Bazen v. Salem et al

Filing 61

ORDER granting in part and denying in part 42 Motion in Limine; granting in part and denying in part 43 Motion in Limine. Signed by Magistrate Judge David Keesler on 7/29/16. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:14-CV-289-DCK
TAMARA E. TURNER,
As Administrator of the Estate of
Cathy Erlene Bazen,
Plaintiff,
v.
JONATHAN T. SALEM, and
U.S.A. LOGISTICS, INC.,

Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT regarding “Defendants Jonathan Thaddeus
Salem And U.S.A. Logistics, Inc.’s Motions In Limine” (Document No. 42), and “Plaintiff’s
Motions In Limine” (Document No. 43) filed July 18, 2016. The parties have consented to the
jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c), and these motions
are ripe for disposition. After careful consideration of the parties’ written submissions and oral
argument in a Final Pretrial Conference on July 28, 2016, the Court finds as follows.
I.

Defendants’ motion to prohibit admission of evidence pertaining to: (1) Mr. Salem’s
driving record, training, or experience; (2) Mr. Salem’s medical history; and (3)
any evidence suggesting a problem or issue related to Mr. Salem’s commercial
driver’s license. (Document No. 42)
The parties agree that evidence of Mr. Salem’s past driving record and training is not to be

admitted. Moreover, the parties stipulate that at the time of the collision, Mr. Salem “had a
commercial truck driver license issued by the State of Florida.” (Doc. No. 47, p. 2). The
undersigned understands that Plaintiff does not intend to suggest any problem or issue with Mr.
Salem’s driver’s license.

The parties disagree as to whether or not Defendant Salem’s medical history should be
admissible for the purposes of impeachment. Plaintiff argues that the evidence should be
admissible on the grounds that Defendant Salem’s credibility is critical to the case. Defendants
argue that the medical records are a collateral issue in this case and ought not to be discussed.
Defendants’ Motion is GRANTED in part and DEFERRED in part. The Court will not
allow questions on Defendant Salem’s driving record or training, subject to the agreement of the
parties, based on the representation by Defendants that they will not introduce evidence of such
record and training that would suggest Defendant Salem has spent more years driving than he has.
The Court reserves ruling on the admissibility of Mr. Salem’s medical history for purposes of
impeachment until trial.
II.

Defendants’ motion to prohibit admission of evidence including the implication or
suggestion that Defendant Salem was using a cell phone at or near the time of the
accident, absent proper foundation. (Document No. 42).
Defendants move to prohibit the admission of evidence including the implication or

suggestion that Defendant Salem was using a cell phone at or near the time of the accident, absent
proper foundation, is GRANTED. However, the Court takes the motion under advisement, and
will allow Plaintiff the opportunity to present a proper foundation for the cellphone records at trial.
III.

Defendants’ motion to prohibit any evidence including the implication or suggestion
of how Decedent’s husband Mr. Holden (now deceased), thought, felt or said
following the accident. (Document No. 42).
Defendants move to exclude any information regarding what Mr. Holden thought felt or

said following accident, arguing that they do not object to introducing evidence of Mr. Holden’s
loss of companionship for damages, but are concerned that the comments made by Mr. Holden
would be unfairly prejudicial and raise hearsay issues. Plaintiff argues that she intends to introduce
testimony as to when Mr. Holden received the phone call from Ms. Bazen’s phone, informing him

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that his wife had been in an accident. Plaintiff also argues that what Mr. Holden said upon learning
of the accident would be admissible under the excited utterance exception.
Defendant’s motion is GRANTED in part and DENIED in part. The jury needs to
understand the story and timeline regarding the accident, and Mr. Holden receiving the phone call
informing him that his wife had been in an accident is part of that story. However, consistent with
the discussions at the Final Pretrial Conference, the Court advises Plaintiff not to elicit testimony
about what Mr. Holden thought or felt. With proper foundation, the Court will allow testimony
regarding the basic facts of when and where Mr. Holden received the phone call at issue.
IV.

