Zawicki v. Armstrong et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable James M. Munley on 12/8/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOEL THOMAS BARNEY,
individually and d/b/a
BARNEY TRUCKING and
Before the court for disposition are motions in limine filed by the plaintiff
and the defendants. The parties have briefed their respective positions, and the
matter is ripe for disposition.
On October 15, 2014, Plaintiff Leonard Zawicki suffered personal injuries in
an automobile accident. The accident occurred on Interstate 81 in Dunmore,
Pennsylvania. A commercial tractor trailer operated by Defendant Merwin
Armstrong struck plaintiff’s vehicle from behind. Defendant Armstrong worked for
As these brief background facts are generally agreed to by the parties, we do
not provide citations to the record. Citations will be provided below when we
discuss disputed facts.
Defendant Barney Trucking, which is owned and operated by Defendant Joel
Thomas Barney. The company is headquartered in Tully, New York.
Plaintiff alleges that due to the accident he suffered significant injuries to
his neck, back, left arm, right foot and right ankle. Additionally, he sustained a
rotator cuff tear to his left shoulder which required surgery. Plaintiff filed a twocount complaint to recover damages from the defendants. The complaint
includes the following two causes of action: Count I, negligence against Merwin
Armstrong regarding his operation of the vehicle; and Count II, negligent
entrustment against Joel Thomas Barney, individually and d/b/a Barney Trucking
and Barney Trucking. (Doc. 1, Compl.). Plaintiff seeks compensatory damages
as well as punitive damages. (Id.)
At the conclusion of discovery, defendants moved for partial summary
judgment, which we denied. We scheduled a pretrial conference, and in
compliance with the court’s rule, the parties have filed several motions in limine
and a motion to bifurcate. We will address these motions seriatim beginning with
the plaintiff’s motions in limine.
I. Plaintiff’s motions in limine
Plaintiff has filed four motions in limine. He seeks to preclude the following:
the testimony of Robert Grob, D.O.; evidence of medical treatment plaintiff
received prior to September 2, 2016; evidence of prior car accidents; and
medical reports of Defendant Armstrong. The court will address each motion in
A. Dr. Grob (Doc. 26)
Robert Grob, Doctor of Osteopathic Medicine, (hereinafter “Dr. Grob”)
examined plaintiff at the request of plaintiff’s workers’ compensation carrier. He
issued a report regarding plaintiff’s injuries and his ability to return to work.
Defendants intend to call Dr. Grob at trial, and other defense experts in the case
relied on Dr. Grob’s report. Plaintiff seeks to exclude Dr. Grob’s testimony on the
basis that the defendants did not timely reveal that Dr. Grob was to be a witness.
Rule 26 of the Federal Rules of Civil Procedure provides as follows:
“A party must, without awaiting a discovery request, reveal its expert witnesses to
the other parties.” FED. R. CIV. P. 26(a)(2)(A). The parties are also under the
duty to supplement these disclosures. FED. R. CIV. P. 26(e). If a party fails to
make such a disclosure, then that party is not allowed to use that witness at trial
“unless the failure was substantially justified or is harmless.” FED. R. CIV. P.
Plaintiff argues that Dr. Grob should be precluded because defendant did
not disclose their intention to call him as a witness until July 2017, nine months
after discovery closed. Additionally, the doctor’s opinions are inadmissible
hearsay and allowing experts to rely on his opinion would be improperly allowing
in Dr. Grob’s opinion. After a careful review, we disagree with the plaintiff.
Before expert discovery closed, defendants produced Dr. Grob’s reports
and other records - other experts reports- explicitly referencing Dr. Grob.
Defendants turned over this material in in August 2016 and October 2016. (Doc.
55-4, Doc. 55-5). Plaintiff cross-examined Dr. Grob (Doc. 55-10) and plaintiff
discussed Dr. Grob’s findings with his own expert. (Doc. 55-11).
