Thomas et al v. Chambers et al, No. 2:2018cv04373 - Document 196 (E.D. La. 2019)
Court Description: ORDER AND REASONS: For the foregoing reasons set forth in the document, plaintiffs' 154 motion to exclude certain lay testimony is GRANTED IN PART and DENIED IN PART. Defendants' 53 motion to exclude evidence of settlements in other matters is DENIED. Plaintiffs' 56 motion to exclude video surveillance evidence is DENIED. Defendants' 57 motion to exclude evidence of Chambers's past convictions is DENIED. And defendants' 52 motion to exclude portions of the accident report and testimony of Officer Sengha is GRANTED IN PART and DENIED IN PART. Signed by Judge Sarah S. Vance on 5/6/2019. (mm)
Download PDF
<![CDATA[
Thomas et al v. Chambers et al Doc. 196 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIERRA TH OMAS, ET AL. VERSUS CIVIL ACTION NO. 18 -4373 RANDALL CH AMBERS, ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is (1) plaintiffs’ m otion to exclude certain lay testim ony, 1 (2) plaintiffs’ m otion s to exclude eviden ce of plaintiffs’ phon e records an d records from other car accidents, 2 (3) defendants’ m otion to exclude evidence of settlem en ts in other m atters, 3 (4) plaintiffs’ m otion to exclude video surveillance evidence, 4 (5) defendants’ m otion to exclude evidence of defendant Randall Cham bers’s past con viction, 5 and (6) defendants’ m otion to exclude portions of the acciden t report and testim on y of Officer J assa Sengha. 6 The Court rules as follows. I. BACKGROU N D This case arises out of a m otor vehicle accident in Orleans Parish. 7 On April 24, 20 17, plain tiff Kierra Thom as was allegedly driving an autom obile westboun d 1 2 3 4 5 6 7 R. Doc. 154. R. Doc. 61. R. Doc. 53. R. Doc. 56. R. Doc. 57. R. Doc. 52. R. Doc. 1-4. Dockets.Justia.com on Interstate 10 in the right-han d lan e with plaintiffs Antoine Clark and Shirley Harris as passengers. 8 Nonparty Sam uel Doyle was also travelin g with plaintiffs. 9 Defendant Randall Cham bers was allegedly driving a tractor-trailer n ext to plaintiffs in the m iddle lane. 10 Cham bers was driving the tractor-trailer in the course of his em ploym ent with defendan t God’s Way Trucking, LLC. 11 Plaintiffs allege that Thom as was driving “straight in a cautious fashion” when Cham bers negligently attem pted to m ove into the right-hand lan e without “keep[ing] a proper lookout.”12 Cham bers’s vehicle allegedly struck plaintiffs’ vehicle, causing all three plaintiffs to be “violently jolted.”13 All three plaintiffs allege that they have suffered serious injuries to their necks an d backs because of the collision. 14 They have each received m edical treatm en t for injuries to their cervical and lum bar spines. 15 On April 6, 20 18, plaintiffs filed suit in state court against Cham bers, God’s Way, and defendant Canal Insuran ce Com pan y. 16 Canal Insuran ce allegedly insured the tractor-trailer Cham bers was driving on the day of the collision. 17 8 9 10 11 12 13 14 15 16 17 Id. at 3 ¶¶ 7-8. R. Doc. 175 at 3. R. Doc. 1-4 at 3 ¶ 9. Id. at 2 ¶ 3; R. Doc. 36-4 at 3. R. Doc. 1-4 at 3 ¶ 10 . Id. ¶¶ 10 -11. Id. at 5 ¶ 16, 6 ¶¶ 19 & 22. See R. Doc. 88-3 at 17-21. R. Doc. 1-4 at 2 ¶ 3. Id. 2 Plaintiffs allege that Cham bers’s negligen ce caused their injuries, and that God’s Way is liable for their dam ages as Cham bers’s em ployer un der the doctrine of responden t superior. 18 Defendants’ prim ary defense is that plaintiffs intention ally caused the collision in order to recover from defendants in litigation . 19 Defendants state in the Pretrial Order that “plaintiffs’ vehicle was traveling at a greater speed than the defendants’ vehicle at im pact, indicating that plain tiffs sped up and drove into defendants’ trailer.”20 Defendants previously filed a counterclaim alleging that plaintiffs’ filing of this lawsuit constituted a fraudulen t m isrepresentation entitling defendants to dam ages under Louisiana law. 21 The court dism issed the counterclaim because it was incom patible with an assertion that defendan ts justifiably relied on plaintiffs’ alleged m isrepresen tations, an d therefore was n ot legally cognizable. 22 18 19 20 21 22 Id. at 4 ¶¶ 13-14. See R. Doc. 152 at 11. Id. R. Doc. 13. R. Doc. 20 . 3 II. D ISCU SS ION A. Plain tiffs ’ Mo tio n to Exclu d e Lay Te s tim o n y Plaintiffs m ove to exclude eighteen of defendan ts’ proposed lay witn esses from testifying at trial. 23 The witnesses plaintiffs iden tify are associated with defendants’ argum en t that plain tiffs staged the collision. According to defendants, m any of the witnesses were involved in strikingly sim ilar collisions on Interstate 10 in 20 17, an d have som e sort of fam ilial or social relationship with plaintiffs. 24 Defendants seek to use these other sim ilar collisions, an d plaintiffs’ conn ections to the individuals involved in them , to support their argum ent that plaintiffs intention ally crashed into Cham bers’s vehicle to recover dam ages in litigation . Plaintiffs argue that these witnesses should be excluded under Federal Rule of Evidence 40 3. Un der Rule 40 3, eviden ce m ay be excluded if its probative value is substan tially outweighed by the danger of unfair prejudice, confusion of the issues, m isleading the jury, undue delay, wasting tim e, or needlessly presen ting cum ulative evidence. Fed. R. Evid. 40 3. Plaintiffs conten d that lay testim ony on these tangen tially-connected collisions would result in “m ini-trials” about whether 23 R. Doc. 154. R. Doc. 152 (parties’ Pretrial Order, in which defendants list other accidents from 20 17 that are factually sim ilar to the subject collision); R. Doc. 22-4 (defendants’ proposed am ended counterclaim , in which they document the fam ilial and social relationships plaintiffs have with m any of the proposed lay witnesses). 24 4 they were in fact staged. 25 According to plaintiffs, the evidence would thus confuse the jury, waste tim e at trial, and operate to their prejudice. 26 During the pretrial conference—which took place after plaintiffs filed this m otion but before defendants filed their opposition—the Court discussed the adm issibility of this lay testim on y. The Court instructed defen dants that eviden ce of nonparties’ stagin g collisions is adm issible only if defendan ts can show that (1) a nonparty adm itted that he or she staged another collision in order to bring a tort claim against another party, and (2) there is eviden ce that that sam e n onparty com m unicated with one or m ore plaintiff in this case around the tim e of the subject collision. 27 The Court found that any such evidence would be adm issible under Rule 40 3. That evidence would not result in m ini-trials because there would be direct evidence that the other collision was staged. And the testim on y would be probative of defendants’ argum ent because a conversation with an individual who has adm itted to staging collisions around the tim e of the sim ilar collision at issue suggests that the witness m ay have spoken with a plaintiff about the schem e. Following the pretrial conference, defen dants now state that they seek to call at trial only eight of the eighteen witn esses to whom plaintiffs originally objected. 28 The Court addresses each of these eight witnesses below. 25 26 27 28 R. Doc. 154-1 at 3-4. Id. See R. Doc. 165 at 2. See R. Doc. 175. 5 1. Sam uel Doy le Defendants state that Sam uel Doyle is an eyewitness to the collision because he was a passen ger in plaintiffs’ vehicle. 29 Defendants further state that they will introduce Doyle’s deposition transcript in lieu of live testim ony, an d that they will redact from the transcript an y discussion of Doyle’s kn owledge of other collisions. 30 Doyle’s testim ony is relevan t and adm issible as to his observations of the collision and plaintiffs before and after the collision. That testim ony is relevan t to the questions of fault and plaintiffs’ dam ages. But because there is n o basis for finding his testim on y as to other collisions relevan t, Doyle m ay not testify about any other collision. Whether defendants m ay use Doyle’s deposition transcript in lieu of live testim ony depends upon whether Doyle is unavailable at trial under Federal Rule of Evidence 80 4. See Fed. R. Evid. 8 0 4(b)(1) (deposition testim ony is adm issible over hearsay exception if, in ter alia, witness is unavailable under Rule 80 4(a)). The Court cann ot determ ine at this tim e whether Doyle’s deposition testim ony will be adm issible un der this rule. Defendants m ay of course use the deposition transcript for im peachm ent purposes at trial if Doyle testifies. In the even t defendants introduce the transcript, they are ordered to redact any m ention of other collisions. 29 30 Id. at 3. Id. 6 2. Tara Blunt Plaintiffs Clark and Harris both stated during their depositions that they were at Tara Blun t’s apartm ent before the collision. 31 Defendants state that Blun t will testify about plaintiffs’ injuries an d their “activities and m ovem ent prior to an d after the acciden t.”32 Plaintiffs’ activities before and after the collision are relevant to the question of plaintiffs’ injuries and to defendants’ argum ent that plaintiffs had a plan to intentionally cause the collision. Blunt m ay offer testim on y on these issues because there is evidence Blunt was with plaintiffs on the day of the collision. 3. Harry Dorsey Harry Dorsey was a plaintiff in a personal injury suit in a separate section of this Court. 33 This suit also arose from a m otor vehicle collision between a passenger vehicle an d a tractor-trailer on Interstate 10 . See Dorsey v. Jam air, No. 18 -660 3 (E.D. La. J uly 10 , 20 18). On March 12, 20 19, Dorsey voluntarily dism issed his claim s in that lawsuit. 34 Defendan ts state that on March 14, 20 19, defendants’ investigator, J oe Schem bre, obtained a recorded statem ent from Dorsey in which Dorsey adm itted to participating in staging the collision in that lawsuit. 35 Plaintiff Harris’s phone records indicate that she was in con tact with Dorsey on four 31 32 33 34 35 R. Doc. 175-1 at 7; R. Doc. 175-2 at 3-4. R. Doc. 175 at 3. Id.; R. Doc. 175-3. R. Doc. 175-3. R. Doc. 175 at 4. 7 different days im m ediately following April 24, 20 17, the date of the collision in this case: April 26, April 27, April 28, and May 2, 20 17. 36 Because defendants state that Dorsey has adm itted to stagin g this other collision, his testim ony will not require the court to con duct a m ini-trial on the circum stances of that collision. And Dorsey’s testim on y is probative of defen dan ts’ argum en t in this case because there is evidence Dorsey spoke with Harris aroun d the tim e of the collision. The records of these com m unication s show that there is enough con tact between Dorsey and H arris to indicate that Dorsey can offer testim ony relevan t to defendants’ argum ent. His testim ony is therefore probative in this case, and adm issible under Rule 40 3. 4. Lesdreka Dickson Defendants state that Lesdreka Dickson was involved in the sam e staged collision as Dorsey, and that Dickson sim ilarly dism issed her litigation claim and adm itted to defendants’ investigator that the collision was staged. 37 But unlike Dorsey, defendants do not have any evidence connecting Dickson to plaintiffs. Defendants state that they are n ot in possession of any phon e records docum enting calls between Dickson and plaintiffs. 