2021 WL 4150206

United States District Court, E.D. Arkansas,
DELTA DIVISION.
ELIZABETH CROUCH PLAINTIFF
v.
MASTER WOODCRAFT CABINETRY, LLC, et al. DEFENDANT
Case No. 2:20-cv-00078 KGB
|
Filed 09/13/2021

ORDER
Kristine G. Baker United States District Judge
*1 Before the Court are defendants Master Woodcraft Cabinetry, LLC (“MWC”) and Walter Earl Hicks’ (jointly “defendants”) motion in limine to exclude opinions of Larry Cole, motion in limine to exclude opinions of Ralph Scott, Jr., Ph.D., and motion for ruling to declare Arkansas Code Annotated § 16-64-122(d) inapplicable or, in the alternative, unconstitutional (Dkt. Nos. 14, 16, 20).

I. Motions In Limine To Exclude Expert Opinion

A. Legal Standard
Federal Rule of Evidence 702 provides that:
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. “Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted).

In determining whether expert testimony should be admitted, the district court must decide if the expert’s testimony and methodology are reliable, relevant, and can be applied reasonably to the facts of the case. David E. Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012); Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010). Under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the district court must conduct this initial inquiry as part of its gatekeeping function. Watson, 668 F.3d at 1015. The Court must be mindful that “Daubert does not require proof with certainty.” Sorensen By & Through Dunbar v. Shaklee Corp., 31 F.3d 638, 650 (8th Cir. 1994). Rather, it requires that expert testimony be reliable and relevant. Id. “The inquiry as to the reliability and relevance of the testimony is a flexible one designed to ‘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.’ ” Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

The proponent of the expert testimony has the burden of establishing by a preponderance of the evidence the admissibility of the expert’s testimony. Id. at 757-58. To satisfy the reliability requirement for admission of expert testimony, “the party offering the expert testimony must show by a preponderance of the evidence that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid.” Barrett, 606 F.3d at 980 (internal quotation marks and citation omitted). To satisfy the relevance requirement for the admission of expert testimony, “the proponent must show that the expert’s reasoning or methodology was applied properly to the facts at issue.” Id. (citing Marmo, 457 F.3d at 757).

*2 The Court examines the following four non-exclusive factors when determining the reliability of an expert’s opinion: (1) “whether it can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error”; and (4) “[the method’s] ‘general acceptance.’ ” Presley v. Lakewood Eng’g & Mfg. Co., 553 F.3d 638, 643 (8th Cir. 2009) (quoting Daubert, 509 U.S. at 593-94). These factors are not exhaustive or limiting, and the Court must use the factors as it deems fit to tailor an examination of the reliability of expert testimony to the facts of each case. Id. In addition, the Court can weigh whether the expertise was developed for litigation or naturally flowed from the expert’s research; whether the proposed expert ruled out other alternative explanations; and whether the proposed expert sufficiently connected the proposed testimony with the facts of the case. Id. While weighing these factors, the Court must continue to function as a gatekeeper who separates expert opinion evidence based on good grounds from subjective speculation that masquerades as scientific knowledge. Id.

The Court recognizes that experts may, at times speculate, “but too much [speculation] is fatal to admission.” Grp. Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003) (citations omitted). Thus, speculative expert testimony with no basis in the evidence is inadmissible. Weisgram v. Marley Co., 169 F.3d 514, 518-19 (8th Cir. 1999), aff’d, 528 U.S. 440 (2000) (reversing a district court for allowing a witness who was qualified as a fire investigator “to speculate before the jury as to the cause of the fire by relying on inferences that have absolutely no record support”).

Likewise, expert opinion is inadmissible if its sole basis is studies that do not provide a sufficient foundation for the opinion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 145 (1997). When studies form a basis for an expert’s opinion, then, the Court must determine if there is an adequate basis for the experts’ opinion and whether there is “too great an analytical gap between the data and the opinion proffered.” See id. at 146.

“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (internal citation omitted). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Id. at 929-30 (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 974 (8th Cir. 1996)).

