July 2023

Peterson v. Rodriguez (In re Peterson)

United States District Court for the District of Kansas

June 16, 2023, Decided; June 16, 2023, Filed

Case No. 23-1013-JWB

THE ESTATE OF THOMAS PETERSON, By Special Administrator, Tammy Peterson, and TAMMY PETERSON, individually, Plaintiff, v. DANIEL RODRIGUEZ d/b/a/ NON-STOP TRUCKING, et al., Defendants.

Core Terms

preempted, preemption, broker, federal question, regulation, state law, removal, motor carrier, Trucking, cases, negligence claim, federal court, federal law, route, cause of action, doctrine of preemption, federal statute, transportation, intrastate, district court, state court, tractor-trailer, courts

Counsel: [*1] For Tammy Peterson, Administrator of the Estate of Thomas Peterson, individually and as a representative of the heirs of Thomas Peterson, estate of, Thomas Peterson, Plaintiff: Daniel Shane Bangerter, LEAD ATTORNEY, Bangerter Law, PA, Dodge City, KS; David J. Rebein, Pablo H. Mose, LEAD ATTORNEYS, Rebein Brothers PA, Dodge City, KS.

For Daniel Rodriguez, doing business as, Non-Stop Trucking, Defendant: John Lavelle Mullen, Matthew M. Clifford, LEAD ATTORNEYS, Franke Schultz & Mullen, PC, Kansas City, MO; Tony L. Atterbury, William LeFevre Barr, Jr., LEAD ATTORNEYS, Bull Attorneys, PA, Wichita, KS.

For Hannebaum Grain Co., Inc., Defendant: Daphne Rae Halderman, Mark D. Chuning, Todd C. Barrett, LEAD ATTORNEYS, McCausland Barrett & Bartalos, PC, Kansas City, MO; Thomas Chet Compton, LEAD ATTORNEY, Fleeson, Gooing, Coulson & Kitch, LLC – Wichita, Wichita, KS.

For Hannebaum Trucking, LLC, Defendant: Daphne Rae Halderman, Mark D. Chuning, LEAD ATTORNEYS, Todd C. Barrett, McCausland Barrett & Bartalos, PC, Kansas City, MO; Thomas Chet Compton, LEAD ATTORNEY, Fleeson, Gooing, Coulson & Kitch, LLC – Wichita, Wichita, KS.

For Alfredo Degollado, doing business as, Degollado Transport, Nicholas L. [*2] Oswald, special administrator of the Estate of Eliazar Degollado, Defendants: Bradley Akins, Brette S. Hart, LEAD ATTORNEYS, Harris & Hart, LLC, Overland Park, KS.

Judges: JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE.

Opinion by: JOHN W. BROOMES

Opinion

MEMORANDUM AND ORDER

This matter is before the court on Plaintiffs’ motion to remand (Doc. 25).¹ The motion has been fully briefed and is ripe for decision. (Docs. 33, 35.) Plaintiffs’ motion to remand is GRANTED for the reasons stated herein.

I. Facts

The facts addressed herein are taken from Plaintiffs’ state court petition. (Doc. 1-10.) On December 15, 2021, there were multiple accidents on U160 in Grant County, Kansas. On that date, significant wind resulted in limited visibility. Thomas Peterson and others were involved in a series of three collisions. No one was seriously injured during the initial three collisions. According to the petition, Defendant Daniel Rodriguez was driving a tractor-trailer when he came upon the scene and negligently caused a fourth collision. Rodriguez then left his tractor-trailer partially on the roadway obstructing traffic. Rodriguez also failed to put out warning triangles or failed to properly secure the warning triangles. Another [*3] driver of a tractor-trailer, Defendant Eliazar Degollado, came upon the scene and ran into the back of Rodriguez’s tractor-trailer and other vehicles. One of those vehicles struck Thomas Peterson resulting in his death.

Plaintiff Tammy Peterson filed this action in the District Court of Grant County, Kansas, on behalf of the Estate of Thomas Peterson, individually, and as a representative of the heirs of Thomas Peterson. Plaintiffs, Kansas citizens, alleged several claims of negligence against multiple Defendants, all of whom are also Kansas citizens. (Doc. 48 at 1-2.) One of those Defendants is Alfredo Degollado who had been hired by Defendants Hannebaum Trucking, LLC, and Hannebaum Grain Co., Inc. to pick up and deliver grain on December 15, 2021.

Plaintiffs allege that the Hannebaum Defendants were negligent in selecting Degollado to transport their load when they knew or should have known that the weather conditions were not safe, allowing Degollado to pick up the load in unsafe weather conditions, and overloading the tractor-trailer which resulted in its inability to stop quickly to avoid a collision. (Doc. 1-10 at 5-6.) Plaintiffs have since amended their petition and now include [*4] a direct negligence claim against the Hannebaum Defendants on the basis that they acted as a hidden motor carrier. (Doc. 48 at 5-6.) Plaintiffs’ allegations in the second amended complaint involve expanded claims of negligence based on the Hannebaum Defendants’ selection of Degollado including that he was not qualified to transport the goods and had prior safety violations. (Id. at 8-10.) Further, Plaintiffs have alleged that the goods were being transported in interstate commerce.

Hannebaum Trucking (referred to as “Defendant” or “Hannebaum Trucking” hereinafter) removed the action to this court alleging that removal is proper because Plaintiffs’ claims implicate the court’s original jurisdiction in that they raise a federal question pursuant to 28 U.S.C. § 1331. (Doc. 1 at 3-4.) Essentially, Hannebaum Trucking asserts that Plaintiffs’ claims are completely preempted by 49 U.S.C. § 14501(c)(1) and 49 U.S.C. § 14501(b)(1). (Doc. 1 at 4.) Plaintiffs have now moved to remand this action to state court arguing that the claims are not completely preempted and that Hannebaum Trucking’s defense of preemption does not allow removal. (Doc. 25.)

II. Standard

Under 28 U.S.C. § 1447(c), a district court must remand a case “[i]f at any time before final judgment it appears that [*5] the district court lacks subject matter jurisdiction.” Federal courts are courts of limited jurisdiction, and there is a presumption against the exercise of federal jurisdiction. Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013). The party removing an action to federal court has the burden to establish that federal jurisdiction exists. Id.; Christensen v. BNSF Ry. Co., 242 F. Supp. 3d 1186, 1189 (D. Kan. 2017). “Doubtful cases must be resolved in favor of remand.” Thurkill v. The Menninger Clinic, Inc., 72 F. Supp. 2d 1232, 1234 (D. Kan. 1999).

III. Analysis

A defendant may remove a state court action to federal court if the court has original jurisdiction over a plaintiff’s claim.² 28 U.S.C. § 1441(a); 28 U.S.C. § 1367. Defendant argues that this court has original jurisdiction over Plaintiffs’ negligence claim regarding Defendant’s role as a broker.

Under § 1331, federal district courts have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “To determine whether [a] claim arises under federal law, [courts] examine the ‘well[-]pleaded’ allegations of the complaint and ignore potential defenses….” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003); accord Turgeau v. Admin. Review Bd., 446 F.3d 1052, 1060 (10th Cir. 2006). Under this standard, “a suit arises under federal law ‘only when the plaintiff’s statement of his own cause of action shows that it is based’ on federal law.” Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012) (citation omitted). This rule “makes the plaintiff the master of the claim” and, “by omitting [*6] federal claims,” Plaintiff can almost “guarantee an action will be heard in state court.” Id. (citations and quotations omitted). As the Supreme Court has consistently recognized, “the mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986). Moreover, a federal defense cannot be the basis for federal question jurisdiction “even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Becker v. Ute Indian Tribe of the Uintah & Ouray Reserve, 770 F.3d 944, 947 (10th Cir. 2014) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987)).

Here, Plaintiffs’ claims are based entirely on state negligence law. Therefore, from the face of the petition, the claims are not based on federal law. Defendant raises two arguments here: removal is proper because Plaintiffs’ claims are completely preempted by federal law and Plaintiffs’ claims raise a substantial federal question. Both arguments fail.

A. Complete Preemption

Defendant claims that Plaintiffs’ negligence claim against it in its role as a broker is completely preempted by the Federal Aviation Administration Authorization Act (“FAAAA”), 108 Stat. 1605-06. The Supreme Court explained the history of legislation with respect to the deregulation of trucking and the preemption of state trucking regulations [*7] as follows:

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 …[or broker] 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 v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 368, 128 S. Ct. 989, 169 L. Ed. 2d 933 (2008).

The statutory language quoted in Rowe comes from the section preempting state laws with respect to motor carriers and brokers. § 14501(c)(1). Similar to § 14501(c)(1), the immediately preceding provision, § 14501(b)(1), provides that “no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.” While § 14501(b)(1) expressly applies to “intrastate” services of a broker, § 14501(c)(1) does not limit its application and applies to both brokers and motor carriers. Notably, § 14501(c)(2) further [*8] provides that § 14501(c)(1) does not restrict the safety regulatory authority of a State with respect to motor vehicles.

