United States District Court,N.D. Mississippi,Western Division.

U.S. XPRESS, INC. and U.S. Xpress Leasing, Inc., Plaintiffs,

v.

AMERICAN FIELD SERVICE CORPORATION, Defendant.

Civil Action No. 3:07CV13-SA.

June 26, 2008.

ORDER ON PENDING MOTIONS

SHARION AYCOCK, District Judge.

American Field Service Corporation (“AFS”) was a contractor on a road construction project involving concrete punch-outs or excavations in the westbound lane of Highway 78. On April 13, 2005, around 8:30 p.m., David Ardrey, a tractor-trailer driver hauling pesticides for U.S. Xpress, was killed as a result of an accident occurring at or near AFS roadway construction.

U.S. Xpress filed this lawsuit against AFS for, inter alia, failure to warn of impending danger, failure to use proper traffic signals, and negligent construction. U.S. Xpress seeks damages in excess of $160,000, for property damage, loss of cargo, and damages incurred as a result of cleaning up the accident site.

The Court has before it seven pending motions between the parties in this case. A previous lawsuit was filed by Ardrey’s widow and wrongful death beneficiaries, in which several of the issues presented in the present case, were addressed or contemplated by the magistrate judge assigned to that matter.

That case, titled Christina K. Ardrey v. American Field Service Corporation, 1:06cv002-JAD, was filed on January 6, 2006, and was dismissed on April 18, 2007.

After considering the motions, responses, memoranda, and authorities, the Court makes the following findings:

(1) Plaintiffs’ first Motion in Limine to Exclude Reports & Opinions of Dr. Maria Rappai and Larry Parks [32]

Plaintiffs move this court to enter an order declaring the report or testimony of Dr. Maria Rappai and Larry Parks inadmissible during the trial on this matter.

Dr. Maria Rappai

Plaintiffs contend Dr. Rappai’s report and testimony is speculative, unreliable, irrelevant, and more prejudicial than probative. Dr. Rappai’s report contains a review of David Ardrey’s medical records and concludes that “[g]iven his degree of obstructive sleep apnea and his symptoms of fatigue and sleepiness, he would have been at high risk for motor vehicle accidents due to the fact that he had untreated sleep apnea.”Moreover, Dr. Rappai states that “all these factors resulted in, at a minimum, Mr. Ardrey being lethargic or drowsy, which negatively impacted his ability to maintain proper control of his truck, causing the truck to veer into the lane under construction.”

Plaintiffs argue that because Christina Ardrey, David Ardrey’s wife and the only other person in-cab during the accident, testified in her deposition that prior to the accident, David was alert and talkative, Dr. Rappai’s conclusion is unsupported by the evidence. Moreover, the Plaintiff asserts that Dr. Rappai’s opinions could supplant a jury’s independent exercise of common sense because of her qualification as an expert. Plaintiffs further assert that because there is no evidence that any of the prior medical conditions played a role in the accident which occurred on April 13, 2005, it would be improper for this court to admit Dr. Rappai’s report and testimony.

The Defendant counters that Dr. Rappai’s report and opinions about the cause of the accident are based directly upon her study and interpretation of medical history and the medical notations made by emergency and health care providers at the time of the accident. Defendant argues that her testimony would be helpful to the jury in understanding the potential cause of the accident.

Expert testimony is addressed by Federal Rule of Evidence 702. That rule provides,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

When confronted with the same question of admissibility as to Dr. Maria Rappai, Magistrate Judge Davis, in the earlier wrongful death lawsuit, granted in part and denied in part the Plaintiffs’ motion in limine to exclude Dr. Rappai’s findings. The magistrate determined that “Dr. Rappai may give opinions as to the general effects of the deceased’s medical condition, but she may not testify, or give opinions, about what occurred on the night of the accident in question.”

This Court agrees with Judge Davis’ conclusions. Dr. Rappai may testify based on her knowledge and review of David Ardrey’s medical records as to the possible effects of his medical conditions. However, Dr. Rappai may not testify as to any specific factual allegations unsupported by the evidence as to what happened on the night of the accident.

Larry Parks

The Plaintiffs also assert that Larry Parks’ testimony and report as an expert in Federal Motor   Carrier Safety Regulations and Driver Qualification should be precluded from trial. Larry Parks’ opinion notes that due to David Ardrey’s prior medical conditions, he should not have been issued a commercial driver’s license. Plaintiffs argue that evidence that someone is not qualified to possess a driver’s license does not constitute negligence. The cases cited by Plaintiffs establish that evidence of a lack of driver’s license is inadmissible for the purpose of proving lack of due care. Allen v. Blanks, 384 So.2d 63, 68 (Miss.1980). Therefore, Plaintiffs assert that Larry Parks’ testimony and report should be excluded from introduction at trial.

