Lohr v. Zehner et al

Filing 167

OPINION AND ORDER granting in part and denying in part 113 MOTION to Exclude the Testimony of Michael Napier, as further set forth in the opinion. Signed by Honorable Judge Myron H. Thompson on 6/23/2014. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

RICHARD I. LOHR, II, as
)
Administrator of the Estate )
of Charles David Fancher,
)
Deceased,
)
)
Plaintiff,
)
)
v.
)
)
JOSEPH EARL ZEHNER, III,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:12cv533-MHT
(WO)

OPINION AND ORDER
Plaintiff Richard I. Lohr, II, as administrator of the
estate of Charles David Fancher, filed this wrongful-death
lawsuit against defendants Joseph Earl Zehner, III and
United Parcel Service, Inc. (UPS), among others.

The

lawsuit arises out of a series of highway collisions that
resulted in Fancher’s death.

The cause is before the

court on Zehner and UPS’s motion to exclude the testimony
of administrator Lohr’s proffered expert Michael Napier

1

from consideration during summary judgment and at trial by
the jury.

I.

LEGAL STANDARD

Fed. R. Evid. 702 allows experts to offer opinion
testimony if:
“(a) the expert's scientific, technical,
or other specialized knowledge will help
the trier of fact to understand the
evidence or to determine a fact in
issue;
“(b)
the
testimony
is
sufficient facts or data;

based

on

“(c) the testimony is the product of
reliable principles and methods; and
“(d) the expert has reliably applied the
principles and methods to the facts of
the case.”
Fed. R. Evid. 702.

If an expert’s testimony is otherwise

admissible, he may testify to the ultimate issue in a
civil case.

Fed. R. Evid. 704(a).

Before an expert may testify, the court must play a
gatekeeping role to ensure that the testimony is reliable.

2

See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993).

Even if part of an expert’s testimony is

based on unreliable methodology, the court should allow
those parts that are reliable and admissible.

United Fire

and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th
Cir. 2013).

II. BACKGROUND
The facts of this case are complex and disputed.

For

the purpose of this opinion, however, it is helpful to
include some basic and undisputed facts.

Early in the

morning, before sunrise, Zehner was driving a UPS tractortrailer on an interstate highway, when he collided with
the rear of another tractor-trailer, and his truck turned
on its side, blocking the highway.
minutes

later,

Fancher,

approached

truck, collided with it, and died.

3

Approximately 20
Zehner’s

upturned

Administrator
negligent

and

Lohr

wanton

now
in

the

argues
events

that

Zehner

leading

to

was
and

following the initial collision. He also points to several
accidents and violations on Zehner’s record before the
accident and alleges that UPS was negligent and wanton in
its response to those previous infractions.

III. DISCUSSION
Administrator Lohr proffers Napier as an expert in
trucking safety and management, and no party challenges
his qualifications.

However, Zehner and UPS challenge

Napier’s testimony on several grounds, none of which would
exclude the entirety of his testimony.

A. Napier’s Affidavit of April 28, 2014
In response to Zehner and UPS’s motion to exclude his
testimony, Napier submitted an affidavit, dated April 28,
2014, that describes in further detail the nature of his
expertise and the opinions he would present at trial.

4

Zehner and UPS seek to exclude any information or opinions
in this new affidavit as undisclosed opinions.
The Federal Rules of Civil Procedure require that a
party disclose the identity of any expert witnesses and,
for witnesses such as Napier who were retained as experts,
a written report that contains “a complete statement of
all opinions the witness will express and the basis and
reasons for them.” Fed. R. Civ. P. 26(a)(2)(B).

If an

opinion is undisclosed, it should be excluded unless the
non-disclosure
harmless.”

“was

substantially

justified

or

is

Fed. R. Civ. P. 37(c)(1).

Administrator Lohr seems to confuse this argument with
the

‘sham

proceedings.

affidavit’

concept

in

summary-judgment

See Tippens v. Celotex Corp., 805 F.2d 949,

953 (11th Cir. 1986)(“any issue raised by affidavit which
was flatly contradicted by an earlier deposition was so
suspect of untruthfulness as to be disregarded as a matter
of

law”).

Zehner

and

UPS

argue,

not

that

Napier’s

affidavit contradicts his earlier testimony, but that it

5

presents

altogether

new

opinions.

That

said,

it

is

difficult to see what new opinions the affidavit puts
forward or, to the extent the opinions in the affidavit
differ

or

strengthen

the

basis

for

Napier’s

earlier

opinions, how the new opinions prejudice Zehner and UPS in
any way.

In other words, to the extent that there are new

opinions

in

harmless.

this

affidavit,

the

non-disclosure

is

The court will consider the affidavit.

B. Standard of Care
Zehner
regard

to

Zehner’s

and

UPS

the

events

alleged

challenge
leading

negligence.

Napier’s
to

the

They

testimony

with

collisions
argue

that

and
his

“opinions are not beyond the ken of lay persons” and that
the opinions “seek to impose a higher standard ... than is
allowed by Alabama law.”
at 6-7.

Mot. to Exclude (Doc. No. 113-1)

Both of these arguments lack merit.

In order to prove negligence on the part of Zehner,
administrator

Lohr

must

show

6

that

Zehner

failed

to

exercise reasonable care, “that is, such care as [a]
reasonably prudent person would have exercised under the
same

or

similar

Transmission,

circumstances.”

Inc.,

318

So.

2d

Klein

676,

679

(quoting jury instructions approvingly).

v.

(Ala.

Mr.
1975)

Zehner and UPS

argue that most jurors will have driven an automobile and
that, as a result, most jurors will have a common-sense
understanding of the attendant responsibilities in a crash
situation.

They

argue

that

any

testimony

about

the

differences between safely driving a truck and safely
driving an ordinary automobile would impose a higher
standard

of

care

on

Zehner.

In

support

of

this

proposition, they point to Gunnells v. Dethrage, 366 So.2d
1104, 1106 (Ala. 1979), which rejected an argument that
minor drivers should be allowed a lower standard of care
than the standard to which adults are held.
Gunnells does not support Zehner and UPS’s argument
because the difference between negligence in driving a
tractor-trailer,

as

opposed

7

to

a

sedan,

is

not

a

difference
difference

in

the
in

standard
the

of

care

but

instead

circumstances.

a

The

reasonably-prudent-person standard applies, but the law
recognizes

that

a

reasonably

prudent

person

acts

differently in different situations. A tractor-trailer is
a significantly larger and more dangerous vehicle than an
automobile and it is a significantly different kind of
vehicle from that driven by an ordinary juror.

As a

result, the circumstances within which a tractor-trailer
driver must exercise care are quite different from the
circumstances with which most jurors will be familiar.
The testimony of an expert on how to drive a truck safely
will be helpful to the jury.
Furthermore, it is well-established under Alabama law
that the customs and practices within an industry may be
considered by a jury, but are not determinative, when
deciding whether the standard of care has been breached in
a given situation. “The common usage of a business or
occupation is a test of care or negligence, and is a

8

proper matter for consideration in determining whether or
Klein, 31 So.2d

not sufficient care has been exercised.”

at 441-42 (quoting 65 C.J.S. Negligence § 16, now found at
65A C.J.S. Negligence § 912); see also King v. Nat’l Spa
& Pool Inst., Inc., 570 So. 2d 612, 616 (Ala. 1990) (“In
Alabama, evidence that a defendant manufacturer complied
with or failed to comply with industry standards, such as
the standards promulgated by the trade association in this
case, is admissible as evidence of due care or the lack of
due care.”).
Napier is qualified to offer insights to the jury as
to

the

industry

nature

of

practices

driving
for

a

tractor-trailer

driving

such

a

truck

and

the

safely.

Furthermore, under Fed. R. Evid. 704, he may offer his
opinion as to whether, on his review of the various
accident

reports,

appropriate

degree

Zehner
of

failed

care

customs and practices.

9

to

consistent

exercise
with

the

industry

C. Federal Motor Carrier Safety Regulations
Zehner and UPS seek to bar Napier from offering
interpretations

of

the

Federal

Motor

Carrier

Safety

Regulations and opinions as to whether Zehner and UPS
violated those regulations. They argue that any testimony
about the regulations would be offering conclusions of law
and intruding on the role of the court.
point

this

court

to

an

unpublished

In support, they
opinion

from

the

Northern District of Georgia, which cited Seventh and
Eighth Circuit opinions that excluded testimony about the
meaning of regulations.

Ricker v. Southwind Trucking,

Inc., 2006 WL 5157692 at *8 (N.D. Ga. July 13, 2006)
(Murphy, J.) (citing Bammerin v. Navistar Int’l Transp.
Corp., 30 F.3d 898, 900 (7th Cir. 1994), and Police Ret.
Sys. of St. Louis v. Midwest Inv. Advisory Serv., Inc.,
940 F.2d 351, 357 (8th Cir. 1991)).

However, there is no

per se bar on expert testimony about regulations in the
Eleventh Circuit. See United State v. Gold, 743 F.2d 800,
817 & n.10 (11th Cir. 1984) (allowing use of expert

10

testimony to explain complex regulations and describing
such testimony in other cases); see also United States v.
Sinclair, 74 F.3d 753, 757 n.1 (7th Cir. 1996) (noting
that, despite Bammerin, the Seventh Circuit does sometimes
permit expert testimony as to the meaning of regulations).
Alabama law does not recognize a negligence-per-se
cause of action based on the Federal Motor Carrier Safety
Regulations, but such regulations may be considered by a
jury

to

determine

whether

a

defendant

exercised

appropriate care for the situation. Osborne Truck Lines,
Inc. v. Langston, 454 So. 2d 1317, 1326 (Ala. 1984).
Furthermore, common sense suggests that trucking industry
practices around safety are heavily influenced by the
regulations on the industry.

There is no need to demand

that Napier eliminate all references to the regulations in
his testimony.
Although Napier has the experience to describe how the
Federal Motor Carrier Safety Regulations are understood
within the industry, there is nothing to show that he has

11

the expertise to engage in abstract interpretation of the
regulations.

To the extent that Zehner and UPS complain

that Napier will be called to explain the regulations in
the abstract, such testimony would be ungrounded and would
not be useful to the jury since there is no negligenceper-se theory available.
of

such

abstract

However, there is no indication

interpretations

in

Napier’s

expert

report, deposition, or affidavit, and as a result, there
are no such opinions to be excluded.

D. NATMI Materials
Zehner and UPS argue that Napier should be barred from
offering opinions that rely on materials of the North
American Transportation Management Institute (NATMI).

In

arguing against the NATMI references, Zehner and UPS
introduce an affidavit from the executive director of that
organization.

The affidavit states that, “NATMI does not

set industry standards in the trucking institute.” Arnold
Aff. (Doc. No. 113-2) at 128.

12

However, Napier relied on

NATMI’s book, Motor Fleet Safety Supervision, Principals
and Practices, which states that NATMI certification is
designed to “designate competence with regard to the
transportation

industry’s

standards

of

performance,

excellence and achievement.” Napier Aff. (Doc. No. 130-2)
at ¶ 5.

Therefore, even if such materials do not set

industry standards, they could be reasonably understood to
describe

industry

practices

and

would

legitimate bases for Napier’s opinions.

therefore

be

The court sees no

reason that citation to NATMI materials diminishes the
reliability of Napier’s opinions to the extent that those
opinions should not go before a jury.

E. “High Risk Commercial Driver”
Zehner and UPS seek to exclude any opinion that Zehner
was a “High Risk Commercial Driver” or that his previous
violations and preventable accidents should have led UPS
to terminate him prior to the collisions at issue in this
case.

Napier

relies

on

two

13

bases

for

this

set

of

opinions: his own experience in the trucking industry, as
well

as

a

document

called

the

“Synthesis

of

Safety

Practice,” which was commissioned by the Federal Motor
Carrier

Safety

Administration

and

issued

by

the

Transportation Research Board of the National Academies.
UPS and Zehner argue that Napier’s opinion regarding
Zehner’s record and UPS policies do not have sufficient
basis to be reliable.

However, in his deposition Napier

makes clear that he is offering his opinion based in part
on his experience in the trucking industry and his review
of numerous trucking company policies. See, e.g. Napier
Dep. (Doc. No. 130-3) at 91:22-25 (“There’s not a single
standard that I’ve ever read or any company policy that
would accept a driver that had three moving violations in
three months that they would retain.”).

He says that his

reference to the Synthesis was intended “as a support to
what I’m saying I understand the industry standards to be
with regards to issues of the high risk driver.”
94:2-5.

14

Id. at

Experience may provide sufficient foundation for an
expert opinion.

“If the witness is relying solely or

primarily on experience, then the witness must explain how
that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how
that experience is reliably applied to the facts.”

Fed.

R. Evid. 702 advisory committee note (2000 amends.); see
also United States v. Frazier, 387 F.3d 1244, 1265-66
(11th Cir. 2004).

In this case, the specific experience

is Napier’s prior review of other company’s disciplinary
and retention policies, which he characterizes as showing
that no other policies are as lenient as UPS’s.
Zehner and UPS’s concerns about the reliability of the
Synthesis, on the other hand, stands on stronger footing.
Specifically,

they

challenge

the

reliability

of

Synthesis as an indication of industry standards.
Synthesis

was

a

survey

of

various

trucking

was

not

intended

15

as

a

The

industry

professionals on their response to safety issues.
survey

the

The

prescriptive,

standard-setting

document,

and

it

did

not

have

a

sufficiently large response rate to be scientifically
representative

of

industry

opinion

on

safety

issues.

Napier admitted as much in his deposition.
Napier’s basis in experience is sufficiently reliable
for the court to admit opinions about industry practices
of retention of drivers who have exhibited various forms
of risky behavior and how Zehner’s driving history would
be evaluated in the industry.

However, the court cannot

conclude that the Synthesis report is also sufficiently
reliable to serve as a basis for expert opinion.
Since, as of now, the phrase “High Risk Commercial
Driver” appears to come from the Synthesis, Napier will be
barred from using that phrase in testimony unless there is
an indication at trial that the phrase is a general term
of art within the industry.

However, the court cannot

determine from the record which of Napier’s opinions on
this

subject

would

still

stand

absent

the

Synthesis

report. The court believes that discerning which opinions

16

should be heard by the jury and which should be excluded
is a process better left for trial, where the court can
examine the witness to understand better the basis or each
opinion.
Napier’s opinions on this issue do not affect the
court’s summary-judgment analysis.

F. Fatigue
UPS

and

Zehner

challenge

Napier’s

opinion

that

Zehner’s actions are “indicative of the actions of a
distracted,
driver.”
expounds

ill/fatigued,

and/or

otherwise

Napier Rep. (Doc. No. 130-1) ¶ 5.
further

in

his

expert

report

and

impaired
Napier
in

his

deposition testimony about the dangers of driver fatigue,
but his only basis for stating that Zehner was likely
fatigued or otherwise impaired is that he failed to abide
by Napier’s articulated standard of care and that he
stated that he had “fallen asleep” and “nodded off” on
several occasions.

Id.

These summaries add no helpful

17

analysis for the jury, which will be as well equipped to
determine whether Zehner fell asleep as Napier is.

Napier

offers no detail on how his experience might inform the
summary

opinions,

although

he

does

offer

conclusory

statements that his experience would be useful.

These

statements are not sufficient for Napier’s opinion to be
admissible on this matter.

See Frazier, 387 F.3d at 1265-

66 (affirming exclusion of expert’s opinions regarding a
matter outside his expertise, where his experience did not
provide a basis for the opinion).
Therefore,

with

regard

to

the

fatigue,

UPS

and

Zehner’s motion to exclude will be granted.

G. “Contributing Factors”
Finally, Zehner and UPS object to Napier’s use of the
phrase “contributing factor” to describe his conclusions.
From

the

written

record

alone,

it

is

difficult

to

determine exactly what Napier is trying to communicate
with this phrase: Are they factors which contribute to his

18

accident, to his opinion, to something else?

To some

extent, Zehner and UPS’s objection seems to sound more
strongly in Fed. R. Evid. 403 than Rule 702: Is the
probative value of Napier’s use of ‘contributing factor’
“substantially
prejudice,
jury”?

outweighed

confusing

the

by

a

danger

issues,

[or]

of

...

unfair

misleading

the

For the time being, the court will allow Napierto

use this phrase in his testimony depending on the context.
However, Zehner and UPS may object at trial if context
shows that the usage is prejudicial.

The use of this

language will not affect the court’s summary-judgment
analysis.

* * *

Accordingly, it is ORDERED that defendants Joseph Earl
Zehner, III and United Parcel Service, Inc.’s motion to
exclude the testimony of Michael Napier (doc. no. 113) is

19

granted in part and denied in part as set forth in the
above opinion.
DONE, this the 23rd day of June, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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