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Fielder v. R.V. Coleman Trucking, Inc.

United States District Court, N.D. West Virginia

January 29, 2018

JASON FIELDER, Plaintiff,
v.
R.V. COLEMAN TRUCKING, INC., ARKOS FIELD SERVICES, LP, EQT CORPORATION, EQUITRANS, LP d/b/a EQT MIDSTREAM and EQT PRODUCTION COMPANY, Defendants, and R.V. COLEMAN TRUCKING, INC., Third-Party Plaintiff,
v.
MEC CONSTRUCTION, LLC, Third-Party Defendant.

          MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE OF PLAINTIFF AND DEFENDANTS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         Pending before this Court are motions in limine filed by the plaintiff and the defendants. The trial of this civil action[1] is now scheduled to commence on March 20, 2018.[2] Now before the Court are ten pending motions in limine which have been fully briefed: (1) Motion in Limine to Limit Testimony of Defendant R.V. Coleman Trucking, Inc.'s Expert Stanley Pulz filed by Jason Fielder (ECF No. 144); (2) MEC Construction, LLC's joinder in Motion in Limine to Limit Testimony of Defendant R.V. Coleman Trucking, Inc.'s Expert Stanley Pulz filed by Jason Fielder (ECF No. 156); (3) Motion in Limine to Exclude Evidence of Prior Criminal Conviction filed by Jason Fielder (ECF No. 145); (4) Motion in Limine to Exclude Reference to Certain Evidence filed by Jason Fielder (ECF No. 146); (5) Motion in Limine Regarding Plaintiff's Claim for Damages for Loss of Household Services filed by R.V. Coleman Trucking, Inc. (ECF No. 147); (6) Motion in Limine Regarding Testimony of Cathy S. Gross and Plaintiff's Claim for Lost Wages and/or Earning Capacity filed by R.V. Coleman Trucking, Inc. (ECF No. 148; (7) Motion in Limine to Preclude Solicitation of Opinions Outside of Expertise of Expert Witnesses and/or Beyond Scope of Expert Reports filed by R.V. Coleman Trucking, Inc. (ECF No. 150); (8) Motion in Limine to Exclude Evidence of Inapplicable Regulations and Standards filed by MEC Construction, LLC (ECF No. 152);[3] (9) Motion in Limine to Exclude Evidence of Subsequent Remedial Measures filed by MEC Construction, LLC (ECF No. 154);[4]and (10) Motion in Limine to Exclude Evidence of Per Diem Payments filed by MEC Construction, LLC (ECF No. 155).

         This Court has reviewed the fully briefed motions and the memoranda and exhibits submitted by the parties. This Court will address those motions in limine and set forth its findings, as discussed below.

         Plaintiffs Motions in Limine

         1. Motion in Limine to Limit Testimony of Defendant R.V. Coleman Trucking, Inc.'s Expert Stanley Pulz filed by Jason Fielder (ECF No. 144) and joined in by MEC Construction, LLC (ECF No. 156) is denied.

         Plaintiff Jason Fielder filed a motion in limine to limit the testimony of defendant R.V. Coleman Trucking, Inc.'s ("R.V. Coleman") Expert Stanley Pulz (ECF No. 144), which was joined by defendant MEC Construction ("MEC") (ECF No. 156). Plaintiff moves to exclude certain testimony of defendant R.V. Coleman Trucking, Inc.'s proffered expert, Stanley Pulz ("Pulz"), pursuant to Rules 104(a) and 702 of the Federal Rules of Evidence. Specifically, the plaintiff seeks the Court's entry of an order limiting the testimony of Stanley Pulz on matters upon which "he is not qualified to testify because they are outside his area of expertise and because his testimony regarding the Federal Motor Carrier Safety Regulations and load securement in the trucking industry are unreliable, inconsistent, and based entirely on the ipse dixit of the proffered expert." ECF No. 144.

         R.V. Coleman filed a response in opposition (ECF No. 163) and argues that its expert, Stanley Pulz, should be permitted to offer opinions on whether R.V. Coleman's compliance or non-compliance with the FMCSRs caused plaintiff's injuries, and whether the method used by R.V. Coleman to secure the pipe in transit complied with the FMCSRs. Defendant argues that Pulz's opinions are admissible under Rule 702 because he possesses specialized knowledge, experience, training or education which will assist the jury in determining whether R.V. Coleman's compliance or non-compliance with the FMCSRs caused or contributed to plaintiff's injuries.

         Rule 702 permits a "witness who is qualified as an expert by knowledge, skill, experience, training, or education" to provide an opinion and testimony if: (1) "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;" (2) "the testimony is based on sufficient facts or data;" (3) the testimony is the product of reliable principles and methods;" and (4) "the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. The court "must ensure that any and all [expert] testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) . To assess reliability of expert testimony, the court may consider:

(1) whether the particular scientific theory "can be (and has been) tested;" (2) whether the theory "has been subjected to peer review and publication;" (3) the "known or potential rate of error;" (4) the "existence and maintenance of standards controlling the technique's operation;" and (5) whether the technique has achieved "general acceptance" in the relevant scientific or expert community.

United States v. Crisp, 324 F.3d 261, 266 (4th Cir. 2003) (citing Daubert, 509 U.S. at 593-94). This is a flexible analysis because "[r]ather than providing a definitive or exhaustive list, [these factors] merely illustrate [] the types of factors that will “bear on the inquiry.'" Id. (citing Daubert, 509 U.S. at 593-94). An additional consideration under Rule 702 is "whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving the factual dispute." Daubert, 509 U.S. at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).

         Stanley Pulz, M.A., C.S.P., P.E. is a Certified Safety Professional and registered Professional Engineer in safety. Mr. Pulz has "vast experience in safety engineering over a career that spans more than forty (40) years." ECF No. 163 at 2. Mr. Pulz has previously been recognized as an expert in safety matters by other courts, "including safety standards in the trucking industry under the FMCSRs." Id. at 3. This Court finds that the motion in limine to limit the testimony of defendant R.V. Coleman's expert Stanley Pulz must be denied as his opinions are admissible under Rule 702 because Mr. Pulz possesses specialized knowledge, experience, training or education which will assist the jury in determining a fact in issue. Additionally, this Court intends to give detailed instructions as to how the jury is to consider expert testimony, allowing the jury to decide what weight to give each expert's testimony.

         Accordingly, the motion in limine to limit the testimony of defendant R.V. Coleman Trucking, Inc.'s expert Stanley Pulz filed by Jason Fielder (ECF No. 144) and joined in by MEC Construction, LLC (ECF No. 156) is DENIED.

         2. Motion in Limine to Exclude Evidence of Prior Criminal Conviction filed by Jason Fielder (ECF No. 145) is deferred.

         Plaintiff Jason Fielder filed a motion in limine to exclude evidence of prior criminal conviction. ECF No. 145. Plaintiff states that "[i]t is anticipated that the defendants will attempt to attack Mr. Fielder's credibility by offering evidence of a 2008 criminal conviction for delivery of a controlled substance." Id. Plaintiff argues that "this court should exclude any mention or reference to Mr. Fielder's prior conviction as it is inadmissible in accordance with Rule 609 of the Federal Rules of Evidence." Id. Additionally, plaintiff asserts that defendants "cannot meet the burden imposed upon them, as required by the Federal Rules of Evidence, to establish that Mr. Fielder's prior criminal conviction, or any other crimes, wrongs, or other acts, are admissible at trial." Id.

         R.V. Coleman filed a response in opposition (ECF No. 161) and argues that it should be permitted to introduce evidence of plaintiff, Jason Fielder's, prior felony convictions to impeach plaintiff's credibility under Rule 609 of the Federal Rules of Evidence and to rebut plaintiff's claims for future lost wages, and impairment of earning capacity, as the same relates to plaintiff's employability. ECF No. 161.

         MEC filed a response in opposition (ECF No. 164) and argues that plaintiff's convictions are admissible due to their effect on his ability to obtain employment and in relation to his credibility. ECF No. 164.

         Arkos Field Services, LP ("Arkos") filed a response in opposition (ECF No. 165) and argues that plaintiff has opened the door to his prior criminal convictions and drug use history being introduced as evidence at trial by asserting claims for future lost wages and diminished earning capacity as both are probative and relevant to his future employability and earning capacity. ECF No. 165. Arkos states that Federal Rule of Evidence 401 provides evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is on consequence in determining the action". Defendant Arkos argues that plaintiff ignores the fact that his retained experts testified that plaintiff's drug use and criminal history are relevant to his future employability and earnings potential and are likely to be considered by prospective employers. ECF No. 165. Defendant asserts that plaintiff's opioid addiction and subutex treatment precluded him from treating with traditional pain medications which would have controlled his pain better. Id. Defendant contends that this is directly relevant to plaintiff's claims of pain and suffering and should be presented to the jury for its consideration. Id.

         Under Rule 609, in the civil action context, evidence of a conviction of crime that is "punishable by death or by imprisonment for more than one year" must be admitted, subject to Rule 403. Fed.R.Evid. 609(a) (1) (A) . As to any crime, regardless of the applicable punishment, "the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement." Id. at (a) (2) . However, admission under Rule 609 remains subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value. As the court in United States v. Estrada stated:

[Rule 609(a) (1)] requires district courts to admit the name of a conviction, its date, and the sentence imposed unless the district court determines that the probative value of that evidencexis substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' This determination is left to the sound discretion of the district court.

430 F.3d 606, 621 (2d Cir. 2005) (internal citation omitted).

         Furthermore, evidence of a conviction of a crime is usually not admissible if more than ten years have passed "since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date." Ghant v. Brown, 930 F.2d 633, 638 n.10 (8th Cir. 1991) (quoting Fed.R.Evid. 609 (b)) . If more than ten years have passed, then a court may admit evidence of that conviction "only if (1) its probative value . . . substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use." Fed.R.Evid. 609(b) (1-2) (emphasis added). If a court decides to admit evidence of a prior conviction for impeachment, "the impeaching party 'is generally limited to establishing the bare facts of the conviction: usually the name of the offense, the date of the conviction, and the sentence." Somerville v. Saunders, 2014 WL 272415, at *3 (N.D.N.Y. Jan. 24, 2014) (quoting United States v. Brown, 606 F.Supp.2d 306, 319 n.8 (E.D.N.Y. 2009) (quoting 4 Weinstein's Federal Evidence § 609.20[2] (2d ed. 2008))).

         Plaintiff states that the prior conviction at issue in this case is plaintiff's 2008 conviction for delivery of a controlled substance. ECF No. 145 at 3. Plaintiff asserts that "[i]n this instance, given the fact that (1) the conviction was almost ten years ago, (2) there have been no subsequent convictions, and (3) the crime is wholly unrelated to this personal injury action, this Court should find that Mr. Fielder's 2008 conviction for delivery of a controlled substance is inadmissible as its limited probative ...


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