Opinion
No. 4:22-cv-0200-P
2023-10-24
Rodney Dwayne BIBBS, Plaintiff, v. MOLSON COORS BEVERAGE COMPANY, USA, LLC d/b/a Miller Coors, LLC, Defendant.
Salvador Jason Robles, Dykema Gossett PLLC, Dallas, TX, Levi G. McCathern, II, McCathern PLLC, Dallas, TX, Samuel J. King, McCathern PLLC, Frisco, TX, for Plaintiff. Patrick S. Nolan, Pro Hac Vice, Quarles & Brady LLP, Milwaukee, WI, Andrew L. Franklin, Pro Hac Vice, Quarles & Brady LLP, Chicago, IL, James W. Watson, Ryan Quinn Trammell, Watson Caraway Midkiff & Luningham LLP, Fort Worth, TX, Jazzmin Gordon, Pro Hac Vice, Quarles & Brady LLP, Phoenix, AZ, for Defendant.
Salvador Jason Robles, Dykema Gossett PLLC, Dallas, TX, Levi G. McCathern, II, McCathern PLLC, Dallas, TX, Samuel J. King, McCathern PLLC, Frisco, TX, for Plaintiff.
Patrick S. Nolan, Pro Hac Vice, Quarles & Brady LLP, Milwaukee, WI, Andrew L. Franklin, Pro Hac Vice, Quarles & Brady LLP, Chicago, IL, James W. Watson, Ryan Quinn Trammell, Watson Caraway Midkiff & Luningham LLP, Fort Worth, TX, Jazzmin Gordon, Pro Hac Vice, Quarles & Brady LLP, Phoenix, AZ, for Defendant.
ORDER
Mark T. Pittman, United States District Judge
Before the Court is Defendant's Motions to Strike Plaintiff's Expert Testimony (ECF No. 71) and for Summary Judgment
(ECF No. 74). For the reasons below, the Court GRANTS Defendant's Motion to Strike, and accordingly GRANTS Defendant's Motion for Summary Judgment.
BACKGROUND
This case arises from Defendant's alleged negligence causing a truck accident which injured Plaintiff. Plaintiff is a commercial truck driver who was an independent contractor for a trucking company hired to drive a pre-loaded trailer of packaged beer for Defendant. Plaintiff was to drive the load from Defendant's brewery in Elkton, Virginia to a distributor near Columbus, Ohio.
While passing through West Virginia, Plaintiff alleges that the trailer's load suddenly shifted in transit, causing Plaintiff to lose control of the truck and overturn in the median of the highway. Plaintiff claims numerous injuries from the accident, and the record does not indicate the number of libations tragically lost.
Plaintiff sued, alleging that Defendant is liable for Plaintiff's injuries for negligently packing the beer pallets and securing the load on the trailer. Defendant filed the instant motion for summary judgment.
LEGAL STANDARD
A. Expert Testimony
Federal Rule of Evidence 702 provides that a witness may be qualified to provide expert 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 of the facts to the case. FED. R. EVID. 702. If proffered scientific or technical evidence—such as the proffered expert's opinions—fails to meet this standard, it is inadmissible as expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-92, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
B. Summary Judgment
Summary Judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact" and "is entitled to judgment as a matter of law." FED. R. CIV. P. 55(a). A dispute is "genuine" if the evidence presented would allow a reasonable jury to return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" when it might affect the outcome of a case. Id. at 248, 106 S.Ct. 2505. Generally, the "substantive law will identify which facts are material," and "[f]actual disputes that are irrelevant or unnecessary will not be counted." Id.
When determining whether summary judgment is appropriate, the Court views the evidence in the light most favorable to the nonmovant. See First Am. Title Ins. Co. v. Cont'l Cas. Co., 709 F.3d 1170, 1173 (5th Cir. 2013). In conducting its evaluation, the Court may rely on any admissible evidence available in the record but need only consider those materials cited by the parties. FED. R. CIV. P. 55(c)(1)-(3). But the Court need not sift through the record to find evidence in support of the nonmovant's opposition to summary judgment; the burden falls on the moving party to simply show a lack of evidence supporting the nonmovant's case. See Malacara v. Garber, 353 F.3d 393, 404-05 (5th Cir. 2003).
ANALYSIS
The determination of Defendant's Motion for Summary Judgment is hitched to
the Court's decision whether to admit Plaintiff's challenged expert testimony. ECF No. 75 at 1. Thus, the Court first addresses Plaintiff's proffered liability expert.
A. Plaintiff's proffered expert testimony.
Plaintiff seeks to admit the report and testimony of Mr. James Lewis, a self-described "Transportation Safety Expert," ECF No. 76 at 92, to opine on whether Defendant breached the requisite standard of care in loading the trailer which allegedly caused Plaintiff's accident. Id. at 96. In short, Lewis concludes that—based on his industry experience—Defendant's workers poorly wrapped the pallets of beer at issue, negligently loaded Plaintiff's trailer, and therefore "increase[ed] the probability and magnitude of the potential harm to the victim of [the] crash." Id.
