United States District Court, W.D. Washington,

at Seattle.

Larry LIZOTTE, Plaintiff,

v.

PRAXAIR, INC., Defendant/Third-Party Plaintiff,

v.

Pacific CA Systems, Inc., Third-Party Defendant.

No. C07-1868RSL.

March 3, 2009.

ORDER GRANTING DEFENDANT’S MOTION TO STRIKE AND DENYING PLAINTIFF’S MOTION IN LIMINE

ROBERT S. LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on two motions: defendant Praxair’s motion to strike a report prepared by Rimkus Consulting Group, Inc. (Dkt.# 51) and plaintiff’s motion in limine to admit the report (Dkt.# 55). For the reasons set forth below, the Court grants defendant’s motion to strike and denies plaintiff’s motion in limine.

Because the current motion can be decided on parties’ memoranda, supporting documents, and the remainder of the record, plaintiff’s request for oral argument is denied.

II. BACKGROUND

Plaintiff was driving a truck for Pacific CA Systems, Inc. (“Pacific”), a trucking company that had a contract to haul a load for Praxair, Inc. (“Praxair”), when he was involved in a single vehicle rollover accident. Plaintiff contends that a defect in Praxair’s trailer caused the accident. Defendant Praxair contends that plaintiff caused the accident by driving too fast and overloading the trailer.

St. Paul Travelers Insurance Company (“Travelers”) insured Pacific, the owner of the truck, at the time of the accident. Travelers retained the Rimkus Consulting Group, Inc. (“Rimkus Group”) to prepare a report analyzing whether the trailer axles caused or contributed to the accident (the “report” or “Rimkus report”). The parties have since agreed that Travelers will indemnify Praxair and Pacific for any damages caused by the accident. Plaintiff now seeks to introduce the report in support of his claim against Praxair.

III. ANALYSIS

A. Role of the Parties

Plaintiff intends to rely heavily on the report at trial. Its admissibility turns in large part on the relationship between Travelers, Pacific, and Praxair. For this reason, the Court addresses the parties’ respective roles first. Plaintiff’s claim and motion involve only defendant Praxair. Plaintiff has not filed a complaint against Pacific, and Pacific’s role as a third party defendant is limited to its action with Praxair. Plaintiff asks the Court to acknowledge that Travelers and Pacific are the “true parties in interest to this lawsuit,” but has cited no authority to support his position that the report’s admissibility turns on the actions of Pacific or Travelers. Plaintiff’s Reply at p. 4. Accordingly, this order only determines the report’s admissibility against defendant Praxair.

B. Authentication

In its order denying plaintiff’s motion for partial summary judgment (Dkt. # 47), the Court noted that plaintiff’s copy of the report was unauthenticated. Since then, plaintiff has not provided the Court with an authenticated copy.Fed.R.Evid. 901(a) establishes that authentication is a condition precedent to admissibility: “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”Because plaintiff has not authenticated the report, it is inadmissible.

C. Hearsay and Party Admission

Plaintiff offers the report for the truth of the matter asserted, and would offer it for that purpose at trial. SeeFed.R.Evid. 801(c). In his motion in limine, plaintiff essentially concedes that the report is hearsay. See Lizotte’s Motion at 3. Plaintiff argues the report is a party admission under Fed.R.Evid. 801(d)(2), an exception to the hearsay rule. The Rimkus report, however, does not qualify as a party admission against Praxair under any of the five subsections of Fed.R.Evid. 801(d)(2).

Under Fed.R.Evid. 801(d)(2)(A), a party’s own statement, in either an individual or representative capacity, may be offered against that party as an admission. The Rimkus report was prepared for Travelers, Pacific’s insurance company at the time of the accident. The Rimkus Group never represented Praxair. The report cannot be construed as an admission by Praxair simply because Travelers now indemnifies both Pacific and Praxair.

Fed.R.Evid. 801(d)(2)(B) establishes that a third person’s out of court statement is a party admission if the party, by words or conduct, manifests his or her adoption of its truth. Plaintiff provides no authority or analysis to explain how FRE 801(d)(2)(B) applies against Praxair. Instead of adopting it, Praxair disputes the contents of the report. See Declaration of Michael Jaeger (Dkt.# 62) at ¶¶ 5, 6. Even if the Court acknowledges that Pacific or Travelers provided plaintiff with a copy of the report and, for argument’s sake, assumes that Pacific’s distribution constitutes an adoption of its truth, plaintiff still does demonstrate why this act establishes an admission against Praxair. See Declaration of Larry Lizotte (Dkt.# 25) at ¶ 3.

