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Wiedeman v. Canal Insurance Co.

United States District Court, N.D. Georgia, Atlanta Division

November 20, 2017

GREGORY WIEDEMAN, Plaintiff,
v.
CANAL INSURANCE COMPANY, H&F TRANSFER, INC., AUTO-OWNERS INSURANCE COMPANY, and WALTER PATRICK DORN, IV, Defendants.

          OPINION AND ORDER

          WILLIAM S. DLTFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants Canal Insurance Company, H&F Transfer, Inc., and Walter Patrick Dorn, IV's Motion in Limine [254], Defendant Auto-Owners Insurance Company's Motion in Limine [255], and Plaintiff Gregory Wiedeman's Motion in Limine [256].

         I. BACKGROUND

         A. Facts

         This action arises from an August 8, 2014 collision (the “Collision”) between Plaintiff Gregory Wiedeman (“Plaintiff”) and Defendant Walter Patrick Dorn, IV (“Dorn”), an employee of Defendant H&F Transfer, Inc. (“H&F”). Defendant Auto-Owners Insurance Company (“Auto-Owners”) and Defendant Canal Insurance Company (“Canal”) allegedly insured H&F at the time of the Collision. Former Defendant Salem Leasing Corporation (“SLC”) owned and leased to H&F the truck that Dorn drove during the Collision. Former Defendant Wesco Insurance Company (“Wesco”) insured SLC.

         On February 26, 2016, Plaintiff filed his Amended Complaint [33] asserting the following: (1) Dorn acted recklessly and negligently in the operation of his vehicle; (2) H&F and SLC should be held liable, under the respondeat superior doctrine, for Dorn's alleged negligent actions; (3) H&F and SLC negligently hired, retained, entrusted, and supervised Dorn; and (4) H&F and SLC failed to comply with federal and state motor carrier safety regulations and trucking standards of care. Plaintiff also alleged direct actions against the three insurance companies. Plaintiff's Amended Complaint sought punitive damages.

         The parties submitted a number of motions for summary judgment over the course of the litigation-some of which were successful. On June 16, 2017, the Court issued an order [235] granting SLC's Motion for Summary Judgment [169] and Wesco's Motion for Summary Judgment [177], and dismissed them as defendants. On June 21, 2017, the Court issued an order [236] granting H&F and Dorn's Motion for Partial Summary Judgment [180] on Plaintiff's claims for punitive damages against H&F and Dorn, and on Plaintiff's claims for negligent hiring, retention, entrustment, and supervision against H&F.

         Plaintiff's surviving claims include the following: (1) Dorn acted recklessly and negligently in the operation of his vehicle, (2) H&F, under the doctrine of respondeat superior, should be held liable for Dorn's alleged negligent actions; and (3) H&F failed to comply with federal and state motor carrier safety regulations and trucking standards of care. Plaintiff's direct actions against Auto-Owners and Canal also remain.

         The parties, in anticipation of trial, scheduled to begin December 18, 2017, have filed a number of motions in limine seeking to exclude the introduction of certain evidence and testimony.

         II. DISCUSSION

         A. Defendant Canal Insurance Company, H&F Transfer, Inc., and Walter Patrick Dorn, IV's Motion in Limine

         On October 30, 2017, Defendants Canal, H&F, and Dorn filed their Motion in Limine [254] moving the Court to “preclud[e] all witnesses, the Plaintiff, and his counsel from introducing evidence and/or testimony” regarding the following:

1. Any evidence regarding the direct negligence claims by Plaintiff against H&F for its alleged negligent entrustment of the vehicle to Defendant Dorn and its alleged hiring, retention, training, and/or supervision of Dorn;
2. Any evidence concerning the electronic control module (“ECM”); and
3. Any evidence or testimony by Whitney Morgan referencing the South Carolina Driver's Manual and/or testimony by Whitney Morgan relying on the South Carolina Driver's Manual to establish a standard of care or that Defendant Dorn breached any standard of care.

         ([254] at 1-2).

         1. Request 1

         As to Request 1, Defendants H&F, Dorn, and Canal contend that on June 21, 2017, the Court granted summary judgment to Dorn and H&F on Plaintiff's negligent hiring, retention, training, supervision, and entrustment claims, and thus any evidence on these topics is irrelevant. ([254.1] at 5; [236] at 15-16). Plaintiff argues that “H&F's negligence in providing adequate training for its drivers, including Dorn, may bear on the issue of Dorn's negligence and negligent handling of the vehicle he was driving for H&F.” ([259] at 5).

         “Generally, evidence concerning previously dismissed claims is not relevant and, consequently, is not admissible.” Anderson v. Brown Industries, No. 4:11-cv-225-HLM, 2014 WL 12521732, at *4 (N.D.Ga. March 14, 2014) (granting motion in limine to exclude evidence of previously dismissed or abandoned claims because they lacked relevance). Here, it does not appear that evidence of Plaintiff's former claims is probative of the remaining issues in this case. See Fed.R.Evid. 401. Those former claims are no longer at issue, and despite Plaintiff's claims that they may be relevant to show Defendant Dorn's “negligence and negligent handling of the vehicle he was driving for H&F, ” the Court finds that this evidence would waste the Court's time and likely confuse the jury, and otherwise are required to be excluded under Rule 403 of the Federal Rules of Evidence. See Fed.R.Evid. 403. The Court grants the Motion in Limine as to Request 1.

         2. Request 2

         Defendants' Request 2 seeks the exclusion of:

[A]ny “evidence, testimony, or reference to any topic concerning the ECM . . . [including] . . . the operation of the ECM; how to download the ECM; what was allegedly done improper by any person who attempted to download the subject ECM; what the ECM data may have shown; what constitutes a “sudden deceleration” . . . and any other topic concerning the ECM of the truck that Dorn was driving at the time of the collision.

         ([254.1] at 6). Defendants argue that any topic concerning ECM is no longer relevant or material in this case. Defendants rely on this Court's order issued on June 9, 2017 (Opinion and Order Denying Plaintiff Gregory Wiedeman's Renewed Motion for Sanctions Against H&F Transfer, Inc. and Salem Leasing Corporation [229] (“June 9th Order)) denying Plaintiff's Renewed Motion for Sanctions against H&F. Plaintiff's Renewed Motion for Sanctions [221] sought relief for H&F's alleged failure to preserve accident data from the truck's ECM. The Court denied the Renewed Motion for Sanctions because it found that H&F was not in control of the vehicle when the ECM data was reset. ([229] at 6). Defendants further contend that “any reference to the ECM data during trial will mislead or confuse the jury regarding the circumstances surrounding the maintenance of the ECM data and will suggest that H&F was responsible for preserving the data.” ([254.1] at 7).

         Plaintiff argues that “the Court ruled only that [] Defendants were not liable for sanctions; it did not rule that the evidence was not relevant or was not admissible.”[1] ([259] at 6). Plaintiff further contends that “[e]ven if a plaintiff is not entitled to an adverse jury instruction or other spoliation sanctions, this does not mean that evidence related to the missing information is inadmissible at trial.” (Id. at 6-7).

         Courts, in denying motions for spoliation sanctions, have held that their rulings “do[] not necessarily foreclose the possibility that, in the event that [a] case goes to trial, [the plaintiff] may be able to introduce evidence and argue regarding [the defendant's] failure to retain certain documents.” In re Delta/Air Tran Baggage Fee Antitrust Litigation, 770 F.Supp.2d 1299, 1315 (N.D.Ga. 2011); Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp. 1317, 1334 (S.D. Fla. 2010) (“[A]lthough the plaintiff is not entitled to an adverse jury instruction . . . the district court may determine that the circumstances surrounding the defendant's failure to retain relevant documents after February 2009 are admissible at trial.”).

         The Court finds that evidence or testimony regarding ECM issues, in this case, would only confuse or mislead the jury. The Court determined in its June 9th Order that H&F was not in possession of the leased truck at the time the ECM data was reset. The Court found that H&F had no role in the disappearance of the data. It is not apparent that H&F was even negligent in destroying the evidence. The only evidence that could be presented on this topic relates to the spoliation. No other evidence or testimony on the topic can be presented because there is no ECM data available. Permitting Plaintiff to present evidence on this topic would only mislead or confuse the jury-perhaps to the point of inferring spoliation, which this Court already held did not occur. Defendants' Motion in Limine as to Request 2 is granted. Fed.R.Evid. 401, 403.

         3. Request 3

         Defendants' Request 3, which seeks to exclude certain opinions of Plaintiff's expert Whitney G. Morgan, is more properly characterized as a Daubert[2] motion. Defendants attempt in their request to challenge the factual basis, data, principles, and methods of Morgan by arguing that he improperly relies on the South Carolina Drivers' Manual, provides testimony that is unreliable, and provides testimony that lacks factual foundation. ([259] at 8). The Local Rules state that “[a]ny party objecting to an expert's testimony based upon Daubert[] shall file a motion no later than the date the proposed pretrial order is submitted.” See LR 26.2, N.D.Ga. If a party fails to do so, “such objections will be waived, unless expressly authorized by court order based upon a showing that the failure to comply was justified.” Id. Defendants' proposed pretrial order was submitted on September 5, 2017. Defendants waived objections under Daubert, and they may not now attempt to seek exclusion of Morgan's testimony based on its alleged flawed methodology or reliability.

         Even if the Court considered Defendants' Daubert challenge, the Court would find that the South Carolina Driver's Manual is relevant. While it is true the accident in this case occurred in Georgia, Defendant Dorn's license was issued in South Carolina. The fact that Defendant was not driving in South Carolina at the time of the accident does not mean that the standards by which he generally was governed are not relevant. Defendants' lex loci delicti argument-that the substantive law of the place where the tort or wrong occurred-is similarly misplaced. The Court of course agrees that the substantive law, including Georgia traffic laws, applies in this case. The standards that apply to maintenance of Defendant Dorn's license are relevant to the question of his negligence. A limiting instruction will be given stating how to apply South Carolina standards under which Defendant Dorn's license was issued.[3]

         Finally, Defendants argue that Morgan should be prohibited from offering legal conclusions, including that Defendant Dorn engaged in driving behaviors that “fell below the standard of care.” The Court agrees. “An expert may not . . . merely tell the jury what result to reach.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). That is, “[e]xpert testimony that consists of legal conclusions cannot properly assist the trier of fact . . . and is therefore inadmissible.” Gaylor v. Georgia Dep't of Natural Resources, No. 2:11-cv-288-RWS, 2014 WL 454810, at *6 (N.D.Ga. Sept. 12, 2014) (internal quotations omitted).

         The Court denies Defendants' Motion in Limine as to Request 3, but clarifies that any legal conclusions offered by ...


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