Jeanes v. McBride et al, No. 6:2016cv01259 - Document 198 (W.D. La. 2019)
Court Description: ORDER AND REASONS: Before the Court are Objections to the Trial Deposition Testimony of Joey West, filed by Plaintiff Janet Jeanes. Defendant Greg McBride has filed responses to Jeanes' objections. For the reasons that follow, the Court SUSTAINS Objections 13 and 56 and OVERRULES Objection 4. The Court sets forth below the portions of West's deposition testimony McBride will be permitted to introduce at trial. Signed by Judge Susie Morgan on 6/14/2019. (crt,Putch, A)
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Jeanes v. McBride et al Doc. 198 U N ITED S TATES D ISTRICT COU RT W ESTERN D ISTRICT OF LOU ISIAN A JAN ET JEAN ES, Pla in tiff CIVIL ACTION VERSU S N O. 16 -12 59 GREG MCBRID E, ET AL., D e fe n d a n ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court are Objections to the Trial Deposition Testim ony of J oey West, filed by Plaintiff J anet J eanes. 1 Defendant Greg McBride has filed responses to J eanes’ objections. 2 For the reasons that follow, the Court SU STAIN S Objections 1– 3 an d 5– 6 and OVERRU LES Objection 4. The Court sets forth below the portions of West’s deposition testim ony McBride will be perm itted to introduce at trial. BACKGROU N D This case arises from the construction of a building (“the Building”) on J eanes’ property at 2534 Ham pton Dupre Road in Pine Prairie, Louisian a. 3 In the sum m er of 20 10 , J ean es began discussing the construction of the Building with McBride. 4 McBride subm itted a proposal to J eanes, which she signed on Septem ber 23, 20 10 (“the Proposal”). 5 The m aterials and plans for the roof of the Building were provided by S & S Steel Buildings, Inc., doing business as Metal Roofing Supply (“S & S”). 6 Roy Bergis 1 R. Doc. 172. R. Doc. 176. 3 R. Doc. 174 at 8, ¶ 7(1) (un contested m aterial facts in pretrial order). 4 Id. at 9, ¶ 7(2). 5 Id. at ¶¶ 7(2), (3). The proposal is on the record at R. Doc. 112-3. 6 Id. at ¶¶ 7(6), (7). 2 1 Dockets.Justia.com Sm ith, through his com pany, E. Sm ith Plum bing Service, Inc. (“E. Sm ith Plum bing”), provided plum bing services for the Building. 7 On Septem ber 9, 20 16, J eanes filed the instan t suit. 8 She alleges McBride did not obtain the perm it required for constructing the Building an d that there were num erous defects in the Building. 9 In her Com plaint and Am ended Com plaint, J eanes nam es five Defendants: McBride; Metal Buildings by Mac, LLC (“Metal Buildings”); S & S; Roy Bergis Sm ith; an d E. Sm ith Plum bing. She brings five claim s: (1) breach of contract against all Defendants, (2) negligence against S & S, (3) fraud against all Defendants, (4) violation of the Louisian a Unfair Trade Practices Act (“LUTPA”) 10 against all Defendants, and (5) successor liability against Metal Buildings. 11 The claim s against all Defendants but McBride have been dism issed. 12 The claim s against McBride are for breach of contract, fraud, and violation of LUTPA. 13 On March 14, 20 19, McBride filed a witness list nam ing as a fact witness J oseph “J oey” West, listing the following topics under “[a]nticipated testim ony: facts regarding building, construction, perm its, inspections, defenses, property and Ms. J ean es.”14 McBride did not design ate West as an expert witness or provide a report authored by him . 7 Id. at ¶ 7(8). R. Doc. 1. 9 Id. at 5, ¶ 13; 6– 7, ¶¶ 17– 20 . 10 LA. R EV. STAT. § 51:140 1 et seq. 11 R. Docs. 1, 35. 12 R. Docs. 55 (dism issin g claim s against S&S without prejudice), 67 (dism issing claim s against Metal Buildin gs without prejudice), 78 (dism issing claim s against S&S with prejudice), 84 (dism issin g claim s against Metal Buildin gs with prejudice), 160 (notice of settlem ent of claim s again st Roy Bergis Sm ith and E. Sm ith Plum bin g Service, Inc.). 13 R. Doc. 1. 14 R. Doc. 93 at 2, ¶ 6; see also R. Doc. 10 3 at 2, ¶ 6 (sam e list in am ended witness list). 8 2 McBride’s final witness list specifies West’s testim ony will be introduced by trial deposition. 15 The trial deposition was taken on April 16, 20 19. 16 On May 20 , 20 19, J eanes filed the instant objections to West’s trial deposition testim ony. 17 She argues West’s testim ony should be excluded to the extent West’s testim ony in cludes (1) issues that are properly the subject of expert testim ony, (2) irrelevant issues, (3) facts not based on personal knowledge, (4) hearsay, (5) inadm issible character evidence, and (6) unduly prejudicial, confusing, or m isleading evidence. 