Decker v. I.E. Miller Services, Inc. et al

Filing 132

ORDER by Magistrate Judge Charles S. Miller, Jr. granting in part and denying in part 105 Motion in Limine. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Scot Decker,
Plaintiff,
v.
I.E. Miller Services, Inc., n/k/a
Hemphill Trucking, Inc.;
TFI Holdings, USA, Inc.;
TransForce, Inc.;
TForce Energy Services, Inc. d/b/a
Specialized Crane & Rigging
Complete Production Services, Inc.; and
Superior Energy Services, Inc.,
Defendants.

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ORDER RE PLAINTIFF’S
MOTIONS IN LIMINE

Case No. 4:14-cv-00088

Before the court are a number of motions in limine brought by plaintiff at Doc. No. 105. A
hearing was held on the motions on January 29, 2018. The following are the court’s rulings to the
extent the court is prepared to make them at this time:
1.

Motion to exclude evidence of other well site accidents involving Cyclone Drilling
Inc. or Cyclone Rig 20.

2.

Motion to exclude evidence other lawsuits in which Cyclone Drilling or any of the
parties to this case may be involved.

Defendants seek to introduce evidence of accidents that occurred on Cyclone Rig 20 prior
to the accident in this case and at least one subsequent accident. After careful review, the court
concludes that the accidents referenced in the briefing and during argument on the motions in limine
are being offered simply to demonstrate a propensity on the part of Cyclone Drilling, Inc.
(“Cyclone”) to engage in unsafe conduct in order to support the ultimate conclusions that Cyclone
likely conducted its operations in an unsafe manner at the time of the accident and that this was a
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proximate cause of the accident. At bottom, this is character evidence that is inadmissible under
subsection (a) of Fed. R. Evid. 404 unless there is basis for its admission under subsection (b)(2).
See First Sec. Bank v. Union Pacific R.R. Co., 152 F.3d 877, 879-80 (8th Cir. 1998); Shelley v.
White, No. 1:09-cv-00662, 2010 WL 1904963, at *2 (M.D. Ala. May 12, 2010); cf. State Farm Mut.
Auto Ins. Co. v. Accident Victims Home Health Care Serv. Inc., 467 F. App'x 368, 371-74 (6th Cir.
2012); And, in this case, defendants have failed to offer what the court would consider to be a
plausible exception, given the particular facts and circumstances of this case. See id.; see also
Underwriters at Lloyd’s London v. OSCA, Inc., Nos. 03-20398, 03-20817, 03-21021, 2006 WL
941794, at **7-8 (5th Cir. April 12, 2006) (concluding that evidence of a prior rig accident was
admissible but only because of the “apparent similarities between the two incidents, and the
similarity in the causes attributed to the two”). Notably, the product liability cases cited by
defendant are inapposite.
Morever, even if there existed a plausible basis for the admission of the “other accident”
evidence under Rule 404(b)(2), whatever probative value it might have (which is slight, at best,
given the dissimilarity between the other accidents and the one at issue in this case) is outweighed
by one or more of the Fed. R. Evid. 403 factors. These include the likelihood the evidence: (1) will
mislead the jury by diverting its focus from the unique circumstances of this case; (2) result in unfair
prejudice to the plaintiff as a consequence; and (3) likely result in a waste of time because of the
probability of having to conduct mini-trials over the other accidents with respect to which plaintiff
will be particularly disadvantaged due to a lack of access to relevant evidence bearing upon those
accidents. In reaching these conclusions, the court has relied upon the fact that the other accidents
involved substantially different circumstances and, for the most part, different personnel. Further,

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it appears all of the other accidents occurred during Cyclone’s drilling operations in which it had,
more or less, complete control over the operations occurring on the rig as opposed to here, where
control over the “rigging up” activity as part of the rig move appears to have been shared between
Cyclone and I.E. Miller Services, Inc. (“I.E. Miller”).
For these reasons, Motions in Limine Nos. 1 & 2 are GRANTED and neither plaintiff nor
defendants may mention or offer evidence of (1) any other well site accidents involving Cyclone
Drilling Inc. or Cyclone Rig 20, or (2) any other lawsuits in which Cyclone Drilling or any of the
parties to this case may be involved.
3.

