Summary
holding that evidence was sufficient to create genuine issue of material fact as to whether defendant acted with gross negligence when "operat[ing] a tractor-trailer in an area that include[d] controlled intersections, at a speed of 56 to 58 miles per hour, while intentionally failing to observe the roadway for a period of perhaps 14 to 20 seconds"
Summary of this case from Aranda v. YRC Inc.Opinion
Civil Action No. 3:02-CV-2095-D.
June 30, 2004
MEMORANDUM OPINION AND ORDER
In this lawsuit arising from a motor vehicle accident in which one person died and another person was severely injured, defendants move for partial summary judgment seeking dismissal of plaintiffs' claim for gross negligence, defendants move to exclude or limit the testimony of one of plaintiffs' experts, and plaintiffs move to strike a defense expert. For the reasons that follow, the court denies the parties' motions.
I
This case stems from a tragic motor vehicle accident in which Victor Manuel Perez ("Perez") was killed and Juan Cipriano Marcos ("Cipriano") suffered permanent brain impairment and the traumatic amputation of his right arm. While driving a large tractor-trailer rig for M.S. Carriers, Inc. ("MSC"), defendant Michael Keith Nichols ("Nichols") ran a stop sign and collided with a car in which Perez and Cipriano were passengers. Nichols was lost at the time and looking at a road map instead of the road. He was driving at about 56 to 58 miles per hour. Because Nichols was either reading the map or otherwise inattentive, he failed to see a stop sign, a painted roadway warning sign, a junction ahead sign, and a directional sign indicting the presence of an upcoming, controlled intersection. According to plaintiffs' expert, there was a period of 14 to 20 seconds during which Nichols could have responded to several visual cues that indicated the approaching intersection. He nevertheless failed to stop, colliding with the Perez-Cipriano vehicle.
The background facts of this case are set out in prior opinions of the court and need not be repeated at length. See, e.g., Librado v. M.S. Carriers, Inc., 2002 WL 31495988, at *1 (N.D. Tex. Nov. 5, 2002) (Fitzwater, J.). Because defendants are moving for partial summary judgment, the court recounts the evidence favorably to plaintiffs as the summary judgment nonmovants and draws all reasonable inferences in their favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Plaintiffs sue MSC and Nichols for negligence, negligence per se, and gross negligence. MSC has admitted liability based on negligence and negligence per se. The allegation of gross negligence is the subject of defendants' motion for partial summary judgment. The court must also resolve competing challenges to expert witnesses.
Plaintiffs at one time sued Swift Transportation Co., Inc., an Arizona Corporation, and Swift Transportation Co., Inc., a Nevada Corporation. They have dismissed their claims against these defendants. Although these defendants joined in the motion for partial summary judgment and to exclude or limit plaintiffs' expert, the court need not consider the motions as it relates to the dismissed defendants.
II
The court turns first to defendants' motion for partial summary judgment. The question presented is whether plaintiffs have adduced evidence that would permit a reasonable jury to find gross negligence under a clear and convincing evidence standard.A
When the summary judgment movants will not have the burden at trial concerning a cause of action, they can meet their summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once they do so, the nonmovants must go beyond their pleadings and designate specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandatory where the nonmoving parties fail to meet this burden. Little, 37 F.3d at 1076. The nonmovants' failure to adduce proof as to any essential element renders all other facts immaterial. Celotex Corp., 477 U.S. at 323.
Defendants maintain that they seek summary judgment "under both a traditional standard of summary judgment under federal law as well as under a `no evidence' standard." See Ds. Br. at 3. These are concepts that are not precisely descriptive of federal law, although they appear to reflect Texas procedure. Cf., e.g., Nelson v. PNC Mortgage Corp., ___ S.W.3d ___, 2004 WL 1385981, at *2 (Tex.App. June 22, 2004, no pet. h.) ("Burke filed a motion for both a traditional and a no evidence summary judgment against Nelson."). As defendants appear otherwise to recognize in their brief, federal law classifies the summary judgment movant's burden according to whether it will have the burden of proof on the claim or defense at trial. Properly understood, terms like "traditional" and "no evidence" have no particular significance in the lexicon of federal summary judgment procedure.
