Lohr v. Zehner et al
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,
JOSEPH EARL ZEHNER, III,
CIVIL ACTION NO.
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.
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
from consideration during summary judgment and at trial by
Fed. R. Evid. 702 allows experts to offer opinion
“(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
sufficient facts or data;
“(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
Fed. R. Evid. 702.
If an expert’s testimony is otherwise
admissible, he may testify to the ultimate issue in a
Fed. R. Evid. 704(a).
Before an expert may testify, the court must play a
gatekeeping role to ensure that the testimony is reliable.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141
(1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
Even if part of an expert’s testimony is
based on unreliable methodology, the court should allow
those parts that are reliable and admissible.
and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th
The facts of this case are complex and disputed.
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.
truck, collided with it, and died.
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.
Administrator Lohr proffers Napier as an expert in
trucking safety and management, and no party challenges
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.
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).
opinion is undisclosed, it should be excluded unless the
Fed. R. Civ. P. 37(c)(1).
Administrator Lohr seems to confuse this argument with
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
affidavit contradicts his earlier testimony, but that it
difficult to see what new opinions the affidavit puts
forward or, to the extent the opinions in the affidavit
opinions, how the new opinions prejudice Zehner and UPS in
In other words, to the extent that there are new
The court will consider the affidavit.
B. Standard of Care
“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.”
Mot. to Exclude (Doc. No. 113-1)
Both of these arguments lack merit.
In order to prove negligence on the part of Zehner,
exercise reasonable care, “that is, such care as [a]
reasonably prudent person would have exercised under the
(quoting jury instructions approvingly).
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
differences between safely driving a truck and safely
driving an ordinary automobile would impose a higher
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
reasonably-prudent-person standard applies, but the law
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.
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
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
Napier is qualified to offer insights to the jury as
Furthermore, under Fed. R. Evid. 704, he may offer his
opinion as to whether, on his review of the various
customs and practices.
C. Federal Motor Carrier Safety Regulations
Zehner and UPS seek to bar Napier from offering
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.
In support, they
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
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
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
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
the expertise to engage in abstract interpretation of the
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.
However, there is no indication
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).
arguing against the NATMI references, Zehner and UPS
introduce an affidavit from the executive director of that
The affidavit states that, “NATMI does not
set industry standards in the trucking institute.” Arnold
Aff. (Doc. No. 113-2) at 128.
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
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
legitimate bases for Napier’s opinions.
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
opinions: his own experience in the trucking industry, as
Practice,” which was commissioned by the Federal Motor
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.”
Experience may provide sufficient foundation for an
“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.”
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.
Synthesis as an indication of industry standards.
professionals on their response to safety issues.
sufficiently large response rate to be scientifically
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
report. The court believes that discerning which opinions
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
Napier’s opinions on this issue do not affect the
court’s summary-judgment analysis.
Zehner’s actions are “indicative of the actions of a
Napier Rep. (Doc. No. 130-1) ¶ 5.
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
These summaries add no helpful
analysis for the jury, which will be as well equipped to
determine whether Zehner fell asleep as Napier is.
offers no detail on how his experience might inform the
statements that his experience would be useful.
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).
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.
determine exactly what Napier is trying to communicate
with this phrase: Are they factors which contribute to his
accident, to his opinion, to something else?
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’
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
* * *
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
granted in part and denied in part as set forth in the
DONE, this the 23rd day of June, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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