2018 WL 2017567

United States District Court, E.D. Louisiana.
TONJA WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, NOAH JACKSON
v.
NATIONAL INTERSTATE INSURANCE CO., ET AL.
CIVIL ACTION NO. 16-16214
|
05/01/2018
ELDON E. FALLON, United States District Judge

SECTION L (1)
ORDER AND REASONS
*1 Following a five-day jury trial, Plaintiff has timely filed the instant motion for a new trial pursuant to Federal Rule of Civil Procedure 59. Rec. Doc. 169. Defendants oppose the motion. Rec. Doc. 174. The Court held oral argument on this matter on April 25, 2018.

Separately, Defendant Allstate Property and Casualty Insurance Co. has filed a motion to alter or amend the judgment. Rec. Doc. 171. No opposition has been filed regarding this motion.

Having considered the parties’ arguments, submissions, and applicable law, the Court now issues this Order and Reasons.

I. BACKGROUND
A. Factual History
This case arose out of an alleged collision between two motor vehicles. On September 9, 2015, Plaintiff Tonja Wright was operating her 2011 Ford Escape in Tangipahoa Parish, Louisiana, when she approached a truck that had stopped near a stop sign. Plaintiff claimed that instead of moving forward, the truck backed into her vehicle, pushing her vehicle several feet back. Ms. Wright’s minor son, Noah Jackson, was also in her vehicle at that time. Plaintiff asserted that the collision occurred because of the negligence of Defendant Terry Poole, the truck driver. She brought this lawsuit, on behalf of herself and her son, to recover the monetary damages resulting from this incident.

In response, Defendants claimed that the accident did not happen. Defendants argued that if the alleged accident did happen, it was caused by the actions of Ms. Wright. Furthermore, Defendants averred that even if there was an accident, Ms. Wright’s injuries did not result from the alleged accident on September 9, 2015. Defendants asserted that a separate intervening and superseding event occurred that caused Ms. Wright’s injuries, and that event is unrelated to Defendants in this case. Therefore, Defendants claimed they are not liable for Plaintiff’s damages. The parties’ conflicting positions created a question of fact for a jury to determine.

B. Trial and Jury Verdict
Trial for this case commenced on March 5, 2018. As part of Plaintiff’s case-in-chief, she called Dr. Eric Lonseth, an expert in the field of pain management; Dr. Thad Broussard, an expert in the field of orthopedic surgery; herself; Lacy Sapp, an expert in the field of rehabilitation, vocational counseling and life care planning; Ralph Litolff, an expert economist; and Dr. Samer Shamieh, an expert in orthopedic spine surgery. After Plaintiff rested, Defendants presented their case, calling Layton Schmidt, an eyewitness to the accident; John Dupre, a grants and program director from the State of Louisiana; Channing Perry, an investigator who took surveillance videos of Plaintiff; Defendant Terry Poole; and Dwight Loftis, a representative of Mabe Trucking Co.

Both sides gave closing arguments in the morning of March 8, 2018, and the jury began deliberation early afternoon. At 4:53 p.m., the Court was informed that a verdict had not been made. Thus, without objection from either party, the Court read its Allen charge,1 borrowed and adopted from the Fifth Circuit Pattern Jury Instruction (Civil Cases) Section 2.18. The Court then discharged the jury and ordered jurors to return the next day at 9:30 a.m. to continue deliberation.

*2 On March 9, 2018, at 11:50 a.m., the jury reached a verdict, which was read into the record at 12:23 p.m. The jury initially rendered the following findings:
1. Defendant Terry Poole collided his truck with Plaintiff Tonja Wright’s vehicle.
2. Plaintiff sustained injuries as a result of that vehicular accident.
3. Both Defendant Terry Poole and Plaintiff Tonja Wright were negligent and their negligence were legal causes to Plaintiffs’ injuries.
4. Both Defendant Terry Poole and Plaintiff Tonja Wright were equally at fault and liable.
5. Plaintiff Tonja Wright is entitled to receive $235,000.00, less 50-percent, for past and future medical expenses. She is not awarded any compensation for past and future pain and suffering, past lost wages, future loss of earning capacity, and loss of consortium.

6. Plaintiff Noah Jackson, son of Tonja Wright, is not entitled to any damages. See Rec. Doc. 162.

After the jury presented this verdict, the Court highlighted an inconsistency with the award of damages based on Yarbrough v. Sturm, Ruger & Co., 964 F.2d 376 (5th Cir. 1992). The jury here awarded the sum of $235,000.00 for past and future medical expenses, but nothing for past and future pain and suffering. In Yarbrough, the Fifth Circuit held that it was “inconceivable” that a jury could find for past and future medical expenses and past pain and suffering, but not for future pain and suffering. See id. at 379. Likewise, in this case, the jury had not found compensation for past and future pain and suffering even though it awarded past and future medical expenses. Therefore, the Court rejected the jury’s initial verdict and instructed them to continue deliberation in order to redress this issue.

At 12:36 p.m., the jury returned from a second round of deliberation. See Rec. Doc. 161. The jury rendered the same findings regarding liability as their initial verdict—the parties were equally negligent—and awarded Plaintiff past and present medical expenses of $235,000.00, plus $17,000.00 for past and future pain and suffering, for a grand total of $252,000.00, less 50-percent for comparative negligence.

