Fielder v. R.V. Coleman Trucking, Inc. et al
Filing
233
MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE OF PLAINTIFF AND DEFENDANTS. It is ORDERED re 144 Motion in Limine is DENIED; 145 Motion in Limine deferred; 146 Motion in Limine is DEFFERED ; 147 Motion in Limine is DENIED AS M OOT; 148 Motion in Limine IS DEFERRED; 150 Motion in Limine is DENIED; 152 Motion in Limine is DEFFERED; 154 Motion in Limine is DEFFERED; 155 Motion in Limine is DENIED; 156 Motion in Limine is DENIED. Signed by Senior Judge Frederick P. Stamp, Jr on 1/29/2017 (Copy counsel of record). (jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JASON FIELDER,
Plaintiff,
v.
Civil Action No. 1:16CV23
(STAMP)
R.V. COLEMAN TRUCKING, INC.,
ARKOS FIELD SERVICES, LP,
EQT CORPORATION,
EQUITRANS, LP d/b/a EQT MIDSTREAM
and EQT PRODUCTION COMPANY,
Defendants,
and
R.V. COLEMAN TRUCKING, INC.,
Third-Party Plaintiff,
v.
MEC CONSTRUCTION, LLC,
Third-Party Defendant.
MEMORANDUM OPINION AND ORDER
REGARDING MOTIONS IN LIMINE OF PLAINTIFF AND DEFENDANTS
Pending before this Court are motions in limine filed by the
plaintiff and the defendants.
The trial of this civil action1 is
now scheduled to commence on March 20, 2018.2
Now before the Court
1
For a more thorough background of this civil action, see ECF
No. 207.
2
This Court entered an order granting defendant and
third-party plaintiff, R.V. Coleman Trucking, Inc.’s emergency
motion to continue trial (ECF No. 209) in the above civil action
based upon the illness of the father of lead counsel for R.V.
Coleman. ECF No. 210.
are ten pending motions in limine which have been fully briefed:
(1) Motion in Limine to Limit Testimony of Defendant R.V. Coleman
Trucking, Inc.’s Expert Stanley Pulz filed by Jason Fielder (ECF
No. 144); (2) MEC Construction, LLC’s joinder in Motion in Limine
to Limit Testimony of Defendant R.V. Coleman Trucking, Inc.’s
Expert Stanley Pulz filed by Jason Fielder (ECF No. 156); (3)
Motion in Limine to Exclude Evidence of Prior Criminal Conviction
filed by Jason Fielder (ECF No. 145); (4) Motion in Limine to
Exclude Reference to Certain Evidence filed by Jason Fielder (ECF
No. 146); (5) Motion in Limine Regarding Plaintiff’s Claim for
Damages for Loss of Household Services filed by R.V. Coleman
Trucking, Inc. (ECF No. 147); (6) Motion in Limine Regarding
Testimony of Cathy S. Gross and Plaintiff’s Claim for Lost Wages
and/or Earning Capacity filed by R.V. Coleman Trucking, Inc. (ECF
No. 148; (7) Motion in Limine to Preclude Solicitation of Opinions
Outside of Expertise of Expert Witnesses and/or Beyond Scope of
Expert Reports filed by R.V. Coleman Trucking, Inc. (ECF No. 150);
(8)
Motion
in
Limine
to
Exclude
Evidence
of
Inapplicable
Regulations and Standards filed by MEC Construction, LLC (ECF No.
152);3 (9) Motion in Limine to Exclude Evidence of Subsequent
3
This Court entered an order (ECF No. 192) following the
pretrial conference in this civil action, directing the parties to
submit supplemental briefs, in part, as to the applicability of
regulations in the instant matter as a question of law for the
Court to decide or as a question of fact to be submitted to the
jury by and through competing expert testimony and jury
instruction, and the issues arising from worker’s compensation, the
2
Remedial Measures filed by MEC Construction, LLC (ECF No. 154);4
and (10) Motion in Limine to Exclude Evidence of Per Diem Payments
filed by MEC Construction, LLC (ECF No. 155).
This Court has reviewed the fully briefed motions and the
memoranda and exhibits submitted by the parties.
This Court will
address those motions in limine and set forth its findings, as
discussed below.
Plaintiff’s Motions in Limine
1.
Motion in Limine to Limit Testimony of Defendant R.V. Coleman
Trucking, Inc.’s Expert Stanley Pulz filed by Jason Fielder (ECF
No. 144) and joined in by MEC Construction, LLC (ECF No. 156) is
denied.
Plaintiff Jason Fielder filed a motion in limine to limit the
testimony
of
defendant
R.V.
Coleman
Trucking,
Inc.’s
(“R.V.
Coleman”) Expert Stanley Pulz (ECF No. 144), which was joined by
defendant MEC Construction (“MEC”) (ECF No. 156).
