Puga et al v. About Tyme Transport, Inc. et al

Filing 111

ORDER ON MOTION TO EXCLUDE granting in part and denying in part 88 Motion to Exclude.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

January 03, 2017
David J. Bradley, Clerk

ALEXANDRO PUGA, et al,

§
§
Plaintiffs,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-73
§
ABOUT TYME TRANSPORT, INC., et al, §
§
Defendants.
§
ORDER ON MOTION TO EXCLUDE
Before the Court is “Defendant RCX Solutions, Inc.’s Motion to Limit or Exclude
the Testimony of Roger Allen” (D.E. 88), together with Plaintiffs’ Response (D.E. 93)
and Defendant’s Reply (D.E. 96).

Defendant states four objections to the expert

testimony of Roger Allen: (1) it addresses conclusions of law; (2) it is not based on a
reliable methodology; (3) it is contrary to the undisputed facts; and (4) it is unreliable.
After due consideration, and for the reasons set out below, the motion is GRANTED IN
PART and DENIED IN PART, and Plaintiff’s use of Allen’s testimony is limited.
1. Whether RCX was the statutory employer of Mr. Brown.
The Court SUSTAINS the objection that Allen may not testify as to questions of
law. For that reason, he may not testify to any conclusion as to whether RCX was Roger
Brown’s statutory employer. He may, however, testify as to standard practices in the
industry and whether, as a matter of fact, RCX’s conduct was that associated with the
role of a motor carrier with respect to the transaction at issue and whether RCX used
About Tyme’s equipment to transport property.
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The Court rejects RCX’s argument that there must be a written or oral lease
between the parties before the requirements of a statutory employer are triggered and that
it is undisputed that no lease agreement had been formed. Thus the Court OVERRULES
any objection to testimony regarding the factual bases for a finding that RCX was
Brown’s statutory employer. The Court further OVERRULES the objection that Allen’s
testimony is contrary to the undisputed facts.
The Court rejects RCX’s argument that the settlement between Plaintiffs and
About Tyme precludes any finding of liability against RCX. The Court concludes that
Brown can have more than one employer with respect to this incident and that nothing in
the Motor Carrier Act immunizes any employer based on payments by a separate
financially responsible party.
The Court OVERRULES the reliability objection to Allen’s testimony regarding
facts underlying the statutory employer issue. Any inconsistency in Allen’s testimony
regarding About Tyme’s liability, any suggestion that the expert is part of Plaintiffs’
team, and any shift in opinion related to the About Tyme settlement may be the subject of
cross-examination and impeachment, but is not a basis for excluding the opinion in its
entirety.
2. Whether RCX had operating control over the load.
The issue of RCX’s alleged control over the load is ultimately a question of law
that follows fact findings regarding whether RCX acted as the carrier in the transaction
and whether it used equipment owned by About Tyme. Thus, for the same reasons set
out above, Allen may testify as to the underlying facts, but not as to whether RCX had
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control over the load as a matter of law. Whether there was a lease between the parties is
not determinative of this issue.
3. Whether there should have been a lease between RCX and About Tyme.
Again, Allen may not testify as to any legal requirement that the parties formed a
lease or whether their conduct amounts to the formation of a lease. Those are matters of
law and the Court SUSTAINS that objection to the testimony.
4. The cause of the accident.
Allen is not qualified as an accident reconstruction expert to testify as to the
proximate cause(s) of the incident. Instead, he offers a meta-analysis of the factual
evidence in this case. Because he is not qualified to render a causation opinion on his
own and because his view of the evidence invades the province of the jury, the Court
SUSTAINS RCX’s objection and excludes this testimony.

See generally, Diamond

Offshore Co. v. Survival Sys. Int'l, Inc., No. CIV.A. H-11-1701, 2013 WL 371648, at
*10-11 (S.D. Tex. Jan. 29, 2013).
ORDERED this 3rd day of January, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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