Basra, et al v. Ecklund Logistics, Inc.

Filing 118

MEMORANDUM AND ORDER granting in part and denying Defendant Ecklund Logistics, Inc.'s Motion in Limine, ECF No. 96 and Plaintiffs' Motion in Limine #1 to #5, ECF No. 100 -1 through 100 -5 as stated. Ordered by Chief Judge Laurie Smith Camp. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INDERJEET BASRA, individually and as
Personal Representative for the ESTATE
OF ATINDERPAL SINGH; and DILSHAAN
S. REHAL, by and through his next
friend, INDERJEET BASRA,
Plaintiffs,
v.
ECKLUND LOGISTICS, INC.,
Defendant.

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CASE NO. 8:16CV83

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant’s Motion in Limine, ECF No. 96,
submitted by Defendant Ecklund Logistics, Inc. (“Ecklund”), and the Plaintiffs’ Motion in
Limine #1 through #5, ECF No. 100-1 through 100-5, submitted by Plaintiffs Inderjeet
Basra, individually and as Personal Representative for the Estate of Atinderpal Singh, and
Dilshaan S. Rehal, by and through his next friend, Inderjeet Basra (“Plaintiffs”).
The parties agree that no argument or evidence should be admitted with respect to
settlement negotiations between the parties; the existence or lack of insurance coverage
for Ecklund; any offer or promise made by or on behalf of Ecklund to pay medical, hospital,
property damage, or other expenses; any pre-death pain or suffering on the part of the
decedent Atinderpal Singh (“Decedent”); any news media reports from the New York
Times; and any settlement agreements between Plaintiffs and the Decedent’s employer.
Ecklund also seeks to preclude the Plaintiffs from presenting argument or evidence
in six other subject matter areas: (1) punitive damages and Ecklund’s financial condition;
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(2) opinions proffered by Plaintiff’s expert Lew Grill (“Grill”); (3) whether Ecklund’s driver,
Freddie Galloway (“Galloway”), was in violation of hours-of-service requirements, kept
duplicate driver’s logs, was tired, was distracted, or had any prior driver’s log violations,
speeding violations, or accidents; (4) Ecklund’s management practices, including training,
discipline, safety, audits, and statistics; (5) claims that Ecklund destroyed evidence or
acted in bad faith in record-keeping or discovery; and (6) Ecklund’s course of conduct
subsequent to the accident, including changes in its digital record-keeping, employee
handbook, or disciplinary policies.
Plaintiffs also seek to preclude Ecklund from presenting argument or evidence in
three other subject matter areas: (1) York County accident reports and related officer
comments; (2) reference to the Decedent’s fatigue, inattention, or driver error; and (3)
reference to the Decedent’s immigration status, immigration history, ethnicity, national
origin, or foreign travel.
DISCUSSION
I. Ecklund’s Motion in Limine
A. Punitive Damages and Ecklund’s Financial Condition
Plaintiffs note that Ecklund has moved for summary judgment regarding Plaintiffs’
claims for punitive damages, and therefore Ecklund’s motion in limine as it relates to
punitive damages and its financial condition may be addressed through the Court’s ruling
on the motion for summary judgment. The Court agrees.
B. Testimony of Plaintiff’s Proposed Expert, Lew Grill
Ecklund seeks to preclude Grill from testifying to three opinions in his initial expert

