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Jackson v. Asplundh Construction Corp.

United States District Court, E.D. Missouri, Eastern Division

October 13, 2016

SUSAN E. JACKSON Plaintiff,
v.
ASPLUNDH CONSTRUCTION CORPORATION,, Defendants.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR JUDGE

         This matter comes before the Court on Defendants' Motion in Limine to Preclude Evidence of Defendant Anthony Rogers' Prior Criminal Conviction or Sex Offender Status [ECF No. 76], Defendants' Motion in Limine to Preclude “Reptile Theory” Argument or Evidence [ECF No. 77], Defendants' Motion in Limine to Preclude William Hampton's Hearsay Testimony on Conversations and Site Visit with Potosi Police Chief Roy Logsden [ECF No. 80], Defendants' Consolidated Motions in Limine [ECF No. 81], Plaintiff's Motions in Limine [ECF No. 84], Defendants' Motion to Bifurcate Punitive Damages at Trial [ECF No. 68], and Defendants' Motion in Limine Requesting Exclusion or in the Alternative Limiting of Plaintiff's Testimony of Injury and Causation by Virtue of the “Sudden Onset” Doctrine [ECF No. 92].

         1. Defendants' Motion in Limine to Preclude Evidence of Defendant Anthony Rogers' Prior Criminal Conviction or Sex Offender Status [ECF No. 76]

         In their motion, Defendants Anthony Rodgers and Asplundh Construction Corporation (“Defendants”) ask the Court to prohibit Plaintiff Susan Jackson (“Plaintiff”) from mentioning or presenting evidence regarding Defendant Rodger's past criminal convictions or sex offender status. Defendant Rogers was convicted of rape and sodomy charges in 1992 and is required to register as a sex offender as a result. Defendants assert this evidence is not relevant and the likelihood of unfair prejudice outweighs any probative value of this evidence.

         Plaintiff's counsel will be permitted to ask Defendant Rogers if he has every submitted any written documentation stating he is blind in one eye. If Defendant Rogers answers in the negative, then the Court will allow Plaintiff's counsel to introduce evidence of the sex offender registry which states Defendant Rogers is blind in his right eye. Otherwise, this evidence will not be allowed. The prejudice of this evidence to Defendant Rogers is substantial and the probative value is minimal. Evidence of Defendant Rogers's eyesight can be introduced through other means.

         2. Defendants' Motion in Limine to Preclude “Reptile Theory” Argument or Evidence [ECF No. 77]

         In their motion, Defendants assert Plaintiff should not be permitted to present evidence or argument regarding the “Reptile Theory.” According to Defendants, Plaintiff intends to use the “Reptile Theory” to improperly raise questions of community protection. Defendants claim Plaintiff is attempting to spread the aroma of fear in the community which is improper, focuses on irrelevant evidence, and is intended to set up the jury as protector of the community. Defendants argue Plaintiff's counsel intends to use the theory to improperly misdirect the jury on the proper standards of care. Finally, Defendants assert the “Reptile Theory” is an impermissible “Golden Rule” argument asking the jury to place itself in Plaintiff's position. The Court will not issue a ruling on this motion at this time. The Court will address any objections as the evidence is introduced.

         3. Defendants' Motion in Limine to Preclude William Hampton's Hearsay Testimony on Conversations and Site Visit with Potosi Police Chief Roy Logsden [ECF No. 80]

         In their motion, Defendants ask the Court to preclude Plaintiff's witness William Hampton's hearsay testimony on conversations with Potosi Police Chief Roy Logsden. Defendants state Mr. Hampton is designated as an expert witness by Plaintiff to testify on the cause of the accident, location of the accident, estimated speed at the time of the accident, and his understanding of the reconstruction of the accident. According to Defendants, Mr. Hampton testified in his deposition, during his site visit, Police Chief Logsden identified the area of impact and stated the “truck pulled out in front of that little girl.” Defendants argue this is inadmissible hearsay and should be excluded.

         A police officer has more credibility than other witnesses due to the nature of his authority and position as a law enforcement officer. A statement by the Potosi Police Chief “the truck pulled out in front of that little girl, ” is highly prejudicial. This will not be permitted. The cause of an accident must be established by experts. The expert witness will be permitted to testify as to other information Chief Logsden provided him such as where the scuff marks where located on the pavement.

         4. Defendants' Consolidated Motions in Limine [ECF No. 81]

         In their motion, Defendants assert eight motions in limine. First, Defendants argue Plaintiff's expert witness William Hampton should be precluded from offering any opinion testimony about whether Anthony Roger's medical certificate was valid. In his report, Mr. Hampton opinioned Defendant Rogers falsified his medical examination and was not medically qualified, thereby invalidating his commercial driver's license. Defendants assert Mr. Hampton has no specific knowledge as to this allegation and his assertion is based on his own interpretations, not any actual regulation, law, or precedent. Defendants argue Mr. Hampton's opinion is based on speculation and conjecture and it is highly prejudicial to Defendants.

         The Court will permit evidence from witnesses with specific knowledge of the alleged falsification of the medical certificate, but it will not permit Mr. Hampton to opine on the matter. If Mr. Hampton is able to convince the Court, out of the hearing of the jury, his opinions rely in some manner on his conclusion the medical certificate was falsified, the Court may permit the testimony.

         Second, Defendants assert no reference should be made as to any post-accident alcohol or drug testing conducted in respect to Anthony Rogers. In Mr. Hampton's report, he alleges Defendant Rogers was required to be tested post-accident for drugs and alcohol. Defendants argue post-accident testing is only required when the accident results in a human fatality or the driver is issued a citation in connection with the accident, neither of which occurred here. Further, Defendant claim Mr. Hampton admitted a drug test was not required and he was not aware of any allegations there was alcohol or controlled substances involved with either party to the accident.

         The Court will permit other witnesses to introduce evidence related to alcohol and drug testing and Defendant Asplundh's company policies in relation to the testing, but Mr. ...


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