At Plaintiff’s request, the jury was polled, and each answered in the affirmative that this was indeed the respective juror’s findings. The Court accepted the jury’s verdict in whole. On March 13, 2018, the Court entered judgment in favor of Plaintiff for $126,000.00, after reducing the jury’s award by 50-percent for comparative negligence.2

II. MOTION FOR NEW TRIAL
On April 9, 2018, Plaintiff timely filed the instant motion for new trial under Federal Rule of Civil Procedure 59. Plaintiff requests a new trial based on two arguments. First, Plaintiff asserts that the award for damages was inadequate in light of her injuries and the jury’s determination represents an impermissible compromise verdict. Second, Plaintiff introduces what she claims to be “newly discovered evidence,” an affidavit from Captain Melvin McGary, who was an officer at the September 9, 2015 accident scene but was not called to testify at trial. Plaintiff contends that Captain McGary’s testimony, hitherto unknown, would refute Defendant Poole’s statements at trial.

*3 Defendants oppose Plaintiff’s motion. Defendants argue that the evidence presented to the jury sufficiently justifies the damages awarded and is not a compromise verdict. Furthermore, Defendants point out that the testimony of Captain McGary is not “newly discovered evidence” because Plaintiff had access to this evidence for over two years. Defendants aver that Plaintiff did not make every reasonable and diligent effort to procure the evidence before trial. Accordingly, Defendants claim that Plaintiff fails to meet the burden for a new trial.

The Court will address the parties’ arguments in turn.

A. Legal Standard
Plaintiff seeks a new trial pursuant to Federal Rule of Civil Procedure 59, which provides that “[t]he court may, on motion, grant a new trial on all or some of the issues—and to any party— as follows: after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A).

Under Rule 59, a new trial may be granted if “the verdict is against the weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error was committed in its course.” Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations omitted); see also McFadden v. Wal–Mart Stores, No. 04-2547, 2006 WL 3087164, at *2 (E.D. La. Oct. 27, 2006). “A district court, however, should attempt to avoid substituting its judgment for the jury’s considered verdict, so as to not violate the parties’ Seventh Amendment rights.” Id. (citing Sorina v. Avis Rent–A–Car Sys., Inc., 1992 WL 40840, at *1 (E.D. La. Feb. 20, 1992)). “If the jury’s verdict is ‘clearly within the universe of possible awards which are supported by the evidence,’ then a district court may not properly grant a new trial based merely on the inadequacy of the damage award.” Id. (citing Brun–Jacobo v. Pan Am. World Airways, Inc., 847 F.2d 242, 246 (5th Cir. 1988)). “The Fifth Circuit has stated that it will not interfere with the factfinder’s award of damages unless it is ‘so inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial.’ ” Id. (quoting Munn v. Algee, 924 F.2d 569, 578 (5th Cir. 1991)).

Because the matter is before the Court on diversity jurisdiction, the new trial standards of Louisiana law are applicable. See Fair v. Allen, 669 F.3d 601, 604 (5th Cir. 2012); Foradori v. Harris, 523 F.3d 477, 498 (5th Cir. 2008) (“The Supreme Court in Gasperini…held that, in an action based on state law but tried in federal court by reason of diversity of citizenship, a district court must apply a new trial or remittitur standard according to the state’s law controlling jury awards for excessiveness or inadequacy….”).

Under Louisiana law, “[a] new trial shall be granted…[w]hen the verdict or judgment appears clearly contrary to the law and evidence.” LA. CODE CIV. P. 1972(1). “The trial court’s discretion in ruling on a motion for new trial is great.” Davis v. Wal–Mart Stores, Inc., 774 So. 2d 84, 93 (La. 2000). “Whether to grant a new trial requires a discretionary balancing of many factors.” Id. (citing Gibson v. Bossier City Gen. Hosp., 594 So. 2d 1332 (La. App. 2 Cir. 1991)). The Louisiana Supreme Court has spoken on this discretion as follows:
The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution….Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence.
*4 Id. (citing Gibson, 594 So. 2d 1332).

In making this determination, the trial court must balance the great deference given to the jury as the factfinder and the discretion bestowed upon it in reviewing the motion, but the scales are “clearly tilted in favor of the survival of the jury’s verdict.” Id. at 93–94. The decision is to be made on a case-by-case basis. Id. at 94.

Furthermore, the Fifth Circuit has repeatedly held that “the decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of that discretion or a misapprehension of the law.” Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th Cir. 1985); see also Prytania Park Hotel, Ltd. v. General Star Indemnity Co., 179 F.3d 169, 175 (5th Cir. 1999); Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 252 (5th Cir. 1990); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982); Evers v. Equifax, Inc., 650 F.2d 793, 796 (5th Cir. 1981). Modifying or setting aside a judgment under Rule 59 is an extraordinary remedy; motions for new trial or to alter or amend a judgment should not be avenues for relitigating old matters, raising new arguments, or submitting evidence that could have been presented before. See Theriot v. Parish of Jefferson, 66 F. Supp. 1435, 1452 (E.D. La. 1997); Campbell v. St. Tammany Parish School Board, No. 98-2605, 1999 WL 777720, at *1 (E.D. La. Sept. 29, 1999).

B. Discussion
Plaintiff’s motion presents a straightforward inquiry whether a new trial is justified. The first question is whether the award here is inadequate or represents a compromised verdict. The second question is whether Plaintiff’s purported “newly discovered evidence” warrants a new trial.

1. Award of Damages
Regarding damages, Plaintiff relies, in part, on Starks v. Advantage Staffing, LLC to support her argument that the jury’s award is inconceivable. See 217 F. Supp. 3d 917 (E.D. La. 2016). In Starks, the plaintiff filed a general maritime lawsuit against his employer for personal injuries sustained in an accident. Id. at 919. As a result of the incident, the plaintiff underwent multiple surgeries on his arm. Id. The jury returned a verdict stating the defendants and plaintiff were equally liable. Id. The parties stipulated to $109,213.96 for past medical expenses. Id. The jury then awarded the plaintiff $16,000.00 for unpaid past medical expenses; $50,000.00 for past pain and suffering; and $150,000.00 for future medical expenses. Id. The jury entered zero as the award for future physical pain and suffering and mental anguish. On a motion for new trial, the Starks court, citing Yarbrough, 964 F.2d 376, found it “inconceivable” that a jury could find for past and future medical expenses and past pain and suffering, but not for future pain and suffering. Starks, 217 F. Supp. 3d at 919–20. Thus, the court granted plaintiff’s motion for a new trial.

