Thomas et al v. Chambers et al
Filing
196
ORDER AND REASONS: For the foregoing reasons set forth in the document, plaintiffs' 154 motion to exclude certain lay testimony is GRANTED IN PART and DENIED IN PART. Defendants' 53 motion to exclude evidence of settlements in other matters is DENIED. Plaintiffs' 56 motion to exclude video surveillance evidence is DENIED. Defendants' 57 motion to exclude evidence of Chambers's past convictions is DENIED. And defendants' 52 motion to exclude portions of the accident report and testimony of Officer Sengha is GRANTED IN PART and DENIED IN PART. Signed by Judge Sarah S. Vance on 5/6/2019. (mm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIERRA THOMAS, ET AL.
VERSUS
CIVIL ACTION
NO. 18-4373
RANDALL CHAMBERS, ET AL.
SECTION “R” (4)
ORDER AND REASONS
Before the Court is (1) plaintiffs’ motion to exclude certain lay testimony, 1
(2) plaintiffs’ motions to exclude evidence of plaintiffs’ phone records and records
from other car accidents, 2 (3) defendants’ motion to exclude evidence of
settlements in other matters, 3 (4) plaintiffs’ motion to exclude video surveillance
evidence, 4 (5) defendants’ motion to exclude evidence of defendant Randall
Chambers’s past conviction, 5 and (6) defendants’ motion to exclude portions of the
accident report and testimony of Officer Jassa Sengha. 6 The Court rules as follows.
I.
BACKGROUND
This case arises out of a motor vehicle accident in Orleans Parish. 7 On April
24, 2017, plaintiff Kierra Thomas was allegedly driving an automobile westbound
1
2
3
4
5
6
7
R. Doc. 154.
R. Doc. 61.
R. Doc. 53.
R. Doc. 56.
R. Doc. 57.
R. Doc. 52.
R. Doc. 1-4.
on Interstate 10 in the right-hand lane with plaintiffs Antoine Clark and Shirley
Harris as passengers. 8 Nonparty Samuel Doyle was also traveling with plaintiffs. 9
Defendant Randall Chambers was allegedly driving a tractor-trailer next to
plaintiffs in the middle lane. 10 Chambers was driving the tractor-trailer in the
course of his employment with defendant God’s Way Trucking, LLC. 11 Plaintiffs
allege that Thomas was driving “straight in a cautious fashion” when Chambers
negligently attempted to move into the right-hand lane without “keep[ing] a
proper lookout.” 12 Chambers’s vehicle allegedly struck plaintiffs’ vehicle, causing
all three plaintiffs to be “violently jolted.” 13 All three plaintiffs allege that they have
suffered serious injuries to their necks and backs because of the collision. 14 They
have each received medical treatment for injuries to their cervical and lumbar
spines. 15
On April 6, 2018, plaintiffs filed suit in state court against Chambers, God’s
Way, and defendant Canal Insurance Company. 16
Canal Insurance allegedly
insured the tractor-trailer Chambers was driving on the day of the collision. 17
8
9
10
11
12
13
14
15
16
17
Id. at 3 ¶¶ 7-8.
R. Doc. 175 at 3.
R. Doc. 1-4 at 3 ¶ 9.
Id. at 2 ¶ 3; R. Doc. 36-4 at 3.
R. Doc. 1-4 at 3 ¶ 10.
Id. ¶¶ 10-11.
Id. at 5 ¶ 16, 6 ¶¶ 19 & 22.
See R. Doc. 88-3 at 17-21.
R. Doc. 1-4 at 2 ¶ 3.
Id.
2
Plaintiffs allege that Chambers’s negligence caused their injuries, and that God’s
Way is liable for their damages as Chambers’s employer under the doctrine of
respondent superior. 18
Defendants’ primary defense is that plaintiffs intentionally caused the
collision in order to recover from defendants in litigation. 19 Defendants state in
the Pretrial Order that “plaintiffs’ vehicle was traveling at a greater speed than the
defendants’ vehicle at impact, indicating that plaintiffs sped up and drove into
defendants’ trailer.” 20 Defendants previously filed a counterclaim alleging that
plaintiffs’ filing of this lawsuit constituted a fraudulent misrepresentation entitling
defendants to damages under Louisiana law. 21
The court dismissed the
counterclaim because it was incompatible with an assertion that defendants
justifiably relied on plaintiffs’ alleged misrepresentations, and therefore was not
legally cognizable. 22
18
19
20
21
22
Id. at 4 ¶¶ 13-14.
See R. Doc. 152 at 11.
Id.
R. Doc. 13.
R. Doc. 20.
3
II.
DISCUSSION
A.
Plaintiffs’ Motion to Exclude Lay Testimony
Plaintiffs move to exclude eighteen of defendants’ proposed lay witnesses
from testifying at trial. 23 The witnesses plaintiffs identify are associated with
defendants’ argument that plaintiffs staged the collision. According to defendants,
many of the witnesses were involved in strikingly similar collisions on Interstate
10 in 2017, and have some sort of familial or social relationship with plaintiffs. 24
Defendants seek to use these other similar collisions, and plaintiffs’ connections to
the individuals involved in them, to support their argument that plaintiffs
intentionally crashed into Chambers’s vehicle to recover damages in litigation.
Plaintiffs argue that these witnesses should be excluded under Federal Rule
of Evidence 403. Under Rule 403, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed. R. Evid. 403. Plaintiffs contend that lay testimony on
these tangentially-connected collisions would result in “mini-trials” about whether
R. Doc. 154.
R. Doc. 152 (parties’ Pretrial Order, in which defendants list other
accidents from 2017 that are factually similar to the subject collision); R. Doc.
22-4 (defendants’ proposed amended counterclaim, in which they document
the familial and social relationships plaintiffs have with many of the
proposed lay witnesses).
23
24
4
they were in fact staged. 25 According to plaintiffs, the evidence would thus confuse
the jury, waste time at trial, and operate to their prejudice. 26
During the pretrial conference—which took place after plaintiffs filed this
motion but before defendants filed their opposition—the Court discussed the
admissibility of this lay testimony. The Court instructed defendants that evidence
of nonparties’ staging collisions is admissible only if defendants can show that (1)
a nonparty admitted that he or she staged another collision in order to bring a tort
claim against another party, and (2) there is evidence that that same nonparty
communicated with one or more plaintiff in this case around the time of the subject
collision. 27 The Court found that any such evidence would be admissible under
Rule 403. That evidence would not result in mini-trials because there would be
direct evidence that the other collision was staged. And the testimony would be
probative of defendants’ argument because a conversation with an individual who
has admitted to staging collisions around the time of the similar collision at issue
suggests that the witness may have spoken with a plaintiff about the scheme.
Following the pretrial conference, defendants now state that they seek to call at
trial only eight of the eighteen witnesses to whom plaintiffs originally objected. 28
The Court addresses each of these eight witnesses below.
25
26
27
28
R. Doc. 154-1 at 3-4.
Id.
See R. Doc. 165 at 2.
See R. Doc. 175.
5
1.
Samuel Doyle
Defendants state that Samuel Doyle is an eyewitness to the collision because
he was a passenger in plaintiffs’ vehicle. 29 Defendants further state that they will
introduce Doyle’s deposition transcript in lieu of live testimony, and that they will
redact from the transcript any discussion of Doyle’s knowledge of other
collisions. 30 Doyle’s testimony is relevant and admissible as to his observations of
the collision and plaintiffs before and after the collision. That testimony is relevant
to the questions of fault and plaintiffs’ damages. But because there is no basis for
finding his testimony as to other collisions relevant, Doyle may not testify about
any other collision.
Whether defendants may use Doyle’s deposition transcript in lieu of live
testimony depends upon whether Doyle is unavailable at trial under Federal Rule
of Evidence 804. See Fed. R. Evid. 804(b)(1) (deposition testimony is admissible
over hearsay exception if, inter alia, witness is unavailable under Rule 804(a)).
The Court cannot determine at this time whether Doyle’s deposition testimony will
be admissible under this rule. Defendants may of course use the deposition
transcript for impeachment purposes at trial if Doyle testifies. In the event
defendants introduce the transcript, they are ordered to redact any mention of
other collisions.
29
30
Id. at 3.
Id.
6
2.
Tara Blunt
Plaintiffs Clark and Harris both stated during their depositions that they
were at Tara Blunt’s apartment before the collision. 31 Defendants state that Blunt
will testify about plaintiffs’ injuries and their “activities and movement prior to and
after the accident.” 32 Plaintiffs’ activities before and after the collision are relevant
to the question of plaintiffs’ injuries and to defendants’ argument that plaintiffs
had a plan to intentionally cause the collision. Blunt may offer testimony on these
issues because there is evidence Blunt was with plaintiffs on the day of the collision.
3.
Harry Dorsey
Harry Dorsey was a plaintiff in a personal injury suit in a separate section of
this Court. 33
This suit also arose from a motor vehicle collision between a
passenger vehicle and a tractor-trailer on Interstate 10. See Dorsey v. Jamair, No.
18-6603 (E.D. La. July 10, 2018). On March 12, 2019, Dorsey voluntarily dismissed
his claims in that lawsuit. 34 Defendants state that on March 14, 2019, defendants’
investigator, Joe Schembre, obtained a recorded statement from Dorsey in which
Dorsey admitted to participating in staging the collision in that lawsuit. 35 Plaintiff
Harris’s phone records indicate that she was in contact with Dorsey on four
31
32
33
34
35
R. Doc. 175-1 at 7; R. Doc. 175-2 at 3-4.
R. Doc. 175 at 3.
Id.; R. Doc. 175-3.
R. Doc. 175-3.
R. Doc. 175 at 4.
7
different days immediately following April 24, 2017, the date of the collision in this
case: April 26, April 27, April 28, and May 2, 2017. 36
Because defendants state that Dorsey has admitted to staging this other
collision, his testimony will not require the court to conduct a mini-trial on the
circumstances of that collision. And Dorsey’s testimony is probative of defendants’
argument in this case because there is evidence Dorsey spoke with Harris around
the time of the collision. The records of these communications show that there is
enough contact between Dorsey and Harris to indicate that Dorsey can offer
testimony relevant to defendants’ argument. His testimony is therefore probative
in this case, and admissible under Rule 403.
