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Ferrell v. BGF Global LLC

United States District Court, W.D. Oklahoma

February 13, 2018

TRUDY FERRELL, individually and as personal representative of the ESTATE OF GREGORY FERRELL, deceased, Plaintiff,
BGF GLOBAL, LLC, et al., Defendants.



         Before the Court is Defendants' Motion to Strike (Daubert), Motion in Limine and Brief in Support as to Plaintiff's Expert Larry Cole [Doc. No. 104]. Plaintiff has filed her responses in opposition [Doc. Nos. 117, 119], and Defendants have replied [Doc. Nos. 123, 124]. The matter is fully briefed and at issue.

         Rule 702 of the Federal Rules of Evidence imposes upon the Court an important “gate-keeping” function with regard to the admissibility of expert opinions. It 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.

Fed. R. Evid. 702. In considering whether an expert's opinion is admissible, the Court performs a two-step analysis. First, the Court determines whether the expert is qualified by knowledge, skill, experience, training or education to render the opinion that the expert offers. Second, if the expert is so qualified, the Court must decide whether the expert's opinion is reliable under the principles set forth in the seminal cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and would assist the fact finder. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). “If expert testimony is not reliable under Daubert/Kumho, it is not admissible under Rule 702.” James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1215 n. 1 (10th Cir. 2011).

         Courts have broad discretion in determining the admissibility of expert testimony. Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395, 1397 (10th Cir. 1997). A district court also has broad discretion to decide “how to assess an expert's reliability, including what procedures to utilize in making that assessment, as well as in making the ultimate determination of reliability.” Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003) (citing Kumho Tire, 526 U.S. at 152; United States v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000)).


         This action stems from an automobile accident in which Plaintiff's husband, Gregory, was killed when his car collided with a semi-truck driven by Defendant Lawrance Dildine. At the time of the accident, Dildine was employed as a truck driver for Defendant BGF Global, LLC (BGF). BGF has stipulated Dildine was acting within the scope of his employment when the accident occurred. In support of her claims against BGF and Dildine, Plaintiff retained Larry Cole as an expert witness. Mr. Cole is president of Trucking Experts, Inc. He has provided expert testimony in trucking cases approximately thirty times since 2012 and has worked in the trucking industry since 1984. In addition, Mr. Cole has held numerous positions relating to safety and compliance. He has been certified as a driving instructor for the State of Arkansas and for sleep deprivation/fatigue awareness training.

         For purposes of the instant Motion, Defendants do not question Cole's qualifications as an expert regarding general trucking issues. Defendants, however, object to the opinions he has reached in his April 5, 2017 expert report (the “Cole Report”) regarding Defendants' actions, and any opinions concerning human factors such as perception, reaction and driver fatigue.[1] Defendants request that Cole be stricken as an expert witness, or alternatively, that an order in limine issue with respect to his proposed testimony.

         In summary, Cole states the following opinions regarding Dildine:

1) Pursuant to federal regulations, after Dildine previously tested positive for marijuana (while employed for another company), he had a duty to complete a Substance Abuse Professional evaluation;
2) Dildine had a duty to comply with Federal Motor Carrier Safety Regulations (FMCSR) regarding hours of service, and, at the time of the accident Dildine exceeded the prescribed seventy hour time cap;
3) Dildine had a duty to follow trucking industry standards to scan far enough ahead to be able to react safely to approaching situations;
4) Dildine had a duty to look for hazards prior to approaching the intersection;
5) Dildine had a duty to operate the semi-truck in a manner as to eliminate known distractions, such as talking on the telephone; and
6) Dildine had a duty to know the speed he was traveling immediately prior to approaching the intersection;

Cole Report at 46-47 [Doc. No. 104-1]. Cole also sets forth certain opinions regarding what he describes as BGF's “questionable ...

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