Motion to exclude proof or argument concerning plaintiff’s insurance or workers’
compensation benefits.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402 and 403 grounds to
the extent that defendants may not mention or offer evidence of any insurance coverage that plaintiff
may have or the fact that he has or is currently receiving workers’ compensation benefits without
first seeking the approval of the court outside the presence of the jury.
4.

Motion to exclude proof or argument accusing plaintiff of any criminal activity.

This motion is GRANTED on Fed. R. Evid. 402 and 403 grounds to the extent that
defendants may not mention or argue that any particular act of the plaintiff amounts to criminal
conduct without first seeking the approval of the court outside the presence of the jury. This is not
intended to prohibit, however, defendants from mentioning or offering evidence of plaintiff’s history
of drug use as addressed in more detail later. This includes plaintiff’s use of drugs that the jury
likely will otherwise understand was unlawful.
5.

Motion to exclude evidence that Cyclone was an unsafe or cheap drilling company
or that Cyclone had 200-300 employees working on Rig 20 during the accident year.

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This motion is GRANTED on Fed. R. Evid. 402, 403, and 404(a) grounds to the extent that
defendants may not mention or offer evidence of Cyclone generally being an unsafe or cheap drilling
company or that it had 200-300 employees working on Rig 20 during the accident year without first
seeking the approval of the court outside the presence of the jury. The reasons are those expressed
by the court with respect to the grant of Motions in Limine Nos. 1 & 2. Also, with respect to the
number of employees, the suggestion here is that it was untrained employees that led to the accident
in this case. However, aside from plaintiff, it appears that all of the other Cyclone employees who
may have had anything to do with this accident (and the jury might very well conclude there were
none other than the plaintiff) were not new employees. This being the case, extended evidence and
argument over how many employees are required to operate a rig on a 24/7 basis with allowance for
shifts off and whether the reasons for the purported churn (1) has little probative value in terms of
this case, (2) will likely lead to jury confusion, and (3) will be time wasting.
The court’s ruling does not, however, prohibit defendants from offering evidence from a
qualified expert that any act or practice engaged in by Cyclone or any of its employees on the day
of the accident was unsafe or contrary to good industry practice. Nor does it prohibit defendants
from offering evidence with respect to plaintiff’s training, or lack of it, including any lack of
supervision on the day of the accident that good industry practice may have required.
6.

Motion to exclude evidence that plaintiff has received, has been entitled to receive,
will receive, or will become entitled to receive, benefits of any kind or character from
a collateral source, including, but not limited to, the following:
A. Benefits from collateral insurance coverage;
B. Compensation for time not actually worked;
C. Social security or pensions;
D. Medicare or Medicaid benefits;
E. Workers’ Compensation benefits.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402 and 403 grounds to
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the extent that defendants may not mention or offer evidence of any of the foregoing listed collateral
benefits without first seeking the approval of the court outside the presence of the jury.
7.

Motion to exclude any proof or argument that an award to the Plaintiff will not be
subject to taxation.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402 and 403 grounds.
8.

Motion to exclude any argument or proof Dr. Chaput or Dr. Kabins were sued for
medical malpractice.

This motion is GRANTED to the extent that defendants may not mention or offer evidence
of any suits or actions brought against Dr. Chaput or Dr. Kabins for medical malpractice without
first seeking the approval of the court outside the presence of the jury. The court has not yet had the
opportunity to fully consider the anticipated testimony of these witnesses or claimed acts of
malpractice. Generally speaking, however, the court has the same concerns about this evidence as
the other character evidence it has already addressed.
9.

Motion to exclude any argument, proof, or reference to Scot Decker’s drug use.

This motion is DENIED to the extent that defendants may offer evidence of plaintiff’s drug
use over time as it is relevant to the issue of damages. The motion is GRANTED to the extent that
no party may make mention or introduce evidence of any passed or failed drug tests unless the
matter is first raised with the court outside of the presence of the jury This includes a failed “hair
follicle” drug test prior to his being employed by Cyclone as well as any contention that plaintiff
should not have been employed by Cyclone as a consequence of having purportedly failed the drug
test. The court’s concern here is the prejudicial impact of the evidence unless it directly bears upon
whether plaintiff was under the influence of drugs at that the time of the accident.
10.

Motion to exclude any argument, proof or reference to any evidence or item not
produced in discovery.
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This motion is DENIED on the grounds that it is too vague and general to be a proper
subject of a motion in limine.
11.

Motion to exclude settlement offers.