The basis for a new trial in Starks—an inconceivable and inconsistent verdict—is precisely what this Court prevented during the instant trial. When this jury returned its initial verdict with zero as the award for past and future pain and suffering, albeit awarding past and future medical expenses, this Court, citing Yarbrough, noted the inconsistency to the parties as well as the jury. Thus, the Court declined the jury’s initial presentation and instructed the jury to continue deliberation in order to cure the defect. A short time later, the jury rendered its verdict again: each party was equally liable; damages award of $235,000.00 for past and future medical expenses and $17,000.00 for past and future pain and suffering; no award for Ms. Wright’s alleged lost wages, future earnings, and loss of consortium; and no award of past and future pain and suffering and loss of consortium to Noah Jackson. The Court then accepted the jury’s verdict and entered judgment for $126,000.00, after reducing Plaintiff’s 50-percent comparative negligence. Plaintiff now argues that this still represents an inconceivable and impermissible compromised verdict, relying on Starks and Yarbrough.

*5 Both cases, however, are clearly distinguishable because the jury here did, in fact, award damages—$17,000.00—for past and future pain and suffering, whereas the juries in Starks, 217 F. Supp. 3d at 919, and Yarbrough, 964 F.2d at 379, awarded no compensation for future pain and suffering despite providing for future medical expenses. The question thus becomes whether Plaintiff’s award is reasonable and “within the universe of possible awards which are supported by the evidence.” See Brun–Jacobo, 847 F.2d at 246.

Although Plaintiff argues that $17,000.00 for past and future sufferings and no award for loss of consortium, past wages, and future economic earnings are inadequate and inconceivable given Ms. Wright’s medical procedures, and lists other cases where juries have awarded more for comparable injuries, the Court finds that this jury’s findings, for liability and damages, are well supported by evidence presented at trial.

For instance, the evidence indicates that Plaintiff was involved in a later, separate accident on December 13, 2016, which made her neck pain substantially worse. Moreover, Defendants’ surveillance videos captured Plaintiff moving with ease on multiple occasions, carrying groceries, and lifting her son Noah. Additionally, Dr. Broussard testified via video deposition that Plaintiff had, inter alia, a “good result” from surgery. Finally, Plaintiff stated in some of her past tax returns that she earned zero or negative net income. Therefore, from the evidence presented at trial, the jury could—and did—reasonably find that Ms. Wright is entitled to a relatively low, yet adequate, amount for past and future pain and suffering and past and future medical expenses, as well as no award for loss of consortium, past wages, and future economic earnings, especially in light of her duty to mitigate damages.

Nevertheless, Plaintiff states that other juries in other cases have awarded more for damages. Perhaps so. But what other plaintiffs have received is irrelevant here because each jury and each set of fact pattern is unique and different. This jury, having heard testimony and examined exhibits for four days, is entitled to “great deference” in weighing the evidence. See Wainwright v. Fontenot, 774 So. 2d 70, 74 (La. 2000). Although Plaintiff now attempts to substitute her own belief for the jury’s determination, ultimately, she cannot usurp the jury’s role as the factfinder. Thus, the Court refuses to upset or undermine the jury’s reasonable findings simply because another jury in a separate case awarded more.

Finally, when polled at Plaintiff’s request, each juror affirmed, without hesitation, that the rendered verdict was indeed his or her respective decision. Thus, Plaintiff’s speculation that the jury reached a compromised verdict is just that—speculation. Accordingly, considering the record, the Court will not disrupt the jury’s findings because the award rendered in this case is reasonable in light of the evidence and not “so inadequate as to shock the judicial conscience….” See Munn, 924 F.2d at 578.

2. Newly Discovered Evidence
Plaintiff represents that twenty-eight days after trial, on April 9, 2018, she learned the identity of a new witness: Captain McGary, who responded to the September 9, 2015 accident. Relevant to Plaintiff’s case, Captain McGary affirms in an affidavit that he “spoke with Mr. Poole at the scene after the accident occurred. Mr. Poole told [him] that he did back his tractor-trailer into Ms. Wright’s vehicle causing the accident. Mr. Poole told [him] that Ms. Wright was in his blind spot, and that he did not see her.” Rec. Doc. 169-2. Moreover, “[a]fter the accident, [Captain McGary] could clearly see the tire skid marks that were under Mr. Poole’s tractor-trailer[,] [which] led to and lined up with Ms. Wright’s tires. The marks directly touched and conformed exactly in width and alignment to the footprint of her tires. There was no doubt that the skid marks were hers.” Id. From this, Plaintiff concludes that Captain McGary’s statements “prove” that Defendants were 100-percent at fault.

*6 Despite Captain McGary’s declaration, Defendants contend that this evidence is not “newly discovered” under governing law. Defendants argue that Plaintiff knew that two officers arrived at the accident scene for over two years, but did not exercise due diligence in identifying or locating Captain McGary to testify at trial.

Newly discovered evidence may serve as a basis for a new trial if the party “could not, with due diligence, have obtained [this evidence] before or during the trial.” LA. CODE CIV. P. 1972(2). In order to meet the burden of proof required for a new trial on the basis of newly discovered evidence, the moving party must prove (1) the evidence was discovered after the trial, (2) the new evidence is not cumulative, (3) the new evidence would tend to change the result of the case, and (4) the new evidence could not have been discovered with due diligence before the trial was completed. Boudreaux v. Cummings, 170 So. 3d 1002, 1006 (La. App. 3 Cir. 2015), writ denied, 169 So. 3d 358 (La. 2015).

