Opinion
CIVIL ACTION NO. 2:17-CV-01098
09-13-2019
MCI COMMUNICATIONS SERVICE INC. v. KC TRUCKING & EQUIPMENT LLC
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.
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. 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.
La. R.S. § 40:1749.11 et seq.
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. 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.
Id. ("No great leap of logic or expertise was necessary for one in Lasere's position to move from his observation of holes in Freightliner fuel tanks at the location of the step brackets, and presumably caused by them, to his opinion that the situation was dangerous. His testimony on this point did constitute an opinion which might have better been given by one more formally an expert; however, it had a strong basis both in his observation and in his experience. As Freightliner's counsel admitted at oral argument, Lasere was a ‘practical expert’ in the field of trucks, if not an expert in their design.").
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." Finally, this testimony will help the jury understand another possible cause of the accident. This Court ruled previously that genuine issues of material fact exist as to cause of the cable damage, and these witnesses will help the jury determine that fact at issue. Defendant may expose issues of credibility and the weight of such circumstantial evidence in cross-examination. Additionally, Defendant may object at trial if the witness appears to rely on any "scientific, technical, or other specialized knowledge" pursuant to Rule 702.
Part of lay opinion analysis "requires that the proponent of the lay opinion testimony establish a sufficient foundation for the trial judge to determine that the opinion is rationally based on the witness's perception of the events at issue." Veals v. Edison Chouest Offshore, LLC , 2009 WL 10710266, at *4 (E.D. La. Mar. 6, 2009) (citing 29 Wright & Gold, Federal Practice and Procedure: Evidence § 6254 ).
B. Defendant's Motion to Exclude Expert Testimony
Federal Rule of Evidence 702 permits expert opinion when:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Rule 702 embodies the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In general, trial judges have the responsibility to act as gatekeepers against unreliable expert testimony. See Daubert , 509 U.S. at 597, 113 S.Ct. 2786. With this responsibility, trial judges "have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho , 526 U.S. at 152, 119 S.Ct. 1167. Furthermore, "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." United States v. 14.38 Acres of Land Situated in Leflore County Mississippi , 80 F.3d 1074, 1078 (5th Cir. 1996). "As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." Primrose Operating Co. v. Nat'l Am. Ins. Co. , 382 F.3d 546, 562 (5th Cir. 2004). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 595, 113 S.Ct. 2786.
See Fed. R. Evid. 702 Advisory Committee Notes, 2000 Amendments.
Federal Rule of Evidence 703 provides that an expert may base opinions on facts of which he is aware even if they are not admissible as long as the probative value outweighs the prejudicial effect. "[E]xperts are permitted wide latitude in choosing what data they rely on in forming their opinions, including those that are not based on first-hand knowledge or observation. Moreover, Fed. R. Evid. 703 contemplates that an expert may base his opinion on facts or data presented at trial." United States v. Seale , 600 F.3d 473, 491 (5th Cir. 2010). When an expert discloses the basis of an opinion, the jury then decides the weight of the opinion even if one-sided. Carter v. Massey-Ferguson, Inc. , 716 F.2d 344, 350 (5th Cir. 1983) ("[The] expert based his testimony on the plaintiff's account of the accident ... He disclosed the underlying basis of his testimony ... Based on this disclosure, the jury could decide how much weight to accord the opinion testimony.").
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Fed. R. Evid. Rule 703.
Defendant's concerns with Mr. Tooley's testimony, again, do not warrant exclusion of evidence at this stage. The expert report shows that Mr. Tooley relied on depositions of both Plaintiff's and Defendant's witnesses in addition to over 60 other documents. Any of Mr. Tooley's assumptions or reliance on shaky evidence speaks to the weight of the evidence rather than admissibility. These issues are subject to challenge via cross-examination. If Mr. Tooley establishes a basis for his opinion regarding the cause of cable damage at trial, he can offer conclusions about Defendant's conduct even if it suggests violations of the Louisiana Underground Utilities and Facilities Damage Prevention Law. Again, the credibility of these determinations is subject to cross-examination. Thus, this aspect of Defendant's motion is denied.
C. Defendant's Motion Regarding Loss of Use, Hearsay, and Undisclosed Evidence
Defendant's motion to exclude Plaintiff from introducing evidence regarding loss of use damages is moot. This Court found that genuine issues of material fact existed regarding that issue and denied Defendant's motion for summary judgment. Thus, loss of use damages will be an issue at trial, and Defendant's Motion in Limine regarding this issue is denied. Defendant's motion seeking to exclude hearsay and evidence not disclosed under Federal Rule of Civil Procedure 26 is also denied. These issues are more appropriate for objections at trial should they arise.
