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Yazzie v. Fezatte

United States District Court, D. New Mexico

February 16, 2018



         Plaintiff Derrick Yazzie (Plaintiff) filed suit against Defendants Seth Fezatte and Werner Enterprises, Inc. (collectively, Defendants) seeking damages for personal injury he claims resulted from Defendants' alleged negligence and negligence per se in the operation of a semi-tractor trailer which struck Plaintiff on Interstate 40 in New Mexico on November 22, 2013.[1] On September 11, 2017, Defendants filed a motion to exclude opinions of Plaintiff's proposed transportation safety expert.[2] The motion has been fully briefed.[3] After careful consideration of the pertinent law, briefing and exhibits, the Court will grant in part Defendants' Motion to exclude certain opinions of Shawn Wayne Miller, but will reserve ruling on Defendant's Motion with regards to the admissibility of Mr. Miller's opinions related to Defendant Fezatte's training and adherence to the Federal Motor Carrier Safety Regulations for operation of a commercial motor vehicle in certain weather conditions until a Daubert hearing is held. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

         I. BACKGROUND

         Plaintiff alleges that he suffered substantial personal injury arising from an accident that occurred on November 22, 2013 in New Mexico as a result of Defendants' acts and omissions in the operation of a commercial motor vehicle. The factual background of these claims is set forth in the Court's Memorandum Opinion and Order granting in part and denying in part summary judgment (Doc. 102), and the Court will not repeat it here. Plaintiff retained transportation safety expert Shawn Wayne Miller (Mr. Miller) to offer opinions pertaining to federal regulations and general practices in the commercial trucking industry. Specifically, Plaintiff has offered Mr. Miller to render his opinions regarding Defendants' liability including “Defendants' violations of the Federal Motor Carrier Safety Regulations (FMCSR) and the various acts, omissions, and/or deficiencies of the Defendants that were proximate causes of Plaintiff's injuries and damages[.]” See Pl. Rule 26 Designation of Expert Witnesses, Ex. 1 to Resp., at 22-24 (Doc. 79-1).

         Defendants do not argue that Mr. Miller is unqualified to testify about Federal Motor Carrier Safety Regulations or safety practices in the commercial trucking industry. Rather, Defendants argue that Mr. Miller should be precluded from testifying at trial because his opinions are irrelevant, lack foundation, are outside the realm of Mr. Miller's expertise, or do not provide technical information that would be helpful to the trier of fact. Mot. at 1-2.


         Federal Rule of Evidence 702 governs the admissibility of expert testimony. A witness qualified as an expert “by knowledge, skill, experience, training, or education may testify” 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. Rule 702 imposes an obligation on a district court to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. The United States Supreme Court has stated that “where such testimony's factual basis, data, principles, methods, or their application are called sufficiently into question…the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.'” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999) (quoting Daubert, 509 U.S. at 592). “The touchstone of admissibility under Rule 702 is the helpfulness of the evidence to the trier of fact.” U.S. v. Rangel-Arreola, 991 F.2d 1519, 1524 (10th Cir. 1993).


         1. Mr. Miller's Testimony Regarding Defendant Fezatte's Level of Fatigue

         Defendants first argue that Mr. Miller's opinions regarding Defendant Fezatte's level of fatigue are speculative and lack foundation, and that relatedly Mr. Miller is unqualified to offer opinions on the circadian rhythm. Mot. at 7-10. Plaintiff concedes that Mr. Miller is not holding himself out as an expert on the science behind circadian rhythms, but argues that through Mr. Miller's experience, training and education he has become knowledgeable about studies performed in the trucking industry regarding the effect disruption of circadian rhythm can have on a truck driver. Resp. at 6-7. Plaintiff further contends that Mr. Miller applied his expertise to the evidence in this case to arrive at the opinion that Defendant Fezatte was fatigued at the time of the accident. Resp. at 8-9.