Third, under Fed.R.Evid. 801(d)(2)(C), a statement by a person authorized to make a statement may be a party admission. The proponent must offer evidence sufficient to support a finding of requisite authority by a preponderance of the evidence. SeeFed.R.Evid. 801(d)(2), Adv. Comm. Notes (1997). Plaintiff correctly states that expert testimony constitutes an authorized admission of a party, citing In re Hanford Nuclear Reservation Litigation, 534 F.3d 986, 1016 (9th Cir.2008) (upholding trial court’s denial of plaintiff’s motion to exclude expert testimony that she proffered at a previous trial). However, Hanford only addresses expert testimony, sworn at trial or a deposition. In its Hanford analysis, the Ninth Circuit cited Glendale Fed. Bank, FSB v. United States, 39 Fed. Cl. 422, 425 (1997), a federal claims court decision establishing that the start of trial represents the critical juncture in determining when an expert is authorized to make an admission for a party. If an expert does not testify at trial, then the court assumes the expert is not authorized to reflect the position of the party that retained him or her.Id. The Rimkus report is not testimony. The report’s authors did not testify at a deposition. Plaintiff provides no evidence that defendant Praxair intends to offer the Rimkus report or its authors at trial. Accordingly, under Hanford and Glendale, retention without testimony is not enough. The report is not admissible against Praxair as a party admission by someone authorized to make a statement.

Fed.R.Evid. 801(d)(2)(D) establishes that a statement by a party’s agent, concerning a matter within the scope of agency or employment, and made during the relationship may be offered against the party as a vicarious admission. The proponent of the evidence has the burden of proving the foundational agency requirement by a preponderance of the evidence. United States v. Chang, 207 F.3d 1169, 1177 (9th Cir.2000). Plaintiff provided no analysis to support a finding that the Rimkus Group acted as an agent or servant for Praxair as required under Fed.R.Evid. 801(d)(2)(D). Furthermore, the timing and preparation of the report and its disclosure do not support this assertion. Travelers was not Praxair’s agent at the time of the accident or when the report was prepared.

Finally, Fed.R.Evid. 801(d)(2)(E) establishes that a statement is not hearsay if offered against a party and if made by a conspirator of a party during the course and in furtherance of the conspiracy. The Court must make an initial determination that a conspiracy exists by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Plaintiff claims that Pacific, Praxair, and the report’s author, Dale Fridley, conspired to bury the report, and as proof states that a conspiracy is self-evident. This Court finds it is not. While a conspiracy can be inferred from conduct, this court is unwilling to infer Mr. Fridley’s intentional participation in a conspiracy. See Declaration of Dale Fridley (Dkt.# 25) at ¶ 4 (“Our involvement in this matter concluded back in 2006”). Even if the Court inferred a conspiracy, plaintiff has not shown that the report was made during the requisite time frame. The report, dated September 22, 2006, precedes the inception of the alleged conspiracy-a settlement agreement in August 2008. Plaintiff alleges that the purpose of the conspiracy is to bury the cause of the accident. Yet to constitute a party admission, the statement must be made in furtherance of the conspiracy. A report that analyzes the cause of the accident does not advance the conspiracy’s objective-it hinders it. For these reasons, the report is not admissible as a statement of a co-conspirator, and fails as a party admission under all five subsections of Fed.R.Evid. 801(d)(2). The report and the statements therein are hearsay and inadmissible. SeeFed.R.Evid. 801(c).

