Lohr v. Zehner, CIVIL ACTION NO. 2:12cv533-MHT (WO)

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtMyron H. Thompson
PartiesRICHARD I. LOHR, II, as Administrator of the Estate of Charles David Fancher, Deceased, Plaintiff, v. JOSEPH EARL ZEHNER, III, et al., Defendants.
Docket NumberCIVIL ACTION NO. 2:12cv533-MHT (WO)
Decision Date23 June 2014

RICHARD I. LOHR, II, as Administrator
of the Estate of Charles David Fancher, Deceased, Plaintiff,
JOSEPH EARL ZEHNER, III, et al., Defendants.



June 23, 2014


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 Napier

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from consideration during summary judgment and at trial by the jury.


Fed. R. Evid. 702 allows experts to offer opinion testimony if:

"(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
"(b) the testimony is based on sufficient facts or data;
"(c) the testimony is the product of reliable principles and methods; and
"(d) the expert has reliably applied the principles and methods to the facts of the case."

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.

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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.

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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.

A. Napier's Affidavit of April 28, 2014

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.

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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 it

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presents 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.

B. Standard of Care

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 to

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exercise 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) (quoting jury instructions approvingly). 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 a

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difference 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...

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