Defendant insists that Larry Parks’ testimony should be allowed because David Ardrey had a commercial driver’s license, not a regular driver’s license. Because the standards for obtaining and maintaining a commercial driver’s license are more stringent than a regular driver’s license, Defendant argues, case law related to regular driver’s licenses is irrelevant.

Here, it is uncontested that David Ardrey had a commercial driver’s license. To admit evidence that Mr. Ardrey may or may not have misrepresented his prior medical history in order to obtain that license is superfluous to the issue presented in this case. The court will not look behind an agency’s determination of fitness for a driver’s license. The court will not permit the introduction of Larry Parks’ testimony or opinions under Federal Rule of Evidence 403, as such evidence will cause undue delay and mislead the jury. Accordingly, Plaintiffs’ motion in limine as to the testimony and opinions of Larry Parks is granted.

(2) Motion to Strike Plaintiffs’ Motion in Limine to Exclude Reports and Opinions of Dr. Maria Rappai and Larry Parks [35]

By case management order dated April 30, 2007, Magistrate Judge Alexander established November 15, 2007, as the deadline for all dispositive motions to be filed in this case. Plaintiffs filed the above-mentioned Motion in Limine to Exclude the Expert Reports and Opinions of Dr. Maria Rappai and Larry Parks on November 29, 2007. Defendant asserts that because this motion was filed untimely, it should be struck from this court’s consideration.

By Order dated December 17, 2007, Magistrate Judge Alexander notes that “[t]hrough inadvertence an order extending the motions in limine deadline to November 29, 2007[,] was not docketed in this case.”Further, the magistrate judge extended the Defendant’s motions deadline by nine days as “plaintiffs’ counsel was aware that the deadline was extended, [but] that fact was not readily apparent to the defendant.”As such, this Motion to Strike is denied as Plaintiffs’ motion in limine was filed within the deadlines established by the magistrate judge assigned to this matter.

(3) Motion in Limine to Exclude Plaintiffs’ Duplicative Experts [26]

Defendant asks the court to exclude or strike one of Plaintiffs’ two experts and require the Plaintiffs to choose between using one or the other. Defendant contends that allowing Plaintiffs to offer the testimony of both experts would result in unfair prejudice, cumulative testimony, wasted time, and undue delay because both experts’ testimony concerns the same subject and reaches the same conclusions.

Plaintiffs designated both Dirk E. Smith, Ph.D., P.E., and V.O. “Dean” Tekell, Jr., P.E., P.T.O.E., as expert witnesses. While both experts agree that Defendant was negligent and both rely in part on the Manual on Uniform Traffic Control Devices (“MUTCD”), their opinions and conclusions are separate and different.

Dirk Smith’s findings and conclusions are centered around the reconstruction of the vehicle collision. He specifically used the police report, MUTCD, a traffic control research study conducted by Iowa State University, an inspection of the site, and the factual basis of a prior accident to develop his opinions. Smith concluded that Ardrey lost control of his vehicle when the right tires of his trailer entered the excavated sections of the roadway. Further, Smith determined that the temporary traffic control measures were insufficient to deter ingress into the closed lanes, and the placement of cones poorly delineated the edge of the lane. Smith also opined that the lighting conditions increased the driver’s dependence on the traffic barrels on the night of the accident.

Dean Tekell’s opinions highlight the construction project itself and note the requirements AFS had to comply with, including the lane closure requirements and traffic control plans. He relied on bid documents for the construction project, Mississippi Standard Specifications for Road and Bridge Construction, sheets for the highway concrete repair, and the Mississippi Department of Transportation “Roadside Safety and Traffic Control” Manual, to conclude that AFS should have modified the traffic control plan prior to Ardrey’s accident.

Plaintiffs’ introduction of these experts does not present a duplication of evidence problem. The experts’ testimony is sufficiently unique to avoid a danger of cumulative evidence or waste of the court’s time. Thus, Defendant’s Motion in Limine is denied.

(4) Plaintiffs’ Motion in Limine to Exclude Opinions of Jamie McDonald [33]

The Defendant has not designated Jamie McDonald, Mississippi Department of Transportation project engineer, as an expert in this matter. However, Plaintiffs assert that by affidavit, Jamie McDonald renders improper opinion testimony requiring technical or specialized knowledge.