When a party claims a new trial is warranted due to newly discovered evidence, the party must make a “clear showing” that he or she made “every reasonable and diligent effort” to procure the evidence before the proceedings. Burns v. Sedgwick Claims Mgmt. Servs., Inc., 165 So. 3d 147, 155 (La. App. 5 Cir. 2014).

In this case, Plaintiff represents that she only learned the identity of Captain McGary on April 9, 2018. She states that Captain McGary’s name was not listed in the police report, nor was she able to depose Officer Hall, the author of the police report, to learn of Captain McGary’s whereabouts. Furthermore, she claims that calls to the police department were unanswered.

Notwithstanding Plaintiff’s position, the Court finds that Ms. Wright has not shown that she exercised due diligence in obtaining the testimony of Captain McGary prior to trial. Plaintiff long knew that two officers came to the scene of the accident. In her deposition on April 13, 2017, almost a year and a half after the accident and about one year before trial, Ms. Wright— accompanied by her attorney—testified that she spoke with two responding officers during the September 9, 2015 accident:
Defense Counsel: Was Officer Hall the only police officer who
came to the scene?
Ms. Wright: No, sir. Defense Counsel: How many police officers came to the scene? Ms. Wright: There were two, I recall.
* * *
Defense Counsel: What did the police officers talk to you about? Ms. Wright: They basically just came over and told me what I told you about Mr. Poole’s statement and how they were able to look at the skid marks and where the vehicles were positioned to know that he had pushed me back.
Wright Dep. 38:18–23, 82:23–83:4; Rec. Doc. 174-2 at 4–5.

As indicated, for over two years, Plaintiff knew that a second officer was present at the accident scene and could provide potentially important, game-changing testimony. A diligent litigant should then readily know the importance of an on-scene officer’s testimony after a vehicular accident and promptly attain such evidence.

Plaintiff, however, did not locate Captain McGary until after the trial; she fails to explain why she could not have exercised due diligence in identifying Captain McGary beforehand—until now, when she seeks a new trial. Plaintiff states that she made numerous attempts to learn about Captain McGary though Officer Hall and made phone calls to the police department. At the hearing, Plaintiff’s counsel said that, after trial, Ms. Wright herself went to the police station in order to identify Captain McGary. But Plaintiff still does not justify why she—or her attorney— could not have done the same during the past two years before trial.

*7 Instead, Plaintiff only exerted minimal effort in obtaining any officer’s testimony in the first instance. Despite Plaintiff’s representation at the hearing and pre-trial conference, there are, in fact, no subpoenas or requests for subpoena of Officer Hall filed in the record. See generally ECF. When Plaintiff informed the Court during the pre-trial conference that Officer Hall had been nonresponsive, the Court had offered to dispatch U.S. Marshals to enforce any subpoenas or requests for subpoena if they were properly filed. Nonetheless, Plaintiff stood idle. Not only did Plaintiff ignore locating Captain McGary for over two years, but she also failed to exercise more effort to secure the testimony of Officer Hall. Therefore, no officers corroborated Plaintiff’s testimony.

Due to Plaintiff’s own disregard leading up to trial, the Court finds that she has not made a clear showing that she made “every reasonable and diligent effort” to attain Captain McGary’s testimony. See Burns, 165 So. 3d at 155; see also LA. CODE CIV. P. 1972(2). The Court agrees with Plaintiff that Captain McGary’s testimony might have been helpful to the jury and potentially valuable to her case-in-chief. But a new trial now—due to Plaintiff’s initial inertia—would be absolutely unfair to Defendants.

Finally, Plaintiff’s “new evidence” may be cumulative. In this trial, the jury actually found that Defendant Poole’s truck collided with Plaintiff’s vehicle and that Defendant had fault in the collision. Captain McGary’s testimony, if elicited, would have simply confirmed this finding. The jury could still have determined, for example, that Plaintiff’s vehicle was too close to the Defendant’s truck, that she should have sounded her horn, or that she should have backed up when she saw the truck backing her way, and any of this amounted to negligence on her part. At this point, to hold otherwise is speculative. Thus, even with Captain McGary’s purported testimony, the jury could have also reached the same result, which would make this evidence cumulative at best. See Deimel v. Etheridge, 198 So. 537, 540 (La. Ct. App. 1940) (holding new evidence that was merely cumulative did not merit new trial). Accordingly, the Court concludes that Captain McGary’s testimony comes too late. Plaintiff cannot take a second bite of the apple.

III. MOTION TO ALTER OR AMEND JUDGMENT
Defendant Allstate has filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), which allows a court to alter or amend a judgment to correct a “manifest error of law or fact….” Allstate argues that because it was sued in its capacity as the uninsured/underinsured (“UM/UIM”) motorist carrier of Plaintiff, and because the judgment award is below Defendant National Interstate’s policy coverage of $1,000,000.00, Plaintiff’s UM/UIM claims against Allstate should be dismissed.

The Court agrees. At trial, both National Interstate and Allstate’s insurance policies were offered and introduced into evidence. National Interstate’s liability limit is $1,000,000.00. The judgment in this case, in favor of Plaintiff, amounts to $126,000.00. Therefore, because the award is below National Interstate’s coverage, Allstate’s insurance policy is not imputed. Accordingly, the judgment against Defendant Allstate is dismissed.

IV. CONCLUSION
Based on the foregoing reasons,

IT IS ORDERED that Plaintiff’s motion for a new trial (Rec. Doc. 169) is hereby DENIED.

IT IS FURTHER ORDERED that Defendant Allstate’s motion to alter or amend judgment (Rec. Doc. 171) is hereby GRANTED. The judgment (Rec. Doc. 167) is hereby AMENDED to dismiss Defendant Allstate from any claim of damages.

