LaBarre et al v. Werner Enterprises, Inc. et al
MEMORANDUM-DECISION AND ORDER denying 52 Motion for Summary Judgment: The Court hereby ORDERS that Defendants' motion for summary judgment is DENIED; and the Court further ORDERS that Defendants' motion to preclude Plaintiff's ex perts is DENIED; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 8/5/15. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FRANK G. LaBARRE, as Executor
of the Estate of ROSLYN L. LaBARRE,
Deceased, and FRANK G. LaBARRE, individually,
WERNER ENTERPRISES, INC., and
FESTUS KIMOTHO NDUNGU,
O’CONNELL AND ARONOWITZ, P.C.
54 State Street
Albany, New York 12207-2501
Attorneys for Plaintiff
STEPHEN R. COFFEY, ESQ.
CRISTINA D. COMMISSO, ESQ.
SCOTT W. ISEMAN, ESQ.
PAMELA A. NICHOLS, ESQ.
CARTER, CONBOY, CASE, BLACKMORE,
MALONEY & LAIRD, P.C.
20 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Defendants
WILLIAM J. DECAIRE, ESQ.
BRIAN D. CARR, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On August 22, 2012, Plaintiff Frank G. LaBarre commenced this action in the Federal
District Court for the Northern District of New York, pursuant to 42 U.S.C. § 1332. See Dkt. No.
1 at ¶ 11. In the complaint, Plaintiff asserts that Defendants' gross negligence caused the death of
his wife, Roslyn L. LaBarre ("Plaintiff's Decedent"). See id. at ¶¶ 29, 49, 59. Currently before
the Court are Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure and their motion to preclude Plaintiff's experts from testifying pursuant to Rule
702 of the Federal Rules of Evidence. See Dkt. No. 52-14 at 2.
On the morning of December 1, 2011, Plaintiff's Decedent and Defendant Ndungu were
traveling on I-88 near Duanesburg, New York. See Dkt. No. 1 at ¶ 24; see also Dkt. No. 52-13 at
¶¶ 8, 9. At the time of the accident, the weather was clear, it was light outside, and the roadway
was dry. See Dkt. No. 52-13 at ¶ 10.
The accident occurred approximately 0.5 miles east of the Sheldon Road overpass with an
approximate 0.7 mile line of sight. See id. at ¶ 11. Both parties were traveling in the right-hand
lane of the two-lane section of I-88 with Defendant Ndungu as the lead vehicle. See id. at ¶¶ 8, 9.
On the day of the accident, Defendant Ndungu was employed by Defendant Werner
Enterprises and operating a Kenwood tractor trailer. See id. at ¶¶ 5, 8. Plaintiff's Decedent was
driving a green Honda CRV behind Defendant Ndungu before the accident occurred. See id. at ¶
9; see also Dkt. No. 58-22 at ¶ 9.
Non-party witness, Victor Taylor, has stated that he was traveling behind the two parties
at the time of the collision. See Dkt. No. 52-13 at ¶ 12. Mr. Taylor initially stated that Plaintiff's
Decedent was approximately 150 yards in front of him; however, he later agreed that it could
have been 150-200 yards. See id. at ¶ 13; see also Dkt. No. 58-22 at ¶ 13. Thereafter, Mr. Taylor
witnessed Plaintiff's Decedent's CRV drive directly into the back of Defendants' trailer. See Dkt.
No. 52-13. at ¶ 14. Mr. Taylor stated that he did not observe Plaintiff's Decedent brake or change
lanes before colliding with Defendant Ndungu's vehicle. See id. at ¶ 16; see also Dkt. No. 58-22
at ¶ 16. Although Mr. Taylor states that he observed Plaintiff's Decedent collide almost square
with the rear of Defendants' tractor trailer, Plaintiff notes that the police report indicates that
Plaintiff's Decedent steered to the left. See Dkt. No. 52-13 at ¶ 15; see also Dkt. No. 58-22 at ¶
15. Further, Mr. Taylor initially stated that Defendant Ndungu was traveling between 60 and 65
mph and that Plaintiff's Decedent was traveling at approximately 75 to 80 mph. See Dkt. No. 5213 at ¶ 17. However, in his deposition Mr. Taylor stated that he did not "have any idea of the
speed of the truck." Dkt. No. 58-22 at ¶ 17.
