The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
ADAM COX and )
KIMBERLY COX, )
)
Plaintiffs, )
)
v. ) Case No. 18-CV-0117-CVE-JFJ
)
SWIFT TRANSPORTATION CO. OF )
ARIZONA and LLC, SAI WAI, )
)
Defendants. )
OPINION AND ORDER
Now before the Court are various motions filed by the parties, including defendants’ motions
for partial summary judgment (Dkt. ## 70, 71), defendants’ motion to bifurcate the trial (Dkt. # 83),
and defendants’ motion for “improved” voir dire (Dkt. # 201). The parties have also filed numerous
motions in limine (Dkt. ## 64, 112, 113, 114, 115, 116, 117, 119, 120, 122, 123) seeking a pretrial
ruling on the admissibility of witness testimony and evidence.
I.
On July 31, 2017, two tractor-trailers were involved in an accident on the Will Rogers
Turnpike near Vinita, Oklahoma. Sai Wai was driving a tractor-trailer owned by Swift
Transportation Co. of Arizona (Swift), and he had pulled into a rest stop off of the highway. Dkt.
# 71-5. Adam Cox was operating a tractor-trailer and he was travelling eastbound on the highway.
Id. Wai was merging onto the highway and his tractor-trailer had not reached highway speed, and
his tractor-trailer was rear-ended by Adam Cox’s vehicle. Id.
Defendants claim that Wai’s tractor-trailer was accelerating as Wai attempted to merge onto
the highway, and Wai states that he had his four-way emergency flashers were on when the accident
occurred. Dkt. # 71-1, at 5. Adam Cox testified in his deposition that he moved into the lefthand
lane to allow another tractor-trailer onto the highway, and he merged back into the righthand lane
after the other tractor-trailer signaled to him that the lane was clear. Dkt. # 71-2, at 2. The collision
occurred shortly after Adam Cox moved back into the righthand lane, and he rear-ended Wai’s
tractor trailer as Wai attempted to merge onto the highway. Dkt. # 70-1, at 5. Oklahoma Highway
Patrol (OHP) Trooper Jason McCarthy was called to the scene, and the evidence suggested that there
was a substantial difference in speeds between the two vehicles. Id. He concluded that it was
“reasonable” for Wai’s tractor-trailer not to have reached highway speed, and he stated that Adam
Cox “was not able to give a reason for not seeing [Wai’s vehicle] sooner than he did.” Id. However,
McCarthy did not issue a citation to either driver.
Plaintiffs argue that there is evidence tending to support an inference that Wai did not have
his four-way emergency flashers turned on as he attempted to merge onto the highway. Dkt. # 90,
at 11. Plaintiffs also argue that Wai has a history of being involved in traffic accidents and other “at
risk” driving behavior that should have put Swift on notice that Wai posed a risk to the safety of the
driving public. Id. at 8-10.
On March 5, 2018, plaintiffs Adam and Kimberly Cox filed this case alleging negligence and
negligence per se claims against Wai and Pyae Maung, a passenger in Wai’s tractor-trailer when the
accident occurred. Dkt. # 2. Plaintiffs allege that Swift is vicariously liable for the conduct of its
employees, and plaintiffs also allege that Swift is directly liable under a theory of negligent
entrustment. Plaintiff Kimberly Cox seeks damages for loss of consortium. Maung filed a motion
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for summary judgment (Dkt. # 26) on the ground that a passenger cannot be held liable merely for
being present when an accident occurred, and the Court granted Maung’s motion. Dkt. # 60. The
parties engaged in numerous discovery disputes, and each side filed a motion for sanctions for
alleged spoliation of evidence. Dkt. ## 88, 118. The motions for sanctions were referred to a
magistrate judge, and the magistrate judge denied the motions. Dkt. # 202.
II.
Swift and Sai Wai argue that there are no genuine issues of material fact as to the possibility
that plaintiffs may recover punitive damages, because there is no evidence suggesting that Sai Wai
acted intentionally or with reckless disregard for the rights of others. Dkt. # 71. Swift also seeks
summary judgment on plaintiffs’ claim of negligent entrustment against Swift, because Swift has
admitted that it can be held liable for any negligence of its employee, Sai Wai. Dkt. # 70.
A.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). The plain language of
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment procedure is properly regarded not as a disfavored
procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy and inexpensive determination of every action.’” Id. at 327.
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“When the moving party has carried its burden under Rule 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the [trier of fact] could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. In essence, the inquiry for the Court
is “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 250. In its review,
the Court construes the record in the light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir. 1998).
B.
Swift and Wai ask the Court to enter summary judgment on the issue of punitive damages,
because they claim that the undisputed facts would not support an award of punitive damages in
favor of plaintiffs. Punitive damages may be awarded only if the plaintiff shows by clear and
convincing evidence that the defendant has been “guilty of reckless disregard for the rights of
others.” OKLA. STAT. tit. 23, § 9.1. A person acts in reckless disregard for the rights of others if he
“was either aware, or did not care, that there was a substantial and unnecessary risk that [his] conduct
would cause serious injury to others.” Gowens v. Barstow, 364 P.3d 644, 652 (Okla. 2015). The
trial court must determine as a matter of law whether the plaintiff has produced sufficient evidence
that a reasonable jury could find that a defendant acted with reckless disregard before instructing the
jury as to punitive damages. Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1106 (Okla. 2005).
