E.D. Louisiana.
JONES MOTOR GROUP, INC., et al.
v.
Rossie P. HOTARD.
Civil Action No. 14–2739. | Signed Sept. 28, 2015.
Attorneys and Law Firms
Thear J. Lemoine, Brown Sims, PC, New Orleans, LA, Douglas B. Marcello, Marcello & Kivisto, LLC, Carlisle, PA, for Jones Motor Group, Inc., et al.
Daniel A. Meyer, Bruno & Bruno, New Orleans, LA, Michael J. Madere, Law Offices of Robert D. Ford, Metairie, LA, for Rossie P. Hotard.

ORDER
NANNETTE JOLIVETTE BROWN, District Judge.
*1 In this litigation, Plaintiffs and Counter–Defendants Jones Motor Group, Inc. and Genesis Motors, LLC (collectively “Plaintiffs”) allege that Defendant and Counter–Plaintiff Rossie P. Hotard (“Defendant”) negligently rear-ended the trailer of Plaintiffs’ tractor-trailer, causing significant damage.1 Defendant has filed a counterclaim against Plaintiffs, seeking personal injury and property damages.2 Defendant alleges that the collision was caused by the negligence of the driver of the tractor-trailer, Paul Ganucheau (“Ganucheau”), and his negligence is directly attributable to Plaintiffs.3 Pending before the Court is Defendant’s “Motion for Partial Summary Judgment as to Claims of ‘Lost Profits’ of Jones Motor Group, Inc.”4 Having reviewed the motion, the memorandum in support, the memorandum in opposition, the record, and the applicable law, the Court will deny the motion.

I. Background
A. Factual Background
In Plaintiffs’ complaint, they allege that, on or about July 14, 2014, Ganucheau was driving a 2014 Volvo tractor-trailer owned by Plaintiffs and traveling in the right lane, eastbound on Highway 90 in Terrebonne Parish, Louisiana.5 Defendant was driving eastbound on Highway 90, behind Ganucheau, in a 2009 Chevrolet Malibu.6 Plaintiffs allege that Defendant failed to brake or move into the left lane of traffic and rear-ended the trailer of Plaintiffs’ tractor-trailer.7 Plaintiffs allege that, as a result of the accident, they suffered property damage and loss of use of the tractor-trailer.8

In his counterclaim, Defendant alleges that Ganucheau, traveling at an unreasonably slow and unsafe rate of speed, entered the lane of travel occupied by Hotard without warning and Defendant was unable to avoid the merging tractor-trailer due to traffic conditions.9 Defendant alleges that he suffered personal injuries and property damage as a result of the accident.10

B. Procedural Background
Plaintiffs, alleging diversity jurisdiction, filed suit in this Court on December 3, 2014.11 In their complaint, Plaintiffs allege that, as a result of Defendant’s negligence, Defendant is liable for repair damages to their tractor-trailer in addition to loss of use damages.12 On March 16, 2015, Plaintiffs filed an amended complaint to allege the citizenship of the parties in order to address the Court’s concerns about its subject matter jurisdiction.13 On March 25, 2015, Defendant filed a counterclaim, alleging that Plaintiffs are liable for personal injury and property damages as a result of the negligence of Ganucheau, the driver of the tractor-trailer.14 Defendant filed the instant motion on August 19, 2015.15 Plaintiffs filed their opposition on September 8, 2015.16

II. Parties’ Arguments
A. Defendant’s Arguments in Support of His Motion for Partial Summary Judgment
Defendant moves for summary judgment on Plaintiffs’ claim for recovery of “lost profits.”17 Defendant contends that Plaintiffs have produced a declaration of the Vice President of Jones Motor Group stating that the trailer at issue in this case could be reasonably expected to generate a profit of $1,000 a day during the time the trailer was not useable.18 Citing Alexander v. Qwik Change Car Center,19 Defendant asserts that, under Louisiana law, a loss of use claim is valued at the amount required to rent a substitute vehicle, and that there is no case law to support a corporation’s recovery of “lost profits.”20 Defendant contends that, in Alexander, the Louisiana Supreme Court also stated that a loss of use award need not be restricted to rental costs and much discretion is given to the trial court in making such an award.21 Defendant asserts that, although courts may exercise their discretion to extend a loss of use award beyond the cost of renting a substitute vehicle, “such extension must be reasonable under the circumstances and there is no requirement that any court do so.”22 According to Defendant, although courts have awarded incidental damages in cases where there is an undue delay in the time to repair a vehicle, courts have not awarded lost profits with respect to loss of use claims similar to this case.23 Defendant asserts that Plaintiffs cannot identify any extenuating circumstances that would warrant an award beyond rental costs.24 In support, Defendant contends that liability is in dispute, Plaintiff Jones Motor Group is a well-capitalized corporation capable of paying for its own repairs, and Plaintiffs failed to rent a substitute vehicle.25

*2 Defendant also maintains that the evidence in this case indicates that Plaintiffs failed to mitigate their losses by choosing not to rent a substitute vehicle.26 In support, Defendant attaches a declaration from Daryn Spence, an employee at The Hanover Insurance Group.27 In the declaration, Spence attests that he spoke with Danny Love, the general manager at Kenworth of South Louisiana who was responsible for the repairs on Plaintiffs’ trailer, and learned from Love that Kenworth could have supplied a rental trailer that would be a suitable substitute for Plaintiffs’ damaged trailer.28

