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Jessica Durkin, Both Individually , and As v. Wabash National

March 28, 2013


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


Presently before the Court are several motions filed by the Defendant Wabash National Corporation (hereinafter "Wabash"). Wabash moves for Summary Judgment [Dkt. No. 149] pursuant to Fed. R. Civ. P. 56 and moves to Strike Plaintiff's Responses to the Statement of Undisputed Facts [174] pursuant to L. Civ. R. 56.1(a). In addition, and in partial support of its Motion for Summary Judgment, Wabash moves to Preclude the Testimony of Plaintiff's Experts Brooks Rugemer [Dkt. No. 152] and William Vigilante [Dkt. No. 154] pursuant to Fed. R. Evid. 702. Plaintiff Jessica Durkin*fn1 (hereinafter "Durkin") opposes the motions. The Court has considered the written submissions of the parties and heard oral argument on the motions on February 20, 2013 and March 12, 2013. For the reasons set forth below, Wabash's Motions are granted in part and denied in part.


A. Procedural History and Posture

The following background is partially excerpted from the Court's Opinion in this matter on October 19, 2010. Durkin v. Pacaar, Inc., No. 10-2013, 2010 WL 4117110 (D.N.J. Oct. 19, 2010). The facts underlying this action are tragic and fairly straightforward. On November 12, 2008, William Gangell, a New Jersey citizen, was operating a tractor-trailer loaded with a steel load in Franklin Township, New Jersey. (Compl. ¶ 6.) The steel load shifted forward during a braking maneuver, which collapsed the bulkhead of the truck, pinning Gangell inside. (Compl. ¶¶ 7-8.) Gangell died later that day as a result of the injuries he suffered in the accident. (Id.)

The facts surrounding the subsequent litigation stemming from this incident are less than straightforward and the Court does not recount in full the extensive, convoluted, and much disputed procedural history.*fn2 At this juncture, Wabash is the only remaining defendant in this matter and Plaintiff's sole claim against Wabash is predicated upon a failure to warn theory. In general terms, Plaintiff's Complaint alleges that Wabash is liable for Gangell's death because it failed to warn drivers of the danger that its bulkhead did not provide any protection from shifting loads. Specifically, Plaintiff claims that the bulkhead of the cab lacked a warning, that the absence of a warning existed when Wabash manufactured the tractor-trailer, that the lack of warning was the proximate cause of Gangell's death, and that Gangell was a foreseeable user of the cab. Wabash moves for Summary Judgment on the grounds that it had no duty to warn and, in the alternative, that Plaintiff cannot prove causation. Intertwined with the summary judgment motion are Wabash's motions to preclude Plaintiff's experts Rugemer and Vigilante, and Wabash's motion to strike. Given the relative nature of the motions, and the potential impact on the universe of considerations before the Court, Wabash's motion to Strike and to Preclude Plaintiff's Experts will be addressed before the Court considers whether there is a genuine issue of material fact precluding summary judgment.

B. Factual Background*fn3

Plaintiff's decedent, Gangell, was employed by R.E. Pierson Construction Co. and was acting in the course of his employment as a driver on November 12, 2008. Def. Facts. ¶4. The tractor-trailer that Gangell operated that day was one of twenty-four trailers manufactured by Wabash in 1999 and purchased by Pierson in March 2000. Id. at ¶¶ 25, 27. The tractor trailer weighed 16,730 pounds and the trailer weighed 11,700 pounds, for a total weight of 28,500 pounds. Id. ¶ 29. The trailer was loaded with eleven 50 foot long, coated PZ-35 double sheet pilings, with each piling weighing 6,600 pounds. Id. ¶ 5. The payload of steel sheets had a combined weight of 72,600 pounds. Id. The trailer was equipped with a bulkhead, also manufactured and installed by Wabash. Gangell was delivering the steel to a job site and was traveling through Franklin Township, New Jersey. Compl. ¶ 6. As the vehicle approached the intersection of Coles Mill Road and Wall Street, Gangell applied his brakes in response to a vehicle ahead of him making a left turn. As a result, the steel payload shifted, knocked down the bulkhead, and penetrated the cab of the tractor, pinning Gangell inside. Gangell did not die immediately and was able to communicate with first responders. Unfortunately, Gangell went into cardiac arrest and later died from his injuries sustained in the accident. See, generally, Compl.

The parties have different views on the cause of the accident. Plaintiff faults Defendant for failing to warn Gangell that the steel bulkhead did not offer any protection. Defendant faults Gangell for failing to properly secure the load and for attempting to transport a payload with a weight that violated federal and state regulations. To understand the parties' positions, a discussion on the trailer, the bulkhead, and the various federal and state regulations that governed the transportation of Gangell's trip is necessary.

