Abrams v. FedEx Ground Package Sys., Inc.
| Citation | 585 F.Supp.3d 1131 |
| Decision Date | 14 February 2022 |
| Docket Number | Case No. 3:19-cv-01391-JPG |
| Parties | Bob ABRAMS, Janice Smart, and Angie Sundhausen, Plaintiffs, v. FEDEX GROUND PACKAGE SYSTEM, INC., Asllan Nmi Pino, Hard Drive Express, Inc., Defendants. |
| Court | U.S. District Court — Southern District of Illinois |
585 F.Supp.3d 1131
Bob ABRAMS, Janice Smart, and Angie Sundhausen, Plaintiffs,
v.
FEDEX GROUND PACKAGE SYSTEM, INC., Asllan Nmi Pino, Hard Drive Express, Inc., Defendants.
Case No. 3:19-cv-01391-JPG
United States District Court, S.D. Illinois.
Signed February 14, 2022
David I. Cates, Pro Hac Vice, Cates Mahoney, LLC, Swansea, IL, Alexander Morelli, Benedict P. Morelli, David T. Sirotkin, Michael Scott Schlesinger, Perry Fallick, Morelli Law Firm PLLC, New York, NY, for Plaintiff Bob Abrams.
Alexander Morelli, Benedict P. Morelli, David T. Sirotkin, Michael Scott Schlesinger, Perry Fallick, Morelli Law Firm PLLC, New York, NY, David I. Cates, Cates Mahoney, LLC, Swansea, IL, for Plaintiffs Janice Smart, Angie Sundhausen.
Gregory T. Cook, Byron A. Bowles, McAnany, Van Cleave et al., St. Louis, MO, Hamilton H. Hill, Pro Hac Vice, Luke Beasley, Rebecca W. Bacon, Bartlit Beck LLP, Chicago, IL, Natalie Lane Zagari, McGuire Woods LLP, Pittsburgh, PA, for Defendant FedEx Ground Package System, Inc.
Gregory T. Cook, Byron A. Bowles, McAnany, Van Cleave et al., St. Louis, MO, for Defendants Asllan Nmi Pino, Hard Drive Express, Inc.
MEMORANDUM AND ORDER
J. PHIL GILBERT, DISTRICT JUDGE
I. Introduction
This matter comes before the Court on two motions for partial summary judgment (Doc. 78) and (Doc. 80) and two motions to exclude testimony (Doc. 83) and (Doc. 126). Defendants FedEx Ground Package System, Inc. ("FedEx Ground") and Hard Drive Express, Inc. ("Hard Drive") (collectively, "Defendants") filed two motions for partial summary judgment. The first motion is for partial summary judgment on Plaintiffs Bob Abrams ("Abrams"), Janice Smart ("Smart") and Angie Sundhausen ("Sundhausen"), (collectively, "Plaintiffs") Negligent Hiring and Retention Claim pursuant to Federal Rule of Civil Procedure 56. Plaintiffs filed their response at (Doc. 96). Defendants' second motion is for partial summary judgment on Plaintiffs' Prayer for Punitive Damages Pursuant to Federal Rule of Civil Procedure 56. Plaintiffs filed their response at (Doc. 97).
Defendants also filed two motions to exclude the testimony and opinions of Erik Gaull (Doc. 83) and Lew Grill (Doc. 126). Plaintiffs responded at (Doc. 98) and (Doc. 131).
For the reasons stated, the Court DENIES Defendants' Motions for Partial Summary Judgment. The Court GRANTS Defendants' Motion to Exclude the Testimony and Opinions of Erik Gaull and GRANTS in part and DENIES in part Defendants' Motion to Exclude the Testimony and Opinions of Lew Grill.
II. Factual Background
In support of Defendants' motions for partial summary judgment, Defendants filed a Statement of Undisputed Material Facts (Doc. 82). Plaintiffs filed their response and Counter-Statement to Defendants' Undisputed Material Facts (Doc. 99).
The accident underlying this cause of action occurred on July 20, 2019 (Doc. 82 at ¶ 1). On that date, a FedEx Truck, driven by Defendant Asllan Pino ("Pino") was driving eastbound on Interstate 70 in Effingham County, Illinois. Id. Plaintiffs stopped behind a semi during standstill traffic. Pino was operating a tractor owned by Hard Drive and was hauling a trailer owned by FedEx Ground. Id. at ¶ 2. Pino had been working for FedEx Ground for approximately seven years and for Hard Drive (a contract service provider) since 2015. Pino slammed on the brakes, swerved into the concrete median, and struck Plaintiffs, who were sandwiched between the two semis. Several family members - Virginia E. Abrams, Matthew Murphy, and Marleen E. Murphy—were killed. Plaintiffs Bob Abrams and Janice Smart survived.
Pino, a native Albanian speaker, was hired by Hard Drive in 2015. Id. at 4-5. During the course of Pino's employment, he had no disciplinary issues, drug issues, or medical issues. Id. at 6-7. Pino had a valid Commercials Driver's License. Id. at 6.
In 2013, FedEx Ground gave Pino an English Assessment. Id. at 9. FedEx Ground began giving all its truck drivers a one-time English Assessment in an attempt to verify drivers were qualified to drive commercial motor vehicles pursuant to 49 CFR § 391.111 (Doc. 99 at CS ¶ 14). While the English Assessment was not required by the Federal Motor Carrier Safety Regulations ("FMCSR"), FedEx Ground administered these tests to establish compliance. (Doc. 82. at ¶ 10). Three assessors administered the test on Pino where they verbally asked five questions from a list of nine (Doc. 99 at CS ¶¶ 22-25). Multiple FedEx Ground employees testified that they did not believe Pino failed the English Assessment. Id. at 11-12. This test was pass/fail and the passing grade was an average of "3." Id. While a FedEx Ground employee who administered the test gave Pino a "2.2" (failing grade), he later crossed out and gave Pino a 3. (Doc. 99 at R ¶ 14).2 Another assessor gave Pino a "3" and another did not write Pino's average score, id. at CS ¶ 49, but testified that he believed Pino did not fail the assessment (Doc. 82 at ¶ 15). If a driver were to fail the English Assessment, they would have been placed on "inactive safety" status and prohibited from driving commercial motor vehicles (Doc. 99 at CS ¶ 36). The parties are in dispute whether Pino actually passed the English Assessment, whether FedEx Ground believed Pino failed the assessment, and whether or not a re-test was required.
Dave Griffin, a special agent safety investigator at the FMCSR, and defense expert, testified that Pino was a qualified driver at the time of the accident (Doc. 82 at ¶ 16). Specifically, Griffin stated that because Pino was able to "successfully pass the CDL [commercial driver's license] skills test, knowledge test, and the two endorsements, specialized endorsements, had been determined qualified by FedEx Ground, and had been working for seven years at FedEx Ground ..." he was qualified. Id. at ¶ 17. He also testified that if Pino did fail a safety test, he should not have been permitted to operate a commercial motor vehicle (Doc. 99 at R ¶ 16). FedEx Ground never retested Pino with an English Assessment.
While Pino admits he speaks a "little bit," of English id. at R ¶ 16, a number of individuals who worked with and around Pino believe that his English was adequate. (Doc. 82 at ¶¶ 19-31). These individuals range from various managers that spoke with and received writing materials from Pino (including logs, and odometer sheets), Hard Drive's business contact with FedEx Ground, and owners. Id.
Following the accident, Pino received two citations by police (Doc. 99 at R ¶ 32). According to the police report, Pino was unable to effectively communicate in English with officers at the scene. Id. at CS ¶ 12. These citations were for (1) "Commercial Motor Vehicle Unqualified Driver, Speak/read English," (Doc. 82 at ¶ 32), and (2) failure to reduce speed to avoid an accident (Doc. 99 at R ¶ 32). On June 16, 2020, Pino appeared on these citations in the Circuit Court of Effingham County, Illinois, where he was represented by counsel. (Doc. 82 at ¶ 33). Police issued the first citation because they believe Pino was operating the commercial motor vehicle as
an unqualified driver pursuant to FMCSR, 49 CFR § 391.11(b). (Doc. 99 at R ¶ 32). On June 16, 2020, Pino was found guilty of the offense. The Court found, as shown in its docket entries, "[t]hese tickets are petty offenses and were not willful violations." (Doc. 82 at ¶ 33).
After the accident, on August 13, 2019, FedEx Ground received a violation from the Department of Transportation for permitting Pino to drive a commercial motor vehicle in violation of FMCSR § 391.11(b)(2). Doc. 99 at CS ¶ 660. FedEx Ground believed that Pino spoke English "fine" and the citation came after he "got into a horrific accident and was in a state of shock. English is not his first language and he reverted back to his native language." Id. at ¶ 67. Additionally, after the accident, FedEx Ground received a violation from the Department of Transportation under the Compliance, Safety and Accountability program for permitting Pino to drive a commercial motor vehicle in violation § 391.11(b)(2). Id. at 66.
In December 2019, Plaintiffs, on behalf of themselves and their deceased family members, sued Defendants in this Court. Defendants now move for partial summary judgment.
III. Law and Analysis
a. Motions for Summary Judgment
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Spath v. Hayes Wheels Int'l–Ind., Inc. , 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the Court construes evidence and draws all reasonable inferences in favor of Plaintiffs.
On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Betaco, Inc. v. Cessna Aircraft Co. , 32 F.3d 1126, 1138 (7th Cir. 1994). In evaluating a motion for summary judgment, "[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994).
1. Negligent Hiring and Retention Claim
Plaintiffs' Second Amended Complaint alleges a claim against Defendants FedEx Ground and Hard Drive for Negligent Hiring and Retention. Defendants argue that this claim fails as a matter of law (Doc. 79).
The Court here will interpret state law "to determine how the state's highest court would rule."...
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