                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0263p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 TERRI BIEGAS, Personal Representative of the X
                                                      -
            Plaintiff-Appellant/Cross-Appellee, --
 Estate of RICHARD BIEGAS,

                                                      -
                                                          Nos. 08-1283/1285

                                                      ,
                                                       >
                                                      -
            v.

                                                      -
                                                      -
 QUICKWAY CARRIERS, INC.; QUICKWAY
                                                      -
 DISTRIBUTION SERVICES, INC.,
       Defendants-Appellees/Cross-Appellants. -
                                                     N
                       Appeal from the United States District Court
                      for the Eastern District of Michigan at Detroit.
                  No. 05-73616—Nancy G. Edmunds, District Judge.
                                     Argued: June 16, 2009
                               Decided and Filed: July 24, 2009
                                                                                       *
             Before: MOORE, GIBBONS, and FRIEDMAN, Circuit Judges.

                                      _________________

                                           COUNSEL
ARGUED: Vernon R. Johnson, FIEGER, FIEGER, KENNEY, JOHNSON &
GIROUX, Southfield, Michigan, for Appellant. Michael J. Hutchinson, HUTCHINSON
& ASSOCIATES, Detroit, Michigan, for Appellees. ON BRIEF: Vernon R. Johnson,
Victor S. Valenti, FIEGER, FIEGER, KENNEY, JOHNSON & GIROUX, Southfield,
Michigan, for Appellant. Michael J. Hutchinson, HUTCHINSON & ASSOCIATES,
Detroit, Michigan, Lincoln G. Herweyer, LAW OFFICE, New Baltimore, Michigan, for
Appellees. Nadia Ragheb, LAW OFFICES OF NADIA RAGHEB, P.C., Farmington
Hills, Michigan, for Amicus Curiae.
     MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined.
FRIEDMAN, J. (pp. 22-23), delivered a separate opinion dissenting in part.




        *
         The Honorable Daniel M. Friedman, Circuit Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.


                                                  1
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                       Page 2


                                  _________________

                                        OPINION
                                  _________________

        KAREN NELSON MOORE, Circuit Judge. In this diversity personal-injury
case, Plaintiff-Appellant Terri Biegas (“the Estate”), personal representative of the estate
of Richard Biegas (“Biegas”), appeals the district court’s grant of partial summary
judgment in favor of Defendants-Appellees Quickway Carriers, Inc., and Quickway
Distribution Services, Inc. (collectively, “Quickway”), ruling that Biegas was at least
fifty-one percent at fault for the accident that caused his death. Following a trial in
which the jury was instructed that it must apportion at least fifty-one percent of the fault
to Biegas, the jury returned a verdict allocating fifty-three percent of the fault to Biegas
and forty-seven percent of the fault to Quickway for the negligence of its employee,
truck driver Lonnie Dailey (“Dailey”). Because Michigan law bars non-economic
damages in motor-vehicle-injury cases when a plaintiff is more than fifty percent at fault,
the Estate was limited to forty-seven percent of economic damages and now seeks a new
trial. The Estate also appeals the district court’s dismissal of its claim of gross
negligence and the district court’s admission at trial of certain out-of-court statements
by a witness. Quickway cross-appeals the district court’s ruling that a written statement
given by Dailey to Quickway two days after the accident was not protected by the work-
product privilege. For the reasons explained below, we REVERSE the district court’s
grant of partial summary judgment to Quickway on comparative negligence, AFFIRM
the district court’s dismissal of the Estate’s gross-negligence claim, AFFIRM the district
court’s various evidentiary rulings, and REMAND for a new trial.

                                  I. BACKGROUND

        At around 9:30 p.m. on July 13, 2005, Biegas was struck and killed by a passing
tractor-trailer as he stood outside of his dump truck during an emergency stop along
eastbound I-96 near Livonia, Michigan. Minutes before the accident, Biegas, who
owned a concrete-removal company, was driving home from a job with his employee,
Nick Cohen, who rode in the passenger seat. Attached to Biegas’s red dump truck was
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                       Page 3


a flatbed trailer which was loaded with a backhoe that Biegas had used earlier that day.
When properly secured to the trailer, the height of the backhoe was less than twelve-and-
one-half feet. But that evening it somehow struck the overpass at Wayne Road, which
has a clearance of fourteen feet. Biegas immediately pulled over and stopped on the
shoulder of the highway to the right of the white fog line to check for any damage to his
equipment, trailing traffic, or the overpass.

        Although Cohen testified at his deposition that there was a distance of
approximately two additional feet of paved shoulder between the passenger side of
Biegas’s dump truck and the start of the grass berm, Biegas stopped his truck very close
to the fog line. A Michigan State Police (“MSP”) accident reconstructionist, Sergeant
Kevin Lucidi (“Lucidi”), measured the accident scene and found that the rear of Biegas’s
dump truck was five inches from the center of the fog line, an attachment for the
backhoe on the trailer was just three-and-one-half inches from the center of the fog line,
and the driver’s side mirror of Biegas’s dump truck actually extended some three-and-
one-half inches into the roadway.

