Toxicology Expert Issues in Trucking Cases

Toxicology

1. United States District Court, D. Kansas. Tammy Fanning  v. Sitton Motor Lines, Inc. and James F. Duke, Defendant. Case No. 08CV2464 CM/DJW 2010 U.S. Dist. LEXIS 116809, 2010 WL 4261476 (D. Kan. 2010).

The Plaintiff/Decedent was struck and killed while walking in or near the roadway. The Plaintiff, Fanning, moved to strike the expert testimonies of toxicologist, Dr. Michael Corbett and psychiatrist, Dr. Rosalyn Innis, who opined that Fanning’s death was a suicide caused by a drug withdrawal. Plaintiff’s motions were denied in part and granted in part, both experts were precluded from testifying that Fanning’s mental condition ultimately lead to his death.

 

2. United States Court of Appeals, First Circuit. Julio Elvin Ruiz-Troche, et al. v. Pepsi Cola of Puerto Rico Bottling Company, et al.. Case No. 98-1163.  161 F. 3d 77, (1st Cir. 1998).

Trial judge excluded the Defendant’s expert pharmacologist, James O’Donnell, from testifying. He opined to the amount of cocaine present in the decedent/driver’s body at the time of the accident, and subsequently, how this would impair the driver. O’Donnell used a methodology called “half-life” to determine the amount of cocaine in the decedent’s body at the time of the accident. This methodology was an accepted technique and had scientific literature to support it. Despite O’Donnell’s sound methodology, the Trial judge precluded it on the basis that it lacked scientific liability. This also limited testimony as to how the cocaine would have impacted the decedent’s driving ability and led to crash. The Defendants appealed the decision and Appellate judge found that the trial court had abused its discretion in excluding the testimony of O’Donnell, subsequently reversing judgment in the favor of the Defendants.

 

For additional information on toxicology, check a past blog post about synthetic drugs. If there is anything we can do to assist you in the defense of one of the most essential industries, trucking, in America, please call me. 

 

Even if you only have a question about an expert, I will be be glad to consult with you initially at no charge.

 

Recent Cases on Experts in Reconstruction Issues in Trucking Accidents

The following cases address the expertise of various reconstruction and the scope of accident investigator's testimony. We often get requests about Lew Grill. There are two opinions addressing the scope of his testimony. Also, I have a box of depositions and articles by Lew Grill if you're interested.

Reconstruction

1. United States District Court, D. Montana. Tanner J. Parrick, individually and as Personal Representative of the estate of Jerry J. Parrick, Deceased, and on behalf of Thais D. Parrick and Maria Elliot, Plaintiff, v. Fedex Ground Package System, Inc., Bridgewater Trucking, LLC, Sergey Buslayev, and Vladimir Kochukov, Defendants. Case No. CV 09-05-M-DWM-JCL.  U.S. Dist. LEXIS 96414, 2010  WL 3724429 (D. Mont. 2010).

The Plaintiff moved to preclude the Defendants’ reconstruction expert, Dave Beaufort. No party requested a pretrial Daubert hearing, instead, both Plaintiff’s and Defendants’ experts submitted affidavits. The District Court denied the Plaintiff’s motion without prejudice, finding that the existing record indicated only a disagreement between the opposing experts.

 

2. United States District Court, D. Connecticut. Kathleen Crockford v. Lawrence M. Spencer and Metals USA Plates and Shapes Northeast, L.P. Case No. 3:10CV813 (HBF)  (2012 WL 2129356 (D. Conn. 2012).

The Defendants moved to preclude the expert testimony of the Plaintiff’s trucking expert, Lew Grill. Grill opined as to what the Defendants should have done to avoid accident. Defendants claimed that Grill lacked a foundation for his opinion, as he never reconstructed the accident, only using information from the police report. Court denied the Defendants’ motion, stating that there was no requirement for an expert to reconstruct the accident to give an opinion, when the facts relied upon are accurate.

3. Court of Appeals of Arizona, D. Mary Cameron, a single woman, individually, for her personal injury, and individually, for the benefit of the children of Martin Cameron, for the wrongful death of Martin Cameron, deceased  v. Kathyrn Kay Westbrook and John Doe Westbrook; Paul Horta, Jr. and Jane Doe Horta; John Christner Trucking; Royal Express Incorporated Case No. 1 CA-CV 10-0398. 2012 Ariz. App. Unpub. LEXIS 141, 2012 WL 385633 (Ariz. App. Div. 1 2012).

