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U.S. District Court
Where the defendants in a negligence suit involving an automobile accident have moved to exclude testimony from the plaintiffs’ accident reconstruction expert that the defendant driver’s use of a Bluetooth headset at the time of the accident may have contributed to his distraction while driving, that motion should be denied because the expert’s testimony is reliable and will be helpful to the jury.
“This case involves a June 2019 automobile accident between plaintiff Robert Bohmbach and defendant Henry Shivers, who was, at the time of the accident, driving a tractor trailer and employed by defendant PTG Logistics, LLC. Asserting claims of negligence, respondeat superior, negligent entrustment, and loss of consortium, Mr. Bohmbach and his wife, plaintiff Lisa Bohmbach, seek to recover damages that they allegedly suffered as a result of the accident. In advance of trial, the plaintiffs and defendants have collectively filed eighteen motions in limine. This memorandum and order will address fourteen of those motions. For the reasons that follow, three of the motions-the defendants’ motion to preclude references to insurance, the defendants’ motion to exclude evidence of Shivers’ 2005 criminal conviction, and the plaintiffs’ motion to exclude the report and addenda of the defendants’ medical expert-will be granted in whole or in part. The remaining eleven motions will be denied or reserved for trial. …
“The defendants move to preclude evidence about Shivers’ prior accidents and moving violations. They contend that such evidence is not relevant to his conduct on June 11, 2019, the date of the accident, and that its admission would be unfairly prejudicial pursuant to Federal Rules of Evidence 401 and 403. The plaintiffs counter, and the Court agrees, that this evidence is relevant to their negligent entrustment claim against PTG Logistics.
“… Shivers’ prior car accidents and moving violations are relevant to whether Shivers was ‘an incompetent or unfit person,’ and their admission would not be unduly prejudicial. … Because evidence of Shivers’ prior automobile accidents and moving violations is relevant and not unfairly prejudicial, the defendants’ motion to exclude that evidence will be denied. …
“The defendants move to preclude references to their insurance. … The plaintiffs oppose this motion only to the extent that it would bar them from admitting evidence of insurance if the defendants were to testify at trial that ‘they did not have the ability to pay a judgment against [them] or would need to declare bankruptcy if a judgment was rendered against them.’ … Accordingly, the defendants’ motion to preclude references to insurance will be granted, but the Court will revisit this issue if the defendants so testify, or if the plaintiffs raise another purpose under Rule 411 for admitting evidence about the defendants’ insurance. …
“The defendants move to preclude the introduction of a post-accident report that they prepared. They contend that this evidence is inadmissible under Federal Rule of Evidence 407’s prohibition against the admission of evidence of subsequent measures that, if taken beforehand, ‘would have made an earlier injury or harm less likely to occur.’ Fed.R.Evid. 407. The argument is unpersuasive. Generally, accident reports and investigations are not barred from admission by Rule 407. … When accident reports have been excluded, it has been because they contain information about remedial or disciplinary actions to be taken or warnings to be issued. … The accident report in this case, however, does not appear to contain any information beyond a description and diagram of the accident from Shivers’ perspective, so it does not qualify for exclusion under Rule 407. … Nor does the report contain information the probative value of which would, under Rule 403, be substantially outweighed by the danger of misleading the jury or unfair prejudice. Thus, the defendants’ motion will be denied. …
“The defendants move to exclude, under Federal Rule of Evidence 702, testimony from the plaintiffs’ accident reconstruction expert, Thomas Fitzgerald, that Shivers’ use of a Bluetooth headset at the time of the accident may have contributed to his distraction while driving. They contend that Fitzgerald’s testimony on this subject is unreliable because headset use while driving is not prohibited by Massachusetts law or by guidelines issued by the Federal Motor Carriers Safety Administration (‘FMCSA’). …
“… Fitzgerald’s testimony, which relies on empirical research and a methodical analysis of the dash camera video, is reliable and will be helpful to the jury. … The defendants’ sole critique of Fitzgerald’s proposed testimony-that state law and FMCSA guidelines do not prohibit the use of headsets while driving-does not undermine the reliability of Fitzgerald’s methods or testimony. And, appropriately, Fitzgerald does not propose to testify that Shivers was distracted immediately before the accident. Thus, Fitzgerald will be allowed to testify at trial that (1) in general, research shows that cellphone conversations while driving, including those with headsets, can distract drivers, and (2) based on his review of the research and the dash camera video, Shivers’ cellphone conversation could help explain his delayed response to the yellow- and red-light traffic signals immediately preceding the crash. The defendants’ motion to exclude Fitzgerald’s testimony will, accordingly, be denied. …
“The plaintiffs move to include, while the defendants move to exclude under Federal Rules of Evidence 403 and 609, evidence of Shivers’ 2005 conviction for illegal possession of a firearm. … The plaintiffs contend that the conviction is admissible to show Shivers’ incompetence for purposes of the negligent entrustment claim because, in their view, if Shivers cannot comply with criminal laws, he cannot follow the rules of the road. Shivers’ nineteen-year-old conviction is not, however, relevant to the conduct at issue in this case or probative of his honesty. … Admitting the conviction would, moreover, be unduly prejudicial to the defendants. Because evidence of the conviction is inadmissible under Rules 403 and 609, the plaintiffs’ motion to include that evidence will be denied, and the defendants’ motion to exclude that evidence will be granted. …
“The plaintiffs move to preclude the defendants from offering any evidence of collateral source income. … The defendants seek to introduce Mr. Bohmbach’s workers’ compensation disability benefits as evidence that he ‘was malingering, i.e., feigning physical disability to avoid work and to continue receiving disability payments.’ …
“The Court agrees with the defendants. The First Circuit has repeatedly permitted the admission of disability benefits to show malingering when a qualifying jury instruction is given. … Because the probative value of evidence of collateral source income outweighs the danger of unfair prejudice under Rule 403, the Court will permit the admission of such evidence with a cautionary jury instruction. Accordingly, the plaintiffs’ motion to preclude evidence of collateral source income will be denied. …
“The plaintiffs move to exclude the written report and addenda of the defendants’ medical expert, Dr. Stephen Saris, as inadmissible hearsay under Federal Rule of Evidence 801(c). … Whether the report is inadmissible hearsay is governed by the Federal Rules of Evidence, not state law, as the defendants contend. … And under those rules, an expert ‘report is a quintessential example of hearsay’ where it is proffered ‘for the truth of the matter’ asserted. … The defendants do not contend that they seek to offer Dr. Saris’ report into evidence for a permissible reason, such as impeachment. … The plaintiffs’ motion to exclude Dr. Saris’ report will therefore be granted.”
Bohmbach, et al. v. Shivers, et al. (Lawyers Weekly No. 02-494-24) (16 pages) (Kobick, J.) (Docket No. 1:22-cv-10318-JEK) (Oct. 16, 2024).
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