This action arises out of a motor vehicle accident between an automobile driven by Philnelius Snow and a tractor-trailer owned and operated by Charles Bailey Trucking (“CBT”)and driven by its employee, Travis Hickey. Plaintiff alleged two causes of action against CBT: 1) respondeat superior for the negligence of its employee, and 2) direct claims of negligence against CBT for negligent hiring, negligent training, negligent entrustment, negligent retention, negligent qualifying, and negligent supervision of Hickey (Plaintiff’s “Direct Negligence Claims”). Defendants argued that they are entitled to summary judgment on the Direct Negligence Claims and Plaintiff’s punitive damages claim.
Defendants filed a motion to exclude Plaintiff’s expert Adam Grill‘s testimony about CBT’s responsibilities as a motor carrier and the negligent training claim.
While parties occasionally file Daubert motions alongside summary judgment motions, such motions typically implicate a summary judgment issue such as causation. Here, the only issue on summary judgment relates to negligent training. The Court will consider Defendants’ motion to exclude Plaintiff’s expert Adam Grill’s testimony as it relates to CBT’s responsibilities as a motor carrier and the negligent training claim only, and finds it premature to address other potential issues at this time.
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. Grill 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. Grill is a certified pilot car operator and flagger through Gulf Coast Community College in Panama City, Florida. He is currently an active truck driver, and an associate of Atlantic Pacific Resource Group.
Grill’s expert report contended that “Charles Bailey is responsible to train and supervise their professional drivers” and “[a]ccording to industry standards, this collision was preventable on the part of Charles Bailey and Defendant Hickey.”
Defendants argued that the expert report and proposed testimony should be excluded because Grill’s opinions are not reliable and his testimony would not assist the trier of fact because his opinions merely offer legal conclusions.
Defendants argued that “Grill’s report merely regurgitates the Federal Motor Carrier Safety Rules (“FMCSRs”) and states that [CBT] failed to comply with the law.” According to Grill, CBT did not provide specific training to drivers on “visual search techniques” and if it had, then the collision between Snow and Hickey could have been prevented.
Grill asserted that CBT failed to satisfy the FMCSRs related to training. Grill’s testimony further asserted that:
A. Because the specific concepts involved in leading up to this accident, through proper education, training and including the proper mindset of a driver, it would be completely avoidable. In other words, the reasonable expectation of a driver to keep a proper visual search, have a plan, an advance plan for how to respond to hazards, would in a practical sense and through the testimony of the driver in this case, would have — would have allowed him to prevent this type of collision from occurring.
The Court held that Grill’s testimony that additional training would have prevented the collision is unreliable speculation and does not help the Court determine whether Plaintiff has met his burden as a matter of law.
Held
The Court excluded Adam Grill’s expert report and proposed testimony for the summary judgment motion. It granted in part Defendants’ motion for partial summary judgment as to Plaintiff’s claims of negligent hiring, negligent retention, negligent qualifying, negligent supervision, negligent entrustment, and punitive damages.
Key Takeaway:
A negligent training claim requires a showing that (1) the employer’s training was deficient, and (2) breach of that duty proximately caused Plaintiff’s injury. The Court is capable of referring to the FMCSRs and relevant case law to determine whether CBT’s training was legally deficient. Moreover, Grill’s testimony that additional training would have prevented the collision is unreliable speculation.
Case Details:
Case Caption:
Snow V. Charles Bailey Trucking, Inc. Et Al
Docket Number:
1:22cv706
Court:
United States District Court for the Northern District of Georgia, Atlanta Division
On February 7, 2020, Mauricio Gonzalez-Lopez, who was then a 37-year-old employee of V-coin, Inc. (“V-com”), was at V-corn’s warehouse unloading a tractor-trailer owned by Perfect Trading, Inc. (“Perfect Trading”) and operated by its driver, Ding Yi (“Yi”). Defendants Perfect Trading and Yi (“Defendants”) maintained that Yi remained in his truck throughout the entire unloading of the trailer and only when a V-com employee returned the driver’s paperwork and alerted him that his truck was unloaded did he begin to pull the truck forward so that a V-corn employee could shut the trailer doors. When the tractor-trailer began moving away from the docking area, Plaintiff was walking out of the truck with a box.
The Plaintiff alleged that due to the truck’s sudden movement forward, he lost his balance, stumbled, and fell out of the truck causing injury to his right foot. In contrast, although there was video surveillance of the incident, Defendants offered Kirk Lawrence Thibault’s expert opinion to support their theory that Plaintiff jumped, rather than fell out of the truck.
Plaintiff Mauricio Gonzalez-Lopez filed a Daubert motion to exclude the testimony of Kirk Lawrence Thibault, PhD, D-IBFES, a biomechanical engineer, pursuant to Rule 702.
Biomechanical Engineering Expert Witness
Kirk Lawrence Thibault has a Bachelor’s of Science from the University of Pennsylvania as well as a Master’s Degree in Doctorate in Bioengineering from the University of Pennsylvania.
He is the President of Thibault Scientific, LLC which specializes in the following areas of injury analysis: Transportion (motor vehicles, pedestrians, bicycles), Recreation and athletic trauma, Product liability, Premises liability, Pediatric injury biomechanics and Impact and crash testing and analysis.
Thibault’s expert report explained that a “sudden change in velocity of one’s planted foot relative to one’s center of mass may momentarily disturb one’s dynamic stability such that one may lose one’s balance and fall forward. … If one could not step to reestablish a stable base of support, one might fall forward, resulting in a reflexive, protective response that manifests as extending one’s arms forward.” As Thibault described, the video did not demonstrate a loss of balance, but rather, showed “that [Plaintiff’s] body remained stable and upright throughout the entire event. He took active, deliberate steps with his left and right leg to position his body at the edge of the trailer. He squatted and then pushed off with both feet to hop off the trailer and jump to the ground.”
In addition, Thibault noted there was no evidence of injuries, such as to Plaintiff’s upper extremities or to his face, torso, and lower extremities, suggesting that Plaintiff had lost his balance and fallen forward out of the trailer to the ground. In sum, Thibault concluded: “the trailer began to move forward slowly and, in response, Mr. Gonzalez-Lopez stepped to the rear edge of the trailer and jumped to the ground, where the heel of his right foot contacted the ground and sustained a fracture of the calcaneus.”
Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump
In this case, Defendants explained that Thibault’s opinion was based on the review of 14 specific references, in addition to his education, training, and experience. Those 14 references appeared to be the video surveillance footage, pleadings, discovery materials, medical records, witness statements, and an inspection of the docking area. As Plaintiff correctly pointed out, Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were.
Thibault’s opinion did not satisfy the precondition of providing a “scientific connection” to the issue at bar
Thibault’s opinion was based on his observation of the video footage and review of discovery from this case rather than from any scientific methodology. Thus, it did not satisfy the precondition of providing a “scientific connection” to the issue at bar. In any event, the video footage of the incident itself was the best evidence of what occurred. Moreover, the Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible.
The Court held that Thibault’s conclusion pertained to a subject matter that was familiar to a layperson: that a “sudden change in velocity of one’s planted foot” could cause a person to lose balance and fall forward. After seeing the surveillance video, based on its own experience and knowledge, the jury could assess for itself whether Plaintiff had lost his balance and involuntarily fallen or purposely and voluntarily jumped off the truck.
Thibault did notaddress if Plaintiff “jumped to the ground” as the result of a deliberate decision
Defendants sought to establish that Plaintiff’s injuries were consistent with and proximately caused by a jump rather than a loss of balance because Defendants assumed that “jumping” reflected a deliberate choice not to stay in the truck until it came to a stop. However, Thibault did not (nor could he) opine that because Plaintiff did not lose his balance and instead jumped, Plaintiff must have had the opportunity to proactively choose his course of action despite the truck’s sudden movement.
Thibault did not address whether Plaintiff “jumped to the ground” as the result of a deliberate decision or felt compelled to do so by the unexpected forward motion of the truck in the opposite direction that he was walking. Therefore, even assuming Plaintiff jumped, Thibault’s testimony did not assist a jury in determining whether Plaintiff’s injuries were proximately caused by his own decision to exit the truck or because the sudden movement of the truck necessitated him to jump off.
Held
The Court granted Plaintiff’s Daubert motion to exclude the testimony of Defendants’ expert Kirk Lawrence Thibault because Thibault’s testimony did not rely on scientific methodology or assist the trier of fact.
Key Takeaways:
Helpful to the Trier of Fact: The Court requires expert testimony generally in situations where a jury of laypersons lacks sufficient knowledge or understanding of the subject matter to form a reasonable opinion. Expert testimony covering an area known and within the comprehension of the layperson is generally not helpful to the trier of fact and thus is inadmissible since it did not satisfy the precondition of providing a “scientific connection” to the issue at bar.
Reliability: Thibault did not derive his expert opinion from any scientific facts pertaining to Plaintiff’s fall or jump such as his approximate height, weight, BMI, center of mass, or speed of the truck. The Court observed that Thibault did not factor in or calculate changes in velocity relative to mass or utilize any other mathematical formula or methodology that could be tested. Moreover, despite Thibault’s assertion that his analysis relied on “data and methodologies…published in peer-reviewed journals and texts,” it was unclear what those sources were.
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.