4.
Lesdreka Dickson
Defendants state that Lesdreka Dickson was involved in the same staged
collision as Dorsey, and that Dickson similarly dismissed her litigation claim and
admitted to defendants’ investigator that the collision was staged. 37 But unlike
Dorsey, defendants do not have any evidence connecting Dickson to plaintiffs.
Defendants state that they are not in possession of any phone records documenting
calls between Dickson and plaintiffs. 38
Because defendants have not shown how Dickson’s admission of staging a
collision is connected to defendants’ allegation that plaintiffs in this case staged
36
37
38
See R. Doc. 175-5 at 6-10; R. Doc. 175.
R. Doc. 175 at 3-4.
Id. at 4.
8
the collision, the probative value of Dickson’s testimony is substantially
outweighed by its potential prejudice. Dickson’s testimony could create an undue
inference that plaintiffs staged the collision because of Dickson’s acts. But there is
insufficient evidence that Dickson knows any plaintiff well, or might have
discussed staging collisions with any plaintiff. In addition, because the Court finds
that Dorsey may testify at trial, Dickson’s testimony would be needlessly
cumulative of Dorsey’s even if defendants did have evidence connecting her to
plaintiffs. The Court therefore grants plaintiffs’ motion to exclude testimony from
Dickson.
5.
Charlotte Jones
Defendants state that they will call Charlotte Jones to testify about her
“personal knowledge of . . . plaintiffs’ involvement in staging accidents.” 39
Defendants have obtained a recorded statement from Jones, in which she states
that plaintiff Harris has been involved in staging other collisions. 40 Jones also
stated that Harris has received money from an attorney for helping stage
collisions. 41 Jones’s recorded statements are probative of defendants’ argument
because they help to show that Harris has been involved in staging other collisions
with trucks for the purpose of filing claims for damages. Defendants assert that
many of these other allegedly staged collisions occurred in similar locations on
39
40
41
Id.
R. Doc. 175-6 at 10-11.
Id.
9
Interstate 10 in 2017. 42 The similarities in circumstances, location, and time
between the subject collision and these other collisions increases the probity of
Jones’s proposed testimony. See United States v. Ramey, 531 F. App’x 410, 421
(5th Cir. 2013) (probative value of prior acts was heightened by their “general
likeness to the charged offenses”).
This evidence is also not excludable under Rule 404(b) as inadmissible
evidence of prior bad acts. Fed. R. Evid. 404(b). Harris’s participation in a wider
criminal scheme to stage accidents with trucks on Interstate 10 is admissible under
Rule 404(b)(2) to show intent, plan, and the absence of mistake or accident. Id.
404(b)(2); Ramey, 531 F. App’x at 420-21 (evidence of prior bad acts was
admissible under Rule 404(b)(2) because it was relevant to the defendant’s
“common scheme of defrauding”).
Because the probative value of Jones’s
testimony is not outweighed by any of the Rule 403 factors and is admissible under
Rule 404(b)(2), Jones’s testimony is admissible at trial.
This ruling does not contradict the Court’s instruction following the pretrial
conference. That instruction applies to evidence of other staged collisions in which
plaintiffs played no role.
By contrast, Jones’s proposed testimony directly
implicates Harris in staging other collisions, and is therefore directly probative of
defendants’ argument.
42
R. Doc. 152 at 30-31.
10
6.
Raymond Riley
The Court finds that Raymond Riley’s testimony is admissible at trial,
provided defendants lay a sufficient foundation for his testimony before Riley is
called. Charlotte Jones states in her recorded statement that Riley is the “head
person” involved in recruiting people to participate in staging collisions. 43 As
already addressed, Jones states that plaintiff Harris is also involved in recruiting
people to participate in these schemes. 44 Jones indicates that Harris is as heavily
involved in staging collisions as Riley, and that Harris is paid the same amount as
Riley for successfully recruiting someone to participate. 45 According to Jones, the
amount Harris and Riley receive is higher than the amount paid to people who are
more junior than them. 46
Jones’s recorded statement thus places Harris and Riley at the top of a
scheme to recruit individuals to participate in staging collisions. Jones’s statement
sufficiently connects Riley and Harris to suggest Riley will be able to testify that he
has knowledge of Harris staging other collisions. The other allegedly staged
collisions defendants cite were similar to the subject collision. 47
As already
R. Doc. 175-6 at 2-3 (Jones stating that “Top is the head person,” and
that Riley goes by the nickname “Top”).
44
Id. at 11 (“Jones: Listen. You Top. All Top you get a thousand dollars.
. . . For bringing me. I get 500. I’m just an outsider. For Shirley Harris and
the [T]op the same, they both get a thousand. . . . [Interviewer:] Is Shirley
Harris at the same level as Top? Jones: Yes.”).
45
Id.
46
Id.
47
R. Doc. 152 at 30-31.
11
43
addressed, these similarities indicate that Riley’s proposed testimony is directly
probative of defendants’ argument here. That probative value is not outweighed
by any of the Rule 403 factors. Finally, Riley’s testimony is admissible under Rule
404(b)(2) for the same reason Jones’s testimony is admissible.
