LITTLE et al v. MCCLURE et al

Filing 86

ORDER GRANTING 37 Motion in Limine to exclude certain testimony of Kevin D. Breckenridge. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 10/17/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JARRETT LITTLE, et al.,
Plaintiffs,
v.
ALONZO K. McCLURE, et al.,
Defendants.

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CIVIL ACTION NO. 5:12-CV-147 (MTT)

ORDER
Before the Court is the Defendants’ motion in limine to exclude certain testimony
of Kevin D. Breckenridge. (Doc. 37). The Defendants object to Breckenridge’s opinion
that Defendant Merchants Distributors, Inc.’s (“MDI”) cell phone policy for its drivers is
inadequate and should take into account the recommendations of the North Carolina
Commercial Drivers Manual.
The opinion of an expert witness who is qualified based on knowledge, skill,
experience, training, or education is admissible 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 based on 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 the case.
Fed. R. Evid. 702. Thus, the proponent of expert testimony must show: (1) the expert is
qualified to testify competently regarding the matters the expert will address; (2) the

expert’s methodology is sufficiently reliable; and (3) the testimony will assist the trier of
fact. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002)
(citation omitted). However, the Court’s “gatekeeping function under Rule 702 is not
intended to supplant the adversary system or the role of the jury: vigorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1334 (11th Cir. 2014) (internal
quotation marks and citation omitted).
The Defendants contend Breckenridge is not qualified to opine on MDI’s cell
phone policy because he “has never prepared nor overseen the preparation of a safety
policy or telephone usage policy for a commercial motor carrier and has no personal
knowledge of motor carrier industry standards.” (Doc. 37 at 4). In response, the
Plaintiffs point to Breckenridge’s years of experience enforcing and advising those in the
motor carrier industry on the Federal Motor Carrier Safety Regulations (“FMCSR”).
According to his curriculum vitae, Breckenridge has been involved in enforcing,
overseeing the enforcement of, or advising those in the industry on the FMCSR since
1994. (Doc. 47-1 at 1-3). Breckenridge also served as a safety enforcement officer
with the Tennessee Public Service Commission. (Doc. 47-1 at 3).
Clearly Breckenridge has extensive experience with regulatory enforcement and
compliance. But both sides agree the FMCSR do not require the types of changes to
MDI’s cell phone policy Breckenridge suggests. In contrast to the Plaintiffs’ other
designated expert on the subject, Dr. David Strayer, there is no evidence Breckenridge
has any knowledge, experience, training, or education relating to either the

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development of commercial motor carrier policies in the private sector or cell phone use
while driving. Thus, the Court concludes he is not qualified to opine on MDI’s cell phone
policy.
Breckenridge’s methodology is also insufficient. In arriving at his conclusions,
Breckenridge reviewed deposition transcripts of MDI’s employees, the FMCSR, the
North Carolina Commercial Drivers Manual, the National Transportation Safety Board
2011 recommendation to ban all cell phone use, and MDI’s driver policy guidebook. As
discussed above, he concludes MDI’s cell phone policy should take the North Carolina
Commercial Drivers Manual recommendations into account. However, there is no
evidence Breckenridge has any special familiarity with the North Carolina Commercial
Drivers Manual or has any basis to conclude MDI’s policy should conform to it. Unlike
Dr. Strayer, who applies his own research and experience in evaluating MDI’s cell
phone policy, Breckenridge is not qualified to pick and choose among differing
recommendations on commercial motor carrier cell phone policies.
Finally, though not raised by the Defendants, Breckenridge’s opinion on MDI’s
cell phone policy is largely duplicative of Dr. Strayer’s. While they have different
opinions on what the exact content of the policy should be, they both conclude MDI’s
policy is inadequate. The difference is Dr. Strayer bases his opinion on his research on
distracted driving and experience advising risk management groups who write these
policies.
For the foregoing reasons, the Defendants’ motion to exclude certain testimony
of Breckenridge is GRANTED. Breckenridge will not be permitted to testify on the
adequacy of MDI’s cell phone policy.

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SO ORDERED, this 17th day of October, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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