Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 171 (E.D. La. 2016)
Court Description: ORDER AND REASONS re 124 Motion in Limine and 127 Motion in Limine. Signed by Judge Susie Morgan. (bwn)
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Thibodeaux v. Wellmate Doc. 171 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court are the om nibus m otions in lim ine filed by Plaintiff J oel Thibodeaux (“Thibodeaux”) and Defendant Pentair Water Treatm ent OH Com pany (“Pentair”). 1 The Court GRAN TS AS U N OPPOSED Thibodeaux’s m otion in lim ine with respect to Paragraphs 1, 2, 3, 4, 5, 8 , 9, 11, 13, 15, 17, 18, 19, 20 , 21, 22, 23, 25, and 26. 2 The Court also GRAN TS AS U N OPPOSED Pentair’s om nibus m otion in lim ine. 3 Thibodeaux raises several contested m atters in his m otion in lim ine and argues, “[i]f any of the subjects discussed [in the m otion] were brought to the jury’s attention directly or indirectly, Thibodeaux would need to seek a n ew trial.”4 Many of the issues raised by Thibodeaux are governed by the Federal Rules of Evidence. The Court will enforce the Federal Rules of Evidence. Nevertheless, the Court rules on certain of Thibodeaux’s opposed requests to prohibit any discussion of, reference to, or allusion to certain m atters below: 1 R. Doc. 124 (Plaintiff’s m otion in lim ine); R. Doc. 127 (Defendant’s m otion in lim ine). See R. Docs. 124-1, 130 . 3 R. Doc. 127. 4 R. Doc. 124-1 at 2. 2 1 Dockets.Justia.com A. Pa ragrap h 6 Thibodeaux seeks to exclude any suggestion to the jury “[t]hat Thibodeaux or his counsel is wasting and/ or consum ing too m uch of the tim e of the Court and/ or jury, as such statem ents are irrelevant, im proper, an d unfairly prejudicial.”5 Thibodeaux’s m otion with respect to Paragraph 6 is GRAN TED . No witness or counsel will be allowed to m ake statem ents in the presen ce of the jury that any party or counsel is wasting the tim e of the Court or the jury. B. Pa ragrap h 7 Thibodeaux seeks to exclude “[a]ny m ention of the probable testim ony of a witness who is absent, unavailable, or not called to testify.”6 It is unclear to the Court in what context this would occur or whether it will, in fact, be an issue at trial. The Court D EFERS ruling on Thibodeaux’s m otion with respect to Paragraph 7 unless and until this issue is raised in the presence of the jury. C. Pa ragrap h 10 Thibodeaux seeks to prohibit attorneys from m aking “[a]ny statem ent of the law, other than one about the burden of proof and the basic legal definitions counsel believe to be applicable, before the Court rules on the law applicable to the case.”7 During opening statem ents, counsel are to focus on the evidence that will be presented at the trial rather than the law. At the conclusion of the case, the Court will instruct the jury on the law. Before closing argum ents, counsel will have a copy of the final 5 Id. at 3. Id. 7 Id. at 4. 6 2 jury instructions. Any statem ents of the law m ade by counsel during closing argum ent is lim ited to the law contained in the final jury instructions. D . Pa ragrap h 12 Thibodeaux’s request to lim it testim ony “relating . . . to any reduction in Thibodeaux’s m edical expenses received from a collateral source” is addressed in the Court’s order on Pentair’s m otion in lim ine regarding dam ages for past m edical expenses sought by Thibodeaux. 8 E. Pa ragrap h 14 Thibodeaux seeks to lim it “[a]ny discussions by Pentair’s designated experts regarding any tests or studies conducted or by literature reviewed by the designated expert or relied upon by the designated expert that were not disclosed in the written reports or during the oral depositions of the experts, or that have been excluded by this Court.”9 Rule 26 of the Federal Rules of Civil Procedure requires an expert report to contain “a com plete statem ent of all opinions the witness will express.”10 “[A]n expert report m ust include all m atters about which [the experts] will testify.”11 An expert witness’s testim ony is generally lim ited to the areas addressed in the expert’s report, though an expert is granted som e leniency to explain his or her opinions, so long as the report com plies with Rule 26. 12 The Court will D EFER ruling unless and until specific issues arise at trial. 8 R. Doc. 166 (Order); R. Doc. 117 (Motion in lim ine). R. Doc. 124-1 at 3. 10 F ED . R. CIV. P. 26(a)(2)(B)(i). 11 Stahl v. N ovartis Pharm . Corp., No. 99-10 48, 20 0 0 WL 33915847, at *2 (E.D. La. Nov. 29, 20 0 0 ). 12 See Reed v . Iow a Marine & Repair Corp., 16 F.3d 8 2, 85 (5th Cir. 1994) (noting that the “basic purpose” of Rule 26 is “preventing prejudice and surprise”); Adcox v. W ebex, Inc., No. 99-1535, 20 0 0 WL 322770 , at *1 (E.D. La. Mar. 27, 20 0 0 ); In re Falcon W orkover Co., Inc., No. 97-2628, 1999 WL 10 95349, at *1 (E.D. La. Dec. 2, 1999). 9 3 F. Pa ragrap h 16 Thibodeaux seeks to exclude “[a]ny references to the financial status of Thibodeaux or any m em ber of Thibodeaux’s fam ily.”13 Thibodeaux argues that such eviden ce is irrelevant and that, even if it were relevant, its probative value would be substantially outweighed by the danger of unfair prejudice. 14 The Court agrees that Thibodeaux’s financial status is generally irrelevant and GRAN TS IN PART the request in Paragraph 16. The Court D EN IES IN PART the request insofar as Thibodeaux seeks to prevent Pentair from introducing eviden ce regarding Thibodeaux’s vocational abilities or future earning capacity. G. Pa ragrap h 2 4 Thibodeaux seeks to preclude Pentair from “[m ]aking any m ention, referen ce or introducing evidence of any prior acts and/ or om issions on the part of Thibodeaux that are not directly related to the incident and claim s and defenses at issue for the reason that the sam e are not adm issible on the issues of negligence, character, or culpable conduct in connection with the event.”15 As previously m entioned, the Court will enforce the Federal Rules of Eviden ce. To the extent Thibodeaux seeks to preclude evidence of particular prior acts or om issions, the Court D EFERS ruling on Thibodeaux’s m otion with respect to Paragraph 24 unless and until specific issues arise at trial. 13 R. Doc. 124-1 at 6. Id. 15 Id. at 7. 14 4 H . Pa ragrap h 2 7 Thibodeaux seeks to preclude Pentair from m entioning that it “does not know of a sim ilar accident that has occurred with the water tank that is the subject of this lawsuit.”16 Thibodeaux argues that “such testim ony is speculative, as nothing suggests Pentair spoke to each on e of its em ployees to confirm that no one at Pentair knows about a prior, sim ilar accident.”17 Thibodeaux also argues such testim ony is irrelevant because “the fact that no sim ilar accidents occurred before this one does not m ake it m ore or less likely that the water tank was unreasonably dangerous.”18 Finally, Thibodeaux argues such testim ony would im properly confuse the issues and m islead the jury “into thin king that, if Pentair were unaware of any other sim ilar accidents, then no other accidents occurred; the water tank could not be unreasonably dangerous; and Pentair had no knowledge of any potential unreasonably dangerous characteristic of the water tank.”19 Pentair opposes Thibodeaux’s request and contends that testim ony regarding whether Pentair knows of sim ilar prior accidents is relevant and adm issible. 20 Courts have generally recognized that eviden ce of the absence of other accidents m ay be adm issible to show “(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.”21 16 Id. at 8. Id. 18 Id. 19 Id. 20 R. Doc. 130 at 15– 20 . 21 1 McCorm ick on Evid. § 20 0 (7th ed. 20 13). 17 5 As a prerequisite for adm issibility of evidence indicating the absence of prior accidents, “the defendant m ust show that the absence of prior accidents took place with respect to m achines substantially identical to the one at issue and used in settings and circum stances sufficiently sim ilar to those surrounding the m achine at the tim e of the accident to allow the jury to connect past experience with the accident sued upon.”22 The adm issibility of eviden ce of the absence of prior accidents turns on the facts and circum stances of each case. 23 When determ ining whether evidence of the lack of other accidents is adm issible, courts have analyzed whether the probative value is substantially outweighed by other considerations, such as the risk of unfair prejudice or of m isleading the jury. 24 The Court of Appeals for the Third Circuit sum m arized the applicable analytical fram ework as follows: Testim ony concerning an alleged absen ce of prior accidents will usually satisfy the relevance threshold established by Rule 40 2. Such testim ony, however, by its very nature, raises significant concerns regarding unfair prejudice to the plaintiff . . . . District courts are required under Rule 40 3 to balance the probative value of such eviden ce against its likely prejudicial effect, but the evidence m ay not be excluded unless the unfair prejudice created by adm itting the evidence would substantially outweigh its probative value. In an effort to ascertain probative value and m in im ize undue prejudice, other courts considering such evidence have consistently insisted that the offering party lay a proper foundation. In m ost cases the required foundation has involved three elem ents: (a) sim ilarity —the defendant m ust show 22 Fisher v. R.D. W erner Co., 1 F.3d 1236 (5th Cir. 1993) (per curiam ). See also Forrest v. Beloit Corp., 424 F.3d 344, 358 (3d Cir. 20 0 5); Espeaignnette v. Gen e Tierney Co., 43 F.3d 1, 10 (1st Cir. 1994) (“A review of the cases reveals, for the m ost part, that evidence of the absence of prior accidents m ay not be adm itted unless the offerin g party first establishes that the ‘lack of accidents was in regard to products that are substantially identical to the one at issue and used in settings and circum stances sufficiently sim ilar to those surrounding the m achin e at the tim e of the accident.’” (quoting Klonow ski v. Int’l Arm am ent Corp., 17 F.3d 992, 996 (7th Cir. 1994))). Louisiana cases are in accord with federal case law on this issue. See Johnson v. Low es of Louisiana, Inc., 627 So. 2d 177, 179 (La. App. 1 Cir. 3/ 5/ 93), w rit denied, 625 So. 2d 167 (La. 1993) (“Evidence of the absence of prior accidents is relevant and adm issible where the proper foundation is laid.”); Jurovich v. Catalanotto, 50 6 So.2d 662 (La. App. 5 Cir. 4/ 13/ 87), w rit denied, 50 8 So.2d 87 (La.1987); Foster v . Marshall, 341 So. 2d 1354, 1361 (La. App. 2 Cir. 1/ 10 / 77), w rit denied, 343 So. 2d 10 67 (La. 1977), and w rit denied, 343 So. 2d 10 77 (La. 1977). 23 Forrest, 424 F.3d at 358; Espeaignnette, 43 F.3d at 10 . 24 See, e.g., Espeaignnette, 43 F.3d at 10 (affirm ing district court’s determ ination that evidence concernin g lack of sim ilar accidents was adm issible, in part because “the absence of prior accidents is probative and relevant to whether the edger as designed was unreasonably dangerous”). 6 that the proffered testim ony relates to substantially identical products used in sim ilar circum stances; (b) breadth—the defendant m ust provide the court with inform ation concernin g the num ber of prior units sold and the exten t of prior use; and (c) aw areness—the defendant m ust show that it would likely have known of prior accidents had they occurred. 25 The Court finds that evidence in dicating the absence of other sim ilar accidents is relevant and probative in this case. The Court does not find that the probative value of such evidence is outweighed by any risk of unfair prejudice, confusing the issues, or m isleading the jury, provided that Pentair lays a proper foundation for the evidence. 26 Therefore, prior to adm itting any evidence or testim ony regarding the absen ce of other accidents, Pentair m ust first “show that the absence of prior accidents took place with respect to [water pressure tanks] substantially identical to the [Wellm ate 12 tank] at issue [in this case] and used in settings and circum stances sufficiently sim ilar to those surrounding the [Wellm ate 12 tank] at the tim e of [Thibodeaux’s] accident.”27 After Pentair believes it has presented this evidence, Pentair m ust request a bench conferen ce to inform the Court and opposing counsel that it intends to introduce evidence regarding the absen ce of other accidents and Thibodeaux will have the opportunity to argue to the Court that an adequate showing has not been m ade. If the eviden ce is adm itted, Thibodeaux will have the opportunity to attack on cross-exam ination the credibility of any witness’s testim ony regarding the absence of prior sim ilar accidents. I. Pa ragrap h 2 8 Thibodeaux seeks to exclude “[a]ny statem ent or argum ent supporting an issue not contained in the Pre-Trial Order.”28 25 Forrest, 424 F.3d at 358 . See F ED. R. E VID. 40 3. 27 Fisher, 1 F.3d at 1236. 28 R. Doc. 124-1 at 8. 26 7 Generally, the pretrial order fram es the issues to be decided in the case an d only eviden ce relevant to those issues is adm issible. The Court will D EFER ruling on any specific issue unless an d until they arise at trial. J . Pa ragrap h 2 9 Thibodeaux seeks to exclude any m ention “[t]hat any governm ent agency including the BSEE found that Chevron com m itted violations leading to the accident and issued Chevron a citation; that Chevron failed to protect health, safety, and the environm ent by not perform ing operations in a safe an d workm anlike m anner; or that Chevron failed to properly supervise the dism antling of a potable water tank in a safe m anner to protect the equipm ent and em ployees.”29 Thibodeaux also raises this issue in his objections to Pentair’s exhibits. 30 The Court has already ruled on the adm issibility of the report issued by the Bureau of Safety and Environm ental Enforcem ent (“BSEE”) and its attachm ents. 31 The Court will construe Paragraph 29 of Thibodeaux’s m otion as a m otion to reconsider pursuant to Rule 60 of the Federal Rules of Civil Procedure. 