be the source of a large
portion of the grief, sorrow, and mental suffering that ensues. Therefore, it would
make sense for the Illinois legislature to intend to compensate for that emotional
suffering. Just as a peaceful death may bring comfort to grieving loved ones,
knowing that a loved one died a violent death could understandably increase the
resulting grief, sorrow, and mental suffering.
Other courts applying similar laws have reached similar conclusions. An
Arizona state court analyzed the state’s wrongful death statute and concluded that,
under the dictionary definition of “death,” and considering the remedial nature of
the statute, mental anguish from the manner of death was also compensable.
Girouard v. Skyline Steel, Inc., 158 P.3d 255, 259-60 (Ariz. Ct. App. 2007). Thus,
evidence concerning the circumstances of death was not irrelevant. Id. In addition,

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an Arkansas court applying their wrongful death act determined that the “violence
and suddenness of the death” was a factor that should be considered when
evaluating mental anguish. St. Louis Sw. Ry. Co. v. Pennington, 553 S.W.2d 436,
450 (Ark. 1977).
B. Relevance of Evidence under the Federal Rules
Having concluded that the amendment to the Wrongful Death Act broadened
the damages available to include recovery for the emotional consequences of a
wrongful death, including the manner of death, the Federal Rules of Evidence must
be applied to determine the admissibility of the challenged evidence. Evidence is
relevant if “(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining the
action.” Fed. R. Evid. 401. The threshold for relevance is very low. See United States
v. Boros, 668 F.3d 901, 903 (7th Cir. 2012). Irrelevant evidence is inadmissible. Fed.
R. Evid. 402.
The Fifth Circuit, considering the admissibility of evidence of the condition of
a person’s remains under the Federal Rules of Evidence, determined that such
evidence was not irrelevant to a claim for damages based on mental anguish in a
wrongful death case. Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1004
(5th Cir. 1998) (“We have little doubt that the knowledge that their husband and
father was decapitated and badly burned in the accident added to the Campbells'
mental anguish.”). Further, it was an abuse of discretion for the judge to exclude all
testimony as to the condition of the remains. Id. at 1005. However, certain types of

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evidence, such as photographs of the remains, could be excluded under Rule 403. Id.
at 1004.
Like in Campbell, the fact that the Hammonds died suddenly in a serious
vehicle accident may make it more probable that their next of kin experienced
compensable grief and sorrow from the death. Thus, evidence concerning the
circumstances and manner of the decedents’ deaths is relevant to the issue of
damages, and will not be excluded under Rule 402. This is not to say that all
evidence Plaintiff wishes to bring relating to the manner of death will be
admissible. Rather, the Court simply concludes that it cannot exclude all evidence
of the manner of death or the events surrounding the accident under Rule 402. The
admissibility of particular pieces of evidence will be resolved as it arises. For
example, under Rule 403, the Court may exclude evidence of the circumstances of
the decedents’ deaths that is more prejudicial than probative.
However, evidence of Defendant Austin’s negligence, such as the allegation
that he violated rules limiting the hours he could work before resting, which
resulted in him falling asleep and running a stop sign, is not relevant to Plaintiff’s
claim. As indicated in the above statutory analysis, the grief, sorrow, and mental
suffering is compensable only if it arises from the death, not from the negligence
that preceded the death. Plaintiff’s argument that the children of the decedents
experience increased grief because they think about the possibility that if only
Defendant had abided by the applicable laws and rules, their parents would not
have died, (Doc. 55 at 5-6), only confirms the understanding that such emotional
responses do not arise from the death and are thus not compensable. Therefore, any

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evidence of Defendant’s negligent acts or omissions leading up to the accident are
irrelevant and will be excluded at trial.
IV. Motion for Protective Order
Defendants also seek to prevent a deposition of Defendant Austin, the driver
of the truck that struck the decedents’ vehicle, based in part on the reasoning
advanced in its Motion in Limine. They claim that any information Plaintiff could
obtain from a deposition would be irrelevant, and that such a deposition would thus
serve only to annoy embarrass, oppress, or place undue burden on Defendants. (Doc.
53 at 3-4). As noted above, evidence concerning the accident itself and the
immediate aftermath, including Defendant Austin’s observations of the decedents
and the scene of the collision, could potentially be relevant to Plaintiff’s claim. Even
if it were not, as Plaintiff correctly points out, Defendant Austin could provide
information critical to Counts IX and X, if he testifies to observing any signs of the
Hammonds experiencing conscious pain and suffering. However, in light of the
ruling above that evidence related to Defendant Austin’s pre-collision negligent
actions is irrelevant and inadmissible, Plaintiff must limit the scope of its
deposition and may not question Defendant Austin about his actions or observations
prior to the point of impact.
As a final note, Plaintiff has a valid point that he is entitled to depose
Defendant Austin before responding to Defendants’ Motion for Summary Judgment,
because he could obtain evidence to support Counts IX and X. However, filing a
document entitled “Plaintiff’s Response to Defendants’ Motion for Summary
Judgment as to Counts IX and X of Plaintiff’s First Amended Complaint,” which

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merely asserts they should be allowed to depose Defendant Austin before filing a
response, was a procedurally improper and risky move. Plaintiff did not ask for
more time to respond, but rather, filing a document he called a Response to the
Motion, assumed he would be given more time. The Court could have granted
Defendants’ Motion for Summary Judgment, as Plaintiff’s Response did not point to
any evidence that would permit a finder of fact to find in his favor. See Modrowski v.
Pigatto, No. 11-1327, 2013 WL 1395696, at *2-3 (7th Cir. Apr. 8, 2013). The better
course would have been for Plaintiff to request an extension of time or a stay of
briefing until the issue of deposing Defendant Austin was resolved. The Court finds
it appropriate in this case to stay briefing of the Motion for Summary Judgment
(Doc. 49). Plaintiff’s amended response is due twenty-one days after Defendant
Austin is deposed, with Defendants’ reply due fourteen days thereafter.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion in Limine (Doc. 52)
is DENIED IN PART and GRANTED IN PART and Defendants’ Motion for
Protective Order (Doc. 53) is DENIED IN PART and GRANTED IN PART.
Defendant Austin SHALL appear for a deposition within twenty-eight days of the
date of this Order. Evidence of Defendant Austin’s observations or actions prior to
the vehicle collision WILL NOT be admitted at trial, and Plaintiff SHALL refrain
from asking questions about them during the deposition. Plaintiff’s amended
response to Defendants’ Motion for Summary Judgment is DUE twenty-one days
after the deposition of Defendant Austin. Defendants’ reply to this response is DUE
fourteen days after Plaintiff’s response is filed. The currently scheduled dates for

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the final pretrial conference and trial are VACATED, to be reset after the pending
Motion for Summary Judgment is resolved.

Entered this 26th day of April, 2013.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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