United States District Court,

M.D. Pennsylvania.

Francisco Ramos-Becerra, and Louisa Ramos, Plaintiffs,

v.

Ricky L. Hatfield, Hatfield Trucking, and JB Hunt Transport, Inc., Defendants.

Civ. No. 1:14-CV-0917

|

Signed 08/03/2016

Attorneys and Law Firms

Mitchell J. Shore, Robert N. Hunn, Kolsby Gordon Robin Shore & Bezar, Philadelphia, PA, for Plaintiffs.

George T. McCool, Jr., Wright & O’Donnell, P.C., Conshohocken, PA, Diane B. Carvell, Gary N. Stewart, Rawle & Henderson, LLP, Harrisburg, PA, for Defendants.

 

 

MEMORANDUM

SYLVIA H. RAMBO, United States District Judge

*1 In this civil action, Plaintiffs bring claims for negligence and loss of consortium against Defendants as a result of injuries suffered in a motor vehicle accident. Presently before the court is Defendant JB Hunt Transport Inc.’s motion in limine, or, alternatively, request for a Daubert Hearing to preclude the testimony and opinions of Plaintiffs’ expert. (Doc. 68.) For the reasons that follow, Defendant JB Hunt Transport Inc.’s motion will be denied.

 

 

1. Background
2. Facts1

Plaintiffs Francisco Ramos-Becerra and Louisa Ramos (together, “Plaintiffs”) are Mexican citizens that reside in Chambersburg, Pennsylvania. (Doc. 1 at ¶ 1.) Prior to the events of November 19, 2013, JB Hunt Transport, Inc. (“JB Hunt”), an Arkansas corporation, entered into a trucking transport contract with Ricky L. Hatfield (“Hatfield”), a citizen of Tennessee, and his company, Hatfield Trucking, a Tennessee corporation. (Id. at ¶¶ 2-4, 12-13.) At the time the parties entered into the contract, Hatfield had a slew of past motor vehicle violations, including a 2009 conviction for driving under the influence while operating a tractor trailer, which JB Hunt did not discover prior to hiring him. (Id. at ¶¶ 12-13.) On November 19, 2013, at 5:03 p.m., Hatfield was driving northbound on Interstate-81 in a Hatfield Trucking vehicle while under the influence of alcohol. (Id. at ¶¶ 16, 17, 22, 26.) Hatfield swerved his vehicle onto the shoulder, striking two parked cars and two individuals, including Ramos-Becerra, who suffered catastrophic injuries. (Id. at ¶¶ 23, 29, 31.)

For the purposes of this litigation, Plaintiffs retained the services of Brooks Rugemer (“Mr. Rugemer”), a trucking industry safety expert, to opine as to the contractor screening policies and practices of JB Hunt and the driving actions of Hatfield. (Doc. 68-2, p. 3 of 50.) In his expert report issued on February 16, 2016, Mr. Rugemer states that his opinions contained therein are based on his thirty years of experience working in various capacities in the trucking industry, including as a consultant in restructuring driver recruitment departments, a safety and human resources manager, and a terminal manager. Id. at pp. 13-15 of 50.) In addition, Mr. Rugemer received several professional certifications in the study of the Federal Motor Carrier Safety Regulations (“FMCSRs”) and is a certified instructor for the National Transportation Safety Institute. (Id. at p. 15 of 50.) Mr. Rugemer indicates that he reviewed numerous materials prior to forming the his opinions and conclusions regarding the instant case, including: (1) the Pennsylvania State Police report; (2) the accident reconstruction report; (3) Plaintiffs’ complaint; (4) JB Hunt’s answers to Plaintiffs’ interrogatories; (5) documents produced by JB Hunt in response to Plaintiffs’ document requests; (6) the Hatfield contractual agreement with JB Hunt; (7) district attorney records and photographs; (8) Pennsylvania State Police photographs; (9) Hatfield’s employment records from TCT Trucking, Inc.; (10) Hatfield’s driving records from the Utah Department of Public Safety; (11) Hatfield’s driving records from the Tennessee Highway Patrol; (12) Hatfield’s driving records from the Maryland State Police; (13) the Hatfield deposition dated February 13, 2015 and July 9, 2015; (14) the Derek Jones deposition dated September 1, 2015; (15) the Vanessa Hernandez deposition dated September 1, 2015; (16) the CB Mahaffrey deposition dated September 2, 2015); (17) the Stan Hampton deposition dated September 2, 2015; (18) the Francisco Ramos-Becerra deposition dated November 18, 2015; (19) the Deborah Winkler deposition dated January 20, 2016; (20) the Crystal Minardi deposition dated January 20, 2016; (21) the Michael Napier report; and (22) documents from the Owner Operator Independent Drivers Association. (Id. at p. 3 of 50.)

