United States District Court, D. Nebraska
DENICE BALES TAYLOR, Surviving Spouse and Personal Representative of the Estate of Thomas Loyd Bales, Deceased, Plaintiff,
TRADESMEN INTERNATIONAL, LLC, and WANZEK CONSTRUCTION, INC., Defendants.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION IN
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
also refers the Court to State v. Jacobitz, an
unpublished decision of the Nebraska Court of Appeals,
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).
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,