Plaintiff alleges that Defendant Ndungu's negligent operation of his tractor trailer caused
Plaintiff's Decedent's death. See Dkt. No. 1 at ¶¶ 29, 49, 59. The "14 hour rule[,]" required by
federal regulation as well as by Defendant Werner's policies, prohibits commercial drivers from
operating a tractor trailer for more than 14 hours without taking a required break. See Dkt. No.
58-22 at ¶¶ 18-20. Jamie Maus, Defendant Werner's Vice President of Safety and Compliance,
stated that at the time of the accident she believed Defendant Ndungu was driving in violation of
the "14 hour rule[.]" See id. at ¶ 21; see also Dkt. 58-14 at 4, 80; Dkt. No. 59-1 at ¶ 21. Further,
a police inspection of the tractor trailer found that the brake lights and flashing lights on
Defendants' tractor trailer were not plugged in. See Dkt. No. 58-22 at ¶ 26. Plaintiff notes that
the lights do not operate when not plugged in. See Dkt. No. 58-22 at ¶ 25. Plaintiff also argues
that Defendant Ndungu was trained by Defendant Werner to inspect the tractor trailers before
driving for light functionality, whereas Defendants only contend that a driver should inspect their
commercial vehicles before driving. See id. at ¶ 27; see also Dkt. No. 59-1 at ¶ 27. Plaintiff
contends that, at the time of the accident, the flashers and brake lights on Defendants' trailer were
not operating. See Dkt. No. 58-22 at ¶ 28. Defendants argue that this presumption is based on a
post-accident inspection. See Dkt. No. 59-1 at ¶ 28.
Finally, Plaintiff contends that Defendant Ndungu's low rate of speed caused the accident.
Between 7:00 a.m. and 7:24 a.m. E.S.T., Defendant Ndungu traveled less than three miles on I88. See Dkt. No. 58-22 at ¶ 29. From 7:17 a.m. until the time of the accident, Defendant Ndungu
traveled 1.5 miles. See id. at ¶ 30. Additionally, Defendant Ndungu used his Qualcomm system
twice within the last four miles, which can only be activated when the tractor trailer is stopped.
See id. at ¶¶ 34-35.
Standard of Review
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court must be satisfied that
the citations to evidence in the record support the movant's assertions. See Giannullo v. City of
N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions
in the motion for summary judgment "would derogate the truth-finding functions of the judicial
process by substituting convenience for facts").
Prima Facie Case of Negligence
Defendants seek summary judgment in this case on the ground that Plaintiff failed to
establish a prima facie case of negligence. "As the moving party seeking summary judgment, the
defendant bears the burden of making a prima facie showing that it neither created the dangerous
condition nor had actual or constructive notice of it as a matter of law." Fairchilds v. J.C. Penney
Corp., No. 3:10-CV-142, 2011 WL 3300071, *3 (N.D.N.Y. Aug. 2, 2011) (citations omitted).
Once the defendant makes out such a showing, "[i]t is then incumbent upon plaintiff[ ] to make an
affirmative evidentiary showing that a genuine issue of fact exist[s]." Maiorano v. Price Chopper
Operating Co., Inc., 221 A.D.2d 698, 699 (3d Dep't 1995) (citation omitted). A showing by the
plaintiff that is based upon "surmise, conjecture, speculation or assertions . . . without probative
value" is insufficient to defeat summary judgment. See id. (citation omitted).
