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W.J. v. Liquid Transport Corp.

United States District Court, S.D. Alabama, Northern Division

July 13, 2018

W.J. and IRMA SMITH, Plaintiffs,
v.
LIQUID TRANSPORT CORPORATION, et al., Defendants.

          ORDER

          CALLIE V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE

         This action for personal injury and loss of consortium arises out of an accident involving two commercial motor vehicles. The motions addressed in this Order are:

1) Defendants Liquid Transport Corporation and Great West Casualty Company's (collectively “Defendants”) Motion to strike certain testimony of Irma Smith (Doc. 97), Plaintiffs W.J. Smith and Irma Smith's (collectively “Plaintiffs”) Response (Doc. 101) and Defendants' Reply (Doc. 104), 2) Defendants' motion to exclude Plaintiffs' expert testimony (Doc. 98), Plaintiffs' Response (Doc. 102) and Defendants' Reply (Doc. 105), and 3) Defendants' Motion for summary judgment (Doc. 88), Plaintiffs' Response (Doc. 94), and Defendants' Reply (Doc. 96).

         For the reasons explained below, the Court finds that Defendants' motions to strike, to exclude expert testimony, and for summary judgment are due to be granted.

         I. Factual Background

         A. W.J. Smith's Medical History

         Plaintiff W.J. Smith (“Smith”) was an active smoker with a history of carotid disease, lung disease, diabetes, and hypertension. (Doc. 94-3, p. 7). Because of his carotid disease, Dr. John Streitman (“Dr. Streitman”) performed a coronary artery bypass grafting procedure on Smith in July of 2013. Id. at p. 5. Following the procedure, Dr. Streitman diagnosed Smith with left carotid stenosis. Id. Symptoms of carotid stenosis include transient ischemic attack, stroke, and loss of vision. Id. at p. 6. However, at the time of Smith's bypass in 2013, he was not exhibiting any symptoms. Id. Throughout the next few years, Smith periodically visited Dr. Streitman to evaluate the status of his carotid stenosis. Id. at pp. 6-9. In April 2015, Dr. Streitman recommended Smith undergo a carotid endarterectomy to reduce his risk of stroke. Id. at p. 6. Smith, however, was not interested in having the operation. Id. Though carotid disease can contribute to some of the risks of stroke, a carotid endarterectomy is nevertheless an elective operation. Id. at p. 7, 22.

         B. The Accident

         On May 5, 2015, Smith was operating a tractor-trailer when he was rear-ended by Eddie Williams (“Williams”). (Doc. 94, p. 1). Williams, an agent of Liquid Transport Corporation (“LTC”), was also operating a tractor-trailer. Id.

         Williams and Smith were both traveling northbound on Interstate 75 in Catoosa County, Georgia at the time of the accident. (Doc. 94-2, p. 13). The posted speed limit on Interstate 75 is 70 miles per hour, and Williams was driving 65 miles per hour. Id. At some point during the commute, Smith passed Williams. Id. Smith later proceeded to get in front of Williams as each prepared to exit for a weigh station. Id.

         While Smith was preparing to exit, Williams saw Smith's brake lights illuminate. Id. At that point in time, Williams began pressing his brake pedal. Id. Williams testified that the traffic in the two lanes beside him “had quite a few cars in it, ” but he felt there “was more than enough safe distance” between he and Smith. Id. However, as Williams was pressing his brake pedal, he realized that his tractor-trailer was not slowing down as fast as it should have been. Id. Williams started applying more pressure on the brakes, even to the point that he could see smoke coming from his tires. Id. He stood on the brake pedal as hard as he could, but he was unable to avoid impact with Smith's tractor-trailer. Id. at pp. 13-14. When he realized he was going to collide with Smith, Williams tried to lessen the impact against Smith's vehicle by hitting Smith at an angle. Id. at p. 14. He believes there were no feasible alternative options because there was too much traffic in the lanes on his left, and he would have rolled the vehicle if he had taken the shoulder to his right. Id. at pp. 13-14.