B. Plaintiffs’ Arguments in Opposition
In opposition, Plaintiffs contend that: (1) statements made in the Declaration of Daryn Spence29 are predicated upon inadmissible hearsay and therefore should not be considered on a motion for summary judgment; (2) Plaintiffs can recover loss of use/lost profit damages; and (3) the damaged trailer had been specially modified and therefore Plaintiffs could not easily rent a replacement.30

First, Plaintiffs contend that, in the Declaration of Daryn Spence, Spence recounts what he was told by another individual, Danny Love, and therefore the declaration contains inadmissible hearsay that may not be considered on a motion for summary judgment.31 Furthermore, Plaintiffs contend that, even if the statement is admissible, the declaration creates issues of fact as to whether a substitute trailer was available and at what cost.32

Second, Plaintiffs contend that an award of damages for loss of use of a vehicle is not limited to rental costs and trial courts retain discretion over such awards.33 Plaintiffs contend that Louisiana courts recognize a right to recover for loss of a vehicle even when a vehicle is totaled and even when a plaintiff does not rent a replacement.34 Plaintiffs aver that the accident denied Plaintiffs the ability to transport loads normally transported by this trailer, thereby denying them profits.35 In support of their argument that they may recover lost profits, Plaintiffs also cite to AT & T Corp. v. Columbia Gulf Transmission Co.,36 a Western District of Louisiana case that discusses the Louisiana Supreme Court decision, Borden, Inc. v. Howard Trucking Co., Inc.37 Plaintiffs assert that in Borden, Inc., the court denied a claim for lost profits suffered by plaintiff after a compressor at a methanol plant was damaged because there was no evidence of any lost sales.38 Plaintiffs contend that, finding that the plant ran continuously, the court calculated an award for the amount of methanol that would have been produced during the period the compressor was damaged.39

Third, Plaintiffs contend that it was not feasible to obtain a replacement trailer on a short-term basis.40 Plaintiffs assert that the trailer was a “specialized unit, specifically modified for the transportation of materials used in the oil field and dedicated for the use of this particular customer.”41 In addition, according to Plaintiffs, the failure to mitigate damages is an affirmative defense and Defendant has failed to meet his burden.42

III. Law and Analysis
A. Legal Standard on a Motion for Summary Judgment
*3 Summary judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”43 When assessing whether a dispute as to any material fact exists, the court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.”44 All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”45 If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,” then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.46 The nonmoving party may not rest upon the pleadings, but must identify specific facts in the record and articulate the precise manner in which that evidence establishes a genuine issue for trial.47

The party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.48 Thus, the nonmoving party should “identify specific evidence in the record, and articulate” precisely how that evidence supports his claims.49 To withstand a motion for summary judgment, a plaintiff must show that there is a genuine issue for trial by presenting evidence of specific facts.50 The nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by “unsubstantiated assertions,” or “by only a scintilla of evidence.”51 Rather, a factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence.52

B. Applying Louisiana Law
When a federal court interprets a state law, it must do so according to the principles of interpretation followed by that state’s highest court.53 In Louisiana, “courts must begin every legal analysis by examining primary sources of law: the State’s Constitution, codes, and statutes.”54 These authoritative or primary sources of law are to be “contrasted with persuasive or secondary sources of law, such as [Louisiana and other civil law] jurisprudence, doctrine, conventional usages, and equity, that may guide the court in reaching a decision in the absence of legislation and custom.”55 To make a so-called “Erie guess” on an issue of Louisiana law, the Court must “employ the appropriate Louisiana methodology” to decide the issue the way that it believes the Supreme Court of Louisiana would decide it.56

C. Analysis
*4 Defendant asserts that “[n]o case stands for the proposition that a corporation such as [Jones Motor Group] can recover ‘lost profits’ as claimed, especially where the evidence indicates that the company chose not to rent a substitute vehicle and failed to mitigate any such losses.”57 Defendant’s argument appears to be two-fold. First, Defendant implies that Plaintiffs categorically cannot recover loss of use damages resulting from lost profits. Second, it appears that Defendant contends that, in this case, where “the evidence indicates that [Plaintiffs] chose not to rent a substitute vehicle and failed to mitigate [their] losses,” Plaintiffs are unable to recover for lost profits.58 The Court will address these arguments in turn.

1. Lost Profits
Pursuant to Louisiana Civil Code Article 2315, “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Article 2324.1 states that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.”59

In support of its motion for summary judgment, Defendant cites the Louisiana Supreme Court case Alexander v. Qwik Change Car Center.60 In Alexander, the plaintiff had delivered his car to the defendant for repairs.61 While the car was at the defendant’s garage, the defendant began to use the car in its business.62 After the plaintiff filed a lawsuit against the defendant, the car disappeared from defendant’s possession.63 The trial court awarded the plaintiff $1,150 for the value of the car and $1,000 for loss of use.64 The Louisiana Supreme Court held that although the plaintiff had not rented a substitute vehicle, the award for loss of use was proper under Article 2315 of the Louisiana Civil Code, which provides for damages in tort cases.65 The court stated that although “[n]ormally, this Court has measured the damages for loss of use by the rental costs of a substitute vehicle … [t]he award, [ ], need not be restricted to rental.”66 The court held that “[m]uch discretion is vested in the trial court” and considering the inconvenience and mental anguish from the plaintiff’s loss of the use of his car, the trial judge had not abused his discretion in awarding the $1,000.67