38 Because defen dan ts have not shown how Dickson’s adm ission of staging a collision is connected to defendants’ allegation that plaintiffs in this case staged 36 37 38 See R. Doc. 175-5 at 6-10 ; R. Doc. 175. R. Doc. 175 at 3-4. Id. at 4. 8 the collision, the probative value of Dickson’s testim ony is substan tially outweighed by its potential prejudice. Dickson’s testim ony could create an un due inference that plaintiffs staged the collision because of Dickson ’s acts. But there is insufficient evidence that Dickson kn ows any plaintiff well, or m ight have discussed staging collisions with any plaintiff. In addition, because the Court finds that Dorsey m ay testify at trial, Dickson’s testim ony would be needlessly cum ulative of Dorsey’s even if defendan ts did have evidence conn ecting her to plaintiffs. The Court therefore gran ts plaintiffs’ m otion to exclude testim on y from Dickson. 5. Charlotte Jones Defendants state that they will call Charlotte J ones to testify about her “person al kn owledge of . . . plaintiffs’ involvem en t in staging acciden ts.”39 Defendants have obtained a recorded statem ent from J on es, in which she states that plaintiff H arris has been involved in staging other collisions. 40 J ones also stated that H arris has received m on ey from an attorn ey for helping stage collisions. 41 J ones’s recorded statem ents are probative of defendants’ argum en t because they help to show that H arris has been involved in staging other collisions with trucks for the purpose of filing claim s for dam ages. Defendan ts assert that m any of these other allegedly staged collisions occurred in sim ilar locations on 39 40 41 Id. R. Doc. 175-6 at 10 -11. Id. 9 Interstate 10 in 20 17. 42 The sim ilarities in circum stances, location , and tim e between the subject collision and these other collisions increases the probity of J ones’s proposed testim ony. See United States v . Ram ey , 531 F. App’x 410 , 421 (5th Cir. 20 13) (probative value of prior acts was heightened by their “gen eral likeness to the charged offenses”). This evidence is also not excludable un der Rule 40 4(b) as inadm issible evidence of prior bad acts. Fed. R. Evid. 40 4(b). Harris’s participation in a wider crim inal schem e to stage accidents with trucks on Interstate 10 is adm issible under Rule 40 4(b)(2) to show inten t, plan, and the absence of m istake or accident. Id. 40 4(b)(2); Ram ey , 531 F. App’x at 420 -21 (evidence of prior bad acts was adm issible under Rule 40 4(b)(2) because it was relevan t to the defendant’s “com m on schem e of defrauding”). Because the probative value of J on es’s testim ony is not outweighed by any of the Rule 40 3 factors and is adm issible under Rule 40 4(b)(2), J on es’s testim ony is adm issible at trial. This ruling does not contradict the Court’s instruction followin g the pretrial conference. That instruction applies to evidence of other staged collisions in which plaintiffs played no role. By con trast, J ones’s proposed testim ony directly im plicates H arris in staging other collisions, and is therefore directly probative of defendants’ argum en t. 42 R. Doc. 152 at 30 -31. 10 6. Ray m ond Riley The Court finds that Raym ond Riley’s testim on y is adm issible at trial, provided defendants lay a sufficient foun dation for his testim ony before Riley is called. Charlotte J ones states in her recorded statem en t that Riley is the “head person” involved in recruiting people to participate in staging collisions. 43 As already addressed, J ones states that plaintiff Harris is also in volved in recruiting people to participate in these schem es. 44 J ones indicates that Harris is as heavily involved in staging collisions as Riley, an d that H arris is paid the sam e am ount as Riley for successfully recruiting som eone to participate. 45 According to J ones, the am ount H arris and Riley receive is higher than the am oun t paid to people who are m ore junior than them . 46 J ones’s recorded statem ent thus places Harris and Riley at the top of a schem e to recruit individuals to participate in staging collisions. J ones’s statem ent sufficiently connects Riley and H arris to suggest Riley will be able to testify that he has knowledge of H arris staging other collisions. The other allegedly staged collisions defendants cite were sim ilar to the subject collision. 47 43 As already R. Doc. 175-6 at 2-3 (J ones stating that “Top is the head person,” and that Riley goes by the nickname “Top”). 44 Id. at 11 (“J ones: Listen. You Top. All Top you get a thousand dollars. . . . For bringing me. I get 50 0 . I’m just an outsider. For Shirley Harris and the [T]op the same, they both get a thousand. . . . [Interviewer:] Is Shirley Harris at the sam e level as Top? J ones: Yes.”). 45 Id. 46 Id. 47 R. Doc. 152 at 30 -31. 11 addressed, these sim ilarities indicate that Riley’s proposed testim ony is directly probative of defendants’ argum en t here. That probative value is not outweighed by any of the Rule 40 3 factors. Fin ally, Riley’s testim ony is adm issible under Rule 40 4(b)(2) for the sam e reason J on es’s testim ony is adm issible. But Riley’s testim ony will be adm issible only if defendan ts first establish at trial—with adm issible evidence—that both Harris and Riley are principle figures in recruiting individuals to participate in staging collisions. 48 Only when that factual foundation has been established will the Court perm it Riley to testify. 