Jamie McDonald claims by affidavit that he has personal knowledge of the accident involving David Ardrey which occurred in a construction zone. He further avers that American Field Service was the contractor on the project performing concrete punch-outs in the asphalt. McDonald then concludes that the traffic control plan was “designed, drafted and enforced by MDOT personnel in compliance with the MUTCD.”Moreover, the “traffic control in place met and exceeded the requirements called for in the construction project plans and specifications,” and “[a]ll traffic control signs and devices were in place and functioning.”McDonald further declares that Ardrey entered a lane that was closed to the traveling public prior to the accident.

Jamie McDonald’s affidavit does reach conclusions for which technical or specialized knowledge is required. However, McDonald also relies on his own personal knowledge of the facts in his testimony. As such, McDonald will be permitted to testify as to facts which are in his knowledge, but he may not offer opinion testimony requiring specialized or technical knowledge. Plaintiffs’ Motion in Limine as to Jamie McDonald is granted in part and denied in part.

(5) Defendant’s Motion in Limine to Exclude Evidence of Prior Accident [42]

Defendant asks the court to preclude from introduction at trial evidence of a prior accident involving a Federal Express truck at the same location hours earlier. Specifically, Defendant states that without an initial showing of substantial similarity outside the presence of the jury, Plaintiffs are prohibited from introducing any evidence concerning prior accidents at the construction site. Plaintiffs rebut that such evidence is admissible for the purpose of showing the existence of a dangerous condition and as evidence of Defendant’s notice of that dangerous condition.

The Defendant’s Motion in Limine to Exclude Evidence of Prior Accident is denied as being premature. The Plaintiffs will be permitted during the trial of this matter, outside the presence of the jury, to present admissible evidence of the similarities between these accidents. Defendant will then have the opportunity to rebut the same.

(6) Defendant’s Motion in Limine to Exclude Testimony Regarding the Length of the Closure [43]

Defendant asks the court to prohibit and exclude all references to the length of the work zone as being greater than two miles. Defendant argues that because Plaintiffs’ have confused the terminology of “work zone” and “lane closure,” evidence of the length of the closure is without merit and should be inadmissible. Plaintiffs rebut that throughout the Defendant’s witnesses depositions, no distinction was made between “lane closure” and “work zone,” thus, the Defendant’s motion should be denied.

A motion in limine is a “pretrial request that certain inadmissible evidence not be referred to or offered at trial.”BLACK’S LAW DICTIONARY 1038 (8th ed.2004). The Defendant has not offered any reason for testimony regarding the “work zone” and “lane closure” to be inadmissible. Thus, the motion in limine is denied.

(7) Defendant’s Motion in Limine to Exclude Opinion Testimony of Christina Ardrey related to David Ardrey’s Physical Condition at the Time of the Accident [44]

Defendant also seeks to exclude testimony they anticipate to be offered by Christina Ardrey indicating that David Ardrey was “alert” at the time of the accident. Specifically, the Defendant alleges that whether David Ardrey was sufficiently alert to drive a motor vehicle is not within the lay opinion of Christina Ardrey as she has no medical training and could not have known with any precision his true condition of sleep apnea. Further, the Defendant alleges that Dr. Maria Rappia’s testimony regarding David Ardrey’s level of alertness should be given greater weight than Christina Ardrey’s observations on the night of the accident.

Federal Rule of Evidence 701 concerns opinion testimony by lay witnesses and provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception for the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Christina Ardrey is the only living eyewitness to David Ardrey’s condition prior to the accident at issue here. Therefore, her anticipated testimony is of her own personal knowledge. As such, Defendant’s motion in limine to exclude this testimony regarding Christina Ardrey’s perception of David Ardrey’s condition at the time of the accident is denied.

Conclusion

Plaintiffs’ First Motion in Limine to Exclude Reports & Opinions of Dr. Maria Rappai and Larry Parks [32] is granted as to Larry Parks and denied as to Dr. Maria Rappai. Defendant’s Motion to Strike Plaintiffs’ Motion in Limine to Exclude Reports and Opinions of Dr. Maria Rappai and Larry Parks [35] is denied. Defendant’s Motion in Limine to Exclude Plaintiffs’ Duplicative Experts [26] is denied. Plaintiffs’ Motion in Limine to Exclude Opinions of Jamie McDonald [33] is granted in part and denied in part. Defendant’s Motion in Limine to Exclude Evidence of Prior Accident [42] is denied as premature. Defendant’s Motion in Limine to Exclude Testimony Regarding the Length of the Closure [43] is denied. Defendant’s Motion in Limine to Exclude Opinion Testimony of Christina Ardrey related to David Ardrey’s Physical Condition at the Time of the Accident [44] is denied.

SO ORDERED.