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Southard v. Dennis Belanger, LP

United States District Court, W.D. Kentucky

August 19, 2013

ASHLEY SOUTHARD, PLAINTIFF
v.
DENNIS BELANGER, LP MARTEN TRANSPORT, and BLACK LAKE VENTURES, INC., DEFENDANTS

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For Ashley Southard, Plaintiff: John B. Bruce, Kevin M. Monsour, LEAD ATTORNEYS, Bruce Law Group, LLC, Louisville, KY.

For Dennis Belanger, LP Marten Transport, Black Lake Ventures, Inc., Defendants: Stockard R. Hickey, III, Gwin, Steinmetz & Baird, PLLC, Louisville, KY.

OPINION

Joseph H. McKinley, Jr., Chief United States District Judge.

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Memorandum Opinion and Order

This matter is before the Court on the Defendants' Motion to Limit the Opinion Testimony of Robert Miller [DN 48] and their Motion to Exclude the Testimony of Sara Ford [DN 49]. This matter is also before the Court on three dispositive motions filed by the Defendants: (1) their Motion for Summary Judgment on the Plaintiff's Claim for Punitive Damages [DN 50]; (2) their Motion for Summary Judgment on All Claims against Defendant Martens Transport LLC [DN 51]; and (3) their Motion for Summary Judgment on the Plaintiff's Claim of Negligent Hiring, Training, or Supervision [DN 52]. This matter is also before the Court on the Plaintiff's Motion for Partial Summary Judgment [DN 54]. Fully briefed, this matter is ripe for decision.

I. Background

This personal injury action arises from a motor vehicle accident which occurred on February 15, 2011. The undisputed evidence shows that the Plaintiff, Ashley Southard, merged from an interstate highway ramp onto Crittenden Drive in Louisville, Kentucky. She then struck the rear portion of a tractor-trailer before it completed a left turn at the intersection of Crittenden Drive and Boxley Avenue. The Plaintiff filed this action in state court, alleging motor vehicle negligence and gross negligence against the driver of the tractor-trailer, Dennis Belanger. She also brought respondeat superior claims and negligent hiring, training, and supervision claims against Mr. Belanger's employer, Black Lake Ventures, and the owner of the tractor-trailer, Martens Transport. The Defendants removed the action to this Court on diversity grounds.

The parties have completed discovery and the deadline for filing dispositive motions, and motions related to the admissibility of expert testimony, has passed. (See Order [DN 36] 2.) The parties have filed various motions, which the Court will consider below.

II. Motions on the Admissibility of Expert Testimony

The Defendants have filed two motions on the admissibility of expert testimony. One motion criticizes Robert Miller, an accident reconstruction analyst, who has been disclosed as an expert who may " provide testimony with respect to the categories of liability and damages, to the extent of the severity of the impact of the collision." (Expert Disclosure [DN 40] 2.) The other criticizes Sarah Ford, a vocational analyst, who has been disclosed as an expert who may " provide testimony with respect to the category of damages." (Id.) When analyzing motions on the admissibility of expert testimony, Fed. R. of Evid. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's

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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. Under Rule 702, the judge acts as a gatekeeper to ensure that expert testimony is both reliable and relevant. Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). To determine whether testimony is reliable, the Court's focus " must be solely on principles and methodology, not on the conclusions that they generate." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In Daubert, the Supreme Court identified a non-exhaustive list of factors that may assist the Court in assessing the reliability of a proposed expert's opinion. These factors include: (1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the technique has a known or potential rate of error; and (4) whether the theory or technique enjoys " general acceptance" in a " relevant scientific community." 509 U.S. at 592-94. This gatekeeping role is not limited to expert testimony based on scientific knowledge, but instead extends to " all 'scientific,' 'technical,' or 'other specialized' matters" within the scope of Rule 702. Kumho Tire Co., 526 U.S. at 147.

Whether the Court applies the Daubert factors to assess the reliability of expert testimony " depend[s] on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co., 526 U.S. at 150 (quotation omitted). Any weakness in the underlying factual basis bears on the weight, as opposed to the admissibility, of the evidence. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (citation omitted).

