WILSON-LOVE v. DEALER'S CHOICE TRUCKAWAY SYSTEM INC., D/B/A TRUCK MOVERS et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CANDACE WILSON-LOVE As executrix of the
estate of William Martin Love, deceased and as
Next Friend of C.W., K.L., and T.L., minors,
)
)
)
)
Plaintiff, 	)
)
v. 	) 	No. 1:24-cv-01084-SEB-TAB
)
DEALER'S CHOICE TRUCKAWAY SYSTEM
INC. d/b/a TRUCK MOVERS,
)
)
STEVEN BURKE, 	)
DAIMLER TRUCK NORTH AMERICA LLC, 	)
)
Defendants. 	)
OMNIBUS ORDER
This case arises out of a September 14, 2023, pedestrian-tractor collision that resulted in
the untimely and tragic death of William Martin Love ("Mr. Love"), whose estate brought this
wrongful death action against Defendants Dealer's Choice Truckaway System Inc. d/b/a Truck-
Movers ("TruckMovers"); Steven Burke ("Mr. Burke"); and Daimler Truck North America LLC
("Daimler") (collectively, "Defendants"). Plaintiff, whom we shall refer to as "the Estate" unless
specified otherwise, advances several legal doctrines by which to tag the named Defendants with
liability for their alleged negligence, which purportedly caused and/or contributed to Mr. Love's
passing. In this order, we undertake and resolve TruckMovers's and Daimler's Motions for Sum-
mary Judgment, dkt. 141, 146, as well as Defendants' myriad motions to strike, dkt. 197, 205, 272,
275, the parties' motions to exclude expert witnesses, dkt. 249, 253, 255, 257, 259, 266–68, 271,
and the Estate's July 17, 2026, Motion for Leave to File a Third Amended Complaint, dkt. 354.
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SUMMARY JUDGMENT STANDARD
"Although state law provides the substantive law in a diversity action," such as the one at
bar, "summary judgment procedure is governed by federal law," which "defines the standard for
evaluating the sufficiency of the evidence." Maroules v. Jumbo, Inc., 452 F.3d 639, 645 (7th Cir.
2006). Under Federal Rule of Civil Procedure 56, summary judgment is proper when "the movant
shows that there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). Because summary judgment requires "no gen-
uine issue of material fact," "the mere existence of some alleged factual dispute between the par-
ties will not defeat an otherwise properly supported motion for summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247−48 (1986) (emphasis in original). Material facts are those
that "might affect the outcome of the suit," and a dispute of material fact is genuine when "a rea-
sonable jury could return a verdict for the nonmoving party." Id. at 248. "If reasonable persons
could not find that the evidence justifies a decision for a party on each essential element, the court
can grant summary judgment using federal standards." Mouroules, 452 F.3d at 645.
As the "put up or shut up" moment in a lawsuit, summary judgment requires parties to
"show what evidence [they] ha[ve] that would convince the trier of fact" to find in their favor on
any disputed elements. Olendzki v. Rossi, 765 F.3d 742, 749 (7th Cir. 2014). A movant's "facts as
claimed and supported by admissible evidence . . . are admitted without controversy" unless "the
non-movant specifically controverts the facts . . . with admissible evidence." S.D. Ind. L.R. 56-
1(f). "The court has one task and one task only: to decide, based on the evidence of record, whether
there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994) (citing Anderson, 477 U.S. at 249–50).
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BACKGROUND
I. 	Preliminary Issues
A. 	Defendants' Motions to Strike the Estate's Objections [Dkt. 197, 205]
On October 30, 2025, Daimler and TruckMovers (joined by Mr. Burke, dkt. 145) moved
for summary judgment, respectively, on all claims asserted again them. Dkt. 146, 141. The Estate's
response briefs in opposition to each motion were filed on November 29 and December 2, 2025,
respectively. Dkt. 172, 177. Nearly two weeks later, on December 12, 2025, the Estate filed two
documents enumerating a litany of objections to the evidence submitted and relied upon by De-
fendants on summary judgment. Dkt. 193, 194. That same day, Daimler timely filed its reply brief,
dkt. 195, as did TruckMovers three weeks later, on December 22, 2025, dkt. 204. Meanwhile, on
December 15, 2025, and December 22, 2025, Daimler and TruckMovers, respectively, moved to
strike the Estate's separately filed objections as violative of our Local Rules. Dkt. 197, 205. Since
resolution of these fully-briefed motions to strike affects our review of the summary judgment
record, we turn to address them now.
Our Local Rules advise litigants as follows: "The court disfavors collateral motions—such
as motions to strike—in the summary judgment process. Any dispute over the admissibility or
effect of evidence must be raised through an objection within a party’s brief." S.D. Ind. L.R. 56-
1(i). "[T]he directives of Local Rule 56-1(i) are mandatory and unambiguous: Challenges to the
admissibility or effect of evidence 'must be' raised within a party's brief." Denoia v. Roche Diag-
nostics Corp., No. 1:23-CV-00344-SEB-TAB, 2024 WL 5186873, at *8 (S.D. Ind. Dec. 20, 2024).
Defendants contend that the Estate's failure to incorporate its evidentiary objections within
its response brief(s) precludes it from raising such objections nearly two weeks later by separate
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filings. The Estate raises several countervailing arguments to support its belated objections, though
none is ultimately availing.
First, the Estate reveals, albeit without further elaboration, that its objections were "inad-
verten[tly]" omitted from its initial response briefs and "promptly" filed on December 12, 2025,
before Daimler's and TruckMovers's reply deadline on December 13, 2025. (TruckMovers's reply
deadline was extended through December 22, 2025, however. Dkt. 185.) To the extent that we
"may, in the interest of justice or for good cause, excuse failure to comply strictly" with our sum-
mary judgment procedures, the Estate's unexplained "inadvertence" does not satisfy this standard.
S.D. Ind. L.R. 56-1(l). "Courts expect parties to know and follow local rules of practice. Failing to
do so can prove fatal." Hinterberger v. City of Indianapolis, 966 F.3d 523, 525 (7th Cir. 2020).
Second, the Estate's response brief includes a passing request for "leave to submit objec-
tions." Dkt. 200 at 2. Once again, the Estate's litigation strategy fails to comply with our Local
Rules, which explicitly prohibit parties from embedding motions within response briefs to a pre-
viously filed motion. S.D. Ind. L.R. 7-1(a). We reject the Estate's passing request and shall not
address it further.
Third, the Estate argues that "there is no cognizable harm or prejudice to Defendant[s]" and
that Defendants "cannot plausibly claim surprise or disadvantage," since they bear the burden of
presenting admissible evidence and since the Estate's objections were in any event asserted before
Defendants' respective reply deadlines. Dkt. 200 at 2; dkt. 211 at 3. That the Estate's objections
technically appeared on our docket prior to Daimler's and TruckMovers's respective reply dead-
lines is neither conclusive nor persuasive evidence of a lack of surprise or disadvantage, particu-
larly with regard to Daimler, whose reply brief was due on the same date that the Estate filed its
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objections. Accordingly, the Estate's appeal to the arguable lack of prejudice to Defendants is not
persuasive.
We recognize that Defendants' motions to strike might, at first glance, appear inconsistent
with the text of Local Rule 56-1(i), which expresses that "[t]he court disfavors collateral motions—
such as motions to strike—in the summary judgment process." S.D. Ind. L.R. 56-1(i). A cursory
review of the instant docket reveals the reason(s) piecemeal and collateral motions, like those in-
terposed by the parties here, are disfavored: In this multi-defendant litigation, the parties' inability
(or unwillingness) to find common ground has engendered an exceedingly high number of motions
and related submissions whose quantity and volume alone have stymied what might have been a
straightforward resolution of this case. See generally dkt.1 For the reasons stated above, however,
the instant motions to strike were appropriate responses to the Estate's improper attempt to supple-
ment perceived deficiencies in its initial summary judgment opposition briefs. Daimler's and
TruckMovers's Motions to Strike the Estate's Objections therefore shall be granted, dkt. 197, 205,
and the Estate's Objections are stricken accordingly, dkt. 193, 194.
B. 	Summary Judgment Procedure & the Instant Record
Before turning to our overview of the facts underlying this litigation, we pause to discuss
our expectations regarding the parties' compliance with summary judgment procedures and to clar-
ify how the parties' respective shortcomings have negatively impacted our analysis. Recognizing
1 For reasons that are not readily apparent to us, the parties have flooded our docket with nearly
three dozen "notices" of depositions and the like. See generally dkt. 46–52, 116–24. Given that no
rule of federal procedure nor of our Local Rules requires litigants to apprise the court of each and
every pre-trial development, we can discern no legitimate basis for the parties' treatment of this
court's docket as a general repository for their litigation-related documents. See Fed. R. Civ. P.
5(d) (outlining the circumstances under which a party need not file a certificate of service); 2000
Committee Note to Fed. R. Civ. P. 5(d) (explaining that discovery requests, including deposition
notices, "must not be filed until they are used in the action").
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that summary judgment motions are often "tedious and time consuming," our Local Rules require
parties to "submit factual statements to assist with identifying and isolating the disputed from the
undisputed—all to help the court assess whether a particular claim should proceed to trial or in-
stead can be resolved on the existing record." Hinterberger, 966 F.3d at 527 (citing S.D. Ind. L. R.
56-1). Our Local Rules specifically require a non-moving party to respond with a "Statement of
Material Facts in Dispute" that "identifies the potentially determinative facts and factual disputes
that the party contends demonstrate a dispute of fact precluding summary judgment." S.D. Ind.
L.R. 56-1(b).
"Properly substantiating assertions is a basic legal obligation. Doing so takes on a particular
form and importance for the plaintiff at summary judgment." Brown v. Chicago Transit Auth., 179
F.4th 577, 586 (7th Cir. 2026) (discussing summary judgment procedure under Rule 56 as well as
the Northern District of Illinois's Local Rules). As such, parties' factual assertions must be sup-
ported with citations to the evidentiary record in a manner that facilitates the court's ability to
review the disputed and undisputed facts. S.D. Ind. L.R. 56-1(e). In terms of how the parties file
exhibits on the court docket, Local Rule 5-6(a) provides, in relevant part, that "[e]ach electronically
filed exhibit to a main document must be . . . given a title which describes its content." S.D. Ind.
L. R. 5-6(a) (emphasis added). In the Seventh Circuit's oft-quoted refrain, "It is not the duty of the
court to scour the record in search of evidence to defeat a motion for summary judgment; rather,
the nonmoving party bears the responsibility of identifying the evidence upon which he relies."
Brown, 179 F.4th at 587 (citation modified); accord S.D. Ind. L.R. 56-1 cmt. (e).
Relatedly, litigants' factual recitations "should contain concise statements of fact, not ex-
tended statements of argument." Pike v. Caldera, 188 F.R.D. 519, 525 (S.D. Ind. 1999) (discussing
since-amended Local Rule); see S.D. Ind. L.R. 56-1 cmt. (a) (Statement of facts must "state facts,
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not the party's argument."); Hinterberger, 966 F.3d at 527 (stating that the Local Rules "prohibit[ ]
the inclusion of any argument—which should be saved for briefing"). "[F]actual inferences do not
constitute an appropriate inclusion" in a statement of facts, for courts "must have a clear picture of
the facts" before deriving reasonable inferences therefrom. Pike, 188 F.R.D. at 525.
Here, several aspects of the parties' summary judgment submissions fall short of these
guidelines. First, as highlighted by Defendants, the Estate's response briefs contain a "Statement
of Material Facts," dkt. 172 at 2, and a "Summary of Material Facts and Evidence," dkt. 177 at 3,
rather than a "Statement of Material Facts in Dispute," as required by Local Rule 56-1(b). Although
the Estate technically violated our Local Rules, we decline to assign this error any dispositive
weight in our resolution of the summary judgment motions. A more problematic dereliction, how-
ever, arises with the Estate's overall failure to support its factual assertions with evidentiary cita-
tions—either entirely or to specific portions of the record. E.g., dkt. 172 at 4, 6–7; dkt. 177 at 3,
6–7. See also dkt. 172 at 5 (citing "Exhibit G," a 335-page document). To the extent that the Estate's
factual presentation has fallen short of our firmly-established summary judgment standards, we
have decline to squander our limited judicial resources to "scour the record" in an attempt to piece
together the Estate's case and instead will exclude those factual assertions from our review. See
Fed. R. Civ. P. 56(c)(3).
Additionally, our review of the parties' summary judgment briefs reveals that all have con-
fusingly comingled their facts and argument as well as misrepresented the record, hindering what
ought to be a straightforward recitation of the facts. Relatedly, with the exception of the parties'
various arguments concerning their expert witnesses (which are addressed and resolved, infra), the
parties have also interposed numerous evidentiary objections, the majority of which are either le-
gally and/or factually underdeveloped, see dkt. 204 at 5–7 (TruckMovers's objections to the
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Estate's supporting evidence); dkt. 210 at 15 (the Estate's response to TruckMovers's objections),
or an effort to counter an opposing party's editorialization regarding the facts, see dkt. 210 at 7. It
is beyond the court's obligations to research and construct arguments on litigants' behalf; thus, we
decline to resolve the parties' bareboned objections and argumentative equivocations. We shall
"handle[ ] the [remaining] factual discrepancies below by accurately representing the record, by
properly applying the summary judgment standard of review, and by noting in footnotes where the
parties were misguided." Ohaeme v. Andy Mohr Avon Nissan, No. 1:23-cv-00181-JMS-KMB,
2024 WL 4932038, at *4 (S.D. Ind. Dec. 2, 2024).
II. 	Factual Background
By way of a reminder, we note that "[t]he facts stated below are not necessarily objectively
true, but as the summary judgment standard requires, the undisputed facts and the disputed evi-
dence are presented in the light most favorable to 'the party against whom the motion under con-
sideration is made.' " Id. (quoting Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d 523,
526–27 (7th Cir. 2005)).
A. 	The Defendants
Defendants' businesses involve the domestic trucking industry. On September 6, 2023,
Daimler purchased a 2020 Cascadia Freightliner tractor (the "tractor") from non-party J.B. Hunt.
Dkt. 150-3 at 2. Soon thereafter, Daimler, through non-party Daimler Trucks Remarketing
("DTR"), retained TruckMovers to transport the tractor from Mt. Pleasant, Wisconsin, to Houston,
Texas. Dkt. 142-2 at 3; Bross Dep. 19:13–14, dkt. 150-4 at 4 (Deposition of TruckMovers's Cor-
porate Representative David Bross). (Daimler avers, and the Estate does not refute, that DTR is
Daimler's wholly owned subsidiary. Dkt. 148 at 1, 9.)
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TruckMovers hired Mr. Burke, a commercial truck driver, to complete the drive from Wis-
consin to Texas, though it is not entirely clear when exactly Mr. Burke obtained possession of the
tractor. Bross Dep. 18:21–14, dkt. 150-4 at 4; McCartney Dep. 67:22–68:25, dkt. 142-3 at 2–3.
Although Mr. Burke and TruckMovers's employment contract designates Mr. Burke as an inde-
pendent contractor, TruckMovers has admitted, for purposes of this litigation, that Mr. Burke was
its employee and that the underlying incident occurred within the course and scope of Mr. Burke's
employment. Bross Dep. 31:3–8, dkt. 150-4 at 7; TruckMovers's Answer ¶ 10, dkt. 85; Dkt. 142-
3 at 4–12 (Burke-TruckMovers Independent Contractor Driver Service Agreement).
B. 	The Incident
The underlying incident occurred on September 14, 2023, at approximately 9:40 p.m., at
the intersection of North Centennial Street and West 10th Street, located within an urban and res-
idential area of Indianapolis, Indiana. Dkt. 142-8 at 1. The atmospheric conditions at the time were
clear, dry, and dark. Id. Mr. Burke, who had parked the tractor on the west side of North Centennial
facing south, entered the roadway heading towards the stop sign at the intersection with West 10th
Street. The purpose and duration of Mr. Burke's visit to the Indianapolis area that evening remains
unclear, though Mr. Burke stated during his deposition that he had been in the neighborhood vis-
iting friends. Burke Dep. 21:13–22:1, dkt. 195-7 at 5–6. A nearby surveillance camera2 recorded
the following sequence of events:
At approximately 9:41 p.m., Mr. Love was seen walking southbound along the sidewalk
on the west side of North Centennial towards the stop sign at the intersection North Centennial
2 Specific details about the camera itself, including its physical proximity to the scene of the acci-
dent, have not been disclosed by the parties, but from our review of the footage the camera appears
to have been positioned on the west side of North Centennial facing south (towards the intersection
with West 10th). See generally dkt. 153 (manual filing).
