2020 U.S. Dist. LEXIS 130741; 2020 WL 4196250

Patricia HOLLAND, surviving mother of Kip Eugene Holland, and Wayne Holland, as administrator of the estate of Kip Eugene Holland, deceased

CYPRESS INSURANCE COMPANY, JW Harper Farms, LLC, and Christopher A. Runyun, as administrator of the estate of James Wendell Harper, deceased

Prior History: Holland v. Cypress Ins. Co., 2019 U.S. Dist. LEXIS 232428 (N.D. Ga., Oct. 22, 2019)

ORDER

This case comes before the Court on an array of miscellaneous motions filed by the parties, the parties' Consolidated Pretrial Order ("CPTO") [Doc. 149], and following the Final Pretrial Conference, held January 8, 2020. The Court emphasizes that several of the Court's rulings on motions in limine are tentative in nature and will necessarily depend upon the context of the evidence presented at trial. In addition, as discussed during the pretrial conference, the Court anticipates that further development of the record (i.e., the depositions of relevant medical personnel that had not occurred as of January 8, 2020) will inform some of the reserved issues.

Defendants' Motion for Leave to File Out of Time Motion for Reconsideration [Doc. 147]

On November 22, 2019, Defendants moved for leave to file an untimely motion for reconsideration seeking dismissal of Plaintiff's claim for punitive damages. [Doc. 147]. Defendants contend that Plaintiffs cannot recover punitive damages from the estate of an alleged deceased tortfeasor — here, the decedent, James Wendell Harper ("Harper") – under Georgia law. Defendants admittedly did not raise this issue in their motion for summary judgment. On October 22, 2019, the Court denied Defendants' motion, in part, with respect to punitive damages. [Doc. 143]. While this is not an appropriate use of the motion for reconsideration, the Court, in its discretion, reconsiders the availability of punitive damages and agrees that punitive damages are precluded as a matter of law.

Plaintiff commenced the action via complaint on June 8, 2017. Harper died shortly thereafter, on July 31, 2017. The language of O.C.G.A. § 9-2-41, the statute relied upon by Defendants, does not speak to this scenario — where the defendant dies after an action has been brought against him. See Ga. Punitive Damages § 4-11 (2d ed.) ("While the statute expressly prohibits the recovery of punitive damages against the representative of the deceased tortfeasor if the tortfeasor dies before an action has been brought, it does not specifically address the availability of punitive damages in the event the action is commenced prior to the tortfeasor's death."); but see Sightler v. Transus, Inc., 430 S.E.2d 81, 81, 208 Ga. App. 173, 173 (1993) (citing Morris v. Duncan, 54 S.E. 1045, 126 Ga. 467, 470(1) (1906)). Despite the timing issue, precluding punitive damages as a theory of recovery is most consistent with the stated purpose of punitive damages. See O.C.G.A. § 51-12-5.1(a) ("in order to penalize, punish, or deter a defendant") and (c) ("solely to punish, penalize, or deter a defendant"). Plaintiff offers no binding or persuasive authority in support of a different application and essentially conceded this issue during the pretrial conference.

For these reasons, Defendants' Motion for Reconsideration [Doc. 147] as to Plaintiffs' claim for punitive damages is hereby GRANTED. Plaintiffs' claim for punitive damages is DISMISSED.

Defendants' Motion for Trifurcation and Separation of Issues [Doc. 152] & Plaintiffs' Motion for Clarification [Doc. 170]

In light of the Court's ruling on the availability of punitive damages, Defendants' motion for trifurcation was withdrawn by counsel during the pretrial conference. Accordingly, Defendants' motion is DENIED as MOOT to the extent it seeks trifurcation. The Court did not definitively rule on the need for bifurcation concerning Plaintiffs' bad faith attorney's fees claim pursuant to O.C.G.A. § 13-6-11, which provides for the expenses of litigation to be awarded as damages where specially pleaded and "where defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense[.]" However, the Court discussed its inclination to allow the presentation of any underlying evidence of bad faith within Plaintiff's case, and, in the event of a jury finding of bad faith, subsequently submitting a special interrogatory to the jury concerning the amount of damages awarded as a result of Defendants' bad faith.

Plaintiffs have since submitted a motion for clarification or, in the alternative, a motion for bifurcation pursuant to Fed. R. Civ. P. 42(b). [Doc. 170]. Plaintiffs maintain their original position that the Court should "separat[e] the liability phase of the trial, along with the jury's determination of the existence of bad faith in the transaction, from the amount of reasonable attorney's fees and expenses." [Doc. 170 at 2-3]. In this case, Plaintiffs' attorney's fees will be governed by a contingency agreement, and Plaintiffs will also bear the burden of producing evidence of their other litigation expenses. Notwithstanding the existence of a contingency fee agreement, Plaintiffs contend that bifurcation reduces the prejudicial impact for both parties in that, "[i]f the jury is aware of a contingency fee contract prior to awarding compensatory damages, the jury may well increase or decrease the compensatory award to account for any contingency fee depending on their sentiments about the parties or their counsel." [Doc. 170 at 5].

After further consideration, Defendants' Motion for Separation of Issues [Doc. 152] and Plaintiffs' Motion for Clarification [Doc. 170] are GRANTED, such that the trial will be bifurcated. The first phase will address liability, proximate cause, and damages, as well as the question of bad faith in the transaction. In the event the jury finds bad faith, a second phase will address the amount of reasonable attorney's fees and expenses. III. Plaintiffs' Motion for Leave to File Out of Time Disclosure and Corresponding Notice of Disclosure of Expert Matthew E. Cook [Doc. 151]

On December 20, 2019, Plaintiffs moved for leave to file an untimely disclosure of proposed expert witness, Matthew E. Cook ("Cook"). [Doc. 151]. Plaintiffs seek to supplement their identification of Cook as a witness by providing his expert report. [Doc. 151-1, Exhibit A]. Defendants opposed Plaintiffs' motion. [Doc. 154].

Cook is proffered as an expert capable of providing opinion testimony concerning the reasonableness of the Plaintiffs' fees and expenses in the case. Plaintiffs note that Cook was previously identified as a witness in the case. Plaintiffs concede that Cook was not identified as an expert but indicate their willingness to make Cook available for deposition prior to trial. The Court observes that Cook is identified within Plaintiffs' list of witnesses in the parties' CPTO; and the CPTO includes expenses and attorney's fees as items of damages being sought by Plaintiffs. Defendants state that the first notice of the expert was when Defendant received Plaintiffs' portion of the proposed CPTO on December 13, 2019, which falls within the 90-day period prior to trial.

Given that Cook was previously identified as a witness, and in light of Plaintiffs' offer to make Cook available for deposition prior to trial, it seems that any prejudice to Defendants for Plaintiffs' failure to identify Cook as a proposed expert can be cured by deposition prior to trial, if necessary. And Defendants have since noticed the deposition of Cook. [See 1/16/20 Docket Entry 169 - Notice to Take Deposition of Matt Cook by Defendants]. In addition, as stated during the pretrial conference, the Court will allow Defendants the opportunity to identify their own expert witness on this topic.

Accordingly, Plaintiffs' Motion for Leave to File Out of Time Disclosure of Expert Matthew E. Cook is GRANTED. [Doc. 151].

Plaintiffs' Motions in Limine [Docs. 153, 157]

Pursuant to the Court's January 8, 2020, oral rulings, with respect to Plaintiffs' motions in limine concerning the following topics (identified herein as enumerated in Plaintiffs' brief),

The Court GRANTS Plaintiffs' motions in limine regarding:

1) Prior activity or criminal charges of Plaintiffs or Plaintiffs' Decedent;

2) Evidence that Kip Holland had purchased beer;

3) Defendants' Decedent Harper's lack of accidents causing injuries or fatalities and overall safety record;

6) No citations were issued;

7) Decedent Kip Holland's receipt of disability payments;

9) "Tort reform," Plaintiffs' lawyers in general, or the civil justice system in general;

10) Offers of settlement or compromise;

11) Collateral source benefits;

12) Plaintiffs' use of award;

13) The establishment of a fund or annuity;

15) Playing the lottery;

16) Payment of judgment or financial consequences of judgment against any Defendant;

17) Money will not undo damage;

18) Any Defendant regrets or apologizes or asks for forgiveness (except as specified during the pretrial conference);

19) Counsel selection and timing of lawsuit;

20) Fault of non-parties; and

The Court DENIES Plaintiffs' motion in limine seeking to exclude:

14) Plaintiffs' contingent fee contract or attorney sharing in any judgment; and

The Court RESERVES RULING on the following subjects:

4) Lay evidence or speculation that Mr. Harper suffered a medical emergency;

21) Defendants' Decedent Harper's alleged statements to Trooper Munger;

5) Improper use of Defendants' Decedent Harper's medical records; and

8) Defendants' Decedent's doctors' depositions.

Defendants' Motions in Limine [Docs. 155, 156]

Pursuant to the Court's January 8, 2020, oral rulings, with respect to Defendants' motions in limine concerning the following topics (identified herein as enumerated in Defendants' brief),

The Court GRANTS Defendants' motions in limine regarding:

1) Worldly circumstances;

2) Liability insurance, settlement, and testimony by Cypress' Rule 30(b)(6) representatives David T. Dare and Michaela Aldredge;

4) Heightened standard of care;

5) Send a message to the transportation industry;

6) Prior driving / criminal history;

7) Settlement discussions / negotiations;

9) Spoliation against Cypress;

12) Coroner report, death certificates, and funeral documents for James W. Harper; and

The Court DENIES Defendants' motions in limine seeking to exclude:

3) Plaintiffs' proposed expert witness, Matthew Cook;

10) Blue Cross Blue Shield records;

11) Cargill records;

14) Harper's driver health history form; and

The Court RESERVES RULING on the following subjects:

8) Medical testimony; and

13) Harper's hospital drug quick screen and alleged opioid use.

SO ORDERED this 23rd day of January, 2020.

/s/ Richard W. Story

RICHARD W. STORY

United States District Judge