Thomas et al v. Chambers et al, No. 2:2018cv04373 - Document 168 (E.D. La. 2019)
Court Description: ORDER AND REASONS: For the foregoing reasons, defendants' 58 motion to exclude the expert testimony of James Pittman is GRANTED. Gods Way's 36 motion for partial summary judgment on plaintiffs' claims for negligent entrustment an d negligent hiring, training, and supervising is also GRANTED. Those claims are DISMISSED WITH PREJUDICE. Plaintiffs' 55 motion to exclude the expert testimony of Dr. Torrence Welch is DENIED IN PART and GRANTED IN PART. Dr. Welch cannot offer at trial any medical causation opinion. Signed by Judge Sarah S. Vance on 4/17/2019. (mm)
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Thomas et al v. Chambers et al Doc. 168 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIERRA THOMAS, ET AL. CIVIL ACTION VERSUS NO. 18-4373 RANDALL CHAMBERS, ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is (1) plaintiffs’ motion in lim ine to exclude the testim ony of Dr. Torrence Welch, defendants’ accident reconstruction and biom echanical engineering expert; (2) defendants’ m otion in lim ine to exclude the testim ony of J ames Pittm an, plaintiffs’ accident reconstruction expert; and (3) defendant God’s Way Trucking, LLC’s m otion for partial sum m ary judgm ent on plaintiffs’ direct negligence claim. The Court finds that (1) Dr. Welch’s opinions, except for his specific m edical causation opinions, are reliable and adm issible at trial; (2) Pittm an’s expert opinions are inadm issible because they do not require any specialized knowledge; and (3) God’s Way is entitled to summ ary judgm ent on plaintiffs’ direct negligence claim s because God’s Way has stipulated that it is vicariously liable for the alleged accident at the center of this litigation. Dockets.Justia.com I. BACKGROU N D This case arises out of a m otor vehicle accident in Orleans Parish. 1 On April 24, 20 17, plaintiff Kierra Thom as was allegedly driving an autom obile westbound on Interstate 10 in the right-hand lane with plaintiffs Antoine Clark and Shirley Harris as passengers. 2 Defendant Randall Cham bers was allegedly driving a tractor-trailer next to plaintiffs in the m iddle lane. 3 Cham bers was driving the tractor-trailer in the course of his em ploym ent with defendant God’s Way Trucking, LLC. 4 Plaintiffs allege that Thom as was driving “straight in a cautious fashion” when Cham bers negligently attem pted to move into the right-hand lane without “keep[ing] a proper lookout.”5 Chambers’s vehicle allegedly struck plaintiffs’ vehicle, causing all three plaintiffs to be “violently jolted.”6 All three plaintiffs allege that the accident caused serious injuries to their necks and backs. 7 They have each received medical treatm ent for injuries to their cervical and lum bar spines. 8 1 2 3 4 5 6 7 8 R. Doc. 1-4. Id. at 3 ¶¶ 7-8. Id. ¶ 9. Id. at 2 ¶ 3; R. Doc. 36-4 at 3. R. Doc. 1-4 at 3 ¶ 10 . Id. ¶¶ 10 -11. Id. at 5 ¶ 16; 6 ¶¶ 19 & 22. See R. Doc. 88-3 at 17-21. 2 On April 6, 20 18, plaintiffs filed suit against Chambers, God’s Way, and defendant Canal Insurance Com pany. 9 Canal Insurance allegedly insured the vehicle Chambers drove on the day of the collision. 10 Plaintiffs allege that Cham bers’s negligence caused their injuries, and that God’s Way is liable for their dam ages as Cham bers’s employer under the doctrine of respondent superior. 11 Plaintiffs also allege causes of action for negligent entrustm ent and negligent hiring, training, and supervising against God’s Way. 12 Defendants rem oved the action to federal court on April 27, 20 18, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332. 13 Trial is scheduled to com m ence on April 29, 20 19. 14 In advance of trial, plaintiffs m ove to exclude defendants’ accident reconstruction and biom echanical engineering expert, Dr. Torrence Welch. 15 Defendants m ove to exclude plaintiffs’ accident reconstruction expert, J am es Pittm an. 16 God’s Way also m oves for partial sum m ary judgment on plaintiffs’ direct negligence claim s. 17 9 10 11 12 13 14 15 16 17 Id. at 2 ¶ 3. Id. Id. at 4 ¶¶ 13-14. Id. ¶ 14. R. Doc. 1. R. Doc. 9. R. Doc. 55. R. Doc. 58. R. Doc. 36. 