B. Defendants’ Motion To Exclude Expert Testimony Of Larry Cole
Defendants move to exclude Mr. Cole’s expert testimony as a whole as inadmissible under Federal Rules of Evidence 403, 702, and 703, arguing that his written reports are merely conclusory statements and personal opinions (Dkt. No. 14, ¶ 1).1 Ms. Crouch opposes the motion, arguing that Mr. Cole’s testimony is sufficiently reliable so as to be admissible (Dkt. No. 28, at 7).

1. Mr. Cole’s Opinions And Testimony
In his report, Mr. Cole states that he has “36 years of experience in motor fleet transportation, teaching Federal Motor Carrier Safety Regulations and trucking industry standards.” (Dkt. No. 14-1, at 1). Mr. Cole has served as Vice President of Safety and Risk Management and has been responsible for safety, compliance, and driver supervision and hiring (Id.). In his positions, he has been required to know Federal Motor Carrier Safety Regulations, State Transportation Codes (rules of the road), and many other regulations and standards (Id.). His responsibilities have included, but were not limited to, management and supervision to comply with commercial motor vehicle inspection, maintenance, repair, driver supervision, driver hiring, and driver training to comply with Federal Motor Carrier and state regulations (Id.). Mr. Cole is certified as a Smith System Defensive Driver Instructor, sleep deprivation/fatigue instructor, as well as other certifications relating to motor carrier operations (Id.). Mr. Cole is a Defensive Driving Instructor for the State of Arkansas for CDL and non-CDL vehicle operators (Id.).

*3 Mr. Cole’s report indicates that, in preparing the report, he reviewed: Federal Motor Carrier Safety Regulations, Texas Commercial Motor Vehicle Drivers Handbook, Arkansas State Police Crash Report 481019066F, Arkansas Highway Police Commercial Vehicle Crash Inspection Report, Photographs, Deposition of Randy Owens – Senior Vice President of MWC, Deposition of Earl Hicks – MWC Driver, Commercial Truck and Bus Safety – The Role of Safety Culture in Preventing Commercial Motor Vehicle Crashes, and USDOT Federal Highway Administration – Freight Management and Operations (Id., at 12).

In his opinions, Mr. Cole asserts that MWC has a duty to have a written driver safety program (Id.). He comments that a prudent motor carrier would have a written driver safety program (Id.). Mr. Cole also asserts that, under the Federal Motor Carrier Safety Regulations, the trailer involved in the accident was required to have a current Department of Transportation (“DOT”) inspection (Id.). Mr. Cole further asserts that it “defies trucking Safety logic” that MWC’s Senior Vice President did not know why the trailer involved in the accident did not have a current DOT inspection (Id.).

Mr. Cole asserts that MWC had a “duty to promote a positive safety culture with the company but most especially with their commercial motor vehicle drivers.” (Id.). Mr. Cole states that “[t]he term Safety Culture in the trucking industry is not a ‘Larry Cole’ idea.” (Id., at 13). Mr. Cole asserts that he has “evaluated over one hundred trucking company’s [sic] safety programs as a consultant.” (Id.). However, Mr. Cole acknowledges that he has not evaluated MWC’s safety program (Id.). After reviewing of the deposition of MWC’s Vice President of Safety and Dispatch, Mr. Cole concludes that, in his opinion, “MWC’s safety program was not showing care for its drivers or the driving public.” (Id.).

With regard to Mr. Hicks, Mr. Cole opines that Mr. Hicks had a duty to “know that he should not stop upon the traveled portion of a highway or shoulder of a highway for any cause other than necessary stops” (Id., at 14). Mr. Cole states that it is more likely than not that Mr. Hicks could have placed three bidirectional triangles behind the tractor trailer rig in less than five minutes, per Federal Motor Carrier Safety Regulation 392.22 (Id.). Mr. Cole also states that Mr. Hicks had a duty to use his available GPS to find a truck stop near him (Id.). Mr. Cole also states that Mr. Hicks had a duty to know that parking on the side of the interstate is a hazard to the driving public (Id., at 16).

Mr. Cole states that the trucking industry does not recognize having to urinate while operating a commercial motor vehicle to be an emergency situation (Id.).

2. Application Of Rule 702 To Mr. Cole’s Testimony
The Court will not exclude all of Mr. Cole’s testimony. Mr. Cole will not be allowed to opine on a factual matter on which the jurors are entirely capable of making a determination. See Lee v. Andersen, 616 F.3d 803, 809 (8th Cir. 2010); Westcott v. Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995). Assuming that Mr. Cole is properly qualified and that proper disclosures of his opinions have been made, Mr. Cole may testify about industry standards, statutes, regulations, and practices, based on his training, education, and experience. If he is properly qualified, Mr. Cole will be allowed to testify whether or not the events that occurred in this case were appropriate in the circumstances presented, under recognized trucking industry standards, statutes, regulations, and practices. Southern Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). Also, Mr. Cole may testify as to what routine and acceptable trucking industry practices are, based on his training and expertise. Id.

*4 As a result, the Court denies defendants’ motion in limine to exclude all of Mr. Cole’s testimony (Dkt. No. 14). If defendants wish to renew their motion as to specific opinions Mr. Cole intends to offer, they may do so, and the Court will consider specific arguments as to specific proffered opinions.

C. Defendants’ Motion To Exclude Expert Testimony Of Ralph Scott
Defendants move to exclude only certain expert testimony of Dr. Scott, an economist (Dkt. No. 16, ¶ 1). Dr. Scott has generated two slightly different reports in this case (Dkt. Nos. 16-1, 16-2). Defendants argue that, while Dr. Scott is a qualified expert in the economic field, the challenged testimony is unreliable because it is not based on the evidence of this case and is wholly speculative (Dkt. No. 16, ¶ 4). In the report included as Exhibit A to the present motion, defendants argue that the section titled “Residual Value of Life in Excess of Earning Capacity” be excluded (Dkt. No. 16-1, at 3). In the report included as Exhibit B to the present motion, defendants argue that the section titled “Loss of Life” be excluded (Dkt. No. 16-2, at 3). Ms. Crouch opposes the motion, arguing that Dr. Scott’s testimony is sufficiently reliable (Dkt. No. 30).

1. Dr. Scott’s Opinions And Testimony
In the challenged portions of his testimony, Dr. Scott states that “the present value of lifetime earnings would represent a minimum valuation of the loss of life because it focuses exclusively on productivity and ignores other aspects of the value of life.” (Dkt. No. 16-1, at 3). Dr. Scott has provided information on Mr. Crouch’s statistical life expectancy based on the Center for Disease Control publication, United States Life Tables, 2017 (Id.). Dr. Scott also includes computations in which future residual value of life figures can be reduced to present value, which he asserts is consistent with the methodology advocated by the United States Government, Office of Management and Budget in Circular A-4, September 17, 2003, in which guidelines for incorporating statistical value of life into cost/benefit analysis are established (Id.). Then, Dr. Scott proposes to offer “the value that government agencies place on the statistical value of life” by citing documents published by the United States Department of Transportation and the Environmental Protective Agency suggesting values of life (Id.).

2. Application Of Rule 702 To Dr. Scott’s Testimony
Defendants argue that Dr. Scott should be precluded from offering any opinions regarding “residual value of life” and/or “loss of life” beyond the economic loss of household services or potential earnings.

Arkansas law provides that in addition to other elements of damages, “a decedent’s estate may recover for the decedent’s loss of life as an independent element of damages.” Ark. Code Ann. § 16-62-101(b). The Arkansas Supreme Court has construed the statute to allow for damages that a decedent would have placed on her own life. Durham v. Marberry, 156 S.W.3d 242, 248 (Ark. 2004). An estate seeking loss of life damages must present some evidence that the decedent valued his life from which a jury could infer that value and on which it could base an award of damages. One Nat’l Bank v. Pope, 272 S.W.3d 98, 102 (Ark. 2008).