Plaintiff moves
to exclude certain testimony of defendant R.V. Coleman Trucking,
Inc.’s proffered expert, Stanley Pulz (“Pulz”), pursuant to Rules
104(a) and 702 of the Federal Rules of Evidence. Specifically, the
plaintiff
seeks
the
Court’s
entry
of
an
order
limiting
the
collateral source rule and the defendant’s entitlement to offset,
and how this is to be handled by the Court in a civil action such
as this which involves both negligence claims and a deliberate
intent claim, as well as any cautionary or limiting instruction.
4
See supra note 3.
3
testimony
of
Stanley
Pulz
on
matters
upon
which
“he
is
not
qualified to testify because they are outside his area of expertise
and because his testimony regarding the Federal Motor Carrier
Safety Regulations and load securement in the trucking industry are
unreliable, inconsistent, and based entirely on the ipse dixit of
the proffered expert.”
ECF No. 144.
R.V. Coleman filed a response in opposition (ECF No. 163) and
argues that its expert, Stanley Pulz, should be permitted to offer
opinions on whether R.V. Coleman’s compliance or non-compliance
with the FMCSRs caused plaintiff’s injuries, and whether the method
used by R.V. Coleman to secure the pipe in transit complied with
the FMCSRs.
Defendant argues that Pulz’s opinions are admissible
under
702
Rule
because
he
possesses
specialized
knowledge,
experience, training or education which will assist the jury in
determining whether R.V. Coleman’s compliance or non-compliance
with the FMCSRs caused or contributed to plaintiff’s injuries.
Rule 702 permits a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education” to provide an
opinion and testimony if: (1) “the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;” (2) “the
testimony is based on sufficient facts or data;” (3) the testimony
is the product of reliable principles and methods;” and (4) “the
expert has reliably applied the principles and methods to the facts
4
of the case.”
Fed. R. Evid. 702.
The court “must ensure that any
and all [expert] testimony or evidence admitted is not only
relevant, but reliable.”
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 589 (1993).
To assess reliability of expert
testimony, the court may consider:
(1) whether the particular scientific theory “can be (and
has been) tested;” (2) whether the theory “has been
subjected to peer review and publication;” (3) the “known
or potential rate of error;” (4) the “existence and
maintenance of standards controlling the technique’s
operation;” and (5) whether the technique has achieved
“general acceptance” in the relevant scientific or expert
community.
United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (citing
Daubert, 509 U.S. at 593-94).
This is a flexible analysis because
“[r]ather than providing a definitive or exhaustive list, [these
factors] merely illustrate[] the types of factors that will ‘bear
on the inquiry.’”
additional
Id. (citing Daubert, 509 U.S. at 593-94).
consideration
under
Rule
702
is
“whether
An
expert
testimony proffered in the case is sufficiently tied to the facts
of the case that it will aid the jury in resolving the factual
dispute.”
Daubert, 509 U.S. at 591 (quoting United States v.
Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).
Stanley
Pulz,
M.A.,
C.S.P.,
P.E.
is
a
Certified
Safety
Professional and registered Professional Engineer in safety.
Mr.
Pulz has “vast experience in safety engineering over a career that
spans more than forty (40) years.”
ECF No. 163 at 2.
Mr. Pulz has
previously been recognized as an expert in safety matters by other
5
courts, “including safety standards in the trucking industry under
the FMCSRs.”
Id. at 3.
This Court finds that the motion in limine
to limit the testimony of defendant R.V. Coleman’s expert Stanley
Pulz must be denied as his opinions are admissible under Rule 702
because Mr. Pulz possesses specialized knowledge, experience,
training or education which will assist the jury in determining a
fact in issue.
Additionally, this Court intends to give detailed
instructions as to how the jury is to consider expert testimony,
allowing the jury to decide what weight to give each expert’s
testimony.
Accordingly, the motion in limine to limit the testimony of
defendant R.V. Coleman Trucking, Inc.’s expert Stanley Pulz filed
by Jason Fielder (ECF No. 144) and joined in by MEC Construction,
LLC (ECF No. 156) is DENIED.
2.
Motion
in
Limine
to
Exclude
Evidence
of
Prior Criminal
Conviction filed by Jason Fielder (ECF No. 145) is deferred.
Plaintiff Jason Fielder filed a motion in limine to exclude
evidence of prior criminal conviction.
ECF No. 145.
Plaintiff
states that “[i]t is anticipated that the defendants will attempt
to attack Mr. Fielder’s credibility by offering evidence of a 2008
criminal conviction for delivery of a controlled substance.”
Id.
Plaintiff argues that “this court should exclude any mention or
reference to Mr. Fielder’s prior conviction as it is inadmissible
in accordance with Rule 609 of the Federal Rules of Evidence.” Id.
