Hamlett v. Carroll Fulmer Logistics Corp.

• Decision Date: 06 April 2016
• Docket Number: Case No. CV415-001
• Citation: 176 F.Supp.3d 1360
• Parties: Leroy Hamlett and Marsha Hamlett, Plaintiffs, v. Carroll Fulmer Logistics Corporation, Steven George Swartz and Protective Insurance Company, Defendants.
• Court: U.S. District Court — Southern District of Georgia

176 F.Supp.3d 1360

Leroy Hamlett and Marsha Hamlett, Plaintiffs,

v.Carroll Fulmer Logistics Corporation, Steven George Swartz and Protective Insurance Company, Defendants.

Case No. CV415-001

United States District Court, S.D. Georgia, Savannah Division.

Signed April 6, 2016

E. Michael Moran, Peter A. Law, Edward A. Piasta, Law & Moran, Atlanta, GA, Michael G. Hostilo, Law Office of Michael G. Hostilo, Pooler, GA, for Plaintiffs.

Brent Michael Estes, John D. Dixon, Dennis, Corry, Porter & Smith, LLP, Atlanta, GA, for Defendants.

ORDER

G. R. SMITH

, UNITED STATES MAGISTRATE JUDGE

After he returned from his overseas military deployment in 2014, Sergeant First Class Leroy Hamlett crashed his motorcycle into a truck driven by George Swartz and owned by Swartz's employer, Carroll Fulmer Logistics Corporation (CFLC).¹ Doc. 1-1 at 3; doc. 55 at 4. Georgia State Patrol Trooper Robert L. Scott, Jr. examined the scene just after the accident and found Swartz at fault. The crash occurred on a four-lane road in Richmond Hill, Georgia. Hamlett had the right-of-way but Swartz made a left turn from his oncoming lane, causing Hamlett to collide with his truck's front end. See doc. 37-2 at 89 (official accident report diagram). Scott issued an O.C.G.A. § 40–6–73

(failure to yield) citation to Swartz, who paid the fine. Doc. 1-1 at 3; doc. 55 at 4; doc. 68 at 13. Hamlett and his wife (consortium claim) sued Swartz, CFLC, and CFLC's insurer. Doc. 1-1.² He seeks compensatory and punitive damages, plus O.C.G.A. § 13–6–11

attorney fees and costs.³

Id.

The defendants move for summary judgment against plaintiff's punitive damage and attorney fee claims. Docs. 34, 35 & 40. They also move to exclude expert witness Jeffrey Alan Kidd's testimony about his calculations and diagrams because he failed to produce them with his written report by the Court's disclosure deadline. Doc. 38. Finally, they move to exclude from trial Scott's testimony on these topics: whether Hamlett was a cause of the accident; the percentage of Swartz's fault; whether Hamlett should have avoided Swartz's tractor trailer; and Hamlett's alleged speed at impact. Doc. 37. The summary judgment motions are before the district judge. The exclusion motions are reached here.

I. ANALYSIS

A. Kidd's Testimony

Hamlett hired Kidd as an accident reconstruction expert who, unsurprisingly, lays all the blame on Swartz. Doc. 25 at 3. His report supplies only the sources he'd been provided to review, then states his conclusions: that Swartz's failure to keep a proper lookout and yield while turning left (he turned into Hamlett's path) “is the sole cause of this collision.” Id. His report was incomplete, defendants contend, when it was disclosed to them by the Court's July 23, 2015 deadline.⁴ Doc. 38-1. They insist he should not be permitted to supplement it after that deadline, during his deposition. Rule 26, they remind, prohibits procrastination and sandbagging.⁵ Doc. 38-1.

Hamlett counters that Kidd's report was only technically deficient. He expresses surprise at the defendants' objection. The parties, he explains, have worked harmoniously on this matter, conferring in early August 2015 to schedule Kidd's deposition for September 3, 2015. Doc. 45 at 4. He says he fully complied with defendants' Notice to Produce on that deposition, and on August 24, 2015 — the week before Kidd's deposition — the defendant's produced their accident reconstructionist's (James Sloan's) report. Id. at 4-5. Hamlett provided that report to Kidd, who thus was able to respond and be cross-examined about it in defendants' lengthy deposition of him. Id.⁶ “Just as Mr. Kidd, Sloan produced his file at his deposition,” and “Mr. Sloan thoroughly critiqued Mr. Kidd's opinions during his deposition.” Doc. 45 at 6.

Too, Hamlett reminds, defendants failed to object on untimeliness grounds, even during Kidd's deposition. In fact, they waited until over a month after Hamlet deposed Sloan (on September 28, 2015) to complain. Doc. 45 at 5-6. Plaintiff represents that “[t]he parties appeared to be working together to efficiently manage expert discovery without this Court's involvement. It is only four months later that [d]efendants raise any issue with Mr. Kidd's report.” Id. at 6.

Hamlett makes some valid points. Some flexibility in the discovery process is tolerable, depending on the circumstances. And some objections can seem nit-pickish. Defendants, for that matter, concede that they did not object to Kidd's report when they first received it. Doc. 61 at 1. But that's because, they explain, they had no objections to Kidd's report at that time. They object now only to new opinions that Kidd first presented in his deposition (filed at doc. 38-4).

So, they conclude, Kidd can testify that Swartz failed to yield while turning left, turned into Hamlett's path, and — on that basis only — is the sole cause of the collision. Doc. 61 at 1-2. But they object to and want to exclude the new opinions that Kidd supplied at his deposition, including testimony about Hamlett's ability to perceive and react to avoid the accident. That, they insist, violates what Rule 26(a)(2)(B)(i)

otherwise requires: a “complete statement of all opinions the witness will express and the basis and reasons for them....” Id. (emphasis added); see also id. (expert reports must include “how” and “why” the expert reached a particular result, not merely the expert's conclusory opinions).

The Court agrees. The defendant's showing (doc. 61 at 3-7, 8-11) is unrebutted. Rule 26(a)(2)

deters procrastination and sandbagging.⁷ Hamlett did both. It is unacceptable to make a party wait, and thus be surprised, at a deposition. Hamlett provides no satisfactory explanation for missing the deadline here, and the defendants were prejudiced because they were denied, prior to the deposition, the full opportunity to digest Kidd's information and formulate their deposition questions based on the same. To permit procrastinators to point to deposition questions as proof of no prejudice is to neuter the rule and deny adversaries the full benefit of pre-deposition, question-preparation time, if not the option to obviate a deposition expense outright. See supra n. 7. Hence, Kidd will not be permitted to testify on the distance traveled by either vehicle, the time it took for both to impact, or Hamlett's ability to perceive and react to Swartz's truck.⁸ Defendants' exclusion motion is thus GRANTED.⁹

B. Scott's Testimony

To reiterate, Trooper Scott investigated the accident, ticketed Swartz, and opined that Swartz is 100% at fault. Doc. 37-1 at 2, 4 (citing doc. 37-2 at 45-46). Defendants move to exclude only some of his opinions — those they insist fail the admissibility standard established by Fed. R. Evid. 702

and Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).¹⁰ Doc. 37-1 at 2. They “do not seek to exclude or limit Scott's testimony regarding his accident scene observations, investigation results, or other non-speculative, fact-based testimony. However, [they] do seek to exclude certain testimony by Scott which is unsupported by the evidence and his investigation and is basically a guess or conjecture on Scott's part.” Id. They illuminate the fact that:

“Scott speculates Plaintiff was not travelling at or near the speed limit of 45 miles per hour.” Id. at 4 (emphasis added).

“Scott has no knowledge of Plaintiff's ability to perceive and react to Swartz's tractor trailer.” Id. at 5.

“Scott blindly assumes Plaintiff attempted to avoid Swartz's tractor.” Id. at 6.

Hence, they want to prevent Scott from testifying about Hamlett's alleged speed at impact plus his inability to perceive and react to Swartz's tractor trailer at any time before impact. They also want to block his testimony consisting of, and in support of, the following conclusions:

1. Plaintiff did not cause or contribute to this accident;

2. Plaintiff was a 100% victim, thus Swartz was 100% at fault for the accident;

3. Plaintiff attempted to avoid Swartz's tractor before the accident occurred.

Doc. 37-1 at 7 (renumbered).

From Daubert

-applying cases like Kumho,

Roper v. Kawasaki Heavy Industries, Ltd. , 646 Fed.Appx. 706, 708, 2016 WL 1085489 at *2 (11th Cir. Mar. 21, 2016), Green Party of Ga. v. Kemp , 171 F.Supp.3d 1340, 1348 n. 8, 2016 WL 1057022 at *4 n. 8 (N.D.Ga. Mar. 17, 2016)

, Emery v. Talladega College , 169 F.Supp.3d 1271, 1275, 2016 WL 880038 at *2 (N.D.Ala. Mar. 8, 2016), and Rudd v. Gen. Motors Corp. , 127 F.Supp.2d 1330, 1342 (M.D.Ala.2001) (recognizing that the expert's ability to settle on a cause “through a process of eliminating alternative possible causes is, by a preponderance of the evidence, a reliable one”), useful “Daubert questions” can be distilled to evaluate contemplated expert testimony:

1. Is the opinion based on concrete data or testing?

2. Are the conclusions logically supported by the facts of the case?

3. Did the expert rely on testimony which itself was unreliable?

4. If he has posited an experience-based opinion, as opposed to a purely scientific opinion,¹¹ is it based on the same level of intellectual rigor that characterizes the practice of an expert in the relevant field?

5. Did the expert fail to explain how his experience led him to the conclusions he reached?

6. Does his testimony rest on too great an analytical gap between the data and the opinion proffered?

7. Does his testimony help the trier of fact by offering something more than a lawyer's closing argument?

8. Have other courts considered his testimony and found him to be a reliable witness?

Finally, even if expert testimony does not meet all or most of the Daubert

factors, it “may sometimes be admissible.” United States v. Brown , 415 F.3d 1257, 1268 (11th Cir.2005). Some flexibility is applied in reliability determinations, United States v. Frazier , 387 F.3d 1244, 1262 (11th Cir.2004), and it is “not the role of the district court to make ultimate conclusions as to the persuasiveness of the...