18 McBride has respon ded to J eanes’ objections. 19 LAW AN D AN ALYSIS I. Obje ctio n s 1 an d 3 : W e s t’s te s tim o n y abo u t ge n e ral co n s tru ctio n p ractice s an d h is e valu atio n s o f th e Bu ild in g’s co n s tru ctio n are in a d m is s ible be ca u s e W e s t is a la y w itn e s s . In her first and third objections, J ean es objects to portions of West’s testim ony that she argues are properly the subject of expert testim ony and/ or not derived from West’s personal experience. 20 West was not disclosed as an expert witness. Under Rule 70 1(c) of the Federal Rules of Evidence, a lay witness m ay not testify “based on scientific, technical, or other specialized knowledge within the scope of Rule 70 2,” which lays out the requirem ents for expert witnesses. 21 The Fifth Circuit has explained the distinction between lay an d expert testim ony as follows: [A] lay opinion m ust be the product of reasoning processes fam iliar to the average person in everyday life. A lay opin ion m ust be based on personal perception, m ust be one that a norm al person would form from those perceptions, and m ust 15 R. Doc. 186 at 1, ¶ 3. R. Doc. 172-1. 17 R. Doc. 172. 18 Id. 19 R. Doc. 176. 20 R. Doc. 172 at 7– 14. 21 Fed. R. Evid. 70 1(c). 16 3 be helpful to the jury. Any part of a witness's opinion that rests on scientific, technical, or specialized knowledge m ust be determ ined by reference to Rule 70 2, not Rule 70 1. 22 In his deposition, West testified about construction m ethods, typical practices in the construction of m etal structures, perm itting requirem ents, and other specialized knowledge. 23 West also evaluates the quality of the Building’s construction. 24 The Court finds this testim ony requires specialized knowledge and is not adm issible as lay testim ony. As a result, the Court sustains J eanes’ first and third objections to West’s testim ony. West’s testim ony about his own personal observations on his visits to the Building will be adm itted to the extent it does not involve opinion s based on specialized knowledge within the scope of Rule 70 2. 25 II. Obje ctio n s 2 a n d 5: W e s t’s te s tim o n y a bo u t h is o w n p rio r w o rk h is to ry a n d a bo u t h is p rio r d e a lin gs w ith McBrid e is irre le va n t. In her secon d an d fifth objections, J ean es argues portions of West’s testim ony dealing with West’s prior work history and West’s knowledge of McBride’s work are irrelevant and inadm issible character evidence. A. W e s t’s p rio r w o rk h is to ry is n o t re le van t. Under Rule 40 1, evidence is relevant if “(a) it has any tendency to m ake a fact m ore or less probable than it would be without the eviden ce; and (b) the fact is of consequence in determ ining the action.”26 J eanes design ates specific portions of West’s testim ony to which she objects on this basis. 27 22 United States v. Ebron, 683 F.3d 10 5, 137 (5th Cir. 20 12) (citations and intern al quotation m arks and brackets om itted). 23 See generally R. Doc. 172-1. 24 Id. 25 The Court excludes West’s testim ony about his experience in the construction industry as irrelevant when offered by a lay witness. 26 F ED . R. E VID. 40 1. 27 R. Doc. 172 at 14– 15. 4 In his deposition, West testifies regarding his own experien ce with construction and with m etal buildings. McBride’s argues West’s testim ony on these subjects is relevant because it “discusses licensing of contractors[,] bears directly on J eanes[’] com plaint.”28 Such evidence m ay be relevant to establishing the foundation for an expert’s opinions. However, as the Court has noted, McBride offers West as a lay witness to testify about the facts of this case. Testim ony about West’s prior experience with construction and with m etal buildings is not relevant to this case. B. W e s t’s kn o w le d ge o f McBrid e ’s w o rk is n o t s u fficie n t to e s ta blis h th e e xis te n ce o f a h abit o r ro u tin e p ractice u n d e r Ru le 4 0 6 . West testifies about his knowledge of McBride’s work, including testim ony regarding McBride’s practices when constructing footings and drill shafts. McBride argues this testim ony is relevant because “J eanes has attem pted to cast McBride in a false light and West’s testim