6
Additionally, plaintiff asserts that defendants “cannot meet the
burden imposed upon them, as required by the Federal Rules of
Evidence,
to
establish
that
Mr.
Fielder’s
prior
criminal
conviction, or any other crimes, wrongs, or other acts, are
admissible at trial.”
Id.
R.V. Coleman filed a response in opposition (ECF No. 161) and
argues that it should be permitted to introduce evidence of
plaintiff, Jason Fielder’s, prior felony convictions to impeach
plaintiff’s credibility under Rule 609 of the Federal Rules of
Evidence and to rebut plaintiff’s claims for future lost wages, and
impairment of earning capacity, as the same relates to plaintiff’s
employability.
ECF No. 161.
MEC filed a response in opposition (ECF No. 164) and argues
that plaintiff’s convictions are admissible due to their effect on
his
ability
credibility.
Arkos
to
obtain
employment
and
in
relation
to
his
ECF No. 164.
Field
Services,
LP
(“Arkos”)
filed
a
response
in
opposition (ECF No. 165) and argues that plaintiff has opened the
door to his prior criminal convictions and drug use history being
introduced as evidence at trial by asserting claims for future lost
wages and diminished earning capacity as both are probative and
relevant to his future employability and earning capacity. ECF No.
165.
Arkos states that Federal Rule of Evidence 401 provides
evidence is relevant if “it has any tendency to make a fact more or
7
less probable than it would be without the evidence” and “the fact
is on consequence in determining the action”.
Defendant Arkos
argues that plaintiff ignores the fact that his retained experts
testified that plaintiff’s drug use and criminal history are
relevant to his future employability and earnings potential and are
likely to be considered by prospective employers.
ECF No. 165.
Defendant asserts that plaintiff’s opioid addiction and subutex
treatment
precluded
him
from
treating
with
traditional
pain
medications which would have controlled his pain better.
Id.
Defendant contends that this is directly relevant to plaintiff’s
claims of pain and suffering and should be presented to the jury
for its consideration.
Id.
Under Rule 609, in the civil action context, evidence of a
conviction of crime that is “punishable by death or by imprisonment
for more than one year” must be admitted, subject to Rule 403.
Fed. R. Evid. 609(a)(1)(A).
As to any crime, regardless of the
applicable punishment, “the evidence must be admitted if the court
can readily determine that establishing the elements of the crime
required proving — or the witness’s admitting — a dishonest act or
false statement.”
Id. at (a)(2).
However, admission under Rule
609 remains subject to Rule 403, which excludes evidence when its
potential
for
probative value.
unfair
prejudice
substantially
outweighs
its
As the court in United States v. Estrada stated:
[Rule 609(a)(1)] requires district courts to admit the
name of a conviction, its date, and the sentence imposed
8
unless the district court determines that the probative
value of that evidence ‘is substantially outweighed by
the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.’ This determination is left to the
sound discretion of the district court.
430 F.3d 606, 621 (2d Cir. 2005) (internal citation omitted).
Furthermore, evidence of a conviction of a crime is usually
not admissible if more than ten years have passed “since the date
of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date.”
Ghant v. Brown, 930 F.2d 633, 638 n.10 (8th Cir. 1991)
(quoting Fed. R. Evid. 609(b)).
If more than ten years have
passed, then a court may admit evidence of that conviction “only if
(1)
its
probative
value
.
.
.
substantially
outweighs
its
prejudicial effect; and (2) the proponent gives an adverse party
reasonable written notice of the intent to use it so that the party
has a fair opportunity to contest its use.”
Fed. R. Evid.
609(b)(1-2) (emphasis added). If a court decides to admit evidence
of a prior conviction for impeachment, “the impeaching party ‘is
generally limited to establishing the bare facts of the conviction:
usually the name of the offense, the date of the conviction, and
the sentence.”
Somerville v. Saunders, 2014 WL 272415, at *3
(N.D.N.Y. Jan. 24, 2014) (quoting United States v. Brown, 606 F.
Supp. 2d 306, 319 n.8 (E.D.N.Y. 2009) (quoting 4 Weinstein’s
Federal Evidence § 609.20[2] (2d ed. 2008))).
9
Plaintiff states that the prior conviction at issue in this
case is plaintiff’s 2008 conviction for delivery of a controlled
substance.
ECF No. 145 at 3.
Plaintiff asserts that “[i]n this
instance, given the fact that (1) the conviction was almost ten
years ago, (2) there have been no subsequent convictions, and (3)
the crime is wholly unrelated to this personal injury action, this
Court should find that Mr. Fielder’s 2008 conviction for delivery
of a controlled substance is inadmissible as its limited probative
value
is
substantially
outweighed
by
the
danger
of
unfair
prejudice, confusion of the issues, and misleading the jury.”
ECF
No. 145 at 4.
