Lohr v. Zehner, CIVIL ACTION NO. 2:12cv533-MHT (WO)
| Decision Date | 23 June 2014 |
| Docket Number | CIVIL ACTION NO. 2:12cv533-MHT (WO) |
| Parties | RICHARD I. LOHR, II, as Administrator of the Estate of Charles David Fancher, Deceased, Plaintiff, v. JOSEPH EARL ZEHNER, III, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Plaintiff Richard I. Lohr, II, as administrator of the estate of Charles David Fancher, filed this wrongful-death lawsuit against defendants Joseph Earl Zehner, III and United Parcel Service, Inc. (UPS), among others. The lawsuit arises out of a series of highway collisions that resulted in Fancher's death. The cause is before the court on Zehner and UPS's motion to exclude the testimony of administrator Lohr's proffered expert Michael Napierfrom consideration during summary judgment and at trial by the jury.
Fed. R. Evid. 702 allows experts to offer opinion testimony if:
Fed. R. Evid. 702. If an expert's testimony is otherwise admissible, he may testify to the ultimate issue in a civil case. Fed. R. Evid. 704(a).
Before an expert may testify, the court must play a gatekeeping role to ensure that the testimony is reliable.See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Even if part of an expert's testimony is based on unreliable methodology, the court should allow those parts that are reliable and admissible. United Fire and Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1342 (11th Cir. 2013).
The facts of this case are complex and disputed. For the purpose of this opinion, however, it is helpful to include some basic and undisputed facts. Early in the morning, before sunrise, Zehner was driving a UPS tractor-trailer on an interstate highway, when he collided with the rear of another tractor-trailer, and his truck turned on its side, blocking the highway. Approximately 20 minutes later, Fancher, approached Zehner's upturned truck, collided with it, and died.
Administrator Lohr now argues that Zehner was negligent and wanton in the events leading to and following the initial collision. He also points to several accidents and violations on Zehner's record before the accident and alleges that UPS was negligent and wanton in its response to those previous infractions.
Administrator Lohr proffers Napier as an expert in trucking safety and management, and no party challenges his qualifications. However, Zehner and UPS challenge Napier's testimony on several grounds, none of which would exclude the entirety of his testimony.
In response to Zehner and UPS's motion to exclude his testimony, Napier submitted an affidavit, dated April 28, 2014, that describes in further detail the nature of his expertise and the opinions he would present at trial.Zehner and UPS seek to exclude any information or opinions in this new affidavit as undisclosed opinions.
The Federal Rules of Civil Procedure require that a party disclose the identity of any expert witnesses and, for witnesses such as Napier who were retained as experts, a written report that contains "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed. R. Civ. P. 26(a)(2)(B). If an opinion is undisclosed, it should be excluded unless the non-disclosure "was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
Administrator Lohr seems to confuse this argument with the 'sham affidavit' concept in summary-judgment proceedings. See Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)("any issue raised by affidavit which was flatly contradicted by an earlier deposition was so suspect of untruthfulness as to be disregarded as a matter of law"). Zehner and UPS argue, not that Napier's affidavit contradicts his earlier testimony, but that itpresents altogether new opinions. That said, it is difficult to see what new opinions the affidavit puts forward or, to the extent the opinions in the affidavit differ or strengthen the basis for Napier's earlier opinions, how the new opinions prejudice Zehner and UPS in any way. In other words, to the extent that there are new opinions in this affidavit, the non-disclosure is harmless. The court will consider the affidavit.
Zehner and UPS challenge Napier's testimony with regard to the events leading to the collisions and Zehner's alleged negligence. They argue that his "opinions are not beyond the ken of lay persons" and that the opinions "seek to impose a higher standard ... than is allowed by Alabama law." Mot. to Exclude (Doc. No. 113-1) at 6-7. Both of these arguments lack merit.
In order to prove negligence on the part of Zehner, administrator Lohr must show that Zehner failed toexercise reasonable care, "that is, such care as [a] reasonably prudent person would have exercised under the same or similar circumstances." Klein v. Mr. Transmission, Inc., 318 So. 2d 676, 679 (Ala. 1975) (). Zehner and UPS argue that most jurors will have driven an automobile and that, as a result, most jurors will have a common-sense understanding of the attendant responsibilities in a crash situation. They argue that any testimony about the differences between safely driving a truck and safely driving an ordinary automobile would impose a higher standard of care on Zehner. In support of this proposition, they point to Gunnells v. Dethrage, 366 So.2d 1104, 1106 (Ala. 1979), which rejected an argument that minor drivers should be allowed a lower standard of care than the standard to which adults are held.
Gunnells does not support Zehner and UPS's argument because the difference between negligence in driving a tractor-trailer, as opposed to a sedan, is not adifference in the standard of care but instead a difference in the circumstances. The reasonably-prudent-person standard applies, but the law recognizes that a reasonably prudent person acts differently in different situations. A tractor-trailer is a significantly larger and more dangerous vehicle than an automobile and it is a significantly different kind of vehicle from that driven by an ordinary juror. As a result, the circumstances within which a tractor-trailer driver must exercise care are quite different from the circumstances with which most jurors will be familiar. The testimony of an expert on how to drive a truck safely will be helpful to the jury.
Furthermore, it is well-established under Alabama law that the customs and practices within an industry may be considered by a jury, but are not determinative, when deciding whether the standard of care has been breached in a given situation. "The common usage of a business or occupation is a test of care or negligence, and is aproper matter for consideration in determining whether or not sufficient care has been exercised." Klein, 31 So.2d at 441-42 (); see also King v. Nat'l Spa & Pool Inst., Inc., 570 So. 2d 612, 616 (Ala. 1990) ().
Napier is qualified to offer insights to the jury as to the nature of driving a tractor-trailer and the industry practices for driving such a truck safely. Furthermore, under Fed. R. Evid. 704, he may offer his opinion as to whether, on his review of the various accident reports, Zehner failed to exercise the appropriate degree of care consistent with industry customs and practices.
Zehner and UPS seek to bar Napier from offering interpretations of the Federal Motor Carrier Safety Regulations and opinions as to whether Zehner and UPS violated those regulations. They argue that any testimony about the regulations would be offering conclusions of law and intruding on the role of the court. In support, they point this court to an unpublished opinion from the Northern District of Georgia, which cited Seventh and Eighth Circuit opinions that excluded testimony about the meaning of regulations. Ricker v. Southwind Trucking, Inc., 2006 WL 5157692 at *8 (N.D. Ga. July 13, 2006) (Murphy, J.) (). However, there is no per se bar on expert testimony about regulations in the Eleventh Circuit. See United State v. Gold, 743 F.2d 800, 817 & n.10 (11th Cir. 1984) (); see also United States v. Sinclair, 74 F.3d 753, 757 n.1 (7th Cir. 1996) ().
Alabama law does not recognize a negligence-per-se cause of action based on the Federal Motor Carrier Safety Regulations, but such regulations may be considered by a jury to determine whether a defendant exercised appropriate care for the situation. Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317, 1326 (Ala. 1984). Furthermore, common sense suggests that trucking industry practices around safety are heavily influenced by the regulations on the industry. There is no need to demand that Napier eliminate all references to the regulations in his testimony.
Although Napier...
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