D. Judicial Estoppel

Plaintiff alleges that defendant Praxair is judicially estopped from arguing for the report’s exclusion because Pacific and Travelers relied on the report during the “Yakima action.” The doctrine of judicial estoppel remains unsettled. The majority of circuits recognizing the doctrine hold that it is inapplicable unless the inconsistent statement was actually adopted by the court in earlier litigation. See, e.g., Morris v. California, 966 F.2d 448, 453 (9th Cir.1991). The minority view, in contrast, holds that the doctrine applies even if the litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing “fast and loose” with the court. Id. (citations and quotations omitted). In either case, the purpose of the doctrine is to protect the integrity of the judicial process. The Ninth Circuit has not explicitly decided whether to follow the “majority” or “minority” view. However it has declined to apply judicial estoppel, without discussing the existence of the two approaches, because the court in the prior action had not adopted the inconsistent position. Masayesva for and on Behalf of Hopi Indian Tribe v. Hale, 118 F.3d 1371, 1382 (9th Cir.1997). In this case plaintiff fails under both approaches. Under the majority view, estoppel is improper because Pacific and Praxair settled their dispute, and plaintiff cites no examples of the court’s reliance. Under the minority view, estoppel is unwarranted because Praxair’s conduct cannot be deemed “fast and loose.” Praxair has consistently argued for the exclusion of the report and asserts it never intended to rely on the report in current or prior proceedings. Judicial estoppel analysis focuses on the inconsistency of the party’s position in litigation. While Pacific or Travelers may have changed its position, Praxair’s consistent opposition to the report in no way amounts to playing “fast and loose” with the court. The defendant is not estopped from arguing for the report’s exclusion.

Plaintiff refers simply to a previous “Yakima action.” The Court assumes plaintiff refers to Pacific’s suit against Praxair in the Eastern District of Washington, entitled Pacific CA Systems, Inc. v. Praxair, Inc., No. 07-3007 (E.D. Wash. filed Sept. 5, 2007).

Both parties present arguments as to the report’s work product status. It is unnecessary for the Court to address the work product claim because plaintiff’s failure to authenticate the report and its status as hearsay warrant the report’s exclusion.

Praxair also seeks an order precluding plaintiff from calling the report’s author to testify at trial. Plaintiff did not address that issue, apparently conceding that if the report is inadmissible, he may not call the report’s author to testify. Morever, the report’s author is a consulting expert and pursuant to Fed.R.Civ.P. 26(b)(3)(B) and 26(b)(4)(B), plaintiff may not call him to testify.

III. CONCLUSION

For all of the foregoing reasons, the Court DENIES plaintiff’s motion in limine (Dkt.# 55) and GRANTS defendant’s motion to strike (Dkt.# 51). Plaintiff may not introduce the Rimkus report at trial or call its author to testify at a deposition or trial.

The Court also notes that the findings and conclusions in this order, like all rulings in limine, are preliminary and can be revisited at trial based on the facts and evidence as they are actually presented. See, e.g., Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (explaining that a ruling in limine“is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). Subject to these principles, the Court issues this ruling for the guidance of the parties.

United States District Court, W.D. Washington,

at Seattle.

Larry LIZOTTE, Plaintiff,

v.

PRAXAIR, INC., Defendant/Third-Party Plaintiff,

v.

Pacific CA Systems, Inc., Third-Party Defendant.

No. C07-1868RSL.

March 6, 2009.

Walter H. Olsen, Jr., Olsen Law Firm, Kent, WA, J.D. Smith, Seattle, WA, for Plaintiff.

Michael Rosenberger, Gordon Tilden Thomas & Cordell LLP, David Lawrence Hennings, Mick Anthony Jaeger, Wilson Smith Cochran & Dickerson, Seattle, WA, for Defendant/Third-Party Plaintiff.

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING REQUEST FOR CONTINUANCE

ROBERT S. LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on a motion for partial summary judgment as to liability filed by defendant Praxair, Inc. (“Praxair” or “defendant”). Plaintiff was driving a truck for Pacific CA Systems, Inc. (“Pacific”), a trucking company that had a contract to haul a load for Praxair, when he was involved in a single vehicle rollover accident near Vernal, Utah in July 2006. Plaintiff contends that the accident was caused by a defect in the trailer, which was owned by Praxair. Defendant contends that the accident was caused by plaintiff’s excessive speed and overloading of the vehicle. Defendant also notes that it had the trailer completely refurbished approximately six months prior to the accident, so it was in “like new”  condition.

A. Kelly Dep. at p. 29.

For the reasons set forth below, the Court grants Praxair’s motion.

Because the Court finds that this matter can be decided on the parties’ memoranda, declarations, and exhibits, Praxair’s request for oral argument is denied.

