United States District Court for the Western District of Texas, San Antonio Division
May 28, 2024, Decided; May 28, 2024, Filed
SA-21-CV-01181-XR
2024 U.S. Dist. LEXIS 94790 *
ANTOINE MANSON, Plaintiff -vs- B&S TRUCKING OF JACKSON, LLC, MARIEL ARIAS-PADILLA, JJ&C EXPRESS CORP., Defendants
Prior History: Manson v. B&S Trucking of Jackson, LLC, 2023 U.S. Dist. LEXIS 75558, 2023 WL 3170494 (W.D. Tex., May 1, 2023)
driver, logs, gross negligence, driving, Trucking, violations, ratified, expert testimony, hours-of-service, reconsider, crash, grant summary judgment, reconsideration motion, expert witness, log book, training, alleges, audit
Counsel: [*1] For Antoine Manson, Plaintiff: Michael Jacobellis, LEAD ATTORNEY, Thomas J. Henry PLLC, San Antonio, TX.
For B&S Trucking of Jackson LLC, Mariel Arias-Padilla, Defendants: Erik L. Krudop, Naman Howell Smith & Lee PLLC, San Antonio, TX; David Louis Ortega, LEAD ATTORNEY, Naman Howell Smith and Lee, San Antonio, TX.
Judges: XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
ORDER
On this day, the Court considered the following: (1) Plaintiff’s Opposed Motion to Reconsider Granting Summary Judgment on Claims of Gross Negligence Pled against Defendant B&S Trucking (ECF No. 122), and Plaintiff’s Opposed Motion to Exclude Defense Expert Rodney Ellis (ECF No. 123).
BACKGROUND
Plaintiff Antoine Manson alleges that on March 20, 2021, at about 3:00 a.m., he was traveling on Loop 1604 in Bexar County, Texas when he was struck by Defendant Mariel A. Arias-Padilla (“Defendant Driver”), who was driving a commercial motor vehicle within the course and scope of her employment with Defendants B&S Trucking of Jackson, LLC (“Defendant Company”) and JJ&C Express Corp.1 The force of the impact allegedly caused Plaintiff to lose control and subsequently crash into the median concrete barrier. Plaintiff alleges [*2] that he suffered major injuries as a result.
On October 14, 2022, Defendants Arias-Padilla and B&S Trucking filed a motion for partial summary judgment, requesting that the Court grant summary judgment on Plaintiff’s gross negligence and “direct” negligence claims. ECF No. 38. On May 1, 2023, the Court granted Defendants’ motion. ECF No. 70.
In July 2023, Plaintiff obtained copies of Defendants’ driver logs for the period of March 14, 2021 — March 21, 2021. ECF No. 102-1 at 4. Plaintiff alleged that these logs revealed that Defendant Driver falsified her hours-of-service at the time of the crash to conceal that she exceeded the maximum number of permissible hours to drive under the Federal Motor Carrier Safety Regulations (“FMCSR”) in the days leading up to crash. Id. at 5. Plaintiff asserted that these logs constituted direct evidence that driver fatigue played a role in the crash, necessitating the Court to reconsider its summary judgement ruling (ECF No. 70) that Plaintiff’s accident was a simple garden variety lane crash that precluded gross negligence. ECF No. 102-1 at 10-11. Citing to this new evidence, Plaintiff urged the Court to find that material fact disputes existed with [*3] respect to Plaintiff’s i) direct negligence claim against Defendant B&S Trucking; and ii) gross negligence claims against Defendants Arias-Padilla and B&S Trucking. Id. at 11-16. At an August 1, 2023 status conference, the Court granted this motion in part, vacating its previous summary judgment ruling only with respect to the gross negligence claim asserted against Defendant Driver.
