The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court are Defendants' Motion in Limine to Exclude Certain Scene Photographs, Defendants' Motion in Limine to Exclude the Deposition Testimony of Dr. Martin J. Croce, Defendants' Motion in Limine to Exclude Certificate of Death of Yolanda Wheeler, Defendants' Motion in Limine to Exclude the Medical Records of Yolanda Wheeler, Defendants' Motion in Limine to Exclude Photographs of Yolanda Wheeler and Family and Funeral Brochure of Yolanda Wheeler, Defendants' Motion in Limine to Exclude Certain Exhibits Identified by Plaintiff, and Defendant's Motion and Amended Motion in Limine to Exclude Certain Depositions.
The accident giving rise to this suit occurred on October 4, 2005 at the intersection of State Highway 118/North Airport Road and West Service Road in West Memphis, Arkansas. It is undisputed that Joshua R. Carlton was operating a tractor and trailer owned by Marten Transport, Ltd. ("Marten Transport"). It is also undisputed that Mr. Carlton was traveling north on State Highway 118/North Airport Road prior to the accident, and stopped at the intersection of State Highway 118/North Airport Road and West Service Road in order to make a left turn.
Plaintiff maintains that Yolanda Wheeler, Plaintiff's decedent, was traveling south on State Highway 118/North Airport Road prior to the collision, and that Mr. Carlton made a left turn into the path of the decedent's vehicle, thus causing the accident. Defendants maintain that Yolanda Wheeler was traveling east on the West Service Road just prior to the accident, and that as she approached the rear of the second vehicle which was stopped at the stop sign on the West Service Road, she veered left across the double yellow line of the West Service Road in order to avoid striking the rear of the second vehicle and then traveled forward in the oncoming or wrong lane of the West Service Road as she approached State Highway 118/North Airport Road. Defendants state that as the decedent proceeded forward in the wrong lane of the West Service Road, Mr. Carlton was slowly making his left-hand turn onto the West Service Road, and that just prior to impact, the decedent swerved back to her right and collided with the front of the tractor being operated by Mr. Carlton. The major area of impact damage was on the drivers' side (the left side) of each vehicle.
Plaintiff's action was originally filed in the Circuit Court of Crittenden County, Arkansas, but was subsequently removed to this Court. The original action brought by the Plaintiff alleged that the accident was caused by the negligence or fault of Joshua R. Carlton while operating a tractor and trailer owned by Marten Transport within the scope of his employment with Marten Transport. After removal, the Defendants answered the Complaint and denied that the accident was caused by any negligence or fault of Joshua R. Carlton. The Defendants admitted the tractor and trailer being operated by Mr. Carlton at the time of the accident was owned by Marten Transport and further admitted Mr. Carlton was an employee of Marten Transport at the time of the accident and acting within the scope of his employment.
Plaintiff filed an Amended and Substituted Motion for Leave to Amend, which added a claim for negligent hiring and retention and punitive damages. The Court granted the Motion for Leave to Amend. Subsequently, the Court granted Defendant Marten Transport's Motion for Summary Judgment on the issue of punitive damages, which resulted in the dismissal of the negligent hiring and retention claims.
A. Motion in Limine - Scene Photographs (Docket No. 66)
As set forth in this Court's previous Order, Defendants move this Court for an Order prohibiting the Plaintiff from introducing certain photographs taken by the West Memphis Police Department and the Evening Times which depict the decedent, Yolanda Wheeler, paramedics working to remove Ms. Wheeler from her damaged automobile, paramedics transporting Ms. Wheeler to the life flight helicopter and the life flight helicopter. Defendants argue that there is no issue concerning the cause of Ms. Wheeler's death, as Defendants have admitted that Ms. Wheeler died as the result of the injuries sustained in the accident giving rise to this matter and that Ms. Wheeler was removed from the scene by rescue personnel and transported to the hospital by a life flight helicopter. Therefore, Defendants argue that the probative value of the described photographs is substantially outweighed by the danger of unfair prejudice to the Defendants pursuant to Federal Rule of Evidence 403.
Plaintiffs argue that the standard under Rule 403 has not been met in this case. Plaintiffs argue that the photographs being challenged by Defendants are admissible because while they contain some minor images of blood, they are highly informative and will not prejudice the jury. Plaintiffs state that the "photographs provide a visual explanation of where the accident happened," "the aftermath of what happened at the accident scene," and "the nature of the injuries." Plaintiffs state that it is immaterial that Defendants have admitted the cause of death, as the Plaintiff has a right to put on evidence of what Yolanda's Wheeler's injuries were and how she actually died." Plaintiffs also argue that the photographs reflect how Yolanda Wheeler looked when her family saw her and are relevant to damages they suffered as a result. Finally, Plaintiffs argue that the photographs provide important information regarding impact of the vehicles and direction of travel, which is in dispute.
Federal Rule of Evidence 402 provides that all relevant evidence is admissible at trial. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. However, evidence, such as the photographs at issue here, may be excluded if their "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403. The Rule 403 Note of the Advisory Committee states, "'Unfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Block v. R.H. Macy & Co., Inc., 712 F.2d 1241, 1244 (8th Cir. 1983). In criminal cases, the Eighth Circuit has found that under Rule 403 , "relevant photographs of a victim should be admitted unless [they are] 'so gruesome or inflammatory that [their] prejudicial impact substantially outweighs [their] probative value.' " United States v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (citing United States v. Davidson, 122 F.3d 531, 538 (8th Cir.1997) (quoting United States v. Petary, 857 F.2d 458, 463 (8th Cir.1998)). However, in Ortiz, the photographs established the circumstances surrounding the murder of the victim, including that the victim had been bound with duct tape and beaten, and supported the government's contention that the crime was particularly heinous. 315 F.3d at 897.
It is now clear that the family of Yolanda Wheeler was not on the scene of the accident while Ms. Wheeler was in the vehicle. However, Plaintiff states that the images reflect Ms. Wheeler's appearance at the hospital, as she "still had glass on her they hadn't cleaned up." Plaintiff also argues that Ms. Wheeler may have even appeared worse at the hospital than she does in the photographs because in the hospital, she was also on a breathing machine. Plaintiff contends that the photographs are ...