Defendant does not contest that Plaintiffs are not limited to the costs of renting a substitute vehicle in loss of use awards. Rather, Defendant asserts that Louisiana courts generally do not award loss of use beyond rental costs “unless the facts dictated that incidental expenses, such as storage fees and inconvenience should be included.”68 Defendant asserts that “[c]ourts have not awarded ‘lost profits’ with respect to a[sic] loss of use claims similar to that advanced by [Jones Motor Group].”69 In opposition, Plaintiffs assert that Louisiana courts have recognized a right to recover loss of use damages even when a vehicle is totaled.70

*5 Since the Louisiana Supreme Court’s decision in Alexander, the Louisiana Third Circuit Court of Appeal has awarded damages for loss of profits in a case very similar to this case. In Meshell v. Insurance Company of North America,71 the plaintiff brought suit for negligence arising out of a collision between his dump truck and another vehicle.72 The plaintiff claimed that his truck was his sole means of livelihood, the loss of his truck’s use resulted in a loss of earnings from hauling sand and gravel, and he had been unable to find a suitable replacement for two months after the accident.73 The Third Circuit Court of Appeal found that the trial court had not erred in awarding the plaintiff loss of profits for sixty days and found that there was sufficient evidence in the record to support the trial court’s conclusion that the plaintiff often worked six days a week hauling gravel and therefore was entitled to an award on that basis.74

An award of loss of profits resulting from loss of use of a vehicle also appears to have been recoverable prior to Alexander. In Gore v. Miller,75 an owner of a truck used to haul logs sought loss of use damages equal to two months of lost profits after the truck was damaged in a collision.76 After reviewing the evidence presented regarding the computation of lost profits, the Louisiana Third Circuit Court of Appeal upheld the award.77 In Tornabene v. Rau,78 a taxicab driver sued for damages resulting from a collision caused by the negligence of another driver.79 The Fourth Circuit Court of Appeal upheld the award for repair costs, lost earnings while the cab was being repaired, as well as lost rental profits because at night the plaintiff rented his vehicle to another driver.80

In their opposition to the motion for summary judgment, Plaintiffs cite Nolan v. Liuzza81 for the proposition that an award for loss of use is not restricted to rental costs.82 In that case, the court noted that although the measure of recovery “has often been the cost of substitute transportation, such as car rental,” in cases where the plaintiff has not rented a car for the entire period that he has not been able to use the vehicle, an award of rental costs may not fully compensate the plaintiff for loss of use of the vehicle.83 Therefore, the court concluded that it had discretion to take into account other factors in an award for loss of use, including the fact that an owner may be making car insurance payments during the time they were not able to use their vehicle.84 In addition, Plaintiffs cite to Neloms v. Empire & Marine Insurance Co.,85 where the court affirmed the trial court’s award of loss of use damages, despite the fact that plaintiff had not rented a substitute vehicle because she was too nervous to drive.86 The court held that “[t]he fact remain[ed] that [the plaintiff] was inconvenienced and deprived of the use of her car and had to be transported thereafter in her husband’s car.”87 These cases further demonstrate the discretion of the trial court in determining a proper award for loss of use.

*6 Plaintiffs also cite AT & T Corp. v. Columbia Gulf Transmission Co., a Western District of Louisiana case.88 There, the Court held that the plaintiff could not recover for loss of use damages arising out of damage to its underground telecommunications cable because it did not suffer “an actual identifiable, consequential, and measurable loss.”89 However, the court found that it “may well be able to adduce evidence to support some form of loss of use or cost of mitigation.”90 The court, citing Alexander, also found that although the plaintiff was free to argue to the trier of fact that its loss of use damages should be the cost of renting capacity from another telecommunications carrier, rental costs are not the only way to calculate such damages.91

In its reasoning, the court in AT & T Corp. relied upon the Louisiana Supreme Court decision in Borden, Inc. v. Howard Trucking Co.92 In Borden, Inc., a truck driver, who was transporting a compressor for the plaintiff’s methanol plant, negligently caused an accident and the compressor was damaged.93 The court upheld the lower court’s findings that the action lay in tort and the plaintiff was entitled to recover all foreseeable damages flowing from the accident.94 The court noted that “[d]amages in the nature of lost profits resulting from an offense or quasi-offense must be proved with reasonable certainty.”95 The court found that, although the plaintiff had been damaged by the delay in its ability to restart its methanol plant due to the damage to the compressor, plaintiff had not met its burden to prove damages for lost profits to a reasonable certainty.96 Although these cases support the proposition that corporations generally may recover lost profits in tort cases, they don’t address Defendant’s argument that loss of use in the case of a vehicle is limited to rental costs.

Defendant has not directed the Court to any cases where a court has held that lost profits are not recoverable by corporations. Therefore, in light of the cases discussed above, and the Louisiana Supreme Court’s holding that “[m]uch discretion is vested in the trial court” in awarding loss of use damages, the Court finds that movant has not shown that no material facts are in dispute and that lost profits are an excluded category of damages as a matter of law.

2. Failure to Mitigate
Defendant also asserts that it is entitled to summary judgment on Plaintiffs’ claim for lost profits because Plaintiffs “chose not to rent a substitute vehicle and failed to mitigate any such losses.”97 Citing the Louisiana First Circuit Court of Appeal in Lemoine v. Mike Munna, L.L.C.,98 Plaintiffs contend that the failure to mitigate damages is an affirmative defense and therefore the burden of proof is on Defendant.99 According to Plaintiffs, Defendant has failed to meet his burden, and “the record facts clearly substantiate Plaintiffs’ inability to simply rent a substitute trailer.”100

*7 Under Louisiana law, “an injured plaintiff has a duty to take reasonable steps to mitigate damages.”101 Although many of the Louisiana Courts of Appeal have held that the defendant has the burden to prove a failure to mitigate damages,102 the Louisiana Supreme Court has not yet ruled on the issue.

In support of its motion for summary judgment, Defendant attaches a declaration from Daryn Spence, an employee at The Hanover Insurance Group.103 In the declaration, Spence attests that he spoke with Danny Love, the general manager at Kenworth of South Louisiana who was responsible for the repairs on Plaintiffs’ trailer, and learned that Kenworth could have supplied a rental trailer that would work as a suitable substitute for Plaintiffs’ damaged trailer.104 Plaintiffs contend that because Spence recounts what he was told by another individual, the statement is inadmissible hearsay that may not be considered on a motion for summary judgment.105 In support, Plaintiffs cite this Court’s decision in Brown v. Home Depot U.S.A., Inc.106 In Brown, this Court held that the plaintiff had not met his burden of demonstrating that the proffered affidavits were admissible pursuant to Federal Rule of Evidence 801(d)(2)(D), which provides that statements made by a party’s agent or employee on a matter within the scope of the relationship while such a relationship existed are not hearsay.107 Defendant has not responded to Plaintiff’s argument that the statement is inadmissible hearsay.

Under Federal Rule of Civil Procedure 56(c)(4), “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”108 According to the commentary for the 2010 Amendments to Rule 56(c), the burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.

Plaintiff submits declarations from both Daryn Spence and Danny Love.109 In Daryn Spence’s affidavit, he attests that “[b]ased upon my conversations with Danny Love at Kenworth of South Louisiana, the general manager responsible for the repairs on this trailer, it is apparent that [Kenworth’s] rental trailers would work as a suitable substitute for the damaged trailer [Kenworth] repaired .”110 This statement is therefore not based upon the personal knowledge of Spence. In Love’s declaration, Love discusses how much time was spent repairing Plaintiffs’ trailer and the costs, but does not discuss the availability of a suitable rental trailer.111 Defendant has not responded to the argument that this statement is inadmissible. Accordingly, Defendant has not met his burden “to show that the material is admissible as presented or to explain the admissible form that is anticipated.”112 Therefore, the Court will not consider the portion of Spence’s declaration related to his conversation with Love in the motion for summary judgment.

*8 In Spence’s declaration, Spence also attests that, in his opinion, having reviewed the documents showing the size and type of the trailer involved and based on his experience, a rental for a trailer of similar type and use would cost approximately $45 per day .113 Plaintiffs do not make any objection regarding this statement’s admissibility. Plaintiffs have, however, submitted an affidavit of Patrick Graben, Division Vice President of Plaintiff Jones Motor Group, in which Graben attests that renting a trailer was not feasible.114 Graben attests that the damaged trailer was a “specialized unit, specifically modified for the transportation of materials used in the oil field and dedicated for the use for this particular customer.”115 Accordingly, considering the dispute in the record regarding whether Plaintiffs could have mitigated their damages by renting a trailer for $45 per day, the Court finds that there is a genuine issue of material fact regarding Plaintiffs’ mitigation of their damages. Therefore, the Court denies Defendant’s motion for summary judgment on this issue as well.

IV. Conclusion
Accordingly,

IT IS HEREBY ORDERED that Defendant’s “Motion for Partial Summary Judgment as to Claims of ‘Lost Profits’ of Jones Motor Group, Inc.”116 is DENIED.