 

*2 Based on his experience as well as his “training and knowledge of the [FMSCRs], OSHA Regulations, and recognized and accepted Transportation Industry Standards and Best Practices” (Id. at p. 4 of 50), Mr. Rugemer came to the following conclusions “within the bounds of reasonable Professional certainty:”

1. Operation of a tractor trailer can pose a danger to the public unless the vehicle is operated by a competent driver who exhibits appropriate judgment and sense.
2. JB Hunt breached the standard of care by failing to perform any industry recognized screening of Hatfield prior to engaging his services to haul trailers. Since Hatfield had no safety rating on the Safersys.org [website,] JB Hunt was negligent in not taking any steps to check on Hatfield’s background including his driving record.
3. JB Hunt hired Hatfield even though a basic background check would have shown his conviction for driving a tractor trailer under the influence in 2009. JB Hunt never should have engaged Hatfield to transport trailers including the Walmart blitz campaign which had Hatfield operating a tractor in and around central Pennsylvania.
4. Hatfield became intoxicated on November 19, 2013 after receiving a dispatch to return to Fredericksburg[,] VA to deliver a trailer to Bensalem on November 20, 2013.
5. Francisco Ramos would not have been injured on November 19, 2013 had JB Hunt not hired Hatfield to haul trailers.
6. Ricky Hatfield breached the standard of care by operating his tractor under the influence of alcohol which caused the accident in which Ramos was injured.

(Id. at p. 12 of 50.)

 

 

1. Procedural History

Plaintiffs initiated this action by filing a complaint against Hatfield, Hatfield Trucking, and JB Hunt on March 21, 2014 in the Eastern District of Pennsylvania. (Doc. 1.) In their complaint, Plaintiffs assert negligence claims and a loss of consortium claim under Pennsylvania law against the Defendants as a result of the November 19, 2013 accident. (Id. at Counts I-IV.) On May 12, 2014, the matter was transferred by joint stipulation and order to the Middle District of Pennsylvania. (Doc. 7.) On March 18, 2016, JB Hunt filed the present motion in limine seeking to exclude the expert testimony and opinions of Mr. Rugemer or, in the alternative, to request a Daubert hearing. (Doc. 68.) In its brief in support of the motion, JB Hunt argues that Mr. Rugemer does not possess the requisite qualifications to opine on freight brokers in the trucking industry and that his report is unreliable. (See Doc. 69.)

 

Plaintiffs filed a response (Doc. 70) and a brief in opposition on April 1, 2016 (Doc. 71). JB Hunt filed a reply on April 13, 2016 (Doc. 73) to which Plaintiffs, with leave of court (Doc. 80), filed a sur-reply on April 22, 2016 (Doc. 81). Thus, the motion has been fully briefed and is ripe for deposition.

 

 

1. Legal Standard

The admissibility of expert testimony is a question of law governed by Federal Rule of Evidence 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-89 (1993). The Third Circuit has established that “Rule 702 embodies a trilogy of restrictions on expert testimony: qualifications, reliability and fit.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994)). First, to be qualified, the expert witness must possess specialized knowledge regarding the area of testimony. Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)). This requirement is to be liberally interpreted and “a broad range of knowledge, skills, and training” can qualify an expert. In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999) (quoting In re Paoli, 35 F.3d at 741). Second, “an expert’s opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation” to be considered reliable. Oddi v. Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000). Finally, in order to satisfy the “fit” requirement, “an expert’s testimony must assist the trier of fact.” Id. at 145. Whether an expert’s testimony fits depends upon the “relevant ‘connection between the scientific research or test result to be presented and particular disputed factual issues in the case.’ ” Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 531 (D.N.J. 2001) (quoting In re Paoli, 35 F.3d at 743).

 

*3 When reviewing expert testimony, a trial court must act as a gatekeeper “to ensure that ‘any and all expert testimony or evidence is not only relevant, but also reliable.’ ” Pineda v. Ford. Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (quoting Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)). However, a court must not “weigh the evidence relied upon or determine whether it agrees with the conclusions reached therein.” Walker v. Gordon, 46 Fed.Appx. 691, 695 (3d Cir. 2002) (citing Daubert, 509 U.S. at 591-93). “Determinations regarding the weight to be accorded, and the sufficiency of, the evidence relied upon by the proffered expert, are within the sole province of the jury.” Id. (citing Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983)). In addition, “[t]he analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination.” Oddi, 234 F.3d at 146 (quoting Kannankeril, 128 F.3d at 806).

 

 

III. Discussion

In its motion in limine seeking to preclude Mr. Rugemer’s testimony and/or report at trial, JB Hunt argues that Mr. Rugemer does not possess the requisite qualifications to give an expert opinion regarding freight brokers, and that his report is unreliable and does not fit because it contains incorrect information and unsupported, conclusory statements. (Doc. 69, pp. 7-23.) The court will address each of JB Hunt’s arguments in turn.

 

 

1. Qualifications

Regarding Mr. Rugemer’s qualifications to testify as an expert witness in this case, JB Hunt argues that Mr. Rugemer does not possess any skill or knowledge greater than that of an average layman on the subject of freight brokers and therefore his testimony should be precluded. More specifically, JB Hunt asserts that, at all times relevant in this matter, it operated solely as a freight broker and was therefore subject to the FMCSRs related to brokers of property. Because Mr. Rugemer’s report is devoid of any specific reference to the FMCSRs, JB Hunt argues that Mr. Rugemer lacks the knowledge and qualifications to render an expert opinion on freight brokers within the trucking industry.

 

In response, Plaintiffs assert that Mr. Rugemer did not reference the FMCSRs because they have no relevancy to the issues at hand as JB Hunt did not act as a freight broker in this matter. Instead, under the terms of the Outsource Carriage Agreement, the relationship between JB Hunt and Hatfield trucking was one of independent contractor and there were no brokers involved. Plaintiffs argue that Mr. Rugemer is clearly qualified through his education and experience to testify regarding independent contractors, and further that, even if this case only involved the responsibilities of freight brokers, Mr. Rugemer is still qualified to testify.

