Plaintiff, Robin D. Post sued Defendant, Dennis J. Zimmerman following a highway accident on December 23, 2019 when Defendant John H. Kaser, Plaintiff, and Zimmerman—in that order—were traveling eastbound on Highway 24 in Osborne County, Kansas. Plaintiff rode in a Chevrolet Equinox while Defendants Kaser and Zimmerman each drove semi-trucks. The Plaintiff was rear-ended by Zimmerman after a tire on Kaser’s trailer failed.
Plaintiff sought punitive damages against both Kaser and Zimmerman as well as their employers, Kendall L. Nichols and Dale R. Hanchett. Plaintiff also asserted vicarious negligence theories, including negligence per se, based on Kaser and Zimmerman’s actions while suing Nichols and Hanchett.
Plaintiff retained Adam Grill to offer expert testimony about commercial truck driving and tire blowout causation. Defendants Kendall Nichols and John Kaser filed a motion to exclude Grill, arguing that his opinions failed to meet the standards set forth in Federal Rule of Evidence 702, Daubert v. Merrell Dow Pharm., Inc., and Kumho Tire Co. v. Carmichael. They specifically targeted Grill’s opinion regarding the contribution of overloading and poor maintenance to the tire blowout on Defendant Kaser’s trailer. Defendants claim that Grill lacked the necessary skill, training, experience, or education to offer such opinions. However, they did not seek to exclude all of Grill’s testimony and instead limited it to Grill’s opinions on tire blowout causation. Plaintiff opposed the motion.
Trucking Expert Witness
Adam Grill has worked around large commercial vehicles and studied the intricacies of commercial vehicle transportation among the best in the industry. He received his certification as a commercial vehicle operator in 2005. He holds a Commercial Driver’s License (CDL) with endorsements for hazardous materials, tankers, double trailers, triple trailers, passenger buses, and school buses. He is a certified director of safety (CDS). He is certified for forklift operation, operation of longer combination vehicles (LCVs), crane hoist and rigging, aerial manlift, telehandler, and heavy equipment including payloaders and motor graders. He is a certified pilot car operator and flagger through Gulf Coast Community College in Panama City, Florida. For eight years he served in the US Army and US Army National Guard where he was called upon to teach truck and heavy vehicle operation and driver safety, among other duties. He is currently an active truck driver, and an associate of Atlantic Pacific Resource Group.
Discussion by the Court
The expert report proffered by Grill was divided into two sections. The report’s first section provided opinions about commercial truck driving safety, addressing the responsibilities of Co-Defendants Zimmerman and Hanchett Farms. The second section attributed the tire blowout suffered by the trailer Kaser was hauling to the constant weight putting strain on the tires considering the trailers routinely ranged in the area of 80,000 pounds plus to above 90,000 pounds per load, besides poor maintenance and continual overloading. Grill’s report implied that Defendants Nichols and Kaser should assume responsibility for the same.
Grill, in order to provide a complete statement of all opinions he would express and the basis and reasons for them under Federal Rules of Civil Procedure 26(a)(2)(B)(i), included scale tickets produced by Nichols Farm showing that, over a seven month period, the Nichols Farms’ vehicles which operated on roadways weighed between 54,120 and 99,520 pounds as well as extensive quotations from three sources about those sources’ views on the causes of tire blowouts to support his opinion that a tire failure sometimes results from the stresses that heavily loaded and overloaded trucks add to. However, the Court noted that Grill’s report failed to identify any other material about the basis and reasons to establish poor maintenance and continual overloading as the likely causes of tire failure.
Defendants argued that Grill lacked relevant experience or training in investigating causes of tire blowouts and did not demonstrate specialized knowledge about the subject. In her response, Plaintiff mentioned Grill’s 15 years of combined experience as a truck driver, truck-driving instructor, truck-driving consultant, accident investigator, and forklift and heavy equipment operator, in addition to a commercial driver’s license with hazardous materials and various endorsements. Plaintiff contended that Grill had the expertise to identify when a truck including its tires is in such a defective state.
