Logan et al v. Westfield Insurance Co et al
Filing
157
ORDER AND REASONS granting in part and denying in part 132 Motion in Limine on Consolidated in Limine Motions. Signed by Chief Judge Nannette Jolivette Brown on 1/24/2020. (crt,Whidden, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
REBECCA LOGAN, et al.
CIVIL ACTION
VERSUS
NO. 17-29
WESTFIELD INSURANCE COMPANY, et
al.
SECTION: “G”(4)
ORDER AND REASONS
Plaintiffs Rebecca Logan and Derek Logan (collectively, “Plaintiffs”) bring negligence
claims against Defendants Cory Smothers (“Smothers”), Foundation Xpress LLC (“Foundation
Xpress”), and Westfield Insurance Company (“Westfield Insurance”) (collectively, “Defendants”)
for injuries allegedly sustained in an automobile accident. 1 Before the Court is Defendants’
“Motion in Limine on Consolidated in Limine Motions.” 2 Considering the motion, the memoranda
in support and in opposition, the record, and the applicable law, the Court grants the motion in part
and denies it in part.
I. Background
On October 25, 2016, Plaintiffs filed a petition for damages against Defendants in the 16th
Judicial District Court for the Parish of Lafayette. 3 The petition arises from a two-vehicle collision
1
Rec. Doc. 1-1.
2
Rec. Doc. 132.
3
Rec. Doc. 1-1.
1
at the intersection of Bertrand Drive and East Devalcourt in Lafayette, Louisiana. 4 According to
the petition, on October 30, 2015, Rebecca Logan was driving her vehicle northward on Bertrand
Drive. 5 Thereafter, Smothers allegedly, driving a 2012 Freightline Cascadia southward on
Bertrand Drive, attempted a left turn and subsequently collided into Rebecca Logan’s automobile. 6
Rebecca Logan brings a negligence claim against Smothers and Foundation Xpress, who
allegedly both owns the 2012 Freightline Cascadia and employs Smothers. 7 Plaintiffs also bring
claims against Westfield Insurance, who allegedly insured the Freightline Cascadia operated by
Smothers. 8 Rebecca Logan contends that she suffered physical pain, mental pain, and other
injuries due to the automobile accident. 9 Derek Logan contends that he suffered the loss of services
and consortium of Rebecca Logan. 10
On January 10, 2017, Defendants removed this case to the Western District of Lafayette,
asserting diversity jurisdiction under 28 U.S.C. § 1332. 11 The case was initially assigned to United
States District Judge Rebecca F. Doherty, and scheduled for trial on May 7, 2018. 12 However,
following the retirement of the presiding district judge, the trial date was continued on several
4
Id. at 1.
5
Id.
6
Id. at 1–2.
7
Id. at 4.
8
Id.
9
Id. at 2.
10
Id. at 3.
11
Rec. Doc. 1.
12
Rec. Doc. 10.
2
occasions. 13 On July 26, 2018, the case was reassigned to Chief Judge Nannette Jolivette Brown,
and set for trial on August 19, 2019. 14
On July 15, 2019, Plaintiffs filed a Motion to Continue the Trial Date and Extend All
Deadlines. 15 In the motion to continue, Plaintiffs asserted that a continuance of the August 19,
2019 trial date was necessary because Plaintiff Rebecca Logan was receiving ongoing medical
care for her back, neck, and knee, and had just received a surgical recommendation for her back
and knee. 16
On July 22, 2019, the Court granted Plaintiffs’ motion to continue trial. 17 In granting the
continuance, the Court relied on Plaintiffs’ representation that Plaintiff Rebecca Logan had not
reached maximum medical improvement with respect to her neck surgery, and that her doctors had
recently recommended surgeries for her knee and back. 18 The Court was under the impression that
Ms. Logan intended to undergo these additional surgeries to attempt to reach maximum medical
improvement. 19 The Court found that a brief continuance was appropriate to allow Plaintiffs to
obtain the recommended medical treatment, updated medical reports, and updated documentation
on future medical plans. 20 Therefore, the Court continued the trial date and pretrial conference
13
Rec. Docs. 49, 53.
The case was originally set for trial before Chief Judge Brown on May 13, 2019. Rec. Docs. 49, 53. The
trial date was reset to August 19, 2019 due to a conflict in the Court’s calendar. Rec. Docs. 57, 59.
14
15
Rec. Doc. 86.
16
Id. at 1.
17
Rec. Doc. 95.
18
Id. at 2.
19
Ms. Logan did not undergo any additional surgeries following the continuance.
20
Id.
3
date, but stated that all other deadlines set forth in the Court’s Scheduling Order would remain in
effect. 21 However, the Court stated that the parties could move to extend a specific deadline upon
a showing of good cause. 22
On January 14, 2020, Defendants filed the instant motion in limine.23 On January 22, 2020,
Plaintiffs filed an opposition to the instant motion.24
II. Parties’ Arguments
A.
Defendants’ Arguments in Support of the Motion
Defendants omnibus motion in limine seeks to exclude the introduction of nineteen
categories of evidence. 25
1.
Publication of Insurance Policy Limits to the Jury
First, Defendants seek an Order prohibiting the parties from publishing or referencing the
available monetary policy limits for the insurance policies at issue in this case. 26 Defendants assert
that this evidence is not relevant to any issue of fact in this case and unfairly prejudicial. 27
2.
Evidenced of Lost Wages or Income
Second, Defendants assert that Plaintiffs must be barred from seeking lost wages or
21
Id. at 3.
22
Id.
23
Rec. Doc. 132.
24
Rec. Doc. 147.
25
Rec. Doc. 132.
26
Rec. Doc. 132-1 at 5–6.
27
Id. at 6 (citing Berry v. Roberson, 2016 WL 3432455 (M.D. La. 06/17/16); DSC Commc’ns Corp. v. Next
Level Commc’ns, 929 F. Supp. 239, 242–46 (E.D. Tex. 1996)).
4
income. 28 Defendants contend that the accident has not affected Plaintiffs’ ability to work, and
Plaintiffs are not claiming loss of future earnings and did not disclose an expert to testify to loss
of future earnings. 29 Furthermore, to the extent Plaintiffs may at trial seek past lost wages,
Defendants argue that Plaintiffs are precluded from seeking these alleged damages because
Plaintiffs have not provided documents or evidence to support any lost wage or income claim.30
Therefore, Defendants move this Court to exclude any evidence or testimony regarding past or
future lost wages or income. 31
3.
Evidence Smothers’ Driver’s Daily Log “Violated the Law”
Third, Defendants request that Plaintiffs’ counsel be prohibited from mentioning or
referencing that Smothers allegedly “violated the law” by not filling in the word “Lafayette” in his
Daily Driver’s Log or any other omissions/mistakes contained in Smothers’ logs. 32 Defendants
assert that the Department of Transportation (“DOT”) establishes the law on driver logbook
injuries, but Plaintiffs did not identify any potential DOT regulations or DOT violations in the PreTrial Order. 33 Defendants assert that any mention of this issue is improper, irrelevant, and would
serve no purpose other than to inflame or confuse the jury. 34
4.
Testimony Regarding Smothers’ Post-Accident Employment Status
28
Id.
29
Id.
30
Id.
31
Id. at 6–7.
32
Id. at 7.
33
Id.
34
Id.
5
Fourth, Defendants seek to exclude any evidence or testimony regarding Smothers’ postaccident employment status, specifically that Smothers was briefly suspended following the
accident. 35 Defendants assert that such evidence is irrelevant and prejudicial as the jury could infer
that Smothers was guilty of wrongdoing. 36 Furthermore, Defendants contend that Federal Rule of
Evidence 407 expressly prohibitS the introduction of subsequent remedial measures to prove
negligence. 37
5.
Limitation of Plaintiff Derek Logan’s Testimony
Fifth, Defendants move the Court to preclude Plaintiff Derek Logan from giving an opinion
as to fault for the collision because he did not witness the accident. 38 Additionally, Defendants
assert that Mr. Logan must be precluded from using his position as a Louisiana Wildlife and
Fisheries agent to bolster his testimony and credibility. 39 According to Defendants, during Mr.
Logan’s deposition he testified: “It’s my professional experience of being a game warden for 12
years not often do you see a woman by herself hunting wild boar. She is a strong woman. And she
was totally shattered when she was sitting in that car.” 40 Defendants assert that Mr. Logan’s
professional experience has nothing to do with this case. 41 Therefore, Defendants argue that Mr.
Logan “should not be allowed to insert his position of authority or experience as a game warden
35
Id.at 8.
36
Id. at 9.
37
Id.
38
Id. at 10.
39
Id.
40
Id.
41
Id.
6
into his testimony to sway the jury against Defendants.” 42 Furthermore, Defendants request that
Mr. Logan be “precluded from wearing his wildlife and fisheries agent uniform in the presence of
the jury unless, of course, there is a justifiable reason or excuse for doing so.” 43
6.
Testimony Blaming Fertility Issues on the Accident
Sixth, Defendants assert that Plaintiffs should be barred from blaming fertility issues on
the accident. 44 Based on Plaintiffs’ deposition testimony and discovery responses, Defendants
anticipate Plaintiffs may testify or mention to the jury that this accident affected their ability or
chances to conceive a child biologically. 45 Defendants contend that the Court should prohibit such
statements or testimony because Plaintiffs’ fertility or infertility is clearly a medical issue that falls
outside their knowledge and expertise, and no medical doctor or expert has opined this accident
affected Plaintiffs’ ability or chances to conceive a child biologically. 46 Therefore, Defendants
assert that any purported testimony by Plaintiffs on this issue will either be hearsay, rank
speculation, and/or an attempt by lay witnesses to improperly provide expert testimony under
Federal Rule of Evidence 702. 47 Furthermore, Defendants assert such testimony is not relevant
and would serve only to inflame the jury. 48
7.
References to No Corporate Representative Being at Trial and Foundation
Xpress’s Status
42
Id. at 10–11.
43
Id. at 11.
44
Id.
45
Id.
46
Id.
47
Id. at 11–12.
48
Id. at 12.
7
Seventh, Defendants assert that a corporate representative may not attend trial, and
Plaintiffs should be precluded from raising this issue in front of the jury. 49 Additionally,
Defendants contend that Plaintiffs should be prohibited from mentioning that Foundation Xpress
is no longer in business. 50 Defendants argue that these references are irrelevant and prejudicial. 51
8.
