Smith v. Old Dominion Freight Line, Inc et al
Filing
107
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 12/21/2016. For the reasons set forth, Plaintiff's 52 Motion to Exclude and/or limit the opinions of Defendants' rebuttal experts is DENIED. cc: Counsel(RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-560-CRS
AMY C. SMITH,
Plaintiff,
v.
OLD DOMINION FREIGHT LINE, INC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s motion to exclude or limit the opinions of
two of Defendants’ rebuttal experts, William Smock and Lane VanIngen (DN 52). Defendants
filed a response in opposition (DN 59) and Plaintiff filed a reply (DN 66). The motion is now
ripe for review. For the following reasons, Plaintiffs’ motion is denied.
BACKGROUND
Plaintiff asks the Court, pursuant to Rules 26(a)(2)(D)(ii) and 37(c)(1) of the Federal
Rules of Civil Procedure, to exclude and/or limit the opinions of two rebuttal experts proffered
by Defendants. Pursuant to a series of amended scheduling orders, the following deadlines
applied to the parties’ disclosures of expert opinions: (1) Plaintiff’s expert witness deadline -May 18, 2016; (2) Defendants’ expert witness deadline -- June 20, 2016; and (3) both parties’
rebuttal expert witness deadline -- July 13, 2016. (DN 29, 34.) The parties appear to agree that
Plaintiff served on Defendants four expert reports1 on May 18, 2016, and that Defendants
1
The expert reports were as follows, as described by Plaintiff: (1) David Stopper (forensic reconstruction
and investigations, traffic safety, commercial motor vehicle operations and motor carrier safety regulations); (2)
Sara Ford, MRC/Linda Jones, MRC, MBA, MPA, CRC (vocational and economic assessment, wage loss/loss of
earnings); (3) Nancy Grugle, Ph.D. (human factors analysis); and (4) Donald Marks, M.D., Ph.D. (internal medicine,
medication adverse effects, driver health impacts). (DN 52 at 2.)
disclosed two expert witnesses2 who jointly submitted one report on June 20, 2016. Then, on
July 13, 2016, Plaintiff disclosed two rebuttal expert reports, authored by David Stopper and
Nancy Grugle, two of the individuals who she identified in her initial expert disclosure. On the
same date, Defendant identified five new individuals as rebuttal experts.3 Plaintiff now contends
that two of the purported rebuttal experts disclosed by Defendants, William Smock and Lane
VanIngen, were in reality new expert witnesses offering new opinions, rather than opinions
designed to rebut the expert reports proffered by Plaintiff. Defendants disagree, arguing that
their rebuttal experts intended to -- and did -- rebut the expert opinions proffered by Plaintiff.
DISCUSSION
Rule 26(a)(2) of the Federal Rules of Civil Procedure sets forth certain parameters
applicable to expert testimony. Absent a stipulation or court order to the contrary, disclosures of
“evidence [] intended solely to contradict or rebut evidence on the same subject matter identified
by another party under Rule 26(a)(2)(B) or (C)[ must be made] within 30 days of the other
party’s disclosure.” Fed. R. Civ. P. 26(a)(2)(D)(ii). In this case, it is undisputed that Defendants
served Smock and VanIngen’s reports in compliance with the Court’s July 13, 2016 deadline for
disclosure of rebuttal experts. The question before the Court is whether Smock and VanIngen’s
reports were within the permissible scope of rebuttal experts provided in the Rule -- that is,
whether they were “intended solely to contradict or rebut evidence on the same subject matter”
identified by one or more expert witnesses disclosed by Plaintiff. Fed. R. Civ. P. 26(a)(2)(D)(ii).
2
Robert Bortolin, B.A.Sc., P. Eng., and James Hrycay, M.A.Sc., P. Eng., both of whose reporting areas
Defendants described as “engineering investigation and analysis of the motor vehicle accident.” (DN 52 at 2.)
