Filed: Jul. 03, 2019
Latest Update: Jul. 03, 2019
Summary: ORDER D.P. MARSHALL, JR. , District Judge . 1. For the reasons stated on the record at the 28 June 2019 hearing, the Court made the following rulings. Summary Judgment and Bifurcation • Optimum, Woodall, and UPS's motions for partial summary judgment on direct negligence, No 202 (part) and No 252, are partly granted and partly denied. • Optimum, Woodall, and UPS's motions for partial summary judgment on punitive damages, No 202 (part) and No 255, are granted. • Optimum and Woo
Summary: ORDER D.P. MARSHALL, JR. , District Judge . 1. For the reasons stated on the record at the 28 June 2019 hearing, the Court made the following rulings. Summary Judgment and Bifurcation • Optimum, Woodall, and UPS's motions for partial summary judgment on direct negligence, No 202 (part) and No 252, are partly granted and partly denied. • Optimum, Woodall, and UPS's motions for partial summary judgment on punitive damages, No 202 (part) and No 255, are granted. • Optimum and Wood..
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ORDER
D.P. MARSHALL, JR., District Judge.
1. For the reasons stated on the record at the 28 June 2019 hearing, the Court made the following rulings.
Summary Judgment and Bifurcation
• Optimum, Woodall, and UPS's motions for partial summary judgment on direct negligence, No 202 (part) and No 252, are partly granted and partly denied.
• Optimum, Woodall, and UPS's motions for partial summary judgment on punitive damages, No 202 (part) and No 255, are granted.
• Optimum and Woodall's motion to bifurcate, No 187, joined by UPS, is denied as moot.
Experts
• Optimum and Woodall's motion to exclude testimony of Breck McDaniel, No 189, joined by UPS, is denied as moot.
• Optimum and Woodall's unopposed motion regarding Jackson Reconstruction, No 193, joined by UPS, is granted.
• Optimum and Woodall's motion to exclude testimony of Barry Grant, No 195, joined by UPS, is denied with instructions.
• UPS's motion to exclude testimony of Barry Grant, No 221, joined by Optimum and Woodall, is denied with instructions.
• UPS's motion to exclude testimony of Matthew Meyerhoff, No 223, joined by Optimum and Woodall, is partly granted and partly denied.
• Brantley's motion to exclude testimony of Todd Yakoubian, No 225, is granted with a caveat.
• Brantley's motion regarding defendants' expert witnesses, No 227, is granted as modified.
• Brantley's motion to exclude testimony of Andrew Sievers, No 229, is granted.
• Brantley's motion to exclude testimony of Steven Arndt, No 231, is partly granted and partly denied.
• Brantley's motion to exclude testimony of Stephen Chewning, No 238, is partly granted and partly denied.
• Brantley's motion to exclude testimony of Al Dunn, No 240, is partly granted and partly denied.
• Brantley's motion to exclude testimony of Greg Souheaver, No 258, is partly granted and partly denied.
Other Motions in Limine
• Optimum and Woodall's omnibus motion in limine, No 183, joined by UPS, is mostly granted and partly denied.
• Optimum and Woodall's second motion in limine, No 185, joined by UPS, is granted.
• Optimum and Woodall's motion in limine regarding TDI issues, No 191, is denied with instructions.
• Optimum and Woodall's motion in limine regarding Optimum's contract with UPS, No 197, joined by UPS, is partly granted and partly denied.
• Optimum and Woodall's motion in limine regarding one touch calls and texts, No 200, joined by UPS, is granted.
• UPS's unopposed motion in limine to preclude reference to UPS's corporate wealth, No 204, is granted.
• UPS's motion in limine to exclude the "wall of dust" photograph, No 207, joined by Optimum and Woodall, is denied with instructions.
• UPS's unopposed motion in limine to preclude reference to defense counsel's practice, No 209, is granted.
• UPS's omnibus motion in limine, No 213, joined by Optimum and Woodall, is mostly granted and partly denied.
• UPS's motion in limine to preclude reptile theory, No 215, joined by Optimum and Woodall, is partly granted and partly denied.
• UPS's motion in limine to preclude evidence of Woodall's post-accident release, No 217, joined by Optimum and Woodall, is granted with a caveat.
• UPS's motion in limine to preclude hypothetical questions of lay witnesses, No 219, joined by Optimum and Woodall, is granted.
2. The Court is attaching its Order on the expert testimony of Dr. Jay Marsh, No 331, in Herron, et al. v. APAC of Tennessee, Inc., et al., Case No. 3:16-cv-127-DPM.