32 Under Rule 60 (b), “the court m ay relieve a party or its legal representative from a final judgm ent, order, or proceeding for . . . any . . . reason that justifies relief.”33 Rule 60 (b) provides relief to prevent “a grave m iscarriage of justice.”34 In reviewing the Court’s 29 Id. at 8– 9. See R. Doc. 150 at 1– 3. 31 See R. Doc. 67. 32 Lavespere v. N iagara Mach. & Tool W orks, Inc., 910 F.2d 167, 173 (5th Cir. 1990 ), abrogated by Little v. Liquid Air Corp., 37 F.3d 10 69 (5th Cir. 1994); Gregg v. W eeks Marine, Inc., No. 99-1586, 20 0 0 WL 80 2865, at *1 (E.D. La. May 26, 20 0 0 ). 33 F ED . R. CIV. P. 60 (b)(6). 34 United States v. Beggerly , 524 U.S. 38 , 47 (1998). 30 8 previous order regarding the adm issibility of the BSEE report and attachm ents, the Court determ ines that it m ust set aside part of its order in order to prevent a m anifest injustice. Rule 80 3 of the Federal Rules of Evidence provides exceptions to the rule against hearsay. Rule 80 3(8) provides in relevant part that a record or statem ent of a public office is adm issible if “it sets out . . . in a civil case or against the governm ent in a crim inal case, factual findings from a legally authorized investigation.”35 The advisory com m ittee notes state that the “[j]ustification for the exception is the assum ption that a public official will perform his duty properly and the unlikelihood that he will rem em ber details independently of the record.”36 The United States Suprem e Court has held that accident reports containing an investigator’s conclusions and opinions satisfy Rule 80 3(8), as long as the conclusions are “based on a factual investigation and satisf[y] the Rule’s trustworthiness requirem ent.”37 In the Court’s previous order, it found the reasoning of the Fourth, Ninth, and Eleventh Circuits to be persuasive and held that the portions of a public report containing legal conclusions are not included within the hearsay exception of Rule 8 0 3(8 ). 38 In Thibodeaux’s objections to Pentair’s exhibits, Thibodeaux urges the Court to reconsider Paragraph 24 of the BSEE Accident/ Incident Form . 39 Paragraph 24 states in relevant part: Chevron U.S.A. Inc. failed to protect health, safety and the environm ent by not perform ing operations in a safe and workm anlike m anner as follows: Chevron U.S.A. Inc. failed to properly supervise the dism antling of a potable water tank in a safe m anner to protect the equipm ent and em ployees. Chevron em ployees failed to depressurize a bladder before dism antling a potable water tank as per the 35 F ED. R. E VID. 80 3(8)(A)(iii). F ED. R. E VID. 80 3 advisory com m ittee notes. 37 Beech Aircraft Corp. v. Rainey , 48 8 U.S. 153, 170 (198 8). 38 See R. Doc. 67 at 4. 39 R. Doc. 150 at 1– 3. 36 9 m anufacturer guidelin es causing the bladder to rupture resulting in severe injuries to an em ployee. 40 Paragraph 24 contain s im perm issible legal conclusions concerning the probable cause, but-for cause, and contributing causes of the accident and thus does not fall under the exception to the rule against hearsay. Accordingly, Paragraph 24 is inadm issible hearsay. A portion of the Notification of Incidents of Noncom pliance signed by Elliott S. Sm ith, which is attached to the report, contains the sam e language as Paragraph 24. 41 Therefore, that portion of the notification by Elliot S. Sm ith is likewise inadm issible. 42 The Court finds that adm itting Paragraph 24 and the aforem entioned portion of the notification into evidence would result in a m anifest injustice. Therefore, the Court am ends its ruling contained in Record Docum ent 67 to provide that, while the m ajority of the BSEE report is fact-based and therefore adm issible under Rule 80 3(8), Paragraph 24, in addition to Paragraphs 8, 18, and 19, of the Accident Investigation Report, the Notification of Incidents of Noncom pliance signed by Elliott S. Sm ith, and Paragraph 7 of the Accident/ Incident Form contain BSEE’s legal conclusions concern ing the probable cause of the accident and the contributing causes of the accident and as a result are inadm issible hearsay. Most of the rem ain der of the BSEE report an d the attachm ents thereto is adm issible. 43 40 See R. Doc. 40 -2 at 28. R. Doc. 40 -2 at 57. 42 Id. This attachm ent is currently Exhibit 223 in the parties’ exhibit book. The lan guage can be found on bates No. 4642. 43 Exhibit 224 of the parties’ exhibit book, the contents of which can be found in R. Doc. 40 -2 at 58 – 59, will be excluded pursuant to the Court’s Order on Pentair’s m otion in lim ine regarding subsequent rem edial m easures. See R. Doc. 167. 41 See 10 N e w Orle a n s , Lo u is ian a, th is 2 4 th d ay o f May, 2 0 16 . ___________ __ _________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 11
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