         Plaintiffs, however, contend Williams should have been able to bring his tractor-trailer to a complete stop. Thus, Plaintiffs assert a vicarious liability claim against LTC for Williams' alleged negligent operation of the vehicle.

         C. Williams' Brake System

         It is undisputed that the right-rear brake drum on Williams' tractor-trailer was missing following the accident. (Doc. 90, p. 19). A few weeks before the accident, the tractor-trailer underwent its 90-day periodic inspection. (Doc. 94-1, p. 19). Additionally, the day before the accident, the tractor trailer was involved in a safety lane inspection by LTC's mechanic. Id. Both inspections included checking the brake system. Id. Furthermore, the labor involved in the safety lane inspection included adjusting the tractor-trailer's brakes. Id. at pp. 23-24. LTC's inspection guides and annual reports did not contain any indication there was some sort of defect in Williams' tractor-trailer at the time of the accident. Id. at p. 23.

         On the day of the accident, Williams testified the brakes had been functioning normally, and he had not encountered any difficulty stopping the vehicle. (Doc. 94-2, p. 14). Williams performed a pre-trip inspection, which included performing a brake test, and the brakes “felt fine.” Id. Moreover, Williams had never experienced any problems or observed any complications with the tractor-trailer's brake system prior to the accident. Id. at p. 16. Furthermore, throughout the course of his ownership of the tractor-trailer, an inspection has never revealed any issue with the brakes. Id.

         Plaintiffs, however, contend the brake drum defect existed on the trailer before the pre-accident inspections performed by LTC's mechanic and Williams. (Doc. 94, p. 12). Thus, Plaintiffs have asserted a vicarious liability claim against LTC for the mechanic's and Williams' alleged negligent inspections of the tractor-trailer's braking system. (Doc. 94, p. 12).

         D. Smith's Post-Accident Medical Condition

         As a result of the accident, Smith sustained injuries to his neck and back. On July 30, 2015, Smith saw orthopedic surgeon, Dr. Thomas Bernard (“Dr. Bernard”), for neck pain and stiffness. (Doc. 94, p. 18). Dr. Bernard diagnosed him with cervical spondylosis without myelopathy and a cervical strain (i.e. “whiplash”). Id. To help alleviate his symptoms, Dr. Bernard recommended physical therapy treatment. Id.

         Between August 1, 2015 and August 17, 2015, Smith attended three physical therapy sessions with physical therapist Thomas Rider (“Rider”). Id. The physical therapy visits included therapeutic exercises, ultrasounds, and massages. (Doc. 94-5, p. 6). On Smith's third visit, Smith revealed to Rider that he had a history of carotid disease. Id.

         Smith returned to visit Dr. Streitman to evaluate his carotid condition in June 2015, approximately one month following the accident with Williams. (Doc. 94-3, p. 7). At the time of the visit, Dr. Streitman was unaware Smith had been in an accident. Id. Dr. Streitman was still of the opinion that Smith would have stroke risk reduction if he underwent the carotid endarterectomy. Id. Following a discussion with Smith about the risks and benefits of the surgery, Dr. Streitman was under the impression that Smith had decided to proceed with the operation. Id.

         Smith's last physical therapy session with Rider was on August 17, 2015, and Dr. Streitman performed the carotid endarterectomy on September 2, 2015. Id. at pp. 10-11. Smith had complications following the endarterectomy, including a stroke that left him paralyzed. Id. at pp. 12-13.

         Based on the foregoing, Plaintiffs contend Williams' rear-end collision ultimately caused Smith's stroke because Smith was required to undergo the carotid endarterectomy in order to continue receiving physical therapy for his neck. Accordingly, Plaintiffs have asserted a vicarious liability claim against LTC for causing Smith's stroke. Plaintiffs also contend they are entitled to damages amounting to Smith's past and future medical expenses. Thus, they have brought a direct action against Defendant LTC's indemnity insurer, Great West Casualty Company, for indemnification for any sums owed if LTC should become obligated to pay Plaintiffs.

