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Walker v. Spina

United States District Court, D. New Mexico

February 11, 2019

SHIRLEY J. WALKER, Plaintiff,
v.
GREGORY J. SPINA; VALLEY EXPRESS, INC., and GREAT WEST CASUALTY COMPANY, Defendants.

          Shavon M. Ayala Ayala P.C. Albuquerque, New Mexico and Anthony James Ayala Law Offices of Anthony James A. Ayala Albuquerque, New Mexico Attorneys for the Plaintiff

          Raul P. Sedillo Allison M. Beaulieu Butt Thornton & Baehr PC Albuquerque, New Mexico Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Plaintiffs Motion in Limine Regarding Punitive Damages, filed January 28, 2019 (Doc. 121)(“Punitive MIL”); (ii) Plaintiffs Motion in Limine and Objection to Defendant's Proposed Exhibit List, filed January 30, 2019 (Doc. 132)(“Medical Records MIL”); (iii) Plaintiffs Motion in Limine Regarding Introduction of All Olympics Records, Trattel Court Reporting Page, and Medical and Billing Records for Dr. Khalsa, filed January 30, 2019 (Doc. 133)(“Defendants' Exhibits MIL”); (iv) the Defendants Gregory J. Spina and Valley Express, Inc. 's Motion in Limine Prohibiting Mention of Defendants' Insurance, filed January 31, 2019 (Doc. 134)(“Insurance MIL”); (v) the Defendants Gregory J. Spina and Valley Express, Inc.'s Motion in Limine Prohibiting Mention of Alleged Violations of Statutes, January 31, 2019 (Doc. 135)(“Statutes MIL”); (vi) the Defendants Gregory J. Spina and Valley Express, Inc.'s Motion in Limine Regarding Standard of Care and Golden Rule Arguments, January 31, 2019 (Doc. 136)(“Standard of Care MIL”); and (vii) the Defendants Gregory J. Spina and Valley Express, Inc's Objections to Plaintiffs Proposed Voir Dire, filed January 31, 2019 (Doc. 137)(“Voir Dire Objections”). The Court held a hearing on February 5, 2019. The primary issues are: (i) whether, if Defendant Gregory J. Spina perjures himself during trial, the Court should allow Plaintiff Shirley Walker to argue a claim for punitive damages; (ii) whether the Court should permit Spina and Defendant Valley Express, Inc. (collectively, “the Defendants”) to introduce Walker's medical records for rebuttal purposes when Walker will not introduce her medical records, when Walker alleges not to have received all of the proposed exhibits from the Defendants, and when the Defendants have not established that the medical records are not hearsay or shown a proper foundation for the medical records; (iii) whether, because the Defendants indicate that they will introduce evidence that Walker continued to participate in the New Mexico Senior Olympics, the Court should allow Walker to introduce her deposition correction page and all other documents related to the New Mexico Senior Olympics; (iv) whether, because the Defendants indicated that they would introduce a letter of protection[1] and accompanying emails between Dr. Arjan Khalsa, a chiropractor, see Defendants' Reply in Support of Their Motion to Limit the Testimony of Plaintiff s Treatment Providers and Exclude Improper Expert Testimony at 2, filed September 20, 2018 (Doc. 82), and Walker's counsel, the Court should permit Walker to introduce evidence of Dr. Khalsa's medical bills; (v) whether, if the Defendants introduce evidence that Walker's medical bills list Shavon Ayala, of Ayala P.C., an attorney on this matter, as Walker's insurance provider, the Court should allow Walker to introduce evidence of the Defendants' insurance; (vi) whether the Court should preclude Walker from introducing speculative testimony whether Spina violated statutes for which he was not cited, including speeding, careless or reckless driving, and running a red light; (vii) whether the Court should prohibit Walker from arguing or eliciting testimony describing that the standard of care is any standard other than ordinary care, and from arguing that the jury should determine Walker's damages according to what they would desire if they occupied Walker's position; (viii) whether the Court should permit Walker to ask the venire:

5. Have any of you worked for an insurance company in any capacity,
6. Have any of you ever had a close personal friend or Relative [sic] that has ever worked as an adjustor for an an [sic] insurance company?
7. Have any of you had a close personal friend or relative That [sic] has worked for an insurance company in any capacity?

         Possible Voir Dire Questions, Questions 5-7, at 2, filed January 28, 2019 (Doc. 125); (ix) whether the Court should allow Walker to ask the venire her proposed question 11:

In this case, you will hear expert witness Ted Davis, [2] who is hired on a regular basis by the defense, to Testify [sic] against Ms. Walker on a number issues [sic]; will any of you have a hard time giving Ms. Walker a fair trial in light of the fact that the Defendants will call Ted Davis, as expert in this case? Consider all the evidence in the case before making you [sic] mind up after you hear from Mr. Davis?

         Possible Voir Dire Questions, Question 11, at 2; (x) whether the Court should permit Walker to give to the venire her own summary of the case and ask the venire:

15. Do you know anything about the facts of this case except what you have heard in court today? (Give brief synopsis of facts in this case.)
The facts of this case basically are that an accident happened north of Santa Fe, New Mexico, past the city of Gold Casino at a red light intersection of U.S. Highway 84/285, at intersection SR 503. The witnesses are all from Santa Fe, New Mexico, or Espanola, where Mr. Walker lives.
In a nutshell, the facts will show that July 23, 2015, the Plaintiff Ms. Walker who was driving her vehicle had slowed for a yellow light, and then stopped. At the same time and place, Karla A. Mcwilliams driving a State of New Mexico van with four (2) individuals had slowed for a yellow light and then stopped for the red light.
You will hear that Mr. Gregory J. Spina was driving a commercial sixteen wheeler, a semi truck with a large trailer, and was driving in the same direction as Ms. Walker and Ms. Mcwilliams, but was unable to slow down or stop, and when he came behind the two vehicles parked at the red light, rather than hit one or the other from behind, decided to drive between the two vehicles; and in that process he hit both vehicles. You will see pictures of the vehicles involved and all the people who came together as a result of that accident.

         Possible Voir Dire Questions, Question 15, at 3; and (xi) whether the Court should allow Walker to ask the venire:

35. Have any of you ever studied psychology or received Training [sic] in psychiatry or psychology?
36. In this case, the Plaintiff will be making a claim for a PTSD injury? Experience with That [sic]?
37. Is anyone going to be able to sit on this jury in light of the fact that a claim for a psychological injury is claimed?
38. Will not be able to give damages for a psychological injury if one is proved?
39. Do you think that it is impossible for a person to suffer PTSD as a result of a vehicle accident?
40. What is your opinion of psychiatrists?
41. Do you recognize that there is a difference between a psychiatrist and a general practitioner?
42. Have you formed any opinion concerning the validity of psychiatry?
43. Do you accept the fact that a properly qualified psychiatrist is an expert in the diagnosis of certain forms of mental illness and mental defects?

         Possible Voir Dire Questions, Questions 35-43, at 5. The Court concludes that: (i) it will not permit Walker to seek punitive damages even if Spina perjures himself; (ii) the Court will permit the Defendants to introduce Walker's medical records for impeachment purposes and for the truth of the matter asserted if the Defendants meet the requirements that the Court discussed in its Memorandum Opinion and Order, filed February 1, 2019 (Doc. 139)(“Medical Records and Bills MOO”); (iii) as Walker withdrew her request to introduce her deposition correction page and all other documents related to the New Mexico Senior Olympics, the Court will exclude such evidence; (iv) the Court will permit Walker to introduce Dr. Khalsa's bills to rebut the Defendants' arguments about the letter of protection and the accompanying emails if Walker meets the requirements that the Court discussed in its Medical Records and Bills MOO; (v) the Court will preclude Walker from introducing evidence of the Defendants' insurance, and the Court will require the Defendants not to mention Walker's insurance and to redact the language on Walker's medical bills indicating that S. Ayala was Walker's insurance carrier; (vi) the Court will permit Walker to introduce factual evidence about Spina's driving, and, should the Court conclude that Walker has introduced sufficiently non-speculative testimony, the Court will include the statutes in the jury instructions for negligence per se; (vii) as Walker agreed not to suggest that the standard of care is any standard other than ordinary care and not to argue that the jury should determine Walker's damages according to what they would desire in Walker's position, the Court will preclude Walker from making such suggestions or arguments; (viii) the Court will allow Walker to identify individual potential jurors whose history in the insurance industry cause her concern and to question those potential jurors individually, but the Court will not permit Walker to ask the venire such questions; (ix) as Walker agreed to withdraw question 11, the Court will preclude Walker from asking that question; (x) because the Court will make the statement of the case, the Court will prohibit Walker from giving her own statement of the case to the entire venire, but, if potential jurors indicate familiarity with the case, the Court will permit Walker to question those jurors individually at the bar; and (xi) the Court will allow Walker to ask the venire about their attitudes toward psychiatry. Accordingly, the Court: (i) denies the Punitive MIL; (ii) grants the Medical Records MIL in part and denies it in part; (iii) grants the Defendants' Exhibits MIL in part and denies it in part; (iv) grants the Insurance MIL; (v) grants the Statutes MIL in part and denies it in part; (vi) grants the Standard of Care MIL; and (vii) grants the Voir Dire Objections in part and denies them in part.

         FACTUAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order at 2-3, 2018 WL 4100944, at *1, filed August 28, 2018 (Doc. 67)(“MOO”). The Court incorporates that recitation here. The footnotes in the quotations are in the original.

The Court takes its facts from Walker's Complaint for Personal Injuries and Damages (First Judicial District Court, County of Santa Fe, State of New Mexico), filed December 23, 2016, filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”). The Court provides these facts for background. It does not adopt them as the truth, and it recognizes that the facts are largely Walker's version of events.
On July 23, 2015, Defendant Gregory J. Spina was speeding on U.S. Highway 84/285 in a commercial vehicle that Defendant Valley Express, Inc. owned. See Complaint ¶¶ 6-7, at 2. As Spina approached a red light, he realized that he was going too fast to brake, so, instead of hitting the vehicles stopped side by side in front of him, he attempted to slip between them. See Complaint ¶ 7, at 2. Rather than avoiding the stopped vehicles, however, he sideswiped both of them, causing both cars to roll into the intersection. See Complaint ¶ 7, at 2-3. Walker was driving one of the sideswiped vehicles and, because of Spina's actions, suffered physical and emotional injuries. See Complaint ¶¶ 7, 11, at 2-4.

MOO at 2, 2018 WL 4100944, at *1.

PROCEDURAL BACKGROUND
Walker sues Spina and Valley Express, asserting negligence, [3] and sues Defendant Dixon Insurance Company, asserting that she has a claim for benefits against it under the [New Mexico Financial Responsibility Act, N.M. Stat. Ann. §§ 66-5-201 to -239] and Raskob[ v. Sanchez, 1998-NMSC-045, 970 P.2d 580] for injuries that Spina's negligence caused. See [Walker's Complaint for Personal Injuries and Damages ¶¶ 8-13, at 3-5, First Judicial District Court, County of Santa Fe, State of New Mexico (filed December 23, 2016), filed in federal court September 29, 2017 (Doc. 1-1)(“Complaint”)]. Spina and Valley Express removed the case to federal court on the basis of diversity jurisdiction. See Notice of Removal to the United States District Court for the District of New Mexico at 1, filed September 29, 2017 (Doc. 1)(“Notice of Removal”).

MOO at 2-3, 2018 WL 4100944, at *1. The Amended Complaint terminated Defendant Dixon Insurance Company as a Defendant and added, in its place, Defendant Great West Casualty Company. See Amended Complaint at 1. In a November 21, 2018, hearing, Walker asserted that she withdrew her claim for punitive damages against Valley Express. See Draft Transcript of Hearing at 56:25-57:1 (taken November 21, 2018)(A. Ayala)(asserting that Walker will not seek punitive damages from Valley Express)(“Nov. 21, Tr.”).[4] In the Memorandum Opinion and Order, 2018 WL 6519133, filed December 11, 2018 (Doc. 104)(“Punitive Damages MOO”), the Court granted summary judgment dismissing Walker's claim for punitive damages against Spina. See Punitive Damages MOO at 52, 2018 WL 6519133, at *19. The Court bifurcated the claims against Spina and Valley Express from those claims against Great West. See Order Granting Defendants' Gregory J. Spina and Valley Express, Inc.'s Motion to Bifurcate at 1, filed January 15, 2019 (Doc. 115)(“Bifurcation Order”). In the Bifurcation Order, to which the parties stipulated, the Court ordered the parties to withhold Great West's name from the jury at the trial between Walker and the Defendants, and excluded evidence of insurance at that trial. Bifurcation Order at 1.