Comment on Plaintiffs’ and Defendants’ Financial Resources
Eighth, Defendants seek to exclude any mention of Plaintiffs’ or Defendants’ financial
resources. 52 Defendants assert that such references are unfairly prejudicial and would distract from
the relevant issues at trial. 53
9.
Comment on Other Legal Proceedings, Accidents, and Dissimilar Incidents
Ninth, Defendants move the Court to exclude any testimony, evidence, or argument, direct
or indirect, concerning any other legal proceedings, lawsuits, or complaints, brought against any
defendant because Defendants argue such other claims are irrelevant and immaterial and such
testimony, evidence, or argument is calculated only to inflame the jury. 54 Additionally, Defendants
move the Court to exclude any testimony, evidence, or argument, direct or indirect, concerning
any other accidents, wrongs or misconduct involving any defendant because such accidents,
wrongs, or misconduct are irrelevant and immaterial and such testimony, evidence, or argument is
49
Id.
50
Id.
51
Id.
52
Id. at 13.
53
Id.
54
Id.
8
calculated only to inflame the jury. 55
10.
Lay Testimony and Evidence Regarding Plaintiffs’ Physical Condition
Tenth, Defendants assert that “[e]vidence from lay witnesses concerning Rebecca Logan’s
medical condition, work capacity or alleged injuries should be excluded because lay witnesses are
incompetent to testify to matters of a medical nature and because such testimony is hearsay.” 56 To
the extent Plaintiffs intend or may testify as to whether they have been told anything about Rebecca
Logan’s physical or medical condition by any doctor or medical witness, Defendants argue that
such testimony is hearsay. 57 Defendants contend that Plaintiffs should present allowable medical
testimony from the medical records or from medical doctors. 58
11.
Testimony of Future Health Problems that Plaintiffs Believe May Occur
Eleventh, Defendants request that the Court exclude any testimony by Plaintiffs suggesting
that Rebecca Logan may incur health problems or medical conditions, caused by the October 30,
2015 accident, or mention of fears or concerns about potential health problems or medical
conditions which may arise in the future. 59 Defendants argue that such evidence is the province of
a medical doctor, and Plaintiffs are not qualified to offer scientific testimony regarding medical
causation, including but not limited to potential future injuries. 60
12.
References to Settlement Negotiations
55
Id. at 13–14.
56
Id. at 14.
57
Id.
58
Id.
59
Id.
60
Id. at 15.
9
Twelfth, Defendants move the Court to exclude any evidence of any offers to settle,
negotiations with respect to settlement or the absence of such negotiations. Defendants assert that
this information is immaterial and irrelevant to any issue in this case, and its mention would be
unfairly prejudicial. 61 Likewise, Defendants argue any reference to the fact that settlement
negotiations have taken place in this action or that mediation was conducted, as well as the actions
or statements of any party in connection with such settlement negotiations and/or mediation should
be excluded. 62 Defendants assert that such evidence is irrelevant to proving the validity or
invalidity of the claims in this action and is inadmissible under Federal Rule of Evidence 408. 63
13.
References to Pre-Trial Rulings and Motions Regarding Exclusions of
Evidence or Testimony
Thirteenth, Defendants request that the Court exclude any reference to pre-trial rulings and
motions regarding the admissibility of evidence. 64 Defendants contend that such evidence is not
relevant and unfairly prejudicial. 65
14.
Comment on Absent or Probable Witnesses
Fourteenth, Defendants move the Court to prohibit Plaintiffs from making any mention or
suggestion “as to the probable testimony of a witness who is absent, unavailable or not called to
testify in this cause, and no comment be made as to the failure of any party to call as a witness any
61
Id.
62
Id.
63
Id.
64
Id.
65
Id. at 15–16.
10
person equally available to both parties.” 66
15.
Testimony on Foundation Xpress’s Entrustment of a Vehicle and Training of
Smothers
Fifteenth, Defendants move the Court to exclude any testimony related to Foundation
Xpress’s training of Smothers, or entrustment of the subject vehicle to Smothers. 67 Defendants
argue that such testimony is irrelevant to any pending claim in this matter as Plaintiffs have not
asserted a separate claim against defendant Foundation Xpress for negligent hiring, training, and
entrustment of a vehicle to Smothers. 68
16.
References to Bias or Prejudice Against Corporate Defendants
Sixteenth, Defendants seek to exclude any reference to bias or prejudice against corporate
defendants as such evidence is not relevant and serve only to inflame the jury. 69
17.
References to Undisclosed or Unadmitted Evidence
Seventeenth, Defendants move the Court to exclude any testimony, evidence, or argument,
direct or indirect, concerning records, drawings, or other documents or exhibits by Plaintiffs not
provided to or reviewed by Defendants because they argue any such evidence would violate the
rules of discovery. 70
18.
Comment on Discovery Objections
Eighteenth, Defendants move the Court to exclude any testimony, evidence, or argument,
66
Id. at 16.
67
Id.
68
Id.
69
Id. at 16–17.
70
Id. at 17.
11
direct or indirect, concerning any objections or comments previously made by attorneys, whether
in depositions, written discovery, hearings, or trial because they argue such evidence is irrelevant
and would inflame the jury. 71
19.
