Gilley v. C.H. Robinson Worldwide, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

Clinton Eugene Gilley, as Administrator

of the Estate of CARL DAVID GILLEY,

Nicole Leigh Le, as Administrator of the

Estate of CHRISTINE TARA WARDEN GILLEY,

and Clinton Eugene Gilley and Nicole

Leigh Le as Co-Administrators of the

Estates of J.G. and G.G., minor children,

Plaintiffs,

v. CIVIL ACTION NO. 1:18-00536

C.H. ROBINSON WORLDWIDE, INC.,

J&TS TRANSPORT EXPRESS, INC.,

and BERTRAM COPELAND,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, defendant C.H. Robinson (“Robinson”), and

defendant Bertram Copeland (“Copeland”) have filed several

motions in limine that are pending before the court.1 The

1 Except for plaintiffs’ motion to exclude criminal proceedings

and backgrounds (ECF No. 244), defendant J&TS Transport Express,

Inc. (“J&TS”) opposes plaintiffs’ motions in limine. (See ECF

No. 276.) And J&TS joins in Robinson’s and Copeland’s motions

in limine. (See id.)

Likewise, Copeland joins in Robinson’s motion in limine

regarding insurance, financial information, and punitive damages

(ECF No. 237) to the extent that it seeks exclusion of evidence

pertaining to punitive damages, which plaintiffs have waived.

(See ECF No. 259.) Copeland also joins in Robinson’s motions

(1) to exclude the compliance review (ECF No. 238); (2) to

exclude the Gainesville video (ECF No. 239); (3) to limit

arguments of counsel (ECF No. 241); and (4) to exclude claims

specific rulings on the motions in limine are set forth below,

along with the court’s reasoning.

I. Plaintiffs’ Motions

a. Motion to Exclude Criminal Proceedings and Backgrounds

(ECF No. 244)

The collision at issue generated a criminal case in state

court. Plaintiffs ask the court to exclude reference to the

results of that criminal case. Plaintiffs further ask the court

to require that any party seeking to impeach a witness using

that witness’s criminal history must first obtain approval from

the court.

Robinson reads plaintiffs’ motion as one to exclude all

criminal histories generally and argues that any criminal

history of Copeland (including traffic violations) should be

excluded. (See ECF No. 262, at 1.) Plaintiffs respond that

although they do not intend to introduce Copeland’s driving

record as propensity evidence, they do intend to introduce it as

evidence of J&TS’s alleged negligence in hiring plaintiff: that

it did not ask, did not discover, or did not care about

blemishes on Copeland’s driving record. Plaintiffs further say

that they intend to introduce evidence of Copeland’s marijuana

charge (post-dating the collision) only if he testifies that he

for pain, suffering, and pre-death terror (ECF No. 242). (See

id.)

had not used marijuana since long before the collision, as he

did in his deposition (which post-dated a marijuana possession

charge), as impeachment.

The court will take up the broader issues that Robinson

raises below. Because plaintiffs’ more targeted request is

unobjectionable, the court will grant this motion: The state

criminal proceedings arising from the collision are not

admissible, and any party wishing to impeach a witness using

that witness’s criminal history must obtain court approval

first.

b. Motion to Preclude Argument That Following Regulations

Provides Tort Immunity (ECF No. 245)

Plaintiffs ask the court to preclude Robinson from arguing

that its legal duties extend no further than compliance with the

Federal Motor Carrier Safety Regulations.

It would be inappropriate to argue that, as a matter of

law, compliance with the federal regulations “immunizes”

Robinson or that Robinson’s pertinent legal duty is limited to

following the regulations. Courts have recognized that

Robinson’s state-law duties and federal regulatory duties,

though perhaps related, are distinct. See Jones v. C.H.

Robinson Worldwide, Inc., 558 F. Supp. 2d 630, 645 (W.D. Va.

2008); Schramm v. Foster, 341 F. Supp. 2d 536, 551 (D. Md.

2004). It is “not [West Virginia] law” that “compliance with a

regulation is per se the exercise of due care.” Miller v.

Warren, 390 S.E.2d 207, 209 (W. Va. 1990). The state’s high

court has held that it is error for a jury instruction to even

to imply the existence of “a rebuttable presumption that

compliance with regulations constitutes due care.” Id.

On the other hand, it appears permissible for Robinson to

point out that the limits on the relevant federal regulations

and its compliance with them, because such compliance is

“competent evidence of due care.” See id. It likewise appears

permissible to argue that there was no breach here because it

was reasonable not to go beyond the regulatory requirements.

The parties will dispute what the exercise of reasonable care

here required. The jury will need to determine whether it was

unreasonable not to take additional precautions and whether

those alleged untaken precautions proximately caused the

collision and resulting deaths. In other words, Robinson may

argue and present evidence that compliance with the regulations

was reasonable as a matter of fact, but it would be

inappropriate to argue that such compliance was reasonable as a

matter of law.2

2 As the court previously noted, Robinson is also free to argue

that it complied with industry standards and that such

compliance made its conduct reasonable. (ECF No. 293, at 16

n.5.)

