Cameron v. Werner Enterprises, Inc. et al
Filing
167
ORDER granting in part and denying in part Defendants Werner Enterprises, Inc. and Terry J. Guillory's 121 Motion to Exclude Gamel; granting in part and denying in part 123 Motion to Exclude Bloomberg. Signed by District Judge Keith Starrett on July 21, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ANGELA CAMERON, AS THE
ADMINISTRATRIX OF THE ESTATE OF
ANTHONY CAMERON, DECEASED, FOR
AND ON BEHALF OF HERSELF, AND ON
BEHALF OF ALL OTHER PARTIES
ENTITLED TO RECOVER FOR THE
WRONGFUL DEATH OF ANTHONY
CAMERON
V.
PLAINTIFFS
CIVIL ACTION NO. 2:13cv243-KS-JCG
WERNER ENTERPRISES, INC., A FOREIGN
CORPORATION, AND TERRY J. GUILLORY,
AN INDIVIDUAL
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion to Exclude or Limit Expert
Testimony of Emmett E. “Buddy” Gamel, III (“Motion to Exclude Gamel”) [121] and
Motion to Exclude or Limit Expert Testimony of Chris Bloomberg (“Motion to Exclude
Bloomberg”) [123] of the Defendants Werner Enterprises, Inc. (“Werner”) and Terry J.
Guillory (“Guillory”). Having considered the submissions of the parties, the record, and
the applicable law, the Court finds that both motions should be granted in part and
denied in part.
I. BACKGROUND
This wrongful death action arises out of a commercial vehicle accident that
occurred on December 3, 2012, in Perry County, Mississippi. The Uniform Crash
Report [116-1] indicates that the accident occurred at approximately 4:00 a.m. in heavy
fog. The decedent, Anthony Cameron (“Cameron”), was the driver of one of the
vehicles involved in the accident. Guillory was the driver of the other vehicle. Cameron
was driving his tractor-trailer east on U.S. Highway 98, when it collided with Guillory’s
tractor-trailer. Guillory was attempting to cross the eastbound lanes of the highway in
order to turn left onto the westbound lanes at the time of the collision. Cameron was
killed in the accident. Guillory was acting within the course and scope of his
employment with Werner at the time of the incident.
On November 1, 2013, Angela Cameron (as the Administratrix of the Estate of
Anthony Cameron, on behalf of herself, and on behalf of all other parties entitled to
recover for the wrongful death of Anthony Cameron) filed suit against Werner and
Guillory in this Court. (See Compl. [1].) Angela Cameron was Anthony Cameron’s wife
at the time of his death. The Complaint asserts allegations of negligence and gross
negligence, and requests compensatory damages, punitive damages, interest,
attorney’s fees, and costs. Subject matter jurisdiction is asserted on the basis of
diversity of citizenship pursuant to Title 28 U.S.C. § 1332.
On May 1, 2014, Plaintiff served her Disclosure of Expert Witnesses [121-1].
Among other witnesses, Plaintiff identified Chris Bloomberg, P.E. (“Bloomberg”) and
Emmett E. Gamel, III (“Gamel”) as experts she may call to testify at the trial of this
cause. Guillory and Werner (“Defendants”) seek the exclusion of these witnesses’
opinions pursuant to the subject motions.
II. DISCUSSION
A.
Standard of Review
Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
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(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. A trial judge has a “gatekeeping obligation” under Rule 702 to
ensure that all expert testimony is both reliable and relevant. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993)). Rule 702’s “relevance prong requires the proponent to demonstrate
that the expert’s ‘reasoning or methodology can be properly applied to the facts in
issue.’” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quoting Curtis v.
M&S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)). In order to be reliable under
Rule 702, the expert opinion must Abe grounded in the methods and procedures of
science and . . . be more than unsupported speculation or subjective belief.@ Id.
(citations omitted).
