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Prescott v. R&L Transfer, Inc.

United States District Court, W.D. Pennsylvania

June 10, 2015



KIM R. GIBSON, District Judge.

Pending before the Court in this matter are (1) Defendant's motion (ECF No. 191) to preclude evidence of lost income; (2) Defendant's motion (ECF No. 190) to preclude the testimony of Michael Zabel; (3) Defendants' motion (ECF No. 193) to preclude testimony of Jeffrey Wade; (4) Defendants' motion (ECF No. 199) to preclude evidence of Defendants' responses to requests for admissions; and (5) Plaintiff's motion (ECF No. 206) to quash Defendants' notice of intent to serve record subpoenas.[1] The parties have filed a separate response in opposition to each motion. ( See ECF Nos. 209, 210, 208, 211, and 212). The motions have been fully briefed and are now ripe for disposition.

This case arises from personal injuries sustained by Plaintiff after the tractor-trailer that he was driving left the roadway and crashed in an embankment. Plaintiff alleges that Clark Mead, an employee of R&L who was also driving a tractor-trailer, forced Plaintiff off the road, causing the accident. The Court previously set forth the relevant background of this case in its Memorandum Opinion on the parties' cross-motions for summary judgment. ( See ECF No. 170 at 2-6). Trial in this matter is currently scheduled to begin on September 8, 2015. The Court will separately address each of the pending motions listed above.

(1) Evidence of Lost Income (ECF No. 191)

Defendants have filed a motion (ECF No. 191) to exclude Plaintiff's evidence of lost income. According to Defendants, Plaintiff intends to present evidence of his lost income resulting from the accident. Defendants contend that such evidence would be speculative and prejudicial. Specifically, Defendants argue that Plaintiff did not produce sufficient records during discovery to substantiate Plaintiff's post-accident loss of income and that Plaintiff did not disclose his intent to present lay testimony-rather than expert testimony-to establish his lost income until he filed his witness list. (Id. at 2-3). Thus, Defendants argue that this Court should exclude the testimony of Barbara Bennett and James Starnes as loss of income witnesses because they will present lay testimony rather than expert opinions and reports. (Id. at 3). In response, Plaintiff argues that Defendants were on notice of Plaintiff's intent to seek loss of income damages. (ECF No. 209 at 2). Plaintiff also argues that he is not required to present expert testimony to establish his loss of income resulting from the accident.

Generally, expert testimony is not required to establish loss of income damages. See Maxfield v. Sinclair Int'l, 766 F.2d 788, 797 (3d Cir. 1985) (noting that lay testimony based on a plaintiff's former earnings history is appropriate for proving future earnings damages where "[t]here were no projections in earnings for which expert testimony was required"). However, Federal Rule of Evidence 701 requires that a lay witness have a "reasonable basis grounded either in experience or specialized knowledge for arriving at the opinion that he or she expresses." Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 82 (3d Cir. 2009) (quoting Eichorn v. AT & T Corp., 484 F.3d 644, 649 (3d Cir. 2007)). Accordingly, here, Plaintiff will be permitted to present lay witness testimony to establish his lost earnings to the extent that the claim for damages and the testimony presented does not necessitate expert opinions or projections that would require expert testimony.

Furthermore, Plaintiff has presented exhibits in the form of discovery disclosures and deposition testimony showing that Defendants had sufficient notice of Plaintiff's intent to present evidence and testimony from lay witnesses regarding Plaintiff's lost income. Defendants deposed both witnesses. Accordingly, Plaintiff's motion to preclude evidence of lost income is DENIED.

(2) Testimony of Michael Zabel (ECF No. 190)

Defendants have filed a motion (ECF No. 190) to exclude testimony of Defendants' attorney Michael Zabel. Plaintiff recently filed his pre-trial witness list in which he noticed his intend to call Defendants' attorney, Michael Zabel, to testify regarding his conversation with Luke French. ( See ECF No. 183 at 8). Defendants assert that such testimony is inadmissible because it violates the attorney-client privilege. (ECF No. 190 at 3). In response, Plaintiff argues that the testimony is admissible because French's conversation with Zabel was not for the purpose of seeking legal advice and, furthermore, was disclosed to Plaintiff's counsel and therefore cannot be covered under the attorneyclient privilege. (ECF No. 210 at 4).

The attorney-client privilege is one of the oldest privileges for confidential communications known to the law. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id.; see also Nesselrotte v. Allegheny Energy, Inc., 242 F.R.D. 338, 340 (W.D. Pa. 2007). Under Rule 501 of the Federal Rules of Evidence, a district court exercising diversity jurisdiction applies the law of privilege from the state in which it sits. Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978). Pennsylvania defines the attorney-client privilege by statute:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

42 Pa. Cons. Stat. Ann. ยง 5928; see also Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283, 284 (E.D. Pa. 2002).

The Third Circuit has explained the required elements to establish the attorney-client privilege under Pennsylvania law as follows:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his or her subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Montgomery Cnty. v. MicroVote Corp., 175 F.3d 296, 301 (3d Cir. 1999); Kephart v. ABB, Inc., No. 2:12-cv-668, 2014 WL 1452020, at *3-5 (W.D. Pa. Apr. 14, 2014); see also In re Grand Jury Proceeding Impounded, 241 F.3d 308, 316 n. 6 (3d Cir. 2001) (Communications are protected under the attorney-client privilege when: (1) legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection may be waived.).

Similar to the attorney-client privilege is the work-product doctrine. Cottillion v. United Ref. Co., 279 F.R.D. 290, 301 (W.D. Pa. 2011). The work-product doctrine is governed by federal law, even in diversity cases. Highland Tank & Mfg. Co. v. PS Int'l, Inc., 246 F.R.D. 239, 244 (W.D. Pa. 2007). In Hickman v. Taylor, the Supreme Court examined the work-product doctrine and adopted "the general policy against invading the privacy of an attorney's course of preparation." Hickman v. Taylor, 329 U.S. 495, 512, (1947). "At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare ...

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