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Street and West 10th Street. Video at 9:41:09–16, dkt. 153 (manual filing).3 Meanwhile, Mr. Burke
had pulled the tractor onto the roadway and was headed towards the stop sign posted at the same
intersection. Id. Before reaching the stop sign (where the sidewalk meets the curb), Mr. Love is
seen maneuvering around a guy wire before stopping on the strip of grass separating the sidewalk
from the roadway, where he remained standing for several seconds. Id. at 9:41:16–21.
As Mr. Burke approached the stop sign, he slowed down in an apparent effort to account
for oncoming vehicular traffic—but did not come to a complete stop—before executing a left turn
onto West 10th Street, at which time Mr. Love, while apparently viewing an illuminated handheld
device,4 also entered the roadway to cross the street. Id. at 9:41:22–25. As Mr. Love proceeded to
walk behind the tractor, he made contact with its rear right-side tires, which pulled him under and
crushed him as the tractor drove away. Id. at 9:41:25–28. The recorded view of these critical mo-
ments is partially obstructed by the presence of a parked sedan and a telephone pole; however,
shouts can be heard in the footage as Mr. Love was pulled underneath the tractor. Id. Additionally,
the tractor's right taillights can be seen rising and falling as the tractor drove over Mr. Love's body.
Id. Shortly thereafter, Mr. Love tragically succumbed to his injuries. Dkt. 142-8 at 3.
C. 	Post-Accident Drug Testing
Following the arrival of law enforcement at the scene, Mr. Burke declined to voluntarily
submit to a drug test, as required by Indiana law. Dkt. 177-2 (citation for violation of Indiana Code
§ 9-30-7-5). During his subsequent deposition, Mr. Burke admitted that he had declined to take the
drug test because he knew that the results would reveal the presence of cocaine in his system.
3 For clarity, we cite the timestamps depicted in the top left corner of the video footage.
4 TruckMovers asserts that the video depicts Mr. Love wearing headphones as well. Dkt. 142 at 4.
Based on our review of the footage, we find that Mr. Love's potential headphone usage is at best
disputable, and thus we do not treat TruckMovers's assertion as an undisputed fact.
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Burke Dep. 19:24–20:5, dkt. 195-7 at 3–4.5 Mr. Burke eventually did submit to a urinalysis the
following day, approximately twenty hours after the accident, which confirmed the presence of
cocaine metabolites in his system. Dkt. 177-1. (According to Michael Suls ("Dr. Suls"), the Med-
ical Review Officer who assessed Mr. Burke's test results, cocaine can remain detectable in urine
for "24 up to 72 hours." Suls Dep. 23:17–25, dkt. 142-10 at 3.) Based on test results alone, however,
"it's not possible" to determine when the user ingested the substance and/or when (or whether) the
user experienced the substance's intoxicating effects. Id. at 24:1–21, dkt. 142-10 at 4. How cocaine
affects its user also depends upon the pattern and duration of use. Id. at 25:2–9, dkt. 142-10 at 5.
In this case, Dr. Suls reviewed only the results of Mr. Burke's post-accident drug test from which
he was unable to discern whether, when, or to what degree Mr. Burke might have been impaired
by cocaine. See id.
Officer Steven Baumer ("Officer Baumer"), who responded to the scene, testified at his
deposition that he shared "at least one conversation" with Mr. Burke that "was very short." Baumer
Dep. 47:3–6, dkt. 142-11 at 2. Officer Baumer also disclosed that he is trained to detect signs of
impairment and intoxication, though he "d[id] not remember" whether his conversation with Mr.
Burke led him to suspect Mr. Burke's potential impairment or intoxication. Id. at 47:17–23, 48:7–
14, dkt. 142-11 at 2–3.6
5 The Estate cites various portions of Mr. Burke's deposition testimony that do not appear in the
record before us. Contrast dkt. 177 at 3, 5 (citing Mr. Burke's deposition transcript as "Exhibit I"),
with dkt. 177-9 (Exhibit I, which contains a certificate of Mr. Burke's nonappearance for his Oc-
tober 22, 2025, deposition only). To the extent that the Estate seeks to rely on portions of Mr.
Burke's deposition testimony that do not appear in the record, such assertions are omitted from
consideration.
6 In an example of TruckMovers's "loose allegiance" to the summary judgment standard, Stewart
v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th Cir. 2021), TruckMovers cites this testi-
mony as evidence that Officer Baumer "had no concerns that Burke was impaired or intoxicated."
Dkt. 142 at 6. In viewing the record in the light most favorable to the Estate, we do not credit
TruckMovers's representation of Officer Baumer's testimony.
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With regard to Mr. Love, subsequent testing revealed the presence of cannabinoids in his
system as well as a blood alcohol content of .084. Dkt. 142-7 at 1.
D. 	Daimler's Buy-Back Program
Daimler's product and service offerings include a buy-back program whereby Daimler re-
purchases heavy-duty trucks, which it manufactured, and refurbishes the vehicles to be resold on
the used heavy-duty truck market. Cummings Rep. 3–4, dkt. 150-9 at 4–5. Daimler and Truck-
Movers share a long-standing business relationship with each other whereby TruckMovers trans-
ports Daimler's repurchased tractors. Id.
The terms of this driveaway-towaway arrangement were memorialized in the April 2022
Master Services Agreement (the "MSA") to which DTR and TruckMovers are both parties.
MSA 1, dkt. 150-6 at 2. Under the terms of the MSA, TruckMovers retains "sole and exclusive
care, custody, and control of all vehicles from the time of tender by [DTR to TruckMovers] for
transportation until delivery to cosignee." Id. at 4, dkt. 150-6 at 5. Under the MSA, TruckMovers
promised to adhere to the Federal Motor Carrier Safety Regulations (the "FMCSRs"), which gov-
ern registration, insurance, and safety requirements; to maintain safe equipment; to employ fully
qualified personnel; and to achieve a ninety-eight on-time percentage. MSA 2, dkt. 150-6 at 3.
On May 1, 2022, DTR and TruckMovers entered into a Service Specification (the "Ser-
vice Specification"), which incorporated by reference the terms of the MSA. Service Specification
1, dkt. 172-3. Under the Service Specification, TruckMovers agreed to transport designated vehi-
cles in accordance with the terms and conditions stated therein as well as "the instructions and
guidelines contained in the Daimler Trucks Remarketing Corporation," including the "Vehicle
Handling and Passenger Car Operations Manuals and the Transportation Claims Policy and Pro-
cedures Manual," which policies only DTR has discretion to amend. Id. The Service Specification
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also required TruckMovers to utilize DTR's "Communication Link ('CCL'/TruckMovers.com) sys-
tem" in order to facilitate "the transmission of shipping information." Id. at 2.
In the words of TruckMovers's Corporate Representative, David Bross ("Mr. Bross"),
"[w]hen TruckMovers picks up a truck and delivers it," TruckMovers is "responsible for that truck
and responsible for [the] driver. [TruckMovers] put[s] the driver in the truck. Daimler doesn't have
anything to do with it." Bross Dep. 28:14–18, dkt. 150-4 at 6. Indeed, Mr. Bross also testified at
his deposition that TruckMovers manages all aspects of truck movement, including, inter alia, the
routes, drivers, and scheduling. Id. at 124:16–127:20, dkt. 150-4 at 9–10. Because TruckMovers
typically does not own the vehicles it transports, TruckMovers does not oversee general mainte-
nance and upkeep. Id. at 15:13–17, dkt. 142-1 at 2. A Daimler representative testified similarly
during his deposition that Daimler has "no say or involvement with" TruckMovers's driver selec-
tion or route assignments. DeGroat Dep. 42:4–15, 48:2–6, dkt. 150-11 at 3, 4. Mr. Burke also
testified at his deposition that, prior to September 14, 2023, he did not interact with anyone at
Daimler. Burke Dep. 20:21–21:8, dkt. 195-7 at 4–5.
E. 	The Tractor
The parties have raised several arguments concerning the tractor's fault code history, which
arguments we shall discuss and resolve in the context of the parties' challenges to each other's
expert witnesses. That said, the undisputed record evidence establishes as follows:
According to Daimler's Executive Engineer Christopher M. Rieflin ("Mr. Rieflin"), a Feb-
ruary 7, 2024, inspection of the tractor revealed that no fault codes directly related to braking
and/or driver control were active at the time of the accident. Rieflin Decl. ¶¶ 4–5, dkt. 150-12. Mr.
Rieflin also states in his Declaration that the tractor was not equipped with Daimler's proprietary
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side object detection technology, Side Guard Assist, as such technology was not available at the
time that the tractor was manufactured. Id. ¶ 6.
F. 	Mr. Love & Minors C.W., T.L., and K.L.
At the time of his death, Mr. Love was thirty-six years old and unmarried. Dkt. 142-12 at
3. Sala Rene Williams Allen ("Ms. Allen") is the custodial parent and mother of C.W., and Daivon
Thompson ("Ms. Thompson") is the mother of K.L. and T.L., who reside with their maternal aunt.
Dkt. 142-12 at 3. Mr. Love and Ms. Thomspon cohabitated for several years, between 2007 and
2012 approximately, during which time K.L. and T.L. were born. Thompson Dep. 18:3–20:7, dkt.
142-13 at 2. Mr. Love and Ms. Thompson never married. Id. Mr. Love and Ms. Allen were engaged
for an unspecified period of time that preceded C.W.'s birth, though their relationship ended some-
time in 2016. Allen Dep., dkt. 142-14 at 2. TruckMovers requested from the Estate copies of
C.W.'s, K.L.'s, and T.L.'s birth certificates, to which the Estate responded indicating that it did not
have any such responsive documents. Dkt. 142-15 at 6.
G. 	Procedural History
The Estate initiated this wrongful death action in state court on May 22, 2024, and the
matter was timely removed to federal court on the basis of our diversity jurisdiction. The operative
Second Amended Complaint (the "SAC") alleges that Defendants' negligence caused the wrongful
death of Mr. Love. Dkt. 66.
On October 30, 2025, TruckMovers (joined by Mr. Burke) and Daimler moved for sum-
mary judgment, respectively. Dkt. 141, 146. Those motions are fully briefed and await a ruling.
On February 20, 2026, while the summary judgment motions remained pending, Defend-
ants moved to exclude the testimonies of the Estate's various expert witnesses, dkt. 248–49, 251,
253, 255, 257, 259. Three days later, on February 23, 2026, the Estate filed three motions to
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exclude the testimonies of Defendants' witnesses, Rachel Kelly, Jerad Childress, and Madeleine J.
Swortwood. Dkt. 266–68. A day later, on February 24, 2026, the Estate moved to exclude the
expert testimony of Kirk Cummings. Dkt. 271. Shortly thereafter, on February 25, 2026, Defend-
ants jointly moved to strike the Estate's allegedly untimely motions to exclude. Dkt. 272, 275.
These motions are also fully briefed and await a ruling.
Meanwhile, on April 21, 2026, we issued an order granting in part and denying in part
Defendants' respective motions for judgment on the pleadings. Dkt. 315. We held, inter alia, that
TruckMovers's admission that Mr. Burke was acting within the scope of his employment precluded
the Estate's direct negligence claims against TruckMovers; that dismissal of the Estate's joint en-
terprise theory of liability was premature, as was Defendants' requests that we "dismiss" certain
categories of damages sought by the Estate; and that the Estate's failure to plead sufficient facts
concerning the minors' dependency upon Mr. Love precluded recovery under Indiana's General
Wrongful Death Statute (the "GWDS"). We also addressed the issue of federal preemption under
the Federal Aviation Administration Authorization Act (the "FAAAA"), 49 U.S.C. § 14501(c)(1),
and held that the FAAAA preempted the Estate's negligent selection claim against Daimler.
Several months thereafter, on July 16, 2026, we issued an order granting in part and deny-
ing in part the Estate's motion for reconsideration of our April 21st Order. In light of the recent
Supreme Court decision concerning FAAAA preemption, we reinstated the Estate's negligent se-
lection claim against Daimler. See Montgomery v. Caribe Transport II, LLC, 146 S. Ct. 1199,
1204–05 (2026). We declined to reconsider our ruling on the sufficiency of the Estate's dependency
allegations apropos of the GWDS, since the Estate's defense of its pleadings reflected arguments
that should have been interposed earlier.
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On July 17, 2026, the day following the denial of the Estate's motion to reconsider, the
Estate filed a (fifth) motion for leave to amend the complaint in order to incorporate allegations of
the minors' dependency and heirship, pursuant to the GWDS. Dkt. 354. The Estate's motion to
amend has generated fervent opposition from Defendants, who filed a joint response brief on July
31, 2026. Dkt. 358. The Estate filed a reply brief on August 5, 2026. Dkt. 359. Thus, the Estate's
motion to amend is fully briefed and ripe for ruling. The parties' various motions in limine shall
remain pending to be resolved hereafter in due course.
DISCUSSION
The operative complaint asserts myriad theories of liability through which the Estate seeks
to recover damages based on Mr. Love's untimely death caused by Defendants. With the exception
of TruckMovers's vicarious liability as Mr. Burke's employer, the Estate's many standalone theories
of liability against Daimler and TruckMovers are largely underdeveloped and ultimately unavail-
ing. As for Mr. Burke (and his employer, TruckMovers), the existence of material factual disputes
also precludes a final resolution of these issues on summary judgment. Before turning to the par-
ties' various arguments relating to negligence, we shall turn to address the numerous challenges to
the parties' expert witnesses.
I. 	Motions to Exclude Expert Testimony
Because "only admissible evidence" aids a party's efforts to defeat summary judgment,
district courts may appropriately make "evidentiary rulings on proposed expert testimony in con-
junction with summary judgment orders." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704
(7th Cir. 2009). Federal Rule of Evidence 702, which governs the admissibility of expert testimony,
provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or 	education 	may 	testify 	in 	the 	form 	of 	an 	opinion 	or 	otherwise 	if: 	(a)
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the expert's scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue; (b) the testi-
mony is based on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
In short, trial judges must "ensure that any and all expert testimony or evidence 'is not only
relevant, but reliable.' " Manpower, Inc. v. Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir.
2013) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). "No
matter the nature of the witness's expertise, Rule 702 'establishes a standard of evidentiary relia-
bility,' 'requires a valid connection to the pertinent inquiry as a precondition to admissibility,' and
mandates that the testimony have 'a reliable basis in the knowledge and experience of the relevant
discipline.' " Id. (cleaned up) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49
(1999)). "The proponent of the expert bears the burden of demonstrating that the expert's testimony
would satisfy the Daubert standard." Lewis, 561 F.3d at 705.
In performing this "gatekeeper role" under Rule 702 and Daubert, we evaluate the follow-
ing three factors bearing on the admissibility of the expert testimony: (1) the proffered expert's
qualifications; (2) the reliability of the expert's methodology; and (3) the relevance of the expert's
testimony. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017). Once a pro-
posed expert's testimony satisfies the threshold relevance and reliability requirements, "the accu-
racy of the actual evidence is to be tested before the jury with the familiar tools of 'vigorous cross-
examination, presentation of contrary evidence, and careful instruction on the burden of proof.' "
Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Daubert, 509 U.S. at 596).
Here, we address the parties' various challenges to each other's expert witnesses only inso-
far as those expert witnesses have been proffered as such on summary judgment. (For this reason,
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Defendants' joint motions to exclude Stan Smith, dkt. 248, and Eric Wozniak, dkt. 251, shall re-
main pending, as neither witness's proposed expert testimony was relied upon by the Estate on
summary judgment.)
A. 	Eric Ball [Dkt. 253, 259]
The Estate identifies Texas law enforcement officer Eric Ball ("Officer Ball") as an expert
in commercial motor vehicle operations and compliance. Officer Ball holds a Master of Business
Administration from the University of Phoenix as well as nearly two decades of combined expe-
rience in state law enforcement, FMCSR enforcement, and motor carrier safety management. Ball
Report 2, dkt. 260-4. As a police officer since 2006, Officer Ball is well-versed in commercial
motor vehicle inspections and the requirements of the FMCSRs as well as the Commercial Vehicle
Safety Alliance ("CVSA"). Dkt. 260-1 at 2 (Officer Ball's CV). According to the Estate, Officer
Ball's investigative background also encompasses his "assisting crash reconstruction investigators
by evaluating the driver's actions prior to the collision, at the time of the crash, and during the post-
crash inspection process." Dkt. 288 at 8. Officer Ball has held a commercial driving learner's per-
mit in the past, meaning that he is authorized to operate a commercial vehicle so long as a fully
licensed commercial driver is present in the vehicle as well. Ball Dep. 140:18–141:4, dkt. 195-1.
