Kingsley v. Brenda and Gene Lummus Inc et al
Filing
39
MEMORANDUM OF DECISION AND ORDER denying 32 Motion in Limine; granting in part and denying in part 33 Motion for Summary Judgment. Signed by District Judge Martin Reidinger on 3/6/12. (nll)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv32
JESSICA KINGSLEY, Personal
Representative of the Estate of
Julie L. Smith, a/k/a Julie Lynn
Kingsley Smith,
)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
BRENDA AND GENE LUMMUS, )
INC., d/b/a Ghost Town Harley )
Davidson; GENE LUMMUS
)
HARLEY DAVIDSON, INC., d/b/a )
Ghost Town Harley Davidson; )
and TRL MOTOR SPORTS, LLC, )
f/k/a Ghost Town Harley
)
Davidson,
)
)
Defendants.
)
)
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Defendants’ Motion in Limine
to Exclude Opinion Testimony of Rolin F. Barrett, Jr. [Doc. 32] and the
Defendants’ Motion for Summary Judgment or Partial Summary Judgment
[Doc. 33]. For the reasons that follow, the Motion in Limine is denied; the
Motion for Summary Judgment is denied; and the Motion for Partial Summary
Judgment is granted.
I.
PROCEDURAL BACKGROUND
The Plaintiff Jessica Kingsley, as personal representative of the Estate
of Julie L. Smith a/k/a Julie Lynn Kingsley Smith, brings this action against the
Defendants Brenda & Gene Lummus, Inc. d/b/a Ghost Town Harley Davidson;
Gene Lummus Harley Davidson, Inc. d/b/a Ghost Town Harley Davidson; and
TRL Motor Sports, LLC f/k/a Ghost Town Harley Davidson, alleging claims for
negligence and wanton negligence resulting in the wrongful death of the
Plaintiff’s decedent in a motorcycle accident. [First Supp. Am. Compl., Doc.
26].
The Plaintiff alleges that the decedent’s death was caused by the
improper installation of the motorcycle’s front tire by an employee of Ghost
Town Harley Davidson shortly before the accident.
[Id. at ¶23].
The
Complaint seeks both compensatory and punitive damages. [Id. at ¶¶27, 36,
41].
The Defendants Brenda and Gene Lummus, Inc., Gene Lummus Harley
Davidson, Inc. (now known as Gene and Brenda Lummus, Inc.), and TRL
Motor Sports, LLC move to exclude the testimony of the Plaintiff’s causation
expert, Dr. Rolin F. Barrett, Jr., P.E., pursuant to Rule 702 of the Federal
Rules of Evidence. [Doc. 32]. The Defendants further move for summary
judgment, arguing that without evidence of causation, the Plaintiff cannot
2
maintain her negligence claims. [Doc. 34]. Alternatively, the Defendants
move for partial summary judgment in favor of Defendants Gene Lummus
Harley Davidson, Inc. and TRL Motor Sports, LLC, on the grounds that the
only proper defendant in this case is Brenda and Gene Lummus, Inc. The
Defendants further move for partial summary judgment as to the Plaintiff’s
claim for punitive damages, arguing that there is simply no evidence to
support such a claim. [Id.].
The Plaintiff filed a Response, opposing all of the Defendants’ Motions.
[Doc. 37]. The Defendants have filed a Reply. [Doc. 38]. Having been fully
briefed, this matter is now ripe for disposition.
II.
FACTUAL BACKGROUND
Viewed in the light most favorable to the Plaintiff, the relevant facts are
as follows.
A.
The Accident
On September 4, 2009, John and Julie Smith were riding their HarleyDavidson motorcycle from their home in Marion, South Carolina, to a
motorcycle rally in Cherokee, North Carolina. Along the way, the Smiths
stopped at Ghost Town Harley Davidson (“GTHD”) in Waynesville for
3
replacement of the motorcycle’s front tire. [First Supp. Am. Complaint, Doc.
26 at ¶¶10, 14; Deposition of Adrian Hess (“Hess Dep.”), Doc. 34-1, at 74].
After leaving GTHD, the Smiths drove through Maggie Valley and along
U.S. Highway 19 toward Cherokee. Going west from Maggie Valley, Highway
19 changes from two lanes to three lanes, with two west-bound lanes as the
road climbs toward Soco Gap. The highway stays straight until the scene of
the Smiths’ fatal accident at the beginning of a curve to the right. [Deposition
of Rolin F. Barrett, Jr. (“Barrett Dep.”), Doc. 37-2, at 68-70; Deposition of
Trooper Joseph Henderson (“Henderson Dep.”), Doc. 34-1, at 65-67;
Deposition of Danny Sharp (“Sharp Dep.”), Doc. 34-1, at 18, 39].