It is true that “other circumstances” are sometimes

necessary to show negligence notwithstanding compliance with a

regulatory regime. Id. But Chief Justice Neely described this

other-circumstances requirement as “tautological,” explaining,

Truth is, no care at all will meet the standard of

care if circumstances do not appear that require some

care. That is to say, because the plaintiff has the

burden of proof on the defendant’s negligence, he must

point to some risk that the defendant should have been

aware of. But the plaintiff must always do so to

avoid a directed verdict for the defendant. If the

plaintiff is unable to show prima facie negligence by

failure to comply with a statute, he must prove

negligence in some other particular.

Id. Thus, the other-circumstances requirement simply reiterates

plaintiffs’ burden to prove unreasonable conduct related to a

foreseeable risk.

The court will grant this motion.

c. Motion to Permit Certain Evidence of Insurance to Prove

Control (ECF No. 246)

The court having granted summary judgment on plaintiffs’

vicarious liability claim, (see ECF No. 293), this motion

appears to be moot, and the court will deny it as such.

Plaintiffs are invited to renew this motion if the court is

mistaken as to its mootness.

d. Motion to Exclude (A) Prior Accidents, (B) Subsequent

Guardrail and Accident, (C) Lobbying of Family and

Friends, and (D) Improper Lay Witness Opinions (ECF No.

247)

Prior accidents. In support of its theory that certain

state agencies (the “West Virginia Agencies”) caused this

collision by not timely installing a median barrier on the

portion of the West Virginia Turnpike (“Turnpike”) where the

crossover occurred, Robinson wishes to present historical crash

data from a larger portion of the Turnpike that encompasses the

site of the crossover here.3 An expert for Robinson apparently

relies on this data for his opinions that the West Virginia

Agencies were on notice about the need for a median barrier and

that their failure to act in the face of such notice violated

safety standards.

Plaintiffs ask the court to preclude this data, which

chronicles more than 250 collisions over the years, pointing out

that the majority of them do not involve crossovers, and only

two involve tractor-trailers. Plaintiffs say that the

dissimilarity of the prior accidents renders them irrelevant and

unfairly prejudicial. Plaintiffs maintain that only crossover

collisions are relevant and that, moreover, because Robinson has

“failed to come forward with specific and credible facts to

3 It appears that the crash data covers collisions from Mile

Posts 20 to 28. The collision here occurred near Mile Post 22.

establish a factual foundation for the Court to determine

whether [the] prior accidents were sufficiently similar to the

fatal collision at issue,” the historical crash data is

inadmissible. (ECF No. 247, at 4.)

“The frequency of accidents at a particular place would

seem to be good evidence of its dangerous character-at least, it

is some evidence to that effect.” District of Columbia v. Arms,

107 U.S. 519, 525 (1883). Arms involved a nighttime walk in the

nation’s capital resulting in a deadly fall from an allegedly

defective D.C. sidewalk. Id. at 520. The trial court had

allowed a D.C. police officer to testify about “other accidents

[that] had happened at that place.” Id. at 524. “[The officer]

remembered sending home in a hack [carriage] a woman who had

fallen there, and had seen as many as five persons fall there.”

Id. The Supreme Court rejected the contention that the other

accidents misled the jury, reasoning that the officer’s

testimony was admissible because it “tended to show the

dangerous character of the sidewalk in its unguarded condition”

and “the character of the place was one of the subjects of

inquiry.” Id. at 525.

Nevertheless, there are limits to the admissibility of

other-accidents evidence. “Proof of prior accidents is not

easily admitted into evidence because it often results in unfair

prejudice, consumption of time, and distraction of the jury to

collateral matters.” Blevins v. New Holland N. Am., Inc., 128

F. Supp. 2d 952, 961 (W.D. Va. 2001). A threshold matter is

what the other accidents are introduced to prove. If their

purpose is limited to notice of a dangerous condition, prior

accidents “need only be sufficiently similar” such that the

allegedly negligent party would be “aware of the of the

dangerous situation.” Benedi v. McNeil-P.P.C., Inc., 66 F.3d

1378, 1386 (4th Cir. 1995). That the similarity requirement is

“more relaxed” when evidence of prior accidents is offered for

notice suggests that offering such evidence for purposes beyond

notice is at least sometimes permissible. See id.

But prior accidents are generally disfavored as proof of

negligence or causation. See Blevins, 128 F. Supp. 2d at 960

(“Evidence of similar accidents is not generally admissible for

the purpose of proving negligence or causation.”). Outside the

notice context, a prerequisite for other-accidents evidence

appears to be that the other accidents occurred under

substantially similar circumstances.” See Weir v. Crown Equip.

Corp., 217 F.3d 453, 457 (7th Cir. 2000) (emphasis in original).

The circumstances need not be identical however: Jurors are to

be trusted to discern the probative value of a prior accident

that was substantially similar but perhaps not identical. See

Mihailovich v. Laatsch, 359 F.3d 892, 908 (7th Cir. 2004).

It does not appear that Robinson intends to use the prior

accidents for a purpose other than notice to the West Virginia

Agencies. Robinson contends that, under highway safety

standards, even dissimilar accidents inform whether a median

barrier should be installed. Thus, it would appear that the

prior accidents will be offered as notice of a condition that

highway safety standards would deem sufficiently dangerous to

prompt action. These highway safety standards presumably

inform, but do not dictate, whether the West Virginia Agencies

were negligent.