"It is well established that when a driver approaches another vehicle from the rear, he is
bound to maintain a reasonably safe rate of speed, maintain control of his vehicle, and use
reasonable care to avoid colliding with the other vehicle." Barile v. Lazzarini, 222 A.D.2d 635,
637 (2d Dep't 1995) (citation omitted). "Under New York law, a rear-end collision establishes a
prima facie case of liability against the following vehicle, thereby requiring the [driver of the
following vehicle] to rebut the inference of negligence with a non-negligent explanation for the
collision." Mangual v. Pleas, No. 02 CIV. 8311, 2004 WL 736817, *4 (S.D.N.Y. Apr. 6, 2004)
Defendants argue that, assuming Plaintiff's claims are true, as a matter of law they do not
rebut the prima facie case of liability against Plaintiff's Decedent as the following driver. See
Dkt. No. 52-14 at 7. In response, Plaintiff argues that Defendant Ndungu's negligence in driving
at a dangerously low rate of speed, failing to inspect the trailer to determine if the warning lights
were operable, failing to activate four-way hazards or flashing lights, and violating his driving
time requirements all substantially contributed to the accident. See Dkt. No. 58-23 at 9-11. In
support of their motion for summary judgment, Defendants argue that "[t]he driver of the
following vehicle can only overcome the inference of negligence by offering a non-negligent
explanation such as mechanical failure, unavoidable skidding on wet pavement, or sudden stop of
the front vehicle." See Dkt. No. 52-14 at 13. Defendants then conclude that since Plaintiff has
not alleged any of those non-negligent explanations, Plaintiff automatically fails to rebut the
prima facie liability. See id. at 15. However, Defendants fail to note that this list of nonnegligent explanations is not exhaustive. In Mangual v. Pleas, the court stated that evidence of
"any other reasonable explanation" may preclude summary judgment. Mangual, 2004 WL
736817, at *4. In fact, in Mangual, the court found that the following driver's explanation that the
plaintiff's vehicle "suddenly cut into his lane" was sufficient to rebut the inference of negligence
and create an issue of fact precluding summary judgment." Id. (citations omitted). While it is
undisputed that Plaintiff's Decedent's CRV struck Defendants' tractor trailer in the rear, "the key
question is whether [Plaintiff] adequately rebutted the inference of negligence by presenting
sufficient evidence that [Defendant Ndungu's] conduct was negligent and played a part in causing
the collision." See Hurley v. Izzo, 248 A.D.2d 674, 676 (2d Dep't 1998).
Further, Defendants state that the slow speed of the front vehicle in a rear-end collision is
an insufficient non-negligent explanation for the accident. See Dkt. No. 59 at 10. In support,
Defendants cite Prive v. Johnson where plaintiff tractor trailer rear-ended a slow moving tractor
trailer on I-81. See Prive v. Johnson, No. 5:04-CV-1024, 2010 WL 3338810, *4 (N.D.N.Y. Aug.
23, 2010). Despite some similarities, including the slow rate of speed at which the lead vehicle
was traveling, Defendants fail to note that in Prive, the lead driver had his emergency flashers
activated and also "used his CB radio to warn trucks driving behind him that he was entering the
highway and driving slowly with a flat tire." Prive, 2010 WL 3338810, at *3.
Finally, Defendants argue that, even if Defendant Ndungu's hazard or brake lights were
not activated, this would not negate Plaintiff's Decedent's prima facie negligence. See Dkt. No.
52-14 at 9. In support, Defendants cite Lectora v. Gundrum where the plaintiff driver hit a parked
trailer on the side of I-90 and subsequently filed suit noting that the vehicle on the shoulder was
stopped illegally and had no activated warning lights. See Lectora v. Gundrum, 225 A.D.2d 738,
738-39 (2d Dep't 1996). There the court held, "assuming, arguendo, that the defendants' vehicle
was illegally stopped, and that its warning lights were not on, the defendants' conduct cannot be
deemed a proximate cause of this rear-end collision." Id. at 739. It is notable, however, that the
violation in Lectora involved a vehicle stopped illegally on the shoulder of a highway, not in the
middle of a travel lane. See id. In the present case, Plaintiff notes that Plaintiff's Decedent was
moving in a travel lane, absent any traffic congestion, when she came upon a Defendant Ndungu
traveling well below the speed limit without any indication of an unexpectedly slow speed. See
Dkt. No. 58-23 at 7. Considering the relevant case law, the Court finds that Plaintiff has provided
sufficient evidence to raise questions of fact to rebut the inference of negligence on the part of
Sole Proximate Cause
Defendants also argue that Plaintiff's Decedent was the sole proximate cause of the
accident as she failed to maintain a safe distance between her vehicle and the vehicle in front of
her and also failed to take any action to avoid the collision. See Dkt. No. 52-14 at 4-5. "'There
can be more than one proximate cause of an accident' . . . and '[g]enerally, it is for the trier of fact
to determine the issue of proximate cause.'" Theodorou v. Perry, 129 A.D.3d 1056(2d Dep't
2015) (internal citation and other quotation omitted). "However, the issue of proximate cause
may be decided as a matter of law where only one conclusion may be drawn from the established
facts." Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d, 889, 889 (2d Dep't 2011) (citation
omitted). "[W]here there is any doubt, confusion, or difficulty in deciding whether the issue
ought to be decided as a matter of law, the better course is to leave the point for the jury to
decide." White v. Diaz, 49 A.D.3d 134, 139 (1st Dep't 2008) (internal citations omitted).
Plaintiff's experts opine that Defendant Ndungu's unexpectedly slow rate of speed and
lack of warning or brake lights created a situation where Plaintiff's Decedent was unable to
effectively estimate Defendant Ndungu's speed and take action before the collision, thus
eliminating Plaintiff's Decedent as the sole proximate cause. See Dkt. No. 58-23 at 10. In
support, Plaintiff cites Gray v. Delaware Equip. Servs., Inc., where the defendants moved for
summary judgment after they were rear-ended by the plaintiffs on I-88, while the defendants
escorted a crane at an alleged low rate of speed. See Gray v. Delaware Equip. Servs., Inc., 56
A.D.3d 1006, 1006-07 (3d Dep't 2008). There, the court upheld the denial of the defendants'
motion for summary judgment because "a question of fact exist[ed] as to whether the warning and
tail lights on the escort vehicle were adequate and activated to alert other drivers of the vehicle's
slow speed." Id. at 1007. In Gray, the allegation from the plaintiffs that
no warning lights were visible prior to the collision and the tail
lights were very dim . . . was sufficient to create a triable issue of
fact as to whether the escort vehicle was adequately equipped with
warning and tail lights and, if so, whether they were functional and
activated at the time of the accident.
Gray, 56 A.D.3d at 1007. Here, Defendants argue that the foggy weather conditions in Gray
make this case distinguishable. See Dkt. No. 59 at 8-9. However, in the Court's reading of Gray,
it is evident that the Gray court did not base its holding on the foggy weather conditions
("plaintiffs' claim of foggy weather conditions does not provide a sufficient non-negligent
explanation for the accident") but rather on whether the defendants actions were sufficient to alert
other vehicles to their low rate of speed. See Gray, 56 A.D.3d at 1007. Consistent with Gray,
Plaintiff has proffered evidence that Defendant Ndungu had "no operable brake lights to warn
approaching drivers to slow down" and "no operable four-way hazards or flashing lights to warn
approaching drivers that the tractor trailer was traveling slowly." See Dkt. No. 58-23 at 11.
