Gilley v. CH Robinson Worldwide, Inc. et al
Filing
296
MEMORANDUM OPINION AND ORDER denying C.H. Robinson Worldwide, Inc.'s 206 MOTION in Limine to Exclude Testimony of Plaintiffs' Experts; granting in part as to part A only Plaintiffs' 208 MOTION in Limine to Exclude (A) Defense Expe rt Thomas M. Lyden's Causation Opinion; deferring judgment until close of evidence on part of B of Plaintiffs' 208 Motion in Limine to Exclude (B) The West Virginia Agencies Allegation; denying Betram Copeland's 210 MOTION in Limi ne as to Testimony of Lew Grill and denying Betram Copeland's 211 MOTION in Limine as to Testimony of Steven Belyus, except that Grill and Belyus must not step outside the boundaries established herein. Signed by Senior Judge David A. Faber on 9/22/2021. (cc: counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
Clinton Eugene Gilley, as Administrator
of the Estate of CARL DAVID GILLEY,
Nicole Leigh Le, as Administrator of the
Estate of CHRISTINE TARA WARDEN GILLEY,
and Clinton Eugene Gilley and Nicole
Leigh Le as Co-Administrators of the
Estates of J.G. and G.G., minor children,
Plaintiffs,
v.
CIVIL ACTION NO. 1:18-00536
C.H. ROBINSON WORLDWIDE, INC.,
J&TS TRANSPORT EXPRESS, INC.,
and BERTRAM COPELAND,
Defendants.
MEMORANDUM OPINION AND ORDER
Several motions relating to proposed expert testimony are
pending before the court.
The first is the motion of defendant
C.H. Robinson (“Robinson”) to exclude the opinions of
plaintiffs’ experts Lew Grill, Steven Belyus, and Thomas Corsi.
(ECF No. 206.)
The second is plaintiffs’ motion to exclude the
causation opinion of Thomas Lyden.
(ECF No. 208.)
That motion
also asks the court to go further and exclude the defense theory
that the lack of a median barrier caused the collision.
The
third and fourth motions are defendant Bertram Copeland’s
motions to exclude, respectively, certain testimony of Lew Grill
(ECF No. 210) and certain testimony of Steven Belyus (ECF No.
211).
For the reasons that follow, the court DENIES Robinson’s
motion (ECF No. 206); GRANTS plaintiffs’ motion (ECF No. 208) in
part; and DENIES Copeland’s motions (ECF Nos. 210 and 211),
subject to the renewal of Copeland’s objections should Grill or
Belyus step outside the boundaries set forth below.
I.
The Parties’ Experts
a. Thomas Corsi
For the past forty-five years, Thomas Corsi, Ph.D. has
served on the faculty of the University of Maryland, where he is
currently a professor of logistics and a co-director of the
Supply Chain Management Center at the Robert H. Smith School of
Business.
He has authored or co-authored more than one hundred
articles and four books on logistics and transportation.
He has
served as a consultant both in the private sector as well as for
several public agencies tasked with transportation-related
missions.
His history of advising the U.S. Department of
Transportation on carrier safety issues goes back over forty
years.
There is no doubt that his qualifications are
“extensive.”
See Mann v. C. H. Robinson Worldwide, Inc., 2017
WL 3191516, at *14 (W.D. Va. July 27, 2017).
b. Thomas Lyden
Thomas Lyden is a civil engineer with considerable
experience in the field of transportation, including twenty-five
years with the Ohio Department of Transportation, where he
2
worked on issues relating to median barriers.
He has a
bachelor’s degree in Civil Engineering from the University of
Cincinnati and an MBA from The Ohio State University.
While his
civil engineering background is impressive, his credentials do
not appear to extend to accident reconstruction or biomechanical
engineering.
c. Lew Grill
Lew Grill has over half a century of experience in the
trucking industry that spans from the driver’s seat to the
instructor’s lectern and beyond.
He has personally logged more
than two million miles in national and international truck
driving.
He is licensed for loads of extreme weight and
dimensions and is certified to inspect and repair air brakes.
More than a dozen instructional safety video productions have
drawn upon his expertise, and he can claim authorship of
hundreds of articles, as well as fifteen books, on trucking,
truck driving, and heavy equipment operation.
His current
research project is investigating the relationship between
foreign driving cultures and domestic truck collisions.
d. Steven Belyus
Prior to becoming a consultant on matters such as accident
reconstruction, fleet inspection, and transportation safety,
Steven Belyus had a 27-year career with the Ohio Department of
Public Safety, where he served as a highway patrol officer,
3
accident reconstructionist, and commercial enforcement
coordinator.