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The Court must view the evidence in a light most favorable to the non-moving party and,
under this standard, defendants’ motions for summary judgment should be denied on the issue of
punitive damages. The parties rely on essentially the same facts and evidence to support their
characterization of the accident, but the evidence supports more than one reasonable interpretation
as to the cause of the accident. The Court cannot rule out Adam Cox’s deposition testimony that he
did not believe that Wai turned his four-way emergency flashers on when he pulled onto the
highway. Dkt. # 87-5, at 3. There is no dispute that Wai was not moving at highway speed when
the accident occurred. Plaintiffs have also offered evidence that Wai had been involved in prior
accidents and this could be relevant to an award of punitive damages under a negligent entrustment
theory. Dkt. # 87-6. The evidence is not so one-sided in this case that the Court can find that
plaintiffs’ demand for punitive damages has no likelihood of success, and this issue is not
appropriate for summary judgment.
C.
Swift argues that it has admitted that it is liable for Wai’s conduct and, under Oklahoma law,
it can no longer be held liable under direct theories of negligence such as negligent entrustment or
negligent hiring. “Negligent entrustment of an automobile occurs when the automobile is supplied,
directly or through a third person, for the use of another whom the supplier knows, or should know,
because of youth, inexperience, or otherwise, is likely to use it in a manner involving unreasonable
risk of bodily harm to others . . . .” Sheffer v. Carolina Forge Co., LLC, 306 P.3d 544, 548 (Okla.
2013). To establish a claim of negligent entrustment, the plaintiff must show that a reasonable
person knew or should have known that the person entrusted with the vehicle would be likely to
operate it in a careless, reckless, or incompetent manner. Green v. Harris, 70 P.3d 866, 869 (Okla.
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2003). A necessary element of a negligent entrustment claim is that the plaintiff’s injury result from
the driver’s careless or reckless operation of the vehicle. Clark v. Turner, 99 P.3d 736, 743 (Okla.
Civ. App. 2004).
Swift raises two separate arguments in its motion for summary judgment as to plaintiff’s
claim of negligent entrustment. First, Swift cites Jordan v. Cates, 935 P.2d 289 (Okla. 1997), and
argues that an employer cannot be held liable under theories of direct negligence if it has admitted
to respondeat superior liability. Dkt. # 70, at 6-12. Second, Swift argues that plaintiffs have not
offered sufficient evidence to support a claim of negligent entrustment. The Court can easily dispose
of the first argument, because the Oklahoma Supreme Court has limited Jordan to its facts and has
since recognized that a plaintiff can bring claims of direct negligence even after an employer has
stipulated to respondeat superior liability. In Fox v. Mize, 428 P.3d 314 (Okla. 2018), the Oklahoma
Supreme Court found that an employer’s stipulation to respondeat superior liability does not bar a
plaintiff from bringing a separate claim for negligent entrustment. Id. at 322-23. Swift argues that
plaintiffs’ claim of negligent entrustment serves “no practical purpose,” and plaintiffs will not
prevail on a negligent entrustment claim unless they can show that Wai was at fault for the accident.
Dkt. # 133, at 4. Even if it is not practical, plaintiffs are the masters of their own case and the Court
will not prevent them from bringing all viable claims they wish to assert against defendants.
Swift also argues that there is no evidence tending to support plaintiffs’ claim of negligent
entrustment. Dkt. # 70, at 13-15. However, Swift does not dispute that Wai has previously been
involved in traffic accidents and that at least two of the accidents were deemed “preventable.” Id.
at 4; Dkt. # 72, at 19. Plaintiffs cite eleven prior incidents concerning Wai that allegedly qualify as
“at-risk” driving under Swift’s standards. Dkt. # 90-5. These incidents include accidents, traffic
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tickets, and an incident in which Wai nearly caused an accident due to fatigue. Id. As will be
explained in this Opinion and Order, many of these incidents do not bear a close similarity to the
accident in this case, and not all of this evidence may be admissible at trial. However, the Court is
ruling on a motion for summary judgment and it would be premature to assume that certain evidence
will not be admissible at trial. Plaintiffs have offered evidence that Wai had been involved in prior
traffic accidents and that Swift was aware of Wai’s driving record, and there are genuine disputes
as to material facts that preclude the entry of summary judgment on plaintiffs’ negligent entrustment
claim.
III.
Defendants ask the Court to bifurcate the trial into separate phases on the issues of liability
and damages. Dkt. # 83. Plaintiffs respond that there is no disproportionality as to the amount of
evidence as to liability and damages, and there will be no benefit in terms of judicial economy or
conservation of the parties’ resources if the trial is bifurcated. Dkt. # 104, at 3. Plaintiffs state that
they intend to put on evidence as to defendants’ liability for punitive damages in the first phase of
trial, and they will offer evidence as to the amount of punitive damages in a second stage trial. Id.
at 5.
Defendants argue that bifurcation of the trial as to issues of liability and damages will
conserve the parties’ resources and avoid the risk of jury sympathy impacting the verdict. Dkt. # 83.
Under Fed. R. Civ. P. 42(b), a court may order separate trials of “one or more separate issues” for
convenience, to avoid prejudice, or to expedite the proceedings. District courts have substantial
discretion to determine whether bifurcation of a trial will further the convenience of the parties or
avoid prejudice. Aragon v. Allstate Ins. Co., 185 F.3d 1281, 1285 (D.N.M. 2016). The party
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moving for bifurcation has the burden to demonstrate the need for bifurcation, because a single trial
on all issues ordinarily lessens the expense and inconvenience of litigation for the parties. Id.
Bifurcation is not warranted if there will be substantial overlap of the same facts and witnesses in
both phases of the case or if any savings of time and expense is speculative. Pinon Sun
Condominium Assoc., Inc. v. Atain Specialty Ins. Co., 2018 WL 5312881 (D. Colo. Oct. 26, 2018).
Defendants have not shown that bifurcation of the trial into liability and damages phases will
conserve the parties’ resources or promote judicial economy. The trial would undoubtedly be shorter
if the Court bifurcated the issues of liability and damages and defendants were to prevail at the
liability stage. However, defendants have not shown that the evidence weighs strongly in favor of
either party, and the Court has no basis to find that a shorter trial will likely result if the trial is
bifurcated. As to possible jury sympathy, there is always a risk that jurors will sympathize with an
injured plaintiff, and that is why the Court always instructs the jury not to allow sympathy for any
party to affect their deliberations. The Court declines to bifurcate the trial into separate phases for
liability and damages. The parties are advised the Court will follow its standard procedure for cases
involving the possibility of punitive damages, and the trial will be divided into two phases. In the
first phase, the jury will consider defendants’ liability, plaintiffs’ compensatory damages, and
whether defendants acted with requisite level of reckless disregard or malice to justify a second
phase for punitive damages. The jury will answer a special interrogatory with regard to reckless
disregard or malice. No one will mention punitive damages or a second phase during the first
phase. The jury will consider evidence of punitive damages and the amount therefor in a second
phase of trial only if the jury finds by clear and convincing evidence that defendants can be held
liable for punitive damages under OKLA. STAT. tit. 23, § 9.1.
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IV.
The parties have filed numerous motions in limine concerning the admissibility of evidence
at trial. “The purpose of a motion in limine is to aid the trial process by enabling the Court ‘to rule
in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitively
set for trial, without lengthy argument at, or interruption of, the trial.’” Mendelsohn v. Sprint/United
Management Co., 587 F. Supp. 2d 1210, 1208 (D. Kan. 2008). However, a court is almost always
better situated to make evidentiary rulings during trial, and a court may defer an in limine ruling
unless the party seeking to exclude evidence shows that the evidence is inadmissible on all potential
grounds. Wright v. BNSF Railway Co., 2016 WL 1611595, *1 (Apr. 22, 2016). Plaintiffs filed this
case in federal court based on diversity jurisdiction, and the admissibility of evidence is generally
governed by federal law. Blanke v. Alexander, 152 F.3d 1224, 1231 (10th Cir. 1998). State law
concerning the admissibility of evidence will be considered only if the issue involves a “substantive”
state rule of evidence, such as the collateral source rule or the parol evidence rule. Id. The parties
are advised that all ruling on the motions in limine are preliminary. This is especially true in this
case given the volume of requests for in limine rulings, and the Court will not attempt to rule on the
admissibility of each piece of evidence that may be offered at trial. Instead, the Court will provide
general guidance as to the admissibility of evidence and witness testimony, and most of the issues
raised by both parties are more appropriately considered in the context of a jury trial.
A.
The Court will initially consider the parties’ challenge to the admissibility of witness
testimony. This includes witnesses designated as experts by plaintiffs and defendants, OHP Trooper
McCarthy, and possible eyewitnesses Charles and Deanna Johnson. Dkt. ## 64, 112, 114, 115, 119.
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John Pinckney (Dkt. # 112)
Plaintiffs have filed a motion seeking to exclude evidence that Adam Cox violated the
Federal Motor Carrier Safety Regulations (FMCSR), and he specifically objects to the testimony of
defendants’ expert witness, Pinckney, on this issue. Defendants retained Pinckney to offer expert
opinions concerning the application of federal regulations, the Commercial Driver’s License (CDL)
manual, and the preventability of the accident. Dkt. # 112-1. Pinckney opines that both Swift and
Adam Cox’s employer, Titus Transportion (Titus), were subject to the FMCSR, and Adam Cox and
Wai both held CDLs and were permitted to operate tractor-trailers. Id. at 2. Pinckney states that
Swift was not required to conduct post-accident drug or alcohol testing under 49 C.F.R. § 382.303
and that Titus violated this rule by conducting such testing of Adam Cox. Id. Pinckney claims that
Swift did not violate the FMCSR by failing to maintain Wai’s driver hours of service records for at
least 6 months following the accident. Id. at 2-3. He also states that Adam Cox failed to produce
evidence that his vehicle had a periodic inspection within 12 months of the accident, and Adam Cox
violated regulations concerning the maximum number of hours spent driving following a rest period
on June 26, 2017. Id. at 3. According to Pinckney, Wai was operating his vehicle in a reasonable
manner at the time of the accident and Adam Cox failed to maintain a sufficient lookout for vehicles
on the road ahead of him. Id. at 5. Pinckney believes that the accident was preventable on the part
of Adam Cox and he could have avoided the accident if he had paid attention for vehicles entering
the righthand lane. Id.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court
held that district courts must initially assess the admissibility of “scientific” expert testimony under
Fed. R. Evid. 702. The Supreme Court extended the gatekeeper role of federal district courts to all
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expert testimony in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In Bitler v. A.O.