The Court, after reviewing Grill’s CV and his report’s contents, observed that he lacked the pertinent knowledge, skill, experience, training, or education. The Court also noted that Grill’s CV barely referred to tires except for a project started in 2016 about the assessment of truck safety technologies which included “tire pressure monitoring” systems and tire pressure balancing systems. But the project did not sufficiently establish that Grill was qualified under Federal Rules of Evidence 702 to testify about the causes of fire blowouts or about poor maintenance and continual overloading being a likely contributor to the tire’s failure.
As for the reasoning or methodology underlying Grill’s tire failure opinion, Defendant argued that Grill based his opinions on his review, first, of photographs of the blown out trailer tire (taken after the accident) and, second, of weight tickets which identify the weights of different loads hauled on the trailer defendant Kaser’s truck was pulling when the accident occurred. The Court held that Grill’s report demonstrated that his opinion that heavily loaded and overloaded trucks were known to add to the stress that could ultimately cause a tire failure lacked a reliable basis in knowledge and experience considering the only reasoning Grill provided to support this opinion followed immediately after, three long quotations of generalized opinions from Hale Trailer Brake & Wheel, Roane Transportation, and Middleton & Meads Co. The Court citing United States v. Pablo, 696 F.3d 1280, 1288 (10th Cir. 2012), held that an expert may not appropriate someone else’s opinion, reprint it in a report, and then testify about what someone else—someone not subject to cross examination—has opined. The Court noted that Grill’s borrowed testimony was only connected to the facts of this case by “ipse dixit” assertions. For instance, Grill opined poor maintenance and continual overloading was also a likely contributor to the tire failure without explaining how Defendants poorly maintained or overloaded the tire which failed.
Plaintiff responded to Defendants’ motion to exclude Grill’s testimony about tire failure causation by explaining the case’s discovery timeline. She noted that Grill had issued his report in October 2022. Plaintiff took Nichols and Kaser’s deposition about five months later, on April 10 and 11, 2023. She contended that this timeline had deprived Grill of the evidence acquired in the Kaser and Nichols depositions to use in his expert report. Plaintiff reported that Grill had since reviewed the deposition evidence, and it hadn’t changed his opinions. She also reported that Grill “was willing to submit an additional report addressing these” methodology and reasoning issues.
Unfortunately, Federal Rules of Evidence 26 provides that expert witnesses are required to provide a written report which must consist of a complete statement of all opinions the witness will express and the basis and reasons for them and if by any chance, it comes to the parties’ attention that the disclosure is incomplete in any material respect, it has to be supplemented or corrected immediately. The disclosing party also may make the supplemental material known to the opposing parties in some other fashion but the Plaintiff did not indicate that she had supplemented Grill’s report or conveyed to the Defendants that he had developed additional reasoning for his opinions. Henceforth, the Plaintiff’s timeline argument failed to persuade the Court.
To conclude, Grill’s expert opinions failed Daubert step one. Plaintiff failed to establish that Grill was qualified to offer expert opinions about tire blowout causation, and that Grill based his tire causation opinion on sufficient facts and data. The Court held that because Grill failed Daubert step one—reliability—it need not progress to Daubert step two and inquire about the testimony’s relevance.
Held
The Court excluded the tire failure causation opinions expressed in expert Adam Grill’s expert report but deferred judgment on Grill’s testimony on commercial truck driving.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Expert witnesses must demonstrate relevant experience, training, or education to support their opinions effectively. Moreover, expert opinions must be based on sufficient facts, data, and reliable methodology, with clear reasoning provided to justify their conclusions. Failure to disclose complete information or supplement the report as necessary can jeopardize the admissibility of the testimony under Federal Rules of Evidence. Experts should be prepared to withstand cross-examination regarding the basis of their opinions, ensuring credibility and reliability. Additionally, experts should review new evidence and be willing to update their opinions as necessary to maintain relevance and accuracy. Courts play a crucial role in evaluating the admissibility of expert testimony through standards like the Daubert test, which assesses both reliability and relevance. If expert opinions fail to meet the reliability threshold, they may be excluded from consideration by the court, highlighting the importance of thorough and transparent expert testimony in legal proceedings.
Case Details:
| Case Caption: | Post V. Hanchett Et Al |
| Docket Number: | 2:21cv2587 |
| Court: | United States District Court, Kansas |
| Citation: | 2024 U.S. Dist. LEXIS 21398 |
| Order Date: | February 7, 2024 |
Leave a Reply