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Meherg v. Pope

United States District Court, Sixth Circuit

November 5, 2013

LARRY MEHERG, et al. Plaintiffs,


JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before the Court on three motions filed by the Defendants: (1) a Motion for Partial Summary Judgment on the Plaintiffs' Punitive Damages Claims [DN 210]; (2) a Motion to Exclude, or Limit Testimony of, Three of the Plaintiffs' Expert Witnesses (Dr. Thomson, Dr. Czeisler, and Mr. Morgan) [DN 213]; and (3) a Motion to Exceed Reply-Brief Page Limitation [DN 223]. Also before the Court is the Plaintiffs' Motion to Exclude the Expert Testimony of Michael G. Ehrie, Jr. [DN 201]. Fully briefed, this matter is ripe for decision.


This personal injury action arises from a motor vehicle accident that occurred on July 12, 2009. The undisputed evidence shows that the accident occurred on I-65 in Hart County, Kentucky, when a tractor-trailer driven by Michael R. Pope struck a stopped vehicle in the rear, causing that vehicle to collide with a second stopped vehicle. (See Police Report [DN 210-3] 1-2.) The second vehicle was occupied by the Plaintiffs: Larry Meherg, Aaron Meherg, and Kristin Shearer Meherg. They suffered various personal injuries in the accident. In total, as a result of the accident, five individuals were injured. Further, a six-year-old child was killed. (See id.)

On November 24, 2010, the Plaintiffs filed this action in state court, bringing negligence and gross negligence claims against Mr. Pope. (See Compl. [DN 1-1] § IV.) The Plaintiffs also brought a respondeat superior claim, as well as a negligent hiring, training, and supervision claim, against Mr. Pope's employer, Crete Carrier Corporation ("Crete"). (See id. at §§ III, V.) The Defendants removed the action to this Court on diversity grounds. (Not. of Removal [DN 1].)

At the time of the accident, the weather was clear and dry. The speed limit at the accident site was seventy miles per hour. (See Police Report [DN 210-3] 1-2.) According to all accounts, Mr. Pope was driving under the speed limit. (See id.; Whitney Morgan Dep. [DN 210-6] 7.) Further, the Plaintiffs have not produced any evidence indicating that Mr. Pope was weaving or otherwise driving erratically. Instead, the evidence indicates that the opposite was true. One witness to the accident testified that to the best of her recollection, when she passed Mr. Pope's tractor-trailer before the accident, it was being operated in a safe manner. (See Chasidy Russell Dep. [DN 224-5] 12.)

The parties disagree on the accident's cause. According to the Defendants, the accident occurred because Mr. Pope failed to recognize that traffic was stopped due to construction on the road's surface. (See Defs.' Mem. [DN 210-2] 7.) In this respect, the Defendants rely on Mr. Pope's deposition testimony, where he stated that he moved from the right lane to the left lane when he noticed that traffic was backing up in the right lane. However, he did not recognize that traffic was also backing up in the left lane until it was too late to stop. (See Michael Pope Dep. [DN 210-16] 127-28.) The Defendants also highlight the testimony of a witness to the accident to corroborate this theory. She stated that after she passed Mr. Pope's tractor-trailer, traffic "suddenly stopped" and that in light of this "sudden halt, " she was not surprised that Mr. Pope could not stop his truck in time to avoid a collision. (See Chasidy Russell Dep. [DN 224-5] 18.)

In contrast, the Plaintiffs offer several theories on the accident's cause. First, they argue that the accident occurred because Mr. Pope "should not have been on the road" because he "had not recovered from [an] illness that hospitalized him" and had not been medically re-certified to drive. (Pls.' Resp. [DN 218] 3.) Second, the Plaintiffs argue that the accident occurred because Mr. Pope was "also sleep deprived from pulling an all-nighter' 72 hours earlier...." (Id.) Third, the Plaintiffs argue that the accident occurred because Mr. Pope told Crete about his hospitalization but Crete did not require him to seek medical re-certification. Fourth, the Plaintiffs argue that the accident occurred because Crete failed to properly train its drivers on fatigue. ( Id. at 12-15.)