Finally, in Seaton v. Spence, the court held that a lead vehicle in a rear-end collision may
be found negligent when traveling at such a slow speed as to "impede or block the normal and
reasonable movement of traffic, except when reduced speed is necessary for safe operation or
because upon a grade or in compliance with law."1 See Seaton v. Spence, 30 Cal. Rptr. 510, 513
(Cal. App. 3d Dist. 1963). In Seaton, the plaintiffs contended that "even if [they] were negligent
in driving only 10 to 20 miles per hour, [the] negligence was not a contributing or proximate
cause of the accident." Id. The court rejected the plaintiffs' contention, however, and held that
"the question of whether plaintiff's slow driving upon a much traveled main highway constituted
negligence which contributed proximately to the accident was one for the jury." Id. at 515. The
court further noted as follows:
[i]t is well to point out that U.S. Highway 40 at the place of the accident
here involved is a freeway and that it is a matter of common knowledge
California vehicle code section 22400 is almost identical to New York's Vehicle and
Traffic Law §1181(a) which states that "[n]o person shall drive a motor vehicle at such a slow
speed as to impede the normal and reasonable movement of traffic except when reduced speed is
necessary for safe operation or in compliance with law." N.Y. VTL § 1181(a).
that the flow of traffic is somewhat faster on freeways. The concept of
minimum speed laws, comparatively recent in our legislation, was
undoubtedly prompted by a recognition that slow moving vehicles on
freeways constitute a hazard to the flow of traffic.
Seaton, 30 Cal. Rptr. at 513. In Seaton, as here, there was no minimum speed limit in place;
however, a slow moving vehicle on a freeway may still in fact be a proximate cause of a rear-end
collision. See id. Further, the accident in this case occurred on a highway and not on an off-ramp
or slow moving roadway, where stops should be reasonably anticipated. This fact distinguishes
this case from that of Jaycox v. Hardesty and others cited by Defendants. See Jaycox v. Hardesty,
305 A.D.2d 720 (3d Dep't 2003) (holding that a following vehicle that rear-ended a garbage truck
stopped on a residential road established a prima facie case of liability which was not refuted by
the following vehicle's unsubstantiated claims that the truck had no rear lights illuminated).
As such, the Court has determined that Plaintiff has raised a sufficient question of fact as
to whether Defendant Ndungu's negligence was a proximate cause of the accident and, therefore,
summary judgment is denied.
Motions to Preclude Expert Testimony
Defendants argue that Plaintiff's experts should be precluded because "they are unreliable
and lack sufficient foundation." Dkt. No. 52-14 at 18.
1. Legal standards
Pursuant to Rule 702 of the Federal Rules of Evidence, which governs the admissibility of
[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: (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. In reviewing the admissibility of expert testimony, "the district court has a
'gatekeeping' function under Rule 702 — it is charged with 'the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to the task at hand.'" Amorgianos v.
Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993)). The rule set forth in Daubert applies to technical or
other specialized knowledge, as well as scientific knowledge. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141 (1999).
As the Second Circuit has explained,
[i]n fulfilling this gatekeeping role, the trial court should look to the
standards of Rule 401 in analyzing whether proffered expert
testimony is relevant, i.e., whether it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence. Next, the district court must determine whether the
proffered testimony has a sufficiently reliable foundation to permit
it to be considered. In this inquiry, the district court should
consider the indicia of reliability identified in Rule 702, namely, (1)
that the testimony is grounded on sufficient facts or data; (2) that
the testimony is the product of reliable principles and methods; and
(3) that the witness has applied the principles and methods reliably
to the facts of the case. In short, the district court must 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.
Amorgianos, 303 F.3d at 265-66 (internal alterations, quotation marks, and citations omitted).
[t]he Supreme Court has identified a number of factors bearing on
reliability that district courts may consider, such as (1) whether a
theory or technique can be (and has been) tested; (2) whether the
theory or technique has been subjected to peer review and
publication; (3) a technique's known or potential rate of error, and
the existence and maintenance of standards controlling the
technique's operation; and (4) whether a particular technique or
theory has gained general acceptance in the relevant scientific
Id. at 266 (internal quotation marks and citations omitted). However, "[t]hese factors do not
constitute . . . a 'definitive checklist or test,'" and "'[t]he inquiry envisioned by Rule 702 is . . . a
flexible one.'" Id. (quoting Daubert, 509 U.S. at 593-94). The court must also consider the fact
that "experience in conjunction with other knowledge, skill, training or education . . . [may]
provide a sufficient foundation for expert testimony," and "[i]n certain fields, experience is the
predominant, if not sole, basis for a great deal of reliable expert testimony." Fed. R. Evid. 702,
Advisory Committee's Note; see also Kumho Tire, 526 U.S. at 156 ("[N]o one denies that an
expert might draw a conclusion from a set of observations based on extensive and specialized
"In undertaking this flexible inquiry, the district court must focus on the principles and
methodology employed by the expert, without regard to the conclusions the expert has reached or
the district court's belief as to the correctness of those conclusions." Amorgianos, 303 F.3d at 266
(citation omitted). "In deciding whether a step in an expert's analysis is unreliable, the district
court should undertake a rigorous examination of the facts on which the expert relies, the method
by which the expert draws an opinion from those facts, and how the expert applies the facts and
methods to the case at hand." Id. at 267. "A minor flaw in an expert's reasoning or a slight
modification of an otherwise reliable method will not render an expert's opinion per se
inadmissible." Id. "The judge should only exclude the evidence if the flaw is large enough that
the expert lacks good grounds for his or her conclusions." Id. (internal quotation marks and
citation omitted). Accordingly, "gaps or inconsistencies" in an expert's reasoning, or arguments
that an expert's conclusions are wrong, "go to the weight of the evidence, not to its admissibility."
Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001) (citations omitted).
As the courts and Advisory Committee have made clear, "the rejection of expert testimony
is the exception rather than the rule." Fed. R. Evid. 702, Advisory Committee's Note; see also
Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995) ("[B]y loosening the strictures on scientific
evidence . . . , Daubert reinforces the idea that there should be a presumption of admissibility of
evidence"). This presumption "recognizes that our adversary system provides the necessary tools
for challenging reliable, albeit debatable, expert testimony." Amorgianos, 303 F.3d at 267. As
the Supreme Court has noted, "[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.
However, "when an expert opinion is based on data, a methodology, or studies that are
simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the
exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 266. Furthermore, "it
is critical that an expert's analysis be reliable at every step." Id. at 267. Thus, while the court's
focus is on the expert's principles and methodology, "conclusions and methodology are not
entirely distinct from one another." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Accordingly, "[a] court may conclude that there is simply too great an analytical gap between the
data and the opinion proffered," and "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." Id.
2. Plaintiff's Additional Expert Affidavits
First, Defendants contend that Plaintiff's additional affidavits submitted in opposition to
Defendants' motion for summary judgment cannot be considered as they were filed after
Plaintiff's expert disclosure deadline. See Dkt. No. 59 at 2-3. In support, Defendants cite
Prendergast v. Hobart Corp., which states
[t]he Federal Rules require that any expert retained to testify at trial
submit a report setting forth "a complete statement of all opinions
the witness will express and the basis and reasons for them.
Moreover, Rule 37(c)(1) provides that a party who fails to disclose
information required by Rule 26(a), "is not allowed to use that
information . . . to supply evidence on a motion . . . unless the
failure was substantially justified or is harmless.
Prendergast v. Hobart Corp., No. 04-CV-5134, 2010 WL 3199699, *5 (E.D.N.Y. Aug. 12, 2010)
(quoting Fed. R. Civ. P. 37(c)(1)) (internal citations and quotations omitted). "A party must make
these disclosures 'at the times and in the sequence that the court orders.'" United States v. City of
N.Y., 637 F. Supp. 2d 77, 106 (E.D.N.Y. 2009) (quoting Fed. R. Civ. P. 26(a)(2)(C)).