For their part, plaintiffs in several instances misunderstand that defendants are entitled to move for summary judgment simply by pointing the court to the absence of evidence to support plaintiffs' claim. See, e.g., Ps. Br. at 4 (complaining that defendants offer no summary judgment evidence), 7 (contending that defendants "simply assert, without an iota of supporting evidence, that the Plaintiffs' allegations of gross negligence and/or malice are unsupportable and should be dismissed."). Plaintiffs also seem to assume that the allegations of their complaint are of themselves adequate to withstand summary judgment. See id. at 6 ("Defendants have ignored and failed to offer any evidence refuting the multiple factual allegations contained in the Complaint that support the existence of a fact issue on Nichols' gross negligence."). This assumption would clearly be misplaced. See, e.g., Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 167-68 (5th Cir. 1991) (holding that unsworn pleadings do not constitute summary judgment evidence).
When a heightened proof standard will apply at trial, that standard controls at the summary judgment stage. Anderson, 477 U.S. at 254 (holding that where clear and convincing evidence standard would apply at trial of libel action, it applied in determining merits of summary judgment motion). Under Texas law, gross negligence must be proved by clear and convincing evidence. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., ___ S.W.3d ___, 2004 WL 1091423, at *7 n. 2. (Tex. May 14, 2004) (noting that, effective September 1, 1995, Texas law requires that plaintiff prove gross negligence by clear and convincing evidence). This standard requires that plaintiffs adduce evidence that is "sufficient to make the existence of the facts highly probable," not merely evidence that is "sufficient to make the existence of fact more probable than not, as required by the preponderance standard." Foley v. Parlier, 68 S.W.3d 870, 880 (Tex.App. 2002, no pet.). Therefore, the proof must be "sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established." Id. (citing In re D.T., 34 S.W.3d 625, 632 (Tex.App. 2000, pet. denied); Faram v. Gervitz-Faram, 895 S.W.2d 839, 843 (Tex.App. 1995, no writ)).
Under Texas law, gross negligence includes these two elements:
(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).
Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence. Under the first element, "extreme risk" is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Under the second element, actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated it did not care. Circumstantial evidence is sufficient to prove either element of gross negligence.Mobil Oil Corp v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
B 1
Concerning Nichols, defendants contend that plaintiffs have pleaded only traffic violations and acts of simple negligence in operating his vehicle. They also argue that the evidence negates the assertion that Nichols acted with conscious indifference to the rights, safety, or welfare of others in the face of an extreme degree of risk. Defendants cite Nichols' testimony that he slid through the stop sign and, due to his late recognition of the warning signs, was unable to avoid the accident because he did not see the stop sign until the last minute. They argue that Nichols' failure to see the junction and directional signs due to inattention amounts to no more than simple negligence, and that this version of the events corresponds with the physical evidence at the scene. Defendants point the court to the absence of evidence that Nichols acted in conscious indifference to the rights, safety, or welfare of others following an act of extreme degree of risk.
Plaintiffs respond that the evidence shows more than the simple commission of a traffic violation. They point to evidence that Nichols was operating an 18-wheeler that weighed approximately 30,000 pounds. He was lost at the time of the accident and looking at a road map trying to determine his location rather than paying attention to the roadway. As he approached the intersection, he was traveling at a speed of between 56 and 58 miles per hour. Plaintiffs also point to evidence that, as he approached the intersection, Nichols failed to observe at least seven different indicators that warned of the intersection ahead. They also cite expert testimony that, given the speed he was traveling, he would have had 14 to 20 seconds to respond to the visual cues that indicated that he was approaching an intersection. Plaintiffs also rely on evidence that Nichols had a record of extensive violations of the Federal Motor Carrier Safety Regulations ("FMCSRs").
Plaintiffs also rely on the fact that Nichols was indicted in Texas state court and pleaded no contest to criminally negligent homicide and on the content of the indictment and the plea agreement that he signed. This evidence is inadmissible, see Fed.R.Evid. 410, and the court has not considered it in deciding this motion.