But Riley’s testimony will be admissible only if defendants first establish at
trial—with admissible evidence—that both Harris and Riley are principle figures in
recruiting individuals to participate in staging collisions. 48 Only when that factual
foundation has been established will the Court permit Riley to testify. 49
7.
Cornelius Garrison
Harris’s phone records indicate that she communicated with Cornelius
Garrison several times on the day of the collision and the following two days. 50 In
particular, the phone records show several text messages with Garrison and
multiple inbound calls from Garrison within an hour of the time Harris testified
the collision occurred. 51
Garrison may testify at trial regarding his
communications with Harris on the day of the collision because that testimony is
generally probative of plaintiffs’ negligence and damages claims.
Jones’s recorded statement is not sufficient to alone lay this foundation
at trial because her statements in the transcript are inadmissible hearsay.
49
Like Charlotte Jones’s proposed testimony, the Court’s instruction
following the pretrial conference does not apply to Riley’s testimony about
Harris’s direct involvement in staging other collisions.
50
R. Doc. 175-5 at 2-4.
51
Id. at 4; R. Doc. 175-1 at 6.
48
12
Defendants present no evidence that Garrison has been involved in staging
other collisions. 52
His testimony is therefore limited to his observations of
plaintiffs on the day of the collision through his communications with Harris. He
may not testify about any other collisions in which no plaintiff was involved.
8.
Joe Schembre
Joe Schembre is the investigator who obtained the recorded statements of
Dorsey, Dickson, and Jones. 53 Defendants state that Schembre’s testimony is
relevant to “issues concerning communications with witnesses.” 54 To the extent
Schembre will simply recount what other witnesses told him, his testimony would
be inadmissible hearsay evidence. But Schembre may testify that he interviewed
the witnesses, and he may explain how and when the interviews were conducted.
Schembre’s observations of defendants’ witnesses may also be relevant and not
hearsay. Finally, Schembre may testify for impeachment purposes, consistent with
Federal Rule of Evidence 613(b). Fed. R. Evid. 613(b) (“Extrinsic evidence of a
witness’s prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an
opportunity to examine the witness about it, or if justice so requires.”); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 763-64 (5th Cir. 2008) (district court
According to defendants, Lesdreka Dickson stated that on the day of
her staged collision, Riley spoke to Cornelius Garrison. R. Doc. 175 at 4. But
defendants do not present any evidence that Garrison was involved in staging
that collision.
53
R. Doc. 175 at 6.
54
Id.
13
52
did not err in permitting testimony of law enforcement officer as “extrinsic
evidence” pursuant to Rule 613).
B.
Plaintiffs’ Phone Records and Records of Other Collisions
Plaintiffs previously moved to exclude any evidence of their phone records. 55
The Court denied plaintiffs’ proposed blanket ban, but deferred ruling on which
phone records would be admissible until it considered plaintiffs’ motion to exclude
defendants’ lay testimony related to other collisions. 56 The Court finds that
Harris’s phone records showing she communicated with Harry Dorsey and
Cornelius Garrison from April 24, 2017 to May 2, 2017 are admissible, consistent
with the Court’s discussion in the previous section. If defendants wish to include
any other evidence of plaintiffs’ phone records, they must provide written briefing
on the issue no later than midnight on the day before the proposed offer.
Defendants shall explain in the briefing how the evidence is probative of an issue
at trial, consistent with Rule 403 and the Court’s discussion in this Order.
The Court also previously deferred ruling on plaintiffs’ motion to exclude
“testimony, records, and/or police reports of any other accident[].” 57 In their
opposition to plaintiffs’ motion to exclude lay testimony, defendants seek to
introduce testimony about only one other specific collision: the collision involving
Harry Dorsey and Lesdreka Dickson. 58 This is therefore the only collision still
55
56
57
58
R. Doc. 61-1 at 13.
R. Doc. 168 at 25-26.
Id. at 26-27.
R. Doc. 175 at 4-5.
14
applicable to this motion. Because the Court has found that Dorsey’s testimony
about the other collision is admissible under Rule 403, it also finds that records
and police reports related to that collision are relevant. At trial, defendants may
introduce these documents provided they do not contain inadmissible hearsay.
C.
Defendants’ Motion to Exclude Evidence of Settlements in
Other Matters
Defendants move to exclude evidence of settlements in the other cases that
defendants specifically allege were staged. 59 This motion is now applicable to only
the litigation for the collision involving Harry Dorsey, because that is the only other
collision defendants specifically mention in their briefs that the Court has deemed
can be introduced at trial. Defendants argue that evidence of other settlements is
barred by Federal Rule of Evidence 408(a). 60
Rule 408(a) provides:
Evidence of the following is not admissible—on behalf of any party—
either to prove or disprove the validity or amount of a disputed claim
or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to
accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim—except when offered in a criminal case and when the
negotiations related to a claim by a public office in the exercise of its
regulatory, investigative, or enforcement authority.
