Mason et al v. C.R. England, Inc. et al

Filing 85

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant C.R. Englands Motion for Partial Summary Judgement as to the independent negligence of C.R. England (ECF No. 64 ) is GRANTED. Counts V-VIII of Plaintiffs Complaint (ECF No.1) are therefore DISMISSED. IT IS FURTHER ORDERED that Defendant C.R. Englands Motion for Partial Summary Judgement as to punitive damages (ECF No. 59 ) is DENIED. IT IS FURTHER ORDERED that Defendant C.R. Englands Motion to Limit the Testimony of Plaintiffs Vocatio nal Rehabilitation Expert (ECF No. 57 ) is GRANTED. IT IS FURTHER ORDERED that Defendant C.R. Englands Motion to Limit the Testimony of Plaintiffs Pain Management Expert (ECF No. 55 ) is DENIED.. Signed by District Judge Jean C. Hamilton on 10/22/2019. (JMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DISTRICT
DEREK MASON and
)
MICHELLE MASON,
)
)
Plaintiffs,
)
)
v.
)
Case No. 4:18-CV-00651 JCH
)
)
C.R. ENGLAND, INC. and
)
MATTHEW SMITH,
)
)
Defendants.
)
)
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motions for Partial Summary Judgement
(ECF Nos. 59, 64), Defendants Motion to Limit the Testimony of Plaintiff’s Pain Management
Expert (ECF No. 55) and Defendant’s Motion to Limit the Testimony of Plaintiff’s Vocational
Rehabilitation Expert. (ECF No. 57). The Motions are fully briefed and ready for disposition.
BACKGROUND
Plaintiff’s cause of action arises out of a motor vehicle accident on March 5, 2017. (ECF
No. 61 ¶ 1). Defendant Smith was operating a tractor-trailer on eastbound Interstate 70 near its
intersection with Interstate 270 in St. Louis County, Missouri. Id. ¶ 2. Defendant Smith struck an
emergency vehicle, a police vehicle, that was stopped on the highway or the shoulder with its
lights flashing. Id. Plaintiff Derek Mason was in the front passenger side of the police vehicle. Id.
¶ 3.

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At the time of the accident, Defendant Smith was employed by Defendant C.R. England.
Id. ¶ 4. Defendant CR England has admitted that Defendant Smith was acting within the scope of
his employment. Id. The parties dispute the following events:
Defendant Smith testified that he was initially in the right lane when he saw emergency
vehicles stopped ahead of him. Id. ¶ 9, citing Deposition of Matthew Smith, at 52:12-54:5.
Defendant Smith further testified that, after seeing the emergency vehicles, he moved to the center
lane and used his turn signal. Id. Defendant Smith testified that he looked down for a second or
two due to some commotion inside the cab; that when he looked back up he was on top of the
parked police vehicle; and that he did not know how far he may have traveled while looking down.
Id. ¶ 10 citing Smith Depo. at 52:12-22, 54:16-55:10; 56:25-57:80; 60:25-61:20. Defendant Smith
also testified that he tried to swerve back to the left to avoid hitting the police vehicle. Id. ¶ 11
citing Smith Depo. at 65:18-66:20. Defendant Smith believes that the parked police vehicle was
over the white line that divided the right lane of traffic with the shoulder and that his tractor-trailer
never went onto the right shoulder. Id. ¶¶ 14-15, citing Smith Depo. at 126:13-127:10; 60:17-22.
Plaintiff asserts that Defendant Smith’s testimony can be contradicted by their witness, Mr.
Jonathan Cruz. Mr. Cruz testified that he was traveling behind the tractor-trailer when the crash
occurred. (ECF No. 78, at 7 (citing Deposition of Jonathan Cruz at 16:1-19)). Mr. Cruz stated that
he was traveling either in the middle or left lane when he saw bright flashing lights on the right
side of the highway. Id., citing Cruz Depo. at 16:1-12. Mr. Cruz testified that he was:
traveling about 65, 70 that morning heading downtown, and in front of me I saw a
tractor-trailer obviously going faster than me because he was…way ahead of me.
But from a distance I saw the tractor-trailer start going from the middle lane and
kind of – as if someone was either…not paying attention... fell asleep and started
drifting, and that’s when I noticed, when he stated drifting… the truck hit both
vehicles and then kept going. And there was that third vehicle that they had
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originally pulled over. Once he hit that third vehicle, the truck hit the… guardrail
on the right side, bounced back over to the middle of the highway, and that’s when
I stopped…in front of the truck over there.
Id., citing Cruz Depo. at 16:20-17:19. Mr. Cruz also testified that he observed the tractor-trailer
in front of him in the middle lane of Interstate 70. Id., citing Cruz Depo. at 18:5-10.
The front passenger side of the tractor-trailer operated by Defendant Smith hit the rear
driver side of the police vehicle. (ECF No. 61, ¶ 13). Defendants have stipulated that Defendant
Smith was negligent in connection with the operation of his vehicle at the time of the accident.
Id. ¶ 25 (citing ECF No. 32, Stipulation). As a result of the accident, Plaintiffs have filed their
Complaint which contains the following nine counts.
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.