Defendant spends much time arguing that § 14501(b)(1) is applicable here instead of § 14501(c)(1) because the route it hired Degollado for was an intrastate route. Plaintiffs argue that the amended complaint alleges that the route contracted for was interstate and that Defendant has not submitted sufficient evidence of the route at issue for resolution at this stage of the proceedings. The court finds that it need not resolve this issue because Defendant has failed to show that either provision completely preempts state negligence law concerning brokers’ acts in hiring motor carriers. Moreover, both provisions are substantively identical in that they prevent states from enforcing laws that are related to prices, routes, or services of a broker.³

Turning to the issue at bar, the court notes that ordinary or express preemption is not the same as the complete preemption doctrine, which is what is required to show that removal was appropriate here. See Devon Energy, 693 F.3d at 1203 n.4. There is no doubt that the preemption clauses contained in § 14501(b) and (c) expressly preempt certain state laws.⁴ See Rowe, 552 U.S. at 375-76 (finding that a state law regulating delivery service [*9] procedures was preempted by the FAAAA). The fact that a federal statute may expressly preempt a state law, however, does not render a state-law claim removable to federal court. Devon Energy, 693 F.3d at 1203 n.4. Rather, it is an affirmative defense that may be invoked. Id. Complete preemption, however, provides grounds for removal of an action to federal court. Id. at 1203 n.4, 1204.

For complete preemption to exist, then, Congress must have manifested an intent for the federal statute to “wholly displace[ ]” the state-law cause of action. Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004). So, complete preemption occurs only where “a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress’s intent to permit removal.” Devon Energy, 693 F.3d at 1205.

Christensen, 242 F. Supp. 3d at 1190 (internal citations omitted).

The Supreme Court has only recognized complete preemption in three instances: “§ 301 of the Labor Management Relations Act of 1947 (“LMRA”), § 502 of the Employee Retirement Income Security Act of 1974 (“ERISA”), and actions for usury against national banks under the National Bank Act.” Devon Energy, 693 F.3d at 1204-05 (citations omitted). While the Supreme Court has addressed whether certain laws are expressly preempted by the FAAAA, neither the Supreme Court nor the Tenth Circuit (or any circuit court for that matter) has addressed the complete preemption issue presented here. See Rowe, 552 U.S. at 375; Dan’s City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 263, 133 S. Ct. 1769, 185 L. Ed. 2d 909 (2013) (finding that state [*10] law claims for damages stemming from the storage and disposal of a towed vehicle were not preempted by § 14501(c)(1)). Notably, the Supreme Court has “cautioned that § 14501(c)(1) does not preempt state laws affecting carrier prices, routes, and services ‘in only a ‘tenuous, remote, or peripheral … manner.'” Pelkey, 569 U.S. at 261 (citing Rowe, 552 U.S., at 371).

To find that Plaintiffs’ claim is completely preempted by the FAAAA, the Tenth Circuit has instructed courts that it must answer the following two questions affirmatively: (1) does “the federal [statute] at issue preempt[ ] the state law relied on by the plaintiff”; and (2) did Congress intend to allow removal in this case “as manifested by the provision of a federal cause of action to enforce the” federal statute? Devon Energy, 693 F.3d at 1205. The court should start with the second question. Id. at 1206. Notably, Defendant does not address this standard in its brief.

In support of its position that Plaintiffs’ claim is completely preempted, Defendant almost exclusively relies on two cases from the Western District of Texas decided by the same judge, Gillum v. High Standard, LLC, et al., Civil Action No. SA-19-CV-1378-XR, 2020 U.S. Dist. LEXIS 14820 (W.D. Tex. Jan. 27, 2020) and Zamorano v. Zyna LLC et al., Civil Action No. SA-20-00151-XR, 2020 U.S. Dist. LEXIS 82289. (Doc. 33 at 11.) In Gillum, the court discussed both § 14501(b)(1) and (c)(1) and found that the plaintiff’s negligent hiring claims against the defendant broker were completely preempted by the [*11] FAAAA. Gillum, 2020 U.S. Dist. LEXIS 14820, 2020 WL 444371, at *6. While the court in Gillum discussed the complete preemption doctrine, the court’s decision was based on an ordinary preemption analysis and courts have declined to find the decision persuasive on that basis. See Est. of Wray by & through Wray v. Kennedy Bros. Logistics, Inc., No. 5:22-CV-70-FL, 2022 U.S. Dist. LEXIS 197815, 2022 WL 16550315, at *4 (E.D.N.C. Oct. 31, 2022) (“Gillum’s analysis, however, fails to distinguish between complete preemption and ordinary preemption, and draws upon ordinary preemption principles in its complete preemption analysis. Tellingly, the two Supreme Court cases on which it relies when outlining the complete preemption doctrine, Rowe [] and Dan’s City Used Cars, Inc., 569 U.S. at 261, dealt with ordinary preemption in actions that were originally filed in federal court.”); Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021); Lyles v. Wren, No. 2:23CV00051-JM, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *3 (E.D. Ark. May 9, 2023). Defendant cites to several other cases in its brief; however, none of those cases involved the question of complete preemption. (See Doc. 33 at 11) (listing cases). Rather, those cases dealt with ordinary preemption in actions in which the court’s jurisdiction was not at issue and the court declines to address those cases.

Here, Defendant has failed to meet its burden to show that the FAAAA completely preempts Plaintiffs’ negligence claim involving motor carrier selection because it has not identified an FAAAA provision or regulation that gives Plaintiffs a “federal cause of [*12] action sufficiently similar to their state-law claim[] to justify applying the complete preemption doctrine.” Christensen, 242 F. Supp. 3d at 1191. Simply put, Defendant has failed to show that Congress intended to ‘”displace the application of state tort law to personal physical injury inflicted’ by brokers.” See Lyles, 2023 U.S. Dist. LEXIS 81258, 2023 WL 3318695, at *4 (quoting Hodges v. Delta Airlines, Inc., 44 F.3d 334, 338 (5th Cir. 1995) (finding the Airline Deregulation Act, which tracks the FAAAA preemption clause, did not completely preempt state law)). Moreover, the courts which have thoroughly addressed the complete preemption doctrine have found that the FAAAA did not completely preempt negligence claims. See, e.g., id.; Est. of Wray by & through Wray v. Kennedy Bros. Logistics, Inc., No. 5:22-CV-70-FL, 2022 U.S. Dist. LEXIS 197815, 2022 WL 16550315, at *4 (E.D.N.C. Oct. 31, 2022) (“the statutory text of the FAAAA contains no clear Congressional intent to engulf the entire area of personal injury and wrongful death claims involving transportation brokers and motor carriers.”); Moyer v. Simbad LLC, No. 2:20-CV-5405, 2021 U.S. Dist. LEXIS 64158, 2021 WL 1215818, at *6 (S.D. Ohio Jan. 12, 2021) (“To that end, this Court finds that Greatwide has failed to identify ‘clear congressional intent’ for the FAAAA to engulf the entire area of personal injury and wrongful death claims involving transportation brokers and motor carriers…”); Morrison v. JSK Transp., Ltd., No. 20-CV-01053-JPG, 2021 U.S. Dist. LEXIS 43094, 2021 WL 857343, at *4 (S.D. Ill. Mar. 8, 2021); White v. Scotty’s Contr. & Stone, LLC, No. 1:21-CV-00161-GNS, 2022 U.S. Dist. LEXIS 177300, 2022 WL 4588417, at *8-9 (W.D. Ky. Sept. 29, 2022).

Based on the arguments presented and the authority discussed herein, the court finds that Defendant has failed to establish that Congress intended to allow for removal [*13] in a case involving claims of broker negligence. Further, the statutory text of the FAAAA contains no clear Congressional intent to include claims involving personal injury as a result of broker negligence. Therefore, the complete preemption doctrine does not apply to this case.

B. Substantial Federal Question

Alternatively, Defendant argues that removal is proper under the substantial question test in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 125 S. Ct. 2363, 162 L. Ed. 2d 257 (2005). The test applies when a plaintiff’s “claim is pleaded under state law but invokes a substantial federal question such that the ostensible state-law claim can be considered to arise under federal law for jurisdictional purposes.” Robertson v. Big Blue Healthcare, Inc., 523 F. Supp. 3d 1271, 1286 (D. Kan. 2021) (citing Becker, 770 F.3d at 947). “[T]his branch of arising-under jurisdiction is a slim one” and requires a federal question to be an essential element of a plaintiff’s claim. Gilmore v. Weatherford, 694 F.3d 1160, 1171 (10th Cir. 2012). Under this test, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013).

Here, while Defendant has cited the factors, Defendant makes little effort to demonstrate that Plaintiffs’ claims invoke a substantial [*14] federal question. Defendant argues that there is a substantial federal question involved in Plaintiffs’ negligence claim because the standard of care is determined from the federal statute and/or regulation. (Doc. 33 at 5.) Notably, Plaintiffs’ complaint does not allege that Defendant violated a specific federal statute or regulation with respect to their claim regarding negligent selection of a motor carrier. (Doc. 48 at 8-10.) Moreover, even if Plaintiffs made such a claim, this would not give rise to jurisdiction in this court under the substantial federal question doctrine. See Colbert v. Union Pac. R. Co., 485 F. Supp. 2d 1236, 1246 (D. Kan. 2007) (citing Grable, 545 U.S. at 318-19). “[I]t is well settled that a claim for a violation of state law based upon a breach of a duty created by federal law does not present a substantial federal question for purposes of federal question jurisdiction.” Kurz v. Fid. Mgmt. & Research Co., No. 07-CV-709-JPG, 2007 U.S. Dist. LEXIS 80127, 2007 WL 3231423, at *4 (S.D. Ill. Oct. 30, 2007). As set forth in Grable, “[a] general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would … herald [ ] a potentially enormous shift of traditionally state cases into federal courts.” 545 U.S. at 319. Therefore, the fact that there might be evidence of a federal regulation to establish the standard of care is not sufficient to present [*15] a substantial federal question in this case. Notably, the only regulation Defendant points to in support of its argument is a section defining a broker. (Doc. 33 at 6.) Defendant fails to explain how this regulation identifies the standard of care or that there is a dispute pertaining to the regulation. Further, Defendant’s affirmative defense of preemption is not sufficient to invoke this court’s jurisdiction.

The court finds that Defendant has failed to establish that this court has jurisdiction under the substantial federal question doctrine.⁵ Therefore, this case must be remanded to state court. In doing so, the court does not determine whether the FAAAA preempts Plaintiffs’ claim against Defendant. That question is one for the state court and, therefore, Defendant’s motions to dismiss (Docs. 27, 50) remain pending. See Christensen, 242 F. Supp. 3d at 1193.

IV. Conclusion

Plaintiffs’ motion to remand (Doc. 25) is GRANTED. The clerk is instructed to REMAND this action to the District Court of Grant County, Kansas.

IT IS SO ORDERED. Dated this 16th day of June, 2023.

/s/ John W. Broomes

JOHN W. BROOMES [*16]

UNITED STATES DISTRICT JUDGE

End of Document

¹Defendant Hannebaum Trucking, LLC has filed two motions to dismiss. (Docs. 27, 50.) As a result of this court’s ruling on the motion for remand, the court lacks jurisdiction to consider the motions and will leave them pending for ruling by the state court.

²Defendant does not argue that this court has original jurisdiction under § 1332 because the parties are not diverse.

³The distinction between the two sections may be relevant to the question of whether Plaintiffs’ claim is expressly preempted by the statute. Because the court has determined that the claim is not completely preempted, however, the court need not resolve the question of express preemption.

⁴With respect to Plaintiffs’ claim against Defendant alleging negligent selection in a motor carrier, courts are split on whether such a claim is preempted by the FAAAA. See, e.g. Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1264 (11th Cir. 2023) (finding that claim is preempted); Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1023 (9th Cir. 2020) (finding that claim is not preempted).

⁵Defendant also argues that Plaintiffs have invoked this court’s jurisdiction by filing an amended complaint in this action. (Doc. 33 at 16-18.) Defendant’s argument lacks merit. A party cannot “confer on federal courts subject-matter jurisdiction.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851, 106 S. Ct. 3245, 92 L. Ed. 2d 675 (1986).

Farm Bureau Gen. Ins. Co. v. Schneider Nat’l Carriers, Inc.

United States District Court for the Southern District of Ohio, Eastern Division

June 21, 2023, Decided; June 21, 2023, Filed

Case No. 2:20-cv-2523; Case No. 2:21-cv-191

FARM BUREAU GENERAL INSURANCE CO. OF MICHIGAN, Plaintiff, v. SCHNEIDER NATIONAL CARRIERS, INC., et al., Defendants.GREGORY P. CASSELS, et al., Plaintiffs, v. SCHNEIDER NATIONAL CARRIERS, INC., et al., Defendants.

Prior History: Farm Bureau Gen. Ins. Co. v. Schneider Nat’l Carriers, 552 F. Supp. 3d 750, 2021 U.S. Dist. LEXIS 143512, 2021 WL 3288090 (S.D. Ohio, Aug. 2, 2021)

Core Terms

emergency, non economic damages, caps, carpet, tractor-trailer, summary judgment motion, scene, limitation of liability, roll, summary judgment, northbound lane, administering, driver, judicial estoppel, injuries, emergency care, southbound, allegation of negligence, disclosure, omissions, coverage, truck, policies, scarring, highway, Reply, pad, permanent, traffic, parked

Counsel: [*1] For Gregory P. Cassels, Olga Cassels, Plaintiffs (2:21-cv-00191-EAS-KAJ): John C Camillus, MEYER WILSON CO., LPA, Columbus, OH.

For Schneider National Carriers, Inc., Defendant (2:21-cv-00191-EAS-KAJ): Brandon A Woodard, LEAD ATTORNEY, Porter Rennie Woodard Kendall, LLP, Cincinnati, OH; Andrew M. Lehmkuhl, II, Porter Rennie Woodard Kendall LLP, Cincinnati, OH.

For Farm Bureau General Insurance Company of Michigan, Defendant (2:21-cv-00191-EAS-KAJ): Hunter Scott Havens, LEAD ATTORNEY, Seeley, Savidge, Ebert & Gourash Co., LPA, Westlake, OH; Jeffrey Scott Moeller, Seeley Savidge Ebert Gourash LPA, Westlake, OH.

For Rodney Karl, Defendant (2:21-cv-00191-EAS-KAJ): Brandon A Woodard, LEAD ATTORNEY, Porter Rennie Woodard Kendall, LLP, Cincinnati, OH; Andrew M. Lehmkuhl, II, Porter Rennie Woodard Kendall LLP, Cincinnati, OH.

For Glen Koons, Defendant (2:21-cv-00191-EAS-KAJ): Robert L. Austria, LEAD ATTORNEY, Cleveland, OH.

For Farm Bureau General Ins. Co of Michigan, Plaintiff (2:20-cv-02523-EAS-KAJ): Jeffrey Scott Moeller, LEAD ATTORNEY, Seeley Savidge Ebert Gourash LPA, Westlake, OH; Hunter Scott Havens, Seeley, Savidge, Ebert & Gourash Co., LPA, Westlake, OH.

For Schneider National Carriers, [*2] Inc., Rodney E. Karl, Defendants (2:20-cv-02523-EAS-KAJ): Brandon A Woodard, LEAD ATTORNEY, Porter Rennie Woodard Kendall, LLP, Cincinnati, OH.

For Glen A. Koons, Defendant (2:20-cv-02523-EAS-KAJ): Robert L. Austria, Cleveland, OH.

For Glen A. Koons, Cross Claimant (2:20-cv-02523-EAS-KAJ): Robert L. Austria, Cleveland, OH.

For Rodney E. Karl, Schneider National Carriers, Inc., Cross Defendants (2:20-cv-02523-EAS-KAJ): Brandon A Woodard, LEAD ATTORNEY, Porter Rennie Woodard Kendall, LLP, Cincinnati, OH.

For Rodney E. Karl, Schneider National Carriers, Inc., Cross Claimants (2:20-cv-02523-EAS-KAJ): Brandon A Woodard, LEAD ATTORNEY, Porter Rennie Woodard Kendall, LLP, Cincinnati, OH.

For Glen A. Koons, Cross Defendant (2:20-cv-02523-EAS-KAJ): Robert L. Austria, Cleveland, OH.

Judges: EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE. Magistrate Judge Kimberly A. Jolson.

Opinion by: EDMUND A. SARGUS, JR.

Opinion

OPINION AND ORDER

This consolidated matter is before the Court on: Defendants Rodney Karl (“Mr. Karl”) and Schneider National Carriers, Inc.’s (“Schneider”) Motion for Summary Judgment against Plaintiffs Gregory Cassels, Olga Cassels, and Farm Bureau Insurance Co. of Michigan (“Farm Bureau”) (Farm Bureau Action, [*3] ECF No. 57; Cassels Action, ECF No. 58); Defendants Mr. Karl and Schneider’s Motion to Apply Ohio’s Noneconomic Damages Caps (Farm Bureau Action, ECF No. 68; Cassels Action, ECF No. 70); and Defendant Glen Koons’ (“Mr. Koons”) Motion for Summary Judgment & Alternatively, Motion to Apply Ohio’s Noneconomic Damages Caps (Farm Bureau Action, ECF No. 69; Cassels Action, ECF No. 71).

For the following reasons, Mr. Karl and Schneider’s Motion for Summary Judgment is GRANTED in part and DENIED in part; Mr. Karl and Schneider’s Motion to Apply Ohio’s Noneconomic Damages Caps is DENIED as moot; and Mr. Koons’ Motion for Summary Judgment & Alternatively, Motion to Apply Ohio’s Noneconomic Damages Caps is GRANTED in part and DENIED in part.

I. BACKGROUND

This personal injury and subrogation action arises from the consolidation of Farm Bureau General Insurance Co. of Michigan v. Schneider National Carriers, Inc., Case No. 2:20-cv-02523 (S.D. Ohio filed May 18, 2020) (the “Farm Bureau Action”) and Cassels v. Schneider National Carriers, Inc., Case No. 2:21-cv-00191 (S.D. Ohio filed Jan. 19, 2021) (the “Cassels Action”). Both actions stem from the same motor vehicle-pedestrian accident that occurred on May 21, 2018.

A. The Accident.

On May 21, 2018, at around noon on a clear day, Mr. Cassels was traveling southbound on Ohio State Route 309 in Morrow County—a two-lane, 55 miles per hour highway. (Cassels Am. Compl. ¶ 9, ECF No. 33; Traffic [*4] Crash Report, ECF No. 29-1.) While driving, Mr. Cassels observed a large roll of carpet padding lying in the northbound lane. (Cassels Dep. 26:19-27:1, ECF No. 61-1.) Mr. Cassels, recognizing that the unattended carpet padding posed a problem for northbound drivers, pulled his vehicle over to the shoulder of the southbound lane, exited his vehicle, and then walked over to the carpet pad in the northbound lane. (Id. at 26:19-27:5, 110:21-111:5.)