Shortly before the accident occurred, Danny Sharp was driving a Ford
Focus owned by his passenger, Martha Sue Catolster, traveling in a westward
direction on Highway 19 toward Cherokee. [Sharp Dep., Doc. 34-1, at 13-14,
15-16]. At the point where Highway 19 becomes three lanes, Sharp noticed
ahead of him two motorcycles positioned to enter the westbound lanes from
an overlook. [Id. at 18]. Sharp stayed in the left (inside) lane in order to allow
the two motorcycles to enter the right (outside) lane. He anticipated that he
would pull into the right lane after passing the two motorcycles. The two
motorcycles, however, accelerated faster than Sharp anticipated and soon
4
passed him on the right. [Id.]. Sharp intended to pull into the right lane
behind the two motorcycles but saw behind him an SUV approaching in the
right lane at a speed fast enough to prevent him from doing so safely. [Id. at
18-19]. As the SUV approached and began to pass him on the right, Sharp
and his passenger saw a third motorcycle following closely behind the SUV.
This was the Smiths’ motorcycle. [Id. at 21-22; Deposition of Martha Catolster
(“Catolster Dep.”), Doc. 34-1, at 22].
After passing Sharp’s car, the SUV and the Smiths’ motorcycle pulled
into the left lane, apparently intending to pass the two motorcycles which were
ahead in the right lane.
Sharp and Catolster saw Mr. Smith lean the
motorcycle to the left to pull into the left lane. The Smiths’ motorcycle was still
leaning to the left when it crossed the double yellow line. [Sharp Dep., Doc.
34-1, at 22-24, 37-46, 48-51; Catolster Dep., Doc. 34-1, at 28]. Mr. Smith hit
his rear brakes and fish-tailed a bit before slamming head-on into an
oncoming Chevrolet driven by Nancy White. [Sharp Dep. at 22-24, 37-46, 4851].
The Smiths were killed instantly in the collision. [NCSHP Investigation
File, Plaintiff’s Ex. 9, Doc. 34-2]. Photographs at the collision site showed the
initial collision between the motorcycle and the Chevrolet occurred between
5
the motorcycle’s front tire and the left front corner of the Chevrolet in the eastbound lane of the highway. [Barrett Report, Doc. 34-2, at 3; Photographs,
Plaintiff’s Ex. 12, Doc. 34-2]. The accident occurred less than one hour after
the tire had been replaced. [Barrett Report, Doc. 34-2, at 9].
B.
The Replacement of the Tire
Hank Long, a GTHD technician, replaced the front tire on the Smiths’
motorcycle on the day of the accident. He graduated from the Motorcycle
Mechanics Institute (MMI) in Phoenix, Arizona in 2008. [Deposition of Hank
Long (“Long Dep.”), Doc. 34-1, at 8-9]. Long received training at MMI on the
proper methods for replacing a motorcycle tire. [Id. at 40]. Additionally, when
he began working at GTHD, he received instruction from the shop foreman
Jason Harden on how to install a tire using the tire changing machine. [Long
Dep., Doc. 37-1, at 31, 61].
Long has no specific memory of working on the Smiths’ motorcycle on
the day of the accident. [Long Dep., Doc. 34-1, at 39-40, 53]. He testified,
however, that the procedure that he followed in changing the Smiths’ tire
involved “the same steps I’ve taken on every tire I’ve ever changed.” [Id. at
40]. Specifically, he testified that he begins a tire replacement with breaking
the bead of the old tire on both sides. This is done with the use of a tire
6
changing machine called a Coats machine. [Id. at 23]. Long testified that
sometimes a hand tool known as a tire spoon is used to place the bead of the
old tire onto the Coats machine. [Id. at 43]. Once the bead on the old tire is
broken and the old tire, inner tube, and rim band are removed from the wheel,
he uses the Coats machine to place the bottom bead 1 of the new tire under
the rim flange. [Id. at 24]. With half of the tire now on the rim, he inserts the
inner tube in the rim and the tire. Long testified that one of the ways he was
trained to install an inner tube into a rim was to fold the inner tube and press
it into the rim, but that it was his preference to install it another way. [Id. at 6162].
Once the inner tube is inserted, it is partially inflated with the valve core
out2 so that he can conduct a visual and tactile inspection to ensure that the
tube is not twisted or pinched. [Id. at 25-26]. Following that inspection, the
tube is deflated and the Coats machine is used to seat the top bead of the tire
under the rim flange. [Id. at 26-27]. Then a nut is installed onto the valve
stem of the tube and the whole tire is removed from the Coats machine. The
1
Long explained that the edge of the tire on the side where the brake rotor is
located is typically referred to as the “top bead,” while the edge of the tire on the nonbrake side is typically referred to as the “bottom bead.” [Long Dep., Doc. 34-1, at 23].
2
With the valve core out, the inner tube will inflate but will not hold air after the air
hose is removed. [Long Dep., Doc. 34-1, at 30].