Negligence against Defendant Smith
Negligence Per Se against Defendant Smith
Vicarious Liability against Defendant C.R. England for Defendant Smith’s
Negligence
Vicarious Liability against Defendant C.R. England for Defendant Smith’s
Negligence Per Se
Independent Negligence against Defendant C.R. England
Direct Negligence against Defendant C.R. England for Negligent Hiring
or Retention
Direct Negligence against Defendant C.R. England for Negligent Training
Direct Negligence against Defendant C.R. England for Negligent
Supervision and Retention
Loss of Consortium by Michelle Mason against Defendant Smith and
Defendant C.R. England
DISCUSSION

I.

Standard for Summary Judgement
The Court may grant a motion for summary judgement if, “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The substantive law determines which facts are critical and which are irrelevant. Only disputes
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over facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion.
Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party
must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material
fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its
pleadings. Anderson, 477 U.S. at 256. In passing on a motion for summary judgment, the Court
must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences
are to be drawn in its favor. Anderson, 477 U.S. at 255. The Court’s function is not to weigh the
evidence, but to determine whether there is a genuine issue for trial. Id. at 249.

II.

Defendant’s Motion for Summary Judgement as to C.R. England’s Independent
Negligence
Defendant C.R. England’s Motion for Partial Summary Judgement (ECF No. 64) is

directed at Counts V-VIII of Plaintiffs’ Complaint. Defendant C.R. England asserts that under
McHaffie v. Bunch, 891 S.W. 2d 822, 826-27 (Mo. banc. 1995), “once an employer has admitted
respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed
against the employer on any other theory of imputed liability,” Id., at 826. Defendant C.R. England
has admitted that Defendant Smith was C.R. England’s employee and was acting in the course and
scope of his employment at the time of the accident. Plaintiffs in response state that they do not
resist dismissal of Counts V-VIII of Plaintiffs’ Complaint. (ECF No. 79). Therefore, the Court will
dismiss Counts V-VIII of the Plaintiffs’ Complaint, leaving Counts I-IV and IX.

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III.

Defendant’s Motion for Summary Judgement as to Punitive Damages
Defendant C.R. England’s second Motion for Partial Summary Judgement (ECF No. 59)

is directed at Plaintiffs’ request for punitive damages in this case. Defendant C.R. England asserts
that under Missouri law, “[i]n a negligence case, punitive damages are awarded only if, at the time
of the negligent act, the defendant knew or had reason to know that there was a high degree of
probability that the action would result in injury.” Smith v. Brown & Williamson Tobacco Corp.,
275 S.W.3d 748, 813 (Mo. App. W.D. 2008). This requires evidence that “the defendant showed
a complete indifference to or conscious disregard for the safety of others.” Id. at 813. Conscious
disregard or complete indifference involves “knowledge of surrounding circumstances and
existing conditions, that, although lacking specific intent to injure, the person’s conduct or failure
to act will naturally and probably result in injury.” Id.
In a negligence case, punitive damages may be “properly submitted upon evidence that the
defendant knew or had information from which he, in the exercise of ordinary care, should have
known that the alleged negligent conduct created a high degree of probability of injury, and thereby
showed complete indifference or conscious disregard for the safety of others.” MAI 10.07; see
also, Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 436 (Mo. banc.
1985)(declined to extend on other grounds by Couzens v. Donohue, 854 F.3d 508 (8th Cir. 2017)).
Further under Missouri law, evidence of failure to follow motor carrier regulations and industry
standards is permitted to support an award of punitive damages against commercial motor carriers.
Ellis v. Elkins, No. 5:18CV6121 NKL 2018 WL 6331706, at *2 (W.D. Mo. Dec. 4, 2018); Kyles
v. Celadon Trucking Servs., 6:15-CV-3193 MDH 2015 WL 6143953 at *4 (October 19,
2015)(stating that it is sufficient for the plaintiff to allege violations of federal trucking regulations
and industry standards to support an award of punitive damages under Missouri Law). Violations

