2020 WL 6588958

United States District Court, W.D. Missouri, Southern Division.
PETER MONROE, Plaintiff,
v.
FREIGHT ALL KINDS INC., et al., Defendants.
Case No. 18-cv-03238-SRB
|
Filed 11/10/2020

ORDER
STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE
*1 Before the Court is Defendant Freight All Kinds, Inc.’s (“Freight All Kinds”) Motion for Summary Judgment. (Doc. #163.) For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

I. FACTUAL BACKGROUND
For the purpose of resolving the pending motion, the following facts are uncontroverted or deemed uncontroverted by the Court.1 Additional facts relevant to the parties’ arguments are set forth in Section III. Defendant Herkon Productions, LLC (“Herkon”) produces a traveling show known as Rudolph the Red Nosed Reindeer: The Musical (the “Musical”). Herkon requires trucking services in order to move stage equipment and sets from city to city.

Defendant American Productions d/b/a Janco Limited (“Janco”) is a professional trucking company and interstate motor carrier that specializes in transporting equipment and sets for theatrical and musical tours. Janco provided—and Herkon accepted—a quote for picking up, transporting, and delivering stage equipment and sets for the Musical’s 2017 tour. In order to transport all of the equipment, Janco needed two separate drivers to operate two separate tractor-trailers.

For the first tractor-trailer, Janco supplied its own driver, tractor, and trailer. For the second tractor-trailer, Janco supplied the trailer but needed to find a driver and tractor. Janco and Defendant FAK Logistics, Inc. (“FAK”) entered into a broker agreement in which FAK agreed to supply the second tractor and driver. (Doc. #172-8.) FAK obtained the second tractor, and the second driver, Defendant Michael Johnson (“Johnson”), by contracting with Defendant Trans Pacific Transportation, Inc. (“Trans Pacific”).2 Although Trans Pacific directly paid Johnson, his compensation was based on a percentage of what FAK paid to Trans Pacific.

Freight All Kinds and FAK are physically located in the same headquarters in Colorado. Freight All Kinds and FAK are both Subchapter S corporations. Both corporations are owned by Sam and Bobbye Marcove. FAK does not have any employees. Instead, all individuals are employed by Freight All Kinds. During the times relevant to this lawsuit, Johnson was driving under FAK’s Department of Transportation (“DOT”) authority and under the dispatch of Freight All Kinds and/or FAK.

The first tractor-trailer for the tour was operated by Janco employee Lee Radford (“Radford”). Radford was the designated “lead driver.” Johnson operated the second tractor-trailer. During the times relevant to this lawsuit, Johnson testified that he did not use GPS to get to his destinations. Instead, he “just followed” Radford. (Doc. #173-6, p. 17.) On December 2, 2017, Radford and Johnson made their way through Springfield, Missouri, to deliver equipment for the Musical.

*2 Meanwhile, Plaintiff Peter Monroe (“Monroe”) was on a bicycle at an intersection. As Johnson made a right-hand turn from Walnut Street onto Hammons Parkway, his back wheels struck Monroe and drug him several yards. Monroe allegedly suffered severe injuries as a result of the accident.

On August 3, 2018, Monroe filed this suit against Defendants. Monroe’s Third Amended Complaint asserts the following claims against Freight All Kinds: negligence (Count II), negligent hiring/retention (Count III), negligent training (Count IV), negligent supervision (Count V), negligent entrustment (Count VI), and negligence per se (Count VII). Freight All Kinds now moves for summary judgment on each count. Freight All Kinds argues in part that it is not vicariously liable for the alleged acts and omissions of Johnson, and that there is no evidence that it owed or breached a duty to Monroe. Monroe opposes summary judgment, and the parties’ arguments are addressed below.

II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden of identifying “the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quotations and alterations omitted). Once the moving party makes this showing, “the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial.” Id. (quotations omitted). If there is a genuine dispute as to the facts, those facts must “be viewed in the light most favorable to the nonmoving party.” Id. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. (quotations omitted).