7
valve core is then installed and the tire is again inflated, which seats the bead
of the tire onto the rim. [Id. at 22, 28-29]. The wheel is then set aside for
three to five minutes before the air pressure is rechecked and the wheel is
reinstalled on the motorcycle. [Id. at 22]. The motorcycle is then taken for a
test drive before being returned to the customer. [Id. at 50-53].3
C.
Plaintiff’s Causation Expert
The Plaintiff retained Dr. Rolin F. Barrett, Jr., P.E. as an expert to testify
regarding causation. Dr. Barrett is licensed as a Professional Engineer in
North Carolina and Florida. [Affidavit of Dr. Rolin F. Barrett, Jr., P.E. (“Barrett
Aff.”), Doc. 37-1, at 1].
He earned a Doctor of Philosophy degree in
Mechanical Engineering from North Carolina State University, a Master of
Science degree in Mechanical Engineering from Louisiana Tech University,
a Bachelor of Science degree in Mechanical Engineering from North Carolina
State University, and a Bachelor of Science degree in Electrical Engineering
from North Carolina State University. [Id. at 2]. He is a member of the
National Society of Professional Engineers, a member and Board Certified
3
Long testified that GTHD technicians use two different test routes: one
approximately ten miles in length and the other approximately one mile in length. The
ten-mile course is used for new motorcycles and for motorcycles that had major work
done, such as motor repair. The one-mile course is used for minor repairs or customer
concerns. Long could not recall which route he utilized to test drive the Smiths’
motorcycle. [Id. at 50-52].
8
Diplomate of the National Academy of Forensic Engineers where he serves
on the Committee on Accident Reconstruction and the Committee on Incident
Evaluation, a member of the American Society of Mechanical Engineers, and
a member of the Society of Automotive Engineers, as well as other
professional organizations. [Id.]. He has conducted researched funded by the
United States Army and United States Navy related to high- and low-speed
impact response of composite structures, quasi-static loading of composite
structures, and examination of failure mechanisms in composite structures
subjected to impacts and quasi-static loading. [Id.]. Dr. Barrett teaches a
senior-level course in automotive engineering at North Carolina State
University.
[Id. at 3].
His consulting engineering practice includes
investigation of motor vehicle accidents using engineering principles. [Id.].
Since May 1986, he has analyzed or contributed to the analysis of more than
1,000 automobile, truck or motorcycle accidents. [Id.]. He has previously
been qualified as an expert witness, and his testimony regarding his analyses
of motor vehicle accidents has been accepted by courts. [Id.].
In preparation of his May 11, 2010 report, Dr. Barrett reviewed the North
Carolina State Highway Patrol (NCSHP) accident report, the statements and
depositions of the witnesses to the accident, and the photographs taken at the
9
scene. Additionally, he examined, measured, and photographed features of
the Smiths’ motorcycle. Dr. Barrett’s examination led him to the following
conclusions:
The head of a spoke was observed to have protruded
beyond the tire’s bead seat and was resting against
the tire’s sidewall near the 7 o’clock position, without
having perforated the tire. This spoke, which passed
around the side of the tire[,] was visible in a NCSHP
photograph. In order for this spoke to have missed
the inner tube and tire as it was forced out of its
original position, the tire and inner tube would have to
be already ... deflected to the side. This deflection
was consistent with the tire attempting to negotiate a
curve to the motorcycle’s right. Large deflections of
tire can result from excessive lateral load or low tire
pressure.
Finally, recall that two cuts were observed in the inner
tube, at about the same distance from the valve stem.
When the inner tube adjacent to the cuts was folded
approximately longitudinally, the cuts were observed
to overlay, and ... no impression consistent with the
head of a spoke was observed on the surface of the
inner tube at either cut. Microscopic examination of
these cuts showed that they appear to have been
created by a tool moving against the inner tube, a
pinch.
It is the opinion of this engineer that the cuts occurred
during the tire mounting process and that the inner
tube may have remained folded after leaving [GTHD].
It is also the opinion of this engineer that the
motorcycle’s front tire pressure was sufficiently low to
reduce the lateral load ability of the front tire in the
10
curve, thereby causing the loss of control and the
subsequent accident.
[Barrett Report, Doc. 34-2, at 9-10].
During his deposition, Dr. Barrett offered four possible mechanisms that
could have cut the inner tube: a screwdriver, a tire changing tool, the Coats
tire changing machine, and folding and pressing the new inner tube against
the motorcycle’s front wheel’s center hub and spokes during the inner tube
installation process. [Barrett Dep., Doc. 37-2, at 78, 82; Affidavit of Rolin F.
Barrett, Jr. (“Barrett Aff.”), Doc. 37-1, at 5]. In Dr. Barrett’s opinion, each of
these mechanisms alone would have been competent to cut the soft rubber
inner tube. [Barrett Dep., Doc. 37-2, at 80; Barrett Aff., Doc. 37-1, at 5]. Dr.
