Stiefel v. Malone
| Decision Date | 08 February 2021 |
| Docket Number | Case No. 4:18-cv-01540-SGC |
| Parties | DAX JONATHAN STIEFEL, Plaintiff, v. ROBERT K. MALONE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This is a personal injury action arising out of a motor vehicle accident. Pending before the undersigned are two motions to strike and a motion for partial summary judgment filed by defendants Robert K. Malone ("Malone") and Greenwood Motor Lines, Inc., d/b/a R+L Carriers ("Greenwood"). (Docs. 74, 78, 84).
Benjamin Bradford Laney ("Laney") and Dax Jonathan Stiefel ("Stiefel") commenced this action in the Circuit Court of DeKalb County, Alabama, and defendants Malone and Greenwood timely removed it to this federal district court.(Doc. 1).2 Gerald Don Laney, d/b/a Laney Electric, Limited Liability Company ("Laney Electric"), was added as a plaintiff after removal. (Doc. 31). The plaintiffs' negligent hiring, training, supervision, and entrustment claims have been dismissed as lacking facial plausibility, and all remaining claims asserted by Laney and Laney Electric have been dismissed by joint stipulation (Docs. 52, 77). Accordingly, the only remaining claims are Stiefel's claims against Malone for negligence and wantonness and claims seeking to hold Greenwood liable for Malone's negligence and wantonness on theories of agency and respondeat superior. Malone and Greenwood seek summary judgment only as to Stiefel's wantonness claims against Malone and Greenwood. (Doc. 78). These defendants also seek to preclude the admission of opinions offered by Whitney Morgan, who Stiefel designated as a trucking expert, and by H. Randall Griffith, Ph.D., ABPP-CN, regarding Stiefel's cognitive and emotional status (Docs. 74, 84). For the reasons discussed below, the motion to strike Dr. Griffith's opinions is due to be granted, the motion to strike Morgan's opinions is due to be granted in part and denied in part, and the motion for partial summary judgment is due to be granted. (Docs. 74, 78, 84).
The accident at issue occurred during the day of May 17, 2018, on a flat, straight section of Gault Avenue in Fort Payne, Alabama, which has no line-of-sight obstructions. (Doc. 68-1 at 47; 78-2 at 11; Doc. 78-3 at 2). Laney and Stiefel were travelling north on Gault Avenue in a 2001 Chevrolet C34 pickup truck (the "pickup truck"); Laney was driving the pickup truck, and Stiefel was riding in the front passenger seat. (Doc. 78-3 at 2-3). Malone, who was driving a commercial motor vehicle (the "CMV") in furtherance of Greenwood's business, turned onto Gault Avenue and travelled north for less than one-half of a mile behind the pickup truck. (Doc. 68-1 at 47; Doc. 79 at 3; Doc. 81 at 3). When the pickup truck slowed or stopped to allow a sedan in front of it to make a right turn off Gault Avenue into the parking lot of a fast-food restaurant, the CMV collided with it. (Doc. 78-1 at 11; Doc. 79 at 3; Doc. 81 at 3). Cameras positioned at two nearby businesses captured the accident on video. (Doc. 82).
In the one minute immediately preceding the accident, the CMV's speed did not exceed the 35-mile-per-hour speed limit. (Doc. 78-2 at 20). Stiefel asserts Malone testified he could not recall whether he applied the CMV's brakes at allbefore impact. (Doc. 81 at 5).4 However, Stiefel's accident reconstruction expert determined Malone did apply the CMV's brakes within one second before impact. (Doc. 78-2 at 12). At the moment of impact, the CMV was travelling at a speed of 28-to-30 miles per hour, while the pickup truck was travelling at a speed of seven-to-eight miles per hour. (Id. at 20).
Malone testified he was familiar with the section of Gault Avenue where the accident occurred and knew vehicles would have to slow down to turn right into the businesses off the roadway. (Doc. 68-1 at 10, 46-48). However, he did not see the sedan turning right off Gault Avenue, observe brake lights or a turn signal on the pickup truck, or realize before the moment of impact he would collide with the pickup truck. (Id. at 50-51, 54). Instead, he thought the pickup truck was turning into the parking lot of the fast-food restaurant and would be clear of Gault Avenue before the CMV reached it. (Id. at 49). Malone further testified he did not recall consuming alcohol the evening before the accident, did not consume alcohol and was not fatigued on the morning of the accident, and was not using his cell phone or otherwise distracted at the time of the accident. (Id. at 45, 48-49, 51).
Malone and Greenwood seek to preclude the admission of Dr. Griffith's opinions on procedural grounds, pursuant to Rule 26(a)(2) and Rule 37(c)(1) of the Federal Rules of Civil Procedure. Stiefel has failed to submit any response to this request.
Rule 26(a)(2) requires a party to disclose to the other parties the identities of expert witnesses who may testify at trial. FED. R. CIV. P. 26(a)(2)(A). In addition to disclosing the experts' identities, a party generally must disclose the experts' written reports, if the experts are retained or specially employed to provide expert testimony. FED. R. CIV. P. 26(a)(2)(B); see also Prieto v. Malgor, 361 F.3d 1313, 1317-18 (11th Cir. 2004) (); Reese v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008) () (citing FED. R. CIV. P. 26(a)(2)(B)). Each such report is required to contain a complete statement of the expert's opinions, the expert's qualifications, a list of all other cases in which the expert has testified in the previous four years, and a statement of the compensation to be paid for the expert's testimony, amongst otherthings. FED. R. CIV. P. 26(a)(2)(B). A party must make its expert witness disclosures within the time prescribed by court order. FED. R. CIV. P. 26(a)(2)(D).
"[T]he expert disclosure rule is intended to provide opposing parties reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Reese, 527 F.3d at 1265 (internal quotation marks omitted). "The rule also seeks to allow for opposing counsel to have an 'opportunity to depose [the disclosed expert], proffer a rebuttal expert, or file a Daubert motion.'" Rondini v. Bunn, 2020 WL 136858, at *2 (N.D. Ala. Jan. 13, 2020) (quoting Reyes v. BJ's Rests., Inc., 774 F. App'x 514, 517 (11th Cir. 2019)). "Because the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise, compliance with the requirements of Rule 26 is not merely aspirational." Reese, 527 F.3d at 1266.
A party's failure to provide its expert disclosures within the time prescribed precludes it from using the expert or his testimony on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless. FED. R. CIV. P. 37(c)(1) (); see also OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir. 2008) () (emphasis in original). " 'The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.'" Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (quoting Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)). In determining whether a failure to disclose was substantially justified or is harmless, the Eleventh Circuit has instructed courts to consider "the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party . . . ." Lips v. City of Hollywood, 350 F. App'x 328, 340 (11th Cir. 2009) (citing Romero v. Drummond Co., Inc., 552 F.3d 1303, 1321 (11th Cir. 2008)). "A district court has broad discretion to exclude expert testimony when a party fails to comply with its deadlines," Woodard v. Town of Oakman, Alabama, 970 F. Supp. 2d 1259, 1267 (N.D. Ala. 2013), and review of a district court's decision whether to exclude expert testimony under Rule 37 as a sanction for a Rule 26 violation is "limited and deferential." Mitchell, 318 F. App'x at 825.
The deadline for Stiefel's expert witness disclosures was January 15, 2020. (Docs. 24, 59). On that date, Stiefel submitted an "Expert Disclosure Statement" which identified Dr. Griffith as one of several "physicians . . . [who] will testify in accordance with [Stiefel's] medical records and bills regarding [his] knowledge and observations related to [Stiefel's] condition, diagnosis, injury, permanent injury,treatment, and prognosis." (Doc. 74-1). Based on the description of Dr. Griffith's anticipated testimony and the fact that the other physicians identified in the disclosure were Stiefel's treating providers, defense counsel assumed Dr. Griffith was disclosed as a treating provider rather than an expert witness. (Docs. 74, Doc. 74-2). On May 6, 2020, defense counsel requested clarification regarding Dr. Griffith's role in this litigation because Stiefel had not previously identified Dr. Griffith as on one of his treating providers in his interrogatory responses or deposition testimony. (Doc. 74-2). Stiefel's counsel did not respond to the inquiry. (Doc. 74). Following the futile attempt to...
To continue reading
Request your trial