United States District Court, E.D. Louisiana
TONJA WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, NOAH JACKSON
NATIONAL INTERSTATE INSURANCE CO., ET AL.
ORDER AND REASONS
E. FALLON UNITED STATES DISTRICT JUDGE.
the Court are several motions in limine filed by
Plaintiff Tonja Wright and Defendants Terry Tearle Poole,
Mabe Trucking Company, Inc. and National Interstate Insurance
Company. Having considered the parties' arguments,
submissions, and applicable law, the Court now issues this
Order and Reasons.
case arises out of an automobile accident. On September 9,
2015, Plaintiff Tonja Wright was operating her 2011 Ford
Escape in Tangipahoa Parish, Louisiana, when she was struck
by a 2015 Kenilworth trailer owned by Mabe Trucking Company
and operated by Terry Poole. Rec. Doc. 1-1 at 2. Wright also
brings this case on behalf of her minor son Noah Jackson, who
was travelling with her in the car at the time of the alleged
filed suit in state court on August 23, 2016, seeking damages
for past and future mental and physical pain and suffering,
property damage, loss of use of vehicle, depreciation, rental
expenses, medical expenses, loss of past earnings, loss of
future earning capacity, disability, scarring and
disfigurement, loss of consortium, penalties, and
attorneys' fees. Rec. Doc. 1-1 at 1, 4. Plaintiff claims
that the 2015 accident, the instant dispute, caused her to
need a cervical fusion at the C4-C6 levels, which was
performed on August 2, 2016. Rec. Doc. 23. Meanwhile,
Defendants assert that Plaintiff's alleged injuries and
damages resulted from a separate, intervening or superseding
event. See Rec. Doc. 23.
Motion in Limine to Exclude Defendants' Expert Ben
Smith (Rec. Doc. 46)
moves to exclude testimony and reports by Ben Smith, an
accident reconstruction expert, from Messerschmidt Safety
Consultants because Defendants have not produced the
expert's report. The Court's Scheduling Order
required parties to deliver such reports by August 3, 2017.
In response, Defendants argue that the delay was engineered
by Plaintiff, who repeatedly failed to provide photos and a
video from the accident. Rec. Doc. 53 at 2-4. Defendants had
served requests for production on January 3, 2017, and asked
for photographs and videos in connection with the accident.
However, Plaintiff did not deliver the photographs until
August 3, 2017 and the video until August 18, 2017.
See Rec. Doc. 53 at 3.
deciding whether to exclude evidence, the Court considers
four factors: (1) the party's explanation for its failure
to timely identify its witnesses and exhibits; (2) the
importance of the proposed evidence; (3) potential prejudice
in allowing the admission of the exhibits or testimony; and
(4) the availability of a continuance to cure such prejudice.
Serigne v. Preveau, No. 11-3160, 2013 WL 3863874, at
*1 (E.D. La. July 23, 2013) (citing Geiserman v.
MacDonald, 893 F.2d 787, 790-92 (5th Cir. 1990)). Here,
photographs and videos of the event are pertinent materials
to an accident reconstruction expert. Because Plaintiff did
not produce this information until after the deadline, this
Court accepts Defendants' justification in late
production of Smith's report, and finds the delay
excusable and harmless. Moreover, with the trial date now set
in March 2018, parties have sufficient time to review
Smith's report. Accordingly, Plaintiff's motion is
Motion for Sanctions Due to Spoliation of Evidence,
Adverse Inference and to Strike Defenses by
Defendants (Rec. Doc. 45)
requests an adverse inference regarding liability due to
Defendant Mabe's allege spoliation of video and picture
evidence of the accident. Rec. Doc. 45-1 at 3-4. Further,
Plaintiff requests sanctions and cost for Plaintiff's
litigation effort to prove liability. Id. During
discovery, Plaintiff requested information regarding whether
there were any photographs, videos, sketches, maps, or
diagrams pertaining to any fact or issue set forth in the
Complaint. See Rec. Doc. 45-1 at 2. In response to
Plaintiff's discovery requests, Defendants each responded
that they were not in possession of responsive information
regarding these requests other than the photos of
Plaintiff's car and the police report. Id. When
Mr. Poole was deposed, however, he indicated that, at the
time of the accident, his truck had a video camera pointing
at the driver and the road. Id. The parties dispute
whether the video captured the incident. According to
Defendant Mabe, while the cameras are always “on,
” they do not record unless a triggering event occurs.
Rec. Doc. 55 at 3. Further, Defendant explains there are
three events which trigger the cameras to capture video: (1)
a hard brake, (2) the vehicle leaning right or left and (3)
an impact. Id. Defendant contends that none of these
triggering moments existed because Poole alleges he was
stopped at a stop sign with his brake activated. See
Rec. Doc. 55 at 5.
Rule 37, a court may issue an order imposing an array of
sanctions if a party “fails to obey an order to provide
or permit discovery.” Fed. R. Civ. Proc. 37(b)(2)(A).
Here, where the alleged conduct occurred prior to the
commencement of litigation, federal law provides that a trial
court may exercise its discretion to impose sanctions on a
party responsible for the spoliation (i.e. intentional
destruction) of relevant evidence. Menges v. Cliffs
Drilling Company, No. 99-2159, 2000 WL 765082, at *1
(E.D. La. June 12, 2000); see also Rimkus Consulting
Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 612 (S.D.
Tex. 2010) (“Spoliation is the destruction or the
significant and meaningful alteration of evidence.”).
“Adverse inference ...