Without evaluating the foundation in context, it is

difficult to tell the extent of the prior accidents that will be

admissible. If Robinson can lay a foundation that the prior

accidents, however unrelated they may have been, had appreciable

bearing on whether highway safety standards made corrective

action necessary, then the full gamut of prior accidents may be

relevant and admissible. If, on the other hand, it is entirely

(or almost entirely) crossovers that count, or crossovers under

sufficiently similar circumstances that count, only those will

be relevant.4 Thus, the court will deny this portion of the

motion without prejudice.

4 The relevance of the prior accidents is whether the state

agencies had notice of a need to take corrective action.

Because Robinson’s expert is expected to testify that the

agencies did have such notice and should have taken corrective

Subsequent accident. Robinson also wishes to introduce a

report of an accident post-dating both the collision here and

the installation of a median barrier in the environs of Mile

Post 22. The report describes an incident where the driver of a

tractor-trailer lost control of his vehicle, which ultimately

came to rest against the barrier. The report states that, like

here, the driver was southbound near Camp Creek. The report

locates the crash at Mile Post 21, which is about a mile south

of where the instant collision occurred.

The subsequent accident is similar in that it involved a

southbound, out-of-control tractor-trailer in the same general

vicinity and a trajectory generally toward the median. On the

other hand, there are significant differences. First, the

topography near Mile Post 21 is significantly different than

near Mile Post 22. Whereas the latter is a downhill

straightaway (southbound), the former features an eastward curve

and gradual leveling. Also, the report states that it was

raining (although this is not identified as a contributing

circumstance) and that the driver jackknifed prior to making

contact with the guardrail. The curve in the road and the

action, the historical crash data raises the specter of

cumulativeness. On the other hand, the expert should be allowed

to explain how he arrived at his opinion. The court will need

to evaluate whether the evidence becomes cumulative in context.

jackknifing, in particular, raise doubt as to whether this

accident occurred under substantially similar circumstances.

Notably, however, it appears that Robinson intends to offer

this subsequent accident as evidence merely to “show[] that in

some instances guardrails are effective at mitigating the

movement of a tractor-trailer.” (ECF No. 260, at 5.) Although

the similarity between the accident here and the subsequent

accident is not great enough to offer the subsequent accident

for specific causation (that a guardrail would have prevented

this collision), it is admissible as evidence of the more modest

general causation assertion (that guardrails sometimes work

against tractor-trailers). As noted below, if Robinson produces

this evidence, fairness requires that plaintiffs be allowed to

counter it with the Gainesville video to support their claim

that sometimes guardrails are ineffective against tractor-

trailers. A limiting instruction may be appropriate in this

scenario.

Guardrail installation. Under Rule 407, subsequent

remedial measures are inadmissible to prove negligence but

admissible to prove feasibility of a precautionary measure.

Robinson contends that it intends to use the evidence to rebut

any claim that installation of a guardrail would take years of

lead time. If offered in response to show feasibility of a

shorter timeframe, the evidence is permissible under the plain

language of Rule 407, but a limiting instruction may be

appropriate.

Even if plaintiffs do not open the door to the feasibility

purpose, however, the fact of the subsequent remedial measure

necessarily will come up if Robinson offers evidence of the

subsequent accident discussed above. The policy behind Rule 407

is to “encourage[e] potential defendants to remedy hazardous

conditions without fear that their actions will be used as

evidence against them.” TLT-Babcock, Inc. v. Emerson Elec. Co.,

33 F.3d 397, 400 (4th Cir. 1994). Rule 407’s prohibition has

been held not to apply to remedial measures taken by

nondefendants on the reasoning that the threat of liability will

not deter their remedial conduct. In TLT-Babcock, the

subsequent repairs at issue were taken by a nondefendant that

does not appear to have been a “potential defendant,” unlike

here, so that case seems distinguishable.

But assuming that Rule 407 does not bar the remedial

measures by the nonparty West Virginia Agencies here, the court

agrees that such evidence still has a long history of being

disfavored. As Justice Gray explained in 1892,

it is now settled, upon much consideration, by the

decisions of the highest courts of most of the states

in which the question has arisen, that the evidence is

incompetent, because the taking of such precautions

against the future is not to be construed as an

admission of responsibility for the past, has no

legitimate tendency to prove that the defendant had

been negligent before the accident happened, and is

calculated to distract the minds of the jury from the

real issue, and to create a prejudice.

Columbia & P.S.R. Co. v. Hawthorne, 144 U.S. 202, 207 (1892).

Given the marginal relevance of the subsequent remedial measure

and the likelihood of confusing the issues, Rule 403 balancing

probably counsels against admission.

Pragmatic considerations, however, counsel in favor of

admitting evidence of the guardrail. First, it will be

impossible to admit the evidence of the subsequent accident

without acknowledging the subsequent installation of a guardrail

a mile away from where the collision here occurred. Second,

most if not all of the jury panel in this case likely is aware

that a guardrail is now in place at Mile Post 22. The

appropriate remedy for the substantial risk of confusing the

issues here is a limiting instruction.

Lobbying efforts of family and friends and lay witness

testimony. Plaintiffs ask the court to exclude any evidence of

efforts by family or friends of the decedents to bring about the

installation of a guardrail at the site of the collision and any

lay opinions by the family members about whether the lack of a

guardrail caused the collision. Apparently, an uncle of one

decedent and a brother of another had some level of interaction

with the West Virginia Agencies regarding possible installation

of a barrier. No family member testified in deposition about

whether the lack of a barrier caused the collision.

