Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,302 Cases and Articles on TJV!
 
Federal Case Categories







Trucking Company Appeals $15 Million Accident Judgment

Frederick v. Swift Transportation Co., Inc., Case Nos. 09-3080, 09-3082 (C.A. 10, Aug. 10, 2010)

In this appeal the Appellant, Swift Transportation, raises ten issues based on various rulings by the district court leading up to and during the course of a jury trial in which Swift was found liable on claims brought by the Appellees, Terry and Donna Frederick. Swift argues these rulings, individually and considered together, resulted in an unfair trial; and we should grant a new trial as to both liability and damages. The Fredericks, in turn, cross-appeal the district court’s denial of their motion for prejudgment interest.

On the morning of March 16, 2006, a Yellow Freight tractor-trailer collided with a Swift Transportation tractor-trailer as the Swift tractor-trailer was attempting to enter a rest stop off of U.S. Highway 54 in New Mexico. Terry Frederick, who was in the sleeping berth of the Yellow Freight tractor-trailer at the time of the accident, and his wife, Donna, subsequently brought this action against Swift for the injuries he sustained. Following a trial on the merits, the jury returned a verdict in favor of the Fredericks for a total of $23,500,000. After a reduction for comparative fault, the court entered judgment against Swift in the amount of $15,275,000. On appeal, Swift challenges the court’s rulings on several jury instructions, as well as the court’s rulings on the admissibility of certain witness testimony and evidence. The Fredericks, in their cross-appeal, argue the court’s denial of prejudgment interest was contrary to the evidence and New Mexico law. We address each issue in turn.

Jury Instructions


We “review a district court’s decision to give a particular jury instruction for abuse of discretion.” United States v. Platte, 401 F.3d 1176, 1183 (10th Cir. 2005) (internal quotation marks omitted). However, “we review de novo legal objections to the jury instructions.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir. 1996). “Where an appellate court determines that the district court has given a legally erroneous jury instruction, the judgment must be reversed if the jury might have based its verdict on the erroneously given instruction.” Level 3 Commc’n, LLC v. Liebert Corp., 535 F.3d 1146, 1158 (10th Cir. 2008) (emphasis omitted). We review the district court’s interpretation of state law de novo. Daniel, 97 F.3d at 1332. It is undisputed New Mexico law governs the substantive merits of this dispute.

A. Course and scope of employment

At the close of the Fredericks’ evidence, the court ruled as a matter of law that Swift’s driver, who tested positive for methamphetamine on a drug test several hours after the accident, acted within the scope and course of employment. The court then instructed the jury that “Swift is liable for any negligence of [its driver].” (Appellant’s App. at 2014.) On appeal, Swift argues the court erred in giving this instruction because whether its driver consumed methamphetamine before or after the accident is a disputed fact; thus, the jury could have found that the driver ingested the methamphetamine before the accident and that this action removed her from the course and scope of her employment.
 

 

Judge(s): Tacha, McKay, Gorsuch
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Damages , Expert Witness , Torts , Transportation
 
Circuit Court Judge(s)
Neil Gorsuch
Monroe McKay
Deanell Tacha

 
Trial Court Judge(s)
Monti Belot

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Michael W. Blanton, Esq. Michael W. Blanton
Douglas R. Bradley Shamberg Johnson & Bergman Chtd
Lynn Johnson Shamberg Johnson & Bergman Chtd
Scott E. Nutter Shamberg Johnson & Bergman Chtd

 
Defendant Lawyer(s) Defendant Law Firm(s)
James Jarrow Baker Sterchi Cowden & Rice LLC
John A. Watt Baker Sterchi Cowden & Rice LLC
Brandon Henry Wagstaff & Cartmell LLP
Thomas Wagstaff Wagstaff & Cartmell LLP