Based upon all of this evidence, we find that defendants did not attempt to
conceal Dr. Grob or act in bad faith. It appears that the defendants inadvertently
failed to disclose the name of Dr. Grob as a potential witness. Plaintiff has
suffered no prejudice from this failure and the failure to disclose was harmless.
Therefore, we will deny the motion in limine and not preclude the defendants
from using Dr. Grob’s testimony at trial.
B. Preclude evidence that any of plaintiff’s medical treatment before
September 2, 2016 is not causally related to the crash (Doc. 28)
The defendants retained two medical examiners who offered opinions on
plaintiff’s injuries. Neither opined that plaintiff’s injuries and medical bills were
not causally related to the crash at hand. Plaintiff’s expert will testify that his
injuries and bills are causally related to the crash. A defense expert examined
plaintiff on September 2, 2016 and found him to be fully recovered as of that
point. Plaintiff argues that defendants do not have any expert testimony
regarding causation of the bills and injury before September 2, 2016, thus no
evidence suggesting otherwise should be admitted.
Defendants argue that reports of their medical experts, Dr. Sexton and Dr.
Cohen, challenged the medical treatment rendered from the date of the accident
to September 2, 2017. Defendants opine that plaintiff’s motion in limine ignores
the conclusions of these witnesses. Without going into great detail, we note that
the defendants’ brief cites to the expert reports and the dates that various doctors
found that the plaintiff’s injuries had healed. (Doc. 54-2, Defs’. Br. at 1-3). Thus,
we find that this issue is not one of admission of evidence, but a matter of
examination of the witnesses, interpretation of the evidence, and argument to the
jury. Accordingly, the motion in limine will be denied.
C. Prior car accidents
Plaintiff had several car accidents prior to the one at issue. However, he
was uninjured in these crashes and received no medical treatment due to them.
In their interrogatories, the defendants asked: “Aside from the accidents or
incidents mentioned above, have you been involved in any other accidents or
incidents in which you sustained damages and/or injuries? If so, state the nature
of the incident, the place and date on which it occurred, the names and
addresses of all persons involved, the injuries and impairments sustained by you
and the Court term and number of any lawsuit commenced as a result thereof.”
(Doc. 56-1 at 2). Plaintiff responded with “none that I recall.” (Id.) At his
deposition, one month later, defendants asked: “Sir, have you ever been
involved in any other motor-vehicle accidents besides this one?” (Id.) To this
question, plaintiff indicated “yes”. (Id.)
Plaintiff argues that none of these other crashes should be admitted
because no evidence links them to plaintiff’s injuries at issue here. Defendant
argues that the evidence should come in to impeach the plaintiff and to establish
that he is not credible. A review of the questions, however, reveals that the
plaintiff’s answers were not necessarily inconsistent.
In the interrogatories, defendants asked plaintiff about other accidents or
incidents in which he sustained damages and/or injuries. At the deposition, they
asked him about any accidents - not only accidents by which he sustained
injuries. Thus, the answers are consistent and are not proper impeachment
evidence. The plaintiff’s motion in limine will be granted, and evidence of prior
accidents is not admissible.
D. Defendant’s medical examination reports of September 11, 2012;
September 11, 2013; and September 23, 2011 (Doc. 32)
During discovery, defendants provided to plaintiff certain medical
examination reports dated September 23, 2011; September 11, 2012; and
September 11, 2013. These reports relate to Defendant Armstrong, the truck
driver. Each report was evidently made up of seven parts, but initially defendants
only turned over to the plaintiff the first three portions of the report. (Doc. 32, ¶
13). Plaintiff’s trucking expert, Kerry Nelson, based his report on these
incomplete medical reports. (Id. ¶ 14). The expert concluded in his report that
defendants violated regulations by not having valid medical certificates for
Armstrong. (Id.) Plaintiff provided a copy of this report to the defendants, and
then defendants provided plaintiff with the remaining sections of the medical
examination reports of relevant dates. (Id. at ¶ 16). Evidently, these remaining
sections indicate that Armstrong did have the required medical certificates. The
discovery deadline was September 28, 2016, and defendant did not produce
them until October 25, 2016. Plaintiff seeks to preclude these reports because
defendant did not timely produce them.