A. The Trailer

Wabash manufactured the trailer that Gangell was hauling. It had twelve side rail sliding winches, which were part of the load securement system. Ex. DD. Sales Documents. In addition, the trailer was equipped with 48 stake pockets and 48 pipe spacers, which can both be used to attach chains or other securement devices. Kemp Report, Ex. T, at 3. The trailer was labeled in accordance with 49 C.F.R. §567.4 with a 100,000 pound Gross Vehicle Weight Restriction (GVWR) and a 20,000 pound Gross Axle Weight Restriction (GAWR) for each of two axles. Id. at 150-21: 5. In layman's terms, this means that the trailer was capable of hauling a load that weighed up to 100,000 pounds, as long as it was loaded in a manner in which the weight upon each axle did not exceed 20,000 pounds.

B. The Bulkhead*fn4

The trailer was equipped with a bulkhead, which was also manufactured and installed by Wabash. There is evidence in the record that bulkheads, or front end structures, can be used for reasons other than load securement, such as tarping, storage and windbreak. Kemp Dep., Ex. Z, at 37; Vadnais Report, Ex. BB, at 5. Bulkheads are also used for protection from shifting loads. Commercial Driver's License ("CDL") Manual, Ex. F at p. 3-58. When used for protection, the amount of force a bulkhead can withstand depends on the manner in which cargo is loaded, either up against the bulkhead or not in contact with it, and the rating of the bulkhead. Commonly, bulkheads will have a rating affixed to them that indicates that the Department of Transportation has certified the bulkhead to meet certain strength standards for a static load; which is a load where the cargo is loaded so that it braces the structure. These bulkheads are called "DOT rated" bulkheads.

The Wabash bulkhead in this case did not have a DOT rating, and therefore, there was no indication on the bulkhead that it was suited to meet a certain strength rating.

This does not mean that the Wabash bulkhead did not meet any strength standards or that it could not withstand a certain amount of force. Rather the absence of the rating means only that it was not certified to meet an identifiable strength standard. These bulkheads are referred to as "NON-DOT rated." The difference*fn5 between DOT rated bulkheads and Non Dot rated bulkheads is described by a manufacturer as follows:

DOT rated bulkheads have been tested and certified to certain sections of the Federal Department of Transportation Regulations for front-end safety structures and are independently tested to ensure that they meet such standards when properly installed. A DOT rated bulkhead will be clearly marked with a label on the bulkhead itself. Non-DOT rated bulkheads are not guaranteed to meet these standards.

Aero Industries Frequently Asked Questions, Ex. U.

Plaintiff contends that Gangell believed the Wabash bulkhead was DOT rated and offered protection proportionate to the load capacity of the trailer (which was 100,000 pounds) to which it was affixed. Plaintiff acknowledges that bulkheads serve functions, besides protection from a shifting load. However, Plaintiff argues that because this bulkhead was placed on a heavy duty trailer capable of hauling 100,000 pounds of cargo, Gangell reasonably believed that the bulkhead structure offered protection proportionate to the trailer's hauling capacity. According to Plaintiff, the lack of a warning on the subject bulkhead alerting Gangell that the bulkhead offered little protection - or at least less protection than what Gangell otherwise would expect - was the proximate cause of Gangell's death.

Plaintiff's expert, Dr. William Vigilante, submits a proposed warning:


* This model Bulkhead is NOT FMCSA-DOT compliant.

* This Bulkhead does NOT provide cab protection or cargo securement.

* This Bulkhead is designed for use with tractors that have integrated cab protection only.

* Always ensure your cab protection is FMCSR-DOT rated.

Plaintiff contends that had Gangell been aware that the bulkhead attached to his trailer, a trailer that had the capacity to hold 100,000 pounds of cargo, would not provide him with any protection in the event of a load shift, Gangell would have endeavored to haul the load differently, perhaps by taking two trips, using a different trailer, or employing additional securement devices.

C. Applicable Regulations

Defendant contends that Gangell's overloading of the trailer and/or failure to properly secure the load were the proximate cause of his death. There is no dispute that the combined weight of the vehicle and the cargo was roughly 103,000 pounds; 23,000 pounds over a state regulation that precludes travel of a vehicle weighing over 80,000 pounds. N.J.S.A. 39:3-84(b)(2); see also Def. Facts at ¶7. Trooper Pecenak of the New Jersey State Police Investigation Unit estimated that the cargo load weight was roughly 74,5000 pounds. Police Report, Doc. 150-1. Even though the trailer may have had the capacity to haul the load, see Pl.'s Fact Resp., ¶ 5, Pierson was cited for the overloaded tractor-trailer because the combined gross vehicle weight of the tractor, trailer and load exceeded 80,000 pounds. Def. Facts. at 7.

