Opinion
Civil Action 3:16CV687TSL-RHW
07-11-2018
TALBOT ROBINSON PLAINTIFF v. THOMAS COLUCCI, INDIVIDUALLY AND AS AN EMPLOYEE OF U.S. XPRESS, INC., AND U.S. XPRESS, INC. DEFENDANTS
ORDER
TOM S. LEE, UNITED STATES DISTRICT JUDGE
This cause is before the court on numerous motions in limine filed by both parties. The court, having reviewed the motions and responses, rules as follows:
Plaintiff's First Motion in Limine
As to the following matters, Plaintiff's First Motion in Limine is granted as unopposed:
1. Any reference to Plaintiff's counsel's photographs on his website, content, social media or any other disparaging comments. Any comments regarding plaintiff's counsel's practice or prior verdicts or trial(s).
2. Evidence of U.S. Xpress terminating Colucci.
3. Evidence of the Plaintiff's prior citations or prior driving record.
5. Whether the Plaintiff has been involved in other litigation, the terms of his divorce, payments of alimony, prior litigation, other legal proceedings or prior car crashes.
9. Evidence regarding the taxation (or lack thereof) of an award of compensatory damages.
11. Comments referencing the court's previous rulings or issuance of orders, particularly those modifying or limiting plaintiff's claims.
12. Commenting that plaintiff has not called to testify any witness equally available to both parties.
13. Witnesses, documents, photographs, videotape recordings, etc. that have not been identified or produced in discovery.
14. Evidence or argument concerning the impact any award may have on insurance rates or prices of goods or services in general.
21. Cross-examination based on plaintiff's testimony that he changed by errata sheet and any reference to his deposition testimony that he did not have any knee or leg pain prior to the subject accident.
28. Collateral source, disability insurance, plaintiff's USAA car insurance or other payments.
32. Settlement communications.
33. Collateral Source, medical insurance and car insurance.
Defendants offer this caveat: They will not raise these issues unless plaintiff's counsel attempts to argue or make inferences regarding the dismissed claims of direct negligence against U.S. Xpress and/or punitive damages against either defendant.
Defendants do not appear to object to this. They say in their response only that they “object to condemning defense witnesses for using the errata sheets for this very purpose.”
As to the following matters, the motion is denied for the reason that the categories of evidence identified by plaintiff are too broad and unspecific to be meaningful.
The court's denial is without prejudice to plaintiff's ability to raise the issue, if needed, by timely objection at trial.
1. Any inflammatory issue not directly related to either liability, causation or damages.
15. Hearsay in opening statements or closing arguments.
16. Offering of personal opinions of counsel.
17. Commenting on objections or excluded evidence or evidence not in the record.
As to the following matters, the motion is denied for reasons set forth below:
4. Using terminology in any manner about plaintiff's secondary gain or use of similar wording.
As defendants take the position that plaintiff is claiming damages beyond what was legitimately caused by the accident, then it would not be inappropriate for them to challenge plaintiff's motivation in this manner.
5. Evidence regarding plaintiff's divorce proceeding.
In light of plaintiff's claim that he has suffered mental anguish/emotional distress, including feeling depressed, as a result of the accident, defendants argue that they should be permitted to question plaintiff regarding other facts that preexisted the accident that may have caused and/or contributed to his alleged emotional distress/depression, including his separation and eventual divorce from his wife.
7. Terminology claiming that defendant is sorry or apologized or similar wording seeking to evoke sympathy.
Defendants, who have admitted liability for the accident, will not be precluded from apologizing or expressing regret for the accident.
8. Terminology or statements comparing plaintiff's claims to “winning the lottery” or other type jackpot justice terminology.
As with category 4 above, this part of the motion will be denied in light of defendants' position that plaintiff is claiming more damages than were caused by the accident.
18. Referring to the collision as an “accident” or unfortunate accident.
Defendants' characterizing the collision in these terms would neither be inappropriate nor unfairly prejudicial to plaintiff.
26 & 27: Any evidence of plaintiff's post-crash actual earnings, including any reference to his total taxable earnings as shown on his tax returns/W-2s from 2015 to the present.
