Malone v. Eden et al

Filing 180

ORDER ON PENDING MOTIONS by Circuit Judge Paul Kelly, Jr. granting 150 Motion in Limine to exclude any reference to vicarious liability; denying 153 Motion to Amend Pretrial Order; denying 152 Motion in Limine to exclude plaintiff's dep osition designations of defendant Fletcher; granting 154 Motion in Limine to exclude "victim" references, pleas to the jury, references to witnesses not called, settlement offer references, and liability insurance references; granting 155 Motion in Limine to exclude any punitive damages references; granting 171 Motion in Limine to exclude poverty and post-mortem references; granting 177 Motion in Limine to exclude seat belt (restraint) and CRST references. (rt)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

TONYA MICHELLE MAHONE, as
Personal Representative of the Estate of
GERARD WATSON, Deceased,
Plaintiff,
No. 1:15-cv-01009-PJK-KBM

v.
GARY EDEN, JACQUELINE R.
FLETCHER, and CRST EXPEDITED,
INC.,
Defendants.

ORDER ON PENDING MOTIONS *
THIS MATTER is before the court on various pretrial motions.
• Plaintiff Tonya Michelle Mahone’s Motion to Amend Pretrial Order to Conform
to the Evidence filed June 17, 2019 (ECF No. 153).
• Defendant Jacqueline R. Fletcher’s Motion in Limine to Exclude Any Reference
to Vicarious Liability filed June 14, 2019 (ECF No. 150).
• Defendant Jacqueline R. Fletcher’s Motion in Limine to Exclude Plaintiff’s
Deposition Designation of Ms. Fletcher filed June 17, 2019 (ECF No. 152).
Defendant Jacqueline R. Fletcher’s Motion in Limine to Exclude Testimony of Whitney
G. Morgan Regarding Ms. Fletcher filed June 24, 2019 (ECF No. 175) remains pending.
The court will address this motion at the July 1, 2019 Pretrial Conference (ECF No. 169).
*