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
app. at 285.) however, the court disregarded this disparity, noting that "there is defendant-appellant/ abandoned h[er] employment and was acting for a purpose of h[er] own which 5 -14- atkinson (the fredericks' trucking safety expert) because their testimonies did not jury returned a verdict in favor of the fredericks for a total of $23,500,000. after admissibility of expert testimony country fleet, the 026 route. at trial the court gave the following instruction, in -5- inc. v. principal mut. life ins. co., 170 f.3d 985, 994 (10th cir. 1999) district court has given a legally erroneous jury instruction, the judgment must be evidence its driver was "promoted"; rather, according to swift, the evidence in response to the fredericks' offer of $14,000,000).6 uniform jury instructions provide that whether pre-trial offers are reasonable." (appellees' supplemental app. at 286.) amount of $15,275,000. on appeal, swift challenges the court's rulings on jury's final award. see koon v. united states, 518 u.s. 81, 100 (1996) ("a (quoting hansen, 641 p.2d at 521). at the time of the accident, swift's driver a. admissibility of expert testimony from dr. sperry and mr. atkinson denied. severely impaired by methamphetamine that a jury could find she had not apportion damages."). on appeal, swift argues that because the plain language of sought to proffer at trial had already been submitted to and considered by the reason"). court in the context of the fredericks' motion to strike reed's testimony. any clerk of court proponent must explain what it expects to show and the grounds for which the which includes violations of the federal motor carrier safety regulations. the potential liability under the theory of negligent hiring or retention after it had offices of michael w. blanton, leawood, kansas, with him on the briefs) for respondeat superior, allowing claims for negligent entrustment, hiring, and employment." nichols v. united states, 796 f.2d 361, 365 (10th cir. 1986) considered whether to affirm an award of prejudgment interest. id. at 366. the 026 fleet." (appellant's app. at 2007.) swift argues there was not substantial consuming methamphetamine were to constitute an abandonment of the driver's to both liability and damages. the fredericks, in turn, cross-appeal the district [the defendant's] offer was unreasonable," this finding could be inferred from the a "trial court should take into account all relevant equitable considerations improper under rule 609(b) of the federal rules of evidence because the interest. b. evidence of prior convictions & driving issues additional briefing following the hearing. finally, the court issued detailed damages. cf. gillingham v. reliable chevrolet, 966 p.2d 197, 203 (n.m. ct. cases from various jurisdictions holding that "when an employer admits the §§ 383.213(a), 382.501(a), or 392.4(a), "then [the driver's] conduct constitutes employer's interest." uji 13­407 nmra. indeed, even if the actual act of certainly do not hold that ingesting illicit drugs can never remove an employee the ten issues swift has raised on appeal. accordingly, swift's motion is 1 reversed if the jury might have based its verdict on the erroneously given accident and that this action removed her from the course and scope of her inc., 871 p.2d 365 (n.m. 1994), where the new mexico supreme court interest need only be ascertainable from the record and not contrary to logic and b. negligence per se under the federal safety regulations swift's driver manager described the 026 route as having "the best miles" and accident. the court based this ruling on its reading of new mexico's safety belt marks omitted). we review de novo the district court's interpretation of state new mexico law. we address each issue in turn.3 terry l. frederick; donna f. order denying swift's motion for a new trial, this argument "conveniently the disputed evidence was relevant to the fredericks' claims, and the court gave with a swift transportation tractor-trailer as the swift tractor-trailer was negligence as a matter of law." (appellant's app. at 2021.) swift argues this 2 between swift's settlement offer and the final verdict in this case." (appellees' on the morning of march 16, 2006, a yellow freight tractor-trailer collided denial of prejudgment interest not eroded by the dilatory tactics of the tortfeasor."). accordingly, we do not its driver's actions. lastly, the court concluded an award of prejudgment interest (recognizing that an employee may return to her employment after previously conclude the district court did not abuse its discretion by allowing this evidence. which concerns the cross-appeal, or, alternatively, for leave to file a sur-reply interest." id. the fredericks now argue this last statement should be taken to united states court of appeals interest and did not arise entirely from some external, independent -11- it should be noted that at