Court of Appeals of Michigan.

Thomas R. KALINOWSKI, Plaintiff–Appellant,

v.

Robert Thomas McALESTER, Defendant,

and

J & R Trucking, LLC, Defendant–Appellee.

Docket No. 313481.

Nov. 19, 2013.

Bay Circuit Court; LC No. 10–003260–NI.

Before: MURRAY, P.J., and DONOFRIO and BOONSTRA, JJ.

PER CURIAM.

*1 Plaintiff appeals as of right from the trial court’s November 2, 2012, order dismissing his negligence claim against defendant J & R Trucking LLC. We affirm.

I. FACTS AND PROCEEDINGS

Plaintiff purchased an unassembled carport from Menards. Menards hired defendant to deliver the carport to plaintiff’s residence, which is located along M–13, which is purportedly “a heavily traveled 4–lane highway.” On November 28, 2009, defendant sent its driver, George Sloas, to make the delivery. Sloas arrived at about noon and stopped the tractor-trailer he was driving on the east (northbound) side of the road, across the road from plaintiff’s residence, which was on the west (southbound) side. Sloas then exited the tractor, placed three orange cones behind the trailer, walked up to plaintiff’s residence, and identified himself as having a delivery for plaintiff. Plaintiff and his brother-in-law, Jonathan Forro, were present. All three then headed towards the tractor-trailer, with Sloas approximately ten feet ahead of the others.

Sloas crossed the road, unstrapped the load, lowered the landing gear on the front of the trailer, pulled the fifth wheel pin, and unhooked the airline. FN1 While Sloas was unstrapping the load, plaintiff crossed the road and began to talk to Sloas about unloading the carport materials at a parking lot further down the road. Sloas explained:

FN1. Sloas’s tractor doubled as a fork-lift. Sloas intended to use the tractor/forklift to move the carport materials, which consisted of sheet metal estimated by Sloas to be 16 to 18 feet in length. The sheet metal was placed on 2 x 4s so that they could be lifted by the forks.

I came back out to the truck, grabbed my bar, walked to the other side of the truck, the east side—west side. Passenger side of the truck. I undid the straps. When I walked around the truck he was standing there, the customer, Mr. Kalinowski. I grabbed the straps and threw them over the trailer. I lowered the landing gear down. We were talking then. I was lowering the landing gear down. I pulled the pin. Somewhere between the time I lowered the landing gear and pulled the pin is where there was the discussion about going down to the Ford dealership. I told him it wouldn’t be safe. I also told him, the cars went by us at that time, I told him watch yourself, sometimes people don’t pay attention. He said: “Yeah, I know.” That’s when I walked up and got in the truck.

Sloas observed plaintiff “walking towards the back of the trailer behind the truck,” “standing on the white line” within a foot of the lane of travel, and explained that a collision occurred immediately thereafter:

I got in the truck. I looked in the mirror real quick. I looked in the mirror quick. I [saw plaintiff] walking back this way. I already hit the dump valve to dump the air on the ground. It lets air go out of the truck. So the landing gear goes down to the ground. And I put the truck in gear. I started pulling forward. When I did that I[saw] the cone fly up in the air out of the corner of my eye. I looked back and the car hit and in a matter of seconds it hit me. And I didn’t see [plaintiff].

* * *

The only time I[saw] the car is when the cone flew and I was doing stuff over here in my truck, putting it in gear. I looked back in the mirror. About that time I[saw] the cone fly and within a second later [the car] hit the trailer and spun around and hit the semi. At that time it did another like almost 180 and stopped.

*2 The car was driven by defendant Robert McAlester, who undisputedly had fallen asleep at the wheel. According to Forro, the passenger-side, front of the car struck plaintiff and the rear, driver’s-side corner of trailer at the same time, and plaintiff was facing away from the car, “next to the wheel at the rear corner of the trailer.” One of the tandem wheels on the driver’s side rear corner of the trailer was ripped from the trailer. Forro watched the trailer move during the collision. The trailer tires left skid marks. Forro opined that the “trailer was … in the roadway” when the collision occurred. Forro formed this opinion after the accident occurred based on where the trailer skid marks began. Weldon Greiger, an accident reconstructionist, opined that “the trailer involved in this crash was parked over the fog line into the northbound driving lane of M13.” FN2

FN2. A fog line is the line at the side of the road marking the edge of the drivable portion.

This negligence lawsuit followed. Defendant moved for summary disposition which, after a hearing, the trial court granted. The trial court first stated that there is no duty to aid or protect another absent a “special relationship,” such as between a common carrier and passenger, or parent and child. It then held, in pertinent part:

Under the facts and circumstances of this case, viewed in the light most favorable to Plaintiff, this Court finds that no legal duty existed between J & R Trucking and Plaintiff. Since there was no legal duty, a discussion of whether J & R Trucking was negligent in any way is not appropriate. In addition, the Court finds that Plaintiff was injured due to an intervening and superseding cause; that is, he was struck by a car driven by Defendant Robert T. McAlester after McAlester had fallen asleep at the wheel. There is no genuine issue of material fact that Plaintiff’s injuries were the proximate result of any conduct of J & R Trucking. Therefore, J & R Trucking’s Motion for Summary Disposition is granted.

The trial court entered a final order dismissing the suit on November 2, 2012. This appeal followed.

II. ANALYSIS

Plaintiff challenges the trial court’s order granting defendant’s motion for summary disposition. The trial court granted the motion pursuant to MCR 2.116(C)(10), which tests the factual sufficiency of the complaint. In evaluating the motion, a court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted in the light most favorable to the nonmoving party. Where the evidence fails to establish a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Maiden v. Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). This Court will review de novo a decision on a motion for summary disposition. Jarrad v. Integon Nat’l Ins Co, 472 Mich. 207, 212; 696 NW2d 621 (2005).

“In order to establish a prima facie negligence claim, a plaintiff must prove four elements: (1) duty, (2) breach of the duty, (3) causation, and (4) damages.” Seldon v. Suburban Mobility Auth for Regional Transportation, 297 Mich.App 427, 433; 824 NW2d 318 (2012).

A. DUTY

*3 Defendant asserts that it had no duty to plaintiff because the two do not have a “special relationship.” The trial court appears to have agreed with this argument because in its opinion it set forth the rule that there is no duty to aid or protect another absent a “special relationship” and then “f [ou]nd that no legal duty existed between J & R Trucking and Plaintiff.”

“Whether a duty exists is a question of law for the court to decide.”   Seldon, 297 Mich.App at 433. “[C]ourts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm.” Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 498; 418 NW2d 381 (1988). With respect to nonfeasance, there is no legal duty that obligates a person to aid or protect another. Id. at 498–499. An exception has developed where a “special relationship” exists between the persons. Id. at 499 (noting that because of the “special relationship[,]” “a common carrier may be obligated to protect its passengers, an innkeeper his guests, and an employer his employees”).

Defendant’s allegedly negligent act of stopping the tractor-trailer with the trailer partially protruding into the travel lane rather than in a safer location does not concern nonfeasance. Rather, it concerns active misconduct; i.e., misfeasance. Thus, the “special relationship” requirement that is only applied to a claim of nonfeasance has no relevance in the instant case. See Graves v. Warner Bros, 253 Mich.App 486, 507; 656 NW2d 195 (2002) ( “[P]rinciples regarding the duty to protect another … and the necessity of a special relationship do not apply in cases of misfeasance.”).

“Generally, the duty that arises when a person actively engages in certain conduct may arise from a statute, a contractual relationship, or by operation of the common law[.]” Hill v. Sears, Roebuck and Co, 492 Mich. 651, 660–661; 822 NW2d 190 (2012). Additionally, “[e]very person engaged in the performance of an undertaking has a duty to use due care or to not unreasonably endanger the person or property of others.” Id. at 660.

For two reasons we conclude that defendant had a duty to refrain from stopping the tractor-trailer with the trailer partially protruding into the travel lane. First, there is a duty at common law to use reasonable care so that a stopped vehicle does not constitute a source of danger to others.FN3 Reed v. Ogden & Moffett, 252 Mich. 362, 364–365; 233 NW 345 (1930) (“It was [defendant’s] duty to use reasonable care, that the truck-trailer, so stopped in the highway, did not constitute a source of danger to other users of the highway.”). Second, the factors relevant to the determination of whether a legal duty exists support the duty. See Hill, 492 Mich. at 661, quoting In re Certified Question from the Fourteenth Dist Court of Appeals of Texas, 479 Mich. 498, 505–506; 740 NW2d 206 (2007) (“Factors relevant to the determination whether a legal duty exists include … ‘the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ ”). The parties had a deliverer-deliveree and driver-pedestrian relationship; the possibility of harm from stopping a tractor-trailer with the trailer partially protruding into the travel lane was substantial; the burden of stopping a tractor-trailer so that the trailer is not partially protruding into the travel lane when the shoulder is available was minimal; and the significant risk presented by stopping a tractor-trailer with the trailer partially protruding into the travel lane is self-evident to anyone who has driven or been a passenger in a vehicle.

FN3. This common-law “stopping” duty is merely the duty to use due care or to not unreasonably endanger the person or property of others applied to the specific context of stopping a vehicle on a road.

*4 Accordingly, the trial court erred in holding that “no legal duty existed between” defendant and plaintiff because there was no special relationship. Defendant had a common law duty to stop the tractor-trailer so as not to constitute a source of danger to others.

B. BREACH OF THE DUTY

“The question whether a defendant has breached a duty of care is ordinarily a question of fact for the jury and not appropriate for summary disposition.”   Latham v. Nat’l Car Rental Sys, Inc, 239 Mich.App 330, 340; 608 NW2d 66 (2000). “However, when the moving party can show either that an essential element of the nonmoving party’s case is missing, or that the nonmoving party’s evidence is insufficient to establish an element of its claim, summary disposition is properly granted[.]” Id.

Here, plaintiff presented sufficient evidence to create a genuine issue of material fact that defendant breached its duty to stop the tractor-trailer so as not to constitute a source of danger to others. In particular, plaintiff submitted an affidavit from an accident reconstructionist who opined that “the trailer involved in this crash was parked over the fog line into the northbound driving lane of M13.” Forro also testified that the tractor-trailer was in the roadway. This evidence was sufficient to create a genuine issue of material fact.

III. CAUSATION

However, although plaintiff created an issue of material fact on the duty element and on whether defendant breached that duty, under the undisputed facts, plaintiff cannot establish that the alleged breach of duty proximately caused his injuries.

“Proximate cause is a question of fact for the jury unless reasonable men would not differ as to whether defendant’s alleged breaches of duty were not the cause of plaintiffs’ injuries or were too insignificantly connected to or too remotely affected by defendant’s breaches of duty.” Mills v. White Castle Sys, Inc, 167 Mich.App 202, 209; 421 NW2d 631 (1988). “There may be more than one proximate cause of an injury, and a defendant cannot escape liability for its negligent conduct merely because the negligence of others may also have contributed to the harm caused.” Id. “Proving proximate cause actually entails proof of two separate elements: (1) cause in fact and (2) legal cause, also known as ‘proximate cause.’ “ Helmus v. Michigan Dep’t of Transp, 238 Mich.App 250, 255; 604 NW2d 793 (1999). “ ‘The cause in fact element generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.’ “ Id., quoting Skinner v. Square D Co, 445 Mich. 153, 162–163; 516 NW2d 475 (1994). If there is more than one possible cause to an accident, “one actor’s negligence will not be considered a proximate cause … unless it was a substantial factor in bringing about the injury.” Poe v. City of Detroit, 179 Mich.App 564, 576; 446 NW2d 523 (1989).

*5 Here, there is no need to address whether McAlester’s negligence was an intervening or superseding cause, because plaintiff cannot show that his injuries would not have occurred “but for” defendant’s alleged breach of duty (i.e., stopping the tractor-trailer with the trailer partially protruding into the travel lane). That is, plaintiff’s injury would have occurred even if the tractor-trailer was not partially protruding into the travel lane. McAlester did not swerve to avoid the trailer before hitting plaintiff. His vehicle did not ricochet off the trailer and strike plaintiff. Rather, McAlester struck the trailer and plaintiff at the same time; and the vehicle struck the trailer and plaintiff because McAlester fell asleep behind the wheel, not because the tractor-trailer was stopped with the trailer partially protruding into the travel lane. Plaintiff, therefore, cannot establish the causation-in-fact prong of the proximate cause analysis. Having reached that conclusion, we need not assess the legal causation prong. Accordingly, defendant was entitled to summary disposition because there was no evidence to support a finding that defendant’s alleged breach of duty was a proximate cause of plaintiff’s injuries .FN4 This Court will affirm a trial court’s decision if it reached the right result, even if it does so for the wrong reasons. Wickings v. Arctic Enterprises, Inc, 244 Mich.App 125, 150; 624 NW2d 197 (2000).

FN4. Courts from other states have likewise held that an actor’s negligence in placing the victim in the location where the accident occurred is not a substantial factor of the injury when the actor who hit the plaintiff fell asleep while driving a car. See, e.g., Lear Siegler Inc v. Perez, 819 S.W.2d 470, 471–472 (Tx, 1991); Saviano v. City of New York, 5 AD3d 581, 582; 774 N.Y.S.2d 82 (2004); Tennyson v. Brower, 823 F Supp 421, 423–424 (EDKy, 1993).

Affirmed.

United States District Court,

N.D. Georgia,

Atlanta Division.

Katina A. LEWIS, Individually and as Personal Representative of the Estate of Randall K. Bowman and Jacqueline A. Bowman (deceased), and Jennifer Bowman, Plaintiffs,

v.

NEW PRIME INC. d/b/a Prime, Inc. and Mohamadou Bessirou Siddo Hassan, Defendants.

No. 1:10–cv–1228–WSD.

Nov. 20, 2013.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

*1 This matter is before the Court on Plaintiffs’ Motion to Exclude the Testimony of Defendants’ Purported Expert Donald Roberts [129] (“Motion to Exclude Expert”), Plaintiffs’ Motion in Limine [143], and Defendants’ Motion in Limine [144].

I. BACKGROUND

This case arises from a fatal motor vehicle accident that occurred in August 2009 on Interstate 20 in Greene County, Georgia. Plaintiffs are Katina A. Lewis (“Lewis”) and Jennifer Brown (“Brown”) (collectively, “Plaintiffs”), the surviving adult daughters of Randall K. Bowan and Jacqueline A. Bowman (“the Bowmans”). Both Plaintiffs bring this action in their individual capacities, and Lewis also brings it in her capacity as the Personal Representative of the Estates of the Bowmans. Defendants are Mohamadou Hassan (“Hassan”) and New Prime, Inc. d/b/a Prime, Inc. (“Prime”) (collectively, “Defendants”).

The accident at issue in this case occurred when a van, driven by Randall Bowman and in which Jacqueline Bowman was a passenger, crashed into the rear of a tractor trailer, driven by Hassan for Prime. Plaintiffs allege that Hassan was negligent because he was traveling too slowly, below the interstate’s posted minimum speed. Defendants dispute that Hassan was driving below the speed minimum and assert that Randall Bowman’s negligence contributed to the accident.FN1

FN1. In their Complaint, Plaintiffs asserted against Prime separate claims for punitive damages and for negligent hiring and retention. On January 29, 2013, the Court granted Defendants’ motion for summary judgment on these claims. The only remaining claims in this action are for negligence against Hassan and vicarious liability against Prime.

The trial of this matter is scheduled to begin on January 13, 2014. On June 12, 2013, Plaintiffs filed their Motion to Exclude Expert seeking to exclude certain opinions by Defendants’ accident reconstruction expert Donald Roberts (“Roberts”). The opinions concern the speed of the truck driven by Hassan. On July 21, 2013, and July 22, 2013, the parties filed Motions in Limine seeking to exclude other evidence at trial.FN2 The motions are now before the Court.

FN2. On May 28, 2013, Plaintiffs filed their Motion for Sanctions [127] in which they request that Defendants’ Answer be stricken on the ground that Defendants concealed evidence that, just prior to the collision, Hassan had pulled over to the side of the road of the highway. Defendants dispute that this “side of the road” incident occurred. The Court finds it appropriate to reserve ruling on Plaintiffs’ Motion for Sanctions until after trial.

II. PLAINTIFF’S MOTION TO EXCLUDE EXPERT

A. Legal Standard

The admissibility of expert opinions is governed by Rule 702 of the Federal Rules of Evidence, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. The proponent of expert testimony must establish, by a preponderance of the evidence, the factors set out in Rule 702. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004).

The standard of admissibility under Rule 702 was discussed in the Supreme Court’s seminal decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Daubert,

Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

*2 City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562–63 (11th Cir.1998) (footnote omitted) (citing Fed.R.Evid. 702; Daubert, 509 U.S. at 589). Daubert enumerated several factors which may be used in assessing expert testimony, including (1) whether a theory or technique applied by the expert can be or has been tested, (2) whether the theory has been subjected to peer review and publication, (3) in the case of a particular scientific technique, the Court should consider the known or potential rate of error, (4) and whether the theory or technique has gained general acceptance in the relevant community. 509 U.S. at 593–94. The Supreme Court emphasized that the Rule 702 inquiry is a flexible one. Id. at 594.

Daubert focused on the admissibility of scientific expert testimony. In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court held Daubert ‘s methodology applies equally to experts who are not scientists. The Court held that a trial court may consider one or more of the specific factors mentioned in Daubert in assessing non-scientific expert testimony, but that the trial retains discretion to decide if non-scientific testimony is reliable and relevant to the case. Kumho Tire, 526 U.S. at 141. The Court must

make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field … .[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.

Id. at 152.

B. Analysis

Plaintiffs seek to exclude Roberts’s opinion that Hassan’s truck was traveling at approximately 55 miles per hour at the time of the collision. Roberts’s opinion is based on three separate analyses: (1) the average speed of Hassan’s trip; (2) the change in velocity, or “delta v” data, shown in Bowman’s van’s event data recorder (“EDR”); and (3) a distance and braking analysis. Plaintiffs argue that each of these analyses is flawed.

1. Average Speed of Trip

Roberts’s first method to determine the truck’s speed was to calculate the average speed of Hassan’s trip. Roberts determined, from a GPS system, the distance the truck traveled from its last refueling stop to the accident site, and then divided this distance by the time taken to travel it. Roberts determined that, in the last leg of his trip, Hassan traveled 47.7 miles in either 55 minutes 7 seconds or 52 minutes 13 seconds, depending on how the exact collision time is determined. Roberts thus calculated Hassan’s average speed during the last leg of his trip as either 51.9 or 55.0 miles per hour. (See Roberts’s Report [141–3] at 8, 18.)

*3 In his deposition, Roberts conceded that his average speed calculation does not show Hassan’s speed at any particular point, including at the time of the accident. (See Pls.’ Ex. A [129–1] at 17–19.) Because the speed at the time of the accident is what is important, not the speed at other points, Plaintiffs argue that Roberts’s opinion based on this “average” speed method should be excluded. The Court agrees. “[I]f an expert opinion does not have a ‘valid scientific connection to the pertinent inquiry’ it should be excluded because there is no ‘fit.’ “ Boca Raton Comty. Hosp ., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir.2009) (citing Daubert, 509 U.S. at 591–92; McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir.2004)). The “pertinent inquiry” here is Hassan’s speed at the time of the accident. The “average speed” method does not inform this inquiry. Roberts’s opinion based on the “average speed” is excluded.

2. Speed Estimate Based on EDR “Delta v” Data

Roberts next evaluated data from Bowman’s van’s EDR to calculate Hassan’s speed at the time of the collision. The EDR recorded, as 18.39 miles per hour, the van’s change in velocity (the “delta v”) over a 100–millisecond period during the collision. Roberts subtracted this value from the undisputed 71 mileper-hour pre-collision speed of the van. This arithmetic function resulted in a calculated speed of the truck at the time of the collision of 53 miles per hour.

In his deposition, Roberts explained that, in collisions in which a vehicle crashes into a fixed object, the transfer of energy takes approximately 100 milliseconds. When a vehicle collides into a flexible object, the transfer of energy takes longer. Roberts testified that the collision in this case was most likely a collision with a flexible object because Bowman’s van collided with Hassan’s truck’s flexible under-ride bar. The collision likely took between 100 and 200 milliseconds. Roberts conceded that the EDR recording, showing the “delta v” over only 100 milliseconds, does not show the total change in the van’s velocity. He also stated that the “delta v” of the entire collision cannot be extrapolated from the known data—a “delta v” of 18.39 miles per hour over 100 milliseconds. Roberts’s opinion based on the 100 milliseconds of EDR data does not show the total change in velocity of the van during the collision, which requires an evaluation of the “delta v” over the entire course of the collision. See Boca Raton, 582 F.3d at 1232. Roberts’s testimony about this speed calculation methodology, however, and what it shows about the speed of the truck, even if the collision period was longer than the 100 milliseconds reported by the EDR, provides order of magnitude speed information about the truck’s travel speed, that is sufficiently reliable and would be helpful to the jury. The precision of the calculation and how useful it may be to the jury can be explored on cross-examination.

3. Speed Estimate Based on Distance and Braking Analysis

*4 Roberts next performed a “distance and braking analysis” to determine the pre-collision speed of Hassan’s truck. Under this method, Roberts considered several variables, including the distance from the point of the collision to the truck’s final stopping point, the deceleration rate of the truck, and Hassan’s response time (i.e., the length of time from the point of the collision until Hassan began braking). Applying these variables to a specific and generally accepted formula, Roberts calculated that the truck’s speed was between 44 and 61 miles per hour.

Plaintiffs do not dispute the accuracy of the formula used by Roberts. FN3 Plaintiffs object to the values Roberts used for two of the formula’s variables, the deceleration rate and Hassan’s response time, arguing they are not accurate and are not supported by the record.FN4 Roberts performed his calculations by assuming that the deceleration rate was between 0.2 and 0.3 g’s because 0.2 is a “normal” braking speed and a braking speed over 0.3 would have been, but was not, recorded in the truck’s data recorder. Roberts assumed that Hassan’s response time was between 0.75 and 2 seconds, the average range for alert drivers. Plaintiffs assert that the record does not contain evidence showing either that Hassan’s deceleration rate was greater than 0.2 g’s or that Hassan’s response time was within the “average” range.

FN3. The formula itself was not presented to the Court.

FN4. Plaintiffs do not dispute that the distance from the point of the collision to the truck’s final stopping point was 494 feet.

Plaintiffs’ objections go to the weight of Roberts’s “distance and braking analysis” opinion, not the reliability of the “distance and braking analysis” method. See Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir.2003). In Quiet Technology, the Eleventh Circuit explained that, where a party disputes the data underlying an otherwise valid formula, a Daubert challenge to the expert’s opinion is not appropriate. Id. Instead, “[t]he identification of such flaws in generally reliable scientific evidence is the role of cross-examination.” Id. In this case, Roberts’s opinion based on his “distance and braking analysis” is admissible under Daubert, and the request to exclude it is denied.

III. MOTIONS IN LIMINE

A. Plaintiffs’ Motion in Limine

In their Motion in Limine, Plaintiffs seek to preclude Defendants from introducing twenty-one (21) categories of evidence or references by counsel. Defendants consent to the exclusion of eleven (11) of these categories. They object to the exclusion of the remainder.

1. Consented-to Exclusions

Plaintiffs seek, and Defendants consent to, the exclusion of the following categories of evidence:

• collateral source payments and benefits;

• this action’s effect on higher insurance premiums;

• evidence, including expert opinions, not previously disclosed during discovery;

• settlement negotiations and mediations in this action;

• that Defendants did or did not receive a citation in connection with the accident at issue in this case;

*5 • Plaintiffs’ contingent fee arrangement with their counsel;

• that any Defendant “regrets, apologizes for, or asks forgiveness for” the accident; FN5

FN5. Defendants’ counsel reserves the right to characterize the accident as regrettable.

• the verdict in the Missouri lawsuit brought by Christopher Morse;

• opinions by Defendants’ expert Roberts not contained in his Janauary 26, 2011, expert report;

• Randall Bowman’s driving record; and

• that Plaintiffs filed their Motion in Limine.FN6

FN6. The parties agree that excluded material is required be redacted from exhibits shown to the jury.

Because of the parties’ consent, the Court grants Plaintiffs’ Motion in Limine with respect to these categories of evidence and references.

2. Bowmans’ Health Problems and Bowmans’ Physicians

Plaintiffs seek to exclude evidence of the Bowmans’ health issues and testimony by the Bowmans’ treating physicians on the grounds that the decedents’ medical conditions are not relevant and that the physicians were not disclosed as experts as required by Rule 26(a) (2). Defendants argue the Bowmans’ medical issues are relevant to Plaintiffs’ wrongful death damages and to Randall Bowman’s negligence. They further argue that the Bowmans’ physicians are not expert but fact witnesses.

Under Georgia law, damages for wrongful death include “the full value of the life of the decedent.” See O.C.G.A. § 51–4–2(a). A decedent’s medical conditions, affecting this “value,” are relevant to calculating wrongful death damages. See Alvista Healthcare Ctr., Inc. v. Miller, 673 S.E.2d 637, 640–41 (Ga.Ct.App.2009). Testimony of the Bowmans’ physicians regarding medical conditions affecting the value of the Bowmans’ lives is relevant, and the motion in limine to exclude it is denied.

Defendants claim the physicians will testify that Randall Bowman’s medical conditions contributed to the accident by having “caused [Bowman’s] failure to take evasive action and to avoid the rear of Defendants’ vehicle.” Testimony by any physician to the effect that Bowman’s medical condition contributed to the accident is an expert causation opinion. See Vaughn v. United States, 542 F.Supp.2d 1331, 1336 n. 3 (S.D.Ga.2008) (explaining that “when a treating physician goes beyond the observations and opinions obtained by treating the individual and expresses opinions acquired or developed in anticipation for trial, the treating physician” is an expert and may be required to furnish an expert report under Rule 26(a)(2)(B)). Defendants concede that the Bowmans’ physicians were not disclosed as experts,FN7 and, at least as a result of this failure to disclose, this causation testimony is required to be excluded. See Fed.R.Civ.P. 37(c) (1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”).FN8

FN7. Defendants assert that they plan to take the physicians’ depositions and then determine whether to designate the physicians as experts. Under the scheduling order governing this case, expert reports were required to be completed and filed by January 20, 2012, and expert depositions were required to be completed by February 17, 2012. Disclosure of an expert after January 20, 2012, is untimely.

FN8. If Defendants present evidence of the Bowmans’ medical conditions, the Court will give the jury a limiting instruction that the evidence is to be considered only for the purpose of valuing the decedents’ lives.

3. Reference to Plaintiffs’ Failure to Call Witnesses

Plaintiffs seek generally to preclude Defendants from referring “to the failure of Plaintiffs to call any specific witness.” Plaintiffs do not cite, and the Court is not aware of, any authority prohibiting a reference of this nature, and this request to exclude is denied.

4. Reference to “Overly Litigious” Society

*6 Plaintiffs seek generally to preclude Defendants from commenting to the jury that society is “overly litigious” or referring to lawsuits as “a sign of the times.” The Court defers to trial its consideration of any objections that Plaintiffs may assert to comments Plaintiffs believe are improper.

5. Reference to Plaintiffs’ Use of Damages Award or that Award Will Not Undo Damage

Plaintiffs seek to preclude Defendants from commenting on what Plaintiffs may do with a damage award and on commenting that a monetary award will not “undo” the deaths of the Bowmans. Defendants agree not to comment on what Plaintiffs may do with an award, and Plaintiffs’ request to exclude these comments is denied as moot. Defendants argue there is no authority holding it improper to comment generally that money will not bring a plaintiff “back.” While this kind of argument is doubtfully effective or artful, the Court denies the motion to exclude it.

6. Opinions of Law Enforcement Investigators

Plaintiffs seek generally to preclude law enforcement investigators from offering “opinions regarding negligence and causation of the wreck.” Defendants respond only that “to the extent proper foundation has been made for the testimony of these individuals, they should be permitted to testify.” Plaintiffs do not identify the specific testimony they expect Defendants to introduce. This category of evidence is too vague to allow the Court to make a pre-trial ruling, and Plaintiffs should assert, at trial, their objections to any opinions offered by investigators. The motion to exclude investigation opinions is denied.

7. Settlement of Claims by Third–Parties

Plaintiffs seek to exclude Defendants from introducing evidence that Randall Bowman’s employer settled claims with passengers in Bowman’s van. Defendants argue that these settlements are relevant because Defendants have a “right of contribution” from Bowman’s employer. Defendants have not asserted a contribution claim in this action, and Plaintiffs’ request to exclude evidence of third-party settlements is granted.

8. Spoliation Instruction

Plaintiffs seek various sanctions against Defendants, including a spoliation instruction, because, Plaintiffs claim, Defendants authorized Hassan’s truck to be moved from the accident site, which, Plaintiffs further claim, caused the destruction of “black box” data showing the truck’s speed when the collision occurred. In the Proposed Consolidated Pre–Trial Order [130], Plaintiffs stated that they would file a motion for sanctions on this issue, and in the absence of one, the spoliation issue is not properly before the Court.

9. Defendants’ Rebuttal to “Side of the Road” Incident

During the trial of a related case in Missouri, Edward Trotter, a passenger in the truck driven by Hassan when the accident occurred, testified that just prior to the accident Hassan had pulled over to the side of the road. Trotter’s testimony was inconsistent with his previous deposition testimony in this case. Plaintiffs seek to preclude Defendants from introducing evidence regarding this alleged “side of the road” incident. Defendants state that they do not intend to present evidence of the “side of the road” incident, and the Court thus denies this request as moot.

10. Opinions of Defendants’ Expert Roberts

*7 Plaintiffs seek to exclude the testimony of Defendants’ expert Roberts for the reasons stated in their Motion to Exclude Expert. The Court previously ruled on the scope of Roberts’s testimony. See Section II above.

11. Defendants’ Expert Roberts’s Video Reenactment

Plaintiffs seek to exclude a video reenactment of the accident created by Roberts on the ground that the video does not account for the alleged “side of the road” incident. Based on Hassan’s testimony of the events surrounding the accident and Trotter’s deposition testimony, Defendants dispute that the “side of the road” incident occurred. They contend that Roberts’s video reenactment accurately portrays their version of the events surrounding the accident.

To be admissible, an expert’s reenactment of an accident generally must be “conducted under substantially similar conditions” as the accident itself. See Burchfield v. CSX Transp ., Inc., 636 F.3d 1330, 1336 (11th Cir.2011) (quoting Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir.1977)). When specific conditions are disputed, however, courts have held that the reenactment is admissible but that an instruction to the jury, that the reenactment depicts only one party’s version of events, is appropriate. See Hinkle v. City of Clarksburg, 81 F.3d 416, 425 (4th Cir.1996). Plaintiffs’ only objection to Roberts’s video is that it does not include the disputed “side of the road” incident. The Court finds that the video is admissible but that a limiting instruction should be given. The limiting instruction is: The video is a reenactment based on Defendants’ version of events. The parties dispute whether Hassan did or did not stop at the side of the road to return to the road just before the accident. You are the sole determiners of the facts in this case and how you find the facts may impact the viability or usefulness of the video.

B. Defendants’ Motion in Limine

In their Motion in Limine, Defendants seek to preclude Plaintiffs from introducing three (3) categories of evidence: (i) Hassan’s driving record; (ii) opinions by Plaintiffs’ experts not contained in the experts’ reports; and (iii) references to the existence of destroyed “black box” data.

1. Hassan’s Driving Record

Defendants seek to exclude evidence of Hassan’s driving record because the Court previously dismissed Plaintiffs’ claims for negligent hiring and retention of Hassan. Plaintiffs argue that Hassan’s driving record is relevant to show that Defendants violated federal regulations in hiring Hassan. The only claim to be tried in this matter is whether Hassan was negligent in causing the accident at issue. Defendants’ hiring and retention of Hassan is not relevant to this claim. See, e.g., Xpress Cargo Sys., Inc. v. McMath, 481 S.E.2d 885, 886 (Ga.Ct.App.1997) (explaining that the violation of a driving regulation is “inadmissible unless a causal connection exists between the accident and” the violation). Defendants’ motion to exclude evidence of Hassan’s driving record is granted.

2. Expert Opinions Not Contained in Expert Reports

*8 Defendants seek to exclude opinions by Plaintiffs’ experts that were not disclosed in the experts’ respective reports. Plaintiffs argue generally that their experts should be able to testify regarding the alleged “side of the road” incident, which they did not discover until after the expert disclosure deadline in this matter. Plaintiffs have not identified any specific “side of the road” opinions they may seek to introduce, and they have not sought leave to supplement their experts’ reports, as required under Rule 26(a)(2)(E). The Court finds, based on the record before it, these expert opinions were not previously disclosed, and Defendants’ request is granted.FN9

FN9. The Court further notes Plaintiffs did not move for leave to supplement their experts’ testimony.

3. Reference to “Black Box” Data

Defendants seek to exclude references to the “black box” data from Hassan’s truck that was lost after the truck was moved. As discussed above, the parties indicated that this issue would be fully briefed in connection with a motion for sanctions. That motion was not filed, and in the absence of briefing on this issue, the Court denies the relief requested in the motion in limine.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiffs’ Motion to Exclude the Testimony of Defendants’ Purported Expert Donald Roberts [129] is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to Roberts’s opinions of Hassan’s truck’s speed based on the average speed of Hassan’s truck. It is DENIED with respect to Roberts’s opinions of speed based on the “delta v” data and the “distance and braking analysis.”

IT IS FURTHER ORDERED that Plaintiffs’ Motion in Limine [143] is GRANTED IN PART, RESERVED IN PART, and DENIED IN PART . It is GRANTED with respect to the following categories of evidence and references:

• collateral source payments and benefits;

• this action’s effect on higher insurance premiums;

• evidence, including expert opinions, not previously disclosed during discovery;

• settlement negotiations and mediations in this action;

• that Defendants did or did not receive a citation in connection with the accident at issue in this case;

• Plaintiffs’ contingent fee arrangement with their counsel;

• that any Defendant “regrets, apologizes for, or asks forgiveness for” the accident; FN10

FN10. Defendants’ counsel reserves the right to characterize the accident as regrettable.

• the verdict in the Missouri lawsuit brought by Christopher Morse;

• opinions by Defendants’ expert Roberts not contained in his Janauary 26, 2011, expert report;

• Randall Bowman’s driving record;

• that Plaintiffs filed their Motion in Limine; and

• causation opinions by the Bowmans’ physicians.

It is DENIED with respect to the following categories of evidence and references:

• evidence of the Bowmans’ health problems, with a limiting instruction that the evidence is to be considered only for the purpose of valuing the Bowmans’ lives;

*9 • references to Plaintiffs’ failure to call witnesses;

• references to Plaintiffs’ use of a damage award or that a damage award will not “undo” damage;

• settlement of claims by third-parties;

• Defendants’ rebuttal to the alleged “side of the road” incident; and

• Roberts’s video reenactment, with a limiting instruction that the video depicts Defendants’ version of events surrounding the accident.

It is RESERVED with respect to the following categories of evidence and references, to which Plaintiffs are required to make their objections at trial:

• references to “overly litigious” society, and similar comments;

• opinions of law enforcement investigators; and

• spoliation instruction, based on Defendants’ moving of Hassan’s truck.

IT IS FURTHER ORDERED that Defendants’ Motion in Limine [144] is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to evidence of Hassan’s driving record and expert opinions not contained in Plaintiffs’ expert reports. It is DENIED with respect to the “black box” data from Hassan’s truck.

SO ORDERED.