        Cohen testified at his deposition that he and Biegas stepped out of the truck on
their respective sides and walked to the back of the trailer. Cohen estimated that he and
Biegas spent around five seconds at the rear of the trailer and found no damage to the
backhoe nor any sign that trailing traffic had been hit by debris. Next, Cohen says that
he looked back toward the overpass and oncoming traffic and at that moment saw Biegas
through his peripheral vision moving either “on top of the trailer [or] or to the side of the
trailer.” Record on Appeal (“ROA”) at 618 (Cohen Dep. Tr. at 56). Cohen then heard
an “extremely loud” noise that “sounded like two trains hitting” and he saw, for the first
time, the white Quickway tractor-trailer passing alongside Biegas’s backhoe trailer.
ROA at 619 (Cohen Dep. Tr. at 58). Although he did not see the tractor-trailer strike
Biegas, Cohen saw Biegas’s torso fall to the ground near the rear of the backhoe trailer.
Cohen ran around the side of the backhoe trailer, finding Biegas’s dead body near the
rear driver’s side tire of the backhoe trailer.
Nos. 08-1283/1285                Biegas v. Quickway Carriers, et al.                  Page 4


        Seconds earlier, Dailey was driving the Quickway tractor-trailer around fifty-five
to fifty-eight miles per hour in the right lane of eastbound I-96, where the posted speed
limit for trucks is fifty-five miles per hour. At his deposition, Dailey testified that he
was following another tractor-trailer by around two tractor-trailer lengths, or 150 feet.
According to Dailey, it was just turning dark at the time of the accident, but with the
overhead lights along the highway “it was lit up fairly well.” ROA at 719 (Dailey Dep.
Tr. at 55). In a handwritten statement given to MSP troopers some two hours after the
accident, Dailey stated that “[a] dump truck and trailer [were] stranded partly in the right
lane (which I was in).” ROA at 1019 (MSP Report at 31). Dailey recalled that he did
not have “much time to react” and “steered to the left” but “hit something.” Id. Dailey
further stated that he did not realize that he had hit a person until he pulled over and was
informed by a witness. Dailey testified at his deposition that he first saw Biegas’s trailer
after the preceding tractor-trailer had passed it and that he never saw a person around
Biegas’s trailer. According to Dailey, he saw part of Biegas’s trailer or backhoe
extended into the travel lane, so he took his foot off the gas and steered to left, but could
get over only around eight inches because there were cars in the lane to his left. Dailey
then heard something hit his right side-view mirror, so he pulled his tractor-trailer over
onto the right shoulder and walked back to the accident scene.

        The only other eyewitness to the accident was Paul Bourlier (“Bourlier”), who
was passing Dailey’s tractor-trailer in the lane to the left of Dailey at the time of the
accident. Bourlier stopped at the scene of the accident, where he was interviewed by
Trooper Lisa Lucio and gave a short handwritten statement. He also provided a more
detailed typed statement the next day.1 In his typed statement, Bourlier stated that as
Dailey’s tractor-trailer began to pass Biegas’s stopped vehicle, Bourlier “observed an
individual moving at the left rear of that vehicle” and then it appeared that Dailey’s
tractor-trailer had “hit something.” ROA at 1000 (MSP Report at 12). “My immediate
thought,” stated Bourlier, “was that the semi had hit whomever had been at the rear of
the stop[p]ed vehicle.” Id.


        1
            Bourlier died before his deposition could be taken for this case.
Nos. 08-1283/1285              Biegas v. Quickway Carriers, et al.                              Page 5


         Based upon his accident-reconstruction analysis, Sergeant Lucidi found that
Dailey’s tractor-trailer struck Biegas’s dump truck and attached trailer at two points.
First, the right side-view mirror of Dailey’s tractor struck the rear of Biegas’s dump
truck, leaving scrapes on the driver-side body of Biegas’s red dump truck and a red paint
transfer on the arm of Dailey’s side-view mirror. Second, the side of Dailey’s trailer
scraped against a backhoe attachment on Biegas’s trailer, leaving scrapes on the backhoe
attachment and an approximately thirty-foot-long scrape on the side of Dailey’s trailer
beginning twenty-nine feet from the front bumper of the truck. In addition, Lucidi found
blood and biological material on Dailey’s tractor-trailer beginning at the second axle of
the tractor and extending to the rear of the trailer. Given the contact between Dailey’s
trailer and the backhoe attachment on Biegas’s trailer and the fact that the backhoe
attachments were at least three inches to the right of the center of the fog line, Lucidi
concluded that Dailey’s trailer had crossed over the fog line at the time of the accident.2

         Lucidi’s investigation also found that Biegas must have been standing at least
partially in the right lane of the highway at the time he was struck. Given the small
amount of space between Biegas’s trailer and the fog line, Lucidi concluded that Biegas
would not have been able to remain entirely on the shoulder as he walked alongside his
trailer toward the driver-side door of his truck.

         On August 22, 2005, the Estate filed a complaint in Michigan state court alleging
that Dailey’s negligence caused Biegas’s death and that Quickway was vicariously liable
as the employer. On September 20, 2005, Quickway removed the action to the United
States District Court for the Eastern District of Michigan based upon diversity of
citizenship.

         Following discovery, Quickway filed two motions. As relevant to this appeal,
the first motion sought dismissal of the Estate’s claim for gross negligence, arguing that
Michigan law no longer recognized a separate claim for gross negligence except in


         2
          The Estate’s accident-reconstruction and trucking experts also concluded that Dailey’s trailer
crossed over the fog line. See ROA at 1711 (Robbins Aff. at 2); ROA at 1721 (Abbo Aff. at 6); ROA at
1756 (Asa Report at 3).
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                     Page 6


certain circumstances that were not applicable in this case. Quickway’s second motion
sought partial summary judgment on the issue of Biegas’s comparative negligence,
arguing that, as a matter of law, Biegas was more than fifty percent at fault for the
accident. The Estate filed oppositions to both motions, and Quickway filed separate
replies. After hearing argument from the parties, the district court issued an opinion
ruling on both motions. The district court dismissed the Estate’s gross-negligence claim,
concluding that Michigan law no longer recognized the common-law concept of gross
negligence except in limited statutory contexts that did not apply in this case. The
district court also granted partial summary judgment in favor of Quickway on the issue
of Biegas’s comparative negligence. The district court found that, although Dailey’s
conduct was negligent, Biegas’s negligence was greater as a matter of law. The district
court observed that Biegas “made two overriding mistakes that led to his death”:

       First, he parked a truck within inches of the fog line on the shoulder of
       a busy interstate highway when there is no evidence that his vehicle was
       disabled or could otherwise not have made it to the remaining two feet
       of paved shoulder at its right. Even if Biegas did not intend to walk
       along the driver’s side of his truck, simply parking the vehicle in this
       location dramatically increased the risk of a collision with someone
       traveling in the far right lane. Then, the evidence shows that [Biegas]
       must have walked into the roadway in front of oncoming traffic without
       first looking to see that it was clear for him to do so. In light of such
       serious errors by [Biegas], no reasonable juror could find that Dailey’s
       actions of driving up to three miles per hour over the speed limit, being
       150 feet behind a preceding truck, and drifting several inches over the
       fog line accounted for at least 50% of the fault for this accident.
ROA at 2440-41 (D. Ct. Op. at 23-24). One effect of the district court’s ruling that
Biegas was more than fifty percent at fault was to preclude the Estate from recovering
noneconomic damages for Biegas’s death. See MICH. COMP. LAWS § 500.3135(2)(b).

       On April 3, 2007, the Estate filed a motion pursuant to FED. R. CIV. P. 59(e) to
alter or amend the district court’s order granting Quickway partial summary judgment
on comparative negligence. After the district court denied that motion, the Estate filed
a motion pursuant to 28 U.S.C. § 1292(b) to certify the order granting partial summary
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                       Page 7


judgment on comparative negligence for immediate appeal, but the district court denied
certification.

         The case proceeded to trial from July 12, 2007, to July 20, 2007. Before the
parties made their opening statements, and over the objection of the Estate, the district
court instructed the jury that in “prior proceedings” it had “already been determined that
Mr. Biegas . . . is more than 50 percent at fault” and that the jury’s job was “to determine
how much fault from more than 50 percent to 100 percent can be attributed to the
negligence of Mr. Biegas, and how much fault from zero percent to 50 percent can be
attributed to the negligence of the defendant’s driver, Mr. Dailey.” Trial Tr. 7/12/07 at
27-28.

         At the close of the evidence but before the district court instructed the jury, the
Estate unsuccessfully moved for judgment as a matter of law and also requested
reconsideration of the district court’s summary-judgment ruling that Biegas was more
than fifty-percent at fault. Consistent with its earlier rulings, however, the district court
proceeded to instruct the jury that “[p]rior proceedings” had determined that Biegas was
“at least 51 percent responsible for his own death” and that, if the jury should find the
defendant negligent, then the jury must “apportion some level of fault for this accident
to Richard Biegas in an amount between 51 and 100 percent, and some level of fault to
defendants in an amount between zero and 49 percent.” Trial Tr. 7/19/07 at 17-18.
Similarly, the verdict form directed the jury that in apportioning negligence its number
for Quickway “must be 49% or less” and its number for Biegas “must be at least 51%.”
ROA 2913 (Verdict Form at 2).

         On July 20, 2007, the jury returned a verdict allocating fifty-three percent of the
fault to Biegas and forty-seven percent of the fault to Quickway and finding total
economic damages in the amount of $1,507,392. On August 30, 2007, the district court
entered judgment against Quickway for forty-seven percent of the economic damages,
reduced to present value, for a total of $447,614.84.

         On September 14, 2007, the Estate filed a motion for a new trial pursuant to FED.
R. CIV. P. 59(a), which was denied by the district court on January 17, 2008. The Estate
Nos. 08-1283/1285               Biegas v. Quickway Carriers, et al.                                Page 8


filed a timely notice of appeal, and Quickway followed with a timely notice of cross-
appeal.

                                           II. ANALYSIS

A. The Grant of Partial Summary Judgment on Comparative Negligence

          The Estate’s principal argument on appeal is that the district court erred in ruling
that Biegas was more than fifty percent at fault as a matter of law.3 We review a grant
of summary judgment de novo. CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.
2008). Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(c). We have explained that:

          The burden is generally on the moving party to show that no genuine
          issue of material fact exists, but that burden may be discharged by
          “showing—that is, pointing out to the district court—that there is an
          absence of evidence to support the nonmoving party’s case.” Celotex
          Corp. v. Catrett, 477 U.S. 317, 325 (1986) (internal quotation marks
          omitted). In reviewing a summary judgment motion, credibility
          judgments and weighing of the evidence are prohibited. Rather, the
          evidence should be viewed in the light most favorable to the non-moving
          party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus,
          the facts and any inferences that can be drawn from those facts[] must be
          viewed in the light most favorable to the non-moving party. Matsushita
          Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005). Our review is limited
to the evidence before the district court at the time of its partial-summary-judgment
ruling, and we do not consider the evidence introduced subsequently at trial. Meridian
Leasing, Inc. v. Associated Aviation Underwriters, Inc., 409 F.3d 342, 346 (6th Cir.
2005); see also US East Telecomms., Inc. v. US West Commc’ns Servs., Inc., 38 F.3d



          3
          The Estate and amicus curiae The Michigan Association for Justice argue, in part, that this ruling
by the district court denied the Estate a jury trial in violation of the Seventh Amendment to the U.S.
Constitution. However, it is well settled that “summary judgment does not violate the Seventh
Amendment.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979) (citing Fidelity & Deposit Co.
v. United States, 187 U.S. 315, 319-21 (1902)).
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                       Page 9


1289, 1301 (2d Cir. 1994) (“Our review is confined to an examination of the materials
before the trial court at the time the [partial-summary-judgment] ruling was made, and
neither the evidence offered subsequently at trial nor the verdict is relevant.”).