• Defendant Jacqueline R. Fletcher’s Motion in Limine Regarding Plaintiff’s
Punitive Damages Claim filed June 17, 2019 (ECF No. 155).
• Defendant Jacqueline R. Fletcher’s Omnibus Motion in Limine filed June 17,
2019 (ECF No. 154).
• Plaintiff Tonya Michelle Mahone’s Motion in Limine to Prevent Defendants From
Claiming Poverty or Inability to Pay a Judgment filed June 21, 2019 (ECF No.
171).
• Plaintiff Tonya Michelle Mahone’s Motion in Limine to Prevent Defendants from
Making Any Reference to Post Mortem Communication with Gerard Watson filed
June 21, 2019 (ECF No. 172).
• Plaintiff Tonya Michelle Mahone’s Motion in Limine to preclude reference to Mr.
Watson’s usage or non-usage of seat belts or other restraint systems, and to
preclude reference of her earlier allegations against CRST Expedited, Inc. filed
June 24, 2019 (ECF No. 177).
Given the pendency of trial and the straightforward nature of the issues, the court will
rule based upon the motions and responses; replies are unnecessary. Counsel are
reminded of the requirement that counsel confer with opposing counsel before filing
motions to ascertain whether the motion is opposed — several of the requests in these
motions were unopposed. D.N.M.LR-Cv. 7.1(a). Upon consideration thereof,
(1) Vicarious Liability Theory and Amending the Pretrial Order. Ms. Fletcher’s
Motion in Limine to Exclude Any Reference to Vicarious Liability filed June 14, 2019
(ECF No. 150) is well taken and should be granted. By the same token, Ms. Mahone’s
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Motion to Amend the Pretrial Order (ECF No. 153) is not and should be denied. Ms.
Mahone seeks to present evidence that both Gary Eden and Gerard Watson were Ms.
Fletcher’s “statutory employees” such that Ms. Fletcher was vicariously liable for any
negligence of either Mr. Eden or Mr. Watson. She has proposed jury instructions that
require finding Ms. Fletcher liable upon a finding that Mr. Watson and Mr. Eden were
Ms. Fletcher’s “statutory employees” acting within the scope of their employment. Pl.’s
Requested Jury Instr. Nos. 17, 17 (alternate) & 21 (ECF No. 148). She has also moved to
amend the Pretrial Order to add that both Mr. Watson and Mr. Eden were Ms. Fletcher’s
statutory employees. Pl.’s Mot. Amend Pretrial Order 6 (ECF No. 153). She similarly
includes this theory in her Proposed Statement of the Case. ECF No. 164. Defendant
Eden supports the motion to amend the Pretrial Order. ECF No. 168.
Ms. Fletcher argues that these vicarious-liability-based-upon-employment claims
were not contained in the Complaint, nor the Pretrial Order, and that discovery did not
encompass such claims. Def.’s Vicarious Liability Mot. Limine 4–5. Accordingly,
Plaintiff should not be able to pursue them at trial. Fed. R. Civ. P. 16(e); Wilson v.
Muckala, 303 F.3d 1207, 1215–1216 (10th Cir. 2002); Fed. R. Evid. 403.
Under New Mexico law, negligent entrustment is not a theory of vicarious
liability, but rather is a cause of action in negligence against a person who entrusts
personal property to a reckless individual. Gabaldon v. Erisa Mortg. Co., 949 P.2d 1193,
1203 (N.M. Ct. App. 1997), overruled on other grounds by Gabaldon v. Erisa Mortg. Co.,
990 P.2d 197 (N.M. 1999). The Complaint contained both theories. However, Ms.
Mahone only sought to hold CRST Expedited, Inc. vicariously liable for the negligence
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of both Mr. Eden and Ms. Fletcher. † See Compl. 4–9 (ECF No. 1-1). Her claim against
Ms. Fletcher was clearly one of negligent entrustment: that Ms. Fletcher breached her
duty to ensure the safe operation of her vehicle when she permitted Mr. Eden, whom she
knew was taking medication and lacked a valid commercial driver’s license, to drive. Id.
at ¶¶ 37–39. And, although Ms. Mahone alleged Ms. Fletcher had “supervisory control”
over Mr. Watson, id. at ¶ 20, she did not allege that Mr. Eden was similarly under Ms.
Fletcher’s control, nor did she allege Ms. Fletcher was vicariously liable for Mr.
Watson’s actions, whom she alleged was asleep and unaware of Mr. Eden’s driving. Id.
at ¶ 21. Similarly, although she argues in the Pretrial Order that CRST was vicariously
liable for Ms. Fletcher’s actions, she does not allege a theory of respondeat superior as to
Ms. Fletcher and either Mr. Eden or Mr. Watson.
Accordingly, after reviewing the Complaint, the Pretrial Order, and the course of
proceedings, Ms. Mahone’s attempt to introduce evidence to establish a statutory
employment relationship expands her theory of the case at the eleventh hour. Claims
omitted from the Pretrial Order are not part of the case. Gowan v. United States Dep’t of
Air Force, 148 F.3d 1182, 1192 (10th Cir. 1998). The parties engaged in discovery for
over one year, which concluded in June 2017. See Order (ECF No. 80). Ms. Fletcher

On January 17, 2019, this court granted summary judgment in favor of CRST, holding
that (1) Mr. Eden was not a “statutory employee” of CRST for the purposes of the
Federal Motor Carrier Safety Regulations (FMCSR), (2) CRST was not negligent in
hiring Ms. Fletcher as an independent contractor or in training her, and (3) CRST cannot
be held successively liable for Ms. Fletcher’s alleged negligent entrustment of her
vehicle. See generally Mahone v. Eden, No. 1:15-cv-01009-PJK-KBM, 2019 WL
251732 (D.N.M. Jan. 17, 2019).
†

