Barnes v. 3/12 Transportation, Inc. et al

Filing 40

ORDER denying 26 Motion for Summary Judgment; granting in part and denying in part 27 Motion in Limine; denying 31 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 3/23/12. (bcw)

ur;

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

22

JUNIOR HENRY BARNES,
Plaintiff,
CASE NO. CV410-178
3/12 TRANSPORTATION, INC.,
and CASTLEPOINT FLORIDA
INSURANCE COMPANY,

Defendants.

ORDER
Before the Court are Defendants 3/12 Transportation,
Inc. and Castlepoint Florida Insurance Company's
('Defendants") Motion for Summary Judgment (Doc. 26),
Amended Motion for Summary Judgment (Doc. 31), and
accompanying Daubert Motion to Exclude the Expert Testimony
of Plaintiff's Expert Witness John D. Bethea (Doc. 27). 1 For
the reasons outlined below, Defendant's Daubert motion is
GRANTED IN PART and DENIED IN PART. Mr. Bethea may not
offer testimony to speed of Plaintiff's truck or the rear
taillights on Plaintiff's trailer; however, Mr. Bethea may

1

Defendants original summary judgment motion omitted pages
7-9 and 12. The amended motion corrected the error.
References to the motion for summary judgment will be to the
amended motion (Doc. 31) except where there are citations to
exhibits provided with the original motion for summary
judgment (Doc. 26).

23 P113 . 56

offer testimony concerning the contours of southbound
Interstate 95 at the approximate location of the accident
and concerning Brown's response time. Additionally.
Defendants' original and amended motions for Summary
Judgment are DENIED.
BACKGROUND
At some time around midnight on March 10 or early
morning of March 11, 2010, Plaintiff Junior Henry Barnes was
traveling south in his vehicle-hauler tractor trailer on
Interstate 95 near Pooler, Georgia .2 (Doc. 31 at 1.) 3/12
Transportation employee Norshan Brown ("Brown") was also
traveling south on Interstate 95 in his tractor trailer at
the same time and place.

(Doc. 33 at 1.) After Plaintiff

slept for eight hours at the truck stop, he conducted an
inspection and began driving south on Interstate 95.

(Doc.

26, Ex. 3 at 28.) Soon after Plaintiff started to drive, he
(Doc. 33 at 1; Doc. 26, Ex.

noticed transmission problems.

3 at 29-30.) Plaintiff contends that he had just passed the
inspection station and decided to continue to the nearest
truck stop.

(Doc. 33 at 31.)

According to Plaintiff, he

"activated his four-way emergency flashers and proceeded to

2

Taken in the light most favorable to the nonmoving
Plaintiff, the Court construes the facts as follows. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 577-78 (1986)
2

Exit 90 in the outermost lane of travel at a speed of
approximately 40-45 miles per hour." (Doc. 33 at 2.)
At some point soon thereafter, Brown's truck struck the
rear of Plaintiff's trailer. (Doc 33 at 2; Doc. 31 at 2-3.)
Both Plaintiff and Brown testified that Plaintiff continued
to drive after Brown's truck collided with Plaintiff's
trailer.
56.)

(Doc. 26, Ex. 3 at 33, 35; Id., Ex. 1 at 23, 55Initially, Brown stated that Plaintiff's trailer

lights were not working at the time of the incident. (Doc.
26, Ex. 1 at 45.)

Later, Brown remarked that he was not

sure whether Plaintiff's trailer lights were working or not.
(Id.

at 49-50.)

Still later,

Brown remarked that

Plaintiff's trailer had "two teeny lights on the back," but
(Id. at 50-51.)

that he could not see them.

Brown also

told police officers immediately following the incident that
Plaintiff applied his brakes right before collision. (Doc.
26, Ex. 2.) However, during his deposition, Brown testified
that Plaintiff had not applied his brakes, but later
corrected his statement to say that Plaintiff, indeed, did
slam on his brakes. (Doc. 26, Ex. 1 at 55-56.) Brown
stated that he could not see Plaintiff's truck until just
prior to impact and that he could not avoid the collision
because there were nearby and adjacent vehicles.
45.)

(Id. at

Plaintiff disputes this, however, claiming there were
3

no nearby vehicles impeding Brown from changing lanes.3
(Doc. 26, Ex. 3 at 32.)
Four days later, Plaintiff first sought medical
attention from his primary care physician, Dr. Chitra
Rajpal, at Clinch Medical Practice in Homerville, Georgia.
(Doc. 26, Ex. 5) According to Plaintiff, he suffered
"severe neck pain following the wreck and underwent surgery
to repair the damage caused by the wreck."