However, defendant R.V. Coleman contends that “[a]lthough
[p]laintiff’s [m]otion focuses only on a single 2008 criminal
conviction for delivery of a controlled substance, [p]laintiff has
actually been convicted of at least four (4) felonies in the past
decade.”
ECF No. 161 at 2.
Further, R.V. Coleman asserts that
“[d]uring his deposition, [p]laintiff admitted to falsely stating
on the employment application that he had never been convicted of
a felony.”
ECF No. 161 at 3.
This Court finds that plaintiff’s motion in limine to exclude
evidence of plaintiff’s prior criminal convictions must be deferred
at this time, as this Court finds it appropriate to further
consider how defendants intend to use evidence of plaintiff’s prior
criminal convictions at trial.
10
Accordingly, the motion in limine to exclude evidence of prior
criminal conviction filed by Jason Fielder (ECF No. 145) is
DEFERRED.
3.
Motion in Limine to Exclude Reference to Certain Evidence
filed by Jason Fielder (ECF No. 146) is deferred.
Plaintiff Jason Fielder filed a motion in limine to exclude
reference to certain evidence.
ECF No. 146.
The plaintiff moves
this Court, in limine, pursuant to Rules 401, 402, 403, and 404(b)
for an order prohibiting the defendants from inquiring about or
otherwise mentioning the fact that Mr. Fielder is prescribed
subutex
for
an
opioid
addiction
in
his
past
and,
likewise,
prohibiting any reference to Mr. Fielder’s treatment for an opioid
addiction as all such references are not relevant to this civil
action and constitute impermissible character evidence.
146.
ECF No.
Plaintiff states that even if this Court does find some
marginal relevance to Mr. Fielder’s distant opioid addiction and
subsequent
treatment,
the
risk
of
unfair
prejudice
from
the
introduction of those facts are substantially outweighed by the
risk of unfair prejudice.
Id.
The plaintiff also seeks exclusion
of any reference to marijuana use as it is not relevant to this
civil action, and, even if it were, the risk of unfair prejudice
substantially outweighs any limited probative value.
Id.
R.V. Coleman filed a response in opposition (ECF No. 160) and
argues that plaintiff’s motion should be denied as plaintiff’s drug
11
use and rehabilitation is directly relevant to and probative of
plaintiff’s
claims
for
loss
of
enjoyment
of
life,
emotional
distress, and lost wages based on a hypothetical future promotion
to a supervisory/foreman position.
ECF No. 160.
MEC filed a response in opposition (ECF No. 162) and argues
that the evidence plaintiff seeks to exclude of opiate addiction
and subutex treatment is relevant to the case and should be
admitted.
ECF No. 162.
MEC argues it is relevant to plaintiff’s
claim of pain and suffering relating to the injuries sustained in
this case and any claim of financial hardship resulting from the
accident.
Id.
MEC also asserts that plaintiff’s use of marijuana
is relevant to his damage claims as it relates to the effect it
could have on an employer’s decision to promote someone from a
laborer to a foreman.
Id.
Arkos filed a response in opposition (ECF No. 165) and argues
that
plaintiff
has
opened
the
door
to
his
prior
criminal
convictions and drug use history being introduced as evidence at
trial by asserting claims for future lost wages and diminished
earning capacity as both are probative and relevant to his future
employability and earning capacity.
ECF No. 165.
Defendant
asserts that plaintiff’s drug use and criminal history are relevant
to his future employability and earnings potential and are likely
to be considered by prospective employers.
Id.
Defendant asserts
that plaintiff’s opioid addiction and Subutex treatment precluded
12
him from treating with traditional pain medications which would
have controlled his pain better, and that this is directly relevant
to plaintiff’s claims of pain and suffering and should be presented
to the jury for its consideration.
Id.
Federal Rule of Evidence Rule 403 excludes relevant evidence
when its potential for unfair prejudice substantially outweighs its
probative value.
Fed. R. Evid. 403.
This Court finds that the plaintiff’s motion in limine to
exclude reference to certain evidence must be deferred at this
time, as this Court finds it appropriate to further consider how
defendants intend to use evidence of plaintiff’s drug use and
treatment at trial.
Accordingly, the motion in limine to exclude reference to
certain evidence filed by Jason Fielder (ECF No. 146) is DEFERRED.
Defendants’ Motions in Limine
1.
Motion in Limine Regarding Plaintiff’s Claim for Damages for
Loss of Household Services filed by R.V. Coleman Trucking, Inc.(ECF
No. 147) is denied as moot.
R.V. Coleman, in its capacity as a defendant, filed a motion
in limine regarding plaintiff’s claim for damages for loss of
household services.
ECF No. 147.
Defendant states that through
the testimony of Dr. Clifford B. Hawley, Ph.D., the economic expert
identified by the plaintiff, the plaintiff is attempting to recover
damages for alleged “lost household services.”
