McCon v. Perez et al
Filing
361
ORDER denying 330 Motion in Limine; granting 332 Motion in Limine; granting 334 Motion in Limine; denying 336 Motion in Limine; denying 338 Motion in Limine. Signed by District Judge Louis Guirola, Jr., on 8/20/2018. (BR)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JAMETRIUS MCCON,
LARRY HENDERSON,
LAMARIO HENDERSON,
and DARYL D. WILLIAMS
PLAINTIFFS
v.
CAUSE NO. 1:17cv77-LG-RHW
ADOLFO PEREZ and D&D
EXPRESS TRANSPORT
DEFENDANTS
AND
D&D EXPRESS TRANSPORT
COUNTER-PLAINTIFF
v.
DARYL D. WILLIAMS
COUNTER-DEFENDANT
ORDER CONCERNING DEFENDANTS’ MOTIONS IN LIMINE
BEFORE THE COURT are the following Motions filed by the defendants
D&D Express Transport and Adolfo Perez: [330] Motion in Limine to Preclude
Documents Not Produced in Discovery, [332] Motion in Limine to Preclude
Reference to Defendants Not Personally Appearing at Trial and Mentioning the
Existence of Insurance, [334] Motion in Limine to Preclude Prejudicial Evidence
and Dismissed Claims, [336] Motion in Limine to Limit Medical Bills and NonEconomic Damages, and [338] Motion in Limine Precluding Evidence Relative to
Property Damage to Williams’ Vehicle. The plaintiffs have filed responses to the
Motions. After reviewing the submissions of the parties, the record in this matter,
and the applicable law, the Court finds as follows:
BACKGROUND
This lawsuit arose out of a motor vehicle accident involving a tractor trailer
driven by D&D Express Transport employee Adolfo Perez and a car driven by the
plaintiff Daryl D. Williams. The plaintiffs Jametrius McCon, Larry Henderson, and
Lamario Henderson were passengers in Williams’ vehicle.
DISCUSSION
I. Defendants’ Motion in Limine to Preclude Documents Not Produced in
Discovery
The defendants ask the Court to prohibit the plaintiffs from offering evidence
and argument at trial regarding documents that were not produced during
discovery. The only specific documents referenced in the defendants’ Motion are
documents obtained via subpoena by McCon that were never produced to the
defendants. McCon does not appear to dispute that the documents were not timely
provided to the defendants, but he states that he has now provided all of the
available documents referenced in the defendants’ Motion.
The defendants filed their Motion pursuant to Fed. R. Civ. P. 37(c)(1), which
provides, “If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence . . . at a trial, unless the failure was substantially justified or is
harmless . . . .” This Court’s Local Rules explain:
If a party fails to make a disclosure required by this section, any other
party must move to compel disclosure and for appropriate sanctions
under Fed. R. Civ. P. 37(a). The failure to take immediate action and
seek court intervention when a known fact disclosure violation other
than as to expert witnesses occurs will be considered by the court in
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determining the appropriate sanctions to be imposed regarding a
subsequent motion filed under Fed. R. Civ. P. 37(c).
Uniform Local Rule 26(a)(3). The defendants never filed a motion to compel
pursuant to Fed. R. Civ. P. 37(a), even though they knew that McCon served the
subpoenas in September and October 2017. “The Court will not use the procedural
device of a motion in limine to enforce the provisions of Federal Rule of Civil
Procedure 37.” United States ex rel. Jamison v. McKesson Corp., No. 2:08cv214-SADAS, 2012 WL 12931443, at *2 (N.D. Miss. Feb. 14, 2012); see also Caldwell v. WalMart Stores East, LP, No. 3:10cv651-DPJ-FKB, 2012 WL 1712377, at *1-2 (S. D.
Miss. May 14, 2012) (denying a motion in limine seeking relief pursuant to Fed. R.
Civ. P. 37(c) where the defendant did not file a motion to compel). The defendants’
Motion in Limine to Preclude Documents Not Produced in Discovery is denied.
II. Defendants’ Motion in Limine to Preclude Reference to Defendants Not
Personally Appearing at Trial and Mentioning the Existence of Insurance
The defendants explain that they live in Miami-Dade County Florida and
attendance at trial may cause a hardship for them. The defendants argue, “Should
Defendants be unavailable to appear at trial, such lack of appearance is not
material or relevant to any issue before the Court, and therefore, Plaintiffs should
be prohibited from making any argument or reference at trial to their absence.”