Smith Corp., 400 F.3d 1227 (10th Cir. 2005), the Tenth Circuit discussed the role of district courts
when considering a Daubert challenge to the admissibility of expert testimony. First, the court
should make a preliminary finding that the expert is qualified to testify. Id. at 1232-33. Next, the
proponent of expert testimony must establish that the expert used reliable methods to reach his/her
conclusion and that the expert’s opinion is based on a reliable factual basis. Id. at 1233. The Tenth
Circuit cited four factors that district courts should apply to make a reliability determination:
(1) whether a theory has been or can be tested or falsified; (2) whether the theory or
technique has been subject to peer review and publication; (3) whether there are known or
potential rates of error with regard to specific techniques; and (4) whether the theory or
approach has “general acceptance.”
Id. at 1233 (citing Daubert, 509 U.S. at 593-94). The Tenth Circuit was clear that “a trial court’s
focus generally should not be upon the precise conclusions reached by the expert, but on the
methodology employed in reaching those conclusions.” Id. In other cases, the Tenth Circuit has
emphasized that any analytical gap in an expert’s methodology can be a sufficient basis to exclude
expert testimony under Daubert. Trucks Ins. Exchange v, MagneTek, Inc., 360 F.3d 1206, 1212-13
(10th Cir. 2004); Goebel v. Denver & Rio Grande Western R. Co., 346 F.3d 987, 992 (10th Cir.
2003). Under Daubert, “‘any step that renders the analysis unreliable . . . renders the expert’s
testimony inadmissable. This is true whether the step completely changes a reliable methodology
or merely misapplies that methodology.’” Mitchell v. Gencorp Inc., 165 F.3d 778, 783 (10th Cir.
1999) (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 745 (3d Cir. 1994)).
Plaintiffs argue that alleged violations of the FMACSR by Adam Cox or his employer are
irrelevant, because defendants do not have claims against him and admission of this evidence would
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be unfairly prejudicial. Dkt. # 112, at 3. Plaintiffs ask the Court to exclude Pinckney’s testimony
about Adam Cox’s alleged violations of the FMSCR. He argues that it is the Court’s duty to
“interpret the rules and regulations” and that testimony concerning alleged violations of the FMSCR
is improper expert testimony under the Federal Rules of Evidence. Id. at 5. Defendants respond that
they have asserted the affirmative defense of contributory negligence, and Adam Cox’s violations
of applicable federal regulations is relevant. Dkt. # 158, at 3.
The Court finds that limited aspects of Pinckney’s testimony should preliminarily be
excluded. Adam Cox’s contributory negligence is a relevant issue and violations of federal
regulations could be relevant, but the violations of federal regulations must have a close connection
to the accident. For example, the fact that plaintiff may have exceeded the number of hours he was
permitted to drive about a month before the accident occurred does not appear to be relevant. The
Court will not attempt to offer an exhaustive list of the permissible uses of this type of evidence, but
defendants’ assertion of an affirmative defense of contributory negligence will not permit it to bring
up every prior bad act related to Adam Cox’s driving. However, plaintiffs may open the door to the
admissibility of certain evidence and the Court will not issue a conclusive ruling as to the use of any
FMSCR violations by Adam Cox or Titus at trial. The parties are advised that there will not be one
rule for the admissibility of expert testimony as to plaintiff and another rule for defendants, and
expert testimony offered by either side will be subject to the same scrutiny. The Court will allow
relevant evidence concerning violations of the FMSCR for both parties or not at all, and this a matter
this is largely up to the parties. The parties are encouraged to confer in good faith before the trial
in an attempt to come to an agreement about the use of this evidence. Plaintiffs’ motion to exclude
Pinckey’s testimony (Dkt. # 112) is granted in part and denied in part.
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Roger Allen (Dkt. # 119)
Defendants ask the Court to exclude the testimony of plaintiffs’ expert witness, Roger Allen,
in its entirety, because he is not qualified to testify about the FMCSR and his testimony will not
assist the trier of fact. In the alternative, defendants identify 19 specific issues upon which Allen
should not be permitted to offer expert testimony.
Plaintiffs argue that Allen will be testifying on the basis of his prior experience alone and
Daubert is inapplicable. Dkt. # 156, at 6. This approach to the admissibility of expert testimony has
specifically been rejected by the Tenth Circuit in light of the Supreme Court’s decision in Kumho
Tire Co., in which the Supreme Court made clear that Daubert applies to all expert testimony.
United States v. Orr, 692 F.3d 1079, 1092 n.27 (10th Cir. 2012). Therefore, Allen’s testimony will
be admissible only if the Court finds that he is qualified to testify and that he used a reliable
methodology. As to his qualifications, the Court has been provided only one page of his resume and
it does not provide any specific information about his background or training, and plaintiffs’
response offers a very general description of Allen’s background. Dkt. # 119-2. Allen may have
experience as a truck driver, but his qualifications to testify about the requirements of Swift’s driver
safety program or the applicability of the FMSCR are unclear. For the purpose of this opinion and
order, the Court will assume that Allen is qualified to testify and the Court will reserve a finding on
this issue for trial. As to his methodology, Allen’s report states as follows:
The method is to review the available data which at a minimum includes crash reports, the
company’s existing driver safety program, and the driver’s qualification and/or personnel
file. The method is then to review deposition testimony taken in the case as well as driver
related discovery available. Then after such review, the method is to determine whether any
FMSCR and safety rules have been followed or violated and determine whether any
violations resulted in the crash in question.