Defendant also cites to the Federal Register Code of Federal Regulations that were in place at the time of the accident and govern load securement requirements. In the year 2000, The Federal Motor Carrier Safety Act ("FMCSA") proposed new rules, which state on part:

The current rule emphasizes occupant protection rather than cargo securement. It is expected that cargo that is not braced against a front-end structure could shift forward, and the structure would prevent the load from penetrating the driver's compartment. While this concept may have been required for certain types of cargo, the FMSCA believes the best way to ensure driver's safety is to have tougher standards to prevent the cargo from shifting forward. For example, if the vehicle is transporting metal coils, once the load begins to move forward, it is unlikely that a front-end structure would save the driver.

See Ex. C, 65 Fed. Reg. 79050-55 (Dec. 18, 2000).

This Rule was promulgated in 2002. In general terms, the new rules require better load securement, most often achieved by increasing the number of tie down devices used and the manner in which the cargo is loaded. "[B]y establishing new rules to better ensure that [cargo does] not move forward, we are more likely to accomplish the safety objective of saving lives and preventing injuries." 67 Fed. Reg. 61212, 61221 (Sept. 27, 2002), Ex. D. The new securement rules were available to Pierson, Gangell's employer.

Wabash also cites to rules in effect that speak to the requirements of the front end structure in conjunction with securement when loading and transporting cargo. Specifically, when a front end structure is used as part of the load securement, i.e. the cargo is in contact with the front end structure of the vehicle, the bulkhead must meet certain performance standards identified in the FMCSA Regulations. See § 393.114(a)(1) (stating that "a front end structure less than 6 feet in height, a horizontal forward static load equal to one-half (0.5) of the weight of the articles of cargo being transported on the vehicle.") There are no regulations that require a bulkhead to be rated if the bulkhead is not being used for purposes of cargo securement.

The requisite number of tie down devices and the method of securement also depends upon whether the bulkhead is used as part of the cargo securement. For example, FMCSR § 393.110 governs tie downs where "an article is not blocked or positioned to prevent movement in the forward direction by a headerboard, bulkhead, other cargo that is positioned to prevent movement[.]" This is the scenario here, the cargo was not in contact with the bulkhead at the time of loading, so the bulkhead was not being used as part of the securement system.*fn6 In such situations, FMCSR § 393.110 requires "[t]wo tiedowns if the article is longer than 10 feet (3.04 meters), and one additional tiedown for every 10 feet (3.04 meters) of article length, or fraction thereof, beyond the first 10 feet (3.04 meters) of length" to secure the cargo. FMCSR §393.110(b)(3).

Under the FMCSR regulations applicable in this case, at least seven tie down devices were necessary for cargo securement, given the length of the steel sheets being transported. See FMCSR §393.106(d); New Jersey State Police Driver Examination Report, Doc. 168-8. Only six were used and there is a factual dispute as to whether all six were in working condition; at least one strap was broken and it cannot be determined if the breakage existed prior to the accident or as a result thereof. See New Jersey State

Police Driver Examination Report, Doc. 168-8. Wabash argues that 8 straps should have been used.

Defendant's cite The Driver's Handbook On Cargo Securement as another source of information on securement practices. In a section on warnings that displays the text inside a red box next to art depicting "caution", the Handbook indicates that a front end structure can be used to "provide some restraint against forward movement if the cargo is in contact with it." See WNC1035. Under the heading of "Fundamentals of Cargo Securement," the Handbook warns that an improperly secured load can result in death, loss of the load, damage to the cargo, damage to the vehicle, a crash, issuance of citations and the vehicle being placed out of service. See WNC1028.

Plaintiff heavily relies on a depiction contained in the Commercial Driver's License Manual that is titled "Tie-Down Devices" and shows a flatbed trailer with a front-end structure. The cargo is secured on the trailer in a manner that allows for a gap between the bulkhead and the cargo; stated differently, the cargo and bulkhead are not in contact. On the same page as the depiction is the following statement:

Front-end headerboards ("headache racks") protect you from your cargo in case of a crash or emergency stop. Make sure the front-end structure is in good condition. The front-end structure should block the forward movement of any cargo you carry.

Ex. B, p. 3-58. Plaintiff argues that this diagram and language alone are sufficient to defeat Wabash's summary judgment and Daubert motions. Plaintiff argues that the depiction in the CDL Manual led Gangell to believe that he could rely on the bulkhead for protection, even if he loaded the trailer without the cargo and bulkhead being in contact. Notably, on the same page is language stating, "There are special requirements for securing various heavy pieces of metal. Find out what they are if you are to carry such loads." Id.

