Union Pac. R.R. Co. v. Beemac Trucking, LLC
| Decision Date | 30 April 2013 |
| Docket Number | CASE NO. 8:11CV8 |
| Parties | UNION PACIFIC RAILROAD COMPANY, Plaintiff, v. BEEMAC TRUCKING, LLC, LANDSTAR RANGER, INC., and EDWARD SAMUEL EDLING, Defendants. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Motion in Limine to Exclude Expert Testimony (Filing No. 156) filed by Defendants Landstar Ranger ("Landstar"), Inc., and Edward Samuel Edling; the Daubert Motion to Exclude Expert Opinions and Testimony (Filing No. 159) and the Motion in Limine (Filing No. 206) filed by Defendant Beemac Trucking, LLC ("Beemac"); and the Motion in Limine (Filing No. 203) filed by Plaintiff Union Pacific Railroad Company ("UP"). The motions found at Filing Nos. 156 and 159 are overlapping Daubert motions seeking to preclude the report and testimony of UP's designated expert, William F. Messerschmidt,1 whom UP has designated as an expert to supply testimony concerning data obtained from an electronic control unit ("ECU") that was installed on the grapple truck (the "Truck") relevant to this case. The motions found at Filing Nos. 203 and 206 are non-Daubert motions in limine seeking to preclude various categories of evidence. The parties had an opportunity to address these four motions at a hearing held on April 22, 2013. For the reasons discussed below, theDefendants' Daubert motions (Filing Nos. 156 & 159) will be granted; UP's Motion in Limine (Filing No. 203) will be granted in part; and Beemac's non-Daubert Motion in Limine (Filing No. 206) will be granted in part.
In January 2010, Beemac, agreed to transport for UP the Truck from Benedict, Kansas, to Riverton, Louisiana. Beemac arranged to have Landstar transport the Truck for UP, and Edling, an owner/operator of Landstar at the time, was the driver who physically transported the Truck from Kansas to Louisiana. The Truck arrived at the delivery site the night of January 12, 2010, and at approximately 2:00 a.m. on January 13, 2010, a UP train collided with the Truck, which was parked on the railroad tracks.
On January 12, 2011, UP brought this lawsuit asserting five causes of action: (1) negligence against all the Defendants; (2) contractual indemnity against Beemac; (3) common law indemnity against all the Defendants; (4) breach of contract against Beemac; and (5) a claim under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706 et seq., against Beemac and Landstar. On March 7, 2013, the Court ruled on the parties cross-motions for summary judgment and dismissed UP's state law claims. (See Filing No. 196.) UP's only remaining claim is its Carmack Amendment claim.
"To make a prima facie case under the Carmack Amendment, a plaintiff must show 1) delivery to the carrier in good condition; 2) arrival in damaged condition3 ; and3) the amount of damages caused by the loss." Camar Corp. v. Preston Trucking Co., Inc., 221 F.3d 271, 274 (1st Cir. 2000) (citing Mo. Pac. R. Co. v. Elmore & Stahl, 377 U.S. 134, 137-38 (1964)); see also Cont'l Grain Co. v. Frank Seitzinger Storage, Inc., 837 F.2d 836, 839 (8th Cir. 1988). If the shipper establishes its prima facie case, "to avoid liability the carrier must prove that it was not negligent and that the damage was caused by an act of God, the public enemy, the act of the shipper himself, public authority, or the inherent vice or nature of the goods." Cont'l Grain Co., 837 F.2d at 839. At this time, with respect to UP's prima facie case, only the second element is at issue.4 In other words, with respect to liability, still at issue in this case is whether the Truck was "delivered" before it was destroyed in the January 13, 2010, train collision, therefore not arriving in a damaged condition.