a later mediation swift raised its settlement offer then turned to the reasonableness of swift's settlement offer of $400,000 (given cumulative error -2- retention along with its claims under respondeat superior when the plaintiff "has a leading up to the collision. these studies clearly go beyond mere trucking safety outweigh[ed] its prejudicial effect." fed. r. evid. 609(b). we see no abuse of the pre-trial conference, so that during trial the judge is well aware of the content employer's business assigned to the employee, and for the foregoing reasons we affirm the district court's rulings on all other court has adopted the fredericks' proposed view. rather, we read lucero, and a perception study showing what a driver could have seen on the night of the mexico supreme court would adopt it. the fredericks' complaint alleged valid lynn r. johnson of shamberg, johnson & bergman, chtd., kansas city, bergman, chtd., kansas city, missouri, and michael w. blanton of the law after reviewing the record and the parties' briefs, we being "really a good deal for the teams." (appellees' supplemental app. at 172.) the record indicates this new assignment was more difficult, involved negligence in hiring and retaining the employee." id.; see also, e.g., coville v. mchaffie v. bunch, 891 s.w.2d 822, 826 (mo. 1995); tindell v. enderle, 320 plaintiffs-appellees/ issues raised by swift, as well as the court's ruling on the issue of prejudgment in denying the fredericks' motion for prejudgment interest, the trial court & rice, llc, overland park, kansas, for defendant­appellant/cross­appellee. under the influence of methamphetamine is a negligent act, "but this does not mgmt. co. v. mendelsohn, 552 u.s. 379, 384 (2008). "this is particularly true court committed no error in providing this instruction. the court then held daubert hearings where the witnesses were subjected to safety restraint is sufficiently similar to a child passenger restraint device or a novo legal objections to the jury instructions." daniel v. ben e. keith co., 97 uji 13­407 nmra. while this rule seems simple, "because of the ever-varying returned to her employment even after she had resumed driving, as new mexico two or more actual errors; it does not apply to the cumulative effect of non- and unambiguous meaning. (appellant's first br. at 48.) -10- 2000). brief. essentially, swift argues the fredericks' reply brief, which contains a we are not convinced that lucero stands for the proposition that a court swift argues the trial court erred by denying its motion to exclude the some other buzz word to describe [the driver's] transfer to the 026 fleet, but the first, as to the court's gatekeeper function, the record shows that for both 6 that swift's driver, who tested positive for methamphetamine on a drug test for support, swift points to a line of (1) if the plaintiff was the cause of unreasonable delay in the the statute does not include tractor-trailer sleeper safety nets, the court's ruling -13- as did the new mexico supreme court in a subsequent case, to stand for the argue the court's denial of prejudgment interest was contrary to the evidence and admit or exclude an expert's testimony for abuse of discretion." dodge v. cotter (reviewing a rule 37(c) ruling for abuse of discretion). swift argues these studies judgment that the purposes of section 56-8-4(b) would not be served by an award the difference between the first settlement offer and the final judgment, the court was not incident to h[er] employment." hansen v. skate ranch, inc., 641 p.2d new mexico's courts have expressly avoided ruling on this theory, see cross-appellee. state law de novo. daniel, 97 f.3d at 1332. it is undisputed new mexico law against swift for the injuries he sustained.2 jury instructions 328 f.3d at 1223 (emphasis and internal quotation marks omitted), concerning the the trial court did not abuse its discretion by awarding lucero prejudgment several jury instructions, as well as the court's rulings on the admissibility of we next consider swift's arguments concerning several of the district -16- [a] court in its discretion may allow interest of up to ten percent from as a final issue, we must address the fredericks' cross-appeal, which appropriate limiting instructions to the jury concerning those pieces of evidence 368. the court concluded by stating that "[g]iven the final outcome of the case, accident, fell within areas outside the scope of reed's expert designation. see fredericks' claims. although the fredericks' expert did not testify swift's omitted). -8- at trial the court instructed the jury that if it found swift's driver violated errors."). applicability of respondeat superior, it is entitled to summary judgment on claims d. "promotion" to the 026 fleet vehicle on its prescribed route and in furtherance of her employer's interests. party believes the evidence to be admissible." polys v. trans-colorado airlines, to strike the proposed expert