This is motion, which is unopposed, is GRANTED on Fed. R. Evid. 402-403, 408 grounds.
Defendant shall not mention, or offer evidence of, any settlement offers made be either party.
12.

Motion to exclude reference to Attorney Client/Attorney Work Product or Privileged
Information and also to exclude from evidence any suggestion or inference that
plaintiff changed his story after consulting with his attorney.

This motion is GRANTED on Rule 403 grounds to the extent that defendants shall not
mention or raise any inference that plaintiff changed his account of what happened at the time of the
accident as a result of his having consulted with plaintiff’s counsel. This does not, however,
prohibit defendants from offering evidence with respect to when plaintiff first specifically stated it
was I.E. Miller’s truck pusher who instructed him to enter Rig 20's substructure prior to the accident,
including noting or referencing the timing of that account relative to the filing of this action. To the
extent that plaintiff seeks to exclude all evidence pertaining to attorney client privileged information
or attorney work product, the motion is DENIED on the grounds that it is too vague and general to
be the proper subject of a motion in limine.
13.

Motion to exclude any evidence, statement, or probable testimony of a witness who
is deceased, unable, or not available for testimony.

The motion is DENIED on the grounds that it is too vague and general to be the proper
subject of a motion in limine.
14.

Motion to exclude any mention or evidence of any adverse effect of a judgment on
defendants.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402-403 grounds.
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Defendants shall not mention, or offer evidence of, any adverse effect of a judgment on defendants.
15.

Motion to exclude any mention of or evidence that plaintiff has had any prior or
subsequent claims, suits or settlements, or the amounts thereof.

This motion is GRANTED on Fed. R. Evid. 402 and 403 grounds to the extent that
defendants may not mention or offer evidence of plaintiff having had any prior or subsequent claims,
suits, or settlements, or the amounts thereof, without first seeking the approval of the court outside
the presence of the jury.
16.

Motion to exclude any opinion of an expert witness that is not supported by
admissible facts.

The motion is DENIED on the grounds that it is too vague and general to be the proper
subject of a motion in limine.
17.

Motion to exclude any evidence, statement, or argument related to attorneys’ fees,
including that plaintiff's attorney has a contingency fee in the suit.

This motion, which is unopposed, is GRANTED on Fed. R. Evid. 402 and 403 grounds.
Defendants shall not make any mention or reference to attorneys’ fees, including that plaintiff may
have a contingency fee arrangement with his attorneys.
18.

Motion to exclude any evidence or questions seeking to show that the operator
Murex or consultant Decca were negligent or responsible for the accident by their
failure to oversee the operation that was going on at the time of the accident.

This motion is GRANTED to the extent that defendants may not make mention or offer
evidence of any conduct on the part of either Murex Petroleum Corporation (the well owner) or its
consultant Decca (the company man) as contributing to the cause of the accident, including any
responsibility for overseeing what was taking place at the time of the accident, without first seeking
the approval of the court outside the presence of the jury. The court will take this matter up again
at a later time.
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That being said, the court has not seen sufficient evidence at this point that would support
a conclusion that Murex or its consultant owed a duty to plaintiff as a matter of law. And, if that
remains the case, then any evidence or testimony addressing their conduct would be irrelevant. See,
e.g., Kronberg v. Oasis Petroleum North America LLC, 831 F.3d 1043, 1047-51 (8th Cir. 2016)
(discussing what is required under North Dakota law for a well owner to owe a duty to an employee
of an independent contractor); Kristianson v. Flying J Oil & Gas, Inc., 553 N.W.2d 186 (N.D. 1996)
(same); see also Wallace v. Oceaneering Int'l, 727 F.2d 427, 436-37 (5th Cir. ) (well owner and
company man owed no duty to the employee of an independent contractor injured during completion
of a rig move); Maxwell v. Nabors Drilling U.S.A, Inc., No. Civ. A-98-1339, 1999 WL 460777, at
**5-9 (E.D. La June 29, 1999) (no liability as a matter of law of well owner and its company man
to an injured employee of an independent contractor injured during a crane lift); cf. Texas Eastern
Transmission Corp. v. McMoRan Offshore Exploration Co., 877 F.2d 1214, 1220-22 (5th Cir. 1989
(well owner held liable for a percentage of fault because its company man actively intervened in a
rig move when otherwise the well owner did not owe a duty).
19.

Motion to exclude argument or evidence that Cyclone Drilling was responsible for
overseeing or directing their employees on location, including Plaintiff Scott Decker.