Daubert set forth several factors bearing on the admissibility of expert testimony,
including, but not limited to, whether the expert’s theory or technique can be tested,
whether the theory or technique has been published or subjected to peer review, and
the general acceptance of the theory or method in the applicable community. 509 U.S.
at 593-94. The Supreme Court later recognized that Daubert=s factors Amay or may not
be pertinent in assessing reliability,” since the specific issue, the subject of the expert=s
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testimony, and the expert’s area of expertise will vary from case to case. Kumho Tire
Co., 526 U.S. at 150 (citation omitted). Nonetheless, Aa trial court should consider the
specific factors identified in Daubert where they are reasonable measures of the
reliability of expert testimony.@ Id. at 152.
The court=s responsibility Ais to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.@ Id. However, the judge’s role as gatekeeper is not meant to supplant
the adversary system since “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at
596 (citation omitted). AThe proponent need not prove to the judge that the expert=s
testimony is correct, but she must prove by a preponderance of the evidence that the
testimony is reliable.@ Johnson, 685 F.3d at 459 (quoting Moore v. Ashland Chem. Inc.,
151 F.3d 269, 276 (5th Cir. 1998)). Although the court's focus should be on the expert’s
principles and methodology, as opposed to the conclusions they generate, “nothing in
either Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert.” Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997).
B.
Motion to Exclude Gamel [121]
Plaintiff designated Gamel as an expert in the field of commercial vehicle
maintenance. (See Pl.’s Disclosure of Expert Witnesses [121-1] at p. 2.) Per his
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deposition testimony, Gamel has owned a truck repair facility for approximately twentythree (23) years. (See Gamel Dep. [121-3] 7:12-24.) Also, Gamel has “44 years of
actual experience working on air brakes on trucks and trailers, and 19 years’ worth of
doing actual forensic mechanical inspections on vehicles in accidents.” (Gamel Dep.
[121-3] 15:15-23.) Gamel’s written report provides the following opinions concerning his
inspection of the tractor-trailer operated by Cameron: “Tractor and trailer combination
exhibits sufficient braking capabilities to allow stopping within reasonable distance.
There are no issues that would have been visible to the driver while performing a pretrip inspection of the tractor or trailer.” (Gamel Rep. [131-2 at ECF p. 3].) Defendants
seek the exclusion of both of these opinions. Only the Defendants’ request for
exclusion as to the first opinion is well taken.
1.
Tractor and trailer combination exhibits sufficient braking
capabilities to allow stopping within reasonable distance.
Defendants argue that this opinion should be excluded because it is unreliable
and would not assist the jury at trial. The Court agrees. As an initial matter, the opinion
is too imprecise and vague to help the trier of fact. “[A] trial court may exclude expert
testimony that is imprecise and unspecific or whose factual basis is not adequately
explained.” Smith v. Johnson & Johnson, No. 3:08cv245, 2011 WL 3876997, at *5
(S.D. Miss. Aug. 31, 2011) (quoting S. Grouts & Mortars v. 3m Co., 575 F.3d 1235,
1245 (11th Cir. 2009)), aff’d, 483 Fed. Appx. 909 (5th Cir. 2012); see also Boye v.
Connor Corp., No. 12-CV-12108, 2014 WL 4772720, at *5 (E.D. Mich. Sept. 24, 2014)
(finding the opinion that modifications were “recently” made to a machine to be
imprecise, unspecific, and unhelpful to the jury’s determination of when the
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modifications were actually accomplished). At his deposition, Gamel could not “put an
exact amount as far as footage on there” in defining “a reasonable distance.” (Gamel
Dep. [121-3] 20:6-11.) Gamel similarly testified, “I can’t give you an amount of distance
it would stop in, but it, obviously, had been stopping.” (Gamel Dep. [121-3] 54:4-8.)
Gamel understood that knowing not only could a tractor-trailer stop, but also, how
quickly it could stop was pertinent. (See Gamel Dep. [121-3] 53:17-21.) He,
nonetheless, could not provide the latter information presumably because that is “not
within . . . [his] scope of work . . . .” (Gamel Dep. [121-3] 52:23-53:21.) Gamel’s most
descriptive explanation of what he meant by “a reasonable distance” appears to be as
follows: “I would say that I would not be uncomfortable driving in front of that truck with
my family in the car, put it that way.” (Gamel Dep. [121-3] 20:11-14.) This subjective
speculation fails to enable an “objective, independent validation of the expert’s
methodology” and would not assist the jury at trial. Moore, 151 F.3d at 276. Under
Daubert, the trial judge “must determine whether the evidence is genuinely scientific, as
distinct from being unscientific speculation offered by a genuine scientist.” Id. at 278
(quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996)); see also
Sportsband Network Recovery Fund, Inc. v. PGA Tour, Inc., 136 F.3d 1329, 1998 WL
44564, at *10 (5th Cir. Jan. 30, 1998) (affirming the district court’s exclusion of
speculative expert testimony that would not aid the trier of fact).
The subject opinion also falters due to the lack of sufficient supporting facts or
data. It is well established within the Fifth Circuit “that ‘[w]ithout more than credentials
and a subjective opinion, an expert’s testimony that ‘it is so’ is not admissible.’” Brown
v. Ill. Cent. R.R. Co., 705 F.3d 531, 537 (5th Cir. 2013) (quoting Hathaway v. Bazany,
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507 F.3d 312, 318 (5th Cir. 2007)). Gamel testified that his opinion regarding the
tractor-trailer’s brakes was “a judgment call” based on his years of experience, his
visual inspection of the brakes, and his activation and testing of the brakes without
driving the vehicle. (Gamel Dep. [121-3] 15:15-23, 17:8-14, 18:9-19:2.) These
circumstances arguably support Gamel’s conclusion that the tractor-trailer “did have
braking capabilities.” (Gamel Dep. [121-3] 20:16-18.) However, the Court finds no
objective criteria enabling Gamel to testify as to the reasonableness or sufficiency of the
vehicle’s braking capabilities. Gamel testified that he neither performed any brake force
calculations nor knew how to perform the calculations to determine braking efficiency.
(See Gamel Dep. [121-3] 15:6-14, 27:21-25.) Further, determining the function of each
brake was not within his “scope of work.” (Gamel Dep. [121-3] 17:2-6.) As noted
above, determining how quickly the truck could stop was also not within the scope of
Gamel’s work. (See Gamel Dep. [121-3] 53:17-21.) Gamel surmised that the truck
“had braking capabilities that kept it out of trouble” prior to the subject accident in part
because it “had been to Mobile and back . . . .” (Gamel Dep. [121-3] 52:23-53:6.) A jury
could reach this same conclusion without the aid of expert testimony based on its own
reasoning and analysis. See Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th
Cir. 1990) (holding that expert testimony was unnecessary where the jury could adeptly
assess the “situation using only their common experience and knowledge”).
Ultimately, the reliability of Gamel’s opinion that the subject tractor-trailer
possessed “sufficient braking capabilities to allow stopping within [a] reasonable
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distance”1 has not been proven by a preponderance of the evidence. See Johnson, 685
F.3d at 459. Nothing in Rule 702 requires the Court to admit expert testimony that is
founded on “the ipse dixit of the expert” and unsupported by objective evidence. Gen.
Elec. Co., 522 U.S. at 146. Thus, this opinion will be excluded from the jury at trial.
2.
There are no issues that would have been visible to the driver
while performing a pre-trip inspection of the tractor or trailer.
Defendants contend that this opinion constitutes inadmissible speculation, as
opposed to competent expert testimony. In support of this argument, Defendants
initially fault Gamel for testifying at deposition that he did not know whether the Federal
Motor Carrier Safety Regulations require a pre-trip inspection of the brake pads.
Notwithstanding this admission, Gamel also testified that “the trucking industry or truck
driver is not going to crawl up underneath the vehicle, none of them do.” (Gamel Dep.
[121-3] 24:12-15.) This testimony appears to comport with the federal regulation
pertaining to pre-trip inspections of readily visible service brake components, which
requires a driver to perform “as thorough a visual inspection as possible without
physically going under the vehicle . . . .” 49 C.F.R. § 392.7(b). Gamel also testified, “I
don’t believe the driver[,] if he had gone underneath that trailer[,] could have looked at
the brake pads and seen that they were an out-of-service item.” (Gamel Dep. [121-3]
25:13-16.) Other portions of Gamel’s deposition reference objective criteria or
standards for determining if a brake is out of service, including federal regulations, and
Gamel’s application of those standards to his inspection of the subject vehicle’s brakes.
(See Gamel Dep. [121-3] 10:14-11:20, 32:4-35:5.) Thus, the Court does not find that
1
(Gamel Rep. [131-2 at ECF p. 3]) (emphasis added).
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Gamel’s opinion regarding what could be determined via a visible inspection of the
vehicle merely constitutes conjecture or speculation.
On the whole, the Defendants’ criticisms of this opinion go to the weight or
credibility of the testimony and not its admissibility. Defendants may attack the opinion
through “[v]igorous cross-examination” and the “presentation of contrary evidence” at
trial. Daubert, 509 U.S. at 596. Thus, this particular request for exclusion is denied.
C.
Motion to Exclude Bloomberg [123]
Plaintiff designated Bloomberg as an expert in the fields of forensic accident
investigation, analysis, and reconstruction. (See Pl.’s Disclosure of Expert Witnesses
[121-1] at p. 1.) Per his curriculum vitae, Bloomberg is a professional engineer
specializing in accident reconstruction. Further, Bloomberg “has analyzed in excess of
a thousand accidents involving cars, tractor-trailers, pedestrians, bicyclists, motorcycles,
heavy trucks, etc.” (Doc. No. [133-1] at p. 1.) On June 18, 2014, Bloomberg submitted
a written report containing his opinions relating to the accident at issue in this litigation.
(See Bloomberg Rep. [123-1 at ECF pp. 13-15].) Defendants challenge each of the
opinions listed below.
1.
Mr. Cameron began to take evasive action by entering the left
turn lane but he then braked hard and tried to swerve to the
right. His vehicle overturned onto its left side just before it
crashed into the left side of the Werner trailer near its axles. . .
. The calculations based on this evidence place the approach
speed of the American Concrete vehicle below the posted
speed limit of 65 mph.
The following portions of Bloomberg’s deposition are pertinent to the admissibility
of his statement that Cameron took evasive action by entering the left turn lane:
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Q.
At what location in the roadway do you first find physical evidence of the
positioning of the American Concrete as far as its western most location?
A.
In the left turn lane.
Q.
Right. All right. To what do you attribute that vehicle being present there?
A.
Most likely trying to avoid to the left until he determines that it's actually a
trailer and it's blocking the whole road and he's trying to get around it to
the right.
Q.
So do you have any opinion as to where to the west Mr. Cameron began
an invasive maneuver?
A.
No. It would be a steering maneuver, and I haven't -- I mean, it would be
a range depending on how he steered. I haven't looked into that.
....
Q.
Even in your scenario, Mr. Bloomberg, do you have him braking before or
as part of the steering maneuver?
A.
I don’t at this point, because there’s no physical evidence that I can
attribute to the American Concrete truck prior to that 85 feet.
....
Q.
What about as far as -- are you making any assumptions as far as his
steering maneuver, whether it's an aggressive versus a normal lane
change maneuver?
A.
I haven't evaluated the steering maneuver. Again, we don't have physical
evidence in that regard.
Q.
Do you assume for purposes of your analysis that he began in the slow
lane?
A.
I don't -- I don't know.
Q.
You don't know one way or the other whether he --
A.
At this point, I don't know, I mean, there's no -- again, there's no physical
evidence in that regard.
Q.
So there's no assumption either way for purposes of your analysis?
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A.
That's correct. I don't have any physical evidence to evaluate steering,
and so I haven't done that. I think I've said that numerous times. I don't
know any other way to say it.
(Bloomberg Dep. [123-3] 47:1-19, 48:10-16, 52:5-53:2.) These sworn statements
negate the existence of any objective, scientific basis for the conclusion that Cameron
entered the left lane as part of some evasive steering maneuver. Therefore, this
speculative determination is inadmissible. See Guillory Domtar Indus. Inc., 95 F.3d
1320, 1331 (5th Cir. 1996) (affirming the exclusion of expert testimony based on
speculation and altered facts). Defendants’ critiques of the remainder of the abovequoted paragraph can be resolved through “the adversary system” at trial. See Pipitone
v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002) (citation omitted).
2.
Based on his earlier steering to the left turn lane, he [Cameron]
most likely saw the Werner truck begin to enter the highway
and, in response to that, he pulled to the left hoping that the
Werner driver would stop and leave him enough room to pass
by. When the Werner truck did not stop but instead kept
coming across the eastbound lanes, Mr. Cameron was placed
in a situation where he had nowhere to go.
As provided above, there is no “physical evidence [for Bloomberg] to evaluate
steering.” (Bloomberg Dep. [123-3] 52:21-53:2.) Further, the proponent of Bloomberg’s
testimony, the Plaintiff, has failed to proffer any scientific basis for Bloomberg opining as
to what Cameron hoped or thought immediately prior to the accident. The opinions
expressed in the first sentence of the above-quoted paragraph will be excluded as a
result. The opinion stated in the second sentence can be tested through measurements
of the section of the roadway blocked by Guillory’s tractor-trailer at the time of the
collision. (See Bloomberg Dep. [123-3] 97:21-98:5.) Therefore, this opinion will not be
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excluded. Cf. Layssard v. United States, No. 06-0352, 2007 WL 4144936, at *3 (W.D.
La. Nov. 20, 2007) (holding that a biomechanical engineer could not testify as to
medical causation, but could at least state the calculations and measurements involved
in an accident).
3.
Mr. Guillory was reportedly leaving the area intending to head
west on US 98 after visiting the BP gas station located on the
southwest corner of the intersection where the crash
occurred. In leaving the gas station by heading north on Mt.
Gillard Church Road, Mr. Guillory was incorrectly using the
entrance to the gas station as an exit. The correct route for
Mr. Guillory to have taken would have involved exiting the gas
station at the west end of the gas station property, directly
north of the diesel fuel pumps, which were designed to be
entered and exited from south to north. The exit from the gas
station was about 300 feet west of Mt. Gillard Church Road and
involved turning right onto eastbound US 98 before, if
intending to travel west, changing lanes to the left turn lane to
make a U-turn at Mt. Gillard Church Road. By taking such a
route Mr. Guillory would not have blocked more than one lane
of eastbound US 98 at a time and this collision would have
most likely been avoided.
Defendants argue that these opinions should be excluded because they are
unreliable and outside of Bloomberg’s area of expertise. Plaintiff argues that Bloomberg
is sufficiently qualified to offer opinions regarding a hypothetical scenario under which
Guillory’s tractor-trailer enters the roadway via a separate route and the probability of an
accident occurring under that scenario. The Court largely finds that the Plaintiff has the
better argument.
Hypothetical scenarios are not outside the scope of permissible expert testimony.
See, e.g., Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (providing
that the language of the Rule “is broad enough to allow an expert to rely on hypothetical
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facts that are supported by the evidence”); Little v. Johnson, 162 F.3d 855, 862 (5th Cir.
1998) (holding that the expert’s testimony based on a hypothetical set of facts was
appropriately admitted by the trial judge). Further, an expert’s knowledge, training, or
experience in one field may permit her to provide opinions concerning a related
discipline. See United States v. Liu, 716 F.3d 159, 168-69 (5th Cir. 2013). “[A]n expert
witness is not strictly confined to his area of practice, but may testify concerning related
applications; a lack of specialization does not affect the admissibility of the opinion, but
only its weight.” Id. (quoting Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir.
1991)). Defendants do not challenge Bloomberg’s qualifications in the fields of forensic
accident investigation, analysis, and reconstruction. Defendants also do not dispute
Bloomberg’s statement that he “has analyzed in excess of a thousand accidents . . . .”
(Doc. No. [133-1] at p. 1.) Given Bloomberg’s undisputed qualifications and experience
pertaining to accident reconstruction, he may testify as to the probability of the accident
occurring under the above-referenced hypothetical scenario without running afoul of
Rule 702’s requirements.
However, Bloomberg will not be allowed to testify that Guillory took an “incorrect”
route, or that a hypothetical route was the “correct” path for Guillory to take. Bloomberg
admitted at his deposition that he did not know whether the route taken by Guillory “was
legal or not.” (Bloomberg Dep. [123-3] 55:24:56:19.) Bloomberg also lacks knowledge
regarding whether the entrance and exit signs on the subject gas station were posted
for traffic flow, safety, or convenience concerns. (See Bloomberg Dep. [123-3] 112:10113:7.) Thus, testimony from Bloomberg labeling Guillory’s route as correct or incorrect
would be speculative and unreliable. Bloomberg’s opinion that Guillory utilized an
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incorrect route can also be construed as an impermissible legal conclusion. Federal
Rule of Evidence “704 abolishes the per se rule against testimony regarding ultimate
issues of fact.” Owen v. Kerr-McGee Corp., 698 F.2d 236, 239 (5th Cir. 1983) (citations
omitted). However, nothing in the Rule permits an expert witness to express legal
conclusions or to tell a jury what result it should reach. Id. at 240; see also Arreola v.
Epic Drivers, Inc., No. 05-2788, 2006 WL 5153148, at *2 (E.D. La. Oct. 25, 2006)
(holding that the plaintiff’s safety expert could not testify that the defendants were
negligent).
4.
By attempting to drive directly across the eastbound lanes of
US 98, Mr. Guillory was placing his vehicle across the
eastbound lanes of traffic at the same time as he was required
to stop for the posted stop sign in the median. He would have
either had to disobey that stop sign and risk entering the
westbound lanes of US 98 without stopping, or stop his
vehicle with the trailer blocking most or all of the eastbound
lanes. Both options were unsafe and inappropriate; had he
exited the gas station via the Truck Exit, he could have entered
the median and stopped at the Stop sign without blocking the
eastbound through lanes.
The parties present substantially the same arguments regarding these opinions
as those discussed in the preceding section of this opinion. For essentially the same
reasons as stated above, Bloomberg will be allowed to testify as to the likelihood of
Guillory blocking the eastbound lanes of the highway had he taken an alternate path.
Bloomberg will not be permitted to testify that Guillory’s actual route was “unsafe” or
“inappropriate.” See Arreola, 2006 WL 5153148, at *2; Ross v. Noble Drilling Corp., No.
Civ.A. 03-0015, 2005 WL 53306, at *2, 3 (E.D. La. Jan. 5, 2005) (excluding the opinion
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that the defendants did not perform any unsafe acts since it came too close to drawing a
legal conclusion on the issue of negligence).
5.
Summation As to Bloomberg’s Opinions
Bloomberg is precluded from testifying at trial that Anthony Cameron took
evasive action by entering or steering to the left lane of the highway. Bloomberg may
also not testify that Anthony Cameron entered the left lane hoping that Terry Guillory
would stop and leave enough room for him to pass. Furthermore, Bloomberg is
prohibited from testifying that Terry Guillory took an “incorrect,” “unsafe,” or
“inappropriate” route in crossing U.S. Highway 98 at the Mt. Gillard Church intersection,
or that the above-discussed hypothetical route was the “correct,” “safe,” or “appropriate”
path for Guillory to take. Defendants’ challenges to Bloomberg’s testimony are
otherwise denied.
6.
Undisclosed Exhibits
Defendants object to Bloomberg using at trial any exhibits that have not been
previously disclosed during discovery. Plaintiff concedes this objection, provided that
Bloomberg is allowed to utilize exhibits that are representations of materials previously
disclosed or that are otherwise not unknown to the Defendants. The Court sustains this
objection without prejudice to the Plaintiff’s ability to show at trial that a particular exhibit
was previously disclosed to the Defendants in such a form that its utilization by
Bloomberg would not amount to unfair prejudice or trial by ambush.
III. CONCLUSION
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IT IS THEREFORE ORDERED AND ADJUDGED that the Defendants’ Motion to
Exclude Gamel [121] is granted in part and denied in part, as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that the Defendants’ Motion to
Exclude Bloomberg [123] is granted in part and denied in part, as outlined above.
SO ORDERED AND ADJUDGED this the 21st day of July, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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