Ferrell et al v. BGF Global LLC et al

Filing 142

ORDER granting in part and denying in part 104 Defendants' Motion to Strike(Daubert), Motion in Limine and Brief in Support as to Plaintiff's Expert Larry Cole. Signed by Honorable Timothy D. DeGiusti on 2/13/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TRUDY FERRELL, individually and
as personal representative of the
ESTATE OF GREGORY FERRELL,
deceased,
Plaintiff,
v.
BGF GLOBAL, LLC, et al.,
Defendants.

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Case No. CIV-15-404-D

ORDER
Before the Court is Defendants’ Motion to Strike (Daubert), Motion in Limine
and Brief in Support as to Plaintiff’s Expert Larry Cole [Doc. No. 104]. Plaintiff has
filed her responses in opposition [Doc. Nos. 117, 119], and Defendants have replied
[Doc. Nos. 123, 124]. The matter is fully briefed and at issue.
Rule 702 of the Federal Rules of Evidence imposes upon the Court an
important “gate-keeping” function with regard to the admissibility of expert
opinions. It provides:
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;

(d)

and
the expert has reliably applied the principles and methods to the
facts of the case.

Fed. R. Evid. 702. In considering whether an expert’s opinion is admissible, the
Court performs a two-step analysis. First, the Court determines whether the expert
is qualified by knowledge, skill, experience, training or education to render the
opinion that the expert offers. Second, if the expert is so qualified, the Court must
decide whether the expert’s opinion is reliable under the principles set forth in the
seminal cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and would assist
the fact finder. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir.
2006); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.
2001). “If expert testimony is not reliable under Daubert/Kumho, it is not admissible
under Rule 702.” James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1215
n. 1 (10th Cir. 2011).
Courts have broad discretion in determining the admissibility of expert
testimony. Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395, 1397 (10th Cir.
1997). A district court also has broad discretion to decide “how to assess an expert’s
reliability, including what procedures to utilize in making that assessment, as well
as in making the ultimate determination of reliability.” Dodge v. Cotter Corp., 328

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F.3d 1212, 1223 (10th Cir. 2003) (citing Kumho Tire, 526 U.S. at 152; United States
v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000)).
BACKGROUND
This action stems from an automobile accident in which Plaintiff’s husband,
Gregory, was killed when his car collided with a semi-truck driven by Defendant
Lawrance Dildine. At the time of the accident, Dildine was employed as a truck
driver for Defendant BGF Global, LLC (BGF). BGF has stipulated Dildine was
acting within the scope of his employment when the accident occurred. In support
of her claims against BGF and Dildine, Plaintiff retained Larry Cole as an expert
witness. Mr. Cole is president of Trucking Experts, Inc. He has provided expert
testimony in trucking cases approximately thirty times since 2012 and has worked
in the trucking industry since 1984. In addition, Mr. Cole has held numerous
positions relating to safety and compliance. He has been certified as a driving
instructor for the State of Arkansas and for sleep deprivation/fatigue awareness
training.
For purposes of the instant Motion, Defendants do not question Cole’s
qualifications as an expert regarding general trucking issues. Defendants, however,
object to the opinions he has reached in his April 5, 2017 expert report (the “Cole
Report”) regarding Defendants’ actions, and any opinions concerning human factors

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such as perception, reaction and driver fatigue.1 Defendants request that Cole be
stricken as an expert witness, or alternatively, that an order in limine issue with
respect to his proposed testimony.
In summary, Cole states the following opinions regarding Dildine:
1)

Pursuant to federal regulations, after Dildine previously
tested positive for marijuana (while employed for another
company), he had a duty to complete a Substance Abuse
Professional evaluation;

2)

Dildine had a duty to comply with Federal Motor Carrier
Safety Regulations (FMCSR) regarding hours of service,
and, at the time of the accident Dildine exceeded the
prescribed seventy hour time cap;

3)

Dildine had a duty to follow trucking industry standards to
scan far enough ahead to be able to react safely to
approaching situations;

4)

Dildine had a duty to look for hazards prior to approaching
the intersection;

5)

Dildine had a duty to operate the semi-truck in a manner
as to eliminate known distractions, such as talking on the
telephone; and

6)

Dildine had a duty to know the speed he was traveling
immediately prior to approaching the intersection;

Cole Report at 46-47 [Doc. No. 104-1]. Cole also sets forth certain opinions
regarding what he describes as BGF’s “questionable business practices.” Id. at 48.