Plaintiff's motion in limine seeking to exclude evidence of his post-crash tax returns (which reflect not a loss but an increase in his income) was filed before this court granted defendants' motion for partial summary judgment on plaintiff's claim for past lost wages. In light of the court's ruling, this part of the motion in limine will be denied as moot.
Moreover, as defendants note, plaintiff's past earnings are clearly relevant to his claim for future lost wages.
[Unnumbered objection]:
Testimony from Justin Daniels, M.D., “regarding the crash which lies outside the area of his expertise,” and “which contains improper opinions not based on information contained in the medical record.”
Plaintiff seeks to exclude testimony from Dr. Daniels, the emergency room physician who treated plaintiff immediately following the collision, (1) to the effect that plaintiff was wearing his seat belt and that a person who is wearing a seat belt is “a lot less likely” to hit the dash with their knees in a crash; and (2) that he does not recall plaintiff having any complaints about his knees or shoulder and that every complaint a patient has is typically recorded in the medical chart. Plaintiff asserts that such testimony constitutes “improper opinions not based on information contained in the medical records of Plaintiff.” Plaintiff's objections to Dr. Daniels' testimony are without merit. As defendants note, Dr. Daniels is not testifying as an expert, but rather regarding his care and treatment of plaintiff, including his observations at the time of treatment and what the medical records show.
20. Robinson's prior unrelated medical conditions, namely, leg swelling.
29-31.Deposition testimony of Dr. Robert Sheely regarding pre-existing complaints of leg swelling/edema.
34. Unrelated medical conditions.
While plaintiff maintains that the “structural orthopedic injuries” he received in the subject crash “are separate and distinct from the venous insufficiency, swelling and related lower leg problems” that pre-dated the crash, defendants are obviously entitled to present evidence, including medical records and testimony from Dr. Sheely, regarding plaintiff's pre-existing medical conditions. Plaintiff's broad objections to admission of such evidence are not well-taken, and neither are his objections to specific testimony of Dr. Sheely.
The motion will be granted as to the following matters:
19. Cross-examination of Bruce Brawner or George Carter or any other expert regarding the fact that there is no expert report indicating a percentage of loss of wage earning capacity.
As Brawner has not purported to offer any opinion regarding any loss of wage earning capacity, and the court has previously held that Carter may not offer any opinions or calculations on plaintiff's claim for loss of wage earning capacity, defendants agree that so long as plaintiff complies with the court's ruling and does not attempt to offer expert testimony on his loss of wage earning capacity, they will not question Carter or Brawner on the referenced matters.
38. Characterization of treating physicians as “plaintiff's experts”
Defendants will be prohibited from referring to treating physicians that plaintiff has not designated as experts as “plaintiff's experts.”
The court at this time will reserve ruling as to the remaining categories of evidence addressed by Plaintiff's First Motion in Limine. This includes the following:
6. Plaintiff's personal habits, including alcohol use.
10. The time or circumstances under which plaintiff employed his attorney or filed his lawsuit.
35. Erectile dysfunction, use of Viagra
36. Sleep apnea
37. Testosterone treatments
39. Failure to mitigate damages
The court will address these matters with the parties at the pretrial conference.
Plaintiff's Second Motion in Limine
Plaintiff's Second Motion in Limine seeks to exclude the opinions of defendants' accident reconstructionist, Benjamin Smith. Based on his evaluation of the damage to Robinson's vehicle, the physical evidence at the crash site and the vehicle's Crash Data Retrieval data, Smith performed various calculations and provided opinions as to Colucci's pre-braking speed, the braking distance, the speed range for impact, and the change in velocity. Plaintiff objects that Smith's opinions “do not address causation or damages” and do not offer anything helpful to the jury in determining whether plaintiff's injuries are causally connected to the collision.
Defendants argue in response that plaintiff's motion is actually a Daubert motion to strike Smith's opinions, and that as such, it should be denied for the reason that it was not timely filed in accordance with the deadline for Daubert motions established by the case management order. They contend the motion is otherwise without merit.