In 2019, Officer Ball founded TruckEstate Consulting Group ("TruckEstate") and currently serves
as the CEO. Dkt. 260-1 at 1. Through TruckEstate, Officer Ball provides expert analysis relating
to civil truck litigation; educates and coaches clients on fleet safety, compliance, and business
development; and conducts mock inspections and fleet safety audits. Id.
In this litigation, the Estate seeks to call Officer Ball as an expert witness to opine that it
was several independent safety failures in the operation of the tractor that caused Mr. Love's death.
See dkt. 177 at 5; see generally Ball Report 13–15, dkt. 260-4. Officer Ball's Report advances
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several opinions regarding the specific cause of the fatal collision between Mr. Burke and Mr.
Love, i.e., his opinions that Mr. Burke's "impaired condition, refusal to submit to chemical testing,
and associated FMCS[Rs] violations" all contributed to Mr. Love's death. Ball Report 13, dkt. 260-
4. Officer Ball also opines that "the impaired operation of the vehicle, compounded by mechanical
and regulatory deficiencies, directly caused or substantially contributed to the fatal injuries sus-
tained by Mr. Love." Id. During his deposition, Officer Ball testified that the fatal collision could
have been avoided if Mr. Burke had completely stopped at the stop sign, as the law requires. Ball
Dep. 264:15–265:23, dkt. 195-1.
Defendants have moved to exclude the entirety of Officer Ball's proposed testimony on the
grounds that Officer Ball is unqualified to testify as an expert witness because (1) he is a partisan
advocate, rather than an unbiased expert; (2) he lacks the credentials to opine on matters of im-
pairment/toxicology, human factors, and accident reconstruction; and (3) he is not qualified to
testify about fault codes. Dkt. 253. Daimler similarly argues that Officer Ball is unqualified with
regard to fault codes; that his fault code opinions are not the product of reliable principles and
methodology; that his fault code opinions are not relevant; and that he is not qualified to interpret
the Federal Motor Carrier Safety Regulations. Dkt. 259. Defendants' Motions to Exclude Officer
Ball's Opinions are fully briefed and ripe for ruling.
1. 	Officer Ball's Neutrality as an Expert Witness
TruckMovers and Mr. Burke's contend that Officer Ball's expert opinion is not reliable due
to his allegedly overt bias in favor of the Estate. According to TruckMovers and Mr. Burke, Officer
Ball along with his consulting firm TruckEstates actively and openly solicit clients on behalf of
The Withspoon Law Group, which firm represents the Estate in this litigation. This commercial
relationship is evinced by TruckEstates's various social media posts directing viewers to contact
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The Witherspoon Law Group. Officer Ball's expert testimony is inadmissible, Defendants argue,
because Officer Ball has "crossed the line into an advocate for [the Estate]," rendering him a biased
spokesperson for the Estate's legal claims. Dkt. 254 at 5.
"Bias is a 'permissible and established basis of impeachment.' " Abernathy v. E. Illinois
R.R. Co., 940 F.3d 982, 992 (7th Cir. 2019) (quoting United States v. Abel, 469 U.S. 45, 50 (1984)).
As a "quintessentially appropriate topic for cross examination," bias does not constitute grounds
for the wholesale exclusion of a witness's testimony. Id. (quoting Bachenski v. Malnati, 11 F.3d
1371, 1375 (7th Cir. 1993)). Accordingly, challenges to Officer Ball's bias and motive for testifying
are "fair game" in terms of expected litigation strategy and Defendants' efforts to undermine Of-
ficer Ball's credibility as a witness. Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 762 (7th Cir.
2013). Insofar as Officer Ball's testimony exceeds the boundaries of his expertise and "transforms
the expert into an advocate," Defendants may interpose such objections at trial. Williams v. Mary
Diane Schwarz, P.A., No. 15 C 1691, 2018 WL 2463391, at *9 (N.D. Ill. June 1, 2018). However,
such concerns do not warrant the wholesale exclusion of Officer Ball's testimony. Thus, Officer
Ball's testimony shall not be excluded on grounds of bias.
2. 	Officer Ball's Qualifications & Methodology
TruckMovers and Mr. Burke also challenge Officer Ball's qualifications to opine on topics
relating to drug impairment and toxicology, human factors, and accident reconstruction, as Officer
Ball himself admitted during his deposition that he is not an expert in those fields. Ball Dep. 57:18–
20, 139:18–140:2, 256:18–21, dkt. 195-1. All Defendants contend that Officer Ball lacks the ex-
pertise to opine on matters related to fault codes and that, in any event, Officer Ball's fault code
opinions are not the product of a reliable methodology. Daimler also asserts that Officer Ball is not
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qualified to interpret the requirements of the FMCSRs. Because Defendants' arguments pertain to
both Officer Ball's qualifications as well as his methodology, we address these issues together.
Drug impairment & toxicology: Officer Ball's Report repeatedly references Mr. Burke's
"impaired condition" as a contributing factor to the accident. Ball Report 7, 13, dkt. 260-4. Ac-
cording to Officer Ball's Report, Mr. Burke's refusal to voluntarily submit to a post-accident drug
test rendered him legally unqualified to operate a commercial motor vehicle under federal regula-
tions as well as TruckMovers's company policy. Ball Report 7–9, dkt. 260-4. TruckMovers and
Mr. Burke contend that Officer Ball lacks the credentials to render any opinion about Mr. Burke's
alleged impairment and that, in any event, such opinion is not supported by a reliable methodology.
As a highway enforcement officer, Officer Ball has had extensive experience conducting
traffic stops, making arrests, and issuing citations to drivers and motor carriers for violations of
state statutes and federal regulations. Ball Aff. ¶ 15, dkt. 288-1.7 Defendants emphasize that Officer
Ball admitted during his deposition that he is neither a medical doctor nor a toxicologist; however,
such admissions are not necessarily dispositive of his expertise and/or whether his testimony sur-
passes the reliability threshold. Rather, "a court should consider a proposed expert's full range of
practical experience as well as academic or technical training when determining whether that ex-
pert is qualified to render an opinion in a given area." Smith v. Ford Motor Co., 215 F.3d 713, 718
(7th Cir. 2000).
Although Officer Ball's law enforcement experience might qualify him to testify as to mat-
ters of impairment detection, his opinion in this case that Mr. Burke's alleged impairment caused
7 Attached to the Estate's response in opposition to TruckMovers's Motion to Exclude the Opinions
of Eric Ball is Officer Ball's Affidavit, wherein he bolsters certain aspects of his credentials as well
as the methodology underlying the opinion he offers in this litigation. Although TruckMovers and
Mr. Burke refer to this exhibit as "a new, self-serving affidavit," they do not request that we ex-
clude it from our consideration. Dkt. 308 at 3.
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or contributed to Mr. Love's death is not supported by a reliable methodology that might otherwise
assist the trier of fact in assessing causation. Beyond noting that Mr. Burke's refusal to submit to a
post-accident drug test "was consistent with concealment behavior commonly observed in post-
accident drug use investigations," Officer Ball assumes the fact of Mr. Burke's impairment without
identifying how Mr. Burke's behavior at or around the time of the accident actually evince his
impairment or intoxication. Ball Report 13, dkt. 260-4.
Certain aspects of Officer Ball's deposition testimony further call into question the relia-
bility of his expert opinion. For example, Officer Ball agreed that a positive drug test is not con-
clusive proof of a person's intoxication; that no officer who responded to the scene detected signs
that Mr. Burke might be impaired; and that his review of the evidence did not reveal any obvious
indications of drug impairment. Ball Dep. 271:5–272:6, dkt. 195-1. Coupled with Officer Ball's
testimony that he knew neither the time nor the quantity of Mr. Burke's cocaine usage vis-à-vis the
accident, Officer Ball's opinions as to how Mr. Burke's drug impairment caused Mr. Love's death
are not the product of a reliable methodology and are therefore inadmissible. Id. at 207:3–15.
In short, Officer Ball opinion identifying Mr. Burke's drug impairment as a cause of the
fatal collision is not supported by reliable methodology, creating "an unacceptable analytical gap
between the data [Officer Ball] reviewed and the opinion he" seeks to proffer. Dahl v. Hofherr,
No. 3:14-cv-1734-MGG, 2016 WL 8668498, at *7 (N.D. Ind. Nov. 18, 2016). His opinion that Mr.
Burke's drug impairment caused or contributed to Mr. Love's death shall be excluded accordingly.
Human Factors & Accident Reconstruction: Officer Ball has opined that Mr. Burke's
failure to completely stop at the white stop sign bar contributed to the accident. Ball Dep. 265:2–
23, dkt. 195-1. Officer Ball testified at his deposition that "the driver should have stopped, looked
both ways, cleared the intersection, and then made a turn." Id. As with matters of drug impairment
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and toxicology, Officer Ball admitted during his deposition that he is not an expert in human factors
or accident reconstruction. Id. at 139:18–140:2, 149:3–7. Officer Ball also disclosed during his
deposition that he "took the [tractor's] blind spots into consideration," though he did not model the
tractor's blind spots with regard to the "exact" lefthand turn taken by Mr. Burke in this case. Id. at
229:16–24.
TruckMovers and Mr. Burke argue that Officer Ball's opinion that Mr. Burke's failure to
stop caused the accident is inadmissible because Officer Ball lacks expertise in accident recon-
struction and/or human factors. Although Officer Ball potentially could testify to how Mr. Burke's
driving deviated from the standard of care of a safe truck driver, the Estate does not defend Officer
Ball's testimony on this basis. Rather, the Estate responds by reiterating that Officer Ball has "rou-
tinely work[ed] alongside accident reconstructionists" and has "assist[ed] crash reconstruction in-
vestigators by evaluating the driver's actions prior to the collision, at the time of the crash, and
during the post-crash inspection process in accordance with" the FMCSRs. Dkt. 288 at 8, 24, 26;
Ball Aff. ¶ 7, dkt. 288-1. The Estate also adds that Officer Ball's continuing professional training
entails coursework in crash investigation and reconstruction. Dkt. 288 at 9; Ball Aff. ¶ 8, dkt. 288-
1.
On this record, we cannot agree with the Estate that Officer Ball's prior experience "work-
ing alongside" accident reconstructionists or assisting in crash reconstruction investigations is a
sufficient basis on which to render him an expert in accident reconstruction. That Officer Ball's
professional development courses have included some coverage of accident reconstruction simi-
larly does not suffice to qualify him as an expert in the field. Indeed, Officer Ball does not hold
himself out as an accident reconstruction expert. Ball Dep. 139:18–20, dkt. 195-1. As such, we fail
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to see any credentials Officer Ball possesses that qualify him to opine that Mr. Burke's failure to
heed the posted stop sign caused or contributed to the collision with Mr. Love.
Assuming Officer Ball did possess a sufficient level of expertise as an accident reconstruc-
tionist, neither his report nor his deposition discloses a reliable methodology for his conclusion
that the incident "wouldn't have happened," if Mr. Burke had stopped fully at the stop sign. See
Bensenberg v. FCA US LLC, 31 F.4th 529, 539 n.4 (7th Cir. 2022) ("[T]he court could rightly
assume [an expert witness's] qualifications but find his opinion inadmissible on an unrelated
ground."). It is well established that "[a]n expert who supplies nothing but a bottom line supplies
nothing of value to the judicial process." Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d
416, 419 (7th Cir. 2005). Here, Officer Ball's opinion that Mr. Love's death could have been pre-
vented if Mr. Burke had fully stopped at the stop sign does not bear sufficient indicia of reliability.
To the contrary, Officer Ball testified that he did not recreate any models of the scene to vet his
conclusions, and, although he "took the [tractor's] blind spots into consideration," Officer Ball
admitted that he could not identify whether or when Mr. Burke should have spotted Mr. Love as
he approached the intersection. Ball Dep. 229:16–230:9, dkt. 195-1; e.g., id. at 170:17–20. "While
absence of testing represents only one factor in the Daubert analysis, when combined with the lack
of other supporting data or peer review, it may weigh against a finding of reliability." Kirk v. Clark
Equip. Co., 991 F.3d 865, 877 (7th Cir. 2021). The Estate has failed to demonstrate that Officer
Ball's accident reconstruction/human factors opinions are supported by a reliable methodology.
Accordingly, we hold that the Estate, as the proponent of the expert, has failed to carry its burden
to establish that Office Ball possesses the necessary expertise and that he utilized sufficiently reli-
able methods to render opinions admissible as expert testimony, pursuant to Rule 702 of the Fed-
eral Rules of Evidence. See Lewis, 561 F.3d at 705.
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Fault Codes: Officer Ball's Report includes his opinion that the tractor's "out-of-service
mechanical condition" was a direct cause or material contributing factor to Mr. Love's death. Ball
Report 15, dkt. 260-4. He also opines that the tractor suffered from "repeated brake signal, ABS,
ESC, and voltage-related errors," which rendered the tractor "an unsafe commercial motor vehi-
cle." Id. at 6. Officer Ball's Report states that operating a commercial vehicle bearing "active brake,
stability-control, or aftertreatment faults . . . places every nearby road user at risk" because such
"defects directly impact stopping distance, steering response, and driver control . . . ." Id.
Defendants challenge the admissibility of Officer Ball's fault code testimony on the
grounds of his insufficient qualifications and methodology as well as the relevance of such testi-
mony. Officer Ball's deposition testimony revealed that, in his experience as a law enforcement
officer, he has issued citations to commercial truck drivers for fault code related violations and has
"put trucks out of service." Ball Dep. 29:14–21, dkt. 195-1. Officer Ball has observed other me-
chanics pull computer data from commercial vehicles, but he has no prior experience doing so
himself. Id. at 179:22–180:25. During his deposition, Officer Ball also stated that he did not inspect
the tractor "from an engineer standpoint," as he himself is not an engineer. Id. at 202:22–203:2. He
described his role in this litigation as "FMCSA compliance, not engineering," despite his opinion
that a mechanical and/or electrical condition of the tractor somehow "[p]layed a factor" in the
incident. Id. at 242:6–244:8.
That Officer Ball did not personally collect certain data from the tractor in this case does
not demonstrate his lack of expertise. To the contrary, "it is common in technical fields for an
expert to base an opinion in part on what a different expert believes on the basis of expert
knowledge not possessed by the first expert . . . ." Dura Auto. Sys. of Indiana, Inc. v. CTS Corp.,
285 F.3d 609, 613 (7th Cir. 2002). However, given that Officer Ball repeatedly stated during his
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deposition that he is not an expert in engineering or a similarly relevant field, we have little trouble
finding that he lacks the necessary expertise to offer an opinion as to whether or how the tractor's
fault codes affected the operation of the tractor. Ball Dep. 200:11-17, 247:2-12, dkt. 195-1.
Even if Officer Ball were so qualified, his fault-code opinions would remain inadmissible
due to the lack of a reliable methodology to support his conclusions. "[A] proposed expert must
bridge the analytical gap by showing a rational connection between the data and the expert's con-
tested conclusion." Downing v. Abbot Lab'ys, 48 F.4th 793, 809 (7th Cir. 2022). Here, such rational
connection is absent from Officer Ball's proposed testimony. Officer Ball testified that he did not
personally inspect the tractor in this case, nor did his review of case materials reveal any forensic
evidence to support a theory that the tractor suffered from a brake failure defect. Ball Dep. 170:10–
16, 172:21–22, dkt. 195-1. Officer Ball similarly admitted that there is no evidence in this case
that a brake system failure, an ABS fault lamp, or an ESC or traction control malfunction existed
at the time of the accident. Id. at 203:4–15. The tractor did register a single active fault code (SPN
520355), though Officer Ball could not identify "the exact [underlying] condition" since he is "not
an engineer." Id. at 200:11–17. He testified that the presence of a single active fault code, the
underlying cause of which he admittedly could neither identify nor describe, "[p]layed a factor" in
the incident and demonstrated the existence of "unanswered questions" as to what factors contrib-
uted to the accident. Id. at 243:23–245:5. Expert testimony "is admissible only to the extent that it
is reasoned, uses the methods of the discipline, and is founded on data." Naeem v. McKesson Drug
Co., 444 F.3d 593, 608 (7th Cir. 2006). Officer Ball's own deposition testimony reveals the absence
of such a reasoned methodology. The Estate has thus failed to establish that Officer Ball's fault
code opinions are reasoned and otherwise premised upon accepted methods and data.
