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Wright v. National Interstate Insurance Co.

United States District Court, E.D. Louisiana

September 12, 2017

TONJA WRIGHT, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, NOAH JACKSON
v.
NATIONAL INTERSTATE INSURANCE CO., ET AL.

         SECTION L (1)

          ORDER AND REASONS

          ELDON E. FALLON UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         This 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 accident.

         Plaintiff 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.

         II. DISCUSSION

         A. Plaintiff's Motions

         1. Motion in Limine to Exclude Defendants' Expert Ben Smith (Rec. Doc. 46)

         Plaintiff 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.

         In 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 DENIED.

         2. Motion for Sanctions Due to Spoliation of Evidence, Adverse Inference and to Strike Defenses by Defendants (Rec. Doc. 45)

         Plaintiff 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.

         Under 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 ...


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