United States District Court, N.D. Mississippi, Oxford Division
LAMIKA S. COLEMAN AND, MARLO BROWN Plaintiffs,
SWIFT TRANSPORTATION CO. OF ARIZONA, LLC AND JAMIE VAN ALSTYNE, Defendants.
MEMORANDUM OPINION AND ORDER
DEBRA M. BROWN, District Judge.
The defendants in this automobile accident case have filed three motions in the effort to avoid trial or at least limit the evidence and claims presented at trial. They have moved (1) for summary judgment on all claims on grounds that the plaintiffs cannot show the existence of a legal duty required to prove negligence; (2) to strike the plaintiffs' expert witness from testifying at trial and having his opinions considered on summary judgment; and (3) for partial summary judgment based on the plaintiffs' alleged failure to establish damages for loss of wage earning capacity. Having considered the motions, case record, and applicable law, the Court finds that, for the reasons discussed below, summary judgment should be granted in part and denied in part; and the plaintiffs' expert's opinions should be stricken in part.
I. Facts and Procedural History
This lawsuit arises from an automobile accident that occurred on July 5, 2012, in Marshall County, Mississippi, between vehicles driven by Plaintiff Lamika S. Coleman and Defendant Jamie VanAlstyne. At all relevant times, Coleman was operating a 2007 Suzuki XL7 sports utility vehicle ("SUV"), and VanAlstyne was operating a 2012 Kenworth T660 tractortrailer truck. Both vehicles were traveling eastbound in the right lane of U.S. Highway 78, a four-lane divided highway, when they approached signs indicating that the right lane was ending due to construction. Vehicles traveling in the right lane of traffic were required to merge into the left lane. VanAlstyne moved into the left lane first. When Coleman attempted to merge in front of VanAlystne into the left lane, the rear left side of her SUV collided with the right front tire of his truck. Upon impact, Plaintiff Marlo Brown, a male passenger in Coleman's vehicle, was ejected from the car. Coleman and Brown were transported from the scene by Emergency Medical Services. At the time of the accident, VanAlstyne was acting within the course and scope of his employment with Defendant Swift Transportation Company of Arizona, LLC ("Swift Transportation"), and he was driving a truck owned by Swift Transportation.
On November 24, 2012, Coleman and Brown filed a complaint in the Circuit Court of Marshall County, Mississippi, against Swift Transportation and VanAlstyne for injuries they allegedly suffered from the July 5, 2012, automobile accident. Both Coleman and Brown asserted a negligence claim against VanAlstyne; and claims for negligent entrustment, negligent hiring, and negligent retention against Swift Transportation. State Ct. Compl.  at 1-6. Coleman and Brown specifically alleged that VanAlstyne was negligent because he failed to operate his vehicle with due care, maintain a proper lookout, and use due care under the circumstances. Id. at 3.
On January 2, 2013, before VanAlstyne was served, Swift Transportation removed the case to this Court under 28 U.S.C. §§ 1332(a), 1441, and 1446. The plaintiffs filed an amended complaint on June 3, 2013, adding a new claim for negligence against Swift Transportation. From the language in the amended complaint, it appears the plaintiffs assert that Swift Transportation is vicariously liable for any negligence of VanAlstyne in operating the tractortrailer truck. See Am. Compl. .
On August 5, 2013, the defendants moved for summary judgment on all claims asserted against them. Mot. . On December 2, 2013, they filed a motion to strike the plaintiffs' expert witness, James Sloan, asking that he be precluded from testifying at trial and that his opinions be disregarded on summary judgment. Mot. . On December 6, 2013, the defendants filed a motion for partial summary judgment on the plaintiffs' claims for loss of wage earning capacity. Mot. . By Order  dated January 3, 2014, this case was reassigned to the undersigned United States District Judge. The defendants' motions have been fully briefed and are ripe for ruling.
The Court will first address the motions for summary judgment and partial summary judgment, and then will evaluate the defendants' motion to strike the plaintiffs' expert witness.
II. Law & Analysis
A. Standard for Summary Judgment
Summary judgment should be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, district courts must review all evidence and draw all reasonable inferences in the nonmoving party's favor. Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009). The nonmoving party cannot rely on metaphysical doubt, conclusive allegations, or unsubstantiated assertions but instead must show that there is an actual controversy warranting trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations omitted). In the absence of proof, the district court should not assume that the nonmoving party could have proved the necessary facts. Paz, 555 F.3d at 391. "A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact." Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir. 1988).
B. Defendants' Motion for Summary Judgment
In their motion for summary judgment, the defendants argue that Coleman is responsible for the accident because she failed to yield the right of way and attempted to overtake and pass VanAlstyne. Mot.  at 3. The defendants also argue that because they have admitted VanAlstyne acted within the course and scope of his employment, the claims against Swift Transportation for negligent entrustment, negligent hiring, and negligent retention have no legal basis and must be dismissed. Id. at 5. The plaintiffs disagree with the defendants' characterization of events and argue that VanAlstyne repeatedly blocked Coleman's attempts to merge safely into the left lane, thereby causing the accident. Pls.' Resp.  at 1. Although the parties dispute certain facts, the defendants nevertheless contend that summary judgment should be granted because VanAlstyne did not have a legal duty to let Coleman merge in front of him.
