Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Taylor v. Tradesmen International, LLC

United States District Court, D. Nebraska

February 8, 2018

DENICE BALES TAYLOR, Surviving Spouse and Personal Representative of the Estate of Thomas Loyd Bales, Deceased, Plaintiff,
v.
TRADESMEN INTERNATIONAL, LLC, and WANZEK CONSTRUCTION, INC., Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION IN LIMINE

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Plaintiff's Motion in Limine, ECF No. 40. Relying on the language of Neb. Rev. Stat. § 60-6, 102 and § 60-6, 105, the Plaintiff asks the Court to preclude the Defendants from making any reference to, or presenting any facts or evidence whatsoever pertaining to, any presence of alcohol or drugs in the body of the Decedent, Thomas Loyd Bales (Decedent). For the reasons discussed below, the Motion will be granted, in part.

         BACKGROUND

         On May 27, 2015, Decedent was employed by Defendant Tradesmen International, LLC (Tradesmen), while engaged in a construction project on behalf of Defendant Wanzek Construction, Inc. (Wanzek). As Decedent drove a crane on a roadway in Antelope County, Nebraska, the crane went onto the shoulder of the road, overturned, and crushed him to death.

         The Antelope County Attorney, who also serves as statutory coroner for Antelope County, ordered an autopsy and caused the Decedent's body to be tested for the presence of alcohol or drugs. The tests revealed a blood alcohol content of .159, and the presence of Hydrocodone at 8 ng/ml. Plaintiff performed independent post-mortem toxicology screens, revealing a blood ethanol content of .162, a vitreous humor ethanol content of .221, and the presence of Hydrocodone at 7.1 ng/ml.

         Plaintiff argues that the Defendants should be precluded from offering any evidence of, or making any reference whatsoever to, the results of any post-mortem alcohol or drug tests.

         DISCUSSION

         In support of her position, Plaintiff cites Neb. Rev. Stat. § 60-6, 102 and § 60-6, 105. Section 60-6, 102 provides: “In the case of a driver who dies within four hours after being in a motor vehicle accident, . . . the coroner . . . shall examine the body and cause such tests to be made as are necessary to determine the amount of alcohol or drugs in the body of such driver[.]” Section 60-6, 105 provides: “No report and no statement contained in a report submitted pursuant to sections 60-6, 101 to 60-6, 104 or any part thereof shall be made available for any purpose in any trial arising out of the accident involved unless necessary solely to prove compliance with such sections.”

         Plaintiff notes that the Nebraska Workers' Compensation Court precluded Tradesmen from offering any evidence of such toxicology results, relying on the language of § 60-6, 105. See Pl.'s Br., ECF No. 40-1, Page ID 123, 127, citing Denise Taylor v. Tradesmen Int'l, LLC, Docket 216, No. 0843, Order on Plaintiff's Motion in Limine (Neb. Work. Comp. Ct. May 5, 2017). The Worker's Compensation Court reasoned that the toxicology results were inadmissible so long as the information was obtained pursuant to § 60-6, 102. Pl.'s Br., ECF No. 40-1, Page ID 129. In response to Tradesmen's argument that the results should be admissible pursuant to other statutory duties of the county attorney, the Worker's Compensation Court stated that the county attorney should have collected a second blood sample if a test was conducted for a secondary purpose. Id. at Page ID 130.

         Plaintiff also refers the Court to State v. Jacobitz, an unpublished decision of the Nebraska Court of Appeals, [1] in which that court held the results of a blood test conducted pursuant to § 60-6, 102 could not be used in a criminal prosecution, and the results of a second test of the blood sample were barred by the Fourth Amendment. No. A-06-824, 2007 WL 591312, at *5-8 (Neb. Ct. App. Feb. 27, 2007).

         The Defendants refer the Court to Blackledge v. Eby, 542 F.2d 474 (8th Cir. 1976), in which the Court of Appeals held that statutory language similar to §§ 60-6, 102 and 60-6, 105 did not bar the admission of evidence of a deceased driver's blood alcohol content where the coroner compiled the information in the course of an autopsy and not to comply with the statutes. The Court of Appeals said:

Those statutes do not declare all evidence as to a deceased driver's blood alcohol content to be inadmissible in a judicial proceeding. Rather, they merely provide that when a motor vehicle accident results in death, the coroner shall submit a report to the Department of Motor Vehicles; that when the driver is killed, the coroner shall examine the body for the presence of alcohol or drugs and include his finding thereon in his report; and that no part of the report may be used in ensuing court proceedings. . . . .
The analysis of Blackledge's blood alcohol content was made in the ordinary course of an autopsy ordered by the Acting Coroner of Douglas county and not for purposes of any report to be submitted to the Department of Motor Vehicles. . . . .
[W]e hold that the evidence here in question did not represent information compiled in accordance with the statutory scheme relied on by appellant and that it was, therefore, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.