The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Monday, 18 July, 2011 10:39:25 AM Clerk, U.S. District Court, ILCD
Plaintiff, Jodi Campbell, filed a Motion to Bar Testimony as to Defendant Randy H. Gross's Driver's Log Books (#65) on June 30, 2011. Defendants Gross and RAP Trucking, Inc., filed their Objection to the Motion to Bar Testimony (#68) on July 7, 2011. For the following reasons, Plaintiff's Motion to Bar Testimony (#65) is DENIED.
Defendants filed a Motion to Bifurcate Trial (#61) on June 23, 2011, and Plaintiff filed her Memorandum in Opposition (#73) on July 11, 2011. For the following reasons, Defendants' Motion to Bifurcate Trial (#61) is GRANTED.
Plaintiff, a citizen of the State of Illinois, filed suit against Defendant Gross, a citizen of Florida, and RAP Trucking, Inc., a Massachusetts corporation with its principal place of business in Florida, over a vehicle collision that occurred in Ford County, Illinois. The amount in controversy exceeds $75,000. According to the Complaint (#1) and Answer (#4) filed by the parties, the facts of the occurrence are this:
On February 10, 2008, at approximately 4:11 am, Defendant Gross was operating a semi truck and trailer owned by or leased to Defendant RAP northbound on Interstate Route 57 near mile post 258 in Ford County, Illinois. At said time and place Plaintiff was operating her Dodge Caravan minivan northbound on Interstate 57. At said time and place, Defendants' semi truck and trailer crashed into the rear end of Plaintiff's vehicle. Plaintiff alleges that the accident was the direct and proximate result of one or more of a combination of various acts or omissions on the part of Defendants, including: speeding, failure to reduce speed, failure to keep a proper lookout for other motor vehicles, and other unspecified negligence. Plaintiff alleges that as a proximate and direct result of Defendants' negligence, she has suffered various severe and permanent injuries. Plaintiff asks for a $10,000,000 judgment against Defendants.
Defendants deny Plaintiff's allegations of negligence. Defendants allege an affirmative defense in that Plaintiff: (1) entered the roadway from the shoulder without first determining that it was safe to do so; (2) entered the roadway from the shoulder without signaling; (3) entered the roadway at a time when it was unsafe to do so by reason of the relatively close proximity of Defendants' vehicle; (4) operated her vehicle on the roadway without its running lights having been activated; (5) causing herself, by the consumption of alcoholic beverages, to have impaired senses of vision, depth perception, and judgment; (6) failing to keep her vehicle off of the roadway until such time as the effects of alcohol on her body had subsided; and (6) failing to keep a proper lookout for Defendants' vehicle. Defendants argue that Plaintiff contributed in whole or in part to the injuries of which she complains and her recovery of damages should be barred or diminished accordingly.
Motion to Bar Testimony (#65)
On June 30, 2011, Plaintiff filed her Motion to Bar Testimony as to Defendant Randy H. Gross's Driver's Log Book (#65). In the Motion, Plaintiff asserts that after the collision, and with knowledge the collision had taken place, the log books that covered the period of the collision and the thirty days preceding the collision were intentionally destroyed by Juan J. Konieczny, an RAP employee. Plaintiff argues that because RAP never took any steps to preserve the log books and did not advise Konieczny not to destroy the books, even though they knew it was Konieczny's custom to destroy log books after their examination, RAP has intentionally spoiled evidence and deprived Plaintiff of the ability to examine the books. Plaintiff argues the appropriate remedy is to bar any testimony on behalf of the Defendants as to the contents of the log books. Plaintiff believes the only testimony that should be admitted is that Defendants knowingly allowed log books to be destroyed with knowledge that the collision in question had taken place.
Defendants' Objection (#68) was filed July 7, 2011. In the Objection, Defendants note that they have disclosed Charles Burwell, a now retired Illinois State Police commercial vehicle compliance officer, as a trial witness on their behalf. Burwell is expected to testify that, in the course of his duties on or about February 10, 2008 (the date of the collision), and in connection with the accident:
(1) he inspected Gross's semi and reviewed his log books, including for any hours of service or other violations; (2) he wrote a report of the inspection (a copy of which is attached to Defendants' Objection); (3) the report does not identify any hours of service or other violations as might have been reflected in such log books; and (4) if the log books had reflected a violation of any kind, it would have been indicated in Burwell's report.
Defendants argue that Burwell's testimony refutes Plaintiff's suggestion that there was something in the log books to implicate Gross and RAP in the collision. Further, they argue Burwell had nothing to do with the retention or discarding of the log books and had no association of any kind with Gross or RAP. As to Konieczny, a former Florida Department of Transportation compliance officer now acting as a consultant to RAP and others on issues of regulatory compliance, he testified that RAP was not obligated or required by any authority to maintain Gross's log books for longer than six months after their date and that those in question were discarded after the six month period. Defendants claim that one of Plaintiff's disclosed experts, George P. Huston, acknowledges the same six month requirement. Further, while RAP and Konieczny were aware of the accident at the time the log book was discarded, no suit had been filed and they did not expect a suit to be filed, since Plaintiff had been charged with driving under the influence (DUI) in connection with the collision.
The court agrees with the position advanced by Defendants. Burwell, an independent source with the Illinois State Police, will be able to testify to what was in the now discarded log book based on his own contemporaneous report. Admission of testimony concerning the log book will not prejudice Plaintiff. Defendants are free to discuss the contents of the log book through Burwell's testimony. Plaintiff can question as to why the log books were ...