The court in Hannibal v. TRW Vehicle Safety Sys., Inc., Case No. 4:16-cv-00904 JLH, 2018 WL 3797500, at *2 (E.D. Ark. Aug. 9, 2018), confronted whether to permit testimony similar to that proposed by Dr. Scott from proposed expert Dr. Rebecca Summary. As the Hannibal court explained:
*5 No court applying Arkansas law has ruled as to whether expert testimony may be admitted to assist the jury in determining loss of life damages. An overwhelming majority of courts from other jurisdictions, however, have concluded that the methodology adopted by Dr. Summary does not meet the Daubert standards and may not be admitted into evidence. Smith v. Jenkins, 732 F.3d 51, 66 (1st Cir. 2013); Kurncz v. Honda North America, Inc., 166 F.R.D. 386, 388-89 (W.D. Mich. 1996). Dr. Summary explains in her report that the value of a statistical life methodology is based upon the trade-off between risk and money. It involves the assignment of monetary values to death risks based upon how much persons are willing to spend for a small reduction in the risk of death. Dr. Summary’s value here is based upon government studies used to assign values to human lives in conducting cost/benefit analyses for potential government projects. The First Circuit in Smith has explained why this is not a reliable methodology for determining the value of a human life. 732 F.3d at 66-67. In addition to being unreliable, Dr. Summary’s analysis would not assist the jury in determining what value Krista Hannibal placed on her own human life. It has nothing to do with Krista specifically. Cf. id. at 67 (“Even assuming that Dr. Smith’s formula is a reliable measure of the value of life, it was of no assistance to the jury in calculating Smith’s loss of enjoyment of life.”).
2018 WL 3797500, at *3. This Court adopts the same reasoning and, therefore, excludes Dr. Scott’s proposed testimony that would present for the jury’s “consideration the value that government agencies place on the statistical value of life,” including the documents published by the United States Department of Transportation and the Environmental Protective Agency suggesting values of life (Dkt. No. 16-1, at 3).

The Court does not understand defendants to be challenging the remainder of Dr. Scott’s proposed testimony, including but not limited to statistical life expectancy figures from the Center for Disease Control publication cited or discussions of admissible figures being reduced to present value. If defendants intend to challenge the admissibility of that proposed testimony, as well, they may file a motion with the Court clarifying their position.

II. Motion To Declare Arkansas Code Annotated § 16-64-122(d) Inapplicable, Or, In The Alternative, Unconstitutional
Defendants also move to declare Arkansas Code Annotated § 16-64-122(d) inapplicable to this case or, in the alternative, unconstitutional (Dkt. No. 20). Arkansas Code Annotated § 16-64-122(d) states:
In cases where the issue of comparative fault is submitted to the jury by interrogatory, counsel for the parties shall be permitted to argue to the jury the effect of an answer to any interrogatory.
Ms. Crouch argues in response that the Court does not need to rule on this issue at this time because it is not yet ripe (Dkt. No 33, ¶ 1). It is Ms. Crouch’s position that, if the Court is to address this issue, it should be at the time this case is being submitted to a jury and the jury instructions are being prepared (Id.). Further, she represents that she “does not anticipate nor plan to bring forth a Fed. R. Civ. Pro. 49 argument as referenced by Defendants in their motion so therefore does not see a need for ruling on the constitutionality of the statute.” (Id., ¶ 2). She also maintains that she believes this case can be submitted on a general verdict form but that, even if special interrogatories are required, she “does not anticipate [she] will argue the effect of a numeric value to the fault of each.” (Id., ¶ 3).

Based upon representations from plaintiffs and for good cause shown, at this time, the Court denies without prejudice the motion (Dkt. No. 20). Defendants may renew their motion, if necessary, at any point during the trial including but not limited to when the parties and the Court address jury instructions and appropriate closing argument. Having based this decision in part on representations from plaintiffs, the Court orders that plaintiffs, their counsel, and their witnesses are instructed by the Court in limine to avoid offering any testimony, evidence, or argument on this issue without first approaching the Court to determine if defendants renew their motion and, if so, to receive a ruling from the Court.