13
ECF No. 147.
However, defendant states, the loss of ability to perform household
services constitutes the loss of a customary activity and is not
subject to economic calculation as a matter of law. Id.
Moreover,
defendant argues that Dr. Hawley’s opinions regarding the value of
plaintiff’s purported loss of household services are unreliable as
they are based entirely on generalized data not specific to the
plaintiff.
Id.
Defendant states that for the same reasons,
plaintiff cannot prove his claim for loss of household services to
a reasonable degree of certainty and consequently, plaintiff should
be precluded from introducing at trial any evidence, testimony
and/or argument regarding any claim for household services.
Id.
Plaintiff filed a response (ECF No. 170) and states that after
a review of Dr. Hawley’s report, the relevant case law, and the
facts adduced through discovery, the plaintiff will not elicit any
opinions from Dr. Hawley at trial regarding the economic value of
Mr. Fielder’s loss of household services.
ECF No. 170.
The
plaintiff will, however, elicit testimony from Mr. Fielder, his
wife, and other potential witnesses regarding Mr. Fielder’s loss of
household services and will ask the jury to award an appropriate
amount for those losses. Id. The plaintiff believes this approach
is consistent with the Doe v. Pak, 237 W.Va. 1, n.8, 784 S.E.2d
328, n.1 (2016).
This Court finds that, given plaintiff’s response described
above,
defendant
R.V.
Coleman’s
14
motion
in
limine
regarding
plaintiff’s claim for damages for loss of household services is
moot.
Accordingly, the motion in limine regarding plaintiff’s claim
for damages for loss of household services filed by R.V. Coleman
Trucking, Inc. (ECF No. 147) is DENIED AS MOOT.
2.
Motion in Limine Regarding Testimony of Cathy S. Gross and
Plaintiff’s Claim for Lost Wages and/or Earning Capacity filed by
R.V. Coleman Trucking, Inc. (ECF No. 148) is deferred.
Defendant R.V. Coleman filed a motion in limine regarding
testimony of Cathy S. Gross (“Gross”) and plaintiff’s claim for
lost wages and/or earning capacity. ECF No. 148. Defendant argues
that plaintiff should be preluded from calling his vocational
expert, Cathy S. Gross, at trial because plaintiff failed to timely
disclose Gross’s opinions. Defendant argues that even if the Court
finds plaintiff is entitled to call Gross as a witness, plaintiff
should be precluded from introducing any evidence, testimony and/or
argument in support of any attempted recovery of lost wages based
on
a
hypothetical
future
promotion
to
a
supervisory/foreman
position as the opinions of Dr. Clifford Hawley, Ph.D. on this
topic are unreliable and speculative and that plaintiff cannot
prove such damages to a reasonable degree of certainty.
Id.
Plaintiff filed a response in opposition (ECF No. 169) and
states that the expert opinions of Gross were timely disclosed and
supplemented in accordance with the Civil Rules and scheduling
15
order of this Court.
Id.
Plaintiff states that on September 20,
2017, after obtaining the relevant details of the plaintiff’s new
employment, Gross prepared a supplemental report to account for Mr.
Fielder’s new employment.
R.V.
Coleman
never
Id.
requested
Plaintiff states that counsel for
to
re-depose
Gross
after
her
supplemental report was produced, but instead, R.V. Coleman chose
to file the instant motion seeking to exclude Gross’ testimony.
Id.
Further, plaintiff states that the opinions of Dr. Clifford
Hawley and Cathy S. Gross are admissible for the purpose of
establishing the economic value of plaintiff’s loss of earning
capacity.
Plaintiff
asserts
that
defendant
R.V.
Coleman’s
criticism of Ms. Gross and Dr. Hawley’s opinions stems from its
confusion as to what their opinions actually are. Plaintiff states
that to be clear, neither Ms. Gross, nor Dr. Hawley, will offer an
opinion as to when, or if, Mr. Fielder would have been promoted to
a foreman/supervisor position, and submits that is a question of
fact for the jury to determine based upon the evidence elicited at
trial from Mr. Fielder, his superintendent, and others.
Id.
Rather, plaintiff asserts Ms. Gross’ opinion in that regard is
limited to informing the jury how much a foreman/supervisor in West
Virginia oil fields earn based on statistics from the United States
Department of Labor.
Id.
Likewise, plaintiff states Dr. Hawley’s
opinion in that regard is limited to an economic calculation of the
economic loss based upon (1) Mr. Fielder’s pre-injury wage of
16
$15.00 per hour, and alternatively, (2) Mr. Fielder’s potential
wage as a supervisor/foreman.
Id.