Defendants argue that its failure to disclose this information in a timely
fashion is harmless, and thus, the evidence should not be precluded. We agree
with the defendants.
The law provides that when a party fails to provide evidence in discovery
that should have been produced, then the court may sanction that party by
prohibiting the evidence from trial. FED. R. CIV. P. 37(c)(1). If, however, the
failure to disclose the information is “harmless” then the evidence should be
permitted at trial. Id. To determine if the failure to disclose is harmless or
deserves a sanction, we examine:
(1) the prejudice or surprise of the party against whom the
excluded evidence would have been admitted; (2) the
ability of the party to cure that prejudice; (3) the extent to
which allowing the evidence would disrupt the orderly and
efficient trial of the case or other cases in the court; and
(4) bad faith or willfulness in failing to comply with a court
order or discovery obligation.
Nicholas v. Penn. State Univ., 227 F.3d 133, 148 (3d Cir. 2000).
Here, plaintiff complains that he did not receive complete copies of Medical
Examination Reports, produced over a year ago by the defendant. Defendants
indicate that they did not provide the complete reports due to a copying error.
(Doc. 53, Def.s’ Resp. to Mot. in Lim. ¶ 13). The records were double-sided, but
only one side of them was copied. (Id.) For purposes of this motion, we will
accept the defendants’ explanation.
The remainder of the relevant factors require us to examine the prejudice to
the plaintiff in receiving these documents late. We find that the plaintiff will not
be unduly prejudiced. No trial date has been scheduled and defendants indicate
that they would not object to plaintiff conducting any additional discovery he
deems appropriate for the late-disclosed information. Thus, we will not preclude
this information. It has been turned over to the plaintiff well in advance of the trial
and its late production will not cause any undue prejudice.
II. Defendants’ motions in limine
We now turn our attention to the seven motions in limine filed by the
defendants. We will address them in the order that they were filed.
A. Defendant Armstrong’s subsequent accidents (Doc. 34)
The accident at issue in the instant case occurred on October 15, 2014.
Defendant Armstrong, the truck driver, had a subsequent accident with his truck
nearly two years later on July 12, 2016. Plaintiff seeks to present this evidence
at trial, but defendants deem the evidence irrelevant and move for its preclusion.
Federal law provides that relevant evidence is generally admissible. FED.
R. EVID. 402. “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
FED. R. EVID. 401. The law provides that relevant evidence may be excluded “if
its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” FED. R.
Defendants argue that this evidence is irrelevant. The issues in this case
are negligence at the time of the accident and negligent entrustment at the time
of the accident. Accidents that occurred after the incident at issue have no
relevance to these issues.
Plaintiff argues the evidence is relevant – as it goes to whether the
defendant trucking company had driver monitoring or training and driver
supervision. The company only disciplined the defendant driver after he drove
his truck off the road and totaled it, which occurred after the instant accident.
This second accident demonstrates that no system was in place at the time of
the subject accident to monitor, train or supervise the drivers.
After a careful review, we agree with the defendants. The proper focus in
this case is what happened at the time of the accident, and the procedures and
supervision that the trucking company had in place at that time. The fact that the
defendant truck driver had another accident many months later is not relevant to
the accident at issue. The defendants’ motion in limine will be granted.
B. Kerry Nelson and Defendant Armstrong’s cellular phone usage
Plaintiff has retained an expert witness, Kerry Nelson, to testify regarding
Defendant Armstrong’s cellular phone usage before the accident. Defendants
move to preclude this witness and testimony on the basis that its probative value
is substantially outweighed by prejudice and misleading the jury under Rule 403
of the Federal Rules of Evidence.
Defendants argue that Defendant Armstrong’s deposition testimony reveals
that he was using a hands free device at the time of the accident and the
regulations do not prohibit the use of such devices. Plaintiff argues that the
evidence is relevant as to the defendant’s wanton/reckless behavior.