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A related aspect of Officer Ball's fault code testimony need not be excluded, however. Spe-
cifically, Officer Ball opined that existence of past and present fault codes—irrespective of the
actual defects they might indicate—rendered the tractor "out-of-service" within the meaning of
federal regulations: If the tractor had been taken out of service, as federal regulations apparently
require, "Mr. Burke would not have been present in th[e] neighborhood" where the accident oc-
curred. Ball Dep. 246:21–247:8, dkt. 195-1. Daimler contends that such opinion testimony by Of-
ficer Ball is legally insufficient to establish causation, thus rendering Officer Ball's proposed tes-
timony both irrelevant and inadmissible. In our view, Daimler's challenges relate primarily to the
persuasiveness of Officer Ball's testimony, rather than its admissibility. Smith, 215 F.3d at 718–19
("The soundness of the factual underpinnings of the expert's analysis and the correctness of the
expert's conclusions based on that analysis are factual matters to be determined by the trier of fact.
. . . The question of whether the expert is credible or whether his or her theories are correct given
the circumstances of a particular case is a factual one that is left for the jury to determine after
opposing counsel has been provided the opportunity to cross-examine the expert regarding his
conclusions and the facts on which they are based."). Accordingly, this aspect of Officer Ball's
proposed expert testimony shall not be excluded from our summary judgment analysis.
The Federal Motor Carrier Safety Regulations: Officer Ball's Report contains several
opinions concerning TruckMovers and Daimler's duties under the FMCSRs. Namely, Officer Ball
stated that "Daimler, TruckMovers, and the driver each acted within the scope of regulated com-
merce and shared responsibility for ensuring the safe condition and lawful operation of this com-
mercial motor vehicle." Ball Report 14, dkt. 260-4. He concluded that TruckMovers and Daimler
violated the FMCSRs, which impose nondelegable duties upon motor carriers to oversee their
drivers' compliance therewith. Id. at 15.
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Daimler has moved to exclude these portions of Officer Ball's proposed testimony, arguing
that he is not qualified to interpret and opine as to Daimler's compliance (or noncompliance) with
the FMCSRs. More specifically, Daimler takes issue with Officer Burke's various assertions that
Daimler was subject to and failed to abide by the requirements imposed by the FMCSRs.
"[E]xpert testimony as to legal conclusions that will determine the outcome of the case is
inadmissible." Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir.
2003). "The meaning of federal regulations is not a question of fact, to be resolved by the jury after
a battle of experts. It is a question of law, to be resolved by the court." Bammerlin v. Navistar Int'l
Transp. Corp., 30 F.3d 898, 900 (7th Cir. 1994), abrogated on other grounds by Kaiser v. Johnson
& Johnson, 947 F.3d 996 (7th Cir. 2020). Thus, to the extent that Officer Ball's proposed testimony
seeks to interpret and apply the FMCSRs to Daimler's conduct in this case, such testimony consti-
tutes impermissible legal conclusions that are reserved for the court and the jury. See, e.g., Ku-
charski v. Orbis Corp., No. 14-cv-05574, 2017 WL 1806581, at *6 (N.D. Ill. May 5, 2017) (ex-
cluding proposed expert's opinion concerning applicability of and the defendant's compliance with
the FMCSRs); Gruver v. Montesa Express, Inc., No. 1:21-cv-1210, 2024 WL 1913113, at *7 (C.D.
Ill. May 1, 2024) (excluding expert testimony as to whether a particular defendant is a motor carrier
within the meaning of the FMCSRs). For these reasons, Daimler's motion to exclude Officer Ball's
opinions regarding the application of the FMCSRs to its conduct is granted.
In sum, TruckMovers's motion to exclude Officer Ball's proposed testimony is denied as
to Officer Ball's neutrality and granted in all other respects. Dkt. 253. Daimler's motion is denied
as to the relevance of Officer Ball's opinion about the tractor's out-of-service criteria and granted
in all other respects. Dkt. 259.
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B. 	Thomas Corsi [Dkt. 249, 257]
The Estate also seeks to introduce the expert testimony of Thomas M. Corsi, Ph.D ("Dr.
Corsi"), which holds him out to be an expert in interstate logistics and supply chain management;
motor carrier safety management policies and practices, and broker/forwarder/third party logistics
provider and carrier responsibility in motor carrier selection and retention. Corsi Report 1, dkt.
172-9. Dr. Corsi's professional experience is extensive: A non-exhaustive review of his vita reveals
that, since 1976, he has served as Professor of Logistics and Transportation at the University of
Maryland. He also serves as an associate editor of the Logistics and Transportation Review as well
as senior editor of the Journal of Business Logistics. Id. Dr. Corsi has authored more than 125
articles on logistics and transportation and has offered his consulting services to numerous organ-
izations, including the Interstate Commerce Commission and the Federal Motor Carrier Safety
Administration. Id.
Dr. Corsi's Report identifies six contributing factors to Mr. Love's death: (1) TruckMovers
"maintained an ongoing pattern of deficient safety performance," indicating a higher likelihood of
TruckMovers's drivers being involved in a fatal collision; (2) TruckMovers failed to follow the
FMCSRs when it rehired Mr. Burke, despite Mr. Burke's driving record reflecting multiple infrac-
tions; (3) TruckMovers's "deficient hours-of-service monitoring and drug-and-alcohol compliance
controls" reflect a "lack of functional compliance systems to detect substance abuse"; (4) Daimler
and TruckMovers failed to ensure the tractor's mechanical safety; (5) Daimler maintained a service
relationship with TruckMovers despite TruckMovers's poor safety performance record; and (6)
Daimler failed to enforce compliance with the FMCSRs despite retaining the operational control
necessary to do so. Corsi Report 17–18, dkt. 250-5. These "failures," Dr. Corsi opines, "[e]ach
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represented a critical break from established safety management standards within the commercial
transportation industry." Id. at 18.
In opposing summary judgment, the Estate relies upon Dr. Corsi's Report, which, according
to the Estate, "documents a profound, multi-layered collapse of safety systems at TruckMovers."
Dkt. 177 at 6. Additionally, the Estate cites Dr. Corsi's conclusions that Daimler retained opera-
tional control over the transport of the tractor by way of various provisions in the MSA and Service
Specification. Dkt. 172 at 6. Defendants challenge Dr. Corsi's proposed expert testimony in nu-
merous respects, many of which relate to statements that Dr. Corsi made during his deposition,
rather than formal conclusions found within his report. TruckMovers and Mr. Burke have jointly
moved to preclude Dr. Corsi from testifying on matters of pedestrian behavior, fault codes, and
TruckMovers's safety ratings, among other things, arguing that Dr. Corsi is not an expert in the
relevant fields and did not utilize reliable methodology to reach his opinions. Dkt. 249. Daimler
has also moved to exclude Dr. Corsi's proposed testimony concerning fault codes, the condition of
the tractor, and causation on similar grounds. We address Defendants' arguments below.
Drug Impairment, Pedestrian Behavior, and Yielding the Right-of-way: During his
deposition, Dr. Corsi offered various opinions to which TruckMovers and Mr. Burke now object.
Some examples include:
• 	Dr. Corsi claimed that he is "only offering an opinion that [Mr. Burke] was under the
influence of cocaine" as established by Mr. Burke's positive drug test, though he also
repeatedly referred to Mr. Burke as having been "high on cocaine." Corsi Dep. 96:11,
99:7–8, 105:20–21, dkt. 258-1 at 24, 25, 27.
• 	Dr. Corsi opined based on his "personal understanding of how pedestrians operate in
today's environment" that "pedestrians on headphones [do not] pay any attention to
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what's going on." Id. at 122:16–23, dkt. 258-1 at 31; e.g., id. at 105:11–106:20, dkt.
258-1 at 27.
• 	Although Dr. Corsi conceded his lack of familiarity with Indiana's traffic regulations,
he testified, "I was taught . . . when I was 8 years old by a lawyer from across the street
when he told me that pedestrians always have the right-of-way in crosswalks, so I don't
need to cite any specific legislation or law." Id. at 107:6–25, dkt. 258-1 at 27.
It is not disputed that Dr. Corsi is highly credentialed in the areas of logistics and transpor-
tation. TruckMovers and Mr. Burke argue that Dr. Corsi's expertise in those fields does not, how-
ever, translate to matters relating to Mr. Burke's alleged impairment, pedestrian behavior, and traf-
fic regulations. Dkt. 249 at 4–5, 8–11. Given that Dr. Corsi's Report contains no mention of pedes-
trian behavior and/or local traffic regulations, it is not entirely clear whether Dr. Corsi intends to
offer such opinion testimony at trial. See Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 641–42 (7th
Cir. 2008). In any event, "[t]he question we must ask is not whether an expert witness is qualified
in general, but whether his qualifications provide a foundation for him to answer a specific ques-
tion." Gayton v. McCoy, 593 F.3d 610, 617 (7th Cir. 2010) (citation modified). Here, the Estate
highlights Dr. Corsi's extensive credentials in logistics and transportation but fails to explain how
such expertise qualifies him to discuss matters of drug impairment, pedestrian behavior (or a sim-
ilarly relevant field), and/or traffic laws.
"Talking off the cuff—deploying neither data nor analysis—is not an acceptable method-
ology." Naeem, 444 F.3d at 608 (citation modified). The above-quoted portions of Dr. Corsi's dep-
osition make clear that his challenged opinions are not products of his expertise but rather his
"[t]alking off the cuff." Id. Moreover, Dr. Corsi repeatedly disclaimed any representation that he
is a toxicologist, id. at 97:9, 98:12, 99:1–2, 125:15–20, dkt. 258-1 at 25, 32. He also noted that he
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is not an accident reconstructionist and stated, "[Y]ou can't put me on the witness stand to be in
the position of making a determination" as to the allocation of fault between the pedestrian and the
driver. Id. at 122:2–20, dkt. 258-1 at 31. Insofar as Dr. Corsi seeks to testify as to any opinions
which derive solely from his personal experience, rather than his expertise, we find exclusion to
be necessary.
Fault Codes & the Impact of the NOx Sensor Warning Light: Dr. Corsi's Report in-
cludes his opinion that Daimler and TruckMovers failed to "ensure the mechanical safety of the
vehicle being transported," as established by a subsequent "diagnostic report reveal[ing] a mal-
function indicator light and multiple recorded safety faults." Corsi Report 18, dkt. 250-5. Accord-
ing to Dr. Corsi, "[t]he release of a vehicle with known active defects, without verification of
mechanical integrity, created unsafe conditions that increased the likelihood of a catastrophic
event." Id. (All parties apparently do agree that a malfunction indicator lamp was illuminated on
the tractor at the time of the accident.) During his deposition, Dr. Corsi explained that in his opinion
Mr. Burke "should not have proceeded . . . to drive the tractor away with the [malfunction indicator
lamp] on." Corsi Dep. 88:11–15, dkt. 258-1 at 22. Dr. Corsi readily conceded, however, that he is
not an engineer and that he is unfamiliar with the underlying mechanical causes. Id. at 33:4–6,
86:20–21, 92:14–25, dkt. 258-1 at 9, 22, 23. Thus, his opinion that Mr. Burke should not have
operated the tractor is apparently not based on any code, standard, or regulation but rather his
"experience in driving [his] own car." Id. at 94:10–95:5, dkt. 258-1 at 24; e.g., id. at 87:5–14, dkt.
258-1 at 22.
Given that Dr. Corsi readily conceded that his fault-code related opinions are founded on
his personal experience in driving a car, we fail to see any basis for regarding such opinions as the
product of his expertise, never mind the result of the application of a reliable methodology. The
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Estate attempts to defend Dr. Corsi's opinion testimony by harkening back to his expertise of the
FMCSRs and the methodology he indisputably employed in assessing Defendants' adherence
thereto. See dkt. 290 at 7–10; dkt. 291 at 6–9. To the extent that Dr. Corsi's general qualifications
and methodology are unchallenged by Defendants, the Estate's response stops short of addressing
how Dr. Corsi's fault-code related opinion flows from his expertise. "Unless the expertise adds
something, the expert at best is offering a gratuitous opinion . . . ." United States v. Hall, 93 F.3d
1337, 1343 (7th Cir. 1996). Here, Dr. Corsi's fault-code opinions lack a discernable connection to
his otherwise uncontested expertise in transportation and logistics and thus amount to inadmissible
"gratuitous" opinions.
Contract Interpretation: A significant portion of Dr. Corsi's Report details his interpreta-
tion of the MSA and Service Specification as evidence of Daimler's operational control over the
transportation of the tractor. Corsi Report 14–18, dkt. 250-5. Daimler challenges such testimony
as unreliable since Dr. Corsi allegedly misquoted the text of the operative agreements. Dkt. 257 at
7. To the extent that Dr. Corsi's conclusions are drawn from a plain misreading of the MSA and/or
Service Specification, such issues go to the credibility of Dr. Corsi's testimony, rather than its ad-
missibility. See Smith, 215 F.3d at 718–19.
That said, "[a]rgument about the meaning of . . . contracts . . . belongs in briefs, not in
'expert' reports." RLJCS Enters., Inc. v. Pro. Ben. Tr. Multiple Emp. Welfare Ben. Plan & Tr., 487
F.3d 494, 498 (7th Cir. 2007). "The question of interpretation of the contract is for the jury and the
question of legal effect is for the judge. In neither case do we permit expert testimony." Loeb v.
Hammond, 407 F.2d 779, 781 (7th Cir. 1969). Thus, to the extent that Dr. Corsi's observations
about the meaning of the MSA and/or Service Specification do not warrant exclusion on the
grounds raised by Daimler, their usefulness and ultimate relevance appear tenuous, at best.
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Remaining Portions of Dr. Corsi's Proposed Testimony: TruckMovers and Mr. Burke's
remaining challenges to Dr. Corsi's proposed expert testimony relate to his reliance upon Saf-
erWatch data to form his opinions; his review of (disputed) evidence of hours-of-service violations;
his view that Mr. Burke failed to complete a pre-trip inspection; and his opinions about Mr. Burke's
qualifications and TruckMovers's hiring practices.
Regarding Dr. Corsi's reliance upon data from a third-party resource, SaferWatch, Truck-
Movers and Mr. Burke contend that Dr. Corsi "failed to provide any of the data in an admissible
format . . . ." Dkt. 249 at 11. Under Federal Rule of Evidence 703, "[i]f experts in the particular
field would reasonably rely on those kinds of facts or data in forming an opinion on the subject,
they need not be admissible for the opinion to be admitted." Fed. R. Evid. 703. To that end, it is
unclear to us how Dr. Corsi's failure to provide data "in an admissible format" renders his testimony
inadmissible. Dkt. 249 at 11. At bottom, TruckMovers and Mr. Burke's objections to the underlying
factual bases of Dr. Corsi's opinions are subjects for cross-examination, rather than grounds to
exclude his testimony entirely. See Smith, 215 F.3d at 718–19.
C. 	Michael Suls [Dkt. 255]
Dr. Suls is the Medical Review Officer who reviewed the results of Mr. Burke's post-acci-
dent drug test. The Estate has designated Dr. Suls as a non-retained expert witness who will testify
about the results of Mr. Burke's post-accident drug test as well as the general side effects of cocaine
usage. During his deposition, Dr. Suls explained the limitations of his analysis, noting that the drug
test itself did not reveal the precise time or quantity of Mr. Burke's cocaine usage. Suls Dep. 24:1–
9, dkt. 256-2 at 3. Based on Dr. Suls's unchallenged medical expertise, he explained the common
side effects of cocaine generally but did not opine as to Mr. Burke specifically, since he lacked
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sufficient information about Mr. Burke's cocaine consumption to render such opinions. See id. at
28:1–17, dkt. 285-1 at 15.
Defendants jointly move to exclude Dr. Suls's proposed testimony as unhelpful to the jury
and as unreliable. (Notably, TruckMovers and Mr. Burke challenge portions of Dr. Suls's testi-
mony, which they themselves have cited and relied upon in support of their motion for summary
judgment. Dkt. 142 at 5–6; dkt. 256 at 3–4.) None of Defendants' arguments are availing, however.
