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Passmore v. Barrett

United States District Court, N.D. Indiana, Hammond Division

May 21, 2015

ROSIE PASSMORE, Individually and as Special Administrator of the Estate of WILLIE PASSMORE, Deceased, Plaintiff,
v.
JAMES R. BARRETT, JR., Individually and d/b/a LOS SUENOS, LANDSTAR CANADA, INC., and LANDSTAR RANGER, INC., Defendants.

OPINION AND ORDER

ANDREW P. RODOVICH, Magistrate Judge.

This matter is before the court on the Motion for Adverse Inference Based upon Spoliation of Evidence [DE 56], Motion to Bar Opinion Testimony from Donald Hess [DE 58], and the Motion to Bar Opinion Testimony from Stan Smith [DE 60] filed by the defendant, James R. Barrett Jr., on February 27, 2015. For the following reasons, the Motion for Adverse Inference Based upon Spoliation of Evidence [DE 56] is DENIED, the Motion to Bar Opinion Testimony from Donald Hess [DE 58] is DENIED, and the Motion to Bar Opinion Testimony from Stan Smith [DE 60] is DENIED.

Background

On July 29, 2013, the plaintiff, Rosie Passmore, filed a state court complaint against the defendants for the wrongful death of her husband, Willie Passmore. On August 23, 2013, the defendant, James R. Barrett Jr., removed this case to federal court. Passmore has alleged that Barrett negligently ran over and killed Willie Passmore while Willie Passmore was working at Boss Truck Shop in Gary, Indiana. On June 23, 2014, this court granted a motion to intervene filed by Creative Risk Solutions, as subrogee of Bosselman, Inc.

Bosselman was doing business as Boss Truck Shop and employed Willie Passmore. Bosselman retained surveillance video of Boss Truck Shop, which it kept on a thirty day loop. Therefore, it retained the video for thirty days before discarding the video. After Willie Passmore's death, Bosselman's representatives met with an OSHA investigator. The investigator indicated what portions of the video he needed Bosselman to preserve for his investigation. Bosselman preserved a portion of the surveillance video that showed Barrett walking to his truck from the shop lobby, Barrett pulling the truck out of the bay, and the truck running over Willie Passmore. However, Bosselman did not preserve video from the time Barrett arrived at the truck shop to the time he walked out of the lobby. Barrett has claimed that the missing video would have shown Willie Passmore telling Barrett to pull his truck out of the bay shortly before Barrett went into the shop lobby.

On January 26, 2015, Passmore disclosed an unsigned expert report of Donald Hess. On March 2, 2015, Passmore supplied Barrett with a signed copy of Hess' report. Hess' report offered the following opinions:

James Barrett, as a licensed commercial driver, failed to exercise ordinary care in the following ways:
1) Not doing a walk around his vehicle before pulling out of the bay;
2) Not closing his driver door to look through his mirror before pulling out of the bay;
3) Not honking his horn before pulling out of the bay;
4) Not monitoring his mirrors while pulling out of the bay.

Hess has held a commercial driver's license since 1971 that allowed him to drive single, double, and triple tractor trailers and hazardous materials. From 1994 to 2013, he was the Director of Transportation and Public Safety Programs for John Wood Community College in Quincy, Illinois. As the program's director, Hess designed, organized, and implemented the Truck Driver Training Program. Additionally, he taught students the driving skills necessary to obtain a commercial driver's license. Furthermore, Hess has consulted on over 100 cases as an expert witness in truck litigation since 1997.

Hess admitted that he did not use science, physics, or calculations to form his opinions in this case. Additionally, he stated that he did not take any photographs or measurements of the scene and was not certified in and had not performed an accident reconstruction. Furthermore, Hess could not conclude that the outcome would have been different had Barrett followed the procedures outlined in Hess' report.

On November 27, 2013, Passmore disclosed Stanley Smith, PhD. as an expert witness in response to Barrett's interrogatory number 25. Additionally, she disclosed a forty-four page report signed by Smith that calculated her financial loss of support from Willie Passmore's death. Smith's report calculated four categories of losses:

(1) the loss of wages and employee benefits;
(2) the loss of household/family services, including
a) the loss of housekeeping and household management services;
b) the loss of the advice, counsel, guidance, instruction and training services sustained by Mr. ...

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