Did Your Expert Do His Homework?

Blindly relying upon an expert witness is a necessary risk sometimes, but it has dangers.  Consider this scenario I handled once.  A commercial vehicle is on private property.  As it maneuvered, it and a moped make contact.  The facts are simply a he said/she said scenario.  The moped operator sues Trucker and hires Expert to blame Trucker.  Expert gave the same opinions he’s given literally hundreds of times before, except they didn’t work in this case for reasons I doubt he ever considered.

The trucker could not be negligent per se.

The first opinion was that Trucker was negligent per se for failing to follow various traffic laws that Expert said applied.  The complaint alleged Trucker breached NRS 484B.413.  Expert’s first report cited two federal regulations.  The first was 49 C.F.R. § 392.1.  “Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.”[1]  He also cited 49 C.F.R. § 392.2.  “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”  However, Expert did not cite a regulation creating a specific duty that Trucker breached.

Expert’s second report cited specific statutes for the first time.  He listed 484B.015, which defines the term “alley,” and NRS 484A.105, which defines the term “intersection.”  The report also cited Clark County Code §§ 12.04.010, defining the term “alley,” and 14.32.120, discussing vehicles emerging from an alley.  But at deposition he agreed it occurred on private property.

None of these statutes, code sections, or regulations applied.  As to the CFR, they are generic regulations that do not impose any specific duty.  Instead, later regulations define specific duties owed in specific circumstances.  Expert had offered these generic opinions before, but they were rejected.  M.T. v. Saum discussed cases where specific regulations had been violated but noted “[c]onversely, Plaintiffs’ transportation expert here cites only generally-worded regulations from which no specific duties arise.”[2]

As to the citations in the second report,[3] they don’t apply to private property.  NRS 484A.400(1) defines the general applicability of the sections cited.  “The provisions of chapters 484A to 484E, inclusive, of NRS are applicable and uniform throughout this State on all highways to which the public has a right of access or to which persons have access as invitees or licensees.”  A highway is “the entire width between the boundary lines of every way dedicated to a public authority when any part of the way is open to the use of the public for purposes of vehicular traffic, whether or not the public authority is maintaining the way.”[4]  This contrasts with NRS 484A.190 which defines a private way or driveway separately as “every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.”

Everyone agreed the accident at issue happened on private property.  That property has not been dedicated to a public authority.  As a result, the accident did not occur on a highway as NRS 484A.400(1) requires and NRS 484A-E did not apply, so expert’s citations were pointless.

The same analysis applied to the Clark County Code sections.  “The provisions of this title relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways in Clark County, except where a different place is specifically referred to in a given section.”[5]  A highway is “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel, located within the unincorporated area of Clark County.”[6]  This contrasts with the definition of private roads or driveways, which are “every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.”[7]

Like the Nevada Revised Statutes, the Clark County Code sections Expert cited apply only to vehicles on highways.  This accident occurred on private property, not a highway as the Code defines, so these code sections did not apply either.

The expert also applied the wrong standard of care.

Expert could also have offered opinions based upon the standard of care he believed applied to Trucker.  We discussed that in his deposition.

23 Q. Okay. I flipped to page 5. I’m on the
24 fourth paragraph, first sentence. It says, “Defendant
25 [Trucker] should have been trained to be extra cautious
1 and to take his time in parking lots, considering the
2 hazards they present.”
3 My question is: Are you holding [Trucker],
4 as a commercial driver, to a higher standard than
5 [Plaintiff] on his scooter?
6 A. Absolutely.
7 Q. Why is that?
8 A. Because he’s driving an 18-wheeler. He
9 was pulling a 53-foot trailer, so the length of his
10 tractor-trailer is going to be somewhere around 65 to
11 70 feet, somewhere in that neighborhood, sir. All
12 right. It’s 8 1/2 feet wide. It’s bigger. It’s
13 larger. It takes up more space. You have to have a
14 lot of specialized training to even be able to drive
15 one of these. So he’s definitely to a higher standard.

He offered further comments later.

10 Earlier, we were talking about Mr. [Trucker].
11 You hold Mr. [Trucker] to a higher standard of care
12 because he’s driving a commercial vehicle.
13 If you applied the same standard of care
14 that you apply to Mr. [Plaintiff], but applied it to
15 Mr. [Trucker], would that make a difference in any of your
16 opinions?
17 A. Sir, why would you? Because he doesn’t
18 have to have the type of training that Mr. [Trucker]
19 does to drive that moped. Anybody with a standard
20 driver’s license can drive a moped.
21 Example, if you’re driving a big
22 motorcycle, you have to be trained in it to be able to
23 pass — to get a motorcycle license. You don’t need
24 that with a moped.
25 But what it takes to become a truck driver
1 is so much more. There’s so much more training,
2 because you got not only to be able to drive that thing
3 straight, you got to be able to back it safely. You
4 got to learn how to use your mirrors.
5 There’s no comparison between the two, or
6 anybody just driving a regular car compared to driving
7 an 18-wheeler. So in most states, it is in their law
8 that truck drivers are held to a higher standing, just
9 because of the type of equipment they’re driving.
10 Q. Are you aware of any Nevada law on that
11 point?
12 A. I can’t answer that question, sir.

I asked that last question because I knew of some.  The Supreme Court of Nevada ruled long ago that “all licensed drivers tested and approved for vehicular operation by the Nevada Department of Motor Vehicles are bound to comport with the same standards of conduct.”[8]  In other words, Trucker was held to the same standard of care as Moped, not some higher standard of care like Expert thought. This made Expert’s opinions fundamentally unreliable.

What happened?

The case resolved while motions in limine were being drafted.  I was reasonably confident though that Expert would not be testifying at trial.

[1] 49 C.F.R. §§ 392.1(a).
[2] 3 F. Supp. 3d 617, 632 (W.D. Ky. 2014).
[3] There was an argument to exclude the second report as an improper supplement.  Such improper reports have been discussed in prior posts, so I skip that discussion here.
[4] NRS 484A.095.
[5] CCC 14.08.010.
[6] CCC 14.04.120.
[7] CCC 14.04.330.
[8] Horton v. Fritz, 113 Nev. 824, 829, 942 P.2d 134, 137-38 (1997).