ony dem onstrates his personal dealings with McBride.” McBride appears to argue West’s testim ony is adm issible because it shows McBride’s habitual behavior. Under Rule 40 6, “[e]vidence of a person’s habit or an organization’s routine practice m ay be adm itted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”29 The Court first addresses whether West’s testim ony is sufficient to establish McBride’s personal habit under Rule 40 6. A habit is a “person’s regular practice of m eeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a tim e, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are m oving. The doing of the habitual 28 29 R. Doc. 176 at 7. F ED. R. E VID. 40 6. 5 acts m ay becom e sem i-autom atic.”30 “To offer eviden ce of a habit, a party m ust at least dem onstrate a regular practice of m eeting a particular kind of situation with a specific type of conduct.”31 The Court finds McBride’s m ethod of constructing footings and drill shafts is not a regular practice of m eeting a particular kind of situation with a specific type of conduct sufficient to establish a personal habit under Rule 40 6. During the events at issue in this case, McBride conducted business as “Metal Buildings by Mac.”32 The Court turns to whether West’s testim ony is sufficient to establish the routine practice of McBride, operating as the sole proprietor of an organization. To establish an inference of an organization’s routine practice, the proponent of the evidence “m ust show a sufficient num ber of specific instances of conduct to support that inference,” m eaning it m ust “show regularity over substantially all occasions or with substantially all other parties with whom the defendant has had sim ilar business tran sactions.”33 “Evidence of the defendant’s actions on only a few occasions or only in relation to the plaintiff are not enough.”34 West’s testim ony regarding McBride’s practices when constructing footings and drill shafts and about the quality of McBride’s workm anship generally is based solely on W est’s interactions with McBride, not on McBride’s interactions on substantially all occasions or with substantially all other parties for whom McBride constructed m etal buildings. West’s testim ony that McBride habitually perform ed high-quality work is not sufficiently specific an d does not cover all parties with whom McBride has had sim ilar 30 F ED. R. E VID. 40 6 advisory com m ittee’s note to 1972 proposed rules. United States v. Anderson, 755 F.3d 782, 794 (5th Cir. 20 14) (quoting United States v. Heard, 70 9 F.3d 413, 434 (5th Cir.20 13)). 32 R. Doc. 176 at 9, ¶ 7(3). 33 Mobil Expl. & Producing U.S., Inc. v. Cajun Const. Servs., Inc., 45 F.3d 96, 99– 10 0 (5th Cir. 1995) (citations om itted). 34 Id. 31 6 transaction. As a result, it does not m eet the requirem ents of Rule 40 6. West’s testim ony will not be adm itted to show McBride’s routine practice. C. W e s t’s te s tim o n y abo u t h is p rio r d e alin gs w ith McBrid e are n o t ad m is s ible as ch aracte r e vid e n ce . McBride argues portions of West’s testim ony about his prior dealings with McBride are relevant because “J ean es has brought honesty an d character as an issue in this case by m aking fraud claim s against McBride.” 35 McBride appears to argue West’s testim ony is adm issible as character eviden ce. The Court addresses whether J eanes’ fraud claim is a claim in which McBride’s character for honesty is in issue because character is an elem ent of the claim . The note accom panying Rule 40 4 explains the use of character evidence: Character questions arise in two fundam entally different ways. (1) Character m ay itself be an elem ent of a crim e, claim , or defense. A situation of this kind is com m only referred to as “character in issue.” Illustrations are: the chastity of the victim under a statute specifying her chastity as an elem ent of the crim e of seduction, or the com petency of the driver in an action for negligently entrusting a m otor vehicle to an incom petent driver. No problem of the general relevancy of character eviden ce is involved, and [Rule 40 4] therefore has no provision on the subject. The only question relates to allowable m ethods of proof . . . . (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as “circum stantial.” Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. 