Subsequently, Plaintiff obtained an additional six-months of driver logs extending from September 2020 to March 2021. ECF No. 122 at 2. Plaintiff now contends that these logs reveal a pattern of Defendant Arias-Padilla driving over the legal hours of service through a process where she would log herself off duty—logging out of the Electronic Logging Device (“ELD”)—and then continue to drive the truck. ECF No. 122 at 4. Specifically, Plaintiff points to the logs indicating that Defendant Driver would go off duty in one location, and then hours later go back on duty at another location, with the odometer now rolled forward several hundred miles between entries. Id. at 4-5. Plaintiff alleges Defendant B&S Trucking approved, authorized, and ratified the conduct of Defendant Driver by allowing her to continuously [*4] drive in excess of the hours mandated by the FMCSR when it had a legal duty to intervene and stop her. ECF No. 122 at 20. On this basis, Plaintiff again requests that we reconsider our summary judgment ruling with respect to Defendant Company’s gross negligence.
For the reasons explained below, the Court DENIES Plaintiff’s motion to reconsider (ECF No. 122).
LEGAL STANDARD
“[T]he Federal Rules of Civil Procedure do not provide for a motion for reconsideration.” Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004). Nonetheless, the Fifth Circuit has considered motions to reconsider final judgments under Rule 59(e) and 60(b). Fed. R. Civ. P. 59(e) (allowing a court “to prevent a manifest injustice” by altering or amending a judgment upon a timely motion); Fed. R. Civ. P. 60(b) (allowing a court to “relieve a party or its legal representative from a final judgment, order, or proceeding” for “any . . . reason that justifies relief”); see Doe v. Bridge City Indep. Sch. Dist., No. 20-40596, 2021 U.S. App. LEXIS 31598, 2021 WL 4900296 at *1 (5th Cir. 2021) (Where appellants did not identify the rule by which they sought reconsideration, the court had discretion to analyze the motion under Rule 59(e) as a motion to alter or amend the judgment or under Rule 60(b) as a motion for relief from a judgment or order). Application of Rules 59(e) and 60(b) requires entry of a final judgment, however, and the Court has yet to issue a final judgment in this case. [*5]
A court can revisit an interlocutory order, including an order on partial summary judgment, pursuant to Rule 54(b). See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”). Indeed, the Court “possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).
“Although the precise standard for evaluating a motion to reconsider under Rule 54(b) is unclear, whether to grant such a motion rests within the discretion of the court.” Dos Santos v. Bell Helicopter Textron, Inc. Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009). The standard would appear to be less exacting than that used in evaluating motions under Rule 59(e) or Rule 60(b). See James v. Sadler, 909 F.2d 834, 836 (5th Cir.1990) (“The policy interests underlying Rules 59 and 60, securing the finality of judgments, were not implicated in this case because the action was still proceeding against other defendants in the district court.”). Still, the standards under Rule 59 and Rule 60 will inform the Court’s analysis. Vladmir Ltd. v. Pac. Parts Supply Co., No. CIV.A.SA-08-CV-819XR, 2009 U.S. Dist. LEXIS 108468, 2009 WL 4110288, at *2 (W.D. Tex. Nov. 20, 2009). In particular, the Court considers whether the [*6] movant is simply pursuing its old arguments or improperly raising new arguments that should have been made earlier without any justification. Id.; Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (a Rule 59(e) motion “cannot be used to raise arguments which could, and should, have been made before the judgment issues”); Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008) (Rule 59(e) cannot be used to “relitigate old matters” that have already been resolved).
ARGUMENT
Gross negligence consists of both objective and subjective elements. Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 654 (S.D. Tex. 2016) (citing U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012)). To meet this burden, a plaintiff must prove by clear and convincing evidence that (1) when viewed objectively from a defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) a defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Id.
A corporation may not be held liable for punitive damages for gross negligence unless the corporation itself (1) commits gross negligence, (2) authorized or ratified an agent’s gross negligence, (3) was grossly negligent in hiring an unfit agent, or (4) committed gross negligence through the actions [*7] or inactions of a vice-principal. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921-22 (Tex. 1998).
Here, Plaintiff asserts that Defendant Company “authorized or ratified” Defendant Driver’s gross negligence. Plaintiff devotes much of his briefing to arguing that, from an objective standpoint, Defendant Driver’s “conduct of continuously driving her 18-wheeler over the legal hours of service requirements, up through the date of the crash, amounted to an extreme degree of risk considering the probability of magnitude of harm to others.” ECF No. 122 at 18. Plaintiff also points to Defendant Driver’s deposition testimony to establish that she was subjectively aware that driving while fatigued increases the chances of a motor vehicle accident. Id. at 19. Finally, Plaintiff asserts that Defendant Company committed gross negligence by approving, authorizing, and ratifying Defendant Driver’s alleged gross negligence by failing to stop her from driving over the hours-of-service requirement.