In a nutshell, plaintiffs’ position is:

It strains credulity that [the decedents’] family or

friends could say or do anything that would prove (or,

for that matter, disprove) causation when none have

any expertise in any of the relevant areas, none were

eyewitnesses to the collision, and most do not know

anything about the Camp Creek roadway. The only

proper area of inquiry for any of David and Christine

Gilley’s family and friends is regarding damages under

West Virginia § 55-7-6(c) (i.e., their sorrow, mental

anguish, and solace; the services, protection, care,

and assistance provided by David and Christine

Gilley).

(ECF No. 247, at 9-10.)

In opposition, Robinson contends that the jury should know

that the “family members recognized the need for a guardrail and

pleaded with the West Virginia Agencies to take appropriate

action.” (ECF No. 260, at 2.) Robinson further contends that

the uncle who communicated with the state agencies has

repeatedly held himself out as the family’s representative.

Robinson suggests that the evidence can be used to impeach the

family members and show that they “changed their position

regarding fault that may be attributed to the West Virginia

Agencies.” (Id. at 6-8.)

It is unclear whether Robinson intends to use the

ostensible lobbying efforts for purposes beyond impeachment. As

stand-alone evidence, it is difficult to see any relevance in

how the family originally analyzed liability, even assuming

their analysis changed. As to the facts, they were not

eyewitness; nor are they expert accident reconstructionists. As

to the law, legal opinions would not be admissible even if some

family members were lawyers.5 Accordingly, the family members’

opinions about liability are no more admissible than the

opinions of members of a test jury.

The only conceivably permissible use for this evidence is

impeachment. But plaintiffs would first need to open the door

by eliciting opinions from the family members about liability

(which would be plainly objectionable) or about the

administrators’ subjective motivations for filing the case

(which may also be objectionable). Robinson cannot open the

door to such evidence for itself by eliciting such opinions or

testimony about such motivations. As for arguments of counsel,

it seems that counsel would open the impeachment door only by

representing their clients’ views on liability or their clients’

subjective motivations in a way that contradicts the evidence

that Robinson intends to use as impeachment.

In sum, before there is impeachment, there must be relevant

evidence to impeach. The evidence of the ostensible lobbying

5 The family-member administrators’ reasoning for their strategic

choices in the filing of the lawsuit are likely covered by the

attorney-client privilege, as well.

efforts of family and friends, and any lay opinions about

liability or causation from family or friends, should be

presumed inadmissible unless something quite unexpected happens

at trial to make this evidence admissible for impeachment.

The court will therefore grant the motion in part and deny

it in part, as described above.

II. Robinson’s Motions in Limine

a. Motion to Exclude Amounts of Insurance, Financial

Information, and Evidence or Argument Relating to

Punitive Damages (ECF No. 237)

Because the court has granted summary judgment as to

plaintiffs’ vicarious liability claim against Robinson, and

because plaintiffs have waived their claim for punitive damages,

it would appear that this motion is moot as to all but the

second category: evidence of Robinson’s financial condition.

Plaintiffs acknowledge the limited purposes for which such

evidence is admissible and say that they intend to introduce it

for the limited purpose of rebutting a potential defense that it

is infeasible to conduct the safety vetting plaintiffs say was

required here. In reply, Robinson maintains that it can raise a

feasibility argument without opening the door to evidence of its

revenue, profits, and valuation.

On one hand, plaintiffs have a right to conduct an

effective cross-examination of witnesses who may testify that

the cost of the taking the precautions at issue would be too

high. On the other hand, the court agrees the door cannot be so

easily opened to Robinson’s financial condition. And it would

appear that plaintiffs can cross-examine witnesses on cost

feasibility by focusing on the transactional-level economics;

they likely need not resort to evidence of Robinson’s financial

condition on a grand scale. Thus, evidence of Robinson’s

overall financial condition is not admissible unless the door is

clearly opened with testimony, for example, that Robinson’s size

or overall net profits render it unable to take the precautions

that plaintiffs urge or unless, in the context of trial, it

appears that plaintiffs will be denied a fair opportunity to

cross-examine witnesses on the issue without resorting to

financial-condition evidence.

Therefore, to the extent the motion is not moot, the court

will grant it subject to potential reconsideration in the

context of trial.

b. Motion to Exclude FMCSA Compliance Review (ECF No. 238)

After the collision, the Federal Motor Carrier Safety

Administration (“FMCSA”) completed a Compliance Review (“CR”) of

defendant J&TS’s operations, resulting in an overall

“Unsatisfactory” rating. Robinson says that the CR is

inadmissible both by statute and by the Rules of Evidence, and

asks the court to exclude it. Copeland argues that the report

is hearsay and asks the court to exclude it.

By statute, certain reports or investigations of motor-

carrier accidents are inadmissible in litigation involving the

same subject matter:

No part of a report of an accident occurring in

operations of a motor carrier, motor carrier of

migrant workers, or motor private carrier and required

by the Secretary, and no part of a report of an

investigation of the accident made by the Secretary,

may be admitted into evidence or used in a civil

action for damages related to a matter mentioned in

the report or investigation.