3 II. LEGAL STAN D ARD A. Ad m is s ibility o f Exp e rt Te s tim o n y A district court has considerable discretion to adm it or exclude expert testim ony under Federal Rule of Evidence 70 2, which governs the adm issibility of expert testim ony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 20 0 F.3d 358, 371 (5th Cir. 20 0 0 ). Rule 70 2 provides that a witness “qualified as an expert by knowledge, skill, experience, training, or education” m ay provide opinion testim ony when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determ ine a fact in issue.” Fed. R. Evid. 70 2. To be adm issible, Rule 70 2 requires that (1) the testim ony be based on sufficient facts or data, (2) the testim ony be the product of reliable principles and methods, and (3) the witness apply the principles and m ethods reliably to the facts of the case. Id. In Daubert v. Merrell Dow Pharm aceuticals, Incorporated, the Suprem e Court held that Rule 70 2 requires the district court to act as a gatekeeper to ensure that “any and all scientific testim ony or evidence adm itted is not only relevant, but reliable.” 50 9 U.S. 579, 589 (1993); see also Kum ho Tire Co. v. Carm ichael, 526 U.S. 137, 147-48 (1999) (clarifying that the Daubert gatekeeping obligation applies to all form s of expert 4 testim ony). The Court’s gatekeeping function involves a two-part inquiry. First, the Court must determ ine whether the expert testim ony is reliable. The party offering the testim ony has the burden to establish reliability by a preponderance of the evidence. See Moore v. Ashland Chem . Inc., 151 F.3d 269, 276 (5th Cir. 1998). The Court must assess whether the reasoning or m ethodology underlying the expert’s testim ony is valid. See Daubert, 50 9 U.S. at 590 . The aim is to exclude expert testim ony based merely on subjective belief or unsupported speculation. See id. The Court’s inquiry into the reliability of expert testim ony is flexible and necessarily fact-specific. See Seatrax, Inc., 20 0 F.3d at 372. Second, the Court m ust determ ine whether the expert’s reasoning or m ethodology “fits” the facts of the case and whether it will assist the trier of fact to understand the evidence. See Daubert, 50 9 U.S. at 591. This is prim arily an inquiry into the relevance of the expert testim ony. See id.; see also Bocanegra v. Vicm ar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 20 0 3). Expert testim ony is unnecessary if the court finds that “the jury could adeptly assess [the] situation using only their com m on experience and knowledge.” Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990 ). But a court’s role as a gatekeeper does not replace the adversary system. Daubert, 50 9 U.S. at 596. 5 “Vigorous cross-exam ination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible evidence.” Id. “As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its adm issibility and should be left for the jury’s consideration.” United States v. 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir. 1996) (quoting Viterbo v. Dow Chem . Co., 826 F.2d 420 , 422 (5th Cir. 1987)). B. Su m m ary Ju d gm e n t Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either 6 support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonm oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or by “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by 7 subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION A. Plain tiffs ’ Mo tio n to Exclu d e D r. To rre n ce W e lch Plaintiffs seek to exclude the expert opinion of Dr. Torrence Welch. 18 Dr. Welch presents him self as an expert in both biom echanical engineering and vehicle accident reconstruction. 19 He opines in his report that the collision between Cham bers and plaintiffs was a “sideswipe” in which “little to no change in speed occurs for either vehicle.”20 He further opines that in this type of collision, the plaintiffs’ bodies “would have experienced very 18 19 20 R. Doc. 55. R. Doc. 88-3 at 73. Id. at 16. 