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Bits & Pieces

Sanders v. Sky Transport

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2021 WL 5088887

United States District Court, E.D. Texas.
JASON M. SANDERS and RODNEY SAULS, SR., Plaintiffs,
v.
SKY TRANSPORT, LLC, and SAID NOOR BARROW, Defendants.
CIVIL ACTION NO.1:20-CV-203
|
11/01/2021

MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER
*1 Pending before the court is Defendants Sky Transport, LLC (“Sky Transport”) and Said Noor Barrow’s (“Barrow”) (collectively, “Defendants”) Motion to Exclude Officer Michael Trevor Whatley’s Texas Peace Officer’s Report from Evidence (#36). Plaintiffs Jason Sanders and Rodney Sauls, Sr. (“Plaintiffs”), filed a response (#44). Having considered the pending motion, the submissions of the parties, and the applicable law, the court is of the opinion that the motion should be granted in part and denied in part, as follows.

I. Background
This lawsuit arises out of a motor vehicle accident between two commercial motor vehicles (tractor-trailer rigs) that occurred during the early morning hours of September 19, 2019. At the time of the incident, Plaintiffs were team drivers for U.S. Cryo Carriers, Inc. Sauls was driving, and Sanders was asleep in the sleeping compartment of a U.S. Cryo Carriers, Inc., truck. The other vehicle was driven by Defendant Barrow, the sole owner of Sky Transport. Both vehicles were southbound on U.S. Highway 59 near Shepherd, Texas. Plaintiffs’ truck encountered standing water, which splashed onto Barrow’s windshield. As a result, Barrow felt his truck hydroplane to the right, causing it to clip the driver’s side mirror of Plaintiffs’ truck. Barrow’s vehicle continued into the right lane after the impact and came to a stop on the right side of the road in high water. Plaintiffs’ vehicle slowed and pulled into a nearby gas station.

Trooper Michael Trevor Whatley (“Whatley”) arrived at the scene about an hour later. It is undisputed that he was not present when the incident occurred and that he did not observe the accident. Defendants assert that Whatley spoke to each driver at the scene and subsequently wrote his report based on the drivers’ statements. The report, however, does not contain specific statements attributed to any party to the lawsuit. Barrow was issued a traffic citation for unsafe speed, which was later dismissed.

In the instant motion, Defendants seek to exclude the admission of Whatley’s report as inadmissible hearsay. Specifically, they assert that it constitutes hearsay within hearsay because the information contained therein is based on statements made to Whatley by Plaintiffs and Barrow at the scene. Defendants further contend that the report is untrustworthy because “it contains unsupported conclusions” and because Whatley’s “opinion is a mere guess as to how he thinks the accident occurred.” Plaintiffs counter that the report is admissible under the hearsay exception for a statement of a party opponent, Federal Rule of Evidence 801(2), to the extent that it relies on statements made by Barrow.

II. Analysis
Under the Federal Rules of Evidence, hearsay, defined as any statement not made by a person while testifying in the current trial or hearing and that is offered to prove the truth of the matter asserted, is inadmissible. FED. R. EVID. 801(c), 802. The exception in Federal Rule of Evidence 803(8), however, provides that a record or statement is admissible if it sets out “factual findings from a legally authorized investigation” and “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.” FED. R. EVID. 803(8); United States v. Noria, 945 F.3d 847, 852 (5th Cir. 2019).

*2 Police reports are generally admissible under Rule 803(8) as public records that set forth factual findings from a legally authorized investigation. Bedford Internet Off. Space v. Travelers Ins. Casualty Co., 41 F. Supp. 3d 535, 544 (N.D. Tex. 2014); accord Robert v. Maurice, No. 18-11632, 2020 WL 4043097, at *6 (E.D. La. July, 17, 2020); Ochoa v. Progressive Pipeling Construction, L.L.C., No. SA-13-CV-00122-FB, 2014 WL 12873124, at *2 (W.D. Tex. Sept. 12, 2014). “Certain information in a police report, however, such as witness statements offered to prove the truth of the matter asserted, are ‘hearsay within hearsay’ and are inadmissible unless each level of hearsay qualifies under one of the hearsay exceptions.” Bedford Internet Off. Space, 41 F. Supp. 3d at 544 (citing Reliastar Life Ins. Co. v. Thompson, No. M-07-140, 2008 WL 4327259, at *4 (S.D. Tex. Sept. 16, 2008)); see FED. R. EVID. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”). Public records, including police reports, “are presumed to be trustworthy and admissible; therefore, it is the burden of the party opposing admission to demonstrate a lack of trustworthiness.” Bedford Internet Off. Space, 41 F. Supp. 3d at 544; Ochoa, 2014 WL 12873124, at *2. “The trustworthiness of a report admitted under [Rule 803(8)] depends on whether the report was compiled or prepared in a way that indicates that its conclusions can be relied upon.” Bedford Internet Off. Space, 41 F. Supp. 3d at 544 (citing Moss v. Ole South Real Estate, Inc., 933 F.3d 1300, 1305 (5th Cir. 1991)).