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(1) William Smock, M.S., M.D. (medical issues and driver medical examinations); (2) Lane VanIngen
(FMCSR/FMCSA regulations and driver safety); (3) Alison Smiley, Ph.D., CCPE (human factors analysis); (4)
Howard Caston, Ph.D. (loss of earnings capacity/vocational expert); and (5) Frank Slesnick, Ph.D. (calculation of
lost earnings). (DN 52 at 3.)
2
The parties state in their briefs that there is little case law from our district applying Rule
26(a)(2)(D)(ii). This is true; however, after completion of the parties’ briefing on the instant
motion, Magistrate Judge Dave Whalin issued a memorandum opinion and order addressing a
number of motions in limine, including arguments regarding rebuttal experts.
Magistrate Judge
Whalin’s opinion is instructive with respect to both the permissible scope of rebuttal expert
opinions and the analytical approach to questions involving Rule 26(a)(2)(D)(ii). See Louisville
Mktg. v. Jewelry Candles, LLC, 2016 U.S. Dist. LEXIS 153328, *26-34 (W.D. Ky. Nov. 4,
2016). In the Jewelry Candles case, Magistrate Judge Whalin considered whether a defense
expert’s second report was properly considered an initial report or a rebuttal report. The plaintiff
argued that the report in question was should be classified as an initial report and that it should
have an opportunity to rebut the opinion. The court examined the contents of the defense
expert’s report, as compared to the reports of three of plaintiff’s experts to whom he purported to
respond. Id. at *29. The court concluded that the defense expert’s report “addresse[d] the same
subject matter as [the plaintiff’s experts] -- namely, whether ‘jewelry in candles’ and ‘jewelry
candles’ are generic terms,” and that his report “provide[d] a counterpoint for [plaintiff’s] expert
reports indicating the terms and logos were generic.” Id. at *31. The court went on to state that
the defense expert’s report exceeded the scope of “simply responding” to the plaintiff’s experts,
but it concluded that “any matters regarding the potentially excessive scope of his rebuttal
testimony can be challenged through objections and rigorous cross-examination.” Id. at *31-32;
see id. at *32 (further finding that report identified three flaws in a third plaintiff’s expert’s
report and refuted those points).
Looking beyond the Sixth Circuit, the Northern District of Illinois provided a helpful,
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albeit non-binding, discussion of the issue in Green v. Kubota Tractor Corporation, 2012 U.S.
Dist. LEXIS 56770 (N.D. Ill. Apr. 24, 2012). In Green, the defendant argued that a rebuttal
expert identified by plaintiffs did not actually rebut defendant’s experts, but rather, “merely
covered the same subjects as plaintiffs’ originally disclosed experts,” and therefore, his opinions
should have been disclosed at the time of plaintiffs’ original expert opinions. Id. at *8-9. The
court first described the opinions set forth in the purported rebuttal report and then examined it in
light of the opinions offered by defendant’s experts. The court found that the rebuttal expert’s
opinions were “specifically targeted at the expert evidence proffered by the defendants and . . .
either contradict[ed] or rebut[ted] that evidence.” Id. at *13 (laying out differing opinions among
the parties’ experts regarding a certain type of technology used in lawn mowers).
Further, the Green court acknowledged that the rebuttal expert opinions “touch[ed] upon
subjects previously addressed by” certain of plaintiffs’ initially disclosed experts, but stated that
“the mere fact that opinions offered in a rebuttal report touch upon the same subjects covered in
an initial expert report [by the same party] does not require that the rebuttal reports be stricken.”
Id. at *13 (discussing City of Gary v. Paul Shafer, 2009 U.S. Dist. LEXIS 41004 (N.D. Ind. May
13, 2009)). The court went on to decline to adopt a rule that would exclude a rebuttal opinion
that could have been offered as part of the party’s initial expert disclosures, as that “would open
the doors to ‘vast amounts of arguably irrelevant material in an expert’s report on the off chance
that failing to include any information in anticipation of a particular criticism would forever bar
the expert from later introducing relevant material.’” Id. at *17-18 (quoting Shafer, 2009 U.S.
Dist. LEXIS 41004 at *5).
Following the approaches employed in the cases discussed above, the Court will examine
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Smock’s and VanIngen’s purported rebuttal expert reports at issue in light of the Plaintiff expert
reports that they purport to rebut: those of Marks and Stopper, respectively. While the motion,
response, and reply all discuss the extent to which Smock and VanIngen rebut the expert reports
of Marks and Stopper, respectively, the parties have not filed Marks and Stopper’s reports as
exhibits to their briefs. Fortunately, the two reports have been filed elsewhere in the record, so
they are available for the Court’s review. (See DN 96-8 (Stopper’s expert report, exhibit to
Plaintiff’s response to DN 72); DN 98-5 (Marks’s expert report, exhibit to Plaintiff’s response to
DN 73).)
A. William Smock, M.S., M.D.
In his report, Smock sets forth an itemized list of the documents that he reviewed, and
states that the “purpose of [his] review was to examine the medical issues and facts in order to
develop opinions in this case.” (DN 52-2 at 1-2.) As Plaintiff emphasizes, Smock makes only
one direct reference to Marks, whose opinion Defendants argue Smock intends to rebut. Smock
states as follows:
I have reviewed the report of Dr. Marks and the information
related to [Defendant Danny] Webb’s medications and medical
conditions. I strongly disagree with many of his opinions and
speculative conclusions, as there is no foundation based upon the
medical or forensic evidence in this case.
(Id. at 3.) However, the frequency with which Smock mentions Marks’s name, or whether he
structures his opinion in the same way as Marks’s opinion, is not determinative of whether
Smock’s opinion is deemed a rebuttal opinion for purposes of Rule 26. The question before the
Court is whether Smock’s opinion is “intended solely to contradict or rebut evidence on the same
subject matter identified by” Marks. Fed. R. Civ. P. 26(a)(2)(D)(ii) (emphasis added).
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Returning to Smock’s report, after providing a narrative analysis, he offered five opinions
regarding Webb’s medical condition at the time of the motor vehicle accident underlying this
case.
1. There is no medical or forensic evidence any of Mr. Webb’s
medical conditions played a role in or contributed to the
incident on March 7th, 2015.
2. There is no medical or forensic evidence any of Mr. Webb’s
prescribed medications played a role in or contributed to the
incident on March 7th, 2015.
3. There is forensic evidence Mr. Danny Webb was awake, alert
and initiated evasive maneuvers, including steering inputs,
reducing throttle input and the application of brakes, prior to
the collision on I-71.
4. There is no medical evidence Mr. Danny Webb suffered from
sleep apnea or that sleep apnea played any role in or
contributed to the incident on March 7th, 2015.
5. There is no medical or forensic evidence, which indicates Mr.
Danny Webb was physically or medically impaired on March
7th, 2015.
(DN 52-2 at 3-4.)
In comparison, after setting forth a narrative analysis of Webb’s medical records in light
of the motor vehicle accident, Marks provided the following conclusions:
1. Due to numerous existing medical conditions, Danny Webb
was not fit to operate a commercial motor vehicle, such as the
Old Dominion Freight Line tandem-trailer semi-truck that he
was driving on March 7, 2015;
2. Danny Webb failed or refused to be completely forthcoming
with and/or disclose in entirety all medical conditions known to
him and existing to him at the time that he was interviewed by
the medical examiner on January 12, 2015;
3. Danny Webb failed or refused to comply with and follow
medical advice and instructions by his treating physicians
regarding apneic episodes, sleep apnea, and the advice to
receive treatment in a sleep clinic and/or sleep study, which he
was known to exhibit prior to the fatal accident;
4. Danny Webb was consuming a significant number and amount
of prescription medications which in combination probably
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adversely affected his driving abilities and contributed to the
fatal accident;
5. Danny Webb’s existing medical conditions and failures or
refusals to timely and appropriately address those medical
conditions prior to the collision rendered him unfit to operate
a[] commercial motor vehicle at the time of the collision; and
6. Danny Webb’s physically debilitated condition rendered him a
danger to both himself and other drivers and passengers
traveling on the roadway on March 7, 2015, when the fatal
accident in question occurred.
(DN 98-5 at 8.)
Having carefully examined Smock’s report and Marks’s report, and particularly the
conclusions that each draws, the Court finds that Smock’s report addresses the same subject
matter as Marks’s report. Specifically, Smock disagrees with Marks’s conclusions regarding
whether Webb’s medical conditions, including possible sleep apnea, and/or use of prescription
medications, caused him to be impaired or unfit to operate the tractor-trailer, generally and on
the night of the fatal accident. While Smock does not expressly analyze the medical records in
reference to Marks’s analysis, with the exception of his statement of “strong disagree[ment] with
Marks” (DN 52-2 at 3), the Court finds that this does not preclude a conclusion that Smock’s
report is a proper rebuttal pursuant to Rule 26(a)(2)(D)(ii). It is clear to the Court that Smock
addressed the same “subject matter” as Marks and that his analysis did not veer unnecessarily
beyond the scope of Marks’s report. If anything, it appears to the Court that Marks’s report, not
Smock’s, is the broader one with respect to scope of analysis. Smock’s report addresses some,
but not all, of the areas of analysis in Marks’s report. For example, Marks discussed Webb’s
“advanced age” and its possible impact on his driving (see DN 98-5 at 6); Smock did not
expressly discuss Webb’s age. Based on the foregoing, Plaintiff’s motion is denied insofar as it
seeks exclusion or limitation of Smock’s report.
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B. Lane VanIngen
VanIngen offered six “conclusions” in her report to Defendants. These conclusions are
set forth below.
1. Old Dominion and Webb were subject to the Federal Motor
Carrier Safety Regulations (“FMCSR”) on March 27 [sic],
2015, the date of the subject accident.
2. Old Dominion has demonstrated safety management controls
that meet the prescribed FMCSA Safety Fitness Standard
outlined in 49 CFR Part 385.
3. Old Dominion has historically operated at a level of highway
safety significantly higher than that of the U.S. motor carrier
population as a whole.
4. Webb was fully qualified to operate a CMV on the date of the
accident that is the basis for this case.
5. The evidence in this case indicates that Webb was not talking
on his cell phone on the day of the subject accident in a way
that violated FMCSR provisions.
6. The report issued by Stopper dated May 16, 2016 contains
positions and compliance determinations that are inconsistent
and inaccurate when compared to the applicable safety
regulations.
(DN 52-5 at 5-10.) Plaintiff contends that with the exception of the sixth and final conclusion,
VanIngen’s conclusions do not rebut Stopper’s expert report, and therefore, VanIngen’s report
should be excluded.
Unlike the other three experts discussed herein, Stopper did not close his report with
enumerated conclusions. Rather, he provided a lengthy analysis (over 40 pages long) of the fatal
accident and closed with a summary of his opinions. While the structural differences between an
enumerated list of conclusions and a narrative summary make for an imperfect comparison, both
show the expert’s conclusions in his or her own words. Stopper’s summary is excerpted below:
Drivers of CMVs are considered to be operating in their capacity
as professional drivers and are held to a higher standard of care
than other motorists pursuant to interpretations by the U.S.
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Department of Transportation.
The Federal Highway
Administration, Office of Motor Carrier Standards, published
language in this regard[] pursuant to the February 8, 1991
Interpretations of 49 CFR Part 383:
“Because of the greater potential for loss of life,
serious injury, and significant property damage in
accident involving CMV’s, the FHWA’s
regulations (in 49 CR Part 383) hold drivers of
these vehicles to a higher standard of conduct
than other highway users.”
Mr. Webb testified that he observed brake lights and the vehicle
stopped in the lane ahead as he crossed the hillcrest. That distance
is found to be approximately ¼ mile (1300-1400 feet) from the
point of impact. Although the evidence indicates Mr. Webb made
some brake application as he approached the stopped vehicles he
had more than adequate time and distance to bring his vehicle to a
full and complete stop well before impact. Scene photographs
show the approach to the collision site was free of snow and ice
and the surface appeared to be dry. Friction tests performed by the
Oldham County Investigators indicated a good surface friction
level and made no note of icy conditions, which would have
prevented Mr. Webb from bringing his vehicle to a stop before
impact.
Mr. Webb’s failure to apply the most basic required knowledge
and skill as instructed in the Commercial Driver’s License manual
as demonstrated by his failure to “See” and properly respond to
other vehicles on the roadway that were a conflict, his failure to
manage space around his vehicle and his failure to reduce his
speed and respond to slowing traffic indicates a significant
distracted driver and callous indifference to this higher standard
and to the safety of other motorists with whom he shares the road.
A preventable accident is defined pursuant to 49 CFR §385.3 as:
Preventable accident on the part of a motor carrier
means an accident (1) that involved a commercial
motor vehicle, and (2) that could have been
averted but for an act, or failure to act, by the
motor carrier or the driver.
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The motor carrier was responsible for ensuring the safe operation
of its driver and the equipment operating under its authority. This
included providing driver training and reinforcing the required
skills and knowledge that would include the critical problems
related to distracted driving especially with the use of cellular
phones. While Mr. Webb described utilizing a hands-free cell
phone device, which is permitted under the Federal Motor Carrier
Safety Regulations, the motor carrier must ensure its drivers
understand the potential dangers involved with distracted driving.
I found no indications Carl A. Winner, Jr., or his Jaro
Transportation Services, Inc. truck tractor semi-trailer, contributed
to this fatal collision. Mr. Winner was at a full stop, when Mr.
Webb, operating his Old Dominion truck tractor, semi-trailer &
full trailer, collided with the stopped Subaru operated by Mr.
Smith.
(DN 98-2 at 43-44 (emphasis in original).)
Again, having reviewed each expert’s report and considered the parties’ arguments, the
Court finds that VanIngen’s report is within the bounds of a rebuttal expert opinion pursuant to
Rule 26(a)(2)(D)(ii). The Court disagrees with Plaintiff’s statement that VanIngen’s report is “in
actuality, overwhelmingly [an] initial expert report[]” which Defendants seek to use in order “to
backdoor initial expert testimony [and] opinions” after their initial expert deadline passed. (DN
52 at 8.) Plaintiff attempts to hold Defendants to a nearly impossible task -- to respond precisely
to the opinions expressed by Plaintiff’s experts and to stop short of providing any additional
information. It should be obvious that if one of Defendants’ experts disagrees with the opinions
set forth by one of Plaintiff’s experts, then he or she will preface the rebuttal report with
background information and subsequently provide analysis and conclusions that differ from
those proffered by Plaintiff’s expert. This is appropriate in light of Rule 26, so long as the
rebuttal expert’s opinion is confined to the same “subject matter” as the opposing expert. Rule
26(a)(2)(D)(ii). Looking to Stopper and VanIngen’s reports, both focus on the federal highway
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safety regulations, their application to Old Dominion and Webb, and Old Dominion and Webb’s
compliance or noncompliance therewith.
The sole aspect of VanIngen’s list of conclusions with which the Court takes issue is her
statement regarding Old Dominion’s historical record of “operat[ing] at a level of highway safety
significantly higher than that of the U.S. motor carrier population as a whole.” (DN 52-5 at 6.)
This goes beyond the scope of Stopper’s commentary on Old Dominion, which the Court
interprets as being confined to the crash underlying this action. With that said, the conclusion is
still closely related to the subject matter of Stopper’s report, and, as Magistrate Judge Whalin
reasoned in Jewelry Candles, “any matters regarding the potentially excessive scope of
[VanIngen’s] rebuttal testimony can be challenged through objections and rigorous crossexamination.” Jewelry Candles, 2016 U.S. Dist. LEXIS 153328 at *31-32.
Based on the foregoing, the Court concludes that Plaintiff’s motion is denied as it relates
to VanIngen’s rebuttal opinion.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to exclude and/or limit
the opinions of Defendants’ rebuttal experts (DN 52) is DENIED.
December 21, 2016
Colin Lindsay, MagistrateJudge
United States District Court
cc: Counsel of record
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