Hamlett et al v. Carroll Fulmer Logistics Corporation et al
Filing
69
ORDER granting 37 Motion to Exclude Certain Portions of Trooper Robert L. Scott, Jr.'s Testimony; granting 38 Motion to Exclude Certain Portions of Jeffrey Alan Kidd's Testimony. Signed by Magistrate Judge G. R. Smith on 4/6/2016. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LEROY HAMLETT AND
MARSHA HAMLETT,
)
)
Plaintiffs,
V.
Case No. CV415-001
CARROLL FULMER LOGISTICS
CORPORATION, STEVEN
GEORGE SWARTZ AND
PROTECTIVE INSURANCE
COMPANY,
Defendants.
ORDER
After he returned from his overseas military deployment in 2014,
Sergeant First Class Leroy Hamlett crashed his motorcycle into a truck
driven by George Swartz and owned by Swartz's employer, Carroll
Fulmer Logistics Corporation (CFLC). 1 Doc. 1-1 at 3; doc. 55 at 4.
Georgia State Patrol Trooper Robert L. Scott, Jr. examined the scene
just after the accident and found Swartz at fault. The crash occurred on
For the purpose of this Order, the Court is accepting as true the factual assertions
lifted from the cited pleadings above.
a four-lane road in Richmond Hill, Georgia. Hamlett had the right-ofway but Swartz made a left turn from his oncoming lane, causing
Hamlett to collide with his truck's front end. See doe. 37-2 at 89 (official
accident report diagram). Scott issued an O.C.G.A. § 40-6-73 (failure to
yield) citation to Swartz, who paid the fine. Doc. 1-1 at 3; doc. 55 at 4;
doe. 68 at 13. Hamlett and his wife (consortium claim) sued Swartz,
CFLC, and CFLC's insurer. Doe. 11.2 He seeks compensatory and
punitive damages, plus O.C.G.A. § 13-6-11 attorney fees and costs.' Id.
2 Defendants have
admitted "Swartz was making a left turn and while in the process of turning,
Plaintiff struck the front of the tractor sustaining injuries. Defendants
admit[ted] Defendant Swartz's negligence contributed to the cause of this
accident and some injury to Plaintiff. . . ." (Doc. 7, 1111 12, 15 & 17). Defendants
admitted "Swartz turning left violated Georgia law under the circumstances."
(Doc. 7, ¶11 23-24). Defendants further admitted Swartz was in scope of his
employment with Carroll Fulmer and the applicability of the doctrine of
respondeat superior. (Doc. 7, ¶ 16). Defendants "reserve[d] for trial the
questions of contributory/comparative negligence and damages" as well as "the
issue of proximate cause as to any damages which may be claimed that are not
related to the accident", but otherwise admitted the material allegations of the
complaint regard and the accident. (Doc. 7, 112, 15, 17, 18 & 19).
Doc. 35-1 at 4. But defendants insist that
Plaintiff should have been able to first see at least the top half of Swartz's
tractor trailer from 500 or more feet from the accident scene. (Sloan
deposition, page 72, lines 1 through 25). Plaintiff could have perceived
Swartz's tractor trailer in a stopped position and beginning its turn from
about 200 feet from the accident scene. (Sloan deposition, page 76, lines 6
through 11; page 192, lines 4 through 24). Plaintiff could have brought his
motorcycle to a stop from 200 feet assuming Plaintiff was traveling 30 mph.
The defendants move for summary judgment against plaintiff's
punitive damage and attorney fee claims. Docs. 34, 35 & 40. They also
move to exclude expert witness Jeffrey Alan Kidd's testimony about his
calculations and diagrams because he failed to produce them with his
written report by the Court's disclosure deadline. Doc. 38. Finally, they
move to exclude from trial Scott's testimony on these topics: whether
Hamlett was a cause of the accident; the percentage of Swartz's fault;
whether Hamlett should have avoided Swartz's tractor trailer; and
Hamlett's alleged speed at impact. Doc. 37. The summary judgment
motions are before the district judge. The exclusion motions are reached
here.
