Neutral As of: August 24, 2018 1:17 PM Z
McCon v. Perez
United States District Court for the Southern District of Mississippi, Southern Division
August 20, 2018, Decided; August 20, 2018, Filed
CAUSE NO. 1:17cv77-LG-RHW

Reporter
2018 U.S. Dist. LEXIS 140449 *
JAMETRIUS MCCON, LARRY HENDERSON, LAMARIO HENDERSON, and DARYL D. WILLIAMS, PLAINTIFFS v. ADOLFO PEREZ and D&D EXPRESS TRANSPORT, DEFENDANTS AND D&D EXPRESS TRANSPORT, COUNTER-PLAINTIFF v. DARYL D. WILLIAMS, COUNTER-DEFENDANT
Prior History: McCon v. Perez, 2018 U.S. Dist. LEXIS 138597 (S.D. Miss., Aug. 16, 2018)

ORDER CONCERNING DEFENDANTS’ MOTIONS IN LIMINE
BEFORE THE COURT are the following Motions filed by the defendants D&D Express Transport and Adolfo Perez: [330] Motion in Limine to Preclude Documents Not Produced in Discovery, [332] Motion in Limine to Preclude Reference to Defendants Not Personally Appearing at Trial and Mentioning the Existence of Insurance, [334] Motion in Limine to Preclude Prejudicial Evidence and Dismissed Claims, [336] Motion in Limine to Limit Medical Bills and Non-Economic Damages, and [338] Motion in Limine Precluding Evidence Relative to Property Damage to Williams’ Vehicle. The plaintiffs [*3] have filed responses to the Motions. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds as follows:

BACKGROUND
This lawsuit arose out of a motor vehicle accident involving a tractor trailer driven by D&D Express Transport employee Adolfo Perez and a car driven by the plaintiff Daryl D. Williams. The plaintiffs Jametrius McCon, Larry Henderson, and Lamario Henderson were passengers in Williams’ vehicle.

DISCUSSION

I. Defendants’ Motion in Limine to Preclude Documents Not Produced in Discovery
The defendants ask the Court to prohibit the plaintiffs from offering evidence and argument at trial regarding documents that were not produced during discovery. The only specific documents referenced in the defendants’ Motion are documents obtained via subpoena by McCon that were never produced to the defendants. McCon does not appear to dispute that the documents were not timely provided to the defendants, but he states that he has now provided all of the available documents referenced in the defendants’ Motion.
The defendants filed their Motion pursuant to Fed. R. Civ. P. 37(c)(1), which provides, “If a party fails to provide information or identify a witness [*4] as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless . . . .” This Court’s Local Rules explain:
If a party fails to make a disclosure required by this section, any other party must move to compel disclosure and for appropriate sanctions under Fed. R. Civ. P. 37(a). The failure to take immediate action and seek court intervention when a known fact disclosure violation other than as to expert witnesses occurs will be considered by the court in determining the appropriate sanctions to be imposed regarding a subsequent motion filed under Fed. R. Civ. P. 37(c).
Uniform Local Rule 26(a)(3). The defendants never filed a motion to compel pursuant to Fed. R. Civ. P. 37(a), even though they knew that McCon served the subpoenas in September and October 2017. “The Court will not use the procedural device of a motion in limine to enforce the provisions of Federal Rule of Civil Procedure 37.” United States ex rel. Jamison v. McKesson Corp., No. 2:08cv214-SADAS, 2012 WL 12931443, at *2 (N.D. Miss. Feb. 14, 2012); see also Caldwell v. Wal-Mart Stores East, LP, No. 3:10cv651-DPJ-FKB, 2012 WL 1712377, at *1-2 (S. D. Miss. May 14, 2012) (denying a motion in limine seeking relief pursuant to Fed. R. Civ. P. 37(c) where the defendant did not file a motion to compel). The defendants’ Motion in Limine to Preclude Documents Not Produced [*5] in Discovery is denied.

