Bergeron, et al v. Great West Casualty Company, et al

Filing 137

ORDER denying 47 Motion in Limine; granting in part 50 Motion in Limine; granting in part 72 Motion in Limine; granting in part 114 Motion in Limine. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS BERGERON,
Plaintiff

CIVIL ACTION

VERSUS

NO. 14-13

GREAT WEST CASUALTY
COMPANY, ET. AL,
Defendants

SECTION: "E" (4)

ORDER
This is a civil action arising from an automobile accident on December 13, 2012.
Plaintiff alleges he sustained personal injury when he was rear-ended by Ronne Reeh
("Reeh").

At the time of the accident, Reeh was employed by Transport, Inc.

("Transport"). Plaintiff subsequently filed suit against Reeh, Transport, and Transport's
liability insurer, Great West Casualty Company ("Great West"). There are four Motions
in Limine currently pending.1
I.

Defendants' Motion in Limine to Strike Dr. Peter Galvan2
Defendants move in limine to preclude Dr. Galvan from offering expert testimony

at trial. Dr. Galvan treated Plaintiff immediately following his accident. On May 19,
2014, the Louisiana State Board of Medical Examiners entered a consent order
suspending indefinitely Dr. Galvan's license to practice medicine. The suspension stems
from various federal offenses Dr. Galvan committed as Coroner for St. Tammany Parish,
including (1) paying himself for unearned leave, (2) using employees' time to fulfill a
personal contract, and (3) misappropriating Coroner office funds for his own personal

1
2

R. Docs 47, 50 (as supplemented by R. Doc. 58), 72, 114.
R. Doc. 47.

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use.3 Dr. Galvan is currently in jail but has been deposed in connection with this case.4
Because Dr. Galvan's medical license is still suspended, Defendants argue he is not
qualified to provide medical testimony. The Court disagrees.
Dr. Galvan was clearly qualified to offer expert testimony at the time he treated
Plaintiff. The charges to which Dr. Galvan eventually pleaded guilty had nothing to do
with his medical expertise. For these reasons, the motion in limine is denied.
II.

Plaintiff's Omnibus Motion in Limine5
Plaintiff seeks to exclude several items of evidence: (1) Plaintiff's employment

records; (2) records from Zurich American Insurance ("Zurich"); (3) documents
evidencing Plaintiff's child support obligations; (4) records from Restor Claims Service,
LLC ("Restor"); (5) documents evidencing compensation received from a collateral
source; and (6) anticipated hearsay testimony.
1. Employment Records
Defendants intend to introduce Plaintiff's personnel files from three separate
places of employment: Ken's Beverage, Inc., Raising Cane's, Inc., and Aramark Uniform,
Inc. Plaintiff contends these documents are inadmissible hearsay and irrelevant.
A. Hearsay
The only document specifically identified by Plaintiff is an accident report he
completed while working for Ken's Beverage. Rule 801(d)(2)(A) explicitly excludes from
the definition of hearsay a party's own statement made in his individual or

See R. Doc. 47-1, p. 2. Plaintiff agrees with this summary of the federal charges. See R. Doc. 59, p. 2.
The parties provided this information at the status conference on April 7, 2015.
5 R. Docs. 50, 58.
3

