100 F.3d 956 (6th Cir. 1996), 95-3376, Ames v. Van Dyne

Docket Nº:95-3376.
Citation:100 F.3d 956
Party Name:Robert Lee AMES and Bonita Ames, Plaintiffs-Appellants, v. Ronald VAN DYNE and Hi-Way Dispatch, Inc., Defendants-Appellees.
Case Date:November 13, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 956

100 F.3d 956 (6th Cir. 1996)

Robert Lee AMES and Bonita Ames, Plaintiffs-Appellants,


Ronald VAN DYNE and Hi-Way Dispatch, Inc., Defendants-Appellees.

No. 95-3376.

United States Court of Appeals, Sixth Circuit

November 13, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Southern District of Ohio, No. 93-00655; Sandra S. Beckwith, Judge.



Before: MARTIN, Chief Judge; JONES and RYAN, Circuit Judges.

RYAN, Circuit Judge.

The plaintiffs appeal from the final judgment dismissing their claim in this diversity personal-injury action, entered following a jury verdict finding no liability on the part of the defendants. The plaintiffs contend that the district court abused its discretion, first, in excluding the opinion testimony of their expert witness under Fed.R.Evid. 702, on the grounds that he was unqualified and that his testimony would have been irrelevant; and, second, in excluding a witness that the defendants had never named during discovery, as a sanction pursuant to Fed.R.Civ.P. 37(c)(1). We will affirm.


In July 1992, Robert Ames was hired by his brother-in-law to work as a forklift operator at Spartan Warehouse and Distribution in Columbus, Ohio. Ames, although licensed as a forklift operator, had never before actually been employed to operate a forklift, and, in fact, had only operated a forklift once in the previous eleven years. After Ames had been working for Spartan for a few days, he was ordered to load a truck with a pre-palletized load. The truck was driven by defendant Ronald Van Dyne and owned by defendant Hi-Way Dispatch. While Ames was still loading the truck, his coworker, without Ames's knowledge, handed the bills of lading to Van Dyne and informed him that his truck was loaded and ready to go.

Van Dyne, accordingly, got into his truck and prepared to leave. He did not check the rear of his truck before pulling away; there was conflicting testimony at trial as to whether this would have been permitted by Spartan, or even possible, because of the layout of the loading dock. In any event, when Van Dyne pulled the truck forward, Ames was apparently in the process of entering the rear of the trailer in the forklift with another load. The forklift became unstable, and Ames fell to the ground and was injured.

Ames filed a complaint in federal district court, alleging that Van Dyne was negligent in failing to perform a visual inspection of the rear of his truck before pulling away from the loading dock, and that Hi-Way Dispatch was negligent in allowing Van Dyne to drive the truck.

About a week before trial, the defendants filed a motion in limine seeking to exclude the testimony of the plaintiffs' expert witness, Charles Penrod. The district court addressed the motion in limine at the end of the second day of trial, when the plaintiffs had only two more witnesses to call, one of whom was Penrod. The defendants characterized Penrod's testimony as premised wholly on various federal statutes, regulations, and case law relating to unsecured and shifting cargo, and also to rolling trucks, which statutes Penrod claimed Van Dyne had violated when he pulled his truck forward without checking his load or his brakes. They argued that because the evidence in the case demonstrated that Ames's injury had nothing to do with the subjects covered by these laws, Penrod's testimony was irrelevant to the case, and it was simply unimportant whether the various laws had been violated. They further suggested, albeit obliquely, that Penrod was not qualified to testify. Ames responded by arguing that "the federal statutes and regulations that are addressed by Mr. Penrod operate to set a standard of duty and care on the part of the defendants, specifically Mr. Van Dyne and his company. And breach of these standards ... is in fact actionable...

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