Hankins et al v. Ford Motor Company et al

Filing 305

ORDER granting in part and denying in part 258 Motion in Limine; granting in part and denying in part 260 Motion in Limine; granting 262 Motion in Limine; granting in part and denying in part 264 Motion in Limine; granting 266 Motion in Limine; granting 268 Motion in Limine; granting in part and denying in part 270 Motion in Limine; granting in part and denying in part 272 Motion in Limine. Signed by District Judge Carlton W. Reeves on 12/29/2011. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MARION E. HANKINS, PEGGY D.
HANKINS, and JAMES F. HANKINS

PLAINTIFFS

v.

Civil Action No. 3:08-cv-639-CWR-FKB

FORD MOTOR COMPANY
and JOHN DOES 1-5

DEFENDANTS

ORDER
Pending before the Court are eight motions in limine filed by the plaintiffs (together,
“Hankins”) and four motions in limine filed by Ford. Docket Nos. 258; 260; 262; 264; 266; 268;
270; 272; 274-77. This Order rules on Hankins’ motions only.
I.

Scene Witnesses
Hankins has moved to exclude speculative opinion testimony from witnesses who were

present at the scene of the accident. Docket No. 258. Ford agrees in part and has stipulated that it
will not seek to introduce certain evidence at trial. Docket No. 287. The Court rules on the
remaining disputes as follows:
The disputed testimony of Wendy Polk regarding her personal observations of tire markings
and gravel is admissible. But see footnote 1, infra.
The disputed testimony of Jay Soday regarding hamburgers and hamburger wrappers is
irrelevant, more prejudicial than probative, and not helpful to the trier of fact. His testimony
regarding an overheard phone call is irrelevant and not helpful to the trier of fact in part because the
declarant’s statement was that she had “finished talking to” Hankins and therefore was not on the
phone during the crash. Docket No. 258-2, at 6. It also is hearsay without a sufficient exception and
does not fall under the residual exception. See Fed. R. Evid. 803(1), 807.
The disputed testimony of Fred Saxton is admissible to the extent it is focused upon his
personal observations. See Graves ex rel. W.A.G. v. Toyota Motor Corp., No. 2:09-cv-169, 2011
WL 4590772, *9 (S.D. Miss. Sept. 30, 2011) (“Taylor and Smith can testify that they saw and
photographed skid marks and gouge marks. They cannot testify as to any opinions/conclusions that
the skid marks and the gouge marks were a result of over-correction of the vehicle nor can they offer
opinions/conclusions as to which tire on the W.A.G. vehicle caused either the skid marks or the

gouge marks.”). Testimony beyond that based on personal observation will be excluded if it “is
more appropriately within the province of an expert witness.” Id; see also footnote 1, infra.
The disputed testimony of Edward “Tri” Ferrell regarding his personal observation of the
seat belt is admissible. His description of the scene is admissible in part under the Graves standard
described above. But see footnote 1, infra.
The motion [Docket No. 258] is granted in part and denied in part.
II.

Uniform Crash Report and Officer Zimmerman
Hankins has moved to exclude opinions contained in the uniform crash report and certain

opinion testimony from Officer Wade Zimmerman, the responding officer. Docket No. 260. Ford
agrees in part. Docket No. 286 at 1 n.1.
As for the remaining disputes, Zimmerman may testify to his own personal observations at
the scene. See Graves, 2011 WL 4590772, at *9 (“Taylor and Smith can testify that they saw and
photographed skid marks and gouge marks. They cannot testify as to any opinions/conclusions that
the skid marks and the gouge marks were a result of over-correction of the vehicle nor can they offer
opinions/conclusions as to which tire on the W.A.G. vehicle caused either the skid marks or the
gouge marks.”). Testimony beyond that based on personal observation will be excluded if it “is
more appropriately within the province of an expert witness.” Id.1
Ford did not respond to that portion of Hankins’ motion seeking redaction of the uniform
crash report. Docket No. 261, at 6, 8. The parties shall confer and redact it in accordance with this
Order. See Graves, 2011 WL 4590772, at *10. To the extent they cannot agree, each side shall
submit its proposed redactions to the Court on or before January 6, 2012.
The motion [Docket No. 260] is granted in part and denied in part.
III.

Hearsay
Hankins has moved to exclude hearsay. Docket No. 262. Ford’s response agrees in part and

stipulates to the exclusion of certain testimony. Docket No. 288. It disagrees as to a portion of Jay

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Testimony about “whether there were gouge marks on the side of the road” and “whether there were skid
marks” are questions of fact that Zimmerman and others may testify to. Docket No. 286, at 2. But those facts need
only be presented briefly else they become cumulative and a waste of time. They will quickly become irrelevant to
the primary issue in this suit, which is whether once the accident happened (and for whatever reason), the sunroof
was defective for not containing Hankins. This was discussed at the pretrial conference and the Court again asks the
parties to be judicious about how they utilize the jury’s time.

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Soday’s testimony. Id. at 2. That testimony has already been addressed and excluded by the Court.
See Part I, supra. Therefore, the motion [Docket No. 262] is granted.
IV.

Seat Belts
Hankins has moved to exclude evidence of seat belt non-use. Docket No. 264. Ford opposes

the motion. Docket No. 283.
Mississippi law states that “[f]ailure to provide and use a seat belt restraint device or system
shall not be considered contributory or comparative negligence.” Miss. Code § 63-2-3. The
Mississippi Supreme Court has determined that the statute is substantive and is not a statutory rule
of evidence: by its own terms, “the statute does not forbid the admission of evidence of seat belt
non-usage outright.” Estate of Hunter v. General Motors Corp., 729 So. 2d 1264, 1267 (Miss.
1999).
This Court concludes that evidence of seat belt non-usage may constitute
relevant evidence in some (but by no means all or even most) cases, so long as (1)
the evidence has some probative value other than as evidence of negligence; (2) this
probative value is not substantially outweighed by its prejudicial effect (See Miss.
R. Evid. 403) and is not barred by some other rule of evidence and (3) appropriate
limiting instructions are given to the jury, barring the consideration of seat belt
non-usage as evidence of negligence.
Id. at 1268.
Regarding the first factor, “some probative value,” the court ruled that “the fact that the rear
passengers were (apparently) not wearing seat belts would appear to constitute relevant evidence
for the jury to consider in understanding the nature of the crash.” Id. at 1269. As to the third
element, the court approved the following limiting instruction:
You may consider the fact that plaintiff’s 1984 Buick Regal was equipped
with functional seat belts in accordance with federal and Illinois law for the purpose
of determining whether the overall design of the vehicle was reasonably
crashworthy. However, you may not consider plaintiff’s use or non-use of seat belts
in determining, one, whether the plaintiff was at fault for his own injuries and/or,
two, whether plaintiff’s use or non-use of his seat belt caused his injury.
Id. at 1268 (quoting DePaepe v. General Motors Corp., 33 F.3d 737, 745 (7th Cir. 1994)). This
instruction “effectively balances the manufacturer’s right to establish his defense in a
crash-worthiness lawsuit while at the same time precluding the jury’s consideration of seatbelt
non-usage as evidence of negligence.” Id.
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Regarding the three-part exception, Hankins argues that evidence of seat belt non-use has
no probative value and that any such value is outweighed by its prejudicial effect. Docket No. 265,
at 2-3. In the alternative, she requests that any evidence of seat belt non-use be accompanied by the
above limiting instruction, and that the instruction be repeated in the court’s final jury instructions,
as in DePaepe. Id. at 4-5.
Ford replies that evidence of non-use “has substantial probative value regarding whether the
vehicle was defective” that “is not outweighed by any potential prejudicial effect.” Docket No. 283,
at 2. It claims a variety of other federal courts have agreed. Id. at 2-3.
The Court concludes that evidence of seat belt use and non-use is “relevant evidence for the
jury to consider in understanding the nature of the crash.” Hunter, 729 So. 2d at 1269; see also
Russo v. Mazda Motor Corp., Civ. A. No. 89-7995, 1992 WL 309630, *5 (E.D. Pa. Oct. 19, 1992).
The jury will likely be curious as to how Hankins was ejected through the sunroof; limited evidence
from both parties on the seat belt issue will help them understand that occurrence.
When evidence of seat belt non-use is presented, a limiting instruction in accordance with
Hunter will be given. It will read:
You may consider the fact that plaintiff’s 2000 Ford Expedition was equipped with
functional seat belts in accordance with federal and Mississippi law for the purpose
of determining whether the overall design of the vehicle was reasonably
crashworthy. However, you may not consider plaintiff’s use or non-use of seat belts
in determining, one, whether the plaintiff was at fault for her own injuries and/or,
two, whether plaintiff’s use or non-use of her seat belt caused her injury.
See also Gardner v. Chrysler Corp., 89 F.3d 729, 734 (10th Cir. 1996) (affirming trial court’s use
of a similar limiting instruction). This language may be repeated throughout the course of the trial
and will be included in the final jury instructions. Jurors are presumed to follow their instructions.
See United States v. Simpson, 645 F.3d 300, 313 (5th Cir. 2011).
V.

Medical Records
Hankins has moved to exclude or redact hearsay and speculative statements contained in her

medical records. Docket No. 266. The statements concern whether Hankins was belted, the number
of times the vehicle rolled, the distance she was ejected, and other factual information concerning
the accident itself. Id. Ford contends that such statements are admissible business records under
Rule 803(6) or otherwise admissible under Rule 803(4) because they relate to Hankins’ medical
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diagnosis or treatment. Docket No. 289, at 2.
A.

The Business Records Exception

To invoke the business records exception, a party must show that a “record was made at or
near the time [of an act, event, condition, opinion, or diagnosis] by—or from information transmitted
by—someone with knowledge.” Fed. R. Evid. 803(6)(A). Even if this showing is made, the Court
may decline to admit the record when “neither the source of information nor the method or
circumstances of preparation indicate [. . .] trustworthiness.” Id. at 803(6)(E).
The first two medical records Hankins has attached show that the sources of the information
were an EMT and bystanders, respectively. Docket Nos. 266-1; 266-2. These persons did not know
whether Hankins was wearing her seat belt at the time of the accident, how the accident occurred,
or how her vehicle rolled. Hankins contends and Ford does not dispute that the only eyewitness who
saw the accident in progress did not provide information to any first responders or later bystanders,
and therefore none of that person’s perceptions made it into the medical records. Because the
disputed statements in these records were not transmitted by a person “with knowledge,” they are
not admissible via the business records exception.
Regarding the third and final medical record attached to Hankins’ motion, Docket No. 266-3,
the source of the accident information is unknown and does not qualify for the hearsay exception
for similar reasons. See Potts v. Martin & Bayley, Inc., No. 4:08-cv-15, 2011 WL 4738660, *2
(W.D. Ky. Oct. 7, 2011).
B.

The Medical Diagnosis Exception

Ford has also invoked the hearsay exception for statements made for medical diagnosis or
treatment. Fed. R. Evid. 803(4). It is not clear whether this exception is applicable. The note to
Rule 803(4) contemplates the patient being the declarant, not an EMT, bystander, or other person.
See id. advisory committee’s note; Potts, 2011 WL 4738660, *1 (“Similarly, if a party seeks to have
a statement admitted under F.R.E. 803(4), only those statements made by the person seeking medical
treatment are admissible.”) (citation omitted); Cimaglia v. Union Pacific R. Co., No. 06-3084, 2009
WL 499287, *10 (C.D. Ill. Feb. 25, 2009) (“certain non-medical material in medical records,
particularly regarding a patient’s reported account of the accident, may have affected how doctors
treated the patient.”); see also Stull v. Fuqua Indus., Inc., 906 F.2d 1271, 1273 (8th Cir. 1990)
(“Hence, to fall within the exception, the statement must be obtained from the person seeking
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treatment, or in some instances from someone with a special relationship to the person seeking
treatment, such as a parent.”); see generally Weissenberger & Duane, Weissenberger’s Federal
Evidence § 803.20, at 602-03 (7th ed. 2011) [hereinafter Weissenberger].
The Fifth Circuit has held that “[a]dmissibility of a statement made to one’s physician turns
on the guarantee of the absent declarant’s trustworthiness.” Rock v. Huffco Gas & Oil Co., 922 F.2d
272, 277 (5th Cir. 1991) (citation omitted and emphasis added). In that case, the statements in
question were made by the plaintiff to his physician, and the court did not elaborate on application
of the Rule in other situations. Id. But that court has also utilized this exception when the
statements in question were made by the patient’s sister, which suggests the Eighth Circuit’s
“special relationship” standard. Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 272 (5th Cir. 1991).
In our case, it is undisputed that the statements in question did not come from Hankins or her
family. Hankins did not and does not recall the accident, and could not have made statements to
physicians about being belted or rolling a certain number of times. Ford’s motion confirms that the
precise speakers were unknown: the statements “were likely furnished by EMTs or other first
responders working together with emergency room personnel.” Docket No. 289, at 3. This is
probably sufficient to deny the hearsay exception.
Even assuming away this barrier, though, it is not obvious that the substance of the
statements would qualify for the exception. “Rule 803(4) does not open the door to all statements
made to a physician.” Weissenberger § 803.19, at 601. “The test, when examining whether
statements contained in medical records relating to a patient’s condition are admissible hearsay, is
whether such statements are of the type pertinent to a physician in providing treatment.” Wilson,
939 F.2d at 272 (citation omitted). “Details of the injury not necessary for treatment but serving
only to suggest fault would not ordinarily qualify as an exception to the hearsay rule under Rule
803(4).” Rock, 922 F.2d at 277-78 (quotation marks and citation omitted) (affirming trial court’s
ruling that the plaintiff’s statements to his doctors were inadmissible).
The evidence that all of the scene details are relevant to Hankins’ treatment is thin. The
information most relevant to Hankins’ treatment was her ejection from the vehicle, since that implies
being unbelted and also may include all of the lesser injuries that would result from merely being
unbelted yet contained within the vehicle. But the parties have presented scant evidence that a
physician who already knows that a patient has been severely injured by ejection from a vehicle
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obtains new, necessary information from learning whether the patient was belted or unbelted. E.g.,
id. at 278 (“The doctors stated that they only needed to know that Rock had twisted his ankle; they
did not need to know the additional detail that Rock may have twisted the ankle while stepping
through a rusted-out or defective step or by slipping in some grease in order to diagnose or treat
Rock’s injury.”). The same is true for detail on how the vehicle rolled over. The number of rolls
is less important than the fact that it rolled enough times to eject its passenger.
Perhaps most importantly, the medical records are not where the battle over seat belt use or
non-use will be joined. The dispute will have to be framed through the witnesses, whose perceptions
and statements were the source of such notations in the medical records, and whose testimony can
therefore be evaluated firsthand by the jury, with the appropriate limiting instruction. The
information will make its way before the jury, but through more reliable means.
The motion [Docket No. 266] is granted as to the attached records. To the extent additional
medical records are necessary for this products liability case, the parties may confer and redact other
secondhand information about Hankins’ belted status and other facts about the scene irrelevant to
medical diagnosis and treatment. Disputes shall be presented to the Court on or before January 6.
VI.

Seizures
Hankins has moved to exclude as irrelevant any evidence concerning seizures she suffered

a number of years prior to the subject accident. Docket No. 268. Having received no response in
opposition, and seeing no reason why such evidence is relevant here, the motion will be granted.
VII.

Sam Dobbins
Hankins has moved to prohibit Ford from questioning fact witness Sam Dobbins about

irrelevant personal issues. Docket No. 270. In its response, Ford agrees it will not again question
Dobbins “about his children, where his children live, how often he sees his children, his then wife,
ex-wife, his divorce, why he does not live with his wife/ex-wife and children or his separation from
his then wife.” Docket No. 284, at 1.
By process of elimination, Ford may disagree with the motion to the extent Ford seeks to ask
Dobbins about his involvement in other lawsuits. Compare Docket No. 271, at 1, with Docket No.
284, at 1. Ford argues that such a limitation “would unduly restrict Ford’s right to cross-examine
Mr. Dobbins concerning his credibility, bias and motive.” Docket No. 284, at 2.
During Dobbins’ deposition, Ford explored whether Dobbins was engaged in other legal
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proceedings as a client of one of Hankins’ attorneys, and explained to him that such a relationship
“might affect your credibility.” Docket No. 180-1, at 4-5, 15-16. No such relationship was
unearthed. Ford did learn that Dobbins joined a class action seeking back wages against his former
employer, but does not contend that is relevant to being a fact witness in this suit.
The Court trusts Ford does not need a judicial ruling limiting the scope of its crossexamination to relevant questions; relevance is always an available objection and Ford has
experienced counsel that will shy away from off-topic questioning of fact witnesses. The
stipulations are accepted and the remainder of the motion [Docket No. 270] is denied.
VIII.

Automobiles
Hankins has moved to prohibit Ford from asking witnesses about the automobiles they drive

and the features in those automobiles, arguing that such questions are irrelevant. Docket No. 272.
The motion stems from Ford asking such questions to expert and fact witnesses during their
depositions. Id. at 1. Ford claims that such questions go to credibility. Docket No. 285, at 2.
The motion will be granted as to fact witnesses, who will not opine that the sunroof glass in
2000 Ford Expeditions was defectively designed and unreasonably dangerous. It will be denied as
to experts, who presumably will give such an opinion and may have their credibility undermined if
they testify to driving vehicles with similar alleged defects as the ones they are critiquing in court.
IX.

Conclusion
Docket No. 258 is granted in part and denied in part.
Docket No. 260 is granted in part and denied in part.
Docket No. 262 is granted.
Docket No. 264 is granted in part and denied in part.
Docket No. 266 is granted.
Docket No. 268 is granted.
Docket No. 270 is granted in part and denied in part.
Docket No. 272 is granted in part and denied in part.
SO ORDERED, this the 29th day of December, 2011.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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