There is no dispute as to his expertise in the
area of accident reconstruction.
II.
Legal Standard
Federal Rule of Evidence 702 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; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
“Essentially, the witness must be qualified as an expert, the
testimony must be reliable, and the testimony must assist the
trier of fact.”
In re Fosamax Prod. Liab. Litig., 645 F. Supp.
2d 164, 172 (S.D.N.Y. 2009). 1
In Daubert v. Merrell Dow Pharmaceuticals,
Court listed four factors that may guide the
analysis. See 509 U.S. 579, 593-94. “[T]he
set forth by Daubert that governs scientific
does not necessarily apply to non-scientific
See In re Mirena IUD Prod. Liab. Litig., 169
480 (S.D.N.Y. 2016).
1
4
Inc., the Supreme
reliability
four-factor mold
expert opinions,”
expert opinions.
F. Supp. 3d 396,
Rule 702 requires courts to stop proffered expert opinions
at the gate if they lack reliable foundation or relevance “to
the task at hand.”
959 (4th Cir. 2020).
McKiver v. Murphy-Brown, LLC, 980 F.3d 937,
Because “the adversary system” awaits such
opinion evidence on the other side of the gate, the gatekeeping
function is a limited one.
See In re Lipitor (Atorvastatin
Calcium) Mktg., Sales Practices & Prod. Liab. Litig. 892 F.3d
624, 631 (4th Cir. 2018).
Beyond the gate are credibility
determinations, which are reserved for the trier of fact; before
the gate are reliability and relevancy determinations, which are
the province of the gatekeeper.
Sardis v. Overhead Door Corp.,
___ F.3d ___, 2021 WL 3699753, at *7 (4th Cir. Aug. 20, 2021)
(“[C]redibility is entirely distinct from reliability and
relevancy, which are preconditions to the admissibility of
expert testimony.”) (emphasis in original).
Factors that may guide the court in its fulfillment of its
gatekeeping role are as follows:
(1) whether the particular scientific theory can be
(and has been) tested; (2) whether the theory has been
subjected to peer review and publication; (3) the
known or potential rate of error; (4) the “existence
and maintenance of standards controlling the
technique’s operation; and (5) whether the technique
has achieved general acceptance in the relevant
scientific or expert community.
5
United States v. Crisp, 324 F.3d 261, 265-66 (4th Cir. 2003)
(citations and internal quotation marks omitted).
illustrative, not definitive or exhaustive.
This list is
Id.
The reliability of the methodology, not the correctness of
the conclusion, is the focus of inquiry.
See Pugh v. Louisville
Ladder, Inc., 361 F. App'x 448, 452 (4th Cir. 2010).
[D]istrict courts must ensure that an expert’s opinion
is based on scientific, technical, or other
specialized knowledge and not on belief or
speculation. And to the extent an expert makes
inferences based on the facts presented to him, the
court must ensure that those inferences were derived
using scientific or other valid methods.
Sardis, 2021 WL 3699753, at *6 (emphasis in original) (citations
and internal quotation marks omitted).
Helpfulness to the trier of fact is the “touchstone” of
Rule 702.
Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).
The party proffering the expert’s opinion has the burden of
production on the question of admissibility.
Maryland Cas. Co.
v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998).
III. Discussion
a. Robinson’s Motion
As originally framed, Robinson’s motion asked the court to
exclude all or part of the expected testimony of three expert
witnesses whom plaintiffs have named:
Belyus, and Lew Grill.
Thomas Corsi, Steven
The briefing has narrowed the issues as
originally framed such that, according to Robinson, “the only
6
question currently presented for the Court’s consideration” is
whether “Dr. [Thomas] Corsi’s two opinions against Robinson
[should] be excluded from trial as unreliable and unsupported.”
(ECF No. 228, at 2-3.) 2
These two opinions are really one opinion:
that brokers
deciding whether to hire certain carriers must either (1)
decline to hire them or (2) engage in some sort of vetting of
them beyond checking their federal registration and insurance
policy first. 3
Robinson finds Corsi’s opinion objectionable
because it does not describe the prevailing practice across the
freight brokerage industry; instead, it describes what Corsi
believes some brokers do and what Corsi, based on his expertise,
believes brokers must do to avoid hiring incompetent carriers.
Robinson further argues that the opinion is too vague and that
the methodology is undisciplined for making use of internet
information that may be outdated in some instances.
Finally,
Robinson disputes the efficacy of vetting carriers in the manner
Corsi prescribes.
In substantial part, the narrowing is the result of plaintiffs’
representation in their opposition that neither Belyus nor Grill
will offer testimony about the broker industry. Because
plaintiffs have waived such testimony as to these experts, the
portion of Robinson’s motion concerning Belyus and Grill is
moot.
2
Corsi offers other opinions that are not at issue in this
motion.
3
7
Corsi will be allowed to testify as to what he believes
some brokers do (or have done in the past) and what he believes
brokers must do when deciding whether to hire new-entrant
carriers.
The Supreme Court has been clear that a district
court may tailor its reliability analysis to the proffered
opinion at hand.
Doing so here, the court finds that the
opinion suffers from no reliability infirmity.
The real issue not whether Corsi’s opinion here is
reliable, but whether it is helpful.
More specifically:
Does
the opinion as to what a broker must do to select competent
carriers offer impermissible legal commentary?
The answer lies
in the different uses of the term “standard of care.”
As the
court understands it, Corsi will not prescribe a legal duty.
Instead, he will explain what precautions are necessary and
appropriate, and the jury can choose whether to adopt those
precautions as necessary to Robinson’s fulfillment of its duty
of care.
Robinson’s expert will provide an opinion on the same
subject.
Both experts will be subject to cross-examination.
The jury will reach its own conclusion as to whether the failure
to take certain precautions was negligent.
1. Robinson’s Industry Standard Contention
As Robinson frames the issue, Corsi should not be allowed
to testify as to what he believes a broker must do when deciding
whether to hire a new-entrant carrier because Corsi cannot show
8
that such a course of action is widely followed in the industry.
Robinson makes the threshold proposition that a standard of care
does not exist unless the relevant industry has accepted it.
The case law upon which Robinson relies, however, is almost
entirely from the context of actions under West Virginia’s
deliberate intent statute.
Robinson erroneously attempts to
import requirements from that context into this one.
For example, Robinson cites Handley v. Union Carbide Corp.,
804 F.2d 265 (4th Cir. 1986).
There, the Fourth Circuit Court
of Appeals interpreted a prior version of West Virginia’s
deliberate intent statute, which required plaintiffs to prove “a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly accepted and
well-known safety standard within the industry.”
(emphasis added).
Id. at 270
The appeals court noted that “[i]t would be
rare that a ‘commonly accepted and well-known’ safety standard
could be established by showing that it exists in only one
facility.”
Id. at 273.
Robinson appears to suggest that the requirements for a
safety standard under West Virginia’s deliberate intent statute
apply equally to the existence and contours of a standard of
care in a negligence case under West Virginia common law.
9
The
court is puzzled as to why this would be so. 4
Robinson’s
approach appears to conflate the concepts of standards of care
and industry standards, effectively requiring that any
negligence claim against an industry actor involve the breach of
a common practice in the industry.
West Virginia’s high court
has rejected the idea that industry custom dictates the standard
of care applicable to a given industry.
See Smoot ex rel. Smoot
v. Am. Elec. Power, 671 S.E.2d 740, 745 (W. Va. 2008); Bates v.
Sirk, 230 S.E.2d 738, 741 (W. Va. 1976).
In sum, a standard of care is not the same as an industry
standard, nor is it the same as a commonly accepted and well
known safety standard in the deliberate intent context.
Robinson’s threshold argument that a standard of care cannot be
established unless it is widely accepted in the industry,
therefore, fails.
Robinson also cites Good v. Am. Water Works Co., No. CV 2:1401374, 2016 WL 6024426, at *2 (S.D.W. Va. Oct. 13, 2016); Coe v.
Outback Steakhouse of Fla., LLC, 2013 WL 140107, at *1 (N.D.W.
Va. Jan. 10, 2013); and Hoschar v. Appalachian Power Co., 906 F.
Supp. 2d 560, 570 (S.D.W. Va. 2012), aff’d, 739 F.3d 163 (4th
Cir. 2014). All but Good feature the deliberate intent context
and, accordingly, require no further discussion. Good was about
whether a certain initiative called Responsible Care constituted
an industry standard, not about what a reasonable industry actor
would do. 2016 WL 6024426, at *7. (“Second, the parties
dispute whether Responsible Care is an industry standard and, if
so, whether Eastman’s conduct comported with its requirements.
The court concludes that the record lacks competent evidence to
establish that Responsible Care represents the industry
standard.”) (emphasis added).
4
10
2. Robinson’s Reliability Contention
Robinson argues that Corsi’s opinion is the product of
unreliable methodology.
In his report, Corsi provides a list of
brokers that will not hire new entrants and a list that will
conduct investigation beyond verifying new entrants’ federal
registration and insurance policy.
Robinson says that, to
compile this list, Corsi relied on his own published paper,
which, in turn, relied on reviews of brokers’ websites.
Robinson further says that the lists are outdated or inaccurate,
which illustrates the unsoundness of the methodology.
The court disagrees that Corsi’s methodology is unsound.
Had Corsi used internet searches to establish a scientific
theory, there would probably be a reliability problem.
Here,
however, Corsi used the searches to catalogue practices in the
industry.
While the list may be outdated in some of its
particulars, that goes to weight, not admissibility.
In
performing its gatekeeping role, the court should limit its
analysis to those Daubert factors that are pertinent to a given
expert opinion.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138
(1999) (explaining that the Daubert factors “may or may not be
pertinent in assessing reliability, depending on the nature of
the issue, the expert’s particular expertise, and the subject of
his testimony”).
11
Corsi was not formulating theories; he was making lists.
He relied on information from a published paper.
Moreover, even
if the information on the lists is inaccurate, Corsi may still
testify about what he believes brokers must do because a
universal omission by industry actors can still be negligent if
due care requires it.
3. Robinson’s Efficacy Contention
Robinson argues that Corsi’s opinion should be excluded
because it proposes a vetting process that unrealistically
“depends on the veracity of the motor carrier who is responding
to the broker’s questions.”
(ECF No. 207, at 9.)
contention goes to weight, not admissibility.
This
Robinson is free
to argue that taking the precaution Corsi proposes would not
have resulted in a different outcome here.
4. Whether Corsi Provides a Legal Conclusion
Although Robinson did not raise it explicitly, one issue
that gave the court pause was whether Corsi’s opinion states a
legal conclusion by attempting to define Robinson’s legal duty.
That, of course, is the court’s role.
One court has rightly
noted that “distinguishing between admissible testimony
regarding the standard of care and inadmissible testimony on
legal conclusions is often a fine line.”
Howard v. Offshore
Liftboats, LLC, 2016 WL 232238, at *3 (E.D. La. Jan. 19, 2016).
12
Two different senses of the term “standard of care” mark
the line between permissible and impermissible testimony here,
and Corsi appears to be on the right side of the line.
Corsi
does not attempt to articulate the overarching legal duty to
which Robinson’s conduct needed to conform.
Instead, he
attempts to answer the more fact-bound question of what
precautions are necessary for brokers to select competent
carriers.
Corsi’s opinion will help the jury reach its overall
determination as to whether Robinson was negligent by allowing
the jury, should it so choose, to identify the untaken
precaution undergirding plaintiffs’ theory of the case.
It will
not simply tell the jury what the law is or what the outcome
should be.
His opinion is more factual than legal and is
permissible.
“The facts of every case will determine whether expert
testimony would assist the jury.”
379 (4th Cir. 1993).
Kopf v. Skyrm, 993 F.2d 374,
Generally, an expert’s mere legal
conclusion is unlikely to be helpful.
See United States v.
Barile, 286 F.3d 749, 760 (4th Cir. 2002).
But a case involving
a specialized industry may present an exception to this general
rule.
See id. at 760 n.7.
Determining whether a question
“calls for an improper legal conclusion” involves considering
“first whether the question tracks the language of the legal
principle at issue or of the applicable statute, and second,
13
whether any terms employed have specialized legal meaning.”
at 760.
Id.
Expert opinions constituting legal conclusions are not
to be confused with expert opinions on ultimate issues, although
the task of avoiding such confusion “is not an easy one.”
Id.
Determining whether Corsi states a legal conclusion
involves recognizing that courts and lawyers use the term
“standard of care” in multiple ways.
They sometimes use the
term to describe an overarching legal duty.
See, e.g., Curl v.
Pettway, 2009 WL 10731087, at *2 (E.D. Va. Dec. 1, 2009)
(analyzing the “legal question” of the appropriate “standard of
care”).
In a negligence case, that generalized duty may be
described as “what a reasonable, prudent person would do under
the circumstances.”
Id.
In a medical malpractice case, it may
be stated as the “exercise [of] that degree of care, skill and
learning required or expected of a reasonable, prudent health
care provider in the profession or class to which the health
care provider belongs acting in the same or similar
circumstances.”
Nottingham v. United States, 2017 WL 3026926,
at *3 (S.D.W. Va. July 17, 2017).
To the extent that an expert
attempts to prescribe a standard of care in this sense of the
term (an overarching legal duty), such attempt is usually
impermissible.
Alternatively, “standard of care” is used to describe not
an overarching duty, but instead, what the fulfillment of that
14
duty looks like.
Though provided in a different context, an
explanation on this point by Judge Sykes is very helpful:
Colleges must provide students with a safe living
environment as part of their generalized duty of care,
but what are the contours of that duty in a given
case? More specifically, what security measures must
a particular college undertake to provide a level of
safety that is reasonable under the circumstances?
That question—what specific actions did Carthage need
to take to meet its generalized duty of care—is what
the term “standard of care” addresses in this context,
and that is the question the expert’s testimony must
address. In a sense, in this context the standard of
care is a fusion of the elements of duty and breach:
The security measures that were reasonable under the
circumstances make up the duty of care, and to the
extent that Carthage’s actions fell below this
standard, it breached that duty.
Lees v. Carthage Coll., 714 F.3d 516, 523 (7th Cir. 2013)
(emphasis added).
It is in this second sense of the term that Corsi appears
to offer commentary on the “standard of care.”
He describes the
precautions that be believes, based on his expertise, are
necessary for brokers to select competent carriers.
He says
that if a broker is going to hire a new entrant it cannot do so
safely without vetting the carrier using such means, at minimum,
as a safety questionnaire.
In part, he draws upon his research
indicating that some industry actors have refused to hire newentrant carriers or have vetted them using such methods as a
questionnaire before hiring them.
15
But Corsi need not rely exclusively on what the industry
has done or is doing.
Because West Virginia law does not allow
industry custom to dictate the extent of the care that is due,
Corsi could offer the challenged opinion even if no other
industry actor were doing what his expertise compels him to
conclude must be done.
In offering his opinion, he presumably
draws in large part upon his significant research on the higher
safety risks that new entrants bring to others on the road, as
well as his experience evaluating transportation risks over the
past several decades.
His opinion may inform the jury’s
decision as to whether there was a breach.
The opinion will be
helpful because the brokerage industry likely presents a context
beyond the ken of most jurors.
The opinion usurps neither the
role of the court to instruct the jury on Robinson’s legal duty
nor the role of the jury to determine whether there was a breach
thereof.
Notably, other federal courts have not discerned a problem
with Corsi providing standard of care opinions.
See, e.g., Mann
v. C. H. Robinson Worldwide, Inc., 2017 WL 3191516, at *14 (W.D.
Va. July 27, 2017) (“The court . . . will allow Corsi to testify
about a broker’s reasonable standard of care in 2014.”); Riley
v. A.K. Logistics, Inc., 2017 WL 2501138, at *13 (E.D. Mo. June
9, 2017) (“Ultimately, C.H. Robinson’s objections go to the
weight Dr. Corsi’s opinion should be given, not whether it is
16
admissible; and it is for the jury to determine whether to agree
with Dr. Corsi’s proposed standard of care.”).
And “courts
routinely view expert testimony regarding the standard of care
applicable in a trucking accident case . . . not as an
impermissible legal conclusion but, rather, as admissible if
reliable and otherwise relevant.”
Stiefel v. Malone, 2021 WL
426217, at *9 (N.D. Ala. Feb. 8, 2021).
The court will allow Corsi to provide the challenged
opinion and his other opinions that are relevant. 5
At trial,
however, Robinson’s counsel is free to object if Corsi appears
to cross the line into impermissible legal conclusions.
b. Plaintiffs’ Motion
Plaintiffs move to exclude Thomas Lyden’s opinion that a
median barrier would have changed the outcome of the collision.
They say that the opinion is not the product of reliable
methodology.
The court agrees.
The focus of Lyden’s report is
on whether there was a breach by the West Virginia agencies
ostensibly responsible for installing barriers.
Assuming Lyden
has the expertise to opine on the separate, causation question
of whether a barrier would have changed the trajectory of the
The court having granted summary judgment in Robinson’s favor
as to the vicarious liability claim, Corsi’s opinions regarding
Robinson’s purported control of the carrier and driver are
irrelevant. The court need not reach Robinson’s contention that
these opinions state legal conclusions.
5
17
fully loaded truck, he did not bring that expertise to bear as
to the specific facts of this case.
It is not apparent that he
even considered the particular variables that must inform the
causation opinion, let alone conducted tests based on those
variables.
The methodology (or lack thereof) does not pass
muster under Rule 702.
The two iterations of the challenged opinion are as
follows:
1. The installation of a median barrier, whether it is cable,
concrete, or beam guardrail, by the West Virginia Turnpike
Authority at the time and location of the incident would
have prevented or changed the outcome of the cross-median
incident between Mr. Copeland and the Gilley-Family.
2. The failure of the West Virginia Turnpike Authority to
install [a] median barrier, which is a proven safety
countermeasure to address the pattern of crossover and
median overturn/rollover crashes, within a reasonable
period of time from when they knew or should have known
there was a safety issue at the incident location, was a
violation of the standards of care and would have prevented
or changed the outcome of the crossover incident between
Mr. Copeland and the Gilley-Family.
While theories regarding engineering matters need not be
proven to be admissible, they generally must be tested in some
way; naked hypotheses will not do.
See Nease v. Ford Motor Co.,
848 F.3d 219, 232 (4th Cir. 2017).
The question of “how an
object will perform when subjected to certain forces” is
scientific in nature.
Sardis, 2021 WL 3699753, at *14.
It
raises “basic, testable engineering concepts,” and an opinion on
18
this question ought to be tested before presented to a jury.
See id.
Lyden did not test the hypothesis that a barrier would have
changed the outcome.
In fact, his report does not even show
that he considered the particular variables presented by the
facts here that would determine whether the force of a given
barrier would have sufficiently withstood the force of the
truck.
There is no methodology other than saying that studies
show that barriers tend to be effective, so a barrier would have
been effective here.
If the question were the effectiveness of
barriers as a general matter, the methodology could be reliable.
But the question is more specific:
whether, given the
particular facts of this case, the lack of a barrier caused the
deaths of plaintiffs’ decedents. 6
As to that specific question,
the court cannot discern the presence of a reliable methodology.
The studies about the effectiveness of median barriers that
Lyden reviewed are presumably reliable materials for experts in
his field.
But his opinion cannot merely apply general studies
to specific facts without analysis.
Extrapolating from the
studies to this particular set of facts requires inferences.
this situation, those inferences require testing.
In
Even assuming
To be relevant, the opinion need not show that the accident
would have been avoided entirely. Presumably, if the presence
of a barrier would have resulted in injury but not death, the
opinion would be relevant for purposes of nonparty fault.
6
19
that testing were not required, however, Lyden would need to
explain how he reliably applied his experience to his
conclusion.
See Fed. R. Evid. 702 advisory committee’s note to
2000 amendments (“If the witness is relying solely or primarily
on experience, then the witness must explain how that experience
leads to the conclusion reached, why that experience is a
sufficient basis for the opinion, and how that experience is
reliably applied to the facts.”).
There is no such explanation
here.
Robinson contends that Lyden’s causation opinion is,
ultimately, a modest one:
difference.”
that “a guardrail would have made a
(ECF No. 226, at 10.)
But that opinion requires
the application of basic, testable engineering concepts.
Moreover, it is hard to tell whether the opinion is truly modest
because both iterations of it are overly general.
The first one
does not specify which kind of barrier would have “prevented”
and which would have merely “changed” the outcome.
Presumably,
“preventing” the “outcome” means preventing the collision, but
that too is not entirely clear.
There are no details as to what
a “changed” outcome would look like.
The second iteration
removes the types of barriers and adds that barriers are “proven
safety countermeasure[s].”
Ultimately, the second iteration of the opinion helps
reveal why it is unreliable.
By stressing that medians are
20
“proven,” it implies that no individual testing or analysis is
required.
Because the law of this circuit is to the contrary,
the court cannot allow the challenged opinion.
Having excluded the challenged opinion, the question
becomes whether Robinson’s theory of fault against the West
Virginia agencies should be disallowed.
Plaintiffs say that
excluding the opinion leaves Robinson unable to prove causation
against the West Virginia agencies, and as a consequence,
Robinson should not be allowed to proceed on this theory.
Specifically, plaintiffs ask that the court preclude any
argument or evidence that certain West Virginia agencies were at
fault for not installing a barrier and to rule that those
agencies shall not be listed on the jury verdict form. 7
While there does appear to be a dearth of evidence as to
causation, the court will exercise its discretion to defer
judgment on this issue until the evidence is in.
Cf. Lutz v.
Est. of Hillier, 574 F. Supp. 1032, 1034 (S.D.W. Va. 1983)
(Haden, C.J.) (declining to enter summary judgment in medical
malpractice case where plaintiff could theoretically establish
standard of care by calling defendant’s expert as an adverse
witness).
Once Robinson is fully heard on the issue, plaintiffs
The West Virginia Department of Transportation, the West
Virginia Division of Highways, and the West Virginia Parkways
Authority (“West Virginia Agencies”) are named in a notice of
nonparty fault by Robinson pursuant to W.Va. Code § 55-7-13D.
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may move for judgment as a matter of law on the issue of fault
of the West Virginia Agencies, incorporating by reference the
arguments made in their motion in limine and any further
arguments they may care to make at that time.
c. Copeland’s Motions
Copeland has filed two motions asking the court to exclude
portions of expected expert testimony.
the other concerns Belyus.
One concerns Grill, and
Plaintiffs’ opposition has narrowed
the issues by voluntarily limiting the opinions of their
experts.
As to portions remaining in dispute, the court will
not exclude the opinions but will provide boundaries as to their
appropriate extent.
1. Lew Grill’s Opinions
Copeland asks the court to exclude Grill’s opinions (1)
that Copeland operated the tractor-trailer below the standard of
care for truck drivers, including by failing to comply with the
standards outlined in the CDL Manual and the Federal Motor
Carrier Safety Regulations; (2) that Copeland failed to use
reasonable care; (3) that Copeland is responsible for the
collision; (4) that Copeland is held to a higher standard of
care; (5) that Copeland had a pattern and practice of violating
regulations and standards for professional drivers; and (6) that
22
fatigue was a cause of the collision. 8
Copeland argues that
several of these opinions state legal conclusions or invade the
province of the jury.
Copeland further argues that Grill’s
opinion regarding a pattern and practice of violations is vague
and unsupported and that Grill’s opinion regarding Copeland’s
failure to follow safe trucking standards is unsupported.
Finally, Copeland argues that Grill’s fatigue opinion should be
excluded as untimely and because the methodology behind it is
unsound.
As to legal conclusions and ultimate issues, the court
finds that Copeland’s argument has some merit but sweeps too
broadly.
The court will provide guidance below as to when Grill
may cross the line, and Copeland may object at trial if he feels
the line has been or will be crossed.
As to the pattern and
practice of violations, this is a disputed characterization of
fact best handled through cross-examination.
Grill appears to
have a basis for it, and the jury can decide whether it is an
exaggeration or accurate description.
As to opinion regarding
not following safe trucking standards, there likewise appears to
be a sufficient basis for it.
Finally, the court overrules
Copeland also challenged Grill’s opinions that Copeland was
negligent and that he did not have a Commercial Driver’s
License. Plaintiffs have represented that they do not plan to
elicit such testimony from Grill, so that portion of the motion
is moot.
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23
Copeland’s objection to the untimeliness of the fatigue opinion
for the reasons stated in its memorandum opinion on Robinson’s
motion to strike the opinion, (see ECF No. 257), and rejects the
argument that the fatigue opinion is unreliable.
A. The Standard of Care and Reasonable Care Opinions
The first and second opinions are helpful and admissible
insofar as Grill seeks to explain how he believes Copeland’s
specific acts were contrary to industry standards or contrary to
what reasonable care would require of a truck driver under the
circumstances.
“Federal courts in our circuit . . . have
suggested that commercial truck driving standards are often
technical but that the answer depends on the specific facts and
circumstances.”
Benedict v. Hankook Tire Co., 286 F. Supp. 3d
785, 792 (E.D. Va. 2018).
here are disputed.
The specific facts and circumstances
They involve alleged mechanical failures and
alleged hours-of-service violations.
Undisputedly, however, the
circumstances involve procedures for navigating a fully loaded
truck down a somewhat steep grade on the West Virginia Turnpike.
The court finds that there is sufficient complexity such that
expert testimony about commercial truck driving standards will
be helpful to the jury.
Relatedly, Grill may opine that Copeland was in breach of
industry standards because industry standards are merely
informative of the overarching legal duty under West Virginia
24
law.
The jury can choose to credit or discredit Grill’s opinion
as to specific purported breaches of the standard of care or of
industry standards when reaching its overall determination of
whether Copeland was negligent.
The opinions are unhelpful and inadmissible insofar as
Grill may attempt to label Copeland’s conduct unreasonable in
general or to say that he generally failed to exercise due care;
essentially, that would be an unhelpful opinion that Copeland
was negligent. 9
Copeland challenges Grill’s opinions that Copeland violated
certain trucking standards as circular and unsupported.
He says
that Grill concludes that the violations caused the collision,
but that the only evidence of the violations he relies upon is
the fact of the collision.
The court disagrees.
reached this opinion by ruling out other causes.
In part, Grill
His report
considers Copeland’s explanation that he lost power to the truck
improbable and states that, even if Copeland had lost power, he
would not have lost the ability to steer.
In essence, Grill
rules out the possibility that a mechanical failure made the
collision unavoidable.
Grill is expected to opine that Copeland
“The Court can, and will, resolve any lingering concerns about
‘ultimate issues for the jury’ by instructing the jury that they
are ultimately to make the decisions concerning causation and
negligence.” Ricker v. Southwind Trucking, Inc., 2006 WL
5157692, at *8 (N.D. Ga. July 13, 2006).
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25
crossed the median due to inattention, including fatigue-induced
inattention.
Grill’s opinions that Copeland was not complying
with trucking safety standards requiring alertness naturally
flow from his opinion that Copeland was not paying attention.
B. The Responsibility Opinion
The third opinion, regarding Copeland’s responsibility for
the collision, is helpful and admissible insofar as Grill seeks
to explain what he believes caused Copeland to cross the median
and collide with plaintiffs’ decedents.
Grill can testify as to
what he believes Copeland did to cause a collision.
The opinion is unhelpful and inadmissible insofar as Grill
may seek to state the Copeland is legally or morally responsible
for the collision or seeks to state, in a merely conclusory
fashion, that Copeland caused the collision.
C. The Heightened Standard of Care Opinion
The fourth opinion, regarding the standard of care, is
helpful and admissible insofar as Grill seeks to explain why the
risks associated with driving large commercial vehicles are
greater than for other vehicles and how commercial drivers must
take that reality into account in how they operate their
vehicles.
The opinion is unhelpful and inadmissible insofar as Grill
may seek to state an overarching legal standard of care or state
26
that the legal expectations of commercial drivers are higher
than of other drivers.
D. The Pattern and Practice Opinion
The fifth opinion, regarded Copeland’s purported pattern
and practice of violations, appears to be based largely on the
official post-crash compliance review.
Assuming experts in
Grill’s field reasonably rely on such reports, there appears to
be a sound basis for the opinion.
Grill can interpret the
findings from that report to mean, based on his expertise, that
Copeland was an unsafe driver.
This is not for the
impermissible purpose of showing propensity to drive
dangerously, but to show notice to the carrier or broker that
the driver was a potential hazard to others on the road.
It
also may show that the carrier was incompetent in its hiring and
supervision.
E. The Fatigue Opinion
As to the sixth opinion, regarding driver fatigue, the
court incorporates its reasoning in ECF No. 257 in rejecting the
untimeliness argument.
The court also rejects the argument that the fatigue
opinion fails for lack of a reliable methodology or lack of “any
degree of certainty.”
(See ECF No. 210, at 7.)
While it is
true that Grill did not employ his usual method in performing
the hours-of-service calculation, and while the usual method
27
arguably yields better results, the method that Grill employed
appears to be sound under Rule 702.
He did not employ the usual
method because certain data was unavailable in this case.
relied on the data he had, which was the Teletrac data.
He
Based
on the parties’ experts’ competing analyses as to how to
interpret the Teletrac data, the jury will resolve the factual
disputes as to whether Copeland had violated hours-of-service
regulations in the relevant time period and whether, regardless
of any such violation, fatigue was a factor in the collision.
2. Steven Belyus’s Challenged Opinions
Copeland asks the court to exclude Belyus’s opinion that
the cause of the collision was Copeland’s inattention. 10
Copeland says that the opinion is speculative and is not the
product of reliable methodology.
Copeland does not appear to
challenge Belyus’s methodology in ruling out other potential
causes of the collision.
Rather, he appears to suggest that the
inference resulting from that process of elimination is more
properly for the jury to make.
Belyus’s opinion is admissible.
Defendants concede that
Belyus is an expert accident reconstructionist.
His driver
inattention opinion rests on more than speculation.
There is
Plaintiffs having withdrawn Belyus’s supplemental report,
Copeland’s challenge as to the opinions in only that report are
moot.
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ample evidence to support his inference of driver inattention,
such as his observations regarding the lack of friction marks
and the angle of the truck’s entry into the median.
will be helpful to the jury.
His opinion
Jury confusion is more likely to
occur if Belyus is forced to stop short of his overall
conclusion regarding causation.
The jury may choose to accept
or reject it according to its persuasiveness.
IV.
Conclusion
For the reasons expressed above, Robinson’s Motion to
Exclude Testimony of Plaintiffs’ Experts (ECF No. 206) is
DENIED; plaintiffs’ Motion in Limine to Exclude (A) Defense
Expert Thomas M. Lyden’s Causation Opinion and (B) The West
Virginia Agencies Allegation (ECF No. 208) is GRANTED as to part
A only, as the court will defer judgment on part B until the
close of evidence; and Copeland’s motion in limine as to Grill
(ECF No. 210) and motion in limine as to Belyus (ECF No. 211)
are both DENIED, except that Grill and Belyus must not step
outside the boundaries established above.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 22nd day of September, 2021.
ENTER:
David A. Faber
Senior United States District Judge
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