McAfee v. Howard Baer, Inc. et al

Filing 109

ORDER GRANTING in part and DENYING in part 95 Defendant's Motion in Limine as set forth herein. Signed by Magistrate Judge Dennis Howell on 2/13/2018. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15CV182
MERCEDES KAMARIA POWELL
McAFEE,
Plaintiff,
v.
HOWARD BAER, INC. and KEITH
LOVELL CAMPBELL,
Defendants.
___________________________________

)
)
)
)
)
)
)
)
)
)
)
)

ORDER

This matter is before the Court following the February 8, 2018, pretrial conference before
the undersigned. At the pretrial conference, the Court ruled on the parties’ Motions in Limine (#
93, 95). Issue Numbers One, Two, and Four of Defendants’ Motion to Limine were to be
addressed by written order to follow. The Court will now address each in turn.
Issue Number One
Defendants move to exclude or limit presentation of the following: Any testimony or
evidence from Plaintiff’s expert Whitney Morgan, or argument from counsel based on such
evidence, to the effect that Defendant Campbell had traffic citations for speeding and driving
in an improper lane prior to the April 1, 2013, collision and/or that Defendant Campbell was
statistically more likely at the time of that collision to be involved in an accident while driving
a commercial vehicle, by virtue of having received those citations.
Pursuant to Federal Rule of Evidence 401, “[e]vidence is relevant if it has any tendency to
make a fact more or less probable then it would be without the evidence.” Federal Rule of
Evidence 402 provides that evidence which is irrelevant is not admissible. Federal Rule of
Evidence 404(a) generally prohibits the admission of character evidence for the purpose of
providing action in conformity therewith on a particular occasion. Federal Rule of Evidence
404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” Federal Rule of Evidence 403 provides that even though relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.
The evidence Defendants seek to preclude is propensity evidence. Plaintiff argues that
admission is appropriate under Federal Rule of Evidence 404(b) to show an absence of mistake or
accident. Pl.’s Oppos. (# 97) at 3. The Court is not persuaded.
Plaintiff further argues that Federal Rules of Evidence 607 and 608 allow such evidence of
prior actions for impeachment purposes and to challenge a witness’s credibility. Id. at 3-4. Rules
607 and 608 set forth the permissible methods and uses of character evidence of a witness. In
particular, Rule 607 addresses “who” may impeach a witness. See Fed. R. Evid. 607. As for Rule
608, subsection (b) is seemingly applicable and provides as follows:
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule
609, extrinsic evidence is not admissible to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of:
(1) the witnesss; or
(2) another witness whose character the witness being cross-examined has testified
about.
Fed. R. Evid. 608(b).
Rule 608(b) explicitly allows questions on cross examination designed to be
probative of truthfulness. United States v. Garnes, 587 F. App’x 60, 61-62 n.1 (4th Cir.
2014) (citing United States v. Smith, 451 F.3d 209, 223 (4th Cir. 2006) (“[T]he rules of
evidence permit cross-examination of a witness about specific instances of conduct if
probative of truthfulness [and] the trial court has wide discretion to decide whether (and to
what extent such questioning is proper and relevant.)).
2

In sum, Defendants’ Motion in Limine, as it relates to Issue Number One, is
GRANTED to the extent that Plaintiff seeks to argue that Defendant Campbell had traffic
citations for speeding and driving in an improper lane prior to the April 1, 2013, collision
and/or that Defendant Campbell was statistically more likely at the time of that collision to
be involved in an accident while driving a commercial vehicle, by virtue of having received
those citations. Defendants’ Motion in Limine is DENIED under Rule 608(b) to the extent
that Defendant Campbell testifies and specifically opens to the door regarding his prior
traffic violations.
Issue Number Two
Defendants move to exclude or limit presentation of the following: Any testimony or
evidence from Plaintiff’s experts Whitney Morgan and/or Steven Farlow, or argument of
counsel based on such evidence, to the effect Defendant Campbell, at the time of the collision
at issue, “violated” the “standard of care for commercial truck drivers.”
Plaintiff argues that 14 C.F.R. § 383 and the Tennessee Commercial Driver’s License
Manual applied to Defendant Campbell on the day of the collision. Pl.’s Oppos. (# 97) at 6-9. The
Court is not persuaded. The Court has not located a single case to support Plaintiff’s argument
that Defendant Campbell had a heightened standard of care on the roads of North Carolina because
he is a commercial truck driver. Plaintiff’s counsel conceded during the pretrial conference that
the applicable standard of care would be outlined by the Court in the jury instructions.
“To prevail on a claim of negligence in North Carolina, a plaintiff must show the essential
elements of duty, breach, proximate cause, and damages.” PLS Investments, LLC v. Ocwen Loan
Servicing, LLC, 699 F. App’x 166, 167 (4th Cir. 2017) (citing Ward v. Carmona, 770 S.E.2d 70,
72 (N.C. 2015)). Therefore, Plaintiff shall not make any argument that deviates from this
negligence standard at trial. Defendants’ Motion in Limine, as it relates to Issue Number Two, is
GRANTED.

3

Issue Number Four
Defendants move to exclude or limit presentation of the following: Any testimony or
evidence from Plaintiff’s experts Whitney Morgan and/or Steven Farlow, or argument of
counsel based on such evidence, to the effect that Defendant Campbell could not have
impacted the rear of the vehicle Plaintiff was operating at the time of the collision in the
absence of a failure on Defendant Campbell’s part to exercise ordinary and reasonable care
under the circumstances or in the absence of one or more “violations” of the “standard of
care for a professional truck driver.”
The Court has reviewed Ward v. Damico, 80 F. App’x 877 (4th Cir. 2003) (per curiam),
the case cited by Plaintiff in support of his position on this issue. Ward is a diversity case involving
injuries arising from an accident where the vehicles collided in Maryland. Id. at 878. At trial, the
plaintiff had an accident reconstruction expert testify, and he opined as follows:
[The plaintiff] would have been unable to avoid the collision even if he had been
traveling at a lawful rate of speed. He explained that motorcyles have less braking
capacity than a car, and that a motorcyclist has a slower perception time than the
driver of a car. Finally, he concluded that based on the physical evidence, it would
have been impossible for [the plaintiff] to have completed the pass at the location
and in the manner described by [another witness who testified at trial].
Id. at 880.
The jury found that both parties had acted in a negligent manner proximately
causing the accident. Id. The U.S. District Court for the District of Maryland entered
judgment in favor of the defendant. Id. On appeal to the Fourth Circuit Court of Appeals,
the District Court was affirmed. Id.
As noted, Plaintiff’s argument that Defendant Campbell, as commercial truck
driver, had a heightened standard of care, must fail. Therefore, Plaintiff’s experts may not
argue that in the absence of “violations” or the “standard of care for a professional truck
driver,” Defendant could not have impacted the rear of the vehicle Plaintiff was operating.
Consequently, Defendants’ Motion in Limine, as it relates to Issue Number Four, is
GRANTED.

Signed: February 12, 2018

4