Campbell v. RAP Trucking Inc et al
Filing
79
OPINION entered by Chief Judge Michael P. McCuskey on 7/18/2011. Plaintiff's Motion to Bar Testimony 65 is DENIED. Defendants' Motion to Bifurcate Trial 61 is GRANTED. See written opinion. (JMW, ilcd)
E-FILED
Monday, 18 July, 2011 10:39:25 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
______________________________________________________________________________
JODI CAMPBELL,
Plaintiff,
v.
RAP TRUCKING, INC., a Massachusetts
corporation, and RANDY H. GROSS,
Defendants.
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Case No. 09-CV-2256
OPINION
Plaintiff, Jodi Campbell, filed a Motion to Bar Testimony as to Defendant Randy H. Gross’s
Driver’s Log Books (#65) on June 30, 2011. Defendants Gross and RAP Trucking, Inc., filed their
Objection to the Motion to Bar Testimony (#68) on July 7, 2011. For the following reasons,
Plaintiff’s Motion to Bar Testimony (#65) is DENIED.
Defendants filed a Motion to Bifurcate Trial (#61) on June 23, 2011, and Plaintiff filed her
Memorandum in Opposition (#73) on July 11, 2011. For the following reasons, Defendants’ Motion
to Bifurcate Trial (#61) is GRANTED.
BACKGROUND
Plaintiff, a citizen of the State of Illinois, filed suit against Defendant Gross, a citizen of
Florida, and RAP Trucking, Inc., a Massachusetts corporation with its principal place of business
in Florida, over a vehicle collision that occurred in Ford County, Illinois. The amount in
controversy exceeds $75,000. According to the Complaint (#1) and Answer (#4) filed by the parties,
the facts of the occurrence are this:
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On February 10, 2008, at approximately 4:11 am, Defendant Gross was operating a semi
truck and trailer owned by or leased to Defendant RAP northbound on Interstate Route 57 near mile
post 258 in Ford County, Illinois. At said time and place Plaintiff was operating her Dodge Caravan
minivan northbound on Interstate 57. At said time and place, Defendants’ semi truck and trailer
crashed into the rear end of Plaintiff’s vehicle. Plaintiff alleges that the accident was the direct and
proximate result of one or more of a combination of various acts or omissions on the part of
Defendants, including: speeding, failure to reduce speed, failure to keep a proper lookout for other
motor vehicles, and other unspecified negligence. Plaintiff alleges that as a proximate and direct
result of Defendants’ negligence, she has suffered various severe and permanent injuries. Plaintiff
asks for a $10,000,000 judgment against Defendants.
Defendants deny Plaintiff’s allegations of negligence. Defendants allege an affirmative
defense in that Plaintiff: (1) entered the roadway from the shoulder without first determining that
it was safe to do so; (2) entered the roadway from the shoulder without signaling; (3) entered the
roadway at a time when it was unsafe to do so by reason of the relatively close proximity of
Defendants’ vehicle; (4) operated her vehicle on the roadway without its running lights having been
activated; (5) causing herself, by the consumption of alcoholic beverages, to have impaired senses
of vision, depth perception, and judgment; (6) failing to keep her vehicle off of the roadway until
such time as the effects of alcohol on her body had subsided; and (6) failing to keep a proper lookout
for Defendants’ vehicle. Defendants argue that Plaintiff contributed in whole or in part to the
injuries of which she complains and her recovery of damages should be barred or diminished
accordingly.
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Motion to Bar Testimony (#65)
On June 30, 2011, Plaintiff filed her Motion to Bar Testimony as to Defendant Randy H.
Gross’s Driver’s Log Book (#65). In the Motion, Plaintiff asserts that after the collision, and with
knowledge the collision had taken place, the log books that covered the period of the collision and
the thirty days preceding the collision were intentionally destroyed by Juan J. Konieczny, an RAP
employee. Plaintiff argues that because RAP never took any steps to preserve the log books and did
not advise Konieczny not to destroy the books, even though they knew it was Konieczny’s custom
to destroy log books after their examination, RAP has intentionally spoiled evidence and deprived
Plaintiff of the ability to examine the books. Plaintiff argues the appropriate remedy is to bar any
testimony on behalf of the Defendants as to the contents of the log books. Plaintiff believes the only
testimony that should be admitted is that Defendants knowingly allowed log books to be destroyed
with knowledge that the collision in question had taken place.