II. Defendants’ Motion in Limine to Preclude Reference to Defendants Not Personally Appearing at Trial and Mentioning the Existence of Insurance
The defendants explain that they live in Miami-Dade County Florida and attendance at trial may cause a hardship for them. The defendants argue, “Should Defendants be unavailable to appear at trial, such lack of appearance is not material or relevant to any issue before the Court, and therefore, Plaintiffs should be prohibited from making any argument or reference at trial to their absence.” (Defs.’ Mem. 2, ECF No. 333). The Court will grant this portion of the Motion and will provide further explanation and instruction to the parties at the pretrial conference.
The defendants also ask the Court to prevent the plaintiffs from making any reference, directly or indirectly, to the defendant’s insurance coverage. The defendants further seek to prevent the plaintiffs from calling David Wilton, the independent adjuster hired by the defendants’ insurer, to testify. Fed. R. Evid. 411 provides, “Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. [*6] But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.” Therefore, the Court will grant the defendants’ Motion to this extent. The plaintiffs will be prohibited from referencing the defendants’ insurance coverage in any way. If the plaintiffs wish to introduce evidence or testimony concerning insurance “for another purpose” under Fed. R. Evid. 411, the plaintiffs believe that the defendants have opened the door to admissibility of evidence or testimony concerning insurance, or the plaintiffs wish to call David Wilton to testify, the plaintiffs must first notify the Court outside the presence of the jury, so that the Court can determine whether the evidence or testimony is admissible.

III. Defendants’ Motion in Limine to Preclude Prejudicial Evidence and Dismissed Claims
In his [280] First Motion in Limine, McCon sought permission to present argument and evidence of spoliation due to the defendants’ failure to preserve Perez’s logbooks and the Freightliner’s electronic control module (“ECM”). The Court entered an [323] Order denying McCon’s spoliation Motion, because there was no evidence that the defendants destroyed [*7] the logbooks or ECM in bad faith. The defendants now ask the Court to prohibit the plaintiffs “from seeking to offer evidence or arguments regarding spoliation of evidence, including the loss of or access to logbooks and/or ECM data.” (Defs.’ Mem. 5, ECF No. 335). The defendants also ask the Court to prohibit the plaintiffs from offering evidence or argument regarding Perez’s and Laguna’s proficiency in speaking the English language. In addition, the defendants argue that the Court should not permit the defendants to present evidence or argument concerning claims that have been dismissed by the Court.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402. “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The loss of logbooks and ECM data, the English proficiency of Perez and Laguna, and [*8] evidence and argument that solely concerns dismissed claims are matters that are both irrelevant and unduly prejudicial. Therefore, the Motion in Limine is granted to this extent. During the trial, if the plaintiffs believe that the defendants have opened the door or that one or more of these matters has become relevant, the plaintiffs must notify the Court outside the presence of the jury, so that the Court can reevaluate the admissibility of the proposed evidence or testimony.
The defendants also claim that the plaintiffs should not be permitted to submit evidence and arguments regarding alleged violations of the Federal Motor Carrier Safety Regulations and/or Department of Transportation Regulations. McCon wishes to argue that the defendants violated the following provisions of the FMCSR:
• 49 C.F.R. §§ 392.3 — Driving while Fatigued
• 49 C.F.R. § 391.11[b][1] — Driver Qualifications
• 49 C.F.R. § 391.41(a) — A driver is prohibited from operating a commercial motor vehicle unless physically qualified to do so.
• 49 C.F.R. §§ 392.7, 392.8, 392.9 — The driver has a duty to inspect and ensure that the commercial motor vehicle’s equipment is in good working order, that required emergency equipment is in place, and that the load is secured.
• 49 C.F.R. §§ 395.3, 395.8 — driver hours of service and logbook [*9] violations
(McCon’s Proposed Am. Compl. 3, ECF No. 119-1.)1 Section 383.111 provides, “All CMV operators must have knowledge of the following general areas: . . . (7) Visual search. . . . (9) Speed management. . . . (10) Space management. . . . (13) Hazard perceptions. . . .” 49 C.F.R. § 383.111. As the Court has previously explained, “Other district courts have held that Section 383.111, the FMCSR regulation relied on . . . , ‘addresses 20 points of knowledge on which state agencies must train and test operators of commercial motor vehicles. It does not provide the applicable standard of care . . . .’ Roberts v. Sunbelt Rentals, Inc., No. 5:14cv00040, 2016 U.S. Dist. LEXIS 41897, 2016 WL 1259414, at *13 (W.D. Va. Mar. 30, 2016); see also Claybrook v. Time Definite Servs. Transp., LLC, 2016 U.S. Dist. LEXIS 95308, at *3, No. 2016 WL 3963025, at *3 (N.D. Tex. July 21, 2016) (holding that Section 383.111 does not ‘prescribe a standard of conduct.’).” (Mem. Op. & Order 4-5, ECF No. 321.) The FMCSR regulation providing the qualifications for obtaining certification is irrelevant to the jury’s determination of whether Perez was negligent and would likely cause confusion for the jury. The other FMCSR provisions cited by McCon are likewise irrelevant based on the record, as there is no evidence that Perez suffered from fatigue, that the accident was caused by problems with the tractor-trailer’s equipment, or that Perez committed logbook violations. Neither McCon nor the other [*10] plaintiffs have expressed any interest in citing Department of Transportation regulations in the presence of the jury. Therefore, the defendants’ Motion in Limine is granted. If, however, evidence or testimony is presented at trial that causes these regulations to become relevant, the plaintiffs must notify the Court outside the presence of the jury.