49 7. Cornelius Garrison Harris’s phone records indicate that she com m unicated with Corn elius Garrison several tim es on the day of the collision and the following two days. 50 In particular, the phon e records show several text m essages with Garrison and m ultiple in boun d calls from Garrison within an hour of the tim e H arris testified the collision occurred. 51 Garrison m ay testify at trial regarding his com m unications with Harris on the day of the collision because that testim ony is generally probative of plaintiffs’ negligence and dam ages claim s. 48 J ones’s recorded statem ent is not sufficient to alone lay this foundation at trial because her statements in the transcript are inadm issible hearsay. 49 Like Charlotte J ones’s proposed testim ony, the Court’s instruction following the pretrial conference does not apply to Riley’s testim ony about Harris’s direct involvem ent in staging other collisions. 50 R. Doc. 175-5 at 2-4. 51 Id. at 4; R. Doc. 175-1 at 6. 12 Defendants presen t no evidence that Garrison has been involved in staging other collisions. 52 H is testim on y is therefore lim ited to his observations of plaintiffs on the day of the collision through his com m unications with Harris. He m ay n ot testify about any other collisions in which no plaintiff was involved. 8. Joe Schem bre J oe Schem bre is the investigator who obtained the recorded statem ents of Dorsey, Dickson, an d J ones. 53 Defendants state that Schem bre’s testim ony is relevant to “issues concerning com m unications with witn esses.”54 To the exten t Schem bre will sim ply recoun t what other witnesses told him , his testim ony would be in adm issible hearsay evidence. But Schem bre m ay testify that he interviewed the witn esses, and he m ay explain how and when the interviews were conducted. Schem bre’s observations of defendants’ witnesses m ay also be relevan t and not hearsay. Finally, Schem bre m ay testify for im peachm en t purposes, consistent with Federal Rule of Evidence 613(b). Fed. R. Evid. 613(b) (“Extrinsic evidence of a witness’s prior incon sistent statem ent is adm issible only if the witness is given an opportunity to explain or deny the statem ent and an adverse party is given an opportunity to exam ine the witness about it, or if justice so requires.”); United States v. Cisneros-Gutierrez, 517 F.3d 751, 763-64 (5th Cir. 20 0 8) (district court 52 According to defendants, Lesdreka Dickson stated that on the day of her staged collision, Riley spoke to Cornelius Garrison. R. Doc. 175 at 4. But defendants do not present any evidence that Garrison was involved in staging that collision. 53 R. Doc. 175 at 6. 54 Id. 13 did not err in perm itting testim ony of law enforcem ent officer as “extrinsic evidence” pursuant to Rule 613). B. Plain tiffs ’ Ph o n e Re co rd s an d Re co rd s o f Oth e r Co llis io n s Plaintiffs previously m oved to exclude any evidence of their phone records. 55 The Court denied plaintiffs’ proposed blanket ban, but deferred ruling on which phone records would be adm issible until it considered plain tiffs’ m otion to exclude defendants’ lay testim ony related to other collisions. 56 The Court finds that Harris’s phone records showing she com m unicated with Harry Dorsey an d Corn elius Garrison from April 24, 20 17 to May 2, 20 17 are adm issible, consistent with the Court’s discussion in the previous section. If defendants wish to include any other evidence of plaintiffs’ phon e records, they m ust provide written briefing on the issue n o later than m idnight on the day before the proposed offer. Defendants shall explain in the briefing how the evidence is probative of an issue at trial, consisten t with Rule 40 3 and the Court’s discussion in this Order. The Court also previously deferred ruling on plaintiffs’ m otion to exclude “testim ony, records, and/ or police reports of any other accident[].”57 In their opposition to plaintiffs’ m otion to exclude lay testim ony, defendants seek to introduce testim on y about only one other specific collision: the collision involving Harry Dorsey and Lesdreka Dickson. 58 This is therefore the only collision still 55 56 57 58 R. Doc. 61-1 at 13. R. Doc. 168 at 25-26. Id. at 26-27. R. Doc. 175 at 4-5. 14 applicable to this m otion. Because the Court has found that Dorsey’s testim on y about the other collision is adm issible under Rule 40 3, it also finds that records and police reports related to that collision are relevant. At trial, defen dan ts m ay introduce these docum ents provided they do not con tain in adm issible hearsay. C. D e fe n d an ts ’ Mo tio n to Exclu d e Evid e n ce o f Se ttle m e n ts in Oth e r Matte rs Defendants m ove to exclude evidence of settlem en ts in the other cases that defendants specifically allege were staged. 59 This m otion is now applicable to only the litigation for the collision involving Harry Dorsey, because that is the only other collision defendants specifically m en tion in their briefs that the Court has deem ed can be introduced at trial. Defen dan ts argue that evidence of other settlem en ts is barred by Federal Rule of Evidence 40 8(a). 60 Rule 40 8(a) provides: Evidence of the following is not adm issible—on behalf of an y party— either to prove or disprove the validity or am ount of a disputed claim or to im peach by a prior inconsisten t statem ent or a contradiction: (1) furnishing, prom ising, or offering—or accepting, prom ising to accept, or offerin g to accept—a valuable consideration in com prom ising or attem pting to com prom ise the claim ; and (2) conduct or a statem ent m ade during com prom ise negotiations about the claim —except when offered in a crim inal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcem ent authority. 59 60 R. Doc. 53. R. Doc. 53-1 at 5-7. 