Smith v. Edge, et al.

Filing 77

PRETRIAL ORDER directing that: (1) because the pretrial hearing was held on 12/3/2015 @ 2:45 p.m., the hearing set for 12/9/2015 is cancelled; (2) the Non-Jury Trial of this cause, which is to last 3 days, is set for 1/20/2016 @ 10:00 AM b efore Honorable Judge Myron H. Thompson, at the US Courthouse in Montgomery, AL; (3) the plf is required to file proposed findings of fact and conclusions of law by 12/9/2015; the defs are required to file proposed findings of fact and conclusions of law by 12/21/2015; the plf has until 1/4/2016 to file a reply, as further set out in order; (4) the parties in this case are not required to file trial briefs; Each party shall have available at the time of trial, for use by the court (the judge, th e courtroom deputy clerk, and the law clerk), three copies of the exhibit list and a sufficient number of copies of each photostatically reproducible exhibit for opposing counsel, the courtroom deputy clerk, the law clerk, and the judge to each have a set of the exhibits; (6) all deadlines not otherwise affected by this order will remain as set forth in the 11 uniform scheduling order, as further set out in order; (7) All understandings, agreements, deadlines, and stipulations contained in thi s pretrial order shall be binding on all parties unless this order be hereafter modified by order of the court. Signed by Honorable Judge Myron H. Thompson on 12/4/15. Furnished to calendar group and AG (terminates 12/9/2015 PTC, reset NJT from 1/11/2016).(djy, ) . (Main Document 77 replaced on 12/4/2015 to correct erroneous main PDF document to correct typographical error in date) (qc/djy, ).

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CONNIE SMITH et. al.,
Plaintiff,
v.
ROBERT EDGE, II; PFG TRANSCO,
et.al.,
Defendant.

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2:14-cv-00909-MHT-CSC
(WO)

ORDER ON PRE-TRIAL HEARING
A pretrial hearing was held in this case on December 3, 2015 at 2:45 p.m. wherein the
following proceedings were held and actions taken:
PARTIES AND TRIAL COUNSEL:
The Plaintiff, Connie Smith, is represented by Guy R. Willis and Darren Kies.
Defendants, Robert Edge, II and PFG Transco, are represented by Philip Butler, William
C. McGowin, and Ann Hill.
COUNSEL APPEARING AT PRETRIAL HEARING:
Guy R. Willis and Darren Kies for the Plaintiff.

Philip Butler and Ann Hill for

Defendants.
JURISDICTION AND VENUE
This Court has diversity subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332 and
venue is proper.
PLEADINGS:
The following pleadings and amendments were allowed:

1.

Plaintiff’s Complaint (Doc. 1).

2.

Defendants’ Answer (Doc. 12).
CONTENTIONS OF THE PARTIES:

(a)

The Plaintiff:
1.

The cause of the accident was due to the negligence and/or wantonness of Robert

Edge and PFG Transco.
2.

Edge's vehicle collided with the rear of the vehicle driven by plaintiff Smith as a

result of Robert Edge’s negligent and/or wanton conduct.
3.

The plaintiff's vehicle was legally stopped in compliance with the Alabama Law

in a proper manner at a designated bus stop in order to pick up a passenger when Defendant Edge
drove his truck into the rear of Smith's vehicle.
4.

The defendant Edge failed to maintain proper sight alignment of the traffic in

front of him and failed to take proper measures and steps to prevent hitting Smith's vehicle in the
rear.
5.

Defendant Edge violated a rule of the road and/or several rules of the road in the

operation of his vehicle.
6.

Defendant Edge violated several FMCSR in the operation of his motor vehicle

which caused the accident.
7.

Defendant PFG violated several FMCSR which caused and/or contributed to the

cause of the accident.
8.

Defendant Edge had a clear line of sight to the plaintiff's bus as the bus was

slowing to stop at the designated bus stop and pulling over to the right hand side onto the
shoulder of the roadway for over 600 feet before hitting the plaintiff's bus.

2

9.

Defendant Edge never engaged in a hard braking event in order to slow his bus to

prevent from hitting the plaintiff's bus in the rear.
10.

Defendant Edge struck the rear of the plaintiff's bus in the driver's rear corner at

approximately 36 mph.
11.

After the accident Defendant Edge made an admission the accident was his fault

which establishes liability.
12.