8 m inor shaking and vibration m otions, characterized by m inim al lateral bending of their cervical spines, well within the norm al range of m otion.”21 Dr. Welch concludes that because this type of accident results in m ovement that is within the norm al range of motion, it does not typically create the “m echanism ” for the cervical and lum bar spinal injuries that plaintiffs allege they have suffered as a result of the collision. 22 Plaintiff seeks to exclude Dr. Welch’s opinion because (1) he is biased and unqualified to render these opinions, (2) his methodology is unreliable, and (3) his opinion is irrelevant. 23 The Court finds that Dr. Welch’s report is adm issible to the extent that he opines about the type of collision Cham bers and plaintiffs experienced, the force of im pact that the hum an body would typically sustain in that type of collision, and how a hypothetical person’s body would typically respond to that force of im pact. But because Dr. Welch is not qualified to render a m edical opinion, he is excluded from offering at trial any opinion about plaintiffs’ specific injuries in this case, and whether their injuries were caused by the collision. 21 22 23 Id. at 4. Id. R. Doc. 55-1. 9 1. Qualifications Dr. Welch is qualified to offer both a biom echanical engineering opinion and an opinion regarding the type of collision Cham bers and plaintiffs experienced. He holds a PhD in biom edical engineering, which was awarded jointly by the Georgia Tech School of Engineering and the Em ory University School of Medicine. 24 He also holds an Accredited Traffic Reconstructionist License, and is a m ember of the Society of Autom otive Engineers. 25 Because an expert need only possess a higher degree of knowledge, skill, experience, training, or education than an ordinary person in the subject matter of his testim ony, the Court finds that Dr. Welch is qualified to serve as an expert in biom echanical engineering and accident reconstruction. See Burgo v. Davis, No. 15-2430 , 20 16 WL 3257589, at *1, 3-4 (E.D. La. J une 14, 20 16) (permitting testim ony regarding accident reconstruction from an expert who was registered with the “Accreditation Com m ission for Traffic Accident Reconstruction”); Sandifer v. Hoy t Archery , Inc., No. 12-322, 20 15 WL 4429189, at *5 (M.D. La. J uly 20 , 20 15) (biomechanical engineering expert who held a bachelor’s and a m aster’s 24 25 R. Doc. 88-3 at 73. Id. 10 degree in m echanical engineering, and a PhD in engineering m echanics and biom echanics, was qualified to testify at trial). But Dr. Welch is not qualified to offer m edical causation opinions at trial. Federal courts have found that biom echanical engineering experts like Dr. Welch are qualified to offer opinions on “what injury causation forces are in general” and “how a hypothetical person’s body will respond to those forces,” but are “not qualified to render m edical opinions regarding the precise cause of a specific injury.” Laski v. Bellw ood, 215 F.3d 1326, 20 0 0 WL 71250 2, at *3 (6th Cir. May 25, 20 0 0 ); see also Collett v. GEICO Cas. Co., No. 16-1590 8, 20 17 WL 4553525, at *1 (E.D. La. Oct. 11, 20 17). Dr. Welch is not certified in any m edical specialty. Nor does he hold a m edical degree. He therefore cannot offer an opinion on whether the estim ated forces plaintiffs experienced during the collision in fact caused their injuries. He m ay testify only to “the am ount of force he believes was generated by the accident and the observed effect of such force on a hypothetical hum an body in a com parable accident.” Collett, 20 17 WL 4553525, at *1. For instance, Dr. Welch cannot opine at trial—as he does in his report— that the “[t]he dynam ics of the subject vehicle interaction were insufficient to result in sprain/ strain injuries for Ms. Thom as, Mr. Clark, and Ms. 11 Harris.”26 Nor can he testify that the accident “provided no im petus for the structural exacerbation, aggravation, or progression of the pre-existing degenerative or congenital conditions present with the spines of [each plaintiff].”27 These are the types of specific m edical causation opinions that are outside of his expertise. 