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representative capacity when offered by an opposing party. Because the statement was
made by Plaintiff and will be offered against him by Defendant, it is not hearsay.6
Plaintiff further objects to the personnel files from Ken's Beverage and Raising
Cane's in globo as inadmissible hearsay, because the files allegedly do not satisfy the
"business records" exception.7 Rule 803(6) provides as follows:
A record of an act, event, condition, opinion, or diagnosis [is admissible]
if:
(A) the record was made at or near the time by--or from information
transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of
trustworthiness.8
6 Plaintiff baldly declares the accident report is not a statement against interest but provides no argument
in support. See R. Doc. 58, p. 5.
7 Defendants do not contest the employment records fall within the definition of hearsay under Rule
801(c)(2).
8 Fed. R. Evid. 803(6). This version of Rule 803(6) became effective on December 1, 2014. The instant
motion was filed on September 2, 2014. At this time, Rule 803(6) was identical to its eventual successor
except for subsection (E), which provided as follows: "neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness." Thus, the question arises whether the
Court should apply Rule 803(6)(E) as amended, or instead apply the version in effect at the time the
motion was filed. The answer turns on whether the new rule has impermissible retroactive effect. See
Black v. M & W Gear Co., 269 F.3d 1220, 1228 n.3 (10th Cir. 2001). An amendment should not be
applied retroactively if, inter alia, it overrules prior circuit precedent. Id. The new rule explicitly places
the burden of establishing a lack of trustworthiness on the opponent of the evidence. Fed. R. Evid. 803
advisory committee's note. The Court finds this rule does not overrule prior Fifth Circuit precedent for
three reasons. First, as the advisory committee recognized in its notes adopting the amendment, "most
courts have imposed [the Rule 803(6)(E) burden] on the opponent . . . ." Id. Second, the leading evidence
treatise recognizes that pre-amendment Rule 803(6)(E) placed the burden of challenging trustworthiness
on the opponent. See 2 Kenneth S. Broun, McCormick on Evidence § 277 (7th ed. 2013). Third, at least
one court in the Fifth Circuit has interpreted former Rule 803(6)(E) to impose the burden on the
opponent. See In re Manus, No. 1:11–CV–00149–SA–DAS, 2014 WL 3866608, at *5 (N.D. Miss. Aug. 6,
2014). Although new Rule 803(6)(E) is consistent with prior Fifth Circuit precedent, the rule still cannot
be applied retroactively if doing so would "impair rights a party possessed when he acted, increase a

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Plaintiff contends Defendants have not satisfied Rule 803(6)(D) or (E).
Regarding the former, even if the personnel files are not certified,9 the requirements of
Rule 803(6)(A)-(C) can be satisfied through "the testimony of a custodian or another
qualified witness."10

Defendants intend to offer such testimony.11

Thus, Plaintiff's

hearsay objection is premature. Should Defendants fail to lay a proper foundation for
the business records exception at trial, Plaintiff may re-urge his objection at that time.
Plaintiff also argues that no witness has "attested to the trustworthiness of these
records—the crux of the hearsay exception—including the reliability (or lack thereof) of
record keeping by the business keeping these records."12 Under Rule 803(6)(E), once
the proponent of the records has satisfied Rule 803(6)(A)-(D), the burden shifts to the
opponent, i.e., Plaintiff, to show the source of information or circumstances of
recordkeeping is unreliable.13 Plaintiff therefore misunderstands the respective burdens
imposed under the business records exception.
B. Relevance
Even if the personnel files are not hearsay, Plaintiff argues they are not relevant.
Under Rule 401, 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
party's liability for past conduct, or impose new duties with respect to transactions already completed."
Black, 269 F.3d at 1220 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). The Court finds
retroactive application would not produce any of these evils. Given the foregoing, the Court will apply the
current version of Rule 803(6) in this case.
9 The parties disagree whether the records have been properly certified.
10 Fed. R. Evid. 803(6)(D). This rule is disjunctive, allowing subsections A-C to be satisfied through either
live testimony or certification. See United States v. Towns, 718 F.3d 404, 411 n.8 (5th Cir. 2013) ("The
disjunctive nature of FRE 803(6)(D) eliminates the need to put each custodian on the stand to verify the
respective business records. The qualifying information may come through live testimony or
certification.") (emphasis in original).
11 See R. Doc. 62, p. 3 ("[W]itnesses from these employers will further authenticate the records and testify
regarding their contents."
12 R. Doc. 58, p. 5.
13 See supra note 8.

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determining the action."14 Relevant evidence may be excluded only "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."15
Plaintiff has asserted a claim for lost wages. Plaintiff's personnel files are clearly
relevant to assessing this claim. Moreover, because Plaintiff is asserting a claim for
personal injury, evidence regarding his accident history—including the accident report
he prepared for Ken's Beverages—is relevant. Finally, despite Plaintiff's arguments to
the contrary, the Court finds that introduction of the personnel records at trial will not
result in undue delay.
2. Records from Zurich
Plaintiff argues the records from Zurich are inadmissible hearsay and irrelevant.
In response to a subpoena, Zurich provided Defendants with records it obtained from
Gallagher Basset Services, Inc. ("Gallagher") and ISO. Because the Zurich records are
actually records created by another company, the records contain double hearsay.16
Thus, the records are admissible only if Defendants can show that both Zurich and the
companies that supplied the records satisfy the business records exception or some
other exception to the hearsay rule.17 Should Defendants fail to lay a proper foundation
at trial for both levels of hearsay, Plaintiff may re-urge his objection.
Fed. R. Evid. 401.
Fed. R. Evid. 403.
16 See United States v. Turner, 189 F.3d 712, 719–20 (8th Cir. 1999) ("[W]hen the source of information
and the recorder of that information are not the same person, the business record contains hearsay upon
hearsay."); Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) ("[I]f the source of the
information is an outsider, as in the facts before us, Rule 803(6) does not, by itself, permit the admission
of the business record. The outsider's statement must fall within another hearsay exception to be
admissible . . . .").
17 See Wilson, 939 F.2d at 271 ("If both the source and the recorder of the information, as well as every
other participant in the chain producing the record, are acting in the regular course of business, the
14
15