36 35 36 R. Doc. 176 at 8 . F ED. R. E VID. 40 4 advisory com m ittee’s note to 1972 proposed rules. 7 Character is in issue “when character or a character trait is an operative fact which under the substantive law determ ines the legal rights of the parties.”37 In addition to the exam ples in the note to Rule 40 4, the Fifth Circuit has provided as exam ple of a case in which character is in issue “a defam ation action in which the defense of truth is raised with respect to a slan der of the plaintiff's character.”38 In this case, McBride argues J eanes’ contractual fraud claim puts McBride’s character in issue. 39 The elem ents of a contractual fraud claim are: “(1) a m isrepresentation, suppression, or om ission of true inform ation; (2) the intent to obtain an unjust advantage or to cause dam age or inconvenien ce to another; and (3) the error induced by a fraudulent act m ust relate to a circum stan ce substantially influencing the victim 's consent to (a cause of) the contract.”40 The contractual fraud claim m ay be proved without showing McBride has a dishonest character. 41 The claim requires only proof that McBride had the intent to obtain an unjust advantage or to cause dam age or inconvenience to J ean es. Character is not an elem ent of a claim of contractual fraud. 42 As a result, character is n ot in issue, an d Rule 40 4 applies. Rule 40 4 provides, “Eviden ce of a person's character or character trait is not adm issible to prove that on a particular occasion the person acted in accordance with the 37 United States v. McGee, 29 F.3d 625 n.9 (5th Cir. 1994). Id. 39 R. Doc. 176 at 8 . 40 Shelton v. Standard/ 70 0 Assocs., 20 0 1-0 587 (La. 10 / 16/ 0 1), 798 So. 2d 60 , 64; see also Petrohaw k Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380 , 388 (5th Cir. 20 12). The Court explained the elem ents of J eanes’ fraud claim in a prior order. R. Doc. 190 at 7– 9. 41 Cf. United States v. Gulley , 526 F.3d 80 9, 819 (5th Cir. 20 0 8) (“[The victim ]’s character was not an essential elem ent of the self defense claim in the ‘strict sense’ because a self defense claim m ay be proven regardless of whether the victim has a violent or passive character.”). 42 Cf. United States v. Marrero, 90 4 F.2d 251, 260 (5th Cir. 1990 ) (finding character is “sim ply not an essential elem ent” of charges of crim inal insurance fraud). 38 8 character or trait.”43 In civil cases, there is no exception to the rule. 44 Under Rule 40 4, McBride m ay not use West’s testim ony as eviden ce of honest character to show McBride acted in accordance with that character. 45 The Court sustains J eanes’ second an d fifth objections to West’s testim ony. III. Obje ctio n 4 : W e s t’s te s tim o n y abo u t h is co n ve rs a tio n s w ith Je an e s are n o t h e ars a y. J eanes argues West’s testim ony about conversations he had with her are inadm issible as hearsay. 46 Under Rule 80 1(d)(2)(A), a statem ent “offered against an opposing party an d . . . m ade by the party” is not hearsay. 47 West’s statem ents about conversations he had with J eanes are offered against her. As a result, the statem ents are not hearsay. The Court overrules J eanes’ fifth objection. IV. Obje ctio n 6 : in a d m is s ible . W e s t’s te s tim o n y abo u t Je an e s ’ ch aracte r is J eanes argues statem ents in West’s deposition about his opinion of J eanes, his interactions with her, and inform ation about another lawsuit she filed should be excluded under Rule 40 3. Rule 40 3 provides, “The court m ay exclude relevant evidence if its probative value is substantially outweighed by a danger of one or m ore of the following: unfair prejudice, confusing the issues, m isleading the jury, undue delay, wasting tim e, or needlessly presenting cum ulative evidence.”48 43 F ED. R. E VID. 40 4(a)(1). F ED. R. E VID. 40 4(a)(2) codifies exceptions for crim in al cases. 45 Even if the evidence were adm issible under Rule 40 4, F ED . R. E VID. 40 5(b) provides, “Specific instances of conduct are not perm itted unless the pertin ent character trait is an essential elem ent of a charge, claim , or defense.” Because honesty is not an essential elem ent of a contractual fraud claim , 46 R. Doc. 172 at 21– 22. 47 F ED . R. E VID. 80 2(d)(2)(A). 48 F ED . R. E VID. 40 3. 