15 Fed. R. Evid. 40 8(a). This rule is inten ded to en courage the com prom ise an d settlem en t of disputes, in part by ensuring freedom of com m unication with respect to com prom ise negotiations. U.S. Aviation Underw riters, Inc. v. Oly m pia W ings, Inc., 896 F.2d 949, 956 (5th Cir. 1990 ). Rule 40 8(b) provides that the Court can nonetheless adm it any such eviden ce “for an other purpose, such as proving a witness’s bias or prejudice, n egating a contention of undue delay, or proving an effort to obstruct a crim inal investigation .” Fed. R. Evid. 40 8(b). “Whether to adm it evidence for another purpose is within the discretion of the trial court.” Belton v. Fibreboard Corp., 724 F.3d 50 0 , 50 5 (5th Cir. 1984). The parties do not address whether Rule 40 8(a) applies to evidence of settlem en ts involving com pletely differen t parties an d claim s. But that is the issue defendants present in their m otion because no plaintiff was in volved in the Dorsey litigation. 61 Defendan ts cite to Branch v. Fidelity Casualty Com pany , 783 F.2d 1289 (5th Cir. 198 6), and Kennon v. Slipstream er, Incorporated, 794 F.2d 10 67 (5th Cir. 1986), but neither case is on point. In both cases, the Fifth Circuit held that Rule 40 8 barred evidence of settlem ents between the plaintiff an d certain defendants in a m ulti-defen dan t litigation, when the evidence was introduced at trial to the prejudice of a rem aining party. Branch, 783 F.2d at 1294; Kennon, 794 F.2d at 10 69-70 . In Branch, the court noted that the purpose of Rule 40 8(a) extends to situations in which the evidence of a settlem ent is used “to prejudice a 61 See R. Doc. 152 at 30 . 16 separate and discrete claim ” from the one involved in the settlem ent n egotiations. Branch, 783 F.2d at 1291 & 1294 (“The spectre of a subsequen t use to prejudice a separate and discrete claim is a disincentive which Rule 40 8 seeks to preven t.”). This statem en t is arguably at odds with other Circuits’ interpretations of Rule 40 8(a). See Broadcort Capital Corp. v. Sum m a Med. Corp., 972 F.2d 1183, 1194 (10 th Cir. 1992) (Rule 40 8(a) does not bar evidence “related to settlem ent discussions that involved a differen t claim than the one at issue in the current trial”); Dahlgreen v. First N at’l Bank of H oldrege, 533 F.3d 68 1, 699-70 0 (8th Cir. 20 0 8) (“Rule 40 8 does not require the exclusion of evidence regarding settlem ent of a claim differen t from the one litigated, though adm ission of such evidence m ay nonetheless im plicate the sam e concerns of prejudice and deterrence of settlem en ts which underlie Rule 40 8.” (quoting Tow erridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 770 (10 th Cir. 1997)). But even if Rule 40 8(a) were to apply to evidence of these other settlem en ts, the eviden ce is adm issible under Rule 40 8 (b) as rebuttal eviden ce. See Zurich Am . Ins. Co. v. W atts In dus., Inc., 417 F.3d 682, 689 (7th Cir. 20 0 5) (noting that evidence of settlem ents “has been adm itted by courts for additional purposes other than establishing liability, including for purposes of rebuttal . . .”); Fick v. Exxon Mobil Corp., No 13-660 8 , 20 16 WL 81716, at *3 (E.D. La. J an. 7, 20 16) (sam e). In the context of this trial, plaintiffs would n ot be introducing this evidence to prove, in the first instance, that the claim s in another case were valid. They would instead introduce the eviden ce to rebut defendants’ suggestion that the other collision was 17 staged. Plaintiffs m ay use this evidence for that purpose under Rule 40 8(b). Id. Further, the Seventh Circuit in Zurich noted that when the district court uses its wide discretion to determ ine whether Rule 40 8 evidence is introduced for a proper purpose, courts “should consider the spirit and purpose of the rule and decide whether the need for the settlem ent evidence outweighs the potentially chillin g effect on future settlem ent n egotiations.” Zurich, 417 F.3d at 689. The adm ission of this evidence does not undercut the purpose of Rule 40 8(a). Adm ission under these circum stances does not create a disincentive for parties to engage in settlem en t n egotiations, because the evidence is n ot being used to the prejudice of any of the parties in the case in which the settlem en t negotiations took place. In all, the Court fin ds that given the particular circum stan ces of this case, plaintiffs m ay introduce evidence of a settlem ent, if an y, in the case discussed during H arry Dorsey’s testim ony. This evidence is especially appropriate given that the Court will allow defendants to present evidence of Dorsey’s collision and resulting litigation claim in the first instance. D. Plain tiffs ’ Mo tio n to Exclu d e Vid e o Su rve illan ce Evid e n ce an d Re q u e s t fo r S an ctio n s Plaintiffs m ove to exclude defendants from introducing surveillance video at trial. 62 Defendan ts retained the services of nonparty Photofax, Inc., to conduct video surveillan ce of plaintiffs Thom as an d Clark in August and Septem ber 20 18 . 63 62 63 R. Doc. 56. R. Doc. 71 at 2. 18 Defendants state that one video of Clark from August 21, 20 18 shows him lifting a lawn m ower and placing it into his truck. 64 This evidence is highly relevant to Clark’s claim s for physical pain an d suffering dam ages and future m edical expenses, as well as his credibility as a witn ess. These videos are therefore relevan t under Federal Rule of Evidence 40 1, an d not m ore prejudicial than probative under Rule 40 3. See Baker v. Canadian N at’l/ Ill. Cen t. R .R., 536 F.3d 357, 369 (5th Cir. 20 0 8) (district court did not abuse its discretion under Rule 40 3 in allowing video surveillance evidence that disputed the plaintiff’s evidence regarding his “post-accident quality of life”); Menges v. Cliffs Drilling Co., No. 992159, 20 0 0 WL 7650 83, at *2 (E.D. La. J une 12, 20 0 0 ) (adm itting surveillan ce video evidence that underm ined the plaintiff’s assertions of physical pain an d disability). Plaintiffs prim arily argue that the surveillance videos should be excluded because defendan ts failed to tim ely disclose them . 65 This argum ent is m eritless. Defendant Cham bers responded to plain tiffs’ interrogatories and requests for production on August 17, 20 18. 66 Cham bers identified as potential witn esses “[a]ny an d all individuals who m ay have or will secure surveillance of an y plaintiffs.”67 He also identified as an exhibit “[a]ny an d all surveillance secured at 64 65 66 67 Id. at 7. R. Doc. 56-1. R. Doc. 71-1. Id. at 3. 19 any point.”68 At the tim e of Cham bers’s response, Photofax was in the m idst of surveilling Thom as and Clark. 69 On August 28, 20 18 , God’s Way responded to plaintiffs’ interrogatories and requests for production. 70 God’s Way iden tified the sam e potential witn esses and exhibits. 71 God’s Way also disclosed in these responses that surveillance of Clark an d Thom as had been con ducted. 72 Defendants state that they did not receive the surveillance videos from Photofax un til February 25, 20 19. 73 Defen dants produced the videos to plaintiffs that sam e day, which was three weeks before the March 18, 20 19 discovery deadlin e. 74 Plaintiffs filed the instan t m otion on February 25, 20 19, as well. 75 On February 26, 20 19, defendants’ counsel disclosed to plain tiffs’ counsel the n am e of the Photofax investigator who conducted the surveillance, an d inquired whether plaintiffs would like to schedule a deposition before the March 18 discovery deadlin e. 76 Plain tiffs’ counsel declined to schedule a deposition , and responded that she was “just m oving to strike him instead.”77 The record thus indicates plaintiffs were advised as early as August 20 18 that defendants were con ducting surveillance of Thom as and Clark. The record also 68 69 70 71 72 73 74 75 76 77 Id. at 6. See R. Doc. 71 at 2. R. Doc. 71-2. Id. at 3, 9. Id. at 11. R. Doc. 71 at 3. R. Doc. 71-5 at 3. R. Doc. 56. R. Doc. 71-6 at 1. Id. 20 shows that defendants produced the surveillance video before the discovery deadlin e and offered to schedule a tim ely deposition of the individual who conducted the surveillance. Defendants’ disclosures are consistent with the Court’s Scheduling Order. Plaintiffs have not been prejudiced by defendants’ disclosures, especially because the Court has since continued the trial without date. In all, because defendants produced these videos in advan ce of the discovery deadlin e and m ade their witness available for a deposition before the deadline, plaintiffs’ m otion to strike and for sanctions is m eritless. See Baker, 536 F.3d at 368-69 (noting that n ot even surveillance tape “disclosed after the discovery cutoff, but before trial, is autom atically in adm issible”). The m otion is denied. E. D e fe n d an ts ’ Mo tio n to Exclu d e Evid e n ce o f Pa s t Co n victio n s Defendants m ove to exclude evidence of Cham bers’s past felony conviction. The m otion is denied. On May 26, 20 0 9, Cham bers pleaded guilty to one count of conspiracy under 18 U.S.C. § 371. See United States v. Cham bers, No. 0 7-31 (S.D. Ga. May 29, 20 0 9). The J udgm en t of Cham bers’s sentence described the nature of his offense as [c]onspiracy to alter and rem ove vehicle identification num bers, to traffic in m otor vehicles with altered vehicle identification n um bers, to sell and receive stolen m otor vehicles, and to possess and counterfeit forged state securities with the intent to defraud. 21 Id. 78 Cham bers was sentenced to a term of 18 m onths im prisonm ent and three years of supervised release. Id. Under Federal Rule of Evidence 60 9(a), in a civil case, evidence of a crim inal conviction for a crim e punishable by death or by im prison m en t for m ore than one year “m ust be adm itted, subject to Rule 40 3.” Fed. R. Evid. 60 9(a)(1)(A). Un der Rule 60 9(b), “if m ore than 10 years have passed since the witness’s conviction or release from confinem ent for it, whichever is later,” evidence of the conviction is adm issible only if: “(1) its probative value, supported by facts and circum stances, substantially outweighs its prejudicial effect; and (2) the proponen t gives an adverse party reason able written notice of the inten t to use it so that the party has a fair opportunity to contest its use.” Fed. R. Evid. 60 9(b). 78 In their briefs, the parties name the statute under which Cham bers was convicted, the jurisdiction in which he was sentenced, the terms of im prisonment and supervised release, and his date of conviction. R. Doc. 121 at 2. But neither party introduces into the record Chambers’s judgment from the Southern District of Georgia, which describes the nature of his offense. The Court may nonetheless take judicial notice of the record in Chambers’s crim inal case. See Gray ex rel. Rudd v. Beverly Enters.-Miss., Inc., 390 F.3d 40 0 , 40 8 n. 7 (5th Cir. 20 0 4) (“We m ay take judicial notice of another court’s judicial action. . . . [T]he fact that a judicial action was taken is indisputable and is therefore amenable to judicial notice.”); Charles A. Wright & Arthur R. Miller, 21B Fed. Prac. & Proc. § 510 6.4 (2d ed. & Supp. 20 12) (courts and com m entators “generally agree that courts can take judicial notice of court records under Rule 20 1(b)(2)”); Fed. R. Evid. 20 1(b) (providing that a court “m ay judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determ ined from sources whose accuracy cannot reasonably be questioned”). 