II. DISCUSSION

A. Summary Judgment Standard.

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, the records show that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate, by affidavits, depositions, answers to interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

All reasonable inferences supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002).“[I]f a rational trier of fact might resolve the issues in favor of the nonmoving party, summary judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987).“The mere existence of a scintilla of evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995).“[S]ummary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” Id. at 1221.

B. Analysis.

1. Choice of Law.

As an initial matter, the Court must determine which state’s laws apply. Because this is a diversity action, the Court must “look to the laws of the forum state to resolve issues regarding conflict of laws.” Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Washington has adopted the “most significant relationship” test as set forth in the Restatement (Second) of Conflict of Laws § 145 (1971), to determine which state’s law applies to a particular issue. See, e.g., Rice v. Dow Chemical Co. ., 124 Wash.2d 205, 210, 875 P.2d 1213 (1994). The test states, “The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.” Id. at 213, 875 P.2d 1213 (quoting the Restatement (Second) of Conflict of Laws § 145(1)).“Contacts to be taken into account in applying the principles of § 6 … include (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, (d) and the place where the relationship, if any, between the parties is centered.”Restatement (Second) of Conflict of Laws § 145. Although there is a presumption that the law of the place where the injured occurred applies in personal injury cases, “this presumption is overcome if another state has a greater interest in the determination of a particular issue.” Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wash.App. 256, 261-62, 115 P.3d 1017 (2005). In this case, plaintiff resides in Washington, and Praxair is an out of state corporation. The injury occurred in Utah. Based on that fact and because none of the factors weighs heavily in favor of applying the law of another state, the Court finds that Utah law applies. Plaintiff has previously argued that the Court should apply Utah law.

The choice of law is largely irrelevant because the elements of negligence are the same under Utah and Washington law.

2. Negligence Analysis.

Pursuant to Utah law, plaintiff must establish the elements of duty, breach, causation, and damages. See, e.g., Rocky Mountain Thrift Stores v. Salt Lake City Corp., 887 P.2d 848, 851 (Utah 1994). The level of reasonable care is “ ‘that which ordinary, reasonable and prudent persons would have observed under such circumstances.’ “ See, e.g., Solorio v. United States, 228 F.Supp.2d 1280, 1283 (D.Utah 2002) (quoting Hadley v. Wood, 9 Utah 2d 36 (Utah 1959)). A defendant may be found negligent only if he acted or failed to act in such a way that it “should have foreseen was subjecting others to an unreasonable risk of harm.” Id.

Through much of this litigation, plaintiff has contended that Praxair was negligent because a leaf spring failed. Plaintiff has apparently abandoned that argument and his memorandum does not mention that theory. Even if plaintiff had not abandoned that theory, it would fail because he has not presented any admissible evidence to show that a leaf spring failed and caused the accident, or that Praxair was negligent with regard to maintaining the leaf springs. Moreover, Praxair had all of the leaf springs replaced with new springs approximately six months before the accident. Declaration of Terry Sears, (Dkt. # 35) (“Sears Decl.”) at ¶¶ 2-5. The parts were provided by a reputable company. Id. at ¶ 2.

Plaintiff now contends that the accident was caused by a rusty weld-seam on the hanger, which fractured and separated from the trailer before the rollover. Plaintiff contends that “[b]ased on the corrosion and length of the fractured weld seam on the hanger, Praxair either knew or should have known that the fractured hanger was not replaced as part of the re-furb, or was defectively replaced .”Plaintiff’s Opposition at p. 3. Although plaintiff cites to the declaration of Donald Land in support, Land does not state that Praxair should have known of any defects. Rather, he states that after the accident, he observed that a “fractured weld seam on the bottom of the axle pad was rusty and shorter than the weld seams on the bottom of the other axle pads to the trailer.”Declaration of Donald Land, (Dkt.# 64) at ¶ 7(i). Land opines that the accident was caused by the failed weld.Id. at ¶ 8. Assuming the truth of Land’s observation, his declaration does not state, as plaintiff alleges, that Praxair should have known that the hanger was faulty. Neither he nor any other witness has stated that any problems with the hangers were visible or should have been detected prior to the accident. In fact, during his deposition, Land explained that he did not know whether the weld broke during the accident or before it occurred. Land Dep. at p. 104.