(Doc. 33 at 2;

Doc. 26, Ex. 3 at 44-46.) Plaintiff was referred by Dr.
Rajpal to Dr. Hitham Khalil, a neurosurgeon in Valdosta, who
performed surgery on Plaintiff's neck in August 2010. (Doc.
26, Ex. 3 at 46.)

Plaintiff plans to have Dr. Khalil

testify that "within a reasonable degree of medical
certainty, [the] March 2010 collision exacerbated
[Plaintiff's] pain symptoms and precipitated the need for
[Plaintiff] to undergo surgery." (Doc. 33 at 3.)
As a result of the collision, Plaintiff filed this
action, asserting negligence and negligence per se claims
based on Brown's failure to exercise ordinary care in
colliding with Plaintiff. (Doc. 1

1

14.) Plaintiff alleges

that Defendants, through Brown, violated the duties owed to
Plaintiff by failing to exercise due care, following too

Brown testified that there were no vehicles traveling
between him and Plaintiff's truck. (Doc. 26, Ex. 1 at 45.)
4

closely, failing to keep a vigilant lookout ahead, failing
to avoid collision with Plaintiff's trailer, traveling too
fast for conditions and being otherwise negligent and
careless. (Id. ¶ 15.) Due to Brown's negligence, Plaintiff
alleges he suffered injury and damages. (Id. ¶ 16.)
Plaintiff has engaged John Bethea as an expert witness
to testify that Plaintiff's vehicle hauler was traveling at
a speed of 40-45 miles per hour, the rear taillights on
Plaintiff's trailer were operational, and Brown had a clear
view of the rear of Plaintiff's trailer. (Doc. 25 at 4.)
Defendants have filed a motion to exclude the testimony of
Mr. Bethea. (Doc. 27.) Defendants argue his testimony
should be excluded because it is unreliable and not based
upon sufficient facts or data. 4 (Doc. 27 at 2-3.) Plaintiff
objects to the exclusion of Mr. Bethea's testimony and avers
that Mr. Bethea's methodology and analysis meet Daubert
standards and is reliable.

(Doc. 29 at 5-6.)

Defendants

did not depose Mr. Bethea.
In conjunction with the motion to exclude, Defendants
filed a motion for summary judgment (Doc. 26) and a
corrected, amended motion for summary judgment (Doc. 31).
4 Defendants objected to the entire testimony of Mr. Bethea,
but later in the motion only listed three of his four
opinions. Out of an abundance of caution, the Court will
construe Defendants' motion to exclude all four opinions of
Mr. Bethea.
5

In their motion, Defendants argue that Plaintiff has failed
to provide evidence concerning whether Brown violated any
duty or standard of care owed to Plaintiff.
the

alternative,

Defendants

allege

(Id. at 7.) In
that

Plaintiff's

contributory negligence warrants summary judgment in favor
of Defendants. (Doc. 31 at 12-14.) Plaintiff contends that
issues of material fact and jury questions exist, thereby
precluding summary judgment. (Doc. 33 at 1, 7.)
ANALYSIS
I.

MOTION TO EXCLUDE
The admission of expert testimony is controlled by

Federal Rule of Evidence 702:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied the
principles and methods reliably to the facts of
the case.
As the Supreme Court made abundantly clear in Daubert, Rule
702 compels district courts to perform the critical
gatekeeping function concerning the admissibility of expert
scientific evidence." United States v. Frazier, 387 F.3d
1244, 1260 (11th Cir. 2004) (internal quotation omitted)

6

The Eleventh Circuit Court of Appeals has explained that
district courts fulfill that function by engaging in a three
part inquiry, considering whether
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as to be
determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier
of fact, through the application of scientific
• . . expertise, to understand the evidence or to
determine a fact in issue.
Id. While there will often be some overlap between these
concepts of qualification, reliability, and helpfulness,
they are distinct concepts that courts should be careful not
to conflate.

Quiet Tech. DC-S, Inc. v. Hurel-Dubois, UK

Ltd., 326 F. 3d 1333, 1341 (11th Cir. 2003). The burden of
establishing that these requirements are met rests with the
proponent of the expert testimony, and not the Daubert
challenger.