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lacked opportunity to investigate and develop a defense on this new theory, let alone
obtain evidence and possibly engage in motion practice.
Ms. Mahone tacitly acknowledges in her Motion to Amend the Pretrial Order
(ECF No. 153) that theories of vicarious liability expand the scope of the pleadings and
Pretrial Order, but she argues Ms. Fletcher “took liberties with the Pretrial Order” and
“greatly expand[ed] the scope of her pleadings” without allowing Ms. Mahone the
opportunity to object. Mot. to Amend 2, 4. She therefore requests to amend the Pretrial
Order pursuant to Fed. R. Civ. P. 15(b)(1) to add that both Gerard Watson and Gary Eden
were, “[a]t all material times . . . statutory employee[s] of defendant Fletcher and [were]
acting within the course and scope of [their] employment.” Id. at 6. Her request should
be denied for the following reasons.
First, Ms. Fletcher’s contentions in the Pretrial Order did not expand the scope of
the pleadings. Ms. Mahone argues Ms. Fletcher altered her pleadings by offering
contentions that (1) were not in her Answer, (2), were contrary to discovery, or (3) raised
new legal issues. Fed. R. Civ. P. 15(b)(1) allows for amendment to conform the
pleadings to evidence at trial absent prejudice to the non-movant. Moncrief v. Williston
Basin Interstate Pipeline Co., 174 F.3d 1150, 1163 (10th Cir. 1999). Though Fed. R. Civ.
P. 15(a)(2) provides that leave to amend should be freely given when justice so requires,
leave to amend may be denied when the request is untimely and would prejudice an
opposing party, which is plainly the case here. See Duncan v. Manager, Dep’t of Safety,
City & Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005). Suffice it to say that Ms.