D. Plaintiff's Motion to Exclude Loss of Use Evidence
This Court previously denied Defendant's motion for summary judgment regarding loss of use damages. The inquiry during summary judgment focused on whether loss of use damages were recoverable at all as opposed to the measure of damages. This Court recognizes a split amongst various Louisiana state and federal courts regarding juridical entities and availability of loss of use damages. Consequently, the Court clarifies its reasoning on both availability and measure to tackle the evidentiary issues in the present motion in limine.
Under the Erie doctrine, this Court must apply state substantive law when it sits in diversity. Gasperini v. Ctr. for Humanities, Inc. , 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ; Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). No Louisiana Supreme Court decision has answered the question of whether a juridical entity can recover loss-of-use damages or what the measure of those damages would be. In the absence of authority from the Louisiana Supreme Court, this Court must make an Erie guess as to how the Louisiana Supreme Court would rule. SMI Owen Steel Co., Inc. v. Marsh USA, Inc. , 520 F.3d 432, 436 (5th Cir. 2008). In so doing, the Court's "task is to attempt to predict state law, not to create or modify it." Id. at 442 (quoting Herrmann Holdings, Ltd. v. Lucent Techs., Inc ., 302 F.3d 552, 558 (5th Cir. 2002) ). "In making an Erie guess ... [courts] may look to the decisions of intermediate appellate state courts for guidance." Howe ex rel. Howe v. Scottsdale Ins. Co. , 204 F.3d 624, 627 (5th Cir. 2000). Unfortunately, the state appellate decisions addressing the issue of damages in loss of use cases deal with loss of use of vehicles or homes rather than loss of use of a telecommunications cable.
The parties here cite to several cases discussing the availability of non-pecuniary loss of use damages with respect to juridical persons. The source of the split on this issue stems from two cases in particular. In Level 3 Commc'ns, LLC v. Toomer Elec. Co. , 557 F.Supp.2d 745 (E.D. La. 2008), the Eastern District found that a telecommunications company could recover loss of use damages when a cable was damaged despite the fact that all services were internally rerouted. On the contrary, this district in AT & T Corp. v. Columbia Gulf Transmission Co. , found on similar facts that a telecommunications company could not recover non-pecuniary loss of use damages because the court believed "a Louisiana court would not allow AT & T to recover loss of use damages unless those damages are tied to an economic loss." 2008 WL 4585439, at *4 (W.D. La. Sept. 15, 2008), report and recommendation adopted in part sub nom. AT & T Corp. v. Columbia Gulf Transmission Co. , 2008 WL 4585460 (W.D. La. Oct. 14, 2008).
Under Louisiana law, there is a distinction between mental anguish damages (i.e. classic non-pecuniary damages) related to property loss and claims of loss of use damages. FIE, LLC v. New Jax Condo Ass'n, Inc. , 241 So.3d 372, 386 (La. App. 4th Cir. 2018), writ denied , 243 So.3d 544 (La. 5/25/18), and writ denied , 243 So.3d 545 (La. 5/25/18). The former is rooted in tort law, and the latter is rooted in Louisiana property law. See Chriss v. Manchester Ins. & Indem. Co., 308 So.2d 803, 805 (La. App. 4th Cir. 1975). Louisiana Civil Code art. 476 provides for the three rights that persons may have in things: "(1) Ownership; (2) Personal and predial servitudes; (3) Such other real rights as the law allows." The most pertinent right in this case is the right of ownership which Louisiana Civil code art. 477 defines: "Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law." When a person interferes with one of these rights of ownership by causing damage to property, the owner acquires a personal right of action against the person who causes damage via negligence or otherwise. La. Civ. Code art. 2315 ; See also FIE , 241 So.3d at 386 ; MCI Commc'ns Servs., Inc. v. Hagan , 74 So.3d 1148, 1155 (La. 2011). Thus, loss of use damages compensate an owner's loss of the right to use the property—a right included in the bundle of ownership rights. The rights to use, enjoy, and dispose of things applies to all persons, whether juridical or natural. See Chriss v. Manchester Ins. & Indem. Co., 308 So.2d 803, 805-06 (La. App. 4th Cir. 1975). Loss of the right to use is distinct from the purely tort-law-created non-pecuniary mental anguish damages related to property loss that are reserved for natural persons only. The mental anguish type of damage is related to emotional distress (of which only natural persons experience) inherent in losing property rather than interference of the bundle of ownership rights that all persons experience. See , Chriss , 308 So.2d at 805-06 ; FIE , 241 So.3d at 386.