Defendants’ Objection (#68) was filed July 7, 2011. In the Objection, Defendants note that
they have disclosed Charles Burwell, a now retired Illinois State Police commercial vehicle
compliance officer, as a trial witness on their behalf. Burwell is expected to testify that, in the
course of his duties on or about February 10, 2008 (the date of the collision), and in connection with
the accident:
(1) he inspected Gross’s semi and reviewed his log books, including for any hours of service
or other violations; (2) he wrote a report of the inspection (a copy of which is attached to
Defendants’ Objection); (3) the report does not identify any hours of service or other violations as
might have been reflected in such log books; and (4) if the log books had reflected a violation of any
kind, it would have been indicated in Burwell’s report.
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Defendants argue that Burwell’s testimony refutes Plaintiff’s suggestion that there was
something in the log books to implicate Gross and RAP in the collision. Further, they argue Burwell
had nothing to do with the retention or discarding of the log books and had no association of any
kind with Gross or RAP. As to Konieczny, a former Florida Department of Transportation
compliance officer now acting as a consultant to RAP and others on issues of regulatory compliance,
he testified that RAP was not obligated or required by any authority to maintain Gross’s log books
for longer than six months after their date and that those in question were discarded after the six
month period. Defendants claim that one of Plaintiff’s disclosed experts, George P. Huston,
acknowledges the same six month requirement. Further, while RAP and Konieczny were aware of
the accident at the time the log book was discarded, no suit had been filed and they did not expect
a suit to be filed, since Plaintiff had been charged with driving under the influence (DUI) in
connection with the collision.
The court agrees with the position advanced by Defendants. Burwell, an independent source
with the Illinois State Police, will be able to testify to what was in the now discarded log book based
on his own contemporaneous report. Admission of testimony concerning the log book will not
prejudice Plaintiff. Defendants are free to discuss the contents of the log book through Burwell’s
testimony. Plaintiff can question as to why the log books were destroyed, and Defendants can
respond with why they were destroyed. Plaintiff’s Motion to Bar Testimony as to Defendant Randy
H. Gross’s Driver’s Log Book (#65) is DENIED in its entirety.
Motion to Bifurcate Trial (#61)
Defendants filed their Motion to Bifurcate Trial (#61) on June 23, 2011. Defendants ask the
court to bifurcate the trial into two stages: first, a liability stage, where the jury will decide liability
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between Plaintiff and Defendants. Next, if Defendants are found to be liable, a damages trial will
be held. Defendants argue that, in this case, bifurcation is appropriate because: (1) it will promote
judicial economy because the case favors a defense verdict, and if Defendants are found not guilty
or Plaintiff is found 50% or more liable for the collision, then all evidence related to the damages
portion will be entirely avoided; (2) the damages portion of the trial, where Plaintiff claims in excess
of $470,000 in damages and would detail Plaintiff’s substantial injuries and involve the testimony
of numerous lay and physician witnesses about said injuries, is incomparable to the liability portion
and would overwhelm the evidence presented on liability; (3) the discovery relevant to the damages
portion has not yet commenced, so substantial time and effort can be saved by the finding of no
liability; (4) prejudice to Defendants could occur due to Plaintiff’s substantial injuries, engendering
sympathy in the jury due to damages that could overwhelm evidence on liability if not bifurcated;
(5) there will be no prejudice to Plaintiff and Plaintiff could save time and money if the jury found
for Defendant on liability since discovery for damages has not yet commenced; and (6) bifurcation
would not violate the Seventh Amendment since this is not a criminal case with multiple defendants
being tried separately, but rather the bifurcation relates to issues, and no issues would be
“reexamined” at a damages trial.