New Orleans, Louisiana, this 30th day of April, 2018.

ELDON E. FALLON
United States District Judge
All Citations
Slip Copy, 2018 WL 2017567

Footnotes

1
“ ‘Allen’ refers to the case Allen v. United States, 164 U.S. 492 (1896). The term is used generally in reference to supplemental instructions urging a jury to forego their differences and come to a unanimous decision.” United States v. Bottom, 638 F.2d 781, 786 n.4 (5th Cir. 1981).

2
Due to clerical error, the Court entered an amended judgment on March 19, 2018. See Rec. Doc. 167.

2018 WL 2193111

United States District Court, D. Minnesota.
Ricardo Gaytan SOTO and Marisol Gaytan Soto, Plaintiffs,
v.
SWIFT TRANSPORTATION SERVICES, LLC, and Anthony Shealey, Defendants.
Case No. 0:17–cv–124–JRT–KMM
|
Signed 05/14/2018
Attorneys and Law Firms
Brian E. Wojtalewicz, Wojtalewicz Law Firm, Ltd., PO Box 123, Appleton, MN, 56208, counsel for plaintiffs
Brian A. Wood, Matthew D. Sloneker, Michael Thomas Burke, William L. Davidson, Lind Jensen Sullivan & Peterson, PA, 901 Marquette Ave. S., Suite 1300, Minneapolis, MN, 55402, counsel for defendants

ORDER
Katherine Menendez, United States Magistrate Judge
*1 This case arises out of a traffic accident involving the plaintiff, Richard Gaytan Soto, and a semi-truck operated by defendant Anthony Shealey for Swift Transportation Services, LLC. Mr. Gaytan Soto and his wife, Marisol Gaytan Soto, allege that on the night of November 15, 2016, Mr. Gaytan Soto was driving his sedan on an interstate highway in Minnesota when he crashed into the trailer of Mr. Shealey’s overturned semi-truck, which was blocking the roadway. Just before the accident, Mr. Shealey lost control of the semi-truck when he encountered a herd of deer in the roadway, attempted to avoid hitting them, drove into a ditch, and tried to return to the road. At that point, Mr. Shealey’s vehicle overturned and the trailer completely blocked oncoming westbound traffic. [Am. Compl. ¶¶ 24–25.] The plaintiffs assert that Mr. Shealey is liable for negligence and that Swift is vicariously liable because he was acting as Swift’s agent at the time of the accident. [Id. ¶¶ 26–35, 44–48.] The plaintiffs also allege that Swift is liable for negligently hiring, training, supervising, and retaining Mr. Shealey as a driver.1 [Id. ¶¶ 36–43.]

MOTION TO AMEND2
The plaintiffs have moved to amend their complaint to add claims for punitive damages. [ECF No. 85.] Through their Proposed Second Amended Complaint, the plaintiffs would add requests for punitive damages against Mr. Shealey personally and against Swift. [ECF No. 94.] Generally speaking, the plaintiffs argue that: (1) Mr. Shealey deliberately disregarded appropriate training for a professional driver of a commercial motor vehicle who encounters deer in the roadway and otherwise showed indifference to the safety of others; and (2) Swift hired Mr. Shealey and kept him employed as a driver despite knowing that he posed a high likelihood of danger to others’ safety.

Factual Assertions Regarding Mr. Shealey
*2 Mr. Shealey was an independent driver who had been contract-driving for Swift for about five months at the time of the accident. The plaintiffs assert that he showed an indifference to the safety of others because he referred to drivers of ordinary passenger vehicles with disdain, calling them “asshats.” They assert that Mr. Shealey was not aware of Swift’s training materials advising professional drivers never to swerve to avoid deer on a highway. Although his semi-truck carried a full load, the plaintiffs allege that Mr. Shealey showed deliberate disregard for others’ safety because he was driving 68 miles per hour at the time of the incident, which exceeded the speeding policy Swift applied to its employee drivers. The plaintiffs contend that Mr. Shealey ignored commercial driver’s license manuals that recommend semi-truck drivers steer their vehicles to the right in an emergency. Further, they allege that Mr. Shealey thought about staying in the ditch when he veered off the road, but instead attempted to turn back on the roadway. Plaintiffs complain that Mr. Shealey refused to agree that the accident was preventable and he did not accept fault for the crash and the rollover. They also emphasize that Mr. Shealey claimed that he never heard Mr. Gaytan Soto’s vehicle crash into his truck, and he recalled, allegedly incorrectly, that there was no shoulder between the left lane and the grassy median. According to the plaintiffs, Mr. Shealey’s improper conduct is further demonstrated by the fact that he did not attempt to warn oncoming vehicles of an emergency immediately after his vehicle came to rest on its side. Finally, the plaintiffs argue that amending their complaint to seek punitive damages is proper because Mr. Shealey testified that he might make the same decisions if confronted with multiple deer on the highway again.

Allegations Against Swift
In their negligent hiring, supervision, training, and retention claims against Swift, the plaintiffs argue that the company ignored Mr. Shealey’s prior trucking violations and didn’t inquire about why he left a prior trucking job after only a few months of employment. Swift also allegedly ignored evidence that Mr. Shealey suffers from post-traumatic stress disorder, and the plaintiffs assert that the company should have responded differently to evidence showing that Mr. Shealey was unemployed for several years. Swift also allegedly ignored Mr. Shealey’s criminal history, which involved one assault and one trespass charge, even though Swift’s safety manager considers temperament and judgment relevant factors for a truck driver.