 

Without deciding whether JB Hunt acted as a freight broker, the court finds that Mr. Rugemer is qualified to testify in this matter. When reviewing an expert witness’s qualifications, the Third Circuit requires expert witnesses “to ‘have specialized knowledge’ regarding the area of testimony,” but allows “practical experience as well as academic training and credentials” to satisfy this requirement. Elcock, 233 F.3d at 741 (quoting Waldorf, 142 F.3d at 625). “[A]t a minimum, a proffered expert witness…must possess skill or knowledge greater than the average layman.” Betterbox Commc’ns Ltd. V. BB Techs., Inc., 300 F.3d 325, 328 (3d Cir. 2002) (citations omitted). Mr. Rugemer’s curriculum vitae demonstrates that he possesses substantial experience with the FMCSRs and driver recruitment in the trucking industry. He is a certified instructor for the National Transportation Safety Institute and has received professional certifications in the study of the FMCSRs from the Department of Transportation. (Id. at p. 15 of 50.) As a terminal manager for Eagle Carriers, Mr. Rugemer oversaw “all hiring and contract functions” for twenty-seven company drivers and eleven owner-operators, a type of independent contractor. (Doc. 68-2, p. 14 of 50.) While employed at Hahn Transportation, Mr. Rugemer served as a safety and human resources manager whose duties included “CDL driver recruiting, DOT compliance, and safety training.” (Id.) Mr. Rugemer has also been retained as a consultant by several trucking companies to restructure their driver recruitment departments. (Id. at p. 13 of 50.) Therefore, the court finds that Mr. Rugemer’s professional certifications in the FMCSRs and extensive experience in driver recruitment satisfy the liberal requirements for serving as an expert witness. See In re Paoli, 35 F.3d at 741 (“We have eschewed imposing overly rigorous requirements of expertise and have been satisfied with more generalized qualifications.”)

 

 

1. Reliability

*4 JB Hunt further argues that Mr. Rugemer’s opinions are unreliable because he fails to cite to any applicable law, including the FMCSRs, and instead relies on third party opinion articles. In response, Plaintiffs contend that, while Mr. Rugemer does in fact cite to the applicable law, he does not cite to the FMCSRs because, as discussed above, JB Hunt did not act as a freight broker and was therefore not subject to the FMCSRs. Instead, Pennsylvania common law governed JB Hunt’s responsibilities in regard to its selection of contractors. As to Mr. Rugemer’s reference to opinion articles, Plaintiffs contend that the foundation of Mr. Rugemer’s opinions is reliable and it is not for the court to decide which party is utilizing the best evidence.

 

When judging the reliability of an expert witness’s opinions, “Daubert does not require a paradigm of scientific inquiry as a condition precedent to admitting expert testimony, [but] it does require more than … haphazard, intuitive inquiry.” Id. at 156. Specifically, Daubert requires that an expert witness’s conclusions rely on the methods and principles of science or “good grounds.” In re Paoli, 35 F.3d at 732. However, “any step that renders the analysis unreliable…renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” Leese v. Lockheed Martin Corp., 6 F. Supp. 3d 546, 551 (D.N.J. 2014) (quoting In re Paoli, 35 F.3d at 745)).

 

In order to determine whether Mr. Rugemer’s lack of citation to the FMCSRs renders his methodology unreliable, the court must first address whether the FMCSRs preempt state standards of care in the selection of an independent contractor in the trucking industry. The Third Circuit recognizes three categories of preemption: 1) express preemption that is stated in the statute’s language or implicit in its structure and purpose; 2) conflict preemption that arises when a state law makes it impossible for a private party to comply with both state and federal requirements; and 3) field preemption that occurs when a field is reserved for federal regulation without room for state regulation and congressional intent is clear and manifest. Elassaad v. Indep. Air, Inc., 613 F.3d 119, 126 (3d Cir. 2010) (citations omitted). “Both statutes and regulations can preempt state law.” Id. (citation omitted).

 

In the present case, JB Hunt did not identify any evidence of express preemption, conflict between state law and federal regulatory requirements, or congressional intent to exclusively regulate the trucking industry utilizing the FMCSRs. Instead, rather than preempting state law, the FMCSRs establish only “minimum safety standards for commercial motor vehicles,” see 49 U.S.C. § 31136(a), and the Secretary of Transportation is required to consider state laws and regulations on commercial motor vehicle safety when prescribing regulations “to minimize their unnecessary preemption.” 49 U.S.C. § 31136(c)(2)(B).

 

In addition, although no court in the Third Circuit has addressed whether the FMCSRs impose exclusive duties in trucking cases bringing state law negligent hiring claims, the District of Maryland determined that a third-party logistics trucking company was subject to liability under Maryland common law, which recognized “that an employer may be held liable for negligence in ‘selecting, instructing, or supervising’ … [an independent] contractor.” Schramm v. Foster, 341 F. Supp. 2d 536, 551 (D. Md. 2004). In Schramm, CH Robinson, a third party logistics company, independently contracted a motor carrier, Groff Brothers, which possessed a marginally satisfactory safety rating from the Federal Motor Carrier Safety Administration database. Id. at 542-43. One of the founders of Groff Brothers had previously managed another carrier that had contracted with CH Robinson, but had “experienced a safety performance problem which prompted the formation of Groff Brothers.” Id. at 542, 551. After CH Robinson contracted with Groff Brothers, one of the latter’s drivers caused a motor vehicle accident. Id. at 540-41. The court found under Maryland law that CH Robinson’s “duty to use reasonable care in the selection of carriers” included subsidiary duties to check the safety statistics and evaluations of carriers and “to maintain internal records of the persons with whom it contracts to assure that they are not manipulating their business practices in order to avoid unsatisfactory ratings.” Id. In addressing the compatibility of these duties with those imposed by the FMCSRs, the court reasoned as follows:

*5 These obligations are not onerous, and…[the] imposition of such a common law duty would [not] be incompatible with the regulations promulgated by the FMCSR. To the contrary, imposing a common law duty upon third party logistics companies to use reasonable care in selecting carriers furthers the critical federal interest in protecting drivers and passengers on the nation’s highways.