*6 It is so ordered this 13th day of September, 2021.

All Citations
Slip Copy, 2021 WL 4150206

Footnotes

1
Defendants also argue that, to the extent Mr. Cole’s testimony is directed toward MWC, it is irrelevant because Ms. Crouch has no direct claims against MWC (Dkt. No. 14, ¶ 1). However, the Court considered and denied defendants’ motion for summary judgment on these grounds (Dkt. No. 42). Therefore, the Court will not reanalyze those arguments here. The direct claims against MWC remain; the Court overrules the relevance objection.

2021 WL 4155583

United States District Court, E.D. Arkansas,
DELTA DIVISION.
ELIZABETH CROUCH PLAINTIFF
v.
MASTER WOODCRAFT CABINETRY, LLC, et al. DEFENDANT
Case No. 2:20-cv-00078 KGB
|
Filed 09/13/2021

OPINION AND ORDER
Kristine G. Baker United States District Judge
*1 Before the Court are defendants Master Woodcraft Cabinetry, LLC (“MWC”), and Walter Earl Hicks’ (jointly “defendants”) motion for partial summary judgment on claims against MWC and motion for partial summary judgment regarding claims of wrongful death beneficiaries under Arkansas Code Annotated § 16-62-102 (Dkt. Nos. 10, 12). For the following reasons, the Court denies defendants’ motion for partial summary judgment on claims against MWC and grants defendants’ motion for partial summary judgment regarding claims of wrongful death beneficiaries under Arkansas Code Annotated § 16-62-102.

I. Factual Background
The factual background is drawn from defendants MWC and Mr. Hicks’ statements of facts (Dkt. Nos. 18, 19, 40) and plaintiff Elizabeth Crouch’s statements of additional facts and responses to defendants’ statement of facts (Dkt. Nos. 29, 31).

Mr. Hicks was driving a semi tractor-trailer on Interstate 40 on October 31, 2019, in the course and scope of his employment with MWC when he decided to pull the rig over to the shoulder of the freeway so he could urinate in a bottle (Dkt. No. 29, ¶ 1). Mr. Hicks was less than five miles from Brinkley, Arkansas, where, Ms. Crouch argues, he could have exited the freeway, entered a truck stop, and urinated in a restroom there (Id., ¶ 2). Mr. Hicks passed numerous rest stops and truck stops where he could have stopped to urinate previously (Id.). After relieving himself, Mr. Hicks tried to resume his trip by pulling his rig back onto the freeway (Id., ¶ 3). As Mr. Hicks reached a speed of no more than 28 miles per hour, with the trailer and tractor at least partially on the freeway lane of travel, decedent Thomas Daniel Crouch collided with the rear of the trailer (Id.).

As a result of injuries sustained in the accident, Mr. Crouch died on October 31, 2019 (Dkt. No. 18, ¶ 2; Dkt. No. 19, ¶ 2). Mr. Hicks was employed by MWC and acting in the course and scope of his employment when the accident occurred (Dkt. No. 18, ¶ 3). At the time of his death, Mr. Crouch was survived by his mother, his father, and three minor children (Dkt. No. 19, ¶ 3). Ms. Crouch argues that Mr. Crouch was also survived by an unborn child, still in utero, but past the viability point and subsequently born after Mr. Crouch’s death (Dkt. No. 31, ¶ 1).

Ms. Crouch argues that MWC set no policy for when its drivers could move to the shoulder of a highway, stop their rig, and relieve themselves, nor did any training or enforcement exist (Dkt, No. 29, ¶ 13). MWC denies these claims (Dkt. No. 40, ¶ 13). MWC’s practice was to have its drivers use bulk fuel rather than to stop at truck stops on highways to refuel their rigs (Dkt. No. 29, ¶ 14).