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report, asserting that the opinions lack relevance and are inadmissible under Federal Rule
of Evidence 702. Ecklund also seeks to preclude Grill from testifying to the opinions
presented in his supplemental report, based on the report’s untimeliness.
The central difficulty in determining the relevance of Grill’s testimony, and its
admissibility under Rule 702, is the amorphous nature of the Plaintiffs’ claims against
Ecklund. In the Plaintiffs’ Complaint, ECF No. 1, they alleged that Galloway engaged in
specific negligent acts or omissions that were the proximate cause of a collision between
the tractor driven by the Decedent and the trailer pulled by the tractor driven by Galloway.
Complaint ¶¶ 9, 13, ECF No. 1. From the facts alleged in the Complaint, a reasonable
juror could infer that an act or omission on the part of Galloway was the proximate cause
of the Decedent’s death:
As Galloway passed Decedent’s vehicle at a high rate of speed, Galloway
engaged in an unsafe and dangerous lane change from the Number 1 lane
into the Number 2 lane immediately ahead of Decedent’s vehicle and began
to rapidly slow his vehicle. As a result of Galloway’s actions, Decedent was
unable to avoid Galloway’s vehicle and violently crashed into the rear of
Galloway’s vehicle.
Complaint ¶ 9, ECF No. 1.
Following discovery, however, Plaintiffs’ theory of the case regarding Galloway’s
acts or omissions appears to have changed. In the Order on Pretrial Conference, ECF
No. 105, Plaintiffs simply assert that Galloway had a duty of care to the Decedent;
Galloway breached that duty of care; and his breach was the proximate cause of the
Decedent’s death. ECF No. 105, Page ID #2102.
Ecklund seeks to preclude Grill from offering his opinion that (1) Galloway was in
violation of his hours-of-service requirements, (2) Galloway had a responsibility to monitor
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traffic behind him and to maneuver in traffic to avoid being struck from the rear, and (3) the
Decedent was prevented from assessing what was happening in front of him.
Galloway’s alleged violation of hours-of-service requirements conceivably could
have relevance, depending on what evidence is presented regarding an act or omission
by Galloway, proximately causing the collision. At this juncture, however, the relevance
of any such evidence is not apparent. An hours-of-service violation is not itself an act or
omission that could be the proximate cause of a collision. Until the relevance of such
testimony becomes apparent, therefore, Grill’s opinion that Galloway was in violation of
hour-of-service requirements is irrelevant and unfairly prejudicial.
Grill’s opinion that Galloway had a responsibility to monitor traffic behind him, Grill’s
related opinions as to whether Galloway should have made an effort to pass the car in front
of him; and Grill’s opinion that the Decedent was prevented from assessing what was
happening in front of him; all fail to satisfy the four prongs of Rule 702.
With regard to the opinions offered in Grill’s supplemental report, the Plaintiffs
acknowledge that Grill’s initial report was due no later than January 23, 2017. Plaintiffs
assert that Grill’s second report, dated March 10, 2017, was submitted pursuant to Fed.
R. Civ. P. 26(e), which requires parties to supplement or correct disclosures when it is
learned that the disclosure is incomplete or incorrect. The opinions presented in Grill’s
initial report relate to the actions of Galloway in connection with the accident. The opinions
presented in the supplemental report concern Ecklund’s management systems and its
alleged failure to prevent drivers from violating limitations on work hours.

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supplemental report does not correct an incorrect opinion, nor supplement an incomplete
opinion, it presents new opinions on new subject matter.
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Accordingly, it is not a

supplemental disclosure under Rule 26(e) and it is untimely.
C. Galloway’s Service Hours, Duplicate Logs, and Use of Blue Tooth Device
Ecklund acknowledges that at the time of the accident Galloway was working
beyond his service hours limitations; he was in possession of duplicate logs; and he was
talking on a hands-free blue tooth device. As discussed above, such facts may have
relevance, depending upon what act or omission on the part of Galloway is alleged to be
the proximate cause of the accident. Evidence that a driver was fatigued or distracted
does not itself constitute an act or omission proximately causing an accident. Until the
relevance of such facts is apparent, any reference to them is unfairly prejudicial and will
be precluded, in limine.
D. Ecklund’s Management Practices
Ecklund’s management practices, including driver training, employee discipline, and
safety records, also may have relevance, depending upon what act or omission on the part
of Galloway is alleged to be the proximate cause of the accident. Ecklund’s management
practices, no matter how deficient, do not themselves constitute an act or omission
proximately causing an accident. Until the relevance of such facts is apparent, any
reference to them is unfairly prejudicial and will be precluded, in limine.
E. Spoliation
Ecklund seeks to preclude the Plaintiffs from presenting evidence or argument
suggesting that Ecklund destroyed evidence or acted in bad faith in its record-keeping or
discovery practices. Plaintiffs contend that Ecklund’s motion is vague, and that Plaintiffs
may seek to revisit an earlier request for an adverse-inference instruction based on
Ecklund’s alleged spoliation of evidence. If the Plaintiffs seek to revisit the Court’s earlier
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denial of the adverse-inference instruction, the Court will address that matter at the
appropriate time. Until further order of the Court, however, the Plaintiffs are precluded
from making any argument or presenting any evidence suggesting that Ecklund destroyed
evidence or otherwise acted in bad faith in its record-keeping or discovery practices.
F. Post-Accident Measures Taken by Ecklund
Plaintiffs assert that, after the accident, Ecklund changed its system for tracking the
distance traveled and hours worked by its drivers, as well as the contents of its handbook,
and pay incentives for its drivers with good safety records. Ecklund seeks to preclude
Plaintiffs from presenting evidence or argument regarding such post-accident measures,
arguing that such facts lack relevance.
As discussed above, Ecklund’s pre-accident management practices do not
themselves constitute an act or omission proximately causing an accident, and until the
relevance of such facts is apparent, any reference to them is unfairly prejudicial and will
be precluded, in limine. Similarly, Ecklund’s post-accident management practices lack
relevance and, until the relevance of such facts is apparent and the Court addresses any
objections under Federal Rule of Evidence 407, reference to changes in such management
practices will be precluded, in limine.
II. Plaintiffs’ Motion in Limine
A. Accident Reports
Plaintiffs seek to preclude Ecklund from offering hearsay statements, and opinions
as to causation or fault, contained in accident reports prepared by York County officials.
Although Plaintiffs acknowledge that objectionable material could be redacted, they ask