Barrett could not state with any certainty which of these mechanisms cut the
inner tube because he was not present at the tire replacement. He opined,
however, that any of these mechanisms had the means to injure the inner
tube. [Barrett Dep., Doc. 37-2, at 79; Barrett Aff., Doc. 37-1, at 5].
Dr. Barrett formed his opinion that folding and pressing the new inner
tube against the motorcycle’s front wheel’s center hub and spokes during the
inner tube installation process could have damaged the inner tube after
watching a video produced by the Defendant’s expert, which showed an
employee of GTHD folding and then vigorously pressing a new soft rubber
11
inner tube against the front wheel center hub and spokes in order to remove
air from the inner tube to ease its installation. [Barrett Dep., Doc. 37-2, at 7475; Barrett Aff., Doc. 37-1, at 6]. Dr. Barrett noted that because the hub has
sharp edges as manufactured and had acquired small, sharp-edged nicks
during use, the pressing of the inner tube into the hub could have damaged
the inner tube. [Barrett Dep., Doc. 37-2, at 75; Barrett Aff., Doc. 37-1, at 6].
Dr. Barrett further opined that regardless of the mechanism which
caused the damage to the inner tube, if the inner tube wall was not completely
cut through, the inner tube would have held air when inflated, at least
temporarily. [Barrett Dep., Doc. 37-2, at 85-87; Barrett Aff., Doc. 37-1, at 6].
Dr. Barrett opined, however, that as the motorcycle was ridden over the next
few minutes, the partial cut in the inner tube wall would have continued to
open until total failure occurred. [Id.]. Dr. Barrett opined that the sudden
resulting loss of inflation of the front tire would have caused the operator to
lose control of the motorcycle. [Barrett Dep., Doc. 37-2, at 90; Barrett Aff.,
Doc. 37-1, at 6].
III.
DISCUSSION
Because Dr. Barrett’s testimony is essential to the merits of the
Plaintiff’s case, the Court will consider the Defendant’s Motion in Limine first.
12
A.
Defendant’s Motion in Limine
1.
Standard of Review
Although state law controls the substantive tort issue in this diversity
action, the admissibility of expert testimony in this case is governed by federal
law. See Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 476 (4th
Cir. 2005). Rule 702 of the Federal Rules of Evidence provides as follows:
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. The trial judge must act as a gatekeeper, admitting only
that expert testimony which is relevant and reliable. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
With regard to scientific knowledge, the trial court initially must determine
whether the reasoning or methodology used is scientifically valid and is
13
applied properly to the facts at issue in the trial. Id. To aid the Court in this
gatekeeping
role,
the
Supreme
Court
has
identified
several
key
considerations, including whether the expert opinion can be tested; whether
it has been subjected to peer review; the error rate of the methods that the
expert employed; the existence and maintenance of standards used in the
expert’s methods; and whether the expert’s methods are generally accepted
in the scientific community.
Id. at 592-94, 113 S.Ct. 2786; Anderson v.
W estinghouse Savannah River Co., 406 F.3d 248, 261 (4th Cir. 2005). In
weighing these factors, the Court is guided by the following, somewhat
competing, principles:
On the one hand, the court should be mindful that
Rule 702 was intended to liberalize the introduction of
relevant expert evidence. And the court need not
determine that the expert testimony a litigant seeks to
offer into evidence is irrefutable or certainly correct.
As with all other admissible evidence, expert
testimony is subject to being tested by vigorous
cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof. On the
other hand, the court must recognize that due to the
difficulty of evaluating their testimony, expert
witnesses have the potential to be both powerful and
quite misleading.
And given the potential
persuasiveness of expert testimony, proffered
evidence that has a greater potential to mislead than
to enlighten should be excluded.
14
Smith v. Wyeth-Ayerst Labs. Co., 278 F.Supp.2d 684, 690 (W.D.N.C. 2003)
(quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999))
(internal citations and quotation marks omitted).
The objective of Daubert’s gatekeeping requirement is to ensure “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.” Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
The Court has broad discretion in determining whether the Daubert factors
reasonably measure reliability in a given case. Id. at 153, 119 S.Ct. 1167.
2.
Analysis
Dr. Barrett concluded that based on the nature and location of the tears
in the inner tube, it was more probable than not that the tears in the front tire’s
inner tube contributed to the accident. Dr. Barrett identified four possible
mechanisms which could have caused such tears, including the use of a
screwdriver or tire spoon while installing the new tire on the rim; folding and
pressing the new inner tube into the rim; and a pinch in the inner tube caused
by the use of the Coats machine. The Defendants contend that Dr. Barrett’s
testimony regarding these four possible mechanisms is not based on sufficient
15
facts or data because there is no evidence that any of these mechanisms
actually occurred in the installation process. [Doc. 34 at 13-14].
An expert’s opinion must be “based upon sufficient facts or data” in
order to be admissible.
Fed.R.Evid. 702.
