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Rosado-Martinez v. Jackson

United States District Court, W.D. Michigan, Southern Division

June 13, 2017

PAUL N. JACKSON, et al., Defendants.


          Paul L. Maloney United States District Judge

         This is a diversity action arising from an automobile accident. In January 2015, Plaintiff Christopher Rosado-Martinez was driving east on I-94 near Battle Creek, Michigan, when a semi tractor-trailer on the westbound side of the highway crossed the median and struck Plaintiff's car. Defendant Success Leasing, Inc. owned the tractor-trailer, and Defendant Paul Jackson drove the tractor-trailer as an employee of Defendant New Prime, Inc. Plaintiff suffered injuries from the accident and brought this action against Defendants, alleging negligence and negligent entrustment. Plaintiff's wife, Jami Rosado, seeks damages due to loss of consortium. Before the Court are four motions in limine filed by Defendants (ECF Nos. 32, 34, 36, 41).

         A. Motion in Limine: Jackson's Driving Record (ECF No. 32)

         In their first motion in limine, Defendants seek to exclude “all testimony, argument, presentation, or other suggestions by Plaintiff pertaining to prior traffic tickets, prior accidents, reprimands, [and] driving records” of Defendant Jackson, citing Rules 401, 403, 404(b) of the Federal Rules of Evidence. (Mot. in Limine, ECF No. 32.) In February 2014, Jackson was making a u-turn when the trailer hit a pole because the road gave way.[1] (Jackson Dep. 16, 24, ECF No. 32-2.) On another occasion, he was given a speeding ticket for going too fast in a construction zone. (Id. at 23.)

         Defendants claim that these records are not relevant, and their probative value, if any, is substantially outweighed by the risk of unfair prejudice. Defendants also assert that Plaintiffs intend to use evidence of Jackson's prior bad acts in order to demonstrate Jackson's character, and to demonstrate that he acted in accordance with that character on the date of the accident, which is prohibited by Rule 404(b). The Court disagrees. One of Plaintiffs' claims is negligent entrustment, i.e., that Defendants New Prime and Success Leasing were negligent in entrusting Jackson with the tractor-trailer because they knew, or should have known, based on his driving record, that he was not competent to drive the tractor-trailer. See Allstate Ins. Co. v. Freeman, 408 N.W.2d 153, 157 (Mich. Ct. App. 1987) (describing negligent entrustment as having two elements: “First, the entrustor is negligent in entrusting the instrumentality to the entrustee. Second, the entrustee must negligently or recklessly misuse the instrumentality.”); see also Zokas v. Friend, 351 N.W.2d 859, 861 (Mich. Ct. App. 1984) (“[A]n owner or lender who entrusts a person with a dangerous instrumentality may be held liable to a third party who is injured by the negligent act of the entrustee, where the owner or lender knew, or could have reasonably been expected to know, that the person entrusted was incompetent.”); Best v. Dante Gentilini Trucking, Inc., 778 F.Supp. 360, 366 (E.D. Mich. 1991) (citing Moning v. Alfono, 254 N.W.2d 759 (Mich. 1977)) (noting that, to prevail under a theory of negligent entrustment, a plaintiff must establish that a defendant “knew or should have known of hte unreasonable risk propensities of the entrustee”); Youngberg v. McKeough, 534 F.App'x 471, 477 (6th Cir. 2013) (“To make out a claim for either negligent supervision or negligent entrustment under Michigan law, [Plaintiff] must have submitted evidence to show that [Defendants] could have or should have foreseen that [the driver] was likely to injure someone while driving the MasterCraft.”). Jackson's driving record is relevant to this claim, and its relevance is not substantially outweighed by the risk of unfair prejudice.

         If Plaintiffs were asserting only a claim against Jackson, then Jackson's driving record would likely be barred by Rule 404(b).[2] In this case, however, the evidence is admissible because it is essential to prove the negligent-entrustment claim. See Woodson v. Porter Brown Limestone Co., Inc., 916 S.W.2d 896, 908 (Tenn. 1996) (admitting evidence of defendant's poor driving record; though prejudicial, the evidence was essential to proving negligent entrustment); Fed.R.Evid. 405(b) (permitting evidence of specific instances of conduct to prove character or a character trait, where the character or character trait is “an essential element of a charge, claim, or defense”); see also Advisory Committee Notes to Rule 404(b), 1972 Proposed Rules, Note to Subdivision (a) (noting that character is truly “in issue, ” and Rule 404(b) does not apply, to a claim regarding the “competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver”).