UP has indicated that it intends to use the testimony of Messerschmidt to offer opinions about data retrieved from the ECU, a device that tracked the Truck's engine use. Messerschmidt testified at the April, 22, 2013, hearing that the ECU tracked the Truck's engine use by generating two reports: (1) a daily engine usage report thatdivided the twenty-four hour day into two-hour increments, indicating during each two-hour increment the total number of minutes the Truck was either driven, idle, or off; and (2) a "last stop" record, which kept track of more specific information for the last one minute and forty-five seconds before (a) the Truck was brought to a stop and the ignition turned off or (b) the Truck sat idle for fifteen minutes, and for the fifteen seconds thereafter. UP has indicated that through Messerschmidt's testimony, it intends to show who controlled the Truck at the time it was placed on the railroad tracks, and attack Edling's credibility with respect to his claim that he did not control the Truck when it was placed on the railroad tracks because, prior to that time, he effected a valid and final delivery of the Truck by unloading it and hanging the keys on its dipstick. Messerschmidt concluded in his report that, based on the ECU data and Edling's driver's logs, Edling was either present when the Truck was moved, or left the delivery site when the Truck was idling. (Filing Nos. 161-2 at 14, 161-3 at 5-6.)
The Defendants argue that Messerschmidt should be precluded from testifying as an expert in this case because the data obtained from the ECU, upon which he bases his opinions and conclusions, are inaccurate, unreliable, and in no way scientifically sound due to "clock drift" and certain drive time inaccuracies. Specifically, they contend that Messerschmidt's opinions are based on data that is unreliable because an unknown amount of "clock drift" caused the ECU's internal clock to record events as occurring at inaccurate times when compared to the actual time the event occurred. They also contend that Messerschmidt's opinions are based on inaccurate and imprecise data because the ECU would record slow driving and slow reverse driving as "idle" time and, although the ECU recorded the total amount of time the Truckwas driven, idle, or off in a two-hour increment, it did not reflect whether any of that "drive," "idle," or "off" time was continuous and in discrete segments, and it rounded continuous intervals of "drive," "idle," or "off" time to the closest minute.
Federal Rule of Evidence Rule 702 allows for the admission of expert opinions. Rule 702 states:
In light of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999),5 this Court must screen proffered expert testimony for relevance and reliability. See Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 896 (8th Cir. 2008). A reliable opinion must be based on scientific methodology rather than on subjective belief or unsupported speculation. See Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000). In assessing reliability, the Court should consider factors including whether the proposed expert's theory, methodology or technique: 1) can be and has been tested; 2) has been subjected topeer review; 3) has a known or potential rate of error; and 4) is generally accepted by the relevant community. Bland, 538 F.3d at 896. This list of factors is not exclusive, and this Court is allowed "great flexibility" in its analysis. Jaurequi v. Carter Mfg. Co.,173 F.3d 1076, 1082 (8th Cir. 1999).
The expert's information or opinion must also "assist" the trier of fact in understanding or determining a fact in issue. Fed. R. Evid. 702(a). "This condition goes primarily to relevance." Daubert, 509 U.S. at 591.
Furthermore, throughout the Court's assessment of the admissibility of an expert's opinion, Daubert makes clear that the Court "should also be mindful of other applicable rules," such as Fed. R. Evid. 403,6 which states:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Having considered the parties' evidence, as well as their written and oral arguments, to the extent Messerschmidt's testimony might assist the trier of fact in determining a fact in issue, the Court is concerned that it will cause unfair prejudice to the Defendants, and that it may confuse the issues and mislead the jury, especially considering the seemingly unreliable and imprecise nature of the ECU's data.
As explained above, the focus of UP's prima facie case is whether Edling effected a valid and final delivery of the Truck prior to the train collision. Who was in control of the Truck at the time it was placed on the tracks is, at most, marginally relevant to UP's prima facie case. The credibility of Edling's claim that he hung the Truck's keys on its dipstick becomes relevant only if Edling could have effected a valid and final delivery of the Truck by unloading the Truck and hanging the Truck's keys on its dipstick, especially if he did so when an unknown individual watched.7 Furthermore, there appears to be no agreed upon, reliable point of reference in the structure of the ECU data; the ECU data have been affected by an unknown amount of "clock drift"; the "drive," "idle," and "off" time recorded in the data appears to be imprecise and potentially inaccurate, because the ECU rounded those times to the nearest minute and...
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