A. Defendants' Motion to Limit Opinion Testimony of Robert Miller [DN 48]

The Defendants have moved to limit the opinion testimony of Robert Miller. Mr. Miller is the sole proprietor of Crash Analysis & Reconstruction LLC, a professional collision reconstruction service. Prior to starting this sole proprietorship, Mr. Miller worked at Incorporated Reconstruction Services, LLC. (See Curriculum Vitae [DN 40-2] 1.) In the present case, Mr. Miller reviewed the documents generated through discovery and came to five conclusions: (1) Mr. Belanger turned left and failed to yield the right-of-way to oncoming traffic; (2) Mr. Belanger was distracted, inattentive, or failed to judge properly the approach speed of the Southard vehicle; (3) Mr. Belanger did not allow enough time for his vehicle to cross three lanes of traffic safely; (4) Ms. Southard did not recognize the encroachment of the Belanger vehicle into her lane in time to avoid the collision; and (5) upon recognizing the encroaching vehicle into her travel path, Ms. Southard had insufficient time and distance to avoid colliding with the Belanger vehicle. (Expert Report [DN 40-2] 9.) The Defendants do not dispute that Mr. Miller is qualified to offer these opinions, as they are within the field of motor vehicle accident reconstruction. (See Mem. in Supp. of Defs.' Mot. [DN 48-1] 7.)

The Defendants, however, have filed a motion to exclude Mr. Miller's additional opinion that " using a cell phone while driving

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reduces a driver's situational awareness, decision-making, and/or performance while increasing response time." (Supp. Expert Disclosure [DN 43-1].) According to the Defendants, this " foray into the field of behavioral psychology" must be excluded because: (1) it is bolstered solely by Internet articles; and (2) it is " not a good fit with the facts" of this case. (See Mem. [DN 48-1] 7-8.) The Defendants also argue that Mr. Miller's opinion on the effects of cell phone usage must be excluded because it will not assist the trier of fact. For the following reasons, the Court agrees with the Defendants. Mr. Miller's opinion must be excluded.

The Defendants first argue that Mr. Miller is not qualified to offer an opinion on human factors, as doing so would be a " foray into the field of behavioral psychology." (Id.) In support of this argument, the Defendants quote a portion of Mr. Miller's deposition testimony, where he states:

So I did some research on cell phone usage and driving while distracted and I have copies of those papers that I looked at and a couple of books that I referred to in regard to that issue.

(Robert Miller Dep. [DN 57-2] 18.) The Defendants then imply that Mr. Miller's opinion is based solely on " some research on cell phone usage" from the Internet. But as the Plaintiff correctly points out, the actual deposition testimony shows that Mr. Miller did not give this answer in response to a question about the basis for his opinion. Instead, he was asked about the materials that were brought to the deposition. His response was descriptive of those materials. (See id. at 17-18.) Thus, the Court finds that this is not a basis for excluding Mr. Miller's testimony.

Indeed, contrary to the Defendants' suggestion, the Court finds that Mr. Miller is qualified on human factors as an accident reconstruction analyst. His qualification stems from his education and his experience. As to education, Mr. Miller has testified that human factors are a foundation of accident reconstruction. He has also testified that he received human factors training in many of the courses he has taken. (Id. at 15.) Thus, Mr. Miller has specialized knowledge on human factors, and this knowledge provides a foundation upon which he can testify. As to experience, the Court finds it significant that Mr. Miller has investigated or reconstructed over 1,600 motor vehicle crashes. The Court also finds it significant that Mr. Miller has extensive teaching experience, and experience from working with the Kentucky State Police. (Curriculum Vitae [DN 40-2].) This experience undoubtedly included human factors considerations. (See Robert Miller Dep. [DN 57-2] 15 (noting that human factors are " so interwoven with - with what we do" ).) Due to his education and experience, the Court concludes that Mr. Miller has the requisite specialized knowledge to testify on human factors.

