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Cable v. Fedex Freight, Inc.

United States District Court, M.D. North Carolina

December 2, 2014

CAROL G. CABLE, Plaintiff,
FEDEX FREIGHT, INC. and CORRINE HOFFMAN, in her capacity as Personal Representative of the Estate of GARY N. HOFFMAN, Deceased, Defendants.


L. PATRICK AULD, Magistrate Judge.

The instant case comes before the undersigned United States Magistrate Judge for a recommended ruling on Defendants' Motion for Summary Judgment. (Docket Entry 33.) For the reasons that follow, the undersigned will recommend that the Court grant Defendants' instant Motion.


The instant case arises from a motor vehicle collision in Trinity, North Carolina. (Docket Entry 5, ¶ 8.) At the time of the incident, John Cable ("Cable"), Plaintiff's husband, drove a Ford pickup truck hauling a trailer with a Polaris (a four wheel all-terrain vehicle with a dump bed) and a Hustler Zero Turn riding lawn mower (Docket Entry 34-6 at 7)[2] with Plaintiff in the passenger seat on Rural Paved Road 1558 (Docket Entry 5, ¶ 8). From Rural Paved Road 1558, Cable entered the travel lane towards Interstate 85. (Id.) At that time, Defendant Hoffman[3] drove a FedEx tractor hauling three other FedEx tractors in a piggyback manner in the right hand lane of the interstate. (Docket Entry 34-6 at 11-12). According to both Kelley Jackson ("Jackson"), an accounting manager at J&J Drive-Away, Inc. ("J&J"), and Dona Caldwell ("Caldwell"), an advisor for liability and claims litigation for Defendant FedEx Freight, Inc. ("FedEx"), Defendant FedEx had hired J&J to haul the tractors from Florida to Maryland, and J&J contracted with Defendant Hoffman for the job. (Docket Entry 34-1, ¶¶ 9-12; Docket Entry 34-2, ¶¶ 8-9.) Before Cable entered the interstate, Defendant Hoffman switched from the right to the center lane, allowing Cable to merge onto the interstate. (Docket Entry 34-6 at 11-12).

Melanie Taylor ("Taylor"), a witness traveling in another vehicle, testified that shortly after Cable merged onto the interstate, Cable's trailer began fishtailing. (Docket Entry 34-7 at 9-10.) Cable's truck swerved onto the right shoulder of the interstate. (Docket Entry 34-6 at 19.) Cable then turned his truck off of the right shoulder, spun counter clockwise, and ended up stopped in the far left lane facing oncoming traffic. (Id. at 20, 21.) Taylor stated that, as Cable swerved, Hoffman moved his tractor from the center lane to the left lane and "slammed on [his] brakes." (Docket Entry 34-7 at 6-7.) However, after Cable's truck stopped, Plaintiff looked over the hood of the truck and saw Defendant Hoffman's tractor less than two car lengths away from her. (Docket Entry 34-5 at 11-12.) As documented by the motor vehicle accident report, Hoffman then hit Cable's truck causing the piggybacked tractors to flip over Cable's truck and into the median. (Docket Entry 34-8 at 3.)

As a result of the collision, Plaintiff, her husband, and Defendant Hoffman each reported serious injuries. (See Docket Entry 5, ¶¶ 16-17; Docket Entry 8 at 8.) In addition, Plaintiff has stated that Cable's truck has a dent above the driver side rear wheel well that did not exist before the incident. (Docket Entry 34-5 at 13.) Plaintiff contends that the mud flap support bar[4] on Defendant Hoffman's tractor hit Cable's truck causing the dent. (See Docket Entry 36 at 4.) According to Plaintiff, that dent forms the basis for her assertion that Defendant Hoffman caused the collision. (Docket Entry 34-5 at 13.)

Plaintiff, along with Cable, subsequently filed suit against Defendants Hoffman and FedEx alleging negligence. (Docket Entry 5.) Defendants counterclaimed and alleged that Cable negligently caused the collision. (Docket Entry 8.) Since those initial filings, various parties have settled with each other leaving only Plaintiff's claims against Defendant Hoffman for negligence and Defendant FedEx for vicarious liability. (Docket Entry 34 at 2; Docket Entry 36 at 1.) Defendants have moved for summary judgment on two grounds. (Docket 34 at 7.) First, Defendants argue that the record contains no evidence that Defendant Hoffman negligently and proximately caused the collision. (Id. at 8.) Second, Defendants alternatively argue that vicarious liability should not apply to Defendant FedEx because it neither employed nor had an agency relationship with Defendant Hoffman. (Id. at 17.)


