Davis v. Bellsouth Telecomms., Inc.

• Decision Date: 16 August 2012
• Docket Number: 7:10-cv-02851-LSC
• Court: U.S. District Court — Northern District of Alabama
• Parties: ROBERT A. DAVIS, et al., Plaintiffs; v. BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T ALABAMA, et al., Defendant.

ROBERT A. DAVIS, et al., Plaintiffs;

v.BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T ALABAMA, et al., Defendant.

7:10-cv-02851-LSC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

Dated: August 16, 2012

MEMORANDUM OF OPINION

I. Introduction

Before this Court is the Motion for Summary Judgment¹ (Doc. 40) filed by Defendant BellSouth Telecommunications, Inc. ("BellSouth"), BellSouth's Motion to Exclude the Expert Testimony of Plaintiffs' expert Donald R. Johnson (Doc. 37), and BellSouth's Motion in Limine (Doc. 55).² The motions have been briefed and arenow ripe for decision. Upon full consideration of the legal arguments and evidence presented, the Motion to Exclude will be granted and the Motion for Summary Judgment will also be granted.

II. Facts³

Robert A. Davis ("Davis") was driving a tractor-trailer when he struck telephone cables that were hanging low over the road upon which he was traveling. After striking the cables, he lost control of his truck and overturned off a bridge. Davis suffered personal injury and property damage while the other Plaintiffs, who owned an interest in the vehicle and freight, suffered property damage.

It is undisputed that a tree that was more than one hundred feet in height, fell on the phone cables, causing them to hang below their normal clearance height. The tree that fell was located roughly fifty feet from the cables and it fell on a span of the cables that was not adjacent to the road crossing span. The condition of the tree before it fell and the cause of the tree falling are both in dispute. Plaintiffs sued BellSouth instate court for negligence on September 13, 2010 and BellSouth removed the case to federal court on October 21, 2010.

In Plaintiffs' Rule 26 Expert Witness Report, Plaintiffs disclosed one expert, Donald R. Johnson ("Johnson"), a licensed electrical engineer with more than thirty years of experience in the field of electric utility systems including design, implementation, and National Electronic Safety Code ("NESC") Compliance. Johnson was apparently intended by Plaintiffs to establish the duty of care and to prove the breach of that duty by BellSouth. Johnson offered the following opinions in his Rule 26 report:

1) [A] large tree next to a creek fell across the overhead telecommunications cable causing the cable to drop low across the highway and bridge at some time prior to the semi-rig making contact with the low hanging cable. This contact caused the semi-rig to lose control resulting in the accident.⁴

2) BellSouth Telecommunications is obligated to comply with [NESC regulations].

3) Table 232-1 of the NESC, Column 2, Row numbered 3, indicates that the absolute minimum clearance for telecommunications cables above roads, streets, and otherareas subject to truck traffic shall be 15.5 feet. Based upon the investigation there is no doubt that the clearance was obviously below this minimum clearance requirement.

4) Section 218A [of the NESC] . . . states specifically [that] "Vegetation that may damage ungrounded supply conductors should be pruned or removed." Even though [this section] delineates underground supply cables . . . the spirit of the requirements [applies to] properly maintaining vegetation around any overhead lines, especially involving trees, whether they are electrical lines, guy wires, telecommunication lines and messengers, cable television cables, etc. . . . . Had [BellSouth] maintained proper vegetation management and properly trimmed or removed the trees . . . the tree would not have fallen through the line . . . .

5) NESC Section 218B . . . states: "The crossing span and the adjoining span on each side of the crossing should be kept free from overhanging or decayed trees or limbs that otherwise might fall into the line." The intent of this section clearly describes the dangers of trees in close proximity to the overhead lines and the likelihood that falling trees or limbs across overhead utility lines could cause these overhead lines to hang low across highways resulting in highway accidents . . . .

6) The design of the overhead telecommunications line crossing at this particular bridge location was poorly designed. Since the telecommunications cable crossing was directly over the bridge, which was immersed in trees on both sides, along with restricted narrow highway width due to the bridge railings, this cable crossing location was a totally inappropriate design. The vast majority of telecommunications cables are underground. In this particular case the best highway crossing design should havebeen an underground line either under the highway in a bore or suspended under the bridge in conduit.

(Doc. 38 at 3-5.).

On February 16, 2012, Johnson was deposed, at which time he confirmed his Rule 26 disclosed opinions and offered no other opinions that are significant to this Court's decision. It was not until BellSouth filed its Motion for Summary Judgment and Motion to Exclude Johnson's Testimony that Plaintiff submitted an affidavit, signed by Johnson, where he provided the following additional opinions:

7) It is the custom and practice in the industry for utilities to regularly inspect electrical power lines and telecommunication cable rights of way and remove trees or other that could fall across such lines.

8) [T]he tree that allegedly fell was actually growing out of a creek bank which made it more susceptible to falling over with or without heavy wind. Given the location and design of the telecommunication lines in this area it was foreseeable that if this tree fell (for any reason) it could fall on the lines and interfere with the flow of traffic on Highway 17.

9) Given the height of the tree, its location, the location of the nearby telecommunication lines and the fact that a major state highway runs through this area, a reasonable inspection by Bellsouth should have revealed the risk of harm to the telephone lines and the motoring public if the tree fell, regardless of the reason.

(Doc. 52-3 at 2-4.).

III. Daubert Analysis

A. Applicable Law

As a preliminary matter, the Court must address BellSouth's Motion to Exclude the Expert Testimony of Johnson as it will possibly be dispositive of BellSouth's Motion for Summary Judgment. While Federal Rules of Evidence 401 and 402 provide for the liberal admission of relevant evidence, Rules 403, 702, and 703 mitigate against this general policy by giving trial courts discretion to exclude expert testimony that is either unreliable or irrelevant. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1310 (11th Cir. 1999). The Eleventh Circuit Court of Appeals summarized the applicable rules in City of Tuscaloosa v. Harcross Chem., Inc., 158 F.3d 548, 562 (11th Cir. 1998), when it wrote that scientific expert testimony may be admissible if "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue." See also, e.g., Allison, 184 F.3d at 1309; Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1312 (11th Cir. 2000).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court imposed a special duty on trial judges pursuant to Federal Rule of Evidence 702, requiring judges to act as "gate-keepers" to ensure that novel scientific evidence is both reliable and relevant before it is admitted. Later, in Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137 (1999), the Supreme Court expanded its Daubert ruling to apply to expert testimony in all types of cases. The Supreme Court recognized that judges are not trained scientists and that the task imposed by Daubert is difficult in light of their comparative lack of expertise. Allison, 184 F.3d at 1310 (citing General Elec. Co. v. Joiner, 522 U.S. 136, 148 (1997) (Breyer, J. concurring)). Nevertheless, the judge's relatively inexpert attention is considered preferable to "dumping a barrage of questionable scientific evidence on a jury." Id. While this Court is aware of its duty as a gatekeeper, it understands that its role is "not intended to supplant the adversary system or the role of the jury," Id. at 1311, and it recognizes that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.

The primary focus of a Daubert inquiry is on the principles and methodology underlying expert opinion testimony, not the conclusions they generate. Id. at 595. The trial court must be sure the expert "employs in the courtroom the same level ofintellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., 526 U.S. at 152. While it is true that experience alone may qualify an expert witness, this does not mean that experience alone is a "sufficient foundation rendering reliable any conceivable opinion the expert may express." United States v. Frazier, 387 F.3d 1244, 1261 (11th Cir. 2004). "If the witness is relying solely or primarily on experience, then the witness must explain how the 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." Id. (quoting Fed. R. Evid. 702 advisory committee's note (2000 amends.). Accordingly, "the proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence, it is reliable." Allison, 184 F.3d at 1312; see also Joiner, 522 U.S. at 146 ("[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate...