Dawn M. Zibolis-Sekella, Administrator of the Estate of Alisha F. Zibolis
Kevin R. Ruehrwein and Clifford W. Perham, Inc. Opinion No. 2013 DNH 136.
JOSEPH A. DiCLERICO, Jr., District Judge.
This is a wrongful death action brought by Dawn M. Zibolis-Sekella on behalf of the estate of her daughter, Alisha F. Zibolis, against Kevin R. Ruehrwein and his employer, Clifford W. Perham, Inc. ("Perham"). There is currently pending for trial a claim for negligence against the defendants. The claim arises from the circumstances of Zibolis's death in a collision with a truck driven by Ruehrwein.
The defendants move, in limine, to exclude evidence that Ruehrwein used Suboxone, evidence of two incidents of using false names to obtain drugs, evidence of a summons for unauthorized taking, and Ruehrwein's failure to disclose two prior arrests and use of prescription medication to police following the accident. Zibolis-Sekella moves, in limine, to allow evidence of Ruehrwein's drug use and objects to the defendants' motions.
The collision at issue in this case occurred on January 20, 2011, at an intersection that is controlled by a traffic light. Ruehrwein was driving a tractor-trailer truck on Route 101, and Zibolis was driving a Saturn sedan on Wilton Road in Milford, New Hampshire. Ruehrwein is expected to testify that he had the green light and that Zibolis drove through a red light, causing the collision.
Years before the accident, Ruehrwein was addicted to pain medication until he began treatment in 2005. As part of his treatment, Ruehrwein was prescribed Suboxone, which he was taking at the time of the accident. In 2004, before he began treatment, Ruehrwein used a false name on two occasions in order to obtain prescriptions for pain medication which resulted in complaints against him. Ruehrwein was not convicted based on either complaint.
In 2008, Ruehrwein was involved in an incident in which he pumped gas at an Irving Gas Station and drove away without paying. The police were called, and Ruehrwein was issued a summons for unauthorized taking or transfer. The charges were later dismissed.
After the collision with Zibolis, a Milford police officer interviewed Ruehrwein. As part of the questioning, the officer asked Ruehrwein about his criminal record. Ruehrwein responded that the last time he was arrested was for under age drinking when he was a teenager. That answer was false because Ruehrwein had been arrested in the 1980s for failing to pay traffic ticket fines. The officer also asked Ruehrwein if he were taking any medication. Ruehrwein said that he was not taking medication when in fact he was taking Suboxone. Suboxone is a disqualifying medication for commercial driving.
The defendants contend that evidence that Ruehrwein took Suboxone and that he had taken Suboxone on the day of the accident is not admissible because the evidence is not relevant and would be unfairly prejudicial. The defendants also contend that the 2004 false name incidents, the summons for unauthorized taking, Ruehrwein's failure to disclose prior arrests, and Ruehrwein's failure to disclose his use of Suboxone are not admissible character evidence under Federal Rule of Evidence 608(b). Zibolis-Sekella moves to allow the evidence of Ruehrwein's drug use and objects to the defendants' arguments related to subjects of inquiry under Rule 608(b).
Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence and  the fact is of consequence in determining the action." Fed.R.Evid. 401. Relevant evidence may be excluded, however, "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. The proponent of the evidence bears the burden of showing that it is relevant and admissible. DesRosiers v. Moran , 949 F.2d 15, 23 (1st Cir. 1991); DiMare v. RealtyTrac, Inc. , 714 F.Supp.2d 199, 206 (D. Mass. 2010).
Zibolis-Sekella provides no admissible evidence that Ruehrwein's use of Suboxone had any causal connection to the accident. The parties, through counsel, have now stipulated that the Suboxone that Ruehrwein had taken before the accident and the Oxycodone that Zibolis had taken before the accident had no effect that was causally related to the accident. To the extent Zibolis-Sekella has evidence of Ruehrwein's drug use in 2004, that evidence has no causal connection to the ...