49 U.S.C. § 504(f) (emphasis added).

The question is whether the CR is “a report of an

investigation of the accident made by the Secretary.” The FMCSA

flagged J&TS for a CR because of the collision here, and the

Illinois Department of Transportation completed the CR on the

FMCSA’s behalf. There is no dispute that the Secretary (through

the state agency) “made” the report. But the parties sharply

dispute whether it was “of an investigation of an accident.”

A typical purpose of statutory provisions like the one

here, which bars admission of certain accident reports, is to

“encourage[e] full and frank reports while protecting those who

generate the information against the use of such reports in

litigation.” See Mueller & Kirkpatrick, 2 Federal Evidence

§ 5:5 (4th ed.). Although it was a government agency that

ultimately “generate[d]” the information here, the CR drew upon

information provided by Copeland and J&TS’s officers. Thus,

exclusion would at least somewhat further the purpose of the

statutory provision.

On the other hand, while the CR does have a section

regarding the collision, it is a comprehensive review of J&TS’s

operations that sweeps much broader than the collision, so it is

awkward at best to label it an investigation of an accident.

There is a dearth of on-point case law on this issue. One

guiding principle, though, is that “statutes establishing

evidentiary privileges must be construed narrowly because

privileges impede the search for the truth.” Pierce County v.

Guillen, 537 U.S. 129, 144 (2003). Given the ambiguity, this

interpretive canon is helpful in reaching the conclusion that

§ 504(f) does not prohibit exclusion of the CR in its entirety.

The portion regarding the accident, however, is likely

inadmissible under § 504(f); accordingly, and because plaintiffs

do not oppose redaction of that portion, it should be redacted.

The question becomes whether there are portions of the CR

that are relevant, that pass Rule 403 balancing, and are not

being impermissibly offered as propensity evidence. As to

relevance, while Robinson is correct that much of the CR appears

irrelevant as to causation, the CR generally appears probative

of whether J&TS was a competent and careful contractor.

As to Rule 403 balancing, it is notable that plaintiffs

presumably will present expert testimony that J&TS was not a

careful and competent contractor. To the extent that the CR

merely reiterates that opinion, it may be cumulative. There is

also some risk that the jury will consider evidence that goes

only to incompetence as evidence of causation.

Next, as to whether the CR is impermissible propensity

evidence under Rule 404(b), this again appears to be a problem

only if it is offered to prove causation. Plaintiffs say that

it is not propensity evidence because it shows knowledge.

Regardless of whether “knowledge” is the correct label, there

does not appear to be a Rule 404(b) problem if the evidence is

offered simply to show the alleged incompetence of the

contractor, not causation.

Finally, in his separate motion on this topic (ECF No.

230), Copeland urges that the report is hearsay and does not, at

least in substantial part, qualify under the public records

exception. Rule 803(8) provides that the rule against hearsay

does not apply to

[a] record or statement of a public office if

(A) it sets out:

. . .

(iii) in a civil case or against the government in a

criminal case, factual findings from a legally

authorized investigation; and

(B) the opponent does not show that the source of

information or other circumstances indicate a lack of

trustworthiness.

Copeland appears to argue that to the extent the findings

in the report draw upon interviews the investigator conducted,

those findings do not qualify under this hearsay exception.

However, the one case that Copeland cites in support of this

proposition states,

The [first-hand knowledge] criterion can be satisfied

in either of two ways. Ideally, the author of the

document actually will have had first-hand knowledge

of the factual findings which he has made. However,

if he does not, the first-hand knowledge requirement

imposed by Federal Rule of Evidence 602 still can be

satisfied if the author had first-hand knowledge of

the statements made by declarants who did have first-

hand knowledge of the facts mentioned in the factual

findings made in the public document.

Fraley v. Rockwell Int’l Corp., 470 F. Supp. 1264, 1266–67 (S.D.

Ohio 1979) (emphasis added). Put more directly, a public record

“will not be excluded merely because the author did not have

firsthand knowledge of the reported matters.” Mathin v. Kerry,

782 F.3d 804, 809 (7th Cir. 2015).

To the extent the author of a public record merely quotes

another person, that portion of the report could be hearsay, but

the author’s reliance on interviews in making factual findings

does not render those findings inadmissible. Moreover, to the

extent the report here quotes Copeland or the owners of J&TS,

the quotes would appear to be statements of an opposing party

under Rule 801(d)(2). Accordingly, they would not constitute

hearsay.6

The CR is relevant to a disputed element of plaintiffs’

negligent hiring claim (whether J&TS was a careful and competent

contractor), and § 504(f) does not preclude its admission.

There is some risk of jury confusion about the permissible

purposes of the CR. There is also some risk that the CR is

cumulative of expected expert testimony regarding whether J&TS

was a carful and competent contractor. But plaintiffs have the

burden of proof as to each element of their claim. Weighing

plaintiffs’ right to present all relevant evidence on all

contested elements of their claim against the risks associated

with this evidence, the court finds at this point that a

limiting instruction, not preclusion of the evidence, is the

appropriate remedy. If it becomes clear in the context of trial

that the CR is cumulative in light of its narrow relevance,

defendants are free to renew their objections.

Thus, the court will deny the motion, but the section of

the report concerning the collision should be redacted.

