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TURNER v. GOODYEAR TIRE & RUBBER COMPANY

December 1, 2004.

MICHAEL TURNER and MARGARET ANN TURNER, Plaintiffs,
v.
THE GOODYEAR TIRE & RUBBER COMPANY, WESTOVER CARTAGE, LTD., and WESTOVER CONTRACT CARRIERS, INC., Defendants.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Goodyear Tire and Rubber Company's ("Goodyear") motion for summary judgment and on Defendants Westover Cartage, Ltd.'s and Westover Contract Carrier, Inc.'s (collectively, "Westover") and Bowevil Express, L.L.C.'s ("Bowevil") motion for partial summary judgment. This matter is also before the court on Goodyear's partial motion to bar Plaintiffs' expert witness testimony and on Plaintiffs' motion to strike Goodyear's responses to requests to admit. For the reasons stated below, we grant and deny in part Goodyear's motion for summary judgment. We grant Westover's partial motion for summary judgment. We grant in part Goodyear's motion to bar and deny Plaintiff's motion to strike.

BACKGROUND

  Goodyear formed a contract with Bowevil and under the contract Bowevil was obligated to transport Goodyear's tires from its Danville plant to various customers or locations. Bowevil also entered into a contract with Westover and under that agreement Westover worked on behalf of Bowevil at Danville as its cartage agent. On June 15, 2000, Plaintiff Michael Turner ("Turner") was employed by Bowevil as a truck driver and was delivering Goodyear tires from Danville, Virginia to Dekalb, Illinois. Turner claims that during the transport the tires shifted and that, as a result, when Turner opened the door to the trailer, two tires fell on Turner, injuring him. Turner and his wife Margaret Ann Turner initially brought the instant action in an Illinois state court against Defendants. The three count complaint included a negligence claim against Goodyear (Count I), a negligence claim against Westover (Count II), and claims against Goodyear and Westover for loss of consortium and society (Count III). The negligence claims include common law negligence claims and claims based upon the Federal Motor Carrier Safety Regulations ("FMCSR"). Defendants subsequently removed the action to federal court. LEGAL STANDARD

  Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that 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(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "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); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

  I. Motion to Bar Expert Testimony

  Goodyear has moved to bar in part the expert testimony of Plaintiffs' expert Kenneth L. Pierson ("Pierson"). Pursuant to Federal Rule of Evidence 702:
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed.R. Evid. 702. Under Rule 702 a district court must determine whether a proposed expert's testimony is "both relevant and reliable" and must consider "whether the expert is qualified in the relevant field and whether the methodology underlying the expert's conclusions is reliable." Masters v. Hesston Corp., 291 F.3d 985, 991 (7th Cir. 2002). Thus, the district court acts as a "gatekeeper with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission." Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004). In determining whether expert testimony is admissible, the court should also consider the following non-exhaustive list of factors: (1) "whether the theoretical framework or technique underlying the witness's testimony . . . is subject to verification through testing, (2) whether it has been subjected to peer review and publication, (3) what its known or potential rate of error is, (4) whether there are standards controlling its application, and (5) whether it is generally accepted within the relevant expert community." Id.

  Plaintiffs claim that they retained Pierson to testify regarding: 1) the shifting of freight in transit in general, 2) the shifting in the load of tires in Turner's trailer on the day in question, 3) trucking industry customs and practices, 4) applicability of the FMCSR, and 5) methods utilized in the trucking industry to prevent load shifting. (Ans. Bar. 4-5).

  A. Testimony Regarding FMCSR

  Goodyear seeks to bar Pierson from testifying that: the FMCSR apply to Goodyear, the FMCSR create a duty owed by Goodyear, or that Goodyear violated the FMCSR. We agree with Goodyear that whether or not the FMCSR apply to Goodyear, whether or not the FMCSR created a duty owed by Goodyear, and whether Goodyear violated the FMCSR are all key legal issues for which Pierson cannot properly provide opinion testimony. See Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (stating that "[t]he district court correctly ruled that expert testimony as to legal conclusions that will determine the outcome of the case is inadmissible."). It is mainly the court's role to instruct the jury on the pertinent law. Therefore, we grant Goodyear's motion to bar Pierson from testifying regarding the FMCSR.

  B. Testimony Regarding How Accident Occurred and Customs and Practices

  Goodyear also seeks to bar Pierson from testifying as to how the accident with Turner occurred and regarding industry customs and practices. Goodyear contends that Pierson's opinions are not reliable and that there is a lack of specialized knowledge on his part or a scientific basis for his opinions and that Pierson does not have sufficient knowledge of industry customs and practices. Pierson has extensive experience in the trucking industry and has acted as a safety inspector for the Illinois Commerce Commission. Plaintiffs have shown that Pierson's testimony may assist the trier of fact and that his testimony appears to be sufficiently reliable and is not based upon speculation. We note that we are not finding that such testimony will be admissible at trial. We shall ...


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