        Under the Erie doctrine, federal courts sitting in diversity apply the substantive
law of the forum state and federal procedural law. Erie R. Co. v. Tompkins, 304 U.S. 64
(1938); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996). Michigan’s
No Fault Act provides that a person may be “subject to tort liability for noneconomic
loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the
injured person has suffered death, serious impairment of body function, or permanent
serious disfigurement.” MICH. COMP. LAWS § 500.3135(1). The statute further provides
that “[d]amages shall be assessed on the basis of comparative fault, except that damages
shall not be assessed in favor of a party who is more than 50% at fault.” Id.
§ 500.3135(2)(b). To prevail on a claim of negligence under Michigan law a plaintiff
must show that (1) “the defendant owed a legal duty to the plaintiff,” (2) “the defendant
breached or violated the legal duty,” (3) “the plaintiff suffered damages,” and (4) “the
breach was a proximate cause of the damages suffered.” Schultz v. Consumers Power
Co., 506 N.W.2d 175, 177 (Mich. 1993). The availability of summary judgment in
diversity actions is governed by the federal standard, embodied in FED. R. CIV. P. 56,
rather than by state law. Gafford v. Gen. Elec. Co., 997 F.2d 150, 165-66 (6th Cir.
1993); see also 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE
§ 2712, at 219 (3d ed. 1998) (“[I]n diversity-of-citizenship actions questions relating to
the availability of summary judgment, such as whether there is a disputed issue of fact
that is sufficient to defeat the motion, are procedural and therefore governed by Rule 56,
rather than by state law.”).

        Taking the facts in the light most favorable to the Estate and drawing all
justifiable inferences in its favor, we believe that there is a genuine issue of material fact
as to whether Biegas’s negligence exceeded Dailey’s.

        First, as to Quickway’s imputed negligence, the summary-judgment evidence
showed that at the time of the accident (1) Dailey was driving the Quickway tractor-
Nos. 08-1283/1285                Biegas v. Quickway Carriers, et al.                               Page 10


trailer up to three miles per hour over the fifty-five-mile-per-hour speed limit, (2) Dailey
was following only 150 feet behind another truck, and (3) Dailey allowed the tractor-
trailer to drift across the right fog line by at least three inches to strike Biegas’s truck and
trailer. Dailey testified at his deposition that he was traveling between fifty-five and
fifty-eight miles per hour at the time of the accident. For purposes of its summary-
judgment ruling, the district court assumed that Dailey would be presumed negligent for
driving over the posted speed limit in violation of MICH. COMP. LAWS § 257.627. Dailey
also testified at his deposition that he was following another tractor-trailer by only
approximately 150 feet, or two tractor-trailer lengths.4 According to the Michigan
Commercial Driver License Manual introduced by the Estate in its opposition to
summary judgment, commercial trucks should maintain “at least one second for each ten
feet of vehicle length at speeds below 40 mph,” adding an additional second when
traveling above forty miles per hour. ROA at 1768 (Manual § 2.7). Applying this rule,
Timothy Abbo, an expert for the Estate, calculated that Dailey (who was driving a sixty-
five-foot vehicle and going at least fifty-five miles per hour) should have maintained a
space of at least seven-and-one-half seconds, or 600 feet, between his truck and the one
in front of him. According to Abbo’s affidavit, “[h]ad Dailey maintained this distance,
he would have had ample time to observe the dump truck on the shoulder, notice Biegas
near it, and take appropriate action to avoid a collision.” ROA at 1721 (Abbo Aff. at 6).

         Most important, the evidence showed that Dailey’s tractor-trailer crossed over
the fog line and struck portions of Biegas’s truck and trailer that were within the
shoulder several inches to the right of the fog line. The investigation by Sergeant Lucidi,
the MSP accident reconstructionist, found that Dailey’s right side-view mirror struck the
rear of Biegas’s dump truck and that the side of Dailey’s trailer struck a backhoe
attachment on Biegas’s trailer, leaving a thirty-foot-long scrape on the side of Dailey’s
trailer. These contacts, Lucidi concluded, demonstrated that Dailey’s tractor-trailer had


         4
           In its brief on appeal, the Estate argues that there was no tractor-trailer in front of Dailey and
suggests that Dailey fabricated this “phantom truck” to explain why he did not see Biegas standing next
to his trailer prior to striking him. Estate Br. at 18. However, the Estate did not contest this fact at
summary judgment, and none of the summary-judgment evidence contradicts Dailey’s deposition
testimony that he was following approximately 150 feet behind another truck.
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                     Page 11


drifted over the fog line and onto the shoulder at the time of the accident. The Estate’s
accident-reconstruction and trucking experts—Abbo, Donald Asa, and Ronald
Robbins—also concluded that Dailey’s vehicle must have crossed over the fog line when
it struck Biegas.

        As for Biegas’s negligence, the district court rejected all of Quickway’s theories
of comparative negligence except for two. The district court found that Biegas was
negligent in (1) failing to park his truck farther to the right on the highway’s shoulder
even though there were two more feet of paved shoulder on the right, and (2) walking
from the shoulder into the right traffic lane without first checking for oncoming traffic.
The district court concluded that these errors by Biegas outweighed Dailey’s negligence
and demonstrated that Biegas was more than fifty percent at fault for the accident. The
Estate does not contest Lucidi’s measurements at the accident scene, which found that
Biegas’s truck and trailer were parked just a few inches from the fog line. The Estate
also concedes that Biegas was “likely partially inside, on, and partially over the fogline,
near the rear of his trailer” when he was struck and killed. Estate Br. at 21. The Estate
nonetheless argues that the district court erred in ruling as a matter of law that Biegas’s
negligence was greater than that of Dailey.

