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FILED
10/17/2023 4:11 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO: DC-21-09623
COURTNEY DEAN GARCIA, § IN THE DISTRICT COURT
ALFRED B. CISCO, II. and RYAN J. §
CISCO, as Wrongful Death
Beneficiaries and Heirs of JOY H.
CISCO, Deceased, KEITH JENKINS,
FRANCES JENKINS, MEGAN
JENKINS and JOSEPH FOLEY
Plaintiffs,
Vv. DALLAS COUNTY, TEXAS
XPO LOGISTICS FREIGHT, INC. and
FEDEX GROUND PACKAGE
SYSTEM, INC., MARCOS
GONZALEZ and DAVID MATA
Defendants. 192ND JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE
THE OPINION TESTIMONY OF MICHAEL CONNELLY
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES XPO LOGISTICS FREIGHT, INC. (“XPO”), MARTIR
SALVADOR GONZALEZ and MARIA ZOILA GOMEZ AS HEIRS OF THE
ESTATE OF MARCOS GONZALEZ (DECEASED) the Defendants in the above styled
and numbered cause, and files their Response to Plaintiffs’ Motion to Exclude the Opinion
Testimony of Michael Connelly and as grounds would respectfully show as follows:
I INTRODUCTION
Michael Connelly has over thirty years of experience working in the transportation
industry, particularly in the area of safety and risk management. Indeed, Plaintiffs concede,
as they must, that Connelly is qualified to offer opinions regarding XPO’s compliance with
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page |
trucking regulations and industry standards. Despite that concession, they complain that
Connelly’s opinions should not be admitted because they amount to the mere ipse dixit of
a credentialed witness. However, when the actual deposition testimony and report of
Connelly are reviewed, it is clear that he has provided a sufficient basis for each of his
opinions. Connelly has connected his opinions to the facts of the case, based on his years
of experience with customs and standards in the transportation industry. Plaintiffs’ motion
amounts to nothing more than Plaintiffs’ ipse dixit that Connelly’s opinions are unreliable
without any evidence to support that conclusion. The motion should be denied.
Il. EXHIBITS
Defendants relies upon and incorporate the following exhibits attached to Plaintiff's
Motion in support of this response:
Exhibit A: Transcript of June 14, 2023 Deposition of Michael S. Connelly
Exhibit B: February 27, 2023 Report of Michael S. Connelly
Til. ARGUMENT AND AUTHORITIES
The standards that trial courts must apply in determining whether to admit expert
witness testimony have been clearly defined. Rule 702 of the Texas Rules of Evidence
permits a witness who is “qualified as an expert by knowledge, skill, experience, training,
or education” to testify on scientific, technical or other specialized subjects if the testimony
“will assist the trier of fact to understand the evidence or to determine a fact in issue.” TEX.
R. Evib. 702. Whether the testimony is admissible is a preliminary question to be decided
by the trial court. TEX. R. Evip. 104(a); Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 718 (Tex. 1998). Before an expert’s opinion is admissible, it must be shown
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 2
to be relevant and reliable, as well as pass specific factors such as proof of testing of the
expert’s opinion, peer review of the opinion or bases for it, acceptability, and others. E./.
du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). “When
measuring the reliability of an expert’s opinion in non-scientific cases, such as the one here,
[courts] consider the following: (1) whether the field of expertise is a legitimate one; (2)
whether the subject matter of the expert’s testimony is within the scope of that field; and
(3) whether the expert’s testimony properly relies upon the principles involved in that
field.” In Interest of J.R., 501 S.W.3d 738, 748 (Tex. App.—Waco 2016, no pet.). “An
expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain
the basis of his statements to link his conclusions to the facts.” Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460-61 (Tex. 2017).
Here, Connelly linked all of his opinions and conclusions to the facts of the case
and based those conclusions on the relevant facts and his thirty years of experience in the
transportation industry. That goes far beyond being mere ipse dixit of an expert.
A Connelly’s opinion that XPO met the standard of care for Gonzalez pulling
double trailers and hazardous material is reliable and relevant.