Id. at 551-52.

 

Other federal courts have likewise found that the FMCSRs do not preempt state law. See, e.g., Aycock v. U. S. Pipe and Foundry Co. LLC., Civ. No. 13-cv-0003, 2013 WL 3325495, *4 (M.D. Ga. June 28, 2013) (rejecting argument that the FMCSRs preempt state law on negligent hiring); Oaks v. Wiley Sanders Truck Lines, Inc., Civ. No. 07-cv-0045, 2008 WL 2859021, *4 (E.D. Ky. July 22, 2008) (holding that state and common law claims are not preempted by the FMCSRs). Based on the FMCSRs’ intent to minimize the preemption of state laws and regulations on commercial vehicle safety and the reasoning in Schramm, the court finds that the FMCSRs are not the exclusive source for duties and standards in a state law negligent hiring claim. As a result, JB Hunt’s arguments regarding Mr. Rugemer’s lack of citation to the FMCSRs address the weight and credibility to be accorded to his report and testimony, rather than his reliability, and are better preserved for the jury. In re TMI Litig., 193 F.3d 613, 713 (3d Cir. 1999) (citing Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) (“Where there is a logical basis for an expert’s opinion testimony, the credibility and weight of that testimony is to be determined by the jury, not the trial judge.”)).

 

JB Hunt also characterizes Mr. Rugemer’s conclusions regarding the standard of care as unreliable because, in preparing his report, he reviewed legal articles on a third party carrier-monitoring website known as Carrier411 that allegedly contradict the standards for freight brokers under the FMCSRs. (Doc. 69, p. 11.) Beyond JB Hunt’s repeated protestations that the FMCSRs control the standard of care, and as a result, make all other contrary sources unreliable, JB Hunt fails to give any reasons as to why the Carrier411 website, upon which its own recruiter heavily relied, is unreliable. See JB Hunt’s mere disagreement with Mr. Rugemer’s opinions does not render his sources unreliable. See Heller v. Shaw Indus., Inc., 167 F.3d 146, 160 (3d Cir. 1999) (stating that expert testimony cannot be excluded simply because the expert uses one test rather than another). Further, JB Hunt will have an opportunity at trial to cross-examine Mr. Rugemer and present other contrary evidence that calls Mr. Rugemer’s opinion into question. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”). Because the court need only determine here whether the foundation for Mr. Rugemer’s opinion is sufficient and reliable, and JB Hunt itself relies on Carrier 411, the court finds that Mr. Rugemer’s use of the Carrier411 website does not render his report unreliable.

 

Accordingly, for the reasons provided above, the court finds that Mr. Rugemer’s opinion is reliable for purposes of satisfying Rule 702.

 

 

1. Fit

Finally, JB Hunt suggests that Mr. Rugemer’s report does not “fit” to assist the trier of fact, and remains unreliable, because it contains false information and unsupported conclusions. (Doc. 69, pp. 12-20.) In response, Plaintiffs argue that Mr. Rugemer’s report rests upon “good grounds” and that JB Hunt’s arguments improperly address the weight of the evidence. (Doc. 70, pp. 9-17.)

 

*6 First, JB Hunt asserts that Mr. Rugemer falsely concludes that “JB Hunt knew of or should have known that Hatfield Trucking consisted entirely of Ricky Hatfield” (Doc. 68-2, p. 5 of 50), when Hatfield’s deposition testimony revealed that there were at least four additional drivers employed by Hatfield Trucking. (Doc. 69, p. 12.) However, Mr. Rugemer’s actually concluded that, upon entering into the Outsource Carriage Agreement with Hatfield Trucking, “JB Hunt knew or should have known that Hatfield Trucking consisted entirely of Ricky Hatfield who had only recently obtained his DOT authority and had no DOT safety rating.” (Doc. 68-2, p. 5 of 50.) This statement was based on the JB Hunt carrier profile application wherein Hatfield represented himself as the sole driver for Hatfield Trucking. (Id. at p. 36 of 50.) As a result, the court finds that Mr. Rugemer had “good grounds” for concluding that JB Hunt knew or should have known that Hatfield was the sole driver for Hatfield Trucking at the time the parties entered into the Outsource Carriage Agreement.

 

Next, JB Hunt argues that Mr. Rugemer’s report erroneously refers to Hatfield and Hatfield Trucking as an “owner/operator.” (Doc. 69, pp. 12-15.) However, JB Hunt misconstrues the thrust of Mr. Rugemer’s analysis. According to his report, typical owner/operator lease programs conduct “background investigations and generate a Driver Qualification File.” (Doc. 68-2, p. 9 of 50.) JB Hunt’s trademarked Power Carrier program, to which Hatfield Trucking belonged, is identical to an owner/operator lease program except that JB Hunt chooses not to perform these investigations on its Power Carriers. (Id.) Mr. Rugemer does not label Hatfield Trucking or Hatfield as owner/operators, but instead refers to JB Hunt’s terms and conditions for its owner/operator lease program in order to conclude that JB Hunt’s internal hiring standards for owner/operators represent the proper hiring standard for any licensed truck driver, including Power Carriers. (Id.) As a result, Mr. Rugemer did not erroneously label Hatfield and Hatfield Trucking as owner/operators.

