Dortch v. Fowler

• Decision Date: 30 November 2009
• Docket Number: No. 08-5476.,08-5476.
• Citation: 588 F.3d 396
• Parties: Angela DORTCH and Donald Dortch, individually and as natural father of Audrey Dortch and Logan Dortch, Plaintiffs-Appellants, Primax Recoveries, Inc., Intervenor Plaintiff-Appellant, v. Loren FOWLER and Con-Way Transportation Services, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

588 F.3d 396

Angela DORTCH and Donald Dortch, individually and as natural father of Audrey Dortch and Logan Dortch, Plaintiffs-Appellants Primax Recoveries, Inc., Intervenor Plaintiff-Appellant, v. Loren FOWLER and Con-Way Transportation Services, Inc., Defendants-Appellees.

No. 08-5476.

United States Court of Appeals, Sixth Circuit.

Argued: October 13, 2009.

Decided and Filed: November 30, 2009.

ARGUED:

Donald L. Cox, Lynch, Cox, Gilman & Mahan, P.S.C., Louisville, Kentucky, for Appellants. Will H. Fulton, Dinsmore & Shohl, Louisville, Kentucky, for Appellees.

ON BRIEF:

Donald L. Cox, John D. Cox, Lynch, Cox, Gilman & Mahan, P.S.C., Louisville, Kentucky, A. Andrew Draut, Weber & Rose, P.S.C., Louisville, Kentucky, for Appellants. Will H. Fulton, Elizabeth Ullmer Mendel, D. Craig York, Emily K. Fritts, Dinsmore & Shohl, Louisville, Kentucky, for Appellees.

Before: O'CONNOR, Associate Justice;^* GILMAN and GIBBONS, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which O'CONNOR, J., joined. GIBBONS, J. (p. 406), delivered a separate concurring opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This case arises out of a traffic accident involving a vehicle driven by Angela Dortch and a Con-Way Transportation Services, Inc. tractor-trailer driven by Loren Fowler. The accident left Fowler unhurt, but Dortch suffered permanently disabling injuries that caused her to lose all memory of the collision.

Dortch alleges that Fowler's tractor-trailer was in her lane when the accident occurred, and that Con-Way had continued to employ Fowler despite his poor driving record. She brought suit against both Fowler and Con-Way, alleging negligent causation on the part of Fowler (attributable to Con-Way under the doctrine of respondeat superior) and negligent supervision and retention on the part of Con-Way.

The district court granted summary judgment in favor of Con-Way on the negligent-supervision-and-retention claim, and a jury found for Fowler (and thus Con-Way) on the underlying negligence claim regarding the cause of the accident. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

The accident occurred on the curve of a narrow two-lane highway in Louisville, Kentucky. Rain that day had caused the road to be slick. Dortch was driving her sport utility vehicle (SUV), heading east. Fowler was driving a Con-Way tractor-trailer, heading west. The two vehicles collided head on. Jolted by the collision, Fowler's tractor trailer swung sharply to the left, where it crashed into a rock wall on the south side of the highway. Dortch's SUV spun around and came to a stop in the middle of the road, its front left side shattered.

Emergency personnel arrived shortly after the accident, followed roughly 35 minutes later by a team of police officers that included Louisville policeman Clarence Beauford, a trained accident reconstructionist. Officer Beauford and his team interviewed Fowler and examined the scene of the accident, taking pictures and inspecting the road, the surrounding area, and the vehicles. Beauford did not attempt a full accident reconstruction and did not personally take any measurements.

According to his testimony at trial, Officer Beauford found a deep gouge in the pavement that ran from the left front wheel of Dortch's wrecked SUV. This large gouge (the first gouge) traced backward and ended in the tractor-trailer's lane. Mainly relying on this first gouge, Office Beauford concluded that Dortch's SUV crossed into Fowler's lane, causing the accident.

Some time after the accident, an expert hired by Dortch—retired Michigan State Police Officer Thomas Bereza—examined the highway and the vehicles. He determined that the accident occurred when Fowler's tractor-trailer crossed into Dortch's lane. Bereza based this determination on his discovery of a different gouge in the highway's surface, slightly east of the crash site, which was entirely in Dortch's lane. According to Bereza, this gouge (the second gouge) was created by the accident and marked the actual point where the vehicles first collided.

Con-Way employed its own experts, including William Cloyd III, to investigate the accident. Relying on the photographs of the accident and the highway (which had subsequently been repaved), and on his inspection of the vehicles, Cloyd concluded that the second gouge was not caused by the collision between Fowler's and Dortch's vehicles, opining that the first and second gouges differed in size, depth, color, and direction. At trial, both Officer Beauford and Cloyd testified that the accident happened in Fowler's lane, as did an additional Con-Way expert witness, Frank Entwisle, as well as Fowler himself. Bereza was the lone occurrence witness called by Dortch, and his conclusion that the accident began in Dortch's lane, based in large part on the second gouge, was criticized by Cloyd and Entwisle. The jury returned a verdict in favor of both Fowler and Con-Way.

B. Procedural history

Dortch filed suit in the United States District Court for the Western District of Kentucky, and the parties consented to have Magistrate Judge James Moyer preside over the case. Jurisdiction was based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

During discovery, Dortch learned that Fowler had seven prior traffic accidents while driving for Con-Way. This caused her to request further information about these prior accidents. When Con-Way refused to comply with the request, Dortch filed a motion to compel. The district court ruled that Con-Way could withhold information about those accidents that "did not involve bodily injury or occur on public roadways." As a result, Dortch received information on only two of Fowler's seven prior accidents.

Con-Way subsequently moved for summary judgment on Dortch's negligent-supervision-and-retention claim, arguing that Dortch lacked enough evidence to proceed, and characterizing Fowler's undisclosed accidents as involving nothing more than the loading and unloading of cargo. In response, Dortch cited the two accidents that Con-Way had revealed, as well as Con-Way's internal rating of Fowler's driver safety as "marginal," the lowest rating given by the company. Con-Way gave Fowler this rating four months before the accident with Dortch. Dortch again requested discovery of Fowler's undisclosed prior accidents. After rejecting this request, the court granted summary judgment to Con-Way on Dortch's negligent-supervision-and-retention claim.

Before trial, in an effort to disprove Bereza's assertion that the second gouge was created by the accident between Dortch and Fowler, Con-Way researched the history of all reported accidents in the area of the collision, hoping to find evidence of a previous crash that had caused the second gouge. Con-Way discovered reports on a number of accidents in the area, but could find no conclusive evidence that the second gouge predated the accident. As a result, Con-Way filed a motion in limine to exclude its failure to find evidence that the second gouge was there before the accident, arguing that the negative result of its research was irrelevant. Over Dortch's objection, the district court granted the motion, preventing Dortch from cross-examining Con-Way's witnesses about its previous-crash research.

The district court, on the other hand, denied a motion in limine filed by Dortch that sought to prevent the introduction of Officer Beauford's accident report. Dortch argued that other evidence in the case showed that the facts as set forth in the report were untrustworthy and that its conclusions were unreliable. This report was admitted into evidence at trial.

The jury returned a verdict in favor of Fowler and Con-Way on Dortch's claim of negligent causation. This appeal followed.

II. ANALYSIS

A. Standard of review

This court reviews both the district court's discovery and evidentiary rulings under the abuse-of-discretion standard. United States v. Quinn, 230 F.3d 862, 866 (6th Cir.2000) (discovery rulings); United States v. Wagner, 382 F.3d 598, 616 (6th Cir.2004) (evidentiary rulings). When reviewing a district court's decision under this standard, we will "reverse only if we are firmly convinced of a mistake that affects substantial rights and amounts to more than harmless error." Pressman v. Franklin Nat'l Bank, 384 F.3d 182, 187 (6th Cir.2004) (citation and internal quotation marks omitted).

We review de novo a district court's grant of summary judgment. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir.2008). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

B. Evidentiary rulings

1. Admissibility of research on the origin of the second gouge

The trial boiled down to whether the accident occurred in Dortch's or Fowler's lane of travel. Central to that inquiry is whether either of the two gouges (one in each lane) was caused by the underlying accident. Con-Way presented persuasive evidence that the first gouge in Fowler's lane of travel was caused by the accident, and therefore Dortch was at fault for crossing over the dividing line and causing the accident. Dortch countered with her own expert who testified that the second gouge (in her lane) was caused by the underlying accident. In an effort to discredit Dortch's expert, Con-Way undertook an extensive search of past accident records in the hopes of finding some evidence of a past accident that might have caused the second gouge. It failed to find any such evidence to corroborate its theory.

Dortch now challenges the district court's evidentiary ruling precluding her from cross-examining Con-Way's witnesses about the absence of record evidence corroborating its theory that a previous accident caused the second gouge. We conclude that the district court abused its discretion in preventing...