         In his report, Mr. Miller opines that Defendant Fezatte was “most likely under the effects of sleep deprivation” and “zoned” at the time of the accident, a side effect of driving during the early morning hours which disrupts circadian rhythm. See Wayne Miller Expert Opinion, Ex. D to Mot. at 5 (Doc. 68-4). To highlight this statement, Mr. Miller includes a circadian rhythm chart and notes that “[s]tudies have shown it takes years for a body to readjust after a normal circadian rhythm is disrupted” particularly in the trucking industry. Id. at 6. Mr. Miller does not cite to any of these articles, nor does he explain the relevance of any such studies to the facts of this case, particularly absent evidence regarding Defendant Fezatte's sleeping patterns immediately prior to the accident or, for example, evidence that Defendant Fezatte had been driving beyond the number of hours permitted by regulation or failed to take required breaks. When pressed to explain the foundation for his opinion that Defendant Fezatte was “under the effects of sleep deprivation, ” Mr. Miller responded, “Well, he hit Derrick Yazzie. That's quite a bit of proof right there.” Miller Dep., Ex. B to Mot. at 118:3-7 (Doc. 68-2). The Court disagrees, and finds that Mr. Miller's opinions on Defendant Fezatte's level of fatigue at the time of the accident lack proper foundation and are purely speculative. See Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“It is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.”).

         Moreover, an expert opinion is unnecessary for the trier of fact to determine whether Defendant Fezatte was fatigued at the time of the accident. In Tom v. S.B. Inc., the district court excluded a trucking expert's “fatigue opinions” (that the diver was fatigued at the time of the accident and that such fatigue was a cause of the accident), concluding such opinions were “not based upon scientific, technical or specialized knowledge.” No. Civ. 10-1257 (D. N.M. Mar. 22, 2013) 2013 WL 3179108 at *4. Relying on the reasoning in Vance v. Midwest Coast Transport, No. 01-1422 WEB, 2004 WL 3486464 (D. Kan. Jan. 2, 2004), the district court concluded “that attention, perception, and decision-making are ‘within the normal life experiences of the jury.'” Id. (quoting Vance, 2004 WL 3486464 at *4 (excluding expert's opinions on the existence and effects of driver fatigue, concluding that “[t]he effects of fatigue on attention, perception, decision making, and motivation are within the normal life experiences of the jury, and [the expert's opinions were] not of the type of specialized knowledge contemplated by Rule 702”)). Because Mr. Miller's fatigue opinions are speculative and do not constitute specialized knowledge that will assist the trier of fact under Rule 702, the Court will exclude these opinions. Mr. Miller's related opinion that Defendant Fezatte would be enticed to run loads while fatigued to recoup out of pocket training costs will also be excluded. Miller Expert Opinion at 4 (Doc. 68-4); Miller Dep. 83:3-85:16 (Doc. 68-2). Mr. Miller provided no foundation for this opinion and it is purely speculative.

         2. Mr. Miller's Opinions Regarding Distracted Driving

         Defendants also seek to exclude Mr. Miller's opinions concluding that Defendant Fezatte engaged in distracted driving. Specifically, Defendants argue that Mr. Miller's reliance on Qualcomm[4] messages sent to Werner on November 22, 2013 around 7:24 p.m. Mountain Standard Time (MST) and 10:59 p.m. MST as evidence of distracted driving should be excluded as irrelevant because they are distant in time from the accident. Mot. at 11. Defendants also claim that Mr. Miller's opinion that a driver who witnesses another driver at some distance in front of him “swerve or take another type of evasive action” would naturally be more alert and follow suit is inadmissible because it does not constitute specialized knowledge. Mot. at 12. Plaintiff responds that the contested opinions are directly relevant to the cause of the accident and Defendant Fezatte's alleged failure to take evasive action or see Plaintiff. Resp. at 9.

         The collision at issue in this case occurred at approximately 2:36 a.m. MST on November 22, 2013. According to Mr. Miller's report, the Qualcomm messages Mr. Miller relies on to support his opinion that Defendant Fezatte was distracted in the moments immediately preceding the accident were sent at 7:24 p.m. MST and 10:59 p.m. MST on November 21, 2013, seven hours and three and one half hours respectively before the accident occurred. See Miller Expert Opinion at 4 (Doc. 68-4). Plaintiff claims there is evidence that the logs are incorrect, referring both to Mr. Miller's report and deposition in which Mr. Miller refers to Qualcomm messages sent and received during a four minute period while Defendant Fezatte was logged into the sleeper berth. Resp. at 9. But Plaintiff presents no evidence that the time stamps on the Qualcomm messages themselves are inaccurate. Proposed expert opinion testimony must still withstand the relevancy test under Federal Rule of Evidence 401. Because the Qualcomm messages at issue are so attenuated in time from the time of the accident, any opinion rendered about alleged distraction as a result of these messages is irrelevant and therefore inadmissible. Further, as with testimony regarding fatigue or alertness, the question of whether Defendant Fezatte was distracted or should have reacted a ...

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