         On January 28, 2019, the Court held a pretrial conference for the trial between Walker, and the Defendants Spina and Valley Express. See Clerk's Minutes at 1, filed January 28, 2019 (Doc. 120). Following the pretrial conference, the parties filed the Punitive MIL, the Medical Records MIL, the Defendants' Exhibits MIL, the Insurance MIL, the Statutes MIL, and the Standard of Care MIL. See Punitive MIL at 1-2; Medical Records MIL at 5; Defendants' Exhibits MIL at 2; Insurance MIL at 3; Statutes MIL at 3; Standard of Care MIL at 3. The same day as the pretrial conference, Walker also filed her Possible Voir Dire Questions. See Possible Voir Dire Questions at 6. For three questions, Walker proposes asking:

5. Have any of you worked for an insurance company in any capacity,
6. Have any of you ever had a close personal friend or Relative [sic] that has ever worked as an adjustor for an an [sic] insurance company?
7. Have any of you had a close personal friend or relative That [sic] has worked for an insurance company in any capacity?

         Possible Voir Dire Questions, Questions 5-7, at 2. As possible question 11, Walker states:

11. In this case, you will hear expert witness Ted Davis, who is hired on a regular basis by the defense, to Testify [sic] against Ms. Walker on a number issues [sic]; will any of you have a hard time giving Ms. Walker a fair trial in light of the fact that the Defendants will call Ted Davis, as expert in this case? Consider all the evidence in the case before making you [sic] mind up after you hear from Mr. Davis?

         Possible Voir Dire Questions, Question 11, at 2. Walker suggests as question 15:

15. Do you know anything about the facts of this case except what you have heard in court today? (Give brief synopsis of facts in this case.)
The facts of this case basically are that an accident happened north of Santa Fe, New Mexico, past the city of Gold Casino at a red light intersection of U.S. Highway 84/285, at intersection SR 503. The witnesses are all from Santa Fe, New Mexico, or Espanola, where Mr. [sic] Walker lives.
In a nutshell, the facts will show that July 23, 2015, the Plaintiff Ms. Walker who was driving her vehicle had slowed for a yellow light, and then stopped. At the same time and place, Karla A. Mcwilliams driving a State of New Mexico van with four (2) individuals had slowed for a yellow light and then stopped for the red light.
You will hear that Mr. Gregory J. Spina was driving a commercial sixteen wheeler, a semi truck with a large trailer, and was driving in the same direction as Ms. Walker and Ms. Mcwilliams, but was unable to slow down or stop, and when he came behind the two vehicles parked at the red light, rather than hit one or the other from behind, decided to drive between the two vehicles; and in that process he hit both vehicles. You will see pictures of the vehicles involved and all the people who came together as a result of that accident.

         Possible Voir Dire Questions, Question 15, at 3. In questions 35 through 43, Walker proposes to ask:

35. Have any of you ever studied psychology or received Training [sic] in psychiatry or psychology?
36. In this case, the Plaintiff will be making a claim for a PTSD injury? Experience with That [sic]?
37. Is anyone going to be able to sit on this jury in light of the fact that a claim for a psychological injury is claimed?
38. Will not be able to give damages for a psychological injury if one is proved?
39. Do you think that it is impossible for a person to suffer PTSD as a result of a vehicle accident?
40. What is your opinion of psychiatrists?
41. Do you recognize that there is a difference between a psychiatrist and a general practitioner?
42. Have you formed any opinion concerning the validity of psychiatry?
43. Do you accept the fact that a properly qualified psychiatrist is an expert in the diagnosis of certain forms of mental illness and mental defects?

         Possible Voir Dire Questions, Questions 35-43, at 5.

         1. The Punitive MIL.

         In the Punitive MIL, Walker requests that, should “Valley Express, Inc., through it's employee Gregory J. Spina . . . commit perjury during his sworn testimony, ” the Court permit Walker “to claim punitive damages in jury instructions and in argument to the jury.” Punitive MIL at 1. Walker recognizes that, in the Court's Punitive Damages MOO, the Court granted summary judgment dismissing Walker's punitive damages claiMs. See Punitive MIL at 1-2. Walker, however, anticipates that Spina “will commit perjury regarding the citation issued to him by retired State Police Officer Quinn, ” and Walker asks that, if Spina makes such statements and if the Court concludes that Walker perjured himself, “a new theory of requesting punitive damages . . . should be allowed.” Punitive MIL at 2.