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Mahone could not meet the higher standard under Fed. R. Civ. P. 16(e), which permits
amendment of the pretrial order “only to prevent manifest injustice.”
The court disagrees that Ms. Fletcher expanded the legal theories of the case when
she completed her portion of the Pretrial Order. In the absence of CRST as a party, the
central two questions are, and have always been, whether Mr. Eden was negligent or
negligent per se in driving the vehicle, and whether either Mr. Watson or Ms. Fletcher
was negligent or negligent per se in allowing Mr. Eden to drive. See Pretrial Order 4–5
(Plaintiff’s claims), 6–7 (Stipulated Factual Contentions), 7–12 (Plaintiff’s Contentions).
Ms. Fletcher contends in the Pretrial Order that she entrusted operation of the vehicle to
Mr. Watson, and that she did not permit Mr. Eden to drive, nor could she have anticipated
his driving. Pretrial Order ¶¶ 6–7, 14 (ECF No. 135). These contentions do not alter the
legal theory of the case, but rather they speak to its very essence — that is, whether Ms.
Fletcher negligently entrusted her vehicle to Mr. Eden. It is for the jury to resolve these
factual disputes.
Moreover, the argument that Ms. Mahone lacked opportunity to object to the
Pretrial Order is unavailing. Defendants submitted a copy of a proposed Pretrial Order to
the court electronically on March 1, 2019 and copied all parties. The court also
circulated that same draft of the Pretrial Order on March 15, 2019 to all remaining
counsel because the signature of one of the lawyers was missing. Thereafter, the court
revised the Pretrial Order and filed it on March 22, 2019. Id. The court also held a status
conference with counsel on April 25 and supplemented the Pretrial Order (on another
matter) the next day at the request of the counsel. ECF No. 143
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The court recognizes that Mr. Eden supports Ms. Mahone’s efforts to amend the
Pretrial Order. ECF No. 168. Mr. Eden argues that (1) the evidence will confirm that
Mr. Eden was a statutory employee of Ms. Fletcher, (2) fairness should permit Ms.
Mahone to present this statutory employee theory given that the court granted summary
judgment to CRST, and (3) given a trial date of July 8, Ms. Fletcher would have
sufficient time to consider and research the effect of this theory. Suffice it to say, none of
these reasons is persuasive. Merely because CRST is out of the case does not warrant
allowing Ms. Mahone to raise another claim against another defendant. Mr. Eden’s view
of the evidence (and workload of defense counsel) probably is not the view shared by Ms.
Fletcher. Indeed, Ms. Fletcher’s counsel (who is in the best position to know) would
require a continuance to get ready for such a pivot.
In the end, the court agrees with Ms. Fletcher that any reference to vicarious
liability should be excluded, and that Ms. Mahone should not be allowed leave to amend
the Complaint or the Pretrial Order to include such a legal theory or theories.
(2) Ms. Fletcher’s Deposition. Ms. Fletcher’s Motion in Limine to Exclude
Plaintiff’s Deposition Designation of Ms. Fletcher filed June 17, 2019 (ECF No. 152) is
not well taken and should be denied. As Ms. Mahone notes, pursuant to Fed. R. Civ. P.
32, “[a]n adverse party may use for any purpose the deposition of a party.” Fed. R. Civ.
P. 32(a)(3); see Pl.’s Resp. 1 (ECF No. 167). The deposition may be introduced as
substantive evidence, even if the deponent is available to testify, King & King Enters. v.
Champlin Petrol. Co., 657 F.2d 1147, 1164 (10th Cir. 1981), although it is within the
court’s sound discretion to exclude its introduction. Coletti v. Cudd Pressure Control,
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165 F.3d 767, 773 (10th Cir. 1999). Ms. Fletcher argues any probative value of her
deposition testimony will be substantially outweighed by the harms articulated in Fed. R.
Evid. 403. At this juncture, the court sees no reason to exclude Ms. Fletcher’s deposition
testimony on such speculative grounds. To the extent Ms. Fletcher has specific
objections at trial, she may raise them at that time.
(3) Punitive Damages References. Ms. Fletcher’s Motion in Limine Regarding
Plaintiff’s Punitive Damages Claim filed June 17, 2019 (ECF No. 155) is well taken and
should be granted. The danger of unfair prejudice in the premature mention of punitive
damages is apparent. Fed. R. Evid. 403.
(4) “Victim” References. Ms. Fletcher’s motion to exclude references,
arguments, testimony, or comments referring to “Plaintiff” — a term the court construes
to mean Mr. Watson — as a “victim” or other words to that effect, contained within her
Omnibus Motion in Limine filed June 17, 2019 (ECF No. 154), is well taken and should
be granted. The advisory committee’s note to Rule 403 warns against introduction of
evidence that tends to lead to an emotional or biased jury decision. Fed. R. Evid. 403
advisory committee’s note; see also Stump v. Gates, 211 F.3d 527, 534 (10th Cir. 2000);
Sec. & Exch. Comm’n v. Goldstone, 317 F.R.D. 147, 163 (D.N.M. 2016). Reference to
Mr. Watson as a “victim” carries a substantial risk of eliciting an emotional response
from the jury. The parties should instead refer to him by his name or as the “deceased.”
(5) Pleas to the Jury. Similarly, Ms. Fletcher’s motion to prevent litigants from
asking the jury to “send a message,” to act as “the conscience of the community,” or to
stand in the shoes of Plaintiff (the “Golden Rule”), contained within her Omnibus Motion
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in Limine filed June 17, 2019 (ECF No. 154), is well taken and should be granted.
Although her motion is anticipatory, she is correct that such entreaties to the jury are
improper under Rule 403. See United States v. Rogers, 556 F.3d 1130, 1143 (10th Cir.
2009); Blevins v. Cessna Aircraft Co., 728 F.2d 1576, 1580 (10th Cir. 1984); Malandris
v. Merrill Lynch, Pierce, Fenner & Smith Inc., 703 F.2d 1153, 1183 (10th Cir. 1981).
(6) References to Witnesses Not Called. Ms. Fletcher’s motion to preclude any
reference, evidence of, or argument as to witnesses not called, contained within her
Omnibus Motion in Limine filed June 17, 2019 (ECF No. 154), is well taken and should
be granted. A party’s decision to call or not to call a witness simply is not relevant and
invites the jury to speculate. Fed. R. Evid. 401. All parties are thus precluded from any
such reference.
(7) Settlement Offer References. The court agrees that Fed. R. Evid. 408
prohibits introduction of evidence of a settlement offer between the parties. Although the
parties have not indicated they intend to offer such evidence, they are nevertheless
precluded from doing so. Ms. Fletcher’s motion to preclude such evidence, contained
within her Omnibus Motion in Limine filed June 17, 2019 (ECF No. 154), is well taken
and should be granted, subject to Rule 408’s limited exceptions for admissibility. Fed. R.
Evid. 408(b).
(8) Liability Insurance References. The court also agrees that Fed. R. Evid. 411
prohibits introduction of evidence of a defendant’s liability insurance that may cover
alleged damages as substantive evidence of negligence. Although speculative and
anticipatory, Ms. Fletcher’s motion to preclude reference to her liability insurance,
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contained within her Omnibus Motion in Limine filed June 17, 2019 (ECF No. 154), is
well taken and should be granted, subject to Rule 411’s permitted purposes for the
introduction of such evidence.
(9) Poverty and Post-Mortem References. Both Ms. Mahone’s Motion in Limine
to Prevent Defendants from Claiming Poverty or Inability to Pay a Judgment filed June
21, 2019 (ECF No. 171) and her Motion in Limine to Prevent Defendants from Making
Any Reference to Post Mortem Communication with Gerard Watson filed June 21, 2019
(ECF No. 172) are unopposed and should be granted.
(10) Seat Belt (Restraint) References. Ms. Mahone’s Motion in Limine to
preclude reference to Mr. Watson’s usage or non-usage of seat belts or other restraint
systems, and to preclude reference to her earlier allegations against CRST Expedited, Inc.
filed June 24, 2019 (ECF No. 177) is also unopposed and should be granted.
NOW, THEREFORE, IT IS ORDERED that:
(1)

