United States District Court, S.D. Alabama, Northern Division
W.J. and IRMA SMITH, Plaintiffs,
LIQUID TRANSPORT CORPORATION, et al., Defendants.
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
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).
reasons explained below, the Court finds that Defendants'
motions to strike, to exclude expert testimony, and for
summary judgment are due to be granted.
W.J. Smith's Medical History
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.
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.
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.
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.
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.
Williams' Brake System
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.
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.
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).
Smith's Post-Accident Medical Condition
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
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
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.
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.
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
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).
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
Motion to Strike
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).
Standard of Review
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.
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).
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.
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.
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.
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.
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.
Motion to Exclude Expert Testimony
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).
Standard of Review
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
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
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. ...