Dr. Suls's expertise in toxicology is unrefuted. Defendants nonetheless argue that his testi-
mony would not help the trier of fact because Mr. Burke's post-accident drug test "is not evidence
that [he] was impaired at the time of the [i]ncident, and whether [Mr.] Burke was impaired is not
a fact issue for a jury to decide." Dkt. 256 at 3. Defendants also contend that Dr. Suls should be
precluded from opining whether Mr. Burke was impaired at the time of the accident because any
such testimony would amount to impermissible speculation, rather than a sound expert opinion.
Whether and to what extent Mr. Burke's alleged cocaine usage impaired his ability to op-
erate a commercial motor vehicle and proximately caused the accident are central to the Estate's
theory of the case. Dr. Suls's proposed testimony bears directly on this dispute. As a toxicologist
and medical review officer, Dr. Suls is fully qualified to testify about how cocaine impacts the
human body. True, as Defendants emphasize, Dr. Suls candidly conceded during his deposition
that he could not render a conclusive opinion as to whether, when, or to what degree Mr. Burke
experienced the intoxicating effects of cocaine. See Suls Dep. 24:1–25:9, dkt. 142-10 at 4–5. The
admitted limitations of Dr. Suls's testimony, in our view, bear on its persuasive value, rather than
its admissibility. Contrary to Defendants' assertion, "[t]he degree of intoxication is a question of
fact to be decided by the jury." Dziepak v. State, 483 N.E.2d 449, 453 (Ind. 1985). See also Clinton
G. Cauldwell, Inc. v. Patterson, 133 Ind. App. 138, 169–70 (1961) (Where there is conflicting
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evidence of a person's intoxication, "it is the jury's duty and not the duty of the court to weigh the
evidence to determine which evidence is acceptable.); accord Shores v. Dupps Co., Inc., No. 4:18-
cv-04147-JEH, 2020 WL 6302362, at *7 (C.D. Ill. Sept. 14, 2020) (Illinois law). The inconclusive
nature of Dr. Suls's testimony may indeed require the jury to draw (reasonable) inferences in order
to resolve the disputed status of Mr. Burke's impairment. In this case, Dr. Suls's testimony will
assist the trier of fact in assessing whether and/or how Mr. Burke's deviations from the standard of
care proximately caused Mr. Love's death. For these reasons, Defendants' joint motion to exclude
Dr. Suls's shall be denied.
D. 	The Estate's Motions to Exclude Defendants' Expert Witnesses [Dkt. 266–68,
271] & Defendants' Motions to Strike [Dkt. 272, 275]
On January 15, 2026, the Magistrate Judge extended the parties' deadline for filing motions
to limit or preclude expert testimony through February 20, 2026. Dkt. 232. Notwithstanding that
clear and unequivocal court-imposed deadline, the Estate belatedly filed three motions to exclude
on February 23, 2026, dkt. 266–68, as well as a fourth motion to exclude on February 24, 2026,
dkt. 271. The Estate's untimely submissions prompted Defendants' ensuing motions to strike,
which were filed on February 25, 2026. Dkt. 272, 275. On February 26, 2026—that is, after the
Estate submitted its untimely motions and after Defendants responded with motions to strike—the
Estate sought leave to file its various motions to exclude, asserting that the operative case man-
agement plan permitted the parties to file their expert motions "no later than 120 days prior to"
trial, which, according to the Estate's calculations, meant that the deadline was February 23, 2026.
Dkt. 277 at 1. On March 12, 2026, the Magistrate Judge soundly rejected the Estate's contentions
as "misplaced" and denied the Estate's motion for leave as such. Dkt. 301. The Estate's untimely
motions to exclude and Defendants' motions to strike remain pending. Dkt. 266–68, 271–72, 275.
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The disposition of Defendants' motions to strike is not difficult. The deadline to challenge
Defendants' expert witnesses was February 20, 2026. The Estate's theory as to the timeliness of its
motions is not persuasive, particularly where, as here, the Magistrate Judge soundly rejected such
argumentation as "misplaced." Defendants' Joint Motion to Strike, dkt. 272, and Daimler's Motion
to Strike, dkt. 275, shall be granted, and the Estate's Motions to Exclude, dkt. 266–68, 271, shall
be stricken accordingly.
II. 	Negligence
"The tort of negligence consists of three elements: (1) a duty to the plaintiff by the defend-
ant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused
by that breach." Topp v. Leffers, 838 N.E.2d 1027, 1032 (Ind. Ct. App. 2005). "In negligence cases,
summary judgment is rarely appropriate," since the legal issues "are particularly fact sensitive and
are governed by a standard of the objective reasonable person—one best applied by a jury after
hearing all of the evidence." Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004) (citation modified).
"Where a reliable videotape clearly captures an event in dispute and blatantly contradicts one par-
ty's version of the event so that no reasonable jury could credit that party's story, a court should
not adopt that party's version of the facts for the purpose of ruling on a motion for summary judg-
ment." McCottrell v. White, 933 F.3d 651, 661 (7th Cir. 2019) (citing Scott v. Harris, 550 U.S. 372,
380–81 (2007)).
In this case, the Estate contends that Mr. Burke, whose post-accident drug test was positive
for cocaine, negligently operated a multi-axle tractor—which itself allegedly suffered from several
mechanical failures—in a residential district by rolling through a stop sign and entering an inter-
section to execute a left turn without maintaining a proper lookout for potential hazards, including
pedestrians. Dkt. 177 at 5–6; dkt. 172 at 1. Mr. Burke's lack of awareness contributed to the
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accident, according to the Estate, because he failed to appreciate that Mr. Love had made contact
with the tractor and instead continued to make an unsafe left turn that crushed Mr. Love beneath
the rear wheels. Id. Altogether, the Estate argues, Mr. Burke's conduct fell short of the standards
of care imposed upon him by federal motor carrier regulations as well as Indiana law. Id.
Defendants rejoin that the surveillance footage conclusively disproves the Estate's argu-
ments concerning Mr. Burke's impairment and the tractor's alleged mechanical issues; and proves
that Mr. Love himself caused the accident because he, who was under the influence of alcohol and
marijuana, stepped onto the roadway while actively engaged with his cell phone and walked di-
rectly into the tractor's rear wheels. Dkt. 142 at 2; dkt. 148 at 2. In moving for summary judgment,
TruckMovers and Mr. Burke do not challenge duty and breach. Daimler, however, contends that it
owed no duty to Mr. Love and thus cannot be held liable either vicariously or directly. All Defend-
ants also argue that none caused Mr. Love's death; or, in the alternative, that no reasonable jury
could find Mr. Love less than fifty percent responsible, thereby precluding the Estate's recovery
under Indiana's Comparative Fault Act. Defendants also assert that the Estate has adduced no evi-
dence that minors C.W., K.L., and T.L. were Mr. Love's dependent children, as is required to re-
cover under Indiana's General Wrongful Death Statute; and that the Estate is precluded by Indiana
law from recovering an award of damages for pain and suffering, mental anguish, and physical
impairment.
Below, we first address Daimler's arguments with regard to its legal duty before turning to
the parties' remaining contentions about causation, contributory fault, and recovery under the Gen-
eral Wrongful Death Statute.
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A. 	Daimler's Duty
The Estate seeks to hold Daimler vicariously and directly liable for Mr. Love's death. Daim-
ler argues that: (1) it cannot be held legally responsible for the conduct of its wholly owned sub-
sidiary, DTR; (2) Mr. Burke was an independent contractor for whom Daimler is not vicariously
liable; (3) the FMCSRs do not supply a basis on which Daimler can be held liable for Mr. Burke's
conduct; (4) the Estate has failed to adduce evidence sufficient to establish a joint enterprise among
Defendants; and (5) the Estate has adduced no evidence of mechanical fault on the basis of which
to hold Daimler directly liable.
At the outset, we note that the Estate's surreply brief significantly supplements and refines
its legal arguments against Daimler in a manner that is incompatible with our summary judgment
procedure. For example, Daimler's opening brief explicitly argued that no exception to Indiana's
non-liability rule for independent contractors applies to the facts at bar and that the record evidence
belies the Estate's joint enterprise theory. Dkt. 148 at 12–14, 19. The Estate's response brief does
not address any of these arguments, meaning that the Estate has effectively conceded these points.
Ratcliff v. TranStewart Trucking Inc., 684 F. Supp. 3d 845, 866 (S.D. Ind. 2023) (treating plaintiffs'
failure to respond to arguments concerning vicarious liability under common law and the FMCSR
as waiver); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an
argument . . . results in waiver," and "silence leaves us to conclude" a concession.). To the extent
that the Estate's surreply brief articulates responsive arguments that could (and should) have been
included in its initial response brief, such belated arguments are incompatible with our summary
judgment rules and we therefore decline to consider them.
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1. 	Daimler's Responsibility for DTR's Conduct
Daimler Truck North America, whom we refer to as "Daimler" throughout this order, is the
only Daimler-entity named as a defendant in this litigation. It is undisputed that Daimler purchased
the tractor on September 6, 2023, and that Daimler owned the tractor at the time of the accident.
Dkt. 150-3 at 2. The MSA and the Service Specification reveal that Daimler Truck Remarketing
Corporation (Daimler's wholly owned subsidiary) engaged TruckMovers to transport the tractor.
See generally MSA 1, dkt. 150-6 at 2; Service Specification 1, dkt. 172-3. Notably, the Estate did
attempt to add DTR to this litigation in September 2025 via its third motion for leave to amend,
which the Magistrate Judge denied on October 30, 2025, in part because the expiration of the
statute of limitations period rendered the Estate's proposed amendments futile. Dkt. 138 at 3–4.
Notwithstanding DTR's absence from this litigation, the Estate seeks to hold Daimler liable
on the grounds that Daimler allegedly retained "operational control" over the transportation of the
tractor. Dkt. 172 at 2. The Estate also asserts that Daimler was negligent in its carrier oversight and
that Daimler improperly entrusted a vehicle "with known safety-critical defects." Id. Daimler con-
tends that the Estate's position is misplaced because Daimler cannot be held liable for the conduct
of DTR, its wholly owned subsidiary.
A "time-honored principle" of American corporate law holds "that a parent corporation . . .
is not liable for the acts of its subsidiaries." Apogee Coal Co. v. Off. of Workers' Comp. Programs,
113 F.4th 751, 760 (7th Cir. 2024) (quoting United States v. Bestfoods, 524 U.S. 51, 61 (1998)).
Under Indiana law, a parent corporation is generally not liable for the acts of its subsidiaries be-
cause they are "separate legal entities." McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1020 (Ind.
1995).
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A straightforward application of these well-established legal principles leads to the conclu-
sion that Daimler cannot be held liable for DTR's conduct. The Estate, for its part, offers no re-
sponsive argument to the contrary: Indeed, the Estate's response brief acknowledges neither DTR's
absence from this litigation nor the fact that Daimler and DTR are distinct entities. See generally
dkt. 172. To the contrary, the Estate repeatedly cites the MSA and Service Specification as if DTR's
participation in the driveaway-towaway program equally evinces the myriad ways in which Daim-
ler retained and exercised significant control and oversight over the transportation arrangements
with TruckMovers. The Estate's contentions do not survive scrutiny because DTR—not Daimler—
is the only Daimler party to the MSA and Service Specification. Given that Daimler was indisput-
ably not a party to either the MSA or the Service Specification, the Estate's theory that Daimler's
alleged contractual relationship with TruckMovers establishes Daimler's extensive involvement in
the underlying facts necessarily falls flat for lack of evidentiary support. See dkt. 172 at 11–12.
Although we are inclined to conclude that the Estate's failure in identifying the correct party is
dispositive of the question of Daimler's liability in this case, we shall, in the interest of complete-
ness, address the arguments as raised and fully briefed by the parties.
2. 	Daimler's Vicarious Liability under Indiana Common Law
Vicarious liability allows courts to "hold a party legally responsible for the negligence of
another, not because the party did anything wrong but rather because of the party's relationship to
the wrongdoer." Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999). "A principal who
controls or has the right to control the physical conduct of his agent in the performance of a service
is a master, upon whom liability for the torts of the agent may be imposed." Detrick v. Midwest
Pipe & Steel, Inc., 598 N.E.2d 1074, 1077 (Ind. Ct. App. 1992). "Respondeat superior is the doc-
trine most often associated with vicarious liability in the tort context. It relies on an employer-
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employee or principal-agent relationship and generally does not apply to independent contractors."
Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1068 (Ind. 2022).
"Whether one employed to perform a task acts as an independent contractor or a servant is
generally a question of fact," though "where the relevant facts are undisputed, the court will deter-
mine whether the employer has the right to control the alleged employee . . . ." Detrick, 598 N.E.2d
at 1077. In order to determine whether vicarious liability is available pursuant to an employment
relationship, Indiana courts employ a multifactor test assessing (i) the extent of the principal's
control over the details of the individual's work; (ii) whether the individual is engaged in a distinct
occupation; (iii) whether the occupation is typically done under supervision; (iv) the skill required
for the occupation; (v) whether the principal supplies the instrumentalities, tools, and place of
work; (vi) the length of employment; (vii) the method of payment; (viii) whether the work is a part
of the principal's regular business; (ix) whether the parties believe they are creating an employer-
employee relationship; and (x) whether the principal is in business. Moberly v. Day, 757 N.E.2d
1007, 1010 (Ind. 2001). The primary considerations in determining the existence of an employer-
employee relationship are whether "the employer has the right to direct and control the activities
of the alleged employee" and whether the parties share "a mutual belief that an employer-employee
relationship exists." Kahrs v. Conley, 729 N.E.2d 191, 194 (Ind. Ct. App. 2000).
In this case, the Estate argues that Daimler's alleged operational control evinces an em-
ployer relationship with TruckMovers, meaning that Daimler can be held vicariously liable for Mr.
Burke's negligence. Daimler argues that it is not vicariously liable for Mr. Burke's conduct because
neither Daimler nor DTR was Mr. Burke's employer. Our review of the undisputed record evidence
leads us to conclude that no reasonable jury could find that Mr. Burke was Daimler's employee,
thereby foreclosing the Estate's respondeat superior theory against Daimler.
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"An employee is one employed to perform services in the affairs of another and who with
respect to the physical conduct in the performance of the services is subject to the other's control
or right to control." Carroll v. Kamps, 795 F. Supp. 2d 794, 807 (N.D. Ind. 2011) (applying Moberly
factors). "When an individual is answerable to another for results only, rather than for the particu-
lars of how the assigned task is accomplished, this factor weighs in favor of the individual's having
independent contractor status." Snell v. C.J. Jenkins Enters., Inc., 881 N.E.2d 1088, 1092 (Ind. Ct.
App. 2008).
In this case, the MSA delegated to TruckMovers the "sole and exclusive care, custody, and
control of all vehicles from the time of tender by [DTR to TruckMovers] for transportation until
delivery to cosignee." MSA 4, dkt. 150-6 at 5. Mr. Bross testified consistently with this delegation
provision, stating that, once TruckMovers took possession of Daimler's vehicle, TruckMovers was
"responsible for that truck and responsible for [the] driver. [TruckMovers] put the driver in the
truck. Daimler doesn't have anything to do with it." Bross Dep. 28:14–18, dkt. 150-4 at 6. Addi-
tionally, TruckMovers managed all aspects of truck movement, including, inter alia, the routes,
drivers, and scheduling. Id. at 124:16–127:20, dkt. 150-4 at 9–10.
The Estate argues that the MSA and Service Specification demonstrate the ways in which
Daimler retained control over the details of TruckMovers's vehicle transportation. The Estate al-
leges generally that TruckMovers was required to abide by Daimler's "proprietary operational man-
uals governing the handling, movement, and delivery of [its] tractors." Dkt. 172 at 11. To support
its contention that Daimler prescribed TruckMovers's "exact methods, procedures, and safety pro-
tocols," the Estate highlights that the Service Specification required TruckMovers to utilize a DTR-
specific communication service to transmit pickup information, estimated arrival times, delivery
confirmations, and notices of unexpected delays and/or deviations. Service Specification 2, dkt.
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172-3. The Estate also contends that Daimler dictated delivery timing and location, controlled data
integrity thresholds, enforced key performance metrics, and retained the unilateral authority to
terminate its contract(s) with TruckMovers.
