United States District Court, W.D. Texas, San Antonio Division
Honorable Fred Biery United States District Judge.
REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Report and Recommendation and Order concerns the following
four motions before the Court: Defendants' Objection and
Motion to Strike the Testimony of Plaintiff Expert, Everett
Dillman, Ph.D. [#31] and Defendants' Objection and Motion
to Strike the Testimony of Plaintiff Expert, Kerry Nelson
[#38], Defendants' Motion for Summary Judgment on Gross
Negligence [#41], and Defendants' Motion for Summary
Judgment on Plaintiff's “Direct” Claims of
Negligence [#43]. All pretrial matters in this case have been
referred to the undersigned for disposition pursuant to
Western District of Texas Local Rule CV-72 and Appendix C
[#14], and the undersigned has authority to enter an order as
to Defendants' Motions to Strike pursuant to 28 U.S.C.
§ 636(b)(1)(A) and a recommendation as to
Defendants' Motions for Summary Judgment pursuant to 28
U.S.C. § 636(b)(1)(B).
reviewing these motions, the Court has also considered
Plaintiff's Response to Defendants' Objection and
Motion to Strike the Testimony of Plaintiff Expert, Everett
Dillman, Ph.D. [#35], Plaintiff's Response to
Defendants' Objection and Motion to Strike the Testimony
of Plaintiff Expert, Kerry Nelson [#38], Plaintiff's
Response to Defendants John Christner Trucking LLC and Three
Diamond Leasing LLC.'s Motion for Summary Judgment on
Plaintiff's “Direct” Claims of Negligence
[#45], Plaintiff's Response to Defendants John Christner
Trucking LLC and Three Diamond Leasing LLC.'s Motion for
Summary Judgment on Gross Negligence [#46], Defendants'
Reply on Summary Judgment on Gross Negligence Claims [#48],
Defendants' Reply on Summary Judgment on
“Direct” Negligence Claims [#49]. The Court held
a hearing on the motions on January 29, 2019, at which all
parties were present as represented through counsel.
considered the written filings before the Court, the
arguments of the parties at the hearing, the record in this
case, and the governing law, the Court will recommend that
Defendants' Motion for Summary Judgment on Gross
Negligence [#41] be granted in part and denied in
part and recommend that Defendants' Motion for
Summary Judgment on Plaintiff's “Direct”
Claims of Negligence [#43] be granted. The
Court will also order that Defendants' Motion to Strike
the Testimony of Plaintiff Expert, Everett Dillman, Ph.D.
[#31] be denied and Defendants'
Objection and Motion to Strike the Testimony of Plaintiff
Expert, Kerry Nelson [#38] be granted in part and
denied in part.
case involves a motor-vehicle collision between Plaintiff
Sergio Alpizar and a commercial 18-wheeler allegedly operated
by Defendant Jack Eugene Hein (“Hein”) on behalf
of Defendants John Christner Trucking (“JCT”) and
Three Diamond Leasing, LLC. (Orig. Pet. [#1-2] at 21.)
Plaintiff originally filed this action in state court, and
Defendants removed the Petition to this Court on July 31,
2017 on the basis of diversity jurisdiction [#1]. Plaintiff
thereafter filed a First Amended Complaint, which alleges
claims of negligence against Hein, claims of negligence
against JCT and Three Diamond Leasing based on a theory of
respondeat superior, claims of “direct”
negligence against JCT and Three Diamond Leasing for
negligent hiring, training, supervision, retention, and
entrustment of Hein, and claims of gross negligence against
all Defendants [#5]. Defendants now move for summary judgment
on Plaintiffs' claims of gross negligence against all
Defendants [#43], for summary judgment on Plaintiffs'
claims of “direct” negligence against Defendants
JCT and Three Diamond Leasing, and for summary judgment on
Plaintiff's claim of negligence based on a theory of
respondeat superior against Three Diamond Leasing,
the basis that Plaintiff was not employed by this entity
[#41]. Defendants also move to strike two of Plaintiff's
designated experts-Everett Dillman, Ph.D. [#31] and Kerry
Nelson [#38]. The Court will first address the summary
judgment motions and then the motions to exclude
Three Diamond Leasing's Motions for Summary
hearing, Plaintiff indicated that he does not oppose
Defendants' motions for summary judgment on his claims
against Three Diamond Leasing, as discovery revealed that
this entity was not Plaintiff's employer and only a
leasing agency. In light of Plaintiff's lack of
opposition, the undersigned will recommend the Court grant
Defendants summary judgment on all of Plaintiff's claims
against Three Diamond Leasing.
Hein and JCT's Motions for Summary Judgment
Defendants' motions for summary judgment on certain
claims against Hein and JCT are contested. Defendants claim
they are entitled to summary judgment as a matter of law on
Plaintiff's claims of gross negligence against Hein and
JCT and on Plaintiff's claims of negligent hiring,
training, supervision, retention, and entrustment against
JCT. Defendants' motions for summary judgment should be
denied as to Hein but granted as to JCT.
