Gilley v. C.H. Robinson Worldwide, Inc., Civil Action 1:18-00536

Clinton Eugene Gilley, as Administrator of the Estate of CARL DAVID GILLEY, Nicole Leigh Le, as Administrator of the Estate of CHRISTINE TARA WARDEN GILLEY, and Clinton Eugene Gilley and Nicole Leigh Le as Co-Administrators of the Estates of J.G. and G.G., minor children, Plaintiffs, v. C.H. ROBINSON WORLDWIDE, INC., J&TS TRANSPORT EXPRESS, INC., and BERTRAM COPELAND, Defendants.

Civil Action No. 1:18-00536

United States District Court, S.D. West Virginia, Bluefield

September 22, 2021

MEMORANDUM OPINION AND ORDER

DAVID A. FABER, SENIOR UNITED STATES DISTRICT JUDGE

Several motions relating to proposed expert testimony are pending before the court. The first is the motion of defendant C.H Robinson (“Robinson”) to exclude the opinions of plaintiffs' experts Lew Grill, Steven Belyus, and Thomas Corsi. (ECF No. 206.) The second is plaintiffs' motion to exclude the causation opinion of Thomas Lyden. (ECF No. 208.) That motion also asks the court to go further and exclude the defense theory that the lack of a median barrier caused the collision. The third and fourth motions are defendant Bertram Copeland's motions to exclude, respectively, certain testimony of Lew Grill (ECF No. 210) and certain testimony of Steven Belyus (ECF No. 211). For the reasons that follow, the court DENIES Robinson's motion (ECF No 206); GRANTS plaintiffs' motion (ECF No 208) in part; and DENIES Copeland's motions (ECF Nos. 210 and 211), subject to the renewal of Copeland's objections should Grill or Belyus step outside the boundaries set forth below.

I. The Parties' Experts

a. Thomas Corsi

For the past forty-five years, Thomas Corsi, Ph.D. has served on the faculty of the University of Maryland, where he is currently a professor of logistics and a co-director of the Supply Chain Management Center at the Robert H. Smith School of Business. He has authored or co-authored more than one hundred articles and four books on logistics and transportation. He has served as a consultant both in the private sector as well as for several public agencies tasked with transportation-related missions. His history of advising the U.S. Department of Transportation on carrier safety issues goes back over forty years. There is no doubt that his qualifications are “extensive.” See Mann v. C. H. Robinson Worldwide, Inc., 2017 WL 3191516, at *14 (W.D. Va. July 27, 2017).

b. Thomas Lyden

Thomas Lyden is a civil engineer with considerable experience in the field of transportation, including twenty-five years with the Ohio Department of Transportation, where he worked on issues relating to median barriers. He has a bachelor's degree in Civil Engineering from the University of Cincinnati and an MBA from The Ohio State University. While his civil engineering background is impressive, his credentials do not appear to extend to accident reconstruction or biomechanical engineering.

c. Lew Grill

Lew Grill has over half a century of experience in the trucking industry that spans from the driver's seat to the instructor's lectern and beyond. He has personally logged more than two million miles in national and international truck driving. He is licensed for loads of extreme weight and dimensions and is certified to inspect and repair air brakes. More than a dozen instructional safety video productions have drawn upon his expertise, and he can claim authorship of hundreds of articles, as well as fifteen books, on trucking, truck driving, and heavy equipment operation. His current research project is investigating the relationship between foreign driving cultures and domestic truck collisions.

d. Steven Belyus

Prior to becoming a consultant on matters such as accident reconstruction, fleet inspection, and transportation safety, Steven Belyus had a 27-year career with the Ohio Department of Public Safety, where he served as a highway patrol officer, accident reconstructionist, and commercial enforcement coordinator. There is no dispute as to his expertise in the area of accident reconstruction.

II. Legal Standard

Federal Rule of Evidence 702 provides:

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.