Mr. Karl, a commercial truck driver employed by Schneider, was operating a Schneider-owned tractor-trailer when, while traveling northbound on S.R. 309, he came upon Mr. Cassels attempting to move the carpet pad out of the northbound lane. (Karl Dep. 21:6-10, 46:8-17, 52:16-21, ECF No. 61-2.) Mr. Karl brought his vehicle to a stop in front of the carpet pad. (Id. at 42:6-9.) He noticed two things when he came to a stop: first, Mr. Cassels was struggling to move the carpet pad, and second, there were southbound cars that had to maneuver around Mr. Cassels’ parked car in order to continue on their way. (Id. at 62:18-24.) Less than a minute after coming to a complete stop, Mr. Karl exited his vehicle to assist Mr. Cassels, explaining that he “didn’t [*5] want [Mr. Cassels] to get hit.” (Id. at 45:3-15, 46:8-11, 62:24.)

Mr. Karl was not the only driver traveling northbound that afternoon. Mr. Koons, traveling in the same direction as Mr. Karl, observed the parked tractor-trailer and attempted to stop his pickup truck while he was still “a ways behind.” (Koons Dep. 6:16-23, 13:9-12, 16:24-17:6.) But the brake line to Mr. Koons’ truck broke, and he faced the following decision: go left of the tractor-trailer, go right of the tractor-trailer, or go into the tractor-trailer. (Id. at 13:15-17, 17:13-18:1.) Mr. Koons’ first attempted to pass the tractor-trailer on the left, but he saw the headlights of a car traveling southbound. (Id. at 17:16-18.) He then thought about going even farther to the left, noticing a field alongside the southbound lane, but Mr. Cassels’ parked vehicle blocked this route. (Id. at 17:18-22.) Mr. Koons ultimately decided to go to the right of the parked tractor-trailer, driving onto the shoulder of the northbound lane. (Id. at 17:24-18:1.) As he drove along the shoulder, Mr. Koons struck Mr. Cassels as he and Mr. Karl were moving the carpet padding in that direction. (Cassels Dep. 27:9-23, ECF No. 61-1; Karl Dep. [*6] 64:9-12, ECF No. 61-2; Koons Dep. 18:3-23, ECF No. 61-3.)

Mr. Cassels suffered severe physical injuries because of the accident. (See Cassels Dep. 44:2-47:2, ECF No. 61-1.) At the time of the accident, Farm Bureau insured Mr. Cassels against personal injuries such as the ones he sustained during the accident. (Farm Bureau Compl. ¶ 12, ECF No. 1.) As of December 2022, Farm Bureau represents that it has paid Mr. Cassels approximately $1,000,000.00 in medical expenses. (See Farm Bureau’s Opp’n to Karl & Schneider’s Mot. for Summ. J. at 1, ECF No. 59.)

B. Prior Litigation.

Prior to the instant action, the Cassels previously sued Schneider, Mr. Karl, Mr. Koons, and Farm Bureau in the Court of Common Pleas for Richland County, Ohio, alleging negligence against Schneider, Mr. Karl, and Mr. Koons, direct liability against Schneider, uninsured/underinsured motorist claims against Farm Bureau, and loss of consortium against all Defendants. (Richland Action Compl. ¶¶ 8-35, ECF No. 10-5; see also Exs. 4, 5 to Karl & Schneider’s Mot. Summ. J., ECF Nos. 57-4, 57-5.) This case ended with the Cassels voluntarily dismissing Farm Bureau without prejudice and ultimately dismissing the action altogether. [*7] (Id.)

The Cassels then sought relief in Michigan, bringing an action solely against Farm Bureau. (Ex. 6 to Karl & Schneider’s Mot. Summ. J., ECF Nos. 57-6.) In the Michigan state court case, the Cassels sought uninsured/underinsured motorist benefits and a declaratory judgment that Farm Bureau failed or refused to pay some of the personal injury protection (“PIP”) benefits it had a duty to pay. (Id.) But the Michigan court did not allow Mr. Cassels to proceed on this action; instead, the court ordered him to first exhaust the liability limits of Mr. Koons, Mr. Karl, and Schneider’s insurance policies.

The Michigan case is currently stayed pending the outcome of the instant action.

C. Procedural History.

As a result of the May 21, 2018 motor vehicle accident described above, Farm Bureau filed the Farm Bureau Action on May 18, 2020, alleging a single count of negligence/vicarious liability against Schneider, Mr. Karl, and Mr. Koons.¹ (Farm Bureau Compl. ¶¶ 15-19, ECF No. 1.) And the Cassels, as directed by the Michigan state court, filed the Cassels Action on January 19, 2021, asserting three separate claims: (1) negligence against all Defendants (Count I); direct liability against Schneider [*8] (Count II); and (3) loss of consortium against all Defendants (Count III). (Cassels Am. Compl. ¶¶ 8-28, ECF No. 33.) On October 18, 2021, the Court consolidated the Farm Bureau Action and the Cassels Action. (Op. & Order, ECF Nos. 36 (Farm Bureau Action), 37 (Cassels Action).)

On December 6, 2022, Mr. Karl and Schneider filed motions for summary judgment in both the Farm Bureau Action and the Cassels Action. (Karl & Schneider’s Mots. Summ. J., ECF Nos. 57 (Farm Bureau Action), 58 (Cassels Action).) Farm Bureau, the Cassels, and Mr. Koons each opposed. (Farm Bureau’s Opp’n to Karl & Schneider’s Mot. for Summ. J., ECF No. 59; Cassels Opp’n to Karl & Schneider’s Mot. for Summ. J., ECF No. 67; Koons’ Opp’n to Karl & Schneider’s Mot. for Summ. J., ECF Nos. 62 (Farm Bureau Action), 63 (Cassels Action).) And Mr. Karl and Schneider timely replied. (Reply to Farm Bureau’s Opp’n, ECF No. 63; Reply to Koons’ Opp’n, ECF Nos. 63 (Farm Bureau Action), 66 (Cassels Action); Reply to Cassels’ Opp’n, ECF No. 69.)

On January 27, 2023, Mr. Karl and Schneider filed motions to apply Ohio’s noneconomic damages caps in the Farm Bureau Action (ECF No. 68) and the Cassels Action (ECF No. 70). Farm Bureau and [*9] the Cassels opposed (ECF Nos. 70 (Farm Bureau Action), 75 (Cassels Action), to which Mr. Karl and Schneider replied (ECF Nos. 75 (Farm Bureau Action), 78 (Cassels Action)).

On January 29, 2023, Mr. Koons moved for summary judgment and, in the alternative, an order applying Ohio’s noneconomic damages caps to the consolidated action. (ECF Nos. 69 (Farm Bureau Action), 71 (Cassels Action).) Plaintiffs opposed (ECF Nos. 71 (Farm Bureau Action), 76 (Cassels Action)), to which Mr. Koons has replied (ECF Nos. 76 (Farm Bureau Action), 78 (Cassels Action)).

The above motions are fully briefed and ripe for review.

II. MOTIONS FOR SUMMARY JUDGMENT

Before the Court are three motions: Defendants Mr. Karl and Schneider’s Motion for Summary Judgment and Motion to Apply Ohio’s Noneconomic Damages Caps, and Defendant Koons’ Motion for Summary Judgment & Alternatively, Motion to Apply Ohio’s Noneconomic Damages Caps. Defendants’ summary judgment motions ask the Court to enter summary judgment in their respective favor on all of Plaintiffs Farm Bureau and the Cassels’ claims, while Defendants’ motions concerning Ohio’s noneconomic damages caps request a finding that (a) Plaintiffs’ recovery of noneconomic [*10] damages is subject to the caps established in R.C. 2315.18 and (b) Mr. Cassels’ total noneconomic damages recovery is capped at the greater of $250,000.00 or three times his economic loss. The Court will begin with Mr. Karl and Schneider’s motions.

A. Summary Judgment Standard.

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). To avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); accord Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (stating that the court must draw all reasonable inferences in favor of [*11] the nonmoving party and must refrain from making credibility determinations or weighing evidence). Furthermore, the existence of a mere scintilla of evidence in support of the nonmoving party’s position will not be sufficient; there must be evidence on which the jury reasonably could find for the nonmoving party. Anderson, 477 U.S. at 251; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita, 475 U.S. at 587-88 (finding reliance upon mere allegations, conjecture, or implausible inferences to be insufficient to survive summary judgment). It is with this standard in mind that the instant motions will be decided.

B. Defendants Mr. Karl and Schneider’s Motion for Summary Judgment.

Mr. Karl and Schneider move for summary judgment on Plaintiffs’ negligence claims, asserting two arguments in support of their position. First, Mr. Karl and Schneider rely on the doctrine of judicial estoppel to prevent the Cassels’ from alleging their negligence, arguing that, in the Michigan state court litigation, Mr. Cassels and his attorney took the position that Mr. Karl and Schneider bore no liability for the May 21, 2018 accident. Second, on independent and separate grounds, Mr. Karl and Schneider argue that Mr. Karl’s actions at the scene of the accident entitle him to protection under [*12] Ohio’s Good Samaritan statute. The Court will address each argument in turn.

a. Judicial estoppel.

Mr. Karl and Schneider contend that, based on Mr. Cassels’ litigation conduct in the Michigan state court, judicial estoppel bars the Cassels’ negligence claims. The Court disagrees.