2. Reliability Dr. Welch’s accident reconstruction opinion, and his opinion regarding the forces plaintiffs would experience in such a collision and how the hum an body typically responds to such forces, are reliable and therefore adm issible. Dr. Welch’s principal accident reconstruction opinion is that the collision was a sideswipe that resulted in no change in speed for either vehicle. 28 To form his opinion, Dr. Welch prim arily relies upon (1) the parties’ testim ony regarding their speed at the tim e of collision, (2) the parties’ testim ony regarding the m ovem ent of the car upon im pact, and (3) the visible dam age to plaintiffs’ car. 29 In addition, Dr. Welch cites inform ation from the New Orleans Police Department (NOPD) incident report and 911 calls, bodycam footage from the NOPD officer who arrived at 26 27 28 29 Id. at Id. at Id. at Id. at 25 (em phasis added). 5. 16. 14-17. 12 the scene, and published data on the weight and size of the two vehicles. 30 According to Dr. Welch, the evidence he reviewed suggests that the collision was a sideswipe because “it would have required over 2,40 0 pounds of lateral force to overcome friction and m ove [plaintiffs’ vehicle] from its original trajectory.”31 But as Dr. Welch notes, if that am ount of force had been exerted on plaintiffs’ vehicle, the side panels of the vehicle would have “exhibited far m ore substantial dam age than was present.”32 Furtherm ore, no plaintiff reported that their vehicle crossed into a different lane as a result of the collision, or that they lost control of the vehicle. 33 First, Dr. Welch’s opinion satisfies Rule 70 2’s requirement that an opinion be “based on sufficient facts or data,” even though he was not able to inspect the vehicles directly and did not visit the accident scene. Fed. R. Evid. 70 2(b); See Burgo, 20 16 WL 3257589, at *1, 4 (accident reconstruction expert’s opinion reliable when he relied upon photographic evidence of the accident, but did not personally inspect the vehicles); cf. W ilson v. W oods, 163 F.3d 935, 937 (5th Cir. 1999) (accident reconstruction expert’s opinion not adm issible when he did not collect any inform ation from the accident 30 31 32 33 Id. at 26-28. Id. at 16. Id. Id. 13 scene). Second, the methodology Dr. Welch uses to draw his conclusion has been found to be reliable by other federal courts assessing the opinions of accident reconstruction experts. See, e.g., Graham v. Ham ilton, 872 F. Supp. 2d 529, 538-39 (W.D. La. 20 12) (expert’s m ethodology reliable when he detailed the impacts the plaintiff’s car sustained based on a review of the police reports, eyewitness accounts, and photographs of the accident scene, and then used his expertise to estim ate the vehicle’s likely change in speed as a result of the collision). Dr. Welch sufficiently articulates how the evidence before him inform ed his conclusion that the collision was a sideswipe that resulted in no change in speed. 34 Dr. Welch’s biomechanical opinion regarding the forces likely exerted on plaintiffs’ bodies in this sideswipe collision, and the hum an body’s response to those forces in a hypothetical scenario, is also reliable. First, he applies studies showing the force of im pact in sideswipe collisions of this nature. 35 He explains in an affidavit that the peer-reviewed and published studies he relies upon show that sideswipe collisions involve an acceleration force of less than 1.5g, regardless of the sizes or weights of the vehicles involved. 36 34 35 36 He further explains that “the general consensus of all See id. at 14-17. Id. at 22. R. Doc. 88-5 at 8. 14 experim ental research on sideswipe accidents is that a sideswipe accident will result in m ainly shaking and vibration m otions of the vehicles . . . but not overall change in speed.”37 Dr. Welch then applies studies showing that this am ount of force—1.5g or less—is com parable to the “m otions, accelerations, and loads experienced during daily activities.”38 It is from these studies that Dr. Welch concludes that the accident did not create the “m echanism ” for cervical and lum bar spinal injuries in a hypothetical person in a com parable accident. 39 Dr. Welch represents in his affidavit that the studies he relies upon to reach his biom echanical opinion have been published in peer-reviewed journals and are widely accepted am ong the scientific, engineering, and m edical com m unities. 