The Defendants have admitted fault for the subject accident. (See Defs.' Mem. [DN 210-2] 8.) This leaves two main issues to resolve: (1) the amount of compensatory damages to which the Plaintiffs are entitled; and (2) whether the Plaintiffs can recover punitive damages. The Defendants have moved for summary judgment on the punitive damages issue. (See Defs.' Mot. for Partial Summ. J. [DN 210].) The Court will consider this motion below.


Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). The Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252.

In their complaint, the Plaintiffs seek punitive damages from Mr. Pope and Crete, arguing that their actions were "willful, wanton and/or reckless." (See Compl. [DN 1-1] § VII.) The Defendants have moved for summary judgment on these punitive damages claims, arguing that no clear and convincing evidence exists to prove that their conduct reached the level of gross negligence. (See Defs.' Mem. in Supp. of Mot. for Partial Summ. J. [DN 210-2] 9-23.) The Plaintiffs respond that they have presented sufficient evidence to survive the Defendants' motion.

Ky. Rev. Stat. § 411.184(2) states that a "plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence, that the defendant from whom such damages are sought acted toward the plaintiff with oppression, fraud or malice." This standard can be met by producing evidence of a probative and substantial nature carrying sufficient weight to convince ordinarily prudent-minded people of its validity. See W.A. v. Cabinet for Health & Family Servs. , 275 S.W.3d 214, 220 (Ky. App. 2008). The Sixth Circuit has held that "where the nonmoving party faces a heightened burden of proof, such as clear and convincing evidence, he must show in opposition to the motion for summary judgment that he can produce evidence which, if believed, will meet the higher standard." White v. Turfway Park Racing Ass'n, Inc. , 909 F.2d 941, 944 (6th Cir. 1990), overruled on other grounds, Salve Regina College v. Russell , 499 U.S. 225 (1991).

In Williams v. Wilson, the Kentucky Supreme Court found that the statute's requirement of "malice" is unconstitutional. 972 S.W.2d 260 (Ky. 1998). In so doing, it held that to impose punitive damages, conduct must amount to at least common-law "gross negligence." Id . In Horton v. Union Light, Heat & Power Co., the Kentucky Supreme Court explained this standard, noting that to justify punitive damages, "there must be first a finding of failure to exercise reasonable care, and then an additional finding that this negligence was accompanied by wanton or reckless disregard for the lives, safety or property of others.'" 690 S.W.2d 382, 389-90 (Ky. 1985).

In this case, the Court will first analyze whether the Plaintiffs have presented sufficient evidence to justify the imposition of punitive damages on Mr. Pope. It will then analyze whether they have presented sufficient evidence to justify the imposition of punitive damages on Crete.


Mr. Pope's Driving History and Medical Condition. In 1991, Mr. Pope started driving for a predecessor company to Crete. Until the subject accident, he had driven over two million miles without a chargeable or preventable accident. He had also received various safety awards. (See Whitney Morgan Dep. [DN 210-6] 17-18.) While Mr. Pope suffers from Chronic Obstructive Pulmonary Disease ("COPD"), he had disclosed this condition to the Department of Transportation. (See, e.g., May 5, 2009 Med. Exam. Report [DN 210-8].) Further, despite having COPD, Mr. Pope had passed all of his biennial Commercial Driver Fitness Determinations, including one on May 5, 2009-two months before the subject accident. (See id.) The Commercial Driver Fitness Determination on May 5, 2009 gave Mr. Pope a two-year medical certificate. According to it, Mr. Pope was medically qualified to drive a truck and had "no limitations." (Id.)

On June 25, 2009, Mr. Pope was hospitalized for acute exacerbation of his COPD. (See Dr. Michael G. Ehrie, Jr. Report [DN 210-10] 4; Michael Pope Dep. [DN 210-15] 38, 54-58.) He was discharged two days later, on June 27, 2009. Mr. Pope was given a sixteen-day tapering dose of Prednisone and a five-day course of antibiotics. After his hospitalization, he took a vacation. He was on vacation until July 7, 2009-five days before the subject accident. (Id.)