However, having the requisite specialized knowledge to testify on human factors does not mean that Mr. Miller can offer any opinion on the matter. Instead, under Fed. R. of Evid. 702, Mr. Miller can only testify regarding human factors if it " will help the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. Thus, the Defendants argue that Mr. Miller's opinion on cell phone usage must be excluded because it will not assist the jury. According to the Defendants, Mr. Miller's opinion will not assist the jury since he has no specialized knowledge on the level of attention required to drive a motor vehicle while having a conversation on a hands-free phone. (Mem. [DN 48-1] 11.) The Defendants contend that an accident reconstruction analyst is not required for a jury to

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know that using a cell phone while driving reduces a driver's situational awareness. Instead, the jurors' normal life experiences are sufficient to permit them to draw their own conclusions. The Court agrees. Mr. Miller's conclusion on cell phone usage will not assist the jury. Mr. Miller knows no more about this issue than does an average person.

Specifically, the Court finds that it must exclude Mr. Miller's opinion that using a cell phone while driving reduces a driver's situational awareness, decision-making, and/or performance while increasing response time. As the Supreme Court has noted,

[E]xpert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge 'if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation.'

Salem v. U.S. Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962) (citation omitted). Here, after hearing the testimony of witnesses, the jurors will be able to comprehend that Mr. Belanger was using a hands-free device at the time of the accident. They will also be able to draw correct conclusions regarding this usage, and whether it increased the likelihood of the accident. Thus, as to this issue, Mr. Miller possesses no specialized knowledge. The jurors' own experiences permit them to draw their own conclusions.

The Court notes that while neither the Sixth Circuit nor any district courts in the Sixth Circuit have ruled on this issue, other district courts have done so and have reached similar conclusions. See, e.g., Haskins v. Helzberg, 2006 WL 6869428, at *3 (W.D. Mo. Feb. 17, 2006) (excluding testimony that cell phone use while driving causes physical and psychological changes which increase the risk of an accident since such testimony is " within the knowledge and experience of the average lay person" ). In the present case, as in Haskins, the question for the jury is not whether cell phone usage generally increases the likelihood of automobile collisions. See id. Instead, the question is whether Mr. Belanger failed to keep a careful lookout and/or failed to yield the right-of-way. The Defendants' motion to limit the opinion testimony of Mr. Miller is GRANTED.

B. Defendants' Motion to Exclude Testimony of Sara Ford [DN 49]

The Defendants have moved to exclude the testimony of Sara Ford. Ms. Ford attended the University of Cincinnati, McMicken College of Arts and Sciences and received a Bachelor of Arts with Honors in Economics and Concentration in Labor Economics. She then obtained a Masters of Rehabilitation Counseling from the University of Kentucky. (Curriculum Vitae [DN 40-3].) Ms. Ford works as a vocational analyst for Vocational Economics, Inc. In this position, she provides assessments of lost earnings due to death, disability, or loss of employment. She is also a Certified Rehabilitation Counselor. (See Expert Report [DN 40-3].)

In this case, Ms. Ford interviewed the Plaintiff and reviewed various documents related to the Plaintiff's physical condition. She then projected the Plaintiff's loss of earning capacity. (See id.) The Defendants object to the introduction of this testimony on several grounds, including: (1) there is no factual basis for Ms. Ford's assumption regarding the Plaintiff's pre-injury earning capacity or any medical evidence

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supporting her assumption that the Plaintiff's ability to work in the future will be shortened by six years; (2) Ms. Ford did not use a reliable method to reach her opinions; (3) Ms. Ford did not conduct or review vocational testing; (4) as a person with " rehabilitation" qualifications, Ms. Ford is not qualified to conduct vocational assessments; and (5) Ms. Ford's expert disclosure was incomplete. (Defs.' Reply to Pl.'s Obj. [DN 58] 1-2.) The Plaintiff counters that Ms. Ford's testimony should not be excluded because it is both reliable and relevant. The Court agrees with the Plaintiff.

Factual Basis.

The Defendants first argue that there is no factual basis to support Ms. Ford's testimony. In this respect, the Defendants highlight that Ms. Ford did not review the Plaintiff's educational records or employment records before stating her conclusions. According to Defendants, if Ms. Ford had reviewed these records, she would have learned that the Plaintiff earned $5,563.33 the year before the accident and had withdrawn from college. (See Univ. of Louisville Transcript [DN 49-3]; Ignite Rest. Gp. Record [DN 49-4].) Further, the Defendants argue that if Ms. Ford had reviewed the Plaintiff's deposition ...


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