The Plaintiffs disclosed commercial trucking expert, Joseph Peles, to testify in regards to accident reconstruction and whether the defendants complied with FMCSR. The Defendants moved to preclude Peles, claiming he was not qualified to testify regarding standard of care. The Trial judge granted the Defendants motion only allowing Peles to reconstruct the accident. The Appellate court later affirmed the Trial court’s ruling.

 

4. Court of Appeal, Second District, Division 4, California.  Amber Scull, et v. Jose Ventura Hernandez, Case Nos. B220166, B221256. Nov. 30, 2011. 2011 Cal. App. Unpub. LEXIS 9162, 2011 WL 6004288 (Cal. App. 2d Dist. 2011).

The Plaintiffs appealed, claiming that the Trial judge erred in precluding their trucking expert, Lew Grill. Grill opined as to what the Defendant/driver, Hernandez,  should have felt and heard during the accident, challenging Hernandez’s account of what occurred. Grill had vast experience regarding the industry standards of commercial trucking, however, he was not qualified in accident reconstruction. Therefore, he was not allowed to opine about what Hernandez should have experienced during the accident. The court did not err in limiting Grill’s testimony to his area of expertise.

 

5. United States District Court, D. Nevada. Apostolos Hiropoulos v. JeremiahJuso, et al.,  Case No. 2:09CV307 JCM (RJJ). July 29, 2011. 2011 U.S. Dist. LEXIS 83933, 2011 WL 3273884 (D. Nev..2011).

The Plaintiffs moved to preclude testimony of biomechanical expert, Dr. France. They claimed that he lacked a factual basis to form an opinion, because he never visited the accident scene. However, Dr. France used the event data recorder from the Plaintiff’s vehicle, as well as other information and reports, to conclude that the accident was not severe enough to cause the alleged injuries of the Plaintiff. This motion was denied by the court with regard to Federal Rule 702.

Investigating Police Officer Opinions & Diagrams

6. United States District Court, W.D. Arkansas, Harrison Division. Teri Reagan, Individually and as personal representation of the Estate of Roger Reagan; and Maverick Transportation, LLC,  v. Dunaway Timber Company; Morgan Quisenberry; John Doe Trucking; and John Doe Incorporated, Defendants/ Third Party Plaintiffs v. Barry McCoy, Third Party Defendant. Case No. 3:10CV03016. 011 U.S. Dist. LEXIS 126034, 2011 WL 5184218 (W.D. Ark. 2011).

The Plaintiff moved to preclude Corporal Evans from testifying on behalf of the Defendants. This case addressed the question of whether someone can be recognized as an expert in the field of accident investigation or reconstruction. The court, after considering Daubert and Rule 702, granted and denied in part the Plaintiffs’ motion. Corporal Evans had appropriate knowledge, experience, training and evidence to testify regarding the investigation of the accident. However, he could not testify in regard to his reconstruction of the accident.

 

If you have any cases in north Louisiana or northeast Texas that you need insight on experts, judges, lawyers or the venue, feel free to call me. NO CHARGE for initial consultation.

More Decisions on Trucking Experts: Hiring and Safety Stats

Negligent Hiring & Entrustment

1. United States District Court, D. Kansas. Terry L. Frederick and Donna F. Frederick v. Swift Transportation Co., Inc., and Robyn L. Getchel  Case No. 06-1332-MLB. Sept. 10, 2008. 591 F. Supp. 2d 1149 (D. Kan. 2008).

Swift moved to exclude the Plaintiff’s expert opinion regarding the hiring of the driver. The expert opined that Swift violated “good industry practice” and was negligent in hiring Ms. Getchel who failed driving exam multiple times. However, no federal regulations required a driver to pass exam within a certain number of tries. The court granted Swift’s motion stating that the jury could evaluate this information without expert testimony.

2. District Court of Oklahoma.  Deanna Bender, individually and as parent and next friend of Brittany Lee Bender, and Christina Marie Bender, minor children v. Kathy Sue Fracasso, an individual, Werner Enterprises, Inc.; the Insurance Company of the State of Pennsylvania; Continental Casualty Company, and Markel American Insurance Company Case No. CJ-2002-258. WL 24302737 (Okl. Dist. 2003).

The Defendants moved to exclude the Plaintiff’s expert, Kelly Anderson, from testifying in regard to Werner’s hiring, training and supervision of their employees. The Defendants successfully argued that Anderson’s opinions were not based on any trucking industry standard, law or regulation; but rather his experience from working at one company (CFI). One company’s way of business operations cannot be assumed for an entire industry, thus, Anderson was precluded from testifying.

