IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2009
No. 09-60274 Charles R. Fulbruge III
Clerk
TIMOTHY R. JONES, JR.,
Plaintiff-Appellant
v.
NES EQUIPMENT SERVICES CORP., doing business as Nes Rentals,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:07cv427 HTW-LRA
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Timothy R. Jones, Jr. appeals from a jury’s verdict
rejecting his attempt to recover for injuries sustained when a truck driven by
Dennis McAdory, an employee of Defendant-Appellee NES Equipment Services
Corp. (“NES”), struck him as he was walking in a McDonald’s parking lot. We
affirm the jury’s verdict.
Jones attacks several of the district court’s evidentiary rulings, jury
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR . R. 47.5.4.
instructions, and jury verdict forms. The gravamen of these complaints is
Jones’s theory that the truck’s anti-lock braking system (“ABS”) had been
disabled three months before the accident (a disputed issue of fact at trial) and
that the unavailability of the ABS prevented McAdory from stopping the truck
before it struck Jones. McAdory’s contradicted testimony that the ABS had been
disconnected at the direction of his supervisors at NES was all that was
proffered by Jones in support of this allegation.
Jones contends that the district court erred when, pursuant to its gate-
keeping functions under Daubert,1 it barred testimony from Jones’s expert on
accident reconstruction regarding the effects of the allegedly-disconnected ABS.
Jones advances that a similar error infected the district court’s refusal to adopt
his proposed jury instructions and jury verdict forms articulating his ABS-
causation theory, which Jones claims was supported by McAdory’s trial
testimony that he would have been able to stop if the ABS had been functioning.
We are satisfied that the district court did not abuse its discretion in
making those rulings.2 First, the pre-trial Daubert report of Jones’s expert did
not mention or discuss the potential role of the ABS in the instant accident, as
it should have to comply with Fed. R. Civ. P. 26(a)(2)(B).3 Similarly, because
McAdory had not been “qualified” as an expert, as required under Daubert and
Fed. R. Evid. 701 and 702, his lengthy lay opinion testimony regarding the
technical operation and effects of the ABS, as compared to those of standard
brakes under particular circumstances, was not competent to support jury
1
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1983); Fed. R. Civ. P. 26.
2
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.
2007) (citations omitted).
3
The ABS issue had been the subject of pre-trial motions in
limine in which Jones had prevailed, and yet Jones nevertheless failed
to amend or supplement his expert’s report before trial.
instructions or interrogatories advancing Jones’s ABS-causation theory. Thus,
the district court did not err in excluding such testimony.4
Jones also contends that the district court erred in admitting the
testimony of NES’s medical and accident reconstruction experts and in refusing
to dismiss an allegedly biased juror for cause.5 We have reviewed these
assertions and find them to be without merit. Consequently, the district court’s
rulings with respect to the admissibility of the testimony of NES’s experts and
its handling of voir dire were not erroneous.
Furthermore, Jones’s litany of complaints regarding his inability to pursue
his theory of causation is unavailing in the light of the issue that in large part
controls the outcome of this case, viz., scope-of-employment. Even if McAdory
was using his employer’s truck at the time of the accident, the jury found that
he was doing so on a mission that was outside the scope of his employment.
Oddly enough, Jones never challenges the jury’s finding on this nearly
dispositive issue, viz., that McAdory was not acting as NES’s agent when the
truck he was driving caused Jones’s injuries.
For the foregoing reasons, the challenged rulings of the district court and
the verdict of the jury are AFFIRMED.
4
Because the ABS theory of causation also supported Jones’s
claim that NES was directly — in addition to vicariously — liable
because it failed to inspect or maintain the ABS brakes in the truck,
the district court also properly denied Jones’s jury instruction and
verdict form on the “failure to inspect” theory, again on valid
Daubert grounds.
5
We note that Jones could have used a peremptory challenge to
ensure that this juror was not seated, but Jones chose not to do so.