Plaintiff argues that the
expert opinions of Dr. Hawley and Ms. Gross are not “hypothetical
opinions” as argued by the defendant, rather, they simply provide
the economic data necessary for the jury to resolve a question of
fact based upon the evidence elicited at trial.
Id.
Plaintiff
asserts that to the extent that defendant R.V. Coleman does not
believe that Mr. Fielder was “reasonably certain” to have been
promoted or to have ever attained foreman/supervisor status, that
is
a
question
of
fact
that
is
subject
to
vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof as to an award of future
damages.
Id.
This Court finds that it is appropriate to defer ruling on
R.V. Coleman’s motion in limine regarding the testimony of Cathy S.
Gross and plaintiff’s claim for lost wages and/or earning capacity
until a later time.
Accordingly, the motion in limine regarding testimony of Cathy
S. Gross and plaintiff’s claim for lost wages and/or earning
capacity filed by R.V. Coleman Trucking, Inc. (ECF No. 148) is
DEFERRED.
3.
Motion in Limine to Preclude Solicitation of Opinions Outside
of Expertise of Expert Witnesses and/or Beyond Scope of Expert
Reports filed by R.V. Coleman Trucking, Inc. (ECF No. 150) is
17
denied as to the timeliness issue but deferred as to opinions on
future employment of the plaintiff.
Defendant R.V. Coleman Trucking, Inc. filed a motion in limine
to preclude solicitation of opinions outside of expertise of expert
witnesses and/or beyond scope of expert reports.
ECF No. 150.
Defendant further asserts that proposed experts George J. Wharton,
Stephen Fournier, and Rob Medlock should be precluded from offering
any opinions regarding the operation of commercial vehicles, the
application or interpretation of the FMCSRs, or the securement of
cargo on commercial vehicles during transportation, arguing that
these experts are unqualified to offer such opinions. ECF No. 150.
Plaintiff filed a response in opposition (ECF No. 171) and
states that defendant R.V. Coleman seeks to exclude or limit the
opinions of several expert witnesses – all of whom are critical of
R.V. Coleman’s dangerous securement of the relevant pipes. ECF No.
171.
Plaintiff states that the reports were timely and that
defendant argues that the experts are not qualified to offer
opinions critical of a trucking company when they have never
operated a commercial motor vehicle (“CMV”) or held a commercial
driver’s license (“CDL”).
Plaintiff asserts R.V. Coleman
Id.
ignores that its own retained expert, Stanley Pulz, who offered
opinions regarding the proper securement of round pipes on a truck,
has never operated a CMV, has never held a CDL, and has never
worked in the trucking industry.
18
Id.
Plaintiff states that each
of the experts whose testimony R.V. Coleman seeks to limit based on
a lack of proper qualifications has significantly more experience
working around or near the trucking industry than R.V. Coleman’s
own expert witness and that plaintiff’s expert witnesses are
ultimately qualified expert witnesses.
Id.
MEC filed its response in opposition (ECF No. 172) and states
that based upon his education, training, and experience, Mr.
Medlock is eminently qualified to offer opinions as to the safety
and
health
industries,
standards
whether
that
those
are
applicable
standards
were
to
employers
promulgated
by
and
the
Occupational Safety and Health Administration, the Federal Motor
Carrier Safety Administration, or the American National Standards
Institute (“ANSI”).
ECF No. 172.
MEC asserts that Mr. Medlock’s
knowledge of the application of safety and health standards to
employers, including the FMCSR, will help the jury to understand
the evidence and determine a fact in issue in this case.
Id.
Specifically, MEC states that his testimony will assist the jury in
determining that the FMCSR is not applicable to MEC, and that MEC
had no duty to train its employees involved in the unloading
process on those requirements, including the failure of Cale Sukala
to properly secure the load for transport.
Id.
MEC adds that
ironically, the very reasons that R.V. Coleman argues that Mr.
Medlock’s testimony should be excluded apply to R.V. Coleman’s own
expert, Stanley Pulz.
Id.
19
This Court finds that the reports were disclosed in a timely
fashion
and
thus,
the
motion
timeliness must be denied.
to
preclude
as
it
relates
to
Further, this Court finds that it is
appropriate to defer ruling on R.V. Coleman’s motion in limine to
preclude solicitation of opinions outside of expertise of expert
witnesses and/or beyond scope of expert reports until a later time.
Accordingly, the motion in limine to preclude solicitation of
opinions outside of expertise of expert witnesses and/or beyond
scope of expert reports filed by R.V. Coleman Trucking, Inc. (ECF
No. 150) is DENIED as to the timeliness issue but DEFERRED as to
opinions on future employment of the plaintiff.
4.
Motion
in
Limine
to
Exclude
Evidence
of
Inapplicable
Regulations and Standards filed by MEC Construction, LLC (ECF No.
152) is deferred as to whether applicability is a question of law
or fact.
Third-Party defendant MEC Construction, LLC filed a motion in
limine
to
exclude
evidence
of
inapplicable
regulations
and
standards (ECF No. 152), and cites to several regulations and
standards which it argues are inapplicable to the work performed by
MEC.
R.V. Coleman filed a response in opposition (ECF No. 158) and
argues that MEC’s motion should be denied because the mere fact
that the parties disagree as to the applicability of regulations/
standards
in
a
deliberate
intent
20
action
is
not
grounds
for
exclusion of said regulations/standards.
Defendant states that
pursuant to Johnson v. Brayman Const. Corp., No. 13-0598, 2014 WL
1272534 (W. Va. Mar. 28, 2014), when there is a disagreement among
the parties as to the applicability of regulations in a deliberate
intent action, the proper course of action is to permit the jury to
hear expert testimony from both sides on the topic.
ECF No. 158.
Plaintiff filed a response in opposition (ECF No. 166) and
states
that
to
the
extent
that
any
of
the
statutes,
rules,
regulations, or standards cited by plaintiff and/or R.V. Coleman
satisfy, or could arguably satisfy, the above criteria relevant to
this case, those standards are relevant and must be admitted into
evidence.
ECF No. 166.
Further, plaintiff argues in accordance
with Johnson v. Brayman Const. Corp., No. 13-0598, 2014 WL 1272534,
*3,
“experts
[are]
permitted
to
testify
to
their
respective
opinions about the applicability of certain regulations to the
workplace at issue.”
ECF No. 166.
Plaintiff contends that the
fact that there is disagreement to the applicability of certain
statutes, rules, regulations, or standards does not support the
exclusion of the regulations; rather, it invites expert testimony
thereupon.
Id.
Plaintiff adds that to the extent that this Court
finds, as a matter of law, that any of the statutes, rules,
regulations, or standards cited by the experts for plaintiff and/or
R.V. Coleman do not satisfy the above criteria, then the plaintiff
does not disagree that those particular provisions would not be
21
relevant to the deliberate intent claims against defendant MEC, but
may, however, be relevant for another purpose or against another
party.
Id.
This Court finds that, pursuant to its previous order (ECF No.
192)
following
the
pretrial
conference
in
this
civil
action
directing the parties to submit supplemental briefs, in part, as to
the applicability of regulations in the instant matter as a
question of law for the Court to decide or as a question of fact to
be submitted to the jury by and through competing expert testimony
and jury instruction, MEC’s motion in limine must be deferred at
this time.
Accordingly, the motion in limine to exclude evidence of
inapplicable regulations and standards filed by MEC Construction,
LLC (ECF No. 152) is DEFERRED as to whether applicability is a
question of law or fact, and this issue is now being briefed by the
parties.
5.
Motion in Limine to Exclude Evidence of Subsequent Remedial
Measures filed by MEC Construction, LLC (ECF No. 154) is deferred
as to whether any exception to the rule applies.
Third-party defendant MEC Construction, LLC filed a motion in
limine to exclude evidence of subsequent remedial measures (ECF No.
154) under Federal Rule of Evidence Rule 407.
subsequent
remedial
measures
are
not
MEC argues that
admissible
to
prove
negligence, culpable conduct, or a need for a warning instruction,
22
and that this evidence is not relevant to proving the elements of
a deliberate intent claim.
ECF No. 154.
R.V. Coleman filed a response in opposition (ECF No. 159) and
argues that MEC’s motion should be denied because post-accident
policies for unloading pipe from trailers that are not pre-chocked
are relevant to prove control, feasibility, and impeachment.
No. 159.
ECF
Defendant states that MEC has argues that it was not
responsible for placing chock or block on the pipes at issue and
that
the
same
should
be
accomplished
by
R.V.
Coleman.
Id.
However, R.V. Coleman asserts, subsequent to the accident, MEC
developed a written policy with specific procedures for handling
pipes on trailers which do not contain chocks or uprights, and this
evidence should come in under “another purpose” subset of Rule 407.
Id.
Plaintiff filed a response in opposition (ECF No. 168) and
states that MEC’s motion in limine seeking to exclude entry of any
subsequent remedial measure must be denied as they are relevant to
establishing the specific unsafe working condition element of West
Virginia’s deliberate intent statute, W. Va. Code §23-4-2(B), and
to proving, at a minimum, control and potentially other facts, such
as feasibility of precautionary measures depending on positions
taken by MEC at trial.
Id.
This Court finds that, pursuant to its previous order (ECF No.
192)
following
the
pretrial
conference
23
in
this
civil
action
directing the parties to submit supplemental briefs, in part, as to
the issues arising from worker’s compensation, the collateral
source rule and the defendant’s entitlement to offset, and how this
is to be handled by the Court in a civil action such as this which
involves both negligence claims and a deliberate intent claim, as
well as any cautionary or limiting instruction, MEC’s motion in
limine must be deferred at this time.