Defendants’ motion to prohibit testimony of Plaintiff’s expert witness Michael K.
Napier, and that Defendants should likewise be barred from offering testimony of
their expert Whitney Morgan. (Document No. 42).
The parties agree on this issue. Defendants’ motion to exclude testimony of Plaintiff’s

expert witness Michael K. Napier and Defendants’ expert witness Whitney Morgan is
GRANTED.
V.

Defendants’ motion to prohibit any evidence of or relating to the existence of liability
insurance, and bar Defendants from offering the same. (Document No. 42).
The parties agree on this issue. Unless otherwise allowed by the Court, the parties shall

not introduce evidence of or relating to the existence of liability insurance. Defendants’ motion is
GRANTED.
VI.

Defendants’ motion to prohibit admission of the diagram contained in the police
report and any testimony from Trooper Carnegie or Sergeant Henry L. Dorty, Jr.
that the vehicles sideswiped each other, or their opinions as to how the accident
happened, absent proper foundation. (Document No. 42).
Defendants move to prohibit admission of the diagram contained in the police report and

any testimony from Trooper Carnegie or Sergeant Henry L. Dorty, Jr. that the vehicles sideswiped
each other, or their opinions as to how the accident happened. The parties agree to submission of
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a redacted police report with the diagram taken out, and agree that Troopers Carnegie and Dorty
will not give opinions as to how the accident happened, but will only be questioned about their
observations of the scene following the accident. Based on the agreement and representations of
the parties, the motion is GRANTED.
VII.

Defendants’ motion to prohibit admission of any post-mortem photographs of
Decedent. (Document No. 42).
Defendants move to prohibit admission of any post-mortem photographs of Decedent.

Plaintiff responded that they will only seek to introduce two (2) photographs, one in which
Decedent’s body is covered by a screen, and another in which a white cloth is shown in part of the
photograph covering her body. Defendants inspected the photographs and stated that they did not
have any objection to those two (2) photographs being admitted into evidence. Plaintiff agrees
these are the only post-mortem photographs to be offered. Therefore, Defendants’ motion is
GRANTED in part and DENIED in part. Plaintiff may seek to admit the two (2) photographs
shared at the Final Pretrial Conference in to evidence.
VIII.

Defendants motion to prohibit any Golden Rule argument and/or Reptile Theory
questions and argument. (Document No. 42).
Defendants move to prohibit Golden Rule argument and Reptile Theory questions and

argument, arguing with respect to Reptile Theory that the arguments are meant to use a general
sense of promoting safety to evoke an emotional response in the jury. Plaintiff agrees to the motion
with respect to Golden Rule arguments, but objects with respect to Reptile Theory arguments on
the grounds that safety and negligence are too interconnected, and Reptile Theory is not adequately
defined.
Defendants’ motion is GRANTED in part and DEFERRED in part. The Court will not
allow Golden Rule arguments. The Court also discourages Reptile Theory arguments, but will

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handle objections to statements purported to be Reptile Theory arguments as the need arises.
IX.

Plaintiff’s motion to exclude any evidence regarding Decedent’s pre-crash medical
conditions, including pre-crash medical records. (Document No. 43).
The parties agree on this issue, barring unforeseen circumstances at trial. Unless otherwise

allowed by the Court, the parties shall not introduce evidence of Ms. Bazen’s pre-crash medical
condition or pre-crash medical records. Plaintiff’s motion is GRANTED.
X.

Plaintiff’s motion to prohibit introduction of the “Medical Examiner Preliminary
Summary of Circumstances Surrounding Death in the Report of Investigation by
Medical Examiner dated January 22, 2014.” (Document No. 43).
Plaintiff’s move to prohibit introduction of the “Medical Examiner Preliminary Summary

of Circumstances Surrounding Death in the Report of Investigation by Medical Examiner dated
January 22, 2014.” Defendants agree that, barring unforeseen circumstances, they will not seek to
put the disputed statement into evidence. Plaintiff’s motion is GRANTED.
IT IS THEREFORE ORDERED that the parties’ motions in limine (Document Nos. 42,
43) are GRANTED IN PART and DENIED IN PART, as described herein.
SO ORDERED.

Signed: July 29, 2016

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