Mci Commc'ns Serv. Inc. v. KC Trucking & Equip. LLC

403 F.Supp.3d 548

MCI COMMUNICATIONS SERVICE INC.

v.KC TRUCKING & EQUIPMENT LLC

CIVIL ACTION NO. 2:17-CV-01098

United States District Court, W.D. Louisiana, Lafayette Division.

Signed September 13, 2019

Joseph H. Hart, IV, Pugh Accardo et al, New Orleans, LA, Anthony J. Jorgenson, Pro Hac Vice, Katie N. Wagner, Pro Hac Vice, Matthew R. Gile, Pro Hac Vice, Tami J. Hines, Pro Hac Vice, Hall Estill et al, Oklahoma City, OK, for MCI Communications Service Inc.

John W. Martinez, Maricle & Assoc, Mandeville, LA, Sean McCarthy Casey, Maricle & Assoc, St Paul, MN, for KC Trucking & Equipment LLC.

MEMORANDUM RULING AND ORDER

MICHAEL J. JUNEAU, UNITED STATES DISTRICT JUDGE

Before the Court are three motions in limine: (1) Motion in Limine to exclude lay opinion testimony, expert opinion testimony, loss of use evidence, hearsay, and previously undisclosed evidence pursuant to Federal Rule of Civil Procedure 26 filed by KC Trucking & Equipment LLC ("Defendant") [Rec. Doc. 39-1]; (2) Motion in Limine regarding loss of use damages filed by MCI Communications Service, Inc. ("Plaintiff") [Rec. Doc. 40]; and (3) Motion in Limine regarding excavation under the Louisiana Underground Utilities and Facilities Damage Prevention Law filed by Plaintiff [Rec. Doc. 42]. For the following reasons, the court DENIES Defendant's Motion in Limine and GRANTS IN PART and DENIES IN PART Plaintiff's Motions in Limine.

I. Background

On September 1, 2016, while conducting operations in a creek bed along State Highway 12 in Starks, Louisiana, Defendant severed a fiber-optic telecommunications cable owned by Plaintiff. On August 31, 2017, Plaintiff filed its complaint alleging Defendant damaged the cable and is seeking damages for direct and indirect cost of repairs and loss of use of the cable under theories of trespass and negligence. Plaintiff also seeks recovery of its attorney's fees and costs under La. R.S. § 40:1749.14F.

II. Present Motions

A. Defendant's Motions

Plaintiff intends to call two fact witnesses—Thomas Wayne Harvey and John Conner—and an expert witness—Brian S. Tooley—to testify at trial. Defendant moves to exclude testimony of the fact witnesses for essentially the same reasons. Defendant argues that both witnesses should be "precluded from speculating, testifying, or otherwise opining as to the cause-in-fact of [the cable damage]" because neither witness was present to observe the cable damage at the moment when the cable was severed. [Rec. Doc. 39-1 p. 2]. In response, Plaintiff argues that the witnesses' testimony regarding cause of the cable damage is admissible lay opinion testimony, and that, in any event, the witnesses should be able to testify regarding the circumstances of which they had personal knowledge.

Defendant additionally moves to exclude testimony of Plaintiff's expert, Brian S. Tooley, regarding whether the cause-in-fact of damage was "excavation" under the Louisiana Underground Utilities and Facilities Damage Prevention Law.¹ In addition, Defendant moves to exclude testimony that it violated any provision of the Louisiana Underground Utilities and Facilities Damage Prevention Law absent a showing that the cause of cable damage was "excavation." Defendant argues that the Plaintiff's expert's opinion on these matters is not based on sufficient facts or data, and that the expert's opinion on these matters does not have a basis or reason in the expert report. Plaintiff argues in response that the expert report shows that Mr. Tooley relied on all aspects of the case including depositions, photographs, telephone records, and most other items in the case file.

Finally, Defendant moves to exclude evidence regarding loss of use damages depending on this Court's decision regarding summary judgment on that matter. Additionally, Defendant moves to prohibit hearsay statements and evidence not disclosed under Federal Rule of Civil Procedure 24. Plaintiff asserts that the exclusion of loss of use evidence is premature and asserts that it does not intend to introduce hearsay or undisclosed evidence.