In his report, Connelly disagreed with the opinion of Plaintiffs’ expert John Ross
that it was not prudent to allow Mr. Gonzalez as a newly trained driver to pull a double
trailer or hazardous materials. Ex. B., p. 4-5. When asked about this opinion in his
deposition, Connelly specifically testified that he was not aware of “any industry standards
that would prohibit a new entry driver who’s properly licensed and endorsed from pulling
doubles.” Ex. A, 51:18-23. He was not specifically asked in his deposition what the
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 3
standard was that applied to whether a newly trained driver like Mr. Gonzalez could pull
double trailers or transport hazardous materials. However, from his report, it is clear that
Connelly’s opinion is that—under the applicable federal regulations—a person who has
completed the training and demonstrated the skills necessary to obtain a CDL license with
the proper endorsements is permitted to pull double trailers and transport hazardous
materials. Specifically, Connelly opined that there is “no standard within the Commercial
Motor Carrier Transportation Industry that obligates a motor carrier to deny a licensed
commercial driver with the proper endorsement his/her right to operate a CMV within the
scope of his/her endorsements.” Ex. B, p. 4-5. Throughout the section of his report
discussing this issue, Connelly continually points back to the federal regulations as setting
the standard for when a new driver is permitted to pull a double trailer or transport
hazardous material.
The deposition testimony that Plaintiffs cite for the rather sensational statement that
Connelly could not identify relevant industry standards or best practices is taken out of
context and unsurprisingly does not support Plaintiffs’ argument that Connelly’s opinions
about whether XPO violated a standard of care pertinent to double trailers and hazardous
materials are unreliable. To give context, Connelly was being questioned about whether,
when he has previously presented a fleet safety plan to a motor carrier, he simply provides
the federal minimum standards or if he also recommends industry best practices above
those minimum standards. Ex. A, 66:6-67:3. Connelly testified that he provides the
minimum federal regulations and also provides information about what some companies
do in excess of the requirements. Ex. A, 67:4-69:1. Specifically, in the context of the three-
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 4
year background check, Connelly testified that he would advise a motor carrier of the
federal requirements for the background check and also advise the carrier that there are
some companies who voluntarily choose to investigate beyond what those regulations
require, allowing the motor carrier to decide which direction to go. Ex. A, 69:6-21. Despite
this clear answer, Plaintiffs’ counsel continued to press:
Q I specifically want to know what comes out of your mouth. Not
ultimately what the company decides to do, but what you are
suggesting that that industry standard or practice is.
I’m sorry. I know of no other way to answer your question than the
way that I’ve answered it twice or three times already. I’m sorry.
Then I’ll rephrase the question. Mr. Connelly, when you are speaking
to the companies that you are advising, have you ever told them it
would be a best practice to research beyond the three years that an
employee is — or the Federal Motor Carriers Regulations require, so
that you can tell whether that person is trying to apply for your job as
an 18-wheeler driver — commercial driver has safety violations
beyond or later in the three years.
Again, as I’ve already testified, I tell those companies from my mouth
that industry requirements are to perform the requisite background
checks within the three-year period. And that there are companies
who as a matter of best practices will go beyond the scope of those
requirements. And then the company chooses to do what it chooses
to do.
And actually, in probably the past 20 years, I would tell a company
that there’s no need to exceed the three years to which you keep
referencing because other companies — if you’re investigating
previous employment — tend to not be responsive to anything outside
that three-year window because they have no obligation to respond.
Ex. A, 69:22-71:7. The underlined testimony is the testimony Plaintiffs rely on to support
their entire argument that Connelly’s opinion about allowing a new driver to pull doubles
or hazardous material is inadmissible. When examined in context, nothing about that
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 5
testimony supports the idea that Connelly is somehow unaware of the standard that would
apply to the question of whether XPO properly permitted a new driver like Mr. Gonzalez
to pull a double trailer or hazardous waste.
B Connelly’s opinion that XPO exceeded the standard of care for training is
reliable and relevant.
In his report, Connelly clearly identified the Federal Motor Carrier Safety
Regulations as setting the bar for the standard of care for training new drivers. Ex. B, p. 6.
Citing to 49 C.F.R. § 380.503, Connelly specifically noted that because Mr. Gonzalez was
an entry level driver, the federal regulations required training on driver qualification
requirements, drivers’ hours of service, driver wellness, and whistleblower protection. Ex.
B, p. 7. Connelly confirmed that the required training was provided. Ex B, p. 7.
Additionally, in order to obtain a CDL, a new driver like Gonzalez would need to
complete the training necessary to allow him to demonstrate the necessary knowledge and
skills to pass an examination for his CDL. A motor carrier like XPO is not required to
provide that training to drivers; a driver can also obtain it through a variety of other sources.