All Citations
— F.Supp.3d —-, 2015 WL 5725156

Footnotes
1
Rec. Doc. 1.
2
Rec. Doc. 18.
3
Id.
4
Rec. Doc. 33.
5
Rec. Doc. 1 at p. 2.
6
Id.
7
Id.
8
Rec. Doc. 1 at p. 4.
9
Rec. Doc. 18 at p. 2.
10
Id. at p. 3.
11
Rec. Doc. 1.
12
Id.
13
Rec. Doc. 17.
14
Rec. Doc. 18.
15
Rec. Doc. 33.
16
Red. Doc. 37.
17
Rec. Doc. 33. at p. 1.
18
Id.
19
352 So.2d 188 (La.1977).
20
Rec. Doc. 33 at p. 1.
21
Rec. Doc. 33–1 at p. 3.
22
Id.
23
Id.
24
Id. at p. 4.
25
Id.
26
Rec. Doc. 33 at p. 1.
27
Rec. Doc. 33–6.
28
Id.
29
Rec. Doc. 33–6.
30
Rec. Doc. 37 at p. 1.
31
Id. at p. 4 (citing Brown v. Home Depot U.S.A., Inc., No. 14–1470, 2015 WL 2040112, at *23–24 (E.D.La. Apr.30, 2015) (Brown, J.)).
32
Id. at p. 5.
33
Id. at p. 6 (citing Alexander, 352 So.2d at 190).
34
Id. (citing Neloms v. Empire Fire & Marine Ins., 37,786–CA (La.10/16/03), 859 So.2d 225).
35
Id. at p. 8.
36
No. 07–1544, 2008 WL 458439 (W.D.La. Sept. 15, 2008).
37
454 So.2d 1081 (La.1983).
38
Rec. Doc. 37 at p. 8.
39
Id. at pp. 8–9.
40
Id.
41
Id. at p. 7.
42
Id. at p. 9.
43
FED.R.CIV.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).
44
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir.2008).
45
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985); Little, 37 F.3d at 1075.
46
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
47
See, e.g., Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998).
48
Celotex, 477 U.S. at 323.
49
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994).
50
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir.2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1996)).
51
Little, 37 F.3d at 1075.
52
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987); FED.R.CIV.P. 56(C)(2).
53
Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir.2010); Gen. Elec. Capital Corp. v. Se. Health Care, Inc., 950 F.2d 944, 950 (5th Cir.1991).
54
Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 547 (5th Cir.2004).
55
Id. (quoting LA. CIV.CODE. art. 1).
56
Id. (citation omitted).
57
Rec. Doc. 33 at p. 1.
58
Id.
59
LA. CIVIL CODE art. 2324.1.
60
Rec. Doc. 33–1 at p. 3.
61
352 So.2d 188, 189 (La.1977).
62
Id.
63
Id.
64
Id.
65
Id.
66
Id. at 190 (citations omitted).
67
Id.
68
Id.
69
Rec. Doc. 33–1 at p. 3 (emphasis in original).
70
Rec. Doc. 37 at p. 6 (citing Neloms, No. 37,786–CA (La.App. 2 Cir. 10/16/03), 859 So.2d 225).
71
416 So.2d 1383 (La.App. 3 Cir.1982).
72
Id. at 1388.
73
Id. at 1387.
74
Id. at 1388.
75
311 So.2d 894 (La.App. 3 Cir.1975).
76
Id. at 898.
77
Id.
78
34 So.2d 655 (La.App.Orleans 1948)
79
Id. at 655–56.
80
Id. at 657.
81
301 So.2d 892 (La.App. 4 Cir.1974).
82
Rec. Doc. 37 at p. 6.
83
Nolan, 301 So.2d at 894.
84
Id.
85
37,786–CA (La.10/16/03), 859 So.2d 225.
86
Id. at 233.
87
Id. (bold and italics in original).
88
Rec. Doc. 37 at p. 8.
89
AT & T Corp., No. 07–1544, 2008 WL 4585439, at *4 (W.D.La. Sept.15, 2008).
90
Id.
91
Id. at *5.
92
Id. at *4.
93
454 So.2d 1081, 1082–83 (La.1983)
94
Id. at 1083.
95
Id. at 1092.
96
Id. at 1092–93.
97
Rec. Doc. 33 at p. 1.
98
No.2013–2187 (La.App. 1 Cir. 6/6/14), 148 So.3d 205.
99
Rec. Doc. 37 at p. 9.
100
Id.
101
Aisole v. Dean, 574 So.2d 1248 (La.1991) (citations omitted).
102
See Lemoine v. Mike Munna, L.L.C., No.2013–2187 (La.App. 1 Cir. 6/6/14), 148 So.3d 205; Sanchez v. Dubuc, No. 12–526 (La.App. 5 Cir. 2/21/13), 110 So.2d 1140, 1145; Leaman v. Cont’l Cas. Co., No.2000–0292 (La.App. 4 Cir. 9/26/01), 798 So.2d 285, 293; Hunt v. Long, No. 33,395–CA (La.App. 2 Cir. 6/21/00), 763 So.2d 811, 816.
103
Rec. Doc. 33–6.
104
Id.
105
Rec. Doc. 37 at p. 4.
106
2015 WL 2040112 (E.D.La. Apr.30, 2015) (Brown, J.).
107
2015 WL 2040112 at *8–10.
108
FED.R.CIV.P. 56(c)(4).
109
Rec. Docs. 33–5; 33–6.
110
Rec. Doc. 33–6 at p. 2.
111
Rec. Doc. 33–5.
112
FED.R.CIV.P. 56(c)(4) advisory committee’s notes to 2010 amendment.
113
Rec. Doc. 33–6.
114
Rec. Doc. 37–2.
115
Id.
116
Rec. Doc. 33.

United States District Court,
N.D. Illinois, Eastern Division.
Patricia L. Lundborg, Plaintiff,
v.
Edward Weiss and K & B Transportation, Inc., Defendants.
No. 13 CV 955 | Signed September 29, 2015

MEMORANDUM OPINION AND ORDER
MARY M. ROWLAND, United States Magistrate Judge
*1 Plaintiff Patricia Lundborg brings this personal injury action against Defendants Edward Weiss and K & B Transportation, Inc. alleging that Weiss was negligent in operating a commercial motor vehicle. (Dkt.1, ¶ 5). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.1 Before the Court are the parties’ contested motions in limine.

I. BACKGROUND
On September 21, 2012 at 1:00 a.m., Patricia Lundborg was driving a 1999 Red Jeep Cherokee in the eastbound lanes of I–80 near Morris, Illinois. (Dkt. 84 at 2). Defendant Edward Weiss was operating a tractor trailer as part of his employment and struck the rear of Lundborg’s Jeep. Plaintiff filed a complaint against Edward Weiss and his employer, K & B Transportation, alleging that they violated the Federal Motor Carrier Safety Administration, 49 C.F.R. § 392.3 (Driving of Commercial Motor Vehicles—Ill or fatigued operator) and that Weiss was negligent by either being inattentive or falling asleep just before the collision. Defendants claim that Plaintiff was comparatively negligent by operating her Jeep at a speed below the minimum highway speed limit. Plaintiff’s medical expenses total $155,362.63. On February 6, 2013, Plaintiff filed this action in federal court based on diversity jurisdiction. Fact discovery closed on March 26, 2015, and this case is set for trial on November 2, 2015.

