Lofgren v. Polaris Industries Inc.

Filing 199

MEMORANDUM OPINION AND ORDER OF THE COURT. The Court DENIES Defendant's Motion for Certificate of Appealability by Polaris Industries Inc. 194 . Signed by District Judge Eli J. Richardson on 3/16/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHRISTOPHER LARS LOFGREN,
Plaintiff,
v.
POLARIS INDUSTRIES INC.,

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NO. 3:16-cv-02811
JUDGE RICHARDSON

Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion for Certification under 28 U.S.C. §
1292(b) (Doc. No. 194, “Motion”). Via the Motion, Defendant asks the Court to amend its prior
order (Doc. No. 193, “Order”) that denied Defendant’s “Motion to Dismiss Pursuant to Rule
12(b)(1)” (Doc. No. 165, “Motion to Dismiss”) to certify the Order for interlocutory appeal to the
Sixth Circuit. Plaintiff has responded. (Doc. No. 197). Defendant has replied. (Doc. No. 198). The
Motion is ripe for review.
For the reasons discussed herein, the Court will deny the Motion.
BACKGROUND AND PROCEDURAL HISTORY1
On June 30, 2015, Plaintiff, a West Point cadet in training with the United States Army at
Fort Campbell in Tennessee, was involved in an accident while operating a MRZR-4 Lightweight

The facts in this section are taken essentially verbatim from the Court’s Memorandum Opinion
accompanying the Order. (Doc. No. 192 at 1-2). As explained that Memorandum Opinion, most
of the facts appear to be undisputed, but the Court found that even if it accepted all the facts in
favor of Defendant the political question doctrine would not apply. (Id. at 192 n. 2). The Court has
included them here for convenience. U.S. ex rel. Elliott v. Brickman Grp. Ltd., LLC, 845 F. Supp.
2d 858, 860 (S.D. Ohio 2012). The Court did not necessarily accept the facts as true in ruling on
its Motion to Dismiss, as the Court faced a 12(b)(1) factual challenge. (Doc. No. 192 at 1, 4-6).
1

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Tactical All-Terrain Vehicle (“MRZR”). (Doc. No. 180 ¶ 1).2 On the day of the accident, Plaintiff
began vehicle “familiarization” on the sniper range following basic driver training. (Id. at ¶ 56).
The sniper range was used for training because the trails normally used were temporarily closed.
(Id. at ¶ 57). The sniper range is over 1,000 feet long and contains large dirt berms at 100-meter
intervals. (Id. at ¶ 3). The tops of the berms are roughly level, but the ground slopes downwards,
causing variance in the heights of the berms. (Id. at ¶ 4).
During the familiarization process, Chief Warrant Officer Fuchs drove a lap around the
sniper range with Plaintiff and Cadet Truax as passengers, heading north along a gravel path to the
top of the range, before turning south and carefully navigating the berms. (Id. at ¶ 58). During this
drive, Fuchs never caused the MRZR’s wheels to leave the ground, and he did not travel over the
speed of around 25 to 30 miles per hour. (Id. at ¶ 59; Doc. No. 186 ¶ 129). Fuchs then exited the
MRZR, allowed Plaintiff to take over as the driver, and told Plaintiff to “take it easy.” (Doc. No.
180 at ¶ 60). Cadet Truax moved to occupy the front-passenger seat. (Id. at ¶ 61).
After taking over the driver’s role, Plaintiff drove north, made a U-turn beyond the 200meter berm, and then came to a stop. (Id. at ¶ 63). Plaintiff accelerated, the MRZR lost contact
with the ground, and when it landed both seat bases had broken in a similar location.3 (Id. at ¶¶ 64,

2

The Court notes that most of the documents in this case were filed, and remain, under seal. The
sealing shall be deemed lifted by virtue of this memorandum opinion only to the extent that
particular information therein has been referred to herein.
3

Plaintiff and Defendant dispute how the accident occurred. Defendant claims that Plaintiff
accelerated to 40 miles per hour and launched the MRZR into the air, causing all four wheels to
leave the ground. (Doc. No. 64 ¶ 64, 65). Plaintiff disputes that his speed reached 40 miles per
hour and characterizes the vehicle leaving the ground as “inadvertent[ ].” (Id.). Regardless of the
exact disputed circumstances, it is undisputed that the MRZR left the ground and the seat bases
were thereafter broken in similar locations.
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65). As a result of the accident, Plaintiff suffered a spinal injury and is a paraplegic. (Doc. No. 1
at 1). Cadet Truax, who was in the MRZR with Plaintiff, was uninjured. (Doc. No. 180 at ¶ 8).
Plaintiff’s Complaint pleads counts of 1) negligence, 2) strict liability, 3) breach of
warranty, and 4) a constitutional challenge to Tennessee laws limiting punitive damages. (Doc.
No. 1). Plaintiff requests relief in the form of compensatory and punitive damages. (Id. at 26).
In the Order, which denied Defendant’s Motion to Dismiss under 12(b)(1) asserting the
applicability of the political question doctrine, the Court found that it had subject matter
jurisdiction over the dispute and that it was not deprived of jurisdiction by the political question
doctrine. (Doc. No. 193). Via the Motion, Defendant now asks the Court to certify the Order for
interlocutory appeal to the Sixth Circuit pursuant to 28 U.S.C. §1292(b).
LEGAL STANDARD
The relevant statute provides that an interlocutory appeal is appropriate when “a district
judge . . . shall be of the opinion that such order [1] involves a controlling question of law [2] as
to which there is substantial ground for difference of opinion and [3] that an immediate appeal
from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. §
1292. “Review under § 1292(b) is granted sparingly and only in exceptional cases.” In re City of
Memphis, 293 F.3d 345, 349 (6th Cir. 2002). “The party seeking an interlocutory appeal has the
burden of showing exceptional circumstances exist warranting an interlocutory appeal.” Gieringer
v. Cincinnati Ins. Cos., No. 3:08-CV-267, 2010 WL 2572054, at *2 (E.D. Tenn. June 18, 2010).
“[D]istrict court judges have broad discretion to deny certification even where the statutory criteria
are met.” Wang v. Gen. Motors, LLC, No. CV 18-10347, 2019 WL 1950185, at *1 (E.D. Mich.
May 2, 2019) (quoting Century Pac., Inc. v. Hilton Hotels Corp., 574 F. Supp. 2d 369, 370
(S.D.N.Y. 2008)).

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DISCUSSION
In its Motion, Defendant requests that the Court amend its previous Order denying the
Motion to Dismiss and certify the following question for appeal: “Whether the political question
doctrine deprives the Court of subject-matter jurisdiction because, at trial, the jury will need to
evaluate the United States Army’s decisions regarding how to train and supervise military
personnel when determining whether to allocate fault to the Army.” (Doc. No. 195 at 2).4
Defendant argues that all three requirements of 28 U.S.C. § 1292(b) are met in this case. (Id.).
Plaintiff counters that none of the statutory requirements are met in this case. (Doc. No. 197 at 6).5
A. Controlling Question of Law
“As many cases recognize, there are actually two requirements within what this Court (and
most others) has labeled as § 1292(b)’s first element: (1) The question involved must be one of
law; and (2) It must be controlling.” U.S. ex rel. Elliott v. Brickman Grp. Ltd., LLC, 845 F. Supp.
2d 858, 865 (S.D. Ohio 2012) (cleaned up and citation omitted). “The Sixth Circuit has . . . set a
low bar for a determination that a question of law is ‘controlling’ in the context of a motion for
certification under § 1292(b).” Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 875–76 (E.D.
Mich. 2012). “A legal issue is controlling if it could materially affect the outcome of the case. A

To the extent that Defendant’s statement of the issue presumes (rather than portends a dispute
regarding) the truth of the proposition that “at trial, the jury will need to evaluate the United States
Army’s decisions regarding how to train and supervise military personnel when determining
whether to allocate fault to the Army,” the Court does not embrace such presumption, the
correctness of which is unresolved and debatable. As indicated in its Order and herein, the Court
has found it unnecessary to determine (and has declined to determine) whether the jury would need
to make such an evaluation.
4

5

Plaintiff additionally argues that the Motion may be untimely. (Doc. No. 197 at 19-20). As the
Court finds that the Motion should not be granted on other grounds, the Court declines to determine
whether the Motion was timely or not when the Sixth Circuit has not ruled on the question.
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legal question of the type envisioned in § 1292(b), however, generally does not include matters
within the discretion of the trial court.” In re City of Memphis, 293 F.3d at 351 (internal citation
omitted). Plaintiff agrees that this is a controlling question, since if the Sixth Circuit determines
the political question doctrine applies this matter would be concluded due to the Court’s lack of
subject matter jurisdiction. (Doc. No. 197 at 6). However, Plaintiff believes that this is not a pure
question of law because the Court has applied the law to the facts in this case. (Id.).
The Court agrees that the Order addressed a controlling question, because if the Sixth
Circuit were to decide that the political question doctrine applies, the Court would lack jurisdiction
over this matter. See Newsome, 873 F. Supp. 2d at 876 (“[A] finding on appeal that Defendants’
position on the motion was correct would terminate the litigation in its entirety and is therefore a
‘controlling question.’”).
However, the question at issue is not one purely of law. In Nice v. L-3 Commc’ns Vertex
Aerospace LLC, 885 F.3d 1308, 1312–13 (11th Cir. 2018), the Eleventh Circuit recently ultimately
decided not to exercise its discretion to hear a case under § 1292(b) in a similar circumstance, even
though the district court had granted a certificate of appealability. Id. at 1311 n.2. In vacating the
district court’s order granting permission to appeal under § 1292(b), the Eleventh Circuit
explained:
That leaves the issue of whether we should permit this appeal under §
1292(b), which grants us discretionary jurisdiction to exercise interlocutory review.
See 28 U.S.C. § 1292(b); McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1253
(11th Cir. 2004). “We have identified five conditions that generally must be met
before we will consider an issue on interlocutory appeal under § 1292(b).” Mamani
v. Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016). One of those is that the “issue is
a pure question of law,” id., and the defendants falter at that first hurdle. They argue
that the condition is satisfied because we need to decide only whether their
comparative fault defense divests the district court of subject matter jurisdiction
under the political question doctrine. They assert that the facts underlying that issue
are undisputed and sit “neatly and clearly atop the record.”

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The issue is neither neat nor clear from any vantage point in the record. And
it is far from being one of pure law. The basic historical facts underlying this case
may be undisputed—the what, when, and where of the crash. The question of who
caused the crash, however, is hotly disputed, as the defendants conceded at oral
argument. O.A. Trans., Oct. 27, 2017.7 And determining whether the defendants’
comparative fault defense would force the jury to evaluate sensitive Navy decisions
requires us to answer the disputed question of who caused the crash: the Navy, the
defendants, or both. That case-specific inquiry does not present a pure question of
law but a mixed one of law and fact. It would require us to decide whether “the
district court properly applied settled [political question doctrine principles] to the
facts or evidence of [this] particular case.” Mamani, 825 F.3d at 1312 (quotation
marks omitted). As a result, the first requirement for exercising jurisdiction under
§ 1292(b) is not satisfied.
Nice, 885 F.3d at 1312–13; see also U.S. ex rel. Elliott v. Brickman Grp. Ltd., LLC, 845 F. Supp.
2d 858, 864 (S.D. Ohio 2012) (“Perhaps most significantly for this case, § 1292(b) is not
appropriate for securing early resolution of disputes concerning whether the trial court properly
applied the law to the facts.” (citation and quotation marks omitted) (collecting cases)).6 The Court
applied the law to the facts in this case to determine that the political question doctrine does not

6

Defendant argues that the Court should find this to be a pure question of law because (according
to Defendant) there is no relevant dispute of fact. (Doc. No. 198 at 2-3). Though there were not
major disputes of fact at issue in the Memorandum Opinion and Order, the Court did apply the law
to the particular facts at hand, which makes this a mixed question of law and fact rather than a pure
question of law. Singh v. Rosen, 984 F.3d 1142, 1148 (6th Cir. 2021) (describing a mixed question
as “the application of a legal standard to settled facts” (citation omitted)), reh’g denied (Feb. 11,
2021). This type of mixed question is not appropriate for review under § 1292(b). See e.g., U.S. ex
rel. Elliott, 845 F. Supp. 2d at 867 (collecting cases); In re Pilch, No. 107-CV-306, 2007 WL
1686308, at *4 (W.D. Mich. June 8, 2007) (“An appeal that presents a mixed question of law and
fact does not meet this [pure question of law] standard.”). This is true even if the facts are generally
undisputed; the salient point is that the Court’s decision involved applying the law to facts, rather
than deciding a question of pure law, and this point is in no way diminished by the observation
that the facts relevant to the Court’s decision are (at least for the most part) undisputed. See e.g.,
Singh, 984 F.3d at 1148; Audi v. Barr, No. 20-3196, 2020 WL 7419597, at *4 (6th Cir. Dec. 18,
2020) (“[T]he application of statutes or regulations to undisputed facts [is] sometimes referred to
as mixed questions of fact and law.” (citation omitted)); Awad v. Holder, 429 F. App’x 552, 556
(6th Cir. 2011) (same).

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apply. To provide one example of many, the Court explained that the Defendant’s first defense did
not fall under the first Baker test by applying the relevant law to the facts:
However, these cases typically involved more extreme situations than the situation
at hand. The Court recognizes that a case does not have to involve events in a
combat zone in order to raise a political question. But the situation at hand—a
vehicle crash on American soil—suggests that review of decisions of the executive
branch will necessarily be less consequential than many of the reviews discussed
herein. The use of the MRZR during a training exercise is much less extreme than
the training in Carmichael, where a private contractor was trained according to
military standards and guidebooks, and the plaintiff’s negligent-training claim
would directly involve the judiciary in the review of a convoy during wartime. 572
F.3d at 1293, 1295. This is also much less extreme than the training in Aktepe,
where a court did not involve itself in the wisdom of United States participation in
NATO training exercises. 105 F.3d at 1403. Instead, the Court finds that the training
at issue indicates that “national defense interests may be more remote.” Tiffany, 931
F.2d at 280. The Court is unconvinced that decisions such as when to allow a cadet
to drive a MRZR, where to drive that MRZR, and how to drive the MRZR would
involve review of a military decision beyond this Court’s proper purview.
(Doc. No. 192 at 22).
Therefore, the Court finds that the first requirement is not met in this case.
B. Substantial Ground for Difference of Opinion7

7

Defendant argues in its Motion that (according to Defendant), the Army will need to be included
on the jury form in this case. (Doc. No. 195 at 5-8). Defendant argues that the rule in Snyder (that
Tennessee courts do not apportion liability to an immune employer) does not apply to the case at
hand because the party in question, the Army, is entitled to sovereign immunity (as opposed to the
workers’ compensation immunity involved in Snyder). (Id.). However, the Court ultimately
declined not only to apply Snyder, but even to decide whether Snyder was applicable, because it
found this issue did not affect the Court’s conclusion as to the applicability of the political question
doctrine. (Doc. No. 192 at 20) (“[T]he Court declines to decide whether Snyder applies to the facts
at hand . . . even without applying the exception in Snyder, Defendant’s defenses do not raise a
political question that is exclusively in the domain of the executive branch, because the Court is
unconvinced that in evaluating Defendant’s two defenses it will have to 1) reexamine a decision
of the military that is 2) insulated from judicial review.”). As the Court suggested in its previous
ruling, the Court does not find the prospect of the Army appearing on the verdict form for
apportionment of fault (as it would if and only if Snyder is inapplicable) to be the kind of
circumstances that would suggest the existence of a political question in this case. Therefore, even
if Defendant is correct that Snyder does not apply in this case, Snyder’s inapplicability would not
suggest a substantial ground for difference of opinion as to the correctness of the Court’s decision.
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“District courts in this circuit have interpreted a substantial ground for difference of
opinion . . . regarding the correctness of the decision to mean when (1) the question is difficult,
novel and either a question on which there is little precedent or one whose correct resolution is not
substantially guided by previous decisions; (2) the question is difficult and of first impression; (3)
a difference of opinion exists within the controlling circuit; or (4) the circuits are split on the
question.” In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (quoting City of Dearborn v.
Comcast of Mich. III, Inc., No. 08–10156, 2008 WL 5084203, at *3 (E.D. Mich. Nov. 24, 2008)
(cleaned up)). “Simply because a court decides a novel issue or a question of first impression does
not mean there is substantial ground for difference of opinion concerning the correctness of the
ruling. Serious doubt as to how an issue should be decided must exist in order for there to be
substantial ground for difference of opinion.” City of Dearborn, 2008 WL 5084203, at *3 (citation
omitted). “[W]hen novel legal issues are presented, on which fair-minded jurists might reach
contradictory conclusions, a novel issue may be certified for interlocutory appeal without first
awaiting development of contradictory precedent.” In re Trump, 874 F.3d 948, 952 (6th Cir. 2017)
(citation omitted).
The Court does not find that any of the situations described in Miedianowski apply. The
Court noted in its Memorandum Opinion accompanying the Order that “Courts in the Sixth Circuit
have had few opportunities to address the application of the political question doctrine when
decisions of the military are potentially implicated. Though there are some minor inconsistencies
between circuits, the overall analysis of the political question doctrine in the military context is
substantially similar across circuits.” (Doc. No. 192 at 11 n.13). However, as this case requires the

In short, as the Court did not rely on (or decide the applicability of) Snyder in its Memorandum
Opinion, the Court is not persuaded by Defendant’s arguments that the applicability (or
inapplicability) of Snyder creates a substantial ground for difference of opinion.
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application of the political question doctrine (which has been addressed by many courts of appeals
and district courts without any relevant circuit split or difference of opinion) to the particular facts
of the case at hand, the inquiry of whether this is a question of first impression is not really even
applicable to this case. The correct legal standard is clear enough, and this is certainly not a case
of first impression regarding any aspect of the legal standard.8 Though resolution of the issue
before the Court was not necessarily easy, the Court was guided by previous decisions and cited
to numerous cases in its Memorandum Opinion that it found instructive when applying the settled
law regarding the political question doctrine to the facts at hand. In discussing this requirement,
Defendant primarily reargues the arguments in its Motion to Dismiss and reiterates its (and a
potential juror’s) disagreement with this Court’s ruling. Disagreement with the Court is not a
sufficient reason to certify this question for appeal to the Sixth Circuit. Gieringer, 2010 WL
2572054, at *3 (“Indeed, other district courts have explained that the element of ‘substantial
ground for difference of opinion’ requires more than mere disagreement with the district court’s
decision or an assertion that such decision was incorrect; rather, there must be genuine doubt as to
the correct legal standard.”).
Therefore, the Court finds that the second statutory requirement is not met in this case.
C. Materially Advance Ultimate Termination of Litigation
“The requirement that an appeal may materially advance the ultimate termination of the
litigation is closely tied to the requirement that the order involve a controlling question of law.”

This case is a “first” in that it is surely the first case to apply that settled legal standard to the very
specific facts at hand here. But that is not what is meant in this context by “case of first impression,”
which refers to a first vetting of a legal issue and not the first vetting of particular facts; if it meant
the latter, that would make a very large number of cases ones of “first impression,” since so many
cases involve unique facts.
8

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City of Dearborn, 2008 WL 5084203, at *3 (citation omitted). “Interlocutory appeal is most
appropriate early in the proceedings. In contrast, the role of interlocutory appeal is diminished
when a case is nearing trial and large expenditures have already been made.” W. Tennessee
Chapter of Associated Builders & Contractors, Inc. v. City of Memphis, 138 F. Supp. 2d 1015,
1026 (W.D. Tenn. 2000) (citation omitted). “The moving party satisfies the third requirement
where the resolution of a controlling legal question would avoid trial, as well as when it would
otherwise substantially shorten the litigation. In other words, an interlocutory appeal materially
advances litigation when it saves judicial resources and litigant expense.” Wang, 2019 WL
1950185, at *1 (cleaned up and citation omitted).
This matter has been pending since 2016. The parties have already completed extensive
discovery and briefing of multiple dispositive motions. It is true that terminating the matter due to
a lack of subject matter jurisdiction would save the parties the time and expense of trial—which,
as Defendant notes, will likely be a complex one necessitating substantial effort on all sides. But
the length of time that this matter has been pending and its advanced stage in the pretrial process
counsel against granting the Motion. (Doc. No. 195 at 14-15); Gieringer, 2010 WL 2572054, at
*4 (“Under the circumstances, there is no reason to expect that this case will not be resolved in the
near future—in fact, due to the relatively advanced stage of this litigation, certifying for an appeal
at this stage would not materially advance the litigation and would instead result in substantial
delay.”). Though there is currently no trial scheduled due to the pending summary judgment
motion, the Court finds that certifying a question for appeal at this advanced stage in litigation
would result in additional substantial delay to an already lengthy litigation.
Therefore, the Court does not find the third statutory requirement met in this case.

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CONCLUSION
For the reasons discussed herein, the Court DENIES Defendant’s Motion.
IT IS SO ORDERED.

____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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