40 Other courts have recognized that the type of biom echanical analysis Dr. Welch employs is well-established and sufficiently reliable for finding the am ount of force generated by an accident, and the observed effect of such force on a hypothetical hum an body. See Laski v. Bellw ood, 20 0 0 WL 71250 2, at *3; Herrera v. W erner Enters., Inc., No. 14-385, 20 15 WL 12670 443, at *4 (W.D. Tex. Sept. 28, 20 15) (finding 37 38 39 40 Id. at 8-9. R. Doc. 88-3 at 22. Id. at 4. R. Doc. 88-5 at 10 -11. 15 that expert opinion on the forces likely exerted on the plaintiff’s body in a collision properly relied upon biomechanical engineering studies that were generally accepted in the scientific com m unity). Dr. Welch’s biom echanical opinion is therefore reliable. 3. Relevance Lastly, Dr. Welch’s opinion is clearly relevant to the issues in this case. Plaintiffs object to Dr. Welch’s report because he does not address “how the accident occurred or which party . . . is at fault.”41 Plaintiffs are correct that Dr. Welch does not opine on those m atters, but that does not m ean his testim ony is irrelevant. The extent of plaintiffs’ dam ages, and whether all of their purported injuries were caused by the alleged collision, are relevant issues at trial. While Dr. Welch is not qualified to offer a specific medical causation opinion, his opinion on the force of im pact likely experienced by plaintiffs, and how the hum an body typically responds to that force of im pact, will assist the jury in evaluating these issues. B. D e fe n d an ts ’ Mo tio n to Exclu d e Jam e s Pittm an Defendants m ove to exclude J am es Pittm an, plaintiffs’ accident reconstruction expert. 42 Pittm an reviewed post-accident photographs of the 41 42 R. Doc. 55-1 at 15. R. Doc. 58. 16 two vehicles, the police report, and plaintiffs’ deposition testim ony. 43 From this review, he concludes the following: The physical evidence supports a collision occurring between the [plaintiffs’ vehicle] and the right rear of [Cham bers’s vehicle]. Testim ony from [plaintiffs] support the truck changing lanes into the lane they were lawfully occupying. The contact points described by them w[ere] consistent with the dam age found and contact points observed in the photographs. . . . The m ovem ent described by the occupants m oving left to right is consistent with this type of crash. In that a force would be applied m oving left to right and the occupants would initially m ove in the direction of the force (left). 44 This opinion is not an adm issible expert opinion because it requires no expertise and relates to issues that are within the com m on knowledge of a lay juror. According to the Advisory Com m ittee Notes to Rule 70 2, “whether the situation is a proper one for the use of expert testim ony is to be determ ined on the basis of assisting the trier.” The Fifth Circuit has expressly recognized that expert testim ony should be excluded if the court finds that “the jury could adeptly assess [the] situation using only their com mon experience and knowledge.” Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th Cir. 1990 ). In Peters, the plaintiff was injured while unloading m achinery on an offshore supply vessel. 43 44 The Court found that expert testim ony was R. Doc. 58-3. Id. at 10 . 17 unnecessary for the jury to assess whether it was reasonable for the plaintiff’s em ployer to instruct em ployees to m ove equipment m anually during heavy seas, whether cargo was improperly stowed, and whether diesel fuel m ade the deck of the boat slippery. Id. at 449-50 ; see also Thom as v. Global Explorer, LLC, No. 0 2-10 60 , 20 0 3 WL 943645, at *2 (E.D. La. Mar. 3, 20 0 3) (excluding expert testim ony as to whether the position of a rope on a vessel was a potential safety hazard, because the opinion did not require “expertise of any kind”). Here, Pittm an’s opinion that a collision occurred is based on his finding that the visible dam age to the right rear tire of Cham bers’s vehicle, and the dam age to the front left side of plaintiffs’ vehicle, is consistent with plaintiffs’ testim ony. 45 Unlike Dr. Welch, Pittm an does not em ploy any type of specialized knowledge, and he did no scientific or specialized analysis to com e to a conclusion about the type of collision that the parties experienced. 