59
60
R. Doc. 53.
R. Doc. 53-1 at 5-7.
15
Fed. R. Evid. 408(a). This rule is intended to encourage the compromise and
settlement of disputes, in part by ensuring freedom of communication with respect
to compromise negotiations. U.S. Aviation Underwriters, Inc. v. Olympia Wings,
Inc., 896 F.2d 949, 956 (5th Cir. 1990). Rule 408(b) provides that the Court can
nonetheless admit any such evidence “for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an
effort to obstruct a criminal investigation.” Fed. R. Evid. 408(b). “Whether to
admit evidence for another purpose is within the discretion of the trial court.”
Belton v. Fibreboard Corp., 724 F.3d 500, 505 (5th Cir. 1984).
The parties do not address whether Rule 408(a) applies to evidence of
settlements involving completely different parties and claims. But that is the issue
defendants present in their motion because no plaintiff was involved in the Dorsey
litigation. 61 Defendants cite to Branch v. Fidelity Casualty Company, 783 F.2d
1289 (5th Cir. 1986), and Kennon v. Slipstreamer, Incorporated, 794 F.2d 1067
(5th Cir. 1986), but neither case is on point. In both cases, the Fifth Circuit held
that Rule 408 barred evidence of settlements between the plaintiff and certain
defendants in a multi-defendant litigation, when the evidence was introduced at
trial to the prejudice of a remaining party. Branch, 783 F.2d at 1294; Kennon, 794
F.2d at 1069-70. In Branch, the court noted that the purpose of Rule 408(a)
extends to situations in which the evidence of a settlement is used “to prejudice a
61
See R. Doc. 152 at 30.
16
separate and discrete claim” from the one involved in the settlement negotiations.
Branch, 783 F.2d at 1291 & 1294 (“The spectre of a subsequent use to prejudice a
separate and discrete claim is a disincentive which Rule 408 seeks to prevent.”).
This statement is arguably at odds with other Circuits’ interpretations of Rule
408(a). See Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194
(10th Cir. 1992) (Rule 408(a) does not bar evidence “related to settlement
discussions that involved a different claim than the one at issue in the current
trial”); Dahlgreen v. First Nat’l Bank of Holdrege, 533 F.3d 681, 699-700 (8th Cir.
2008) (“Rule 408 does not require the exclusion of evidence regarding settlement
of a claim different from the one litigated, though admission of such evidence may
nonetheless implicate the same concerns of prejudice and deterrence of
settlements which underlie Rule 408.” (quoting Towerridge, Inc. v. T.A.O., Inc.,
111 F.3d 758, 770 (10th Cir. 1997)).
But even if Rule 408(a) were to apply to evidence of these other settlements,
the evidence is admissible under Rule 408(b) as rebuttal evidence. See Zurich Am.
Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir. 2005) (noting that
evidence of settlements “has been admitted by courts for additional purposes other
than establishing liability, including for purposes of rebuttal . . .”); Fick v. Exxon
Mobil Corp., No 13-6608, 2016 WL 81716, at *3 (E.D. La. Jan. 7, 2016) (same). In
the context of this trial, plaintiffs would not be introducing this evidence to prove,
in the first instance, that the claims in another case were valid. They would instead
introduce the evidence to rebut defendants’ suggestion that the other collision was
17
staged. Plaintiffs may use this evidence for that purpose under Rule 408(b). Id.
Further, the Seventh Circuit in Zurich noted that when the district court uses its
wide discretion to determine whether Rule 408 evidence is introduced for a proper
purpose, courts “should consider the spirit and purpose of the rule and decide
whether the need for the settlement evidence outweighs the potentially chilling
effect on future settlement negotiations.” Zurich, 417 F.3d at 689. The admission
of this evidence does not undercut the purpose of Rule 408(a). Admission under
these circumstances does not create a disincentive for parties to engage in
settlement negotiations, because the evidence is not being used to the prejudice of
any of the parties in the case in which the settlement negotiations took place.
In all, the Court finds that given the particular circumstances of this case,
plaintiffs may introduce evidence of a settlement, if any, in the case discussed
during Harry Dorsey’s testimony. This evidence is especially appropriate given
that the Court will allow defendants to present evidence of Dorsey’s collision and
resulting litigation claim in the first instance.
D.
Plaintiffs’ Motion to Exclude Video Surveillance Evidence
and Request for Sanctions
Plaintiffs move to exclude defendants from introducing surveillance video at
trial. 62 Defendants retained the services of nonparty Photofax, Inc., to conduct
video surveillance of plaintiffs Thomas and Clark in August and September 2018. 63
62
63
R. Doc. 56.
R. Doc. 71 at 2.
18
Defendants state that one video of Clark from August 21, 2018 shows him lifting a
lawn mower and placing it into his truck. 64 This evidence is highly relevant to
Clark’s claims for physical pain and suffering damages and future medical
expenses, as well as his credibility as a witness. These videos are therefore relevant
under Federal Rule of Evidence 401, and not more prejudicial than probative
under Rule 403. See Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357, 369
(5th Cir. 2008) (district court did not abuse its discretion under Rule 403 in
allowing video surveillance evidence that disputed the plaintiff’s evidence
regarding his “post-accident quality of life”); Menges v. Cliffs Drilling Co., No. 992159, 2000 WL 765083, at *2 (E.D. La. June 12, 2000) (admitting surveillance
video evidence that undermined the plaintiff’s assertions of physical pain and
disability).
Plaintiffs primarily argue that the surveillance videos should be excluded
because defendants failed to timely disclose them. 65 This argument is meritless.
Defendant Chambers responded to plaintiffs’ interrogatories and requests
for production on August 17, 2018. 66 Chambers identified as potential witnesses
“[a]ny and all individuals who may have or will secure surveillance of any
plaintiffs.” 67 He also identified as an exhibit “[a]ny and all surveillance secured at
64
65
66
67
Id. at 7.
R. Doc. 56-1.
R. Doc. 71-1.
Id. at 3.
19
any point.” 68 At the time of Chambers’s response, Photofax was in the midst of
surveilling Thomas and Clark. 69 On August 28, 2018, God’s Way responded to
plaintiffs’ interrogatories and requests for production. 70 God’s Way identified the
same potential witnesses and exhibits. 71
God’s Way also disclosed in these
responses that surveillance of Clark and Thomas had been conducted. 72
Defendants state that they did not receive the surveillance videos from
Photofax until February 25, 2019. 73 Defendants produced the videos to plaintiffs
that same day, which was three weeks before the March 18, 2019 discovery
deadline. 74 Plaintiffs filed the instant motion on February 25, 2019, as well. 75 On
February 26, 2019, defendants’ counsel disclosed to plaintiffs’ counsel the name of
the Photofax investigator who conducted the surveillance, and inquired whether
plaintiffs would like to schedule a deposition before the March 18 discovery
deadline. 76 Plaintiffs’ counsel declined to schedule a deposition, and responded
that she was “just moving to strike him instead.” 77
The record thus indicates plaintiffs were advised as early as August 2018 that
defendants were conducting surveillance of Thomas and Clark. The record also
68
69
70
71
72
73
74
75
76
77
Id. at 6.
See R. Doc. 71 at 2.
R. Doc. 71-2.
Id. at 3, 9.
Id. at 11.
R. Doc. 71 at 3.
R. Doc. 71-5 at 3.
R. Doc. 56.
R. Doc. 71-6 at 1.
Id.
20
shows that defendants produced the surveillance video before the discovery
deadline and offered to schedule a timely deposition of the individual who
conducted the surveillance.
Defendants’ disclosures are consistent with the
Court’s Scheduling Order. Plaintiffs have not been prejudiced by defendants’
disclosures, especially because the Court has since continued the trial without date.
In all, because defendants produced these videos in advance of the discovery
deadline and made their witness available for a deposition before the deadline,
plaintiffs’ motion to strike and for sanctions is meritless. See Baker, 536 F.3d at
368-69 (noting that not even surveillance tape “disclosed after the discovery cutoff,
but before trial, is automatically inadmissible”). The motion is denied.
E.
Defendants’ Motion to Exclude Evidence of Past Convictions
Defendants move to exclude evidence of Chambers’s past felony conviction.
The motion is denied.
On May 26, 2009, Chambers pleaded guilty to one count of conspiracy under
18 U.S.C. § 371. See United States v. Chambers, No. 07-31 (S.D. Ga. May 29, 2009).
The Judgment of Chambers’s sentence described the nature of his offense as
[c]onspiracy to alter and remove vehicle identification numbers, to
traffic in motor vehicles with altered vehicle identification numbers,
to sell and receive stolen motor vehicles, and to possess and
counterfeit forged state securities with the intent to defraud.
21
Id. 78 Chambers was sentenced to a term of 18 months imprisonment and three
years of supervised release. Id.
Under Federal Rule of Evidence 609(a), in a civil case, evidence of a criminal
conviction for a crime punishable by death or by imprisonment for more than one
year “must be admitted, subject to Rule 403.” Fed. R. Evid. 609(a)(1)(A). Under
Rule 609(b), “if more than 10 years have passed since the witness’s conviction or
release from confinement for it, whichever is later,” evidence of the conviction is
admissible only if: “(1) its probative value, supported by facts and circumstances,
substantially outweighs its prejudicial effect; and (2) the proponent gives an
adverse party reasonable written notice of the intent to use it so that the party has
a fair opportunity to contest its use.” Fed. R. Evid. 609(b).
In their briefs, the parties name the statute under which Chambers was
convicted, the jurisdiction in which he was sentenced, the terms of
imprisonment and supervised release, and his date of conviction. R. Doc. 121
at 2. But neither party introduces into the record Chambers’s judgment from
the Southern District of Georgia, which describes the nature of his offense.
The Court may nonetheless take judicial notice of the record in Chambers’s
criminal case. See Gray ex rel. Rudd v. Beverly Enters.-Miss., Inc., 390 F.3d
400, 408 n. 7 (5th Cir. 2004) (“We may take judicial notice of another court’s
judicial action. . . . [T]he fact that a judicial action was taken is indisputable
and is therefore amenable to judicial notice.”); Charles A. Wright & Arthur
R. Miller, 21B Fed. Prac. & Proc. § 5106.4 (2d ed. & Supp. 2012) (courts and
commentators “generally agree that courts can take judicial notice of court
records under Rule 201(b)(2)”); Fed. R. Evid. 201(b) (providing that a court
“may judicially notice a fact that is not subject to reasonable dispute because
it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”).