(Defs.’ Mem. 2, ECF No. 333). The Court will grant this portion of the Motion and
will provide further explanation and instruction to the parties at the pretrial
conference.
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The defendants also ask the Court to prevent the plaintiffs from making any
reference, directly or indirectly, to the defendant’s insurance coverage. The
defendants further seek to prevent the plaintiffs from calling David Wilton, the
independent adjuster hired by the defendants’ insurer, to testify. Fed. R. Civ. P.
411 provides, “Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise wrongfully.
But the court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice or proving agency, ownership, or control.” Therefore, the
Court will grant the defendants’ Motion to this extent. The plaintiffs will be
prohibited from referencing the defendants’ insurance coverage in any way. If the
plaintiffs wish to introduce evidence or testimony concerning insurance “for another
purpose” under Fed. R. Evid. 411, the plaintiffs believe that the defendants have
opened the door to admissibility of evidence or testimony concerning insurance, or
the plaintiffs wish to call David Wilton to testify, the plaintiffs must first notify the
Court outside the presence of the jury, so that the Court can determine whether the
evidence or testimony is admissible.
III. Defendants’ Motion in Limine to Preclude Prejudicial Evidence and
Dismissed Claims
In his [280] First Motion in Limine, McCon sought permission to present
argument and evidence of spoliation due to the defendants’ failure to preserve
Perez’s logbooks and the Freightliner’s electronic control module (“ECM”). The
Court entered an [323] Order denying McCon’s spoliation Motion, because there was
no evidence that the defendants destroyed the logbooks or ECM in bad faith. The
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defendants now ask the Court to prohibit the plaintiffs “from seeking to offer
evidence or arguments regarding spoliation of evidence, including the loss of or
access to logbooks and/or ECM data.” (Defs.’ Mem. 5, ECF No. 335). The defendants
also ask the Court to prohibit the plaintiffs from offering evidence or argument
regarding Perez’s and Laguna’s proficiency in speaking the English language. In
addition, the defendants argue that the Court should not permit the defendants to
present evidence or argument concerning claims that have been dismissed by the
Court.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. “Irrelevant evidence is not admissible.”
Fed. R. Evid. 402. “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.” Fed. R. Evid. 403. The loss of logbooks
and ECM data, the English proficiency of Perez and Laguna, and evidence and
argument that solely concerns dismissed claims are matters that are both irrelevant
and unduly prejudicial. Therefore, the Motion in Limine is granted to this extent.
During the trial, if the plaintiffs believe that the defendants have opened the door
or that one or more of these matters has become relevant, the plaintiffs must notify
the Court outside the presence of the jury, so that the Court can reevaluate the
admissibility of the proposed evidence or testimony.
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The defendants also claim that the plaintiffs should not be permitted to
submit evidence and arguments regarding alleged violations of the Federal Motor
Carrier Safety Regulations and/or Department of Transportation Regulations.
McCon wishes to argue that the defendants violated the following provisions of the
FMCSR:
• 49 C.F.R. §§ 392.3 – Driving while Fatigued
• 49 C.F.R. § 391.11[1] – Driver Qualifications
• 49 C.F.R. § 391.41(a) -- A driver is prohibited from operating a
commercial motor vehicle unless physically qualified to do so.
• 49 C.F.R. §§ 392.7, 392.8, 392.9 -- The driver has a duty to inspect
and ensure that the commercial motor vehicle’s equipment is in good
working order, that required emergency equipment is in place, and
that the load is secured.
• 49 C.F.R. §§ 395.3, 395.8 – driver hours of service and logbook
violations
(McCon’s Proposed Am. Compl. 3, ECF No. 119-1.)1 Section 383.111 provides, “All
CMV operators must have knowledge of the following general areas: . . . (7) Visual
search. . . . (9) Speed management. . . . (10) Space management. . . . (13) Hazard
perceptions. . . .” 49 C.F.R. § 383.111. As the Court has previously explained,
“Other district courts have held that Section 383.111, the FMCSR regulation relied
on . . . , ‘addresses 20 points of knowledge on which state agencies must train and
test operators of commercial motor vehicles. It does not provide the applicable
standard of care . . . .’ Roberts v. Sunbelt Rentals, Inc., No. 5:14cv00040, 2016 WL
The Court did not permit McCon to file his proposed amended complaint, but
McCon has informed the Court that he wishes to argue that the defendants violated
the provisions of the FMCSR cited in the proposed amended complaint at trial.