The Estate relies almost exclusively upon the ways in which the MSA and Service Speci-
fication allegedly evince Daimler's authority over TruckMovers's work. Unexplained by the Estate,
however, is how either agreement—to which Daimler is not a party—plausibly reveals the ways
in which Daimler exercised control over the tractor's transportation. The Estate does not elaborate
in its response brief regarding whether or how DTR's alleged control supports in the imposition of
liability upon Daimler. Similarly, the Estate's focus on how Daimler allegedly controlled aspects
of TruckMovers's contractual performance stops short of illuminating how Daimler controlled the
nature of Mr. Burke's work.
In any event, the instant record does not support the conclusion that Daimler controlled the
particulars of Mr. Burke's work. Indiana law is well established that "[i]t is not enough that [the
principal] has merely a general right to order the work stopped or resumed, to inspect its progress
or to receive reports, to make suggestions or recommendations which need not necessarily be fol-
lowed, or to prescribe alterations or deviations." Pelak v. Indiana Indus. Servs., Inc., 831 N.E.2d
765, 770 (Ind. Ct. App. 2005) (quoting Restatement (Second) of Torts § 414, cmt. c (1965)). Like-
wise, "several courts have held that setting a work schedule or requiring an individual to be at a
given place at a given time are not, by themselves, sufficient to establish an employer-employee
relationship." Carroll, 795 F. Supp. 2d at 807 (citations omitted).
These legal principles, which the Estate does not contest, establish that no reasonable jury
could find that Daimler or DTR exercised control over the manner and means of Mr. Burke's work-
related activities. The Estate does not provide (beyond a vague reference to DTR's "proprietary
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operational manuals") any indication of concrete ways in which DTR directed specific aspects of
Mr. Burke's driving. Nor does the mere existence of DTR-specific rules and standards establish an
employment relationship. To the contrary, Indiana law holds that "[t]he fact that the work is to be
done under the direction and to the satisfaction of certain persons representing the employer[ ]
does not render the person contracted with to do the work a servant." Jones v. Indianapolis Power
& Light Co., 158 Ind. App. 676, 684 (1973).
The Estate relies upon the 1992 decision in Detrick v. Midwest Pipe & Steel, Inc. by the
Indiana Court of Appeals to establish that an employer-employee relationship existed between
Daimler and TruckMovers. 598 N.E.2d at 1076. Detrick involved a fatal collision between an au-
tomobile and a semi tractor-trailer. Id. The automobile driver's estate brought a wrongful death
action against the trucking company, the truck driver, and the shipper. Id. The trial court entered
summary judgment in favor of the shipper on the grounds that the truck driver was an independent
contractor, rather than an employee. Id. at 1076–77. The appellate court reversed, holding that
material factual disputes precluded resolution of the independent contractor determination. Id. at
1078. In Detrick, the record contained conflicting evidence which might have allowed a jury to
find that the shipper had the power to hire and fire drivers directly; that the drivers regarded them-
selves as employees of the shipper; and that the drivers regularly performed non-driving tasks for
the shipper. Id. at 1077–78.
The Estate's reliance on Detrick in the context of this case is misplaced. As discussed above,
the record before us is bereft of evidence indicating that Daimler exercised control over Mr. Burke,
never mind that Daimler directly hired or communicated with Mr. Burke. Burke Dep. 20:21–21:8,
dkt. 195-7 at 4–5. That DTR retained the authority to unilaterally terminate its contract with Truck-
Movers does not constitute evidence of Daimler's authority to terminate Mr. Burke's employment.
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See Kahrs, 729 N.E.2d at 194–95. At bottom, the evidence establishes that Daimler's primary in-
terest was in results only—that is, the transportation of its vehicles from one location to another.
Under these circumstances, no reasonable jury could conclude that Mr. Burke was Daimler's em-
ployee.
The long-standing rule in Indiana is that "a principal is not liable for the negligence of an
independent contractor," though Indiana courts have recognized five exceptions. Id. at 195 (cita-
tion omitted). Although Indiana law does not recognize a standalone cause of action for negligent
selection, "an employer of an independent contractor may be subject to liability for personal inju-
ries caused by the employer's failure to exercise reasonable care to employ a competent and careful
contractor when" an exception to the rule of non-liability applies. Bagley v. Insight Commc'ns Co.,
L.P., 658 N.E.2d 584, 587 (Ind. 1995).
In this litigation, the Estate has averred that Daimler is liable for negligently selecting
TruckMovers and/or Mr. Burke; however, its response brief entirely fails to rebut Daimler's open-
ing argument that no exception to Indiana's rule of non-liability for independent contractors applies
to the facts of this case. See dkt. 172 at 15. The Estate's failure to respond to Daimler's legal argu-
ments constitutes a waiver. Bonte, 624 F.3d at 466. Daimler's motion for summary judgment thus
shall be granted as to the independent contractor determination as well as negligent selection.
3. 	Vicarious Liability under the Federal Motor Carrier Safety Regulations
The Federal Motor Carrier Safety Regulations "eliminate the distinction between inde-
pendent contractors and employees so that an attempt by motor carriers to avoid liability simply
by labeling a driver as an independent contractor is unavailing." Ill. Bulk Carrier, Inc. v. Jackson,
908 N.E.2d 248, 255 (Ind. Ct. App. 2009); see 49 C.F.R. § 390.5 (defining "employees" to include
independent contractors). Thus, Indiana's rule of non-liability for independent contractors
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notwithstanding, "an interstate motor carrier can be held vicariously liable for the negligence of
an independent contractor pursuant to the FMCSR[s] under certain circumstances." Jackson, 908
N.E.2d at 254.
Here, the Estate alleges that Daimler is vicariously liable for Mr. Burke's actions due to its
status as a motor carrier. Daimler disclaims its role as a motor carrier, arguing instead that its
participation in the underlying facts was more akin to that of a shipper. Again, the Estate's response
omits any responsive argument, though its surreply brief (belatedly) includes an assertion that
Daimler "owned the [tractor] at the time of the incident, used DTR to dictate the parameters under
which it was transported, and coordinated the movement of the vehicle through DTR in conjunc-
tion with TruckMovers." Dkt. 199 at 14. The Estate's theory is that Daimler, "acting alongside its
agent DTR, was plainly functioning as a private motor carrier by helping arrange and controlling
the transportation of trucks it owned to dealers for resale and for [Daimler's] direct economic ben-
efit." Id. at 15.8
In determining whether the FMCSRs apply to Daimler in this case, "the crucial inquiry is
in what capacity [Daimler] was acting during the [underlying] transaction." Camp v. TNT Logistics
Corp., 553 F.3d 502, 507 (7th Cir. 2009) (affirming summary judgment where logistic services
provider acted as a broker, rather than a motor carrier, and thus was not liable for negligence under
the FMCSRs). A "motor carrier" is defined as "a for-hire motor carrier or a private motor carrier."
49 C.F.R. § 390.5. A private motor carrier is "a person who provides transportation of property or
passengers, by commercial motor vehicle, and is not a for-hire motor carrier." Id. A shipper, by
8 The Estate's surreply brief makes only passing references to "agents" and "agency" but does not
develop any argument as to an agency theory of liability.
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contrast, "means a person who tenders property to a motor carrier or driver of a commercial motor
vehicle for transportation in interstate commerce . . . ." 49 C.F.R. § 390.5.
The undisputed material facts leave no doubt that Daimler's conduct during the underlying
transaction more closely aligned with that of a shipper than a motor carrier. Consider the following
evidence: although Daimler, a federally licensed motor carrier, owned the tractor at issue in this
litigation, DTR (a non-party entity) contracted with TruckMovers (a licensed motor carrier) to
transport the tractor. TruckMovers, in turn, hired Mr. Burke (a commercial driver) to transport
Daimler's tractor from Wisconsin to Texas. The MSA between DTR and TruckMovers clearly pro-
vides that TruckMovers "shall have sole and exclusive care, custody, and control of all vehicles
from the time of tender by [DTR] or [DTR's] Agent to [TruckMovers] for transportation until de-
livery to consignee." MSA 4, dkt. 172-2.
"[T]he fact that [Daimler] possessed a motor carrier license is not determinative of"
whether it operated as a motor carrier in the underlying facts and is therefore subject to the
FMCSRs. Camp, 553 F.3d at 507 (emphasis added). "For vicarious liability under the FMCSR[s]
to attach to a motor carrier, that motor carrier must have been in control or possession of the motor
vehicle at issue." Ratcliff, 684 F. Supp. 3d at 867 (citing Jackson 908 N.E.2d at 255). That is,
"[o]nly if [Daimler] was functioning as 'a person engaged in the transportation of goods or passen-
gers for compensation' " does the Estate's theory hold any water. Camp, 553 F.3d at 507 (quoting
49 C.F.R. § 390.5). The Estate contends that Daimler retained control over the operation and trans-
portation of the tractor through the MSA and Service Specification. However, as detailed above,
Daimler was not a party to either agreement, and the Estate does not explain how DTR's alleged
conduct can be imputed to Daimler. Having adduced no further evidence and having otherwise
failed to respond to Daimler's argument that it played no role in the transportation, the Estate has
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failed to show that a material factual dispute exists as to whether Daimler acted as a motor carrier,
which can be tagged with vicarious liability for Mr. Burke's conduct. Accordingly, Daimler's mo-
tion for summary judgment shall be granted with regard to any liability under the FMCSRs.
4. 	Joint Enterprise Liability
In motor vehicle cases such as the one at bar, joint enterprise liability requires the proponent
to show (1) joint control over the management and operation of the vehicle as well as over the
course and conduct of the trip; (2) an equal right to direct and govern the movement and conduct
of each other; (3) a community of interest in the object and purpose of the undertaking that is
pecuniary in nature; and (4) an express or implied agreement. Benson v. Sorrell, 627 N.E.2d 866,
868–69 (Ind. Ct. App. 1994).
Daimler (as well as TruckMovers and Mr. Burke) have moved for summary judgment on
the Estate's joint enterprise theory of liability. Dkt. 148 at 19; dkt. 142 at 27–29. The Estate's re-
sponse brief in opposition of Daimler's motion for summary judgment fails entirely to respond to
Daimler's joint enterprise argument, see generally dkt. 172, though its response to TruckMovers
and Mr. Burke's summary judgment motion contends that the joint enterprise inquiry requires res-
olution by a jury, dkt. 177 at 11.
We can make quick work of the Estate's joint enterprise argument, since this theory remains
largely underdeveloped by the Estate. Because the Estate has failed to respond to Daimler's con-
tention that no joint enterprise existed by which TruckMovers's and/or Mr. Burke's negligence
could be imputed to Daimler, the Estate has waived any argument to the contrary. Wojtas v. Cap.
Guardian Tr. Co., 477 F.3d 924, 926 (7th Cir. 2007) (The plaintiff's "failure to offer any opposition
to [the defendant's] . . . argument constituted a waiver.").
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To the extent that the Estate's response to TruckMovers and Mr. Burke's joint enterprise
argument might be construed as applicable with equal force to Daimler, summary judgment none-
theless remains appropriate for Defendants. The gist of the Estate's argument is that Daimler,
TruckMovers, and Mr. Burke all shared a pecuniary interest in coordinating their transportation
efforts efficiently (and profitably) and that accordingly each contributed to the timely transporta-
tion of Daimler's tractor(s). Dkt. 177 at 11. Whatever the merits of such a theory might be, however,
the Estate's failure to designate any record evidence and/or to cite any legal authority supporting
the legal conclusion they urge upon us is dispositive in our resolution of Defendants' motions for
summary judgment. It is well-established that district courts "are not required to scour every inch
of the record for evidence that is potentially relevant to the summary judgment motion before
them." Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003). Because the Estate
has failed to designate specific facts showing that there is a genuine issue for trial, Defendants are
entitled to summary judgment on the question of joint enterprise liability, and their motions shall
be granted accordingly. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
5. 	Daimler's Independent Liability for the Tractor's Mechanical Condition
The Estate's remaining contentions relate to Daimler's alleged failures to complete an in-
spection of the tractor, to inform TruckMovers of the tractor's known diagnostic needs, and to
retrofit the tractor with its hazard detection technology, Side Guard Assist. Since Daimler does not
contest these negligent maintenance and/or mechanical fault theories with regard to its legal duties,
we address these issues in our discussion of proximate causation below.
B. 	Proximate Causation
"Under Indiana negligence law, there must be a 'reasonable connection between a defend-
ant's conduct and the damages which a plaintiff has suffered.' " Spinnenweber v. Laducer, 983 F.3d
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301, 304 (7th Cir. 2020) (quoting Topp, 838 N.E.2d at 1032). That is, there must be a "causal
connection between the negligence and the hurt." Peters v. Forster, 804 N.E.2d 736, 739 (Ind.
2004) (citation omitted). "The injurious act must be both the proximate cause and the cause in fact
of the injury." Bazeley v. Price, 14 N.E.3d 127, 131 (Ind. Ct. App. 2014).
"A negligent act is the proximate cause of an injury if the injury is a natural and probable
consequence, which in light of the circumstances, should have been foreseen or anticipated."
Humphery v. Duke Energy Indiana, Inc., 916 N.E.2d 287, 290 (Ind. Ct. App. 2009) (internal cita-
tion omitted). "The negligent act must set in motion the chain of circumstances which contribute
to or cause the resulting injury." Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 520
(Ind. Ct. App. 2005). "When assessing foreseeability in the context of proximate cause, courts
'evaluate the particular circumstances of an incident after the incident occurs.' " Scott v. Retz, 916
N.E.2d 252, 257–58 (Ind. Ct. App. 2009) (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479
(Ind. Ct. App. 1996), trans. denied.) (citation modified). Typically, proximate cause is a factual
question delegated to the trier of fact, though courts may resolve such questions as a matter of law
if "only a single conclusion can be drawn from the facts." Hamilton v. Ashton, 846 N.E.2d 309,
316 (Ind. Ct. App.), decision clarified on reh'g, 850 N.E.2d 466 (Ind. Ct. App. 2006).
In moving for summary judgment, TruckMovers argues that Mr. Love's actions were an
intervening cause that broke the causal chain, thus absolving it (and Mr. Burke) of liability. Dkt.
142 at 8. Under Indiana law, a "chain of causation may be broken if an independent agency inter-
venes between the defendant's negligence and the resulting injury." Carter, 837 N.E.2d at 520. As
explained by the Indiana Court of Appeals:
The key to determining whether an intervening agency has broken the origi-
nal chain of causation is to decide whether, under the circumstances, it was reason-
ably foreseeable that the agency would intervene in such a way as to cause the
resulting injury. If the intervening cause was not reasonably foreseeable, the
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original negligent actor is relieved of any and all liability resulting from the original
negligent act.
Id. at 520–21; e.g., Scott, 916 N.E.2d at 257 (describing intervening agency as "the doctrine of
superseding causation").
"A superseding cause is something culpable that intervenes between the defendant's negli-
gence and the plaintiff's injury, some action of a third party that makes the plaintiff's injury an
unforeseeable consequence of the defendant's negligence." Scottsdale Ins. Co. v. Subscription Plus,
Inc., 299 F.3d 618, 621 (7th Cir. 2002) (emphasis added) (Oklahoma law). Mr. Love is not a third
party to his own injury; thus, we doubt that TruckMovers's superseding cause argument is the most
analytically sound or otherwise particularly helpful framework for evaluating the facts of this case.
See Abbas v. Neter-Nu, 261 N.E.3d 233, 246 (Ind. 2025). In any event, "[c]ausation limits a negli-
gent actor's liability to foreseeable consequences," and "[a] superseding cause is, by definition, one
that is not reasonably foreseeable." Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind.
2002). Since the crux of TruckMovers's arguments is that Mr. Love's death was not a foreseeable
consequence of Mr. Burke's negligence, we shall bypass any potential confusion generated by what
would likely be an unnecessary analysis of superseding causation.
The Estate avers numerous ways in which Daimler's, TruckMovers's, and Mr. Burke's neg-
ligence allegedly caused Mr. Love's death. As discussed above, many of the Estate's theories
against Daimler fail as a matter of law because the Estate has failed to establish that Daimler can
be held liable for Mr. Burke's conduct. The Estate's remaining theory of Daimler's direct negligence
concerns the allegedly defective condition of the tractor and Daimler's purported negligent mainte-
nance thereof. Regarding TruckMovers, the Estate argues that TruckMovers negligently hired Mr.
Burke. Below, we address the Estate's mechanical defect theory apropos of Daimler and
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TruckMovers before we turn to the Estate's negligent hiring claim against TruckMovers and the
remaining arguments concerning Mr. Burke's alleged negligence.