2
The court holds that plaintiffs have created a genuine issue of material fact concerning both required elements: that, viewed objectively from Nichols' standpoint, his conduct involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and, that Nichols had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. A reasonable trier of fact could find by clear and convincing evidence that, viewed objectively from Nichols' standpoint, operating a tractor-trailer in an area that includes controlled intersections, at a speed of 56 to 58 miles per hour, while intentionally failing to observe the roadway for a period of perhaps 14 to 20 seconds, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Proof of a defendant's mental state can be circumstantial. See Moriel, 879 S.W.2d at 23. A reasonable trier of fact could also find by clear and convincing evidence that Nichols had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others. If the jury found that an experienced truck driver who was generally aware of his rate of speed, the weight of his vehicle and load, the stopping distance required at that speed, and the damage his large tractor-trailer would inflict on a much smaller vehicle and its occupants, had intentionally chosen for a period of 14 to 20 seconds to read a map rather than monitor the roadway, it could also find circumstantially that he had actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others."Extreme risk is a function of both the magnitude and the probability of the anticipated injury." Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 732 (Tex.App. 1996, no writ) (citing Moriel, 879 S.W.2d at 22). There may be a point, of course, at which the generality of the risk posed by a defendant's conduct renders the probability of harm too indeterminate to support a finding of gross negligence under a clear and convincing evidence standard. This may explain, for example, decisions like Purnick v. C.R. England, Inc., 269 F.3d 851 (7th Cir. 2001), and Burke v. Maassen, 904 F.2d 178 (3d Cir. 1990), on which defendants rely. In Purnick evidence that a truck driver falsified logs, drove beyond the ten-hour limit several times in the week before the crash, and was fatigued when he hit the plaintiff was insufficient to show that he actually knew his misconduct would probably result in injury. Purnick, 269 F.3d at 853. The evidence did not show that the driver knew he was so tired that continuing to drive would likely cause injury. Id. In Burke there was no evidence that the driver consciously appreciated the risk of fatigue and the potential for fatal accidents that accompanied driving more than allowed under the ten-hour rule, which did not state that its purpose was to avoid driver fatigue and accidents. Burke, 904 F.2d at 183. The level of generality reflected in these cases might have been present in this case had Nichols been driving on a remote stretch of controlled-access freeway, at a time of low traffic volume, and veered off the road and collided with another vehicle. But in this case there is evidence that Nichols knew the potentially catastrophic consequences that could follow as an immediate result of operating a large vehicle, at the rate of speed and on the type of road in question, without watching the roadway for perhaps 14 to 20 seconds. Accordingly, the court denies defendants' motion with respect to Nichols and his conduct.
C 1
Regarding MSC, defendants maintain that, under § 909 of the Restatement (Second) of Torts, MSC cannot be vicariously liable for Nichols' gross negligence unless plaintiffs can establish one of the four grounds specified in § 909 and show that the ground is proximately related to the cause of the accident. Concerning direct liability, defendants argue that plaintiffs cannot establish that MSC committed a grossly negligent act that caused the accident.
Plaintiffs respond that MSC can be held liable for Nichols' gross negligence because it retained him as an employee when it knew he was unfit to operate a commercial vehicle. They maintain that from May 2000 to April 2001, Nichols committed more than 320 driver log violations, including numerous violations of FMCSRs. Plaintiffs assert that, despite these violations, MSC did not discharge him, offer remedial training, discipline, reprimand, or even talk to him about them. Plaintiffs also contend that MSC can be liable for gross negligence for failing to have or to properly implement its own safety policies and/or programs, or failing to enforce its own safety policies or programs.
Plaintiffs also point to evidence in the Qualcomm data, driver logs, and fuel reports that Nichols violated the hours-of-service regulations the week preceding the accident, including the day before. See Ps. Br. at 17 (citing Ps. App. 9). They also cite proof that Nichols was driving on the road instead of in the sleeper berth, as indicated by his log books. See id. (citing Ps. App. 10). Stopper also opines that Nichols drove for 755 miles the day before the accident and falsified his logs. See Ps. App. 10. Some of Stopper's other opinions expressed in his affidavit are called into question by his deposition testimony. See Ds. Mot. Exclude App. 30-32. But his deposition testimony does not conflict with his conclusion that "based upon the gross inconsistencies between [the] recorded drivers' logs, the Qualcomm satellite vehicle positioning reports, and the fuel reports it was clear that [Nichols] was in violation of hours of service regulations during the week prior to the collision[.]" Ps. App. 9. To the extent that defendants assert that Stopper's testimony is not adequately supported, "[v]igorous cross-examination, presentation of contrary evidence . . . are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993).
Defendants argue in reply that, for MSC to be held liable for failing to supervise or terminate Nichols, its conduct must have caused or contributed to the collision. In their reply brief in support of their motion to exclude or limit the testimony of David A. Stopper ("Stopper"), defendants contend the evidence of driver log violations that occurred months before the accident and that are not shown to have been causally related to the accident is irrelevant.