“The doctrine of judicial estoppel bars a party from (1) asserting a position that is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary position ‘either as a preliminary matter or as part of a final disposition.'” Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002) (quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990)). Undergirding this doctrine is the interest in protecting “the integrity of the judiciary by preventing a party from convincing two different courts of contradictory positions, which would mean that one of those two courts was deceived.” Audio Technica U.S., Inc. v. United States, 963 F.3d 569, 575 (6th Cir. 2020) (quoting Browning, 283 F.3d at 776). To that end, courts generally apply judicial estoppel only where “the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or the second court was misled.'” New Hampshire v. Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001) (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)); accord Teledyne, 911 F.2d at 1218.

To assess the applicability of judicial [*13] estoppel to the Cassels’ negligence claims, the Court turns to the record developed by the 7th Judicial Circuit Court for the County of Genesee, Michigan, in Cassels v. Farm Bureau Gen. Ins. Co. of Mich, No. 2019-112760-NI, (7th Judicial Circuit Court filed May 20, 2019). There, Mr. Cassels sought uninsured/underinsured motorist (“UM/UIM”) benefits and a declaratory judgment that Farm Bureau failed or refused to pay some of the PIP benefits it had a duty to pay pursuant to their insurance contract. Farm Bureau moved for partial summary judgment, advancing two arguments relevant to the instant action: (1) Mr. Cassels does not have a valid claim for UIM coverage under the Farm Bureau policy because the combined liability limits of the policies of Mr. Koons, Mr. Karl, and Schneider exceed the $500,000 UIM coverage limit of the Farm Bureau policy; and (2) even if Mr. Cassels had a valid claim for UIM coverage under his policy with Farm Bureau, his lawsuit was premature because he had not yet exhausted the liability limits of Defendants’ policies through judgment or settlement. (Ex. 7 to Karl & Schneider Mot. Summ. J. ¶¶ 6-9, ECF No. 57-7.)

Of particular importance to this dispute is the “Setoff” provision of Mr. Cassels’ policy with Farm Bureau, which reads in pertinent part:

The amount payable for [*14] this Uninsured Motorists Coverage will be reduced by any amounts paid or payable for the same bodily injury: . . . by or on behalf of any person or organization who may be legally liable for the bodily injury to the extent of any insurance applicable . . . .

(Ex. 10 to Karl & Schneider Mot. Summ. J. at 9-10, ECF No. 57-10 (emphasis added).) As this provision applies to Mr. Cassels’ case, the $500,000 payable to him by Farm Bureau would be reduced by the amount of $3,100,000 (Mr. Karl and Schneider’s liability limits) paid or payable if Mr. Karl and Schneider are legally liable for Plaintiff’s injuries. (Id. at 10.) Thus, in his opposition to Farm Bureau’s motion, Mr. Cassels argued that Farm Bureau could not reduce the UIM coverage to which it owes him based on Mr. Karl and Schneider’s policies because they bore no liability for his injuries. (Hearing Transcript 16:19-17:3, Ex. 9 to Karl & Schneider Mot. Summ. J., ECF No. 57-9.)

The question before the Michigan court, then, was the meaning of the term “payable,” and whether the term encompassed Mr. Karl and Schneider’s liability limits. The Honorable Judge Brian S. Pickell began answering the first question by rejecting any suggestion [*15] that Mr. Karl and Schneider’s policies could set off Farm Bureau’s UM/UIM obligations in the absence of any legal liability. (Id. at 10 (“Otherwise, they could be ‘on the hook’ even if they were in no way legally liable for Plaintiff’s injuries.”).) Judge Pickell then considered “the evidence in the light most favorable” to Mr. Cassels, noting that the traffic-crash report indicated that Mr. Karl and Schneider were not at fault for the accident. (Id.)

The court’s analysis continued. Finding the term “payable” ambiguous, Judge Pickell turned to an unpublished decision, which defined “payable” as “that may, can or must be paid.” (Id. at 11 (quoting Farm Bureau General Ins Co. of Michigan v Hare, unpublished per curium opinion of the Court of Appeals, entered [August 20, 2015] (Docket Nos. 320710 and 320711), 2015 Mich. App. LEXIS 1620.) Noting that the Hare decision provided the court with useful guidance, Judge Pickell explained that the at-fault driver’s insurer (GEICO) admitted that it lacked any defense for its insured and agreed to tender the entire liability limits of its policy to the six injured people; “Thus, the GEICO policy limits were ‘payable’ to [the six injured people].” (Id.)

Judge Pickell then concluded [*16] that Mr. Karl and Schneider’s liability limits were not currently payable to Mr. Cassels:

This Court construes ambiguous language of the subject policy against [Farm Bureau] and resolves ambiguities therein in favor of coverage. When doing so, this Court finds that, at the least, Mr. Karl and Schneider National Carriers have defenses available to them regarding whether they were at fault for the accident, and they have neither offered nor tendered any amount of their collective liability limits to Plaintiff. Therefore, no amount of their collective liability limits is currently payable to Plaintiff.

(Id.) That is to say, the $500,000 payable to Mr. Cassels by Farm Bureau could not be reduced by Mr. Karl and Schneider’s liability limits because those liability limits were not “currently payable” to Mr. Cassels.

The above finding, however, was just one of several that the court made. Rather than allowing Mr. Cassels to proceed with his UIM claims solely against Farm Bureau, the court instead ordered Mr. Cassels to exhaust the liability limits of Mr. Koons, Mr. Karl, and Schneider’s insurance policies as a precondition to pursuing his action for UIM coverage against Farm Bureau. (Id. at [*17] 12 (“Plaintiff can bring no action for UIM coverage by way of suit against Defendant until after the corresponding limits of liability under all of the other insurance policies that applied at the time of the accident have been exhausted by payment of judgments or settlements.”) (emphasis added).)

Returning from the 7th Judicial Circuit Court of Genessee County to the Southern District of Ohio, Mr. Karl and Schneider argue that, based on the Michigan decision discussed above, the doctrine of judicial estoppel bars the Cassels from arguing before this Court that Mr. Karl and Schneider were negligent. More precisely, they assert that the Michigan court accepted Mr. Cassels’ position on Mr. Karl and Schneider’s non-liability for the accident, and now, here in this Court, the Cassels take the inconsistent position that Mr. Karl and Schneider are negligent for the accident.

But Mr. Karl and Schneider misread the scope of the Michigan court’s conclusions of law. Whereas Mr. Karl and Schneider characterize the court’s decision as finding an absence of liability on their part, the opinion and order speaks only to the reach of the term “payable,” finding Mr. Karl and Schneider’s policies not [*18] “currently payable” when construing the ambiguous policy language against Farm Bureau. The court did not root this finding in Mr. Karl and Schneider’s non-liability; rather, the court relied on (1) the defenses available to them regarding whether they were at fault for the accident, and (2) the undisputed fact that they have neither offered nor tendered any amount of their collective liability limits to Mr. Cassels. (See id. at 11.) Critically, the court made no determination of the comparative fault of Defendants, as the court reiterated in its July 27, 2020 order:

Plaintiff is not entitled to recover UM/UIM benefits from [Farm Bureau] until there has been a determination of the comparative fault of Mr. Koons, Mr. Karl, Schneider Transportation, Plaintiff, and any “John Doe.” And, this Court does not have personal jurisdiction over any of them. Thus, as a condition precedent to recovery for Plaintiff in this matter, Plaintiff must first have a factual fault determination in the federal lawsuit. (It may be that [Farm Bureau] is not required to pay for the alleged negligence of Mr. Koons, Mr. Karl, and Schneider Transportation since they were all insured.)

(July 27, 2020 Order at 7, ECF [*19] No. 12-1 (emphasis added).)

The Michigan court recognized that: (1) it did not allocate any shares of liability for the accident, and (2) Defendants, including Mr. Karl and Schneider, could be subject to liability for their roles in the accident. Thus, the Michigan court did not adopt Mr. Cassels’ now-contrary position concerning Mr. Karl and Schneider’s negligence, proving fatal to their judicial estoppel argument. See, e.g., Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982) (“The doctrine of judicial estoppel applies to a party who has successfully . . . asserted a position in a prior proceeding.”) (emphasis added); see also City of Kingsport v. Steel & Roof Structure, Inc., 500 F.2d 617, 620 (6th Cir. 1974) (success in prior proceeding necessary). Because the Michigan court did not adopt Mr. Cassels’ position on the non-liability of Mr. Karl and Schneider—i.e., because Mr. Cassels did not successfully assert this position before the Michigan court—this Court therefore DENIES Mr. Karl and Schneider’s Motion for Summary Judgment as it pertains to the application of judicial estoppel as a bar to the Cassels’ negligence claims.

b. Ohio’s Good Samaritan Doctrine.

Mr. Karl and Schneider next argue that Mr. Karl’s actions at the scene of the accident, if determined to be negligent, nevertheless fall within the scope of [*20] R.C. 2305.23—Ohio’s Good Samaritan statute. In pertinent part, the statute provides:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

Nothing in this section applies to the administering of such care or treatment where the same is rendered for remuneration, or with the expectation of remuneration, from the recipient of such care or treatment or someone on his behalf.

Ohio Rev. Code § 2305.23 (emphasis added).