Plaintiff's motion would qualify as a Daubert motion.Although plaintiff does not challenge Smith's qualifications or the reliability of his opinions, he argues that Smith's opinions would not be helpful to the jury (i.e., are not relevant) since it does not bear on whether plaintiff's claimed injuries were caused by the accident. The motion therefore could be denied as untimely. However, even considered on the merits, the motion should be denied. As plaintiff notes, defendants take the position that the force of the collision was not sufficient to cause plaintiff's claimed injuries. The opinions offered by Benjamin Smith bear on the severity/force of the impact.
Under Daubert, expert testimony is admissible only if it is both relevant and reliable. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002). Expert testimony that is not helpful to the trier of fact does not satisfy the relevancy requirement of Daubert. See Daubert, 509 U.S. 579, 591 (1993) (“Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”) (quoting 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 702[02], p. 702-18 (1988)).
Defendants' biomechanical engineering/medical expert Harry Smith, Ph.D., M.D., has indicated that in formulating his opinion as to whether the force of the crash would likely have caused plaintiff's claimed injuries, he relied, in part, on the report and opinions of Benjamin Smith.
Plaintiff's Third Motion in Limine
Plaintiff's Third Motion in Limine, which seeks to exclude the testimony of defense expert Harry Smith, was filed prior to entry of the court's May 1, 2018, order denying plaintiff's motion to file an out-of-time Daubert motion to exclude Smith's testimony. The court found that plaintiff's proposed motion was clearly a Daubert motion and that plaintiff had failed to provide a valid reason for not filing the motion in a timely manner. The court also noted that “[b]ased on its perusal of [plaintiff's proposed] motion, it does not seem the motion has merit so it is unlikely it would be granted even if allowed to be filed. And of course, plaintiff is free to cross examine Dr. Smith at trial.” Given the court's previous ruling, plaintiff's present motion in limine to exclude Harry Smith is denied as moot and/or as an untimely Daubert motion.
Plaintiff's Fourth Motion in Limine
Plaintiff's Fourth Motion in Limine, which seeks to strike certain deposition testimony of Justin Daniels, M.D., as improper redirect, is without merit. In the court's opinion, the challenged testimony did not exceed the scope of crossexamination. Accordingly, Plaintiff's Fourth Motion in Limine will be denied.
Plaintiff's Fifth Motion in Limine
This motion will be denied. Citing the “eggshell skull” rule, under which a defendant takes the plaintiff as he finds him and is responsible for damages for the aggravation of any preexisting condition, plaintiff seeks to prevent defendants from attempting to show that plaintiff's pre-existing conditions caused or contributed to the injuries he sustained in the subject collision. In response, defendants acknowledge that “a Plaintiff must be taken as he is found,” but argue that in this case, what they intend to show is that most of plaintiff's injuries and/or medical damages were already in existence at the time of the accident. They say the fact that he sought treatment for these conditions after the accident does not mean they are related to the accident and argue that the question of whether an accident is the proximate cause of a motorist's injuries or merely aggravated a preexisting condition is a question for the jury. They note further that even if plaintiff can establish aggravation of a preexisting injury, their liability is limited to the portion of the injury or aggravation caused. Defendants are correct. Therefore, Plaintiff's Fifth Motion in Limine will be denied.
Mayfield v. Brewer, No. 2:13-CV-73-KS-MTP, 2014 WL 5467011, at *6 n.4 (S.D.Miss. Oct. 28, 2014) (citation omitted).
A jury instruction explaining the eggshell skull rule will be given. The court will also consider giving a special interrogatory addressing the issue.
Defendants' Omnibus Motion in Limine
Defendants' “Omnibus Motion in Limine” seeks to exclude twenty-two categories of evidence. The motion will be granted as unopposed as to the following categories of evidence:
(A) Policies, procedures and safety information for U.S. Xpress;
(C) Prior accidents of Colucci;
(D) Evidence of prior judgments, claims, lawsuits or verdicts;
(F) Hours of service regulations and driver's logs;
(G) Standard of care for commercial drivers;
(I) Settlement of property damage claim;
(J) Claim that the accident was “preventable”;
(K) Proof of defendants' financial status/insurance;
(L) The relative financial condition of the parties;
(M) Punitive damages references and arguments to jury;
(Q) Past lost wages;
(R) Certain letters and opinions of George Carter; and
(V) Untimely or previously undisclosed expert opinions.
The court has granted partial summary judgment on the claim for past lost wages. Plaintiff says he will abide by the court's ruling. He will offer evidence of the time he was off work for his shoulder and knee surgeries in 2015 and 2016, which would be permissible.
The court has previously granted defendants' motion to strike the letters that are the subject of this motion. Plaintiff states he will abide by the court's order.
The motion will be granted as to the following:
(B) Thomas Colucci's driving, training, employment, criminal record, personnel, medical, drug use and driver qualification records; and
(C) Employment screening, road test and employment application of Colucci.
Defendants argue that since the only issues remaining for trial are the cause and extent of plaintiff's claimed damages, testimony/evidence relating to the above referenced is irrelevant. Plaintiff argues that since defendants' primary defense is that the impact of the U.S. Xpress vehicle (driven by Colucci) with his vehicle was minimal and could not have caused the injuries claimed by plaintiff, then the parties will necessarily present evidence relating to the crash itself. He states that he intends to show that “Colucci is a dishonest witness” by, at the very least presenting evidence that Colucci has a prior felony conviction for fraud. He refers to additional evidence that he may seek to introduce as impeachment, but states that his specific plans for impeachment will be determined by “the scope of Colucci's proposed testimony during the crash impact and aftermath.”
Plaintiff will not be allowed to introduce evidence of Colucci's alleged prior “fraud” conviction. With respect to this conviction, Colucci testified that sometime prior to 2005, he pled guilty in New York to a charge of “fraudulent instrument” for having an expired taxi license and served thirty days in jail. Under Federal Rule of Evidence 609, a criminal conviction for a felony involving a dishonest act or false statement that is more than ten years old is admissible only if “probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect....” In the court's opinion, the conviction at issue likely would not have much prejudicial effect, but it would have virtually no probative value on the issue of Colucci's character for truthfulness.
In addition to the fraud conviction, plaintiff offers a “nonall-inclusive list of the potential facts regarding Colucci's past history,” which includes a twenty-three year old DUI conviction; history of cocaine addiction and treatment; HIV-positive status; driving incident for which he was written up three months before the subject crash; and failure to disclose prior fraud and DUI convictions and license suspension on his U.S. Xpress application. This evidence has no apparent relevance on Colucci's credibility of any other issue and plaintiff has not suggested any basis on which evidence of any of these matters might be admissible. The motion in limine as to this evidence will be granted.
With respect to the alleged nondisclosure of prior convictions on Colucci's employment application, plaintiff states that “if the Defendants do not bring up that issue with Colucci's testimony, it is agreed” that plaintiff will not do so. Should defendants open the door to admission of evidence of the nondisclosures, the court may reconsider its ruling.
(H) Accident Report Narrative and Depiction
Plaintiff represents that he has no plans to introduce the accident report in his case in chief, but states that he may seek to introduce the report on cross-examination if defendants offer the testimony of the investigating officer. The court will deny the motion in limine without prejudice to defendants' ability to object if the report is offered.
(N) Reptile Theory
Defendants explain that they are moving to exclude arguments, references, testimony, evidence or innuendo that their conduct “is, was, or could be a threat to juror's safety or safety to society.” Plaintiff responds that he is unable to respond as the reference to “Reptile Theory” is overbroad and not properly defined. In the court's opinion, without proper context and without having heard the specific question and/or testimony at issue, the court is unable to determine whether testimony, evidence or arguments are objectionable. Accordingly, the court will deny the motion to exclude without prejudice to defendants' ability to raise the issue, if needed, by timely objection at trial.
(O) Opinion testimony of “treating physicians” or other medical care providers as to causation
Although they do not identify specific testimony, defendants move that plaintiff's treating physicians and other medical providers be precluded from speculating as to the cause of the accident or the fault of the parties. Obviously, plaintiff's treating physicians have no personal knowledge of and may not provide testimony as to the cause of the accident or who was at fault in the accident.
