Logan v. Westfield Insurance Co

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 #5 to Exclud[e] Portions of Police Report and Evidence of

Citation and Payment of Fine on Non-Moving Violation.”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

1 Rec. Doc. 1-1.

2 Rec. Doc. 128.

3 Rec. Doc. 1-1.

at the intersection of Bertrand Drive and East Devalcourt in Lafayette, Louisiana.4 According to

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

4 Id. at 1.

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.

occasions.13 On July 26, 2018, the case was reassigned to Chief Judge Nannette Jolivette Brown,

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

13 Rec. Docs. 49, 53.

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.

deadlines set forth in the Court’s Scheduling Order would remain in effect.21 However, the Court

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 excluding from trial: (1) portions of the police

report, including the investigating officer’s conclusions and opinions, diagram, and hearsay

narrative; (2) any mentioning or evidence at trial that Smothers received a citation after the

accident; and (3) any mentioning or evidence that Smothers pleaded no contest and paid a fine to

a non-moving sticker violation because of the accident.25

First, Defendants contend that only those portions of the police report that reflect Officer

James Fail’s firsthand observations based on his accident investigation are admissible at trial, and

any conclusions or opinions Officer Fail reached are inadmissible.26 Accordingly, Defendants

assert that the portions of the police report that contain Officer Fail’s evaluative opinions and

conclusions, including the diagram drawing of the accident, should not be referred to or offered

21 Id. at 3.

22 Id.

23 Rec. Doc. 128.

24 Rec. Doc. 144.

25 Rec. Doc. 128 at 1.

26 Rec. Doc. 128-1 at 2 (citing Duhon v. Marceaux, 33 F. App’x 703 (5th Cir. 2002); Letsinger v. Stennette,

2014 WL 4809814, at *4 (W.D. La. Sept. 26, 2014); Reliastar Life Ins. Co. v. Thompson, 2008 WL 4327259,

at *4 (S.D. Tex. Sept. 16, 2008)).

at trial.27 Additionally, Defendants object to the diagram because Officer Fail did not observe the

accident, and they argue the diagram constitutes “accident reconstruction.”28 Finally, Defendants

assert that Officer Fail’s descriptions of the statements taken at the scene, found at page 6 of the

report, are hearsay.29 Defendants attach a redacted copy of the police report that they suggest

shows only the admissible portions of the report that could be offered at trial.30

Second, Defendants argue that the citation Officer Fail issued to Smothers for “failure to

yield” is inadmissible.31 Additionally, Defendants assert that the City Prosecutor of Lafayette did

not pursue a failure to yield charge against Smothers, instead amending the charge to a “[n]on-

moving violation of motor vehicle inspection sticker under Code of Ordinance, Section 86-

2:53B.”32

Third, Defendants assert that the Court should exclude evidence showing that Smothers

pleaded no contest to the non-moving violation and paid a fine.33 According to Defendants,

“Louisiana law is clear that evidence of a traffic charge . . . and payment of the fine without a

written guilty plea are simply inadmissible at trial.”34 Additionally, Defendants note that Federal

Rule of Evidence 410 prohibits the introduction of evidence of a “nolo contendere plea” in a civil

27 Id. at 2.

28 Id.

29 Id. at 3.

30 Id. at 4.

31 Id. at 2.

32 Id. at 3.

33 Id. at 4.

34 Id.

case.35 Furthermore, Defendants assert that “the mere payment of a traffic citation does not

constitute an admission against interest or confession of guilt.”36 Finally, Defendants argue that

the evidence should be excluded under Federal Rule of Evidence 403 because an inspection

sticker violation has no relevance to this accident, and any reference of this reduced/amended

charge would not serve any purpose other than to inflame the jury.37

B. Plaintiffs’ Arguments in Opposition to the Motion

In response, Plaintiffs state that they do not object to the police report being redacted to

remove any reference to the citation Officer Fail issued to Smothers.38 However, Plaintiffs

contend that the diagram Officer Fail created contemporaneously with the investigation should

not be redacted because it merely documents “the direction of both motorists, the approximate

point of impact, and the signal activated for Smothers.”39 Plaintiffs assert “[t]here is no hearsay

in the diagram, it was completed in the course of the officer’s training and investigation, and it

will aid the jury in understanding the incident.”40 Additionally, Plaintiffs argue that “some

‘redactions’ suggested by Defendants are black censorship bars covering empty blanks.”41

Plaintiffs assert that any redactions should be limited to the exclusion of citations issued to

35 Id.

36 Id. (citing Bergeron v. Great W. Cas. Co., 2015 WL 3505091, at *4 (E.D. La. June 3, 2015) (Morgan,

J.)).