 

JB Hunt also asserts that Mr. Rugemer concludes, without support, that Hatfield Trucking was “under dispatch” for JB Hunt at the time of the accident and that this conclusion contradicts Hatfield’s deposition testimony that he was not under dispatch at the time as well as the Outsource Carriage Agreement’s requirements for tendering of a load. (Doc. 69, pp. 16-18.) However, in reaching his conclusion, Mr. Rugemer relies on JB Hunt’s own internal documentation consisting of a load tender sheet and a confirmation sheet. (Doc. 68-2, pp. 10-11 of 50.) Both sheets indicate that the same trailer and load had been “tendered” to Hatfield and Hatfield Trucking early on November 19, 2013. (Id.) Therefore, the court finds that JB Hunt’s internal documentation provides “good grounds” to conclude that Hatfield was under dispatch.

 

Finally, JB Hunt argues that Mr. Rugemer’s conclusion that JB Hunt’s Power Carrier program did not operate as an actual freight broker is mere ipse dixit. (Doc. 69, pp. 15-17.) However, in reaching this conclusion, Mr. Rugemer relied, in part, on Section 4.1 of the Outsource Carriage Agreement, which required Hatfield Trucking to provide periodic updates to JB Hunt “on the status of any shipment for which it accepts tender.” (Doc. 68-2, pp. 11-12 of 50.) His report then notes that JB Hunt requires the same periodic updates from their employees and contracted owner/operators. (Id.) Based on these two observations, Mr. Rugemer concludes that “any suggestion that [JB] Hunt was acting purely as a trucking broker is erroneous.” (Id. at 12 of 50.) Because JB Hunt does not dispute the basis of the observations, but only offers a list of FMCSR definitions, standards, and facts that Mr. Rugemer failed to include in his report, its arguments relate to “questions of credibility or weight, not to the issue of admissibility.” E.E.O.C. v. FAPS, Inc., Civ. No. 10-cv-3095, 2014 WL 4798802, * 7 (D.N.J. Sept. 26, 2014) (citing Walker v. Gordon, 46 Fed.Appx. 691, 695-96 (3d Cir. 2002)). Accordingly, the court finds that Mr. Rugemer’s conclusion that JB Hunt’s Power Carrier program did not act as a freight broker rests upon “good grounds.”

 

*7 In conclusion, because the court finds that Mr. Rugemer qualifies as an expert witness, that his opinions may be considered reliable, and that his testimony fits to assist the trier of fact, JB Hunt’s motion in limine to exclude Mr. Rugemer’s report and testimony will be denied.

 

 

1. Request for Daubert Hearing

In the alternative to its motion in limine to preclude the report and/or testimony of Mr. Rugemer, JB Hunt moves for a Daubert hearing. Although the Third Circuit recognizes the importance of in limine hearings in making reliability determinations under Rule 702 and Daubert, “[a]n in limine hearing will obviously not be required whenever a Daubert objection is raised to a proffer of expert evidence.” Kerrigan v. Maxon Indus., 223 F. Supp. 2d 626, 633 (E.D. Pa. 2002) (quoting Padillas v. Stork-Gamco, 186 F.3d 412, 418 (3d Cir. 1999)). “Ultimately, the decision whether or not to hold a hearing rests within the sound discretion of the court.” Feit v. Great-West Life and Annuity Ins. Co., 460 F. Supp. 2d 632, 637 (D.N.J. 2006) (quoting Oddi v. Ford Motor Co., 234 F.3d 136, 153 (3d Cir. 2000)). A Daubert hearing is not necessary when “the facts upon which the court must make its determination have been adequately presented to the court in the parties’ papers and accompanying exhibits.” Parkinson v. Guidant Corp., 315 F. Supp. 2d 754, 756 n.1 (W.D. Pa. 2004) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 749 (3d Cir. 1994) (“Evaluating the reliability of scientific methodologies and data does not generally involve assessing the truthfulness of the expert witness and thus is often not significantly more difficult on a cold record.”)). Here, the court finds that the parties’ submissions are sufficient for the court to determine that Mr. Rugemer is qualified to testify as an expert witness. Thus, the court will deny JB Hunt’s request for a Daubert hearing.

 

 

1. Conclusion

Based on the foregoing discussion, the court is satisfied that Mr. Rugemer is qualified to testify under Rule 702. Accordingly, the court will deny JB Hunt’s motion to preclude his expert report and testimony. The court will also deny JB Hunt’s request for a Daubert hearing.

 

An appropriate order will issue.

 

All Citations

Slip Copy, 2016 WL 4127387

 

 

Footnotes

1

The court will present the relevant allegations of the complaint. The statements contained herein reflect neither the findings of fact nor the opinion of the court as to the veracity of Plaintiffs’ allegations.

Supreme Court, Appellate Division, Second Department, New York.

Frederick M. CIOFFI, et al., appellants-respondents,

v.

S.M. FOODS, INC., et al., defendants,

Atlanta Foods International, et al., respondents-appellants,

Ryder Truck Rental, Inc., respondent

(and a third-party action). (Appeal No. 1).

Frederick M. Cioffi, et al., appellants,

v.

S.M. Foods, Inc., et al., respondents, et al., defendants

(and a third-party action). (Appeal No. 2)

Aug. 10, 2016.

 

Attorneys and Law Firms

Grant & Longworth, LLP, Dobbs Ferry, N.Y. (Jonathan Rice and Marie R. Hodukavich of counsel), for appellants-respondents in Appeal No. 1 and appellants in Appeal No. 2.

White, Quinlan & Staley, LLP, Garden City, N.Y. (Terence M. Quinlan of counsel), for respondents-appellants in Appeal No. 1 and respondents Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay in Appeal No. 2.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro and Kimberley A. Carpenter of counsel), for respondent in Appeal No. 1, respondents S.M. Foods, Inc., and Ryder Truck Rental, Inc., in Appeal No. 2, and defendants GFI Boston, LLC, PLM Trailer Leasing, and Daniel E. Burke in Appeal No. 2.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.

Opinion

 

*1 In an action to recover damages for personal injuries, etc., (1) the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 7, 2013, as granted those branches of the motion of the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay which were to compel them to provide a supplemental expert witness disclosure and to respond to certain discovery demands, and denied those branches of their cross motion which were to strike the answer of those defendants and of the defendant Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants from offering certain evidence at trial, and the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay, cross-appeal from so much of the same order as granted that branch of the plaintiffs’ cross motion which was to impose sanctions against them to the extent of directing that a negative inference charge be given against them at trial, and (2) the plaintiffs appeal, as limited by their brief, from so much of an order of the same court dated January 22, 2014, as denied those branches of their motion which were to strike the answers of the defendants Atlanta Foods International, Russell McCall’s, Inc., Doug Jay, and Ryder Truck Rental, Inc., or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc., from offering evidence at trial regarding certain theories of liability.

 

ORDERED that the order dated November 7, 2013, is affirmed insofar as appealed and cross-appealed from; and it is further,

 

ORDERED that the order dated January 22, 2014, is affirmed insofar as appealed from; and it is further,

 

ORDERED that one bill of costs is awarded to the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay, and the defendants Ryder Truck Rental, Inc., and S.M. Foods, Inc., appearing separately and filing separate briefs, payable by the plaintiffs.

 

On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while he was conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19, 2008, the tractor trailer had been leased pursuant to a rental agreement to the defendant GFI Boston, LLC (hereinafter GFI), Burke’s employer. The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Ryder, GFI, Burke, and certain of GFI’s corporate parents and principals, namely, the defendants Atlanta Foods International, Russell McCall’s, Inc., and Doug Jay (hereinafter collectively the Atlanta defendants), to recover damages for personal injuries (see Cioffi v. S.M. Foods, Inc., 129 A.D.3d 888, 10 N.Y.S.3d 620).

 

The Atlanta defendants moved, inter alia, to compel the plaintiffs to provide a supplemental expert witness disclosure and to respond to certain discovery demands. The plaintiffs cross-moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial, or for other sanctions based upon their alleged failure to comply with disclosure orders and demands. In an order dated November 7, 2013, the Supreme Court granted those branches of the Atlanta defendants’ motion which were to compel the plaintiffs to provide a supplemental expert disclosure and other items, and granted that branch of the plaintiffs’ cross motion which was to impose sanctions against the Atlanta defendants to the extent of directing that a negative inference charge be given at trial against the Atlanta defendants based upon their destruction of certain electronic data. The court otherwise denied the plaintiffs’ cross motion. The plaintiffs appeal and the Atlanta defendants cross-appeal from this order.

 

*2 The plaintiffs then moved, inter alia, to strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants and the defendant S.M. Foods, Inc. (hereinafter S.M. Foods), from offering certain evidence at trial. In an order dated January 22, 2014, the Supreme Court denied those branches of the plaintiffs’ motion. The plaintiffs appeal from this order.

 

[1] [2] “ ‘[A] trial court is given broad discretion to oversee the discovery process’ “ (Maiorino v. City of New York, 39 A.D.3d 601, 601, 834 N.Y.S.2d 272, quoting Castillo v. Henry Schein, Inc., 259 A.D.2d 651, 652, 686 N.Y.S.2d 818; see Berkowitz v. 29 Woodmere Blvd. Owners’, Inc., 135 AD3d 798, 799). Thus, “[t]he supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Berkowitz v. 29 Woodmere Blvd. Owners’, Inc., 135 A.D.3d at 799, 24 N.Y.S.3d 354 [internal quotation marks omitted]; see Gould v. Decolator, 131 A.D.3d 445, 447, 15 N.Y.S.3d 138; Ligoure v. City of New York, 128 A.D.3d 1027, 1028, 9 N.Y.S.3d 678; Daniels v. City of New York, 117 A.D.3d 981, 986 N.Y.S.2d 516). Nevertheless, this Court is “vested with a corresponding power to substitute its own discretion for that of the trial court” (Peculic v. Sawicki, 129 A.D.3d 930, 931, 11 N.Y.S.3d 653; see Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745, 709 N.Y.S.2d 873, 731 N.E.2d 589; Brady v. Ottaway Newspapers, 63 N.Y.2d 1031, 1032, 484 N.Y.S.2d 798, 473 N.E.2d 1172).