Under this statute, the argument goes, Mr. Karl and Schneider are immune from any liability because Mr. Karl encountered an emergency that required immediate action (i.e., Mr. Cassels standing in the middle of a highway, struggling to move a large roll of carpet padding as cars passed him by), and he acted promptly in administering emergency care at the scene of an emergency—i.e., he quickly moved to get Mr. Cassels out of harm’s way (that is, shortly after stopping in front of the carpet roll, Mr. Karl exited his vehicle and assisted Mr. Cassels with the [*21] removal of the carpet roll from the highway). Further, Mr. Karl and Schneider assert that there is no evidence, nor any allegation, that Mr. Karl’s actions constitute willful or wanton misconduct, which would remove his conduct from the statute’s protection.

Farm Bureau, the Cassels, and Mr. Koons all challenge the applicability of R.C. 2305.23 to the instant case, collectively raising five arguments: (1) R.C. 2305.23 applies only to negligence in the administering of aid to an already-injured person, which Mr. Cassels was not; (2) Mr. Karl’s negligence constituted negligent omissions—not acts—thus falling outside the scope of R.C. 2305.23; (3) Mr. Cassels’ presence on the roadway did not constitute an “emergency,” as required to trigger the protections of R.C. 2305.23; (4) Mr. Karl’s negligence, such as parking in the middle of the highway and failing to place safety triangles or light a road flare, occurred before he was administering any supposed emergency care; and (5) Mr. Karl was acting in his own self-interest in removing the carpet roll off the road, rendering R.C. 2305.23 inapplicable. The Court will address each argument in turn.

i. R.C. 2305.23 does not only apply to negligence in the administering of aid to an already-injured person.

The first [*22] argument against the applicability of Ohio’s Good Samaritan statute—that it applies only to the negligent administering of emergency care or treatment to an already-injured person—directly conflicts with Ohio precedent. In Carter v. Reese, the Supreme Court of Ohio applied R.C. 2305.23 to a passerby at a loading dock who came upon a truck driver with his leg trapped between the dock and a tractor-trailer. 148 Ohio St. 3d 226, 2016- Ohio 5569, 70 N.E.3d 478, 480 (Ohio 2016). Although trapped, the driver was in no physical pain. Id. The trapped driver asked the passerby to move his truck forward, and in doing so, the passerby inadvertently rolled the tractor-trailer backwards, severely injuring the driver’s leg. Id. The trial court entered summary judgment in favor of the passerby pursuant to Ohio’s Good Samaritan statute, which both the appellate court and the Supreme Court of Ohio affirmed. Id.

In light of Carter, which demonstrates that R.C. 2305.23 may shield a Good Samaritan from civil liability when administering emergency care to a yet-uninjured person, the Court rejects this first challenge to Mr. Karl and Schneider’s reliance on the statute in the instant action.

ii. R.C. 2305.23 covers both negligent acts and omissions.

The second argument against applying Ohio’s Good Samaritan [*23] statute to the present facts also falls short—that is, R.C. 2305.23 includes negligent acts and omissions within its scope. This argument is premised on the fact that R.C. 2305.23 immunizes people from liability “for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.” Ohio Rev. Code § 2305.23 (emphasis added). Thus, because the statute does not place “omissions” alongside “acts,” any negligent omissions are therefore excluded from the statute’s protection. With this interpretation in mind, Mr. Karl’s failure to (1) pull over to the side of S.R. 309, (2) put on his hazard lights, (3) place safety triangles behind the tractor-trailer, and (4) light a road flare all would constitute negligent omissions falling outside the reach of R.C. 2305.23. In support of this argument, the Cassels do not cite any Ohio caselaw applying such an interpretation to the statute; instead, the Cassels direct the Court’s attention to several Good Samaritan statutes from other states, which explicitly cover both “acts” and “omissions.” (See Cassels Opp’n to Karl & Schneider’s Mot. for Summ. J. at 6-7, ECF No. 67.)

The Court is not persuaded. The Supreme Court of Ohio confirmed that R.C. 2305.23 “precludes liability for any acts [*24] performed at the scene of an emergency.” Carter, 70 N.E.3d at 488. However, if the party alleging negligence can simply reframe the other party’s allegedly negligent acts as negligent omissions, thus escaping the reach of the Good Samaritan statute, then the statute would no longer shield Good Samaritans from civil liability. Indeed, a party may easily engage in such a reframing effort given that negligence, by definition, is essentially the omission of the exercise of reasonable care. See Cleveland Metro. Bar Ass’n v. Berk, 132 Ohio St. 3d 82, 2012- Ohio 2167, 969 N.E.2d 256, 258 (Ohio 2012) (“[N]egligence is defined as ‘[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.'” (quoting Black’s Law Dictionary 1133 (9th Ed.2009)).

Moreover, accepting this strained interpretation of R.C. 2305.23 would effectively negate the string of affirmative acts that Mr. Karl undertook when he attempted to assist Mr. Cassels. That is, despite the potentially negligent acts Mr. Karl engaged in when purportedly administering emergency care (e.g., parking the tractor-trailer in the highway and exiting the vehicle to help Mr. Cassels), so long as he also failed to do something that a supposed reasonably prudent person would have done in a similar situation (e.g., pull [*25] off to the side of the road or place safety triangles), then he cannot rely on the protection of R.C. 2305.23. The Supreme Court of Ohio did not apply this interpretation in Carter, nor has the Court found any Ohio case making such an act-versus-omission distinction when applying R.C. 2305.23. As such, the Court will not do so here.

iii. There was an emergency.

The parties dispute whether Mr. Cassels’ presence on S.R. 309 constituted an “emergency” within the scope of R.C. 2305.23. Reprinted for convenience, R.C. 2305.23 provides, in relevant part:

No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

Ohio Rev. Code § 2305.23 (emphasis added).

In Carter, the Supreme Court of Ohio defined “emergency” as “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” 70 N.E.3d at 487. In crafting this definition, the court cited approvingly to the Shorter Oxford Dictionary definition of “emergency,” which defined the term as “[a] situation, esp. of danger or conflict, that arises unexpectedly [*26] and requires urgent action,” as well as Utah’s Good Samaritan law, defining “emergency” to mean “an unexpected occurrence involving injury, threat of injury, or illness to a person or the public, including motor vehicle accidents, disasters, actual or threatened discharges, removal or disposal of hazardous materials, and other accidents or events of a similar nature.” Id. Utilizing this definition of “emergency,” the court held in Carter that the truck driver’s slip on the loading dock, resulting in the trapping of his leg between the dock and a tractor-trailer, “constituted an ’emergency’ for purposes of R.C. 2305.23,” notwithstanding the fact that he was neither in physical pain nor in danger. Id. at 480, 489; see also Carter v. Reese, 2014-Ohio-5395, 25 N.E.3d 1086, 1092 (Ohio Ct. App. 2014) (noting that the driver asserted he was “merely ‘trapped,’ ‘unharmed,’ between his stopped semi-truck and the wall of the loading dock when [the passerby] attempted to move the truck”).

Mr. Karl and Schneider argue that Mr. Karl came upon the scene of two emergencies: (1) the presence of the large carpet roll obstructing traffic in the northbound lane of S.R. 309, and (2) Mr. Cassels’ struggle moving the carpet roll while standing in the northbound lane with oncoming cars driving by. (Reply [*27] to Cassels’ Opp’n at 7, ECF No. 69.) The Cassels challenge Mr. Karl and Schneider’s labeling of the pre-accident scene as an “emergency,” arguing that the circumstances did not “call[] for immediate action” because, when Mr. Karl parked the tractor-trailer, southbound traffic was able to pass in the southbound lane and the Schneider tractor-trailer blocked northbound traffic, creating a zone in which Mr. Cassels was free from danger. (Cassels Opp’n to Karl & Schneider’s Mot. for Summ. J. at 7, ECF No. 67.)

The Court recognizes that the question of whether an emergency exists, at least in some cases, is a question reserved for the jury. See, e.g., Shepard v. Dunn, 1988 Ohio App. LEXIS 1017, at *6 (Ohio Ct. App. 1988) (“If evidence had been introduced which would enable reasonable minds to conclude that an emergency existed it would then become a question of fact for the jury to decide.”); Dayton v. Brennan, 64 Ohio Law Abs. 525, 112 N.E.2d 837 (M.C. 1952). But when the relevant facts are undisputed, the issue becomes one that the court may properly determine. See Carter, 70 N.E.3d at 489 (finding as a matter of law that the “uncontested facts” gave rise to an “emergency” within the meaning of R.C. 2305.23); Helvich v. George A. Rutherford Co., 96 Ohio App. 367, 114 N.E.2d 514, 518, (Ohio Ct. App. 1953) (“Whether or not the plaintiff was acting in an emergency is ordinarily a question [*28] of fact, but where the facts are not in dispute, it becomes a question of law for the court.”).