References to Conscience of the Community
Nineteenth, Defendants argue that any statement, reference, inference, argument, or
mention that the jurors should put themselves in the position of Plaintiffs is improper and
irrelevant. 72 Additionally, Defendants argue that any statement, reference, inference, argument, or
mention to the jury that they are the conscience of the community is prejudicial to Defendants. 73
B.
Plaintiffs’ Arguments in Opposition to the Motion
Plaintiffs do not oppose Defendants’ request that the Court exclude the following
categories of evidence: (1) publication of insurance policy limits to the jury; (7) references to no
corporate representative being at trial and Foundation Xpress’s status; (8) comment on Plaintiffs’
and Defendants’ financial resources; (9) comment on other legal proceedings, accidents, and
dissimilar incidents; (12) references to settlement negotiations; (13) references to pre-trial rulings
and motions regarding exclusions of evidence or testimony; (16) references to bias or prejudice
against corporate defendants; and (19) references to conscience of the community. 74 Plaintiffs
oppose in whole or in part the exclusion of the other categories of evidence at issue in Defendants’
omnibus motion in limine. 75
71
Id. at 17–18.
72
Id. at 18.
73
Id.
74
Id.
75
Rec. Doc. 147.
12
2.
Evidenced of Lost Wages or Income
Plaintiffs acknowledge that they are not seeking past lost wages, but they assert that they
have every right to seek future lost wages. 76 Plaintiffs cite Barocco v. Ennis Inc., a Fifth Circuit
case, for the proposition that loss of future earning capacity can be permitted without testimony of
vocational and economic experts. 77 Therefore, Plaintiffs assert that Rebecca Logan can present
testimony that the injuries she sustained due to this accident could negatively affect her future
work status and/or income. 78
3.
Evidence Smothers’ Driver’s Daily Log “Violated the Law”
Plaintiffs assert that they should be allowed to question Smothers about inaccuracies and
omissions in his Daily Driver’s Log. 79 Plaintiffs contend that the fact Smothers failed to accurately
keep his Daily Log will be offered “as an example of his inattentiveness, inexperience, lack of
understanding of the requirements for truck drivers, and lack of preparation.” 80 Plaintiffs argue
that these allegations are not arguments of law that were required to be included as a contested
issue of law in the Pre-Trial Order. 81 Plaintiffs argue that this evidence is relevant to show that the
Smothers’ inattentiveness caused the accident. 82
76
Id. at 1.
77
Id. at 1–2 (citing 100 F. App’x 965, 968 (5th Cir. 2004)).
78
Id. at 1.
79
Id. at 2.
80
Id.
81
Id.
82
Id. at 3.
13
4.
Testimony Regarding Smothers’ Post-Accident Employment Status
Plaintiffs acknowledge that Smothers’ suspension would generally be excluded as evidence
of subsequent remedial measures. 83 However, Plaintiffs assert that such evidence could be
admitted for the purpose of impeachment if he were to claim he suffered no consequences as a
result of the accident or to show that Foundation Xpress had control over Smothers if a
representative of the company were to claim they had no control over Smothers’ actions. 84
Therefore, Plaintiffs argue the evidence should not be excluded because there are a few instances
where it would be appropriate to introduce the evidence. 85
5.
Limitation of Plaintiff Derek Logan’s Testimony
Plaintiffs contend that there is absolutely no reason to preclude Derek Logan from stating
his occupation as a Louisiana Wildlife and Fisheries agent. 86 Plaintiffs assert that Mr. Logan’s
deposition testimony was not based on his experience as a game warden but a common-sense
perception regarding Rebecca Logan’s decreased ability to hunt since her injury. 87 Plaintiffs
contend that there is no authority to support Defendants’ request that Mr. Logan not wear his
uniform, but also note that Mr. Logan plans to come to trial in civilian clothing. 88
6.
Testimony Blaming Fertility Issues on the Accident
Plaintiffs assert that Defendants mischaracterize Rebecca Logan’s deposition testimony
83
Id.
84
Id.
85
Id. at 3–4.
86
Id. at 4.
87
Id.
88
Id.
14
regarding her fertility issues. 89 According to Plaintiffs, Ms. Logan is not claiming the accident
caused her fertility issues, but she fears that her body could not handle the rigors of pregnancy and
the medications she takes could negatively affect a pregnancy. 90 Plaintiffs assert that this testimony
supports her request for damages based on mental pain and suffering. 91
10.
Lay Testimony and Evidence Regarding Plaintiffs’ Physical Condition
Plaintiffs assert that any first-hand witness should be able to discuss Rebecca Logan’s
injury, her ability to work, or struggles she has had due to her injuries. 92 Plaintiffs assert that lay
witnesses may offer common sense opinion testimony regarding matters within their own
perception and experiences in everyday life. 93
11.
Testimony of Future Health Problems that Plaintiffs Believe May Occur
Plaintiffs assert that Defendants request that the Court exclude any testimony by Plaintiffs
suggesting that Rebecca Logan may incur health problems or medical conditions, caused by the
October 30, 2015 accident, or mention of fears or concerns about potential health problems or
medical conditions which may arise in the future is too vague. 94 Plaintiffs contend that the Court
should not rule on this matter until Defendants clarify their position. 95
14.