Accordingly, the motion in limine to exclude evidence of
subsequent remedial measures filed by MEC Construction, LLC (ECF
No. 154) is DEFERRED as to whether any exception to the rule
applies, and is now being briefed by the parties.
6.
Motion in Limine to Exclude Evidence of Per Diem Payments
filed by MEC Construction, LLC (ECF No. 155) is denied.
Third-party defendant MEC Construction, LLC filed a motion in
limine to exclude evidence of per diem payments (ECF No. 155) that
the plaintiff received from MEC during the course of his employment
as reimbursement for travel and related expenses associated with
his position.
MEC argues that the per diem is reimbursement and
separate from his gross pay and should not be presented to the jury
as evidence for consideration in determining plaintiff’s damages.
ECF No. 155.
Plaintiff filed a response in opposition (ECF No. 167) and
states that MEC’s motion should be denied, arguing that Mr. Fielder
received a per diem of approximately $125.00 per day as part of his
24
compensation for working at MEC Construction.
his
payroll
records
may
reflect
the
per
ECF No. 167.
diem
payments
While
as
a
reimbursement, plaintiff argues that does not change the fact that
Mr. Fielder received the per diem regardless of the amount of
expense he incurred. Id. Plaintiff contends the per diem payments
were
given
to
Mr.
Fielder
as
cash
payments
without
any
restrictions, meaning he could spend them in any way he saw fit.
Id.
Plaintiff adds that he also received his per diem payments on
his payroll check.
Id.
Plaintiff asserts that when Mr. Fielder
was injured he ceased receiving his per diem payments, which at
$125.00 per day and six days per week was a substantial loss for an
employee making fifteen dollars ($15.00) per hour.
Id.
Plaintiff
cites to Custom Ships Interiors v. Roberts, 300 F.3d 510, 514 (4th
Cir. 2002), for his argument that the per diem is essentially part
of his ordinary wage as Mr. Fielder depended upon the per diem
payments as part of his compensation and was routinely paid his per
diem whether he incurred any expense at all.
ECF No. 167 at 2.
This Court finds that evidence of per diem payments received
by the plaintiff should not be excluded and that Mr. Fielder
depended upon the per diem payments as part of his compensation and
was routinely paid his per diem whether he incurred any expense at
all.
ECF No. 167 at 2.
Further, the so-called per diem payments
have every indicia of an ordinary wage.
Custom Ships Interiors v.
Roberts, 300 F.3d 510, 514 (4th Cir. 2002).
25
Plaintiff may present
such evidence at trial to the jury as evidence for consideration in
determining plaintiff’s lost wage claim.
Accordingly, the motion in limine to exclude evidence of per
diem payments filed by MEC Construction, LLC (ECF No. 155) is
DENIED.
Accordingly, Motion in Limine to Limit Testimony of Defendant
R.V. Coleman Trucking, Inc.’s Expert Stanley Pulz filed by Jason
Fielder (ECF No. 144) and joined in by MEC Construction, LLC (ECF
No. 156) is DENIED; Motion in Limine to Exclude Evidence of Prior
Criminal Conviction filed by Jason Fielder (ECF No. 145) is
DEFERRED; Motion in Limine to Exclude Reference to Certain Evidence
filed by Jason Fielder (ECF No. 146) is DEFERRED; Motion in Limine
Regarding Plaintiff’s Claim for Damages for Loss of Household
Services filed by R.V. Coleman Trucking, Inc. (ECF No. 147) is
DENIED AS MOOT; Motion in Limine Regarding Testimony of Cathy S.
Gross and Plaintiff’s Claim for Lost Wages and/or Earning Capacity
filed by R.V. Coleman Trucking, Inc. (ECF No. 148) is DEFERRED;
Motion in Limine to Preclude Solicitation of Opinions Outside of
Expertise of Expert Witnesses and/or Beyond Scope of Expert Reports
filed by R.V. Coleman Trucking, Inc. (ECF No. 150)is DENIED as to
the
timeliness
issue
but
DEFERRED
as
to
opinions
on
future
employment of the plaintiff; Motion in Limine to Exclude Evidence
of
Inapplicable
Construction,
LLC
Regulations
(ECF
No.
and
152)
26
Standards
is
DEFERRED
filed
as
to
by
MEC
whether
applicability is a question of law or fact as this issue is now
being briefed by the parties; Motion in Limine to Exclude Evidence
of Subsequent Remedial Measures filed by MEC Construction, LLC (ECF
No. 154) is DEFERRED as to whether any exception to the rule
applies; and Motion in Limine to Exclude Evidence of Per Diem
Payments filed by MEC Construction, LLC (ECF No. 155) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
January 29, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
27
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