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Johnson v. McElroy Truck Lines, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

May 1, 2015

YOLANDA JOHNSON, INDIVIDUALLY AND YOLANDA JOHNSON COURT APPOINTED CONSERVATOR, FOR AND ON BEHALF OF THE ESTATE OF RODNEY JOHNSON, ADULT WARD, Plaintiffs,
v.
McELROY TRUCK LINES, INC. AND ROY MERRITT, Defendants.

ORDER

DAVID A. SANDERS, Magistrate Judge.

This matter is before the court on plaintiffs' Motion in Limine (#73). Having considered the motion, the court finds as follows:

A. Timeliness

Defendants argue that plaintiffs' motion in limine is untimely because it was filed after the motions deadline. Concededly, the case management order stated generally that all motions were due on March 3rd, 2015. However, the motions deadline only pertained to dispositive and Daubert -type motions. As for the present motion, the Local Uniform Civil Rules provide that "[m]otions in limine other than motions challenging another party's expert must be filed no later than fourteen days before the pretrial conference..." L.U.Civ. R. 7(b)(2)(D). Therefore, plaintiffs' motion is not barred by the case management order deadline.

B. Felony Conviction

Plaintiffs submit that Rodney Johnson ("Johnson") has previously been convicted on a drug related charge. They seek to prevent defendants from submitting evidence regarding his conviction at trial, citing Federal Rule of Evidence 609. However, because defendants concede that Johnson's prior conviction is inadmissible, the court finds this issue is moot.

C. Traffic Citation

Following the collision, Johnson was issued two citations, one for driving while his license was suspended, and one for failing to have proof of insurance. Plaintiffs seek to prevent any party or witness from testifying about these citations, arguing that such testimony would lack probative value and would be unfairly prejudicial. Defendants object to this characterization and submit that it is highly relevant because it might show that Johnson has a history of negligent/reckless driving.

While the court is fully aware that the federal rules of evidence, rather than state rules, govern the admissibility of evidence in diversity cases, there is a Mississippi case that provides sound language to exclude evidence similar to that at issue in the present case. Reed v. General Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985). In Myrick v. Holifield, 126 So.2d 508 (1961), the court considered the absence of a driver's license and wrote: "To what end and with what probative value does the failure to acquire an operator's license have on the issue of whether the driver of the vehicle was negligent on the specific occasion in question?" Id. at 511. The court answered "none" because the "duty owing to an opposite party in an action of negligence must be capable of having some causal connection between it and the injury complained of." Id. This court agrees, and thus the court holds that the defendants shall not submit any evidence at trial pertaining to the citations at issue or the fact that the plaintiff was operating a vehicle while his license was suspended.

D. Shane McLaughlin's Statement

Previously, Shane McLaughlin was counsel of record for plaintiffs in this case. During a deposition in which he participated, McLaughlin allegedly stated that Johnson could not remember anything about the accident. Plaintiffs argue that this statement was never made and have offered some evidence in support of their contention. Nevertheless, plaintiffs seek to prevent any party or witness from testifying about this statement and argue that it is inadmissible hearsay. In response, defendants argue that McLaughlin's statement falls under Federal Rule of Evidence 801(d)(2)(D) because he was acting as plaintiffs' agent at the time the statement was made, making the statement not hearsay.

Under Rule 801, an out of court statement by an opposing party's agent is not hearsay if it was made during the course and within the scope of that relationship. Fed.R.Evid. 801(d)(2)(D). Just as any other agent, an attorney may make statements that the law attributes to the principal. Laird v. Air Carrier Engine Service, Inc., 263 F.2d 948, 953 (5th Cir. 1959). However, defendants have failed to establish sufficiently that McLaughlin ever made the alleged statement. The deposition transcript containing McLaughlin's statement was never submitted to the court. Instead, defendants submitted a transcript from a subsequent deposition in which, they contend, Johnson confirms McLaughlin's previous statement. However, because this testimony is obscure, the court defers the issue until trial when it will then hear argument to clarify the matter.

E. Shikenwa Hawkins and Angela Hargrove

After the collision, plaintiffs' counsel contracted with an investigator from Starkville, Mississippi to interview witnesses to the collision. Two of the witnesses interviewed, Shikenwa Hawkins and Angela Hargrove, were employees of a Sprint Mart store located very close to the scene of the accident. Both witnesses signed affidavits stating they personally observed the collision and that Johnson had the right of way. At a subsequent deposition, however, they stated that they had not actually witnessed the collision and retracted their ...


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