Defendants also posit that Stopper's testimony is prejudicial under Rule 403. The court rejects this argument because the probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Plaintiffs have presented evidence that would permit a reasonable trier of fact to find that MSC was grossly negligent. Proof of Nichols' driver log infractions is not, as defendants contend, irrelevant. "Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rutherford v. Harris County, 197 F.3d 173, 186 (5th Cir. 1999) (Fitzwater, J.) (citing Fed.R.Evid. 401). Nichols' driver log violations were recorded by the "RapidLog system" that MSC used until May 2001, months before the December 2001 accident. Stopper's testimony about these violations is relevant — despite the fact that they were recorded several months before the December 2001 accident — because a jury could reasonably infer that violations continued after MSC stopped using RapidLog, that MSC was aware of them, and that it failed to discipline Nichols, consciously indifferent to the effect on others. As the Texas Supreme Court wrote in General Motors Corp. v. Sanchez, 997 S.W.2d 584 (Tex. 1999):
MSC contends the system produced many paperwork and other technical violations.
A court reviews all surrounding facts and circumstances to decide if a corporation itself is grossly negligent. The inquiry is determined by reasonable inferences the factfinder can draw from what the corporation did or failed to do and the facts existing at relevant times that contributed to a plaintiff's alleged damages.Id. at 596 (footnotes and internal quotation marks omitted). Moreover, this inference would allow a reasonable jury to find, by clear and convincing evidence, that MSC was aware of the extreme degree or risk posed by retaining and failing to discipline Nichols and that it proceeded with conscious indifference, as explained below. A jury could reasonably find that the RapidLog data, combined with recent examples from the Qualcomm data, indicate that, with MSC's knowledge, Nichols consistently violated the FMCSRs for a period of months before the accident.
Plaintiffs also assert that MSC generally has a documented history of a deficient safety control enforcement and compliance. The Supreme Court of the United States has made clear that, under the Fourteenth Amendment, a court cannot
award punitive damages to punish and deter conduct that [bears] no relation to the [plaintiffs'] harm. A defendant's dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-23 (2003). Accordingly, the court will not consider MSC's safety controls that were independent from the acts that arguably caused the accident.
See supra note 6.
Having determined that the driver logs are admissible, the court considers whether the evidence is sufficient to create a genuine issue of material fact. Dalworth Trucking is instructive. In that case the court of appeals addressed whether the evidence supported a jury verdict that a trucking company was grossly negligent in connection with a fatal accident involving one of its employee drivers. Dalworth Trucking, 924 S.W.2d at 731-34. Like Nichols, the driver ran a stop sign, killing the occupant of another vehicle. The court upheld the verdict as supported by the evidence. Id. at 734.
Neither party cites Dalworth Trucking, perhaps because the case was decided under the preponderance of the evidence standard rather than the clear and convincing standard that took effect September 1, 1995. See, e.g., Coastal Transport Co., ___ S.W.3d ___, 2004 WL 1091423, at *5 n. 2. Despite the difference in standards of proof, the court finds that the reasoning of Dalworth Trucking, which applies the two-part gross negligence test that controls the present case, supports denying summary judgment.
The court upheld the verdict against the trucking company despite the jury's finding that the driver was not grossly negligent. Dalworth Trucking, 924 S.W.2d at 733.
There was proof in Dalworth Trucking that the trucking company used the RapidLog system to analyze data from driver logs to determine whether its drivers were complying with federal regulations and company safety policies. Id. at 732. The system generated letters that informed drivers that they had violated company policy. Company policy permitted drivers to drive an average of 50 miles per hour in ten hours of driving time within a 24-hour period. From July to October 1994, when the accident occurred, the RapidLog reports showed that the driver had committed 56 violations of company speed policies, six hours violations, and one missing log violation. Federal regulations restricted driving hours to no more than 70 hours in eight days. Five of the hours violations occurred within the week preceding the accident. There was testimony that the driver failed to log in pre-trip and post-trip inspections and that he and other company drivers were driving more hours than they were logging in their records, which allowed the company to bill the customer for more miles and allowed drivers to be paid for more miles than company time and speed policies allowed (rolling trips). Testimony showed that, although company policy provided that a driver would be discharged after accumulating three safety violations, the driver in this case was not terminated, disciplined, or admonished, and the company did not send him cautionary letters concerning his violations. The RapidLog reports reflected that the driver had a long record of driving excess hours in violation of company policy and federal regulations. Id. at 733. The company safety manager conceded that the driver had a long history of safety violations, including over-hours driving, rolling trips, and speed violations, in addition to missing log violations. He testified that company managers were aware of the driver's over-hours violations, that over-hours driving and rolling trips caused driver fatigue, that fatigue from excessive driving builds up to an almost inevitable loss of alertness in a driver, that he would give the driver's overall driving record a grade of "F", as far as safety violations were concerned, that the driver had over-hours driving violations on each of the four days preceding the wreck, that repeated safety violations by drivers create an extremely dangerous situation, that company managers knew about the situation but did not suspend, terminate, or admonish the driver; and that to do anything less than that would be inexcusable. He also testified that he knew an accident was almost inevitable if management failed to enforce safety practices vigorously. Id. at 733.
