Replogle v. Shoreline Transportation of Alabama, LLC et al

Filing 137

ORDER denying Plaintiff's 121 Motion for Partial Summary Judgment. Signed by District Judge Keith Starrett on June 5, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
ROSEMARY REPLOGLE

PLAINTIFF

v.

CIVIL ACTION NO. 3:11-CV-83-KS-MTP

SHORELINE TRANSPORTATION
OF ALABAMA, LLC, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies Plaintiff’s Motion for Partial
Summary Judgment [121].
I. BACKGROUND
This wrongful death case arises from an automobile pile-up that occurred on
October 26, 2010, in the lefthand lane of the northbound side of I-55 near McComb,
Mississippi. Four vehicles were involved. The first vehicle in the pile-up was a tractortrailer owned by Defendant D&G Transportation, Inc. Behind D&G’s tractor-trailer
was an SUV operated by the decedent, David Replogle. Next came a pickup operated
by a third party, Billy Jo Magee, and a tractor-trailer owned by Shoreline
Transportation of Alabama, LLC, and operated by Kenneth L. Boudreaux brought up
the rear.
It is undisputed that the D&G tractor-trailer and the Replogle SUV were in the
lefthand lane immediately prior to and during the accident. It is also undisputed that
the Shoreline tractor-trailer moved from the righthand lane to the lefthand lane at
some point immediately prior to the accident. But the parties differ on other material

facts.
Plaintiff contends that the Shoreline tractor-trailer failed to slow down enough
to timely stop, and then swerved into the lefthand lane without first checking if it was
occupied. She claims that the Shoreline tractor-trailer collided with the Magee pickup,
which then hit the decedent’s SUV and pushed it underneath the D&G trailer.
Shoreline’s version of the facts is different. Shoreline contends that its driver
slowed down enough to timely stop, and that the lefthand lane was clear when he
moved into it. They claim that the Magee pickup swerved over into the lefthand lane
in front of him. They also claim that the decedent had already collided with the D&G
vehicle prior to their tractor-trailer colliding with Magee.
It is undisputed that Boudreaux was an employee of Shoreline, that he was
acting within the course and scope of his employment, and that Shoreline is vicariously
liable for his actions. The Court now considers Plaintiff’s Motion for Summary
Judgment [121] as to Shoreline’s liability. Plaintiff argues that Boudreaux was the sole
proximate cause of Replogle’s death.
II. DISCUSSION
Rule 56 provides that “[t]he court shall grant summary judgment 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.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). The nonmovant
“must come forward with specific facts showing that there is a genuine issue for trial.”
Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (punctuation
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omitted). The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. “Conclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002).
Plaintiff provided substantial evidence indicating that Boudreaux’s negligence
caused the accident. Plaintiff’s accident reconstruction expert, John M. Bentley,
provided the following opinions: (1) Boudreaux had a significant line of sight on
approach to the scene of the accident; (2) Boudreaux’s vehicle was traveling in excess
of 64.5 mph as it approached the scene; (3) Boudreaux’s vehicle was traveling in excess
of 40 mph when it struck the pickup directly behind Replogle; (4) Boudreaux failed to
maintain a proper lookout and control his vehicle; and (5) had Boudreaux utilized the
time and sight distance available on approach to safely reduce speed and stop, the
accident could have been avoided. Bentley examined the scene of the accident and
Boudreaux’s truck. He considered photographs from the accident scene, the Uniform
Crash Report, deposition transcripts, and a variety of discovery materials. He also
prepared a kinetic energy and momentum analysis of the collision. In addition to
Bentley’s analysis, Plaintiff introduced eyewitness testimony indicating that
Boudreaux caused the accident.
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Boudreaux, however, denies that he caused the accident. He testified that he
saw traffic slowing when he was approximately a quarter to half mile away from the
scene of the accident. He allegedly shifted down, and then applied the brakes while he
was still in the right lane. He denies that he swerved into the lefthand lane. Rather,
he claims (1) that there was plenty of room there for him to stop, (2) that there were
six to eight car lengths between his tractor-trailer and the Replogle vehicle when he
changed lanes, and (3) that his speed was approximately 15-20 mph when he hit
Magee. According to Boudreaux, Magee swerved in front of him, and Replogle had
already collided with the D&G trailer at that point. Boudreaux claims that he saw the
D&G driver walking to the back of his trailer with a fire extinguisher prior to the
collision with Magee.
Plaintiff argues that the Court should disregard Boudreaux’s testimony because
it is “self-serving.” But that is not grounds to exclude otherwise admissible testimony
from consideration. C.R. Pittman Constr. Co. v. Nat’l Fire Ins. Co., 453 F. App’x 439,
443 (5th Cir. 2011). “If all ‘self-serving’ testimony were excluded from trials, they would
be short indeed.” Id. Plaintiff also argues that Boudreaux’s testimony is not credible,
noting that he failed to mention that Replogle had already hit the D&G trailer in prior
depositions and statements. Of course, credibility determinations are for the jury.
Deville, 567 F.3d at 164.
Plaintiff also notes Shoreline’s failure to designate an accident reconstruction
expert. But expert testimony is not necessarily required to prove or disprove the
alleged cause of an automobile accident. Walker v. Smitty’s Supply, Inc., 2008 U.S.
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Dist. LEXIS 37949, at *13-*14 (S.D. Miss. May 8, 2008); Barnett v. East Side Jersey
Dairy, Inc., 2011 U.S. Dist. LEXIS 142783, at *4-*5 (N.D. Miss. Dec. 12, 2011). The
Court has previously noted:
The general rule in Mississippi is that expert testimony is not required
where the facts surrounding the alleged negligence are easily
comprehensible to a jury. While it may very well be true that
determinations as to how accidents occur involve scientific calculations
based on the law of physics and that an expert can be helpful to the jury
in making its determinations as to speeds, this Court is not prepared to
hold that expert testimony is required in this case in order for the jury to
conclude that [a defendant’s] alleged failure to reduce his speed as he
approached the intersection was the proximate cause of the decedents’
injuries and deaths. The Court is unaware of any Mississippi case which
holds that an expert is required in such a situation. Moreover, in all of
the most recent cases in which the failure to slow while approaching or
crossing an intersection as required by § 63-3-505 is at issue, no mention
was ever made of an expert testifying as to proximate cause – much less
one being necessary to prove the same.
Walker, 2008 U.S. Dist. LEXIS 37949 at *13-*14 (citations and punctuation omitted).
The sequence of events leading to the subject accident are easily comprehensible to a
jury. Expert testimony – while helpful and probative – is not required to make or break
Plaintiff’s case.
III. CONCLUSION
In summary, the Court does not disagree with Plaintiff’s observation that the
evidence tilts in her favor. But Shoreline presented relevant and admissible evidence
that its employee was not the sole proximate cause of the accident, creating genuine
disputes of material fact. Boudreaux’s testimony – though it may be incredible and
contrary to the weight of the evidence – creates a genuine dispute of material fact. For
this reason, the Court denies Plaintiff’s Motion for Partial Summary Judgment [121].
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SO ORDERED AND ADJUDGED this 5th day of June, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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