6 The court must reject plaintiffs’ contention that the report is

being used merely to show notice, and thus, not for a hearsay

purpose. The report cannot show notice because it post-dates

the collision.

c. Motion to Exclude Procedures Involving High Value Cargo

(ECF No. 243)

Plaintiffs would like to present evidence of the process

that Robinson uses to select carriers to transport high-value

cargo. Plaintiffs say the juxtaposition between those

procedures, which can arguably be described as carrier vetting,

and the more minimal procedures for selecting a carrier for non-

high-value cargo tend to show the unreasonableness of Robinson’s

conduct in this case (which did not involve high-value cargo).

Apparently, it is the shipping customer who selects the

high-value option, which triggers the process plaintiffs wish to

show. The essential purpose of the process is to make sure that

attributes of the prospective carrier are such that the customer

is likely to be made whole in the event of a cargo loss. For

example, Robinson makes sure the shipper has sufficient cargo

insurance from an insurance company with a record demonstrating

a willingness to pay claims.

Robinson asks the court to exclude evidence of the process

for choosing carriers to ship high-value cargo, arguing that it

is irrelevant and unfairly prejudicial. This motion is well

taken. The process that Robinson uses for high-value cargo and

the vetting procedures that plaintiffs contend are necessary for

all of Robinson’s shipments of cargo are apples and oranges.

Whatever process Robinson uses for high-value cargo has no

bearing on whether its process for other cargo is reasonable.

The evidence would serve only to distract the jury from the task

at hand: determining whether Robinson’s conduct at issue was

reasonable. Accordingly, the court will grant the motion.

d. Motion to Exclude Gainesville Video (ECF No. 239)

Robinson contends that certain West Virgina Agencies were

at fault for the collision here based on their failure to

install a median barrier. Plaintiffs contend that the expected

evidence falls short of supporting this defense and that, in any

event, a barrier would not have withstood the force of the

tractor-trailer here. To illustrate that barriers are sometimes

ineffective at stopping tractor-trailers, plaintiffs intend to

show the jury a video of a collision in Gainesville, Florida,

where a barrier was ineffective. The video was captured on a

dashcam of another vehicle that was in an opposing traffic lane

and into which the tractor-trailer crashed.

Robinson and Copeland ask the court to exclude the video,

arguing that because it depicts a different set of circumstances

600 miles away from the site of the incident here, it is

irrelevant. They further submit that even if it is relevant,

the video does not pass Rule 403 balancing because of its

alarming nature. Robinson further submits that presenting the

video is tantamount to an improper golden rule argument because

the video invites the jury members to place themselves in the

path of a deadly collision.

Plaintiffs contend that the relevance of the video is in

countering the claim that a guardrail would have prevented the

collision here. They further contend that the video depicts a

collision similar to the one here with a kind of barrier that

Robinson contends would have been fully effective. As to

potential prejudice or confusion, plaintiffs say that the video

does not depict disturbing images and that to the extent the

jury may be confused, a limiting instruction can alleviate such

confusion. Finally, plaintiffs deny that this is a golden rule

argument in disguise.

As discussed above, the court is allowing Robinson to

introduce an unrelated accident (at Camp Creek) to show that

guardrails are sometimes effective at stopping tractor-trailers.

Both that accident and the Gainesville accident involve a driver

losing control at a high speed and striking a guardrail.

Although the Camp Creek accident occurred hundreds of miles

closer to the collision here, it is not any more identical than

the Gainesville accident. Accordingly, if Robinson produces

evidence of an unrelated accident to show that median barriers

are sometimes effective at stopping tractor-trailers, plaintiffs

should be afforded the same opportunity to present similar

evidence to the contrary.

The court disagrees that the Gainesville video is

tantamount to a golden rule argument. “Only an argument that

urges the jurors to put themselves in the place of the victim or

the victim’s family is an improper ‘golden rule’ argument. Syl.

pt. 4, State v. Clements, 334 S.E.2d 600, 603 (W. Va. 1985).

Although Clements was a criminal case, it was cited approvingly

in a recent civil case. See Miller v. Allman, 813 S.E.2d 91,

105 (W. Va. 2018). Although the video illustrates what it may

look like to be on a collision course with a tractor-trailer, an

illustration is not an invitation, and certainly not an explicit

invitation.

For the reasons stated above, the court will grant the

motion but will reverse its ruling and allow presentation of the

Gainesville video if Robinson opens the door by presenting

evidence of the Camp Creek accident.

e. Motion to Exclude Criminal Proceedings (ECF No. 240)

The parties agree that evidence of the criminal proceedings

related to the collision is inadmissible. In the remainder of

the motion, Robinson asks that the court to exclude any evidence

that Copeland committed a crime or received a traffic citation.

Robinson argues that such evidence is irrelevant, unfairly

prejudicial, and is impermissible propensity evidence.

In response, plaintiffs ask the court to admit evidence of

Copeland’s driving record as relevant to their claim that J&TS

was negligent in hiring Copeland—that it either failed to check

his record or hired him despite it. Plaintiffs contend that

this is not impermissible propensity evidence under Rule 404(b)

because it is offered not to show that Copeland acted in

conformity with prior bad acts on a specific occasion. As to

the marijuana charge, plaintiffs say that there is an open

question about drug use because the post-accident drug test did

not meet federal regulations.