We find that whether the defendant used a cellular telephone immediately
prior to/during the accident is a relevant factor for the jury to consider amongst all
of the other facts surrounding the accident. The evidence’s probative value is not
substantially outweighed by prejudice. The evidence thus will be admitted.
C. Plaintiff’s Expert Kerry Nelson’s opinion that Defendant Armstrong
was not physically qualified to drive a commercial motor vehicle
Plaintiff’s trucking expert, Kerry Nelson, authored a report in which he
opines that Defendant Armstrong did not have an appropriate medical examiner’s
certificate at the time of the accident as required by federal regulations.
Defendant points out, however, that Nelson did not have all the pages of various
medical examinations of the defendant driver. Had he had these documents, his
opinion would have been different. Thus, his opinion should be precluded.
Plaintiff argues that regulations require commercial vehicle operators to be
medically examined and obtain a medical examiner’s certificate. Plaintiff’s
expert indicates that the driver did not have one of these certificates and thus
was not qualified to drive the truck. Defendants have never presented a valid
medical certificate for the time in question, thus, the expert should be able to
We find that the issue raised by the defendants does not rise to the level of
preclusion. The defendants will be able to address the documents that Nelson
had or did not have, at the time of the trial. This issue then becomes a matter of
cross-examination and argument. Accordingly, this motion in limine will be
D. Plaintiff’s Expert Michael Jaloweic, D.O. and plaintiff’s ability to
return to work
Plaintiff intends to call Dr. Jalowiec, who specializes in internal medicine, to
testify that plaintiff’s injuries prevented him for returning to his job duties.
Defendants challenge these conclusions because the doctor offers medical
opinions in the areas of orthopedics and neurology, fields in which he does not
Plaintiff argues that Dr. Jalowiec is plaintiff’s primary care/treating physician
and should be allowed to provide his opinion as to whether plaintiff is able or
unable to work due to his injuries. We agree with the plaintiff. As plaintiff’s
treating physician he will be able to provide important evidence regarding the
plaintiff’s injuries and limitations. His conclusions can be challenged by the
defendant through cross examination, argument to the jury and presentation of
their own medical witnesses.
E. Punitive damages
Plaintiff’s complaint seeks punitive damages against the defendants.
Defendants argue that punitive damages are not appropriate in this case
because nothing in the record indicates that they acted recklessly indifferent to
the interests of others. According to the defendants, the record indicates that the
defendant driver was not speeding, had no notice of change in the flow of traffic,
and appropriately applied his brakes when he came to the crest of the hill and
noticed traffic was stopped. Moreover, no evidence indicates that the defendant
truck company let him operate his vehicle in a grossly negligent or recklessly
Plaintiff points out, however, that we decided this issue in plaintiff’s favor at
the summary judgment stage and nothing has since changed. We agree with
the plaintiff. We fully addressed this issue at the summary judgment stage and
have no reason at this point to change the conclusion we reached. (Doc. 23,
Memo. of May 1, 2017 at 6-7, 11-12). Accordingly, the defendants’ motion in
limine on punitive damages will be denied.
F. Defendant’s post-accident employment status
Defendant Armstrong indicated at his deposition that after the accident, the
only disciplinary action he received from his employer was a three-day
suspension and the loss of a safety bonus. After the suspension, he evidently
returned to work for Defendant Barney Trucking.
Defendant moves to preclude Defendant Armstrong’s employment status
after the accident took place, which is that he was only suspended for three days
and then returned to work. According to the defendant, this evidence is irrelevant
to the issues involved in this case. The important information, that Defendant
Armstrong was employed by, and driving in the course and scope of his
employment with, Defendant Barney Trucking at the time of the accident has
been admitted. It would be a waste of time to present evidence of his status with
Barney Trucking after the accident.
Plaintiff’s position is that his trucking expert opines that at the time of the
accident, the defendant trucking company provided absolutely no driver
monitoring or training and this lack of supervision is evidenced by multiple
accidents involving company trucks without any consequences to the drivers.