1. Negligence - Existence of a Legal Duty
Because this Court's jurisdiction is based on diversity of citizenship, the applicable substantive law is that of the forum state, Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011) (citing Ideal Mut. Ins. Co. v. Last Days Evangelical Ass'n, 783 F.2d 1234, 1240 (5th Cir. 1986)). To prevail on a claim of negligence under Mississippi law, the plaintiffs must prove "(1) duty, (2) breach of duty, (3) causation, and (4) damages, by a preponderance of the evidence." Stricklin v. Medexpress of Miss., LLC, 963 So.2d 568, 571 (Miss. Ct. App. 2007); Carpenter v. Nobile, 620 So.2d 961, 964 (Miss. 1993). "[W]hether a duty exists in a negligence case is a question of law to be determined by the court." Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 232 (Miss. 2001) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss. 1999)). A "plaintiff must demonstrate duty and breach of duty before any other element. Duty and breach are essential to a finding of negligence." Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 131 (Miss. 2003) (internal citations and quotation marks omitted).
The plaintiffs assert that VanAlstyne had a legal duty to use reasonable care while operating his truck but that he failed to do so by not keeping a proper lookout and by blocking Coleman's attempts to safely merge into the left lane. Pls.' Resp. Brief  at 2. Mississippi law imposes a duty on drivers to keep their vehicles under reasonable and proper control and to keep a reasonable and proper lookout for other vehicles. See Mississippi Dep't of Transp. v. Trosclair, 851 So.2d 408, 418 (Miss. Ct. App. 2003) ("The operator of a motor vehicle has a duty to keep the vehicle under proper control and to drive at a speed which is reasonable under the conditions she faces.") (citing Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 205 (Miss. 2000)); Martin ex rel. Martin v. B&B Concrete Co., 71 So.3d 611, 616 (Miss. Ct. App. 2011) ("It is uncontroverted that [the driver] had a duty to keep a reasonable and proper lookout for other vehicles and to keep his vehicle under reasonable and proper control.") (citing Busick v St. John, 856 So.2d 304, 317 (¶ 39) (Miss. 2003)). Drivers who are traveling on any roadway that has been divided into three or more clearly marked lanes must keep their vehicles "as nearly as practical entirely within a single lane" and must not move "from such lane until the driver has first ascertained that such movement can be made with safety." Miss. Code Ann. § 63-3-603 (West, Westlaw through 2014 Reg. Sess.). Also, under certain circumstances, a driver being passed by another vehicle must yield the right-of-way to the overtaking vehicle and cannot increase his speed until completely passed by the overtaking vehicle. See Miss. Code Ann. § 63-3-609 (b) (West, Westlaw through 2014 Reg. Sess.) ("Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaken vehicle.").
The defendants argue that the plaintiffs cannot show VanAlstyne had a legal duty to let Coleman merge in front of him. However, that is not the appropriate standard. As noted above, Mississippi law requires drivers to keep their vehicles under reasonable and proper control and keep a reasonable and proper lookout for other vehicles. Trosclair, 851 So.2d at 418. Thus, at the time of the accident, VanAlstyne had a duty to maintain reasonable and proper control of the tractor-trailer truck and to keep a proper lookout for other vehicles, including Coleman's. As a driver on a four-lane highway, Coleman also had a duty to keep her vehicle entirely within a single lane until she ascertained that it was safe to move into another lane. Miss. Code Ann. § 63-3-603.
The parties dispute whether VanAlstyne should have allowed Coleman to merge in front of him at the time of the accident. They also dispute whether VanAlstyne kept a proper lookout and whether Coleman merged at a time when it was safe to do so. The defendants argue that Coleman had options other than merging in front of VanAlstyne, pointing out that Coleman could have slowed down and merged behind VanAlstyne or that she could have come to a complete stop in the right lane rather than merging into the truck. The accident report, which was completed by a Mississippi Highway Patrol officer, indicates that Coleman engaged in "improper passing/overtaking, " "improper lane change, " and "failure to keep proper lane/run off road." Accident Report [80-2] at 3.
In contrast, the plaintiffs argue that VanAlstyne drove in a manner which prevented Coleman from safely merging in front of or behind him. They offer the deposition testimony of Bobby Shegog, an eyewitness to the accident who was traveling eastbound on Highway 78 that day, in support of their argument that VanAlstyne breached his duty of reasonable care. Shegog testified that VanAlstyne sped up and slowed down so as to prevent Coleman's attempts to pass him. Shegog Dep. [125-1] at 23:3-22. VanAlstyne, however, stated during his deposition that he looked out of his right passenger ...