Plaintiff filed her Memorandum in Opposition (#73) on July 11, 2011. First, Plaintiff argues
bifurcation would not save her any money on attorneys’ fees or costs, since the time for discovery
depositions is past, and no further discovery, whether on liability or damages, can be conducted.
Plaintiff also argues that the motion should be denied on procedural grounds, since it should have
been made at the time of the scheduling conference. Plaintiff next argues: (1) Defendants are not
guaranteed a liability verdict in their favor, due to evidence of Gross’s failure to act quickly to avoid
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an accident and Illinois’s status as a comparative negligence state, meaning Plaintiff could still get
damages if she is found to be less than 50% liable; (2) Plaintiff will stipulate as to her medical bills,
so as not to overwhelm the jury, and Illinois Pattern Jury Instructions directly address this issue and
can be offered; (3) certain of her injuries are relevant to liability, since the injuries have somewhat
impaired her memory as to the moments before and after the collision and physicians will also testify
as to whether Plaintiff was urinating before the collision and whether she was under the influence
of alcohol; and (4) she would suffer prejudice from bifurcation due to uncertainty about how the trial
would be scheduled and the availability of her physician witnesses.
Federal Rule of Civil Procedure 42(b) states:
“Separate Trials. For convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more separate issues,
claims, crossclaims, counterclaims, or third-party claims. When ordering a separate
trial, the court must preserve any federal right to a jury trial.” Fed. R. Civ. P. 42(b).
A district court has considerable discretion to order the bifurcation of a trial, and a reviewing
court will overturn a decision to bifurcate only upon a clear showing of abuse. Krocka v. City of
Chicago, 203 F.3d 507, 516 (7th Cir. 2000). A district court may bifurcate a trial provided that the
decision to bifurcate (1) serves the interests of judicial economy or is done to prevent prejudice to
a party; (2) does not unfairly prejudice the non-moving party; and (3) does not violate the Seventh
Amendment to the United States Constitution. Krocka, 203 F.3d at 516.
Here, the court agrees with Defendants that bifurcating the trial between a liability portion
and a damages portion would serve judicial economy. While it is true that some of Plaintiff’s
medical witnesses may need to testify in the liability phase concerning injuries to Plaintiff that
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impair her memory of the time around the collision, it is certainly not all of her witnesses. Further,
Plaintiff was convicted of a DUI arising out of this incident, so the court believes there is a good
chance Defendants will prevail on the liability issue, obviating the need for a damages trial. Judicial
economy will be served if a liability-only phase resolves the issue without needing to discuss
damages. Also, Defendants may very well be prejudiced by extensive damages testimony detailing
the injuries and costs to Plaintiff arising out of the accident. Although evidence of liability may
weigh against Plaintiff, there is a good chance the jury will be unduly influenced on the liability
issue by sympathy towards Plaintiff due to injuries suffered. By bifurcating the two portions of trial,
the danger of evidence irrelevant to liability influencing the jury is lessened.
Also, while there may be some inconvenience to Plaintiff concerning her witnesses, the court
does not feel this rises to the level of prejudice. The court feels confident that it can fashion a trial
schedule by which Plaintiff’s witnesses can be available for both portions of the trial, if necessary.
Further, Plaintiff can call medical witnesses for the liability phase, if the testimony is relevant to her
recollection of the collision and the circumstances surrounding it. Plaintiff will not be unduly
prejudiced by bifurcation.
Finally, no Seventh Amendment violations are implicated by bifurcation. Therefore,
Defendants’ Motion to Bifurcate Trial (#61) is GRANTED.
IT IS THEREFORE ORDERED:
(1) Plaintiff’s Motion to Bar Testimony as to Defendant Randy H. Gross’s Driver’s Log
Books (#65) is DENIED in its entirety.
(2) Defendants’ Motion to Bifurcate Trial (#61) is GRANTED. The trial will be bifurcated
into a liability and damages phase. The details of the bifurcation and schedule will be decided at
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the final pretrial conference.
(3) The final pretrial conference remains set for Tuesday, August 23, 2011, at 2:30 pm, with
jury selection scheduled to begin Monday, August 29, 2011, at 9:00 am.
ENTERED this 18th day of July, 2011
s/Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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