Copeland’s driving record appears to be probative of

plaintiffs’ claim that Copeland’s employer, defendant J&TS, was

not a competent and careful motor carrier because it hired a

driver despite a pattern of speeding violations. It is not

being offered to show that Copeland was speeding on a

“particular occasion,” which would be an improper purpose under

Rule 404(b). If necessary, the court can instruct the jury that

Copeland’s speeding citations are not competent evidence that he

was speeding at the time of the collision.

The court agrees with Robinson that the marijuana charge is

not admissible. Even assuming that the post-accident drug test

did not conform to federal regulations, which is not apparent

from plaintiffs’ citation in support of this assertion, this

does not appear to support an inference that drugs were involved

here. There is no impeachment value because there is an

insufficient basis to suspect drug use related to the collision

in the first place. The suspicion arises only because of the

potentially false deposition answer regarding drug use. Thus,

evidence of the marijuana charge is not admissible.

As explained above, the court will grant the motion in

part.

f. Motion to Limit Arguments of Counsel (ECF No. 241)

Robinson asks the court to limit certain arguments of

counsel or references to a GAO report regarding the FMCSA.

While acknowledging the difficulty in prospectively establishing

bright lines for the scope of every impermissible argument,

Robinson notes that “guidance on the boundaries” would be

helpful and would minimize disruption during trial. (ECF No.

241.) Robinson identifies several argument types that the court

should preclude: (1) golden rule invocations; (2) exhortations

to “send a message”; (3) so-called Reptile Theory arguments; (4)

descriptions of Robinson calculated to convey that it is a big,

out-of-state corporation; (5) personal opinions on damages,

verdicts in similar cases, or per diem arguments; or (6)

references to insurance.

Plaintiffs sensibly concede the inadmissibility of golden

rule or “send a message” arguments.7 As to so-called Reptile

7 Plaintiffs dispute the characterization of the Gainesville

video as a golden rule argument. As explained above, the video

(by itself) is not a golden rule argument. Defendants are free

arguments, plaintiffs resist an overbroad understanding of this

category and the effectiveness of Reptile Theory as a means of

manipulating jurors. Plaintiffs say that, properly understood,

an attempt to bypass jurors’ prefrontal cortices would involve

things like presenting spiders and snakes, not mere references

to safety interests. Plaintiffs maintain that they do not

intend to manipulate jurors with improper arguments and ask that

Reptile-based objections be taken up in context. The court

agrees that this is the best approach.

Descriptions intended to cast Robinson as a villainous big

corporation are improper. However, if Robinson opens the door

by inaccurately characterizing its size or financial condition,

such evidence may become admissible. Personal opinions on

damages, verdicts in similar cases, or per diem arguments are

inadmissible. The portion of the motion seeking exclusion of

insurance evidence is moot because plaintiffs sought to

introduce this evidence solely in support of their vicarious

liability claim, which is no longer pending.

Robinson also asks the court to preclude arguments or

questioning about the resources of the FMCSA, including

questions drawing upon a GAO report suggesting that the FMCSA

lacks sufficient resources to vet all new entrants for the

to object if plaintiffs attempt to use the video to make a

golden rule argument.

purpose of exposing “chameleon” motor carriers. Robinson says

that applying the statement about a lack of resources outside

the chameleon-carriers context results in a “gross

mischaracterization” of the report. (ECF No. 241, at 4.)

Plaintiffs concede that the FMCSA’s alleged lack of

resources and the GAO report are inadmissible unless Robinson

opens the door, which plaintiffs say Robinson may do by arguing

that a reasonable broker relies on the FMCSA to do further

vetting. Plaintiffs resist the suggestion that applying the GAO

report’s statement about a lack of resources is a

mischaracterization, arguing that if resources are lacking for

the narrower issue of uncovering chameleon carriers, they are

lacking for the larger issue of safety vetting in general.

Plaintiffs’ description of how the door may be opened is

well taken. They should have the opportunity to rebut the

contention that brokers reasonably rely on the FMCSA to vet

carriers. And although the context of the GAO statement was a

discussion regarding chameleon carriers, it is not obvious that

its probative value is limited to that context. The context

goes to the weight of the statement, not its admissibility.

Finally, Robinson seeks to preclude “reverse engineering”

arguments that would seek to undermine the nonparty fault

statute. As to the impermissibility of such arguments, the

parties basically appear to be on the page. Plaintiffs concede

that they should not tell the jury to adjust damages to account

for apportionment of fault.8 Thus “reverse engineering”

arguments are not permissible.

As explained above, the court will grant the motion in

part.

g. Motion to Exclude Pain, Suffering, and Pre-Death Terror

Claims (ECF No. 242)

Based on the crash data recovered from the decedents’ Honda

Pilot, plaintiffs have asserted a claim for pre-death terror as

to decedent Christine Gilley, who was driving at the time of the

collision. The black-box data appears to suggest that Mrs.

Gilley applied the brakes and turned the steering wheel a second

or two before impact. Robinson says that this claim should not

be permitted because it was disclosed for the first time in

plaintiffs’ proposed pretrial order (not in their initial

disclosures or discovery responses regarding damages); it is not

recognized under West Virginia law; and there is insufficient

evidence to support it. Plaintiffs contend that they never

waived a claim for pre-death terror, that defendants have had

the black-box data upon which the claim is based for a long

time, and that West Virginia law does not prohibit such claims.