II. DISCUSSION
A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also American Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1463 (7th Cir.1996) ( “A motion in limine is a useful device for trying to exclude evidence before trial in order to prevent the trial from being interrupted by wrangles over admissibility or the jury from getting a whiff of prejudicial evidence that may in fact be inadmissible.”). The movant has the burden of demonstrating that the evidence is “clearly inadmissible for any purpose.” Plair v. E.J. Brach & Sons, Inc., 864 F.Supp. 67, 69 (N.D.Ill.1994). District courts have broad discretion in ruling on motions in limine, but evidence should not be excluded before trial unless it is clearly inadmissible on all potential grounds. Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 557 (N.D.Ill.2008). Otherwise, rulings should be deferred until trial so questions of foundation, competency, relevancy, and potential prejudice may be resolved in the proper context. Id.

A court’s decision to deny a motion in limine does not mean that all evidence contemplated by the motion will be admitted at trial. “Rather, denial means the court cannot determine whether the evidence should be excluded outside the trial context.” McClain v. Anchor Packing Co., 1996 WL 164385, at *2 (N.D.Ill.1996). Accordingly, “[t]he ruling is subject to change when the case unfolds … 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.” Luce, 469 U.S. at 4142; Kiswani, 247 F.R.D. at 557 (“Trial judges may alter prior in limine rulings, within the bounds of sound judicial discretion.”) (internal citation and quotation marks omitted).

A. Motions in Limine Related to Plaintiff’s Wage Loss Claim
*2 Defendants’ motion in limine no. 28 moves to bar Plaintiff from presenting evidence of a wage loss claim. Defendants assert that throughout discovery, Plaintiff has failed to provide information on income, including tax returns, or information to support lost wages. On May 6, 2013, Plaintiff submitted incomplete responses to Defendants’ requests for production of documents and interrogatories. In Plaintiff’s response to Defendants’ production requests for income tax returns and lost wages, Plaintiff responded that she requested the tax returns and they would be available upon receipt. (Dkt. 90–2 at 3). With respect to the lost wages, Plaintiff indicated she would have the information available at her deposition. (Dkt. 90–3 at 3). Plaintiff also indicated that she was in the process of obtaining additional medical bills and calculating lost wages. (Dkt. 90–3 at 4). Under Rule 26, parties are required to supplement discovery disclosures. Fed.R.Civ.P. 26(e). According to Defendants, Plaintiff has not provided any information on this matter. Defendants now move to bar Plaintiff from presenting any evidence pertaining to or supporting a wage loss claim at trial. Plaintiff did not respond to this motion in limine and has waived any objection. Graves v. Theil, No. 01 C 7714, 2002 WL 31455973, at *1 (N.D.Ill. Oct. 31, 2002) (“When a party does not respond to a motion, the issue is treated as conceded unless there is good reason not to do so.”).

Because Plaintiff has failed to respond to discovery related to the wage loss claim, and now has failed to object to Defendants’ motion to bar evidence in support of a wage loss claim, Defendants’ motion in limine no. 28 is granted. Plaintiff is barred from presenting testimony or any other evidence in support of a wage loss claim. Plaintiff’s motions in limine nos. 21 and 24 are granted.2 Defendants will not be presenting evidence related to Plaintiff’s failure to mitigate damages or referencing her monthly income.

B. Plaintiff’s Motions in Limine
No. 1: Plaintiff asks the Court to bar all witnesses from the courtroom before their testimony has been given and bar defense witnesses and defense counsel from discussing any trial testimony with any witness who is not a party. Defendants do not object to non-expert witnesses being barred from the courtroom before their testimony; however, Defendants object to expert witnesses being barred. Defendants cite Morvant v. Construction Aggregates Corp., 570 F.2d 626, 629 (6th Cir.1978), that found a fair showing should be made “that the expert witness is in fact required for the management of the case, and this is made clear to the trial court”. Here, Defendants do not specify which expert witnesses should remain in the courtroom or why their remaining in the courtroom is necessary for the management of this very straightforward case. Without any explanation by defendants, the Court finds that unspecified defense expert witness(es) should not be exempt from Rule 615’s presumption of sequestration. See Fed.R.Evid. 615. Plaintiff’s motion in limine no. 1 is granted. Nonparty witnesses, including expert witnesses, will be excluded from the courtroom until they are called to testify.

No. 15: Plaintiff seeks to bar argument that Defendants are “shocked” by Plain-tiff’s request for damages. Defendants argue they should be allowed to comment on damages at trial, and Plaintiff’s motion is improper. The Court grants Plaintiff’s motion over Defendants’ objections, but limits this ruling to defense counsel giving his opinion describing the damages as “shocking.”

No. 16: Plaintiff seeks to use exhibits, including enlarged jury instructions, during opening and closing arguments. Defendants object on the basis that Plaintiff has not specified what exhibits she intends to use during opening and closing arguments. Plaintiff’s motion in limine no. 16 is granted. Seven days prior to trial the parties shall exchange a list of the demonstrative exhibits.