Portions of police reports “that reflect the officers’ first-hand observations based on their investigations and experience are admissible.” Bedford Internet Off. Space, 41 F. Supp. 3d at 544; see Robert, 2020 WL 4043097, at *6; Reliastar Life Ins. Co., 2008 WL 4327259, at *4. Information not based on the reporting officer’s personal knowledge, however, constitutes hearsay within hearsay and does not fall under the Rule 803(8) hearsay exception. Ochoa, 2014 WL 12873124, at *2; see Automatique New Orleans, Inc. v. U-Select-It, Inc., No. 94-3179, 1995 WL 569226, at *3 (E.D. La. Sept. 25, 1995) (holding a police report was inadmissible because the officer who wrote the report “did not observe anything but merely recorded the observations of another person.”); FED. R. EVID. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). “[T]he Fifth Circuit has consistently excluded the portions of police reports that contained the officer’s opinions and conclusions.” Meyer v. Jencks, 513 F. Supp. 3d 706, 709 (E.D. La. 2021); Fox v. Nu Line Transport, LLC, 2020 WL 1536531, at *2 (W.D. La. Mar. 32, 2020); see Robert, 2020 WL 4043097, at *6 (“[P]ortions of [a] police report…referencing fault should be redacted [when a police officer] is not testifying as an expert witness.”).

Here, portions of the information in Whatley’s report, namely, the description and diagram of how the accident occurred, are based on statements made to him by Plaintiffs and Barrow. These portions contain descriptions of events that Whatley did not personally observe and that were relayed to him post-accident. It is apparent that Whatley merely recorded his interpretation of Barrow’s and Plaintiffs’ descriptions of the incident. Thus, the accident description and diagram are not admissible to the extent that Whatley lacked personal knowledge of the event. Whatley’s first-hand observations contained in the report, however, are admissible. Further, as the police report does not contain specific statements made by any party to the lawsuit, the court rejects Plaintiffs’ argument that the report is admissible under Federal Rule of Evidence 801(2)’s hearsay exception for a statement by a party opponent.

*3 Furthermore, Whatley’s report contains information regarding the identity of the parties’ liability insurers. Federal Rule of Evidence 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. 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.
FED. R. EVID. 411; Johnson v. Lopez-Garcia, No. 20-2024, 2021 WL 3630109, at *1 (E.D. La. Aug. 17, 2021); Dempster v. Lamorak Ins. Co., No. 20-95, 2020 WL 5659546, at *2 (E.D. La. Sept. 21, 2020). Here, Defendants admit that Barrow was operating his truck in the course and scope of his employment by Sky Transport and that Sky Transport is vicariously liable for the conduct of Barrow. Thus, evidence of liability insurance is not necessary to prove agency, ownership, or control. There is also nothing to indicate that such evidence is necessary to prove bias or prejudice in this case. Moreover, the admission of evidence of liability insurance would violate the court’s ruling on Plaintiffs’ and Defendants’ 1st Motions in Limine, both of which the court has granted. Therefore, the portions of the report indicating that the parties were insured at the time of the accident are inadmissible.

Whatley’s report also contains a reference to the traffic citation Barrow received in connection with the accident. In federal court, evidence that one party to an automobile accident was issued a traffic citation or paid a fine pursuant to a traffic ticket is inadmissible if the party pleaded no contest to the citation or it was dismissed. FED. R. EVID. 410 (stating that a nolo contendere plea is not admissible against the party who made the plea in a civil case); Meyer, 513 F. Supp. 3d at 708; Robert, 2020 WL 4043097, at *6; Bergeron v. Great W. Cas. Co., No. 14-13, 2015 WL 3505091, at *4 (E.D. La. June 3, 2015) (stating that federal courts “[a]ll agree that evidence of a traffic citation is only admissible if the defendant pleaded guilty to the citation.”); Rhodes v. Curtis, No. 04-476-P, 2006 WL 1047021, at *2 (E.D. Okla. Apr. 12, 2006) (“Evidence of traffic citations is only admissible in a subsequent civil proceeding if the defendant voluntarily and knowingly entered a plea of guilty.”); see Hillyer v. David Phillips Trucking Co., 606 F.2d 619, 620 (5th Cir. 1979) (“Defendants concede that the [traffic] ticket was only admissible if [the defendant] made an admission against interest acknowledging that she was guilty of the charge.) Here, there is no indication that Barrow pleaded guilty to the citation. Indeed, the citation was dismissed. Therefore, evidence of the traffic citation is inadmissible.

In sum, the court concludes that Whatley’s report is admissible, but only to the extent that it is based on Whatley’s personal observations, and that the portions based on the statements of others, referencing the parties’ insurance coverage, and mentioning Barrow’s citation are redacted.

III. Conclusion
Consistent with the foregoing analysis, Defendants’ Motion to Exclude Officer Michael Trevor Whatley’s Texas Peace Officer’s Report from Evidence (#36) is granted in part and denied in part. Plaintiffs are ordered to redact the report consistent with the version attached hereto as Exhibit A.

*4 SIGNED at Beaumont, Texas, this 1st day of November, 2021.

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MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

EXHIBIT A

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All Citations
Slip Copy, 2021 WL 5088887

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