The court of appeals held that the jury's finding of gross negligence was supported by legally sufficient evidence because there was some evidence that company management knew of an extreme risk of impending harm from allowing the driver to continue to drive without supervision, discipline, or admonishment, and the company nevertheless failed to do so in conscious disregard of the safety of those who might be affected. The court concluded that the jury could have reasonably found that the driver's cumulative safety violations caused a lack of alertness that contributed to his failure to see the stop sign in time to stop and avoid colliding. It also concluded that company managers could have reasonably foreseen a similar consequence from their failure to suspend or discipline the driver. Id. at 734.
As did the driver in Dalworth Trucking, there is evidence in this case that Nichols committed numerous safety violations, including hours violations that tend to cause fatigue. Moreover, in both cases the company knew of the violations. Nichols' RapidLog data indicated 322 log violations from April 2000 to May 2001, including 13 hours of service rule violations in one month. Ps. App. 10. When viewed favorably to plaintiffs, the Qualcomm data from the week before the accident indicates there were further violations of hours of service rules. See Ps. App. 10. From this evidence a jury could reasonably infer that in the interim between the end of the RapidLog data (May 2001) and the week before the accident (December 2001), Nichols continued to violate hours of service rules.
Plaintiffs assert, and defendants do not deny, that MSC knew of the RapidLog violations.
MSC contends there is no evidence that fatigue caused the accident and that any theory that fatigue may have caused the accident is mere speculation or surmise that does not constitute competent summary judgment evidence. It also points to evidence that the state trooper on the scene did not record fatigue as a factor and that no witness attributed fatigue as a cause of the accident. In Dalworth Trucking the officer who investigated the accident concluded that fatigue was not a factor and that the driver did not attribute the wreck to fatigue. Dalworth Trucking, 924 S.W.2d at 733. The court nevertheless concluded, based at least in part on testimony that cumulative fatigue could cause a reduction of alertness, that it was conceivable that the driver had become so fatigued by successive over-hours driving that he could have lost some degree of alertness and possibly failed to see a stop sign or to see it in time to stop. Id. at 734. It held that the jury could have reasonably found that the driver's cumulative safety violations caused a lack of alertness that contributed to his failure to see the stop sign in time to stop." Id. Plaintiffs have offered similar evidence in this case. See Ps. App. 9-10.
Of course, the sources of the testimony are different in the two cases. In Dalworth Trucking the opinion came from the defendant's own safety manager, whereas in this case it will be presented through plaintiffs' expert. This difference may affect the weight of the evidence, but it does not impact whether plaintiffs can overcome defendants' motion for summary judgment.
In Dalworth Trucking, as in this case, a manager of the defendant trucking company acknowledged that some of the driver's violations were serious. See Ps. App. 366-68. Hugh Michael Reeves ("Reeves"), MSC's Senior Vice President of Driver Services, testified that the 70-hour rule, 10-hour rule, and 15-hour rule violations "could be serious[.]" Ps. App. 367. In Dalworth Trucking the company safety manager testified "extensively." He averred that the driver should have been pulled off the road because he was "an accident looking for a place to happen[,]" that failing to pull a driver with such a violations history was "inexcusable," and that "repeated safety violations by drivers create an extremely dangerous situation[.]" Dalworth Trucking, 924 S.W.2d at 733-34. This case is different from Dalworth Trucking in that Reeves responded to a question regarding whether it would have been appropriate to fire Nichols by stating, "[d]epend[ing] on what type of violations, yes." P. App. 366-68. MSC's Senior Safety Manager also testified that Nichols "had a relatively great driving record with the company from 1997 up to the date of the collision." P. App. 513-14. Nevertheless, the evidence is sufficient to avoid summary judgment, and the court denies defendants' motion in this respect.
The court does not foreclose the possibility that MSC may later be entitled to judgment as a matter of law. Although the summary judgment standard mirrors the one for judgment as a matter of law, see Anderson, 477 U.S. at 251-52, at the summary judgment stage the court is necessarily relying on the proof adduced thus far and properly cited, and it must view the evidence favorably to plaintiffs as the nonmovants and draw all reasonable factual inferences in their favor, see, e.g., Barrett Computer Services, Inc. v. PDA, Inc., 884 F.2d 214, 217 (5th Cir. 1989). The evidence as it develops at trial may enable the court confidently to conclude that no reasonable jury could find by clear and convincing evidence that MSC was grossly negligent.