The Court finds Plaintiff’s argument unpersuasive. The Fifth Circuit has held that “before one can ratify an act so that it becomes his own, he must know of the act with which he is charged.” Prunty v. Arkansas Freightways, 16 F.3d 649, 655 (5th Cir. 1994). Ratification also requires “a ‘prior act’ by an employee that the employer [*8] validated through some act, word, or conduct. And the employer’s validation must then be the proximate cause for the plaintiff’s injury.” De Leon v. Trahan, 4:21-CV-00086-DC, 2024 U.S. Dist. LEXIS 60822, at *9 (W.D. Tex. Apr. 1, 2024). In the instant case, Plaintiff fails to identify any evidence in the record indicating that Defendant Company had any knowledge of Defendant Driver’s alleged hours-of-service violations.
Instead, Plaintiff notes that Defendant Driver’s inaccurate log books “were open and obvious to anyone who took the time to inspect them. Motor carriers often have departments in place to audit their driver’s logs to ensure they are in compliance.” ECF No. 122 at 17. Plaintiff’s expert witness also testified that Defendant Company had a legal obligation to ensure that its drivers stayed within the federal hours-of-service requirements. ECF No. 122 at 17. Defendant Company owner Brian Sieczkowski acknowledged that he understood that his company needed to certify that it understood such FMCSR requirements. ECF No. 122-10 at 5. Despite this legal obligation, Plaintiff alleges that the log books demonstrate that Defendant Driver drove a total of 31,157 miles while logged off duty from her Electronic Logging Device (“ELD”) between September 20, 2020 — March 20, 2021. [*9] Plaintiff appears to argue that in failing to prevent such alleged violations, Defendant Company actually ratified Defendant Driver’s gross negligence. ECF No. 122 at 2.
However, according to Defendants’ expert witness, the ELD system could not be “unplugged” to allow Plaintiff to drive while logged off duty without generating error messages, which are not present in this logging data. ECF No. 128 at 13. The expert also testified that evidence suggests a second driver was driving the vehicle when Defendant Driver was logged out of the ELD, accounting for why Defendant Driver logs out in one location and then logs back in hundreds of miles closer to his destination. Id. Defendants contend that Plaintiff’s interpretation of the log books would result in Defendant Driver driving 20 hours per day for long periods. Id.
Most importantly, Defendants’ expert testified that the data logging system used by Defendant Company itself would have triggered a warning if there had been a violation of service rules. ECF No. 128 at 13-14. Because the system itself monitors drivers, without the need for a manual audit, and this system never provided a warning, Defendants allege that Defendant Company had [*10] no reason to further investigate Defendant Driver’s alleged hours-of-service violations. ECF No. 128 at 14.
In essence, Plaintiff asks the Court to find that a material fact dispute exists regarding alleged inadequate auditing of Defendant Driver’s log books, allowing the jury to hear their allegations of Defendant Company’s gross negligence. However, Plaintiff points the Court to no authority indicating that such a factual dispute over the sufficiency of monitoring drivers, standing alone, can support a ratification or authorization theory of gross negligence. Indeed, several of our decisions suggest that failure to take certain actions does not constitute “some act, word, or conduct” to authorize or ratify the agent’s gross negligence. See Fernandez v. Transp. Designs, Inc., No. 16-CV-22, 2017 U.S. Dist. LEXIS 71609, 2017 WL 1294556, at *3 (W.D. Tex. Feb. 28, 2017) (granting summary judgment for employer because plaintiffs presented no evidence of ratification, even though they argued employer lacked a written policy concerning proper look out and safe distances, failed to provide training on a consistent basis, failed to fully investigate the accident or determine it was preventable, failed to require driver to submit to a post-collision drug and alcohol screen, and chose not to reprimand driver); Kuss v. Willie Ulmer & Paschall Truck Lines, Inc., No. SA-19-cv-629-JKP, 2021 U.S. Dist. LEXIS 74823, 2021 WL 1433062, at *4 (W.D. Tex. Mar. 17, 2021) (granting [*11] employer summary judgment and finding no authorization of driver gross negligence where company failed to provide adequate training or a clear policy manual); see also Hanan v. Crete Carrier Corp., NO. 3:19-CV-0149-B, 2020 U.S. Dist. LEXIS 671, 2020 WL 42269, at *7 (N.D. Tex. Jan. 3, 2020) (granting summary judgment where no evidence that employer authorized grossly negligent conduct because “[s]uch approval is an essential element of a ratification claim”).
