The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
REBECCA LOGAN, et al. CIVIL ACTION
VERSUS NO. 17-29
WESTFIELD INSURANCE COMPANY, et SECTION: “G”(4)
al.
ORDER AND REASONS
Plaintiffs Rebecca Logan and Derek Logan (collectively, “Plaintiffs”) bring negligence
claims against Defendants Cory Smothers (“Smothers”), Foundation Xpress LLC (“Foundation
Xpress”), and Westfield Insurance Company (“Westfield Insurance”) (collectively,
“Defendants”) for injuries allegedly sustained in an automobile accident.1 Before the Court is
Defendants’ “Motion in Limine #6 Limiting the Testimony of Officer James Fail.”2 Considering
the motion, the memoranda in support and in opposition, the record, and the applicable law, the
Court grants the motion in part and denies it in part.
I. Background
On October 25, 2016, Plaintiffs filed a petition for damages against Defendants in the 16th
Judicial District Court for the Parish of Lafayette.3 The petition arises from a two-vehicle collision
at the intersection of Bertrand Drive and East Devalcourt in Lafayette, Louisiana.4 According to
1 Rec. Doc. 1-1.
2 Rec. Doc. 129.
3 Rec. Doc. 1-1.
4 Id. at 1.
the petition, on October 30, 2015, Rebecca Logan was driving her vehicle northward on Bertrand
Drive.5 Thereafter, Smothers allegedly, driving a 2012 Freightline Cascadia southward on
Bertrand Drive, attempted a left turn and subsequently collided into Rebecca Logan’s
automobile.6
Rebecca Logan brings a negligence claim against Smothers and Foundation Xpress, who
allegedly both own the 2012 Freightline Cascadia and employ Smothers.7 Plaintiffs also bring
claims against Westfield Insurance, who allegedly insured the Freightline Cascadia operated by
Smothers.8 Rebecca Logan contends that she suffered physical pain, mental pain, and other
injuries due to the automobile accident.9 Derek Logan contends that he suffered the loss of
services and consortium of Rebecca Logan.10
On January 10, 2017, Defendants removed this case to the Western District of Lafayette,
asserting diversity jurisdiction under 28 U.S.C. § 1332.11 The case was initially assigned to United
States District Judge Rebecca F. Doherty, and scheduled for trial on May 7, 2018.12 However,
following the retirement of the presiding district judge, the trial date was continued on several
occasions.13 On July 26, 2018, the case was reassigned to Chief Judge Nannette Jolivette Brown,
5 Id.
6 Id. at 1–2.
7 Id. at 4.
8 Id.
9 Id. at 2.
10 Id. at 3.
11 Rec. Doc. 1.
12 Rec. Doc. 10.
13 Rec. Docs. 49, 53.
and set for trial on August 19, 2019.14
On July 15, 2019, Plaintiffs filed a Motion to Continue the Trial Date and Extend All
Deadlines.15 In the motion to continue, Plaintiffs asserted that a continuance of the August 19,
2019 trial date was necessary because Plaintiff Rebecca Logan was receiving ongoing medical
care for her back, neck, and knee, and had just received a surgical recommendation for her back
and knee.16
On July 22, 2019, the Court granted Plaintiffs’ motion to continue trial.17 In granting the
continuance, the Court relied on Plaintiffs’ representation that Plaintiff Rebecca Logan had not
reached maximum medical improvement with respect to her neck surgery, and that her doctors
had recently recommended surgeries for her knee and back.18 The Court was under the impression
that Ms. Logan intended to undergo these additional surgeries to attempt to reach maximum
medical improvement.19 The Court found that a brief continuance was appropriate to allow
Plaintiffs to obtain updated medical reports and updated documentation on future medical plans.20
Therefore, the Court continued the trial date and pretrial conference date, but stated that all other
deadlines set forth in the Court’s Scheduling Order would remain in effect.21 However, the Court
14 The case was originally set for trial before Chief Judge Brown on May 13, 2019. Rec. Docs. 49, 53. The
trial date was reset to August 19, 2019 due to a conflict in the Court’s calendar. Rec. Docs. 57, 59.
15 Rec. Doc. 86.
16 Id. at 1.
17 Rec. Doc. 95.
18 Id. at 2.
19 Ms. Logan did not undergo any additional surgeries following the continuance.
20 Id.
21 Id. at 3.
stated that the parties could move to extend a specific deadline upon a showing of good cause.22
On January 14, 2020, Defendants filed the instant motion in limine.23 On January 22, 2020,
Plaintiffs filed an opposition to the instant motion.24
II. Parties’ Arguments
A. Defendants’ Arguments in Support of the Motion
Defendants move the Court to issue an order limiting the testimony of Officer James Fail,
the police officer who investigated the accident, to facts within his knowledge such as his
observations when he arrived on the accident scene, any photographs or measurements he took,
and the steps of his investigation.25 Defendants assert that Officer Fail must be prohibited from
providing any opinions as to causation, fault, and his reasons for issuing any citations.26
Defendants note that Officer Fail has not been identified as an expert witness, he has no
specialized training in accident investigation or reconstruction, and he was not present when the
accident occurred.27 Accordingly, Defendants assert that Officer Fail must be prohibited from
providing his opinions as to the cause of the accident, who was at fault, and his reasons for issuing
any citation because such testimony is the province of an expert.28
B. Plaintiffs’ Arguments in Opposition to the Motion
In opposition, Plaintiffs acknowledge that testimony by Officer Fail regarding issuance of
22 Id.
23 Rec. Doc. 129.
24 Rec. Doc. 146.
25 Rec. Doc. 129 at 1.
26 Id.
27 Rec. Doc. 129-1 at 1–2.
28 Id. at 2 (citing Duhon v. Marceaux, 33 F. App’x. 703, at *4 (5th Cir. 2002)).
the citation to Smothers or fault for the accident “may be out of bounds.”29 However, Plaintiffs
assert that Officer Fail “is not bound to only what he saw.”30 According to Plaintiffs, Officer Fail
may present lay opinion testimony regarding what happened in the accident based on what he
saw at the scene when he arrived, the statements he obtained from the parties, and his knowledge
of traffic laws.31 Plaintiffs contend that Officer Fail’s “explanation of what facts played a role in
the crash will assist the jury in determining relevant facts at issue.”32 In support, Plaintiffs cite
Ernst v. Ace Motor Sales, Inc., an Eastern District of Pennsylvania case that has been cited
approvingly by the Fifth Circuit.33 Plaintiffs note that in Ernst, the district court held that the
police officer could offer lay opinion testimony as to the point of impact of an automobile
collision because the officer’s opinion “about the point of impact was based upon his perception
of physical evidence found at the accident scene.”34
III. Legal Standard
The Federal Rules of Evidence divide opinion testimony into two categories: lay opinion
and expert opinion testimony. Pursuant to Federal Rule of Evidence 701, when a witness is not
testifying as an expert, testimony in the form of an opinion is limited to an opinion that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a
fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
29 Rec. Doc. 146 at 3.
30 Id.
31 Id.
32 Id.
33 Id. at 5 (citing 550 F. Supp. 1220, 1223 (E.D. Pa.1982)).
34 Id.
scope of Rule 702.35
Pursuant to Federal Rule of Evidence 702, a witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.36
IV. Analysis
Defendants move the Court to issue an order limiting the testimony of Officer James Fail,
the police officer who investigated the accident, to facts within his knowledge such as his
observations when he arrived on the accident scene, any photographs or measurements he took,
and the steps of his investigation.37 Defendants assert that Officer Fail must be prohibited from
providing his opinions as to causation, fault, and his reasons for issuing a citation.38 In opposition,
Plaintiffs acknowledge that testimony by Officer Fail regarding issuance of the citation to
Smothers or fault for the accident “may be out of bounds.”39 However, Plaintiffs assert that
Officer Fail may present lay opinion testimony regarding what happened in the accident based on
what he saw at the scene when he arrived, the statements he obtained from the parties, and his
knowledge of traffic laws.40
35 Fed. R. Evid. 701.
36 Fed. R. Civ. 702.
37 Rec. Doc. 129 at 1.
38 Id.
39 Rec. Doc. 146 at 3.
40 Id.
In Duhon v. Marceaux, the Fifth Circuit affirmed a district court’s exclusion of a law
enforcement officer’s opinion testimony regarding the cause of a car accident.41 The Fifth Circuit
noted that the officer was not qualified as an expert in accident reconstruction and did not
personally witness the accident.42 Therefore, the Fifth Circuit affirmed the exclusion of the
testimony under the “general rule” that “police officers’ lay opinions as to the cause of an
automobile accident formed by viewing subsequent evidence at the scene are excluded under
Rule 701.”43 In support of this “general rule” the Fifth Circuit cited Ernst v. Ace Motor Sales,
Inc., an Eastern District of Pennsylvania case holding that an officer’s lay opinion testimony was
admissible only to the extent that it pertained to the point of impact.44 The district court reasoned
that the officer’s opinion “about the point of impact was based upon his perception of physical
evidence found at the accident scene; more particularly, his opinion was based upon a trail of
debris leading from the highway to the plaintiff's car.”45
Courts have recognized that first-hand observations of a police officer, which are based on
the officer’s investigation and experience, are also admissible.46 As a lay witness, Officer Fail
may provide opinion testimony that is rationally based on his perception, helpful to determining
a fact in issue, and not based on scientific, technical, or other specialized knowledge.47 If Officer
41 33 F. App’x 703, 2002 WL 432383, at *4 (5th Cir. 2002).
42 Id.
43 Id.
44 Id. (citing 550 F.Supp. 1220, 1223 (E.D. Pa.1982), aff'd without op., 720 F.2d 661 (3d Cir. 1982)).
45 Ernst, 550 F.Supp. at 1223.
46 Reliastar Life Ins. Co. v. Thompson, No. 07-140, 2008 WL 4327259, at *4 (S.D. Tex. Sept. 16, 2008);
Harris v. Browning–Ferris Indus. Chem. Servs., Inc., 635 F.Supp. 1202, 1209 (M.D. La.1986), aff'd without
op., 806 F.2d 259 (5th Cir. 1986).
47 Fed. R. Evid. 701.
Fail formed an opinion about the point of impact that is rationally based on his perceptions at the
scene, he may express such an opinion to the jury. However, Officer Fail may not provide an
opinion as to the cause of the accident because he did not witness the accident and has not been
designated as an expert witness."
V. Conclusion
Considering the forgoing reasons,
IT IS HEREBY ORDERED that Defendants Cory Smothers, Foundation Xpress LLC,
and Westfield Insurance Company’s “Motion in Limine #6 Limiting the Testimony of Officer
James Fail” is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED IN PART to the extent that
Officer Fail may not testify as to causation, fault, or his reasons for issuing a citation. The motion
is DENIED IN PART to the extent that Officer Fail may provide appropriate lay opinion
testimony as set forth herein, that is, about which he saw when he arrived at the scene.
NEW ORLEANS, LOUISIANA, this 23rd day of January, 2020.
NANNETTE JOLIVETTE BROWN □□
CHIEF JUDGE
UNITED STATES DISTRICT COURT
48 Duhon, 2002 WL 432383, at *4.