Ex. A, 55:1-16. Despite not being required to provide this training, XPO provided—and
Mr. Gonzalez completed—a 12-week training program that included both classroom and
in-vehicle training. Ex. A 53:7-22. The required CDL training was at least part of the
training provided by XPO. Ex. B. 57:17-58:1. In his report, Connelly notes that following
the training, which specifically included advanced defensive driver training and training
utilizing double trailers, Mr. Gonzalez was able to pass the necessary testing to obtain his
CDL and while pulling a double trailer, passed an XPO administered road test. Ex. B, p.7.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 6
Connelly’s opinions are not just ipse dixit. He clearly shows the basis of his opinions
and links them to the facts about the training that was documented and provided to Mr.
Gonzalez. Plaintiffs’ complaint is that Connelly fails to point to a specific industry
standard, but Connelly testified that no standard applies which would require training
beyond the new driver training that was provided by XPO. Plaintiffs’ motion to exclude
this opinion should be denied.
Cc Connelly’s opinion that XPO ensured Mr. Gonzalez could safely operate the
subject CMV is reliable and relevant.
Connelly clearly explained the basis for this opinion in his report. Connelly noted
that in order for a driver to be granted a Class A CDL, he must pass the Vehicle Inspection
test, the Knowledge test and the Skills test administered to all CDL applicants. Connelly
notes that The Federal Motor Carrier Safety Administration states: “Driving a Commercial
Motor Vehicle(CMV) requires a higher level of knowledge, experience, skills, and physical
abilities than that required to drive a non-commercial vehicle. In order to obtain a
Commercial Driver’s License (CDL), an applicant must pass both skills and knowledge
testing geared to these higher standards.” Ex. B, p. 8. Based on that statement, and the fact
that Mr. Gonzalez obtained his Class A CDL, Connelly opined that XPO could be confident
Mr. Gonzalez possessed both the knowledge and skill necessary to safely operate its
commercial motor vehicle. Ex. B, p.8. Connelly further opined that XPO, by ensuring that
Mr. Gonzalez was sufficiently well-trained to pass all requisite skill and knowledge testing
to successfully obtain his CDL and corresponding endorsements, could be certain that Mr.
Gonzalez was capable of safely operating the commercial motor vehicle. Additionally,
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 7
XPO conducted the road test for Mr. Gonzalez as part of its training and ensured that Mr.
Gonzalez’s driving skills passed the requirements for a Class A CDL. Ex. A, 73:12-17.
In the section of their motion pertaining to this opinion, Plaintiffs again cite
deposition testimony that has nothing to do with the opinion actually offered. Plaintiffs
claim that when asked if there was an industry standard relating to ensuring a driver can
safely operate a commercial vehicle, Connelly responded “to a degree, yes.” Motion, p. 5.
The actual testimony is as follows:
Q Mr. Connelly, is the — is there an industry standard that dictates that
the commercial driver be familiar with their vehicle — the vehicle
they’re operating—enough to know and understand the length — the
total length that their tractor and trailers, potentially, consist of? What
their measurements are?
A To a degree, yes.
Ex. A, 78:20-78:3. That testimony has nothing to do with the pertinent issue and does not
support Plaintiffs’ argument.
Connelly’s opinions about XPO ensuring that Mr. Gonzalez could safely operate a
CMV are reliable and relevant. Connelly has clearly explained the basis and rationale for
his opinion and supported it with information from the FMSCA based on his over thirty
years of experience in the transportation industry. This is not just the ipse dixit of an expert.
Plaintiffs’ motion to exclude should be denied.
D. Connelly’s opinion that there was no causal relationship between the accident
and the alleged errors is reliable and relevant.
Plaintiffs list this opinion as one that is being challenged, but fail to provide any
discussion or argument to support the contention that this opinion was merely ipse dixit.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 8
Again, the Court is left with only Plaintiffs’ ipse dixit that the opinion is not reliable or
relevant.
In his expert report, Connelly specifically (and in detail) challenged the causation
opinions provided by John Ross, Plaintiffs’ retained expert, and Roger Allen, an expert
retained by settling plaintiffs. Without any discussion of this challenged opinion, XPO is
left to assume that Plaintiffs’ intention was only to challenge the opinion being offered
regarding its own expert John Ross, particularly where Plaintiffs did not list Mr. Allen as
a witness and did not designate any portions of his deposition for use at trial. Accordingly,
this discussion is limited to the opinion Connelly offered regarding the lack of causation
between the alleged error found by Mr. Ross (allowing a new driver to pull a double trailer
with hazardous cargo) and the accident.
Connelly explained that XPO met the standard of care in allowing Mr. Gonzalez to
pull a double trailer, containing hazardous materials because he had a CDL with the
appropriate endorsements that allowed him to do so. Ex. B., p. 4-6, 9. Connelly then
explained that nothing about the hazardous or non-hazardous nature of the cargo would
have impacted whether the accident occurred. As he noted, it is impossible to know if the
subject accident would have been prevented if the load had been 311 pounds of alkaline
batteries as opposed to 311 pounds of lithium batteries. He also noted that, as to the double
trailer, Mr. Ross has not explained how this particular accident would have been prevented
if only a single trailer was being pulled as opposed to a double. Ex. B, p. 9. That goes far
beyond just his ipse dixit and provides the rationale and reasoning for his opinion.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 9
Connelly’s opinion challenging Mr. Allen’s opinion that XPO’s alleged failures
to comply with the FMCSR’s was a “blatant and reckless disregard for the
safety of the general public” is reliable and relevant.
As was the case with the foregoing opinion, Plaintiffs list this opinion as one that is
being challenged, but fail to provide any discussion or argument to support the contention
that this opinion was merely ipse dixit. Again, the Court is left with only Plaintiffs’ ipse
dixit that the opinion is not reliable or relevant. In addition, because this opinion is a rebuttal
opinion to a statement made by Mr. Allen, a witness who will not be testifying at trial as
he is not listed as a witness for Plaintiffs and no designation of his deposition excerpts was
made, any discussion of this opinion is irrelevant.
That said, Connelly has provided a clear explanation of his rebuttal opinion to Mr.
Allen. Ex. B, p. 10-11. Connelly explained that the oversight for safety in the transportation
industry rests with the FMSCA (Federal Motor Carrier Safety Administration) who
promulgates and enforces the FMSCRs (Federal Motor Carier Safety Regulations), and
that the FMSCA through its Compliance, Safety & Accountability enforcement program
determined that XPO is “Satisfactory”, the highest rating a motor carrier can achieve. Ex.
B, p. 10-11. Connelly identified the systems and control XPO has in place and opined that
by definition, because of this Satisfactory rating, XPO’s safety and management systems
and control met the industry standards of care for motor carriers. Ex. B., p. 10. Contrary
to the opinion offered by Mr. Allen, Connelly’s opinion is that XPO in all manner complied
with the FMSCRs. Given that compliance, there is no logical leap to Connelly’s opinion
that XPO did not act with blatant and reckless disregard for the safety of the general public.
Plaintiffs’ motion to exclude should be denied.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 10
IV. CONCLUSION
For the reasons stated above, Defendant XPO Logistics Freight, Inc and Martir
Salvador Gonzalez and Maria Zoila Gomez as heirs of the Estate of Marcos Conzalez
(Deceased) request the Court deny Plaintiffs’ Motion to Exclude the Opinion Testimony
of Michael Connelly and permit Michael Connelly to present expert testimony in this case.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 11
Respectfully submitted,
/s/ Mark S. Scudder
MARK S. SCUDDER
State Bar No. 17936300
RYAN T. FUNDERBURG
State Bar No. 24101776
TORIE ABBOTT
State Bar No. 24115929
QUILLING, SELANDER, LOWNDS, WINSLETT &
MOSER, P.C.
2001 Bryan Street, Suite 1800
Dallas, Texas 75201
mscudder@qslwm.com
rfunderburg@qslwm.com
tabbott@gqslwm.com
Todd Parks
State Bar No. 15526520
WALTERS, BALIDO & CRAIN, LLP
400 East Main Street
Decatur, Texas 76234
todd.parks@wbclawfirm.com
Attorneys for Defendant
XPO Logistics Freight, Inc.
And
P. Clark Aspy
State Bar No. 01394170
Jason Sheffield
State Bar No. 24117043
NAMAN, HOWELL, SMITH & LEE, PLLC
8310 Capital of Texas Highway N., Suite 490
Austin, Texas 78731
(512) 479-0300
FAX (512) 474-1901
aspy@namanhowell.com
jsheffield@namanhowell.com
ATTORNEYS FOR DEFENDANTS, MARTIR
SALVADOR GONZALES AND MARIA ZOILA
GOMEZ AS HEIRS OF THE ESTATE OF MARCOS
GONZALEZ, Deceased
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 12
CERTIFICATE OF SERVICE
I hereby certify that on this day, October 17, 2023, a true and correct copy of the
foregoing instrument was served on all counsel of record in accordance with the Texas
Rules of Civil Procedure.
/s/ Mark S. Scudder
Mark S. Scudder
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO
EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 13
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Envelope ID: 80688773
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FILED 10/17/2023 4:11 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO: DC-21-09623 COURTNEY DEAN GARCIA, § IN THE DISTRICT COURT ALFRED B. CISCO, II. and RYAN J. § CISCO, as Wrongful Death Beneficiaries and Heirs of JOY H. CISCO, Deceased, KEITH JENKINS, FRANCES JENKINS, MEGAN JENKINS and JOSEPH FOLEY Plaintiffs, Vv. DALLAS COUNTY, TEXAS XPO LOGISTICS FREIGHT, INC. and FEDEX GROUND PACKAGE SYSTEM, INC., MARCOS GONZALEZ and DAVID MATA Defendants. 192ND JUDICIAL DISTRICT DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES XPO LOGISTICS FREIGHT, INC. (“XPO”), MARTIR SALVADOR GONZALEZ and MARIA ZOILA GOMEZ AS HEIRS OF THE ESTATE OF MARCOS GONZALEZ (DECEASED) the Defendants in the above styled and numbered cause, and files their Response to Plaintiffs’ Motion to Exclude the Opinion Testimony of Michael Connelly and as grounds would respectfully show as follows: I INTRODUCTION Michael Connelly has over thirty years of experience working in the transportation industry, particularly in the area of safety and risk management. Indeed, Plaintiffs concede, as they must, that Connelly is qualified to offer opinions regarding XPO’s compliance with DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page | trucking regulations and industry standards. Despite that concession, they complain that Connelly’s opinions should not be admitted because they amount to the mere ipse dixit of a credentialed witness. However, when the actual deposition testimony and report of Connelly are reviewed, it is clear that he has provided a sufficient basis for each of his opinions. Connelly has connected his opinions to the facts of the case, based on his years of experience with customs and standards in the transportation industry. Plaintiffs’ motion amounts to nothing more than Plaintiffs’ ipse dixit that Connelly’s opinions are unreliable without any evidence to support that conclusion. The motion should be denied. Il. EXHIBITS Defendants relies upon and incorporate the following exhibits attached to Plaintiff's Motion in support of this response: Exhibit A: Transcript of June 14, 2023 Deposition of Michael S. Connelly Exhibit B: February 27, 2023 Report of Michael S. Connelly Til. ARGUMENT AND AUTHORITIES The standards that trial courts must apply in determining whether to admit expert witness testimony have been clearly defined. Rule 702 of the Texas Rules of Evidence permits a witness who is “qualified as an expert by knowledge, skill, experience, training, or education” to testify on scientific, technical or other specialized subjects if the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” TEX. R. Evib. 702. Whether the testimony is admissible is a preliminary question to be decided by the trial court. TEX. R. Evip. 104(a); Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). Before an expert’s opinion is admissible, it must be shown DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 2 to be relevant and reliable, as well as pass specific factors such as proof of testing of the expert’s opinion, peer review of the opinion or bases for it, acceptability, and others. E./. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). “When measuring the reliability of an expert’s opinion in non-scientific cases, such as the one here, [courts] consider the following: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon the principles involved in that field.” In Interest of J.R., 501 S.W.3d 738, 748 (Tex. App.—Waco 2016, no pet.). “An expert’s simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts.” Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460-61 (Tex. 2017). Here, Connelly linked all of his opinions and conclusions to the facts of the case and based those conclusions on the relevant facts and his thirty years of experience in the transportation industry. That goes far beyond being mere ipse dixit of an expert. A Connelly’s opinion that XPO met the standard of care for Gonzalez pulling double trailers and hazardous material is reliable and relevant. In his report, Connelly disagreed with the opinion of Plaintiffs’ expert John Ross that it was not prudent to allow Mr. Gonzalez as a newly trained driver to pull a double trailer or hazardous materials. Ex. B., p. 4-5. When asked about this opinion in his deposition, Connelly specifically testified that he was not aware of “any industry standards that would prohibit a new entry driver who’s properly licensed and endorsed from pulling doubles.” Ex. A, 51:18-23. He was not specifically asked in his deposition what the DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 3 standard was that applied to whether a newly trained driver like Mr. Gonzalez could pull double trailers or transport hazardous materials. However, from