III. DISCUSSION

A. Freight All Kinds is Not Entitled to Summary Judgment on the Basis that Vicarious Liability is Lacking.
Freight All Kinds first argues that it is not vicariously liable for Johnson’s acts and omissions. Under Missouri law, an employer or principal “is liable under the theory of respondeat superior for damages attributable to the misconduct of an employee or agent acting within the course and scope of the employment or agency.” McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc 1995).3 “In order to establish a principal/agent relationship, the principal must have a ‘right to control’ the agent.” Blunkall v. Heavy & Specialized Haulers, Inc., 398 S.W.3d 534, 541 (Mo. App. S.D. 2013). A “principal does not need to control or direct every movement, rather only those necessary to accomplish the final result.” Id. Additionally, a written agency contract is not required; an “agency relationship may be created by words and conduct.” Id. “An agency relationship may … exist even if the parties did not intend the relationship.” Id.

In contrast, respondeat superior does not attach if an individual is merely an independent contractor. “An independent contractor is one who contracts with another to do something for him but is neither controlled by the other nor subject to the other’s control with respect to his physical conduct in the performance of the undertaking.” Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 566 (Mo. App. E.D. 2002) (citations, quotations, and alterations omitted). “If there is no right to control, there is no liability; those rendering services but retaining control over their own movements are not servants.” Lee v. Pulitzer Pub. Co., 81 S.W.3d 625, 631 (Mo. App. E.D. 2002).4

*3 “Whether a party is liable under the doctrine of respondeat superior depends on the facts and circumstances in evidence in each particular case and no single test is conclusive of the issue of the party’s interest in the activity and the right to control.” Id. In general, “the relationship of principal-agent or employer-employee is a question of fact to be determined by the jury when, from the evidence adduced on the question, there may be a fair difference of opinion as to the existence of the relationship.” Johnson v. Bi-State Develop. Agency, 793 S.W.2d 864, 867 (Mo. banc 1990).

As stated in a companion Order, FAK admits it is vicariously liable for Johnson’s acts and omissions. Freight All Kinds argues there is insufficient evidence to hold it vicariously liable. Freight All Kinds argues that Johnson drove for its “sister company FAK,” and that it “did not contract with Mr. Johnson or control or have the right to control Mr. Johnson.” (Doc. #164, p. 6.) In response, Monroe argues there is evidence showing that Freight All Kinds and FAK are alter egos of each other. Monroe argues that “counsel for Defendant is attempting to play a ‘shell game’ as to the corporate structure of ‘Freight All Kinds.’ ” (Doc. #170, p. 11.) As set forth below, the Court finds that Freight All Kinds is not entitled to summary judgment on the issue of vicarious liability.

“As a general rule, two separate corporations are regarded as distinct legal entities, even if the stock of one is owned partly or wholly by the other.” Weitz Co. v. MH Washington, 631 F.3d 510, 520 (8th Cir. 2011) (applying Missouri law). “However, where one corporation so dominates and controls another that it becomes a mere ‘alter ego’ of the first and the formal corporate separateness is used to accomplish a fraud, injustice, or some unlawful purpose, then the separate formal corporate structures are ignored.” Id. In addition, a separate theory of liability may attach based on a principal-agent relationship between two corporations. Id. at 522. To establish such a relationship, “there must be such domination and control that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal.” Id. (citations and quotations omitted).

Neither party adequately explains these legal doctrines or how they apply to the facts in this case. Freight All Kinds’s reply brief argues that Monroe must—but fails—to show that “Freight All Kinds and FAK are separate corporations for the purpose to commit fraud or wrong or that their separate status proximately caused Plaintiff’s injuries.” (Doc. #184, p. 5.)

Although this is a close call, the Court finds that Monroe has presented enough evidence to avoid summary judgment. As set forth above, Freight All Kinds and FAK have the same owners. All employees are employed by Freight All Kinds. FAK has no employees. Freight All Kinds and FAK are both physically located in the same headquarters in Colorado. Finally, the corporate representative for Freight All Kinds and FAK agreed that Johnson was driving under the dispatch and for the benefit of Freight All Kinds “and/or” FAK. (Doc. #170-1, p. 19.) Under these circumstances, the Court denies Freight All Kinds’s request for summary judgment on the issue of vicarious liability.

B. Summary Judgment is Not Warranted on Monroe’s Claims for Negligent Hiring/Training/Supervision/Entrustment.
Freight All Kinds argues that summary judgment is warranted on Monroe’s claims for negligent hiring, training, supervision, and entrustment. Freight All Kinds argues the record shows that it did not owe or breach any duty to Monroe, and that any such breach did not cause Monroe’s injuries. The arguments presented by Freight All Kinds are similar to those presented in FAK’s motion for summary judgment. In a companion Order, the Court denied FAK’s request for summary judgment on these issues.

*4 Based on the facts set forth above, the Court finds that Freight All Kinds and FAK are similarly situated with respect to the issues raised in this lawsuit. Consequently, the Court finds that Freight All Kinds is not entitled to summary judgment on Monroe’s negligence claims for the same reasons as those stated in the Order denying FAK’s motion for summary judgment.

C. Freight All Kinds is Entitled to Summary Judgment on Monroe’s Negligence Per Se Claim.
In Count VII, Monroe asserts a negligence per se claim against Freight All Kinds. A negligence per se claim contains four elements: “1) the defendant violated a statute or regulation; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute or regulation; (3) the injury complained of was of the kind the statute or regulation was designed to prevent; and (4) the violation of the statute or regulation was the proximate cause of the injury.” Dibrill v. Normandy Assoc., Inc., 383 S.W.3d 77, 84-85 (Mo. App. E.D 2012). “Negligence per se is in effect a presumption that one who has violated a safety statute has violated his legal duty to use due care.” Goudeaux v. Bd. of Police Com’rs of Kansas City, 409 S.W.3d 508, 513 (Mo. App. W.D. 2013).

Monroe’s Third Amended Complaint alleges that Freight All Kinds violated Mo. Rev. Stat. § 304.012.1. This statute provides that: “[e]very person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care.” Mo. Rev. Stat. § 304.012.1.

Freight All Kinds argues that Mo. Rev. Stat. § 304.012.1 does not prohibit specific conduct as required to prevail on a negligence per se claim. In support, Freight All Kinds relies upon Cisco v. Mullikin, No. 4:11 CV 295 RWS, 2012 WL 549504 (E.D. Mo. Feb. 21, 2012). Cisco dismissed a negligence per se claim under Mo. Rev. Stat. § 304.012.1 because it does not “set[ ] out a statutory standard of care.” Id. at *2.

Monroe’s opposition brief does not explain why summary judgment should not be entered on his negligence per se claim. Indeed, Monroe does not even address this claim. Consequently, based on Cisco and the arguments presented by Freight All Kinds, summary judgment will be entered in favor of Freight All Kinds on Monroe’s negligence per se claim.

IV. CONCLUSION
Accordingly, Defendant Freight All Kinds, Inc.’s Motion for Summary Judgment (Doc. #163) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED insofar as summary judgment is entered in favor of Freight All Kinds and against Monroe on Count VII for negligence per se. The motion is DENIED on all other claims.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 6588958

Footnotes

1
The relevant facts are taken from the parties’ briefs and exhibits, and are simplified to the extent possible.

2
On or about August 7, 2017, Johnson submitted a “Driver’s Owner Operator Application” to FAK. (Doc. #173-2, p. 1.) Johnson’s application stated that he was applying for the position of “Contract Operator for Trans Pacific Transp., Inc.” (Doc. #173-2, p. 1.) All page numbers refer to the pagination automatically generated by CM/ECF.

3
The Court finds that Monroe’s substantive claims arise under Missouri law. Indeed, the parties cite and primarily rely upon Missouri law.

4
Missouri courts consider various factors to determine “whether one acting for another is a servant or independent contractor.” Bargfrede v. Am. Income Life Ins. Co., 21 S.W.3d 157, 162 (Mo. App. W.D. 2000). These factors include:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Id.

2020 WL 6588352

United States District Court, W.D. Missouri, Southern Division.
Peter MONROE, Plaintiff,
v.
FREIGHT ALL KINDS, INC., et al., Defendants.
Case No. 18-cv-03238-SRB
|
Signed 11/10/2020
Attorneys and Law Firms
James E. Godfrey, Jr., Evans & Dixon, St. Louis, MO, for Plaintiff.
Lee M. Baty, Baty Otto Coronado, P.C., Kansas City, MO, Andrew J. Donelan, Baty Otto Coronado PC, Emily Titus, Randy P. Scheer, S. Jacob Sappington, Sanders Warren Russell & Scheer LLP, Springfield, MO, for Defendants.