The plaintiffs also point to conduct of Mr. Shealey during his Swift employment that they claim the company should have handled differently. The plaintiffs argue that Swift ignored the fact that Mr. Shealey had an incident involving failure to control a semi-truck during his training that took place a few months before the crash at issue. They also point to the fact that Mr. Shealey got a speeding ticket in October of 2016, and assert that Swift did respond appropriately.

*3 Finally, the plaintiffs allege that Swift didn’t adequately train Mr. Shealey. The plaintiffs argue that Mr. Shealey and his wife, Christina Shealey, who was in the truck with him on the night of the incident, stated that they were not trained by Swift on what to do upon encountering deer on the highway or how to operate the semi-truck upon going off the road. The plaintiffs further argue that amending the pleadings to seek punitive damages from Swift is appropriate because Mr. Shealey had not heard of “outrunning his headlights” as a safety concept and Swift allegedly does not require trainees or drivers to read the company’s safety manual, which includes warnings relating to encountering deer on the roadway.

LEGAL STANDARD
Under Minnesota law, punitive damages are available when a plaintiff shows by clear and convincing evidence “that the acts of the defendant show deliberate disregard for the rights or safety of others.” Minn. Stat. § 549.20, subd. 1(a). A defendant acts with such “deliberate disregard” where the defendant:
has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:
(1) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the rights or safety of others; or
(2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.
Minn. Stat. § 549.20, subd. 1(b)(1)–(2).

The parties disagree whether Mr. Gaytan Soto should be allowed to amend his complaint to add a claim for punitive damages based on a related Minnesota statute: Minn. Stat. § 549.191, which is sometimes referred to as the “gatekeeping statute.”3 According to the gatekeeping statute, plaintiffs are not permitted to include a claim for punitive damages in an initial complaint. Instead, plaintiffs are required to make a prima facie evidentiary showing, by one or more affidavits, that defendants acted with deliberate disregard for others’ rights or safety in order to add such a claim. See id. The prima facie showing must be clear and convincing. See Berczyk v. Emerson Tool Co., 291 F. Supp. 2d 1004, 1008 (D. Minn. 2003). The Court reviews the evidence provided by a plaintiff as it would review a motion for a directed verdict, without making credibility rulings or considering a challenge, “by cross examination or otherwise, to the plaintiff’s proof.” Id. at 1008 n.3. This means that “[t]he trial court may not allow an amendment where the motion and supporting affidavits do not reasonably allow a conclusion that clear and convincing evidence will establish the defendant acted with willful indifference….”4 Id. at 1009 (internal quotations omitted). “A mere showing of negligence is not sufficient to sustain a claim of punitive damages.” Id. at 1008 (internal quotations and alterations omitted).

ANALYSIS
*4 In this case, the plaintiffs have failed to demonstrate an entitlement to plead punitive damages according to Minn. Stat. § 549.191. Despite their attempt to characterize this as a case involving deliberate disregard for the safety of others, the record does not clearly and convincingly support that contention. Specifically, the plaintiffs do not offer clear and convincing evidence that Mr. Shealey or Swift deliberately disregarded a high risk to the safety of others.

A. No Precedent For Punitive Damages In Similar Cases
One substantial obstacle to the plaintiffs’ motion to amend is that they point to no case from the Minnesota Court of Appeals, Minnesota Supreme Court, or even the District of Minnesota applying the gatekeeping statute, where a plaintiff has been allowed to add a punitive damages claim under facts similar to those at issue here. They also have not cited any Minnesota appellate case upholding an award of punitive damages under similar circumstances. And the Court found no such authority in conducting its own research.

This absence of precedent to support the plaintiffs’ position is central to the Court’s conclusion that leave to amend under the gatekeeping statute is inappropriate. Minnesota’s statutory scheme for punitive damages is designed to weed out unmeritorious punitive damages claims and requires a court do more than rubber stamp a plaintiff’s allegations. See Ulrich v. City of Crosby, 848 F. Supp. 861, 866–67 (D. Minn. 1994) (explaining that Minnesota enacted § 549.191 “to deter certain practices in the presentment of punitive damages claims which were thought to be abusive”); id. at 868–69 (“[W]hen presented with a Motion for leave to assert a punitive damage claim, the function of the Court is to do more than “rubber stamp” the allegations in the Motion papers. The Court must independently ascertain whether there exists prima facie evidence that the defendant acted with a deliberate disregard of the rights or safety of others.”).

At the hearing on the motion, the Court asked the plaintiffs’ counsel for any authority applying Minnesota law that supports their request for leave to amend. Counsel conceded that he could not think of an auto-accident case involving negligent driving where such damages were permitted, with one readily distinguishable exception. Counsel noted that Minnesota courts have permitted recovery of punitive damages where an automobile accident is caused by a driver who is under the influence of alcohol.5 See Anderson v. Amundson, 354 N.W.2d 895, 898 (Minn. Ct. App. 1984) (“If the act of drinking and driving was of such a nature that a jury could find [the defendant] acted with a willful indifference to the rights or safety of others, an award of punitive damages is an appropriate sanction for the operation of a motor vehicle while under the influence of alcohol.”) (internal quotations omitted). However, reliance on this authority is misplaced. There is nothing in the record that suggests Mr. Shealey was driving under the influence of alcohol or any other substance at the time of the accident at issue in this case. And the plain disregard for the safety of others evidenced by driving after drinking is certainly different from the negligence alleged against Mr. Shealey.