37 Id.

38 Rec. Doc. 144 at 2.

39 Id.

40 Id.

41 Id. at 4.

Smothers.42 Plaintiffs attach a redacted copy of the police report that they suggest shows only the

admissible portions of the report that could be offered at trial.43

III. Legal Standard

A. Relevancy and Prejudice

Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Under Federal Rule of Evidence 402, relevant evidence

is admissible unless the United States Constitution, a federal statute, the Federal Rules of

Evidence or other rules prescribed by the Supreme Court provide otherwise. Pursuant to Federal

Rule of Evidence 403, “the court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” The Fifth Circuit instructs that “[t]he exclusion of evidence under Rule 403 should

occur only sparingly[.]”44 “Relevant evidence is inherently prejudicial; but it is only unfair

prejudice, substantially outweighing probative value, which permits exclusion of relevant matter

under Rule 403.”45

B. Hearsay

Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

42 Id.

43 Id.; Rec. Doc. 144-2.

44 United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).

45 Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862

(1979)).

evidence to prove the truth of the matter asserted in the statement.”46 Hearsay is not admissible

unless a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the Supreme

Court” provide otherwise.47 After a party properly objects to the admission of evidence as

hearsay, the proponent of evidence bears the burden to show that statement is not offered as

hearsay or falls within an exception to the hearsay rule.48

Under Federal Rule of Evidence 803(8), a police report is excluded from the rule against

hearsay if it sets out the “factual findings from a legally authorized investigation” and “the

opponent does not show that the source of the information or other circumstances indicate a lack

of trustworthiness.” First-hand observations of a police officer, which are based on the officer’s

investigation and experience and incorporated into a police report, are also admissible.49

IV. Analysis

Defendants move the Court to issue an order excluding from trial: (1) portions of the police

report, including the investigating officer’s conclusions and opinions, diagram, and hearsay

narrative; (2) any mentioning or evidence at trial that Smothers received a citation after the

46 Fed. R. Evid. 801(c)(1)–(2). Federal Rule of Evidence 801(d) further provides that opposing party’s

statements and certain prior statements by declarant-witnesses used to impeach or rebut the witness are not

hearsay.

47 Fed. R. Evid. 802.

48 See Bourjaily v. United States, 483 U.S. 171, 175 (1987) (“The preponderance standard ensures that

before admitting evidence, the court will have found it more likely than not that the technical issues and

policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration.”);

Loomis v. Starkville Mississippi Pub. Sch. Dist., 150 F. Supp. 3d 730, 742–43 (N.D. Miss. 2015) (“Once a

party has ‘properly objected to [evidence] as inadmissible hearsay,’ the burden shifts to the proponent of

the evidence to show, ‘by a preponderance of the evidence, that the evidence [falls] within an exclusion or

exception to the hearsay rule and was therefore admissible.’” (citations omitted)); see also Randle v. Tregre,

147 F. Supp. 3d 581, 596 (E.D. La. 2015) (Africk, J.); Broad. Music, Inc. v. Tex Border Mgmt., Inc., No.

10-2524, 2012 WL 4119111, at *4 (N.D. Tex. Sept. 18, 2012).

49 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).

accident; and (3) any mentioning or evidence that Smothers pleaded no contest and paid a fine to

a non-moving sticker violation because of the accident.50 Plaintiffs do not raise any objection to

the exclusion of evidence that Smothers received a citation after the accident or evidence that

Smothers pleaded no contest and paid a fine to a non-moving sticker violation because of the

accident.51 Accordingly, the Court grants Defendants motion to the extent it seeks exclusion of

evidence regarding the citation and Smothers’ payment of a fine.