McCorvey v, Baxter Healthcare Corp., 298 F.3d

1253, 1257 (11th Cir. 2002)
When a court considers the reliability of a particular
expert's opinion, it considers, to the extent possible, (1)
whether the expert's theory can be and has been tested; (2)
whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error of the
particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.

Quiet Tech., 326 F.3d at 1341 (citing McCorvey, 298 F.3d at
1256) .

These factors 'do not constitute a 'definitive

checklist or test.' "

Kumho Tire Co. v. Carmichael, 526

U.S. 137, 150 (1999) (quoting Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 593 (1993)). Rather, the applicability
of these factors "depends upon the particular circumstances
of the particular case at issue." Id.
Defendants argue that Mr. Bethea's testimony should be
excluded because his opinions concerning the speed of
Plaintiff's truck, the rear taillights on Plaintiff's
trailer, and Brown's view of the rear of Plaintiff's trailer
are unreliable and based on insufficient facts. 5 (Doc. 25 at
4.) Specifically, Defendants contend that Mr. Bethea
"relied solely upon documentary evidence such as photographs
and the accident report, and the deposition testimony of the
drivers involved in the collision." (Doc. 27 at 2.)
Defendants also seek exclusion because Mr. Bethea did not
"examine either one of the vehicles in the accident, or the
scene of the collision" and did not interview any witnesses.
(Id. at 2-3.)
After review of Mr. Bethea's report (Doc. 25), the
Court concludes that Mr. Bethea's opinions as to the speed
Defendants did not challenge Mr. Bethea's qualifications as
an expert witness. (Doc. 25 at 5 n.5.) This Court finds
Mr. Bethea qualified to render an expert opinion.
8

of Plaintiff's vehicle and the functioning of Plaintiff's
trailer lights will not assist the trier of fact to further
understand the evidence or to determine a fact in issue.
Both of these opinions merely parrot relevant, admissible
evidence that does not require any technical or specialized
analysis or expertise. Indeed, Mr. Bethea's first opinion
restates undisputed testimony of both Plaintiff and Brown
that the speed of Plaintiff's vehicle was 40-45 miles per
hour. (Doc. 29-1 at 32:2-5; Doc. 29-2 at 47:21-22.)
Further, Mr. Bethea's first opinion relies upon the accident
report to determine the location of the accident, another
undisputed fact among the parties. (Doc. 25 at 3.) Mr.
Bethea did not apply or conduct any technical or scientific
analyses to form this opinion.
Curiously, as to his second opinion, Mr. Bethea, an
expert in accident reconstruction, conducted no visual
inspection of the taillight lamps of Plaintiff's trailer to
determine their operational status, even though the factual
allegations regarding the trailer lights are in dispute.
(Id.) Instead, Mr. Bethea again relies only upon the
deposition testimony provided by Plaintiff and Brown to form
his opinion.

(Id.) No technical or scientific analysis was

performed and the opinion simply restates admissible
documentary evidence.

The trier of fact does not need
9

additional, cumulative, and duplicative opinions as to
evidence that is readily discernible without the aid of an
expert. Additionally, Plaintiff, as the proponent of Mr.
Bethea's testimony, has not established that the methodology
used to restate favorable testimony from a deposition to
form his conclusion is sufficiently reliable or would assist
the trier of fact. See Frazier, 387 F.3d at 1260. Again,
Mr. Bethea simply restates Plaintiff's position that the
trailer tail emergency lights were activated at the time of
collision and highlights Brown's conflicting testimony that
he saw lights on the trailer. (Doc. 25 at 4.)
However, Mr. Bethea may offer testimony concerning
limited portions of his third and fourth opinions—namely,
the fact that the section of southbound Interstate 95 at the
approximate location of the collision is straight for at
least 1/2 mile north of the accident location, and that
Brown responded slower than 85 percent of the population to
the presence and reduced speed of Plaintiff. These opinions
rely on Mr. Bethea's expertise in accident reconstruction as
to roadway configuration and response times. While
Defendants object to this testimony on the grounds that it
is based on insufficient facts and data, the Court finds the
principles and methodologies upon which Mr. Bethea relied to
be proper.

