Alvin Walker v. Ergon Trucking, Inc., et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14743
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-00594-ACA
ALVIN WALKER,
Plaintiff-Appellant,
versus
ERGON TRUCKING, INC.,
RICHARD MCGINNIS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 18, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
Alvin Walker appeals the district court’s decision to exclude his expert’s
opinion as well as its grant of summary judgment to Richard McGinnis and Ergon
Trucking, Inc. After careful consideration, we affirm both rulings.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 1 of 13

-- 1 of 13 --

2
I. BACKGROUND
This case arises out of a motor vehicle accident between Walker’s car and a
commercial tractor-trailer truck driven by McGinnis. The accident occurred on the
evening of February 13, 2017, at the intersection of U.S. Highway 280 and Coosa
Street in Sylacauga, Alabama. Right before the accident, McGinnis was driving in
the right-hand lane on Highway 280 towards Coosa Street. He was driving right
around 59 miles per hour, just over the posted speed limit of 55 miles per hour.
McGinnis had a green traffic light as well as the right of way at the intersection.
The parties dispute whether McGinnis looked around and saw any potential hazard
as he approached the intersection.
As McGinnis drove through the intersection, Walker turned right off of
Coosa Street to merge onto Highway 280. Highway 280 has a designated lane for
merging onto the highway from Coosa Street. However, instead of using the
designated lane, Walker immediately entered McGinnis’s lane, and the two
vehicles collided less than a second later. Walker did not use his turn signal or
otherwise indicate he might enter McGinnis’s lane. Walker looked “straight
ahead” and did not look for approaching traffic on Highway 280, even though he
knew he was required to yield to the right of way. McGinnis’s dash cam recorded
the accident.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 2 of 13

-- 2 of 13 --

3
In March 2018, Walker and his wife Bobbie Jo1 sued McGinnis and his
employer, Ergon Trucking (collectively “Defendants”), in Alabama state court.
Defendants removed the case to federal court based on diversity jurisdiction. In
the operative complaint, Walker brought claims of negligence, subsequent
negligence, and wantonness against McGinnis and sought to hold Ergon Trucking
vicariously liable for McGinnis’s conduct. Walker alleged McGinnis failed to
keep a proper lookout, maintained an unreasonable and imprudent speed, failed to
warn Walker with his horn, did not keep his truck under control, and failed to
brake or change lanes. Walker also alleged McGinnis’s conduct caused various
injuries and sought damages for medical expenses and emotional distress, among
other things.
During discovery, Walker disclosed safety consultant Whitney Morgan as an
expert witness. Defendants ultimately moved to exclude Morgan’s opinion under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786
(1993). The district court granted Defendants’ motion, finding Morgan’s opinion
inadmissible under Daubert for three reasons. First, the court found Morgan was
not “qualified to offer an opinion on the proper operation of a tractor-trailer,” the
issue on which he was to testify. Second, the court found that the methodology
1 Bobbie Jo did not appeal the district court’s decisions, so we address only Walker’s
claims here.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 3 of 13

-- 3 of 13 --

4
Morgan used to reach his opinion, which included relying on a commercial driver’s
license manual, was not reliable because there was no indication other experts in
the field would also use that methodology. Finally, the court found Morgan’s
opinion did “not offer any insights beyond the understanding of the average lay
person and would not be helpful to the factfinder.” Separately, the court stated,
even assuming Morgan’s opinion was admissible under Daubert, it was
inadmissible under Federal Rule of Evidence 403 because the opinion’s risk of
confusion or misleading the jury substantially outweighed its probative value.
Specifically, the court noted Alabama law says a driver may presume others will
obey traffic laws and, contrary to that rule, Morgan’s opinion created the
impression that McGinnis had an affirmative duty to anticipate Walker’s failure to
use the designated lane for merging.
In addition to their challenge to Walker’s expert, Defendants also moved for
summary judgment on all claims. The district court granted that motion as well.
For Walker’s negligence claim, the district court found McGinnis did not breach
any duty. Alternatively, the court found that even if McGinnis had breached a
duty, Walker’s own negligence contributed to his injuries, which is a complete
defense to negligence under Alabama law. And while noting that subsequent
negligence by a defendant allows a negligent plaintiff to avoid a contributory
negligence defense, the court found that rule did not apply here because the
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 4 of 13

-- 4 of 13 --

5
accident occurred “within the same second” that it became apparent Walker was
entering McGinnis’s lane. Finally, the court found Walker’s wantonness claim
failed because there was no evidence McGinnis acted with the requisite
consciousness.
Walker thereafter appealed the district court’s decisions excluding Morgan’s
expert opinion and granting summary judgment to Defendants.
II. STANDARDS OF REVIEW
We review evidentiary rulings, including Daubert rulings, for abuse of
discretion. United States v. Pon, 963 F.3d 1207, 1219 (11th Cir. 2020). We
review de novo a district court’s decision granting summary judgment, viewing the
evidence in the light most favorable to the nonmoving party. Belcher Pharms.,
LLC v. Hospira, Inc., 1 F.4th 1374, 1379 (11th Cir. 2021). Summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
We start with the district court’s decision to exclude Morgan’s expert
opinion. We then turn to the district court’s decision to grant summary judgment
in favor of Defendants.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 5 of 13

-- 5 of 13 --

6
A. Evidentiary Ruling
Walker argues the district court abused its discretion in excluding Morgan’s
expert opinion under Daubert. According to Walker, Daubert does not apply to
non-scientific experts like Morgan. He also argues Morgan was qualified, relied
on various pieces of information for his opinion, and provided an opinion helpful
to the trier of fact.
As an initial matter, we need not decide whether the district court abused its
discretion in excluding Morgan’s expert opinion under Daubert because Walker
does not challenge the district court’s other independent ground for excluding the
opinion. Namely, after addressing Daubert, the district court found, even if
Morgan’s opinion was admissible under Daubert, it would still be properly
excluded under Rule 403. Walker’s failure to challenge this independent ground
on appeal means he has “abandoned any challenge of that ground, and it follows
that the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014).
But even if we were to reach the question of whether the district court
abused its discretion in excluding Morgan’s expert opinion under Daubert, we
would affirm on that basis as well. Contrary to Walker’s assertion, it is well
established that Daubert applies to non-scientific experts. Kumho Tire Co. v.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 6 of 13

-- 6 of 13 --

7
Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171 (1999). And under Daubert,
this Court applies a “rigorous three-part inquiry” that considers whether:
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusions is sufficiently
reliable as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010)
(quotation marks omitted). The party putting forward the expert testimony “bears
the burden of showing, by a preponderance of the evidence, that the testimony
satisfies each prong.” Id.
Walker has not carried his burden. Assuming Morgan was qualified and his
opinion was helpful to the trier of fact, Walker has not shown Morgan’s
methodology was reliable in this case. When considering the reliability of an
expert’s methodology, we look to several factors, including: “(1) whether the
methodology can be and has been tested, (2) whether the theory or technique has
been subjected to peer review, (3) the known or potential rate of error of the
methodology employed, and (4) whether the methodology is generally accepted.”
Hughes v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014).
In his expert report, Morgan repeatedly quoted various instructions from the
commercial driver’s license manual and then discussed whether McGinnis
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 7 of 13

-- 7 of 13 --

8
followed each instruction based on deposition testimony from McGinnis and Ergon
Trucking’s director of safety and compliance. Based on this analysis, Morgan
opined that “McGinnis’[s] actions and/or inactions, as well as his lack of
knowledge and skill in the safe operation of [commercial motor vehicles],
demonstrated a conscious disregard for the safety of other motorists.” Morgan
never addressed, and Walker does not discuss on appeal, whether Morgan’s
methodology was tested, whether it was subject to peer review, whether it was
generally accepted, or how it was otherwise reliable. See id. (listing the relevant
factors for considering the reliability of a methodology). On this record, Walker
has not shown Morgan’s methodology was reliable under Daubert, and thus the
district court did not abuse its discretion in excluding the expert opinion.
B. Summary Judgment Ruling
Walker next argues the district court erred in granting summary judgment in
favor of McGinnis on his claims of negligence, subsequent negligence, and
wantonness.2 We address each claim in turn.
1. Negligence Claim
Under Alabama law, a negligence claim “requires the establishment of a
duty and a breach thereof that proximately caused damage to the plaintiff.” S.
2 Walker does not raise his vicarious liability claims against Ergon Trucking in his
appeal. This means he has abandoned these claims and we cannot consider them. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 8 of 13

-- 8 of 13 --

9
Coast Props., Inc. v. Schuster, 583 So. 2d 215, 217 (Ala. 1991). Relevant here, a
driver has a duty to “keep a reasonable lookout for danger or obstructions while
driving along the public road.” Holley v. Josey, 82 So. 2d 328, 332 (Ala. 1955).
Even so, a driver “approaching an intersection may presume that others will obey
the traffic laws,” and there is no duty to “keep a special lookout for other vehicles
when a driver is observing the rules relating to traffic signals.” Pearson v.
Fountain, 189 So. 2d 551, 553 (Ala. 1966). Beyond that, in certain circumstances
a violation of a statute or an ordinance can amount to negligence per se. See
Parker Bldg. Servs. Co. v. Lightsey ex rel. Lightsey, 925 So. 2d 927, 930–31 (Ala.
2005).
Even if the plaintiff establishes a negligence claim, the defendant has a
“complete defense” to that claim if he can show the plaintiff was contributorily
negligent. Serio v. Merrell, Inc., 941 So. 2d 960, 964 (Ala. 2006). A contributory
negligence defense requires the defendant to show the plaintiff: (1) knew of the
dangerous condition, (2) appreciated the danger under the surrounding
circumstances, and (3) failed to exercise reasonable care by placing himself in the
way of danger. Id. However, “[d]irect evidence of such an appreciation of danger
is not required if the evidence admits of no conclusion except that the plaintiff
must have appreciated the hazard involved.” Id. at 965. In such a situation, it is
“enough if the plaintiff understood, or should have understood, the danger posed.”
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 9 of 13