No. 18: Plaintiff moves to bar any reference to Plaintiff’s motives in filing this case. Defendants object noting that there is evidence Plaintiff is malingering her cognitive symptoms, which arguably goes to her motivations for this lawsuit. “Evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Betts v. City of Chicago, 784 F.Supp.2d 1020, 1023 (N.D.Ill.2001). The Court cannot conclude at this stage that any comment on Plaintiff’s motivation for filing the case would be improper. Plaintiff’s motion in limine no. 18 is denied without prejudice.

*3 No. 23: Plaintiff moves to bar reference that she was divorced or previously married. Defendants object, stating one of the elements of Plaintiff’s damage claim is the loss of normal life and her general background as a baseline for “normal life” prior to the accident is at issue. Defendants argue that they should be permitted to explore Plaintiff’s background, including prior marital status. The Court is highly skeptical that Plaintiff’s marital status has any relevance here, but reserves ruling on this motion until trial.

No. 27: Plaintiff moves to bar Defendant Weiss from testifying as to whether the taillights on the red Jeep SUV were lit or not. Defendants object stating Weiss’s testimony on the taillights is relevant. Weiss testified that he did not believe Plaintiff’s taillights were lit immediately prior to and at the time of the accident. (Dkt. 92–1, Dep. at 88–89). Weiss is free to offer this testimony and will be subject to cross examination. Plaintiff’s motion in limine no. 27 is denied.

No. 28: Plaintiff moves to bar testimony or argument that Plaintiff’s red Jeep SUV was missing its brake lights before impact. Plaintiff argues there is no foundation because no witness testified to this. Defendants object and argue that a post-car-inspection took place. David Stobbe, who is listed in the final pretrial order as a witness, conducted a post-incident inspection and found both of Plaintiff’s rear-facing brake and turn signal lights missing. See Report of David Stobbe (Dkt. 92–2 at 15, 18). This post-accident report indicates Mr. Strobbe’s opinion that Plaintiff’s brake lights were not lit at the time of the accident. Mr. Stobbe is free to offer this evidence, subject to cross-examination. Plaintiff’s motion in limine no. 28 is denied.

C. Defendants’ Motions in Limine
No. 20: Defendants move to bar Plaintiff from arguing Defendants have a higher duty of care because of their involvement in the trucking industry. Defendants argue that every driver in Illinois owes the same duty of care to exercise due care. See 625 Ill. Comp. Stat. Ann. 5/11–1003.1 (“every driver of a vehicle shall exercise due care”). Defendants’ motion in limine no. 20 is granted. Testimony about a separate duty of care would only serve to confuse the jury about the legal standard applicable to the case.

No. 23: Defendants move to prevent Plaintiff from presenting Bridgett Boykins as a witness. Boykins was driving westbound on Interstate 80 at the time of the incident. She did not see the collision, but she testified she believes Mr. Weiss had fallen asleep. Defendants argue that this statement is based on speculations since Boykins has no independent knowledge. Additionally, Defendants assert that her testimony that the truck was traveling “70 to 80 miles an hour” is not factually accurate and is highly likely to confuse the jury. The Court denies Defendants’ motion in limine no. 23 to bar Ms. Boykins. She may testify to her personal observations and knowledge of the accident. Objections to her attempting to testify to facts outside of her knowledge or to speculation will be addressed during the trial.

No. 24: Defendants move to bar evidence of warnings, citations, or findings of Federal Motor Safety Carrier Regulation violations Weiss was issued after the accident from any entity. Specifically, following the incident, State Trooper Jeffrey Aron issued a warning to Weiss for violating 49 C.F.R. § 392.3. Later the Illinois Department of Transportation (IDOT) issued a violation to K & B Transportation based on § 392.3. Plaintiff argues that Weiss made admissions that he had fallen asleep to a different State Trooper, Trooper Jennifer Kirincich, and “what the defense really wants” is to bar these admissions that serve as the basis for the § 392.3 warning and citation.

*4 Motion in limine no. 24 requests the Court to bar the fact of the warning and the finding of a violation. Defendants’ motion is granted as to State Trooper Aron’s warning and IDOT’s finding of violation. That evidence is not admissible. The Court is not ruling on testimony that State Trooper Kirincich may give at trial.

No. 25: Defendants move to bar evidence pertaining to K & B Transportation’s disciplinary measures or Weiss’s employment after the incident. Defendants assert that any discipline imposed on Weiss is inadmissible as subsequent remedial measures pursuant to Fed.R.Evid. 407, and any evidence of Weiss’s current occupation or the fact that he has not worked as a truck driver since the date of the accident is irrelevant and highly prejudicial. Plaintiff argues that the fact that Weiss was removed as a truck driver pending the lawsuit is not a “disciplinary measure” and that there is nothing prejudicial about asking Weiss about his present employment. The Court finds this information prejudicial. Evidence regarding measures taken by K & B Transportation after the incident, as well as Weiss’s subsequent employment, is barred. Defendants’ motion in limine no. 25 is granted.

No. 27: Defendants move to bar Trooper Kirincich’s September 22, 2012 letter to Plaintiff. Kirincich drafted a letter to Plaintiff stating (1) Defendants’ insurance in-formation,3 (2) that Mr. Weiss was the “at fault driver,” and (3) that “he did admit he may have dozed off”, and (4) that he asked Kirincich to send his regrets and apologies. Defendants argue the evidence is unfairly prejudicial and cumulative because Kirincich is expected to testify at trial. Plaintiff does not object to redacting the information relating to insurance. Plaintiff objects to barring the letter, arguing that Weiss’ statement that he “may have dozed off” is an admission against interest by a party opponent and relevant and therefore admissible. See Federal Rule of Evidence 801(d)(2)(d).