IV. Defendants’ Motion in Limine to Limit Medical Bills and Non-Economic Damages
The defendants argue that the plaintiffs should not be permitted to present medical bills at trial that exceed those that have previously been presented to the defendants. The plaintiffs assert that they do not wish to present bills that exceed those previously submitted to the defendants.
The defendants also argue that the Court should prohibit the plaintiffs from asking the jury for a specified amount of non-economic damages at trial, because they have not provided a computation to the defendants. Fed. R. Civ. P. 26(a)(1)(A)(iii) requires the parties to disclose a computation of each category of damages claimed “without awaiting a discovery request.” The defendants did not follow the proper procedure of filing a motion to compel, and the defendants’ request is not the proper subject of a [*11] motion in limine. See Uniform Local Rule 26(a)(3); see also Caldwell, 2012 WL 1712377 at *1-2 (denying a motion in limine asserting a failure to disclose computation of damages for first time). The defendants Motion must be denied, but the plaintiffs are ordered to provide a computation of damages to the defendants’ within five days of the date of this Order.

V. Defendants’ Motion in Limine Precluding Evidence Relative to Property Damage to Williams’ Vehicle
The defendants claim that Williams has not presented any admissible evidence to support his claim for property damage and towing and expenses related to his vehicle. Williams counters that he has produced all of the information he has regarding his vehicle. The defendants ask the Court to prevent Williams from offering evidence or presenting argument regarding the property damage to his vehicle. The defendants’ Motion is denied, but the defendants will be permitted to present contemporaneous objections to evidence or testimony presented at trial.
IT IS, THEREFORE, ORDERED AND ADJUDGED that [330] Motion in Limine to Preclude Documents Not Produced in Discovery is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that [332] Motion in Limine to Preclude Reference to Defendants Not Personally [*12] Appearing at Trial and Mentioning the Existence of Insurance is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [334] Motion in Limine to Preclude Prejudicial Evidence and Dismissed Claims is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [336] Motion in Limine to Limit Medical Bills and Non-Economic Damages is DENIED. However, the plaintiffs are ordered to provide a computation of damages to the defendants within five days of the date of this Order.
IT IS, FURTHER, ORDERED AND ADJUDGED that the [338] Motion in Limine Precluding Evidence Relative to Property Damage to Williams’ Vehicle is DENIED. The defendants will be permitted to make contemporaneous objections at trial.
SO ORDERED AND ADJUDGED this the 20th day of August, 2018.
/s/ Louis Guirola, Jr.
Louis Guirola, Jr.
United States District Judge

Neutral As of: August 24, 2018 1:17 PM Z
McCon v. Perez
United States District Court for the Southern District of Mississippi, Southern Division
August 16, 2018, Decided; August 16, 2018, Filed
CAUSE NO. 1:17cv77-LG-RHW

Reporter
2018 U.S. Dist. LEXIS 138597 *
JAMETRIUS MCCON, LARRY HENDERSON, LAMARIO HENDERSON, and DARYL D. WILLIAMS, PLAINTIFFS v. ADOLFO PEREZ and D&D EXPRESS TRANSPORT, DEFENDANTS AND D&D EXPRESS TRANSPORT, COUNTER-PLAINTIFF v. DARYL D. WILLIAMS, COUNTER-DEFENDANT
Subsequent History: Motion granted by, in part, Motion denied by, in part McCon v. Perez, 2018 U.S. Dist. LEXIS 140444 (S.D. Miss., Aug. 20, 2018)
Motion granted by, Motion denied by McCon v. Perez, 2018 U.S. Dist. LEXIS 140449 (S.D. Miss., Aug. 20, 2018)

ORDER GRANTING IN PART AND DENYING IN PART MCCON’S MOTION TO RECONSIDER
BEFORE THE COURT is the [326] Motion to Reconsider filed by the plaintiff Jametrius McCon. The parties have fully briefed the Motion. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the Motion to Reconsider should be granted to the extent that the Court’s [325] Memorandum Opinion and Order is amended to provide that the defendants’ [220] Motion to Exclude McCon’s Actor-Experts is denied as to the opinions of Dr. Chris Wiggins.

