Trucking Expert Witness Opinion Excluded under Daubert

In Call v. Harrison, The U.S. District Court for the Western District of Virginia has held that a trucking expert witness opinion did not meet the reliability threshold imposed by Daubert.  The court reasoned:

Call offered the expert testimony of a [a Trucking Expert], whose report indicates has many years of experience in the trucking industry concerning safety and maintenance, in support of a claim that the Williamson truck was not maintained properly. [The expert] did not examine the Williamson truck, broken u-joint or drive shaft in question, and based his opinion entirely on the lack of maintenance records kept by defendant Williamson. From his examination of Williamson’s records, along with public information obtained from the Federal Motor Carrier Safety Administration, he draws the following conclusion: “The public records on Williamson Distributors Inc. reflect that as a motor carrier the inspection records generated by their drivers and commercial vehicles were abnormal and beyond the limits of a reasonably safe motor carrier in vehicle maintenance and fatigued driving (hours of service) for the time period of this incident with Mr. Call on February 16, 2010.” Def. Summ. J. Br., Dkt # 66, Ex. E, at 5. Based entirely on his records review, he reaches four opinions regarding the truck he never saw and the u-joint and drive shaft he never examined: (1) that Williamson “did not perform maintenance of tractor #212 to manufacturer and industry standards”; (2) “did not act in a reasonable manner in maintaining a maintenance files [sic] on its commercial motor vehicle #212”; (3) “[t]he driveshaft of truck-tractor #212 should not have fallen off in use on the highway”; and (4) “Williamson Distributors Inc. and Nathan Harrison’s actions were causal factors of the incident of February 16, 2010.” Id.

As indicated in open court on October 18, his conclusion is not admissible as an expert opinion under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In performing a gatekeeper function, the trial court must ensure that the proposed expert testimony meets a standard of evidentiary reliability. Factors to consider in determining whether proposed expert testimony meets such a standard include whether a theory or technique can be and has been tested, whether it is subject to peer review, whether there are standards applicable to the technique and whether the theory or technique enjoys general acceptance within the relevant scientific community.

His proposed testimony meets none of these criteria. he finds that Williamson does not keep proper maintenance records on its fleet of trucks, and from there leaps to the speculative conclusion that improper maintenance “was a causal factor of the incident of February 16, 2010.” Def. Summ. J. Br., Dkt. # 66, Ex. E, at 5. This assertion is not grounded in an examination of the truck, u-joint or drive shaft, and it cannot be tested based upon any generally accepted methodology or engineering basis. In essence, all he knew was that a u-joint failed, causing a drive shaft to fall on the highway from a truck as to which there were scant maintenance records. From these facts alone, he concludes that it was most likely that the u-joint failed and the drive shaft fell off of the truck due to insufficient lubrication. Although there could be many reasons why the u-joint failed, hetestified in his deposition that “it was more probable a maintenance issue because of the lack of records.” Def. Summ. J. Br., Dkt. # 66, Ex. F, at 138. The conclusion that Williamson did not properly perform preventative maintenance on the u-joint and drive shaft is utter conjecture wrapped in the cloak of an expert opinion. As such, it cannot meet the threshold requirement of evidentiary reliability imposed by Daubert and Kumho Tire. At 2-4

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