Comment on Absent or Probable Witnesses
89
Id. at 5.
90
Id.
91
Id.
92
Id. at 6.
93
Id. (citing United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)).
94
Id.
95
Id.
15
Plaintiffs argue that Defendants request the Court prohibit Plaintiffs from making any
mention or suggestion “as to the probable testimony of a witness who is absent, unavailable or not
called to testify in this cause, and no comment be made as to the failure of any party to call as a
witness any person equally available to both parties” is too vague. 96 Plaintiffs contend that the
Court should not rule on this matter until Defendants clarify their position. 97
15.
Testimony on Foundation Xpress’s Entrustment of a Vehicle and Training of
Smothers
Plaintiffs acknowledge that they are not making a claim for negligent entrustment,
training. 98 However, Plaintiffs argue that the training and experience of Smothers is relevant to
this case and should be open to questioning as it could directly relate to the cause of the accident. 99
17.
References to Undisclosed or Unadmitted Evidence
Plaintiffs assert that Defendants request that the Court exclude any reference to undisclosed
or unadmitted evidence is overly broad. 100 Plaintiffs contend that if evidence was previously
unknown becomes relevant the parties should have the ability for the Court to determine if such
evidence should be admitted. 101
18.
Comment on Discovery Objections
Plaintiffs argue that Defendants request that the Court exclude any comment on objections
96
Id. at 7.
97
Id.
98
Id.
99
Id.
100
Id. at 8.
101
Id.
16
made during discovery is too vague. 102 Plaintiffs contend that the Court should not rule on this
matter until Defendants clarify their position. 103
III. Legal Standard
A.
Relevancy and Prejudice
Federal Rule of Evidence 401 provides that 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.” Under Federal Rule of Evidence 402, relevant evidence
is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence
or other rules prescribed by the Supreme Court provide otherwise. Pursuant to Federal Rule of
Evidence 403, “the court may exclude relevant evidence 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.”
The Fifth Circuit instructs that “[t]he exclusion of evidence under Rule 403 should occur only
sparingly[.]” 104 “Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant matter under Rule
403.” 105
B.
Hearsay
102
103
Id.
104
United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).
105
(1979)).
Id. at 9.
Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862
17
Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” 106 Hearsay is not admissible
unless a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the Supreme
Court” provide otherwise. 107 After a party properly objects to the admission of evidence as hearsay,
the proponent of evidence bears the burden to show that statement is not offered as hearsay or falls
within an exception to the hearsay rule. 108
IV. Analysis
Defendants omnibus motion in limine seeks to exclude the introduction of nineteen
categories of evidence. 109 Plaintiffs do not oppose Defendants’ request that the Court exclude the
following categories of evidence: (1) publication of insurance policy limits to the jury; (7)
references to no corporate representative being at trial and Foundation Xpress’s status; (8)
comment on Plaintiffs’ and Defendants’ financial resources; (9) comment on other legal
proceedings, accidents, and dissimilar incidents; (12) references to settlement negotiations; (13)
references to pre-trial rulings and motions regarding exclusions of evidence or testimony; (16)
Fed. R. Evid. 801(c)(1)–(2). Federal Rule of Evidence 801(d) further provides that opposing party’s
statements and certain prior statements by declarant-witnesses used to impeach or rebut the witness are not hearsay.
106
107
Fed. R. Evid. 802.
See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that before
admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns
addressed by the Federal Rules of Evidence have been afforded due consideration.”); Loomis v. Starkville Mississippi
Pub. Sch. Dist., 150 F. Supp. 3d 730, 742–43 (N.D. Miss. 2015) (“Once a party has ‘properly objected to [evidence]
as inadmissible hearsay,’ the burden shifts to the proponent of the evidence to show, ‘by a preponderance of the
evidence, that the evidence [falls] within an exclusion or exception to the hearsay rule and was therefore admissible.’”
(citations omitted)); see also Randle v. Tregre, 147 F. Supp. 3d 581, 596 (E.D. La. 2015) (Africk, J.); Broad. Music,
Inc. v. Tex Border Mgmt., Inc., No. 10-2524, 2012 WL 4119111, at *4 (N.D. Tex. Sept. 18, 2012).
108
109
Rec. Doc. 132.
18
references to bias or prejudice against corporate defendants; and (19) references to conscience of
the community. 110 Accordingly, Defendants’ motion is granted as to these categories of evidence.
Plaintiffs oppose in whole or in part the exclusion of the other categories of evidence at
issue in Defendants’ omnibus motion in limine. Therefore, the Court will address each category of
contested evidence in turn.
2.
Evidenced of Lost Wages or Income
Defendants assert that Plaintiffs must be barred from seeking lost wages or income. 111
Defendants argue that Plaintiffs are not claiming loss of future earnings and did not disclose an
expert to testify to loss of future earnings. 112 Furthermore, to the extent Plaintiffs may at trial seek
past lost wages, Defendants argue that Plaintiffs are precluded from seeking these alleged damages
because Plaintiffs have not provided documents or evidence to support any lost wage or income
claim. 113 Plaintiffs acknowledge that they are not seeking past lost wages, but they assert that they
have every right to seek future lost wages. 114
In the petition, Plaintiffs allege that Rebecca Logan sustained a loss of future income and/or
earning capacity as a result of the injuries she allegedly sustained in the motor vehicle accident at
issue. 115 Plaintiffs assert that Rebecca Logan can present testimony that the injuries she sustained
110
Rec. Doc. 147.
111
Rec. Doc. 132-1 at 6.
112
Id.
113
Id.
114
Rec. Doc. 147 at 1.
115
Rec. Doc. 1-1 at 3.
19
due to this accident could negatively affect her future work status and/or income. 116
“[A]ll that Louisiana law requires a plaintiff to show in order to receive an award for loss
of future earning capacity is ‘medical evidence which at least indicates there could be a residual
disability causally related to the accident’” 117 Furthermore, a plaintiff may present “[l]ay testimony
. . . to complement and corroborate medical evidence.” 118 Accordingly, Plaintiffs may rely on the
medical records and lay testimony to establish a claim for loss of future earning capacity.
3.
Evidence Smothers’ Driver’s Daily Log “Violated the Law”
Defendants request that Plaintiffs’ counsel be prohibited from mentioning or referencing
that Smothers allegedly “violated the law” by not filling in the word “Lafayette” in his Daily
Driver’s Log or any other omissions/mistakes contained in Smothers’ logs. 119 Defendants assert
that Plaintiffs did not identify any potential DOT regulations or DOT violations in the Pre-Trial
Order. 120 In opposition, Plaintiffs assert that they should be allowed to question Smothers about
inaccuracies and omissions in his Daily Driver’s Log. 121 Plaintiffs argue that these allegations are
not arguments of law that were required to be included as a contested issue of law in the Pre-Trial
Order. 122 Plaintiffs argue that this evidence is relevant to show that the Smothers’ inattentiveness
116
Rec. Doc. 147 at 1.
Barocco v. Ennis Inc., 100 F. App’x 965, 968 (5th Cir. 2004) (quoting Bize v. Boyer, 408 So. 2d 1309,
1311–12 (La.1982)).
117
118
Id.
119
Rec. Doc. 132-1 at 7.
120
Id.
121
Rec. Doc. 147 at 2.
122
Id.
20
caused the accident. 123
Evidence of inaccuracies and omissions in Smothers’ Daily Driver’s Log may be relevant
to show inattentiveness by Smothers caused or contributed to the accident. Defendants have not
shown that the probative value of this evidence is substantially outweighed by a danger of unfair
prejudice or misleading the jury as required by Federal Rule of Evidence 403. However, the
attorneys may not reference alleged “violations of law.” The Court must instruct the jury on the
law applicable to this case. Any alleged violations of DOT regulations are not an issue the jury
will be asked to decide.
4.
Testimony Regarding Smothers’ Post-Accident Employment Status
Fourth, Defendants seek to exclude any evidence or testimony regarding Smothers’ postaccident employment status, specifically that Smothers was briefly suspended following the
accident, pursuant to Federal Rule of Evidence 407. 124 Plaintiffs acknowledge that Smothers’
suspension would generally be excluded as evidence of subsequent remedial measures.125
However, Plaintiffs assert that such evidence could be admitted for the purpose of impeachment if
he were to claim he suffered no consequences as a result of the accident or to show that Foundation
Xpress had control over Smothers if a representative of the company were to claim they had no
control over Smothers’ actions. 126 Therefore, Plaintiffs argue the evidence should not be excluded
because there are a few instances where it would be appropriate to introduce the evidence. 127
123
Id. at 3.
124
Rec. Doc. 132-1 at 8.
125
Rec. Doc. 147 at 3.
126
Id.
127
Id. at 3–4.
21
Pursuant to Federal Rule of Evidence 407, that evidence of the subsequent remedial
measure is not admissible to prove negligence, culpable conduct, a defect in a product or its design,
or a need for a warning or instruction. 128 However, Rule 407 evidence of a subsequent remedial
measure for other purposes “such as impeachment or—if disputed—proving ownership, control,
or the feasibility of precautionary measures. 129 Accordingly, Defendants request to exclude the
evidence is denied on that limited basis
5.
Limitation of Plaintiff Derek Logan’s Testimony
Defendants assert that Plaintiff Derek Logan should not be allowed to give an opinion as
to fault for the collision because he did not witness the accident. 130 Additionally, Defendants assert
that Mr. Logan must be precluded from using his position as a Louisiana Wildlife and Fisheries
agent to bolster his testimony and credibility. 131 Furthermore, Defendants request that Mr. Logan
be “precluded from wearing his wildlife and fisheries agent uniform in the presence of the jury
unless, of course, there is a justifiable reason or excuse for doing so.” 132 Plaintiffs contend that
there is absolutely no reason to preclude Derek Logan from stating his occupation as a Louisiana
Wildlife and Fisheries agent. 133 Plaintiffs contend that there is no authority to support Defendants’
request that Mr. Logan not wear his uniform, but also note that Mr. Logan plans to come to trial
128
Fed. R. Evid. 407.
129
Id.
130
Rec. Doc. 132-1 at 10.
131
Id.
132
Id. at 11.
133
Rec. Doc. 147 at 4.
22
in civilian clothing. 134
Plaintiffs do not dispute that Mr. Logan cannot provide testimony regarding the cause of
the accident because he was not a witness to the accident. Mr. Logan may testify that he is
employed as a Louisiana Wildlife and Fisheries agent, as this is relevant background
information. 135 Pursuant to Federal Rule of Evidence 608(a), “[a] witness’s credibility may be
attacked or supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness . . . But evidence of truthful character is admissible only after the
witness’s character for truthfulness has been attacked.” Therefore, it would be improper for Mr.
Logan to use his position to bolster his credibility unless his character for truthfulness is attacked.
In a criminal case, United States v. Perkins, the Fifth Circuit held that a district court did
not abuse its discretion by requiring an off-duty police officer, who previously had been stationed
at military base with the defendant, to testify in civilian clothing about the defendant’s interactions
with other soldiers. 136 The Fifth Circuit noted that the witness had not been asked about his
employment as a police officer, and the defendant could not point to any prejudice that resulted
from having all witnesses testify in street clothes. 137 However, the issue of whether Mr. Logan
should be allowed to wear his uniform is moot, considering Plaintiffs’ representation that he will
testify in civilian clothing.
134
Id.
135
See e.g., Helpert v. Walsh, 759 F. App’x 199, 204 (5th Cir. 2018).
136
United States v. Perkins, 287 F. App’x 342, 350 (5th Cir. 2008).
137
Id.
23
6.
Testimony Blaming Fertility Issues on the Accident
Defendants assert that Plaintiffs should be barred from blaming fertility issues on the
accident because this is a medical issue that falls outside Plaintiffs’ knowledge or expertise. 138 In
response, Plaintiffs assert that Ms. Logan is not claiming the accident caused her fertility issues,
but she fears that her body could not handle the rigors of pregnancy and the medications she takes
could negatively affect a pregnancy. 139 Plaintiffs assert that this testimony supports her request for
damages based on mental pain and suffering. 140
To the extent Ms. Logan plans to testify that the accident caused her mental pain and
suffering, including fears regarding a potential pregnancy, such evidence is relevant and within
her personal knowledge. Testimony by a lay witness regarding the cause of any medical condition,
including fertility issues, will not be permitted as medical causation testimony is within the
purview of a medical expert. 141
10.
Lay Testimony and Evidence Regarding Plaintiffs’ Physical Condition
Defendants assert that “[e]vidence from lay witnesses concerning Rebecca Logan’s
medical condition, work capacity or alleged injuries should be excluded because lay witnesses are
incompetent to testify to matters of a medical nature and because such testimony is hearsay.”142
Plaintiffs assert that lay witnesses may offer common sense opinion testimony regarding matters
138
Rec. Doc. 132-1 at 11.
139
Rec. Doc. 147 at 5.
140
Id.
Rea v. Wisconsin Coach Lines, Inc., No. 12-1252, 2014 WL 4981803, at *2 (E.D. La. Oct. 3, 2014) (Duval,
J.) (“[T]estimony as to causation or as to future medical treatment has been considered the province of expert
testimony.”).
141
142
Rec. Doc. 132-1 at 14.
24
within their own perception and experiences in everyday life. 143
As discussed above, testimony by a lay witness regarding the cause of any medical
condition will not be permitted as medical causation testimony is within the purview of a medical
expert. 144 However, a lay witness may present “[l]ay testimony . . . to complement and corroborate
medical evidence.”
145
Accordingly, Defendants’ request to exclude lay witnesses from testifying
concerning Rebecca Logan’s medical condition is overly broad and must be denied.
11.
Testimony of Future Health Problems that Plaintiffs Believe May Occur
Defendants request that the Court exclude any testimony by Plaintiffs suggesting that
Rebecca Logan may incur health problems or medical conditions, caused by the October 30, 2015
accident, or mention of fears or concerns about potential health problems or medical conditions
which may arise in the future. 146 Defendants argue that such evidence is the province of a medical
doctor, and Plaintiffs are not qualified to offer scientific testimony regarding medical causation,
including but not limited to potential future injuries. 147 Plaintiffs assert that Defendants request is
too vague, and they request that the Court not rule on this matter until Defendants clarify their
position. 148
As discussed above, testimony by a lay witness regarding the cause of any medical
condition will not be permitted as medical causation testimony is within the purview of a medical
143
Rec. Doc. 147 at 6 (citing United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008)).
144
Rea, 2014 WL 4981803, at *2
145
Barocco., 100 F. App’x at 968.
146
Rec. Doc. 132-1 at 14.
147
Id. at 15.
148
Rec. Doc. 147 at 6.
25
expert. 149 However, a lay witness may present “[l]ay testimony . . . to complement and corroborate
medical evidence.”
150
To the extent this request is too vague to allow Plaintiffs to file an
appropriate response, Defendants request is denied. Defendants may raise this issue at trial if
necessary.
14.
Comment on Absent or Probable Witnesses
Defendants move the Court to prohibit Plaintiffs from making any mention or suggestion
“as to the probable testimony of a witness who is absent, unavailable or not called to testify in this
cause, and no comment be made as to the failure of any party to call as a witness any person equally
available to both parties.” 151 Plaintiffs assert that Defendants request is too vague, and they request
that the Court not rule on this matter until Defendants clarify their position. 152
As a general matter, the parties should not reference any potential evidence or testimony
that is not offered in Court. To the extent this request is too vague to allow Plaintiffs to file an
appropriate response, Defendants request is denied. Defendants may raise this issue at trial if
necessary.