As Defendants note, Plaintiff's expert disclosures were due on April 30, 2014 and any
rebuttal expert disclosures were due on June 27, 2014. See Dkt. No. 48. On July 25, 2014,
discovery closed. See id. Thus, Plaintiff's additional expert affidavits, which were filed after the
close of discovery, will not be considered. To the extent that Plaintiff's additional submissions
have not changed Plaintiff's assertions in their original affidavits, it will not harm Plaintiff for the
Court to solely consider the original and timely filed papers.
3. Dr. Rudolph Mortimer
Defendants argue that the testimony of Plaintiff's expert, Dr. Rudolph Mortimer, should be
precluded as "[it] only draw[s] broad conclusions without sufficient factual support." Dkt. No.
52-14 at 19. In their objection to Dr. Mortimer, Defendants state that "Dr. Mortimer did not
inspect the accident scene, conduct any measurements, or provide any calculations related to his
statements." Id. However, Dr. Mortimer's original affidavit dated April 30, 2014, stated that
although he may not have inspected the accident scene, he based his findings on the police report,
the incident report, the police reconstruction, truck position reports, photos of the accident scene,
and a vehicle examination report by the New York State Police – all of which could have
provided sufficient data for Dr. Mortimer's findings. See Dkt. No. 58-19 at 2. Further,
Defendants argue that Dr. Mortimer "doesn't even offer a conclusion, or explanation, as to why
Ms. LaBarre would have been unable to avoid the collision after perceiving Mr. Ndungu's tractor
trailer." Dkt. No. 52-14 at 20. However, upon review of Dr. Mortimer's declaration, it appears he
directly addressed these concerns. For example, Dr. Mortimer notes that "Ms. LaBarre would not
have been able to perceive the high relative speed between her auto and the semi of 50 mph or 35
mph, respectively, until she was about 456'-381' behind it, at which point there remained only
about 6.2-7.4 seconds to impact." Dkt. No. 58-19 at ¶ 7. Dr. Mortimer goes on to state that,
[o]n recognizing the hazard caused by the truck and her proximity
to it, Ms. LaBarre would have experienced stress, creating
additional delays in determining how to react that together could
have easily consumed 4-5 seconds, or more. Additional time would
be needed for Ms. LaBarre to respond by steering or braking, that
can add another 2-4 seconds to reach maximum input. The SUV
would then need additional time/distance to avoid the truck. Ms.
LaBarre was also negotiating the curves in the road and also had
another vehicle, driven by Bobbi Nelson, closing on her auto from
behind that would have taken up some of her attention, causing
further delay in responding to the semi.
Dkt. No. 58-19 at ¶ 8. Finally, Defendants argue that Dr. Mortimer "fail[ed] to explain how the
lights may have increased the visibility of Mr. Ndungu's trailer and the specific impact that would
have had on Ms. LaBarre's reaction time." Dkt. No. 52-14 at 20. However, Dr. Mortimer states
that as Plaintiff's Decedent was given no warning of Defendant Ndungu's slow moving vehicle
through hazard or flashing lights, she was left to rely solely on her visual estimation of Defendant
Ndungu's speed. See Dkt. No. 58-19 at ¶¶ 2, 7, 9. The Court notes that a trier of fact does not
need expert testimony in order to consider whether the presence of operable hazard lights would
indicate to a driver that a vehicle was moving at a slower rate of speed. This is precisely the kind
of testimony which requires a jury to determine its weight, rather than a question of law regarding
admissibility. The motion to preclude Dr. Mortimer's expert testimony is denied.
4. Kevin Murphy
Defendants also move to preclude Plaintiff's expert, Kevin Murphy, Senior Investigator
with the Town of Amherst Police Department. See Dkt. No. 52-14 at 20. Defendants argue that
Mr. Murphy "fails to provide sufficient data and analysis to support his conclusions." Id.
Although the court may exclude an expert opinion "that is connected to existing data only by the
ipse dixit of the expert," Gen. Elec. Co., 522 U.S. at 146, that is not the case here. First,
Defendants argue that Mr. Murphy "fails to explain specifically how [an air leak] was a proximate
cause of the collision." Dkt. No. 52-14 at 20-21. However, Mr. Murphy's affidavit states that
"[b]y not pulling over to the side of the road immediately when the air leak started, Ndungu was
negligent and in violation of 49 CFR 396.7, which forbids unsafe operation of a motor vehicle
and states that a 'motor vehicle shall not be operated in such a condition as to likely cause an
accident or a breakdown of the vehicle.'" Dkt. No. 52-8 at 60-61. Further, Defendant Ndungu
was ticketed for violating New York State Vehicle and Traffic Law §1181(a) and traveling "at
such a slow speed as to impede the normal and reasonable movement of traffic."2 See id. at 50;
see also N.Y. VTL § 1181(a). As previously mentioned in Seaton, a lead vehicle traveling at a
Defendants note that Defendant Ndungu was not convicted of this violation. See Dkt.
No. 59 at 4. However, they fail to cite to any supporting documents to verify this assertion.
dangerously slow speed may in fact be a proximate cause of a rear end collision. See Seaton, 30
Cal. Rptr. at 513.
Additionally, Defendants note that Mr. Murphy "offered no analysis regarding how the
flashers would impact the trailer's visibility, what impact it would have on Ms. LaBarre's
awareness of the tractor trailer's speed, and whether the flashers would have alerted Ms. LaBarre's
perception and actions." Dkt. No. 52-14 at 21. The Court notes that, as with Defendants'
arguments regarding Dr. Mortimer's testimony, the jury does not need to be presented with expert
testimony to consider if and/or how flashers would impact the tractor trailer's visibility and a
following driver's awareness of that vehicle since such information is within their common
Finally, Defendants cite Hersman v. Hadley and Bisceglia v. IBM, noting that "[Mr.
Murphy] essentially offers a 'but for' opinion that if Mr. Ndungu was not on the roadway, the
accident wouldn't have happened. Such 'but for' opinions are routinely rejected in New York
Courts." See id. (citing Bisceglia v. IBM, 287 A.D.2d 674, 675 (2d Dep't 2001); see also
Hersman v. Hadley, 235 A.D.2d 714, 718 (3d Dep't 1997)). However, the defendants in both
Hersman and Bisceglia were third parties who owned the property where the accidents occurred
and were not present or involved in the vehicle collisions. See Bisceglia, 287 A.D.2d at 675; see
also Hersman, 235 A.D.2d at 715. Certainly the court's rejection of "but for" opinions does not
extend to the alleged negligent actions of one of the two vehicles involved in a collision.
Accordingly, the Court denies Defendants' motion to preclude Mr. Murphy's testimony.
5. Sulev Oun
Finally, Defendants move to preclude Plaintiff's expert, Sulev Oun, owner of O&K Truck
Repairs, Ltd. See Dkt. No. 52-14 at 21. Similar to the arguments to preclude Mr. Murphy's
testimony, Defendants argue that "Mr. Oun's conclusions lack any evidence as to how the
purported air leak and flashers were a proximate cause of the accident." Dkt. No. 52-14 at 22.
Defendants argue that "even if Mr. Ndungu was in violation of trucking rules, it was not a
proximate cause of the accident and merely would have furnished an occasion for the occurrence
of the event." Id. As noted above, these arguments do not go to the admissibility of the evidence,
but instead to their weight and are therefore within the purview of the trier of fact.
Accordingly, the Court denies Defendants' motion to preclude Mr. Oun's testimony.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' motion for summary judgment is DENIED; and the Court
ORDERS that Defendants' motion to preclude Plaintiff's experts is DENIED; and the
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 5, 2015
Albany, New York
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