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
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?