         On the other hand, a single speeding ticket and one accident in which the trailer struck a pole is not very strong evidence of incompetence.[3] But for the same reason, the prejudicial value is low. The jury can fairly weigh this evidence and give it the appropriate weight when determining whether New Prime or Success Leasing negligently entrusted the tractor-trailer to an incompetent driver. Of course this evidence is somewhat prejudicial, but the probative value of the evidence is not significantly outweighed by the risk of unfair prejudice under Rule 403.

         In a reply in support of their motion (ECF No. 70), Defendants offer new evidence of Jackson's driving record and assert that Jackson does not, in fact, have a poor driving record. Defendants acknowledge that Jackson had one speeding ticket and was involved in one accident prior to January 2015, during the course of over a year's time working for Defendants. In addition, Plaintiffs note that Defendant Jackson's driving record from the State of New York, his state of residence, shows no violations other than the ticket he received in connection with the accident in this case. Defendants contend that there is no evidence supporting Plaintiffs' claim that Defendants should have foreseen that Jackson would negligently drive his vehicle on the date of the accident.

         Through their reply, Defendants are effectively asking the Court to weigh the evidence and make a finding as to whether Jackson has a poor driving record. A motion in limine is not the proper means to seek this relief. Accordingly, for the foregoing reasons, Defendants' motion is denied.

         B. Motion in Limine: Future Pain and Suffering (ECF No. 34)

         Defendants seek to exclude all evidence or suggestion that Rosado-Martinez will have future pain, suffering, weakness, or adverse consequences as a result of his ankle fracture, which was repaired by orthopedic surgeon Dr. Gorman. Defendants believe that Plaintiffs will argue that future pain and suffering should include the risk/likelihood that Rosado-Martinez will develop post-traumatic arthritis[4] in his ankle. Defendants contend that Plaintiffs do not have adequate, reliable evidence of this possibility. A deposition of Dr. Gorman was scheduled after the date that the motion in limine was filed, but Defendants “anticipate” that Dr. Gorman will not provide sufficient, reliable data about future problems with Plaintiff's ankle. Defendants acknowledge that bone fractures can sometimes lead to future problems, including arthritis, but contend that post-traumatic arthritis is not likely to occur because “general medical sources” indicate that “arthritis or future problems from fractures occur only in about 12% of all fractures of the hip, knee and ankle, ” according to an article from the Cleveland Clinic. There are two issues raised by Defendants' objections: (1) the admissibility of any evidence related to future pain and suffering, and (2) the admissibility of evidence related to the possibility that Plaintiff will develop post-traumatic arthritis.

         As to the evidence concerning future pain and suffering generally, testimony regarding Plaintiff's current medical treatment or condition may be adequate to permit the jury to consider future pain and suffering as a category of damages. See Shinaburger v. Phillips, 121 N.W.2d 693, 696 (Mich. 1963) (holding that jury could consider damages for future pain and suffering where the plaintiff testified that he was still suffering pain over a year after an assault, and a doctor testified that the plaintiff was still coming to him for treatment, even though there was no medical testimony that future pain and suffering would occur). Plaintiffs have provided medical records indicating that Rosado-Martinez continues to be treated for pain in his ankle that occasionally radiates up his leg. On March 6, 2017, he met with Dr. Gorman because of this pain, and Dr. Gorman referred him to Dr. Vanhuysen. (ECF No. 66-2, PageID.530.) On March 29, Rosado-Martinez met with Dr. Vanhuysen, who diagnosed him with “[c]losed left ankle fracture, sequela, Peroneal tendinitis of left lower extremity.” (ECF No. 66-3, PageID.532). If Plaintiff is still suffering pain from his injury over two years after the car accident, the jury can reasonably infer that this pain will continue in the future.

         As to the evidence on post-traumatic arthritis, Defendants have misinterpreted the Cleveland Clinic article. It states that “[p]ost-traumatic arthritis causes 12% of osteoarthritis of the hip, knee, and ankle.” (Ex. B, ECF No. 34-3, PageID.183.) It does not indicate what percentage of fractures lead to post-traumatic arthritis. (Id.) Thus, it does not support Defendants' argument that testimony about the risk of post-traumatic arthritis is per se too speculative and unreliable to support a claim for damages. Indeed, at least one court in Michigan has permitted testimony from a treating physician that the plaintiff is likely to develop posttraumatic arthritis in the future, and it held that such testimony can support an award for future damages. See Rupersburg v. Etkin Skanska Constr. Co. of Mich., 2006 WL 3458177, at *4 (Mich. Ct. App. Nov. 30, 2006). Thus, Defendants' motion is denied.

         C. Motion in Limine: Effectiveness of Ice Melting Products & Jackson's ...

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