Defendant argues that the above regulations and guidelines govern the use of the bulkhead and the expectation of protection provided by the bulkhead when used in accordance with the securement provisions. Wabash contends that the bulkhead only offers protection when the cargo is in contact with the front end structure of the vehicle and that Gangell could not have relied on it in the present circumstance. See FMSCR §393.114(a) (stating that the strength requirements for front-end structures apply only to motor vehicle transporting articles that are in contact with the front-end structure) (emphasis added); Larry Minor's 2008 PowerPoint Presentation, Ex. H., Doc. 150-9. Therefore, Defendant argues that the fact that the bulkhead was not rated is immaterial because it was not being used for cargo securement purposes. Accordingly, the combination of Gangell's failure to properly secure the load, the weight of the steel, and Gangell's disregard for the regulations governing the securement of his cargo were the proximate cause of the accident.

Defendant further argues that it had no duty to warn Gangell that the bulkhead attached to his trailer was Non-DOT rated because Gangell was not using the bulkhead for cargo securement and because there is no evidence that a DOT rated bulkhead would have stopped the accident in this case. In fact, Defendant claims that Plaintiff abandoned her design defect claim because her expert was unable to design an alternative bulkhead that would have with stood the forces at play in the accident under identical circumstances. For these reasons, Defendant argues that the negligent and non- compliant manner of load securement coupled with the weight and overloaded cargo- and not the failure of the bulkhead- were the cause of the accident. At the heart of her opposition to Defendant's motions to Preclude Experts Rugemer and Vigilante and for Summary Judgment, is Plaintiff's reliance on the above referenced diagram of a loaded tractor trailer depicted in the Commercial Driver's License Manual. Plaintiff again forcefully relied on the depiction as convincing during her oral opposition to the pending motions at the hearings on February 20, 2013 and March 12, 2013. The issues at hand are whether Wabash had a duty to warn Gangell that the bulkhead placed on its trailer did not offer the expected protection, and if so, whether that failure to warn was the proximate cause of Gangell's death. The Court will consider the arguments.


Defendant moves to strike Plaintiff's response to its L. Civ. R. 56.1 statement of undisputed facts because it is laced with legal argument and conclusions. To the extent that these admissions endeavor to argue the relevancy of the facts, the R. 56.1 statement fails to advance the underlying purpose of L. Civ. R. 56.1 of narrowing the issues before the Court.*fn7 See Sprint Spectrum v. Paramus Zoning Bd., No. 09-4940, 2010 WL 4868218 (D.N.J. Nov. 22, 2010).

"The purpose behind [the L. Civ. R. 56.1] statement is to clarify the issues for the Court, not to increase the burden before it." Globespanvirata v. Texas Instrument, No. 03-2854, 2005 WL 3077915, at *2 (D.N.J. Nov. 15, 2005)." L.Civ.R. 56.1, Comment 2d. The Court will accept the facts that are admitted in the following paragraphs: 1, 3, 4 , 5, 6, 7, 12, 13, 14, 18, 20, 21, 22, 23, 25, 27, 28, 29, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 54, 56, 58, 59, 60, 61, 64. The Rule 56.1 statement should only identify the universe of uncontested facts before the Court; arguments as to the force of those facts belongs in the brief. Plaintiff's Rule 56.1 statement in this case is burdensome on the Court. It contains unnecessarily long expositions of the relevancy of the facts of this case, with the response to Paragraph 9 running over six pages and the response to Paragraph 17 running over 8 pages. The Court will not go through the responses line by line to determine in each instance where Plaintiff "blurs the line between fact and opinion." N.J. Auto Ins. Plan v. Sciarra, 103 F. Supp. 2d 388, 395 n.4 (D.N.J. 1998). Much of Plaintiff's submission is highly improper under the Local Rules and will be disregarded. To the extent a fact is admitted or denied, the Court will accept the submission. Any argument related to the legal relevancy of that fact will be disregarded.


Wabash moves to strike Plaintiff's experts William Vigilante ("Vigilante") and Brooks Rugemer ("Rugemer") pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Fed. R. Evid. 702. Plaintiff offers Vigilante as a "warnings" or "human factors" expert. Vigilante crafted a proposed warning that Plaintiff believes, if available to the decedent, would have alerted decedent to the reality that the tractor-trailer bulkhead was not FMCSR-DOT rated and that the bulkhead did not provide protection. Plaintiff avers that this warning would have altered decedent's conduct on the day of the accident.

Rugemer is offered as a "Commercial Trucking Specialist." Rugemer states that he is "an expert in the typical actions that a CDL driver performs in the course of doing his job. That's both driving and non-driving activities." Rugemer Dep., Ex. C, at 31. Plaintiff offers Rugemer to explain what the reasonable truck driver would expect when confronted with the bulkhead placed on the subject trailer and how that reasonable truck driver would expect the equipment to perform.

Wabash moves to preclude both experts based on qualifications, reliability and fit. In addition, Wabash argues that portions of the expert testimony go to the ultimate and/or should be ...

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