ESTATE OF AINSWORTH MALLETT et al v. SCHMIDT BAKING CO., INC. et al, No. 1:2014cv02438 - Document 175 (D.N.J. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting in part 151 Motion in Limine. Signed by Judge Joseph H. Rodriguez on 01/11/2017. (db, )
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ESTATE OF AINSWORTH MALLETT et al v. SCHMIDT BAKING CO., INC. et al Doc. 175 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY ESTATE of Ainsworth Mallett, and ESTATE of J acqueline Mallett, and ESTATE of Drew Mallett, and NICOLE MALLETT, individually, and ERROLL MALLETT, MD and NICOLE MALLETT in their capacity as Co-Adm inistrators of the above three Separate Estates, : : : : : : : : : : : : : : : : Plaintiffs, v. SCHMIDT BAKING CO., INC. and MARK TAYLOR, Defendants. Hon. J oseph H. Rodriguez Civil Action No. 14-2438 MEMORANDUM OPINION & ORDER This m atter is before the Court on Defendants’ m otion in lim ine to lim it the trial testim ony of Plaintiffs’ liability expert Brooks Rugem er. Oral argum ent on the m otion was heard on J anuary 9, 20 18, and the record of that proceeding is incorporated here. As an initial m atter, the Court notes that agency between Defendants Mark Taylor and Schm idt Baking Co., Inc. (“Schm idt’s Bakery”) has been adm itted. The negligent hiring and retention claim s against Schm idt’s Bakery have been dism issed by consent. The sole rem aining direct claim against Schm idt’s Bakery is lim ited to the m anner in which Taylor was trained. 1 Dockets.Justia.com Th e Prio r Ord e r o f th e Co u rt D is allo w in g Su p p le m e n tal Re p o rts fro m Bro o ks Ru ge m e r w ill be En fo rce d an d h is Te s tim o n y Lim ite d to W h at W as Co n tain e d in th e Re p o rts Pro vid e d Prio r to h is D e p o s itio n . The scope of Mr. Rugemer’s proffered testim ony has already been addressed via Court Order. The following chronology is relevant: 1. Initial Report J un e 23, 20 15; 2. Supplem ental Report October 21, 20 15; 3. Deposition com pleted February 25, 20 16; 4. Supplem ental Report of March 4, 20 16; 5. Supplem ental Report of March 7, 20 16; 6. April 18 , 20 16 Order barring Supplem ental Reports. Discovery and docum ents were available to be reviewed by Mr. Rugem er before he prepared his first two reports and subm itted to a deposition, however he was not provided with a num ber of discovery docum ents prior to preparing his two initial reports. The relevant docum ents are listed in Plaintiff's letter of March 4, 20 16. Mr. Rugem er will be allowed to testify at trial, but will not be perm itted to support his opinion by claim ing that he relied upon the discovery that existed prior to preparing his initial reports but was not reviewed by him before he prepared his reports and was deposed. Plaintiff should not suggest that the docum ents were relied upon and reviewed. The 2 Court’s Order of April 18, 20 16 striking Supplemental Reports will be honored, as the m aterials intended to support the Supplem ental Reports were not available to the defense during Rugem er’s deposition. Bro o ks Ru ge m e r w ill N o t be Pe rm itte d to Offe r an Op in io n as to Accid e n t Re co n s tru ctio n o r Co m m e n t as to H o w th e Accid e n t To o k Place o r W h o w as at Fau lt fo r th e Accid e n t. At his deposition, Mr. Rugem er testified as follows: Q. Are you an accident reconstructionist? A. No I am not. Q. And I assum e you hold no certifications in accident reconstruction? A. That’s correct. I work with m y accident recon team from tim e to tim e, but I’m not a certified accident reconstructionist. Q. Would you agree with m e that in this particular case, the Mallet case that brings us here today, you m ade no effort to do an accident reconstruction? A. That’s correct. (Rugem er Dep., p. 14.) He continued: Q. In terms of not being a recon – I assume in your career you worked with recons? A. Yes. Q. And do you refer to them in term s of the actual reconstruction of the accidents? 3 A. Yes. If I’m offered a case where there’s a recon necessary, I turn that over to our recon group. (Rugem er Dep., pp. 110 -111.) Rugemer offered an opinion that Mark Taylor’s driving was “careless” and “reckless” and a proxim ate cause of the accident. He will not be perm itted to testify as to these issues given the lack of any effort to reconstruct how the accident actually took place and his difficulty with the definition of “reckless.” (See Rugemer Dep., pp. 90 -91.) Questions of carelessness, recklessness, or negligence are for the jury. As to “proxim ate cause,” this is a jury issue as per this Court’s prior ruling on the sum m ary judgm ent m otion. Bro o ks Ru ge m e r w ill N o t be Pe rm itte d to Re ly u p o n In ad m is s ible Evid e n ce to Su p p o rt h is Op in io n as to th e N e glige n t Train in g Claim . For an expert to provide opinion testim ony, the opinion has to be based upon recognized standards, not inadm issible evidence. Mr. Rugem er relies on the following to support his claim of negligent training: 1. Professional Truck Driver Institute (PTDI) curriculum ; 2. ABF Freight System handbook; 3. CRST Driver Handbook; 4. Maryland CDL Handbook; and 4 5. Large Truck Crash Causation Study (LTCCS). The PTDI is not a trucking com pany. It does not set forth any kind of standard of care applicable to the duties of a trucking company. The PTDI apparently is a company that certified truck driving schools. This case does not involve a truck driving school. In addition, the PTDI does not set forth a form ula for a safe driving distance. Mr. Rugemer will not be perm itted to offer testim ony as to an organization that certifies truck driving schools, which has no bearing on the issues in this case. (Rugem er Dep., pp. 32-36.) The ABF and CRST handbooks are essentially hearsay. The