After the accident Defendant Edge stated “Man, I’m sorry. I was trying to avoid

that car.”
13.

Defendant Edge was not competent to drive the type of commercial motor vehicle

he was driving at the time of the accident.
14.

Defendant Edge lied on his application to Defendant PFG concerning his work

history and his driving record.
15.

Defendant Edge had been fired by a previous motor carrier for testing positive for

16.

Defendant PFG retained Defendant Edge as a truck driver after learning they had

drugs.

hired Defendant Edge in violation of the FMCSR.
17.

Defendant PFG negligently and/or wantonly hired, trained and supervised

Defendant Edge while he was employed with Defendant PFG.
18.

Defendant PFG negligently entrusted a vehicle to Defendant Edge after hiring

Defendant Edge to drive a commercial motor vehicle.
19.

Plaintiff Connie Smith (“Smith”) sustained serious injuries to his person as a

result of the negligent and/or wanton conduct of the defendants.
20.

The medical treatment to Smith provided by all the treating facilities and treating

3

doctors was medically necessary and the cost of said treatment was reasonable.
21.

Smith sustained a permanent physical impairment as a result of the accident

which was due to the negligent and/or wanton conduct on the part of the defendant.
22.

Smith may require future medical treatment a result of the injuries sustained in the

accident which was due to the negligent and/or wanton conduct of the defendant.
23.

Smith has suffered physical pain and mental anguish as a result of the accident

which was due to the negligent and/or wanton conduct of the Defendants.
24.

Smith will suffer physical pain and mental anguish in the future as a result of the

accident which is due to the negligent and/or wanton conduct of the Defendants.
25.

Smith lost income and leave time as a result of the accident due to the negligent

and/or wanton conduct of the Defendants.
26.

Smith will lose future income as a result of the accident which was due to the

accident which was due to the negligent and/or wanton conduct of the Defendants.
27.

Smith incurred a cost due to travel to and from the health care providers for

treatment of his injuries as a result of the negligent and/or wanton conduct of the Defendants.
28.

Smith claims he due compensatory as well as punitive damages from the

defendants as a result of the negligent and/or wanton conduct of the Defendants.
29.

Smith has incurred medical cost as a result of the accident which was due to the

negligent and/or wanton conduct of the Defendants.
30.

Smith is 100% vocationally impaired due to the injuries sustained in the accident

which was due to the negligence and/or wantonness of the defendants.
31.

Smith will incur future medical cost as a result of the accident which was due to

the negligent and/or wanton conduct of the Defendants.

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32.
(b)

The defendant Edge failed to yield the right of way to the plaintiff.

The Defendant:
1.

Defendants contend that Plaintiff negligently stopped the MATS bus he was

driving partially in the outside travel lane of East South Blvd (U.S. Hwy 231) blocking the flow
of traffic. Plaintiff negligently failed to pull the bus he was driving off the travel lanes and onto
the paved shoulder of East South Blvd in the space provided for buses to stop and pick up or
deliver passengers at the subject bus stop. If Plaintiff had properly stopped the bus he was
driving at the proper space provided at the subject bus stop, this accident could not and would
not have happened.
2.

Thus, Defendants contend that Plaintiff’s alleged injuries and damages are the

proximate consequence and result of the Plaintiff’s negligence.
3.

Defendants deny that they were negligent and/or wanton concerning this collision

and state that Plaintiff was at least contributory negligent and Plaintiff is barred from recovery.
4.

Defendants deny that they were negligent and/or wanton in hiring, training,

supervising or entrusting the vehicle in question to Robert Edge.
5.

Defendants deny that Plaintiff suffered the injuries and damages alleged in the

complaint.
STIPULATIONS BY AND BETWEEN THE PARTIES:
1.

All parties are properly named in this suit and properly before the Court.

2.

The automobile accident occurred on April 22, 2014 when Plaintiff’s vehicle and

Defendants’ vehicle collided.
3.

The following medical records, x-rays and medical bills from the medical

facilities, physicians and pharmacies that provided medical treatment and/or medical services to

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Smith are agreed by counsel for Defendants to be properly authenticated and will be allowed into
evidence:
(a)

Medical records and medical bills from PT Solutions, pertaining to Connie
Smith, for injuries allegedly sustained in the automobile accident.