“[A]n opinion based on an
inadequate or inaccurate factual foundation cannot be a reliable opinion, no
matter how valid the principles and methods applied or how well-qualified the
expert.” Snoznik v. Jeld-Wen, Inc., No. 1:09cv42, 2010 WL 1924483, at *10
(W.D.N.C. May 12, 2010) (quoting Fernandez v. Spar Tek Indus., Inc., No.
0:06-3253-CMC, 2008 WL 2185395, at *6 (D.S.C. May 23, 2008)).
Regarding Dr. Barrett’s theory that the holes could have been caused
by the use of a tire spoon or a screwdriver during the installation process,
there are sufficient facts in the record to support this theory. According to
Hank Long’s testimony, he ordinarily uses a screwdriver and/or a tire spoon
during the replacement of a tire. Specifically, he testified that he uses a
screwdriver during the removal of the old tire to hold the axle of the wheel in
place while loosening the nut that holds it to the motorcycle. [Long Dep., Doc.
34-1, at 41, 42]. He further testified that he sometimes uses a tire spoon to
assist in removing the old tire from the rim prior to replacement. [Id. at 43].
The Defendants point out that while Long admitted to sometimes using these
16
tools during the process of removing an old tire, he specifically denied using
any tools other than the Coats machine when installing a new tire onto the
rim. [Id. at 42]. Critically, however, Long has no specific memory of changing
the Smiths’ tire on the day of the accident. He could testify only to what he
normally does in the process of replacing a tire. While his description of his
usual practice would indicate that he used neither a screwdriver nor a tire
spoon in the installation of the new tire on the rim, his testimony does not
conclusively exclude the possibility that he may have used one of these tools
that he had on hand in installing the new tire on the Smiths’ motorcycle.
Whether or not he did so will be a factual issue for the jury to decide. For
these reasons, the Court cannot say that Dr. Barrett’s conclusion that the
tears were possibly caused by the use of a screwdriver or other hand tool is
based on insufficient facts or data so as to render such conclusion unreliable.
As for Dr. Barrett’s theory that the holes could have been caused by
folding and pressing the inner tube into the rim, Long testified that this method
of installation was one of the ways which he was trained both at MMI and
GTHD for installing an inner tube, but that it was not his preferred installation
method. [Id. at 61-62]. Again, however, Long has no specific memory of
replacing the Smiths’ tire on the day of the accident. [Id. at 39-40, 53]. Thus,
17
while Long’s usual practice of installing an inner tube would not involve folding
and pressing the inner tube into the rim, the evidence suggests that he was
trained to install inner tubes in this manner, and his testimony does not
conclusively exclude the possibility that he may have folded and pressed the
inner tube into the rim of the Smiths’ motorcycle on the day of the accident.
Again, the jury will have to resolve this factual issue. Dr. Barrett’s opinion
regarding this possible cause shall not be excluded for lack of a sufficient
factual basis.
With respect to the possibility raised by Dr. Barrett that the use of the
Coats machine may have caused the tears, the Defendants argue that this
conclusion is contradicted by the testimony of Plaintiff’s standard of care
witness, Carl Stroud. This contention, however, is without merit. Mr. Stroud
testified that using the Coats machine could in fact cause a pinch in an inner
tube. [Deposition of Carl Stroud (“Stroud Dep.”), Doc. 34-1, at 68]. While he
stated that such a pinch would create just one hole in the inner tube “most of
the time,” [id. at 69, 79], Mr. Stroud’s testimony does not preclude the
possibility that the use of a Coats machine could cause two holes in a inner
tube. Further, while Mr. Stroud testified that any hole created by the Coats
machine would likely become apparent in a brief two-mile test drive, [id. at 70],
18
Mr. Stroud was not questioned about whether a Coats machine could cause
damage to an inner tube wall that could later develop into a tear. Thus, his
testimony also does not preclude the possibility that the Coats machine
caused damage to the inner tube such that tears subsequently developed.
Mr. Stroud’s testimony therefore does not render unreliable Dr. Barrett’s
theory that the Coats machine was a possible cause of the damage to the
inner tube during installation.
Next, the Defendants argue that Dr. Barrett’s testimony is not the
product of reliable principles and methods because he did not conduct any
tests to verify any of his proffered opinions. [Doc. 34 at 14-17]. Daubert,
however, “does not require an expert to perform testing before his opinion is
admissible.
Rather, Daubert requires that the expert’s methodology be
established, scientifically sound, and subject to testing and peer review.”
Tunnell v. Ford Motor Co., 330 F.Supp.2d 707, 725 (W .D. Va. 2004)
(emphasis added); see also Smith, 278 F.Supp.2d at 691 (“An expert must
account for ‘how and why’ he or she reached the challenged opinion.”). Here,
Dr. Barrett thoroughly explained the methodology employed in reaching his
conclusions, including his review of the accident report and witnesses’
statements, as well as his physical examination of the subject tire, inner tube,
19
and wheel assembly of the motorcycle involved in the accident. Dr. Barrett’s
explanation was sufficient to permit others with similar training and experience
to review his opinions and subject them to scientific testing, which is all that
Daubert requires. Of course, the Defendants will be free to cross-examine Dr.