-- 9 of 13 --

10
Id. In Serio, the Alabama Supreme Court affirmed summary judgment for the
defendant because the plaintiff was contributorily negligent by merging onto a
public highway in the path of an oncoming truck with the right of way that she
would have seen had she looked for oncoming traffic before or as she merged. Id.
at 965–66. The Alabama Supreme Court deemed it “self-evident” that the plaintiff
should have “consciously appreciated that danger.” Id. at 965.
Walker argues McGinnis was negligent by speeding in violation of the
posted speed limit and by failing to maintain a proper lookout, slow down, warn of
his presence, and change lanes. But even assuming McGinnis was negligent, the
record shows Walker was contributorily negligent because he merged right into
McGinnis’s truck. Several undisputed facts bear this out. While merging onto
Highway 280, Walker immediately entered McGinnis’s lane, even though there
was a designated lane for safely merging onto the highway. Walker did not use his
turn signal or otherwise indicate he might enter McGinnis’s lane. Walker looked
“straight ahead” and did not look for approaching traffic, even though he knew he
was required to yield to the right of way. As in Serio, it is “self-evident” Walker
consciously appreciated the danger of his conduct and failed to exercise reasonable
care by placing himself in the way of danger. See Serio, 941 So. 2d at 965–66.
And because Walker was contributorily negligent, McGinnis had a “complete
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 10 of 13

-- 10 of 13 --

11
defense” to Walker’s negligence claim. See id. at 964. The district court therefore
correctly found McGinnis was entitled to summary judgment on this claim.
2. Subsequent-Negligence Claim
To show subsequent negligence, the plaintiff must demonstrate: (1) the
plaintiff was in a perilous position, (2) the defendant had knowledge of the
plaintiff’s peril, (3) the defendant, armed with such knowledge, failed to use
reasonable and ordinary care in avoiding the accident, (4) the use of reasonable and
ordinary care would have avoided the accident, and (5) the plaintiff was injured as
a result. Zaharavich v. Clingerman ex rel. Clingerman, 529 So. 2d 978, 979 (Ala.
1988). Contributory negligence is not a defense to a claim of subsequent
negligence. Id. However, a claim of subsequent negligence is unavailable where
the plaintiff’s peril and the accident are “virtually instantaneous.” Baker v.
Grantham, 585 So. 2d 896, 897 (Ala. 1991).
Walker argues McGinnis was subsequently negligent because he “fail[ed] to
take appropriate steps to recognize the peril and avoid the collision.” However,
Walker’s peril and the accident were “virtually instantaneous,” so a claim of
subsequent negligence is not available to Walker. See id. Specifically, Walker
was not in peril until he entered McGinnis’s lane, and it is undisputed the two
vehicles collided less than a second later. McGinnis thus could not have been
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 11 of 13

-- 11 of 13 --

12
subsequently negligent during that brief instant of time. The district court
therefore correctly granted summary judgment to McGinnis on this claim.
3. Wantonness Claim
Wantonness is “the conscious doing of some act or the omission of some
duty while knowing of the existing conditions and being conscious that, from
doing or omitting to do an act, injury will likely or probably result.” Ex parte
Essary, 992 So. 2d 5, 9 (Ala. 2007). While speeding alone does not amount to
wantonness, speeding together with other circumstances may. Hicks v. Dunn, 819
So. 2d 22, 24 (Ala. 2001). Under Alabama law, there is a rebuttable presumption
that, unless his judgment is impaired, a driver does not act wantonly in causing a
car accident. See Thomas v. Heard, 256 So. 3d 644, 657–58 (Ala. 2017) (per
curiam). That is because humans “act in their own self-interest,” and thus the
driver has “no consciousness that an injury would likely occur from his actions
because presumably he would not engage in activity that would knowingly result
in harm to himself.” Id. at 658.3
Walker argues McGinnis acted wantonly by speeding and by failing to see
Walker, slow down, stop the truck, and warn of his presence. The record does
show McGinnis was (barely) speeding, but even assuming he was consciously
3 Unlike a negligence claim, “[c]ontributory negligence is not a defense to a claim based
on wantonness.” Gulf States Steel, Inc. v. Whisenant, 703 So. 2d 899, 907 (Ala. 1997).
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 12 of 13

-- 12 of 13 --

13
speeding (which is not clear), speeding alone is not enough to show wantonness.
Hicks, 819 So. 2d at 24. And while Walker argues McGinnis also failed to see him
and react accordingly, there is no record evidence McGinnis did so consciously, let
alone McGinnis was conscious that injury would likely result from those
omissions. See Essary, 992 So. 2d at 9. As such, Walker has not shown McGinnis
acted wantonly leading up to the accident. The district court therefore correctly
found McGinnis was entitled to summary judgment on Walker’s wantonness
claim.
IV. CONCLUSION
The district court did not abuse its discretion in excluding Morgan’s expert
opinion and correctly granted summary judgment in favor of McGinnis on all of
Walker’s claims.
AFFIRMED.
USCA11 Case: 20-14743 Date Filed: 08/18/2021 Page: 13 of 13

-- 13 of 13 --