22 It is not en tirely clear whether the restriction in Rule 60 9(b) applies to this m otion . 79 Trial was originally scheduled to begin on April 29, 20 19, which would have been within ten years of Cham bers’s May 26, 20 0 9 con viction. 80 But the Court has con tinued trial and has not set a new date. 81 Trial will not start until after the ten-year an niversary of Cham bers’s conviction. Rule 60 9(b) is im plicated only if m ore than ten years have passed from Cham bers’s “release of confin em en t.” Id. The parties have not provided any inform ation regarding the date Cham bers was released from confinem en t. The Court therefore cann ot at this tim e determ ine whether trial will com m ence fewer than ten years from the date Cham bers was released. But this uncertainty is irrelevant, because the Court finds that even if Rule 60 9(b) were to apply, evidence of Cham bers’s 20 0 9 conviction would nonetheless be adm issible. In weighing the probative value versus any prejudicial effect of adm itting prior con victions under Rule 60 9(b), courts con sider the following factors: (1) The nature [im peachm ent value] of the crim e. (2) The tim e of conviction. 79 Defendants conceded in their m otion that Rule 60 9(b) does not apply because Cham bers’s conviction was within ten years of the original trial date. R. Doc. 121 at 2. But defendants filed their m otion prior to the Court continuing trial, so their concession does not cure the am biguity the Court faces. 80 R. Doc. 9. 81 R. Doc. 173. 23 (3) The sim ilarity between the past crim e and the charged crim e. (4) The im portance of [the witness’s] testim ony. (5) The centrality of the credibility testim ony. United States v. Acosta, 763 F.2d 671, 695 n.30 (5th Cir. 1985) (quoting United States v. Haw ley , 554 F.2d 50 , 53 n. 5 (2d Cir. 1977)). The third factor is not applicable here, because Cham bers is n ot a crim inal defendant charged with a crim e. See United States v. Bates, No. 13-66, 20 15 WL 346618 8, at *2 (E.D. La. J une 1, 20 15) (third factor not relevant where the relevant witness was not a crim inal defendan t charged with a crim e). On balance, the four applicable factors weigh in favor of adm ission. As to the first factor, the im peachm ent value of the prior crim es, the Fifth Circuit has held that “prior crim es involving deliberate and carefully prem editated intent such as fraud and forgery are far m ore likely to have probative value with respect to later acts than prior crim es involving a quickly and spontaneously form ed intent.” United States v. Cohen, 544 F.2d 781, 78 5 (5th Cir. 1977) (quoting United States v . San Martin, 50 5 F.2d 918, 923 (5th Cir. 1974)). “[S]uch crim es are m ore probative on the issue of propen sity to lie under oath than m ore violent crim es which do not involve dishonesty.” Id. Here, Cham bers was convicted for taking part in a crim inal auto-theft schem e, which involved “possess[ing] and counterfeit[ing] forged state securities with the intent to defraud.” Cham bers, No. 0 7-31 (S.D. Ga. May 29, 20 0 9). His offen se was not a spon tan eous violent act, but a prem editated schem e to forge vehicle identification inform ation to traffic in 24 stolen goods. Cham bers’s conviction therefore has significan t im peachm en t value on his capacity for truthfuln ess. As to the second factor, the tim e of conviction, if it proves to be the case that Cham bers was released from con finem en t m ore than ten years from the date of trial, it likely would not be by m uch. The Court thus finds that this factor is not determ in ative. The fourth an d fifth factors—the im portan ce of the witness’s testim ony and the centrality of the credibility testim on y—weigh heavily in favor of adm ission. This case is about whether Cham bers negligently caused the collision or whether plaintiffs intentionally caused the collision to recover dam ages in litigation . Cham bers and plaintiffs are the essential witnesses on this question. Whether the jury credits Cham bers’s or plaintiffs’ testim ony is therefore critically im portant. See Bates, 20 15 WL 3466188 , at *2 (noting that when “the jury essentially has to choose between one version of even ts presented” by the witness with a prior conviction and the opposing party’s witnesses, the fourth and fifth factors weigh in favor of adm ission). Cham bers’s credibility is especially im portan t in these circum stances because he is accusing plaintiffs of fraudulent behavior to exculpate him self from civil liability. When the crux of a case is a credibility issue, other courts have recognized that evidence of prior convictions takes on “special significance.” United States v. Pritchard, 973 F.2d 90 5, 90 9 (11th Cir. 1992); see also United States v. Brow n, 60 3 F.2d 10 22 (1st Cir. 1979). 25 The Court thus fin ds that, in the event Rule 60 9(b) were to apply to Cham bers’s prior conspiracy conviction, evidence of the conviction is adm issible because its probative value substan tially outweighs its prejudicial effect. In the alternative, if event Rule 60 9(b) is not applicable at trial, Cham bers’s conspiracy conviction is adm issible under Rule 60 9(a)(1)(A) for the sam e reasons described herein. See Fed. R. Evid. 60 9(a)(1)(A) (evidence of a conviction punishable by im prisonm en t for m ore than on e year m ust be adm itted in a civil case, subject to Rule 40 3). On cross exam in ation, to attack Cham bers’s credibility, plaintiffs are perm itted to establish only “the nature” of the crim e charged, the date and tim e of conviction, and the punishm ent Cham bers received. See Veals v. Edison Chouest Offshore, LLC, No. 0 6-3776, 20 0 7 WL 3237171, at *2 (E.D. La. Oct. 31, 20 0 7) (citing Beaudine v . United States, 368 F.2d 417, 421-22 (5th Cir. 1966)); Gaudin v. Shell Oil Co., 132 F.R.D. 178, 179 (E.D. La. 1990 ). In this con text, the “nature” of Cham bers’s offense m eans how the offense is described in the J udgm en t in Cham bers’s crim inal case. See Cham bers, No. 0 7-31 (S.D. Ga. May 29, 20 0 9) (“Conspiracy to alter and rem ove vehicle identification n um bers, to traffic in m otor vehicles with altered vehicle identification num bers, to sell and receive stolen m otor vehicles, and to possess and coun terfeit forged state securities with the intent to defraud.”). Plaintiffs m ay not in quire into an y other details of Cham bers’s conviction. See Gaudin, 132 F.R.D. at 179. 