(Sloan deposition, page 193, lines 3 through 6).
Id. at 7. Hamlett concedes that his contributory negligence is a jury issue: "As
Hamlett approached the intersection, he had the right of way, and Defendant Swartz
negligently failed to yield to Hamlett's motorcycle, causing the collision. Defendant
Swartz received and pled guilty (by bond forfeiture) to the ticket of 'Failure to Yield
Entering Highway,' in violation of O.C.G.A. § 40-6-73. Defendants have admitted
fault in this action, and to contributing to Plaintiffs' injuries." Doc. 68 at 5; see also
id. at 7 (defendants' portion of pretrial order: "Sergeant Hamlett does not remember
what happened, but his motorcycle was capable of stopping quickly and in a very
short distance. Because he was riding a high performance motorcycle, Mr. Hamlett
had room to stop."); id. at 17 (defendants insist that "Comparative
Negligence/Avoidance of Consequences" principles apply to the trial of this case).
For convenience, the Court hereafter will refer only to Hamlett, not his wife, and
thus reference just Hamlett -- as "the plaintiff."
91
I. ANALYSIS
A. Kidd's Testimony
Hamlett hired Kidd as an accident reconstruction expert who,
unsurprisingly, lays all the blame on Swartz. Doe. 25 at 3. His report
supplies only the sources he'd been provided to review, then states his
conclusions: that Swartz's failure to keep a proper lookout and yield
while turning left (he turned into Hamlett's path) "is the sole cause of
this collision." Id. His report was incomplete, defendants contend, when
it was disclosed to them by the Court's July 23, 2015 deadline.' Doe. 381. They insist he should not be permitted to supplement it after that
deadline, during his deposition. Rule 26, they remind, prohibits
procrastination and sandbagging. 5 Doe. 38-1.
Fed. R. Civ. P. 16(b)(3)(B)(i),
26(a)(2)(D) (district court may set time limits for disclosure of expert witness
testimony).
See doc. 31 at 1 (Scheduling Order); see also
As has been explained:
Rule 26(a)(2) requires that a report, signed by the expert witness, must
accompany the disclosure of each expert witness. This report must contain: (i)
a complete statement of all opinions the witness will express and the basis and
reasons for them; (ii) the data or other information considered by the witness
in forming them; (iii) any exhibits that will be used to summarize or support
them; (iv) the witness's qualifications, including a list of all publications
authored in the previous 10 years; (v) a list of all other cases in which, during
the previous 4 years, the witness testified as an expert at trial or by deposition;
and (vi) a statement of the compensation to be paid for the study and
Hamlett counters that Kidd's report was only technically deficient.
He expresses surprise at the defendants' objection. The parties, he
explains, have worked harmoniously on this matter, conferring in early
August 2015 to schedule Kidd's deposition for September 3, 2015. Doe.
testimony in the case. Fed.R.Civ.P. 26(a)(2)(B). A party must make these
disclosures at the time and in the sequence that the court orders. Fed.R.Civ.P.
26(a)(2)(D).
Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1357 (S.D. Ga. 2012) (emphasis added).
For that matter:
An expert report is deemed adequate when it is "sufficiently complete, detailed
and in compliance with the Rules so that surprise is eliminated, unnecessary
depositions are avoided, and costs are reduced." Reed v. Binder, 165 F.R.D.
424, 429 (D.N.J. 1996). The duty to disclose expert identities and opinions set
out under Rule 26(a)(2) was implemented "to accelerate the exchange of basic
information," specifically to provide "opposing parties [with] a reasonable
opportunity to prepare for effective cross examination and perhaps arrange for
expert testimony from other witnesses." Fed.R.Civ.P. 26 advisory committee's
note (1993). The contours and demands of that duty must be understood "in a
manner to achieve those objectives." Id.
Id. at 1357-58; see also id. at 1358 (ultimately, an expert's report should provide the
opposing party with notice and an opportunity to prepare its case; a report consisting
primarily of legal conclusions does not suffice); Butler v. Goodyear Tire & Rubber Co.,
2014 WL 7272604 at * 3 (S.D. Ga. Dec. 18, 2014) ("The brazen approach here -ignoring the disclosure deadline, then offering up an empty-headed [expert witness]
at his deposition, then moving to 'continue' it -- is simply not acceptable.").