This motion is DENIED.
20.

Motion to exclude any liability expert opinion not based on reasonable engineering
principles or witness testimony.

This motion is DENIED on the grounds that it is too vague and general to be the proper
subject of a motion in limine.
21.

Motion to exclude any mention or evidence of Cyclone’s remedial measures
regarding safety, hiring, or supervision subsequent to June 28, 2011.

This motion is GRANTED on Fed. R. Evid. 402 and 407 grounds to the extent that
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defendants may not make mention, or offer evidence of, any measures taken by Cyclone regarding
safety, hiring, or supervision subsequent to June 28, 2011, without first seeking the approval of the
court outside the presence of the jury.
22.

Motion to exclude evidence that Cyclone Drilling should have terminated Decker for
failed preemployment drug screening hair follicle test.

23.

Evidence that Heartview Foundation should not have provided Cyclone Drilling with
Decker’s negative after-care drug testing results.

Motions Nos. 22 & 23 are GRANTED on Fed. R. Evid. 402 and 403 grounds to the extent
that defendants may not make mention or offer evidence that Decker should have been terminated
for having failed a preemployment hair follicle test, or that Heartview Foundation should not have
provided Cyclone Drilling with his negative after-care drug tests, without seeking the approval of
the court outside the presence of the jury. However, at this point, the court cannot presently envision
any situation in which it would allow evidence of or permit mention of the evidence that is the
subject to Motion in Limine No. 22.
24.

Motion to exclude edited surveillance video of Decker.

Plaintiff indicated during the hearing on the motions in limine that he was withdrawing this
motion. Hence, it will be DENIED AS BEING MOOT.
25.

Motion to exclude private investigator’s commentary regarding his surveillance of
Decker.

This motion is GRANTED to the extent that any surveillance video that will be offered
contains audio of the private investigator’s contemporaneous remarks. That would be inadmissable
hearsay. The motion is DENIED with respect to any testimony that may be offered by the private
investigator as to what he observed apart from the video. He may also be able to testify to some
conclusions that are not based scientific, technical, other specialized knowledge as permitted by Fed
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R. Evid 701.
26.

Motion to exclude evidence of whether Decker had given his son a prescription
painkiller for a headache.

This motion is GRANTED on Fed R. Evid. 402 & 403 grounds. Defendant may not mention
or offer any evidence that Decker gave his son prescription medication for any reason.
27.

Motion to exclude Dr. Kabin’s 2009 criminal conviction for misprision of a felony.

This motion is DENIED to the extent that, if Dr. Kabin testifies, defendants are entitled to
use the 2009 criminal conviction for misprision of felony for purposes of impeachment pursuant to
Fed. R. Evid. 609(a)(2) since it is clear from his plea agreement that the offense conduct involved
a dishonest act and the conviction is less than ten years old. Under Fed. R. Evid. 609(a)(2), the court
has no discretion in this matter, even in a civil case, so long as the offense or the underlying conduct
meets the criteria set forth in subsection (a)(2) and the conviction is less than ten years old. This is
clear from the text of Rule 609(a) as well as the Advisory Committee Notes. The motion is
GRANTED to the extent that: (1) the criminal conviction and the offense conduct may not be used
for any other purpose without first raising the matter with the court out of the presence of the jury;
and (2) in using the conviction for impeachment, defendants may make reference only to the fact
of conviction with, perhaps, some court-approved description of the offense other than misprision
of a felony (which the jury is may not understand). Defendants may not make mention of the facts
or the circumstances leading up to the conviction without first having raised the matter with the
court out of the presence of the jury.
28. Motion to exclude expert opinion testimony from a lay witness.
This motion is DENIED because it is too vague to be the proper subject of a motion in
limine. To the extent plaintiff makes arguments as to particular witnesses based on deposition
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testimony, the court will make appropriate rulings if the testimony is offered either by way of
deposition or trial testimony. The court does not have the time to make advance rulings based on
every deposition question that is of concern to the plaintiff because some of the questions may have
been posited for discovery purposes or to lock down the position of the witness for possible
impeachment without any intent of offering the evidence at trial. That being said, the court will not
allow lay witnesses to guess about what might have happened or offer opinions beyond what may
be permitted by Fed. R. Evid. 701.
IT IS SO ORDERED.
Dated this 2nd day of February, 2018.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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