Re-Certification. The Plaintiffs argue that before returning to work on July 7, 2009, Mr. Pope was required to seek medical re-certification from the Department of Transportation. (See Pls.' Resp. [DN 218] 3, 5-6.) This argument is based on their interpretation of 49 C.F.R. § 391.45, which requires medical re-certification from "[a]ny driver whose ability to perform his/her normal duties has been impaired by a physical or mental injury or disease." 49 C.F.R. § 391.45(c). According to the Plaintiffs, this regulation requires drivers to be re-certified after an impairing illness-even if the driver is able to perform his/her normal duties after recovery. Thus, the Plaintiffs argue that since Mr. Pope was impaired when he was hospitalized on June 25, 2009, he should have been re-certified before returning to work. (See Pls.' Resp. [DN 218] 3, 5-6.)

The Defendants counter that Mr. Pope was not required under 49 C.F.R. § 391.45 to seek medical re-certification after his hospitalization, as he had recovered from his acute exacerbation of COPD and returned to his baseline health. (See Defs.' Reply Mem. [DN 222] 3-8.) They argue that the Department of Transportation indicates that drivers returning from illnesses are not required to undergo re-certifications if their current medical certificates have not expired-"unless the injury or illness has impaired the driver's ability to perform his/her normal duties." See 62 F.R. 16370-01, at *16411-12. According to the Defendants, Mr. Pope's ability to perform his duties was not impaired upon leaving the hospital, as his COPD was no longer exacerbated. (See Discharge Summ. [DN 224-8] (discharging Mr. Pope from the hospital with no work restrictions, but instructing him to follow-up with a pulmonologist and the discharging physician in two or three weeks).) Thus, the Defendants argue that Mr. Pope was not required to be re-certified before returning to work. The Defendants argue that the regulation's intent is not to require re-certification after every illness that causes a driver to miss work. (Defs.' Reply Mem. [DN 222] 5-7.)

Regardless, the evidence shows that Mr. Pope did not seek medical re-certification from the Department of Transportation. Instead, he simply returned to work on July 7, 2009.

July 8, 2009 and July 9, 2009. On July 8, 2009, Crete dispatched Mr. Pope to an Atlas Cold Storage facility in Piedmont, South Carolina, to pick up a load of freight. (See Michael Pope Dep. [DN 210-11] 222.) He arrived at 12:40 p.m. (Id.) However, Mr. Pope's tractor-trailer was not loaded until nearly midnight, after eleven hours had passed. (See id. at 229.) In his log book, Mr. Pope logged this eleven-hour period as "uninterrupted rest." ( Id. at 228.) Essentially, this reset his duty clock-meaning that he could work an additional fourteen hours before receiving another rest period. (See Pls.' Resp. [DN 218] 9.)[1] Mr. Pope went on to drive all night, delivering the load on July 9, 2009. (See Michael Pope Dep. [DN 210-11] 229.)

In his deposition, Mr. Pope stated that while he was waiting for his truck to be loaded, during his "uninterrupted rest" time, he received "some sleep but not what you call quality sleep, " as he was "getting it in naps." ( Id. at 227.) The electronic messages sent between Mr. Pope and the dispatcher seem to support that Mr. Pope was napping, as there were two lengthy periods of non-communication. Specifically, Mr. Pope did not communicate with the dispatcher between 12:40 p.m. and 3:40 p.m. or between 5:51 p.m. and 11:02 p.m. (See Qualcomm Messages [DN 210-14].) The Plaintiffs argue, however, that these naps of non-quality sleep were insufficient to reset Mr. Pope's duty clock. According to the Plaintiffs, as a result, Mr. Pope worked an "all-nighter" on July 8, 2009, consisting of twenty-four hours with no sleep. (See Pls.' Resp. [DN 218] 7.)

Further, the Plaintiffs argue that Mr. Pope felt forced to work this all-nighter because he had previously refused to accept freight and had been told by a dispatcher that he could be fired for such refusals. (See Michael Pope Dep. [DN 218-13] 209-10.) In support of this position, the Plaintiffs highlight various messages that Mr. Pope sent the dispatcher while waiting for freight to be loaded on July 8, 2009. In one message, when discussing with the dispatcher how long the delay would last, Mr. Pope stated "I just do what I got to do." (Michael Pope Dep. [DN 210-11] 223.) In another message, in response to the dispatcher's message to keep things "safe and legal always, " Mr. Pope stated "there's nothing safe about this one." (See Satellite Messages [DN 218-15].) The Plaintiffs argue that these messages show that Mr. Pope should not have driven on July 8, 2009. They also argue that the messages show that Mr. Pope falsely indicated that he received eleven hours of ...

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