26 F. D e fe n d an ts ’ Mo tio n to Exclu d e Po rtio n s o f Accid e n t Re p o rt Defendants m ove to exclude Officer J assa Sengha—the New Orleans Police Departm ent (NOPD) officer who arrived at the scen e and com pleted a vehicle crash report—from offerin g an y opinion on the cause of the collision or which party was at fault. 82 Defen dan ts also m ove to redact any portion of the crash report that contains inadm issible opinion testim on y. 83 Federal Rule of Evidence 70 1, which governs lay opinions, provides that such opinions are adm issible when they are “(1) rationally based on the perception of the witn ess, (2) helpful to a clear understanding of the witness’ testim on y or the determ in ation of a fact in issue, an d (3) not based on scien tific, technical, or other specialized knowledge.” Fed. R. Evid. 70 1. Police officers’ opinions as to the cause of an autom obile accident form ed by viewing subsequent evidence at the scen e are excluded under Rule 70 1, because such opinions require scientific, technical, or other specialized knowledge. See Duhon v . Marceaux, 33 F. App’x 70 3, 20 0 2 WL 432383, at *4 (5th Cir. 20 0 2); Rea v. W is. Coach Lines, Inc., No. 12-1252, 20 15 WL 10 12936, *3 (E.D. La. Mar. 5, 20 15). It is undisputed that Officer Sengha is n ot qualified to testify as an expert in accident reconstruction and that he did not witness the accident. Officer Sen gha therefore cann ot offer opinion testim on y on the cause of the collision or who was at fault. 82 83 R. Doc. 52-1 at 2-3. Id. at 3-4. 27 The parties in fact do not dispute that Officer Sen gha cannot offer these opinions at trial. They instead dispute the extent to which the accident crash report contains any inadm issible opinions and m ust be redacted. 84 The parties specifically address Officer Sengha’s statem en ts in the narrative section of the report: Driver of vehicle 185 stated he n ever observed his trailer hit vehicle 2. Driver of vehicle 1 stated he was in m iddle lan e at the tim e of the acciden t according to driver vehicle 2’s 86 statem ent. Driver of vehicle 2 stated she was in the right lan e when vehicle 1 m ade a quick lane change and hit the rear tire of the trailer being driven by driver of vehicle 1. Officer Sengha issued NOPD item slips to both drivers. Officer Sengha observed a very faint trail of white paint on the last rear tire of the trailer of vehicle 1. Officer Sengha did not issue any citations due to conflicting statem ents. Officer Sengha’s body worn cam era and in-car cam era were activated prior to arrival and for the duration of the investigation . Each of these statem ents is adm issible lay opinion testim ony because they are statem ents of fact as to what Officer Sengha observed at the scen e of the collision. Defendants argue that Officer Sengha’s statem en t that he observed “a very fain t trail of white paint on the last rear tire” of Cham bers’s vehicle is inadm issible opinion testim on y regarding causation. 84 But this is sim ply a See R. Doc. 86-1 at 2; R. Doc. 117. The parties do not dispute that the accident crash report as a whole is adm issible under the exception to the hearsay rules for a record or statement from a public office in a legally authorized investigation. See Fed. R. Evid. 80 3(8)(A)(iii) (the hearsay rule does not apply to “[a] record or statement of a public office if it sets out . . . in a civil case . . . factual findings from a legally authorized investigation”). 85 “Vehicle 1” in Officer Sengha’s report denotes Chambers’s tractortrailer. 86 “Vehicle 2” in Officer Sengha’s report denotes plaintiffs’ vehicle. 28 statem en t of what Officer Sengha observed at the scene, and is therefore adm issible lay opinion testim on y. At trial Officer Sengha cannot draw an y conclusions from this observation about who caused the collision, but his observation itself is adm issible. Finally, the statem ents in the report attributed to Cham bers and plaintiffs are poten tially adm issible under Rule 80 1(d)(2), depending upon which party offers the crash report into evidence. See Fed. R. Evid. 80 1(d)(2) (opposing party’s statem ent is not hearsay). They are therefore not per se inadm issible hearsay. III. CON CLU SION For the foregoing reasons, plaintiffs’ m otion to exclude certain lay testim on y is GRANTED IN PART and DENIED IN PART. Defendants’ m otion to exclude evidence of settlem ents in other m atters is DENIED. Plaintiffs’ m otion to exclude video surveillance evidence is DENIED. Defendants’ m otion to exclude evidence of Cham bers’s past convictions is DENIED. And defendants’ m otion to exclude portions of the accident report and testim ony of Officer Sengha is GRANTED IN PART and DENIED IN PART. New Orleans, Louisiana, this _ _6th _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 29
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