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Plaintiffs state that Cole will not provide any testimony that would require a human
factors background or analysis.
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DISCUSSION
I
Upon review of Cole’s report, and guided by the standards set forth above,
the Court finds that despite his experience and qualifications in the trucking industry,
many of his opinions are inadmissible because they do not assist the trier of fact to
understand the evidence or to determine a fact in issue in this case. See Thompson v.
State Farm Fire and Cas. Co., 34 F.3d 932, 941 (10th Cir. 1994) (noting the
“touchstone” of admissibility under Rule 702 is helpfulness to the trier of fact)
(citing Werth v. Makita Elec. Works, Ltd., 950 F.2d 643, 648 (10th Cir. 1991)).
Determining whether an expert’s testimony will help the trier of fact requires the
Court to consider the testimony’s relevance, jurors’ common knowledge and
experience, and whether the testimony may usurp the jury’s primary role as the
evaluator of evidence. United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th
Cir. 2006).
With respect to Opinion No. 1, Plaintiff concedes that the admissibility of this
opinion was contingent upon the Court’s ruling on her Motion for Reconsideration
as to her negligent entrustment claim. Pl. Resp. at 14. The Court has denied that
motion [Doc. No. 136], rendering the aforementioned opinion moot and irrelevant.
Opinion Nos. 3-6 are inadmissible because they do not require specialized
knowledge or expertise and are not helpful to the trier of fact. Cole’s opinions that
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Dildine had a duty to: (1) scan far enough ahead in order to safely react to
approaching threats; (2) look for hazards prior to approaching the intersection; (3)
operate the semi-truck in a safe manner; and (4) know the speed he was traveling
immediately prior to approaching the intersection, are obvious to a lay person.
“[W]here as here expert testimony is offered on an issue that a jury is capable of
assessing for itself, it is plainly within the trial court’s discretion to rule that
testimony inadmissible because it would not even marginally ‘assist the trier of
fact.’” Thompson, 34 F.3d at 941. Because no specialized knowledge is needed for
these opinions, expert testimony regarding them would not assist the jury.
Except where otherwise stated in this Order, the Court does find Cole’s
testimony with respect to industry regulations—as reflected in Opinion No. 2—
would be helpful to a trier of fact. Courts typically allow expert testimony regarding
the customs, standards, and practices in a given industry. To this end, courts have
allowed expert testimony regarding the standards and practices in the trucking
industry. See, e.g., Kucharski v. Orbis Corp., No. 14-cv-5574, 2017 WL 1806581,
at *4 (N.D. Ill. May 5, 2017) (collecting cases); Brown v. Cooper, No. 11-CV-93-F,
2012 WL 8897779, at *4 (D. Wyo. Nov. 8, 2012) (admitting expert testimony
“concerning standards and practices in the commercial truck driving industry.”).2

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As noted in Kucharski, however, Cole may not give his opinion as to whether
Dildine violated any applicable regulation. See id. at *6, citing Nicholson v. McCabe,
No. 02-1107, 2003 WL 25676476, at *1 n. 2 (N.D. Ala. July 18, 2003) (precluding
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Thus, to the extent Cole intends to offer testimony as to the relevant standards,
practices, and customs in the commercial truck driving industry, his testimony is
admissible.
II
In light of the Court’s ruling permitting Cole’s testimony (subject to the
foregoing limitations), Defendants alternatively seek an order in limine restricting
his testimony in several respects. Although motions in limine are not formally
recognized under the Federal Rules, district courts have long recognized the
potential utility of pretrial rulings under the courts’ inherent powers to manage the
course of trial proceedings. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). “A
motion in limine presents the trial court with the opportunity ‘to rule in advance of
trial on the relevance of certain forecasted evidence, as to issues that are definitely
set for trial, without lengthy argument at, or interruption of, the trial.’” Wilkins v.
Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007) (quoting Palmieri v.
Defaria, 88 F.3d 136, 141 (2nd Cir. 1996)).
Although such pretrial rulings can save time and avoid interruptions at trial,
“a court is almost always better situated during the actual trial to assess the value
and utility of evidence. Consequently, a court should reserve its rulings for those

expert testimony that defendant violated the FMCSR but finding the FMCSR itself
admissible as safety standards relevant to the standard of care in the industry).
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instances when the evidence plainly is ‘inadmissible on all potential grounds’ . . .
and it should typically defer rulings on relevancy and unfair prejudice objections
until trial when the factual context is developed[.]” Id. (citations omitted);
Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993)
(“Unless evidence meets this high standard, evidentiary rulings should be deferred
until trial so that questions of foundation, relevancy and potential prejudice may be
resolved in proper context.”). Some in limine rulings, like those involving balancing
under Rule 403, are necessarily preliminary because the required balancing may be
reassessed as the evidence actually comes in. Thus, a court’s in limine rulings are
subject to change as the case unfolds or at its discretion. Luce, 469 U.S. at 41.
Trucking Experts, Inc.
Cole’s company is called Trucking Experts Inc. Defendants state that all
references to this name should be excluded since reference to the term “experts” may
improperly bolster his testimony. The Court finds this argument is without merit.
First, Cole is being called as an expert in this case. More importantly, the jury will
be instructed that it is completely free to accept or reject an expert’s testimony, and
to evaluate the weight given such testimony in light of the reasons the expert supplies
for his opinion. See 3 O’MALLEY, GRENIG & LEE, Federal Jury Practice and
Instructions § 104.40 (6th ed. 2011); accord Tenth Circuit Pattern Jury Instructions
(Criminal) No. 1.17; see also Utility Trailer Sales of Kansas City, Inc. v. MAC
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Trailer Mfg., Inc., 267 F.R.D. 368, 370 (D. Kan. 2010) (“The weight and credibility
of expert testimony are for the trier of fact to determine.”) (citations omitted).
Defendants’ Motion is DENIED on this issue.
Credibility
Defendants seek to preclude Cole from offering any opinions about a witness
or party’s veracity. Plaintiff responds that Cole can demonstrate irregularities in
Dildine’s driver logs and should be permitted to testify that truck drivers falsify their
logs in order to save time and maximize profits. Credibility is not a proper subject
for expert testimony, since the jury does not need an expert to tell it whom to believe
and such testimony may unduly influence the jury’s perspective. United States v.
Hill, 749 F.3d 1250, 1260 (10th Cir. 2014). Defendant’s Motion on this issue is
GRANTED IN PART. Cole’s blanket statement that truck drivers falsify their
records would be unfairly prejudicial to Dildine and is thus impermissible under
Rule 403, Federal Rules of Evidence. However, Plaintiff should be given the
opportunity to impeach Dildine’s credibility should an evidentiary basis exist.
Ruling on Cole’s statements about Dildine’s driver logs is therefore DEFERRED
until the record is more fully developed.
“Reasonable Degree of Professional Certainty”
Defendants object to Cole’s use of the phrase “reasonable degree of
professional certainty” in his report, and move to exclude any recitation of the term
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at trial. As stated above, the jury will be instructed that it is completely free to accept
or reject an expert’s testimony, and to evaluate the weight given such testimony in
light of the reasons the expert supplies for his opinion. Defendants’ Motion on this
issue is DENIED.
Standard of Care
Defendants next object to any evidence that suggests professional truck
drivers must adhere to a higher standard of care when driving. Count One of
Plaintiff’s complaint alleges Dildine was negligent in causing the accident. In
Oklahoma, negligence is the failure to exercise ordinary care, which is “that degree
of care which ordinarily prudent persons engaged in the same kind of business
usually exercise under similar circumstances.” Martin v. Griffin Television, Inc.,
1976 OK 13, ¶ 23, 549 P.2d 86, 92. Thus, although Oklahoma does not subject
Dildine to a “heightened” standard of care simply because he is a licensed
professional truck driver, the use of the phrase “engaged in the same kind of
business” takes his profession into account. For Dildine to be found negligent, he
must have failed to use ordinary care—meaning the degree of care which an
ordinarily prudent person engaged in professional truck driving would have
exercised when confronted with the conditions leading up to the accident. The Court
can avoid any prejudice by instructing the jury as to the proper standard of care.
Defendants’ Motion on this issue is DENIED.
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BGF Global
As noted supra, the Cole Report references BGF’s alleged “questionable
business practices.” Defendants object to this testimony, and other proffered
testimony regarding any standard of care or alleged negligence on the part of BGF.
Plaintiff concedes that the admissibility of this testimony was contingent upon the
Court’s ruling on her Motion for Reconsideration as to her negligent entrustment
claim. The Court has denied that motion [Doc. No. 136], rendering the
aforementioned testimony moot and irrelevant. Defendants’ Motion on this issue is
GRANTED.
Witnesses’ Statements Regarding the Accident
Defendants object to any testimony by Cole that attempts to recite an
eyewitness statement regarding the accident. In light of the factual dispute
concerning the witness’ statements and their relevance to Cole’s opinions, ruling on
this issue is DEFERRED until further development of the record.
The Decedent and Dildine’s Actions Prior to the Accident
Plaintiff contends that according to industry regulations, Dildine was required
to stop when he reached seventy (70) hours of on-duty time and he failed to do so.
Plaintiff further contends that had Dildine stopped when he reached the prescribed
deadline, “this crash would have not occurred.” Pl. Resp. at 11 [Doc. No. 117]. As
stated, although Cole may offer testimony as to the standards, practices, and customs
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in the commercial truck driving industry, he may not offer testimony on whether
Dildine violated such regulations, and was thereby culpable or negligent.
Defendants’ Motion on this issue is GRANTED.
Safer Alternatives
The dispute surrounding this issue is Cole’s testimony as to what a reasonable
driver would have done in similar circumstances. Again, although Cole may offer
testimony as to the standards, practices, and customs in the commercial truck driving
industry, he may not offer testimony on whether Dildine violated such regulations
and was thereby culpable or negligent. Nonetheless, the Court can avoid any
prejudice regarding this subject by instructing the jury as to the proper standard of
care. Defendants’ Motion on this issue is DENIED.
Violation of Motor Carrier Regulations
Defendants object to any testimony that alleges Dildine violated motor carrier
regulations. The Court’s aforementioned rulings regarding this issue apply equally
here, and Defendants’ Motion is GRANTED as set forth herein regarding specific
areas of expected testimony.
Dildine’s Use of Cellular Phone
Defendants object to Cole’s proposed testimony that research indicates use of
a cell phone “saps the brain of 39% of the energy it would ordinarily devote to safe
driving.” Dildine’s alleged use of his phone is certainly relevant, and Cole has held
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numerous positions relating to safety and compliance. Given the factual dispute
regarding Dildine’s actions, ruling on this issue is DEFERRED until the record is
more fully developed.
Opinions of Ron Blevins
Defendants contend that Cole’s comments on any opinions expressed by Ron
Blevins, Plaintiff’s accident reconstructionist, is inappropriate and objects to any
testimony relating the same. Plaintiff concedes that she does not intend to seek
testimony from Cole regarding Blevins’ opinions; thus, Defendants’ Motion on this
issue is DENIED as moot.
Cause of Death
Defendants seek to preclude Cole from testifying as to the Decedent’s cause
of death. Plaintiff states she does not intend to do so; thus, Defendants’ Motion on
this issue is DENIED as moot.
Positive Drug Tests
Defendants object to Cole’s reference to an earlier incident in which Dildine
tested positive for marijuana. Plaintiff concedes that the admissibility of this
testimony was contingent upon the Court’s ruling on her Motion for Reconsideration
as to her negligent entrustment claim. The Court has denied that motion [Doc. No.
136], rendering the aforementioned testimony moot and irrelevant. Defendants’
Motion on this issue is GRANTED.
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BGF Global’s Safety Rating
Plaintiff concedes that the admissibility of this testimony was contingent upon
the Court’s ruling on her Motion for Reconsideration as to her negligent entrustment
claim. The Court has denied that motion [Doc. No. 136], rendering the
aforementioned testimony moot and irrelevant. Defendants’ Motion on this issue is
GRANTED.
Dildine’s Condition at Time of the Accident
Defendants seek to preclude any testimony by Cole that indicates Dildine was
fatigued at the time of the accident. Plaintiff states she does not intend to elicit such
testimony; rather, she seeks to establish that Dildine’s conduct was not in conformity
with industry regulations and practice. As previously stated, Cole may offer
testimony as to the standards, practices, and customs in the commercial truck driving
industry, he may not offer testimony on whether Dildine was culpable or negligent
as a result of a failure to comply with such standards or regulations. Moreover, the
jury will be instructed on the proper standard of care. Defendants’ Motion on this
issue is DENIED.
Falsifying Driving Logs
Cole’s report comments that truck drivers falsify their logs to maximize profit;
Defendants assert that any such testimony should be excluded at trial. The Court’s

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foregoing ruling regarding this subject applies here, and Defendants’ Motion is
GRANTED IN PART.
Punitive Damages
Defendants seek to exclude any testimony that suggests Defendants’ actions
went beyond mere negligence and were reckless. Cole will not be allowed to opine
that Defendants’ conduct amounts to any particular degree of culpability, or satisfies
the legal requirements for the imposition of punitive damages. The Motion is
GRANTED in this regard.
CONCLUSION
Defendants’ Motion to Strike (Daubert), Motion in Limine and Brief in
Support as to Plaintiff’s Expert Larry Cole [Doc. No. 104] is GRANTED IN PART
and DENIED IN PART as set forth herein. With respect to any reserved ruling, the
Court cautions counsel to approach the bench and seek a ruling before eliciting any
challenged evidence or testimony.
IT IS SO ORDERED this 13th day of February 2018.

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