Here, based on the undisputed facts, the Court finds that Mr. Cassels’ presence on the northbound lane of S.R. 309, in which he was struggling to remove the large carpet roll from the roadway as southbound traffic passed him by, constituted an “emergency” for purposes of R.C. 2305.23. Bearing in mind the Supreme Court of Ohio’s definition of “emergency” under R.C. 2305.23, the facts before this Court are even more indicative of an emergency than those in Carter. Unlike the truck driver in Carter, who was merely “inconvenienced,” see Carter, 70 N.E.3d at 496 (Pfeifer, J., dissenting), Mr. Cassels was struggling to move the carpet roll as he stood in the northbound lane with southbound traffic subject to a 55-mph speed limit passing him by. Also, unlike the truck driver in Carter, whose situation was not at imminent risk of worsening, Mr. Cassels’ mere presence in the northbound lane exposed him to a substantial threat of injury (which ultimately came to pass). By promptly exiting the tractor-trailer to assist Mr. Cassels, Mr. Karl sought to reduce the risk that a vehicle would hit him. That is to say, Mr. Karl’s assistance would reduce [*29] the amount of time Mr. Cassels spent exposed on the highway, thus decreasing the likelihood that he would be involved in a motor vehicle-pedestrian accident. Under these uncontested facts, then, Mr. Cassels’ presence on S.R. 309’s northbound lane created “an unforeseen combination of circumstances” calling for “immediate action,” and thus constituted an “emergency” within the scope of R.C. 2305.23.

iv. Mr. Karl’s alleged negligence did not occur before R.C. 2305.23. triggered.

The parties also dispute whether Mr. Karl’s alleged negligence (e.g., parking in the middle of the northbound lane and failing to place safety triangles behind the tractor-trailer) occurred before R.C. 2305.23‘s protections came into play. In support of the argument that Mr. Karl’s alleged negligence occurred before the triggering of R.C. 2305.23, Farm Bureau and the Cassels focus on the following prepositional phrase from the statute: “No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency . . . .” (See Farm Bureau’s Opp’n to Karl & Schneider’s Mot. for Summ. J. at 9-11, ECF No. 59; Cassels Opp’n to Karl & Schneider’s Mot. for Summ. J. at 6, ECF No. 67.) According to the Plaintiffs, because this language [*30] protects a Good Samaritan only from liability for negligent emergency care or treatment, Mr. Karl’s allegedly negligent acts occurring prior to his assistance in removing the carpet roll from the highway fall outside R.C. 2305.23.

The Court disagrees. While Plaintiffs focus exclusively on the first prepositional phrase contained in R.C. 2305.23, they fail to consider the statute’s second prepositional phrase: “No person shall be liable in civil damages . . . for acts performed at the scene of such emergency.” Ohio Rev. Code § 2305.23. As the Supreme Court of Ohio explained in Carter, this “latter prepositional phrase . . . precludes liability for any acts performed at the scene of an emergency . . . .” 70 N.E.3d at 488. Accordingly, the Court finds that Mr. Karl’s alleged negligence occurred at the scene of the emergency, and therefore falls within R.C. 2305.23‘s coverage.

v. R.C. 2305.23 contains no element of subjective intent.

The final argument against the application of Ohio’s Good Samaritan statute, raised by Mr. Koons, asserts, without evidence, that Mr. Karl was on a “tight schedule” on the day of the accident, and his desire to stay on schedule drove him to assist Mr. Cassels. (Koons’ Opp’n to Karl & Schneider’s Mot. for Summ. J. at 3-5, ECF Nos. 62 (Farm Bureau [*31] Action).) In essence, Mr. Koons argues that Mr. Karl was acting in his own self-interest when he assisted Mr. Cassels, stripping him of R.C. 2305.23‘s protection. In making this argument, Mr. Koons concedes that R.C. 2305.23 contains no element concerning the Good Samaritan’s subjective motivations. (Id. at 3.)

Mr. Koons is correct—R.C. 2305.23 says nothing about the intent of the Good Samaritan—and the Court will not rewrite the statute to say otherwise. But not only is Mr. Koons’ argument inconsistent with the language of the statute, it also lacks support in the caselaw. Mr. Koons relies on three Ohio cases in his opposition brief, including Carter, but none of his cited cases involve a court grafting a subjective element onto R.C. 2305.23.² This Court will not break the trend.

In sum, the Court finds that Mr. Karl’s actions meet all the requirements of R.C. 2305.23. The undisputed facts of this case show that Mr. Karl performed acts at the scene of an emergency that constituted “administering emergency care” to Mr. Cassels.³ Mr. Cassels’ presence on the northbound lane of S.R. 309, in which he was struggling to remove the large carpet roll from the roadway as southbound traffic passed him by, constituted an “emergency” for purposes of R.C. 2305.23 [*32] . In responding, Mr. Karl parked the tractor-trailer and promptly exited the vehicle to administer care by helping Mr. Cassels move the carpet roll off the highway. And there is no allegation that Mr. Karl’s conduct was willful or wanton. Accordingly, R.C. 2305.23 applies to Mr. Karl, and both he and his employer, Schneider, are not liable in civil damages to the Cassels or their subrogee, Farm Bureau. The Court therefore GRANTS Mr. Karl and Schneider’s Motion for Summary Judgment based on Ohio’s Good Samaritan statute.

C. Mr. Koons’ Motion for Summary Judgment.

Mr. Koons also moves for summary judgment, arguing that Plaintiffs have failed to disclose any medical expert on the issue of causation, thus dooming their claims. (ECF No. 69 at 4-5 (Farm Bureau Action); ECF No. 71 at 4-5 (Cassels Action).) And in the alternative, Mr. Koons asks the Court to find that the Cassels’ recovery against Mr. Koons is subject to R.C. 2315.18(B)(2)—Ohio’s noneconomic damages caps. (ECF No. 69 at 6-7 (Farm Bureau Action); ECF No. 71 at 6-7 (Cassels Action).) The Court will address each argument in turn.

a. Plaintiffs’ failure to disclose expert witnesses.

Mr. Koons’ motion asserts that Plaintiffs have not produced any expert medical disclosures, and therefore they cannot establish a causal connection between Mr. Cassels’ injuries and the May 21, 2018 accident. In making this argument, Mr. [*33] Koons’ accurately notes that this Court ordered Plaintiffs to disclose their primary experts by September 9, 2022, which the Cassels—but not Farm Bureau—failed to do. (See Order on Mot. for Extension of Time, ECF No. 54 (Farm Bureau Action).)

In response, the Cassels contend that they:

have disclosed all of the health care providers, including physicians, for Greg Cassels. (See, e.g., Interrogatory Response No. 17, Document Requests No. 5 & 6, attached hereto as Exhibit 3.) Plaintiffs do not need to identify and provide retained experts because treating physicians are permitted to testify and provide expert opinions based on their medical records. See FRCP 26(a)(2)(C). In addition, Plaintiffs are entitled to rely on the expert opinions disclosed by Farm Bureau in the consolidated case.

(ECF No. 76 at 7.)

Under Rule 26(a)(2), which governs the disclosure of expert testimony, “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). Under Rule 26(a)(2)(B), the expert must provide a written report if the expert was “retained or employed specially to provide testimony or one whose duties as the party’s employee regularly involve giving expert testimony;” and, under [*34] Rule 26(a)(2)(C), any expert who does not need to provide a written report under Rule 26(a)(2)(B), must provide a disclosure stating:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

Fed. R. Civ. P 26(a)(2)(B)-(C). Thus, while treating physicians are not subject to Rule 26(a)(2)(B)‘s written-report requirement, they “must still provide the disclosures outlined in Rule 26(a)(2)(C).” Bush v. O’Reilly Auto Enters., LLC, No. 3:21-cv-189, 2022 U.S. Dist. LEXIS 201094, at *4 (S.D. Ohio Nov. 3, 2022).

Here, the Cassels have no colorable basis to argue that they have complied with Rule 26(a)(2)(C). In support of their compliance, the Cassels cite only to their response to Mr. Karl and Schneider’s interrogatory number 17, which simply provides a non-exhaustive list of physicians who treated Mr. Cassels. (See ECF No. 76-3.) The list does not, however, provide “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703 or 705,” nor does it summarize “the facts and opinions to which the witness is expected to testify.” See Fed. R. Civ. P. 26(a)(2)(C).

As a remedy for the Cassels’ failure to comply with Rule 26(a)(2)(C), the Court may exclude the opinion testimony unless the Cassels establish that the insufficiency in their disclosures was either substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide [*35] information or identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”); see also Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th Cir. 2010) (“[T]he sanction is mandatory unless there is a reasonable explanation of why Rule 26 was not complied with or the mistake was harmless.”).

The Cassels provide no justification for their failure to provide expert disclosures under Rule 26(a)(2)(C), nor do they suggest that permitting them to skirt the Federal Rules’ disclosure requirements would be harmless to Mr. Koons. Given the absence of any argument on this matter, the Court excludes all expert opinion testimony of Mr. Cassels’ treating physicians pursuant to Rule 37(c)(1).

But this holding is not fatal to the Cassels’ claims. Assuming—without deciding—that the Cassels’ must present expert testimony on the issue of causation, the Court finds that they may rely on the expert opinions that Farm Bureau timely disclosed.⁴ Although the Cassels first disclosed their intent to utilize Farm Bureau’s experts in their opposition to Mr. Koons, more than five months after the disclosure deadline, the Court finds that permitting [*36] their use would be harmless—and therefore unsanctionable under Rule 37(c)(1).⁵

In the typical case where exclusion is justified under Rule 37(c)(1), opposing counsel either had no advance knowledge that the expert witness would testify or no knowledge of the substance of the expert’s reports. Broughton v. Shoe Show, Inc., No. 1:20-cv-261, 2022 U.S. Dist. LEXIS 176455, at *14 (S.D. Ohio Sept. 26, 2022) (citing Roberts v. Galen of Va., Inc., 325 F.3d 776, 783 (6th Cir. 2003)). But this is not the typical case. First, Mr. Koons does not genuinely dispute that Farm Bureau timely produced its expert medical reports on August 25, 2021—well before the disclosure deadline, thus demonstrating that he had advance knowledge that these experts were slated to testify. Nor does Mr. Koons argue that he is in the dark as to the substance of the experts’ reports. Indeed, Mr. Koons appears to welcome the Cassels’ reliance on Farm Bureau’s experts, citing several excerpts from their reports indicating that Mr. Cassels’ injuries are less severe than he alleges. (See Reply to Cassels’ Opp’n at 3-4, ECF No. 78.).

