ESTATE OF AINSWORTH MALLETT et al v. SCHMIDT BAKING CO., INC. et al
MEMORANDUM OPINION AND ORDER granting in part 151 Motion in Limine. Signed by Judge Joseph H. Rodriguez on 01/11/2017. (db, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE of Ainsworth Mallett, and
ESTATE of Jacqueline Mallett, and
ESTATE of Drew Mallett, and
NICOLE MALLETT, individually, and
ERROLL MALLETT, MD and
NICOLE MALLETT in their capacity as
Co-Administrators of the above three
SCHMIDT BAKING CO., INC. and
Hon. Joseph H. Rodriguez
Civil Action No. 14-2438
This matter is before the Court on Defendants’ motion in limine to limit the
trial testimony of Plaintiffs’ liability expert Brooks Rugemer. Oral argument on
the motion was heard on January 9, 2018, and the record of that proceeding is
incorporated here. As an initial matter, the Court notes that agency between
Defendants Mark Taylor and Schmidt Baking Co., Inc. (“Schmidt’s Bakery”) has
been admitted. The negligent hiring and retention claims against Schmidt’s
Bakery have been dismissed by consent. The sole remaining direct claim against
Schmidt’s Bakery is limited to the manner in which Taylor was trained.
The Prior Order of the Court Disallowing Supplemental Reports from
Brooks Rugemer will be Enforced and his Testimony Limited to What
Was Contained in the Reports Provided Prior to his Deposition.
The scope of Mr. Rugemer’s proffered testimony has already been
addressed via Court Order. The following chronology is relevant:
Initial Report June 23, 2015;
Supplemental Report October 21, 2015;
Deposition completed February 25, 2016;
Supplemental Report of March 4, 2016;
Supplemental Report of March 7, 2016;
April 18, 2016 Order barring Supplemental Reports.
Discovery and documents were available to be reviewed by Mr.
Rugemer before he prepared his first two reports and submitted to a
deposition, however he was not provided with a number of discovery
documents prior to preparing his two initial reports. The relevant
documents are listed in Plaintiff's letter of March 4, 2016.
Mr. Rugemer will be allowed to testify at trial, but will not be
permitted to support his opinion by claiming that he relied upon the
discovery that existed prior to preparing his initial reports but was not
reviewed by him before he prepared his reports and was deposed. Plaintiff
should not suggest that the documents were relied upon and reviewed. The
Court’s Order of April 18, 2016 striking Supplemental Reports will be
honored, as the materials intended to support the Supplemental Reports
were not available to the defense during Rugemer’s deposition.
Brooks Rugemer will Not be Permitted to Offer an Opinion as to
Accident Reconstruction or Comment as to How the Accident
Took Place or Who was at Fault for the Accident.
At his deposition, Mr. Rugemer testified as follows:
Are you an accident reconstructionist?
No I am not.
And I assume you hold no certifications in accident
That’s correct. I work with my accident recon team from time to
time, but I’m not a certified accident reconstructionist.
Would you agree with me that in this particular case, the Mallet
case that brings us here today, you made no effort to do an accident
(Rugemer Dep., p. 14.) He continued:
In terms of not being a recon – I assume in your career you
worked with recons?
And do you refer to them in terms of the actual reconstruction
of the accidents?
Yes. If I’m offered a case where there’s a recon necessary, I turn
that over to our recon group.
(Rugemer Dep., pp. 110-111.)
Rugemer offered an opinion that Mark Taylor’s driving was “careless”
and “reckless” and a proximate cause of the accident. He will not be
permitted to testify as to these issues given the lack of any effort to
reconstruct how the accident actually took place and his difficulty with the
definition of “reckless.” (See Rugemer Dep., pp. 90-91.) Questions of
carelessness, recklessness, or negligence are for the jury. As to “proximate
cause,” this is a jury issue as per this Court’s prior ruling on the summary
Brooks Rugemer will Not be Permitted to Rely upon
Inadmissible Evidence to Support his Opinion as to the Negligent
For an expert to provide opinion testimony, the opinion has to be
based upon recognized standards, not inadmissible evidence. Mr. Rugemer
relies on the following to support his claim of negligent training:
1. Professional Truck Driver Institute (PTDI) curriculum;
2. ABF Freight System handbook;
3. CRST Driver Handbook;
4. Maryland CDL Handbook; and
5. Large Truck Crash Causation Study (LTCCS).
The PTDI is not a trucking company. It does not set forth any kind of
standard of care applicable to the duties of a trucking company. The PTDI
apparently is a company that certified truck driving schools. This case does
not involve a truck driving school. In addition, the PTDI does not set forth a
formula for a safe driving distance. Mr. Rugemer will not be permitted to
offer testimony as to an organization that certifies truck driving schools,
which has no bearing on the issues in this case. (Rugemer Dep., pp. 32-36.)
The ABF and CRST handbooks are essentially hearsay. The
companies are two of “thousands and thousands” of motor carriers. Mr.
Rugemer admits that their handbooks are not binding on any of the parties
in this case. The hearsay statements contained therein are not relevant to
the issues in this case. Mr. Rugemer admits that they have nothing to do
with Mr. Taylor. (Rugemer Dep., pp. 36-37.) He did not conduct any kind of
survey to determine what any percentage of the “thousands and thousands”
of trucking companies actually include in their handbooks.
The reliance on the Maryland Commercial Driver’s manual is
similarly misplaced. It does not set forth a standard of care that is binding
on any of the parties in this case. Mr. Rugemer admits that he does not
know if the driver’s manual has the same effect of the Federal Motor Carrier
Safety Act (“FMCSA”). He has no idea if the manual was ever adopted by
the legislature, or what was contained therein at the time that Taylor
obtained his Commercial Driver’s License (“CDL”). He admits that trucking
is regulated by the Federal Government, which promulgates regulations
that are binding on all “motor carriers.” He further admits that there is
nothing contained in the FMCSA regulations (“FMCSRs”) that mandate a
“motor carrier” to train as to what is considered to be a safe following
distance, or that defines what a safe following distance is. Given these
admissions that the binding regulatory authority does not promulgate
regulations or set forth what is considered in the industry to be a safe
following distance, the use of one State’s driver’s manual is misleading. It
should not be before the jury as binding authority. (Rugemer Dep., pp.3741, 44-47.)
As to the LLCCS study, Mr. Rugemer admits that he inaccurately cited
the study, and that it does not stand for the proposition that “51%” of truck
accidents are attributed to drivers following too closely. He admits that he
cannot come up with an accurate figure because he does not have the
necessary data. (Rugemer Dep., pp.70-76; LLCCS study referenced
Mr. Rugemer fails to provide Fed. R. Evid. 702-compliant testimony
“based on sufficient facts or data” to support his opinion that Schmidt
Bakery’s “driver safety and training program was deficient and fell far
below industry standards.” He opines that “Schmidt Baking failed to train
or instruct Mark Taylor in the critical safety concept of safe and proper
Whether Mr. Rugemer believes that Schmidt Bakery should have
trained as to safe and proper following distance, but had no such writings,
does not answer the question. The presence or absence of such writings
does not meet or fail to meet any FMCSA standard. No FMCSR specifies
that an FMCSA-regulated “motor carrier” must have any written (or
unwritten) policy or procedure in place to regulate, reinforce or remind its
drivers who hold CDLs about “safe following distances.” Mr. Rugemer
cannot identify any FMCSR that defines what a “safe following distance” is.
This Court’s review of the record does not find one.
Mr. Rugemer resorts to more personal views as to what he thinks
Schmidt Bakery’s duty should be with respect to “safety programs.” He
offers the opinion that as a United States Department of Transportation
(“USDOT”) motor carrier:
[Schmidt] has a non-delegable duty to have truck safety programs in
place to ensure the safety of their truck fleet as they operate on the
public roadways and reduces the risk of highway accidents, such as
this fatal rear-end crash.
But Mr. Rugemer does not find a “safe following distance” legal standard in
FMCSR §383.5; FMCSR §383.5 contains no such standard. What FMCSR
§383.5 does speak to is Safety Management Controls (“SMCs”). Citing the
SMC definition does not turn Mr. Rugemer’s personal view as to what is
and what is not a “safe following distance” into an industry standard.
Merely citing the SMC definition does not assist the jury. The SMC
definition says nothing about what should be taught to drivers who already
hold a commercial driver’s license.
FMCSR §383.5 does not articulate any “safe following distance”
standard. Mr. Rugemer fails to account for this fact. This is the definition:
[SMCs are] the systems, policies programs, practices, and procedures
used by a motor carrier to ensure compliance with applicable safety
and hazardous materials regulations which ensure the safe movement
of products and passengers through the transportation system, and to
reduce the risk of highway accidents and hazardous materials
incidents resulting in fatalities, injuries, and property damage.
The valid, current CDL that Mr. Taylor held on the date of accident
was Maryland Class A CDL #T-460-585-098-714—a CDL with Tank and
Double/Triples Endorsements. Mr. Rugemer does not dispute that as of
April 17, 2008, Mr. Taylor qualified to drive a truck. He concedes that Mr.
Taylor was not disqualified from holding a CDL or operating a truck under
any FMCSA Rule or FMCSR. There is no dispute that Mr. Taylor
successfully completed a CMV driver’s road test; that he held a driver’s road
test Completion Certificate; or that he presented a valid CDL or road test
Completion Certificate to Schmidt’s Bakery, that Schmidt’s Bakery was
entitled to accept. Mr. Taylor was properly and a fully qualified commercial
truck driver under FMCSR §391.11 before Schmidt’s Bakery hired him in
the Spring of 2008.
For these reasons, as well as those expressed on the record,
IT IS ORDERED this 11th day of January, 2018 that Defendants’
motion in limine to limit the trial testimony of Plaintiffs’ liability expert
Brooks Rugemer is hereby GRANTED.
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
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