44 9 McBride argues West’s statem ents about J eanes are relevant because “J eanes has m ade character for truthfulness an issue.”49 The Court has rejected above McBride’s contention that McBride’s character is in issue in this case. McBride also argues West’s statem ents about J eanes are adm issible under Rule 60 8 . 50 Rule 60 8 provides: ( a) A witness's credibility m ay be attacked or supported by testim ony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testim ony in the form of an opinion about that character. But evidence of truthful character is adm issible only after the witness's character for truthfulness has been attacked. ( b) Except for a crim in al conviction under Rule 60 9, extrinsic eviden ce is not adm issible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court m ay, on crossexam ination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: ( 1) the witness; or ( 2 ) another witness whose character the witness being cross-exam ined has testified about. 51 In his deposition, West testifies about J eanes’ pending lawsuit against other parties, the “confusion” J eanes caused an d his opinion J eanes was “not a person that you could please.”52 He does not testify about J eanes’ reputation, his opinion of J eanes’ character for truthfulness or untruthfulness, or any instances of J eanes lying or telling the truth. As a result, Rule 60 8 does not apply. The Court finds West’s testim ony about his conversation with J eanes, his opinion of her, and another lawsuit she filed is not relevant to any issue in this case. Even if the 49 R. Doc. 176 at 10 . Id. 51 F ED . R. E VID. 60 8 . 52 R. Doc. 172-1 at 33– 35. 50 10 eviden ce were adm issible, its m in im al probative value would be substantially outweighed by a danger of prejudice to J ean es. As a result, the Court sustains J eanes’ sixth objection. V. D ire ct Exa m in a tio n by Ro y Be rgis Sm ith a n d E. Sm ith Plu m bin g a n d Cro s s -Exa m in atio n At the tim e of the trial deposition, Roy Bergis Sm ith and E. Sm ith Plum bing were Defendants in this case. They were subsequently dism issed. 53 The portions of West’s deposition testim ony by their attorney 54 will not be read to the jury. No objection to J eanes’ cross-exam ination of West has been filed. As a result, that portion of the transcript will be read to the jury, to the extent relevant. VI. Ad m is s ible Te s tim o n y Based on the foregoin g reasons, the Court lays out below the portions of West’s deposition the Court will allow McBride to introduce at trial. The Court uses the page num bers in the docum ent as filed at R. Doc. 172-1, which are different from the page num bers in the docum ent itself. 1. p. 6, line 7– p. 7, lin e 22 2. p. 13, line 22– p. 14, lin e 6 3. p. 18, line 16– p. 19, line 1 4. p. 19, lines 17– 20 5. p. 22, lines 4– 20 55 53 R. Doc. 160 . R. Doc. 172-1 at 51:9– 58:9. 55 Although J eanes did not object to p. 21 lines 18– 25, the Court excludes this testim ony about whether J eanes was using the Building as a barn. The Court has found in a prior order that the date on which J eanes occupied or took possession of the barn is relevant to the issue of perem ption . R. Doc. 190 . The Court specifically found the jury would determ in e whether J eanes occupied took possession of the barn after February 20 11. In West’s deposition , he testifies he wen t to the barn once before construction, once during construction, and once in February 20 19. R. Doc. 172-1 at 21. He does not specify the date of the visit during which he saw the Building being used as a barn . Reading his deposition testim on y to the jury has lim ited probative value and risks confusing the jury. 54 11 6. p. 23, lines 4– 7, 16– 25 7. p. 24, line 24– p. 29, line 5 8. p. 29, line 17– p. 30 , lin e 13 9. p. 34, lines 8– 10 10 . p. 36, lines 1– 9 11. p. 40 , lin e 17– p. 42, lin e 11 12. p. 45, lines 7– 10 13. p. 58, line 14– p. 60 , lin e 5 In addition, the Court excludes portions of the excerpts containing objections, conversations, or colloquy between counsel. CON CLU SION For the foregoing reasons, the Court SU STAIN S Objections 1– 3 and 5– 6 and OVERRU LES Objection 4 of Plaintiff’s Objections to the Trial Deposition Testim ony of J oey West. 56 Defendant Greg McBride perm itted to introduce at trial the portions of West’s trial deposition set forth above. N e w Orle a n s , Lo u is ia n a , th is 14 th d a y o f Ju n e , 2 0 19 . ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 56 R. Doc. 172. 12
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