Finally, Rule 26(e)(2) requires that "[f]or an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to the
information included in the report and to the information given in the expert's
deposition. Any additions or changes to this information must be disclosed by the
time the party's pretrial disclosures under Rule 26(a)(3) are due." See also Rule
26(e)(1) (duty to timely correct or complete incorrect or incomplete disclosures).
Thus, the rules and case law require timely disclosure and timely supplementation;
trial by ambush is not permitted. Nor are reports that are blatantly untimely or rely
on supplementation to dodge a deadline.
5
45 at 4. He says he fully complied with defendants' Notice to Produce on
that deposition, and on August 24, 2015 -- the week before Kidd's
deposition -- the defendant's produced their accident reconstructionist's
(James Sloan's) report. Id. at 4-5. Hamlett provided that report to Kidd,
who thus was able to respond and be cross-examined about it in
defendants' lengthy deposition of him. Id. 6 "Just as Mr. Kidd, Sloan
produced his file at his deposition," and "Mr. Sloan thoroughly critiqued
Mr. Kidd's opinions during his deposition." Doc. 45 at 6.
Too, Hamlett reminds, defendants failed to object on untimeliness
grounds, even during Kidd's deposition. In fact, they waited until over a
month after Hamlet deposed Sloan (on September 28, 2015) to complain.
Doc. 45 at 5-6. Plaintiff represents that "[t]he parties appeared to be
working together to efficiently manage expert discovery without this
Court's involvement. It is only four months later that [d]efendants raise
any issue with Mr. Kidd's report." Id. at 6.
Hamlett makes some valid points. Some flexibility in the discovery
process is tolerable, depending on the circumstances. And some
6
Defendants also disclosed a police accident video to Hamlett, so he gave that to
Kidd, too. Kidd, in turn, produced diagrams and calculations that Hamlett disclosed
to the defendants. Doc. 45 at 5.
rol
objections can seem nit-pickish. Defendants, for that matter, concede
that they did not object to Kidd's report when they first received it. Doc.
61 at 1. But that's because, they explain, they had no objections to
Kidd's report at that time. They object now only to new opinions that
Kidd first presented in his deposition (filed at doc. 38-4).
So, they conclude, Kidd can testify that Swartz failed to yield while
turning left, turned into Hamlett's path, and -- on that basis only -- is the
sole cause of the collision. Doc. 61 at 1-2. But they object to and want to
exclude the new opinions that Kidd supplied at his deposition, including
testimony about Hamlett's ability to perceive and react to avoid the
accident. That, they insist, violates what Rule 26(a)(2)(B)(i) otherwise
requires: a "complete statement of all opinions the witness will express
and the basis and reasons for them. . . ." Id. (emphasis added); see also
Id. (expert reports must include "how" and "why" the expert reached a
particular result, not merely the expert's conclusory opinions).
The Court agrees. The defendant's showing (doc. 61 at 3-7, 8-11) is
unrebutted. Rule 26(a)(2) deters procrastination and sandbagging. 7
'
Other courts have barred conclusion-only reports like Kidd's outright, then
refused gap-filling via deposition. For example:
7
Hamlett did both. It is unacceptable to make a party wait, and thus be
surprised, at a deposition. Hamlett provides no satisfactory explanation
for missing the deadline here, and the defendants were prejudiced
because they were denied, prior to the deposition, the full opportunity to
digest Kidd's information and formulate their deposition questions based
on the same. To permit procrastinators to point to deposition questions
as proof of no prejudice is to neuter the rule and deny adversaries the full
benefit of pre-deposition, question-preparation time, if not the option to
Here, the Court finds that Davis's one-line ipse dixit conclusion that State
Farm's claims handling procedures violate the No—Fault Act, which is found in
her initial report (the only timely report filed by the Clinic Defendants),
woefully fails to satisfy Rule 26's requirements. Davis's report does nothing to
provide any link whatsoever between her conclusion and the pieces of evidence
and law that she purportedly reviewed. She simply ignored Rule
26(a)(2)(B)(i)'s requirement that she provide a "complete statement" of the
basis and reasons for her conclusions.