15.
Testimony on Foundation Xpress’s Entrustment of a Vehicle and Training of
Smothers
Defendants move the Court to exclude any testimony related to Foundation Xpress’s
training of Smothers, or entrustment of the subject vehicle to Smothers. 153 Defendants argue that
149
Rea, 2014 WL 4981803, at *2
150
Barocco., 100 F. App’x at 968.
151
Rec. Doc. 132-1 at 16.
152
Rec. Doc. 147 at 7.
153
Rec. Doc. 132-1 at 16.
26
such testimony is irrelevant to any pending claim in this matter as Plaintiffs have not asserted a
separate claim against defendant Foundation Xpress for negligent hiring, training, and entrustment
of a vehicle to Smothers. 154 Plaintiffs acknowledge that they are not making a claim for negligent
entrustment, training. 155 However, Plaintiffs argue that the training and experience of Smothers is
relevant to this case and should be open to questioning as it could directly relate to the cause of
the accident. 156
Smothers’ training and experience could be relevant to show the cause of the accident.
Defendants have not shown that the probative value of this evidence is substantially outweighed
by a danger of unfair prejudice or misleading the jury as required by Federal Rule of Evidence
403.
17.
References to Undisclosed or Unadmitted Evidence
Defendants move the Court to exclude any testimony, evidence, or argument, direct or
indirect, concerning records, drawings, or other documents or exhibits by Plaintiffs not provided
to or reviewed by Defendants because they argue any such evidence would violate the rules of
discovery. 157 Plaintiffs assert that Defendants request is overly broad. 158 Plaintiffs contend that, if
evidence previously unknown becomes relevant, the parties should have the ability for the Court
to determine if such evidence should be admitted. 159
154
Id.
155
Rec. Doc. 147 at 7.
156
Id.
157
Rec. Doc. 132-1 at 17.
158
Rec. Doc. 147 at 8.
159
Id.
27
Evidence that has been excluded by this Court should not be mentioned in the presence of
the jury. Additionally, the parties were required to list and identify all exhibits in the Pre-Trial
Order unless used solely for impeachment. Accordingly, Defendants request to exclude references
to undisclosed or unadmitted evidence is granted. However, if for some reason previously
unknown potential evidence becomes relevant, the parties may raise the issue at trial.
18.
Comment on Discovery Objections
Defendants move the Court to exclude any testimony, evidence, or argument, direct or
indirect, concerning any objections or comments previously made by attorneys, whether in
depositions, written discovery, hearings, or trial because they argue such evidence is irrelevant and
would inflame the jury. 160 Plaintiffs assert that Defendants request is too vague, and they request
that the Court not rule on this matter until Defendants clarify their position. 161
Any discovery disputes between the parties should not be discussed in the presence of the
jury. To the extent this request is too vague to allow Plaintiffs to file an appropriate response,
Defendants request is denied. Defendants may raise this issue at trial if necessary.
V. Conclusion
For the reasons stated above,
IT IS HEREBY ORDERED that Defendants Cory Smothers, Foundation Xpress LLC,
and Westfield Insurance Company’s “Motion in Limine on Consolidated in Limine Motions”162
is GRANTED IN PART and DENIED IN PART.
160
Rec. Doc. 132-1 at 17–18.
161
Rec. Doc. 147 at 9.
162
Rec. Doc. 132.
28
IT IS FURTHER ORDERED that Plaintiffs’ motion is granted in part to the extent it
seeks to exclude: (1) publication of insurance policy limits to the jury; (2) evidence of loss of past
wages or income; (3) references to Smothers’ Driver’s Daily Log “violating the law”; (5) Plaintiff
Derek Logan from testifying as to the cause of the accident; (7) references to no corporate
representative being at trial and Foundation Xpress’s status; (8) comment on Plaintiffs’ and
Defendants’ financial resources; (9) comment on other legal proceedings, accidents, and dissimilar
incidents; (12) references to settlement negotiations; (13) references to pre-trial rulings and
motions regarding exclusions of evidence or testimony; (16) references to bias or prejudice against
corporate defendants; (17) references to undisclosed or unadmitted evidence except that a party
may raise any issues regarding newly discovered evidence at trial if necessary; and (19) references
to conscience of the community.
29
IT IS FURTHER ORDERED that Defendants’ motion is denied in part to the extent that
it seeks to exclude: (2) evidence of lost future wages or income; (4) testimony regarding
subsequent remedial measures for impeachment purposes only or to show control of Smothers’ if
that issue is disputed at trial; (5) Plaintiff Derek Logan from testifying regarding his occupation as
discussed herein; (6) testimony regarding fertility issues to the extent such evidence is relevant
and within the witness’s personal knowledge; (10) lay testimony regarding Rebecca Logan’s
physical condition as discussed herein; (11) testimony of future health problems as discussed
herein; (14) comments on absent or probably witnesses as discussed herein; (15) testimony on
Foundation Xpress’s training of Smothers; (18) comment on discovery disputes as discussed
herein.
NEW ORLEANS, LOUISIANA, this ________ day of January, 2020.
24th
_________________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
30
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