The Court agrees that Weiss’ statement that he may have dozed off is an admission against interest and, therefore admissible through Trooper Kirincich’s testimony. Further, Trooper Kirincich’s memory could be refreshed with the letter if that were necessary. But the document itself, a series of out-of-court statements attempting to be introduced for the truth of matters asserted, is classic hearsay that does not appear to fall within an exception to the hearsay rule. The parties have not addressed the hearsay nature of the document itself. If these statements were written on a police report, the document would be admissible under the public records exception. See Federal Rule of Evidence 803(8). Cf., Jordan v. Binns, 712 F.3d 1123, 1134 (7th Cir.2013) (finding district court did not abuse its discretion in admitting a crash report as public record and admitting the portions of the report recording party admissions). Defendants’ motion in limine no. 27 is granted.

No. 29: Defendants move to bar medical bills, documents, and evidence pertaining to economic damages incurred by Plaintiff after May 14, 2013. Plaintiff did not disclose any treatment after May 14, 2013 during discovery. In Plaintiff’s discovery responses dated May 6, 2013, she indicated that “investigation continues” and “Plaintiff’s attorney is in the process of obtaining additional medical bills and calculating lost wages.” (Dkt. 89 at 2). Nor has she supplemented her Rule 26 disclosures to provide otherwise.4 Plaintiff did not respond to Defendants’ motion in limine on this issue. Defendants’ motion in limine no. 29 is granted.

*5 No. 30: In Defendants’ motion in limine no. 30, Defendants move to bar Plain-tiff’s expert, Lew Grill, a trucking expert, from testifying that (1) Mr. Weiss “operated his truck with an extreme violation to the standard of care” (Dkt. 91–4 at 13); (2) the Illinois Department of Transportation found that Weiss violated 49 C.F.R. § 392.3; (3) K & B failed to terminate Weiss after the incident; and (4) drivers have a “higher degree of safe driving” and “greater driver performance duties.” (Dkt. 91 at 5–6). For reasons stated previously, the motion is granted as to this proposed testimony. Mr. Grill cannot testify that Defendants failed to exercise due care, but he can explain the procedures a commercial truck driver should follow. Good Shepherd Manor Found. v. City of Momence, 323 F.3d 557, 564 (7th Cir.2003)(Experts may not testify “as to legal conclusions that will determine the outcome of the case.”); Passmore v. Barrett, No. 2:13–CV–290, 2015 WL 2412709, at *6–7 (N.D.Ind. May 21, 2015)(expert could not testify that driver failed to exercise ordinary care under Indiana law, but he can explain the procedures a commercial truck driver should follow). Mr. Grill may discuss the requirements and procedures of a commercial truck driver, as long as his opinions do not improperly instruct the jury on legal conclusions or the legal standard under Illinois law.

Additionally, Mr. Grill may not discuss any disciplinary measures imposed on Mr. Weiss by K & B Transportation following the incident or any evidence related to the Illinois Department of Transportation’s findings the Mr. Weiss violated 49 C.F.R. § 392.3. (See Defendants’ motions in limine nos. 24 and 25).

Defendants’ motion in limine no. 30 also moves to bar two of Plaintiff’s three experts Lew Grill, Jeffrey Muttart, Ph.D., and Stefanos Kales, M.D., because their testimony is cumulative. Plaintiff asserts that her experts come from different fields of expertise and will testify from different viewpoints: Dr. Kales, a sleep expert, will testify that Mr. Weiss experienced micro sleep shortly before the collision; Dr. Mut-tart will testify on how far back Mr. Weiss could have seen Plaintiff’s Jeep; and Mr. Grill will testify to industry standards for tractor trailers like the one the defendant was driving. Because each witness is offered to provide testimony on a different subject, Defendants’ motion to bar Plaintiff’s experts on the basis that their testimony is cumulative is denied. However, Dr. Muttart and Mr. Grill are not permitted to opine that Weiss likely fell asleep prior to the accident as they have offered no basis to be able to opine on such a matter. Further, Plaintiff is cautioned that Dr. Muttart and Mr. Grill are not to offer cumulative testimony about the trucking industry despite the overlap in their reports.

III. CONCLUSION
Plaintiff’s motions in limine nos. 1, 15, 16, 21 and 24 are granted; no. 18 is denied without prejudice; no. 23 is taken under advisement; and nos. 27 and 28 are denied. Defendants’ motions in limine nos. 20, 24, 25, 27, 28 and 29 are granted; no. 23 is denied; and no. 30 is granted in part and denied in part.

All Citations
Slip Copy, 2015 WL 5722585

Footnotes
1
K & B Transportation, Inc. is an Iowa corporation with its principal place of business in Nebraska and Edward Weiss is a Missouri citizen. Patricia Lundborg is an Illinois citizen. The complaint alleges damages in excess of $75,000. (Dkt.1).
2
Plaintiff’s motion in limine no. 21 seeks to bar testimony that Plaintiff failed to mitigate her damages. Plaintiff’s motion in limine no. 24 seeks to bar reference to her monthly income.
3
Plaintiff does not oppose redacting the insurance information.
4
Defendants improperly rely on Plaintiff’s settlement submission in support of this motion in limine. See Fed.R.Evid. 408.