United States District Court, N.D. Mississippi, Oxford Division
LOLITA PENNINGTON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF ANDRIANA HALL, et al. PLAINTIFFS
UPS GROUND FREIGHT, INC., a/k/a UNITED PARCEL SERVICE DEFENDANT
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE
cause comes before the court upon the defendant's motion
to exclude expert testimony pursuant to Rule 702 of the
Federal Rules of Evidence and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Defendant requests that the court exclude the expert report
and testimony of Rodney D. Ellis.
702 governs the admission of expert testimony, providing:
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.
Daubert, the Supreme Court emphasized that expert
testimony must be both relevant and reliable before it may be
admissible. 509 U.S. 579, 589 (1993). Under Daubert,
courts are to consider the following factors: whether the
expert's technique or theory can be or has been tested;
(2) whether the technique or theory has been subject to peer
review and publication; (3) the known or potential rate of
error of the technique or theory when applied; (4) the
existence and maintenance and controls; and (5) whether the
technique or theory has been generally accepted in the
scientific community. Id. at 593-95. These factors,
however, are neither exclusive nor exhaustive, and trial
courts may consider other factors as they see fit.
first attacks the admissibility of Ellis' testimony on
the ground that he is unqualified. “Whether a witness
is qualified to testify as an expert is left to the sound
discretion of the trial judge, who is in the best position to
determine both the claimed expertise of witness and the
helpfulness of his testimony.” Sullivan v. Rowan
Cos., 952 F.2d 141, 144 (5th Cir. 1992). The proponent
of the expert testimony bears the burden in establishing the
expert's qualifications by a preponderance of the
evidence. United States v. Griffith, 118 F.3d 318,
322 (5th Cir. 1997).
have designated Ellis as an expert in commercial truck
driving and the application of various regulations and
guidelines for commercial drivers. Ellis' expert report
and testimony focus primarily on the Federal Motor Carrier
Safety Regulations (“FMCSR”) and
Mississippi's Commercial Driver License Manual
(“CDL Manual”). In fact, the bulk of Ellis'
report is simply a series of copied and pasted sections of
the FMCSRs and CDL Manual. In arguing that Ellis is qualified
to render his proposed expert testimony, Plaintiffs point to
Ellis' ten years of experience as a commercial truck
driver. Plaintiffs further note that Ellis holds a current
commercial drivers' license. Plaintiffs also reference
various certifications and trainings which Ellis has earned
court is left unconvinced. Experience as a commercial truck
driver, without more, does not qualify one as an expert in
regulations and guidelines applicable to commercial truck
driving. Otherwise, any and every commercial truck driver in
the country could tout themselves as experts in the field.
While the court appreciates that Ellis has completed various
trainings and earned a few certifications, this fact does not
bolster Plaintiffs' argument. The courses listed by
Plaintiffs do not demonstrate knowledge of the FMCSRs
sufficient to qualify Ellis as an expert. Further, Plaintiffs
reference no training pertaining to the CDL Manual. Moreover,
it is undisputed that Ellis has produced no peer-reviewed,
scientific or academic publications in his purported
expertise. Thus, the court finds that Plaintiffs have not met
their burden in establishing Ellis' qualifications by a
preponderance of the evidence.
assuming, arguendo, that Ellis were qualified to
give his proffered opinions, the court finds his opinions to
be unreliable. “The reliability analysis applies to all
aspects of an expert's testimony: the methodology, the
facts underlying the expert's opinion, the link between
the facts and the conclusion, et alia.” Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir.
2007) (quoting Heller v. Shaw Indus., Inc.¸167
F.3d 146, 155 (3d Cir. 1999)). As previously noted, the
overwhelming majority of Ellis' expert report is mere
copied and pasted portions of the FMCSRs and the CDL Manual.
Yet, proof (if any) of a violation of the FMCSRs or CDL
manual, without more, would not establish Defendant's
liability. Further, immediately following the text of these
regulations and guidelines, Ellis simply opines, in
conclusory fashion, that Defendant failed to comply with the
respective regulation or guidelines, without connecting such
opinion to any specific fact(s) of the case. Ellis fails to
point to any specific act or omission, which Defendant should
or should not have taken, that would have prevented the
collision with decedent's vehicle. Moreover, Ellis
concedes that he completely ignored the decedent's
actions leading up to the collision in forming his opinions.
accordance with the foregoing analysis, the court finds that
Defendant's motion to exclude the expert report and
testimony of Rodney D. ...