United States District Court, M.D. Alabama, Northern Division
W. HAROLD ALBRITTON, Senior District Judge.
This cause is before the court on Defendant Kenan Transport, LLC's Third, Fourth, Fifth, Sixth, Seventh, and Eighth Motions in Limine (Docs. #51-55, 65). Also before the court are the Plaintiff's Response to the Motions in Limine (Doc. #71) and the Defendant's Reply thereto (Doc. #76).
A. Defendant's Third Motion in Limine
In its Third Motion in Limine (Doc. #51), the Defendant seeks to prevent the Plaintiff from making any "Golden Rule" arguments, asking jurors to place themselves in the position of the Plaintiff, and to prevent the Plaintiff from asking the jurors to consider the danger that other individuals could be injured in a similar manner to the events underlying this case. The Plaintiff responds that she does not seek to make arguments asking the jurors to place themselves in her shoes, rather she only intends to offer arguments stating that "careless and inattentive driving endangers other drivers." (Doc. #71 at 2.) The Defendant responds to the Plaintiff's position by suggesting that a discussion of danger to the general public is a veiled Golden Rule argument.
The parties and the court agree that any argument asking the jurors to place themselves in the Plaintiff's position or the Plaintiff's shoes is improper. See Johnson v. Howard, 24 F.Appx. 480, 487 (6th Cir. 2001) ("Those circuits that have considered use of Golden Rule' arguments have universally condemned' them as improper because they invite decision based on bias and prejudice rather than consideration of facts.") (citations omitted). Arguments stopping short of asking jurors to put themselves in the Plaintiff's position may be permissible, however, so long as they do not improperly appeal to the jury's sympathy or passions. Cf. Allen v. Mobile Interstate Piledrivers, 475 So.2d 530, 537-38 (Ala. 1985) (finding it was not reversible error to allow an argument discussing "unspecified imaginary individuals" because it "[did] not invite the jurors to place themselves in plaintiff's position").
The Third Motion in Limine expressly asked the court to prohibit any argument that the jurors should place themselves in the Plaintiff's position or the Plaintiff's shoes. (Doc. #51 at 1.) To that extent, the Motion will be GRANTED. More general arguments will be subject to objection at trial.
B. Defendant's Fourth Motion in Limine
In its Fourth Motion in Limine (Doc. #52), the Defendant seeks to exclude any evidence of the truck driver's prior driving history pursuant to Fed.R.Evid. 404(b). The Defendant argues that as provided in Rule 404(b), any evidence of the driver's past behavior is inadmissible to show "conformity" with that behavior on the occasion of the incident at issue in this suit. The Plaintiff responds that she does not plan to introduce any evidence of the driver's past driving record, but only wants to question him about his experience driving liquid tankers as the mechanics may be different than driving trucks carrying solids. The Defendant in reply does not object to questions about the driver's experience driving liquid tankers, but does object to any potential speculation by the Plaintiff about the effect the liquid cargo had on the accident.
Thus, the only type of evidence at issue in this Motion in Limine is argument or evidence by the Plaintiff that the fact that the driver was driving a liquid tanker contributed to the accident. The Motion will be GRANTED to the extent that the Plaintiff may not make any type of argument or offer this type of evidence without laying a proper foundation, and DENIED to the extent that the Plaintiff may ask the driver about his past experience driving liquid tankers.
C. Defendant's Fifth Motion in Limine
The Defendant seeks to exclude mention of, and any exhibits supporting, pre-accident cellular phone use by driver Michael King and, if the cell phone use evidence is excluded, also seeks to exclude the evidence concerning the Defendant's company policy on cell phones. The Defendant seeks to exclude this evidence pursuant to Fed.R.Evid. 402, 403, and 404(b). The Defendant urges the court to require an offer of proof outside of the presence of the jury before the Plaintiff is allowed to elicit any evidence about cellular phone usage.
The Defendant contends that the phone company records of Michael King's cellular phone usage on the day in question indicate that its driver ended a call at 4:56 a.m., while the police accident report lists the time of the accident at 5:05 a.m. Kenan cites to an unpublished case from the Court of Appeals of Michigan, McCuish v. Jaffe, No. 286807, 2009 WL 3050900, at *2 (Mich. App. Sept. 24, 2009) for the proposition that the cellular phone usage has no relevance in the case because the call ended before the accident occurred. In McCuish, the court reasoned that billing records indicated that she had used her phone several times between 3:49 p.m. and 4:39 p.m., but absent any evidence as to the exact time of the accident, or a witness's observation that she was on her phone at the time, the jury could only speculate that defendant was in fact on her phone when the accident occurred. The court concluded that a reasonable inference could not be drawn that the driver was distracted by talking on a cell phone. Id. at *2.
The Plaintiff responds first that the Defendant's math is incorrect and that the cellular phone company records state that the driver began a call at 4:14 a.m. and that the call lasted 47 minutes, which would mean that the call ended at 5:01 a.m. The Plaintiff also states that the police report is inadmissible hearsay, but that the driver's log states that the accident happened at 5:00 a.m. The Plaintiff argues, therefore, that the phone records are relevant evidence, and further that the cellular phone records can be used to impeach the driver because he testified in his deposition that he never used his cell phone on the day of the wreck until he called 911. The Plaintiff finally contends that the evidence of the cellular phone records can be used to test the accuracy of the driver's memory.
In reply, the Defendant concedes that the phone records may indicate that the call lasted 47 minutes, rather than the 42 minutes it read the evidence to state, but argues that there still is insufficient proof that the call occurred at the time of the accident. The Defendant points out that the log relied on by the Plaintiff, which states that the accident occurred at 5:00, is recorded in fifteen minute increments, and also states that the 911 calls reporting the accident were made at 5:20. The Defendant argues, therefore, that the accident is more likely to have occurred closer to 5:20, but that in any event, there is no proof that the accident happened at a time during which the phone call was ...