Barrett regarding his failure to conduct any testing to substantiate his theory
of causation in this case. See Daubert, 509 U.S. at 596, 113 S.Ct. 2786
(“Vigorous 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.”). While Dr. Barrett’s lack of
testing may be relevant to the weight attributed to his opinions, it does not
render his opinions inadmissible per se under Daubert.
For the foregoing reasons, the Defendants’ Motion in Limine to exclude
the testimony of Dr. Barrett is denied.
B.
Defendants’ Motion for Summary Judgment
1.
Standard of Review
Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it
“might affect the outcome of the case.” News and Observer Pub. Co. v.
20
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine
dispute” exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A party asserting that a fact cannot be genuinely disputed must support
its assertion with citations to the record. Fed. R. Civ. P. 56(c)(1). “Regardless
of whether he may ultimately be responsible for proof and persuasion, the
party seeking summary judgment bears an initial burden of demonstrating the
absence of a genuine issue of material fact.” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If this showing is made,
the burden then shifts to the non-moving party who must convince the Court
that a triable issue does exist. Id.
A party opposing a properly supported motion for
summary judgment may not rest upon the mere
allegations or denials of his pleadings, but rather must
set forth specific facts showing that there is a genuine
issue for trial. Furthermore, neither unsupported
speculation, nor evidence that is merely colorable or
not significantly probative, will suffice to defeat a
motion for summary judgment; rather, if the adverse
party fails to bring forth facts showing that reasonable
minds could differ on a material point, then,
regardless of any proof or evidentiary requirements
imposed by the substantive law, summary judgment,
if appropriate, shall be entered.
21
Id. (internal citations and quotation marks omitted).
In considering the facts for the purposes of a summary judgment motion,
the Court must view the pleadings and materials presented in the light most
favorable to the nonmoving party and must draw all reasonable inferences in
the nonmoving party’s favor.
Adams v. Trustees of the Univ. of N.C.-
Wilmington, 640 F.3d 550, 556 (4th Cir. 2011).
2.
Analysis
The primary basis for the Defendants’ Motion for Summary Judgment
regarding the Plaintiff’s negligence claims is their argument that the testimony
of Dr. Barrett is inadmissible, thereby leaving the Plaintiff with no forecast of
evidence to establish causation of the decedent’s injuries. For the reasons
set forth above, however, the Court will not exclude Dr. Barrett’s opinions, and
therefore, this basis for the Defendant’s Motion must be rejected.
The
Defendants further argue, however, that even if Dr. Barrett’s opinions are
admissible, his testimony does not present a forecast of evidence sufficient
to suggest a probability that the Defendants’ actions were the cause of Ms.
Smith’s fatal injuries.
Because this case is a diversity action, the Court applies the substantive
law of North Carolina to the Plaintiff’s claims. Erie R.R. Co. v. Tompkins, 304
22
U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In order to establish a
common law negligence action in North Carolina, a plaintiff must establish that
the defendant owed the plaintiff a legal duty, that the defendant breached that
duty, and that the plaintiff’s injury was proximately caused by the breach.
Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892
(2002). “When evidence raises a mere conjecture, surmise and speculation
as to causation, it is insufficient to present a question of causation to the jury.”
Hinson v. Nat’l Starch & Chem. Corp., 99 N.C. App. 198, 202, 392 S.E.2d 657,
659 (1990) (citation and internal quotation marks omitted).
In the present case, Dr. Barrett’s opinions are more than sufficient to to
present a genuine dispute to the jury regarding causation. Dr. Barrett opined
that it is more probable than not that the accident was caused by a sudden
deflation of the front tire, resulting from damage to the inner tube during the
installation process. Dr. Barrett’s opinions regarding causation are far more
than “mere conjecture, surmise [or] speculation.”
See id.
While the
Defendants assert that the holes in the inner tube were created upon impact
or by some outside object impaling the tire, Dr. Barrett testified that he
considered these alternative theories but was able to exclude them as likely
causes of the holes. [See Barrett Dep., Doc. 37-2, at 87-90, 103-04]. Based
23
upon the location of the tears, and his microscopic examination of the tears
themselves, Dr. Barrett concluded that the tears were caused during the
installation process.
The fact that Dr. Barrett was unable to identify the
precise mechanism used during installation which caused the damage does
not render his opinions unduly speculative. Dr. Barrett identified four possible
mechanisms, all of which would have been in the Defendants’ control, and
any one of which could have been used during installation and damaged the
inner tube. It will be for the jury to decide how this tire was replaced and
whether any of the techniques used during the replacement process caused
the damage alleged.