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Plaintiff also contends the Zurich records are irrelevant and will confuse the jury.
According to Plaintiff, the records from Zurich evidence "two previous extremely minor
injuries . . . . the total medical result [of which] was that [Plaintiff's] toenail fell off."18
Plaintiff cannot prevail on his personal injury claim without showing causation. A preexisting injury—however minor—is relevant to this showing under Rule 401, which is
interpreted liberally.19

Moreover, any risk of jury confusion can be ameliorated by a

proper limiting instruction.20
3. Evidence of Child Support Indebtedness
Plaintiff argues any evidence of his outstanding child support obligations is
inadmissible hearsay and irrelevant. Notwithstanding any hearsay issues, he argues the
evidence is not relevant to a personal injury claim arising from an automobile accident.
The Court agrees.
Apparently recognizing this lack of relevance, Defendants argue the evidence can
nonetheless be used for impeachment purposes.21

The Court cannot assess that

argument until Plaintiff is on the witness stand. Thus, evidence of the child support
obligation may be admissible to impeach Plaintiff but is not otherwise admissible as
substantive evidence.22
multiple hearsay is excused by Rule 803(6)."); Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 279 (5th
Cir. 1991) ("[T]he business records exception to the hearsay rule applies only if the person who makes the
statement is himself acting in the regular course of business.") (internal quotation marks omitted); United
States v. Hutson, 821 F.3d 1015, 1019 (5th Cir. 1987) ("Because the records from which the computer
records were made were themselves business records, there was no accumulation of inadmissible
hearsay.").
18 R. Doc. 58, p. 8–9 (emphasis in original).
19 See Daubert v. Merrel Dow Pharms., Inc., 509 U.S. 579, 587 (1993).
20 See United States v. Cisneros-Gutierrez, 517 F.3d 751, 762–63 (5th Cir. 2008).
21 "Impeachment evidence . . . is that which is offered to discredit a witness . . . to reduce the effectiveness
of [her] testimony by bringing forth evidence which explains why the jury should not put faith in [her] or
[her] testimony." Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (first
alteration not in original) (internal quotation marks omitted).
22 "Substantive evidence is that which is offered to establish the truth of a matter to be determined by the
trier of fact." Id.

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4. Records from Restor
Plaintiff argues Defendants cannot introduce documents evidencing the postaccident sale of his wife's car to Restor.23 Defendants represent they do not intend to
introduce the sale documents but may introduce the property damage estimate prepared
by Restor as impeachment evidence "if Plaintiff exaggerates the amount of property
damage sustained during the accident."24 Because Plaintiff is not making a property
damage claim,25 the Court is hard-pressed to fathom how the estimate could be used as
impeachment evidence. Nonetheless, as set forth above, the Court cannot rule on the
admissibility of impeachment evidence until the person to be impeached has testified.
5. Collateral Sources
Plaintiff argues Defendant should be precluded from introducing evidence of
compensation he received from third-parties. Specifically, Plaintiff argues Defendant
cannot introduce evidence that counsel has paid his medical expenses. Defendants
represent they do not intend to present such evidence. Rather, Defendants raise an
issue not addressed in Plaintiff's motion: the proper measure of past medical expenses.
Defendants contend the amount actually billed to Plaintiff's attorneys, i.e., the amount
billed after any "write offs" by the medical provider, is the proper measure of past
medical expenses.
Plaintiff did not file a reply memorandum, and therefore the continued relevance
of his motion remains unclear. Two key questions remain. First, does Defendants'
concession that "[a]ny reference to the fact that the [medical] bill was paid by an
Plaintiff was driving his wife's car at the time of the accident.
R. Doc. 62, p. 5–6.
25 Plaintiff's wife initially asserted a property damage claim but that claim was subsequently dismissed on
summary judgment. See R. Doc. 22.
23

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attorney can be redacted" satisfy Plaintiff's concerns?26 Second, does Plaintiff agree the
medical bills submitted to the jury should reflect the amount actually paid by his
attorneys, as opposed to the amount initially billed by the medical provider? These
unresolved issues counsel against a ruling at this time with trial more than four months
away. The parties shall meet and confer to clarify their respective positions. In the
event disagreements remain, Plaintiff may file another motion in limine within the
deadlines set forth in the scheduling order.27
6. Anticipated Hearsay Statements
Plaintiff moves to exclude "certain anticipated [hearsay] testimony recently
brought to [his attention]," including statements regarding "[Plaintiff] being terminated
from his employment, [Plaintiff] quitting his job in order to receive a disability
settlement, and [Plaintiff's] alleged attendance at a 'jump rope event' with his minor
child."28

Consistent with a recurring theme in this motion, Plaintiff's request is

premature.

If Defendants attempt to introduce the challenged testimony at trial,

Plaintiff may re-urge his objection.
III.

Defendants' Motions in Limine Regarding Reeh29
Defendants seek to exclude the following evidence from trial: (1) the traffic

citation issued to Reeh as a result of the accident; (2) a letter from Great West regarding
Reeh's probationary insurance period after the accident; and (3) Reeh's prior arrests,
traffic violations, and traffic accidents.

See R. Doc. 62, p. 7.
See R. Doc. 82.
28 R. Doc. 58, p. 15 (emphasis added). To the extent these objections derive from Defendants' failure to
respond to discovery, id. at p. 16, the proper vehicle for relief is a motion to compel.
29 R. Docs. 72, 114.
26
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1. The Traffic Citation Related to the Instant Accident
As a result of his accident with Plaintiff, Reeh was issued a citation for following
too closely. Reeh gave Transport (his employer at the time) money to pay the citation.
Transport mailed payment to the 22nd Judicial District Court. Receipt of payment is
evidenced by a document entitled "Written Plea of Guilty."30 The signature block of this
document is signed "mail."
The question presented is whether evidence of a traffic citation is admissible in
an automobile negligence action where, as here, the defendant did not plead guilty to
the underlying violation.31 Several federal courts have answered this question. All agree
that evidence of a traffic citation is only admissible if the defendant pleaded guilty to the
citation.32 The ratio decidendi in these cases is that the mere payment of a traffic
citation does not constitute an admission against interest or confession of guilt. The
Court agrees with this reasoning. Accordingly, the Court holds that any evidence of the
traffic citation is inadmissible.

See R. Doc. 124-2.
The payment of a traffic fine—without more—does not constitute a written guilty plea under Louisiana
law. See Maricle v. Liberty Mut. Ins. Co., 808 So. 2d 565, 572–74 (La. Ct. App. 3d Cir. 2005).
32 See, e.g., Dawson v. Carbollosa, No. 14-0057, 2014 WL 7272768, at *3 (W.D. La. Dec. 18, 2014) ("While
a plea of guilty to a traffic citation is admissible in a civil case, the mere fact that a party was charged with
a traffic violation is not . . . . Further, payment does not constitute an admission of guilt.") (internal
citation omitted); Iglinksy v. Player, No. 08–650–BAJ–CN, 2010 WL 4925000, at *6 (M.D. La. July 26,
2010) ("A motorist's payment of a fine associated with a traffic citation cannot be equated with the entry
of a guilty plea, and as a result, the citation is not admissible as an admission against interest in a personal
injury action stemming from an automobile accident."); Rhodes v. Curtis, No. Civ. 04-476-P, 2006 WL
1047021, at *2 (D. Okla Apr. 12, 2006) ("Evidence of traffic citations is only admissible in a subsequent
civil proceeding if the defendant voluntarily and knowingly entered a plea of guilty."); Cunningham v.
Wash. Gas Light Co., CIV. A. No. 86–2392, 1988 WL 90400, at *1 (D. D.C. Aug. 11, 1988 ) ("[T]he mere
issuance or failure to issue a traffic citation is not admissible in a civil trial.") (collecting cases); cf. Hillyer
v. David Phillips Trucking Co., 606 F.2d 619, 620 (5th Cir. 1979) ("Defendants concede that the [traffic]
ticket was only admissible if [the defendant] made an admission against interest acknowledging that she
was guilty of the charge . . . .").
30
31