See Daubert, 509 U.S. at 595.
10

It is the

methodology and not the conclusions that are determinative
when the Court performs its gate-keeping function. Id.
Defendants are free to conduct "[vi igorous crossexamination, presentation of contrary evidence, and careful
instruction on the burden of proof" to attack admissible
evidence. 6 Id. Mr. Bethea must limit his testimony to only
this; he may not testify about the speed of Plaintiff's
vehicle or the functioning of Plaintiff's trailer lights.
Accordingly, Defendants' motion to exclude Mr. Bethea's
testimony is GRANTED IN PART and DENIED IN PART.
II. MOTION FOR SUMMARY JUDGMENT
According to Fed. R. Civ. P. 56(a), '[a] party may move
for summary judgment, identifying each claim or defense—or
the part of each claim of defense—on which summary judgment
is sought." Such a motion must be granted "if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Id. The "purpose of summary judgment is to 'pierce
the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.' " Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587
(quoting Fed. R. Civ, P. 56 advisory committee notes)
6

The Court makes no opinion as to the weight or value of
this evidence, but merely informs the parties as to the
opportunities afforded Defendants pursuant to Daubert.
11

Summary judgment is appropriate when the nonmovant
"fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986) . The
substantive law governing the action determines whether an
element is essential.

DeLong Equip. Co. v. Wash. Mills

Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion, and
identifying those portions of the pleadings,
depositions, answers to interrogatories, and
the
with
together
file,
on
admissions
affidavits, if any, which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case.

Clark v. Coats& Clark, Inc., 929

F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 587-88.
However, the nonmoving party "must do more than simply show
that there is some metaphysical doubt as to the material
12

facts."

Id. at 586.

A mere "scintilla" of evidence, or

simply conclusory allegations, will not suffice. See, e.g.,
Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.
1998) . Nevertheless, where a reasonable fact finder may
"draw more than one inference from the facts, and that
inference creates a genuine issue of material fact, then the
Court should refuse to grant summary judgment." Barfield v.
Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989)
"In a diversity jurisdiction case, the court applies
the substantive law of the state in which the case arose."
Azar v. Nat'l City Bank, 382 F. App'x 880, 884 (11th Cir.
2010) . Because this case is based on diversity
jurisdiction, the Court will look to the laws of Georgia for
guidance.

To state a cause of action for negligence in

Georgia, a plaintiff must show:
(1) a legal duty to conform to a standard of
conduct raised by law for the protection of others
against unreasonable risks of harm; (2) a breach
of this standard; (3) a legally attributable
causal connection between the conduct and the
resulting injury; and (4) loss or damage to
plaintiffs' legally protected interest resulting
from the breach.

Shortnacy v. N. Atlanta Internal Medicine, P.C., 252 Ga.

App. 321, 325, 556 S.E.2d 209, 213 (2001)
In Georgia, "[elven in rear-end collisions, negligence
is not to be presumed, but is a matter for affirmative
13

proof." Davis V. Sykes. 265 Ga. App. 375, 375, 593 S.E.2d
859, 851 (2004) . Under Georgia law, the issue of negligence
in automobile accident cases is ordinarily for the jury.
See Herringdine v. Barger, 405 F.2d 183 (5th Cir. 1968) ; Gee
v. Owens, 384 F.2d 704 (5th Cir. 1967) (finding that the
question of negligence in connection with conduct of
automobile drivers rarely can be decided as matter of law) .
Further, negligence is a question of fact where there is a
conflict in the evidence.

Davis v. Atlanta Coca Cola

Bottling Co., 119 Ga. App. 422, 167 S.E.2d 231 (1969)
Because '[r]ear-end collision cases are particularly well
suited for jury determination," liability should be
determined by a jury 'except in those rare circumstances
when a party admits liability or the facts are undisputed."
Beckett V. Monroe, 249 Ga. App. 615, 616, 548 S.E.2d 131,
134 (2001)
Georgia law requires the exercise of ordinary care.
Shortnacy, 252 Ga. App. at 213. Relating to automobiles,
[j]ust how close to a vehicle in the lead a
following vehicle ought, in the exercise of
ordinary care, be driven, just what precautions a
driver of such a vehicle in the exercise of
ordinary care take to avoid colliding with a
leading vehicle which slows, stops, or swerves in
In Bonner v. City of Prichard, 661 F.2d 1206, 109 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
14

front of him, just what signals or warnings the
driver of a leading vehicle must, in the exercise
of due care, give before stopping or slowing up or
his intention to do so, may not be laid down in
any hard and fast or general rule.
Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 45051, 224 S.E.2d 25, 25 (1976) . In each case, except when
reasonable minds may not differ, what due care required and
whether it was exercised is for the jury. Cardell v. Tenn.
Electric Power Co., 79 F.2d 934, 937 (5th Cir. 1935) •8 And
because there are no hard and fast rules to determine
ordinary care, t[o]ne of the best known rules in automobile
tort law is that negligence, the solution of what
negligence, whose negligence, etc., has caused a collision
is left solely to the jury, except in plain and palpable
cases." Alexander v. Kendrick, 134 Ga. App. 249, 251, 213

