United States Court of Appeals,

Ninth Circuit.

Mickey Lee DILTS; Ray Rios; and Donny Dushaj, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,

v.

PENSKE LOGISTICS, LLC; and Penske Truck Leasing Co., L.P., a Delaware corporation, Defendants–Appellees,

and

Does 1–125, inclusive, Defendants.

 

No. 12–55705.

Argued and Submitted March 3, 2014.

Filed Sept. 8, 2014.

 

Deepak Gupta (argued), Brian Wolfman, Gregory A. Beck, and Jonathan E. Taylor, Gupta Beck PLLC, Washington, D.C.; Michael D. Singer and J. Jason Hill, Cohelan Khoury & Singer, San Diego, CA, for Plaintiffs–Appellants.

 

James H. Hanson (argued), Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN; and Adam C. Smedstad, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Chicago, IL, for Defendants–Appellees.

 

Jeffrey Clair (argued) and Stuart F. Delery, Assistant Attorneys General, Civil Division, United States Department of Justice; Kathryn B. Thomson, Acting General Counsel, Paul M. Geier, Assistant General Counsel for Litigation, and Peter J. Plocki, Deputy Assistant General Counsel for Litigation, United States Department of Transportation; and T.F. Scott Darling, III, Chief Counsel, and Debra S. Straus, Senior Attorney, Federal Motor Carrier Safety Administration, Washington, D.C., for Amicus Curiae United States of America.

 

Richard Pianka, ATA Litigation Center, and Prasad Sharma, American Trucking Associations, Inc., Arlington, VA; Paul DeCamp, Jackson Lewis LLP, Reston, VA; Douglas J. Hoffman, Jackson Lewis LLP, Boston, MA; and Robin S. Conrad and Shane B. Kawka, National Chamber Litigation Center, Inc., Washington, D.C.; Guillermo Marrero, International Practice Group, P.C., San Diego, CA; and Andrew J. Kahn and Richard G. McCracken, Davis, Cowell & Bowe, LLP, San Francisco, CA, for Amici Curiae.

 

Appeal from the United States District Court for the Southern District of California, Cathy Ann Bencivengo, District Judge, Presiding. D.C. No. 3:08–cv–00318–CAB–BLM.

 

Before ALEX KOZINSKI, Chief Judge, SUSAN P. GRABER, Circuit Judge, and JACK ZOUHARY,FN* District Judge.

 

FN* The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.

 

Opinion by Judge GRABER.

 

Concurrence by Judge ZOUHARY.

 

ORDER AND AMENDED OPINION

GRABER, Circuit Judge:

ORDER

*1 The opinion filed on July 9, 2014, and published at 2014 WL 3291749, are amended by the opinion and concurrence filed concurrently with this order.

 

With these amendments, Chief Judge Kozinski and Judge Graber have voted to deny the petition for rehearing en banc, and Judge Zouhary has so recommended.

 

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

 

The petition for rehearing en banc is DENIED. No further petitions for rehearing may be filed.

 

OPINION

Plaintiffs, a certified class of drivers employed by Defendants Penske Logistics, LLC, and Penske Truck Leasing Co., L.P., appeal from a judgment dismissing their claims under California’s meal and rest break laws. The district court held on summary judgment that the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) preempts those state laws as applied to motor carriers. Reviewing de novo the interpretation and construction of the FAAAA and the question of federal preemption, Tillison v. Gregoire, 424 F.3d 1093, 1098 (9th Cir.2005), we hold that the state laws at issue are not “related to” prices, routes, or services, and therefore are not preempted by the FAAAA. Accordingly, we reverse.

 

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs Mickey Lee Dilts, Ray Rios, and Donny Dushaj brought this class action against Defendants, which are motor carriers, alleging that Defendants routinely violate California’s meal and rest break laws, Cal. Lab.Code §§ 226.7, 512; Cal.Code Regs. tit. 8, § 11090. Plaintiffs represent a certified class of 349 delivery drivers and installers, all of whom are assigned to the Penske Whirlpool account. Plaintiffs work exclusively on routes within the state of California, typically work more than 10 hours a day, and frequently work in pairs, with one driver and one deliverer/installer in each truck.

 

California law generally requires a 30–minute meal break for every five hours worked, Cal. Lab.Code § 512, and a paid 10–minute rest break for every four hours worked, Cal.Code Regs. tit. 8, § 11090. Plaintiffs allege that Defendants automatically program 30–minute meal breaks into employees’ shifts while failing to ensure that employees actually take those breaks and that Defendants create a working environment that discourages employees from taking their meal and rest breaks.

 

Plaintiffs initially filed this action in state court. Defendants removed the case to federal district court under the Class Action Fairness Act, 28 U.S.C. §§ 1332(d)(2), 1441(b), 1453. Following removal, Defendants moved for summary judgment, claiming a preemption defense. Defendants argued that the state meal and rest break laws as applied to motor carriers are preempted under the FAAAA, which provides that “States may not enact or enforce a law … related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). Concluding that California’s meal and rest break laws impose “fairly rigid” timing requirements, dictating “exactly when” and “for exactly how long” drivers must take breaks, and restricting the routes that a motor carrier may select, the district court held that California’s meal and rest break laws meet the FAAAA preemption standard and granted summary judgment for Defendants. Dilts v. Penske Logistics LLC, 819 F.Supp.2d 1109, 1119–20 (S.D.Cal.2011).FN1 Plaintiffs timely appeal.

 

FN1. Since Dilts was decided, eight other California district court decisions have held that the FAAAA preempts California’s meal and rest break laws, while four have held that it does not. The other cases that followed Dilts are: Rodriguez v. Old Dominion Freight Line, Inc., No. CV13–891DSF(RZx), 2013 WL 6184432, at *4 (C.D.Cal. Nov. 27, 2013); Parker v. Dean Transp. Inc., No. CV13–02621BRO(VBKx), 2013 WL 7083269, at *9 (C.D.Cal. Oct. 15, 2013); Ortega v. J.B. Hunt Transp., Inc., No. CV07–08336(BRO)(FMOx), 2013 WL 5933889, at *7 (C.D.Cal. Oct. 2, 2013); Burnham v. Ruan Transp., No. SACV12–0688AG(ANx), 2013 WL 4564496, at *5 (C.D.Cal. Aug. 16, 2013); Cole v. CRST, Inc., No. EDCV08–1570–VAP(OPx), 2012 WL 4479237, at *4–6 (C.D.Cal. Sept. 27, 2012); Campbell v. Vitran Express, Inc., No. CV11–05029–RGK(SHx), 2012 WL 2317233, at *4 (C.D. Cal. June 8, 2012); Aguiar v. Cal. Sierra Express, Inc., No. 2:11–cv–02827–JAM–GGH, 2012 WL 1593202, at *1 (E.D.Cal. May 4, 2012); Esquivel v. Vistar Corp., No. 2:11–cv–07284–JHN–PJWx, 2012 WL 516094, at *4–6 (C.D.Cal. Feb. 8, 2012) (unpublished decisions); see also Miller v. Sw. Airlines Co., 923 F.Supp.2d 1206, 1212–13 (N.D.Cal.2013) (holding California’s break laws preempted under the analogous provision of the Airline Deregulation Act); Helde v. Knight Transp., Inc., 982 F.Supp.2d 1189, 1195–96 (W.D.Wash.2013) (applying similar analysis to Washington’s rest break provisions and holding them preempted under the FAAAA). The cases holding that California’s meal and rest break laws are not preempted by the FAAAA are: Villalpando v. Exel Direct Inc., No. 12–cv–04137JCS, 2014 WL 1338297, at *12 (N.D.Cal. Mar. 28, 2014); Brown v. Wal–Mart Stores, Inc., No. C08–5221 SI, 2013 WL 1701581, at *3–4 (N.D.Cal. Apr. 18, 2013); Mendez v. R+L Carriers, Inc., No. C11–2478CW, 2012 WL 5868973, at *4–7 (N.D.Cal. Nov. 19, 2012) (unpublished decisions); Reinhardt v. Gemini Motor Transp., 869 F.Supp.2d 1158, 1165–67 (E.D.Cal.2012).

 

This is the first time that the question is before us. It is also before us in Campbell v. Vitran Express, Inc., No. 12–56250, which we decided concurrently in a memorandum disposition.

 

DISCUSSION

A. California’s Meal and Rest Break Laws

*2 California Labor Code sections 226.7 and 512, and the related regulations for the transportation industry promulgated by California’s Industrial Welfare Commission as California Code of Regulations title 8, section 11090, together constitute the state’s meal and rest break laws.

 

Employers must provide a meal break of 30 minutes for an employee who works more than five hours a day, plus a second meal break of 30 minutes for an employee who works more than 10 hours a day. Cal. Lab.Code § 512(a). For employees who work no more than six hours, the meal break may be waived by mutual consent of the employer and employee; for employees who work no more than 12 hours, one of the two meal breaks may be waived by mutual consent. Id. If the nature of the work prevents an employee from taking an off-duty meal break, the employer and employee may agree to an on-duty meal break by mutual consent. Id. For transportation workers whose daily work time is at least three and one-half hours, employers must provide a paid rest period of 10 minutes for every four hours “or major fraction thereof.” Cal.Code Regs. tit. 8, § 11090(12)(A). The regulations governing transportation workers are consistent with those governing workers in other industries. See id. §§ 11010–11170.

 

An employer may not require an employee to work during any meal or rest period. Cal. Lab.Code § 226.7(b). An employer must pay an employee for an additional hour of work at the employee’s regular rate for each workday for which a meal or rest period is not provided. Cal. Lab.Code § 226.7(c). “[S]ection 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay…. The failure to provide required meal and rest breaks is what triggers a violation of section 226.7.” Kirby v. Immoos Fire Prot., Inc., 274 P.3d 1160, 1168 (Cal.2012). “The ‘additional hour of pay’ … is the legal remedy….” Id.

 

The California Supreme Court, in an opinion published after the order on summary judgment issued in this case, clarified that state laws allow some flexibility with respect to the timing and circumstances of meal breaks.   Brinker Rest. Corp. v. Superior Court, 273 P.3d 513 (Cal.2012). In the absence of a waiver, California law “requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work,” but “does not impose additional timing requirements.” Id. at 537. “[A]n employer must relieve the employee of all duty for the designated [meal] period, but need not ensure that the employee does no work.” Id. at 532. When the nature of the work makes off-duty meal breaks infeasible, the employer and employee may, by mutual written agreement, waive the off-duty meal break requirement. Id. at 533 (citing California’s Industrial Welfare Commission Wage Order No. 5). Finally, “as a general matter, one rest break should fall on either side of the meal break. [But s]horter or longer shifts and other factors that render such scheduling impracticable may alter this general rule,” and employers have flexibility in scheduling breaks according to the nature of the work. Id. at 531 (citation, brackets, and internal quotation marks omitted).

 

B. The “Related to” Test for FAAAA Preemption

*3 In considering the preemptive scope of a statute, congressional intent “is the ultimate touchstone.” Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1040 (9th Cir.2007) (internal quotation marks omitted). “Congress’ intent … primarily is discerned from the language of the pre-emption statute and the statutory framework surrounding it. Also relevant, however, is the structure and purpose of the statute as a whole, as revealed … through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (citations and internal quotation marks omitted).

 

“Preemption analysis begins with the presumption that Congress does not intend to supplant state law. Although Congress clearly intended FAAAA to preempt some state regulations of motor carriers who transport property, the scope of the pre-emption must be tempered by the presumption against the pre-emption of state police power regulations.” Tillison, 424 F.3d at 1098 (citation and internal quotation marks omitted); Medtronic, Inc., 518 U.S. at 485; see also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (noting that the presumption against preemption applies “in all preemption cases” and is especially strong in areas of traditional state regulation (internal quotation marks and brackets omitted). Wage and hour laws constitute areas of traditional state regulation, although that fact alone does not “immunize” state employment laws from preemption if Congress in fact contemplated their preemption. Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N .A., 519 U.S. 316, 330–34 (1997).

 

“Where, as in this case, Congress has superseded state legislation by statute, our task is to identify the domain expressly pre-empted. To do so, we focus first on the statutory language, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Dan’s City Used Cars, Inc. v. Pelkey, 133 S.Ct. 1769, 1778 (2013) (citation and internal quotation marks omitted) (interpreting the FAAAA). The FAAAA’s preemption clause provides, in relevant part: “States may not enact or enforce a law … related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). The statutory “related to” text is “deliberately expansive” and “conspicuous for its breadth.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383–84 (1992) (internal quotation marks omitted). That said, the FAAAA does not go so far as to preempt state laws that affect prices, routes, or services in “only a tenuous, remote, or peripheral manner, such as state laws forbidding gambling.” Rowe v. N.H. Motor Transp. Ass’n, 552 U .S. 364, 371 (2008) (internal quotation marks and alteration omitted). As the Supreme Court recently observed, “the breadth of the words ‘related to’ does not mean the sky is the limit.” Dan’s City Used Cars, 133 S.Ct. at 1778.

 

*4 Because “everything is related to everything else,” Dillingham Constr., 519 U.S. at 335 (Scalia, J., concurring), understanding the nuances of congressional intent is particularly important in FAAAA preemption analysis. We must draw a line between laws that are significantly “related to” rates, routes, or services, even indirectly, and thus are preempted, and those that have “only a tenuous, remote, or peripheral” connection to rates, routes, or services, and thus are not preempted. Rowe, 552 U.S. at 371. To better discern congressional intent, we turn next to the legislative history and broader statutory framework of the FAAAA. Lohr, 518 U.S. at 486.

 

Enacted in 1994, the FAAAA was modeled on the Airline Deregulation Act of 1978. In 2008, the Supreme Court summarized the history behind the FAAAA:

 

In 1978, Congress “determin[ed] that ‘maximum reliance on competitive market forces’ “ would favor lower airline fares and better airline service, and it enacted the Airline Deregulation Act. Morales [, 504 U.S. at 378] (quoting 49 U.S.C.App. § 1302(a)(4) (1988 ed.)); see 92 Stat. 1705. In order to “ensure that the States would not undo federal deregulation with regulation of their own,” th[e Airline Deregulation] Act “included a pre-emption provision” that said “no State … shall enact or enforce any law … relating to rates, routes, or services of any air carrier.” Morales, supra, at 378; 49 U.S.C.App. § 1305(a)(1) (1988 ed.).

 

In 1980, Congress deregulated trucking. See Motor Carrier Act of 1980, 94 Stat. 793. And a little over a decade later, in 1994, Congress similarly sought to pre-empt state trucking regulation. See Federal Aviation Administration Authorization Act of 1994, 108 Stat. 1605–1606; see also ICC Termination Act of 1995, 109 Stat. 899. In doing so, it borrowed language from the Airline Deregulation Act of 1978 and wrote into its 1994 law language that says: “[A] State … may not enact or enforce a law … related to a price, route, or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1); see also § 41713(b)(4)(A) (similar provision for combined motor-air carriers).

 

Rowe, 552 U.S. at 367–68.

 

By using text nearly identical to the Airline Deregulation Act’s, Congress meant to create parity between freight services provided by air carriers and those provided by motor carriers. Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1187 (9th Cir.1998). Therefore, the analysis from Morales and other Airline Deregulation Act cases is instructive for our FAAAA analysis as well. The one difference between the Airline Deregulation Act and the FAAAA is that the latter contains the additional phrase “with respect to the transportation of property,” which is absent from the Airline Deregulation Act and which “massively limits the scope of preemption ordered by the FAAAA.” Dan’s City Used Cars, 133 S.Ct. at 1778 (internal quotation marks omitted). Here, the parties do not dispute that the transportation of property is involved, so our analysis turns on the “related to price, route, or service” element of the FAAAA preemption test.

 

*5 The principal purpose of the FAAAA was “to prevent States from undermining federal deregulation of interstate trucking” through a “patchwork” of state regulations. Am. Trucking Ass’ns v. City of Los Angeles, 660 F.3d 384, 395–96 (9th Cir.2011). The sorts of laws that Congress considered when enacting the FAAAA included barriers to entry, tariffs, price regulations, and laws governing the types of commodities that a carrier could transport. H.R. Conf. Rep. No. 103–677, at 86 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1758. The FAAAA expressly does not regulate a state’s authority to: enact safety regulations with respect to motor vehicles; control trucking routes based on vehicle size, weight, and cargo; impose certain insurance, liability, or standard transportation rules; regulate the intrastate transport of household goods and certain aspects of tow-truck operations; or create certain uniform cargo or antitrust immunity rules. 49 U.S.C. § 14501(c)(2), (3). This list was “not intended to be all inclusive, but merely to specify some of the matters which are not ‘prices, rates or services’ and which are therefore not preempted.” H.R. Conf. Rep. No. 103–677, at 84, reprinted in 1994 U.S.C.C.A.N. at 1756. Accordingly, Congress did not intend to preempt generally applicable state transportation, safety, welfare, or business rules that do not otherwise regulate prices, routes, or services. Consistent with that instruction, we have held that the FAAAA does not preempt a state’s prevailing wage law, Mendonca, 152 F.3d at 1189, or a state law requiring that towing services obtain express authorization to tow from private property, Tillison, 424 F.3d at 1099–1100, and that the Airline Deregulation Act does not preempt a generally applicable city anti-discrimination law, Air Transp. Ass’n of Am. v. City of San Francisco, 266 F.3d 1064, 1071 (9th Cir.2001).

 

In 2008, after reviewing the relevant statutory text, legislative history, and jurisprudence, the Supreme Court identified four principles of FAAAA preemption: (1) “ ‘state enforcement actions having a connection with, or reference to,’ carrier ‘rates, routes or services’ are pre-empted”; (2) “such pre-emption may occur even if a state law’s effect on rates, routes or services ‘is only indirect’ “; (3) “it makes no difference whether a state law is ‘consistent’ or ‘inconsistent’ with federal regulation”; and (4) “pre-emption occurs at least where state laws have a ‘significant impact’ related to Congress’ deregulatory and pre-emption-related objectives.” Rowe, 552 U.S. at 370–71 (brackets and emphasis omitted) (quoting the Airline Deregulation Act analysis in Morales, 504 U.S. at 384, 386–87, 390).

 

Contrary to Defendants’ argument, Rowe did not represent a significant shift in FAAAA jurisprudence. Nor did it call into question our past FAAAA cases, such as Mendonca, 152 F.3d at 1187–89. See also Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.2003) (en banc) (holding that a three judge panel may ignore binding circuit precedent only if it is “clearly irreconcilable with the reasoning or theory of intervening higher authority”). Rowe instructs us to apply to our FAAAA cases the settled preemption principles developed in Airline Deregulation Act cases, including the rule articulated in Morales that a state law may “relate to” prices, routes, or services for preemption purposes even if its effect is only indirect, 504 U.S. at 385–86, but that a state law connected to prices, routes, or services in “too tenuous, remote, or peripheral a manner” is not preempted, id. at 390 (internal quotation marks omitted). See also H.R. Conf. Rep. No. 103–677, at 83, reprinted in 1994 U.S.C.C.A.N. at 1755 (noting that the drafters of the FAAAA did “not intend to alter the broad preemption interpretation adopted by the United States Supreme Court in Morales ”). We applied precisely that rule in Mendonca, 152 F.3d at 1187–89. Rowe simply reminds us that, whether the effect is direct or indirect, “the state laws whose effect is forbidden under federal law are those with a significant impact on carrier rates, routes, or services.” 552 U.S. at 375 (internal quotation marks omitted).

 

*6 Rowe concerned a Maine law requiring tobacco retailers to use a delivery service that provided recipient verification. The Supreme Court held that the verification requirement interfered with the de-regulatory goals behind the FAAAA’s preemption clause because it would “require carriers to offer a system of services that the market does not provide[,] … would freeze into place services that carriers might prefer to discontinue in the future,” and would directly substitute Maine’s “own governmental commands for competitive market forces in determining (to a significant degree) the services that motor carriers will provide.” 552 U.S. at 372 (internal quotation marks omitted). The Maine statute also required that carriers provide a special checking system to receive any shipment originating from a known tobacco retailer. Id. at 373. The Supreme Court held that requiring the carriers to check packages in this way would “regulate a significant aspect of the motor carrier’s package pickup and delivery service” and, again, could freeze into place services that the market would not otherwise provide. Id.

 

In short, the Maine statute required carriers to provide or use certain special services in order to comply with the law. The statute was, as we have described other preempted laws, one in which “the existence of a price, route or service [was] essential to the law’s operation.” Air Transp. Ass’n, 266 F.3d at 1071 (internal quotation marks and brackets omitted). In an Airline Deregulation Act case following Rowe, we held that, in “ ‘borderline’ cases” in which a law does not refer directly to rates, routes, or services, “the proper inquiry is whether the provision, directly or indirectly, binds the carrier to a particular price, route or service and thereby interferes with the competitive market forces within the industry.” Am. Trucking, 660 F.3d at 397 (emphasis added) (internal quotation marks and alterations omitted). Thus, laws mandating motor carriers’ use (or non-use) of particular prices, routes, or services in order to comply with the law are preempted.

 

Laws are more likely to be preempted when they operate at the point where carriers provide services to customers at specific prices. In Northwest, Inc. v. Ginsberg, 134 S.Ct. 1422, 1431 (2014), the Supreme Court held that an airline customer’s claim against the airline for breach of an implied covenant, stemming from the termination of his frequent flyer account, was “related to” prices, routes, and especially services. The Court held that, because frequent flyer credits could be redeemed for services offered for free or at reduced prices, the state law contract claim met the “related to” test, id., and, because the state law claim sought to enlarge the contractual relationship that the carrier and its customer had voluntarily undertaken, was preempted under the Airline Deregulation Act, id. at 1433; see also S.C. Johnson & Son v. Transp. Corp. of Am., 697 F.3d 544, 558 (7th Cir.2012) (noting that Morales and Mendonca both stand for the proposition that the Airline Deregulation Act and FAAAA do not preempt “laws that regulate … inputs [that] operate one or more steps away from the moment at which the firm offers its customer a service for a particular price”); DiFiore v. Am. Airlines, Inc., 646 F.3d 81, 88 (1st Cir.2011) (the preempted law “directly regulates how an airline service is performed and how its price is displayed to customers—not merely how the airline behaves as an employer or proprietor”).

 

*7 On the other hand, generally applicable background regulations that are several steps removed from prices, routes, or services, such as prevailing wage laws or safety regulations, are not preempted, even if employers must factor those provisions into their decisions about the prices that they set, the routes that they use, or the services that they provide. Such laws are not preempted even if they raise the overall cost of doing business or require a carrier to re-direct or reroute some equipment. Mendonca, 152 F .3d at 1189. Indeed, many of the laws that Congress enumerated as expressly not related to prices, routes, or services—such as transportation safety regulations or insurance and liability rules, 49 U.S.C. § 14501(c)(2)—are likely to increase a motor carrier’s operating costs. But Congress clarified that this fact alone does not make such laws “related to” prices, routes, or services. Nearly every form of state regulation carries some cost. The statutory text tells us, though, that in deregulating motor carriers and promoting maximum reliance on market forces, Congress did not intend to exempt motor carriers from every state regulatory scheme of general applicability. 49 U.S.C. § 14501(c); see also, e. g., Rowe, 552 U.S. at 375 (holding that a state law is not preempted when it “prohibits certain forms of conduct and affects, say, truckdrivers, only in their capacity as members of the public”).

 

Nor does a state law meet the “related to” test for FAAAA preemption just because it shifts incentives and makes it more costly for motor carriers to choose some routes or services relative to others, leading the carriers to reallocate resources or make different business decisions. For example, a San Francisco city ordinance requiring equal protection for domestic partners did not “compel or bind the Airlines to a particular route or service,” even though it might increase the cost of doing business at the San Francisco airport relative to other markets. Air Transp. Ass’n, 266 F.3d at 1074. Despite the potential cost increase associated with using the San Francisco airport as a result of the city ordinance, carriers could still “make their own decisions about where to fly and how many resources to devote to each route and service.” Id.

 

In short, even if state laws increase or change a motor carrier’s operating costs, “broad law[s] applying to hundreds of different industries” with no other “forbidden connection with prices[, routes,] and services”—that is, those that do not directly or indirectly mandate, prohibit, or otherwise regulate certain prices, routes, or services—are not preempted by the FAAAA. Id. at 1072.

 

C. California’s Meal and Rest Break Laws are Not Preempted

Although we have in the past confronted close cases that have required us to struggle with the “related to” test, and refine our principles of FAAAA preemption, we do not think that this is one of them. In light of the FAAAA preemption principles outlined above, California’s meal and rest break laws plainly are not the sorts of laws “related to” prices, routes, or services that Congress intended to preempt. They do not set prices, mandate or prohibit certain routes, or tell motor carriers what services they may or may not provide, either directly or indirectly. They are “broad law[s] applying to hundreds of different industries” with no other “forbidden connection with prices[, routes,] and services.” Air Transp. Ass’n, 266 F.3d at 1072. They are normal background rules for almost all employers doing business in the state of California. And while motor carriers may have to take into account the meal and rest break requirements when allocating resources and scheduling routes—just as they must take into account state wage laws, Mendonca, 152 F.3d at 1189, or speed limits and weight restrictions, 49 U.S.C. § 14501(c)(2)—the laws do not “bind” motor carriers to specific prices, routes, or services, Am. Trucking, 660 F.3d at 397. Nor do they “freeze into place” prices, routes, or services or “determin[e] (to a significant degree) the [prices, routes, or] services that motor carriers will provide,” Rowe, 552 U.S. at 372.

 

*8 Further, applying California’s meal and rest break laws to motor carriers would not contribute to an impermissible “patchwork” of state-specific laws, defeating Congress’ deregulatory objectives. The fact that laws may differ from state to state is not, on its own, cause for FAAAA preemption. In the preemption provision, Congress was concerned only with those state laws that are significantly “related to” prices, routes, or services. A state law governing hours is, for the foregoing reasons, not “related to” prices, routes, or services and therefore does not contribute to “a patchwork of state service-determining laws, rules, and regulations.” Rowe, 552 U.S. at 373 (emphasis added). It is instead more analogous to a state wage law, which may differ from the wage law adopted in neighboring states but nevertheless is permissible.   Mendonca, 152 F.3d at 1189.FN2

 

FN2. We recently noted that it was an “open issue” “whether a federal law can ever preempt state law on an ‘as applied’ basis, that is, whether it is proper to find that federal law preempts a state regulatory scheme sometimes but not at other times, or that a federal law can preempt state law when applied to certain parties, but not to others.” Cal. Tow Truck Ass’n v. City of San Francisco, 693 F.3d 847, 865 (9th Cir.2012). We need not resolve that issue here. For the reasons discussed in this section, we hold that California’s meal and rest break laws, as generally applied to motor carriers, are not preempted.

 

Were we to construe Defendant’s argument as an “as applied” challenge, we would reach the same conclusion and, if anything, find the argument against preemption even stronger. Plaintiff drivers work on short-haul routes and work exclusively within the state of California. They therefore are not covered by other state laws or federal hours-of-service regulations, 49 C.F.R. § 395.3, and would be without any hours-of-service limits if California laws did not apply to them. See Hours of Service of Drivers, 78 Fed.Reg. 64,179–01, 64,181 (Oct. 28, 2013) (amending 49 C.F.R. § 395.3 to exclude short-haul drivers, in compliance with Am. Trucking Ass’ns v. Fed. Motor Carrier Safety Admin., 724 F.3d 243 (D.C.Cir.2013), cert. denied, 134 S.Ct. 914 (2014)). Consequently, Defendants in particular are not confronted with a “patchwork” of hour and break laws, even a “patchwork” permissible under the FAAAA.

 

Defendants argue that California’s meal and rest break laws are “related to” routes or services, “if not prices too,” in six specific ways. None of those examples convinces us that California’s laws are “related to” prices, routes, or services in the way that Congress intended.

 

First, Defendants argue that the state break laws impermissibly mandate that no motor carrier service be provided during certain times because the laws require a cessation of work during the break period. But the state law requires only that each individual employee take an off-duty break at some point within specified windows-not that a motor carrier suspend its service. Defendants are at liberty to schedule service whenever they choose. They simply must hire a sufficient number of drivers and stagger their breaks for any long period in which continuous service is necessary.

 

Second, Defendants argue that mandatory breaks mean that drivers take longer to drive the same distance, providing less service overall. But that argument equates to nothing more than a modestly increased cost of doing business, which is not cause for preemption, Air Transp. Ass’n, 266 F.3d at 1071; Mendonca, 152 F.3d at 1189. Motor carriers may have to hire additional drivers or reallocate resources in order to maintain a particular service level, but they remain free to provide as many (or as few) services as they wish. The law in question has nothing to say about what services an employer does or does not provide.

 

Third, Defendants argue that break laws require carriers to alter “the frequency and scheduling of transportation,” which directly relates to services under Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1265–66 (9th Cir.1998) (en banc). Charas held that, under the Airline Deregulation Act, services include “such things as the frequency and scheduling of transportation, and … the selection of markets to or from which transportation is provided.” Id. Again, this argument conflates requirements for individual drivers with requirements imposed on motor carriers. Motor carriers may schedule transportation as frequently or as infrequently as they choose, at the times that they choose, and still comply with the law. They simply must take drivers’ break times into account—just as they must take into account speed limits or weight restrictions, 49 U.S.C. § 14501(c), which are not preempted by the FAAAA.

 

*9 Fourth, Defendants argue that California break laws require motor carriers to schedule services in accordance with state law, rather than in response to market forces, thereby interfering with the FAAAA’s deregulatory objectives. But the mere fact that a motor carrier must take into account a state regulation when planning services is not sufficient to require FAAAA preemption, so long as the law does not have an impermissible effect, such as binding motor carriers to specific services, Am. Trucking, 660 F.3d at 397, making the continued provision of particular services essential to compliance with the law, Rowe, 552 U.S. at 372; Air Transp. Ass’n, 266 F.3d at 1074, or interfering at the point that a carrier provides services to its customers, Nw., Inc., 134 S.Ct. at 1431. Moreover, all motor carriers in California are subject to the same laws, so all intrastate carriers like Defendants are equally subject to the relevant market forces.

 

Turning to routes, Defendants’ fifth argument is that the requirement that drivers pull over and stop for each break period necessarily dictates that they alter their routes. To the extent that compliance with California law requires drivers to make minor deviations from their routes, such as pulling into a truck stop, we see no indication that this is the sort of “route control” that Congress sought to preempt. “ ‘[R]outes’ generally refer[s] to … point-to-point transport … [and] courses of travel.” Charas, 160 F.3d at 1265. The requirement that a driver briefly pull on and off the road during the course of travel does not meaningfully interfere with a motor carrier’s ability to select its starting points, destinations, and routes. Indeed, Congress has made clear that even more onerous route restrictions, such as weight limits on particular roads, are not “related to” routes and therefore are not preempted. 49 U.S.C. § 14501(c).

 

Sixth, and relatedly, Defendants argue that finding routes that allow drivers to comply with California’s meal and rest break laws will limit motor carriers to a smaller set of possible routes. But Defendants, who bear the burden of proof in establishing the affirmative defense of preemption, PLIVA, Inc. v. Mensing, 131 S.Ct. 2567, 2587 (2011), submitted no evidence to show that the break laws in fact would decrease the availability of routes to serve the Whirlpool accounts, or would meaningfully decrease the availability of routes to motor carriers in California. Instead, Defendants submitted only very general information about the difficulty of finding parking for commercial trucks in California. Although compliance with California’s meal and break laws may require some minor adjustments to drivers’ routes, the record fails to suggest that state meal and rest break requirements will so restrict the set of routes available as to indirectly bind Defendants, or motor carriers generally, to a limited set of routes, Am. Trucking, 660 F.3d at 397, or make the provision or use of specific routes necessary for compliance with the law, Air Transp. Ass’n, 226 F .3d at 1074. Moreover, drivers already must incorporate into their schedule fuel breaks, pick ups, drop offs and, in some cases, time to install products or wait for their partner to complete an installation.

 

*10 Finally, in an amicus brief filed at our invitation, the Secretary of Transportation argued that: (1) state laws like California’s, which do not directly regulate prices, routes, or services, are not preempted by the FAAAA unless they have a “significant effect” on prices, routes, or services; (2) in the absence of explicit instructions from Congress, there is a presumption against preemption in areas of traditional state police power, including employment; and (3) there is no showing of an actual or likely significant effect on prices, routes, or services, and so the California laws at issue are not preempted. See also Meal Breaks and Rest Breaks for Commercial Motor Vehicle Drivers, 73 Fed.Reg. 79,204–01, 79,206 (Dec. 24, 2008) (determining, in an order issued by the Department of Transportation, that the agency lacked jurisdiction to preempt California’s meal and rest break laws under another statute, 49 U.S.C. § 31141, because those state laws are not “laws [or] regulations on commercial motor safety”).

 

Although the Department of Transportation’s interpretation of the FAAAA is not controlling, we find it persuasive in light of: (1) the agency’s general expertise in the field of transportation and regulation, (2) the fact that the position taken in the brief represents the agency’s reasoned consideration of the question, and (3) the fact that the government’s position is generally consistent with its approach to other preemption questions concerning California’s meal and rest break laws (although this is the first time that the government has taken a position on FAAAA preemption specifically). See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (holding that a non-controlling agency opinion may carry persuasive weight, depending on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”); see also Van Asdale v. Int’l Game Tech., No. 11–16538, 2014 WL 3973388, at *3 (9th Cir. Aug. 15, 2014) (applying Skidmore deference to the Department of Labor’s view on the appropriate statutory interpretation of a damages provision in the Sarbanes–Oxley Act of 2002, as expressed in the agency’s amicus brief).

 

For the reasons discussed above, we agree with the Department of Transportation. Although we would reach the same result in the absence of the agency’s brief, the government’s position provides additional support for our conclusion that the FAAAA does not preempt California’s meal and rest break laws.

 

CONCLUSION

The FAAAA does not preempt California’s meal and rest break laws as applied to Defendants, because those state laws are not “related to” Defendants’ prices, routes, or services. The district court dismissed this action on summary judgment because of Defendants’ preemption defense, so it has not yet considered the merits of Plaintiffs’ claims. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

 

*11 REVERSED and REMANDED.

 

ZOUHARY, District Judge, concurring:

I write separately to emphasize several aspects of this case. As the Majority notes, Penske bears the burden of proof on its preemption defense. See supra at 22. But Penske did not offer specific evidence of (for example) the actual effects of the California law on Penske’s own routes or services. Instead, Penske relied on a general hypothetical likelihood that a Penske delivery driver, with limited flexibility in traveling from point A to point B, is further restricted to certain routes that would allow a driver to park his or her truck and enter “off-duty” status.

 

Penske failed to carry its burden. I consequently express no opinion, for example, that the possibility a “driver [must] briefly pull on and off the road during the course of travel does not meaningfully interfere with a motor carrier’s ability to select its starting points, destinations, and routes.” Id. (emphases added). Maybe so. Maybe not.

 

Further, the Majority incorrectly posits that Defendants are at liberty to schedule as they choose, tempered only by hiring more drivers and staggering breaks. Customer demands and practicalities must also be considered. As in air and train transportation, substitution crews may now be needed when hours of service are reached with some expense, delay, and impact on service. With respect to costs-of-labor, Penske did produce specific evidence, reflecting an estimated 3.4 percent increase in annual pricing to service a relevant account. Without more, that minimal increase in pricing is an insufficient basis for preempting the decades-old meal and rest break requirement. Mendonca, 152 F.3d at 1189 (finding California’s prevailing wage requirement, which increased a motor-carrier defendant’s prices by 25 percent, “in a certain sense … ‘related to’ [the motor carrier-defendant’s] prices, routes and services,” but had an effect that was “no more than indirect, remote, and tenuous”).

 

Finally, I note what this case is not about. This case is not an occasion for us to reexamine prior precedent—the discussion of Rowe, Northwest Airlines, Inc., and Gammie makes that clear. Nor is this case about FAAAA preemption in the context of interstate trucking—though one gets the sense that various amici wish it were. On this record, and in the intrastate context, California’s meal and rest break requirements are not preempted.

United States District Court,

E.D. Michigan,

Southern Division.

Kevin W. MALBURG, Personal Representative of the Estate of Randy William Malburg, Deceased, Plaintiff,

v.

Brian E. GRATE and Kagy Farms, LLC, jointly and severally, Defendants.

 

No. 11–14856.

Signed Sept. 9, 2014.

 

Randy A. Musbach, Law Office of Randy Musbach, Chelsea, MI, Mark R. Daane, Hooper, Hathaway, Ann Arbor, MI, for Plaintiff.

 

R. Carl Lanfear, Cardelli, Lanfear, Royal Oak, MI, for Defendants.

 

OPINION AND ORDER REGARDING MOTIONS IN LIMINE

PAUL D. BORMAN, District Judge.

*1 Defendants have filed 14 motions in limine and Plaintiff has filed three. The Court previously issued an Opinion and Order resolving several of these in limine motions on the briefs. (ECF No. 89, June 26, 2014 Opinion and Order.) On July 22, 2014, the Court heard oral argument on the remaining motions in limine which are now addressed in this Order. For the reasons that follow, the Court:

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Exclude Certain Testimony of Plaintiff’s Expert Lew Grill (ECF No. 28);

 

DENIES Defendants’ Motion in Limine to Preclude Plaintiff From Introducing Evidence Relating to the Federal Motor Carrier Regulations (ECF No. 43);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude Any Reference to Failure to Have Agreed Upon Hand Signals (ECF No. 61);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude Any Reference to Defendant Kagy Farm’s Failure to Adopt a Policy Regarding Spotters (ECF No. 54);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Exclude Certain Testimony of Plaintiff’s Expert Thomas Green (ECF No. 29);

 

DENIES Defendants’ Motion in Limine to Exclude Plaintiff’s Exhibit 115 (ECF No. 51);

 

GRANTS Defendants’ Motion in Limine to Preclude Any Evidence Concerning Negligent Loading of the Trailer by Defendant Kagy Farms (ECF No. 53);

 

DENIES Defendants’ Motion to Strike Plaintiff’s Supplemental Expert Disclosures (ECF No. 60);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude any Expert Testimony by Bader J. Cassin, M.D. (ECF No. 42); and

 

DENIES Defendants’ Motion in Limine to Preclude any Evidence Concerning the Parties’ Roles Which is Contrary to the Contract (ECF No. 52).

 

I. BACKGROUND

This wrongful death action arises out of an accident that occurred on a pig farm operated by the decedent, Randy Malburg. Defendant Brian Grate was driving a truck with a trailer carrying 300 feeder pigs for delivery to the Malburg farm. During the process of positioning the trailer for unloading, Randy Malburg died after becoming pinned at his head and neck between the trailer being driven by Mr. Grate and the chute attached to Mr. Malburg’s barn, onto which the pigs were to have been unloaded. Plaintiff Kevin Malburg, the personal representative of decedent’s estate, brings this action on behalf of the estate.

 

In an Opinion and Order dated September 6, 2013, this Court denied Defendants’ Motion for Summary Judgment. Malburg v. Grate, et al., No. 11–14856, 2013 WL 4784436 (E.D.Mich. Sept.6, 2013). The Court concluded that genuine issues of material fact remain as to whether Defendants breached a duty to the Plaintiff, whether Mr. Grate’s alleged negligence was a proximate cause of Randy Malburg’s death, and whether Randy Malburg was more than 50% responsible for his own death. The facts of the case are set forth in detail in the Court’s September 6, 2013 Opinion and Order and will be reiterated here only as necessary to provide context for the Court’s rulings on these motions in limine.

 

II. LEGAL STANDARD

*2 “The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures-including motions in limine-in order to narrow the issues remaining for trial and to minimize disruptions at trial.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999). District courts have broad discretion over matters involving the admissibility of evidence at trial.   United States v. Seago, 930 F.2d 482, 494 (6th Cir.1991).

 

III. ANALYSIS

 

A. Defendants’ Motion to Exclude Testimony of Plaintiff’s Expert Lew Grill (ECF No. 28) Which Necessarily Includes Resolution of (1) Defendants’ Motion to Preclude Plaintiff From Introducing Evidence Relating to the FMCSRs–ECF No. 43), (2) Defendants’ Motion to Preclude Reference to Failure to Have Hand Signals (ECF No. 61), and (3) Defendants’ Motion to Preclude Reference to Kagy Farm’s Failure to Have a Spotter Policy (ECF No. 54).

 

“Admissibility of expert testimony is governed by Federal Rule of Evidence 702 and informed by the seminal case applying Rule 702, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” In re Southeastern Milk Antitrust Litigation, 739 F.3d 262, 267 (6th Cir.2014). Fed.R.Evid. 702 provides:

 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

 

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

 

(b) the testimony is based on sufficient facts or data;

 

(c) the testimony is the product of reliable principles and methods; and

 

(d) the expert has reliably applied the principles and methods to the facts of the case.

 

Fed.R.Evid. 702.

 

“[T]he rules of evidence-especially Rule 702–do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The trial court’s “gatekeeping” task with respect to expert testimony applies not just to scientific evidence, as was at issue in Daubert, but to all types of specialized knowledge presented through an expert witness.   Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148–49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). “[T]he relevant reliability concern may focus upon personal knowledge or experience … [as] there are many different kinds of experts, and many different kinds of expertise.” Id. at 150. The Court must analyze separately the proposed expert’s qualification, reliability and helpfulness. The Sixth Circuit has noted that absolute certainty is not required of an expert but that sheer speculation, regardless of the qualifications of the speculator, lacks sufficient reliability:

 

*3 Rule 702, we recognize, does not require anything approaching absolute certainty. See Daubert, 509 U.S. at 590, 113 S.Ct. 2786, 125 L.Ed.2d 469. And where one person sees speculation, we acknowledge, another may see knowledge, which is why the district court enjoys broad discretion over where to draw the line. See [ General Elec. Co. v.] Joiner, 522 U.S. [136] at 139, 118 S.Ct. 512, 139 L.Ed.2d 508 [ (1997) ]. Yet, so long as there is a line, some forms of testimony may cross it, and that happened here. Dr. Carlini’s opinion contains not just one speculation but a string of them: A suggests by analogy the possibility of B, which might also apply to C, which, if we speculate about D, could eventually trigger E, so perhaps that happened here. At some point, the train becomes too long to pull and the couplings too weak to hold the cars together.

 

Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671–72 (6th Cir.2010).

 

To determine the testimony’s reliability, the court does not “determine whether [the opinion] is correct, but rather [determines] whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529–30 (6th Cir.2008). “As gatekeeper, the trial court only determines the admissibility of expert evidence; the jury determines its weight. The court’s focus is ‘solely on principles and methodology, not on the conclusions that they generate.’ “ United States v. Stafford, 721 F.3d 380, 393–94 (6th Cir.2013) (quoting Daubert, 509 U.S. at 595) (alterations in original). “[R]ejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal, 527 F.3d at 530.

 

At the final pre-trial conference, both parties indicated to the Court that were no real Daubert issues with respect to the parties’ proposed experts. Notwithstanding those representations, several motions have been filed attacking proposed expert testimony as inadmissible. In this motion, Defendants challenge certain opinions of Plaintiff’s expert Lew Grill. Defendants do not challenge Mr. Grill’s qualifications to testify as an expert on trucking policies and procedures but seek to exclude five of his seven opinions.

 

1. Mr. Grill’s first and second opinions—that the Federal Motor Carrier Safety Regulations (“FMCSRs”) apply to Defendants and do not apply to Randy Malburg.

Defendants argue that Mr. Grill’s opinion regarding the applicability of the FMCSRs constitutes a “legal opinion” not the proper subject of expert testimony. Plaintiff asserts that Kagy Farms is registered with the Department of Transportation and has a USDOT registration number. These are factual allegations. Plaintiff further asserts that the FMCSRs apply to interstate motor carriers with USDOT registrations. Defendants do not deny that the FMCSRs apply to them and did not apply to Randy Malburg, a pig farmer, but apparently object to Grill saying as much in the context of his opinions.

 

*4 Prior to addressing Grill’s proposed opinions that touch on these matters, the Court must address Defendants’ related motion to preclude any reference at all to the FMCSRs as irrelevant to this case. (ECF No. 43.) Mr. Grill proposes to discuss three separate FMCSRs:

 

(1) 49 C.F.R. § 383.110:

 

All drivers of CMV’s must have the knowledge and skills necessary to operate a CMV safely as contained in this subpart. The specific types of items that a State must include in the knowledge and skills tests that it administers to CDL applicants are included in this subpart.

 

(2) 49 C.F.R. § 383.111:

 

(a) All CMV operators must have knowledge of the following 20 general areas:

 

* * *

 

(4) Basic control. The proper procedures for performing various basic maneuvers, including:

 

(iii) Backing in a straight line[.]

 

(3) 49 C.F.R. § 383.113:

 

(b) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate the following basic motor vehicle control skills for the vehicle class that the driver operates or expects to operate:

 

* * *

 

(4) Ability to back the motor vehicle in a straight line, and check path and clearance while backing[.]

 

Relying on Espinal v. Wright, No. 09–cv–861, 2012 WL 864783 (W.D.Ky. March 13, 2012), Defendants argue that the FMCSRs are irrelevant and inadmissable to prove negligence per se based upon an alleged violation of a particular FMCSR. The Court agrees that evidence that Defendants had violated one or more FMCSRs would not be admissible to prove negligence per se. However, as the court in Espinal observed, Grate’s knowledge of the FMCSRs, and his alleged failure to apply that knowledge in the circumstances of this case, “will, of course, be relevant to the jury’s determination on the ultimate issue of [Grate’s] negligence.” Id . at *3 n. 1. In Espinal, it had already been established that the driver was aware of each of the areas of knowledge contained in the FMCSRs relevant to that case and thus there was “no material dispute of fact that Wright was knowledgeable about the general areas of required knowledge laid out in [the FMCSRs.]” Id. at *3. And, as the court there recognized, his failure to adequately apply that knowledge to the incident in question was “of course” relevant to the issue of negligence. Thus, Espinal does not stand for the proposition that the FMCSRs are irrelevant or inadmissible generally, only that an alleged violation of them cannot be offered as evidence of negligence per se. See, e.g., Sanderson v. Cahill Const. Co., No. 294939, 2011 WL 1262141, at *4 (Mich.App. April 5, 2011) (citing Zalut v. Andersen & Assoc., Inc., 186 Mich.App. 229, 235–36, 463 N.W.2d 236 (1990)) (holding that “OSHA and MIOSHA violations may supply evidence of negligence, but do not constitute negligence per se”).

 

The FMCSRs state on their face that they apply to every person who operates a commercial motor vehicle. 49 C.F.R. § 383.3. The Court rejects Defendants’ contention that these regulations only apply when a driver is applying for a CDL. The Court rejects Defendants’ suggestion that after obtaining a CDL, the driver is free to forget the regulations or that somehow they no longer govern the driver’s conduct while operating a commercial vehicle. That of course is not the case and Espinal makes clear that the FMCSRs continue to be relevant to the question of whether a particular driver actually applied his or her knowledge of the FMCSRs in the operation of a commercial vehicle in a particular case. Plaintiff may present the relevant FMCSRs through Mr. Grill as this will assist the jury in understanding the standard of care in the trucking industry, an area with which they may not be familiar. Mr. Grill may not offer his interpretation of these regulations or expound on what they may require beyond what they state on their face. Plaintiff may examine Mr. Grate about his knowledge of those FMCSRs and question him about his application of that knowledge on the date of the incident on the Malburg Farm.

 

*5 That the FMCSRs may be relevant and admissible on the issue of the standard of care does not mean that Mr. Grill can express to the jury the ultimate legal conclusion that Mr. Grate was negligent in violating those regulations. See Torres v. County of Oakland, 758 F.2d 147, 150–51 (6th Cir.1985) (noting that expert testimony is not objectionable simply because it touches on the ultimate issue to be decided, but expert cannot express his opinion in legal terms that have special significance under the law); Berry v. City of Detroit, 25. F.3d 1342, 1353–54 (6th Cir.1994) (noting that while expert’s opinion may embrace an ultimate issue to be decided in the case, the issue must be factual, not legal, and concluding that expert could opine that certain conduct was lax and that such conduct could have certain results but could not opine that the conduct amounted to deliberate indifference). See also Nicholson v. McCabe, No. 02–1107, 2003 WL 25676476, at *1 n. 2 (N.D.Ala. July 18, 2003) (precluding expert testimony that defendant “violated” the FMCSRs but finding the FMCSRs themselves admissible safety standards relevant to the standard of care in the industry); Rolick v. Collins Pine Co., 975 F.2d 1009, 1013–14 (3d Cir.1992) (finding it was error to exclude OSHA regulations which were relevant to show industry standard of care); McGarity v. FM Carriers, Inc., No. CV410–130, 2012 WL 1028593, at *5 (S.D.Ga. March 26, 2012) (permitting plaintiff’s expert to testify regarding the FMCSRs).FN1

 

FN1. The two cases relied upon by Defendants are (1) not controlling and (2) not persuasive in any event. In Chesler v. Trinity Ind., Inc., No. 99C3234, 2002 WL 1822918 (N.D.Ill. Aug.8, 2002), the court held that a truck driver witness “may not testify as to the Federal Motor Carrier Safety Regulations or to her opinion as to whether Beaty violated any of those regulations.” Id. at *6. (ECF No. 43, Defs.’ Mot. at 8.) The court gave no further explanation for its ruling, which may have been based on the witnesses’ qualifications or any one of a number of other bases. The court did not opine as to the relevance of the FMCSRs generally on the standard of care. In Reagan v. McCoy, No. 10–cv–03016, 2011 U.S.Dist. LEXIS 79240 (W.D.Ark. July 20, 2011), the court precluded “any statement to the effect that Roger Reagan failed to comply with the Federal Motor Carrier Safety Regulations.” Id. at *2–3. No further context is given for this ruling in Reagan and thus the case is unhelpful as well as unpublished and not binding.

 

Defendants make the same motion with regard to the Commercial Drivers License (“CDL”) Manual, which Grill also relies on for portions of his opinion and the Court reaches the same conclusion, based upon similar reasoning. The case on which Defendants’ rely to support their argument for exclusion of any mention of the CDL Manual, in addition to being unpublished, is inapt. In Holmes v. Bauer, No. 235573, 2003 WL 211088469 (Mich.Ct.App. May 15, 2003) (unpublished), the court held that the CDL Manual did not “contain[ ] enforceable rules or regulations, the violation of which constitutes evidence of negligence.” Id. at *2. As discussed supra, the Court does not intend to permit Mr. Grill to opine that a violation of any regulation or rule amounts to negligence per se. Importantly, the court in Holmes did not exclude reference to the CDL Manual altogether, holding that the content of the Manual could be used for purposes of impeachment and that the defendant was “free to reference the content of the manual and inquire about specific manual guidelines” on cross-examination. Id. at *3.

 

Plaintiff will be precluded from suggesting that Grate was not qualified to obtain his CDL but will be free to establish the knowledge that he was expected to possess, as defined by both the FMCSRs and the CDL Manual, while operating his commercial vehicle. Accordingly, the Court DENIES Defendants’ motion to exclude Mr. Grill’s 1st and 2nd opinions and DENIES Defendants’ Motion to Preclude Plaintiff From Introducing Evidence Related to the FMCSRs (ECF No. 43).

 

2. Grill’s third opinion—that the Defendants knew that the procedure they were using for backing their truck at the time of this incident was dangerous and likely to cause harm to others.

*6 Mr. Grill cannot speculate regarding the state of mind of any person—he cannot opine about what anyone “knew” or “believed.” He can, however, rely on and cite to their deposition testimony as having formed the basis for his own opinions but he must bring something to bear on the subject from his point of expertise-he cannot simply summarize testimony. Grill can observe what any of the witnesses said in their depositions if he relied on their testimony in reaching his conclusions but cannot interpret that testimony to conclude that therefore they possessed a certain state of mind. Although Grill cannot testify regarding their state of mind, if based on his expertise, he is “entitled to opine about the reasonableness of [a] witness’s actions in light of their admitted testimony.” Finn v. Warren County, Ky., No. 10–cv–00016, 2012 WL 3067376, at *4 (W.D.Ky. July 27, 2012).

 

3. Grill’s fourth opinion—that Mr. Grate should not have backed his truck without having a spotter to keep him informed about the area directly behind the truck as he is backing up.

Mr. Grill’s fourth opinion is that Mr. Grate should have insisted on a spotter and should have arranged more detailed hand signals with Mr. Malburg before beginning the final backing process. Deciding this issue requires first deciding two related motions: (a) Defendants’ Motion in Limine to Exclude Reference to Any Failure to Have Agreed Hand Signals (ECF No. 61); and (b) Defendants’ Motion in Limine to Preclude Any Reference to Defendant Kagy Farms’ Failure to Adopt a Policy Regarding Spotters (ECF No. 54).

 

a. Defendants’ Motion in Limine to Preclude any Reference to Failure to Have Agreed Hand Signals (ECF No. 61). In this motion, Defendants argue that Plaintiff should not be permitted to introduce expert testimony expressing the opinion that Mr. Grate and Mr. Malburg did not have agreed upon hand signals, and that Mr. Grate was negligent for failing to adequately arrange these signals before proceeding with the backing process. Other than reiterating to the jury what Grate stated in his deposition about his conversation with Randy Malburg, i.e. that Grate should “watch for [Malburg’s] hand to signal [Grate] back,” Grate Dep. 57, Grill has no experience that renders him any more competent to determine what was agreed upon than the jury. Under the facts presented, there is no expert testimony required to interpret the meaning of Mr. Malburg’s hand disappearing from Mr. Grate’s view. To the extent that the applicable standard of care requires the use of hand signals, this is a fair subject for Mr. Grill’s testimony. As to the nature of the conversation between Mr. Grate and Mr. Malburg regarding the use of hand signals that day, Mr. Grill was not a party to those conversations and has no basis to speculate on those conversations beyond what Mr. Grate testifies was said between them.

 

b. Defendants’ Motion to Exclude Reference to Kagy Failing to Have a Spotter Policy. (ECF No. 54.) As to Kagy’s failure to have a particular “spotter policy” in place, no evidence has been proposed that would support the opinion that the standard of care required that Kagy have a defined “spotter policy” to which its drivers were required to adhere. Mr. Grill will be permitted to testify regarding the FMCSRs and the CDL Manual content regarding backing safety procedures and as to what Mr. Grate was expected to know about backing safety procedures based on those regulations. He can give his opinion, if supported by the evidence ultimately admitted as to the standard of care, that Mr. Grate should have used a third person spotter if one was available to him but he cannot state that it would have been reasonable to have insisted that Mr. Malburg’s brother stay and act as a spotter. The jury is just as capable as Mr. Grill of reaching or rejecting this conclusion. Grill will not be precluded from giving his opinion based on his experience and knowledge of the industry standards, and applying those to the facts of this case, that when Mr. Malburg withdrew his hand from Mr. Grate’s sight, he ceased acting as a spotter. Defendants will be able to cross-examine Mr. Grill on the sufficiency of having enlisted Randy Malburg himself to act as a spotter.

 

4. Mr. Grill’s fifth opinion—that Defendants should have loaded the trailer in a manner that would not have required Randy Malburg to be standing in the chute, out of sight, behind the trailer while backing.

*7 The Court GRANTS Defendants’ motion to exclude this portion of Mr. Grill’s testimony for the reasons discussed infra at section IIIC. In any event, Mr. Grill has no special expertise in the loading of livestock trucks that qualifies him to give an expert opinion on this matter. Several fact witnesses possess greater familiarity with the trailer and the chute on the Malburg Farm and have testified about the feasability of having loaded the trailer in a manner that would not have required Mr. Malburg to be up in the chute. Mr. Grill brings no special expertise to this issue and his opinion that the trailer should have been loaded differently will be excluded.

 

B. Defendants’ Motion in Limine to Exclude Certain Testimony of Plaintiff’s Expert Thomas Green (ECF No. 29) and Defendants’ Motion in Limine to Preclude Plaintiff’s Exhibit 115 (ECF No. 51).

Defendants concede that Mr. Green is qualified as an expert in accident reconstruction but object to his opinions 2, 3, 4–7 and 10. The Court DENIES the motion as to opinions 2 and 3 which merely summarize the background testimony on which Green relies in forming his opinion regarding what Mr. Grate could see in his side view mirror and his opinion that the design of the chute required Mr. Malburg to open the door of the trailer when the trailer was very close to the chute.

 

Defendants also seek to preclude Mr. Green’s opinions 4–6 that discuss certain trucking safety practices and procedures. In connection with this motion, the Defendants also seek to preclude Plaintiff from introducing proposed Exhibit 115 (“Vehicle Backing Policy). Defendants argue that Plaintiff never disclosed this “Vehicle Backing Policy,” which is actually comprised of vehicle backing policies that are excerpted from two different sources: (1) The Keller Tractor–Trailer Driving Manual and (2) The Tractor Trailer Driver Handbook by Alice Adams. (ECF No. 57, Pl.’s Resp. Exs. A, B.) First, Defendants argue that neither of these sources was identified by either of Plaintiff’s experts, Grill or Green, in their expert reports. In fact, Green’s report lists both as having been reviewed to assist in his analysis of the accident. (ECF No. 51, Defs.’ Mot. to Exclude 115, Ex. C, July 19, 2012 Report of Thomas E. Green, p. 5, ¶ 10.) Additionally, Defendants examined Green at his deposition specifically about his review of and reliance on the Keller and Adams materials to support his opinions. (Defs.’ Mot. to Exclude 115, Ex. E, Dec. 7, 2012 Deposition of Thomas E. Green at 59–62.)

 

The parties entered into a stipulation on May 6, 2014 that “learned treatises, which includes truck driving manuals, described in the Amended Joint Final Pretrial Order,” shall not be admitted into evidence. (ECF No. 70 ¶ 3.) The Stipulation then provides that “any use of learned treatises shall comply with the requirements of FRE 803(18).” Id. Fed.R.Evid. 803(18) excepts from the hearsay rule a statement contained in a learned treatise if the statement is relied on by the expert on direct or brought to his attention on cross examination and the publication is reliable. Rule 803(18) further provides that the statement may be read into evidence but not received as an exhibit. The parties indicated to the Court at the hearing on the motions in limine that they have agreed that, if the Court permits Mr. Green to testify concerning trucking policies and procedures, the Keller and Adams materials may be introduced through Mr. Green and Mr. Green will be permitted to testify concerning the contents of those materials, but the materials themselves will not be marked as an exhibit or presented to the jury.

 

*8 When asked by Defendant’s counsel at his deposition to identify his understanding of what he was retained to do in this case, Mr. Green identified two tasks: 1) to investigate the collision and provide opinions about how the collision occurred (“accident reconstruction”) and 2) to comment on the actions of Mr. Grate in terms of how he backed his trailer (“trucking policies and procedures”). (Green Dep. 13–14.) Defendants do not question Mr. Green’s qualifications to render opinions in this action on the subject of accident reconstruction. Defendants do argue, however, that he is not qualified to testify concerning trucking practices and procedures, despite the fact that nearly 24 pages of Mr. Green’s deposition is devoted to examining him on his background and experience related to analyzing truck driver actions and trucking practices and procedures. (Green Dep. 14–28, 59–69.) The Court concludes that although Mr. Green may not be the most highly qualified and knowledgeable individual on the subject of trucking policies and procedures, his experience and knowledge is sufficient to render his proffered testimony on the subject helpful to the jury. Dilts v. United Grp. Servs., LLC, 500 F. App’x 440, 446 (6th Cir.2012) (“An expert’s lack of experience in a particular subject matter does not render him unqualified so long as his general knowledge in the field can assist the trier of fact.”). Plaintiff need only put forth an expert who meets the “minimal qualifications” requirement of Rule 702, “not one who could teach a graduate seminar on the subject.” Burgett v. Troy–Bilt LLC, ––– F. App’x ––––, 2014 WL 4290109, at *5 (6th Cir. Sept.2, 2014).

 

Mr. Green has a degree in biomechanical engineering and much of his experience and knowledge relates to the mechanical aspects of reconstructing vehicle collisions. However, in the course of his training and experience, he has also acquired a significant amount knowledge specifically regarding trucking practices and procedures and has testified on multiple occasions on the subject of truck driver actions in the course of reconstructing accidents. To summarize, his training and experience includes the following:

 

• Testimony relating to truck driver conduct in at least six actions (Green Dep. 16–19);

 

• Week-long intensive tractor-trailer training course, which included demonstrating skill at backing a tractor-trailer to a simulated loading dock, at the conclusion of which Green received his CDL (Green Dep. 21–22, 28–29);

 

• DOT safety compliance seminar (several day course) that dealt specifically with the FMCSRs and the application of the FMCSRs to tractor-trailer drivers (Green Dep. 24–25);

 

• Successful completion of the written test to receive a CDL permit, which required knowledge of the CDL requirements and the FMCSRs (Green Dep. 26–27);

 

• Commercial Vehicle Accidents Course (week long), about 25% if which was devoted to talking about the FMCSRs (Green Dep. 27);

 

*9 • Study of several tractor-trailer driving training manuals and CDL Manuals in preparation for obtaining his CDL (Green Dep. 59).

 

Each of these was listed on Green’s CV and Defendants examined Green on these credentials at length in his deposition.

 

While Green may not have the wealth of experience that Grill brings to bear on this action, his training and experience on the subject of truck driver safety procedures is sufficient to render him qualified to offer the limited opinions he has proffered and to discuss the materials on which he relied in reaching those conclusions, including the Keller and Adams materials presented in Exhibit 115. “[R]ejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal, 527 F.3d at 530. The engine of cross-examination will provide Defendants the opportunity to test Mr. Green on his opinions on this subject and the jury will give his testimony the weight it deems it deserves after hearing all of the evidence. Accordingly, the Court DENIES Defendants’ motion to exclude Mr. Green’s opinions 4–6 and DENIES Defendants’ motion to exclude Exhibit 115. Exhibit 115 may be introduced through Mr. Green but will not be marked as an exhibit or given to the jury. For reasons discussed infra at section IIIC, the Court will exclude Mr. Green’s 7th opinion that the trailer could have been loaded with the bottom side pen empty so that Mr. Malburg could have acted as a spotter from the ground. In any event, as Plaintiff’s counsel conceded at the hearing on the motions in limine, Mr. Green has little to add to the fact witness testimony on this issue based upon his area of expertise.

 

Finally, with regard to Green’s 10th opinion that the sun may have been a factor, the parties submitted supplemental briefing on this issue that demonstrates that Green did in fact indicate that he was provided the deposition of Jeffrey White, the first responder to the scene of the accident, who testified that Mr. Grate expressed to him that he couldn’t see in his mirror because the sun was in his eyes. (Green Rep. 1, ¶ 18; Pl.’s Supp. Br. Ex. 1, April 9, 2012 Deposition of Jeffrey White.) Although Mr. Green does not specifically mention Mr. White’s testimony in the text of his report, he does list the White deposition as information he was “provided” to assist in his analysis. Mr. Green offers the opinion, based upon his experience as an accident reconstructionist, that if the sun was blocking his vision, Mr. Grate should have stopped his truck immediately. Mr. White’s testimony need not be independently admissible for the truth of the matter asserted in order for Mr. Green to testify to his statements. If the testimony was reviewed by Green and formed the basis for his opinions, Mr. Green is permitted to testify about those facts to explain how he came to his opinion. Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728–29 (6th Cir.1994). If the evidence is not independently admissible, a limiting instruction to the jury that the testimony is to be considered “solely as a basis for the expert’s testimony and not as substantive evidence,” may be appropriate. Id. at 729. Because this issue was not briefed before the hearing, the Court will hold off ruling on this motion until Mr. Green is examined at trial to see if in fact he did rely on Mr. White’s testimony in reaching his opinions and whether or not Mr. White’s testimony as to what Mr. Grate said to him on the day of the incident would be independently admissible under some other rule of evidence.

 

C. Defendants’ Motion to Preclude Evidence Regarding Negligent Loading of the Trailer (ECF No. 53)

*10 Defendants argue that Plaintiff should be precluded from arguing that Defendants should have loaded the truck differently, leaving the bottom pen, which marries with the Malburg chute, empty of pigs when loading the feeder pigs for delivery to the Malburg farm. Defendants argue that this theory is based on pure speculation and should be excluded under Fed.R.Evid. 402, relying on the principles of causation set forth in Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475 (1994).

 

Defendants assert in their motion that “Kagy Farms neither loaded the trailer nor was responsible for loading the trailer.” Defs.’ Mot. 1, 4, 9. In fact, however, Mr. Grate, Kagy’s employee, testified that he did directly assist in the loading of the pigs onto his truck for delivery to the Malburg farm on the occasion of the accident in this case. Grate Dep. 36–37. Contrary to Defendants’ suggestion, he did not just pull his truck up and passively allow the pigs to be loaded on his trailer. Mr. Grate also testified that the truck was not full that day-that the truck can hold approximately 500 feeder pigs and he estimated that there were fewer than 300 feeder pigs on the truck that day. Grate Dep. 40–41. In response to the question whether on a delivery to a chute configured like the Malburg’s it would have been possible to leave the driver’s side rear pen empty, Mr. Grate responded: “You could of.” Grate Dep. 41. Christopher Ott also testified that, assuming space enough on the truck to spread the pigs out for safety and comfort reasons, it would be possible to leave the pen on the side lower level empty so that you could back up to the chute on the Malburg farm without fear of the pigs escaping and thus without the necessity of having someone in the chute. Ott Dep. 25–26.

 

The inference however from the fact that it could have been loaded differently to the conclusion that Mr. Grate should have insisted on it that day requires too much speculation to permit this theory to be presented to the jury. The evidence demonstrates that Kagy had not delivered pigs to the Malburg farm for several months prior to the delivery the day of the accident. There is also evidence that it had been suggested to Randy Malburg that he modify the chute to allow for a more standard delivery. There is no evidence that Mr. Grate knew how he would find the Malburg chute that day or that he knew at the time that the pigs were loaded onto the trailer that Mr. Malburg would be alone that day and would have to climb up in the chute and act as his own spotter on that particular day. Because Plaintiffs have failed to establish that the standard of care required Mr. Grate to load the trailer that day with the bottom pen empty, testimony regarding this issue is not relevant and, even if marginally relevant, would have a tendency to mislead and confuse the jury. Accordingly, the Court GRANTS Defendants’ Motion to Preclude Any Evidence Concerning Negligent Loading of the Trailer (ECF No. 53).

 

D. Defendants’ Motion to Preclude Testimony By Plaintiff’s Expert Bader Cassin MD (ECF No. 42) and Defendants’ Motion to Strike Plaintiff’s Supplemental Expert Disclosures (ECF No. 60)

*11 Defendants move to exclude the testimony of Plaintiff’s autopsy expert, Bader Cassin, pursuant to Fed.R.Civ.P. 26(a)(2), because Plaintiff never disclosed Cassin as an expert witness and never filed his expert report. Plaintiff responds that Cassin is a hybrid expert, that he is testifying as a fact witness relative to his autopsy on Randy Malburg and his conclusions about the body and sources of injury and bleeding based upon his examination of the body. (Cassin Dep. 40–41.) The subject of Cassin’s testimonial role was discussed at length at Cassin’s deposition on August 9, 2012, and at that time Plaintiff’s counsel explained that Cassin was testifying as a hybrid witness, testifying only “as a forensic pathologist.” Id. Defendants’ counsel examined Cassin at length about his possible opinions and conclusions based on his autopsy of the decedent.

 

On March 11, 2014, Plaintiff filed supplemental expert disclosures with respect to Dr. Cassin, stating that his opinions are those set forth in his deposition. Defendants now move to strike Plaintiff’s supplemental disclosures. (ECF No. 60, Defs.’ Mot. to Strike Ex. H.) Plaintiff represents that Cassin will not testify to any opinion or fact beyond those set forth in his deposition. Importantly, Defendants’ expert Jennifer Yaek, reviewed Cassin’s deposition and discusses his conclusions at length in her expert report.

 

Defendants have no claim of surprise as to the content of Cassin’s opinions but Defendants do have a good argument that some of his opinions go beyond the scope of his role as a forensic pathologist and, to this extent, should be excluded. See Hinkle v. Ford Motor Co., No. 11–24–DCR, 2013 WL 1992834 (W.D.Ky. May 13, 2013) (finding that a treating physician need not file an expert report but will be limited to testifying within the scope of his diagnosis and treatment). To the extent that it was not within the scope of Cassin’s role as the forensic pathologist who performed Plaintiff’s autopsy to determine the facts to which he testified in his deposition or the opinions he expressed, he is precluded from offering such testimony at trial. He is precluded from amplifying his autopsy conclusions based upon materials, such as photographs of the scene that he examined after he performed his autopsy and reached his professional conclusions. Because Cassin was not identified as an expert and never filed an expert report, to the extent his opinions were not integral to determining the cause and manner of death, he is precluded from offering them. Fielden v. CSX Transp., Inc., 482 F.3d 866, 870–71 (6th Cir.2007) (holding that treating physicians need not file expert reports when their testimony is limited to “core issues” pertaining to treatment). Cassin will be limited to testifying regarding the contents of his autopsy report.

 

E. Defendants’ Motion to Preclude Any Evidence Concerning the Parties’ Roles Which is Contrary to the “Contract”

In this motion, Defendants argue that there was an oral contract, or a contract established through a course of conduct, between Kagy and Randy Malburg that dictated that Randy Malburg was in charge of the operation of unloading the pigs the moment that Grate arrived at the Malburg farm. Defendants assert that “Grate’s role pursuant to the contract was to deliver pigs according to the procedure directed by Mr. Malburg.” (ECF No. 52 at 9.) They suggest that the moment Grate arrived at the Malburg farm, he became a loaned servant of Malburg’s and was under Malburg’s complete control. Defendants argue that Grate was required to follow Malburg’s instructions at all costs and had no ability to make independent decisions, including regarding how he drove his truck, once he drove onto the Malburg farm.

 

*12 There is a contract of sorts (not written) between Kagy and non-party Archbold Elevators. The Court rejects Defendants’ suggestion that this “contract” somehow defined Mr. Grate’s obligations and duties on the Malburg farm and dictated that he follow Mr. Malburg’s directions when delivering pigs to the Malburg farm. Defendants argue that even if this “contract” is not controlling, there was a course of conduct that established the same roles and duties of the parties and precluded Mr. Grate from doing anything differently on the date of the accident. “The ‘role’ of the Kagy Farms’ driver was to follow the directions given by Mr. Malburg.” (ECF No. 52 at 11.)

 

The loaned servant doctrine that Defendants suggest applies states that if Mr. Grate was still doing the work of his original master, i.e. Kagy Farms, he is not the loaned servant of Mr. Malburg. Rockwell v. Grand Trunk Western Ry. Co., 264 Mich. 626, 634, 250 N.W. 515 (1933). Just because an employee is following the directions of another master does not make him that person’s servant if he is still acting within the employ of his original master.   Standard Oil Co. v. Odgen & Moffett Co., 242 F.2d 287 (6th Cir.1957). There is no question that Mr. Grate was still actively operating the Kagy Farms truck at the time of this accident. The unloading of goods had not even begun and there is no place for application of the loaned servant doctrine here. The Court DENIES this motion. Defendants will be precluded from arguing (1) that there was an oral contract that determined the parties’ roles and obligations that prevented Mr. Grate from acting independently or (2) that Mr. Grate was a loaned servant to Mr. Malburg at the time of the accident.

 

IV. CONCLUSION

For reasons stated above, the Court:

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Exclude Certain Testimony of Plaintiff’s Expert Lew Grill (ECF No. 28);

 

DENIES Defendants’ Motion in Limine to Preclude Plaintiff From Introducing Evidence Relating to the Federal Motor Carrier Regulations (ECF No. 43);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude Any Reference to Failure to Have Agreed Upon Hand Signals (ECF No. 61);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude Any Reference to Defendant Kagy Farm’s Failure to Adopt a Policy Regarding Spotters (ECF No. 54);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Exclude Certain Testimony of Plaintiff’s Expert Thomas Green (ECF No. 29);

 

DENIES Defendants’ Motion in Limine to Exclude Plaintiff’s Exhibit 115 (ECF No. 51);

 

GRANTS Defendants’ Motion in Limine to Preclude Any Evidence Concerning Negligent Loading of the Trailer by Defendant Kagy Farms (ECF No. 53);

 

DENIES Defendants’ Motion to Strike Plaintiff’s Supplemental Expert Disclosures (ECF No. 60);

 

GRANTS IN PART AND DENIES IN PART Defendants’ Motion in Limine to Preclude any Expert Testimony by Bader J. Cassin, M.D. (ECF No. 42); and

 

*13 DENIES Defendants’ Motion in Limine to Preclude any Evidence Concerning the Parties’ Roles Which is Contrary to the Contract (ECF No. 52).

 

IT IS SO ORDERED.