        Taking the facts in the light most favorable to the Estate, we cannot say that
Biegas’s negligence exceeded Dailey’s as a matter of law. It is clear that Biegas parked
quite close to the fog line and that he should not have stepped onto the roadway without
first checking for oncoming traffic. However, if Dailey had been following the
preceding truck at a safe distance, he should have had sufficient time to see Biegas and
move safely to the left of his own lane to avoid any contact with Biegas and his vehicle.
Instead, Dailey allowed his tractor-trailer to drift at least three inches over the right fog
line, sideswiping Biegas’s parked vehicle and crushing Biegas’s body between the two
vehicles. Given that both parties bear responsibility for some substantial portion of the
fault, we do not believe that this is the kind of “exceptional negligence case” in which
summary judgment is appropriate. Rogers v. Peabody Coal Co., 342 F.2d 749, 751 (6th
Cir. 1965). Rather, this case turns on applying a reasonable-person standard to the
Nos. 08-1283/1285               Biegas v. Quickway Carriers, et al.                               Page 12


conduct of both Biegas and Dailey—a determination that is generally left to the jury.
See 10A WRIGHT ET AL., supra, § 2729, at 556. We therefore believe that there is a
genuine issue of material fact as to whether the negligence of Biegas in parking close to
the fog line and stepping into the traffic lane exceeded the negligence of Dailey in
following the preceding truck too closely and allowing his tractor-trailer to cross the fog
line. Accordingly, we hold that the district court erred in granting Quickway’s motion
for partial summary judgment.

B. Harmless Error

         Quickway argues in the alternative that, because the jury allocated fifty-three
percent of the fault to Biegas when it could have allocated fifty-two or fifty-one percent
to him, any error in the district court’s summary-judgment ruling and subsequent jury
instructions was harmless. According to Quickway, the verdict demonstrates that even
if the jury had been given the opportunity to allocate fifty percent or less of the fault to
Biegas, it would not have done so. Quickway thus contends that any error is harmless
and should be disregarded under Rule 61 of the Federal Rules of Civil Procedure.5

         We believe, however, that a properly instructed jury could have weighed the
evidence of negligence by Biegas and Dailey differently and allocated fifty percent or
less of the fault to Biegas. Although it is impossible to know what effect the erroneous
instructions had on the jury’s allocation of fault, we think it likely that the instructions
affected the jury’s entire analytical framework as it weighed and compared the evidence
of negligent conduct by Biegas and Dailey. Having been instructed by the district court
that “prior proceedings” had determined Biegas to be more at fault than Dailey, the jury
may well have given greater weight to the evidence of Biegas’s negligent conduct and
less weight to that of Dailey. The erroneous instruction may have given the jury the



         5
          Rule 61 of the Federal Rules of Civil Procedure provides as follows:
         Unless justice requires otherwise, no error in admitting or excluding evidence—or any
         other error by the court or a party—is ground for granting a new trial, for setting aside
         a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At
         every stage of the proceeding, the court must disregard all errors and defects that do not
         affect any party’s substantial rights.
FED. R. CIV. P. 61.
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                     Page 13


impression that the district court had doubts about the strength of the Estate’s evidence
or that the district court had some other undisclosed reason for tipping the comparative-
fault scale against Biegas from the start. A properly instructed jury, told nothing about
the relative fault of the parties and free to assess Biegas’s fault on a scale of 0% to 100%
rather than 51% to 100%, could have weighed the evidence differently, splitting the fault
equally or even allocating less of the relative fault to Biegas. Because the erroneous jury
instructions could have affected the result of the jury’s deliberations, we conclude that
the error affected the Estate’s substantial rights and was not harmless. Accordingly, a
new trial is required so that the Estate may present its case to a properly instructed jury.

C. Gross-Negligence Claim

        The Estate also argues that the district court erred in dismissing its gross-
negligence claim pursuant to FED. R. CIV. P. 12(b)(6). We review de novo a district
court’s dismissal of a claim pursuant to Rule 12(b)(6). Nixon v. Wilmington Trust Co.,
543 F.3d 354, 356 (6th Cir. 2008). The district court noted that in Jennings v.
Southwood, 521 N.W.2d 230, 232-34 (Mich. 1994), the Michigan Supreme Court barred
all claims of common-law gross negligence under Michigan law except in certain
contexts in which Michigan law exculpates actors for mere negligent conduct.
Concluding that this limited exception did not apply in this case, the district court
dismissed the Estate’s gross-negligence claim.

        Prior to its adoption of a pure comparative-negligence scheme in Placek v. City
of Sterling Heights, 275 N.W.2d 511 (Mich. 1979), Michigan adhered to the doctrine of
contributory negligence under which a plaintiff found to be even slightly at fault was
completely barred from recovery. Jennings, 521 N.W.2d at 233. Michigan courts
recognized gross negligence as an exception to the contributory-negligence doctrine in
order to mitigate the often harsh consequences of that doctrine to plaintiffs. Id.
Although “gross negligence” typically implies a higher degree of negligence, in
Michigan it was “merely an alternative label used to describe the doctrine of last clear
chance” and allowed a plaintiff to recover when the defendant’s negligence (even
ordinary negligence) occurred after the plaintiff’s negligent conduct. Id. In Jennings,
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                     Page 14


the Michigan Supreme Court repudiated the common-law concept of gross negligence,
reasoning that when it abandoned the contributory-negligence doctrine in Placek the
concept of gross negligence was no longer needed. Id.

        However, the Jennings court recognized that a different concept of “gross
negligence” survived in certain Michigan statutes—including the Emergency Medical
Services Act (EMSA) which was at issue in Jennings—in which certain actors are
immune from liability for ordinary negligence but may be liable for conduct reaching a
grossly negligent level. Id. at 235. In this context, “gross negligence” means “‘conduct
so reckless as to demonstrate a substantial lack of concern for whether an injury
results.’”   Id. (quoting Government Tort Liability Act, MICH. COMP. LAWS
§ 691.1407(7)(a)).