Plaintiff states in response that “this matter has been briefed and ruled on.” The court is unaware of having previously addressed this issue.
(T) Plaintiff's claim for depression and other mental illnesses
Defendants contend that while plaintiff may claim he suffers from depression or other mental illness, he has no proof that he has ever been diagnosed with or sought or received medical or psychological treatment for depression or mental illness. The court has denied a defense motion for partial summary judgment on plaintiff's claim for emotional distress damages. While plaintiff may contend he is depressed as a result of the accident, he does not appear to have asserted that he suffers from or has been diagnosed with “depression” or any other mental illness. There is no evidence of which the court is aware that would support such a claim. However, plaintiff need not have been diagnosed with “depression” or been treated for “depression” to testify that he has felt depressed. Accordingly, this part of defendants' motion in limine will be denied.
The remaining issues raised by Defendants' Omnibus Motion in Limine will be addressed at the pretrial conference. This includes the request to exclude evidence of the following:
(P) Testimony/argument about Colucci not “checking on the Plaintiff”.
(S) Testimony of Earl Allen and any other witnesses as to the cause of the accident and/or liability for punitive damages.
(U) Plaintiff's claim of damages for cognitive impairment and/or “neurological deficits”.
Defendants' Motion in Limine re Potential Comments on Defense Expert Dr. Harry Smith
Defendants seek to prohibit plaintiff from making comments regarding the fact that Dr. Smith is from out of state and has made substantial sums of money from work in other cases. Plaintiff responds that he does not intend to resort to name calling or ad hominem attacks but maintains that he should be allowed to cross examine defense experts, including Smith, regarding their professional background, expertise, rates, methods and conclusions. He notes that Dr. Smith is a professional witness who makes over a million dollars a year testifying, 90 to 95% of the time for the defense, and argues that this is an appropriate subject for cross-examination. Defendants' motion will be denied. The Fifth Circuit has held that a party should be allowed to cross-examine an adverse party's expert witness regarding compensation to show bias or interest on the part of the witness. See Collins v. Wayne Corp., 621 F.2d 777, 874 (5th Cir. 1980), superseded by rule on other grounds (stating that “[a] showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases.”). See also Sartin v. Wal-Mart Stores E., L.P., No. 1:14CV3-HSO-RHW, 2014 WL 4794542, at *1 (S.D.Miss. Sept. 25, 2014) (citing Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980)) (allowing discovery of “approximate percentage of total income derived from providing retained expert services over the past two years, including what percentage of these retained expert services has been performed on behalf of employers or insurance carriers”); Trenado v. Cooper Tire & Rubber Co., No. 4:08-CV-249, 2010 WL 11583115, at *4 (S.D. Tex. Jan. 6, 2010) (observing that witness' “present career as a professional expert witness” would be “fodder for cross examination”).
Defendants' Motion in Limine on Plaintiff's Claim for Right Knee Replacement Surgery
This motion will be granted as unopposed.
Defendants' Motion in Limine on Plaintiff's Purported Demonstrative Exhibits
Defendants seek to preclude plaintiff's use at trial of a number of purported demonstrative exhibits. Plaintiff has responded to the motion. The court will reserve ruling on the motion at this time and will take up the motion with the parties at the pretrial conference.
Conclusion
Based on the foregoing, it is ordered that Plaintiff's First Motion in Limine is granted in part and denied in part, and ruling reserved in part; Plaintiff's Second, Third, Fourth and Fifth Motions in Limine are denied; Defendants' Omnibus Motion in Limine is granted in part and denied in part, and ruling reserved in part; and Defendants' Motion in Limine re Potential Comments on Defense Expert Dr. Harry Smith is denied; Defendants' Motion in Limine on Plaintiff's Claim for Right Knee Replacement is granted; and ruling is reserved on Defendants' Motion in Limine on Plaintiff's Purported Demonstrative Exhibits.
SO ORDERED.