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of one’s own standards can be such reckless conduct as to constitute conscious indifference for the
purposes of establishing punitive damages. First national Bank of Fort Smith v. Kansas City
Southern Railway Co., 865 S.W.2d 719, 730 (Mo. App. W.D. 1993).
Defendants argue that they are entitled to partial summary judgement on the issue of
punitive damages because the Plaintiffs have not produced sufficient evidence to support an award
of punitive damages. In support thereof, the Defendant cites the deposition of Defendant Smith,
suggesting that his account of the accident does not give rise to any inference of conscious
disregard for the safety of others. Furthermore, the Defendant argues that “Smith understood that
changing lanes to give a parked emergency vehicle as much room as possible was required by the
Federal Motor Carrier Safety Regulations.” (ECF No. 60, citing ECF No. 61 Statement of
Uncontroverted Material Facts, at ¶ 47). Plaintiffs in response submit the testimony of Plaintiffs’
Witness, Mr. Cruz, and argue that testimony shows Defendant Smith failed to abide by motor
safety policies and instead did the opposite of what was required. (ECF No. 77, at 2). Specifically,
Plaintiff’s witness, Mr. Cruz, contradicts whether Defendant Smith slowed down before the
accident and whether Defendant Smith moved into the center lane to give more room to the
emergency vehicles or if he was in the center lane before drifting and hitting the emergency
vehicles. Furthermore, the testimony by Defendant Smith raised in the Defendant’s motion raises
questions of fact regarding whether or not Defendant Smith attempted to avoid the accident before
impact or if Defendant Smith was looking away from the road and did not look up until after
impact had occurred. “[Defendant] Smith testified that he looked down for maybe a second or two,
due to some commotion inside the cab, and that when he looed back up he was on top of the parked
police vehicle” (ECF No. 60 citing ECF No. 61 at ¶10). Defendant Smith also testified that “a split
second before impact, he tired to swerve back to the left to avoid hitting the parked police vehicle.”
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Id., citing ECF No. 61 at ¶11. Defendant also testified that he “did not know how far he traveled
while looking down.” Id. citing ECF No. 61 at ¶10.
There is a question of fact in this case as to the conduct of Defendant Smith. The Court
finds that in light of Kyles v. Celadon, and Ellis v. Elkins, which allow for the introduction of
evidence that the Defendant violated trucking motor standards as evidence of punitive damages, a
jury question of whether Defendant Smith’s conduct was reckless enough to impose punitive
damages is not precluded in this case. The Court will deny Defendant C.R. England’s Motion for
Partial Summary Judgement as to punitive damages.
IV.

Defendant’s Daubert Motions
Defendant C.R. England further moves to exclude certain evidence brought by Plaintiffs’

experts. Defendant C.R. England specifically seeks the exclusion of testimony by Plaintiffs’ pain
management expert Dr. Kaylea Boutwell regarding any reference to biologic therapy and plateletrich plasma (“PRP”), autologous stem cells and/or exosomes (ECF No. 55), and testimony by
Plaintiffs’ vocational rehabilitation expert, Delores Gonzalez regarding her opinion that Plaintiff
Derek Mason, will not be able to return to work because his taking lawfully prescribed narcotic
pain medication would result in him failing pre-employment drug testing and potential employers
therefore not hiring him. (ECF No. 57).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed. R. Evid.
702. The rule states that:
A witness who is qualified as an expert by knowledge, skill or
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. “[T]he trial judge acts as the ‘gatekeeper,’ screening expert testimony for
relevance and reliability.” Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993). “A witness can be qualified as an expert by ‘knowledge, skill, experience, training or
education,’ and it is the responsibility of the trial judge to determine whether a particular expert
has sufficient specialized knowledge to assist jurors in deciding the specific issues in the case.”
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir.
2001)(citing Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137,156 (1999)(internal citations
omitted)). The trial court must also “ensur[e] that the actual testimony does not exceed the scope
of the expert’s expertise.” Wheeling, 254 F.3d at 715. The qualifications of Plaintiffs’ experts are
not being challenged. Defendant C.R. England challenges the scope of their testimony.
a. Testimony of Dr. Kaylea Boutwell
Defendant C.R. England argues that Dr. Kaylea Boutwell should be precluded from
testifying about biologic therapies, including injections, with PRP, autologous stem cells or
exosomes (“Biologic Therapies”), which she proposes may be used in the future treatment of
Plaintiff Derek Mason. (ECF No. 55). Defendant argues that these Biologic Therapies are
experimental and are therefore unreliable under the Daubert test. (ECF No. 56, at 3).
Dr. Boutwell, in her report states that Plaintiff will more likely than not require Biologic
Therapy over the course of his life and that the Biologic Therapy needed would likely cost