Plaintiffs object to several redactions to the police report proposed by Defendants.52

Specifically, Plaintiffs contend that a diagram showing where the impact occurred should be

admitted.53 On the other hand, Defendants assert that the diagram should be redacted because

Officer Fail did not observe the accident, and they argue the diagram constitutes “accident

reconstruction.”54

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.55 The Fifth Circuit

noted that the officer was not qualified as an expert in accident reconstruction and did not

personally witness the accident.56 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

50 Rec. Doc. 128 at 1.

51 Rec. Doc. 144.

52 Id. at 2.

53 Id.

54 Rec. Doc. 128-1 at 2.

55 33 F. App’x 703, 2002 WL 432383 at *4 (5th Cir. 2002).

56 Id.

Rule 701.”57 The Fifth Circuit also found no error in the district court’s statement that the police

report could be admitted after redacting the portions of the report that expressed an opinion about

the cause of the accident.58

Here, the diagram shows the direction of both motorists, the approximate point of impact,

and the signal activated for Smothers.59 The diagram does not suggest fault or express an opinion

as to the cause of the accident. The diagram is merely a visual aid reflecting the information

Officer Fail collected during his investigation. Accordingly, the Court finds that the diagram

contained on page 6 of the police report is admissible under Rule 803(8).

Defendants also assert that Office Fail’s descriptions of the statements taken at the scene,

found at page 6 of the report, are hearsay.60 Despite this argument, the redacted police report

Defendants submitted to the Court does not redact any of the descriptions of the statements taken

at the scene.61 Therefore, it is unclear what, if any, portions of the narrative Defendants are

arguing should be redacted.62 Defendants may raise this issue again at trial if necessary.

After comparing the other proposed redactions submitted by the parties, the Court notes

that although Plaintiffs redact portions of the report reflecting Officer Fail’s conclusion that Mr.

Smothers was at fault for the accident, they failed to redact portions of the report reflecting that

57 Id.

58 Id.

59 Rec. Doc. 144-1 at 6.

60 Rec. Doc. 128-1 at 3.

61 Rec. Doc. 128-4 at 6. At page 6 Defendants only redacted the diagram, which is discussed supra, and the

statement indicating that Mr. Smoothers was issued a citation. Id.

62 The statement by Mr. Smothers that he ran the red light would be an opposing party admission under

Federal Rule of Evidence 801(d)(2)(A). See Mayes v. Kollman, 560 F. App’x 389, 393 (5th Cir. 2014)

(finding the defendant’s statement that he “didn't see the light” admissible as an opposing party admission

under Rule 801(d)(2)(A)).

Rebecca Logan was not at fault.63 Accordingly, the Court finds that the other redactions to the

police report proposed by Defendants are more appropriate as they remove all suggestions of fault

and opinions about the cause of the accident. Therefore, the redacted version of the police report

submitted by Defendants will be used at trial, except that the diagram found on page 6 of the

report shall not be redacted.

V. Conclusion

Considering the forgoing reasons,

63 See Rec. Doc. 144-2 at 5.

IT IS HEREBY ORDERED that Defendants Cory Smothers, Foundation Xpress LLC,

and Westfield Insurance Company’s “Motion in Limine #5 to Exclud[e] Portions of Police Report

and Evidence of Citation and Payment of Fine on Non-Moving Violation’®* is GRANTED IN

PART and DENIED IN PART.

IT IS FURTHER ORDERED that the motion is GRANTED IN PART to the extent it

seeks to exclude portions of the police report reflecting the investigating officer’s conclusions

and opinions, evidence that Smothers received a citation, and evidence that Smothers pleaded no

contest to a non-moving violation because of the accident.

IT IS FURTHER ORDERED that the motion is DENIED IN PART to the extent it seeks

to exclude the diagram found on page 6 of the police report. The redacted version of the police

report submitted by Defendants will be used at trial, except that the diagram found on page 6 of

the report shall not be redacted.

IT IS FURTHER ORDERED that whichever party offers the police report into evidence

at trial prepare the exhibit consistent with this Order.

NEW ORLEANS, LOUISIANA, this 24th day of January, 2020.

NANNETTE JOLI TE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

12