3. The John Doe defendants are dismissed without prejudice.
So Ordered.
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KENNY HERRON and MARY LOU
HERRON, as Guardians of the Person and
Estate of Cadence Nevaeh McGuire, a minor;
MARY LOU HERRON, Administratrix of the
Estates of Jessica M. McGuire and Brinley M.
McGuire, a minor, and for their Wrongful
Deaths; and CHARLES JEFF GARDNER,
Administrator of the Estate of Nicholas
McGuire and for his Wrongful Death PLAINTIFFS
v. No. 3:16-cv-127-DPM
J E PHILLIPS & SONS, INC.; BEST TRUCK
& TRAILER, INC.; RICHARD CARL
ADAMS; and WABASH NATIONAL
CORPORATION d/b/a Wabash
National Trailer Centers, Inc. DEFENDANTS
ORDER
After further study of the record, the authorities, and the briefing, the Court confirms its bench ruling about Dr. Jay Marsh's proposed expert testimony: Wabash's motion in limine (joined by Best, Phillips, and Adams) is granted.
First, Dr. Marsh's testimony about Cadence's lost support from her father during her minority is methodologically flawed because he did not calculate after-tax contributions. The Court must make an Erie-educated prediction about how the Arkansas Supreme Court would decide this unsettled issue. Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010). This Court predicts that Arkansas law requires a calculation based on after-tax dollars. Cadence's pecuniary injuries are a function of her father's past and future customary contributions, minus what he usually spent on himself and other usual out-of-pocket expenses. ARK. MODEL JURY INSTRUCTIONS—CIVIL 2216 (2019); HOWARD W. BRILL & CHRISTIAN H. BRILL, 1 ARKANSAS PRACTICE SERIES: LAW OF DAMAGES § 34:4 at 864 (6th ed. 2014). Federal and state income taxes are personal expenses that must be paid, in some amount, year in and year out, by all citizens. As Franklin remarked, "in this world, nothing can be said to be certain, except death and taxes." Letter from Benjamin Franklin to Jean Baptiste Le Roy (13 Nov. 1789), in 10 THE WRITINGS OF BENJAMIN FRANKLIN, 68-69 (Albert Smith, ed.) (1907). Cadence can prove her pecuniary injuries at trial with the basic facts about her father's income, support, and expenses. But Dr. Marsh's testimony would confuse the jury, not help it sort this issue accurately under Arkansas law, because his calculations do not capture the dollars actually available to Cadence. And this methodological flaw is too significant to be adequately addressed through cross. Blue Dane Simmental Corp. v. American Simmental Ass'n, 178 F.3d 1035, 1040-41 (8th Cir. 1999).
Second, the Court also excludes Dr. Marsh's testimony about lost earning capacity as part of loss-of-life damages. At the threshold, his opinion is methodologically flawed on the tax issue, as already noted. How to quantify the loss-of-life element of damages is a vexed question, as Judge Eisele explored in McMullin v. United States, 515 F.Supp.2d 914, 924-25 (E.D. Ark. 2007). Defendants argue that proof of lost earning capacity is not relevant or competent evidence on this point. Dr. Marsh says it is. The Court is skeptical, for the reasons ventilated at the hearing, that the value a person places on his life is solely or mostly a function of earnings. Dr. Marsh candidly acknowledged this on deposition, and said earning power was one of many material considerations. The Court doubts, though, that the jury needs an expert's help in understanding that one's ability to support family and self is part of what a person values in his life.
The Court also sees two problems in how Dr. Marsh put lost future earnings in the loss-of-life basket. First, there's the danger of an unjustified anchoring effect because everything else in this basket is so hard to quantify. One National Bank v. Pope, 372 Ark. 208, 213-14, 272 S.W.3d 98, 102-03 (2008); McMullin, 515 F. Supp. 2d at 927. This aspect of the conundrum was not addressed. Second, Dr. Marsh used total lost earnings. As the leading commentator notes, this kind of evidence presents a real danger of double recovery. BRILL, § 34:3 at 862. The statutory beneficiaries are entitled to damages for Mr. McGuire's lost support; past and future earnings, less expenses, drive that recovery. But, for loss-of-life purposes, Dr. Marsh did not adjust the earnings figure accordingly. He did not include only "those lifetime earnings that are not distributed to the statutory beneficiaries under the wrongful death statute and that would have been retained for the personal use of [Mr. McGuire]." Ibid. He used total lifetime earnings. Here again, this expert's testimony would not help the jury; it would cloud an already cloudy issue.
* * *
The motion, No 285, is granted.
So Ordered.