II. Summary Judgment Standard
Pursuant to the Federal Rules of Civil Procedure, the Court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if a reasonable jury could render its verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). Mere denials or allegations are insufficient to defeat an otherwise properly supported motion for summary judgment. See Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008); Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271-72 (8th Cir. 1992).

*2 First, the burden is on the party seeking summary judgment to demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Farver v. McCarthy, 931 F.3d 808, 811 (8th Cir. 2019). If the moving party satisfies its burden, the burden then shifts to the non-moving party to establish the presence of a genuine issue that must be determined at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 1997). The non-movant “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Matsushita, 475 U.S. at 586, 587). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

III. Analysis
A. Motion For Partial Summary Judgment On Claims Against MWC
MWC, relying on the Arkansas Supreme Court’s decision in Elrod v. G & R Construction Co., 628 S.W.2d 17 (Ark. 1982), contends that it is entitled to summary judgment on plaintiffs’ claims of independent negligence against it because it has admitted respondeat superior liability. The defendant in Elrod, like MWC here, admitted that it was liable for the negligence of its employee under a respondeat superior theory. The court dismissed plaintiff’s separate claim for negligent entrustment, noting that it was “inclined to follow the majority view which allows plaintiff to proceed on only one theory of recovery in cases where liability has been admitted as to one theory of recovery.” Id. at 19.

Though there have been no state court cases interpreting Elrod, there have been several federal cases interpreting the decision. The court in Wheeler v. Carlton, Case No. 3:06-cv-00068 GTE, 2007 WL 30261 (E.D. Ark. 2007), held that a plaintiff may not proceed against an employer trucking company for negligent hiring and retention where the trucking company admits respondeat superior liability. The court recognized an exception, however, where the plaintiff “has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee.” Id. at *12; accord Perry v. Stevens Transport, Inc., Case No. 3:11-cv-00048 JLH, 2012 WL 2805026 (E.D. Ark. July 9, 2012) (granting summary judgment on plaintiffs’ claim for punitive damages against the driver and employer trucking company and determining that, because plaintiffs could not recover punitive damages, independent claims of negligent hiring, training, supervision, monitoring, and retention against the employer trucking company were barred under Elrod and Wheeler ).

When confronted with an independent claim of negligence against the employer, the court in Regions Bank v. White, Case No. 4:06-cv-01475 JLH, 2009 WL 3148732 (E.D. Ark. 2009), determined that Elrod is inapplicable to claims of negligence relating to the employer’s policies and procedures. The court explained:
Regions alleges that Daily Express was negligent in failing to: have an adequate policy regarding the placement of triangles; adequately train its drivers regarding the placement of triangles; and have an escort vehicle available during the trip. Regions also alleges that Daily Express negligently drafted and applied its policy regarding accident procedures, and that is was negligent in maintaining White’s truck…. Regions will be allowed to proceed on its independent claims of negligence insofar as [they] do not assert negligent hiring, retention, or entrustment.
*3 Id. at *5. It should be noted that Regions did not seek punitive damages in the case, so the exception recognized in Wheeler did not apply.

The present complaint contains several allegations of negligence relating to MWC’s purported failure to maintain adequate policies and procedures (Dkt. No. 1, ¶¶ 48-50). For example, plaintiffs claim that MWC “fail[ed] to adequately train, educate, prepare, set policy or give guidance to its driver regarding safe driving practices.” (Dkt. No. 1, ¶ 48(c)). The Court determines that the rationale articulated and applied in Regions applies to these claims, and Ms. Crouch may pursue them. Having reached this conclusion, the Court declines to reach the merits of plaintiffs’ remaining arguments with respect to this motion. Therefore, based on the record evidence before the Court and drawing all reasonable inferences in Ms. Crouch’s favor, defendants’ motion for partial summary judgment on Ms. Crouch’s claims against MWC is denied.

