United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
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).
Motion in Limine: Jackson's Driving Record (ECF No.
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. (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.)
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.
Plaintiffs were asserting only a claim against Jackson, then
Jackson's driving record would likely be barred by Rule
404(b). 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”).
other hand, a single speeding ticket and one accident in
which the trailer struck a pole is not very strong evidence
of incompetence. 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.
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.
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.
Motion in Limine: Future Pain and Suffering (ECF No.
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 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.
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.
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.
Motion in Limine: Effectiveness of Ice Melting Products &