Safety History & Ratings

3. United States District Court, D. Kansas. Terry L. Frederick and Donna F. Frederick v. Swift Transportation Co., Inc., and Robyn L. Getchel  Case No. 06-1332-MLB. Sept. 10, 2008. 591 F. Supp 2d 1149 (D. Kan. 2008).

The Defendants moved to exclude expert testimony regarding government safety compliance audits. The Plaintiffs’ expert opined in regards to a safety compliance audit 5 years prior to case, which resulted in the motor carrier receiving a less than satisfactory rating. The Defendants argued that this compliance audit was inadmissible because: (1) a subsequent compliance audit yielded a satisfactory rating, and (2) there was no evidence that the earlier safety compliance audit had anything to do with the accident at issue in this case. As such, the Frederick court excluded expert testimony on this subject.

4. United States District Court, W.D. Virginia, Roanoke Division. Winford Dallas Jones v. C.H. Robinson Worldwide, INC. Case No. 7:06CV00547 . 558 F. Supp. 2d 630 (W.D. Va. 2008).

The Defendant moved to exclude the introduction of unsatisfactory safety ratings of their employee involved in the accident. Employee originally received an unsatisfactory rating which was then changed to a conditional rating. The Defendant asserted it had no duty to consider the safety rating when hiring, due to their expert, Sandberg, who opined that only the conditional rating was relevant. The court denied the Defendant’s motion stating that the unsatisfactory rating is relevant in evaluation of employee as a carrier and that Robinson could have found his ratings on the FMCSA website.

Daubert Challenges to Experts in the Trucking Industry

At the 2012 TIDA Annual Conference, Thomas C. DiSalvi, Scott W. McMickle and Christopher M. Vossler presented an informative session on Daubert and its Effect on Trucking Experts.

 

Thanks again to the Trucking Industry Defense Association and all the committee members who did an excellent job of outlining topics and speakers helpful the industry. Thanks to David Sauvey, and other pioneers of the organization, who realized how important it is to share ideas with each other.

As always, if I can be of assistance to you in north Louisiana or northeast Texas, please don't hesitate to call me day or night.

 

 

The following cases deal with Daubert Motions on Liability Experts pertaining to carrier selection and Equipment issues. Later, I will outline the Daubert motions pertaining the negligent hiring, police officer diagrams, safety history & ratings and toxicology. Later, I will post some key cases about Daubert motions of experts on damages.

Carrier Selection

Winford Dallas Jones v. C.H. Robinson Worldwide, Inc. Case No. 7:06CV00547 (W.D. Va. 2008). The Defendant moved in limine to exclude the Plaintiff’s expert, Thomas M. Corsi’s, testimony regarding carrier selection methods. This motion was granted and denied in part. Corsi was disallowed from making conclusions on carrier groups based on their SEA ratings or carrier selection practices due to his informal research performed before he was deposed. However, because of his experience with SafeStat, FMCSA data and tractor trailer accidents, he was permitted to testify on the meaning and reliability of safety information available to the industry in 2004.

Equipment

Lenore Kabasinskas, Personal Representative of the Estate of Frederic D. Kabasinskas v. William R. Haskin, individually, George W. Wesley, III, individually, U.S. Xpress, Inc., a Tennessee corporation, and U.S. Xpress Leasing Inc., a Tennessee corporation  2011 U.S. Dist. LEXIS 57446, 2011 WL 2118641(D. Neb. 2011). The Defendants’ motion in limine to preclude three of the Plaintiff’s liability experts was granted. Proffered experts were disclosed to offer opinions on wheel lugs, pre-trip inspections and compliance with 49 C.F.R.§§ 392 and 396. The court ruled that these experts were not qualified to testify under Federal Rule 702.

Barbara Rose; Robert Rose v. Truck Centers, Inc., et al TRW Automotive, U.S., LLC, Case No. 09-3597. August 6, 2010. 388 Fed. Appx. 528, 2010 WL 3069613 (6th Cir. Ohio 2010). The Defendants moved to preclude the Plaintiff’s expert, who testified on the process of torquing steering gear bolts. He opined how failure to do so correctly could affect the integrity of the trucks steering. Although he was a qualified truck mechanic expert, his opinion as to how the accident occurred was not reliable under Federal Rule 702. The court granted the Defendants’ motion and entered summary judgment in their favor.