The Court should grant a motion for summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This standard requires more than a mere scintilla of evidence. American Arms Intern. v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009). In considering a motion for summary judgment, the Court must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc). The Court also must presume the credibility of all of the nonmovant's evidence. Id . The party seeking summary judgment has the initial burden to show an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The opposing party then must demonstrate that a triable issue of fact exists; she may not rest upon mere allegations or denials. Anderson, 477 U.S. at 248. A party need not submit evidence in an admissible form, but the evidence must otherwise qualify for admission at trial. Celotex Corp., 477 U.S. at 324. Finally:

It is true that because of the peculiarly elusive nature of the concept of negligence, it is the rare personal injury case which may be properly disposed of by summary judgment. But this is not to say that where... [an] unusual case is encountered, a plaintiff must have his day in court even though there is nothing to be tried.

Bland v. Norfolk & S. R.R. Co., 406 F.2d 863, 866 (4th Cir. 1969) (internal citations omitted).

For the reasons articulated below, the undersigned recommends that the Court grant Defendants' instant Motion because the record contains insufficient evidence for a reasonable jury to find for Plaintiff. Further, the record contains insufficient evidence for a jury to find Defendant FedEx vicariously liable for Defendant Hoffman's actions. Therefore, the Court should grant Defendants' instant Motion.

A. Negligence

Plaintiff's proposed expert, James Norman Poer ("Poer"), does not satisfy the requirements of Federal Rule of Evidence 702. Because Poer does not qualify as an expert, Plaintiff cannot use his testimony to defeat Defendants' instant Motion. Absent Poer's testimony, the record contains no testimonial or physical evidence to show that Defendant Hoffman negligently caused the collision or had the last clear chance to avoid it.

I. Plaintiff's Proposed Expert

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. In considering the admissibility of expert testimony, the Court exercises a gatekeeping function as to reliability and relevance. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999). "The inquiry to be undertaken by the district court is a flexible one' focusing on the principles and methodology' employed by the expert, not on the conclusions reached." Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993)). In determining whether the Court should admit the expert's proposed testimony, "the [C]ourt has broad latitude to consider whatever factors bearing on validity that the [C]ourt finds to be useful...." Id.

A review of Poer's qualifications and deposition confirms that Poer could not provide relevant expert testimony in this case.[5] An instructive case from the Western District of Texas provides valuable insight as to testimony from an accident reconstructionist. Moreno v. W.R. Davis Produce, Inc., No. A-06-CA-012 LY, 2007 WL 1731139, at *2-3 (W.D. Tex. June 14, 2007) (unpublished). In Moreno the district court evaluated whether a state trooper could testify as an expert witness. Id . The district court noted that the trooper did not have a college degree, had never taught a class on the subject, had not authored any papers on the subject, and did not make any independent calculations regarding the accident. Id. at 2. The district court excluded the trooper's testimony. Id. at 3. According to the Moreno court, the fact that the trooper's employer certified him only to investigate accidents and not to reconstruct them clinched the argument, because the court could not permit the trooper to perform functions his employer would not. Id.

Similarly, Poer's qualifications reflect some capacity to investigate an accident but not to reconstruct it. For example, Poer's teaching history consists entirely of courses on crash investigation rather than reconstruction. (Docket Entry 27 at 7.) In addition, Poer's deposition reveals that Poer majored in accounting for his undergraduate degree. (Docket Entry 37-5 at 11.) Finally, as in Moreno, Poer's certification only as a traffic enforcer and crash investigator, rather than an accident reconstructionist, resolves all doubt. (Id. at 25-26.)[6]

In addition, Poer did not base his testimony on sufficient facts and data.[7] According to Poer's deposition, he derived his opinion testimony by looking at pictures of the collision, reviewing the motor vehicle accident report, and considering what Cable told him. (Id. at 38-39). During Poer's deposition, Defendants' counsel questioned Poer on the steps he took to form his opinion:

Q. All right. Did you - so you didn't do any research - you didn't look at anything on the computer, you didn't pull out any books, you didn't pull out any of your accident reconstruction materials?
A. No, sir.
Q. Okay. Did you talk to any one besides Mr. Cable, interview anybody?
A. No, sir.
Q. All right. He obviously told you that there had been an accident reconstructionist involved?
A. Yes, sir.
Q. Did you ask who that was?
A. No, sir.
Q. Did you call that accident reconstructionist?
A. No, sir.
Q. Did you call any of the highway ...

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