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2. Letter from Great West
Following the accident at issue in this case, Great West issued a letter placing
Reeh on an insurance probationary period. Defendants move to exclude the letter as
hearsay and irrelevant. Because the letter will be used to prove the truth of the matter
asserted, it is clearly hearsay.33 The burden now shifts to Plaintiff to prove an exception
to the hearsay rule applies.34 The Great West letter may be admissible under the
business records exception to the hearsay rule. Plaintiff will have the opportunity to lay
the proper foundation at trial. If he cannot do so, Defendants may re-urge their hearsay
objection.
3. Reeh's Prior Arrests, Traffic Violations, and Traffic Accidents
Defendant also moves to exclude evidence of prior arrests, traffic violations, and
traffic accidents. Rule 404(b) provides that "[e]vidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show that on a particular
occasion the person acted in accordance with the character."35

Such evidence is

admissible, however, "if relevant to an issue other than the defendant's character."36
The Court cannot conceive of any possible use for the evidence—nor has Plaintiff
provided any—other than to show that Reeh has a propensity for reckless or negligent
behavior. If used for this purpose, the evidence is clearly inadmissible under Rule
404(b).

See Fed. R. Evid. 801(c).
See Malley v. Wal-Mart Stores, Inc. No. 1:12CV127–HSO–RHW, 2013 WL 2099917, at *2 (S.D. Miss.
May 14, 2013) ("As the proponent of the proffered hearsay evidence, Plaintiff bears the burden of proving
the applicability of an exception."); Broad. Music, Inc. v. Tex Border Mgmt., Inc., No. 3:10–CV–2524–
BH, 2012 WL 4119111, at *4 (N.D. Tex. Sept. 18, 2012) ("The proponent of hearsay bears the burden of
demonstrating that an exception to the hearsay rule applies.").
35 Accordingly, a defendant's prior safety infractions are inadmissible to show the plaintiff was negligent.
See Jones v. S. Pac. R.R., 962 F.2d 447, 450 (5th Cir. 1992).
36 United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
33

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Moreover, to the extent the arrests, violations, and traffic accident constitute
prior bad acts, they are not probative of Reeh's character for truthfulness and are
therefore inadmissible under Rule 608(b).37 Finally, with respect to the arrests and
traffic violations, Reeh was never convicted. Therefore, Rule 609 is inapplicable.38
Plaintiff appears to argue the challenged evidence is relevant to a potential claim
against Transport for negligent hiring and/or retention.39 Plaintiff has not asserted this
claim in his latest complaint. Unless Plaintiff is granted leave to amend his complaint,
any relevance argument based on a hypothetical claim is clearly premature.
Because there is currently no admissible purpose for the challenged evidence
under the current pleadings, it must be excluded.
CONCLUSION
For the reasons previously stated;
IT IS ORDERED that Defendants' Motion in Limine to Strike Dr. Galvan is
DENIED. Dr. Galvan may testify by deposition regarding his treatment of Plaintiff.
IT IS FURTHER ORDERED that Plaintiff's Omnibus Motion in Limine is
GRANTED IN PART. The Motion is GRANTED in that evidence of Plaintiff's child
support indebtedness and the records from Restor are inadmissible except (potentially)
for purposes of impeachment. The Motion is DENIED in all other respects. Plaintiff
may re-urge his hearsay objections at trial. The parties shall meet and confer within 20
days to discuss Plaintiff's arguments regarding collateral sources of income.

See United States. v. Parker, 133 F.3d 322, 326 (5th Cir. 1998) ("Prior bad acts that have not resulted
in a conviction are admissible under FED. R. EVID. 608(b) if relevant to the witness's character for
truthfulness or untruthfulness.").
38 See id. ("FED. R. EVID. 609 permits impeachment by evidence of past convictions, but does not apply
to crimes charged for which there has been no conviction.").
39 See R. Doc. 124, p. 5–6.
37

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IT IS FURTHER ORDERED that Defendants' Motions in Limine regarding
Reeh are GRANTED IN PART. The following evidence is inadmissible: (1) the receipt
and/or payment of the traffic violation associated with the subject accident; and (2)
Reeh's prior arrests, traffic violations, and traffic accidents. Defendants may re-urge at
trial their hearsay objection regarding the Great West letter.
New Orleans, Louisiana, this 3rd day of June, 2015.

_______ _____________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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