46 calculations. He cites no published references or data and did no Pittm an simply concludes that the evidence “supports a 45 Id. at 4-5. See R. Doc. 88-3 at 15-16 (Dr. Welch explaining that the collision was a sideswipe because based on the extent of the dam age, not enough force was exerted on plaintiffs’ vehicle to m ove the vehicle “from its original trajectory”). 46 18 collision occurring,” because the “contact points described by [plaintiffs] was consistent with the dam age” in the photographs of the vehicles. 47 A lay juror would be able to look at pictures and listen to witnesses to draw this sam e conclusion. A lay juror is also capable of concluding that plaintiffs’ testim ony regarding their movem ent in the car upon im pact is consistent with the type of accident plaintiffs allege took place. Thus, because no expertise is needed to arrive at Pittm an’s conclusions, his opinion will not assist the jury resolve any issue. He therefore m ay not offer expert testim ony at trial. See Peters, 898 F.2d at 450 . C. Mo tio n fo r Partial Su m m ary Ju d gm e n t God’s Way m oves to dism iss plaintiffs’ direct claim s for negligent entrustment and negligent hiring, training, and supervising. 48 Plaintiffs have not filed a brief in opposition to this m otion. God’s Way argues that under Louisiana law, a plaintiff cannot m aintain both a vicarious liability claim and a direct negligence claim against an em ployer for the negligence of its em ployee when the em ployer adm its that the em ployee was within the course and scope of his employment at the tim e of the alleged tort. 49 Because state law provides the rule of decision for plaintiffs’ claim s, the Court m ust 47 48 49 R. Doc. 58-3 at 10 . R. Doc. 36. See R. Doc. 36-1 at 4. 19 apply the law as interpreted by the state’s highest court. See F.D.I.C. v. Abraham , 137 F.3d 264, 267-68 (5th Cir. 1998); Sam uels v. Doctors Hosp., Inc., 588 F.2d 485, 488 (5th Cir. 1979). If there is no ruling by the state’s highest court on the specific question, the Court m ust m ake an Erie guess as to how the state’s highest court would decide the issue. Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 468 (5th Cir. 20 0 4). Several federal courts in Louisiana have recently determ ined that when it is undisputed that an em ployer is vicariously liable for the negligent acts of its employee, the plaintiff cannot also m aintain a direct negligence claim against the em ployer. See Dennis v. Collins, No. 15-2410 , 20 16 WL 6637973 (W.D. La. Nov. 9, 20 16); W right v. N at’l Interstate Ins. Co., No. 16-16214, 20 17 WL 5157537 (E.D. La. Nov. 7, 20 17); Franco v. Mabe Trucking Co., Inc., 17-871, 20 18 WL 60 720 16 (W.D. La. Nov. 20 , 20 18); Vaughn v. Tay lor, No. 18-1447, 20 19 WL 171697 (W.D. La. J an. 10 , 20 19). Those decisions are grounded prim arily in the Louisiana Third Circuit Court of Appeals’ decision in Libersat v. J & K Trucking, Inc, 772 So. 2d 173 (La. App. 3 Cir. 20 0 0 ). There, J ames Libersat died when the defendant’s em ployee struck his vehicle. Id. at 174. Libersat’s wife and daughters brought an action against the defendant, alleging it was vicariously liable for the driver’s negligence, and directly negligent for not exercising reasonable 20 care in hiring and training him . There was no dispute that the driver was operating the vehicle within the course and scope of his em ploym ent, and that the defendant was vicariously liable for his alleged negligence. At trial, the court did not instruct the jury that the defendant had a duty to exercise care in hiring and training its em ployee. Id. at 179. The appellate court held that the trial court did not abuse its discretion in withholding this jury instruction. Id. The court reasoned that if the driver breached a duty to the plaintiffs, then the defendant would be vicariously liable for his tort. Id. But if the driver did not breach his duty, “then no degree of negligence on the part of [the defendant] in hiring [the