B. Plaintiff's Motions

Plaintiff moves to exclude three types of evidence with respect to loss of use damages. First, Plaintiff seeks to preclude Defendant from introducing evidence concerning whether the Plaintiff "paid any refunds, credits, offsets or other amounts to its customers as a result of an interruption in service to those customers caused by [Defendant's] severance of the Cable." [Rec. Doc. 40-1 p. 2]. Second, Plaintiff seeks to preclude Defendant from introducing evidence concerning whether the Plaintiff "was able to reroute calls within its own network or actually procured capacity from other carriers sufficient to replace the capacity of the Cable [that Defendant severed]." [Rec. Doc. 40-1 p. 2]. Third, Plaintiff seeks to preclude Defendant from introducing evidence concerning whether Plaintiff "incurred any lost revenues, lost profits or any other pecuniary out-of-pocket costs as a result of the loss of use of the Cable [that Defendant severed]." [Rec. Doc. 40-1 p. 2]. Plaintiff argues that this evidence is not relevant because loss of use damages are not limited to economic damages. Plaintiff also argues that it alone is entitled to elect the method to measure damages. Defendant, in response, argues at length that, as a matter of law, Plaintiff may not recover loss of use damages in the absence of pecuniary or economic loss.

Plaintiff also seeks to preclude Defendant from introducing evidence regarding whether or not Defendant was "excavating" under the Louisiana Underground Utilities and Facilities Damage Prevention Law. La. R.S. § 40:1749.11 et seq. Plaintiff essentially argues that Defendant's admissions to using mechanized equipment and damaging the cable amount to the legal standard of excavation in the Louisiana Underground Utilities and Facilities Damage Prevention Law. Id. Thus, Plaintiff asserts that this evidence is irrelevant. Defendant, in response, argues that its eyewitness is able to testify that Defendant was not excavating as defined in the Louisiana Underground Utilities and Facilities Damage Prevention Law.

III. Law & Analysis

A. Defendant's Motions to Exclude Fact Witness Testimony

"[A] trial court has some latitude in permitting a witness on direct examination to testify as to his conclusions, based on common knowledge or experience." United States v. Mandujano , 499 F.2d 370, 379 (5th Cir. 1974). Federal Rule of Evidence 701 allows lay opinion testimony when the opinion is

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The advisory committee notes for Rule 701 explain further that lay witness opinion testimony is permitted when the opinion arises "because of the particularized knowledge that the witness has by virtue of his or her position in the business." The committee notes also explain that lay opinion testimony "results from a process of reasoning familiar in everyday life."

The Fifth Circuit uses three elements to analyze admissible lay opinion testimony:

First, the witness must have "personal knowledge of the facts from which the ... opinion is said to derive." Second, a "rational connection" must exist between the opinion and the facts upon which it is based; or put another way, "the opinion ... must be one that a normal person would form from those perceptions." Finally, "the opinion ... must be helpful, either in understanding the testimony or in determining a fact in issue."

Soden v. Freightliner Corp. , 714 F.2d 498, 511 (5th Cir. 1983) (quoting Lubbock Feed Lots, Inc. v. Iowa Beef Processors , 630 F.2d 250 (5th Cir.1980) ). Furthermore, the Fifth Circuit explains,

The fact that an opinion goes to an "ultimate fact" does not necessarily preclude its admissibility under Rule 701. If these requirements are satisfied, a layman can under certain circumstances express an opinion even on matters appropriate for expert testimony.

Id. The Fifth Circuit applied this test in depth in Soden v. Freightliner Corp ., 714 F.2d 498, 511 (5th Cir. 1983). In Soden , The Fifth Circuit held that a lay witness who did not witness the cause of a cut in a fuel tank firsthand could give lay opinion testimony that brackets caused the holes. Id. at 511-12. In applying the first element, the Court found that although the witness did not see the accident firsthand, he observed the cuts soon after in the course of doing his work. In addition, the brackets were in close proximity to the fuel tanks. Id. On the second element, the Court found that a "normal person" in the witness's position could infer the cause. Id. More specifically, "no great leap of logic or expertise was necessary" for a person in the witness's position to conclude that the holes in the tanks were caused by the brackets located next to them. Id. The court also bolstered its finding for the "rational connection" element by noting the witness's experience in the matter.² Finally, the Fifth Circuit found the testimony helpful to the jury because it suggested a cause of the accident that differed from the opposing party's causation argument. Id.

Defendant's objection to Mr. Harvey's and Mr. Conner's testimony does not warrant exclusion at the motion in limine stage. Both Mr. Harvey and Mr. Conner have personal knowledge of the facts from which their opinions derive, which could include seeing the severed cable, proximity of any equipment, and any movement of earth. The witnesses can, generally, connect the severed cable they saw with the moved earth and heavy equipment without any "scientific, technical, or other specialized knowledge." Any foundation laid as to these witnesses' experience by virtue of their position could also lead to a "rational connection."³ Finally, this testimony will help the jury understand another possible cause of the accident. This...