BACKGROUND
This lawsuit arose out of a motor vehicle accident involving a tractor trailer driven by D&D Express Transport employee Adolfo Perez and a car driven by the plaintiff Daryl D. Williams. The plaintiffs McCon, Larry Henderson, and Lamario Henderson were passengers in Williams’ vehicle. The Court entered opinions concerning the numerous motions filed by the parties in this case. McCon now seeks reconsideration of some of the Court’s rulings.

DISCUSSION
Since the orders that McCon contests are interlocutory in nature, McCon’s Motion [*3] is governed by Fed. R. Civ. P. 54(b), which provides that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties . . . may be revised at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.” Therefore, the Court can reconsider and amend the opinions at issue “for any reason it deems sufficient.” See United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013).

I. GROSS NEGLIGENCE AND PUNITIVE DAMAGES
McCon first seeks reconsideration of this Court’s dismissal of McCon’s gross negligence and punitive damages claims in its [319] Memorandum Opinion and Order Granting Partial Summary Judgment. McCon argues that the Court erred in finding that the failure of D&D Express to train Perez concerning safe-driving practices constituted simple negligence, at most. McCon claims that employers are required to train their employees regarding all applicable Federal Motor Carrier Safety Regulations (FMCSR). As D&D Express previously explained in its reply in support of its Motion for Partial Summary Judgment,
[w]hen Perez began his employment with D&D Express, he met with Ms. Duran and she explained to him the safety details [*4] of the company. D&D Express did not provide further training because all new hires must have at least two years of driving experience. D&D Express gave Perez a road test when he was hired. At the time of his deposition, Perez had been driving commercial motor vehicles for over 27 years. Perez had only been working for D&D Express for about two months at the time the collision occurred. Thus, there is nothing in the admissible evidence that demonstrates Perez was not properly trained or lacked sufficient training at the time of the accident.
(Defs.’ Reply 7, ECF No. 300.)
McCon’s claim is based on the assertion that D&D Express should have given Perez additional training in the requirements of FMCSR § 383.111, which “addresses 20 points of knowledge on which state agencies must train and test operators of commercial motor vehicles.” Roberts v. Sunbelt Rentals, Inc., No. 5:14cv00040, 2016 U.S. Dist. LEXIS 41897, 2016 WL 1259414, at *13 (W.D. Va. Mar. 30, 2016).1 As a result, Perez was previously required to demonstrate knowledge of the very areas cited by McCon when he obtained his CDL license.
“Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to [*5] avoid them.” McDonald v. Lemon-Mohler Ins. Agency, LLC, 183 So. 3d 118, 126 Miss. Ct. App. 2015). “Punitive damages are generally only allowed ‘where the facts are highly unusual and the cases extreme.’ Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017 U.S. Dist. LEXIS 102702, 2017 WL 2843613, at *2 (S.D. Miss. July 3, 2017) (quoting Wise v. Valley Bank, 861 So. 2d 1029, 1035 (Miss. 2003)). “[S]imple negligence is not of itself evidence sufficient to support punitive damages, but accompanying facts and circumstances may be used to show that that portion of defendant’s conduct which constituted proximate cause of the accident was willful and wanton or grossly negligent.” Id. (quoting Choctaw Maid Farms v. Hailey, 822 So. 2d 911, 924 (Miss. 2002)). McCon’s assertion that the failure of D&D Express to provide additional training to Perez constitutes gross negligence or warrants consideration of punitive damages is without merit.

II. SPOLIATION
McCon next seeks reconsideration of this Court’s determination that he is not entitled to present evidence of spoliation and a spoliation instruction to the jury at trial. McCon’s request for reconsideration centers around the defendants’ loss of Perez’s log book. McCon claims that the Court improperly weighed the evidence when it held that “there is no evidence that either of the defendants destroyed the logbook in bad faith; the testimony merely indicates that the defendants do not know what happened [*6] to the logbook.” (Mem. Op. & Order 5, ECF No. 323.) McCon relies on the testimony of Carlos Laguna, the other D&D Express driver who was in the tractor trailer at the time of the accident. Laguna testified that he and Perez turned their logbooks in to D&D Express’s corporate representative, but the corporate representative testified that she had never had possession of the logbook. This testimony, although contradictory, does not constitute evidence that the logbook was destroyed in bad faith. Therefore, McCon’s request for reconsideration must be denied.