“Essentially, the witness must be qualified as an expert, the testimony must be reliable, and the testimony must assist the trier of fact.” In re Fosamax Prod. Liab. Litig., 645 F.Supp.2d 164, 172 (S.D.N.Y. 2009).^[1]

Rule 702 requires courts to stop proffered expert opinions at the gate if they lack reliable foundation or relevance “to the task at hand.” McKiver v. Murphy-Brown, LLC, 980 F.3d 937, 959 (4th Cir. 2020). Because “the adversary system” awaits such opinion evidence on the other side of the gate, the gatekeeping function is a limited one. See In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prod. Liab. Litig. 892 F.3d 624, 631 (4th Cir. 2018). Beyond the gate are credibility determinations, which are reserved for the trier of fact; before the gate are reliability and relevancy determinations, which are the province of the gatekeeper. Sardis v. Overhead Door Corp., ___ F.3d ___, 2021 WL 3699753, at *7 (4th Cir. Aug. 20, 2021) (“[C]redibility is entirely distinct from reliability and relevancy, which are preconditions to the admissibility of expert testimony.”) (emphasis in original).

Factors that may guide the court in its fulfillment of its gatekeeping role are as follows:

(1) whether the particular scientific theory can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the “existence and maintenance of standards controlling the technique's operation; and (5) whether the technique has achieved general acceptance in the relevant scientific or expert community.

United States v. Crisp, 324 F.3d 261, 265-66 (4th Cir. 2003) (citations and internal quotation marks omitted). This list is illustrative, not definitive or exhaustive. Id.

The reliability of the methodology, not the correctness of the conclusion, is the focus of inquiry. See Pugh v. Louisville Ladder, Inc., 361 Fed.Appx. 448, 452 (4th Cir. 2010).

[D]istrict courts must ensure that an expert's opinion is based on scientific, technical, or other specialized knowledge and not on belief or speculation. And to the extent an expert makes inferences based on the facts presented to him, the court must ensure that those inferences were derived using scientific or other valid methods.

Sardis, 2021 WL 3699753, at *6 (emphasis in original) (citations and internal quotation marks omitted).

Helpfulness to the trier of fact is the “touchstone” of Rule 702. Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993). The party proffering the expert's opinion has the burden of production on the question of admissibility. Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998).

III. Discussion

a. Robinson's Motion

As originally framed, Robinson's motion asked the court to exclude all or part of the expected testimony of three expert witnesses whom plaintiffs have named: Thomas Corsi, Steven Belyus, and Lew Grill. The briefing has narrowed the issues as originally framed such that, according to Robinson, “the only question currently presented for the Court's consideration” is whether “Dr. [Thomas] Corsi's two opinions against Robinson [should] be excluded from trial as unreliable and unsupported.” (ECF No. 228, at 2-3.)^[2]

These two opinions are really one opinion: that brokers deciding whether to hire certain carriers must either (1) decline to hire them or (2) engage in some sort of vetting of them beyond checking their federal registration and insurance policy first.^[3] Robinson finds Corsi's opinion objectionable because it does not describe the prevailing practice across the freight brokerage industry; instead, it describes what Corsi believes some brokers do and what Corsi, based on his expertise, believes brokers must do to avoid hiring incompetent carriers. Robinson further argues that the opinion is too vague and that the methodology is undisciplined for making use of internet information that may be outdated in some instances. Finally, Robinson disputes the efficacy of vetting carriers in the manner Corsi prescribes.

Corsi will be allowed to testify as to what he believes some brokers do (or have done in the past) and what he believes brokers must do when deciding whether to hire new-entrant carriers. The Supreme Court has been clear that a district court may tailor its reliability analysis to the proffered opinion at hand. Doing so here, the court finds that the opinion suffers from no reliability infirmity.

The real issue not whether Corsi's opinion here is reliable but whether it is helpful. More specifically: Does the opinion as to what a broker must do to select competent carriers offer impermissible legal commentary? The answer lies in the different uses of the term “standard of care.” As the court understands it, Corsi will not prescribe a legal duty. Instead, he will explain what precautions are necessary and appropriate, and the jury can choose whether to adopt those precautions as necessary to Robinson's fulfillment of its duty of care. Robinson's expert will provide an opinion on the same subject. Both experts will be subject to cross-examination. The jury will reach its own conclusion as to whether the...