78
22
It is not entirely clear whether the restriction in Rule 609(b) applies to this
motion. 79 Trial was originally scheduled to begin on April 29, 2019, which would
have been within ten years of Chambers’s May 26, 2009 conviction. 80 But the
Court has continued trial and has not set a new date. 81 Trial will not start until
after the ten-year anniversary of Chambers’s conviction. Rule 609(b) is implicated
only if more than ten years have passed from Chambers’s “release of confinement.”
Id. The parties have not provided any information regarding the date Chambers
was released from confinement. The Court therefore cannot at this time determine
whether trial will commence fewer than ten years from the date Chambers was
released.
But this uncertainty is irrelevant, because the Court finds that even if Rule
609(b) were to apply, evidence of Chambers’s 2009 conviction would nonetheless
be admissible. In weighing the probative value versus any prejudicial effect of
admitting prior convictions under Rule 609(b), courts consider the following
factors:
(1) The nature [impeachment value] of the crime.
(2) The time of conviction.
Defendants conceded in their motion that Rule 609(b) does not apply
because Chambers’s conviction was within ten years of the original trial date.
R. Doc. 121 at 2. But defendants filed their motion prior to the Court
continuing trial, so their concession does not cure the ambiguity the Court
faces.
80
R. Doc. 9.
81
R. Doc. 173.
23
79
(3) The similarity between the past crime and the charged crime.
(4) The importance of [the witness’s] testimony.
(5) The centrality of the credibility testimony.
United States v. Acosta, 763 F.2d 671, 695 n.30 (5th Cir. 1985) (quoting United
States v. Hawley, 554 F.2d 50, 53 n. 5 (2d Cir. 1977)). The third factor is not
applicable here, because Chambers is not a criminal defendant charged with a
crime. See United States v. Bates, No. 13-66, 2015 WL 3466188, at *2 (E.D. La.
June 1, 2015) (third factor not relevant where the relevant witness was not a
criminal defendant charged with a crime). On balance, the four applicable factors
weigh in favor of admission.
As to the first factor, the impeachment value of the prior crimes, the Fifth
Circuit has held that “prior crimes involving deliberate and carefully premeditated
intent such as fraud and forgery are far more likely to have probative value with
respect to later acts than prior crimes involving a quickly and spontaneously
formed intent.” United States v. Cohen, 544 F.2d 781, 785 (5th Cir. 1977) (quoting
United States v. San Martin, 505 F.2d 918, 923 (5th Cir. 1974)). “[S]uch crimes
are more probative on the issue of propensity to lie under oath than more violent
crimes which do not involve dishonesty.” Id. Here, Chambers was convicted for
taking part in a criminal auto-theft scheme, which involved “possess[ing] and
counterfeit[ing] forged state securities with the intent to defraud.” Chambers, No.
07-31 (S.D. Ga. May 29, 2009). His offense was not a spontaneous violent act, but
a premeditated scheme to forge vehicle identification information to traffic in
24
stolen goods. Chambers’s conviction therefore has significant impeachment value
on his capacity for truthfulness.
As to the second factor, the time of conviction, if it proves to be the case that
Chambers was released from confinement more than ten years from the date of
trial, it likely would not be by much. The Court thus finds that this factor is not
determinative.
The fourth and fifth factors—the importance of the witness’s testimony and
the centrality of the credibility testimony—weigh heavily in favor of admission.
This case is about whether Chambers negligently caused the collision or whether
plaintiffs intentionally caused the collision to recover damages in litigation.
Chambers and plaintiffs are the essential witnesses on this question. Whether the
jury credits Chambers’s or plaintiffs’ testimony is therefore critically important.
See Bates, 2015 WL 3466188, at *2 (noting that when “the jury essentially has to
choose between one version of events presented” by the witness with a prior
conviction and the opposing party’s witnesses, the fourth and fifth factors weigh in
favor of admission).
Chambers’s credibility is especially important in these
circumstances because he is accusing plaintiffs of fraudulent behavior to exculpate
himself from civil liability. When the crux of a case is a credibility issue, other
courts have recognized that evidence of prior convictions takes on “special
significance.” United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992); see
also United States v. Brown, 603 F.2d 1022 (1st Cir. 1979).
25
The Court thus finds that, in the event Rule 609(b) were to apply to
Chambers’s prior conspiracy conviction, evidence of the conviction is admissible
because its probative value substantially outweighs its prejudicial effect. In the
alternative, if event Rule 609(b) is not applicable at trial, Chambers’s conspiracy
conviction is admissible under Rule 609(a)(1)(A) for the same reasons described
herein. See Fed. R. Evid. 609(a)(1)(A) (evidence of a conviction punishable by
imprisonment for more than one year must be admitted in a civil case, subject to
Rule 403).