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Dkt. # 156-1, at 6. A review of Allen’s report shows that he generally followed this method and it
appears that an expert in the field would follow a similar methodoloy. The Court will consider
challenges to specific aspects of Allen’s testimony, but it does not appear at this stage that Allen’s
testimony should be wholly excluded.
The Court does not find that Allen’s testimony should be excluded in its entirety, but he will
be subject to the same limitations as other witnesses on topics such as the applicability of the
FMSCR and relevance of evidence to plaintiffs’ claim of negligent entrustment. Allen’s testimony
must go to issues that are relevant to plaintiffs’ claims, and his accident reconstruction and his
opinions as to certain aspects of the FMSCR and drivers’ manuals appear to be relevant. However,
he offers extensive opinions on federal regulations not specifically relevant to the cause of the
accident and alleged deficiencies in Wai’s training that have nothing to do with the accident. This
includes numerous opinions on Swift and Wai’s post-accident conduct, and many of these opinions
are offered solely to cast defendants as bad actors. Allen should refrain from making inflammatory
statements, such as his opinion that defendants “put the general motoring public in jeopardy,”
because this type of opinion is not relevant to plaintiffs’ claims and encourages the jury to make a
discussion based on passion or prejudice rather than the facts of the case. Dkt. # 156-1, at 14.
Defendants’ motion to exclude Allen’s testimony (Dkt. # 119) is granted in part and denied in part.
Charles and Deanna Johnson (Dkt. ## 114, 115)
Defendants have filed motions to limit the testimony of Charles and Deanna Johnson to fact
testimony as to their actual observations of the subject tractor trailers before and after the accident,
and defendants believe that plaintiffs’ counsel will attempt to elicit opinion testimony outside the
scope of the witness’ factual testimony. Defendants list 12 categories of opinion testimony about
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which Deanna Johnson should be prohibited from testifying and 9 categories of evidence about
which plaintiffs’ counsel should not seek opinion testimony from Charles Johnson. Defendants do
not dispute that Charles Johnson observed Adam Cox’s tractor-trailer shortly before the accident.
There is also no dispute that Charles and Deanna Johnson observed the tractor-trailers following the
accident. However, defendants are concerned that plaintiffs’ counsel will attempt to elicit opinion
testimony concerning causation of the accident, the Johnsons’ opinion of Swift, how they were
affected by the accident, and other types of opinion evidence outside the scope of their fact
testimony. Dkt. ## 114, 115.
In plaintiffs’ response to the motions for summary judgment, plaintiffs state that Adam Cox
was driving on the Will Rodgers Turnpike near Vinita, and he saw a tractor-trailer being driven by
Charles Johnson attempting to merge onto the highway. Dkt. # 87, at 1. Adam Cox saw the
Johnsons’ tractor-trailer and moved into the lefthand lane to allow Charles Johnson to merge onto
the highway. Id. at 2. Adam Cox moved back into the righthand lane after he had passed the
Johnsons’ tractor-trailer, and Adam Cox collided with the Wai’s tractor-trailer. Id. It does not
appear that Charles Johnson directly observed the accident, but this aspect of his testimony is not
clear from the parties’ submissions. Deanna Johnson was allegedly asleep in the sleeper berth of the
Johnsons’ tractor-trailer when the accident occurred. Dkt. # 115, at 3.
Under Fed. R. Evid. 701, the opinion testimony of a lay witness is admissible only if the
opinion 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
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(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
The “perception” requirement “stems from [Fed. R. Evid. 602], which requires a lay witness to have
first-hand knowledge of the events he is testifying about so as to present only the most accurate
information to the finder of fact.” United States v. Bush, 405 F.3d 909, 916 (10th Cir. 2005). Parties
may not attempt to evade the requirements applicable to expert witnesses by encouraging lay
witnesses to offer opinion testimony requiring scientific or other specialized knowledge. James
River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214 (10th Cir. 2011).
The Court finds that the Johnsons should be limited to offering fact testimony concerning the
accident, and opinion testimony on other topics will likely not be admissible at trial. This exclusion
of testimony includes concerning how the accident affected them emotionally, because this type of
testimony has no relevance to the cause of accident and will likely be offered to inflame the jury.
Charles Johnson may testify as to factual observations concerning the positions of the tractor-trailers
and the damage to the vehicle following the accident, and Charles Johnson may testify about the
events leading up to the accident. If Deanna Johnson was asleep, she may not so testify. However,
neither Charles nor Deanna Johnson may testify about the cause of the accident or the condition of
Wai’s tractor trailer before the accident if they did not make first-hand observations of these events.
Defendants’ motions to limit the testimony of the Johnsons (Dkt. ## 114, 115) are granted.
