Kilhullen v. Kansas City Southern Ry.
| Citation | 8 So.3d 186 |
| Decision Date | 01 April 2008 |
| Docket Number | No. 2006-CA-01564-COA.,2006-CA-01564-COA. |
| Parties | Gigi KILHULLEN, Appellant, v. KANSAS CITY SOUTHERN RAILWAY and Robert W. Lay, Appellees. |
| Court | Mississippi Court of Appeals |
Barry W. Gilmer, Reid S. Bruce, Jackson, attorneys for appellant.
Charles E. Ross, Jackson, William B. Lovett, attorneys for appellees.
Before MYERS, P.J., IRVING and ISHEE, JJ.
IRVING, J., for the Court.
¶ 1. Gigi Kilhullen sued Kansas City Southern Railway (KC Southern) and Robert Lay (collectively, the Appellees), alleging that they caused the wrongful death of her husband, Thomas Kilhullen. Following discovery, the Scott County Circuit Court granted summary judgment on behalf of the Appellees. Aggrieved, Kilhullen appeals and asserts that the court erred (1) in rejecting the affidavit of Jimmy Shelton, whom Kilhullen offered as a lay witness; (2) in rejecting the affidavit of Jimmy Halfacre, an engineer hired by Kilhullen; (3) in rejecting the affidavit of Brett Alexander, an accident reconstructionist hired by Kilhullen; (4) in granting KC Southern and Lay's motion for summary judgment, and (5) in setting out a schedule for discovery that allowed the Appellees to conduct discovery while Kilhullen could not.
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. On June 20, 2000, Thomas, a tractor-trailer operator, had just picked up a load at International Paper Company's plant in Morton, Mississippi, when he proceeded south on Herring Road away from the plant. As Thomas proceeded south to a nearby railroad crossing, over the railroad tracks, he was hit by a KC Southern train operated by Lay, an engineer. Thomas died from his injuries.
¶ 4. Lay stated that he blew the train's whistle repeatedly and put the train "in emergency" in an attempt to avoid the accident. Only one non-party eyewitness, Classie Ward, is known to exist. Ward stated in an affidavit that she observed Thomas moving very slowly over the railroad tracks. In Ward's opinion, Thomas should have been able to see the train and should have been able to avoid the accident by not passing over the railroad tracks in question.
¶ 5. On December 4, 2001, Kilhullen filed suit against the Appellees, alleging that they allowed the line of sight at the crossing to become obstructed.1 Discovery was conducted by all parties, and several continuances were ordered. On October 22, 2004, the Appellees filed a motion for summary judgment, alleging that Kilhullen had failed to raise a genuine issue of material fact. Shortly thereafter, Kilhullen noticed the depositions of seventeen different individuals. Pursuant to the notice, Kilhullen filed a motion to hold the motion for summary judgment in abeyance due to the outstanding depositions. On the day before the scheduled summary judgment hearing, Kilhullen produced affidavits from Shelton and Halfacre in opposition to the motion for summary judgment.
¶ 6. On November 19, 2004, Kilhullen filed a motion to compel discovery from the Appellees. The Appellees filed a motion to strike the motion to compel on December 7, 2004, arguing that Kilhullen had not made a good faith effort to resolve the discovery issues before filing the motion to compel. The same day, the Appellees filed a motion to quash Kilhullen's attempt to take the depositions of the seventeen noticed witnesses. On December 15, the Appellees filed a reply in further support of their motion for summary judgment and a motion to strike Shelton's affidavit on the ground that he was not offering a lay opinion. On January 3, 2005, Kilhullen filed a response to the motion to strike the affidavit, arguing that Shelton was indeed testifying as a lay witness. On January 5, 2005, the court held a hearing but did not finally rule on the motion for summary judgment.
¶ 7. On January 25, 2005, the court put a moratorium on any further discovery in the case, with the exception that the Appellees could depose Halfacre and Shelton, whose identities had been disclosed only in response to the motion for summary judgment. The court also held the motion for summary judgment in abeyance pending a hearing on whether Shelton and Halfacre's affidavits were admissible. Despite the court's moratorium, on August 19, 2005, Kilhullen's attorney informed the Appellees that Kilhullen had another witness, Alexander, an accident reconstructionist whose opinion would be offered to bolster Halfacre's findings. An affidavit from Alexander was filed on April 20, 2006.
¶ 8. After a hearing in June 2006, the trial court rendered a final opinion disposing of both the discovery issues and the motion for summary judgment, which the court found were "inextricably joined or intertwined." The court found that Shelton's and Halfacre's affidavits were inadmissible because neither was qualified to render an opinion under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court also found that Alexander's affidavit was inadmissible. Accordingly, the court found that there was no genuine issue of material fact and granted summary judgment on behalf of the Appellees. In its opinion, the court erroneously stated that Lay, the engineer who drove the train, was the only eyewitness to the accident. In reality, the accident was also witnessed by Ward, who was near enough to the railroad crossing to observe what happened.
¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶ 10. Kilhullen argues that Shelton's affidavit was admissible as the opinion of a lay witness. Rule 701 of the Mississippi Rules of Evidence governs the admissibility of lay witness testimony:
If the witness is not testifying as an expert the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
(Emphasis added).
¶ 11. Shelton's opinion was not admissible as lay testimony because it was based on "scientific, technical, or other specialized knowledge." Essentially, Shelton's opinion was that of an expert, except that he was not qualified as such. To illustrate, we quote at length from Shelton's affidavit:
My name is Jimmy Shelton. I was reared and attended school in Leake County, Mississippi. I am employed as a paralegal and investigator with the Gilmer Law Firm and have been so employed since April, 2002.
* * * * * *
I have visited the site of the accident on two occasions. I have observed three trains traveling over the subject grade crossing. I positioned myself fourteen feet from the railroad track headed south on Herring Road. The line of visibility to the east along the railroad track at which time one could first possibly visualize the oncoming train is approximately three hundred seventy-five feet from the crossing. I observed numerous vehicles such as compact and full size automobiles, pick-up trucks, school buses and other vehicles cross the tracks after coming to a complete stop. Said vehicles required a minimum of six seconds and a maximum of eight seconds to cross the tracks operating under usual conditions.
The railroad tracks are eighteen feet in width at the crossing and the tracks run in an east and west direction. The railroad guard device which lowers as the train approaches is situated fourteen feet from the nearest track. Herring Road crosses the railroad track at approximately a seventy degree angle. If the tractor trailer rig driven by Mr. Kilhullen stopped two feet to the north of this railroad guard device, then Mr. Kilhullen's head would have been situated approximately twelve feet north of the guard device. Given that Mr. Kilhullen's seat of his truck was five feet off the ground at the position of his truck at the crossing, his line of sight was approximately three hundred seventy-five feet to the point he could have first seen the locomotive with vegetation presently cleaned from the area. The original photographs taken immediately after the accident show vegetation at the point his line of sight would have allowed him visibility of the oncoming train. Therefore his visibility was materially shortened to a distance of less than three hundred seventy-five feet.
I observed an empty school bus come to a full stop and cross the railroad tracks which required a total of eight seconds and a second empty school bus which required seven seconds to cross the tracks. The Kilhullen tractor trailer rig exceeded fifty feet long loaded with lumber and would require in excess of eight seconds such as the school bus to completely cross the subject railroad tracks. Considering that the admitted speed of the train was fifty miles per hour which constitutes seventy three and one third feet per second and considering the point that Mr. Kilhullen could first see the front of the locomotive of the train, he would have had approximately five seconds to move the tractor trailer rig across the tracks.
Simple arithmetic calculations commonly learned by junior high and high school children allow a lay person to make the elementary calculations and draw the proper conclusions of the movement of Mr. Kilhullen's truck and the speed of the train. I am an experienced truck driver having operated tractor trailer rigs hauling farm equipment and other heavy equipment. Considering that the Kilhullen rig was fully loaded with lumber and his rig was approximately fifty feet long, the front bumper of his truck was approximately two feet from the guard device (sixteen feet from the north track), the distance from the guard device to the north side of the tracks is fourteen feet and the distance from the north side of the tracks to the south side of...
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