(b)

Medical records and medical bills from Pri-Med Taylor Crossing,
pertaining to Connie Smith, for injuries allegedly sustained in the
automobile accident.

(c)

Medical records and medical bills from Hart Chiropractic, pertaining to
Connie Smith, for injuries allegedly sustained in the automobile accident.

(d)

Exhibits utilized during the deposition of Dr. Jason Hart, including:
i.
ii.

PX 9-B (Chiropractic bills)

iii.

PX 9-C (Curriculum Vitae)

iv.

PX 9-D (Muscles of the Back)

v.

PX 9-E (Normal Muscle/Spasm)

vi.

DX 1 (Employee Request for Leave 7/6/12)

vii.
(e)

PX 9-A (Chiropractic records)

DX 2 (Chiropractic records-McMillian)

Medical records and medical bills from High Tech Imaging Center,
pertaining to Connie Smith, for injuries allegedly sustained in the
automobile accident.

(f)

Medical records and medical bills from Neurological Care Center/Dr.
Rosa Bell, pertaining to Connie Smith, for injuries allegedly sustained in
the automobile accident.

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(g)

All exhibits utilized during the deposition of Dr. Rosa Bell, including:
i.
ii.

PX 7-B (Medical bills)

iii.
(h)

PX 7-A (Medical records)

PX 7-C (Curriculum Vitae)

Medical records and medical bills from Harmony Wellness and Rehab
Plus, pertaining to Connie Smith, for injuries allegedly sustained in the
automobile accident.

(i)

Medical records and medical bills from Neurology Consultants of
Montgomery/Dr. Larry Epperson, pertaining to Connie Smith, for
injuries allegedly sustained in the automobile accident.

(j)

All exhibits utilized during the deposition of Dr. Larry Epperson,
including:
i.
ii.

PX 10-B (Medical bills)

iii.

PX l0-C (Curriculum Vitae)

iv.
(k)

PX 10-A (Medical records)

PX 10-D (Surgical Release photo)

Medical records and medical bills from Alabama Orthopaedic
Specialists, P.A./Dr. Michael Davis, pertaining to Connie Smith, for
injuries allegedly sustained in the automobile accident.

(l)

All exhibits utilized during the deposition of Dr. Michael Davis,
including:
i.

PX 11-A (Medical records)

ii.

PX 11-B (Medical bills)

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iii.

PX 11-C (Curriculum Vitae)

iv.

PX 11-D (Anatomy of Vertebral Column)

v.

PX 11-D (1) (Blowup-normal midsagittal)

vi.

PX 11-D (2) (Blowup-midsagittal bulge)

vii.

PX 11-D (3) (Blowup-normal posterior)

viii.

PX 11-D (4) (Blowup-posterior bulge)

ix.
x.

PX 11-E (Ant. Cervical Diskectomy/Fusion)

xi.
(m)

PX 11-D (3) (Blowup-posterior herniation)

PX 11-F (Imaging reports: X-ray, MRI)

Medical records and medical bills from Central Alabama Pain
Management/Dr. Roger Kemp, pertaining to Connie Smith, for injuries
allegedly sustained in the automobile accident.

(n)

All exhibits utilized during the deposition of Dr. Roger Kemp.
i.

PX 13-A (Medical records)

ii.

PX 13-B (Medical bills)

iii.

PX 13-C (Curriculum Vitae)

iv.

PX 13-D (Anatomy of Vertebra l Column)

v.

PX 13-D(1) (Blowup-midsagittal w/bulge)

vi.

PX 13-D(2) (Blowup-posterior w/bulge)

vii.

PX 13-D(3) (Blowup-posterior w/herniation)

viii.

PX 13-E (Epidural tray w/contents)

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(o)

Medical records and medical bills from Rehab Associates, pertaining to
Connie Smith, for injuries allegedly sustained in the automobile accident,
which made the basis of this cause.

(p)

Medical records and medical bills from Montgomery Anesthesia,
pertaining to Connie Smith, for injuries allegedly sustained in the
automobile accident.

(q)

Medical records and medical bills from Jackson Hospital & Clinic,
pertaining to Connie Smith, for injuries allegedly sustained in the
automobile accident.

(r)

Medical records and medical bills from Radiology Group of Jackson
Hospital, pertaining to Connie Smith, for injuries allegedly sustained in
the automobile accident.