*
*
*
*
The Court also rejects the argument that the Clinic's failure to provide a Rule
26-compliant report is harmless in the face of State Farm's apparent ability to
depose her. The whole purpose of Rule 26's expert report requirement is to
alleviate a party's need to depose an expert witness prior to trial and "shorten
or decrease the need for expert depositions and thus to conserve resources."
[R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010)].
To find that the Clinic Defendants' clear failure to tender a proper expert
report is harmless solely because the expert could later be deposed would turn
the rule on its head and essentially render it a nullity. The Court does not find
that the Clinic Defendants' submission of Davis' report is harmless.
State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., 2014 WL 10294798 at * 3, 4
(E.D. Mich. June 16, 2014). Hence, "harmless error" assertions cannot salvage
unjustified supplementation. Id. at * 4.
8
obviate a deposition expense outright. See supra n. 7. Hence, Kidd will
not be permitted to testify on the distance traveled by either vehicle, the
time it took for both to impact, or Hamlett's ability to perceive and react
to Swartz's truck.' Defendants' exclusion motion is thus GRANTED.'
B. Scott's Testimony
To reiterate, Trooper Scott investigated the accident, ticketed
Swartz, and opined that Swartz is 100% at fault. Doc. 37-1 at 2, 4 (citing
doc. 37-2 at 45-46). Defendants move to exclude only some of his
8
Such testimony can figure into the very avoidance defenses that the defendants
have raised. See doc. 68 at 17; see also GA. LAW OF TORTS § 16:2 ("Last clear chance
as combating contributory negligence") (Dec. 2015); Booth v. Brewster, 318 Ga.App.
401, 402 (Ga. App. 2012); Laroche v. CSX Transportation, Inc., 2015 WL 5179011 at *
7 (S.D. Ga. Sept. 3, 2015) ("In Georgia, '[i]f the plaintiff by ordinary care could have
avoided the consequences to himself caused by the defendant's negligence, he is not
entitled to recover.' Ga. Code Ann. § 51-11-7.").
As has been explained:
"The district court has broad discretion in determining whether a violation is
justified or harmless." Catalina Rental Apts., Inc. v. Pacific Ins. Co., No. 0620532—CIV, 2007 WL 1050634, at *2 (S.D.Fla. Apr. 03, 2007). "[I]n exercising
its broad discretion to determine whether a [Rule 26 violation] is substantially
justified or harmless for purposes of a Rule 37(c)(1) exclusion analysis, a
district court should be guided by the following factors: (1) the surprise to the
party against whom the evidence would be offered; (2) the ability of that party
to cure the surprise; (3) the extent to which allowing the evidence would
disrupt the trial; (4) the importance of the evidence; and (5) the nondisciosing
party's explanation for its failure to disclose the evidence." Two Men and a
Truck Int'l, Inc. v. Res. & Commercial Trans. Co., No. 4:08—cv-067, 2008 WL
5235 115, at *2 (N.D. Fla. Oct. 20, 2008) (quoting S. States Rack & Fixture, Inc.
v. Sherwin—Williams Co., 318 F.3d 592, 597 (4th Cir. 2003)).
Abdulla, 898 F. Supp. 2d at 1359.
20
opinions -- those they insist fail the admissibility standard established by
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.
579 (1993).' ° Doe. 37-1 at 2. They "do not seek to exclude or limit
Scott's testimony regarding his accident scene observations,
investigation results, or other non-speculative, fact-based testimony.
However, [they] do seek to exclude certain testimony by Scott which is
unsupported by the evidence and his investigation and is basically a
guess or conjecture on Scott's part." Id. They illuminate the fact that:
10
Federal Rule of Evidence 702 assigns the trial court a gatekeeping role to "ensure
that any and all scientific testimony or evidence admitted is not only relevant, but
reliable." Daubert, 509 U.S. at 589 & 597; see also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999) ("Daubert's general holding -- setting forth the trial judge's
general 'gatekeeping' obligation -- applies not only to testimony based on 'scientific'
knowledge, but also to testimony based on 'technical' and 'other specialized'
knowledge.") (quoting Rule 702). As noted in Nicholson v. Pickett, 2016 WL 854370
at * 4 (M.D. Ala. Mar, 4, 2016), the "rigorous three-part inquiry" for assessing the
admissibility of expert testimony under Rule 702 asks whether:
(1) [T]he 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 determined by the sort of inquiry
mandated in Daubert; and (3) the testimony assists the trier of fact, through
the application of scientific, technical, or specialized expertise, to understand
the evidence or to determine a fact in issue.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quotes and cite
omitted). These are the "qualifications," "reliability," and "helpfulness" prongs. Id.
"The burden of establishing [the three prongs] rests on the proponent of the expert
opinion," id., and they must be shown by a preponderance of the evidence.
Nicholson, 2016 WL 854370 at * 4 (quote and cite omitted); see also United States v.
McGill, - F.3d -' 2016 WL 790413 at *46 (D.C. Cir. Mar. 1, 2016) ("The
proponent of the expert testimony bears the burden to establish the admissibility of
the testimony and the qualifications of the expert.").
10
"Scott speculates Plaintiff was not travelling at or near the speed
limit of 45 miles per hour." Id. at 4 (emphasis added).
"Scott has no knowledge of Plaintiffs ability to perceive and react
to Swartz's tractor trailer." Id. at 5.
"Scott blindly assumes Plaintiff attempted to avoid Swartz's
tractor." Id. at 6.
Hence, they want to prevent Scott from testifying about
Hamlett's alleged speed at impact plus his inability to perceive and
react to Swartz's tractor trailer at any time before impact. They also
want to block his testimony consisting of, and in support of, the
following conclusions:
1. Plaintiff did not cause or contribute to this accident;
2. Plaintiff was a 100% victim, thus Swartz was 100% at fault for
the accident;
3. Plaintiff attempted to avoid Swartz's tractor before the accident
occurred.
Doc. 37-1 at 7 (renumbered).
From Daubert-applying cases like Kumho, Roper v. Kawasaki
Heavy Industries, Ltd., 2016 WL 1085489 at * 2 (11th Cir. Mar. 21,
2016), Green Party of Ga. v. Kemp, 2016 WL 1057022 at * 4 n. 8 (N.D.
Ga. Mar. 17, 2016), Emery v. Talladega College, 2016 WL 880038 at * 2
(N.D. Ala. Mar. 8, 2016), and Rudd v. Gen. Motors Corp., 127 F. Supp. 2d
11
1330 7 1342 (11th Cir. 2001) (recognizing that the expert's ability to settle
on a cause "through a process of eliminating alternative possible causes
is, by a preponderance of the evidence, a reliable one"), useful "Daubert
questions" can be distilled to evaluate contemplated expert testimony:
1.
Is the opinion based on concrete data or testing?
2. Are the conclusions logically supported by the facts of the case?
3. Did the expert rely on testimony which itself was unreliable?
4. If he has posited an experience-based opinion, as opposed to a
purely scientific opinion," is it based on the same level of
intellectual rigor that characterizes the practice of an expert in the
relevant field?
5. Did the expert fail to explain how his experience led him to the
conclusions he reached?
6. Does his testimony rest on too great an analytical gap between
the data and the opinion proffered?
" See Am. Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1338 (11th
Cir. 2009) ("Standards of scientific reliability, such as testability and peer review, do
not apply to all forms of expert testimony," and a court has discretion to deem expert
testimony reliable based upon personal knowledge or experience); Clay v. Ford Motor,
Co., 215 F.3d 663, 668-69 (6th Cir. 2000) (reliance on depositions, reports,
statements, and photographs is a reliable and accepted methodology under Daubert);
Reid v. BMW of N. Am., 430 F. Supp. 2d 1365, 1370 (N.D. Ga. 2006) (reminding that
if an expert's testimony based on his own personal experiences and analysis of the
evidence are deemed reliable, any attacks against such testimony go toward the
weight of the testimony and not its admissibility), cited in Nicholson, 2016 WL
854370 at * 11; Green v. Five Star Mfg., Inc., 2016 WL 1243757 at * 6 (N.D. Ala.,
Mar. 30, 2016) ("it is not the role of the district court to make ultimate conclusions as
to the persuasiveness of the proffered evidence, but to see if how an expert got to
where he ended up makes reasoned, scientific sense") (quotes, cites and alterations
omitted).
12
7. Does his testimony help the trier of fact by offering something
more than a lawyer's closing argument?
8. Have other courts considered his testimony and found him to be
a reliable witness?
Finally, even if expert testimony does not meet all or most of the
Daubert factors, it "may sometimes be admissible." United States v.
Brown, 415 F.3d 1257, 1268 (11th Cir. 2005). Some flexibility is applied
in reliability determinations, United States v. Frazier, 387 F.3d 1244,
1262 (11th Cir. 2004), and it is "not the role of the district court to make
ultimate conclusions as to the persuasiveness of the proffered evidence."
Haynes v. Lawrence Transp. Co., 2015 WL 5601942 at * 2 (N.D. Ga. Mar.
24 ) 2015) (quotes and cite omitted). Hence, "[tithe rules relating to
Daubert issues are not precisely calibrated and must be applied in casespecific evidentiary circumstances that often defy generalization."
Brown, 415 F.3d at 1266. But inferences spiced with educated guesses
wrapped in speculation will not suffice.
Swinney v. Schneider Nat'l
Carriers, Inc., 829 F. Supp. 2d 1358, 1363 (N.D. Ga. 2011).
Citing Scott's "extensive training and experience in accident
investigations," doc. 46 at 3, Hamlett notes that Scott arrived on the
accident scene shortly after the accident, walked it, examined and
13
photographed the physical evidence and interviewed witnesses. Id. at 4.
Hamlett emphasizes that defendants' expert, Sloan, agrees with Scott's
decision to cite Swartz for failing to yield. Id. They also agree that speed
is not a contributing factor for either driver.
Id. at 4-5. Indeed, says
Hamlett, defendants' motion is "much ado about nothing" because
"[t]here is only one material difference between Sloan's and Trooper
Scott's conclusions." Id. at 5. Scott, says plaintiff, opines that:
Hamlett should have identified Defendants' tractor-trailer as a
hazard only after Swartz wrongfully entered Hamlett's lane of
travel. At that point, it was too late for Hamlett to do anything to
avoid the collision, even with an evasive maneuver. Sloan, the
expert hired by Defendants, disagrees with that opinion, and only
that opinion -- opining Hamlett should have identified the tractortrailer as a hazard considerably sooner.
Doc. 46 at 5.
Scott's deposition supports the defendants here. He testified that
he has been a Georgia State Patrol trooper since 2011, doc. 37-2 at 8, and
has since been "a lead investigator on hundreds of accidents," id. at 1112, though that quantification must be temporized (he was deposed on
March 25, 2015, doc. 37-2 at 1, and the accident he investigated here
occurred on June 17, 2013 ) id. at 23, so he had only about two years'
experience when he analyzed the instant accident). Scott completes his
14
accident reports, as he did in this case, id. at 86-89, within three days of
his investigation. Id. at 12. As part of his investigation, he assesses the
factors that contribute to a collision. Id. at 13.
Scott was just "five or six miles away" when the instant collision
occurred on June 17, 2014. Doc. 37-2 at 15. Once he got to the accident
scene, he "observed the vehicle damage, the traffic, the roadway, and
began talking to [local] police officers." Id. at 19. He then applied his
"standard investigation techniques," which consisted of interviewing
witnesses and examining the physical and roadway evidence.
Id. at 21-
22. Hamlett, he concluded, is 100% blameless, and Swartz 100%
blameworthy for the accident. Id. at 26, 45-46.
But Scott also conceded that there were no skid marks from either
vehicle, doc. 37-2 at 47, 61-62, and he could only speculate whether there
were any tall trucks to obstruct Hamlett's ability to see Swartz's truck
just before the collision.
Id. at 58-59. Nor did he know: if Hamlett
applied his motorcycle's brakes prior to impact, id. at 62, how far
Hamlett was from the truck's front when it entered into Hamlett's
traffic lane, Id. at 62-63, the weight of Swartz's tractor/trailer, how fast it
was going at the time of impact, or how long it takes to stop a
15
tractor/trailer at any speed. Id. at 48. Scott also did not know what he
could have measured that day, but did not -- the actual tractor/trailer's
height (vital to the issue whether Hamlett should have seen it). Id. at 49.
He could cite only the maximum amount permitted by regulations. Id.
These points figure into Scott's concession that he could only
speculate that Hamlett would have seen Swartz "[i]f they were all
passenger cars" in his line of view. Doc. 37-2 at 49. He also admitted
that he lacked knowledge whether Swartz had started to cross the road
from a stop, id. at 50, or, in light of his estimate that Hamlett had been
traveling at 45 mph, what his stopping distance was. Id. In fact, Scott
had no training in perception/reaction times, much less specific training
in motorcycle accidents. Id. He also conceded this:
Q. Do you know -- have any estimate how long it would have taken
the tractor/trailer once it started to make the left turn to travel to
the point of impact that you've noted of four feet north of the
eastbound fog line?
A. No estimate of time. I mean -Q. And based on that do you have any estimate of how far away
Mr. Hamlett was when the tractor/trailer began the left-hand turn?
A. No, sir, no estimate at all.
Q. You would agree with me that all motorists under Georgia law
are required to keep a lookout for potential hazards?
Wfi-
I,
A. Yes.
Id. at 51. And this:
Q. Do you know how much time Mr. Hamlett had to
perceive and react to the tractor/trailer once it started
making the left turn?
A. I do not.
Q. Do you think that's important to know in determining
whether or not Mr. Hamlett should have taken evasive
action?
A. I mean, it has no -- that would be hard to say. I mean,
it's different in every crash or collision. That driver is not
expecting something to be in its path....
Id. at 54-55 (objection omitted).
The Court agrees with the defendants, who don't question Scott's
experience to investigate the accident, only his "training or experience to
provide opinions about whether Hamlett had sufficient time to perceive
or react." Doe. 60 at 10. Scott's own deposition testimony shows that
he "lacks training or experience in calculating speed" or performing time
12
He did measure the motorcycle's "final resting place to the tractor/trailer": 17
feet. Doc. 37-2 at 40. His "momentum analysis" informed him that Hamlett "could
not have been traveling at a high rate of speed, more than likely at the speed limit or
less." Id. But because there were no skid marks "I don't have a particular speed" for
Hamlett's motorcycle at that moment, "but probably he was going at the speed limit
or less." Id. at 41 (emphasis added). This testimony immediately followed:
17
and distance calculations and did not even attempt any such
calculations."
Id. (footnoted added). As can be seen from his
"momentum" analysis, he failed to fill-in-the-blank on how he could
determine Hamlett's pre-impact speed merely by the post-impact, 17-foot
distance between the two vehicles (e.g., if any part of motorcycle's
"momentum travel" was affected by whether its handle, kickstand or
muffler, if not Hamlett itself dragged along the ground with it). Nor did
he offer any reliable methodology to support the conclusion that plaintiff
lacked sufficient time to perceive, react, and avoid the collision.
Id.
Scott mentioned no engineering principles or calculations, much less how
he utilized them to support his conclusions. Id. As Scott himself said:
It's just -- it's a lot of stuff to try and picture all at once time and
decide, hey, you're at fault or you're not at fault and you all have to
do that within a few minutes. You know, you don't have -- you
can't stand at an accident scene all day. You got to -- you got to sit
there, hurry up, work, get your statements from everybody that
was there, your statements from the drivers, you look at your
Q. When you say -- you got calculations to come up with precise speed?
A. They are but I have not been trained on that. That gets into crush factor of
your vehicle.
Q. But you have been trained on momentum?
A. That's correct.
Id.
18
damage, you look at the vehicles, and you look at the roadway
evidence and you try and put it all together.
Doc. 37-2 at 23.
The foregoing deposition testimony thus answers -- in the negative
-- most all of the above-noted "Daubert Questions." Hence, Scott's
testimony in support of the above-noted conclusions rests on too great an
analytical gap between the data and the opinion offered. Also, he has
failed to explain how his experience fills in that gap. Cf. Umana-Fowler
v. NCL (Bahamas) Ltd., 49 F. Supp. 3d 1120, 1122 (S.D. Fla. 2014) (a
court "cannot admit an expert who simply states that he used the
'scientific method' to reach his conclusions; more is required."). Nor
have other courts found such testimony reliable (Hamlett has cited
none). And his testimony on these points is not offering the jury any
more than a lawyer's closing argument. Finally, all of Hamlett's cases
and cites are distinguishable (e.g., Fed. R. Evid. 803(8) applies only to
public records; Scott's deposition opinions are found in none, see doc. 372 at 86-89).
The above-highlighted testimony is therefore excluded.
See Hughes
v. Kia Motors Corp., 766 F.3d 1317, 1330 (11th Cir. 2014) (medical
causation expert's testimony excluded as unreliable, in product liability
19
case alleging that failure of manufacturer to equip vehicle with fuel shutoff switch led to drivers death from traumatic brain injury; expert failed
to explain how his experience and relevant literature supported his
opinion, only vaguely described his methodology, and was unable to
express opinion about how multiple collisions with parked vehicles and
house subsequent to initial collision with truck would have affected
driver); Swinney 829 F. Supp. 2d at 1363 (engineer's opinions regarding
vehicle accident in which husband died were unreliable, and, therefore,
not admissible in wife's negligence action against truck driver and
driver's employer; opinions were based on unspecified "actual testing"
and review of scene photographs, films, and deposition, but provided
nothing more than a summary of what he presumed to have happened);
see also id. ("[P]laintiff suggests that [her expert's] general experience in
the field of accident reconstruction renders his opinion reliable.
However, plaintiff does not explain why [his] experience is a sufficient
basis for his opinion, or how his experience has been reliably applied to
the facts of this particular case."). Scott therefore is barred from opining
on whether Hamlett was a cause of the accident; the percentage of
Swartz's fault; whether Hamlett could or should have avoided Swartz's
20
tractor trailer, and Hamlett's alleged speed at impact.
13
IT. CONCLUSION
The Court GRANTS defendants' exclusion motions. Does. 37 &
38.
SO ORDERED, this
6lay
of April, 2016.
UI.M'ED TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
13
Defendants also argue that Hamlett violated Rule 26(a)(2)(C)(ii), which required
him to provide "a summary of the facts and opinions to which the witness [one who
otherwise independently provides no written report] is expected to testify." Swinney,
829 F. Supp. 2d at 1363; see also Curbow v. Nylon Net Co., Inc., 2008 WL 4186919 at
*5 (W.D. Mo. Sept. 5, 2008) (excluding, under Rule 26(a)(2)(C)(ii), the untimely
disclosure of additional testing by expert, deemed "neither substantially justified nor
harmless," and noting "that a continuance for further discovery would unduly
postpone the trial date.") (citing Wegener v. Johnson, 527 F.3d 687, 691 (8th Cir.
2008). "The district court may exclude the information or testimony as a selfexecuting sanction unless the party's failure to comply is substantially justified or
harmless.")). Hamlett shows that he disclosed him, including an arguably deficient
summary of his expected testimony, in March 2015, then again in July, 2015
(incorporating his deposition testimony). See doe. 46 at 15-16 (citing doe. 46-2 at 4;
doe. 46-3 at 3). In light of the above result, it is not necessary to resolve this issue.
21
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