For the foregoing reasons, the Defendants’ Motion for Summary
Judgment is denied.
C.
Defendants’ Motion for Partial Summary Judgment Regarding
Defendants Gene Lummus Harley Davidson, Inc. and TRL
Motor Sports, LLC
The Plaintiff seeks to impose vicarious liability on the Defendants for the
negligence of the GTHD employee who replaced and installed the front tire of
the Smiths’ motorcycle. In her First Supplemented Amended Complaint, the
Plaintiff alleges that Brenda and Gene Lummus, Inc. and Gene Lummus
Harley Davidson, Inc. share common officers, directors, managers and
24
shareholders, and collectively operate and conduct business under the name
GTHD. [Doc. 26 at ¶¶4-6]. The Plaintiff further alleges that the Defendant
TRL Motor Sports, LLC is the successor-in-interest to the business formerly
known as GTHD, and that TRL Motor Sports, LLC and the other Defendants
share common officers, directors, managers, and shareholders and
collectively conduct business and/or are the successors to the business now
or formerly known as GTHD. [Id. at ¶¶38-39]. As such, the Plaintiff alleges,
the Defendants are jointly and severally liable for the decedent’s injuries. [Id.
at ¶41].
Defendants Gene Lummus Harley Davidson, Inc. (now known as Gene
and Brenda Lummus, Inc.)(“G&B”) and TRL Motor Sports, LLC move for
summary judgment with respect to the claims asserted against them, arguing
that Brenda and Gene Lummus, Inc. (“B&G”) was the only entity that ever did
business as GTHD, and therefore is the only proper Defendant in this case.
In support of their Motion, the Defendants submit the Affidavit of Brenda
Lummus. Ms. Lummus is the Vice-President of “G&B” (the entity formerly
known as Gene Lummus Harley Davidson, Inc.) and the President of “B&G”.
[Affidavit of Brenda Lummus (“Lummus Aff.”), Doc. 33-1 at ¶2].
25
Mr. Lummus and Ms. Lummus were the sole shareholders, officers, and
directors of “G&B” and “B&G”. [Id. at ¶3]. Following Mr. Lummus’s death in
2010, Ms. Lummus became the sole shareholder, officer, and director of both
corporations. [Id. at ¶¶2, 3].
Ms. Lummus states in her Affidavit that for several years, “G&B”
operated a Harley Davidson dealership in Swannanoa, North Carolina, known
as Parkway Harley Davidson.
[Id. at ¶4].
Years after Parkway Harley
Davidson opened, Ms. Lummus and her husband formed “B&G” in order to
open a second Harley Davidson dealership in Waynesville, North Carolina,
known as Ghost Town Harley Davidson (“GTHD”). [Id.]. At no time was
GTHD owned, operated, or otherwise controlled by a corporate entity other
than Brenda and Gene Lummus, Inc. (“B&G”). [Id.].
In the spring of 2011, “B&G” stopped doing business as GTHD. [Id. at
¶5]. The GTHD inventory of motorcycles, clothing, and parts was sold to
“G&B”. [Id.]. Subsequently, on May 24, 2011, “G&B” sold its existing tangible
assets and business as a going concern to Asheville Motorcycles, LLC. [Id.].
Before Mr. Lummus’s death in 2010, he and Ms. Lummus were the
owners of the building, fixtures, and equipment at GTHD.
[Id. at ¶6].
Following Mr. Lummus’s death, Ms. Lummus became the sole owner of the
26
building, fixtures, and equipment utilized in the operation of GTHD. [Id.]. After
“B&G” stopped doing business as GTHD, Ms. Lummus began renting the
building, fixtures, and equipment formerly used in the operation of GTHD to
TRL Motor Sports, LLC. [Id. at ¶7]. TRL Motor Sports, LLC never acquired
any of the assets or accepted any of the liabilities of either “B&G” or “G&B”.
[Id.].
The Defendants therefore have presented a forecast of evidence to
show that Parkway Harley Davidson and GTHD were operated by two
separate corporate entities and that only Brenda and Gene Lummus, Inc.
(“B&G”) operated or otherwise did business as GTHD. In response to this
forecast of evidence the Plaintiff only cites to portions of Ms. Lummus’s
deposition testimony in which she testified that Parkway Harley Davidson and
GTHD shared the same comptroller and same employee handbook
[Deposition of Brenda Lummus (“Lummus Dep.”), Doc. 37-1, at 25, 27], and
that she did not know whether the two dealerships shared employees or were
insured together under the same insurance policies [id. at 26, 41]. This scant
evidence of “sharing” between the two dealerships, however, is insufficient to
create a genuine dispute as to whether Gene Lummus Harley Davidson, Inc.
(“G&B”) operated as GTHD or otherwise could be held vicariously liable for
27
the acts of a GTHD employee. Accordingly, the Defendant Gene Lummus
Harley Davidson, Inc. (“G&B”) is entitled to summary judgment as to the
Plaintiff’s claims.