(s)

Medical record and medical bills from Radiology Group of Jackson
Hospital, pertaining to Connie Smith, for injuries allegedly sustained in
the automobile accident.

(t)

All exhibits offered during the deposition of Dr. Lorie McMillian,
including:
i.
ii.

PX 17-A (Employee Request for Leave)

iii.

DX 1 (Work excuse 7/6-16/2012)

iv.

DX 2 (Chiropractic Billing Guide)

v.
4.

PX 17 (Chiropractic records)

DX 1 (Request for Leave w/doctor excuse).

Photographs of accident scene.

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5.

Photographs of vehicle driven by plaintiff.

6.

Photographs of defendant’s vehicle.

7.

Diagrams of accident scene.

8.

Copy of Robert Edge’s Driver’s License.

9.

Defendant Edge was working for Defendant PFG Transco at the time of the

accident.
10.

Defendant Edge was performing a task for Defendant PFG Transco at the time of

the accident.
11.

The motor vehicle accident which is the subject of this accident occurred on April

22, 2014, in the north bound lane of travel on East South Blvd (U.S. Hwy 231) at the or near the
vicinity of the bus stop in front of Montgomery Towne Center Shopping Center.
12.

The motor vehicle accident which is the subject of this accident occurred on a

public roadway, East South Blvd (U.S. Hwy 231), in the city and county of Montgomery,
Alabama.
13.

A paved shoulder off of the outside lane of the northbound lane of East South

Blvd (U.S. Hwy 231) was provided for the bus to stop at the subject bus stop, and this paved lane
was 9 feet 2 inches wide from the outside edge of the outside lane to the edge of the paved
shoulder.
14.

The subject bus that Plaintiff was driving at the time of this accident was no more

than 103 inches (8 feet 7 inches), exclusive of detachable wind deflection devises.
15.

The posted speed limit on East South Blvd (U.S. Hwy 231) at and near the site of

the subject accident was 55 mph.

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16.

The subject bus stop, bus stop sign and the paved shoulder near the subject bus

stop have not materially changed from the date of the subject accident up to today’s date.
17.

The video recordings from the subject MATS bus (front and rear) correctly depict

the positions of the bus and Defendants’ tractor trailer immediately prior to, during and
subsequent to the collision which is the subject of this action.
18.

The video recording from the Defendants’ tractor trailer correctly depicts the

positions of the subject MATS bus and Defendants’ tractor trailer immediately prior to, during
and subsequent to the collision which is the subject of this accident.
19.

The subject MATS bus was stopped partially in the outside lane of travel of East

South Blvd (U.S. Hwy 231) at the time of the subject collision.
20.

Defendant Edge was an agent of Defendant PFG.
***

It is ORDERED that:
(1) Because

the

pretrial

hearing

was

held

on

December 3, 2015, at 2:45 p.m., the hearing set for
December 9, 2015, is cancelled.
(2) The non-jury trial of this cause, which is to
last three days, is set for January 20, 2016, at 10:00
a.m.

at

the

United

States

Courthouse

in

Montgomery,

Alabama;
(3) The

plaintiff

is

required

to

file

proposed

findings of fact and conclusions of law by December 9,
11

2015;

the

defendants

are

required

to

file

proposed

findings of fact and conclusions of law by December 21,
2015; the plaintiff has until January 4, 2016, to file
a reply; and the parties are also directed to file and
email their proposed findings of fact and conclusions
of law to <[e-mail]> in Word
format by the dates specified above;
(4) The parties in this case are not required to
file trial briefs.
(5)

Each party shall have available at the time of

trial, for use by the court (the judge, the courtroom
deputy clerk, and the law clerk), three copies of the
exhibit list and a sufficient number of copies of each
photostatically

reproducible

exhibit

for

opposing

counsel, the courtroom deputy clerk, the law clerk, and
the judge to each have a set of the exhibits;
(6) All deadlines not otherwise affected by this
order

will

remain

as

set

forth

in

the

uniform

scheduling order (doc. no. 11) entered by the court on
October

8,

2014,

as

12

amended;

and

(7) All understandings, agreements, deadlines, and
stipulations contained in this pretrial order shall be
binding on all parties unless this order be hereafter
modified by order of the court.
DONE, this the 4th day of December, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE