# Herron v. APAC of Tennessee Inc

> District Court, E.D. Arkansas · May 14, 2019

URL: https://www.frixlaw.com/law-library/cases/10035371

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** May 14, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

KENNY HERRON and MARY LOU
HERRON, as Guardians of the Person and
Estate of Cadence Nevaeh McGuire, a minor;
MARY LOU HERRON, Administratrix of the
Estates of Jessica M. McGuire and Brinley M.
McGuire, a minor, and for their Wrongful
Deaths; and CHARLES JEFF GARDNER,
Administrator of the Estate of Nicholas
McGuire and for his Wrongful Death PLAINTIFFS

Vv. No. 3:16-cv-127-DPM

J E PHILLIPS & SONS, INC.; BEST TRUCK
& TRAILER, INC.; RICHARD CARL
ADAMS; and WABASH NATIONAL
CORPORATION d/b/a Wabash
National Trailer Centers, Inc. DEFENDANTS

ORDER
The Court's rulings on the deposition designation disputes are in
the margin of the parties’ joint report, Ne 333, which is attached to this
Order.
So Ordered.

D.P. Marshall Jr.
United States District Judge
l¢ May 2019

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 1 of 16

pem Rv NGS
UNITED STATES DISTRICT COURT AP □□ □
EASTERN DISTRICT OF ARKANSAS it May 2019
JONESBORO DIVISION

KENNY HERRON, et al.,
Plaintiffs,
vs. No. 3:16-CV-127-DPM
J.E. PHILLIPS AND SONS, INC., et al.,
Defendants.

REVISED JOINT REPORT ON DEPOSITION DESIGNATION DISPUTES

COME NOW the Parties, by and through their counsel, and submit this Revised Joint
Report on Deposition Designation Disputes. The Parties exchanged their deposition designations
and then met in-person on February 25 and 26, 2019, to discuss their disputes over the
designations, counter-designations, and objections. Following the hearing on April 15, 2019, the
following disputes remain for the Court to resolve:
Plaintiffs’ Deposition Designations
1. Richard Adams (Defendant) — Exhibit A
a. Plaintiffs’ Unresolved Objections to Defendants’ Counter-Designations
Plaintiffs’ Objections: Regarding construction signage and the accident scene: (i) Page
65, line 22 through page 66, line 9; (ii) Page 66, line 12 through page 67, line 24; (iii) Page 88,
lines 12-22; (iv) 108, line 22 through page 109, line 11; and (v) Page 110, lines 18-25:
speculation, guessing, could inot identify what signs were present, lack of knowledge, lack of
foundation, inadmissible, overly broad, irrelevant. All overav ed :

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 2 of 16

Defendants’ Response: This is relevant testimony by a party concerning what he
observed at the scene of the accident and is admissible opinion testimony under Rule 701
because it is rationally based on his perception.
Plaintiffs’ Objection: Page 101, line 22 (from “but”) through page 102, line 1:
speculation, post manufacture date specs not relevant to the subject trailer, lack of foundation,
inadmissible Overvrled
Defendants’ Response: This is relevant and admissible testimony that explains the scope
of the witness’s knowledge about underride guards and must be admitted to fully explain the
scope of his knowledge in response to Plaintiffs’ counsel’s question.
Plaintiffs’ Objection: Page 112, line 18 through page 113, line 9: irrelevant, speculation,
confuses the issues, misleads the jury, lack of foundation, improper lay witness testimony Sustwenee. □□□
Defendants’ Response: This is admissible opinion testimony under Rule 701 because it is
rationally based on his perception.
Plaintiffs’ Objection: Page 114, line 23 through page 115, line 3: speculation, witness
previously testified that he did not know how many feet he rolled forward, guessing . OV le □□□
Defendants’ Response: This is relevant testimony by a party concerning what he
observed at the scene of the accident and is admissible opinion testimony under Rule 701
because it is rationally based on his perception.
(ena Objection: Page 118, lines 15-19: leading question, unresponsive. orenavied □
Defendants’ Response: This question was asked during cross-examination by another
party when leading questions are permissible. The answer is responsive to the question.
(_ Bat Objection: Page 118, line 25 through page 119, line 5: leading question (yen/Au led.

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 3 of 16

Defendants’ Response: This question was asked during cross-examination by another
party when leading questions are permissible.
[e Plaintiffs’ Objection: Page 120, lines 4-18: objection to form, leading question , 0 Vonavrk d.
Defendants’ Response: These questions were asked during cross-examination by another
party’s attorney. Therefore, leading questions are permissible. Further, this is a clarification
answer that is admissible opinion testimony under Rule 701 because it is rationally based on his
perception.
Plaintiffs’ Objection: Page 122, lines 9-12; and Page 122, lines 15-18: objection to form,
leading question, speculative, lack of foundation. Ovemwle d.
Defendants’ Response: This question was asked during cross-examination by another
party when leading questions are permissible. This is relevant testimony by a party concerning
what he observed at the scene of the accident and is admissible opinion testimony under Rule
701 because it is rationally based on his perception.
Plaintiffs’ Objection: Page 123, lines 8-12: leading question, speculation, lack of
foundation, lack of knowledge . Overnnu le d
Devendants’ Resparise: These questions were asked during cross-examination by another
party’s attorney. Therefore, leading questions are permissible. Further, this is relevant testimony
by a party concerning what he observed and perceived at the scene of the accident, This is
admissible opinion testimony under Rule 701 because it is rationally based on his perception,
helpful to clearly understand his testimony and a fact at issue, and is not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 4 of 16

b. Defendants’ Unresolved Objections to Plaintiffs’ Designations
Defendants’ Objection: Regarding JEP’s previous accidents: (i) Page 33, line 8 through
page 34, line 2; and (ii) Page 34, lines 7-18: Testimony regarding JEP’s previous accidents is
irrelevant, confuses the issues, and speculative. Plaintiffs have not made a showing of substantial
similarity between any of JEP’s prior accidents and Mr. McGuire’s collision with Mr. Adam’s
tractor-trailer. (See Transcript of Motions Hearing, Apr. 15, 2019, Doc, No. 329, at 13-15.)
Plaintiffs’ Response: Releyant to show the safety and maintenance practices of JEP, as
well as, the absence of training and safety instruction to JEP’s Defendant Driver Richard Adams.
In spite of JEP’s drivers being involved trear end accidents during the three years prior to the
subject accident, Defendant employee/driver Adams had never been provided any information
‘tant shawn
regarding safety to prevent rear end accidents. Sustuned. !N 7
of substewth □□
2. Brian Belcher (Wabash Rule 30(b)(6) Witness) — Exhibit B simi louty. Ws
i£ TT proffas □□□□
a. Plaintiffs’ Unresolved Objections to Defendants’ Counter-Designations ,f sy
□□ lanity,
Plaintiffs Objection: Page 18, lines 5-8, 11-15, 17: irrelevant, confuses the issues,
misleads the jury, speculation, overly broad. Ss ustumed . Queshow tre broad □
=~ * lucuPhtaad Fruvdashew, with detorks
Defendants’ Response: Relevant to the claims of product design defect and unreasonably
nwa vp woth Huo cace.
dangerous product. Evidence of no accidents is proof of no defect. Higgins v. Hicks Co., 756
F.2d 681, 685 (8th Cir. 1985); Sturm v. Clark Equip. Co., 732 F.2d 161 (8th Cir. 1984). aan
Not precedint , -vateagemmte unpvl Wished opinion,
3. Amanda Carver (J.E. Phillips Rule 30(b)(6) Witness) — Exhibit C
a. Defendants’ Unresolved Objections to Plaintiffs’ Designations
Defendants’ Objection: Page 13, lines 17 through page 14, line 6: Calls for impermissible
expert opinion and speculation, there is a lack of foundation, and the witness lacks knowledge.
Overrvied .

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 5 of 16

Plaintiffs’ Response: JEP designated Amanda Carver as the JEP 30(B)(6) representative
with knowledge about safety. (JEP Designations and Objections to Plaintiffs’ Notice of 30(B)(6)
Videotape Deposition to JEP p. 8, 13).
Defendaiits’_ Objection: Page 20, lines 5-10: The question is ambiguous and vague
because it is unclear whether the question and testimony refer to a truck stopping for its own
accident as a routine stop or whether they refer to a truck stopping in traffic due to some other
car’s accident as a routine stop. 0 veruled .
Plaintiffs’ Response: The question is not ambiguous and vague.
Defendants’ Objection: Regarding JEP’s prior accidents and trucking accidents in
general: (i) Page 26, line 21-24; and (ii) Page 27, lines 3-15: JEP’s prior accidents are irrelevant
and confuse the issues. Plaintiffs have not made a showing of substantial similarity between any
of JEP’s prior accidents and Mr. McGuire’s collision with Mr. Adam’s tractor-trailer. (See
Transcript of Motions Hearing, Apr. 15, 2019, Doc. No. 329, at 13-15.) Svstumed. Same rulwng ‘
oud caveat KS ON Adams s
Plaintiffs’ Resporise: JEP designated Amanda Carver as the JEP 30(B)(6) representative □□□□□□□
ottsn-vceidicl
with knowledge about safety. (JEP Designations and Objections to Plaintiffs’ Notice of 30(B)(6) ect, wien □□□
Videotape Deposition to JEP p. 8, 13). This is relevant to show the safety practices and training
of JEP. In spite of JEP’s drivers being involved in rear end accidents during the three years prior
to the subject accident, Defendant employee/driver Adams had never been provided any
information regarding safety to prevent rear end accidents.
Defendants’ Objection: Ms. Carver’s personal driving expectations: (i) Page 28, lines 8-
17; and (ii) Page 29, lines 1-8: What Ms. Carver may see when she is driving on her personal
time is irrelevant and the question lacks a foundation. □□□ nule d /

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 6 of 16

Plaintiffs’ Response: JEP designated Amanda Carver as the JEP 30(B)(6) representative
with knowledge about safety. (JEP Designations and Objections to Plaintiffs’ Notice of 30(B)(6)
Videotape Deposition to JEP p. 8, 13). She provides the safety training for JEP’s commercial
truck drivers, including defendant Adams.
Defendants’ Objection: Regarding the purpose of underride bars: (i) Page 30, lines 12-16;
and (ii) Page 31, lines 7-12 and 21-23: The question calls for Ms. Carver to speculate regarding
the industry-wide purpose for underride guards and why trailer manufacturers use them. Further,
there is a lack of foundation and Ms. Carver lacks the knowledge necessary to respond. (Oy@y ane □
Plaintiffs’ Response: JEP designated Amanda Carver as the JEP 30(B)(6) representative
with knowledge about safety. (JEP Designations and Objections to Plaintiffs’ Notice of 30(B)(6)
Videotape Deposition to JEP p. 8, 13). This is relevant to show the safety practices and training
of JEP.
Defendants’ Objection: Page 39, lines 7-21: Irrelevant because a vehicle was not left in a
traveled portion of the roadway in this case. Calls for speculation. 0 venue a
Plaintiffs’ Response: JEP designated Amanda Carver as the JEP 30(B)(6) representative
with knowledge about safety. (IEP Designations and Objections to Plaintiffs’ Notice of 30(B)(6)
Videotape Deposition to JEP p. 8, 13). This is relevant to show the safety practices and training
of JEP.
4. Billy McClure (Best Rule 30(b)(6) Witness) — Exhibit D
a. Defendants’ Unresolved Objections to Plaintiffs’ Designations
Defendants’ Objection: Page 18, lines 18 through page 19, lines 1-3: inadmissible
opinion testimony regarding the appropriate operation of tractor-trailers from a lay witness. The
witness has not bien established or qualified as an expert. Plaintiffs listed him as a lay witness

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 7 of 16

only. He was not disclosed as an expert by Plaintiffs, nor have Plaintiffs provided any expert
disclosures required by FRCP 26. Further, he was not designated as an expert by Phillips or
Adams because their cross-designations of co-defendants’ experts were only intended to cross-
designate retained experts, not employees that Best listed in its designation to “testify in defense
of Best”. Orterriwle de’ Svstamad ,
Plaintiffs’ Response: Defendant Best listed Billy McClure as an expert witness, in their
original Rule 26 disclosure, who would testify in defense of Best and offer facts and opinions
substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure of Expert
Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts disclosed by
all co-Defendants and adopt their disclosures as if their own, incorporating them by reference in
this document.” (SEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2). Plaintiffs
also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit, by way of
direct examination or cross-examination, opinion testimony from any experts designated and/or
called by the Defendants.” [Doc. 318, p. 17].
Defendants’ Objection: Page 26, lines 3-10: inadmissible opinion testimony regarding the
appropriate condition of a tractor-trailer for operation on the road from a lay witness. The
witness has not been established or qualified as an expert. Plaintiffs listed him as a lay witness
only. He was not disclosed as an expert by Plaintiffs, nor have Plaintiffs provided any expert
disclosures required by FRCP 26. Further, he was not designated as an expert by Phillips or
Adams because their cross-designations of co-defendants’ experts were only intended to cross-
designate retained experts, not employees that Best listed in its designation to “testify in defense
ae Overavie dem on lines 3-5 5 sustumed ow
lrwes Ga- /o,

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 8 of 16

Plaintiffs’ Response: Defendant Best listed Billy McClure as an expert witness, in their
original Rule 26 disclosure, who would testify in defense of Best and offer facts and opinions
substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure of Expert
Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts disclosed by
all co-Defendants and adopt their disclosures as if their own, incorporating them by reference in
this document.” (JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2). Plaintiffs
also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit, by way of
direct examination or cross-examination, opinion testimony from any experts designated and/or
called by the Defendants.” [Doc. 318, p. 17].
5. Ralph McClure (Best Rule 30(b)(6) Witness) — Exhibit E
a. Defetidanits’ Unresolved Objecticis tc Plaintiffs’ Designations
Defendants’ Objection: Page 59, line 8 through page 60, lines 9: inadmissible opinion
testimony regarding the appropriate condition of a tractor-trailer for operation on the road from a
lay witness. The witness has not been established or qualified as an expert. Plaintiffs listed him
as a lay witness only. He was not disclosed as an expert by Plaintiffs, nor have Plaintiffs
provided any expert disclosures required by FRCP 26. Further, he was not designated as an
expert by Phillips or Adams because their cross-designations of co-defendants’ experts were only
intended to cross-designate iretained experts, not employees that Best listed in its designation to
“testify in defense of Best”. Oven vlad.
Plaintiffs’ Response: Mr. Ralph McClure is experienced in trailer repair, mechanics and
trailer fabrication/extension. Further, Defendant Best listed Ralph McClure as an expert witness,
in their original Rule 26 disclosure, who would testify in defense of Best and offer facts and
opinions substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 9 of 16

of Expert Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts
disclosed by all co-Defendants and adopt their disclosures as if their own, incorporating them by
reference in this document.” (JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p.
2). Plaintiffs also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit,
by way of direct examination or cross-examination, opinion testimony from any experts
designated and/or called by the Defendants.” [Doc. 318, p. 17].

Defendants’ Objection: Page 70, lines 9-20: inadmissible opinion testimony regarding the
appropriate condition of a tractor-trailer for operation on the road from a lay witness. The
witness has not been established or qualified as an expert. Plaintiffs listed him as a lay witness
only. He was not disclosed as an expert by Plaintiffs, nor have Plaintiffs provided any expert
disclosures required by FRCP 26, Further, he was not designated as an expert by Phillips or
Adams because their cross-designations of co-defendants’ experts were only intended to cross-
designate retained experts, not employees that Best listed in its designation to “testify in defense
f Best”. Susfouned ‘
Plaintiffs’ Response: Relevant to show Defendant Driver’s and Trucking Company,
JEP’s, failure to maintain and inspect the trailer pursuant to the requisite Federal Regulations.
Mr. Ralph McClure is experienced in trailer repair, mechanics and trailer fabrication/extension.
Further, Defendant Best listed Ralph McClure as an expert witness, in their original Rule 26
disclosure, who would testify in defense of Best and offer facts and opinions substantially similar
to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2).
Defendants JEP and Adams chose to “cross-designate the experts disclosed by all co-Defendants
and adopt their disclosures as if their own, incorporating them by reference in this document.”
(JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2). Plaintiffs also indicated in

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 10 of 16

their Pretrial Disclosure Sheet that they “reserve the right to elicit, by way of direct examination
or cross-examination, opinion testimony from any experts designated and/or called by the
Defendants.” [Doc. 318, p. 17].
Defendants’ Objection: Page 71, lines 10-24: inadmissible opinion testimony regarding
the absorption of the impact of a vehicle from a lay witness. The witness has not been established
or qualified as an expert. Plaintiffs listed him as a lay witness only. He was not disclosed as an
expert by Plaintiffs, nor have Plaintiffs provided any expert disclosures required by FRCP 26.
Further, he was not designated as an expert by Phillips or Adams because their cross-
designations of co-defendants’ experts were only intended to cross-designate retained experts,
not employees that Best listed in its designation to “testify in defense of Best”. SWstuned.
Plaintiffs’ Response: Mr. Ralph McClure is experienced in trailer repair, mechanics and
trailer fabrication/extension. Further, Defendant Best listed Ralph McClure as an expert witness,
in their original Rule 26 disclosure, who would testify in defense of Best and offer facts and
opinions substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure
of Expert Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts
disclosed by all co-Defendants and adopt their disclosures as if their own, incorporating them by
reference in this document.” (JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p.
2). Plaintiffs also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit,
by way of direct examination or cross-examination, opinion testimony from any experts
designated and/or called by the Defendants.” [Doc. 318, p. 17].
Defendants’ Objection: Page 72, lines 4-7: This is objectionable testimony because it
relates back to objectionable testimony at page 61, lines 1-19 that is from the witness regarding
other unreliated wrecked trailers that is irrelevant, speculative, lacks foundation, and constitutes

10 ‘

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 11 of 16

impermissible opinion testimony regarding the rear-end collisions from a lay witness and impact
upon rear impact guards from other, unrelated collisions. The witness has not been established or
qualified as an expert. Plaintiffs listed him as a lay witness only. He was not disclosed as an
expert by Plaintiffs, nor have Plaintiffs provided any expert disclosures required by FRCP 26.
Further, he was not designated as an expert by Phillips or Adams because their cross-
designations of co-defendants’ experts were only intended to cross-designate retained experts,
not employees that Best listed in its designation to “testify in defense of Best”. Su Shea □
Plaintiffs’ Response: Mr. Ralph McClure is experienced in trailer repair, mechanics and
trailer fabrication/extension. Further, Defendant Best listed Ralph McClure as an expert witness,
in their original Rule 26 disclosure, who would testify in defense of Best and offer facts and
opinions substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure
of Expert Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts
disclosed by all co-Defendants and adopt their disclosures as if their own, incorporating them by
reference in this document.” (JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p.
2). Plaintiffs also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit,
by way of direct examination or cross-examination, opinion testimony from any experts
designated and/or called by the Defendants.” [Doc. 318, p. 17].
Defendants’ Objecticn: Page 87, lines 1-22 and Page 87, line 24 through page 88, lines
1, 9-14: inadmissible opinion testimony regarding the appropriate condition of a tractor-trailer
for operation on the road from a lay witness. The witness has not been established or qualified as
an expert. Plaintiffs listed him as a lay witness only. He was not disclosed as an expert by
Plaintiffs, nor have Plaintiffs provided any expert disclosures required by FRCP 26. Further, he
was not designated as an expert by Phillips or Adams because their cross-designations of
Ovemvled ow Pp: 67, liwew | 1 Eton wig od “Het —
a2,
; ll
tomed Wy P 87, Ime a4 — p- 8B, live! d linea □□ □□

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 12 of 16

defendants’ experts were only intended to cross-designate retained experts, not employees that
Best listed in its designation to “testify in defense of Best”.
Plaintiffs’ Response: Mr. Ralph McClure is experienced in trailer repair, mechanics and
trailer fabrication/extension. Further, Defendant Best listed Ralph McClure as an expert witness,
in their original Rule 26 disclosure, who would testify in defense of Best and offer facts and
opinions substantially similar to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure
of Expert Witnesses p. 2). Defendants JEP and Adams chose to “cross-designate the experts
disclosed by all co-Defendants and adopt their disclosures as if their own, incorporating them by
reference in this document.” (JEP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p.
2). Plaintiffs also indicated in their Pretrial Disclosure Sheet that they “reserve the right to elicit,
by way of direct examination or cross-examination, opinion testimony from any experts
designated and/or called by the Defendants.” [Doc. 318, p. 17].
6. Billy Phillips (J.E. Phillips Rule 30(b)(6) Witness) — Exhibit F
a. Defendarts’ Unresolved Objecticis to Plaintiffs’ Designations
Defendants’ Objection: Page 9, line 16 through page 10, line 9: The amount of money
that JEP received as part of its contract with the U.S. Postal Service is irrelevant, especially
because punitive damages are no longer available, and this evidence will only by highly
prejudicial and mislead the jury. Sustuned.
Plaintiffs’ Response: Relevant to show Defendant Driver’s and Trucking Company,
JEP’s, failure to maintain and inspect the trailer pursuant to the requisite Federal Regulations.
Mr. Ralph McClure is experienced in trailer repair, mechanics and trailer fabrication/extension.
Further, Defendant Best listed Ralph McClure as an expert witness, in their original Rule 26

12

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 13 of 16

disclosure, who would testify in defense of Best and offer facts and opinions substantially similar
to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2).
7. Chris Taylor (J.E. Phillips Rule 30(b)(6) Witness) — Exhibit G
a. Plaintiffs’ Unresolved Objections to Defeidaiits’ Counter-Desigiiations
Plaintiffs’ Objection: Regarding whether it is acceptable to paint over trailer lights: (i)
Page 22, lines 19-21; and (ii} Page 24, line 23 through page 25, line 17: lack of knowledae, lack

Defendants’*Response: Testimony by one of JEP’s Rule 30(b)(6) witnesses and JEP’s
shop foreman on the company’s policy and whether it is acceptable to paint over reflectors is
directly relevant to one of Plaintiffs’ principal claims against JEP
b. Defetidaits’ Unresolved Objections to Plaintiffs’ Desigiiaticiis
Defendants’ Objection: Page 12, line 22 through page 13, line 12: As the shop foreman,
Mr. Taylor lacks knowledge about what a driver is supposed to do during a stop. Further, the
questions and testimony are ambiguous and vague because they are not clear whether they are in
reference to a truck stopped in traffic or a truck stopped due to an accident or mechanical issues. OV€A1 □□□□□
Plaintiffs’ Response: Defendant JEP listed Chris Taylor as an expert witness, in their
original Rule 26 disclosure, who would testify in defense of JEP and offer facts and opinions
substantially similar to those given in his deposition. [JEP’s Rule 26(a)(2) Disclosure of Expert
Witnesses p. 2). Relevant to custom, usage and habit. F.R.E 406. Further, Mr. Taylor is a
licensed CDL driver and uses his license to facilitate his work for JEP.
Defendants’ Objection: Page 23, lines 13-19: Mr. Taylor does not know why the lights
were painted over and speculates as to the reason. Further, the wiring issue has been excluded

oven led.

13

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 14 of 16

pursuant to a summary judgment granted to Best. It is undisputed that the lights were painted
over, and it is irrelevant why the lights were painted.
Plaintiffs’ Response: JEP designated Mr. Taylor as the person as the JEP 30(B)(6)
representative with knowledge about the repair and maintenance of the truck/trailer. (JEP
Designations and Objections to Plaintiffs’ Notice of 30(B)(6) Videotape Deposition to JEP p. 7).
8. Carl Woods (Rest Rule 30(b)(6) Witness) — Exhibit H
a. Defendants* Unresolved Objections to Plaintiffs’ Designations
Defendants’ Objection: Page 20, line 21 through page 21, line 2, and page 21, lines 9-16:
inadmissible opinion testimony regarding the appropriate condition of a tractor-trailer for
operation on the road from a lay witness. The witness has not been established or qualified as an
expert. Plaintiffs listed him as a lay witness only. He was not disclosed as an expert by Plaintiffs,
nor have Plaintiffs provided any expert disclosures required by FRCP 26. Further, he was not
designated as an expert by Phillips or Adams their cross-designations of co-defendants’ experts
were only intended to cross-dlesignate retained experts, not employees that Best listed in its
designation to “testify in defense of Best”. Sustumed
Piaintifis* Response: Relevant to show Defendant Driver’s and Trucking Company,
JEP’s, failure to maintain and inspect the trailer pursuant to the requisite Federal Regulations.
Mr. Carl Woods is experienced in trailer repair, mechanics and trailer fabrication/extension.
Further, Defendant Best listed Carl Woods as an expert witness, in their original Rule 26
disclosure, who would testify in defense of Best and offer facts and opinions substantially similar
to those given in his deposition. [Best’s Rule 26(a)(2) Disclosure of Expert Witnesses).
Defendants JEP and Adams chose to “cross-designate the experts disclosed by all co-Defendants
and adopt their disclosures as if their own, incorporating them by reference in this document.”

14

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 15 of 16

(EP and Adams’s Rule 26(a)(2) Disclosure of Expert Witnesses p. 2). Plaintiffs also indicated in
their Pretrial Disclosure Sheet that they “reserve the right to elicit, by way of direct examination
or cross-examination, opinion testimony from any experts designated and/or called by the
Defendants.” [Doc. 318, p. 17].
Respectfully submitted,
COUNSEL FOR PLAINTIFFS
/s/ Bruce D. Brooke __
Bruce D. Brooke (TN Bar #4521)
Fargarson & Brooke
254 Court Ave., Suite 300
Memphis, TN 38103
bbrooke@fandblaw.com
/s/ Robert S. Addison
Robert S. Addison (MS Bar #1152)
Daniel Coker Horton & Bell, P.A.
4400 Old Canton Road, Suite 400 (39211)
Post Office Box 1084
Jackson, MS 39215-1084
raddison@danielcoker.com
COUNSEL FOR J.E. PHILLIPS & SONS, INC.
AND RICHARD ADAMS
/s/ W. Timothy Hayes, Jr,
W. Timothy Hayes, Jr. (TW Bar #13821)
Taylor B. Davidson (TN Bar #30127)
Harris Shelton Hanover Walsh, PLLC
6060 Primacy Parkway, Suite 100
Memphis, TN 38119
Phone: (901) 525-1455
thayes@harrisshelton.com
tdavidson@karvisshelton.coiii

15

Case 3:16-cv-00127-DPM Document 333 Filed 05/08/19 Page 16 of 16

CERTIFICATE OF SERVICE
I hereby certify that on this the 8" day of May, 2019, I electronically filed the foregoing
with the clerk of the Court by using the CM/ECF system, which will send electronic notice to
counsel of record:
e Bruce D. Brooke
bbrooke@fandblaw.com
e¢ Dustin Lepkowicz
dipkwicz@fandblaw.com
e Robert S. Addison
raddison@danielcoker.com

s/ W. Timothy Hayes
COUNSEL FOR DEFENDANTS

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10035371. Public record. Not legal advice.