1. 	Defective Condition of the Tractor
The Estate maintains that Daimler negligently failed to inspect the tractor before transfer-
ring possession to TruckMovers and failed to inform TruckMovers of the tractor's diagnostic needs.
Dkt. 172 at 15–17. Continuing, the Estate argues that a "malfunction indicator light, which signaled
multiple system faults, combined with the absence of any documented pre-trip inspection and the
lack of diagnostic review" would allow a jury to find that the tractor itself suffered from a "delayed
throttle response, steering issues, braking irregularities, or other mechanical defects that impeded
[Mr.] Burke's ability to avoid the collision." Dkt. 177 at 9. Our review of this evidence prompts us
to conclude that no reasonable jury could find that any purported mechanical defect with the tractor
caused or contributed to Mr. Love's death.
We need look no further than the Estate's response briefs, dkt. 172 at 4–6, 13; dkt. 177 at
6, 9, which entirely fail to support the Estate's sweeping allegations of Daimler's purported negli-
gent maintenance and/or of mechanical errors having affected the operation of the tractor with
citations to the specific portions of the record, as required by both the Federal Rules of Civil Pro-
cedure and our Local Rules. Fed. R. Civ. P. 56(c); S.D. Ind. L.R. 56-1(e). For example, the Estate
repeatedly refers to the absence of a "pre-trip inspection" but fails to substantiate such evidentiary
assertion with citations to the record evidence. Dkt. 177 at 6, 7, 9; see dkt. 172 at 7, 9. (Generic
citations to exhibits, without "refer[ring] to a page or paragraph number" or the like, does not
suffice. S.D. Ind. L.R. 56-1(e).) Even viewing the record in the light most favorable to the Estate,
including our consideration of the Estate's proposed expert witnesses testimony, the negligent
maintenance and defective condition theories do not pass muster.
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The record evidence adduced by the parties establishes that, at the time of the accident, the
tractor's malfunction indicator lamp ("MIL") was illuminated. Ball Dep. 201:24–202:6, dkt. 195-
1. Subsequent diagnostic testing revealed that the MIL arose from a single fault code, SPN 520355-
21,9 which all parties' proposed experts agree (or at the very least do not dispute) relates to the
aftertreatment control module that regulates emissions. Ball Dep. 181:21–182:11, 185:13–16, dkt.
195-1; Corsi Dep. 92:17–19, 99:9–22, dkt. 258-1 at 23, 25. The Estate's designated experts, Officer
Ball and Dr. Corsi, explicitly testified that neither could identify whether or how the aftertreatment
control module caused or contributed to the accident. Ball Dep. 244:24–245:5, dkt. 195-1; Corsi
Dep. 95:6–19, dkt. 258-1 at 24. (Although the Estate identifies a whole slew of prior, inactive fault
codes that cropped up in the tractor's history, the Estate has adduced no admissible evidence illu-
minating whether or how the tractor's inactive fault codes constituted a mechanical error that
caused or contributed to Mr. Love's death.)
The crux of the Estate's theory of liability, as illuminated by Officer Ball's and Dr. Corsi's
deposition testimonies, is that the presence of an illuminated MIL signaled that the tractor should
have been taken out of service, irrespective of the underlying mechanical explanation, in which
case Mr. Burke would not have been present in the Indianapolis neighborhood and encountered
Mr. Love. Ball Dep. 247:2–8, dkt. 195-1; Corsi Dep. 87:5–88:15, dkt. 258-1 at 22. Although we
can surely "accept the reality behind [this] statement, that fact does not establish proximate causa-
tion." Florio v. Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007) (citing Milam v. State Farm Mut.
Auto. Ins. Co., 972 F.2d 166, 169 (7th Cir. 1992) (" '[B]ut for' is rarely an adequate notion of
cause. We do not say that since, in all probability, [a plaintiff] would not have had an accident on
9 We assume the parties' references to SPN 520335-21, rather than SPN 520355-21, is a scrivener's
error.
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I-70 if Columbus had not discovered America, Columbus caused the accident.")). The Estate does
not articulate how the collision that occurred here was a foreseeable consequence of the tractor's
condition. To the contrary, the Estate's own expert witnesses (whom we have previously deter-
mined to lack the necessary expertise to interpret the tractor's fault codes) conceded that they had
no opinions as to how any purported condition of the tractor contributed to the accident. Absent
any evidence that the tractor suffered from a mechanical defect affecting its operation, the bare
fact of the illuminated MIL does not generate a triable question of fact. Summary judgment shall
be granted to Defendants, respectively, on the issue of the tractor's mechanical condition.
The Estate has also advanced (in its surreply brief) an argument that Daimler was negligent
in its failure to retrofit the tractor with Side Guard Assist. Dkt. 199 at 18. Assuming that the Estate
has not waived this theory by virtue of its failure to raise it in its response brief, this argument
nonetheless lacks evidentiary and legal support. The record evidence—which the Estate did not
contest in its response brief—establishes that Side Guard Assist was not available at the time the
tractor was manufactured. Rieflin Decl. ¶ 6, dkt. 150-12. The Estate's surreply brief purports to
identify a dispute of material fact by arguing that Daimler's "Side Guard Assist was available and
could have been retrofitted on to the [tractor] years before the incident." Dkt. 199 at 9, 18. To
substantiate this theory, the Estate attached to its surreply a single, unexplained exhibit, which
appears to be a snapshot of Daimler's online promotional materials. See dkt. 199-1. At best, this
exhibit corroborates Mr. Rieflin's Declaration as to the mere existence of the Side Guard Assist
technology. However, this entirely unexplained evidence does not establish the existence of a gen-
uine dispute of material fact as to when the technology became available and/or whether Daimler
"could have" retrofitted the tractor involved in this litigation. The Estate's bare contentions to the
contrary do not carry the weight the Estate attempts to place on them. Summary judgment shall be
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granted to Daimler accordingly on the issue of the tractor's hazard detection/Side Guard Assist
technology.
For these reasons, Daimler is entitled to summary judgment on the issue of its alleged
negligent maintenance of the tractor, any alleged mechanical defect in the tractor, and its alleged
failure to equip the tractor with Side Guard Assist technology. To the extent that such theories are
asserted against TruckMovers and/or Mr. Burke, summary judgment is also appropriate, given the
Estate's failure to adduce evidence demonstrating the existence of a material factual dispute con-
cerning the condition and/or maintenance of the tractor.
In accordance with our prior discussion of Daimler's legal duty and the lack of evidence
concerning Daimler's negligent maintenance and/or the existence of a mechanical defect in the
tractor, we hold that no viable theory of liability against Daimler remains. Our subsequent discus-
sion therefore focuses only on TruckMovers and Mr. Burke.
2. 	TruckMovers's Alleged Negligence
Again, we can quickly dispose of the Estate's arguments concerning TruckMovers's poten-
tial liability based on the negligent hiring of and/or entrustment to Mr. Burke of the responsibilities
as a commercial truck driver. We recognize that the parties briefed the instant motions for summary
judgment without the benefit of our April 21, 2026, order on Defendants' motions for judgment on
the pleadings. As discussed in that order, however, TruckMovers's admission that Mr. Burke was
acting within the course and scope of his employment effectively precludes the Estate's myriad
claims of negligent hiring, training, supervision, retention, and entrustment against TruckMovers.
Dkt. 315 at 5–9. Indiana law clearly establishes that where, as here, a motor carrier has admitted
vicarious liability, additional evidence of the motor carrier's negligence is not "relevant to the is-
sues in dispute, is wasteful of the court's time, and may be unnecessarily confusing to the jury."
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Levinson v. Citizens Nat'l Bank of Evansville, 644 N.E.2d 1264, 1269 (Ind. Ct. App. 1994); accord
Bautista v. MVT Servs., LLC, No. 16-CV-01086-NYW, 2017 WL 6054888, at *7 (D. Colo. Dec. 7,
2017) (Under Colorado law, motor carrier's admission of vicarious liability renders evidence of
the motor carrier's compliance with the FMCSRs "simply not relevant" to the driver's alleged neg-
ligence.). Having previously dismissed the Estate's direct negligence claims against TruckMovers,
we need not address further these potential bases of liability.
3. 	Mr. Burke's Negligence
The remaining controversies relate to the immediate circumstances of the accident and Mr.
Burke's alleged negligent operation of the tractor. With the exception of Mr. Burke's alleged park-
ing ordinance violation, which we can and will readily dismiss on the merits, we conclude that the
record reflects the existence of triable questions of fact concerning the cause of Mr. Love's death
and that summary judgment is therefore not appropriate.
Parking Ordinance Violation: Section 621-118(b) of the Indianapolis City Code pro-
vides, in relevant part, as follows:
It shall be unlawful for the . . . operator or driver of any truck with more than two
(2) axles (including the truck-tractor of a semi tractor-trailer) . . . to park such ve-
hicle on or to permit it to be parked or to stand upon any street or alley in a residen-
tial district for a period of time longer than one (1) hour, except household or other
moving or delivery trucks while actually loading or unloading property for adjacent
residences or service trucks of persons while engaged in service calls at adjacent
residences.
City Code § 621-118(b) (hereinafter, the "Parking Ordinance").
The Estate cites the Parking Ordinance to demonstrate that Mr. Burke operated the tractor
in a residential area where such vehicles are legally prohibited from going. Mr. Burke's "unlawful
presence" in a residential zone, the Estate contends, constitutes "negligence per se and supports a
jury finding that the fatal collision would not have occurred had [Mr.] Burke simply complied with
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the municipal restriction designed to keep heavy trucks away from pedestrians." Dkt. 177 at 4. The
record evidence supports the conclusion that Mr. Burke parked the tractor along North Centennial
Street for longer than one hour and that the purpose of Mr. Burke's presence was unrelated to
moving or delivery services. See Burke Dep. 21:13–22:11, dkt. 195-7 at 5. That Mr. Burke osten-
sibly violated the Parking Ordinance is not dispositive, however.
Under Indiana law, "the unexcused violation of a statute or ordinance constitutes negli-
gence per se if the provision (1) protects the class of persons in which the plaintiff is included and
(2) protects against the type of harm which has occurred as a result of the violation." Stachowski
v. Est. of Radman, 95 N.E.3d 542, 544 (Ind. Ct. App. 2018) (citation modified). Critically, the
Estate here does not meaningfully engage with these essential prerequisites. Even if the Estate had
addressed these elements, it "must still prove causation and damages just as in any other negligence
claim." Diocese of Fort Wayne S. Bend, Inc. v. Gallegos, 203 N.E.3d 1080, 1084 n.2 (Ind. Ct. App.
2023). The Estate has entirely failed to articulate any way that Mr. Burke's apparent violation of
the Parking Ordinance caused the fatal injury to Mr. Love, and, thus, it is entirely unclear how the
duration of time that the tractor remained parked along a residential roadway caused or contributed
to Mr. Love's death. See Nesvig v. Town of Porter, 668 N.E.2d 1276, 1285 (Ind. App. Ct. 1996)
("[T]he violation of a statutory duty is not actionable negligence unless it is also the proximate
cause of the injury."). The Estate's ipse dixit assertion that Mr. Burke's "illegal presence in the
residential district is itself a direct causal link" to Mr. Love's tragic death, dkt. 177 at 8, is both far-
fetched as a theory of recovery and fails to build a logical bridge between the text of the Parking
Ordinance and the harm that ensued. This negligence per se theory therefore fails as a matter of
law.
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The Estate's Remaining Theories: The Estate's remaining theories relate to allegations of
operator error: Specifically, the Estate contends that Mr. Burke's cocaine usage impaired his ability
to safely operate the tractor and that Mr. Burke's failure to brake the vehicle and reach a complete
stop at the stop sign, his failure to to yield the right-of-way and to maintain a proper lookout all
contributed to Mr. Love's death. Viewing the record in the light most favorable to the Estate, a
reasonable jury could conclude that Mr. Burke's operation of the tractor fell short of the standard
of care and proximately caused the accident that took the life of Mr. Love. The record contains
significant but unanswered questions about Mr. Burke's cocaine usage and the potentially impair-
ing effects such substance had on his ability to operate a large commercial vehicle in a residen-
tial/urban neighborhood. Mr. Burke's failure to fully stop at the stop sign before executing an (ar-
guably) unsafe left, coupled with his apparent failure to notice that Mr. Love had made contact
with his tractor, reflect the types of issues that a jury is entitled to weigh in assessing the merits of
the Estate's wrongful death claim. TruckMovers and Mr. Burke's motion for summary judgment
on these remaining questions of fact shall therefore be denied.
III. 	Indiana's Comparative Fault Act
Under Indiana's Comparative Fault Act, a plaintiff's own degree of fault may diminish, and
in some cases preclude, her recovery. See Ind. Code § 34-51-2-5. "[A] plaintiff whose own negli-
gence contributes as much as 49 percent to her injury may recover from a defendant whose acts
provided 51 percent." Areche v. Indianapolis Dep't of Pub. Works, 264 N.E.3d 84, 89 (Ind. Ct.
App.), trans. denied, 267 N.E.3d 987 (Ind. 2025). Where a "claimant's contributory fault is greater
than the fault of all persons whose fault proximately caused or contributed" to her injury, however,
"the claimant is barred from recovery." Ind. Code § 34-51-2-6. "[C]omparative fault is normally
an issue for the jury in Indiana, [though] summary judgment is still appropriate if 'there is no
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dispute in the evidence and the factfinder is able to come to only one logical conclusion.' " Reales
v. Consol. Rail Corp., 84 F.3d 993, 997 (7th Cir. 1996) (quoting Thiele v. Norfolk & W. Ry. Co., 68
F.3d 179, 184 (7th Cir. 1995)).
"[U]nder the doctrine of contributory negligence, the issue is whether the plaintiff failed to
exercise ordinary care for his safety under the circumstances." Nesvig, 668 N.E.2d at 1281. As
reflected in the Indiana Code, pedestrians "may not suddenly leave a curb or other place of safety
and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard."
Ind. Code § 9-21-17-5. When "crossing a roadway at a point other than within a parked crosswalk
or within an unmarked crosswalk at an intersection," pedestrians must also "yield the right-of-way
to all vehicles upon the roadway." Ind. Code § 9-21-17-7. See also id. § 9-21-17-15 ("[A] pedes-
trian upon a roadway shall yield the right-of-way to all vehicles upon the roadway."). Where driv-
ers "are under a common law duty to maintain a proper lookout while traveling on the roadways,"
pedestrians owe a corresponding duty not "to proceed heedlessly across a street without exercising
ordinary care for [their] own safety." Nesvig, 668 N.E.2d at 1281. "A pedestrian must at all times
exercise ordinary care for his own safety and is required to avail himself of all his faculties to avoid
any danger or injury." Id. Accordingly, Mr. Love "had a statutory duty to yield to a vehicle in the
roadway as well as a common law duty to exercise ordinary care and avail himself of all his fac-
ulties to avoid danger or injury." Id.
Here, TruckMovers and Mr. Burke contend that Mr. Love and Mr. Love alone proximately
caused the accident. In their view, Mr. Love was more than fifty percent responsible for the acci-
dent, and, as a consequence, Indiana law forecloses the Estate's recovery. Defendants assert that
the facts of this case are akin to those presented in the Seventh Circuit's 1996 decision in Reales v.
Consolidated Rail Corporation, 84 F.3d 993 (7th Cir. 1996). In Reales, a fifteen-year-old bicyclist
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was struck and killed by a train as she attempted to cross the railroad tracks. Id. at 995. The record
evidence established "that the gates were down, the flashers were operating, and the train was
sounding its horn." Id. at 995. Nevertheless, eyewitness accounts established that the decedent
maneuvered her bike around the automatic gates and, despite her momentary hesitation, proceeded
across the tracks, tragically resulting in her death. Id. at 995, 997. The district court entered sum-
mary judgment in favor of the railroad defendant, finding that the train was operating below the
federally prescribed speed limit and that the undisputed record evidence established that the dece-
dent was more than fifty percent at fault, thereby precluding the estate's recovery under Indiana's
Comparative Fault Act. Id. at 996. The Seventh Circuit affirmed, holding that "no reasonable finder
of fact could have found that [the defendant's] fault was equal to or greater than" the decedent's.
Id. at 997. To the contrary, the Seventh Circuit continued, "it [wa]s hard to imagine what precaution
the railroad could have taken that it did not, on th[o]se facts." Id.