A hanger is welded to the frame of a trailer. A. Kelly Dep. at p. 17.

Although Land has driven trucks for approximately thirty years, he has no specialized training in accident reconstruction, accident investigation, or metallurgy. Land Dep. at p. 106.

Plaintiff also argues that the fracture in the weld was foreseeable because once in the last ten years, the maintenance supervisor observed a cracked hanger. A. Kelly Dep. at p. 50;see also Hyatt Dep. at pp. 12-14 (explaining that he had seen two cracked hangers while with the company; both were repaired). Those isolated cracks, involving different trailers, do not show that this accident was foreseeable.

Furthermore, the trailer was recently refurbished then inspected several times. A Praxair subsidiary, Amko Services, Inc. (“Amko”), performed “a complete rehab” of the trailer approximately six months prior to the accident in January 2006. Sears Decl. at ¶ 2. Amko’s invoice showed that it replaced all four hangers. Id., Ex. 2; see also A. Kelly Dep. at pp. 48-49.Plaintiff speculates that the work was not actually performed or was performed improperly. That claim is unsupported. It is also undermined by the fact that after refurbishing the trailer, Amko completed a Department of Transportation (“DOT”) annual inspection of the vehicle, including the frame and suspension parts, checked the hangers for cracked, broken or missing parts, and certified that they were “OK.” Sears Decl., Ex. 3. After receiving the refurbished trailer, Praxair’s maintenance supervisor inspected the trailer, including the hangers and welds, to ensure that the trailer was “DOT safe to go down the road.”A. Kelly Dep. at pp. 33-35.A senior driver also test drove the trailer after the refurbishment to ensure safety. Id. at pp. 51-53.Furthermore, Praxair’s maintenance supervisor explained that drivers conduct a pre-trip inspection of the trailers. Id. at p. 53.A pre-trip inspection can detect cracks in the suspension system. Hyatt Dep. at p. 13.Plaintiff conducted the pre-trip investigation of the trailer in this case, and “said the trailer was in good condition when he left.”A. Kelly Dep. at p. 21.

Even if Amko’s work was defective, plaintiff has not shown that Praxair should have known that the hangers were faulty. See, e.g., Leininger v. Stearns-Roger Mfg. Co., 17 Utah 2d 37, 41, 404 P.2d 33 (1965) (upholding dismissal of negligence claim on summary judgment where “there was nothing to put the defendant contractor on inquiry or notice so as to impose upon it the duty of completely dismantling the fans and analyzing all of their components to ascertain if, perhaps, they harbored some remotely possible unsuitable component that rendered them unsafe for their intended use”).

Plaintiff has offered no evidence to show that Praxair should have done more to ensure that the trailer was safe. In light of the undisputed facts, plaintiff has not shown that the accident was foreseeable or that Praxair breached its duty.

3. Rule 56 Continuance to Conduct Discovery.

Plaintiff requests that Court grant him a continuance pursuant to Federal Rule of Civil Procedure 56(f) to conduct additional discovery. Specifically, plaintiff seeks to present the following additional information: (1) color photographs taken by Land of the accident scene; (2) excerpts from the deposition of Pacific’s President and Secretary/Treasurer which include any investigation of the speed of the truck at the time of the rollover; (3) a copy of a “3-ring binder which addresses the cause of the rollover, and may include a copy of the disputed Rimkus report;” and (4) a color photograph of the truck’s speedometer. Plaintiff has received items 1, 3, and 4, so his request for an extension to submit those items is denied.

Moreover, plaintiff has not identified how any of the materials will defeat the motion for summary judgment. See, e.g., Qualls v. Blue Cross of California, 22 F.3d 839, 844 (9th Cir.1994). To the extent that they address the excluded Rimkus report or the speed of the truck, they are irrelevant for purposes of this motion. Plaintiff has not explained how any of the information will show that the accident was foreseeable or that Praxair otherwise breached its duty to plaintiff. Accordingly, plaintiff’s Rule 56(f) request is denied.

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS Praxair’s motion for partial summary judgment (Dkt.# 49). Within ten days of the date of this order, the parties must file a joint status report setting forth what, if any, claims remain in this case.