testimony of robert reed, swift's designated expert 2. it was done while the employee was engaged in the the court characterized the the fredericks also initially included the driver of the swift tractor-trailer driving swift's tractor-trailer on the assigned route. see ovecka, 194 p.3d at 735 was made known to the court by offer." fed. r. evid. 103(a). essentially, "the -19- app. 1998) (holding that "in order to impose punitive damages against an (citing to lucero and stating "[t]he court's reasons for denying prejudgment evidence of these convictions because it determined that "the probative value of attempting to meet the deadline swift established for the delivery of goods while relevant part, regarding that transfer: "to establish negligence on the part of tenth circuit a. course and scope of employment the undisputed facts in this case show that swift's driver was specifically that further the goals of [the statute]." id. although the court did not consider could have found that the driver ingested the methamphetamine before the that were relevant only to the driver's credibility. courts that have adopted this rule have also generally recognized an exception to first concluded neither they nor swift caused any unreasonable delay. the court among other things: swift has also alleged there is insufficient evidence to support an driver was on duty, driving on her assigned route under swift's direction, and with respect to rule 403 since it requires an on-the-spot balancing of probative district court's reference to the offer shortly before awarding the interest. id. at would not serve the purposes of section 56-8-4(b). we generally review the swift's assertions. although the fredericks' reply brief contains more detailed court held that, even though the district court had failed to "[e]xpressly find that argued, to hold otherwise would be to hold that a professional driver who whimsical, or result[ed] in a manifestly unreasonably judgment," united states v. august 10, 2010 attempting to enter a rest stop off of u.s. highway 54 in new mexico. terry alleges the district court erred when it denied the fredericks' motion for reply br. at 13-14.) united states court of appeals court's denial of their motion for prejudgment interest.1 make a proffer of the excluded portions of reed's proposed testimony. inc., 941 f.2d 1404, 1407 (10th cir. 1991) (internal quotation marks omitted). that already has been found to be factually relevant." id. (internal quotation n. s.f. ry, 194 p.3d 728, 732 (n.m. ct. app. 2008). however, "when no facts v. (continued...) prior to the trial, the district court granted, in part, the fredericks' motion frederick, who was in the sleeping berth of the yellow freight tractor-trailer at 503 s.e.2d 618, 619 (ga. app. ct. 1998). the reason for this rule is the view opinions as to each witness containing "specific findings on the record," dodge, speedily resolved; an award to ensure that just compensation to the tort victim is argument as well as deposition transcripts and full copies of the experts' reports. and personal motive on the part of the employee. employment is [generally] a question of fact for the jury." ovecka v. burlington at the close of the fredericks' evidence, the court ruled as a matter of law injury as a result of the [employment]." lessard v. coronado paint & decorating it is true that the exact time swift's driver ingested narcotics--if she did in reality when it failed to consider the disparity between swift's settlement offer and the substantial right of the party is affected, and . . . the substance of the evidence practices may have violated its "common law duty to members of the public or regulatory compliance and into the realm of accident reconstruction, an area we are not persuaded by swift's argument, as we do not believe that new we "review a district court's decision to give a particular jury 1. it was something fairly and naturally incidental to the the court erred in giving this instruction because whether its driver consumed 2 although the statute at the time extended only to passengers in the front seats, having addressed the jury instructions, we now turn to swift's contentions review de novo the question of whether the district court applied the proper finally, swift argues we should grant a new trial because the trial court's in new mexico, "whether an employee was acting within the scope of his publish daubert v. merrell dow pharmaceuticals, inc., 509 u.s. 579 (1993). "[w]e was "engaged in [her] employer's business with the view of furthering [her] 1086, 1113 (10th cir. 1998) ("cumulative error analysis applies where there are swift's settlement offer and the jury's final award. (appellees' supplemental following a trial on the merits, the and purpose of the evidence." id. at 1407 n.2. in this case, the evidence swift thus, even if new mexico were to adopt swift's proposed rule, the court's its role as a gatekeeper under rule 702 and daubert. we also conclude the court from the course and scope of employment, we conclude that, under these facts, mean that the district court should have considered "the significant difference thus, swift argues, this instruction was both misleading and not supported by the safety belt to be covered by this rule. because we can affirm the district court's decision on this issue without whimsical, manifestly unreasonable, or clearly erroneous." bitler v. a.o. smith of prejudgment interest in this case. see weidler v. big j enters., inc., 953 p.2d inadmissable at trial. new mexico law is clear: "specific evidence of the nonuse for negligent entrustment, hiring, and retention." durben v. am. materials, inc., to $560,000 in response to the fredericks' decreased settlement offer of 517, 521 (n.m. ct. app. 1982). -18- must be shown that [its driver], when the wrongful act was committed, had arguments than are contained in their principal and response brief, each argument considered together, resulted in an unfair trial; and we should grant a new trial as espanola pub. sch. dist., 119 p.3d 163 (n.m. 2005). value and prejudice, potentially to exclude as unduly prejudicial some evidence davis, 609 p.2d 1252, 1253 (n.m. ct. app. 1980), "with reference to the time, missouri, (scott e. nutter and douglas r. bradley of shamberg, johnson & the time of the accident, and his wife, donna, subsequently brought this action trial. nor do we believe the court's decision was "arbitrary, capricious, or on trucking safety and regulatory compliance. specifically, the court held that convictions were more than 10 years old. however, the district court allowed cir. 2008) (emphasis omitted). we review the district court's interpretation of instruction." level 3 commc'n, llc v. liebert corp., 535 f.3d 1146, 1158 (10th a. evidence of the non-use of the sleeper berth safety restraints prior to the accident at issue, swift's driver was transferred to a new cross- omitted). -6- swift transportation co., issue as "troublesome and close," and also noted the great disparity between corp., 328 f.3d 1212, 1223 (10th cir. 2003). "we will not, however, disturb a upon the exact conclusions reached to exclude or admit expert testimony." id. provided this instruction. as the court stated, the fredericks "could have used c. claims for negligent hiring and negligent retention p.2d 1215, 1224 (n.m. ct. app. 1999), the new mexico appellate court held that, (2) if the defendant had previously made a reasonable and appeal from the united states district court in the lawsuit, but she was later dismissed. ryder truck rental, inc., 817 n.y.s.2d 179, 180 (n.y. app. div. 2006); employed to drive swift's tractor-trailer and, at the time of the accident, swift's employment. the court then instructed the jury that "swift is liable for any realities." (appellant's first br. at 58.) however, reed's proposed studies no case law stating that [the final jury award] is an appropriate way to judge 1089, 1102 (n.m. ct. app. 1997) ("[p]rejudgment interest is an award to the conviction supported by specific facts and circumstances substantially when considering the imposition of prejudgment interest, and we also note that no swift's driver and the driver of the yellow tractor-trailer did, or attempted to do, claims for punitive damages against swift based on swift's independent actions. -3- further proffer at trial would have been duplicative. [a]n act of an employee is within the scope of employment if: argues the district court erred because this evidence was either irrelevant, too act shall not in any instance constitute fault or negligence and shall not limit or employment, swift's driver resumed her employment as soon as she recommenced richfield co. v. farm credit bank of wichita, 226 f.3d 1138, 1156 (10th cir. additionally, the district court did not err in denying swift's proffer of n.m. stat. ann. § 56-8-4(b). however, these two factors are not exclusive and of discretion, according "deference to a district court's familiarity with the details -7- for the district of kansas retention would not entitle the plaintiff to a greater recovery, but would merely swift has also argued that evidence of its driver's prior convictions was denial of an award of prejudgment interest for an abuse of discretion. see atl. (...continued) respondeat superior, swift is liable for all the negligent behavior of its employee, conclude there was no error in the manner in which the district court performed basis for holding the employer liable. however, as the trial court noted in its whom [swift] might reasonably anticipate would be placed in a position of risk of reliability and relevance of the proffered testimony. after a careful review, we b. partial exclusion of robert reed's testimony and proffer of evidence the trial court's performance of its obligation under rule 702 and daubert, not longer discussion of the basis for their cross-appeal than was contained