         2. The Punitive MIL Response.

         The Defendants responded to the Punitive MIL on February 4, 2019. See Defendants' Gregory J. Spina and Valley Express, Inc's Response to Plaintiffs Motion in Limine Regarding Punitive Damages, filed February 4, 2109 (Doc. 144)(“Punitive MIL Response”). The Defendants argue that Walker has no legal basis or theory on which to seek punitive damages, and that, moreover, Walker has waived any claims to punitive damages. See Punitive MIL Response at 2. The Defendants recapitulate that, on November 21, 2018, Walker “withdrew her request for punitive damages” and that, in the Punitive Damages MOO, the Court dismissed Walker's punitive damages claim. Punitive MIL Response at 1. The Defendants assert that, additionally, Spina will not perjure himself and that Walker “has no information to support this conclusion.” Punitive MIL Response at 1.

         3.The Medical Records MIL.

         In the Medical Records MIL, Walker requests that the Court prohibit the Defendants from introducing any exhibits that the Defendants have not provided to Walker, that violate the rules against hearsay, and for which the Defendants do not lay the proper foundation. See Medical Records MIL at 4. Walker complains that the Defendants indicated that they may introduce Walker's medical records in rebuttal. See Medical Records MIL at 2. Walker contends that the Defendants have not established that the medical records are relevant, authentic, and excepted from the prohibition on hearsay, and that the Defendants must meet these requirements before introducing the documents. See Medical Records MIL at 2-3. Walker also argues that she will not introduce her medical records and that the Defendants will not suffer prejudice if they cannot introduce her medical records, because the Defendants have a medical expert and will have the opportunity to cross-examine Walker's medical expert. See Medical Records MIL at 3. Walker additionally objects to “any other document that the Defendants intend to introduce” for rebuttal, because, according to Walker, she has provided the Defendants with her proposed exhibits and these exhibits do not include medical records. Medical Records MIL at 3-4. Walker adds that the Defendants objected to her introducing medical records. See Medical Records MIL at 4. According to Walker, the Defendants, therefore, are limited to introducing documents that are required to complete Walker's exhibits. See Medical Records MIL at 4 (citing N.M. R. Evid. 11-106).

         4.The Medical Records MIL Response.

         The Defendants responded on February 4, 2019. See Defendants' [sic] Gregory J. Spina and Valley Express, Inc. 's Response to Plaintiffs Motion in Limine and Objection to Defendants' Proposed Exhibit List, at 3, filed February 4, 2019 (Doc. 145)(“Medical Records MIL Response”). The Defendants request that the Court deny the Medical Records MIL. See Medical Records MIL Response at 2. The Defendants explain that they identified “‘Plaintiffs medical records necessary for rebuttal' and ‘Any other documents necessary for rebuttal' as potential exhibits in case an area of inquiry not anticipated arises at trial.” Medical Records MIL Response at 1. According to the Defendants, they cannot yet specify the documents that they will require for rebuttal, but the Defendants contend that they “identified documents necessary for rebuttal to put Plaintiff on notice that any document identified in discovery which may contradict or impeach certain witnesses [sic] testimony, may be sought to be introduced at trial.” Medical Records MIL Response at 1. The Defendants note that they may not even require the medical records for rebuttal. See Medical Records MIL Response at 2. The Defendants also dispute Walker's characterization that they strongly objected to her introducing medical records. See Medical Records MIL Response at 2. The Defendants explain that they agreed with the Court “that there may not be an exception which allowed Plaintiffs medical records into evidence, ” that they “would not stipulate to the medical records as exhibits because they believe that the proper foundation must be established for these records to be admitted, ” and that they object to Walker admitting the amended records that Dr. Khalsa has amended since January, 2019. Medical Records MIL Response at 2.

         5. The Defendants' Exhibits MIL.

         In the Defendants' Exhibits MIL, Walker asks that the Court permit her to introduce certain documents in response to the Defendants' proposed exhibits. See Defendants' Exhibits MIL at 2. Walker explains that the Defendants indicated that they would introduce “only a few pages of the Senior Olympic Records, and a few pages of the records for Dr. Khalsa.” Defendants' Exhibits MIL at 2. Walker requests that, pursuant to the rule admitting the “Remainder of or Related Writings or Recorded Statements, ” N.M. R. Evid. 11-106 (capitalization in rule's title), the Court allow her to “introduce the Correction Page to Plaintiffs Deposition correcting her testimony regarding the Olympics, the full record regarding the Olympics, and all of ...


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