None of the other plaintiffs wish to claim that the defendants violated the FMCSR
at trial.
1
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1259414, at *13 (W.D. Va. Mar. 30, 2016); see also Claybrook v. Time Definite Servs.
Transp., LLC, No. 2016 WL 3963025, at *3 (N.D. Tex. July 21, 2016) (holding that
Section 383.111 does not ‘prescribe a standard of conduct.’).” (Mem. Op. & Order 45, ECF No. 321.) The FMCSR regulation providing the qualifications for obtaining
certification is irrelevant to the jury’s determination of whether Perez was negligent
and would likely cause confusion for the jury. The other FMCSR provisions cited by
McCon are likewise irrelevant based on the record, as there is no evidence that
Perez suffered from fatigue, that the accident was caused by problems with the
tractor-trailer’s equipment, or that Perez committed logbook violations. Neither
McCon nor the other plaintiffs have expressed any interest in citing Department of
Transportation regulations in the presence of the jury. Therefore, the defendants’
Motion in Limine is granted. If, however, evidence or testimony is presented at
trial that causes these regulations to become relevant, the plaintiffs must notify the
Court outside the presence of the jury.
IV. Defendants’ Motion in Limine to Limit Medical Bills and NonEconomic Damages
The defendants argue that the plaintiffs should not be permitted to present
medical bills at trial that exceed those that have previously been presented to the
defendants. The plaintiffs assert that they do not wish to present bills that exceed
those previously submitted to the defendants.
The defendants also argue that the Court should prohibit the plaintiffs from
asking the jury for a specified amount of non-economic damages at trial, because
they have not provided a computation to the defendants. Fed. R. Civ. P.
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26(a)(1)(A)(iii) requires the parties to disclose a computation of each category of
damages claimed “without awaiting a discovery request.” The defendants did not
follow the proper procedure of filing a motion to compel, and the defendants’ request
is not the proper subject of a motion in limine. See Uniform Local Rule 26(a)(3); see
also Caldwell, 2012 WL 1712377 at *1-2 (denying a motion in limine asserting a
failure to disclose computation of damages for first time). The defendants Motion
must be denied, but the plaintiffs are ordered to provide a computation of damages
to the defendants’ within five days of the date of this Order.
V. Defendants’ Motion in Limine Precluding Evidence Relative to
Property Damage to Williams’ Vehicle
The defendants claim that Williams has not presented any admissible
evidence to support his claim for property damage and towing and expenses related
to his vehicle. Williams counters that he has produced all of the information he has
regarding his vehicle. The defendants ask the Court to prevent Williams from
offering evidence or presenting argument regarding the property damage to his
vehicle. The defendants’ Motion is denied, but the defendants will be permitted to
present contemporaneous objections to evidence or testimony presented at trial.
IT IS, THEREFORE, ORDERED AND ADJUDGED that [330] Motion in
Limine to Preclude Documents Not Produced in Discovery is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that [332] Motion in
Limine to Preclude Reference to Defendants Not Personally Appearing at Trial and
Mentioning the Existence of Insurance is GRANTED.
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IT IS, FURTHER, ORDERED AND ADJUDGED that the [334] Motion in
Limine to Preclude Prejudicial Evidence and Dismissed Claims is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [336] Motion in
Limine to Limit Medical Bills and Non-Economic Damages is DENIED. However,
the plaintiffs are ordered to provide a computation of damages to the defendants
within five days of the date of this Order.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [338] Motion in
Limine Precluding Evidence Relative to Property Damage to Williams’ Vehicle is
DENIED. The defendants will be permitted to make contemporaneous objections
at trial.
SO ORDERED AND ADJUDGED this the 20th day of August, 2018.
s/
Louis Guirola, Jr.
Louis Guirola, Jr.
United States District Judge
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