Finally, Plaintiff argues that Rayner v. Dillon, 501 S.W.3d 143 (Tex. App. — Texarkana, 2016) supports the proposition that Defendant Driver’s history of logbook violations created evidence to support a gross negligence finding against Defendant Company. There, the court concluded that evidence of the defendant driver’s numerous log violations was sufficient to establish that the defendant company “was aware of the extreme risk of serious injury [the driver defendant’s] fatigued driving posed to others on the road, yet continued to not only permit, but to tacitly encourage, [the driver] to drive in such a state.” Id. at 156.
The Court agrees with Defendants that Rayner differs in several material respects from the case at hand. First, the plaintiff in Rayner did not assert an “authorized or ratified” theory of gross negligence. Second, the owner of defendant company in Rayner testified i) that he knew the driver defendant had a long history [*12] of hours-of-service violations and he was aware of those violations well before the relevant accident; and ii) he specifically decided to ignore company policy mandating termination after the defendant driver’s fourth logbook violation because “[i]t’s my call. It’s my company. I can kind of do what I want.” Id. at 154. Third, the jury heard testimony that an audit prior to the accident revealed that the defendant company was found to be “fixing books and falsifying records,” but, despite learning the driver defendant was the “second-worst perpetrator” of log book violations on staff and had been involved in multiple earlier accidents, took no steps to discipline him before the accident. Id.
None of these facts exist in the case now before the Court. Ultimately, Plaintiff cannot explain how this Court can find gross negligence despite no evidence that Defendant Company knew of any alleged hours-of-service violations. See e.g., Sheppard v. R&S Transp., LLC, No. 5:16-CV-141-RWS-CMC, 2018 U.S. Dist. LEXIS 83998, 2018 WL 2292818, at *14 (E.D. Tex. Apr. 2, 2018) (finding no gross negligence against trucking company where there “is no evidence demonstrating [defendant employer] was aware of any issues with [driver’s] driving abilities”).
For these reasons, the Court DENIES Plaintiff’s request to reconsider its summary judgment ruling [*13] with respect to Defendant Company’s alleged gross negligence.2
Plaintiff’s Motion to Exclude Expert Testimony of Rodney Ellis (ECF No. 123)
Plaintiff also seeks to exclude the testimony of Rodney Ellis, Defendants’ expert witness (ECF No. 123).
The Supreme Court’s decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) provides the analytical framework for determining the admissibility of expert testimony. Daubert requires the district courts to act as “gatekeepers” to ensure expert testimony meets the standards of Rule 702. Id. at 589. First, a district court “must be assured that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.'” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (citing Fed. R. Evid. 702). However, “Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue,” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009), and the “overarching concern is whether or not it is relevant and reliable.” Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007). Thus, once the court determines an expert is qualified, it must ensure “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597.
The trial court has broad latitude in making such admissibility determinations. Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Rejection of expert testimony is the exception rather than the rule. Johnson v. Samsung Electronics Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011). The Fifth Circuit has cautioned, [*14] “the court’s role under Rule 702 is not to weigh the expert testimony to the point of supplanting the jury’s fact-finding role—the court’s role is limited to ensuring that the evidence in dispute is at least sufficiently reliable and relevant to the issue so that it is appropriate for the jury’s consideration.” Id. at 294.