These rights accompanying ownership under Louisiana's civil law tradition are well known as the rights to usus , fructus , and abusus . Planiol and Ripert, at No. 2332, p. 380 n.1.
Furthermore, the policy goals articulated in the analogous "spare boat" cases are served by this distinction in damages. Many courts around the country have referred to the "spare boat" cases in loss of use telecommunications cases because both types of cases involve situations where plaintiffs use redundancies in case of damage. Specifically, the United States Supreme Court affirmed an award to a ferryboat owner for loss-of-use damages where the owner maintained a "spare boat" which he used in place of a vessel damaged by another ship while the vessel was repaired. The Cayuga , 5 F.Cas. 329, 331 (C.C.E.D.N.Y. 1870), aff'd , 81 U.S. 270, 14 Wall. 270, 20 L.Ed. 828 (1871). The ferryboat owner was awarded damages for loss of use because the Court found that the owner had made the decision to purchase and maintain a spare boat and the tortfeasor should not reap "the benefit of this large outlay" simply because the boat owner did not incur the expense of hiring a replacement boat. Id. In a subsequent case, the United States Supreme Court refused to extend the "spare boat" doctrine to a situation where the "spare" was not set aside for emergency use, but rather, was used in the normal course of business. Brooklyn Eastern Dist. Term. v. United States , 287 U.S. 170, 177, 53 S.Ct. 103, 77 L.Ed. 240 (1932). In the instant matter, Plaintiff has clearly attested that the traffic it was able to reroute was rerouted "to dedicated, spare restoration capacity and routes elsewhere in [MCI's] network ... for use in emergencies." Decl. of Tammy Wilfong, [Rec. Doc. 26-3]. As other courts have found, this places Plaintiff's claim in the "spare boat" category where loss-of-use damages have been allowed.
Based on the distinctions in Louisiana law and policy goals, Plaintiff is eligible for loss of use damages despite its status as a juridical person. The next question necessary to determine the evidentiary issues present in this case is the measure of damages. Loss of use damages are indeed compensatory. FIE , 241 So.3d at 387. Loss of use damages have also been said to be special damages because they "can be measured fairly and to a degree of relative certainty by the rental value of substitute property." FIE , 241 So.3d at 387. This Court agrees with the Louisiana Fourth Circuit Court of Appeal that rental value of substitute property is one way to measure loss of use damages, but this Court declines to hold that rental value of substitute property is the only way to measure loss of use damages in this context.
Neither the Louisiana Civil Code nor the Louisiana Supreme Court has articulated a rule to measure damages in the telecommunications context at issue in this case. Nevertheless, Louisiana recognizes two types of damages: general and special. Special damages can be calculated with relative certainty, and general damages are considered "speculative in nature." Loss of use damages can only be considered special damages if rental value for a substitute is the only measure of the damages. The limited guidance on loss of use damages from the Louisiana Supreme Court confirms that the measure of these damages is not so constrained: "Normally, this Court has measured the damages for loss of use by the rental cost of a substitute vehicle. The award, however, need not be restricted to rental. Much discretion is vested in the trial court." Alexander v. Qwik Change Car Ctr., Inc. , 352 So.2d 188, 190 (La. 1977) (internal citations omitted). Fundamentally, loss of use is measured by "the value of the use." Id. Rental value is merely one way to ascertain that value. This Court's decision not to limit the measure of damages to substitute rental value adds speculation to the calculation. Thus, loss of use damages in this case must be classified as general damages.
1 Louisiana Tort Law § 7.02 (2018)
Id.
Although rental value is a common measure of loss of use damage, the vast majority of cases using that measure involve automobiles and real estate. Rental value, by itself, is not an appropriate measure of damages in contexts like this case. Tort damages are designed to place the injured party in the position it would have been in had the tortious conduct not occurred. Wainwright v. Fontenot , 774 So.2d 70, 74 (La. 2000). Indeed, with repair costs of less than $15,000 and no apparent evidence at this point that Plaintiff lost any customers, business, or revenue as a result of the severed cable, the amount of loss-of-use damages Plaintiff is seeking may be excessive, amounting to a windfall. Nevertheless, Plaintiff may be able to show some loss of use at trial that the jury can quantify. Based on the fundamental calculation for loss of use damages, the discretion vested in a trial court regarding measure of damages, and policy concerns, this Court will instruct the jury, within reasonable bounds, that rental value is not the only measure of loss of use damages.
See 1 La. Prac. Pers. Inj. § 5:141.
See e.g. Chriss v. Manchester Ins. & Indem. Co. , 308 So.2d 803 (La. App. 4th Cir. 1975) ; Smith v. Midland Risk Ins. Co. , 699 So.2d 1192 (La. App. 2d Cir. 1997) ; Nunez v. St. Bernard Par. Fire Dep't , 519 So.2d 857 (La. App. 4th Cir. 1988).
This concern regarding the conflict between the policy of tort damages and rental value as a measure in telecommunications cases is not new. For a detailed analysis, see Level 3 Commc'ns, LLC v. TNT Constr., Inc. , 220 F.Supp.3d 812 (W.D. Ky. 2016).
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Having clarified the legal issues surrounding loss of use damages, the Court turns to the instant motion in limine. Federal Rules of Evidence 401 states, "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Nevertheless, Rule 403 provides, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." As explained at the outset, Plaintiff seeks to exclude evidence of whether it paid refunds, credits, or offsets to its customers. This evidence, along with Plaintiff's third type of evidence concerning whether it lost revenue, profit, or pecuniary costs, is potentially relevant with respect to damages. However, both types of evidence should not be admitted because its probative value is substantially outweighed by the possibility of confusing the issues or misleading the jury. Both of these types of evidence will likely cause the jury to believe that Plaintiff may only recover for pecuniary loss of use. As explained previously, this is not the case. Nevertheless, the Court will allow Defendant to introduce evidence of whether Plaintiff's customers received interrupted service and the effect of any interruption on customers.
The second type of evidence Plaintiff seeks to exclude is whether Plaintiff was able to reroute calls or procure capacity from other carriers. This evidence is relevant to the measure of the value of the loss of use. Defendant should be able to challenge Plaintiff's measure of damages, and this evidence does not facially suggest that pecuniary loss is necessary. Thus, this evidence will not be excluded.
E. Plaintiff's Motion to Exclude Evidence of "Excavation"
The Louisiana Underground Utilities and Facilities Damage Prevention Law at the time of the incident in this case defined "excavation":
"Excavation" or "excavate" means any operation causing movement or removal of earth, rock, or other materials in or on the ground or submerged in a marine environment that could reasonably result in damage to underground or submerged utilities or facilities by the use of powered or mechanical or manual means, including but not limited to pile driving, digging, blasting, augering, boring,
back filling, dredging, compaction, plowing-in, trenching, ditching, tunneling, land-leveling, grading, and mechanical probing. "Excavation" or "excavate" shall not include manual probing or any force majeure, act of God, or act of nature.
La. Rev. Stat. § 40:1749.12 (2016). Evidence concerning whether Defendant engaged in an "operation causing movement or removal of earth" is relevant under Rule 401 in making negligence more or less probable. Whether Defendant was excavating is an issue of fact that the jury must decide in order to help the jury determine if Defendant acted negligently. This Court refuses to hold that any admission from Defendant's witness that equipment was merely being driven means, ipso facto , that excavation was occurring. Thus, Plaintiff's Motion in Limine on this issue is denied.
Conclusion
To summarize, for the reasons stated above, the Court rules on the motions in limine as follows:
(1) Defendant's Motion in Limine is DENIED ; Rec. Doc. [39]
(2) Plaintiff's Motion in Limine regarding excavation is DENIED ; Rec. Doc. [42] and
(3) Plaintiff's Motion in Limine regarding loss of use damages, Rec. Doc. [40], is GRANTED IN PART and DENIED IN PART as follows:
(a) Defendant is prohibited from introducing evidence or making argument regarding the lack of refunds, credits, or offsets to Plaintiff's customers;
(b) Defendant is prohibited from introducing evidence or making argument regarding Plaintiff's lack of lost revenue, profit, or pecuniary costs; and
(c) The Parties are allowed to introduce evidence and make argument regarding any interruption of service to Plaintiff's customers (or lack thereof) and the effect of any such interruption (or lack thereof).
(d) The Parties are allowed to introduce evidence and make argument regarding Plaintiff's ability to reroute calls or procure capacity from other carriers.
THUS DONE AND SIGNED in Lafayette, Louisiana, on this 13th day of September, 2019.