Defendant contends that Lewis failed to perform independent or verifiable testing or analysis to support his conclusion, which renders his expert testimony inadmissible because it is therefore based on unreliable facts. ECF No. 75 at 1.
Experts are "permitted wide latitude to offer opinions, including those not based on firsthand knowledge or observation." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. But before the court may admit proffered evidence as "expert" testimony, it must determine "whether the reasoning or methodology underlying the testimony is scientifically valid and [] whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93, 113 S.Ct. 2786. And the court has "broad discretion to determine whether a body of evidence relied upon by an expert is sufficient to support that expert's opinion." Sims v. Kia Motors of America, 839 F.3d 393, 400 (5th Cir. 2016).
While experts are afforded great latitude, the existence of sufficient facts and a reliable methodology is mandatory to render their testimony admissible. Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007). Generally, a key inquiry illuminating whether a methodology is reliable is whether it can be tested (and repeated) or subjected to peer review or publication. Daubert, 509 U.S. at 593, 113 S.Ct. 2786. But "without more than credentials and a subjective opinion, an expert's testimony that 'it is so' is not admissible." Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987).
Here, Lewis's report concluded that Defendant was liable for poorly packing the beer pallets which subsequently shifted and caused Plaintiff's accident. ECF No. 76 at 96. To support his evaluation of the accident, Lewis cites to: (1) an interview with Plaintiff, Id. at 94; (2) impressions provided by Defendant's counsel, Id.; (3) personal anecdote, Id. at 95; and (4) his review of photos provided to him. Id.
Further, Lewis testified at Defendant's deposition that: (1) he was unaware of any formal standards in existence that could guide shippers in selecting suitable pallet wrapping, Id. at 126; (2) he did not evaluate whether any such standards exist, Id. at 127; (3) he did not inspect the vehicle or crash site at issue, Id. at 196; (4) the only photos in the case he analyzed were ones provided to him, Id.; (5) he did not conduct any independent investigation or testing of any item related to the case—including the tractor-trailer involved in the accident, Id. at 198; (6) he never conducted any kind of accident reconstruction to determine possible causes of the accident, Id. at 234; and (7) there was no other basis for his conclusion that the wrapping was faulty than examining the pallets after the accident,
Id. at 231, and observing the photos provided to him. Id. at 233.
In short, Lewis's expert report can be characterized as no more than a highly informed opinion. To be sure, Lewis's resume is rife with decades of industry experience which—no doubt—renders his advice invaluable to those with whom he consults. While that may make Lewis an "expert" in the colloquial sense, it does not qualify him as an expert in the legal one. Expert testimony is inadmissible when it is based solely on one's credentials and opinions—and Plaintiff offers no evidence to allow the Court to conclude that Lewis used any reliable methodology to form his opinion other than his subjective industry experience. Without a reliable methodology to apply to the facts of this case, Lewis cannot be qualified as an expert witness under Rule 702.
Because Mr. Lewis cannot be qualified as an expert witness, his testimony—insofar as it is offered as expert testimony—is inadmissible.
B. Summary Judgment
Defendant contends that it is entitled to summary judgment because—without Lewis's expert testimony—Plaintiff cannot maintain a claim as a matter of law. ECF No. 75 at 3.
Sitting in diversity, this Court is guided by Texas's law of negligence. See Erie R.R. v. Tompkins, 304 U.S. 64, 85-86, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). And in Texas, expert testimony is required to establish the element of causation when the nature of the alleged negligence is not within the experience of laymen. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). In determining whether the subject of an action is within the experience of the layman, Texas courts often consider whether the negligence involves the use of specialized equipment and techniques unfamiliar to the ordinary person. See e.g., Hager v. Romines, 913 S.W.2d 733, 735 (Tex. App.-Fort Worth, 1995, no pet.). And Texas courts have held that the trucking industry meets this standard to require expert testimony. See e.g., FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004).
Thus, to establish a claim for negligence here, Plaintiff must establish causation through expert testimony. Lewis is Plaintiff's only proffered expert solicited to testify regarding causation. Because the Court has disqualified Lewis as an expert witness, Plaintiff has no remaining experts to testify to that element of his claim and therefore cannot maintain his negligence action as a matter of law. See Viterbo, 826 F.2d at 421 (affirming district court's award of summary judgment where the plaintiff lacked the expert testimony necessary to prove causation).
Plaintiff's lack of any other expert testimony on causation is undisputed, as Plaintiff has failed to timely designate any other experts or move the Court for leave to do so out of time. This undisputed fact further entitles Defendant to judgment as a matter of law because Plaintiff cannot establish a necessary element to his claim.
CONCLUSION
Accordingly, the Court GRANTS Defendant's Motion to Strike Mr. Lewis as an expert witness (ECF No. 71) and therefore GRANTS Defendant's Motion for Summary Judgment (ECF No. 74). The Court further DENIES Defendant's subsequent Motions in Limine (ECF Nos. 80, 82, 83) as moot.
SO ORDERED on this 24th day of October 2023.