8 Plaintiffs request a jury instruction, however, that damages

should neither be increased or reduced based on apportionment of

fault.

Whether this court should predict that West Virginia’s high

court would recognize a claim for pre-death terror, and whether

the black box evidence speaks for itself are complex questions.

The court need not reach those questions, however, because it is

readily apparent that the timing of this claim’s disclosure

denied defendants a fair opportunity to defend against it.

Thus, evidence solely probative of a claim for pre-death terror

is inadmissible.

h. Motion to Exclude Evidence Solely Pertaining to Control

(ECF No. 303)

In this motion, Robinson asks the court to deem a number of

exhibits as relating solely to plaintiffs’ claim for vicarious

liability and thus, inadmissible given that the court has

granted summary judgment in Robinson’s favor on that claim. In

response, plaintiffs concede the principle that irrelevant

evidence is inadmissible but maintain that some of the exhibits

that Robinson identifies as going solely to vicarious liability

actually have relevance outside that claim. While the briefing

on this motion may provide a helpful preview of disputes that

may arise over relevance at trial, the court declines at this

stage to sift through the exhibits and determine which ones

maintain their relevance in the absence of the vicarious

liability claim. Thus, the court will deny the motion without

prejudice, and Robinson is welcome to renew its objections at

trial.

III. Copeland’s Motions in Limine

a. Motion to Preclude Hearsay Investigative Reports (ECF No.

230)

The court’s discussion above regarding Robinson’s motion to

exclude the CR addresses Copeland’s argument against its

admission. Because plaintiffs consent to the exclusion of the

Traffic Crash Report and Crash Analysis accident reconstruction

report, the court grants the motion as to those documents only,

and denies the motion as to the CR.

b. Motion to Preclude Evidence Concerning the Gainesville

Florida Accident (ECF No. 231)

For the reasons explained above, the court will allow the

Gainesville video if Robinson chooses to present evidence of the

subsequent accident at Camp Creek. For now, the court will

grant the motion.

c. Motion to Preclude Evidence Suggestive that Defendant

Copeland was in Violation of the FMCSA Hours of Service

Regulations at the Time of the Subject Accident (ECF No.

232)

Copeland asks the court to preclude any evidence or

testimony in support of the theory that he was not in compliance

with hours-of-service requirements at the time of the collision.

This request encompasses expert testimony. Copeland fails to

show that this broad category of evidence should be excluded.

The criticisms of this evidence go its weight, not its

admissibility. Copeland is free to raise specific objections to

the admissibility of evidence pertaining to hours-of-service at

trial, but the court will deny the motion.

d. Motion to Preclude Evidence Suggesting that Defendant

Copeland was Terminated from a Prior Employer for

Refusing a Drug Test (ECF No. 233)

Plaintiffs state that they do not plan to submit evidence

that Copeland was fired in the past for refusing a drug test to

prove the truth of the matter asserted, but reserve the right to

submit this evidence for the purpose of showing the J&TS “did

not properly conduct a pre-hiring screen of” him. (ECF No. 274,

at 1.) Plaintiffs will need to show how the evidence is

relevant if not offered for its truth, as it appears that the

portion of the CR supporting the claim that Copeland was fired

for refusing a drug test is hearsay because it merely recounts

what another person, who is not an opposing party, said. For

now, the court will deny the motion without prejudice.

e. Motion to Preclude Admission of Graphic Photographs (ECF

No. 234)

The court will take up objections to graphic photographs in

the context of trial. For now, the court will deny the motion

without prejudice.

f. Motion to Preclude Evidence Suggesting that Defendant

Copeland’s Commercial Driver’s License Had Been Suspended

or Revoked at the Time of the Subject Accident (ECF No.

235)

In response to this motion, plaintiffs state that they will

not introduce evidence or argument that Copeland did not have a

valid commercial driver's license at the time of the collision.

Therefore, the court will grant the motion.

g. Motion to Preclude Evidence of Other Crimes, Wrongs or

Acts (ECF No. 236)

The court will grant the motion as to Copeland’s criminal

history. For the reasons stated above, the court will deny the

motion as to Copeland’s driving history.

I. Conclusion

For the reasons stated above, the court rules as follows on

the motions in limine:

As to plaintiffs’ motions, ECF Nos. 244 and 245 are

GRANTED; ECF No. 247 is GRANTED in part and DENIED in part; and

246 is DENIED as moot.

As to Robinson’s motions, ECF Nos. 237, 243, 239, and 242

are GRANTED; ECF Nos. 240 and 241 are GRANTED in part and DENIED

in part; ECF No. 303 is DENIED without prejudice; and ECF No.

238 is DENIED.

As to Copeland’s motions, ECF Nos. 231 and 235 are GRANTED;

ECF Nos. 230 and 236 are GRANTED in part and DENIED in part; ECF

Nos. 233 and 234 are DENIED without prejudice; and ECF No. 232

is DENIED.

The Clerk is directed to send a copy of this Memorandum

Opinion and Order to counsel of record.

IT IS SO ORDERED this 18th day of March, 2022.

ENTER:

David A. Faber

Senior United States District Judge

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