This conduct constitutes gross negligence and wanton misconduct. The expert
uses the fact that the defendant trucking company failed to provide any
meaningful discipline to Defendant Armstrong after the crash to bolster and
support his conclusions. We agree with the defendant that this evidence is not
relevant. The driver’s employment status post-accident does not make it more
likely or less likely that he was negligent on the day in question. Additionally, it
does not make it more likely or less likely that the trucking company negligently
entrusted the truck to him on the day in question. Accordingly, this motion in
limine will be granted.
G. April 4, 2017 letter from Stephen Dutka
Defendants next assert that plaintiff intends to enter into evidence at trial a
letter dated April 4, 2017 from Stephen Dutka which declines to extend
employment to plaintiff due to plaintiff’s medication and medical injuries.
Defendant seeks to preclude this letter because: 1) it is late, discovery closed in
September 2016 and the letter was not revealed until May 2017; and 2) the letter
is inadmissible hearsay.
Plaintiff clarifies in his brief, however, that he does not seek to use the letter
at trial. (Doc. 48, Pl.’s Brief). Accordingly, this motion in limine will be granted
III. Defendants’ motion to bifurcate
In addition to these motions in limine, the defendants filed a motion to
bifurcate the trial. Rule 42 of the Federal Rules of Civil Procedure provides for
bifurcated trials as follows: “For convenience, to avoid prejudice, or to expedite
and economize, the court may order a separate trial of one or more separate
issues, claims, crossclaims, counterclaims, or third-party claims.” FED. R. CIV. P.
Every civil trial contains questions of liability and damages, and the
decision whether to bifurcate the trial must be based on the particular facts of the
case. Lis v. Robert Packer Hosp., 579 F.2d 819, 824 (3d Cir. 1978). The
decision to bifurcate is left in the trial court's discretion and must be decided on a
case-by-case basis. Idzojtic v. Pa. R.R. Co., 456 F.2d 1228, 1230 (3d Cir. 1972).
In exercising such discretion, the court “must weigh the various considerations of
convenience, prejudice to the parties, expedition and economy of resources.”
Emerick v. U.S. Suzuku Motor Corp., 750 F.2d 19, 22 (3d Cir.1984). The moving
party bears the burden of establishing that bifurcation is appropriate. Innovative
Office Prods., Inc. v. Spaceco, Inc., No. 50–04037, 2006 WL 1340865 at *1 (E.D.
Pa. May 15, 2006) (citing Spectra–Physics Lasers, Inc. v. Uniphase Corp., 144
F.R.D. 99, 101 (N.D. Cal.1992).
Defendants argue that bifurcation is appropriate here. Defendants’ position
is that the scope of plaintiff’s alleged injuries and the possibility of punitive
damages could create prejudice against the defendants. For example, evidence
of defendant’s net worth is relevant to punitive damages, but not as to liability.
We find that bifurcation is not appropriate here. Defendants point to no particular
issues that are not present in the typical case. The court is confident that it can,
with the assistance of counsel, construct a jury charge and a verdict slip that will
prevent prejudice to defendants. We presume that a jury follows instructions,
even in difficult cases, and finds that proper instructions will prevent any
prejudicial confusion. See, e.g., Thaubalt v. Chait, 541 F.3d 512, 530-31 (3d Cir.
2008) (upholding the decision not to bifurcate the trial in part because the court's
jury instructions prevented prejudice against the defendant). Accordingly, the
defendants’ motion to bifurcate will be denied.
Based upon the above reasoning, the plaintiff’s motion in limine seeking to
preclude evidence of plaintiff’s prior car accidents will be granted. The remainder
of the plaintiff’s motions in limine will be denied. The defendants’ motions in
limine seeking to preclude a subsequent accident involving Defendant Armstrong
and Defendant Armstrong’s employment status subsequent to the accident will
be granted. The defendants’ motion in limine regarding the April 4, 2017 letter
from Stephen Dutka will be granted as plaintiff does not seek to admit the letter.
The remainder of the defendants’ motions in limine will be denied. An
appropriate order follows.
Date: Dec. 8, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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