Plaintiff Tonya Michelle Mahone’s Motion to Amend Pretrial Order to
Conform to the Evidence filed July 17, 2019 (ECF No. 153) is denied;

(2)

Defendant Jacqueline R. Fletcher’s Motion in Limine to Exclude Any
Reference to Vicarious Liability filed June 14, 2019 (ECF No. 150) is
granted;

(3)

Defendant Jacqueline R. Fletcher’s Motion in Limine to Exclude Plaintiff’s
Deposition Designation of Ms. Fletcher filed June 17, 2019 (ECF No. 152)
is denied;

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(4)

Defendant Jacqueline R. Fletcher’s Motion in Limine Regarding Plaintiff’s
Punitive Damages Claim filed June 17, 2019 (ECF No. 155) is granted;

(5)

Defendant Jacqueline R. Fletcher’s Omnibus Motion in Limine filed June
17, 2019 (ECF No. 154) is granted;

(6)

Plaintiff Tonya Michelle Mahone’s Motion in Limine to Prevent
Defendants from Claiming Poverty or Inability Pay a Judgment filed June
21, 2019 (ECF No. 171) is granted;

(7)

Plaintiff Tonya Michelle Mahone’s Motion in Limine to Prevent
Defendants from Making Any Reference to Post Mortem Communication
with Gerard Watson filed June 21, 2019 (ECF No. 172) is granted; and

(8)

Plaintiff Tonya Michelle Mahone’s Motion in Limine to preclude reference
to Mr. Watson’s usage or non-usage of seat belts or other restraint systems,
and to preclude reference to her earlier allegations against CRST Expedited,
Inc. filed June 24, 2019 (ECF No. 177) is granted.

DATED this 25th day of June 2019, at Santa Fe, New Mexico.
Paul Kelly, Jr.
United States Circuit Judge
Sitting by Designation

Counsel:

Nathan S. Anderson and Paul D. Barber, Barber & Borg LLC, Albuquerque, New
Mexico, and Mark J. Caruso, Caruso Law Offices P.C., Albuquerque, New Mexico, for
Plaintiff.
Harriett J. Hickman, Darci A Carroll, and Nathan H. Mann, Gallagher Casados & Mann,
P.C., Albuquerque, New Mexico, for Defendant Jacqueline R. Fletcher.
Mark J. Klecan, Attorney at Law, Albuquerque, New Mexico, for Defendant Gary Eden.
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