driver] would m ake [the defendant] liable to the [plaintiffs].” Id. In other words, there was no question that the defendant could be held liable for the driver’s alleged negligence. The only disputed question was whether the driver was in fact negligent. Therefore, including a jury instruction for whether liability could attach to the defendant because of the defendant’s purported negligence in hiring the driver was superfluous. In ruling that the trial court did not err in withholding this instruction, the court noted that the “trial judge has the responsibility of reducing the possibility of confusing the jury, and he m ay exercise the duty to decide what law is applicable.” Id. 21 Here, in response to plaintiffs’ Requests for Adm issions, God’s Way adm itted that “at the tim e of the subject collision[,] Randall Cham bers was acting within the course and scope of his em ployment.”50 God’s Way’s adm ission “conclusively establish[es]” that God’s Way is vicariously liable for Cham bers’s alleged negligence. Fed. R. Civ. P. 36(b) (“A m atter adm itted [in response to a Rule 36 Request for Adm ission] is conclusively established unless the court, on m otion, perm its the adm ission to be withdrawn or am ended.”). Thus, there is no dispute that if a jury were to find that Cham bers negligently caused the collision and defendants’ resulting dam ages, God’s Way can be held liable. Libersat indicates that in such a situation, a court does not err by rem oving from the jury’s consideration an alternative means for finding the em ployer liable for its em ployee’s negligence. 772 So. 2d at 179. The Court cannot locate any decision from the Louisiana Supreme Court addressing this specific question. The Court therefore relies on Libersat for its Erie guess on how the state’s highest court would decide this issue, and finds that sum m ary judgm ent for God’s Way on plaintiffs’ direct negligence claim s is proper. There are also considerable prudential reasons for granting God’s Way’s m otion. Because God’s Way’s liability for Chambers’s negligence is 50 R. Doc. 36-4 at 3. 22 not disputed, evidence at trial related to God’s Way’s alleged negligence in hiring or training Cham bers would be superfluous and needlessly tim econsum ing. Any such evidence m ay confuse the jury about the pertinent issues at trial, and could inappropriately im pact an award of dam ages. The Suprem e Court of Missouri has considered this specific question, and likewise concluded: If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the im putation of negligence is adm itted, the evidence laboriously subm itted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflam m atory evidence com es into the record which is irrelevant to any contested issue in the case. McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995). In all, the Court finds that plaintiffs m ay not m aintain both a direct negligence claim against God’s Way and a claim that God’s Way is vicariously liable for Chambers’s negligence, because God’s Way readily adm its that it is vicariously liable for Cham bers’s alleged negligence. See Dennis v. Collins, No. 15-2410 , 20 16 WL 6637973 (W.D. La. Nov. 9, 20 16); W right v. Nat’l Interstate Ins. Co., No. 16-16214, 20 17 WL 5157537 (E.D. La. Nov. 7, 20 17); Franco v. Mabe Trucking Co., Inc., 17-871, 20 18 WL 60 720 16 (W.D. La. Nov. 23 20 , 20 18); Vaughn v. Tay lor, No. 18-1447, 20 19 WL 171697 (W.D. La. J an. 10 , 20 19). God’s Way’s m otion is therefore granted. IV. CON CLU SION For the foregoing reasons, defendants’ m otion to exclude the expert testim ony of J am es Pittm an is GRANTED. God’s Way’s m otion for partial sum m ary judgm ent on plaintiffs’ claim s for negligent entrustment and negligent hiring, training, and supervising is also GRANTED. Those claim s are DISMISSED WITH PREJ UDICE. Plaintiffs’ m otion to exclude the expert testim ony of Dr. Torrence Welch is DENIED IN PART and GRANTED IN PART. Dr. Welch cannot offer at trial any medical causation opinion. New Orleans, Louisiana, this _ _17th _ _ _ day of April, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 24
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