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McCon v. Perez

United States District Court, S.D. Mississippi, Southern Division

August 16, 2018

JAMETRIUS MCCON, LARRY HENDERSON, LAMARIO HENDERSON, and DARYL D. WILLIAMS PLAINTIFFS
v.
ADOLFO PEREZ and D&D EXPRESS TRANSPORT DEFENDANTS AND D&D EXPRESS TRANSPORT COUNTER-PLAINTIFF
v.
DARYL D. WILLIAMS COUNTER-DEFENDANT

          ORDER GRANTING IN PART AND DENYING IN PART MCCON'S MOTION TO RECONSIDER

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the [326] Motion to Reconsider filed by the plaintiff Jametrius McCon. The parties have fully briefed the Motion. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the Motion to Reconsider should be granted to the extent that the Court's [325] Memorandum Opinion and Order is amended to provide that the defendants' [220] Motion to Exclude McCon's Actor-Experts is denied as to the opinions of Dr. Chris Wiggins.

         BACKGROUND

         This lawsuit arose out of a motor vehicle accident involving a tractor trailer driven by D&D Express Transport employee Adolfo Perez and a car driven by the plaintiff Daryl D. Williams. The plaintiffs McCon, Larry Henderson, and Lamario Henderson were passengers in Williams' vehicle. The Court entered opinions concerning the numerous motions filed by the parties in this case. McCon now seeks reconsideration of some of the Court's rulings.

         DISCUSSION

         Since the orders that McCon contests are interlocutory in nature, McCon's Motion is governed by Fed.R.Civ.P. 54(b), which provides that “any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties . . . may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities.” Therefore, the Court can reconsider and amend the opinions at issue “for any reason it deems sufficient.” See United States v. Renda, 708 F.3d 472, 479 (5th Cir. 2013).

         I. GROSS NEGLIGENCE AND PUNITIVE DAMAGES

         McCon first seeks reconsideration of this Court's dismissal of McCon's gross negligence and punitive damages claims in its [319] Memorandum Opinion and Order Granting Partial Summary Judgment. McCon argues that the Court erred in finding that the failure of D&D Express to train Perez concerning safe-driving practices constituted simple negligence, at most. McCon claims that employers are required to train their employees regarding all applicable Federal Motor Carrier Safety Regulations (FMCSR). As D&D Express previously explained in its reply in support of its Motion for Partial Summary Judgment,

[w]hen Perez began his employment with D&D Express, he met with Ms. Duran and she explained to him the safety details of the company. D&D Express did not provide further training because all new hires must have at least two years of driving experience. D&D Express gave Perez a road test when he was hired. At the time of his deposition, Perez had been driving commercial motor vehicles for over 27 years. Perez had only been working for D&D Express for about two months at the time the collision occurred. Thus, there is nothing in the admissible evidence that demonstrates Perez was not properly trained or lacked sufficient training at the time of the accident.

(Defs.' Reply 7, ECF No. 300.)

         McCon's claim is based on the assertion that D&D Express should have given Perez additional training in the requirements of FMCSR § 383.111, which “addresses 20 points of knowledge on which state agencies must train and test operators of commercial motor vehicles.” Roberts v. Sunbelt Rentals, Inc., No. 5:14cv00040, 2016 WL 1259414, at *13 (W.D. Va. Mar. 30, 2016).[1] As a result, Perez was previously required to demonstrate knowledge of the very areas cited by McCon when he obtained his CDL license.

         “Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.” McDonald v. Lemon-Mohler Ins. Agency, LLC, 183 So.3d 118, 126 Miss. Ct. App. 2015). “Punitive damages are generally only allowed ‘where the facts are highly unusual and the cases extreme.' Walker v. Target Corp., No. 2:16-CV-42-KS-MTP, 2017 WL 2843613, at *2 (S.D.Miss. July 3, 2017) (quoting Wise v. Valley Bank, 861 So.2d 1029, 1035 (Miss. 2003)). “[S]imple negligence is not of itself evidence sufficient to support punitive damages, but accompanying facts and circumstances may be used to show that that portion of defendant's conduct which constituted proximate cause of the accident was willful and wanton or grossly negligent.” Id. (quoting Choctaw Maid Farms v. Hailey, 822 So.2d 911, 924 (Miss. 2002)). McCon's assertion that the failure of D&D Express to provide additional training to Perez constitutes gross negligence or warrants consideration of punitive damages is without merit.

         II. SPOLIATION

         McCon next seeks reconsideration of this Court's determination that he is not entitled to present evidence of spoliation and a spoliation instruction to the jury at trial. McCon's request for reconsideration centers around the defendants' loss of Perez's log book. McCon claims that the Court improperly weighed the evidence when it held that “there is no evidence that either of the defendants destroyed the logbook in bad faith; the testimony merely indicates that the defendants do not know what happened to the logbook.” (Mem. Op. & Order 5, ECF No. 323.) McCon relies on the testimony of Carlos Laguna, the other D&D Express driver who was in the tractor trailer at the time of the accident. Laguna testified that he and Perez turned their logbooks in to D&D Express's corporate representative, but the corporate representative testified that she ...


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