On cross examination, to attack Chambers’s credibility, plaintiffs are
permitted to establish only “the nature” of the crime charged, the date and time of
conviction, and the punishment Chambers received. See Veals v. Edison Chouest
Offshore, LLC, No. 06-3776, 2007 WL 3237171, at *2 (E.D. La. Oct. 31, 2007)
(citing Beaudine v. United States, 368 F.2d 417, 421-22 (5th Cir. 1966)); Gaudin v.
Shell Oil Co., 132 F.R.D. 178, 179 (E.D. La. 1990). In this context, the “nature” of
Chambers’s offense means how the offense is described in the Judgment in
Chambers’s criminal case. See Chambers, No. 07-31 (S.D. Ga. May 29, 2009)
(“Conspiracy to alter and remove vehicle identification numbers, to traffic in motor
vehicles with altered vehicle identification numbers, to sell and receive stolen
motor vehicles, and to possess and counterfeit forged state securities with the
intent to defraud.”). Plaintiffs may not inquire into any other details of Chambers’s
conviction. See Gaudin, 132 F.R.D. at 179.
26
F.
Defendants’ Motion to Exclude Portions of Accident Report
Defendants move to exclude Officer Jassa Sengha—the New Orleans Police
Department (NOPD) officer who arrived at the scene and completed a vehicle crash
report—from offering any opinion on the cause of the collision or which party was
at fault. 82 Defendants also move to redact any portion of the crash report that
contains inadmissible opinion testimony. 83
Federal Rule of Evidence 701, which governs lay opinions, provides that such
opinions are admissible when they are “(1) rationally based on the perception of
the witness, (2) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (3) not based on scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 701. Police officers’ opinions as to the cause
of an automobile accident formed by viewing subsequent evidence at the scene are
excluded under Rule 701, because such opinions require scientific, technical, or
other specialized knowledge. See Duhon v. Marceaux, 33 F. App’x 703, 2002 WL
432383, at *4 (5th Cir. 2002); Rea v. Wis. Coach Lines, Inc., No. 12-1252, 2015 WL
1012936, *3 (E.D. La. Mar. 5, 2015). It is undisputed that Officer Sengha is not
qualified to testify as an expert in accident reconstruction and that he did not
witness the accident. Officer Sengha therefore cannot offer opinion testimony on
the cause of the collision or who was at fault.
82
83
R. Doc. 52-1 at 2-3.
Id. at 3-4.
27
The parties in fact do not dispute that Officer Sengha cannot offer these
opinions at trial. They instead dispute the extent to which the accident crash report
contains any inadmissible opinions and must be redacted. 84
The parties
specifically address Officer Sengha’s statements in the narrative section of the
report:
Driver of vehicle 1 85 stated he never observed his trailer hit vehicle 2.
Driver of vehicle 1 stated he was in middle lane at the time of the
accident according to driver vehicle 2’s 86 statement. Driver of vehicle
2 stated she was in the right lane when vehicle 1 made a quick lane
change and hit the rear tire of the trailer being driven by driver of
vehicle 1. Officer Sengha issued NOPD item slips to both drivers.
Officer Sengha observed a very faint trail of white paint on the last
rear tire of the trailer of vehicle 1. Officer Sengha did not issue any
citations due to conflicting statements. Officer Sengha’s body worn
camera and in-car camera were activated prior to arrival and for the
duration of the investigation.
Each of these statements is admissible lay opinion testimony because they
are statements of fact as to what Officer Sengha observed at the scene of the
collision. Defendants argue that Officer Sengha’s statement that he observed “a
very faint trail of white paint on the last rear tire” of Chambers’s vehicle is
inadmissible opinion testimony regarding causation.
But this is simply a
See R. Doc. 86-1 at 2; R. Doc. 117. The parties do not dispute that the
accident crash report as a whole is admissible under the exception to the
hearsay rules for a record or statement from a public office in a legally
authorized investigation. See Fed. R. Evid. 803(8)(A)(iii) (the hearsay rule
does not apply to “[a] record or statement of a public office if it sets out . . .
in a civil case . . . factual findings from a legally authorized investigation”).
85
“Vehicle 1” in Officer Sengha’s report denotes Chambers’s tractortrailer.
86
“Vehicle 2” in Officer Sengha’s report denotes plaintiffs’ vehicle.
28
84
statement of what Officer Sengha observed at the scene, and is therefore
admissible lay opinion testimony.
At trial Officer Sengha cannot draw any
conclusions from this observation about who caused the collision, but his
observation itself is admissible. Finally, the statements in the report attributed to
Chambers and plaintiffs are potentially admissible under Rule 801(d)(2),
depending upon which party offers the crash report into evidence. See Fed. R.
Evid. 801(d)(2) (opposing party’s statement is not hearsay). They are therefore
not per se inadmissible hearsay.
III.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion to exclude certain lay testimony
is GRANTED IN PART and DENIED IN PART. Defendants’ motion to exclude
evidence of settlements in other matters is DENIED. Plaintiffs’ motion to exclude
video surveillance evidence is DENIED. Defendants’ motion to exclude evidence
of Chambers’s past convictions is DENIED. And defendants’ motion to exclude
portions of the accident report and testimony of Officer Sengha is GRANTED IN
PART and DENIED IN PART.
6th
New Orleans, Louisiana, this _____ day of May, 2019.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
29
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