*5 Because of the uniquely high bar contained in the Minnesota punitive damages statutory scheme, the Court is not persuaded by plaintiffs’ citation to cases from other jurisdictions. For example, the plaintiffs cite to a North Dakota trial court decision, Boyer v. Weist Truck Line, Inc. et al., No. 18–2012–CV–01621, in which plaintiffs were permitted to amend their complaint to add a claim for punitive damages against a trucking company and the driver of a commercial vehicle. [Wojtalewicz Decl., Ex. F, ECF No. 93–6.] However, the North Dakota statute at issue in that case required only a preponderance of the evidence to amend the complaint to add punitive damages. Moreover, the decision did not explain what circumstances led the court to find sufficient evidence that the driver consciously disregarded legal limits on how long and how often a driver can drive without rest. [Id., Ex. F at 2 (citing 49 C.F.R. § 395.3(a)(1)–(2) ).] Given the different standard, the lack of significant discussion, and the fact this case does not involve any claim that Mr. Shealey should not have been driving at all at the time of the accident, the plaintiffs’ reliance on this case is misplaced.6

In sum, the Court can find no legal support for the plaintiffs’ position that, in a case of alleged negligence causing a traffic accident, leave to amend should be granted pursuant to Minnesota’s gatekeeping statute. Indeed, existing caselaw strongly suggests that punitive damages are not permitted in such cases. See Olson, 29 F. Supp. 2d at 1035 (“[T]he mere existence of negligence or of gross negligence does not rise to the level of willful indifference so as to warrant a claim for punitive damages.”) (quoting Ulrich v. City of Crosby, 848 F. Supp. 861, 868 (D. Minn. 1994) ); see also James Gempeler & Lindsay Mancini, Smart Phones Dumb Driving and the Law the Criminal and Civil Consequences of Distracted Driving, Bench & B. Minn. at 23 (November 2016) (“Currently, Minnesota courts have only allowed compensatory damages in tort automobile claims, unless the at-fault party was intoxicated as established under Minn. Stat. § 169A.76.”).

B. No Prima Facie Showing As To Mr. Shealey
Aside from the lack of precedent, the evidentiary record offered by the plaintiff does not transform Mr. Shealey’s reaction to encountering a herd of deer on the highway into a deliberate act taken in conscious or intentional disregard of a high probability of injury to the rights or safety of others. See Minn. Stat. § 549.20, subd. 1(b). There is certainly no suggestion that Mr. Shealey acted with intent to injure anyone.7 There is also no showing that Mr. Shealey had been driving erratically, recklessly, or without adequate rest at the time he encountered the herd of deer. Instead, the record shows that Mr. Shealey was driving under the posted speed limit and that he attempted to move around the deer when he saw them because he was concerned about his own safety, his wife’s safety, and the safety of his dog. [Dep. of Anthony Shealey at 110:7–12.] Even if these facts and Mr. Shealey’s actions could demonstrate negligence under these circumstances, they would not permit a jury to find by clear and convincing evidence that he was willfully indifferent to the safety of other motorists.

The Court is also not persuaded by the plaintiffs’ reliance on Mr. Shealey’s alleged failure to warn other drivers that his trailer was blocking traffic after his vehicle overturned. As the plaintiffs acknowledge in their brief, Mr. Shealey testified that he was unconscious after his semi-truck flipped onto its side in the roadway, and came to after law enforcement was on the scene. [See Dep. of Anthony Shealey at 36:5–10.] In the face of this reality, his failure to warn does nothing to establish that he was willfully indifferent to other drivers’ safety. Similarly, the Court is unpersuaded by the plaintiffs’ curious reference to the Mr. Shealey’s and Ms. Shealey’s testimony that they did not hear Mr. Gaytan Soto’s car hit the trailer at the time of the accident. The Court simply does not understand how this fact is relevant to any question of deliberate disregard for the safety of others.

C. No Prima Facie Showing As To Swift
*6 With respect to Swift, the plaintiffs have failed to show that they should be given leave to amend under the Minnesota gatekeeping statute as well. Specifically, they have not shown prima facie clear and convincing evidence that Swift was willfully indifferent to the safety of others in connection with its hiring, retention, or training of Mr. Shealey. Nor have they demonstrated an entitlement to allege a punitive damages claim based on Mr. Shealey’s actions as Swift’s agent because they have failed to make the requisite prima facie showing that Swift deliberately disregarded a high probability that Mr. Shealey was unfit to be a commercial motor vehicle driver. See Minn. Stat. § 549.20, subd. 2(2) (permitting punitive damages against a master or principal because of the acts of an agent where “the agent was unfit and the principal deliberately disregarded a high probability that the agent was unfit”).

The record does not show by prima facie clear and convincing evidence that Swift was willfully indifferent to facts indicating that Mr. Shealey posed a great risk to others on the road. For instance, the plaintiffs have not presented evidence that Shealey’s driving conduct had caused repeated accidents before he was hired and that Swift was aware of such a history. Nor have the plaintiffs shown that after hiring Mr. Shealey, Swift ignored information that he was operating his semi-truck improperly.

The Court is not persuaded by the plaintiffs’ suggestion that Mr. Shealey’s previous assault and trespassing cases support its punitive damages case. These non-driving incidents do not establish that Swift deliberately disregarded facts showing he was unfit to operate a commercial vehicle.8 And the plaintiffs’ reference to Mr. Shealey’s PTSD, a condition arising from his military service, is even less persuasive and, frankly, less respectable. There is no evidence whatsoever in this record that Mr. Shealey’s mental health history contributed in any way to how he handled his nighttime encounter with deer on the road.

The plaintiffs also suggest that Swift demonstrated a deliberate disregard for the safety of others because its training was insufficient. However, the plaintiffs’ own prima facie evidence demonstrates that Swift’s training materials included the very instruction (not swerving to avoid deer) that they contend should have been followed in this case. It is difficult to see how Swift’s inclusion of that very admonition in its training materials clearly and convincingly demonstrates that Swift was willfully indifferent to the safety of others. The fact that such training was allegedly not followed here does not convert a negligence claim into one which supports punitive damages.