S.E.2d 911, 913 (1975) (citing Hanchey v. Hart, 120 Ga.
App, 677, 680, 171 S.E.2d 918 (1969); Wakefield v. A. R.
Winter Co., 121 Ga. App. 259, 174 S.E.2d 178 (1970)).
Construing the facts in the light most favorable to
Plaintiff, the Court finds that the case at hand is neither
one where reasonable minds would not differ nor or one that
is plain or palpable.

See Kendrick, 134 Ga. App. at 249,

8

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
15

213 S.E.2d at 913.

There is disputed testimony concerning

whether Plaintiff's trailer had operating emergency lights.
It is also not readily apparent the extent to which Brown's
failure to see Plaintiff's truck was a breach of his
standard of care. As Georgia case law has held, where minds
can differ, it is the jury, not the court, that is most
appropriate to determine these issues. See also Daves v.
Davidson, 228 Ga. App. 542, 542, 492 S.E.2d 304, 305-06
(1997) (citations omitted) (holding that "whether or not the
following or approaching from the rear vehicle in a rear-end
collision case has exercised ordinary care to avoid the
collision is usually a jury question"). The facts are also
unclear as to whether Brown exercised the appropriate
standard of care when he failed to avoid the collision—in
terms of when Brown saw Plaintiff's truck, whether there
were other vehicles that impeded his ability to switch
lanes, and whether Plaintiff's trailer lights were activated
at the time of the collision.

All of these facts are

appropriate for a jury to weigh and decide upon.
Furthermore, it is the jury who must "consider whether
defendant failed to exercise ordinary care in driving his
automobile in the manner of an ordinarily prudent person at
the time of the collision." Glaze v. Bailey, 130 Ga. App.
189, 189, 202 S.E.2d 708, 709 (1973).
16

Generally, it is a

jury question to determine any breach of an applicable duty
for a negligence cause of action where a plaintiff is rearended by a defendant. Id. One of the critical issues to
resolve is whether Plaintiff's emergency flashers and lights
were operational, and if so, whether it reasonable that
Brown should have seen them. Because there is a conflict in
the evidence as to the parties' exercise of ordinary
reasonable care, a jury, not the Court, is in the best
position to weigh the evidence and decide this factual
dispute.

See Luke v. Spicer, 194 Ga. App. 183, 183, 390

S.E.2d 267, 267 (1990)
Defendants rely on Hendrix v. Sexton, which affirmed
that, although issues of negligence are generally left to
the jury, in cases where the alleged negligent conduct is
susceptible to only one inference, the question becomes a
matter of law for the court to determine. 223 Ga. App. 466,
466, 477 S.E.2d 881, 882 (1996) . In Hendrix, there was
undisputed evidence indicating that defendant had the right
of way and plaintiff drove into the path of defendant.
Here, however, unlike in Hendrix, there exist disputed facts
that are material and susceptible to multiple inferences.9

It is not the role of the Court to weigh the evidence or
decide the issues of fact on a motion for summary judgment.
In fact, although a jury might ultimately find for Defendant
despite all the evidence being construed by the Court more
17

Defendants also cite additional decisions that affirmed as a
matter of law judgments in favor of a colliding driver where
the record contained undisputed material facts. Hunsucker
v. Belford, 304 Ga. App. 200, 695 S.E.2d 405 (2010) ; Lauffer
v. Brooks, 220 Ga. App. 51, 467 S.E.2d 345 (1996).

Such is

not the case here.
The present case is also distinguishable from Davis v.
Sykes, 265 Ga. App. 375, 593 S.E.2d 859 (2004), where the
Georgia Court of Appeals held that judgment for a rearending defendant as a matter of law was appropriate because
the rear-ended plaintiff failed to sustain the burden of
proving defendant's negligence.
860.