B. Motion For Partial Summary Judgment As To Wrongful Death Claims
Defendants also move for summary judgment on certain of Ms. Crouch’s claims brought under the Arkansas Wrongful Death Act, Arkansas Code Annotated § 16-62-102, arguing that, as a matter of law, decedent Mr. Crouch’s unborn child, who was unborn at the time of the accident, should be excluded from the possible “beneficiaries” recognized under the Act. Defendants argue that, while § 16-62-102(a)(1) allows an “unborn child” to maintain a cause of action for wrongful death, the legislature has not altered § 16-62-102(d) to recognize an unborn child as a beneficiary of a wrongful death suit (Dkt. No. 13, ¶¶ 3-5). Ms. Crouch maintains that defendants’ argument incorrectly interprets the statute and does not square with statutory interpretation of other Arkansas statutes (Dkt. No. 32, at 2-3). Further, Ms. Crouch argues that, in the alternative, Mr. Crouch should be understood as acting in loco parentis for his unborn child at the time of his death.

In Arkansas, wrongful death actions are governed by Arkansas Code Annotated § 16-62-102. Subsection (a)(1) provides that:
Whenever the death of a person or an unborn child as defined in § 5-1-102 is caused by a wrongful act … and the act … would have entitled the party injured to maintain an action … if death had not ensued … the person or company or corporation that would have been liable if death had not ensued shall be liable …
Arkansas Code Annotated § 5-1-102 as referenced provides, in relevant part, as follows:
(13)(A) “Person”, “actor”, “defendant”, “he”, “she”, “her”, or “him” includes:
(i) Any natural person; and
(ii) When appropriate, an organization as defined in § 5-2-501.
(B)(i) (a) As used in §§ 5-10-101 — 5-10-105 and 5-4-604, “person” also includes an unborn child in utero at any stage of development.
(b) “Unborn child” means offspring of human beings from conception until birth.
(ii) This subdivision (13)(B) does not apply to:
(a) An act that causes the death of an unborn child in utero if the act was committed during a legal abortion to which the woman consented, including an abortion performed to remove an ectopic pregnancy or other nonviable pregnancy when the embryo is not going to develop further;
*4 (b) An act that is committed pursuant to a usual and customary standard of medical practice during diagnostic testing or therapeutic treatment;
(c) An act that is committed in the course of medical research, experimental medicine, or an act deemed necessary to save the life or preserve the health of the woman;
(d) Assisted reproduction technology activity, procedure, or treatment; or
(e) An act occurring before transfer to the uterus of the woman of an embryo created through in vitro fertilization.
(iii) Nothing in this subdivision (13)(B) shall be construed to allow the charging or conviction of a woman with any criminal offense in the death of her own unborn child in utero….
Ark. Code Ann. § 5-1-102.

Arkansas Code Annotated § 16-62-102(a)(1) was amended in 2001 to allow “a viable fetus” to maintain a cause of action for wrongful death; then, in 2013, the subsection was amended to change “viable fetus” to “unborn child.” Notably, Arkansas Code Annotated § 16-62-102(d), which lists the possible beneficiaries of a wrongful death claim, was not altered in 2001 or 2013 to include viable fetuses, unborn children, or “persons” such as would include unborn children.

Ms. Crouch argues that interpreting the statute to exclude unborn children as beneficiaries is an improper statutory interpretation because, she argues, such an interpretation does not give meaning to the intent of the statute and does not give words the same meaning throughout the statute (Dkt. No. 32, at 2). Ms. Crouch also argues that the term “child” has already been interpreted in other Arkansas statutes to include “unborn children.” Further, she argues that, regardless, Mr. Crouch was acting in loco parentis to the unborn child at issue and that the then-unborn child alternatively qualifies as a beneficiary on that basis (Id., at 2-3).

Federal courts apply state rules of statutory construction when interpreting state statutes. In re Dittmaier, 806 F.3d 987, 989 (8th Cir. 2015). In Arkansas, “[t]he cardinal rule of statutory construction is to effectuate the legislative will.” City of Benton v. Alcoa Rd. Storage, Inc., 513 S.W.3d 259, 261 (Ark. 2017). “In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.” Id. “When the language of the statute is plain and unambiguous, conveying a clear and definite meaning, we need not resort to the rules of statutory construction.” Id.

The State of Arkansas has held that, while “the wrongful-death statute is a remedial statute that should be interpreted liberally with a view toward accomplishing its purposes,” “the action is one that is of statutory creation, and is in derogation of or at variance with the common law, and therefore, [is to be construed] strictly… Nothing is to be taken as intended that is not clearly expressed.” Rhuland v. Fahr, 155 S.W.3d 2, 6–7 (Ark. 2004).

The Arkansas Supreme Court has acknowledged that, when used in the wrongful death statute, the word “person” is intended to include a viable fetus. See Aka v. Jefferson Hosp. Ass’n, Inc., 42 S.W.3d 508 (Ark. 2001). Here, as both parties acknowledge, the wrongful death statute includes as beneficiaries “[t]he surviving spouse, children, father, mother, brothers, and sisters of the deceased person.” Ark. Code Ann. § 16-62-102(d). The Arkansas Supreme Court, relying upon the term “surviving,” also has determined that “children who are not living at the time of the deceased person’s death are not among the statutory beneficiaries….” Babb v. Matlock, 9 S.W.3d 508, 509-10 (Ark. 2000). Notably, the statute in its description of beneficiaries has not been amended to included viable fetuses, unborn children, or “persons” such as would include unborn children. The Court presumes that the Arkansas legislature’s statutory language is intentional and, therefore, that the Arkansas legislature did not intend to include unborn children as beneficiaries under the law. Ms. Crouch’s appeal to other Arkansas statutes and the Arkansas Constitution do not alter this analysis with regard to the wrongful death statute.

*5 With regard to Ms. Crouch’s argument that Mr. Crouch was acting in loco parentis to the unborn child at the time of his death, the Court notes that Black’s Law Dictionary defines “in loco parentis” as “relating to, or acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” Black’s Law Dictionary (11th ed. 2019); see also Standridge v. Standridge, 803 S.W.2d 496, 500 (Ark. 1991) (examining definition). “In loco parentis refers to a person who has fully put herself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations.” Winn v. Bonds, 426 S.W.3d 533, 537 (Ark. Ct. App. 2013). As Ms. Crouch asserts that Mr. Crouch was the biological parent of the unborn child, the Court understands that Mr. Crouch was not acting as a “temporary guardian or caretaker” of the child by “taking on all or some of the responsibilities of a parent,” nor was he putting himself in the situation of a lawful parent. He was, based on the record evidence before the Court, the unborn child’s parent. See Bizzell v. Transport Corp. of Am., Inc., Case No. 4:16-cv-00376 JLH, 2017 WL 3381358, at *6 (E.D. Ark. 2017) (examining this distinction). To hold that parents of unborn children act in loco parentis to their unborn children would blur the lines of distinct legal categories. The Court is not inclined to do that on this record evidence.

Construing the statute strictly, unborn children are not included as beneficiaries in Arkansas’s wrongful death statute. This Court takes the Arkansas legislature at its word. Therefore, based on the record evidence before the Court and drawing all reasonable inferences in Ms. Crouch’s favor, the Court grants defendants’ motion for partial summary judgment regarding claims of wrongful death beneficiaries under Arkansas Code Annotated § 16-62-102 (Dkt. No. 12). The Court holds that Mr. Crouch’s unborn child at the time of his death is not a proper beneficiary under the Arkansas wrongful death statute.

IV. Conclusion
Therefore, the Court denies defendants’ motion for partial summary judgment on Ms. Crouch’s claims against MWC and grants defendants’ motion for partial summary judgment regarding claims of wrongful death beneficiaries under Arkansas Code Annotated § 16-62-102 (Dkt. Nos. 10, 12).

It is so ordered this 13th day of September, 2021.

All Citations
Slip Copy, 2021 WL 4155583