As for TRL Motor Sports, LLC, the Defendants have presented a
forecast of evidence to show that this entity was not a successor-in-interest
to GTHD. It is merely a subsequent lessee of the building and facilities
formerly occupied by “B&G”. The Plaintiff offers no forecast of evidence to the
contrary and thus appears to concede this issue.
Having failed to
demonstrate a genuine dispute as to whether TRL Motor Sports, LLC
operated as GTHD or otherwise could be held vicariously liable for the acts
of a GTHD employee, the Plaintiff’s claims against this entity also must be
dismissed.
For the foregoing reasons, the Defendants’ Motion for Partial Summary
Judgment is granted, and Defendants Gene Lummus Harley Davidson, Inc.
and TRL Motor Sports, LLC are dismissed as parties to this action.
D.
Defendants’ Motion for Partial Summary Judgment Regarding
Plaintiff’s Punitive Damages Claim
Under North Carolina law, punitive damages may be awarded “only if
the claimant proves that the defendant is liable for compensatory damages”
and that an aggravating factor such as fraud, malice, or willful or wanton
28
conduct “was present and related to the injury for which compensatory
damages were awarded.” N.C. Gen.Stat. § 1D–15(a). “‘Willful or wanton
conduct’ means the conscious and intentional disregard of and indifference
to the rights and safety of others, which the defendant knows or should know
is reasonably likely to result in injury, damage, or other harm. ‘Willful or
wanton conduct’ means more than gross negligence.” N.C. Gen. Stat. ¶ 1D5(7). “An act is willful when there is a deliberate purpose not to discharge a
duty, assumed by contract or imposed by law, necessary for the safety of the
person or property of another.” George v. Greyhound Lines, Inc., 708 S.E.2d
201, 205 (N.C. Ct. App. 2011) (quoting Lashlee v. White Consol. Indus., Inc.,
144 N.C. App. 684, 694, 548 S.E.2d 821, 827 (2001)). “A wanton act is an act
done with a wicked purpose or done needlessly, manifesting a reckless
indifference to the rights of others.” George, 708 S.E.2d at 205 (quoting
Lashlee, 144 N.C. App. at 693-94, 548 S.E.2d at 827) (citations and alteration
omitted).
Punitive damages may not be awarded against a party solely on the
basis of vicarious liability for the acts or omission of another. N.C. Gen. Stat.
¶ 1D-15(c). Moreover, in a case involving a corporation, punitive damages
may be awarded only if “the officers, directors, or managers of the corporation
29
participated in or condoned the conduct constituting the aggravating factor
giving rise to punitive damages.” Id.
In support of her claim for punitive damages, the Plaintiff alleges that the
Defendants acted with a conscious and intentional disregard of, and
indifference to, the rights of safety of the decedent by allowing their employee
to install improperly the tire, tube, and other parts on the subject motorcycle
in a way that was likely to cause injury and when they allowed unqualified and
improperly trained employees to perform work in their garage. [First Supp.
Am. Compl., Doc. 26 at ¶¶ 30, 31]. In support of these allegations, however,
the Plaintiff has not presented a forecast of evidence of any willful or wanton
conduct on the part of GTHD employees. Moreover, the Plaintiff has not
presented any forecast of evidence that the officers, directors, or managers
of the Defendants themselves “participated in or condoned” any such willful
or wanton conduct. Accordingly, the Court concludes that the Plaintiff has
failed to produce a forecast of evidence sufficient to support a claim of
punitive damages against the Defendants. The Defendants’ Motion for Partial
Summary Judgment with respect to the Plaintiff’s punitive damages claim is
therefore granted.
30
ORDER
Accordingly, IT IS, THEREFORE ORDERED that the Defendants’
Motion in Limine to Exclude Opinion Testimony of Rolin F. Barrett, Jr. [Doc.
32] is DENIED.
IT IS FURTHER ORDERED that the Defendants’ Motion for Summary
Judgment or Partial Summary Judgment [Doc. 33] is GRANTED IN PART and
DENIED IN PART as follows. The Defendants’ Motion for Partial Summary
Judgment as to Plaintiff’s punitive damages claims is GRANTED, and the
punitive damages claim is DISMISSED. The Defendants’ Motion for Partial
Summary Judgment as to Defendants Gene Lummus Harley Davidson, Inc.
and TRL Motor Sports, LLC is GRANTED, and all of the Plaintiff’s claims
against the Defendants Gene Lummus Harley Davidson, Inc. and TRL Motor
Sports, LLC are hereby DISMISSED. The Defendants’ Motion for Summary
Judgment as to the Plaintiff’s claims of negligence against the Defendant
Brenda and Gene Lummus, Inc. is DENIED.
IT IS SO ORDERED.
Signed: March 6, 2012
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