Ultimately, the plaintiffs point to evidence that may be relevant and helpful to their negligence claims. However, none of that evidence clearly and convincingly shows that Swift deliberately disregarded a high probability that others would be injured by Mr. Shealey when Swift hired him and allowed him to drive a semi-truck for the company.

ORDER
IT IS HEREBY ORDERED THAT the plaintiffs’ Motion for Complaint Amendment for Punitive Damages [ECF No. 85] is DENIED.

All Citations
Slip Copy, 2018 WL 2193111

Footnotes

1
The case is in federal court based on diversity jurisdiction. See 28 U.S.C. § 1332.

2
The Court bases the following factual recitation on the evidentiary materials provided by the plaintiffs in support of their motion to amend. These materials are attached to the Declaration of Brian Wojtalewicz as Exhibits A through K. [ECF No. 93.] The evidence includes: the deposition of Mr. Shealey (Exhibit A); the deposition of Christina Shealey (Exhibit B); the deposition of Swift’s 30(b)(6) representative Bill Peyton, a regional safety director for the company (Exhibit C); the deposition of Swift employee Victor Malchesky (Exhibit D); the preliminary report of Michael Long, a Large Vehicle Accident Consultant, who opines that Mr. Shealey’s driving conduct was below the standard for a commercial motor vehicle driver (Exhibit E); and photographs of the accident scene (Exhibits I and J). Exhibits F, G, and H to Mr. Wojtalewicz’s declaration are unpublished cases provided for the Court’s consideration. Finally, Exhibit K is a timeline of events concerning Mr. Shealey’s work as a commercial driver. Finally, the Court has also reviewed the information submitted by the plaintiffs in Mr. Wojtalewicz’s Supplemental Declaration and the attached Exhibit A, which is an early accident scene report prepared for Swift by its insurer. [ECF No. 110.] For the purposes of this ruling, the Court need not more closely parse the factual record, including the materials submitted by the defendants, because even a generous reading of the documents relied upon by the plaintiffs does not satisfy the high bar for amendment under Minn. Stat. § 549.191. Accordingly, the Court finds it unnecessary to permit the defendants to supplement the record as they requested in a May 10, 2018 letter.

3
Recent decisions reflect a disagreement among magistrate judges within the District of Minnesota regarding whether Minn. Stat. § 549.191 or Federal Rule of Civil Procedure 15 should govern a request for leave to amend to add punitive damages to a complaint. Compare Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15–cv–3183 (ADM/LIB), Doc. No. 534 (D. Minn. Mar. 8, 2018) (applying Minn. Stat. § 549.191), with Selective Ins. Co. of S.C. v. Sela, No. 16–cv–4077 (PJS/SER), Doc. No. 111 (D. Minn. Apr. 26, 2018) (concluding that Fed. R. Civ. P. 15 applies to requests for amendment to add claims of punitive damages), and In re Bair Hugger Warming Devices Prods. Liab. Litig., No. 15–2666 (JNE/FLN), 2017 WL 5187832 (D. Minn. July 27, 2017) (denying the motion to amend to plead punitive damages according to Fed. R. Civ. P. 15 standards); see also Ramirez v. AMPS Staffing, Inc., 2018 WL 1990031, at *2–6 (D. Minn. Apr. 27, 2018) (acknowledging the split of authority but declining to resolve the issue because the plaintiff satisfied both Minn. Stat. § 549.191 and Fed. R. Civ. P. 15). Because neither party has asked the Court to apply anything other than Minn. Stat. § 549.191 in this case, the Court will examine the motion to amend to add punitive damages according to that statute.

4
As the court noted in Olson v. Snap, Inc., the Minnesota Legislature replaced the phrase “willful indifference” with “deliberate disregard” in 1990, with the newer standard being characterized “as a ‘heightened’ one.” 29 F. Supp. 2d 1027, 1035 & n.2 (D. Minn. 1998) (quoting Bougie v. Sibley Manor, Inc., 504 N.W.2d 493, 500 n.4 (Minn. App. 1993) ).

5
In the year 2000, the Minnesota Legislature enacted a law specifically authorizing punitive damages in civil actions involving motor vehicle accidents where the accident was caused by a drunk driver. Minn. Stat. § 169A.76(a) (“In a civil action involving a motor vehicle accident, it is sufficient for the trier of fact to consider an award of punitive damages if there is evidence that the accident was caused by a driver” whose blood alcohol concentration exceeds the legal limit, who was under the influence of a controlled substance, or was under the influence of alcohol and refused to take a chemical test for intoxication). This statute is plainly inapplicable here because there are no facts in the record or even any allegation that Mr. Shealey was under the influence of alcohol at the time of the accident.

6
The authority from other jurisdictions cited by the plaintiffs also fails to convince the Court that leave to amend should be granted under the unique parameters of Minnesota’s gatekeeping statute in this case. [Pls.’ Mem. at 44–46 (citing several cases from other jurisdictions), ECF No. 97.]

7
The Court is unpersuaded that Mr. Shealey’s Facebook post referring to drivers of regular passenger vehicles as “asshats” transforms his split-second reaction to deer into an intentional tort or a malicious act.

8
The plaintiffs point to testimony from a Swift representative agreeing that judgment and temperament are important traits for a commercial driver and argue that Swift’s decision to hire Mr. Shealey deliberately disregarded his lack of fitness for the job because of his criminal history. However, there is not any showing in this record that Mr. Shealey’s previous criminal charges made him unfit to drive a semi-truck, let alone a clear and convincing one. Indeed, neither of the charges identified are even shown to relate to driving conduct. The assault case involved a confrontation with his wife’s stepfather, to which Mr. Shealey pleaded guilty in 1998. [Dep. of Anthony Shealey at 99:15–100:2.] There was no information about his 1987 charge for trespassing. [Id. at 99:6–14.]