in their before tacha, mckay, and gorsuch, circuit judges. standard and actually performed its gatekeeper role in the first instance. we then timely offer of settlement to the plaintiff. nevertheless, a proffer of evidence at trial is not needed to satisfy the rule "if the employee and acting within the course and scope of her employment when the governs the substantive merits of this dispute. place, and circumstances under which the injury occurred," ovecka, 194 p.3d at swift, plaintiffs have the burden of proving at least one of the following: . . . instruction would have been proper in light of the rule's exception for punitive fed. r. civ. p. 37(c)(1). during the trial, the court also refused to allow swift to feature reed behind the wheel of a tractor-trailer substantially similar to those weidner, 437 f.3d 1023, 1042 (10th cir. 2006) (internal quotation marks may, in some cases, be inferred from the record. see gonzales, 899 p.2d at 593 abandoning it). nor has swift argued there was evidence its driver was so inc., important clients, and would result in more pay for swift's driver. indeed, instruction was given in error because these regulations only apply to "drivers" should consider the disparity between a settlement offer and the final jury award mexico courts would permit the introduction of evidence regarding this particular (d.c. no. 06-cv-01332-mlb) meet the reliability standards of rule 702 of the federal rules of evidence and excluded evidence was previously discussed with the trial judge, for example at nos. 09-3080, 09-3082 difference between swift's settlement offers and the fredericks' ultimate award at at trial, the district court allowed evidence, over swift's objections, considering swift's proposed rule, we will not speculate as to whether the new review the trial court's actual application of the standard in deciding whether to corp., 400 f.3d 1227, 1232 (10th cir. 2004). on review "we are concerned with -12- frederick, the rule whereby a plaintiff may bring a claim based on negligent hiring or on appeal, the fredericks argue the district court abused its discretion prejudgment interest. new mexico law states that f.3d 1329, 1334 (10th cir. 1996). "where an appellate court determines that the ortiz v. new mexico state police, 814 p.2d 117, 120 (n.m. ct. app. 1991), and, several exhibits, including a turning study conducted at the scene of the accident n.e.2d 764, 768 (ind. ct. app. 1974). overlooks that the court found as a matter of law that [swift's driver] was its sperry's expert opinions ultimately presented at trial. employment practices violated any specific federal regulations, his testimony was certain witness testimony and evidence. the fredericks, in their cross-appeal, accident occurred." (appellant's app. at 4465.) under the doctrine of to address. after considering the parties' arguments, we fail to see any merit in improperly expanded "the meaning and definition of the statute" beyond its clear failures on different portions of the necessary licensing exams. on appeal, swift beyond reed's expert designation. under the doctrine of respondeat superior.4 4 adjudication of the plaintiff's claims; and are in dispute and the undisputed facts lend themselves to only one conclusion, faith denial, throughout the proceedings, of its own negligence and its liability for involved in the accident and doing actions substantially similar to those that passenger restraint device or by a safety belt as required by the safety belt use employment for hours at a time, even if she has continued to drive her employer's preserved each of the ten issues it raises on appeal. -4- may not be predicated upon a ruling which . . . excludes evidence unless a -17- several issues. after careful review of the record, we conclude swift properly district court's ruling absent our conviction that it is arbitrary, capricious, did not abuse its discretion in deciding to admit those portions of atkinson's and ingest them--is disputed, this fact is immaterial. driving a tractor-trailer while sufficient to show, consistent with new mexico law, swift's employment swift claims the district court erred by instructing the jury as to its given this evidence, we cannot say the district court abused its discretion when it for the tenth circuit plaintiffs­appellees/cross­appellants. the date the complaint is served upon the defendant after considering, 733 (internal quotation marks omitted). in order for swift "to escape liability, it any one of several federal motor carrier safety regulations, including fmcsr methamphetamine before or after the accident is a disputed fact; thus, the jury -9- employment. already found, as a matter law, that swift was liable for its driver's negligent acts "that, since the employer would be liable for the employee's negligence under (continued...) instruction for abuse of discretion." united states v. platte, 401 f.3d 1176, 1183 and not "employers"; as such, swift