Plaintiff does not appear to challenge Mr. Ellis’s qualifications to testify. Defendants designated Mr. Ellis as a commercial vehicle safety and safety regulation compliance expert. ECF No. 128 at 8. Defendants stated that Mr. Ellis may testify regarding “commercial vehicle safety, hiring, training, supervision, risk management, loss prevention, regulatory compliance, operations, driver qualifications, driver safety procedures, hours of service regulations, and driving techniques.” Id. As detailed more fully in Mr. Ellis’s report, Mr. Ellis has been involved in the trucking industry as a licensed commercial truck driver and safety consultant since 1991, performed “dozens of audits of commercial motor carriers/shippers,” and received professional training by several transportation associations. ECF No. 128-2 at 2-3. Based on his education and professional history, the Court finds that [*15] Mr. Ellis is qualified as an expert. Fed. R. Evid. 704.
Rather, Plaintiff disputes Mr. Ellis’s conclusion that while Defendant Driver “was in off duty status[,] the global positioning data in the driver log records indicate that she had a co-driver who drove the tractor-trailer while she was off-duty.” ECF No. 123 at 10. Plaintiff asserts that in reaching this conclusion, Mr. Ellis ignored key evidence including i) the driver logs do not indicate a co-driver; ii) Defendant Driver provided conflicting deposition testimony regarding the presence of a co-driver; and iii) the police report does not indicate the presence of such a co-driver.
Defendants counter that Mr. Ellis relied on several parties’ depositions (including Defendant Driver), driver logs, global positioning data contained within the driver logs, and an “Interview with [Driver Defendant] Mariel Arias-Padilla.” ECF No. 128-2 at 4. Defendants allege that their expert witness thus relied on the same data as Plaintiff’s identified expert witness. ECF No. 128 at 12. Based on this information, Mr. Ellis testified he concluded there was evidence of a second driver because there was no unidentified driver movement of the vehicle in the logs, supporting [*16] that another driver with identifying credentials was logged into the system; that the logs contained no error messages consistent with Defendant Driver logged out but no other driver logged in; and that the data shows another driver logged into the database, though it does not specify which driver. Id. at 13.
Plaintiff does not identify any methodological flaws with Mr. Ellis’s work. Rather, Plaintiff points to extrinsic evidence—such as conflicting testimony from Defendant Driver or the police report—to undercut Mr. Ellis’s interpretation of the driver logs. But an opposing party’s “doubts about the bases” of an expert opinion do not render an expert opinion “unsupported,” and such questions affect “the weight to be assigned to that opinion rather than admissibility.” Holcombe v. United States, 516 F. Supp. 3d 660, 675 (W.D. Tex. 2021). Further, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. The Court finds Mr. Ellis’s opinion reliable, and, given the evidentiary importance of the driver logs in determining whether Defendant Driver was fatigued at the time of the accident, will assist the jury. Puga v. RCX Sols., Inc., 922 F.3d 285, 293 (5th Cir. 2019) (“Assisting [*17] the trier of fact means the trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument,” but “the helpfulness threshold is low: it is principally…a matter of relevance.”)
Accordingly, Plaintiff’s motion to exclude the expert testimony of Rodney Ellis is DENIED.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Opposed Motion to Reconsider Granting Summary Judgment on Claims of Gross Negligence Pled against Defendant B&S Trucking (ECF No. 122), and Plaintiff’s Opposed Motion to Exclude Defense Expert Rodney Ellis (ECF No. 123).
On December 22, 2023, the Court stayed all deadlines, including trial, in this matter pending its ruling on Plaintiff’s motion for reconsideration. Having now ruled on this motion, the Court will issue an amended scheduling order.
SIGNED this 28th day of May, 2024.
End of Document
1 During the hearing held on April 27, 2023, B&S stipulated that the driver was its employee, and that JJ&C was not Arias-Padilla’s employer at the time of the accident.
2 Plaintiff also points to evidence indicating that Defendant Company failed to reprimand Defendant Driver after the accident. However, under a ratification theory of gross negligence, “as various Texas courts have explained, post-accident conduct is irrelevant to gross negligence claims.” De Leon v. Trahan, 2024 U.S. Dist. LEXIS 60822, at *10.