Additionally, on April 26, 2023, the parties submitted a joint status report stating that they met and conferred on Farm Bureau’s expert deposition notices, reaching an agreement on an acceptable deposition schedule for each expert witness. (See Joint [*37] Status Rep., ECF Nos. 89 (Farm Bureau Action), 88 (Cassels Action).) Given this agreed-upon schedule, permitting the Cassels’ to rely on Farm Bureau’s experts would not disrupt the flow of this litigation, thereby minimizing any potential prejudice toward Mr. Koons. As such, the Court concludes that the Cassels may use Farm Bureau’s expert witnesses in proving causation, as their failure to timely disclose their intent is relatively harmless.

b. Applicability of Ohio’s noneconomic damages caps.

Mr. Koons’ Motion for Summary Judgment also asks the Court to find that Ohio’s cap on noneconomic damages applies to the Cassels’ claims. (ECF No. 69 at 6-7.) The Court finds that this is a question of fact reserved for the jury.

R.C. 2315.18 sets forth the basic framework for the imposition of damages in certain tort actions. See Ohio Rev. Code § 2315.18. Of particular relevance to the instant action is R.C. 2315.18(B), which limits a plaintiff’s recovery for noneconomic loss to the greater of (1) $250,000 or (2) three times the economic damages up to a maximum of $ 350,000, or $ 500,000 per single occurrence. Id. at § 2315.18(B)(2). There are, however, exceptions to this limit. The noneconomic damages cap does not apply if the plaintiff suffered “[p]ermanent [*38] and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or “[p]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.” Id. at § 2315.18(B)(3)(a)-(b).

Regarding Ohio’s noneconomic damages caps, Mr. Koons’ motion focuses exclusively on the exception articulated in § 2315.18(B)(3)(b)—that the plaintiff suffer a “[p]ermanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.” Mr. Koons argues that while a plaintiff “must present objective evidence that his or her physical functional injury is permanent,” Mr. Cassels has failed to do so. (ECF No. 69 at 6 (citing Dillon v. Ohiohealth Corp., 2013 Ohio Misc. LEXIS 16351 (Ohio C.P. 2013).)

In response, the Cassels focus on the exception set forth in § 2315.18(B)(3)(a), which removes the statutory limits for a plaintiff who has suffered a “permanent and substantial physical deformity.” (ECF No. 76 at 4-6.) In their opposition, the Cassels include excerpts from Mr. Cassels’ deposition detailing his injuries. (Id. at 2-3 (noting, among other injuries, [*39] that Mr. Cassels has a scar stretching 14-16 centimeters due to the surgery following his type V tibia plateau fracture and the toes on his left foot have curled up from nerve damage).⁶ According to the Cassels, such scarring is sufficient to deny a motion for summary judgment as to the application of Ohio’s noneconomic damages caps. The Court agrees.

Ample caselaw interpreting R.C. 2315.18(B)(3)(a) has found the presence of scarring sufficient for submission to a jury to determine whether it constitutes “permanent and substantial physical deformity.” See Torres v. Concrete Designs Inc., 2019- Ohio 1342, 134 N.E.3d 903, 924-26 (Ohio Ct. App. 2019) (well-healed facial scar sufficient to create a factual question for the jury); Cawley v. Eastman Outdoors, Inc., No. 1:14-CV-00310, 2014 U.S. Dist. LEXIS 148194, *at 2-3, 19-20 (N.D. Ohio Oct. 17, 2014) (jury question whether scarring on plaintiff’s left hand and thumb following an archery accident constituted a “[p]ermanent and substantial physical deformity”); Ohle v. DJO, Inc., No. 1:09-cv-02794, 2012 U.S. Dist. LEXIS 140020 (N.D. Ohio Sept. 28, 2012) (leaving for the jury to decide whether plaintiff’s combination of scarring, destroyed cartilage, and bone replacement qualified as a permanent and substantial physical deformity); Bransteter v. Moore, No. 3:09-CV-2, 2009 U.S. Dist. LEXIS 6692 at *6-7 (N.D. Ohio 2009) (issue of whether perforated bowel and surgical scar qualified as deformity submitted to the jury, stating that “scarring may be so severe as to qualify as a serious disfigurement” ).

Here, the Court concludes that the jury is in [*40] the best position to determine whether Mr. Cassels’ injuries qualify as a “permanent and substantial physical injury” under R.C. 2315.18(B)(3)(a). When reasonable minds might disagree about the nature of a plaintiff’s injuries, the Court must not impose its own factual determination. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court therefore DENIES Mr. Koons’ request to impose a damages cap at this stage.

III. CONCLUSION

For the reasons stated herein, the Court ORDERS as follows:

• Mr. Karl and Schneider’s Motion for Summary Judgment is GRANTED in part and DENIED in part. (Farm Bureau Action, ECF No. 57; Cassels Action, ECF No. 58.) The motion is DENIED as it pertains to the issue of judicial estoppel and GRANTED based on Ohio’s Good Samaritan statute. Mr. Karl and Schneider are DISMISSED with prejudice from this action;

• Mr. Koons’ Motion for Summary Judgment & Alternatively, Motion to Apply Ohio’s Noneconomic Damages Caps is GRANTED in part and DENIED in part. (Farm Bureau Action, ECF No. 69; Cassels Action, ECF No. 71.) The motion is GRANTED to the extent that Mr. Koons asserts that Mr. Cassels’ cannot use his treating physicians to provide expert testimony. The motion is DENIED as to Mr. Koons’ assertion that the Cassels may not use Farm [*41] Bureau’s experts and the applicability of Ohio’s noneconomic damages caps to this action;

• Mr. Karl and Schneider’s Motion to Apply Ohio’s Noneconomic Damages Caps is DENIED as moot. (Farm Bureau Action, ECF No. 68; Cassels Action, ECF No. 70.)

This case remains open.

IT IS SO ORDERED.

6/21/2023

DATE

/s/ Edmund A. Sargus, Jr.

EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

End of Document

¹In the Court’s August 2, 2021 Opinion and Order, the Court dismissed Farm Bureau’s claims against Schneider for negligent training and negligent supervision. (ECF No. 28 at 14-17.)

²Mr. Koons cites the following cases: Carter v. Reese, 148 Ohio St. 3d 226, 2016-Ohio-5569, 70 N.E.3d 478 (Ohio 2016); Held v. Rocky River, 34 Ohio App. 3d 35, 516 N.E.2d 1272 (Ohio Ct. App. 1986); and Wallace v. Hall, 145 Ga. App. 610, 244 S.E.2d 129 (Ga. 1978). The two Ohio cases do not consider the Good Samaritan’s motives. And while the Georgia court does acknowledge that a person rendering emergency care must act in “good faith,” this good-faith requirement is set forth directly in Georgia’s Good Samaritan statute. See Wallace, 244 S.E.2d at 130.

³The parties do not dispute whether Mr. Karl’s assistance with the carpet roll’s removal qualifies as “administering emergency care” under R.C. 2305.23; nor should they. In Carter, the Supreme Court of Ohio explained that “the General Assembly intended for the phrase ‘administering emergency care’ to broadly include nonmedical care,” and concluded that Ohio’s statute “broadly appl[ies] to any type of assistance given at the scene of an emergency.” 70 N.E.3d at 488-89.

⁴Farm Bureau has not indicated any opposition to sharing its experts with the Cassels. Indeed, Farm Bureau’s response to Mr. Koons’ motion appears to contemplate this arrangement. (See ECF No. 71 at 2-3 (in rejecting Mr. Koons’ failure-to-disclose argument, Farm Bureau noted that the Cassels “did not submit any further medical expert reports apart from Farm Bureau’s“) (emphasis added).)

⁵To the extent the Cassels’ untimely disclosure conflicts with this case’s scheduling order, the Court notes that, pursuant to Federal Rule of Civil Procedure 16, the Court has broad discretion over whether to exclude untimely disclosed expert testimony. See Pride v. BIC Corp., 218 F.3d 566, 578-79 (6th Cir. 2000); see also Estes v. King’s Daughters Medical Center, 59 Fed. Appx. 749, 752 (6th Cir. 2003) (“Rule 16 grants district courts broad discretion to enforce their scheduling orders.”).

⁶The Court need not rely solely on Mr. Cassels’ testimony as evidence on this issue. Each of Farm Bureau’s experts opine on the types of injuries Mr. Cassels sustained arising from the May 21, 2018 accident. (See Farm Bureau’s Opp’n to Karl & Schneider’s Mot. Apply Ohio’s Noneconomic Damages Caps at 2, ECF No. 71 (briefly summarizing expert reports).) For example, two of Farm Bureau’s expert reports confirm the presence of Mr. Cassels’ scar, though one of the experts, Dr. Drouillard, D.O., reports that Mr. Cassels’ scar is approximately 10 inches (rather than 14-16 inches, as Mr. Cassels testified). (See Drouillard Rep., ECF No. 68-1; Gross Rep., ECF No. 68-1.)