his report, it is clear that Connelly’s opinion is that—under the applicable federal regulations—a person who has completed the training and demonstrated the skills necessary to obtain a CDL license with the proper endorsements is permitted to pull double trailers and transport hazardous materials. Specifically, Connelly opined that there is “no standard within the Commercial Motor Carrier Transportation Industry that obligates a motor carrier to deny a licensed commercial driver with the proper endorsement his/her right to operate a CMV within the scope of his/her endorsements.” Ex. B, p. 4-5. Throughout the section of his report discussing this issue, Connelly continually points back to the federal regulations as setting the standard for when a new driver is permitted to pull a double trailer or transport hazardous material. The deposition testimony that Plaintiffs cite for the rather sensational statement that Connelly could not identify relevant industry standards or best practices is taken out of context and unsurprisingly does not support Plaintiffs’ argument that Connelly’s opinions about whether XPO violated a standard of care pertinent to double trailers and hazardous materials are unreliable. To give context, Connelly was being questioned about whether, when he has previously presented a fleet safety plan to a motor carrier, he simply provides the federal minimum standards or if he also recommends industry best practices above those minimum standards. Ex. A, 66:6-67:3. Connelly testified that he provides the minimum federal regulations and also provides information about what some companies do in excess of the requirements. Ex. A, 67:4-69:1. Specifically, in the context of the three- DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 4 year background check, Connelly testified that he would advise a motor carrier of the federal requirements for the background check and also advise the carrier that there are some companies who voluntarily choose to investigate beyond what those regulations require, allowing the motor carrier to decide which direction to go. Ex. A, 69:6-21. Despite this clear answer, Plaintiffs’ counsel continued to press: Q I specifically want to know what comes out of your mouth. Not ultimately what the company decides to do, but what you are suggesting that that industry standard or practice is. I’m sorry. I know of no other way to answer your question than the way that I’ve answered it twice or three times already. I’m sorry. Then I’ll rephrase the question. Mr. Connelly, when you are speaking to the companies that you are advising, have you ever told them it would be a best practice to research beyond the three years that an employee is — or the Federal Motor Carriers Regulations require, so that you can tell whether that person is trying to apply for your job as an 18-wheeler driver — commercial driver has safety violations beyond or later in the three years. Again, as I’ve already testified, I tell those companies from my mouth that industry requirements are to perform the requisite background checks within the three-year period. And that there are companies who as a matter of best practices will go beyond the scope of those requirements. And then the company chooses to do what it chooses to do. And actually, in probably the past 20 years, I would tell a company that there’s no need to exceed the three years to which you keep referencing because other companies — if you’re investigating previous employment — tend to not be responsive to anything outside that three-year window because they have no obligation to respond. Ex. A, 69:22-71:7. The underlined testimony is the testimony Plaintiffs rely on to support their entire argument that Connelly’s opinion about allowing a new driver to pull doubles or hazardous material is inadmissible. When examined in context, nothing about that DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 5 testimony supports the idea that Connelly is somehow unaware of the standard that would apply to the question of whether XPO properly permitted a new driver like Mr. Gonzalez to pull a double trailer or hazardous waste. B Connelly’s opinion that XPO exceeded the standard of care for training is reliable and relevant. In his report, Connelly clearly identified the Federal Motor Carrier Safety Regulations as setting the bar for the standard of care for training new drivers. Ex. B, p. 6. Citing to 49 C.F.R. § 380.503, Connelly specifically noted that because Mr. Gonzalez was an entry level driver, the federal regulations required training on driver qualification requirements, drivers’ hours of service, driver wellness, and whistleblower protection. Ex. B, p. 7. Connelly confirmed that the required training was provided. Ex B, p. 7. Additionally, in order to obtain a CDL, a new driver like Gonzalez would need to complete the training necessary to allow him to demonstrate the necessary knowledge and skills to pass an examination for his CDL. A motor carrier like XPO is not required to provide that training to drivers; a driver can also obtain it through a variety of other sources. Ex. A, 55:1-16. Despite not being required to provide this training, XPO provided—and Mr. Gonzalez completed—a 12-week training program that included both classroom and in-vehicle training. Ex. A 53:7-22. The required CDL training was at least part of the training provided by XPO. Ex. B. 57:17-58:1. In his report, Connelly notes that following the training, which specifically included advanced defensive driver training and training utilizing double trailers, Mr. Gonzalez was able to pass the necessary testing to obtain his CDL and while pulling a double trailer, passed an XPO administered road test. Ex. B, p.7. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 6 Connelly’s opinions are not just ipse dixit. He clearly shows the basis of his opinions and links them to the facts about the training that was documented and provided to Mr. Gonzalez. Plaintiffs’ complaint is that Connelly fails to point to a specific industry standard, but Connelly testified that no standard applies which would require training beyond the new driver training that was provided by XPO. Plaintiffs’ motion to exclude this opinion should be denied. Cc Connelly’s opinion that XPO ensured Mr. Gonzalez could safely operate the subject CMV is reliable and relevant. Connelly clearly explained the basis for this opinion in his report. Connelly noted that in order for a driver to be granted a Class A CDL, he must pass the Vehicle Inspection test, the Knowledge test and the Skills test administered to all CDL applicants. Connelly notes that The Federal Motor Carrier Safety Administration states: “Driving a Commercial Motor Vehicle(CMV) requires a higher level of knowledge, experience, skills, and physical abilities than that required to drive a non-commercial vehicle. In order to obtain a Commercial Driver’s License (CDL), an applicant must pass both skills and knowledge testing geared to these higher standards.” Ex. B, p. 8. Based on that statement, and the fact that Mr. Gonzalez obtained his Class A CDL, Connelly opined that XPO could be confident Mr. Gonzalez possessed both the knowledge and skill necessary to safely operate its commercial motor vehicle. Ex. B, p.8. Connelly further opined that XPO, by ensuring that Mr. Gonzalez was sufficiently well-trained to pass all requisite skill and knowledge testing to successfully obtain his CDL and corresponding endorsements, could be certain that Mr. Gonzalez was capable of safely operating the commercial motor vehicle. Additionally, DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 7 XPO conducted the road test for Mr. Gonzalez as part of its training and ensured that Mr. Gonzalez’s driving skills passed the requirements for a Class A CDL. Ex. A, 73:12-17. In the section of their motion pertaining to this opinion, Plaintiffs again cite deposition testimony that has nothing to do with the opinion actually offered. Plaintiffs claim that when asked if there was an industry standard relating to ensuring a driver can safely operate a commercial vehicle, Connelly responded “to a degree, yes.” Motion, p. 5. The actual testimony is as follows: Q Mr. Connelly, is the — is there an industry standard that dictates that the commercial driver be familiar with their vehicle — the vehicle they’re operating—enough to know and understand the length — the total length that their tractor and trailers, potentially, consist of? What their measurements are? A To a degree, yes. Ex. A, 78:20-78:3. That testimony has nothing to do with the pertinent issue and does not support Plaintiffs’ argument. Connelly’s opinions about XPO ensuring that Mr. Gonzalez could safely operate a CMV are reliable and relevant. Connelly has clearly explained the basis and rationale for his opinion and supported it with information from the FMSCA based on his over thirty years of experience in the transportation industry. This is not just the ipse dixit of an expert. Plaintiffs’ motion to exclude should be denied. D. Connelly’s opinion that there was no causal relationship between the accident and the alleged errors is reliable and relevant. Plaintiffs list this opinion as one that is being challenged, but fail to provide any discussion or argument to support the contention that this opinion was merely ipse dixit. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 8 Again, the Court is left with only Plaintiffs’ ipse dixit that the opinion is not reliable or relevant. In his expert report, Connelly specifically (and in detail) challenged the causation opinions provided by John Ross, Plaintiffs’ retained expert, and Roger Allen, an expert retained by settling plaintiffs. Without any discussion of this challenged opinion, XPO is left to assume that Plaintiffs’ intention was only to challenge the opinion being offered regarding its own expert John Ross, particularly where Plaintiffs did not list Mr. Allen as a witness and did not designate any portions of his deposition for use at trial. Accordingly, this discussion is limited to the opinion Connelly offered regarding the lack of causation between the alleged error found by Mr. Ross (allowing a new driver to pull a double trailer with hazardous cargo) and the accident. Connelly explained that XPO met the standard of care in allowing Mr. Gonzalez to pull a double trailer, containing hazardous materials because he had a CDL with the appropriate endorsements that allowed him to do so. Ex. B., p. 4-6, 9. Connelly then explained that nothing about the hazardous or non-hazardous nature of the cargo would have impacted whether the accident occurred. As he noted, it is impossible to know if the subject accident would have been prevented if the load had been 311 pounds of alkaline batteries as opposed to 311 pounds of lithium batteries. He also noted that, as to the double trailer, Mr. Ross has not explained how this particular accident would have been prevented if only a single trailer was being pulled as opposed to a double. Ex. B, p. 9. That goes far beyond just his ipse dixit and provides the rationale and reasoning for his opinion. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 9 Connelly’s opinion challenging Mr. Allen’s opinion that XPO’s alleged failures to comply with the FMCSR’s was a “blatant and reckless disregard for the safety of the general public” is reliable and relevant. As was the case with the foregoing opinion, Plaintiffs list this opinion as one that is being challenged, but fail to provide any discussion or argument to support the contention that this opinion was merely ipse dixit. Again, the Court is left with only Plaintiffs’ ipse dixit that the opinion is not reliable or relevant. In addition, because this opinion is a rebuttal opinion to a statement made by Mr. Allen, a witness who will not be testifying at trial as he is not listed as a witness for Plaintiffs and no designation of his deposition excerpts was made, any discussion of this opinion is irrelevant. That said, Connelly has provided a clear explanation of his rebuttal opinion to Mr. Allen. Ex. B, p. 10-11. Connelly explained that the oversight for safety in the transportation industry rests with the FMSCA (Federal Motor Carrier Safety Administration) who promulgates and enforces the FMSCRs (Federal Motor Carier Safety Regulations), and that the FMSCA through its Compliance, Safety & Accountability enforcement program determined that XPO is “Satisfactory”, the highest rating a motor carrier can achieve. Ex. B, p. 10-11. Connelly identified the systems and control XPO has in place and opined that by definition, because of this Satisfactory rating, XPO’s safety and management systems and control met the industry standards of care for motor carriers. Ex. B., p. 10. Contrary to the opinion offered by Mr. Allen, Connelly’s opinion is that XPO in all manner complied with the FMSCRs. Given that compliance, there is no logical leap to Connelly’s opinion that XPO did not act with blatant and reckless disregard for the safety of the general public. Plaintiffs’ motion to exclude should be denied. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 10 IV. CONCLUSION For the reasons stated above, Defendant XPO Logistics Freight, Inc and Martir Salvador Gonzalez and Maria Zoila Gomez as heirs of the Estate of Marcos Conzalez (Deceased) request the Court deny Plaintiffs’ Motion to Exclude the Opinion Testimony of Michael Connelly and permit Michael Connelly to present expert testimony in this case. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 11 Respectfully submitted, /s/ Mark S. Scudder MARK S. SCUDDER State Bar No. 17936300 RYAN T. FUNDERBURG State Bar No. 24101776 TORIE ABBOTT State Bar No. 24115929 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 mscudder@qslwm.com rfunderburg@qslwm.com tabbott@gqslwm.com Todd Parks State Bar No. 15526520 WALTERS, BALIDO & CRAIN, LLP 400 East Main Street Decatur, Texas 76234 todd.parks@wbclawfirm.com Attorneys for Defendant XPO Logistics Freight, Inc. And P. Clark Aspy State Bar No. 01394170 Jason Sheffield State Bar No. 24117043 NAMAN, HOWELL, SMITH & LEE, PLLC 8310 Capital of Texas Highway N., Suite 490 Austin, Texas 78731 (512) 479-0300 FAX (512) 474-1901 aspy@namanhowell.com jsheffield@namanhowell.com ATTORNEYS FOR DEFENDANTS, MARTIR SALVADOR GONZALES AND MARIA ZOILA GOMEZ AS HEIRS OF THE ESTATE OF MARCOS GONZALEZ, Deceased DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 12 CERTIFICATE OF SERVICE I hereby certify that on this day, October 17, 2023, a true and correct copy of the foregoing instrument was served on all counsel of record in accordance with the Texas Rules of Civil Procedure. /s/ Mark S. Scudder Mark S. Scudder DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE THE OPINION TESTIMONY OF MICHAEL CONNELLY Page 13 Automated Certificate of eService This automated certificate of service was created by the efiling system. 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