Alpizar v. John Christner Trucking, LLC

SERGIO ALPIZAR, Plaintiff, v. JOHN CHRISTNER TRUCKING, LLC,THREE DIAMOND LEASING, LLC, JACK EUGENE HEIN, Defendants.

SA-17-CV-00712-FB

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

April 16, 2019

REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery:

This Report and Recommendation and Order concerns the following four motions before the Court: Defendants' Objection and Motion to Strike the Testimony of Plaintiff Expert, Everett Dillman, Ph.D. [#31] and Defendants' Objection and Motion to Strike the Testimony of Plaintiff Expert, Kerry Nelson [#38], Defendants' Motion for Summary Judgment on Gross Negligence [#41], and Defendants' Motion for Summary Judgment on Plaintiff's "Direct" Claims of Negligence [#43]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#14], and the undersigned has authority to enter an order as to Defendants' Motions to Strike pursuant to 28 U.S.C. § 636(b)(1)(A) and a recommendation as to Defendants' Motions for Summary Judgment pursuant to 28 U.S.C. § 636(b)(1)(B).

In reviewing these motions, the Court has also considered Plaintiff's Response to Defendants' Objection and Motion to Strike the Testimony of Plaintiff Expert, Everett Dillman, Ph.D. [#35], Plaintiff's Response to Defendants' Objection and Motion to Strike the Testimony of Plaintiff Expert, Kerry Nelson [#38], Plaintiff's Response to Defendants John Christner Trucking LLC and Three Diamond Leasing LLC.'s Motion for Summary Judgment on Plaintiff's "Direct" Claims of Negligence [#45], Plaintiff's Response to Defendants John Christner Trucking LLC and Three Diamond Leasing LLC.'s Motion for Summary Judgment on Gross Negligence [#46], Defendants' Reply on Summary Judgment on Gross Negligence Claims [#48], Defendants' Reply on Summary Judgment on "Direct" Negligence Claims [#49]. The Court held a hearing on the motions on January 29, 2019, at which all parties were present as represented through counsel.

Having considered the written filings before the Court, the arguments of the parties at the hearing, the record in this case, and the governing law, the Court will recommend that Defendants' Motion for Summary Judgment on Gross Negligence [#41] be granted in part and denied in part and recommend that Defendants' Motion for Summary Judgment on Plaintiff's "Direct" Claims of Negligence [#43] be granted. The Court will also order that Defendants' Motion to Strike the Testimony of Plaintiff Expert, Everett Dillman, Ph.D. [#31] be denied and Defendants' Objection and Motion to Strike the Testimony of Plaintiff Expert, Kerry Nelson [#38] be granted in part and denied in part.

I. Background

This case involves a motor-vehicle collision between Plaintiff Sergio Alpizar and a commercial 18-wheeler allegedly operated by Defendant Jack Eugene Hein ("Hein") on behalf of Defendants John Christner Trucking ("JCT") and Three Diamond Leasing, LLC. (Orig. Pet. [#1-2] at 21.) Plaintiff originally filed this action in state court, and Defendants removed the Petition to this Court on July 31, 2017 on the basis of diversity jurisdiction [#1]. Plaintiffthereafter filed a First Amended Complaint, which alleges claims of negligence against Hein, claims of negligence against JCT and Three Diamond Leasing based on a theory of respondeat superior, claims of "direct" negligence against JCT and Three Diamond Leasing for negligent hiring, training, supervision, retention, and entrustment of Hein, and claims of gross negligence against all Defendants [#5]. Defendants now move for summary judgment on Plaintiffs' claims of gross negligence against all Defendants [#43], for summary judgment on Plaintiffs' claims of "direct" negligence against Defendants JCT and Three Diamond Leasing, and for summary judgment on Plaintiff's claim of negligence based on a theory of respondeat superior against Three Diamond Leasing,¹ on the basis that Plaintiff was not employed by this entity [#41]. Defendants also move to strike two of Plaintiff's designated experts—Everett Dillman, Ph.D. [#31] and Kerry Nelson [#38]. The Court will first address the summary judgment motions and then the motions to exclude Plaintiff's experts.

II. Three Diamond Leasing's Motions for Summary Judgment

At the hearing, Plaintiff indicated that he does not oppose Defendants' motions for summary judgment on his claims against Three Diamond Leasing, as discovery revealed that this entity was not Plaintiff's employer and only a leasing agency. In light of Plaintiff's lack of opposition, the undersigned will recommend the Court grant Defendants summary judgment on all of Plaintiff's claims against Three Diamond Leasing.

III. Hein and JCT's Motions for Summary Judgment

Only Defendants' motions for summary judgment on certain claims against Hein and JCT are contested. Defendants claim they are entitled to summary judgment as a matter of law onPlaintiff's claims of gross negligence against Hein and JCT and on Plaintiff's claims of negligent hiring, training, supervision, retention, and entrustment against JCT. Defendants' motions for summary judgment should be denied as to Hein but granted as to JCT.

A. Summary Judgment Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only 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).

The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). "After the non-movanthas been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted." Westphal, 230 F.3d at 174.

B. Summary Judgment Record

The undisputed summary judgment record establishes the following: On May 3, 2017, Hein was traveling north on I-35 after making a delivery for JCT at an H-E-B in San Antonio. (Hein Dep. [#41-1] at 39:5-40:7.) At the time of the accident, Hein was on his way to a Flying J to park his truck and wait for his next assignment from JCT. (Id. at 39:1-51:18.) Hein was driving in the right-hand lane of the interstate when Plaintiff passed him from the left. (Id. at 53:10-25.) Approximately thirty seconds to a minute and a half later, additional traffic merged from the left to right-hand lane to make an exit, causing the entire lane of traffic to brake. (Id. at 57:10-24.) Hein attempted to brake and veer his truck to the right shoulder, but he failed to break in time and rear-ended Plaintiff's vehicle. (Id. at 71:3-21; Crash Report [#46-3] at 3.) The Crash Report estimates the collision occurred at 4:57 p.m. (Crash Report [#46-3] at 2.)

The records from Hein's personal cell phone, which he carries for business and personal use while on the job, display over 40 calls on May 3, 2017, ten of which were calls made by Plaintiff to various numbers in Sapulka, Oklahoma during the 10-minute period from 4:50 p.m. to 5:00 p.m. (Cell Records [#46-1] at 10-11.) None of these calls exceeded 3 minutes, and the majority of the calls were only one minute long. (Id.) Hein testified in his deposition that these calls were to JCT to report the accident; that he was not on his cell phone at the time of the collision or immediately prior to the collision; and that when he uses his cell phone on the job he always uses a Bluetooth hands-free device. (Hein Dep. [#46-2] at 59:7-17; 61:2-22.) There is no evidence that Hein was speeding at the time of the accident. (Id. at 65:1-9.)

Hein has received several traffic citations in recent years: a speeding ticket in 2015 while driving his personal pickup truck; a speeding ticket in 2016 for the same; and a ticket in May 2013 for speeding and driving in a restricted lane while driving an 18-wheeler for a previous employer. (Id. at 27:1-28:15; Employee File [#46-5] at 33.) Besides the collision at issue in this lawsuit, Hein has never had any other accidents involving other vehicles. (Hein Dep. [#41-1] at 28:18-21.) A search of Hein's employment records indicates, however, that he received a company policy violation and unsatisfactory safety record during his work with a prior employer, Celadon Trucking Services, in early 2013 and another unsatisfactory safety record with a separate prior employer, Western Express, Inc., in later 2013. (Employee File [#46-5] at 19-20.)

It is also undisputed that Hein was given a driving test upon hiring by JCT and was required to...