Summary Judgment Standard
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see
also Fed. R. Civ. P. 56(c). A dispute is genuine only if
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).
party moving for summary judgment bears the initial burden of
“informing the district court of the basis for its
motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp., 477 U.S. at
323. Once the movant carries its burden, the burden shifts to
the nonmoving party to establish the existence of a genuine
issue for trial. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise
v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195
(5th Cir. 1995). The non-movant must respond to the motion by
setting forth particular facts indicating that there is a
genuine issue for trial. Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties
may satisfy their respective burdens by tendering
depositions, affidavits, and other competent evidence.
Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.
1992). The Court will view the summary judgment evidence in
the light most favorable to the non-movant. Rosado v.
Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After
the non-movant has been given the opportunity to raise a
genuine factual issue, if no reasonable juror could find for
the non-movant, summary judgment will be granted.”
Westphal, 230 F.3d at 174.
Summary Judgment Record
undisputed summary judgment record establishes the following:
On May 3, 2017, Hein was traveling north on I-35 after making
a delivery for JCT at an H-E-B in San Antonio. (Hein Dep.
[#41-1] at 39:5-40:7.) At the time of the accident, Hein was
on his way to a Flying J to park his truck and wait for his
next assignment from JCT. (Id. at 39:1-51:18.) Hein
was driving in the right-hand lane of the interstate when
Plaintiff passed him from the left. (Id. at
53:10-25.) Approximately thirty seconds to a minute and a
half later, additional traffic merged from the left to
right-hand lane to make an exit, causing the entire lane of
traffic to brake. (Id. at 57:10-24.) Hein attempted
to brake and veer his truck to the right shoulder, but he
failed to break in time and rear-ended Plaintiff's
vehicle. (Id. at 71:3-21; Crash Report [#46-3] at
3.) The Crash Report estimates the collision occurred at 4:57
p.m. (Crash Report [#46-3] at 2.)
records from Hein's personal cell phone, which he carries
for business and personal use while on the job, display over
40 calls on May 3, 2017, ten of which were calls made by
Plaintiff to various numbers in Sapulka, Oklahoma during the
10-minute period from 4:50 p.m. to 5:00 p.m. (Cell Records
[#46-1] at 10-11.) None of these calls exceeded 3 minutes,
and the majority of the calls were only one minute long.
(Id.) Hein testified in his deposition that these
calls were to JCT to report the accident; that he was not on
his cell phone at the time of the collision or immediately
prior to the collision; and that when he uses his cell phone
on the job he always uses a Bluetooth hands-free device.
(Hein Dep. [#46-2] at 59:7-17; 61:2-22.) There is no evidence
that Hein was speeding at the time of the accident.
(Id. at 65:1-9.)
has received several traffic citations in recent years: a
speeding ticket in 2015 while driving his personal pickup
truck; a speeding ticket in 2016 for the same; and a ticket
in May 2013 for speeding and driving in a restricted lane
while driving an 18-wheeler for a previous employer.
(Id. at 27:1-28:15; Employee File [#46-5] at 33.)
Besides the collision at issue in this lawsuit, Hein has
never had any other accidents involving other vehicles. (Hein
Dep. [#41-1] at 28:18-21.) A search of Hein's employment
records indicates, however, that he received a company policy
violation and unsatisfactory safety record during his work
with a prior employer, Celadon Trucking Services, in early
2013 and another unsatisfactory safety record with a separate
prior employer, Western Express, Inc., in later 2013.
(Employee File [#46-5] at 19-20.)
also undisputed that Hein was given a driving test upon
hiring by JCT and was required to watch a number of safety
videos before being dispatched on his first drive. (Hein Dep.
[#41-1] at 84:4-13, 85:16-86:1.) The videos covered how to
approach an intersection, being attentive in traffic,
maintaining safe driving distances, and appropriate speed.
(Id. at 86:1- 23.) Hein received a Certificate of
Completion for JCT's Orientation Curriculum on May 8,
2015. (Employee File [#46-5] at 32.) Hein was given a drug
test upon hiring, which was negative. (Id. at 38.)
There is no evidence that Hein's employer provided him
with ongoing training throughout his employment. (Nelson Dep.
[#46-6] at 137:11-14.)
evidence in the record generates material issues of fact that
preclude granting Defendants' motions for summary
judgment on Plaintiff's gross negligence claim against
Hein, but the record establishes that Defendants are entitled
to judgment as a matter of law on Plaintiff's gross
negligence claim against JCT, as well as on Plaintiff's
claim against JCT for negligent hiring, training,
supervision, retention, and entrustment.
Gross Negligence of Hein
alleges that Hein was grossly negligent in his operation of
the 18-wheeler that rear-ended Plaintiff's vehicle on May
3, 2017. (First Am. Compl. [#5] at ¶¶ 22-25.)
Defendants contend that Plaintiff cannot establish his claim
of gross negligence against Hein as a matter of law. The
undersigned disagrees; the summary judgment record ...