OHP Trooper McCarthy (Dkt. # 64)
Plaintiffs argue that opinion testimony of an OHP trooper who investigated the accident,
McCarthy, is inadmissible, because he does not have sufficient expertise to offer opinions as to
causation and he lacks an evidentiary foundation for his opinions. Dkt. # 64, at 5-8. Plaintiffs also
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seek a pretrial ruling that defendants’ expert witnesses may not discuss McCarthy’s factual findings
concerning the cause of the accident. Id. at 6-7. Defendants respond that wholesale exclusion of
McCarthy’s testimony is unwarranted and, at a minimum, he should be permitted to testify about his
observations at the scene of the accident. Dkt. # 65, at 4. Defendants argue that this should include
McCarthy’s opinion concerning the speed of Wai’s tractor trailer when the accident occurred and
his decision not to issue a citation to Wai. Id. at 7, 9.
The Court finds that plaintiffs’ motion to exclude McCarthy’s opinion testimony (Dkt. # 64)
should be denied. The parties are advised that no witness, whether fact or expert, will be permitted
to offer an opinion as to who caused the accident or who the jury should find at fault, and the Court
would not have permitted McCarthy to offer such an opinion even if plaintiff had not filed a motion
in limine. However, McCarthy investigated the accident and he can testify about his observations
of the two tractor-trailers following the accident. This may include opinions about the relative
speeds of the vehicles if he has an adequate factual foundation for these opinions and the opinion
testimony would meet the requirements of Fed. R. Evid. 701. He may also testify that other vehicles
traveling eastbound on the highway were able to avoid colliding with Wai’s vehicle, because this
would be a statement of fact rather than opinion testimony. Plaintiffs argue that McCarthy is not
qualified to testify as an expert witness, but there is no indication that defendants will be calling
McCarthy to testify as an expert. The Court will consider specific objections to McCarthy’s
testimony at trial, but plaintiff have not shown that McCarthy should be wholly prohibited from
offering opinion testimony concerning the accident. Plaintiffs’ motion to exclude opinion testimony
by McCarthy (Dkt. # 64) is denied.
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B.
The parties have filed numerous motions in limine as to the admissibility of evidence other
than witness testimony. Key issues are the admissibility of evidence that either party violated the
FMSCR before and after the accident and the scope of evidence admissible in support of plaintiffs’
negligent entrustment claim. The Court will not attempt to resolve all of the issues raised in the
parties’ motions in limine, but the Court will offer some guidance as to the admissibility of evidence
The Court will also consider defendants’ motion for “improved” voir dire (Dkt. # 201).
Federal Motor Carrier Safety Regulations (Dkt. ## 112, 122)
Each party has filed a motion to prevent the opposing party from using evidence that the party
violated the FMSCR before or after the accident occurred. Plaintiffs argue that defendants should
be prohibited from using evidence that Adam Cox violated the FMSCR to support an affirmative
defense of contributory negligence. Dkt. # 112. Defendants argue that the FMSCR cannot be used
to support a private cause of action and many of the regulations likely to be cited by plaintiffs’
witnesses are not relevant to the cause of the accident. Dkt. # 122.
The Court has reviewed the parties’ motions and related briefing and finds that evidence
concerning alleged violations of the FMSCR provides minimal support for plaintiffs’ claim of
negligent entrustment and defendants’ affirmative defense of contributory negligence. However, the
evidence is not wholly irrelevant and it is not likely to be unfairly prejudicial, and the Court will
defer a ruling on the admissibility of this evidence until trial. The parties are advised that the same
standard will apply to either party, whether the evidence is introduced by expert witnesses or
otherwise, and this evidence must have some direct relevance to the cause of the accident. Neither
plaintiffs nor defendants will be permitted to use evidence of violations of the FMSCR merely to
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show that the opposing party is generally a bad actor. The parties are encouraged to confer before
trial in an attempt to come to an agreement as to how the FMSCR may be used at trial, and the
parties’ pretrial motions (Dkt. ## 112, 122) to prevent the opposing party from using such evidence
are denied.
Defendants’ Alleged Wrongful Acts (Dkt. # 116)
Defendants ask the Court to exclude evidence that Wai had “prior traffic violations, accidents
or incidents, as well as alleged “at-risk” behavior” that are “unconnected” to the accident at issue in
this case. Dkt. # 116. Plaintiffs respond that evidence that Wai had a history of prior accidents or
unsafe conduct is relevant to their negligent entrustment claim. Dkt. # 152. Plaintiffs identify some
instances of Wai’s prior conduct that they intend to use at trial, and it is possible that some of this
evidence could be relevant to a negligent entrustment claim. However, it is not clear from plaintiffs’
response which specific incidents from Wai’s driving history that plaintiffs may seek to admit at
trial, and the Court will not preliminarily assess the admissibility of each piece of potential evidence.
Defendants’ motion in limine to wholly exclude evidence of Wai’s prior accidents or traffic incidents
is denied, because there may be a permissible use for some of this evidence at trial. Plaintiffs are
advised that they will be required to establish that the prior incident has a substantial connection to
the accident at issue in this case. For example, the mere fact that Wai may have received a parking
ticket will not be relevant to show that Swift should have been on notice that Wai would allegedly
cause an accident by not merging onto a highway at an appropriate speed. The Court notes that this
type of evidence has the potential to significantly delay the trial if the Court must assess the
circumstances surrounding each prior incident, and plaintiffs are advised to limit this type of
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evidence to events that are especially relevant to the accident. Defendants’ motion (Dkt. # 116) is
denied, but objections to specific items of evidence may be renewed at trial.