 

[3] [4] [5] Turning first to that branch of the Atlanta defendants’ motion which was for additional disclosure in connection with the plaintiffs’ expert witness disclosure, a litigant is required to “identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion” (CPLR 3101[d][1][i] ). The CPLR exempts attorney work product from disclosure (see CPLR 3101[c]; Oakwood Realty Corp. v. HRH Constr. Corp., 51 A.D.3d 747, 749, 858 N.Y.S.2d 677). However, “the party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation or constitutes attorney work product bears the burden of demonstrating that the material it seeks to withhold is immune from discovery by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” (Ural v. Encompass Ins. Co. of Am., 97 A.D.3d 562, 566, 948 N.Y.S.2d 621 [citation omitted] ). Furthermore, “[n]ot every manifestation of a lawyer’s labors enjoys the absolute immunity of work product. The exemption should be limited to those materials which are uniquely the product of a lawyer’s learning and professional skills, such as materials which reflect his [or her] legal research, analysis, conclusions, legal theory or strategy” (Hoffman v. Ro–San Manor, 73 A.D.2d 207, 211, 425 N.Y.S.2d 619; see Beach v. Touradji Capital Mgt., LP, 99 A.D.3d 167, 170, 949 N.Y.S.2d 666; Kinge v. State of New York, 302 A.D.2d 667, 670, 754 N.Y.S.2d 717).

 

*3 Here, the plaintiffs contend that materials obtained by their attorney via requests pursuant to state and federal freedom of information laws are privileged attorney work product. However, this material cannot be characterized as being “uniquely the product of [the plaintiffs’ counsel’s] learning and professional skills” or as reflecting his “legal research, analysis, conclusions, legal theory or strategy” (Hoffman v. Ro–San Manor, 73 A.D.2d at 211, 425 N.Y.S.2d 619). Accordingly, the Supreme Court did not improvidently exercise its discretion in granting that branch of the Atlanta defendants’ motion which was to compel the plaintiffs to disclose this material.

 

[6] [7] [8] [9] We turn next to those branches of the plaintiffs’ cross motion which were strike the answers of the Atlanta defendants and Ryder or, in the alternative, to preclude those defendants from offering certain evidence at trial. The plaintiffs contended that these defendants’ answers should be stricken on the ground that they failed to comply with discovery demands and orders. Pursuant to CPLR 3126, where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed,” the court may, inter alia, strike that party’s pleadings or portions thereof (CPLR 3126[3] ). “ ‘The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ “ and will not be disturbed absent an improvident exercise of discretion (Giano v. Ioannou, 78 A.D.3d 768, 770, 911 N.Y.S.2d 398, quoting Fishbane v. Chelsea Hall, LLC, 65 A.D.3d 1079, 1081, 885 N.Y.S.2d 718; see Kihl v. Pfeffer, 94 N.Y.2d 118, 122, 700 N.Y.S.2d 87, 722 N.E.2d 55; Silberstein v. Maimonides Med. Ctr., 109 A.D.3d 812, 814, 971 N.Y.S.2d 167; John Hancock Life Ins. Co. of N.Y. v. Triangulo Real Estate Corp., 102 A.D.3d 656, 657, 956 N.Y.S.2d 915). However, “the ‘drastic remedy’ of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d 685, 686, 920 N.Y.S.2d 394, quoting Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d 798, 801, 914 N.Y.S.2d 196; see Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 127 A.D.3d 911, 913, 7 N.Y.S.3d 361; Silberstein v. Maimonides Med. Ctr., 109 A.D.3d at 814, 971 N.Y.S.2d 167; Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 210, 959 N.Y.S.2d 74). Precluding a party from presenting evidence is also a drastic remedy which generally requires a showing that the party’s conduct is willful and contumacious (see Jennings v. Orange Regional Med. Ctr., 102 A.D.3d 654, 656, 958 N.Y.S.2d 168).

 

[10] [11] “Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d at 686–687, 920 N.Y.S.2d 394 [internal quotation marks omitted]; see Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 127 A.D.3d at 913, 7 N.Y.S.3d 361; Commisso v. Orshan, 85 A.D.3d 845, 925 N.Y.S.2d 612; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196). “The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court” (Rock City Sound, Inc. v. Bashian & Farber, LLP, 83 A.D.3d at 686, 920 N.Y.S.2d 394; see Commisso v. Orshan, 85 A.D.3d at 845, 925 N.Y.S.2d 612; Friedman, Harfenist, Langer & Kraut v. Rosenthal, 79 A.D.3d at 800, 914 N.Y.S.2d 196; Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 954, 878 N.Y.S.2d 178).

 

*4 [12] In this case, the record does not establish that the conduct of the Atlanta defendants or Ryder was willful or contumacious. In support of their request for sanctions, the plaintiffs point primarily to those defendants’ objections or their statements that items had already been produced or could not be found. Such statements cannot be characterized as willful resistance to discovery, nor can the objections, many of which were upheld by the Supreme Court, be considered evidence of a recalcitrant failure to participate in discovery. Furthermore, in the order dated November 7, 2013, the court made a careful and thorough inventory of the parties’ demands and responses, provided a particularized list of 18 categories of documents to which it found the plaintiffs were entitled, and identified which defendants were responsible for providing each category of documents. This examination of the parties’ discovery demands demonstrates the court’s attention to detail and its efforts to manage disclosure in a manner that was both just and fair. Therefore, the court providently exercised its discretion in determining that the drastic sanctions of striking the pleadings of the Atlanta defendants and Ryder, or precluding those defendants from presenting evidence at trial, were not warranted.