Purnick and Burke are not to the contrary. Neither case addressed the culpability of the trucking company separately. See Purnick, 269 F.3d at 852-53 (no discussion of independent negligence on part of trucking company); Burke, 904 F.2d at 180 ("All parties agree the jury's verdict means that Malone is vicariously liable for Maassen's negligence and is not liable for any negligence independent of Maassen's.").
III
Defendants move to exclude and/or limit the testimony of Stopper, plaintiffs' expert witness. Plaintiffs seek to introduce Stopper's expert opinion to evaluate, inter alia, the cause of the accident, opine concerning driver fatigue as a potential cause of the accident, and review driver log entries. Defendants object to the proposed testimony and move the court to limit and/or exclude it. This motion presents the question under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whether the proposed testimony is reliable.A
The court may consider preliminary questions concerning the admissibility of evidence before trial. See Rule 104(a). In performing this function, the court must at times act as a gatekeeper in determining the admissibility of expert testimony. See Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997); Garcia v. Columbia Med. Ctr. of Sherman, 996 F. Supp. 617, 620 (E.D. Tex. 1998). Rule 702, which guides the court in the screening process, see Cuevas v. E.I. DuPont de Nemours Co., 956 F. Supp. 1306, 1308 (S.D. Miss. 1997), provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 702. The court may admit proffered expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Watkins, 121 F.3d at 988-89. Defendants do not contest Stopper's qualifications. The question to be decided is whether the evidence is reliable.
Defendants also assert that Stopper's opinion about the driver log violations is irrelevant because they occurred months before the accident and therefore lack any causal connection to the accident. The court disagrees. A jury could infer from the violations documented by RapidLog that Nichols' violations continued after MSC stopped using RapidLog.
Expert testimony must be based on "scientific, technical, or other specialized knowledge." Rule 702. It must rest on a reliable foundation. See United States v. 14.38 Acres of Land, 80 F.3d 1074, 1078 (5th Cir. 1996) (per curiam). Because of the unique effect of an expert witness and the advantageous position he holds at trial, the proponent of the evidence must demonstrate that "the principle supports what it purports to show." United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995). This ensures that the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. at 152; see Garcia, 996 F. Supp. at 620 (noting that reliability requirement ensures that knowledge offered is "supported by appropriate validation" and "establishes a standard of evidentiary reliability") (quoting Daubert, 509 U.S. at 590). Although Rule 702 does not require absolute certainty, it does mandate that the proffered knowledge be based on "good grounds." Posado, 57 F.3d at 433 (quoting Daubert, 509 U.S. at 590). The testimony must constitute "more than subjective belief or unsupported speculation." Daubert, 509 U.S. at 590.
In fulfilling its gatekeeping role, the court must make an objective, independent validation of the principles and methods the expert used to ensure that they have a sound and reliable basis in the knowledge and experience of the discipline at issue. Garcia, 996 F. Supp. at 622. The court is not to focus on the conclusions generated by the expert's methodology. Watkins, 121 F.3d at 989. Instead, the court must review only the reasonableness of the expert's use of such an approach, together with his particular method of analyzing the data so obtained, to draw a conclusion regarding the specific matter to which the expert testimony is directly relevant. Kumho, 526 U.S. at 153; see Watkins, 121 F.3d at 989.
When analyzing the reliability of an expert's testimony, the court may consider the following non-exclusive factors: (1) whether the expert's technique can be or has been tested; (2) whether the method has been subjected to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) the degree to which the technique or theory has been generally accepted in the scientific community. Daubert, 509 U.S. at 593-94. "The factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of the testimony." Kumho, 526 U.S. at 150.
B
The court first considers the admissibility of Stopper's testimony in light of Daubert. Neither party has briefed the Daubert factors individually, so the court resolves the motion based on plaintiffs' responses to defendants' specific arguments and on their proof that the testimony complies with the general Daubert standards. In evaluating these arguments, the court will not consider contentions supported for the first time with specific evidence in defendants' reply brief. See Senior Unsecured Creditors Comm. of First RepublicBank Corp. v. FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.) (holding that court will not consider new argument raised in a reply brief).
1
Defendants contend that Stopper failed to reconstruct the accident, failed to independently map the scene, and relied upon unreliable data. "As a general rule, questions relating to the bases and sources of an experts opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the [trier of fact's] consideration." Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596.
Defendants initially argued that Stopper improperly relied on an unknown person who marked on the pavement. They do not, however, specifically reurge this argument in their reply brief. The gravamen of their position is that Stopper did not independently establish his own reference points at the accident scene. The court will consider this argument in conjunction with defendants' contention that Stopper relied on improper or incomplete data.
Defendants contend that Stopper did not perform an adequate reconstruction of the accident and did not independently measure all aspects of it. The evidence indicates that Stopper did independently measure the distance between various warning signs and the intersection. Also, Andrew D. Irwin, who surveyed and mapped the scene, and on whose measurements Stopper relied, avers that his work was within the accepted methodology of accident reconstructionists. Stopper also relied on information from a computer in Nichols' tractor-trailer. Defendants assert that Stopper's opinions stemming from that computer, specifically the Hard Brake 1 Report ("Report"), are unreliable, but their own expert confirmed that the speed recorded in the Report is accurate. Moreover, there is evidence that measurements from the Report are often used in accident reconstruction.
The Report is from the Detroit Diesel Electronic Controls IV, "an integral part of the engine, controlling and recording data . . . [including] the engine operating history, speeds, fuel usage, daily mileage, daily time engine is idling, and the number of minutes the vehicle is driving." Ps. App. 5. The DDEC IV is informally called a black box. It also records a "Hard Brake" report and a "Last Stop Record," which in this case included a recording of the 120 seconds that led up to and through the collision to the vehicle's final rest. See id.
Because Stopper's testimony is reliable, the court denies defendants' motion to exclude and/or limit the trial testimony in question.
2
Defendants also argue that Stopper's opinion that fatigue may have contributed to the accident is not based on scientific analysis or independent testing, and that Stopper cannot recall any evidentiary support for Nichols' supposed fatigue beyond his own "professed amazement that Nichols did not notice the stop sign until the last minute." Ds. Br. 5. Defendants essentially argue that Stopper's opinion on this matter is not an expert opinion. Stopper's opinion is based on Nichols' record of hours-of-service violations and his failure to see the warning signs before entering the intersection. Based on the violations of the FMCSRs and analysis of the driver logs, and considering his familiarity with the effects of fatigue, Stopper can opine that fatigue may have been a factor. Stopper's knowledge of FMCSRs and the driver logs will assist the trier of fact. The court concludes that his testimony is reliable under Daubert and consequently denies defendants' motion to exclude and/or limit the trial testimony at issue.
3
Defendants maintain that Stopper should not be allowed to testify about driver log violations that occurred many months before the accident and therefore are not causally related to it. The court addressed this argument in its ruling on defendants' partial motion for summary judgment and rejects it on the same basis. See supra § II(C)(2).
IV
Plaintiffs move to strike defendants' expert, Susan J. Garrison, M.D. ("Dr. Garrison"), contending that defendants failed to comply with the Federal Rules of Civil Procedure in designating her as an expert and disclosing information under Fed.R.Civ.P. 26 (a) (2) (B).
A
In its scheduling order, the court required the parties to designate rebuttal experts and comply with Rule 26 (a) (2) (B) no later than August 1, 2003. On August 1, 2003 defendants served plaintiffs with their rebuttal expert witness disclosure. See Ps. App. Exhibit 1. Defendants designated Dr. Garrison and Ginny Stegent, R.N. ("Stegent") in an effort to introduce expert testimony about a life care plan that would be adequate for Cipriano. In the disclosures, defendants attached a "report prepared together by the experts [Dr. Garrison and Stegent] and signed by the expert in compliance with Rule 26 (a) (2) (B)[.]" Ps. App. 7. Only Stegent signed the report. On December 2, 2003 — four months after the court's deadline — defendants provided a list of cases in which Dr. Garrison has testified.
The Court cites plaintiffs' exhibits rather than the appendix because they did not comply with N.D. Tex. Civ. R. 7.1 (i) (1) and 7.2 (e) in briefing this motion. Rule 7.1(i) (1) provides that "[a] party who relies on documentary (including an affidavit, declaration, deposition, answer to interrogatory, or admission) or non-documentary evidence to support or oppose a motion must include such evidence in an appendix." Rule 7.2(e) states that "[i]f a party's motion or response is accompanied by an appendix, the party's brief must include citations to each page of the appendix that supports each assertion that the party makes concerning any documentary or non-documentary evidence on which the party relies to support or oppose the motion." Because these deficiencies did not interfere with the decisional process of the court, the court has considered the documents and briefing.
Plaintiffs assert that defendants failed to comply with Rule 26 because Dr. Garrison neither prepared nor signed their expert report of August 1, 2003. They also contend that the report is not a complete statement of all opinions that Dr. Garrison intended to express or the basis and reasons for the opinions. Plaintiffs also point out that defendants submitted the list of cases in which Dr. Garrison has testified in the last four years several months after the deadline.
Defendants respond that Dr. Garrison jointly prepared the report that Stegent signed and that her failure to sign the report and to submit the cases in which she had testified was harmless under Rule 37. Alternatively, they ask the court to limit Dr. Garrison's opinion to matters included in the report.
B
Rule 26(a)(2)(B) provides:
Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Rule 37(c) (1) provides, in part:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e) (2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
Although defendants maintain in their brief that plaintiffs' only concern about the expert report is the absence of a signature, plaintiffs assert that, but do not indicate precisely how, the report is an incomplete statement of Dr. Garrison's opinions. The report indicates the materials reviewed, the educational backgrounds of Stegent and Dr. Garrison, and includes a "line-by-line" analysis of plaintiffs' experts' opinion concerning the proper course of care for Cipriano. For example, plaintiffs' experts recommend that, starting at age 36, Cipriano see a psychiatrist two-and-one-half times per year, but defendants' report recommends only two visits annually. See Ps. App. Ex. 3. Defendants' experts accept many recommendations, and where there is disagreement, the expert report indicates the recommended treatment. Although the recommended changes in treatment do not explain precisely why defendants disagree with plaintiffs, the report does indicate in detail how defendants disagree with the recommended treatment.
"Issues raised by Plaintiffs, however, attack not the validity of the joint report or the completeness of its opinions, or even the availability of the experts to clarify same, but the absence of the signature by Dr. Garrison on the collaborated effort." Ds. Resp. Br. 5.
They assert that the report does not "provide any of the medical bases for Stegent's life care plan[,]" Ps. Br. at 3, and that defendants "failed to produce a written report prepared and signed by Dr. Garrison which provides a complete statement of all her opinions and the basis and reasons for those opinions." Id. at 4.
"The report is to disclose the data and other information considered by the expert and any exhibits or charts [that] summarize or support the expert's opinions." Rule 26(a) (2) (B) advisory committee's note (explaining that materials used by expert are not privileged). Paragraph 2 of Rule 26(a) is designed to impose a "duty to disclose information regarding expert testimony sufficiently in advance of trial that opposing parties have a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses." Rule 26(a) (2) advisory committee's note. Defendants' expert report discloses information to give plaintiffs a reasonable opportunity to prepare for effective cross-examination. Viewing the report with common sense and as a whole, and in the specific context of this case and of the opinions at issue, the court concludes that it is sufficiently detailed. The court in its discretion declines to strike the report on the basis that it is not a complete statement of Dr. Garrison's opinions or of the bases and reasons for the opinions.
C
The report undisputably violates Rule 26(a) (2) (B) because it contains only Stegent's signature. There are indications, however, that many of the recommendations are those of a physician, suggesting that Dr. Garrison is the most likely source. See, e.g., Ps. App. Ex. 3 (recommending change in amount of or need for medication). The court discerns nothing generally objectionable about a joint report, provided it gives defendants the information to which they are entitled under Rule 26(a) (2) (B). In this case, defendants must obtain Dr. Garrison's signature and ensure that the report clearly identifies what is the joint work of Stegent and Dr. Garrison and any opinions that are those of one witness but not the other. Defendants also violated Rule 26(a) (2) (B) and the court's scheduling order by disclosing Dr. Garrison's trial history four months late.
In evaluating whether a violation of Rule 26 is harmless, the court examines four factors: (1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose. Tex. AM Research Fund v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003). Although defendants have failed to explain why they failed to make a timely disclosure and to include Dr. Garrison's signature, it is important evidence and the prejudice in this case is negligible. Defendants submitted Dr. Garrison's trial history on December 2, 2003, five months in advance of the May 17, 2004 trial date. Moreover, the court will provide sufficient time before setting the trial date so that plaintiffs can depose or otherwise prepare for Dr. Garrison's testimony. Defendants are ordered to cure promptly the defect presented by the absence of Dr. Garrison's signature.
Because liability is admitted, damages are a major portion of the dispute.
The trial has since been continued, so the advance notice to plaintiffs is even greater.
* * *
For the reasons set out, the court denies defendants' January 15, 2004 partial motion for summary judgment, denies defendants' January 15, 2004 motion to exclude and/or limit the testimony of Stopper, and denies plaintiffs' January 15, 2004 motion to strike defendants' expert Dr. Garrison.