ORDER
STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE
*1 Before the Court is Defendant Freight All Kinds, Inc., FAK Logistics, Inc. (“FAK”), Michael Johnson (“Johnson”), Trans Pacific Transportation, Inc. (“Trans Pacific”), and American Theatre Productions d/b/a Janco Limited’s (“Janco”) (collectively, “Defendants”) Motion to Exclude Testimoney [sic] of Plaintiff’s Expert Christina Kelly. (Doc. #154.) For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

I. FACTUAL BACKGROUND
The following facts are supported by the record and are taken from the parties’ briefs and exhibits. Additional facts relevant to the parties’ arguments are set forth in Section III. Defendant Herkon Productions, LLC (“Herkon”) produces a traveling show known as Rudolph the Red Nosed Reindeer: The Musical (the “Musical”).1 Herkon requires trucking services in order to move stage equipment and sets from city to city.

Janco is a professional trucking company and interstate motor carrier that specializes in transporting equipment and sets for theatrical and musical tours. Janco provided—and Herkon accepted—a quote for picking up, transporting, and delivering stage equipment and sets for the Musical’s 2017 tour. In order to transport all of the equipment, Janco needed two separate drivers to operate two separate tractor-trailers.

For the first tractor-trailer, Janco supplied its own driver, tractor, and trailer. For the second tractor-trailer, Janco supplied the trailer but needed to find a driver and tractor. Janco and FAK entered into a broker agreement in which FAK agreed to supply the second tractor and driver. (Doc. #172-8.) FAK obtained the second tractor, and the second driver, Johnson, by contracting with Trans Pacific.2 Although Trans Pacific directly paid Johnson, his compensation was based on a percentage of what FAK paid to Trans Pacific.

The first tractor-trailer for the tour was operated by Janco employee Lee Radford (“Radford”). Radford was the designated “lead driver.” Johnson operated the second tractor-trailer. During the times relevant to this lawsuit, Johnson testified that he did not use GPS to get to his destinations. Instead, he “just followed” Radford. (Doc. #173-6, p. 17.) On December 2, 2017, Radford and Johnson made their way through Springfield, Missouri, to deliver equipment for the Musical.

Meanwhile, Plaintiff Peter Monroe (“Monroe”) was on a bicycle at an intersection. As Johnson made a right-hand turn from Walnut Street onto Hammons Parkway, his back wheels struck Monroe and drug him several yards. Monroe allegedly suffered severe injuries as a result of the accident.

*2 On August 3, 2018, Monroe filed this case against Defendants. The Third Amended Complaint (Doc. #111) asserts 25 separate counts against Defendants, including negligence, negligent hiring/retention/training/supervision/entrustment, and negligence per se. Among other relief, Monroe seeks compensatory and punitive damages. This case is set for a jury trial commencing April 21, 2021.

Monroe retained Christina Kelly as an expert in this case. In 1988, Ms. Kelly became employed as a semitruck driver and has been involved in the trucking industry since that time. From 2002 to the present, Ms. Kelly has served as president and CEO of Kelmar Safety, Inc. (“Kelmar Safety”). At Kelmar Safety, Ms. Kelly specializes in safety and compliance issues for the transportation industry. Ms. Kelly has experience with “driver qualifications … compliance, policies and procedures, [and] regulatory practices.” (Doc. #168-4, p. 3.) From 2007 to the present, Ms. Kelly has served as an expert witness consultant on commercial trucking issues.

In this case, Ms. Kelly offers opinions on “commercial trucking issues, commercial truck driver performance, transportation industry business practices, safety programs and compliance with federal and state regulations.” (Doc. #168, p. 2.) Ms. Kelly opines, in part, that “FAK Logistics, Freight All Kinds and Janco do not have an adequate safety program designed to thwart future crashes.” (Doc. #168-2, p. 7.) Ms. Kelly further opines that Trans Pacific did not properly qualify Johnson before allowing him to drive its tractor. Defendants now move to exclude Ms. Kelly’s opinions under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Monroe opposes the motion, and the parties’ arguments are addressed below.

II. LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. See Fed. R. Evid. 702; Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006). Rule 702 provides that a “witness who is qualified as an expert … may testify in the form of an opinion or otherwise if:
(a) the expert’s … 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(a)-(d). Federal Rule of Evidence 703 further provides in part that “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703.

To fulfill its “gatekeeping” role, a court faced with a proffer of expert testimony must determine at the outset whether the evidence “both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. Daubert emphasized that the inquiry required by Rule 702 is intended to be flexible. Id. at 594. “The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001).

Due to the liberalization of expert testimony admission standards signaled by Daubert and its progeny, and the codification of this trend in Rule 702, the Eighth Circuit has held that expert testimony should be liberally admitted. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir. 2014) (“Daubert and Rule 702 thus greatly liberalized what had been the strict … standards for admission of expert scientific testimony.”); Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (“A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.”) (citations and quotations omitted). As long as the expert testimony “rests upon good grounds, based on what is known, it should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset.” Johnson, 754 F.3d at 562 (citations and quotations omitted). The exclusion of expert testimony is proper “only if it is so fundamentally unsupported that it can offer no assistance to the jury[.]” Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (citations and quotations omitted).

III. DISCUSSION
*3 Here, Defendants move to exclude five categories of opinions offered by Ms. Kelly. Each category is addressed below.

A. Opinions Regarding Legal Duties Owed by Defendants.
Defendants move to exclude Ms. Kelly’s opinions regarding the legal duties owed by FAK, Trans Pacific, and Janco. Defendants argue that “the duties owed to the general public by those engaged in motor carrier interstate commerce have been prescribed by the legislative branch and is promulgated through the” Federal Motor Carrier Safety Regulations (“FMCSRs”). (Doc. #155, p. 7 (citing 49 U.S.C. §§ 504, 508, 31131-34, 31136-37, 31144, 31149, 31151, 31502; 49 C.F.R. Parts 300-399).) Defendants contend that Ms. Kelly could not identify any violation of the FMCSRs, but instead opined that Defendants “should have done more.” (Doc. #155, p. 6.) Defendants thus move to exclude Ms. Kelly’s opinions as irrelevant, misleading, and prejudicial.

Monroe responds that regardless of the FMCSRs, Ms. Kelly may opine on industry customs and practices. Specifically, Monroe contends that:
an expert need not cite to statutory or regulatory required conduct. Rather, evidence from an expert witness as to industry custom is relevant in establishing for the jury what is ordinarily prudent conduct for those in a similar position …. Ms. Kelly testified that she has knowledge of the industry’s custom and course [sic] and she can be cross-examined on such.
(Doc. #168, pp. 8-9.) Upon review of the parties’ arguments and applicable case law, the Court agrees with Monroe.

To prevail on a negligence claim, a plaintiff “must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant’s failure proximately caused injury to the plaintiff.” L.A.C. v. Ward Parkway Shopping Ctr., Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002) (citations and quotations omitted). “[E]vidence of industry standards is generally admissible as proof of whether or not a duty of care was breached. However, compliance with an industry’s own safety codes or standards is never a complete defense in a case of negligence.” Pierce v. Platte-Clay Elec. Coop., Inc., 769 S.W.2d 769, 772 (Mo. banc 1989). In addition, “[e]ven when the evidence will not show a uniform general custom … it may be admissible as a generally followed practice tending to show the standard of care exercised by ordinarily prudent persons in performing the task at issue.” Bowan v. Express Med. Transp., Inc., 135 S.W.3d 452, 460 (Mo. App. E.D. 2004).

Applying this case law, the Court finds that Ms. Kelly’s opinions are admissible. Ms. Kelly testified that the FMCSRs set forth the “minimum standards” for motor carriers. (Doc. #155-3, p. 17.) However, Ms. Kelly also opined that based on her knowledge and experience, “safe and prudent carriers go above and beyond that.” (Doc. #155-3, p. 17.) Ms. Kelly further opined that motor carriers (as defined by applicable law) and non-motor carriers “have a responsibility to continuously train, supervise and monitor … drivers to ensure they continue to exhibit the qualities of a safe, professional driver.” (Doc. #168-2, pp. 2-3.)

*4 Ms. Kelly believes that Defendants did not meet these obligations. Among other things, Ms. Kelly opines that Defendants should have subjected Johnson to a road test before allowing him to drive. She states that FMCSR 391.31 allows a company to accept a commercial driver’s license (“CDL”) in “lieu of a road test,” but that “safe and prudent carriers” require a road test. (Doc. #155-3, p. 2; Doc. #168-2, p. 4.) Moreover, at the time of the accident, Johnson weighed approximately 400 pounds. Ms. Kelly believes that “when you see someone of Mr. Johnson’s size and stature, you want to make sure he has the agility in that cab to use his mirrors properly.” (Doc. #155-3, p. 2.)3 Defendants did not confirm Johnson’s agility, whether through a road test or other inspection.4

For these reasons, and for the additional reasons stated by Monroe, the Court finds that Ms. Kelly’s opinions regarding Defendants’ legal duties are admissible. Defendants’ arguments to the contrary are rejected.

B. Opinions Regarding Johnson’s Ability to Perform a “Lean and Look” Maneuver.
Defendants move to exclude Ms. Kelly’s opinion that Johnson’s physical attributes prevented him from performing a “lean and look” maneuver which would have helped avoid the collision. Defendants argue this opinion is not based on scientifically reliable data, that Ms. Kelly is not qualified to give a medical opinion, and that the opinion is based solely on a general, casual observation of Johnson from afar during a vehicle inspection.

In response, Monroe argues that Ms. Kelly’s “lean and look” opinions are admissible. Monroe explains that these opinions are appropriately based upon:
her years of experience as a driver, her knowledge of the specialized maneuver and the agility that it requires of truck drivers or individuals involved in that profession, the safety procedures required of drivers to maintain constant vigilance of the right side of their vehicle, particularly when executing a right turn and, not the least of which, her personal observations of Defendant Michael Johnson both inside and outside of the truck cab … Ms. Kelly was able to conclude that Mr. Johnson most likely did not perform a lean and look maneuver due to the fact that he was not in a position to be able to move freely throughout his cab because of the fact that he was grossly overweight.
(Doc. #168, p. 9.)

On the current record, the Court finds that Ms. Kelly’s opinions on this issue are not admissible. The Court agrees with Defendants that the opinions are based on informal observations and not on scientifically reliable data. In addition, Ms. Kelly is not qualified to offer a medical opinion regarding Johnson’s physical abilities. As a result, the Court grants Defendants’ request to exclude Ms. Kelly’s opinion that Johnson’s physical attributes prevented him from performing a “lean and look” maneuver.

C. Opinions Regarding Johnson’s CDL Status.
Defendants move to exclude Ms. Kelly’s opinions regarding Johnson’s CDL status. Approximately one month before the accident at issue, Johnson was examined by Dr. Gary Hamm, a medical examiner for the United States Department of Transportation (“DOT”). Johnson appeared for the examination to renew his medical certificate so that he could continue driving under his CDL. According to Defendants, Ms. Kelly opined that Johnson misrepresented health conditions to Dr. Hamm and that, if disclosed, those conditions would have prevented Johnson from having his CDL at the time of the accident. Defendants argue that Ms. Kelly’s opinions regarding Johnson’s CDL status are irrelevant, prejudicial, speculative, and that she is not qualified to offer a medical opinion.

*5 In response, Monroe appears to argue that Ms. Kelly will not opine on Johnson’s licensure status or offer a medical opinion. Monroe states that “Ms. Kelly related the undisputed fact that Mr. Johnson appeared before … Dr. Hamm, and concealed and omitted a vast amount of medical history when he underwent his examination by Dr. Hamm.” (Doc. #168, p. 11.) Monroe further states that “the issue that was being addressed and discussed was the medical condition of Mr. Johnson, not his licensure status.” (Doc. #168, p. 11.)

At this time, the Court finds that Ms. Kelly’s opinions on this issue are inadmissible. Ms. Kelly’s opinion on CDL status is not relevant to the claims asserted by Monroe. See Faust v. East Prairie Milling Co., 20 S.W.2d 918, 918 (Mo. App. S.D. 1929) (recognizing that “the charge that such chauffeur had no license was wholly irrelevant, since it had no causal connection with the accident”). Consequently, the Court grants Defendants’ request to exclude Ms. Kelly’s opinion on Johnson’s CDL status.

D. Opinions Regarding Whether Defendants Should Have Administered a Road Test to Johnson.
Defendants state that Ms. Kelly criticized FAK, Trans Pacific, and Janco for not administering a road test to Johnson prior to the accident. Defendants argue that any such opinions are not relevant because the FMCSRs do not require a road test. Defendants also contend that any such opinion is speculative because Ms. Kelly admitted she did not know whether Johnson would have passed or failed a road test.

In response, Monroe states that Ms. Kelly will testify “this was an industry standard failure on the part of Trans Pacific in particular, due to the fact that [Trans Pacific’s corporate representative] [Jerry] Busleta was aware of the heart condition or some physical issues involving Mr. Johnson and FAK who was the designated DOT operator for the purposes of this entire enterprise.” (Doc. #168, p. 12.) Monroe contends that “as to the claims related to negligent hiring, negligent supervision and negligent training, Ms. Kelly’s opinions with respect to what tests were administered to Defendant Johnson to ascertain his qualifications as a driver are relevant[.]” (Doc. #168, p. 12.)

For the reasons discussed above, Ms. Kelly may offer testimony regarding road tests, including Defendants’ failure to administer such a test to Johnson. Defendants’ request to exclude Ms. Kelly’s opinions on these issues is denied.

E. Opinions Regarding Whether Johnson Should Have Seen Monroe.
According to Defendants, Ms. Kelly opined that Johnson should have seen and avoided Monroe. Defendants move to exclude this opinion as duplicative and cumulative of those offered by Monroe’s accident reconstructionist expert, Michael Ditallo. Defendants also argue that Ms. Kelly’s opinions are inadmissible because she is not qualified to offer an opinion on accident reconstruction.

In relevant part, Monroe responds that:
Although she readily admits that she is not an accident reconstructionist, Ms. Kelly was familiar enough with the facts of the scene and the truck that was involved to be able to render some opinions and conclusions as to the facts surrounding the accident. As such, she testified as to the technical and specialized circumstances involved in making a turn of an eighteen wheel tractor trailer. She also testified as to the significance and the positioning of mirrors, particularly the mirrors that reflect the right side of an eighteen wheel tractor trailer.
(Doc. #168, p. 13.)

At this time, the Court agrees with the arguments presented by Monroe. Based on Ms. Kelly’s knowledge, experience, and observations, it appears that she is qualified to opine on whether Johnson should have seen and avoided Monroe. On the current record, these opinions appear to be relevant, are likely to assist the trier of fact, and do not appear to be merely duplicative of those offered by Mr. Ditallo. If warranted, Defendants may reassert their arguments at trial based on the evidence and testimony presented.

IV. CONCLUSION
*6 Accordingly, Defendants’ Motion to Exclude Testimoney [sic] of Plaintiff’s Expert Christina Kelly (Doc. #154) is GRANTED IN PART and DENIED IN PART.

IT IS SO ORDERED.

All Citations
Slip Copy, 2020 WL 6588352

Footnotes

1
Herkon did not join the pending motion and has not separately moved to exclude Ms. Kelly from testifying.

2
On or about August 7, 2017, Johnson submitted a “Driver’s Owner Operator Application” to FAK. (Doc. #173-2, p. 1.) Johnson’s application stated that he was applying for the position of “Contract Operator for Trans Pacific Transp., Inc.” (Doc. #173-2, p. 1.) All page numbers refer to the pagination automatically generated by CM/ECF.

3
Defendants contend these opinions are inadmissible, in part because Ms. Kelly agreed that Johnson might have passed a road test. The Court finds that Defendants’ arguments go to the weight and not the admissibility of Ms. Kelly’s opinions.

4
Relatedly, shortly after striking Monroe, a police officer checked Johnson for signs of impairment. Although there is no indication Johnson was impaired due to drugs or alcohol, he had physical limitations and/or injuries that prevented him from completing a one-leg stand test and a walk and turn test.