 

[13] [14] The plaintiffs also asserted that the Atlanta defendants’ answer should be stricken based upon their spoliation of certain evidence. “Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence” (Morales v. City of New York, 130 A.D.3d 792, 793, 13 N.Y.S.3d 548; see CPLR 3126; Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 845–846; Eremina v. Scparta, 120 A.D.3d 616, 617, 991 N.Y.S.2d 438; Biniachvili v. Yeshivat Shaare Torah, Inc., 120 A.D.3d 605, 606, 990 N.Y.S.2d 891). “The party requesting sanctions for spoliation has the burden of demonstrating that a litigant intentionally or negligently disposed of critical evidence, and fatally compromised its ability to prove its claim or defense” (Morales v. City of New York, 130 A.D.3d at 793, 13 N.Y.S.3d 548 [internal quotation marks omitted]; see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d at 846, 28 N.Y.S.3d 86; Lentini v. Wechsler, 120 A.D.3d 1200, 1201, 992 N.Y.S.2d 135).

 

[15] “ ‘The nature and severity of the sanction depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of the evidence, and the degree of prejudice to the opposing party’ “ (Morales v. City of New York, 130 A.D.3d at 793, 13 N.Y.S.3d 548, quoting Samaroo v. Bogopa Serv. Corp., 106 A.D.3d 713, 714, 964 N.Y.S.2d 255; see Lentini v. Wechsler, 120 A.D.3d at 1201, 992 N.Y.S.2d 135). “[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” and may, “under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation” (Biniachvili v. Yeshivat Shaare Torah, Inc., 120 A.D.3d at 606, 990 N.Y.S.2d 891; see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d at 846, 28 N.Y.S.3d 86; Ortiz v. Bajwa Dev. Corp., 89 A.D.3d 999, 933 N.Y.S.2d 366; Awon v. Harran Transp. Co., Inc., 69 A.D.3d 889, 890, 895 N.Y.S.2d 135).

 

*5 [16] [17] When the moving party is still able to establish or defend a case, a less severe sanction than striking a pleading is appropriate (see Morales v. City of New York, 130 A.D.3d at 794, 13 N.Y.S.3d 548; De Los Santos v. Polanco, 21 A.D.3d 397, 398, 799 N.Y.S.2d 776; Iannucci v. Rose, 8 A.D.3d 437, 438, 778 N.Y.S.2d 525). Furthermore, where the plaintiffs and the defendants are equally affected by the loss of the evidence and neither has reaped an unfair advantage in the litigation, it is improper to dismiss or strike a pleading on the basis of spoliation of evidence (see De Los Santos v. Polanco, 21 A.D.3d at 398, 799 N.Y.S.2d 776; Lawson v. Aspen Ford, Inc. ., 15 A.D.3d 628, 629–630, 791 N.Y.S.2d 119).

 

[18] The determination of the appropriate sanction for spoliation is within the broad discretion of the court (see Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189; Biniachvili v. Yeshivat Shaare Torah, Inc., 120 A.D.3d at 606, 990 N.Y.S.2d 891; Ortiz v. Bajwa Dev. Corp., 89 A.D.3d at 999, 933 N.Y.S.2d 366). This Court will substitute its judgment for that of the Supreme Court only if that court’s discretion was improvidently exercised (see Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d at 846, 28 N.Y.S.3d 86; Morales v. City of New York, 130 A.D.3d at 793, 13 N.Y.S.3d 548; Samaroo v. Bogopa Serv. Corp., 106 A.D.3d at 714, 964 N.Y.S.2d 255).

 

[19] Here, the record supports the Supreme Court’s conclusion that, at the time the Atlanta defendants destroyed the electronic data at issue, they were parties to this litigation and knew or should have known of the potential relevance of the data to the plaintiffs’ claims. Nevertheless, the plaintiffs have not demonstrated that the Atlanta defendants’ destruction of the data was willful rather than merely negligent. In addition, the plaintiffs have not demonstrated that the destruction of the data has significantly affected their ability to prove their claims. Accordingly, the Supreme Court providently exercised its discretion in declining to strike the Atlanta defendants’ answer or preclude them from presenting evidence (see Jennings v. Orange Regional Med. Ctr., 102 A.D.3d at 656, 958 N.Y.S.2d 168; see also Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718, 872 N.Y.S.2d 166). However, contrary to the Atlanta defendants’ contention, since they knew or should have known that the data should have been preserved, the imposition of the lesser sanction of a negative inference was appropriate. Therefore, the court properly granted that branch of the plaintiffs’ motion which was to impose a sanction against the Atlanta defendants to the extent of directing that a negative inference charge be given against them at trial.

 

Turning finally to the plaintiffs’ appeal from the order dated January 22, 2014, we find that the plaintiffs failed to demonstrate their entitlement to an order striking the answers of the Atlanta defendants and Ryder. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was to strike those defendants’ answers (see Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 127 A.D.3d at 913, 7 N.Y.S.3d 361; Silberstein v. Maimonides Med. Ctr., 109 A.D.3d at 814, 971 N.Y.S.2d 167; Jennings v. Orange Regional Med. Ctr., 102 A.D.3d at 656, 958 N.Y.S.2d 168).

 

*6 The parties’ remaining contentions are without merit.