United States District Court, M.D. Alabama, Northern Division
RICHARD I. LOHR, II, as Administrator of the Estate of Charles David Fancher, Deceased, Plaintiff,
JOSEPH EARL ZEHNER, III, et al., Defendants.
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
Plaintiff Richard I. Lohr, II, as administrator of the estate of Charles David Fancher, filed this wrongful-death lawsuit against defendants Joseph Earl Zehner, III and United Parcel Service, Inc. (UPS), among others. The lawsuit arises out of a series of highway collisions that resulted in Fancher's death. The cause is before the court on administrator Lohr's motion to exclude the testimony of Zehner and UPS's proffered expert Dr. Gordon J. Kirschberg from testifying before the jury.
I. LEGAL STANDARD
Fed. R. Evid. 702 allows experts to offer opinion testimony if:
"(a) the expert's 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. If an expert's testimony is otherwise admissible, he may testify to the ultimate issue in a civil case. Fed.R.Evid. 704(a).
Before an expert may testify, the court must play a gatekeeping role to ensure that the testimony is reliable. See Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141 (1999); Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993). Even if part of an expert's testimony is based on unreliable methodology, the court should allow those parts that are reliable and admissible. United Fire and Cas. Co. v. Whirlpool Corp. , 704 F.3d 1338, 1342 (11th Cir. 2013).
The facts of this case are complex and disputed. However, it is undisputed that early in the morning, before sunrise, Zehner was driving a UPS tractor-trailer on an interstate highway, when he collided with the rear of another tractor-trailer, and his truck turned on its side, blocking the highway. Less than a half hour later, Fancher approached Zehner's upturned truck, collided with it, and died.
Immediately after Fancher's collision, Zehner told a number of people that he must have fallen asleep before his collision with the other tractor-trailer. However, Zehner and UPS now argue that he was in shock and had suffered a traumatic brain injury at the time of those statements. As a result, they argue that he temporarily lost his memory of the minutes ...