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that the Court rule, in limine, to bar the accident investigation reports as unduly prejudicial,
and as cumulative of information that will be presented through the officers’ testimony. The
Court concludes that the Plaintiffs’ concerns can be addressed at trial through objections,
and the Court will deny the Plaintiffs’ motion in limine with respect to the accident reports.
B. Decedent’s Fatigue, Inattention, or Driver Error
Plaintiffs seek to preclude Ecklund from making any reference to the Decedent’s
alleged inattention or driver error. Whether the Decedent followed Galloway’s vehicle more
closely than was reasonable and prudent is relevant (see, e.g., Neb. Rev. Stat. § 606,140), and the Court will not preclude the introduction of evidence or argument on that
topic. Ecklund acknowledges it does not know the reason or reasons underlying the
Decedent’s alleged inattention or driver error, and any testimony proffering reasons for
such may be speculative and subject to objection at trial.
C. Decedent’s Immigration Status, Ethnicity, and Travel
Plaintiffs seek to preclude Ecklund from making reference to Decedent’s
immigration status, immigration history, ethnicity, national origin, religion, or foreign travel.
Ecklund responds that it has no intention of making any such references, although
reference to matters such as the Decedent’s travel might arise incidentally in connection
with testimony regarding damages. The Court will grant the Plaintiffs’ motion in this
respect, and will address exceptions, as needed, at trial.
Accordingly,
IT IS ORDERED:
1. Defendant Ecklund Logistics, Inc.’s Motion in Limine, ECF No. 96, is granted in
part, as follows:
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Plaintiffs will be precluded, in limine, from presenting argument or evidence
related to (a) settlement negotiations between the parties; (b) the existence
or lack of insurance coverage for Ecklund; (c) any offer or promise made by
or on behalf of Ecklund to pay medical, hospital, property damage, or other
expenses; (d) any pre-death pain or suffering on the part of Atinderpal Singh
(“Decedent”); (e) opinions of Plaintiffs’ expert witness Lew Grill that Freddie
Galloway was in violation of his hours-of-service requirements, that Galloway
had a responsibility to monitor traffic behind him and to maneuver in traffic
to avoid being struck from the rear, and that the Decedent was prevented
from assessing what was happening in front of him; (f) any opinions in Grill’s
supplemental report of March 10, 2017; (g) Galloway’s violation of service
hours limitations, possession of duplicate logs, or use of a hands-free blue
tooth device; (h) Ecklund’s pre-accident management practices; (i) Ecklund’s
alleged spoliation of evidence or bad faith in record-keeping and discovery
practices; and (j) Ecklund’s post-accident management practices;
And the Motion is otherwise denied;
2.

Plaintiffs’ Motion in Limine #1 to #5, ECF No. 100-1 through 100-5, is granted
in part, as follows:
Defendant Ecklund Logistics, Inc., will be precluded, in limine, from
presenting argument or evidence related to (a) any news media
reports from the New York Times; (b) any settlement agreements
between Plaintiffs and the Decedent’s employer; and (c) Decedent’s
immigration status, immigration history, ethnicity, national origin,
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religion, or foreign travel.;
And the Motion is otherwise denied.

DATED this 8th day of May, 2017.

BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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