Golden Rule and Reptile Theory (Dkt. # 117)
Defendants ask the Court to prevent plaintiffs’ counsel from making “Golden Rule” or
“Reptile Theory” arguments that imply that the jurors should reach a verdict based on their emotional
response to the evidence, rather than an unbiased decision based on the facts and law. Dkt. # 227.
Plaintiffs ask the Court to deny defendants’ motion in limine and argue that they should be able to
pursue any theory of the case that is appropriate based on the evidence. Dkt. # 148. Plaintiffs do
agree that they will refrain from making a Golden Rule argument as to damages, but they suggest
that this type of argument is appropriate as to liability. Id. at 1-2. The parties’ briefing does not
suggest that plaintiffs will actually offer any of the arguments that defendants seek to exclude, and
the Court finds that the motion (Dkt. # 117) is moot. Plaintiffs are cautioned that any argument that
asks the jurors to reach a verdict solely on their emotional response to the evidence will be
prohibited, and plaintiffs’ arguments should be focused on the facts that are admissible at trial and
the law applicable to their claims.
Swift’s Policies or Manuals (Dkt. # 120)
Defendants ask the Court to exclude evidence concerning Swift’s internal policies or driver
manuals, specifically as this relates to post-accident testing for drug or alcohol use by a driver. Dkt.
# 120. Plaintiffs respond that it is relevant that Swift allegedly failed to comply with its own policy
that would have required post-accident drug or alcohol testing of Wai following the accident. Dkt.
# 146, at 2. Neither plaintiffs nor defendants suggest that there is any evidence that Wai had actually
used drugs or alcohol before the accident, and plaintiffs do not suggest that Wai was intoxicated
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when the accident occurred. Instead, it appears that plaintiffs are attempting to show that Swift
violated its own policy for the purpose of generally casting Swift as a bad actor. The parties are
advised that the post-accident practices of both Adam Cox’s employer, Titus, and Swift are not likely
to be relevant at trial, and the parties should be focused on presenting evidence concerning the cause
of the accident. The Court finds that defendants’ motion in limine (Dkt. # 120) should be granted
to the extent that defendants seek to exclude evidence concerning its post-accident procedures or
policies.
Qualcomm Entries and Driver Logs (Dkt. # 123)1
Defendants ask the Court to exclude evidence that Wai input an incorrect code into an
onboard computer following the accident and that Wai’s driver logs from the time of the accident
are missing. Plaintiffs respond that a jury could infer that “Wai had no idea what was happening that
night” based on his entry of incorrect code. Dkt. # 155, at 4. Plaintiffs also argue that Swift was
obligated to maintain driver logs under the FMSCR and this could be relevant to show that
defendants generally failed to comply with applicable regulations. Id. at 5. The Court finds that
defendants’ motion (Dkt. # 123) should be denied, because the Court cannot determine if the
disputed evidence would be inadmissable for all purposes. It would be reasonable for a jury to
question why certain evidence was not offered at trial, especially if Adam Cox’s driver logs or
Qualcomm entries are offered at trial, and plaintiffs should be permitted to elicit testimony that
explains the notable absence of certain evidence. However, this should not be interpreted as
1 The magistrate judge’s opinion and order (Dkt. # 202) denying the parties’ motions
concerning the alleged spoliation of evidence provides a thorough description of the
Qualcomm system used by Swift to communicate with its drivers and the driver logs that are
missing from Swift’s system. The Court will not repeat those facts here, and the Court will
focus on admissibility of certain aspects of this evidence.
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invitation to use evidence of missing logs or an incorrect Qualcomm entry to generally show that
defendants are bad actors. The magistrate judge has determined that defendants did not intentionally
destroy evidence, and plaintiffs will not be permitted to argue that the jury should make an adverse
inference against defendants. Plaintiffs will also not be allowed to offer speculative theories of
negligence, such as a defect with Wai’s vehicle, based only on the missing logs, because this would
essentially be permitting the jury to make an adverse inference against defendants. Defendants’
motion (Dkt. # 123) is denied, but plaintiffs are cautioned that this evidence will not be admissible
at trial unless it is offered for a proper purpose.
Defendants’ Omnibus Motion in Limine (Dkt. # 113)
Defendants ask the Court to exclude eleven categories of evidence at trial, and nearly all of
defendants’ requests are unopposed. The Court also notes that some of the issues raised in the
motion have been addressed elsewhere in this Opinion and Order, and there is no need for the Court
to repeat its prior rulings. The Court will specifically consider only defendants’ requests to exclude
evidence of other lawsuits against defendants and the alleged lack of post-accident investigation by
Swift at this time. Defendants’ omnibus motion in limine (Dkt. # 113) is granted in part as to any
uncontested evidentiary issues and is denied in part as explained below.
Defendants ask the Court to exclude evidence of other claims or lawsuits against them,
because this evidence is inadmissible under Fed. R. Evid. 404(b). Dkt. # 113, at 3. Plaintiffs
respond that prior incidents of reckless driving by Wai are relevant to their negligent entrustment
claim against Swift, and they intend to offer evidence of eleven incidents that occurred during the
four years preceding the accident. The Court emphasizes its prior ruling concerning defendants’
alleged wrongful acts, and any prior incidents involving Wai must bear a high degree of similarity
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to accident at issue in this case. Allowing plaintiffs to introduce every minor incident in Wai’s
driving record has the potential to significantly delay the trial, and plaintiffs will bear the burden to
show that a prior claim or lawsuit against Wai or Swift is sufficiently similar to the accident to be
relevant in this case.