         II. Procedural History

         On May 3, 2017, Plaintiffs filed a six-count Complaint against Williams, LTC, Dana Transport, Inc., and Great West Casualty Company for personal injury and loss of consortium. (Doc. 1). Plaintiffs filed an Amendment Complaint (Doc. 30) on July 24, 2017, which became the operative pleading in this case. On September 13, 2017, the parties jointly agreed to a stipulation of dismissal of Defendant Williams and Defendant Dana Transport. (Doc. 50). In accordance with the stipulation of dismissal, Defendant LTC also stipulated to being held vicariously liable to the extent Williams is found negligent in causing the collision. (Doc. 94-8).

         Accordingly, the only remaining issues to be litigated in this case are as follows: Defendants' willfulness or wantonness in causing the collision; Williams' negligent operation of the tractor-trailer; Defendants' negligent inspection of the tractor-trailer's braking system; Defendants' negligence in causing Smith's stroke; and Defendants' liability for Smith's claims for past and future medical expenses. In conjunction with their claims for vicarious liability, Plaintiffs seek indemnification against Defendant LTC's indemnity insurer, Great West Casualty Company, for any sums owed if LTC should become obligated to pay Plaintiffs.

         III. Motion to Strike

         Defendants have moved to strike certain testimony of Plaintiff Irma Smith (“Ms. Smith”) proffered in Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment. Defendants assert Ms. Smith's testimony includes two out-of-court statements of Smith, and both of those statements are double hearsay. (Doc. 97, p. 1).

         A. Standard of Review

         Under the Federal Rules of Evidence, hearsay is defined as a statement “(1) that the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). The general rule is that the Court will not consider inadmissible hearsay on a motion for summary judgment. Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012) (citation omitted). However, “a district court may consider a hearsay statement in passing a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Id. at 1293-94 (citation omitted). “Hearsay within hearsay” (i.e. “double hearsay”) is admissible only if each part of the combined statements conforms with an exception to the hearsay rule. Fed.R.Evid. 805.

         B. Analysis

         Defendants' first objection is to Ms. Smith's deposition testimony that Smith told her “Williams admitted [to Smith] that the collision was his fault.” (Doc. 94, p. 7); (Doc. 94-4, pp. 29-30). Defendants contend the statements are inadmissible double hearsay. (Doc. 97, p. 2).

         Defendants concede Williams' statement to Smith is an admission by a party opponent, which by definition is not hearsay. (Doc. 97, p. 2) (citing Fed.R.Evid. 801(d)(2). However, Defendants take issue with the second statement: Smith's statement to Ms. Smith. Defendants assert Smith's statement to Ms. Smith is an out-of-court statement offered to prove the truth of the matter asserted and does not fall into any hearsay exception under Rules 803 and 804. In response, Plaintiffs do not contest Defendants' argument. (Doc. 101, p. 1). Thus, Ms. Smith's cited testimony will not be considered at the summary judgment stage.

         Defendants' second objection is to Ms. Smith's deposition testimony that Smith told Ms. Smith “that [physical therapist] Rider had just told him that he could not continue treating Mr. Smith until Mr. Smith had surgery on his carotid artery.” (Doc. 97, p. 2); (Doc. 94-4, pp. 33-37, 41-42, 49-50, 54). Defendants argue the first statement, Rider's alleged statement to Smith, is offered for the truth of the matter asserted. (Doc. 97, p. 2). Defendants also take issue with the statement because “Rider expressly denies telling Mr. Smith anything along the line that he could not continue physical therapy until having carotid artery surgery.” Id. Furthermore, Defendants also contend the second statement, Smith's statement to Ms. Smith, is hearsay. Id.

         In response, Plaintiffs assert the first statement, Rider's statement to Smith, falls under the “present-state of mind” hearsay exception under Rule 803(3). (Doc. 101, p. 4). Plaintiffs urge the Court to disregard Defendants' argument that Rider “expressly denies” making the statement to Smith. Plaintiffs argue the purpose of Rule 803(3) is to show “that contemporaneous statements about a present state of mind will be superior in evidentiary value to the declarant's later testimony on the same point.” Id. at p. 3. Because Rider is available to testify that Smith's statement is allegedly not true, but Smith is incapacitated and cannot do the same, it is imperative that Rider's testimony is allowed into evidence. Id. In the alternative, Plaintiffs also argue the statement tends to prove the effect on the listener (i.e. that Smith believed the only way he could continue therapy was if he had the carotid surgery). Id.