Id. at 860, 593 S.E.2d at

In Davis, the only testimony presented at trial was

from plaintiff and plaintiff's treating physician. Id. at
861, 593 S.E.2d at 860. Unlike the case before this Court,
Davis did not have any disputed facts as to Defendant's
purported negligence and involved limited evidence only
proffered by the plaintiff. Even so, Davis survived summary

favorably toward Plaintiff in this summary judgment motion,
the evidence does not require the Court to rule for
Defendant. See Hillary v. Burrell, 237 Ga. App. 792, 793,
516 S.E.2d 836, 837 (1999); see also Barber v. Atlas
Concrete Pools, 155 Ga. App. 118, 119, 270 S.E.2d 471, 473
(1980) (trial court is not authorized to weigh the evidence
or to decide issues of fact when they exist)
18

judgment and went to trial before the directed verdict was
authorized and later affirmed. Id., 593 S.E.2d at 860.
Defendants also claim that Plaintiff has failed to show
that Brown's

acts

or omissions were the proximate cause of

Plaintiff's injuries. (Doc. 31 at 10.) Defendants cite
several cases alleging that, at present, there is no causal
link

between

injuries.

Brown's alleged negligence and Plaintiff's
However, again, all of the

(Doc. 31 at 11.)

cases cited by Defendants involve instances that survived
summary judgment and reached the jury. Dailey v. Echols,
265 Ga. App. 459, 461, 594 S.E.2d 658 (2004); Butts v.
Williams, 247 Ga. App. 253, 256, 543 S.E.2d 779 (2000);
Collins v. McGlarnory, 152 Ga. App. 114, 262 S.E.2d 262
(1979). Yet again, w [w]hether plaintiff has in fact
suffered injury, as well as whether the defendant may be
liable therefore, are peculiarly questions for jury."
Miller V. Dean, 113 Ga. App. 869, 870, 140 S.E.2d 191, 192
(1966) . In this case, jury questions remain as to proximate
cause.

(Doc. 31 at 10-12.)

One is whether Brown

exacerbated Plaintiff's pre-existing conditions by colliding
with Plaintiff.

(Doc. 33 at 8.)

Another jury question is

whether Brown's acts or omissions were enough to precipitate
Plaintiff to undergo additional spinal surgeries.
9) .

The jury can weigh any inconsistency
19

(Id. at

between

Plaintiff's and Brown's testimony regarding the collision,
Plaintiff's preexisting diseases, and relevant conduct
following the incident.
140 S.E.2d at 192.

See Miller, 113 Ga. App. at 870,
As such, summary judgment is not

appropriate.
Finally, Defendants allege that summary judgment is
warranted

because

Plaintiff's

own

negligence

was

comparatively greater than that of Brown. (Doc. 31 at 12.)
Defendants again rely on Georgia case law and attempt to
suggest that it supports their motion for summary judgment.
See Johnson v. Loggins, 211 Ga. App. 265, 266, 438 S.E.2d
711 (1993) ; Nelson v. Miller, 169 Ga. App. 403, 404-05, 312
S.E.2d 867 (1984); Blalock v. Stayer, 132 Ga. App. 628, 62930, 208 S.E.2d 634 (1974) ; Boatright v. Sosebee, 108 Ga.
App. 19, 21, 132 S.E.2d 155 (1963) . However, all these
cases once more involve comparative negligence issues that
survived summary judgment and where the case was able to at
least reach the jury. In the present action for injuries
sustained during an automobile collision, the issue of
negligence of both parties is a jury decision. See Jarrett
v. Parker, 217 S.E.2d 337, 135 Ga. App. 195 (1975); see also
Piland v. Meli, 240 S.E.2d 193, 194, 143 Ga. App. 783, 784
(1977) (finding that jury questions existed as to whether
plaintiff was to some degree negligent and to what degree).
20

CONCLUSION
For the foregoing reasons, Defendants' Daubert motion
is GRANTED IN PART

and DENIED IN PART. Mr. Bethea may not

offer testimony to speed of Plaintiff's truck or the rear
taillights on Plaintiff's trailer; however, Mr. Bethea may
offer testimony concerning the contours of southbound
Interstate 95 at the approximate location of the accident
and concerning Brown's response time. Defendants' motion
and amended motion for summary judgment are DENIED.
SO ORDERED this 23day of March 2012.

WILLIAM T. MOORE,

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

21