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$9,000.00 every three years. Defendant argues that testimony regarding Biologic Therapies is
unreliable because the science is experimental and cites to the opinion of their own medical expert.
(ECF No. 56, at 5). Defendant’s expert argues that “the evidence supporting biologics in the spine
is currently at best considered quasi experimental”.

She further states that “the biologic

components, the timing of he treatment as well as the location of these injections cannot be
supported with clinical evidence at this time” and that “there are no food clinical studies indicating
that they’re appropriate for spine treatment” (ECF No. 56, at 5 citing Dr. Hurford Deposition, at
122:19-123:4).
Dr. Boutwell is Plaintiff’s treating physician for pain management. (ECF No. 75, at 3). Her
opinion is that the Plaintiff will more likely than not need Biologic Therapy over the course of his
life. Id. citing 75-1, Boutwell Report, at 9. Dr. Boutwell testified regarding the effectiveness of
Biologic Therapies stating that:
…there’s a host of papers that are available. Most of them are
empiric evidence at this juncture, so they’re not considered Level 1
randomized control trial academic papers. But tens of thousands of
patients at this juncture that have been treated by the Stem Cell
Network, for example, out in California, Docere… Clinic, Harry
Adelson, in Park City, are treating patients on almost a daily basis
with this specific type of therapy for this specific type of problem or
success.
(ECF No. 75, at 4, citing Boutwell Depo. at 184:1-17). Dr. Boutwell, on the topic of peer review
studies regarding Biologic Therapies testified that, “… Centeno with Regenexx, have all produced
volumes and volumes of clinical, clinically based patient outcomes relative to these with
standardization protocols.” Id. citing Boutwell Depo. at 184:18-185:4.

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While Dr. Boutwell’s future treatment recommendation for the Plaintiff remains
experimental, it is within her scope of expertise to provide recommendations as to the Plaintiff’s
future treatments for pain management. While a district court judge may reject expert testimony if
the analytical gap between the data and the expert’s opinion is too great, see, Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997), the Court does not find that to be the case here. Plaintiff has
provided a qualified medical expert, his treating physician on pain management. Upon researching
emerging treatments for Plaintiff’s injuries, Dr. Boutwell provided her opinion that, in the future,
the Plaintiff will likely be a recipient of Biologic Therapy. This is not such an analytical gap as to
preclude her testimony. As Defendant has noted in its briefing, Defendant has and will be able to
provide an expert to refute Dr. Boutwell’s opinion that Plaintiff’s future treatment ought to include
Biologic Therapy. This is sufficient to allow the jury as trier of fact to determine whether the
Plaintiff is in fact likely to undergo future Biologic Therapy. Defendant’s Motion to limit the
testimony of Dr. Boutwell is therefore denied.
b. Testimony of Delores Gonzalez
Defendant C.R. England argues that Delores Gonzalez’s opinion that the Plaintiff is
unemployable is not supported by the medical evidence and is therefore beyond the scope of her
testimony as a vocational rehabilitation expert. (ECF No. 58, at 7). Defendant specifically objects
to Ms. Gonzalez’s opinion that the Plaintiff is completely unemployable because his lawfully
prescribed narcotic pain medication would result in him failing preemployment drug testing and
would therefore not be hired. Id. at 8-9, citing Gonzalez Deposition at 68:17-72:19; 104:19-105:11.
Defendant specifically states that Ms. Gonzalez’s opinion regarding Plaintiff’s lawful drug use
goes beyond the scope of her expertise because it is an instance in which Ms. Gonzalez, as a
rehabilitation expert, opines about legal issues that are not within her area of expertise.. Id. At 9-

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13. Ms. Gonzalez, when asked if it would be legal for potential employers to not hire someone
because they were taking prescription medicine, indicated that she did not know. Id. citing,
Gonzalez Depo. at 119:15-23 – 120:2-18). Defendant argues that her opinion implicates and fails
to address the American with Disabilities Act (“ADA”) which provides that employers may not
make such action except in limited circumstances. Id. citing 42 U.S.C. §12112(d)(2)(A)-(B).
In opposition to the Defendant’s motion, Plaintiffs state that there was medical evidence
for Ms. Gonzalez’ opinion that Plaintiff Mason could not return to work.

Dr. Brett Taylor,

Plaintiff Mason’s orthopedic surgeon, has stated that the Plaintiff has a life-long five-pound lifting
restriction and sedentary employment capacity restriction. (ECF No. 76, at 3 (citing Taylor
Deposition at 105:16-25)). Dr. Taylor also stated that the Plaintiff would not be able to return to
work as a Missouri State Highway Patrol Trooper. Id., citing Taylor Depo. at 99:18-100:8). Ms.
Gonzalez’s final opinion is that Plaintiff is not a candidate for vocational rehabilitation, because
he is not currently capable of any competitive work as a result of the March 5, 2017 crash. Id.,
citing ECF No. 76-1, Ms. Gonzalez Expert Report, at 54-55. Ms. Gonzalez specifically states that:
[Plaintiff] would not present well in a job interview because he appeared
sleepy and had problems with memory, focus, and concentration. He noted
it was very painful to move his head up and down to read or to look up.
Looking down gave him a headache and his right hand cramped constantly
when he was writing. He stood stretched and walked approximately every
15-20 minutes throughout the interview due to back and neck pain and
stiffness.
Finally, Mr. Mason’s impairments have produced pain of considerable
intensity, frequency, and duration and have affected his ability to perform
basic work-related functions. His impairments remain significant despite
surgeries, injection therapies, narcotic pain medications and regular medical
attention and treatment. Mr. Mason’s impairments have severely
compromised his ability either to return to his past relevant jobs or to
perform any job on a sustained basis. It remains my professional vocational
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opinion that [Plaintiff] is not a candidate for vocational rehabilitation as he
is not currently capable of any competitive work as a result of the accident
of 3-5-17.
(ECF No. 76, citing ECF No. 76-1, p. 54-55). Ms. Gonzalez testified that in forming her expert
opinion she performs a sequential evaluation process that reviews medical records, considers a
personal evaluation of the person, and takes into consideration a person’s, age, education, work
history, the transferability of skills based on residual functional capacity and work restrictions.
ECF No. 76, citing Gonzalez Depo. at 88:16-89:10). She further testified that additional factors in
coming to her unemployability conclusion were Plaintiff’s five-pound weight restriction and the
fact that the Plaintiff was taking narcotic pain medication. (ECF No. 76, citing Gonzalez Depo. at
129:20-130:8). Ms. Gonzalez also stated that in her experience of placing individuals in the labor
market, failing a drug test for narcotic pain medication will result in not being hired. (ECF No. 76,
citing Gonzalez Depo. at 70:25-71:13).
The Court finds that Ms. Gonzalez’s opinion that because of Plaintiff’s lawful narcotic
drug use he will not be hired due to a failed drug test, is beyond the scope of her expertise. Ms.
Gonzalez goes beyond the scope of her expert opinion because she is not qualified as an expert to
give an opinion based on legal principals regarding the failure of an employer to hire those taking
prescribed narcotics. Even if Ms. Gonzalez’s opinion about Plaintiff’s employability regarding
Plaintiff’s lawful drug use was within the scope of her expert opinion, it is too speculative to be
admissible because it assumes that all employment opportunities available to the Plaintiff require
preemployment drug screening and that even if there is preemployment drug screening all potential
employers would refuse to hire the Plaintiff even if it may constitute a violation of the law to do
so. Ms. Gonzalez’s may give her opinion as to Plaintiff’s employability based on the medical
evidence, the restrictions placed on the Plaintiff, and Plaintiff’s personal evaluation.
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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant C.R. England’s Motion for Partial Summary
Judgement as to the independent negligence of C.R. England (ECF No. 64) is GRANTED. Counts
V-VIII of Plaintiffs’ Complaint (ECF No.1) are therefore DISMISSED.
IT IS FURTHER ORDERED that Defendant C.R. England’s Motion for Partial
Summary Judgement as to punitive damages (ECF No. 59) is DENIED.
IT IS FURTHER ORDERED that Defendant C.R. England’s Motion to Limit the
Testimony of Plaintiff’s Vocational Rehabilitation Expert (ECF No. 57) is GRANTED.
IT IS FURTHER ORDERED that Defendant C.R. England’s Motion to Limit the
Testimony of Plaintiff’s Pain Management Expert (ECF No. 55) is DENIED.

Dated this 22nd day of October 2019.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
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UNITED STATES DISTRICT COURT

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