         As a preliminary matter, the statement is not admissible for the non-hearsay purpose of showing its effect on the listener. The effect on the listener can only be determined by the listener, not someone else. See Tucker v. Housing Auth. of Birmingham Dist., 507 F.Supp.2d 1240, 1269 (Ala. N.D. 2006) (in race discrimination lawsuit, the court admitted Defendant's statements over Defendant's evidentiary objection to hearsay because Plaintiff testified regarding the effect Defendant's comments had on Plaintiff). Plaintiffs have not offered any deposition testimony or sworn statement from Smith in order to determine the effect, if any, Rider's purported statement had on him. Thus, the statement cannot be offered for the truth asserted within it.

         Neither is the Court persuaded by Plaintiffs' argument under Rule 803(3). Plaintiffs assert Rider's alleged statement to Smith should be admitted because Rider is available for trial to testify that the statement is allegedly not true. However, Rider has already testified that he never told Smith he was required to have the surgery before he would continue physical therapy on Smith. (Doc. 94-5, p. 14). Thus, there is no “he-said/he-said” discrepancy for the Court to consider. (See Doc. 101, p. 3). Furthermore, if Rider's alleged statement to Smith was not offered for the truth asserted in the statement, then it is unclear how the evidence could establish the existence of a serious and significant material fact question to preclude summary judgment. Accordingly, Ms. Smith's cited testimony will not be considered at the summary judgment stage, and Defendants' motion to strike certain portions of Ms. Smith's testimony is due to be granted.

         IV. Motion to Exclude Expert Testimony

         Defendants have also moved to preclude Plaintiffs' disclosed expert, Gary Johnson, from testifying or offering opinions regarding (i) the timing and circumstances of the shattered brake drum and (ii) the adequacy of the brake inspections performed separately by LTC's brake inspector and Williams. (Doc. 98, p. 1). Specifically, Johnson seeks to testify that the brake drum failure occurred “at least several days before the accident, ” and thus, LTC's mechanic and Williams were negligent in performing their pre-trip inspections. (See Doc. 98-2) Defendants assert Johnson is not qualified as an expert on those subjects, and his opinions fail to meet admissibility standards for expert testimony. (Doc. 98, p. 1).

         A. Standard of Review

         Under Federal Rule of Evidence 702 (“Rule 702”), expert testimony is admissible if:

(1) the expert is qualified to testify regarding the subject of the testimony; (2) the expert's methodology is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)]; and (3) the expert's testimony will assist the trier of fact in understanding the evidence or determining a fact at issue. Chapman v. Proctor & Gamble Distrib., LLC, 766 F.3d 1296, 1304(11th Cir.2014)(citation omitted).

         The Eleventh Circuit has noted that a court may admit expert testimony if the following requirements are met: (1) the expert is “qualified to testify competently regarding the matter he or she intends to address”; (2) the methodology the expert used is reliable, as determined by a Daubert inquiry; and (3) the testimony assists “the trier of fact through the application of expertise to understand the evidence or determine a fact in issue.” Kilpatrick v. Breg, Inc., 654 F.3d 1329, 1335 (11th Cir. 2010). Though “there is inevitably some overlap among the basic requirements- qualification, reliability, and helpfulness-they remain distinct concepts and the courts must take care not to conflate them.” Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (citation omitted). “[T]he burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion.” Chapman, 766 F.3d at 1304 (citation omitted).

         B. Analysis

         As a preliminary matter, the testimony Johnson seeks to present is not lay witness testimony; it is expert testimony. Johnson was not present at the time of the accident nor was he an eyewitness to the accident. Rather, he has reviewed various documents, including: photographs of both tractor-trailers involved in the accident, photographs of the suspension and braking components of Williams' tractor trailer, and deposition testimony. Johnson has been specially retained to draw conclusions based on those documents. ...


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