argues, a driver's violation is not a proper think the district court committed an error of law by not considering the law would require in order for swift to avoid liability. see id. while we showed its driver's reassignment was merely a lateral move within the company. concerning the admissibility of certain expert testimony. proposition that a court's reasons for granting or denying prejudgment interest evidence. instruction for either negligent hiring or retention; however, after reviewing the james r. jarrow (john a. watt with him on the briefs), of baker sterchi cowden jury trial in which swift was found liable on claims brought by the appellees, $13,850,00. use act. see n.m. stat. ann. § 66-7-373(a) ("failure to be secured by a child (10th cir. 2005) (internal quotation marks omitted). however, "we review de employer's business with the view of furthering the employer's after reviewing the record, we hold the district court did not abuse its the district court's instruction was proper. indeed, as counsel for the fredericks 4 swift failed to use ordinary care in promoting [its driver] to the transcontinental passenger safety restraint. in norwest bank new mexico v. chrysler corp., 981 discretion in excluding portions of reed's testimony. see woodworker's supply, examination by both sides, and, as concerned dr. sperry, the court considered elisabeth a. shumaker court's evidentiary rulings. we review a court's evidentiary rulings for an abuse 3 at trial, the district court excluded evidence tending to show terry cross-appellants, -20- the issue may properly be decided as a matter of law." id. new mexico's principal and response brief, raises new arguments that swift has not had a chance law. see salve regina coll. v. russell, 499 u.s. 225, 231 (1991). -15- discretion in this ruling. district court by definition abuses its discretion when it makes an error of law."). are not reconstruction because they were meant to "determine possibilities, not filed a reduction for comparative fault, the court entered judgment against swift in the witnesses the district court considered preliminary briefing, which included legal serve to prejudice the employer." id. despite this limitation, however, those valid claim for punitive damages against the employer based on its independent negligence of [its driver]." (appellant's app. at 2014.) on appeal, swift argues further the goals of [the statute]." gonzales v. surgidev corp., 899 p.2d 576, 593 evidence. rule 103 of the federal rules of evidence states, in part, that "[e]rror terry and donna frederick. swift argues these rulings, individually and concerning its driver's prior license suspensions, drug use, convictions, and prejudicial, or both.5 in their brief, the fredericks allege swift has waived its right to appeal the conduct of its employee"), overruled on other grounds by fernandez v. of the case and its greater experience in evidentiary matters." sprint/united "the trial court should take into account all relevant equitable considerations that discourage recalcitrance and unwarranted delays in cases which should be more the court then found swift's offer was not unreasonable based on swift's good- employer, its conduct must be found to be willful, reckless, or wanton, apart from several hours after the accident, acted within the scope and course of frederick was not using the safety restraints in the sleeper berth at the time of the mean that [the] negligent act [was] outside the scope of [the driver's] meaning would have been the same, i.e. [the driver] was advanced to the 026 in support of their argument, the fredericks cite lucero v. aladdin beauty colls., swift has filed a motion to strike portions of the fredericks' reply brief, ctr., inc., 168 p.3d 155, 166 (n.m. ct. app. 2007) (internal quotation marks facts of each particular case," it must nevertheless be applied variably, tinley v. evidence that passengers in the back seats were not wearing seat belts was still (...continued) rulings resulted in cumulative error. however, because the trial court committed no errors, there cannot be cumulative error. see moore v. reynolds, 153 f.3d mckay, circuit judge. fleet, not demoted." (appellant's app. at 4466.) admissibility of other evidence record we conclude there was sufficient evidence in the record to support the testimonies of dr. kris sperry (the fredericks' toxicology expert) and arthur of seat belts is simply inadmissable," id., and we conclude a sleeper compartment on various rulings by the district court leading up to and during the course of a was addressed in the principal and response brief alongside arguments addressing (n.m. 1995) (emphasis omitted). did consider the equities of an award of prejudgment interest. we agree with its consumes narcotics can be considered as acting outside the scope of her in this appeal the appellant, swift transportation, raises ten issues based


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise