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Crigger v. McIntosh

United States District Court, E.D. Kentucky, Central Division, Lexington

June 8, 2017



          Danny C. Reeves United States District Judge.

         This matter is pending for consideration of the defendant's motion for summary judgment [Record No. 23], motion in limine [Record No. 32], and motion to exclude evidence [Record No. 33]. For the following reasons, the motion for summary judgment will be granted, in part, and denied, in part. The motion in limine and motion to exclude will be denied.

         I. Background

         Plaintiff Jason Crigger (“Crigger” or “plaintiff”) is an Emergency Medical Technician (“EMT”) who works for an ambulance service called Arrow-Med in Breathitt County, Kentucky. [Record No. 1');">1');">1');">1');">1');">1');">1');">14-1');">1');">1');">1');">1');">1');">1');">1, p. 5] Darrell McIntosh (“McIntosh” or “defendant”) is a Breathitt County Deputy Sheriff. [Record No. 1');">1');">1');">1');">1');">1');">1');">1-1');">1');">1');">1');">1');">1');">1');">1, p. 1');">1');">1');">1');">1');">1');">1');">1] He also is the owner McIntosh Ambulance, a competitor of Arrow-Med. Id. Arrow-Med and McIntosh became involved in a commercial dispute, which resulted in Arrow-Med filing suit against McIntosh in Breathitt Circuit Court in October 201');">1');">1');">1');">1');">1');">1');">15 (See Breathitt Civil Action, C1');">1');">1');">1');">1');">1');">1');">11');">1');">1');">1');">1');">1');">1');">15-CI-240.) [Record No. 1');">1');">1');">1');">1');">1');">1');">1-1');">1');">1');">1');">1');">1');">1');">1, p. 2; 1');">1');">1');">1');">1');">1');">1');">14-1');">1');">1');">1');">1');">1');">1');">1, p. 2]

         On June 22, 201');">1');">1');">1');">1');">1');">1');">16, McIntosh apparently was observing activities in a dialysis center parking lot in Jackson, Kentucky. [See Record No. 1');">1');">1');">1');">1');">1');">1');">15-1');">1');">1');">1');">1');">1');">1');">1, p. 1');">1');">1');">1');">1');">1');">1');">1.] He claims that he observed Crigger driving with one hand and “doing something on his cell phone with the other hand.” Id. According to McIntosh, this constituted careless or reckless driving, especially because a patient was being transported. Id. McIntosh “attempted to flag down” the ambulance, but Crigger did not stop. McIntosh then activated his emergency lights as Crigger was pulling onto the highway. Both vehicles then pulled to the shoulder of the road. Id. McIntosh contends that he approached Crigger and explained that he had stopped him for “driving while using his cell phone.” [Record No. 1');">1');">1');">1');">1');">1');">1');">15-1');">1');">1');">1');">1');">1');">1');">1, p. 2] According to McIntosh, Crigger asked if he was being detained. When McIntosh told him that he was not, Crigger left the scene without incident. McIntosh maintains that the stop lasted two minutes or less. Id. at p. 2.

         Crigger's version of events differs somewhat.[1');">1');">1');">1');">1');">1');">1');">1" name="FN1');">1');">1');">1');">1');">1');">1');">1" id="FN1');">1');">1');">1');">1');">1');">1');">1">1');">1');">1');">1');">1');">1');">1');">1] [Record No. 1');">1');">1');">1');">1');">1');">1');">14-1');">1');">1');">1');">1');">1');">1');">1, p. 3] He testified that McIntosh had been following “just about every one of [Arrow-Med's ambulance drivers]” for several months. Id. at p. 9. Accordingly, “one or two” of the drivers had taken photos with their cell phones to document McIntosh following them. Id. Crigger stated that he grew tired of McIntosh following and harassing the EMTs so, while in the parking lot, he pointed his cell phone at McIntosh. Id. at p. 1');">1');">1');">1');">1');">1');">1');">11');">1');">1');">1');">1');">1');">1');">1-1');">1');">1');">1');">1');">1');">1');">12. Crigger concedes that he had his cell phone “up” for an unspecified length of time while operating the ambulance, but denies that he was “filming” McIntosh while the vehicle was in motion. Id. at p. 1');">1');">1');">1');">1');">1');">1');">12. Rather than discussing a traffic violation, Crigger alleges McIntosh detained him for approximately five minutes during which McIntosh accused him of “filming patients” and violating the Health Insurance Portability and Accountability Act (“HIPAA”). Id. at p. 6-7.

         On June 24, 201');">1');">1');">1');">1');">1');">1');">16, Crigger filed this action in Breathitt Circuit Court. Thereafter, McIntosh filed a timely notice of removal. [Record No. 1');">1');">1');">1');">1');">1');">1');">1] Crigger alleges that his seizure was without probable cause and based on McIntosh's misuse of his position as deputy sheriff. [Record No. 1');">1');">1');">1');">1');">1');">1');">1-1');">1');">1');">1');">1');">1');">1');">1 at p. 2] His claims include false detention and imprisonment in violation of the Fourth Amendment under 42 U.S.C. § 1');">1');">1');">1');">1');">1');">1');">1983 as well as a state law claim of false imprisonment.

         II. Motion to Exclude

         The defendant has moved under Rule 37 of the Federal Rules of Civil Procedure to exclude all evidence at trial which the plaintiff failed to disclose under Rule 26. [Record No. 33] This would result in excluding all of the plaintiff's proposed evidence, since the plaintiff concedes that he failed to make any disclosures prior to the close of discovery. Id. at p. 3.

         “If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial.” Fed.R.Civ.p. 37(c)(1');">1');">1');">1');">1');">1');">1');">1). This sanction is mandatory unless the offending party provides a reasonable explanation for the non-compliance or the mistake was harmless. Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th Cir. 201');">1');">1');">1');">1');">1');">1');">10). In determining whether a party's omitted or late disclosure is substantially justified or harmless, the Court considers the following factors: “(1');">1');">1');">1');">1');">1');">1');">1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the non-disclosing party's explanation for its failure to disclose the evidence.” Howe v. City of Akron, 801');">1');">1');">1');">1');">1');">1');">1 F.3d 71');">1');">1');">1');">1');">1');">1');">18, 747-48 (6th Cir. 201');">1');">1');">1');">1');">1');">1');">15).

         In this case, the plaintiff has failed to offer a valid justification for failing to comply with the requirements of Rule 26. [See Record No. 42.] Instead, counsel appears to have been under the impression that the related issues in the state-court proceeding somehow relieved the plaintiff of his obligation to provide initial disclosures in this case. While this position is patently incorrect, there is a strong preference for deciding cases on their merits. Therefore, the Court is reluctant to impose the sanctions requested by the defendant based on the obvious lack of diligence by the plaintiff's attorney. The first four Howe factors weigh in favor of admitting the limited evidence identified in the plaintiff's untimely Rule 26 disclosures. [Record No. 42-2] The plaintiff has not identified any items or documents other than pleadings filed in the state-court record. Id. at p. 2. Additionally, the only individuals identified are Crigger, an Arrow-Med employee who was present during the traffic stop, and the owner of Arrow-Med.[2] Id. It is clear that the defendant was aware of these pleadings and individuals prior to the close of discovery in the instant matter. Accordingly, the danger of surprise with respect to this evidence is absent.

         Rule 26 also provides that “a party must, without awaiting a discovery request, provide . . . a computation of each category of damages . . . [and] the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based.” Fed.R.Civ.p. 26(a)(1');">1');">1');">1');">1');">1');">1');">1)(A)(iii). The plaintiff likewise did not comply with this requirement, but provided computations for punitive damages and damages for embarrassment and humiliation in his belated Rule 26 disclosures. The Court notes that the plaintiff identified each of these categories of damages in his Complaint. Further, the defendant has not objected specifically to the plaintiff's failure to disclose damages. It is generally recognized that “because emotional suffering is personal and difficult to quantify and because compensatory damages are typically considered a fact issue for the jury, emotional distress damages are not subject to the kind of calculation” required for initial disclosures. Scheel v. Harris, No. 3: 1');">1');">1');">1');">1');">1');">1');">11');">1');">1');">1');">1');">1');">1');">1- CV-1');">1');">1');">1');">1');">1');">1');">17, 201');">1');">1');">1');">1');">1');">1');">12 WL 3879279, at *7 (E.D. Ky. Sept. 6, 201');">1');">1');">1');">1');">1');">1');">12). Punitive damages, like damages for emotional suffering, are not readily amenable to the requirements of Rule 26(a)(1');">1');">1');">1');">1');">1');">1');">1)(A)(iii). Id.

         On August 2, 201');">1');">1');">1');">1');">1');">1');">16, the Court entered a Scheduling Order which included deadlines for making disclosures under Rule 26(a). [Record No. 7] In that Order, the parties were directed to file monthly joint status reports, summarizing the activities in the case for the preceding thirty days. Id. at p. 5. Although the parties submitted timely reports, neither indicated that the Scheduling Order had not been followed or that discovery was not proceeding according to plan. Based on the foregoing, the defendant's motion to exclude will be denied.

         III. Summary Judgment

         Summary judgment is appropriate when there are no genuine issues regarding any material facts and the movant is entitled to judgment as a matter of law. Fed.R.Civ.p. 56(a). See Celotex Corp. v. Catrett, 1');">1');">1');">1');">1');">1');">1');">17');">477 U.S. 31');">1');">1');">1');">1');">1');">1');">17, 322-23 (1');">1');">1');">1');">1');">1');">1');">1986). A dispute over a material fact is not “genuine” unless a reasonable jury could return a verdict for the nonmoving party. The Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251');">1');">1');">1');">1');">1');">1');">1-52 (1');">1');">1');">1'); ...

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