com panies are two of “thousands and thousands” of m otor carriers. Mr. Rugemer adm its that their handbooks are not binding on any of the parties in this case. The hearsay statem ents contained therein are not relevant to the issues in this case. Mr. Rugemer adm its that they have nothing to do with Mr. Taylor. (Rugemer Dep., pp. 36-37.) He did not conduct any kind of survey to determ ine what any percentage of the “thousands and thousands” of trucking com panies actually include in their handbooks. The reliance on the Maryland Com mercial Driver’s m anual is sim ilarly m isplaced. It does not set forth a standard of care that is binding on any of the parties in this case. Mr. Rugemer adm its that he does not know if the driver’s m anual has the sam e effect of the Federal Motor Carrier 5 Safety Act (“FMCSA”). He has no idea if the m anual was ever adopted by the legislature, or what was contained therein at the time that Taylor obtained his Com mercial Driver’s License (“CDL”). He adm its that trucking is regulated by the Federal Governm ent, which prom ulgates regulations that are binding on all “m otor carriers.” He further adm its that there is nothing contained in the FMCSA regulations (“FMCSRs”) that m andate a “m otor carrier” to train as to what is considered to be a safe following distance, or that defines what a safe following distance is. Given these adm issions that the binding regulatory authority does not prom ulgate regulations or set forth what is considered in the industry to be a safe following distance, the use of one State’s driver’s m anual is m isleading. It should not be before the jury as binding authority. (Rugem er Dep., pp.3741, 44-47.) As to the LLCCS study, Mr. Rugem er adm its that he inaccurately cited the study, and that it does not stand for the proposition that “51%” of truck accidents are attributed to drivers following too closely. He adm its that he cannot com e up with an accurate figure because he does not have the necessary data. (Rugemer Dep., pp.70 -76; LLCCS study referenced Rugemer.) 6 Mr. Rugem er fails to provide Fed. R. Evid. 70 2-com pliant testim ony “based on sufficient facts or data” to support his opinion that Schm idt Bakery’s “driver safety and training program was deficient and fell far below industry standards.” He opines that “Schm idt Baking failed to train or instruct Mark Taylor in the critical safety concept of safe and proper following distance.” Whether Mr. Rugem er believes that Schm idt Bakery should have trained as to safe and proper following distance, but had no such writings, does not answer the question. The presence or absence of such writings does not meet or fail to m eet any FMCSA standard. No FMCSR specifies that an FMCSA-regulated “m otor carrier” m ust have any written (or unwritten) policy or procedure in place to regulate, reinforce or rem ind its drivers who hold CDLs about “safe following distances.” Mr. Rugem er cannot identify any FMCSR that defines what a “safe following distance” is. This Court’s review of the record does not find one. Mr. Rugem er resorts to m ore personal views as to what he thinks Schm idt Bakery’s duty should be with respect to “safety programs.” He offers the opinion that as a United States Department of Transportation (“USDOT”) m otor carrier: 7 [Schm idt] has a non-delegable duty to have truck safety programs in place to ensure the safety of their truck fleet as they operate on the public roadways and reduces the risk of highway accidents, such as this fatal rear-end crash. But Mr. Rugemer does not find a “safe following distance” legal standard in FMCSR §383.5; FMCSR §383.5 contains no such standard. What FMCSR §383.5 does speak to is Safety Managem ent Controls (“SMCs”). Citing the SMC definition does not turn Mr. Rugem er’s personal view as to what is and what is not a “safe following distance” into an industry standard. Merely citing the SMC definition does not assist the jury. The SMC definition says nothing about what should be taught to drivers who already hold a com m ercial driver’s license. FMCSR §383.5 does not articulate any “safe following distance” standard. Mr. Rugem er fails to account for this fact. This is the definition: [SMCs are] the system s, policies program s, practices, and procedures used by a m otor carrier to ensure compliance with applicable safety and hazardous m aterials regulations which ensure the safe m ovement of products and passengers through the transportation system , and to reduce the risk of highway accidents and hazardous materials incidents resulting in fatalities, injuries, and property damage. FMCSR §383.5. The valid, current CDL that Mr. Taylor held on the date of accident was Maryland Class A CDL # T-460 -585-0 98-714—a CDL with Tank and Double/ Triples Endorsem ents. Mr. Rugemer does not dispute that as of 8 April 17, 20 0 8, Mr. Taylor qualified to drive a truck. He concedes that Mr. Taylor was not disqualified from holding a CDL or operating a truck under any FMCSA Rule or FMCSR. There is no dispute that Mr. Taylor successfully completed a CMV driver’s road test; that he held a driver’s road test Com pletion Certificate; or that he presented a valid CDL or road test Com pletion Certificate to Schm idt’s Bakery, that Schm idt’s Bakery was entitled to accept. Mr. Taylor was properly and a fully qualified com m ercial truck driver under FMCSR §391.11 before Schm idt’s Bakery hired him in the Spring of 20 0 8. For these reasons, as well as those expressed on the record, IT IS ORDERED this 11th day of J anuary, 20 18 that Defendants’ m otion in lim ine to lim it the trial testim ony of Plaintiffs’ liability expert Brooks Rugemer is hereby GRANTED. / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 9
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