Defendants contend that Mr. Burke, like the railroad in Reales, could not have avoided the
accident in this case. As such, Defendants continue, no reasonable jury could find Mr. Burke le-
gally responsible for Mr. Love's death. Although instructive, Reales does not automatically impel
the conclusion urged by TruckMovers and Mr. Burke that Mr. Love was more than fifty percent at
fault for his death in part because the instant record is not nearly as complete and clearcut as that
presented in Reales such that a single reasonable inference concerning the allocation of fault be-
tween Mr. Burke and Mr. Love arises.
As noted above, a reasonable jury could credit the Estate's various arguments concerning
the deficiencies in Mr. Burke's operation of the tractor, including his arguable failure to maintain
a proper lookout, and find that Mr. Burke proximately caused Mr. Love's death. Equally possible,
a reasonable jury could, weighing the evidence as a whole, find that Mr. Love's decision to enter
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the roadway and to navigate behind the tractor reflected a dereliction from his duty to exercise
ordinary care for his own safety and rendered Mr. Love more than fifty percent at fault for the
accident. We recognize that "this is a close case," and the Estate likely may face an uphill battle in
persuading a jury. Indianapolis Pub. Transportation Corp. v. Bush, 266 N.E.3d 719, 729 (Ind.
2025). However "our role is not to stand in the place of the factfinder. Instead, we are confined to
determining whether, considering the evidence in the light most favorable to the Estate, the only
reasonable inference is that" Mr. Love's comparative fault exceeds fifty percent. Id. On the record
before us, we cannot reach that conclusion. Accordingly, the question of comparative fault (and
Mr. Love's negligence) must go to the jury, and TruckMovers's and Mr. Burke's motion for sum-
mary judgment shall be denied accordingly.
IV. 	Damages
A. 	Recovery under the General Wrongful Death Statute
A recurring point of contention in this litigation relates to the Estate's efforts to obtain an
award of damages under Indiana's General Wrongful Death Statute (the "GWDS"), Ind. Code. §
34-23-1-1, as opposed to the Adult Wrongful Death Statute (the "AWDS"), Ind. Code. § 34-23-1-
2. As we have outlined in prior orders, see generally dkt. 315, 353, the salient difference between
the GWDS and the AWDS distills to recoverable damages, with the GWDS allowing for a greater
recovery than the AWDS. Only one factor matters here: "[T]he determination of dependency con-
trols which statute (the GWDS or the AWDS) applies." Hubbard v. City of Bedford, Indiana, No.
4:24-cv-00103-TWP-KMB, 2025 WL 1939879, at *4 (S.D. Ind. July 11, 2025) (citing Est. of Sears
v. Griffin, 771 N.E.2d 1136, 1138–39 (Ind. 2002)).
On April 21, 2026, we granted TruckMovers's (second) motion for judgment on the plead-
ings and dismissed the Estate's claim arising under the GWDS due to an absence of sufficient
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factual allegations in the complaint from which a plausible inference of dependency might arise.
Dkt. 315. On July 16, 2026, we denied the Estate's ensuing motion to reconsider, though we also
noted an apparent discrepancy between "the contents of the pleadings, as challenged by Defendants
previously, and an apparent understanding among the parties that the Estate is and has been 'pa-
tently engaged in endeavoring to prove' damages under the GWDS." Dkt. 353 at 12 (quoting Torry
v. Northrop Grumman Corp., 399 F.3d 876, 879 (7th Cir. 2005)). Our July 16th Order stopped
short of "conclusively resolv[ing] the contested status of the Estate's (apparently ongoing) efforts
to shore up proof of damages under the GWDS," however, and "reserve[d] for future consideration
whether Defendants' pretrial maneuvering . . . reflect[ed] their consent to try these issues, regard-
less of their . . . objections to the contrary." Id.
Returning to the instant motions, TruckMovers and Mr. Burke have moved for summary
judgment, asserting that the Estate has failed to adduce sufficient evidence from which a reasona-
ble jury could conclude that minors C.W., K.L., and T.L. were Mr. Love's dependent heirs. Dkt.
142 at 14–16; dkt. 148 at 8–9. It is a "well-known rule that a pleading can be constructively
amended when both parties expressly or impliedly consent to constructive amendment." Hutchins
v. Clarke, 661 F.3d 947, 957 (7th Cir. 2011) (citations omitted). "The test for consent is whether
the opposing party had a fair opportunity to defend and whether he could have presented additional
evidence had he known sooner the substance of the amendment." Id. (citation omitted). Given that
Defendants themselves have explicitly sought summary judgment on the issue of dependency,
which issue is now fully briefed and "squarely addressed" by all parties, we regard "the complaint
[as] constructively amended to include that claim," notwithstanding our prior ruling to the contrary.
Whitaker v. T.J. Snow Co., 151 F.3d 661, 663 (7th Cir. 1998); see also Walton v. Jennings Cmty.
Hosp., Inc., 875 F.2d 1317, 1320 & n.3 (7th Cir. 1989) ("Although it is the judge rather than the
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parties who introduced the amendment, and although the amendment was effected during consid-
eration of a motion for summary judgment rather than at trial, it is fully consonant with the spirit
of Rule 15(b) and existing case law to view the pleadings as constructively amended . . . .).10
The GWDS provides that the proceeds of the wrongful death shall "inure to the exclusive
benefit of the widow or widower, as the case may be, and to the dependent children, if any, or
dependent next of kin, to be distributed in the same manner as the personal property of the de-
ceased." Ind. Code § 34-23-1-1. The Indiana "legislature set forth two conditions for recovery
under the wrongful death statute: dependency and heirship. If . . . these [two factors] cannot [both]
be shown by the claimant, then that person is precluded from recovering as a dependent under the
wrongful death statute." Necessary v. Inter-State Towing, 697 N.E.2d 73, 80 (Ind. Ct. App. 1998).
As to the requirement of heirship, the GWDS "specifically links a beneficiary's right to recovery
under the statute with his or her right to receive a distribution of the decedent's personal property."
Johnson Controls, Inc. v. Forrester, 704 N.E.2d 1082, 1084 (Ind. Ct. App. 1999) (citation modi-
fied). "If one is not an heir entitled to share in the distribution of the decedent's personal property,
one is not entitled to damages under the wrongful death statute, dependency notwithstanding."
Necessary, 697 N.E.2d at 80.
In order to determine whether minors C.W., K.L., and T.L. qualify as Mr. Love's "depend-
ent children" within the meaning of the GWDS, we must evaluate their "right to maintain a claim
for inheritance against [their] father's estate under the laws of intestate succession[ ] or to enforce
parental obligations under the paternity statute against the father's estate." S.M.V. v. Littlepage, 443
10 Because we regard the Estate's complaint as constructively amended apropos of the GWDS, its
pending motion for leave to file a third amended complaint shall be denied as moot. Dkt. 354.
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N.E.2d 103, 110 (Ind. Ct. App. 1982). In order to establish the paternity of nonmarital children,
such as the minors here, Indiana law requires that one of the following is satisfied:
(1) The paternity of a child who was at least twenty (20) years of age when the
father died has been established by law in a cause of action that is filed during
the father's lifetime.
(2) The paternity of a child who was less than twenty (20) years of age when the
father died has been established by law in a cause of action that is filed:
(A) during the father's lifetime; or
(B) within five (5) months after the father's death.
(3) The paternity of a child born after the father died has been established by law
in a cause of action that is filed within eleven (11) months after the father's
death.
(4) The putative father marries the mother of the child and acknowledges the child
to be his own.
(5) The putative father executed a paternity affidavit in accordance with IC 31-6-
6.1-9(b) (before its repeal).
(6) The putative father executes a paternity affidavit as set forth in IC 16-37-2-2.1.
Ind. Code § 29-1-2-7(b). "The testimony of the mother may be received in evidence to establish
such paternity and acknowledgment, but no judgment shall be made upon the evidence of the
mother alone." Id. § 29-1-2-7(c). "The evidence of the mother must be supported by corroborative
evidence or circumstances." Id. As recognized by Indiana courts, the intestate succession and pa-
ternity statutes reflect "Indiana policy and define the rights of [nonmarital] children in relation to
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their putative fathers," though they also "create higher evidentiary requirements for recovery than
those imposed on [marital] children enforcing the right to support." Littlepage, 443 N.E.2d at 109.
Here, the undisputed evidence adduced by Defendants establishes that Mr. Love was never
married to either Ms. Allen or Ms. Thompson, though he did cohabitate with each at or around the
time of the minors' respective births. Mr. Love and Ms. Allen were engaged for an undisclosed
period of time before C.W.'s birth. Allen Dep., dkt. 142-14 at 2. Ms. Allen's and Ms. Thompson's
deposition testimonies corroborate that the minors were less than twenty years of age at the time
of Mr. Love's death. See Allen Dep., dkt. 142-14 at 2; Thompson Dep. 18:3–20:7, dkt. 142-13 at
2.
Applying Indiana's intestate succession and paternity statutes to these facts, we have little
trouble concluding that the Estate has failed to adduce evidence of Mr. Love's paternity, thereby
entitling Defendants to judgment as a matter of law. Indeed, the Estate has marshaled no evidence
in its summary judgment response to demonstrate that (1) Mr. Love's paternity was established
during his lifetime or within five months of his death; (2) Mr. Love married Ms. Allen and
acknowledged paternity of C.W.; (3) Mr. Love married Ms. Thompson and acknowledged pater-
nity of K.L. and/or T.L.; or (4) that Mr. Love executed a paternity affidavit.
The Estate's sole response appears in its brief in opposition to Daimler's summary judgment
motion, where it argues that the operative complaint "alleges that Mr. Love's minor children relied
on him for support, care, and daily needs" and that Ms. Thompson's "testimony (which was not
used here by request) supports these allegations, and no evidence contradicts them." Dkt. 172 at 7.
Under no sound interpretation of the well-established rules governing summary judgment
does the Estate's bareboned and superficial response suffice to survive Defendants' challenge.
"Summary judgment is the 'put up or shut up' time in litigation." Brown v. CACH, LLC, 94 F.4th
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665, 667 (7th Cir. 2024). As such, "the nonmovant must present definite, competent evidence in
rebuttal." Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). "[I]f the non-movant
does not come forward with evidence that would reasonably permit the finder of fact to find in her
favor on a material question, then the court must enter summary judgment against her." Waldridge,
924 F.3d at 920. Here, the Estate's mere gesturing towards its complaint and Ms. Thompson's "tes-
timony" falls well short of its burden in resisting summary judgment on the issue of the minors'
heirship. Since the Estate has failed to adduce evidence supporting a conclusion of heirship, there
is no issue of material fact precluding summary judgment. See also Little v. Cox's Supermarkets,
71 F.3d 637, 641 (7th Cir. 1995) (district court has no duty to "scour the record" in search of
admissible evidence to "make the lawyer's case"). Thus, recovery of damages by the Estate will be
subject to the terms and conditions of the AWDS.
B. 	Damages for Pain & Suffering, Mental Anguish, & Physical Impairment
In the Second Amended Complaint, the Estate seeks damages for physical pain and suffer-
ing, mental anguish, and physical impairment. SAC ¶ 90, dkt. 66. TruckMovers and Mr. Burke
argue that summary judgment on these categories of damages is required because Indiana law does
not permit such recovery under its wrongful death statutes. Dkt. 142 at 16–17. The Estate contends
that its claims focus squarely on the categories of damages authorized by Indiana statute and that
concerns about what damages may ultimately be awarded can be "cleanly resolved" at trial. Dkt.
177 at 10.
"Because wrongful death actions are purely creatures of statute, they are strictly construed."
Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), opinion adopted, 678
N.E.2d 110 (Ind. 1997). Indiana law is clear that "[o]nly those damages prescribed by the applica-
ble wrongful death statute are recoverable . . . ." Edna Martin Christian Ctr., Inc. v. Smith, 202
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N.E.3d 1118, 1121 (Ind. Ct. App. 2023). The AWDS specifically provides that damages "may not
include . . . damages awarded for a person's grief; or . . . punitive damages." Ind. Code § 34-23-1-
2(c)(2). Damages may include but are not limited to "[r]easonable medical, hospital, funeral, and
burial expenses necessitated by the wrongful act or omission that caused the adult person's death"
as well as "[l]oss of the adult person's love and companionship." Id. § 34-23-1-2(c)(3). Wrongful
death damages are, at bottom, tethered to pecuniary losses; hence, damages "relat[ing] to loss of
life, grief, and wounded feelings are not recoverable." Smith, 202 N.E.3d at 1124. Because wrong-
ful death damages are intended to "compensate the decedent's relatives for the loss sustained by
reason of the death," damages for pain and suffering and for physical impairment are similarly not
recoverable. Atterholt v. Robinson, 872 N.E.2d 633, 641 (Ind. Ct. App. 2007).
A straightforward application of these established legal principles to the case at bar impels
the conclusion that Indiana law precludes the Estate from recovering non-pecuniary damages re-
lating to pain and suffering, mental anguish, and physical impairment. TruckMovers and Mr.
Burke's motion summary judgment shall be granted accordingly.
CONCLUSION
For the reasons outlined above, the Court rules as follows:
• 	TruckMovers's Motion for Summary Judgment is hereby GRANTED in part and DE-
NIED in part. Dkt. 141.
• 	Daimler's Motion for Summary Judgment is hereby GRANTED. Dkt. 146.
• 	Daimler's and TruckMovers's Motions to Strike the Estate's Objections are hereby
GRANTED. Dkt. 197, 205. The Estate's Objections are hereby STRICKEN. Dkt. 193,
194.
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• 	TruckMovers and Mr. Burke's Motion to Exclude Officer Ball's Testimony is hereby
GRANTED in part and DENIED in part. Dkt. 253.
• 	Daimler's Motion to Exclude Officer Ball's Testimony is hereby GRANTED in part and
DENIED in part. Dkt. 259.
• 	TruckMovers and Mr. Burke's Motion to Exclude Thomas Corsi's Testimony is hereby
GRANTED in part and DENIED in part. Dkt. 249.
• 	Daimler's Motion to Exclude Thomas Corsi's Testimony is hereby GRANTED in part
and DENIED in part. Dkt. 257.
• 	Defendants' Motion to Exclude Michael Suls's Testimony is hereby DENIED. Dkt. 255.
• 	Defendants' Joint Motion to Strike is hereby GRANTED. Dkt. 272. The Estate's Motions
to Exclude Rachel Kelly, Jerad Childress, and Madeleine J. Swortwood are hereby
STRICKEN. Dkt. 266, 267, 268.
• 	Daimler's Motion to Strike is hereby GRANTED. Dkt. 275. The Estate's Motion to Ex-
clude Kirk Cummings is hereby STRICKEN. Dkt. 271.
• 	The Estate's (fifth) Motion for Leave to Amend is hereby DENIED as moot. Dkt. 354.
No partial final judgment shall issue.
This litigation shall proceed to trial only on the Estate's claims against TruckMovers and
Mr. Burke.
IT IS SO ORDERED.
Date:8/28/2026	_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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Distribution:
Aaron C. Cox
aaron.cox@icemiller.com
Ramona Frazier
The Witherspoon Law Group
rfrazier@twlglawyers.com
Christina Laun Fugate
ICE MILLER LLP (Indianapolis)
christina.fugate@icemiller.com
Tiffany R. Guthrie
Kightlinger & Gray, LLP
tguthrie@k-glaw.com
Christopher Sean Hennessy
Cozen O'Connor
chennessy@cozen.com
Andrea Howell
Ice Miller LLP
andrea.howell@icemiller.com
Thomas J. Jarzyniecki, Jr.
KIGHTLINGER & GRAY, LLP (Indianapolis)
tjarzyniecki@k-glaw.com
Paul K Leary, Jr
Cozen O'Connor
pleary@cozen.com
Jeremy D. Lemon
HUNT SUEDHOFF & KALAMAROS LLP (Fort Wayne)
jlemon@hsk-law.com
Derek Harold MacKay
Knight MacKay Morrow, LLC
mackay@kmmlaw.com
Kathleen Meara
Knight MacKay Morrow, LLC
meara@kmmlaw.com
Aubrey Nick Pittman
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The Pittman Law Firm, P.C.
pittman@thepittmanlawfirm.com
Carolyn E. Riggs
ICE MILLER LLP (Indianapolis)
criggs@fbtgibbons.com
Linje Rivers
The Witherspoon Law Group
rivers@twlglawyers.com
Tasha Rebecca Roberts
ROBERTS LITAGATION GROUP
troberts@robertslitigation.com
Nuru Witherspoon
Nuru Witherspooon
stegall@twlglawyers.com
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