Defendants also seek to prevent plaintiffs from arguing that Swift was negligent for failing
to conduct an adequate post-accident investigation. The Court has already suggested that this
evidence appears to have little relevance to plaintiffs’ claims, and plaintiffs’ response to the motion
in limine clearly shows that plaintiffs’ use of this evidence would primarily be to cast defendants as
bad actors and encourage the jury to draw an adverse inference against defendants. The Court will
allow limited questioning concerning Swift’s post-accident investigation and the cause of any
missing driver logs, and the Court has explained that the purpose of this questioning would be to
avoid juror confusion as to the absence of certain evidence. The lack or insufficiency of a post-
accident investigation by Swift has no relevance to the issue of whether Swift negligently entrusted
Wai with a vehicle before the accident occurred. Defendants may open the door to this line of
inquiry by offering evidence concerning Swift’s post-accident investigation, particularly if Swift
argues that it complied with certain federal regulations or offers opinion testimony on the quality of
its investigation. However, the Court sees no reason to allow extended inquiry on this topic at trial
unless defendants make this topic relevant. Defendants’ omnibus motion in limine (Dkt. # 113) is
granted in part and denied in part.
Defendants’ Motion for “Improved” Voir Dire (Dkt. # 201)
Defendants argue that Wai is a naturalized citizen of the United States whose native language
is Burmese, and they are concerned that plaintiffs’ counsel will rely on anti-immigrant sentiment in
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potential jurors to deny defendants a fair trial. Dkt # 201, at 4. Defendants ask the Court to engage
in an extended voir dire procedure to root out jurors with an unconscious bias against immigrants.
Id. at 16-21. The parties are advised that the Court will engage in its standard voir dire procedure
and the questioning of the prospective jurors will be conducted by the Court only. The parties have
submitted proposed voir dire and the Court will review the parties’ proposed voir dire before
questioning potential jurors. The Court does not typically permit attorneys to submit juror
questionnaires to be completed before the beginning of jury selection, and there is nothing unusual
about this case that would suggest such a questionnaire is necessary. Defendant’s motion for
“improved” voir dire (Dkt. # 201) is denied.2
IT IS THEREFORE ORDERED that Defendant Swift Transportation’s Motion for Partial
Summary Judgment and Brief in Support (Dkt. # 70), Defendant Sai Wai’s Motion for Partial
Summary Judgment and Brief in Support (Dkt. # 71), Defendants’ Motion to Bifurcate and Brief in
Support (Dkt. # 83), and Defendants’ Motion for Improved Voir Dire Conditions (Dkt. # 201) are
denied.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Exclude the Opinion Testimony
of Trooper McCarthy (Dkt. # 64) is denied, and Plaintiffs’ Combined Motion in Limine and Brief
2 Defendants argue that additional voir dire procedures are necessary because plaintiffs’
counsel may attempt to offer evidence that Wai does not have the ability to read or write
English. Dkt. # 201, at 4. The Court’s denial of defendants’ motion (Dkt. # 201) should not
be interpreted to mean that the Court is finding that plaintiffs’ counsel may offer evidence
concerning Wai’s grasp of English at trial. Plaintiffs must show that Wai’s ability to read
and write English is relevant to the accident, and it is not apparent that Wai’s ability to
understand English affected the rate at which he sped up to merge onto the highway. The
Court is not excluding the evidence at this time, but plaintiffs must make a showing of
relevance if this evidence is offered at trial.
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to Prohibit Testimony, Evidence or Argument Regarding any Alleged Violation of the FMSCR by
Plaintiff or his Employer (Dkt. # 112) is granted in part and denied in part.
IT IS FURTHER ORDERED that Defendants’ Motion in Limine Regarding Anticipated
Testimony from Charles Johnson and Brief in Support (Dkt. # 114), Defendants’ Motion in Limine
Regarding Anticipated Testimony from Deanna Johnson and Brief in Support (Dkt. # 115), and
Defendants’ Motion in Limine Regarding Polices/Manuals of Swift and Brief in Support (Dkt. #
120) are granted as stated in this Opinion and Order.
IT IS FURTHER ORDERED that Defendants’ Omnibus Motion in Limine and Brief in
Support (Dkt. # 113) and Defendants’ Motion to Strike (Daubert), Motion in Limine and Brief in
Support with Respect to Plaintiffs’ Expert, Roger Allen (Dkt. # 119) are granted in part and denied
in part as stated in this Opinion and Order.
IT IS FURTHER ORDERED that Defendants’ Motion in Limine with Respect to Alleged
Wrongful Acts of Defendant Sai Wai and Brief in Support (Dkt. # 116), Defendants’ Motion in
Limine Regarding Federal Motor Carrier Safety Regulations and Brief in Support (Dkt. # 122), and
Defendants’ Motion in Limine Regarding Log/Qualcomm Entries and Brief in Support (Dkt. 123)
are denied.
IT IS FURTHER ORDERED that Defendants’ Motion in Limine Regarding “Golden Rule”
and “Reptile Theory” Arguments and Brief in Support (Dkt. # 117) is moot.
DATED this 7th day of August, 2019.
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