        As the district court observed, the Estate does not argue that any such statutes are
applicable in this case. Furthermore, the two unpublished Michigan Court of Appeals
cases cited by the Estate are readily distinguishable. Each involved situations analogous
to Jennings in which a defendant could not be held liable for ordinary negligence but
could be held liable for heightened or gross negligence. See Hawkins v. Ranch Rudolf,
Inc., No. 254771, 2005 WL 2372008, at *3-4 (Mich. Ct. App. Sept. 27, 2005)
(unpublished) (reversing dismissal of gross-negligence claim where plaintiff signed a
release waiving liability for ordinary negligence but waiver did not cover gross
negligence under Michigan law); Thomas v. CSX Transp., Inc., No. 208311, 1999 WL
33432173, at *2-3 (Mich. Ct. App. Nov. 2, 1999) (unpublished) (reversing dismissal of
gross-negligence claim in premises-liability action where the plaintiff-trespasser could
recover only by showing either active negligence or gross negligence).

        Unlike Hawkins and Thomas, in which the defendants could not be held liable
for mere negligence, there is no such obstacle in the instant case. The Estate need not
show that Dailey’s conduct rose to the level of gross negligence or recklessness. Instead,
Dailey (and Quickway by imputation) may be held liable upon a showing of ordinary
negligence. Accordingly, the district court did not err in ruling that under Michigan law
a gross-negligence claim is not cognizable in this case.
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                     Page 15


D. Admissibility of Cohen’s Out-of-Court Statements

        The Estate argues that the district court abused its discretion by permitting the
introduction of two statements allegedly made by Nick Cohen, Biegas’s passenger, at
the accident scene: (1) Cohen’s statements to Dailey and Paul Bourlier telling them to
keep Biegas’s money which they had picked up at the scene; and (2) Cohen’s statement
to Dailey that Cohen had told Biegas prior to the accident to “get out of the road, he was
going to get hit.” Trial Tr. 7/16/07 at 85. The district court admitted the statements,
ruling that they fell within the excited-utterance exception to the hearsay rule. We
review evidentiary rulings by the district court, including determinations of whether
testimony is inadmissible hearsay, for abuse of discretion. Barr v. Lafon, 538 F.3d 554,
565 (6th Cir. 2008). Whether a statement is hearsay is a question of law, which we
review de novo. United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).

        The first question is whether the statements at issue are hearsay. Hearsay is an
out-of-court statement offered to prove the truth of the matter asserted. FED. R. EVID.
801(c). As to Cohen’s utterances to Dailey and Bourlier telling them to keep Biegas’s
money, it is clear that Quickway offered these statements for the fact that Cohen had
made them, not to prove the truth of any proposition. Rodriguez-Lopez, 565 F.3d at 314
(“A statement offered as evidence of the bare fact that it was said, rather than for its
truth, is not hearsay.”). Because these utterances were not offered to prove the truth of
the matter asserted, they are not hearsay, and the district court did not abuse its
discretion in admitting Dailey’s testimony concerning these statements.

        Turning to Cohen’s statement to Dailey that he had told Biegas before the
accident to “get out of the road, he was going to get hit,” this consists of two statements:
(1) the out-of-court statement by Cohen to Biegas and (2) the out-of-court statement by
Cohen to Dailey recounting his earlier statement to Biegas. We consider each layer in
turn.

        The first layer—Cohen’s statement to Biegas to “get out of the road”—is not
hearsay because it was not offered for its truth content. This statement was not offered
to prove that Biegas was in fact standing in the travel lane at the time of the accident, but
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                    Page 16


rather to show that Biegas had been put on notice that he was in imminent danger and
should have been aware of the risk he faced. A statement that is not offered to prove the
truth of the matter asserted but to show its effect on the listener is not hearsay. United
States v. Horton, 847 F.2d 313, 324 (6th Cir. 1988). Cohen’s statement was offered for
its probable effect on Biegas in the moments before the accident. Under Quickway’s
theory of the case, Biegas was so upset at the time that he ignored Cohen’s warning and
continued to walk in the travel lane where he was struck by Dailey’s tractor-trailer.

       The second layer—Cohen’s statement to Dailey recounting his earlier
statement—is hearsay. This statement was offered for its truth content—to prove that
Cohen had in fact told Biegas earlier to “get out of the road.” Accordingly, we consider
whether the district court correctly ruled that the excited-utterance exception applies to
this statement.

       An excited utterance is “[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.” FED. R. EVID. 803(2). The premise behind this exception to the hearsay rule
is that “a person under the sway of excitement precipitated by an external startling event
will be bereft of the reflective capacity essential for fabrication and that, consequently,
any utterance he makes will be spontaneous and trustworthy.” Haggins v. Warden, Fort
Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir. 1983) (internal quotation marks
omitted), cert. denied, 464 U.S. 1071 (1984). The excited-utterance exception applies
when “1) there [is] an event startling enough to cause nervous excitement; 2) the
statement [is] made before there is an opportunity to contrive or misrepresent; and 3) the
statement [is] made while the person [is] under the stress of the excitement caused by the
event.” United States v. Beverly, 369 F.3d 516, 539-40 (6th Cir.), cert. denied, 543 U.S.
910 (2004). This court previously has explained that “the ultimate question is whether
the statement was the result of reflective thought or whether it was a spontaneous
reaction to the exciting event.” Haggins, 715 F.2d at 1058 (internal quotation marks
omitted).
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                    Page 17


       The first element is satisfied because Cohen witnessed a terrible accident that
dismembered and killed his friend and employer. Although Cohen did not see the
tractor-trailer strike Biegas, he saw Biegas’s torso fall to the ground and saw what he
thought were pieces of Biegas’s head, arm, and other body parts scattered across the
travel lanes. The record makes clear, therefore, that Cohen witnessed an accident
startling enough to cause nervous excitement.

       The second element asks whether the statement was made before there was an
opportunity to fabricate or misrepresent. Beverly, 369 F.3d at 539-40. Although the
record does not indicate precisely when Cohen made this statement to Dailey, it appears
that it was made within a few minutes of the accident, before the arrival of police and
paramedics. At his deposition, Cohen testified that immediately after Biegas was struck,
he ran into the traffic lane to try to prevent cars from hitting Biegas’s scattered body
parts. Next, Cohen began running eastbound along the right shoulder and called 911.
At that point he came upon Dailey and Bourlier, who were walking from the other
direction toward Biegas’s truck. Dailey testified at trial that he had been approached by
Bourlier immediately after he pulled onto the shoulder. After Bourlier told Dailey that
he thought Dailey had run over a person, the two men began walking back westbound
along the right shoulder towards Biegas’s truck. They came upon Cohen between the
two trucks after walking around one-hundred feet. According to Dailey, only a few
minutes elapsed between the time of the accident and their encounter with Cohen, at
which time Cohen made the out-of-court statement at issue.

       In light of the short time frame and Cohen’s conduct following the accident, we
do not believe that Cohen had an opportunity to fabricate. Cohen had witnessed the
accident and its horrific aftermath just minutes earlier. In the moments that followed the
accident, Cohen ran into the traffic lanes, began running up the shoulder, called 911, and
then came upon Dailey and Bourlier. There is no evidence that Cohen had a spare
moment, much less an opportunity to recover from the experience, reflect upon the
events, and fabricate a statement concerning what he had said to Biegas minutes earlier.
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                       Page 18


        The third element asks whether the statement was made while the declarant was
still under the stress of excitement caused by the event. Beverly, 369 F.3d at 539-40.
“Relevant factors in determining whether a speaker remains under the stress of the
excitement include (1) the lapse of time between the event and the declarations; (2) the
age of the declarant; (3) the physical and mental state of the declarant; (4) the
characteristics of the event; and (5) the subject matter of the statements.” Maggard v.
Ford Motor Co., No. 07-6494, 2009 WL 928604, at *5 (6th Cir. Apr. 7, 2009)
(unpublished) (internal quotation marks omitted). Although there is contradictory
evidence concerning Cohen’s mental state, the record as a whole suggests that Cohen
remained under the stress of excitement caused by the accident at the time he made the
statement. Minutes earlier, Cohen had witnessed a gruesome scene in which Biegas’s
body had been dismembered and body parts had been strewn across the highway. Cohen
testified at his deposition that as he ran into the traffic lane to try to prevent drivers from
running over Biegas’s body parts, he was “screaming and crying.” ROA at 620 (Cohen
Dep. Tr. at 63). Cohen then began running eastbound along the shoulder. “I don’t know
why,” Cohen testified, “I just started running.” Id. at 64. When Cohen met Dailey on
the shoulder, the two men began consoling each other and “holding each other.” ROA
at 621 (Cohen Dep. Tr. at 66). Cohen testified at trial that the accident had been a
shocking event and that he had been in a state of shock afterwards. Although Cohen also
testified that he never talked to Dailey, Cohen acknowledged that it was possible that he
did not recall doing so because he was in a state of shock at the time. In sharp contrast
to Cohen’s testimony about his own mental state, Dailey testified at trial that when he
met Cohen along the shoulder, Cohen “seemed happy” and was not agitated. Trial Tr.
7/16/07 at 82. When pressed on the point, Dailey acknowledged that Cohen “could have
been in shock. I don’t know,” but Dailey said that Cohen did not appear to be in shock.
Id. at 83.

        Despite this contradictory testimony concerning Cohen’s mental state, the weight
of the evidence indicates that Cohen remained under the stress of excitement from the
accident. Only a few minutes had elapsed following an unusually horrific accident, and
Cohen’s own testimony was that he was in a state of shock at the time. Moreover,
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                     Page 19


Cohen’s statement to Dailey related to the subject matter of the accident. “When the
subject matter of the statement involves the startling event itself, the subject matter
supports a finding that the declarant was still under the stress of the accident.” Maggard,
2009 WL 928604, at *6. In sum, the record in this case indicates that Cohen’s statement
to Dailey was not the product of reflective thought but rather a spontaneous reaction to
the stress of the accident he had just witnessed.

        Because Cohen’s earlier statement to Biegas is not hearsay and Cohen’s
statement to Dailey falls within the excited-utterance exception, the district court did not
abuse its discretion in admitting Dailey’s testimony concerning Cohen’s statement.

E. Work-Product Privilege

        On cross-appeal, Quickway argues that the district court erred in ruling that a
written statement given by Dailey to Quickway two days after the accident was not
protected by the work-product privilege. On July 9, 2007, the district court granted the
Estate’s motion to compel production of Dailey’s written statement to Quickway,
rejecting without discussion Quickway’s assertion that the document was protected by
the work-product privilege.

        “We review a district court’s work product privilege determination for abuse of
discretion.” United States v. Roxworthy, 457 F.3d 590, 592 (6th Cir. 2006). As set forth
in Federal Rule of Civil Procedure 26(b)(3), the work-product privilege protects from
discovery “documents and tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative.” FED. R. CIV. P. 26(b)(3). “Once
the party requesting discovery establishes relevance, the objecting party has the burden
of showing that the material was prepared in anticipation of litigation or for trial.” In re
Powerhouse Licensing, LLC, 441 F.3d 467, 473 (6th Cir. 2006) (internal quotation marks
omitted).   In determining whether a document was prepared “in anticipation of
litigation,” this court asks whether it was prepared or obtained “because of” the prospect
of litigation. Roxworthy, 457 F.3d at 593. The test to determine whether a document
was prepared “because of” the prospect of litigation has both a subjective and an
objective element and asks: “(1) whether a document was created because of a party’s
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                    Page 20


subjective anticipation of litigation, as contrasted with an ordinary business purpose, and
(2) whether that subjective anticipation of litigation was objectively reasonable.” Id. at
594.

        This court has explained that “a party may satisfy its burden of showing
anticipation of litigation ‘in any of the traditional ways in which proof is produced in
pretrial proceedings such as affidavits made on personal knowledge, depositions, or
answers to interrogatories,’ and that the showing ‘can be opposed or controverted in the
same manner.’” Id. at 597 (quoting Toledo Edison Co. v. G A Techs., Inc., 847 F.2d 335,
339 (6th Cir. 1988)). “Where an undisputed affidavit . . . is specific and detailed to
indicate that the documents were prepared in anticipation of litigation or trial, then the
party claiming work product protection has met its burden. However, application of the
privilege will be rejected where the only basis for the claim is an affidavit containing
conclusory statement[s].” Id. (internal quotation marks and citation omitted) (alteration
in original).

        In the instant case, Quickway came forward with no affidavits, depositions, or
equivalent proof showing that Dailey’s written statement was prepared in anticipation
of litigation. It is undisputed that Dailey’s statement, which describes the events
surrounding the accident, is relevant. Quickway, therefore, had the burden of showing
that the statement was prepared in anticipation of litigation. Quickway’s response to the
Estate’s motion to compel, however, was unaccompanied by any form of proof showing
that Dailey’s statement was created in anticipation of litigation. Instead, the only
evidentiary material attached to Quickway’s response was a sixteen-page excerpt from
Dailey’s deposition, which Quickway cited for the proposition that the Estate had failed
to show substantial need and undue hardship. Indeed, the bulk of Quickway’s response
(like its appellate brief) was devoted to arguing that the Estate had failed to demonstrate
substantial need and undue hardship.

        Quickway fails to recognize that it first had the burden of showing that the
document was prepared “in anticipation of litigation” before the burden shifted to the
Estate to show substantial need and undue hardship. See In re Powerhouse Licensing,
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                    Page 21


LLC, 441 F.3d at 473 (explaining that if the objecting party fails to meet its burden of
showing that the document was prepared in anticipation of litigation, “the court’s inquiry
ends and the documents must be produced”). Quickway did not come forward with any
affidavits or similar proof demonstrating that Dailey’s statement was prepared in
anticipation of litigation, much less the kind of “specific and detailed” evidentiary
material that would be sufficient to meet this burden. Roxworthy, 457 F.3d at 597.
Because Quickway failed to carry its burden of demonstrating that Dailey’s written
statement was prepared in anticipation of litigation, the district court did not abuse its
discretion in rejecting Quickway’s claim that this document was protected by the work-
product privilege.

                                 III. CONCLUSION

       For the reasons explained above, we REVERSE the district court’s partial-
summary-judgment ruling that Biegas was more than fifty percent at fault, AFFIRM the
district court’s dismissal of the Estate’s gross-negligence claim, AFFIRM the district
court’s evidentiary rulings, and REMAND for a new trial consistent with this opinion.
Nos. 08-1283/1285           Biegas v. Quickway Carriers, et al.                      Page 22


                             _________________________

                               DISSENTING IN PART
                             _________________________

        FRIEDMAN, Circuit Judge, dissenting in part. I join the court’s opinion, except
for Part II B, captioned “Harmless Error.” It holds that the trial court’s instruction to the
jury that Biegas was more than 50 percent at fault in the accident was not harmless error.
I come out the other way on that issue.

        The trial judge instructed the jury that he had determined that Biegas was at least
51 percent at fault for the accident, and that the jury could find that Biegas’ fault ranged
from 51 percent to 100 percent (the “limiting instruction”). The jury found that Biegas
was 53 percent at fault.

        If the jury had found that Biegas’ degree of fault was 51 percent, I would agree
that the error in giving the limiting instruction was not harmless. For in that situation
the jury’s verdict could have equally well rested on either of two inconsistent theories.
It could have reflected the jury’s independent judgment that Biegas was in fact 51
percent responsible for the accident. Or it could have reflected the jury’s conclusion that
although it believed Biegas’ fault was less than 51 percent, the court’s instruction
required it to set his fault at that level. In the latter situation, it could not be said that
without the limiting instructions the jury likely would have concluded that Biegas’ level
of fault was less than 51 percent.

        In the present case, however, the jury’s verdict that Biegas’ fault was 53 percent
necessarily reflected the jury’s independent determination that his fault exceeded the 51
percent minimum it was required to apply. In that circumstance, I cannot say that there
was any realistic likelihood that, without the limiting percent instruction, the jury would
have assessed Biegas’ fault level at less than 51 percent. The court’s contrary
conclusion - resting upon statements that the jury “could have” weighed the evidence of
comparative negligence differently, “may well have” or “could have” evaluated the
evidence differently - is speculation and is insufficient to justify the conclusion that any
error in the instruction was prejudicial.
Nos. 08-1283/1285          Biegas v. Quickway Carriers, et al.                   Page 23


       We cannot say precisely what the jury would have done without the limiting
instruction.   We deal, however, with possibility, probability, and likelihood, not
certainty. In the circumstances here I think the likelihood that without the limiting
instruction the jury could or would have set Biegas’ fault at less than 51 percent is too
slim to warrant concluding that the erroneous limiting instruction was not harmless.

       I would affirm the district court’s judgment.
