Crowe v. Booker Transportation Services, Inc. et al
Filing
113
ORDER ruling 70 and 102 plaintiff's first and second motions to compel. Signed on 1/30/13 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LACEY CROWE,
Plaintiff,
)
)
)
)
)
)
)
)
v.
BOOKER TRANSPORTATION
SERVICES, INC., et. al.,
Defendants.
Case No. 11-690 -CV-FJG
ORDER
Currently pending before the Court is Plaintiff Lacey Crowe’s First & Second Motions to
Compel (Doc. Nos. 70 and 102).
I.
Background
Robert Bucklin, Jr. was killed on August 11, 2010, when a bicycle he was riding, collided
with a tractor-trailer in Oklahoma. Sammy Byrd was the driver of the tractor-trailer on behalf of
Booker Transportation Services, Inc.. On July 13, 2011, Plaintiff Lacey Crowe, daughter of
Bucklin, filed this wrongful death action against Defendant Byrd and Defendant Booker
Transportation Services, Inc.. (Doc. No. 1, 24, & 36).
Plaintiff has filed two Motions to Compel seeking discovery materials from Defendants
(Doc. No. 70 & 102).
II.
First Motion to Compel (Doc. No. 70)
(A) Driver Qualification and Personnel Files
Plaintiff seeks materials Booker added to Byrd's "driver qualification file" and "personnel
file" after the crash pursuant to the Federal Motor Carrier Safety Regulations ("FMCSRs").
Booker objects. Plaintiff believes Booker is being disingenuous because Booker previously
produced these materials for FMCSR after the crash for hiring purposes, but has refused to
produce for Plaintiff. Hiring purposes refers to the following: FMCSRs require Booker to
confirm Byrd’s employment history with prior Department of Transportation (“DOT”) regulated
employers within 30 days of hiring1. Booker sent requests to Byrd’s former employers. Some
of the employers did not send responses back confirming several of Byrd’s prior DOT
regulated employers until after the crash. Booker then included these post-crash employment
confirmations in the driver qualification file it produced to Plaintiff for Byrd, along with the
representation that the file being produced was the driver qualification file maintained for Byrd
on the date and at the time of the accident in question. (Doc. No. 70, 71 & 76).
Defendant states Plaintiff’s request is not properly limited in time and scope and is not
reasonably calculated to lead to the production of admissible evidence at trial. Defense
counsel routinely limits production of driver qualification files and personnel files in trucking
litigation to materials that were generated or requested on or before the date of the accident in
question.2 The extent of the production of documents provided by Defendants to Plaintiff in
this case is no different and is properly limited in both time and scope. In full candor, Defense
counsel states he was initially under the impression that the files being produced were the files
that existed on the date and at the time of the accident. Later, it was discovered that preemployment requests made by Bryd’s employers before the accident, but that were not
received by Booker until after the accident, were included in the initial production of
documents. Defendant states this topic was not hidden and was discussed in some detail
during the depositions of Booker personnel. (Doc. No. 73).
1
Byrd was hired on June 30, 2010 or July 1, 2010.
Plaintiff’s counsel states he has never handled a trucking case in which the entire driver qualification and personnel files
weren’t produced. (Doc. No. 70, 71, & 76).
2
2
Ruling: Without legal authority supporting this request, the Court DENIES as improper.
(B) Medical Authorization to Obtain Post-Crash Hospital Records
Although Defendants have provided Plaintiff with EMS records post-crash, Plaintiff
seeks records from the hospital where Byrd was taken for further examination. Byrd testified
he was taking medication for high blood pressure at the time of the crash and that he had not
taken it for over 24 hours when the crash occurred. Plaintiff believes the hospital records will
show that Byrd's blood pressure, at the time of the crash, exceeded the maximum permitted by
FMCSR regulations (over 180) and thus, Byrd was disqualified from driving and should not
have been on the road. EMS records indicate a blood pressure reading of 192. Further, Byrd
told Booker Safety Director on the night of the crash that he was being taken to the hospital
because of the concern for his blood pressure. (Doc. No. 70, 71, & 76).
Defendant states that it is normal to have elevated blood pressure after an accident. As
such, it is important to note that Byrd’s blood pressure reading prior to the accident and about
35 minutes after the accident was well under the 180 threshold. Further, the records are
excluded under physician-patient privilege. State ex rel Hayter v. Griffin, 785 S.W.2d 590
(Mo.App. W.D. 1990). In Hayter, the Court stated that medical records generated for purposes
of treatment are privileged and cannot be discovered. (Doc. No. 73).
Plaintiff argues Hayter does not apply in this case because it dealt only with pre-crash
medical records, not post-crash medical records. Plaintiff states this is a logical distinction to
make because post-crash medical records are relevant to (and are direct evidence of) potential
causes of the crash. (Doc. No. 76).
Ruling: Where Defendant has not placed his medical condition in controversy, the
physician-patient privilege is not waived. Cerro Gordo Charity v. Fireman’s Fund American
3
Life Insurance Co., 819 F.2d 1471, 1477-1480 (8th Cir. 1987) (holding under similar Minnesota
physician-patient privilege statute that if Defendant had not placed his medical condition in
controversy in the present suit or made public his medical condition in a previous proceeding,
then the physician-patient privilege had not been waived). As such, Plaintiff’s request is
hereby DENIED.
(C) Medical Authorization to Obtain Byrd's Department of Transportation ("DOT")
Physical Records
According to FMCSRs, a driver is typically required to get a physical every 2 years. Due
to a heart condition, Byrd was required to get a physical every year. However, Plaintiff claims
that inexplicably, after the accident Byrd began to get physicals every 6 months - June 22,
2010; December 22, 2010; June 23, 2011; and December 7, 2011. FMCSRs require physicals
every 6 months for individuals diagnosed with blood pressure equal to or greater than 180
systolic or 110 diastolic. Plaintiff seeks a medical authorization to obtain the medical records
from Byrd's DOT physicals to find out why Byrd began getting physicals every six months.
Specifically, Plaintiff believes the records will show Byrd's blood pressure exceeded the
maximum allowable level at the time of the crash. Plaintiff states that medical records are
discoverable from examinations done for the purpose of meeting federal regulations. Hayter,
785 S.W.2d 590, 596. Since Byrd's DOT physicals were done for the purpose of meeting
FMCSR, Plaintiff states it is entitled to a medical authorization to obtain these records. (Doc.
No. 70, 71, & 76).
Defendant states that Plaintiff’s interest in why Byrd would voluntarily exceed the DOT
regulations and recertify himself with greater frequency than he was required to by FMCSR
does not warrant the broad after-the-fact discovery. Defendant states it has already produced
the medical examiner’s certificate and long form DOT physical in effect on the date and time of
4
the accident - June 22, 2010 - in which Byrd passed. Plaintiff now seeks production of long
form DOT physicals not issued until after the accident in which Byrd passed. These
documents were provided to opposing counsel by Byrd from his wallet during his deposition.
Defendants state these post-accident DOT physicals have no relevance to the underlying
lawsuit, are completely unconnected with the date and time of the accident, are not limited in
time and scope and are not reasonably calculated to lead to the production of admissible
evidence at trial. Further, Byrd has already testified that the December 7, 2011 physical he
obtained after accident was done at the request of a new employer that required a new
certification, regardless of whether the prior certification had expired. None of these postaccident DOT physical examinations were needed to meet federal regulations on the date of
the accident. As such, requests for these records are overly broad, not properly limited in time
and scope and not reasonably calculated to lead to the production of admissible evidence at
trial. (Doc. No. 73).
Ruling: Given that the only DOT physical in effect at the time of the accident was that
conducted on June 22, 2010, Plaintiff’s request to obtain medical authorization to secure the
medical records from Byrd’s June 22, 2010 DOT physical is hereby GRANTED. However,
Plaintiff has not provided the Court with authority rendering the DOT physicals conducted after
the accident permissible for the ordering of production. As such, the Court believes Plaintiff’s
request for all other medical records surrounding DOT physicals – December 22, 2010; June
23, 2011; and December 7, 2011- is a fishing expedition and is hereby DENIED.
5
(D) Authorization to Obtain Byrd's Employment Records
Plaintiff believes Byrd was in violation of FMCSR hours of service regulations at the
time of the crash due to the following: (i) Byrd had driven in violation of the hours of service
regulations at least twice prior to the subject crash; (ii) Booker destroyed Byrd's employment
hours logs for the days prior to the crash from August 3-7, 2010, despite receiving an evidence
preservation letter from Plaintiff3; and (iii) much of the information in Byrd’s logs that Booker
did not destroy, Plaintiff asserts is false. As such, Plaintiff has requested that Byrd sign an
employment authorization to permit Plaintiff to obtain Byrd's employment records from other
DOT regulated employers because they are reasonably calculated to lead to the discovery of
admissible evidence, particularly in light of Plaintiff’s punitive damage claim. (Doc. No. 70, 71,
& 76).
Defendant states courts do not embrace such a broad view of discovery unless and until
a Plaintiff has placed his or her entire employment history at issue by claiming permanent lost
wages or earning capacity. Furthermore, Byrd’s prior hours logs violations occurred over a 25
year period and Defendants at all times in this case limited their production of driver’s daily
logs and supporting documents to the documents needed for Plaintiff to fully evaluate
Defendant Byrd’s compliance with hours of service regulations on the date and time of the
accident. There are several applicable hours of services rules at play here.4 Compliance with
the 70 hour rule can be fully evaluated by reviewing 8 days of driver’s daily logs leading up to
the accident or logs evidencing a 34 hour period of continuous off duty time, which restarts the
70 hour computation prior to the accident. Therefore, in any given trucking case, the relevant
and discoverable time period of driver’s daily logs is at most 8 days and even shorter if a 34
3
As a business practice, Booker claims it destroys logs after 180 days. (Doc. No. 73).
(a) No more than 11 hours of driving after a 10 hour break [11 hour rule]; (b) No more driving after being on duty for 14
hours after a 10 hour break [14 hour rule]; (c) No more than 70 hours on duty in any 8 day period [70 hour rule].
4
6
hour restart has occurred. Defendants argue this case involves a 34 hour restart. Byrd was
off duty from August 8, 2010 to August 10, 2010 and did not come back on duty until August
11, 2011. As such, any request for documents before August 8, 2010 is not properly limited in
time. Defendant claims it has appropriately produced these logs as the three day period Byrd
was off duty easily qualifies for the 34 hour restart and makes considerations of the 70 hour
rule moot. Finally, Defendant states it has not been disingenuous in its representations. (Doc.
No. 73).
Ruling: Missouri recognizes a right of privacy in personnel records that is
“fundamental” and should not be lightly disregarded or dismissed. State ex rel. Delmar
Gardens North Operating LLC v. Gaertner, 239 S.W.3d 608, 611-612. However, this does not
mean that employment records are entirely undiscoverable in every case. Id. Where the
information requested in the personnel file is sufficiently related to the issues in the pleadings,
it is discoverable. Id. A request for an entire personnel file, however, is overbroad. Id. In this
case, Plaintiff seeks authorization for employment records for Defendant spanning over a 25
year period. This is overly broad and appears to be a fishing expedition not properly limited in
time and scope. As such, Plaintiff’s request is hereby DENIED.
III.
Second Motion to Compel (Doc. No. 102)
(A) Sammy Byrd's Cell Phone Records.
Plaintiff seeks Sammy Byrd's cell phone records. Defendants claim Defendant Byrd
was off duty on August 8-10, 2010 in order to gain the benefit of a 34 hour restart under the
federal hours of service regulations. Plaintiff's position is that Defendant Byrd cannot claim a
34 hour restart because his activity during that time frame included tasks which are considered
"on duty" time under federal regulations. Although his testimony is unclear, Defendant Byrd
7
testified that he identified, procured and delivered a tractor to Booker for lease during these
dates. In support of Defendants' attempt to classify his work in obtaining and delivering the
tractor as "off duty" time, Defendant Byrd testified in his deposition that he did not speak with
anyone from Booker during the days in question. Plaintiff seeks Byrd's cell phone records to
determine what, if any, communication Defendant Byrd had with Booker on any of these dates.
(Doc. No. 102, 103, & 105).
Defendants agreed to produce Byrd’s cell phone records on January 16, 2013 (Doc. No.
104).
Ruling: This request is hereby MOOT.
(B) Truck Accident Report and Email from Safety Director.
Defendants identified a truck accident report completed by Defendant Byrd and
allegedly provided to Defendant Booker's insurance company on September 16, 2010.
Defendants also identified an email synopsis of the crash Booker safety director Cherie Cade
provided to Booker's insurance company. Defendants refuse to produce the requested
documents on the grounds that the documents fall within the insurer-insured privilege and work
product doctrine. Plaintiff argues that these materials should be produced because: (1) Texas
law applies5 and does not recognize the insurer-insured privilege; and (2) the work product
privilege is inapplicable. Further, Byrd's accident report is the only writing from Byrd
memorializing his version of what happened. Accordingly, Plaintiff requests Defendants
produce Byrd's accident report and Cade's email relaying information to the insurance
5
Plaintiff argues Texas law applies given that the insurance contract was executed in Texas and Booker is a Texas
corporation.
8
company regarding the crash. Plaintiffs state even assuming Missouri privilege law applies,
the documents are not privileged because they were not made to or for the insurer’s counsel.
(Doc. No. 102, 103, & 105).
Defendants state Plaintiff does not have a substantial need for the documents
requested. Plaintiff’s counsel deposed Byrd for a full day on May 9, 2012. The truck accident
report was dated September 16, 2010, over a month after the accident. Furthermore, Plaintiff
has the accident report from the investigating officer detailing his discussions at the scene of
the accident, had an opportunity to ask the investigating officer questions during his deposition,
has the reports generated by the ambulance personnel that responded to the scene and had
an opportunity to ask both EMS personnel Mary Graham and Debbie Ferguson questions
during their depositions about their time at the scene of the accident. Defendant states it has
produced the accident report sent by Cherie Cade to the insurance company and thus, this
point is moot. However, Defendants maintain that the email communication from Cheri Cade
to the insurance adjuster and the report authored by Sammy Byrd for the insurance company
cannot be properly discovered as they are protected from disclosure by the insured-insurer
privilege. Defendants state Missouri law applies here and thus, insurer-insured privilege is
recognized. (Doc. No. 104).
Ruling: In diversity cases, privileges are determined according to the state law that
supplies the rule of decision. Fed. R. Evid. 501. Rule 501 does not, however, specify which
state’s privilege rules control. Pritchard-Keang Nam Corp v. Jaworski, 751 F.2d 277, 281 n. 4
(8th Cir. 1984). A federal court must apply the forum’s conflict of laws rules. Id. This case was
brought in Missouri, so Missouri choice of law rules apply. Id. No Missouri case law has
decided what the specific choice of law rule is regarding privilege. Id. Nevertheless, the
9
general rule is that the law of the forum governs admissibility of evidence. Id. As such,
Missouri’s privilege law governs this case. According to Missouri law, statements made to a
person’s liability insurance provider concerning an event which is the basis of a claim against
him and which is covered by his liability insurance coverage policy are privileged
communications. State ex rel. Tillman v. Copeland, 271 S.W.3d 42, 45-48 (Mo.Ct. App. 2008).
Because they are privileged, it is immaterial whether “the plaintiff has substantial need for said
statements in preparing for trial....” Id. As such, Plaintiff’s request is DENIED.
(C) Safety Director Discussions with Byrd.
Plaintiff seeks documentation of Booker safety director Cherie Cade's discussions with
Defendant Byrd about his driving logs. While Defendants claim there is no documentation
reflecting any discussion between Booker and Byrd regarding his logs prior to the crash,
Defendants objected to providing any such documentation created after the crash. This
means Defendants have, but are withholding, documentation of conversations Booker had with
Byrd about his logs after the crash. Plaintiff states that given Booker's destruction of Byrd's
logs despite receiving a timely letter asking that they be preserved, the requested
documentation is particularly relevant. Plaintiff states Federal Rule of Evidence 407 does not
apply here. At a minimum, such documentation is reasonably calculated to lead to the
discovery of admissible evidence. (Doc. No. 102, 103, & 105).
Defendants state Plaintiff’s request is overly broad. As Defendants stated previously,
Byrd’s logs were not destroyed inappropriately. Defendants state they produced the
appropriate logs. Further, post-accident and/or subsequent actions taken by Booker are not
the proper subject of discovery and would not be admissible at trial. (Doc. No. 104).
10
Ruling: Plaintiff’s request is hereby DENIED. Plaintiff has provided no authority as it
relates to this issue. Further, the Court is not aware of any spoliation issues other than that
which is alleged briefly and vaguely by the Plaintiff above. Should spoliation be of concern to
Plaintiff, she should raise this issue separately with the Court.
(D) Spotlight on Safety Materials.
Cade testified that Booker does a weekly newsletter for the drivers called Spotlight on
Safety to discuss safety issues. This newsletter was started after the crash. Booker had no
written safety policies at the time of the crash so Booker's Spotlight on Safety materials are the
only written materials of Booker's safety policies. Plaintiff states that regardless of when they
were created, the materials are potentially relevant to the issues in this case and are, at a
minimum, reasonably calculated to lead to the discovery of admissible evidence. As such,
Plaintiff requests that Defendants produce the materials. (Doc. No. 102, 103, & 105).
Defendants state the material that is the subject of this request did not exist before the
accident in question. Post-accident and/or subsequent actions taken by Booker are not the
proper subject of discovery and would not be admissible at trial. (Doc. No. 104).
Ruling: Federal Rules of Evidence 407 states evidence of subsequent remedial
measures is not admissible to prove fault. The Advisory Committee Notes further states that
courts have applied this principle to exclude evidence of subsequent repairs, installation of
safety devices, changes in company rules, and discharge of employees. Safety bulletins,
similar to newsletters, have been held to be inadmissible evidence in Court. Everts v. Altec
Industries, Inc., 159 Fed.Appx. 284 (2nd Cir. 2005). Although Plaintiff states that these
11
newsletters are essential to demonstrating Booker’s safety policies, these policies were not in
effect at the time of the accident and thus, are not relevant nor admissible. As such, Plaintiff’s
request is hereby DENIED.
IT IS SO ORDERED.
Date: January 30, 3013
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?