III. EXPERT TESTIMONY OF DR. CHRIS WIGGINS
McCon argues that the Court misunderstood McCon’s position regarding the defendants’ Motion to Exclude the opinions of his treating physician, Dr. Chris Wiggins. It appeared that McCon was stating that all of Dr. Wiggins’ opinions were contained in his medical records, with the exception of one opinion that McCon agreed not to proffer at trial. As a result, the Court held that the defendants’ Motion was moot. McCon now states that he intends to offer opinions from Dr. Wiggins that are not contained in Dr. Wiggins’ records, and he seeks reconsideration of the Court’s holding that Dr. Wiggins [*7] will not be permitted to provide opinions that exceed the scope of his medical records. McCon claims that limiting Dr. Wiggin’s opinions to the substance of the medical records would constitute a manifest injustice.
“[I]f a treating physician’s expected testimony — whether fact or opinion — is not in the medical records from his or her treatment of the plaintiff, the plaintiff is required to produce an expert report in compliance with Rule 26(a)(2)(B).” Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017 U.S. Dist. LEXIS 104182, 2017 WL 2903253, at *1 (S.D. Miss. July 6, 2017). This Court has previously explained:
Both the Federal Rule and the Uniform Local Rule require that the disclosures of the required information of expert witnesses be made through a written report signed by the witness. Thus, the best practice is for the attorney to comply with the rules explicitly and submit to the other party a “written report prepared and signed by the witness.” However, recognizing the difficulty of obtaining such report from some physicians and the expense thereof, the court may allow, in some instances, for the office records of the calling party’s treating physician to be submitted in lieu of a written and signed report. In such instances, the treating physician will be limited at trial [*8] to testifying only to those opinions expressed in the office records. Thus, if the attorney wishes to elicit from the treating physician an opinion not set forth in the physician’s office records, he should submit a written report signed by the treating physician as required by the rules or suffer the consequence of having an objection to that opinion sustained at trial.
Robbins v. Ryan’s Family Steak Houses E., Inc., 223 F.R.D. 448, 453 (S.D. Miss. 2004).
McCon cites cases from other districts and one opinion from this district in support of his request that the Court broaden the permissible testimony of treating physicians to opinions based on knowledge acquired during the course and scope of treatment. See, e.g., Wallace v. Allstate, No. 1:08cv1460-HSO-JMR, 2010 U.S. Dist. LEXIS 7235, 2010 WL 200001, at *8 (S.D. Miss. Jan. 14, 2010). McCon has explained that he had difficulty locating Dr. Wiggins and obtaining his opinions, because Dr. Wiggins had retired before this lawsuit was filed. McCon also argues that the defendants have not suffered prejudice, because all of Dr. Wiggins’ opinions were disclosed during his deposition on February 25, 2018. Meanwhile, McCon claims that Dr. Wiggins’ testimony is crucial to his case.
Attorneys and litigants should comply with the requirements and recommendations set forth in Robbins fourteen years ago. The Court [*9] is particularly concerned that, if treating physicians are permitted to provide opinions that are not reflected in their medical records, the opposing party may have difficulty determining which opinions the treating physician will give at trial. McCon’s designation of Dr. Wiggins was particularly confusing, because it stated that Dr. Wiggins’ opinions were included in the medical records. Nevertheless, since the defendants were provided with notice of Dr. Wiggins’ opinions in the present case, Dr. Wiggins’ testimony is very important to McCon’s case, and McCon had difficulty locating Dr. Wiggins, the Court finds that the following opinions given by Dr. Wiggins’ opinions will be admissible at trial (1) opinions that are based on knowledge acquired during the course and scope of his treatment of McCon, and (2) opinions that were disclosed during Dr. Wiggins’ deposition. This holding is limited to the facts and circumstances of the present case. The Court finds that McCon’s Motion to Reconsider should be granted only to the extent that the Court’s [325] Memorandum Opinion and Order is amended to provide that the defendants’ [220] Motion to Exclude McCon’s Actor-Experts is denied as to [*10] the opinions of Dr. Chris Wiggins.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the [326] Motion to Reconsider filed by the plaintiff Jametrius McCon is GRANTED IN PART AND DENIED IN PART.
SO ORDERED AND ADJUDGED this the 16th day of August, 2018.
/s/ Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE