Kenderdine v. Roslyn Elevator et al

li J\
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
DEC 1 7 2022
RICHARD B. KENDERDINE,SPECIAL
ADMINISTRATOR OF THE ESTATE OF
VIVIAN C. KENDERDINE; AND VIVIAN
C. KENDERDINE,ESTATE OF,
DECEASED;
1:20-CV-01030-CBK
ORDER
Plaintiffs,
vs.
MARCIA R. SCHMIDT,
Defendant.
Plaintiff Richard B. Kenderdine, Special Administrator ofthe Estate of Vivian
Kenderdine, Deeeased, sued defendant Mareia R. Schmidt and Roslyn Elevator for
wrongful death.' The Court held a trial on October 2-3, 2022, and the jury returned a
verdict in favor of the defendant. The plaintiff motioned this Court on November 3,
2022, for a new trial. Defendant Mareia R. Schmidt filed her response brief on
November 10, 2022, in resistance to the motion. Mr. Kenderdine replied to the
defendant's brief on November 15, 2022, making this matter ripe for adjudication.
'Roslyn Elevator was dismissed as a party to this lawsuit because based on the evidence
presented at trial, under South Dakota law, the Elevator could not be held liable for Ms.
Schmidt's actions.
1
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 1 of 11 PageID #: <pageID>

I. Background
This trial arose from a fatal collision involving Marcia R. Schmidt and Vivian C.
Kenderdine. On June 11, 2019, Ms. Schmidt was driving her truck south on Interstate-29
and rear-ended Ms. Kenderdine who was riding her motorcycle. Ms. Kenderdine died
immediately as a result ofthe collision. Before the crash, Ms. Schmidt was driving with
her cruise-control set at approximately 80 miles per hour, which was the posted speed
limit, in the right lane ofthe two-lane highway. Ms. Kenderdine was also traveling
southbound on the highway with two of her friends on the way to an all-women
motorcycle rally in Kansas. Ms. Tamara Henninger led the three women in a "staggered"
formation, followed by Ms. Mary Grund. Ms. Kenderdine was riding last in the series of
the three motorcyclists. At some point that morning, the three women pulled over and
stopped beneath an overpass for several minutes to discuss where to stop for fuel and
where they wanted to go to lunch. When they finished talking, the group set out to
continue in the same formation they were riding in before they stopped on the shoulder.
Ms. Henninger pulled out into the right lane of the highway first, followed by Ms. Grund,
and Ms. Kenderdine followed last. Shortly after the three motorcyclists merged back
onto the highway, Ms. Schmidt hit Ms. Kenderdine's motorcycle from behind with the
front of her truck. Ms. Kenderdine was thrown off the motorcycle and passed away at the
scene ofthe accident.
Ms. Schmidt admitted throughout the trial that she never saw Ms. Kenderdine until
the last second. South Dakota State Trooper John Bemdt testified at trial that the data
retrieved from Ms. Schmidt's car showed that approximately a half second before the
collision she hit the brakes and attempted to steer the truck away to avoid the crash. Ms.
Schmidt's defense to liability focused on Ms. Kenderdine's claimed contributory
negligence. The general thrust ofthe contributory negligence defense was that Ms.
Kenderdine did not look behind her before merging back onto the highway and
essentially pulled out almost directly in front of Ms. Schmidt's truck. But either a missed
expert witness disclosure deadline or an inexplicable trial strategy meant that Ms.
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 2 of 11 PageID #: <pageID>

Schmidt could not use Trooper Berndt as an aecident reconstruction expert witness.^
Instead, Berndt's testimony was limited by the Court to the facts of the accident seene
rather than the conclusions in his written report. This limitation precluded Berndt from
testifying or producing any evidence regarding Ms. Kenderdine's speed at the time of the
eollision or his belief as to the ultimate cause of the collision. The defense produced
evidence of a minimum speed limit(40 miles per hour) on the highway as well as photos
of signs near the accident that stated stopping on the shoulder is prohibited except in
cases of emergency. Ms. Grund was questioned about Ms. Kenderdine's motoreycle
being found in second gear, but she had no personal knowledge regarding what gear the
motorcycle was in after the accident. Neither Ms. Grund nor Ms. Henninger saw the
collision happen.
At trial, the plaintiff called Ms. Schmidt, Trooper Berndt, Trooper Cory Nordquist,
Ms. Grund, Ms. Henninger, and Riehard B. Kenderdine, Ms. Kenderdine's husband, as
witnesses. The defense only ealled Ms. Schmidt, who testified again briefly.^ The jury
returned its verdict in favor of the defendant. It found that Ms. Schmidt was negligent
^ After failing to disclose Trooper Berndt in their discovery as an expert witness, the
defense seemingly attempted to charaeterize Berndt as a non-retained expert who would
be subject to less striet disclosure requirements than a retained expert witness and
therefore permitted to testify during the trial. S^ Gruttemever v. Transit Authoritv, 31
F.4th 638, 644(8th Cir. 2022)("Under Rule 26, non-retained experts ... are subjeet to
less stringent disclosure requirements than a retained expert."); see also Vanderberg v.
Petco Animal Supplies Stores. Ine., 906 F.3d 698, 702(8th Cir. 2018)("[Pjarties must
disclose the identity of non-retained experts who may testify at trial and disclose 'the
subjeet matter on which the witness is expected to present' expert opinion testimony and
'a summary ofthe facts and opinions to which the witness is expected to testify.'"
(quoting FED.R. CiV.P. 26(a)(2)(C)). The defense argued that Trooper Berndt was
properly disclosed as a non-retained expert witness because he was listed as a witness in
discovery, the plaintiff had the opportunity to depose him, and he would testify about
conclusions in his police report as to which the plaintiff had full knowledge. The Court
ruled that Trooper Berndt could testify about facts of the accident scene, but did not
qualify him as a non-retained expert witness.(Doc. 48).
^ Certain witnesses' testimony was presented through recorded depositions. Ms. Schmidt
gave live testimony and testimony through her recorded deposition, and Ms. Grund and
Ms. Henninger gave testimony through their recorded depositions.
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 3 of 11 PageID #: <pageID>

and that her negligence was a legal cause of Ms. Kenderdine's death. It also found that
Ms. Kenderdine was negligent, that her negligence was a legal cause of her death, and
that Ms. Kenderdine's negligence was more than slight in comparison to Ms. Schmidt's
negligence.
II. Standard of Review
When a court does not grant a motion for judgment as a matter of law made under
Rule 50(a) of the Federal Rules of Civil Procedure, the movant can file a renewed motion
for a judgment as a matter of law within 28 days after the entry ofjudgment under Rule
50(b) and may include an alternative or joint request for a new trial under Rule 59.
Fed. R. Civ.P. 50(b). When resolving a motion for a judgment as a matter oflaw under
Rule 50, the Court determines whether there is sufficient evidence to support the jury's
verdict. The Court must view the evidence in a light most favorable to the prevailing
party and give great deference to the jury's verdict. See Howard v. Missouri Bone and
Joint Center. Inc.. 615 F.3d 991, 995 (8th Cir. 2010); Anderson Marketing, Inc. v. Maple
Chase Co.. 241 F.3d 1063, 1065 (8th Cir. 2001). The Court "must not engage in a
weighing or evaluation of the evidence or consider questions of credibility." Howard,
615 F.3d at 995 (cleaned up). The Court will not reverse a jury's verdict unless it finds
that "no reasonable juror could have returned a verdict for the non-moving party."
Anderson Marketing. Inc., 241 F.3d at 1065.
A motion for a new trial is governed by Rule 59 of the Federal Rules of Civil
Procedure."^ "The court may, on motion, grant a new trial on all or some ofthe issues .. .
after a jury trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court." Fed. R. Civ.P. 59(a)(1)(A). Contrasted with a judgment
as a matter oflaw that focuses on the sufficiency of the evidence, when evaluating a
On appeal, the Eighth Circuit reviews a district court's decision to grant or deny a
motion for a new trial for abuse of discretion. Michigan Millers Mut. Ins. Co. v. Asovia,
Inc., 793 F.3d 872, 878 (8th Cir. 2015)("We will only reverse the denial of a new trial
motion for an abuse of discretion."). A motion for judgment as a matter oflaw, on the
other hand, is reviewed de novo. Id. at 877.
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 4 of 11 PageID #: <pageID>

motion for a new trial the Court "can rely on its own reading of the evidence—it can
weigh the evidence, disbelieve witnesses, and grant a new trial even where there is
substantial evidence to sustain the verdict." White v. Pence. 961 F.2d 776, 780(8th Cir.
1992). But when the Court weighs evidence under Rule 59, it "should only grant a new
trial to avoid a miscarriage ofjustice." Howard. 615 F.3d at 995; see also Structural
Polvmer Group. Ltd. v. Zoltek Corp.. 543 F.3d 987, 991 (8th Cir. 2008)("A new trial
motion premised on a dispute about the strength ofthe supporting proof should be
granted only if the verdict is against the weight of the evidence and allowing it to stand
would result in a miscarriage ofjustice.")(cleaned up). This standard, however,"is not
boundless," and the Court is not "free to reweigh the evidence and set aside the jury
verdict merely because the jury could have drawn different inferences or conclusions or
because judges feel that other results are more reasonable." White, 961 F.2d at 780
(quoting Fireman's Fund Ins. Co. v. Aalco Wrecking Co.. 466 F.2d 179, 186 (8th Cir.
1972)).
III. Discussion
The plaintiffs motion for a new trial argues the jury's verdict that Ms. Kenderdine
was contributorily negligent is against the weight ofthe evidence. In turn, Ms. Schmidt
contends that evidence produced at trial showing that Ms. Kenderdine's motorcycle was
found in second gear along with evidence suggesting that Ms. Kenderdine violated state
traffic laws provides an ample basis for the jury's finding of contributory negligence.
The plaintiff did not renew the motion for judgment as a matter of law, so the Court will
only apply the standard for granting a new trial under Rule 59 ofthe Federal Rules of
Civil Procedure.
The plaintiffs complaint asserts a wrongful death claim against Ms. Schmidt
based on a theory of negligence. South Dakota law governs this case because the
accident happened in South Dakota and the Court's jurisdiction is based on diversity of
citizenship under 28 U.S.C. § 1332. See Erie R.R. Co. v. Tompkins. 304 U.S. 64, 72—73
(1938). Under South Dakota law, wrongful death actions allow for recovery of damages
where a defendant caused "the death or injury of a person ... by a wrongful act, neglect,
5
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 5 of 11 PageID #: <pageID>

or default." See Lindholm v. BMW of N. Am.. LLC.202 F. Supp. 3d 1082, 1100
(D.S.D. 2016)(quoting SDCL § 21-5-1). A wrongful death aetion recovery hinges on
the showing of an underlying tort, such as negligence or strict liability. Id- Here, the
plaintiff claimed that Ms. Schmidt acted negligently while operating her truck.
Under South Dakota law, there are three elements to a negligence claim:(1) a duty
on the part ofthe defendant;(2)a breach of that duty; and(3) a legal or proximate injury
resulting from that breach of duty. Esterling v. McGehee. 102 F. Supp. 3d 1116, 1119
(D.S.D. 2015)(citing State Auto Ins. Cos. v. B.N.C.. 702 N.W.2d 379, 386(S.D. 2005)).
A contributorily negligent plaintiff is barred from recovering damages where her own
negligence was "more than slight" in comparison to the negligence of the defendant. See
Wood V. Citv of Crooks. 559N.W.2d 558, 559-60 (S.D. 1997); SDCL § 20-9-2.
"Slight" in the context of eontributcity negligence is defined as "small of its kind or in
amount; scanty; meager." Wood, 559 N.W.2d at 560. The Supreme Court of South
Dakota has made clear that the question of whether a plaintiff was contributorily
negligent is ordinarily a question for the jury. See id.("Whether [the plaintiff] was
contributorily negligent was a question of fact properly submitted to the jury."); Zens v.
Harrison, 538 N.W.2d 794, 796(S.D. 1995)("Determining negligence has always been
the jury's function."). Although contributory negligence can become a question oflaw
when "reasonable men can draw but one conclusion from facts and inferences," that was
not the case here. Luther v. Citv of Winner, 674 N.W.2d 339, 348 (S.D. 2004)(quoting
Mitchell V. Anknev, 396 N.W.2d 312, 313(S.D. 1986)).
Ms. Schmidt's contributory negligence defense primarily focused on the question
of proximate cause and whether any of Ms. Kenderdine's actions were a legal cause of
the collision. "Proximate cause is 'an immediate cause which, in natural or probable
sequence, produces the injury complained of.'" Cooper v. Brownell, 923 N.W.2d 821,
824(S.D. 2019)(quoting Martino v. Park Jefferson Racing Ass'n, 315 N.W.2d 309, 314
(S.D. 1982)). "Such cause need not be the only cause of a result. It may act in
combination with other causes to produce a result." Howard v. Bennett, 894 N.W.2d
391, 395(S.D. 2017)(quoting Hamilton v. Sommers, 855 N.W.2d 855, 867(S.D. 2014)).
6
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 6 of 11 PageID #: <pageID>

But proximate cause cannot be "based on mere speculative possibilities or circumstances
and conditions remotely connected to the events leading up to an injury." Cooper, 923
N.W.2d at 824 (quoting Martino, 315 N.W.2d at 314). "To be actionable, the cause of
harm must be a substantial factor in bringing about the harm." Mulder v. Tague, 186
N.W.2d 884, 887(S.D. 1971)).
As an initial matter, statements made by both parties during the trial regarding Ms.
Kenderdine's motorcycle being found in second gear were not admissible evidence at
trial and will not be considered in the Court's ruling on this motion. As previously stated,
the defense was not allowed to use Trooper Bemdt's report or question him about his
findings during the trial to show that Ms. Kenderdine was driving too slowly, leading to
the inference that she caused the accident. But both parties referenced the report during
Ms. Grund's testimony. Ms. Grund had the following exchange during her direct
examination with plaintiffs' counsel:
Question: And I think somewhere in his report he notes - the investigating
officer - he noted that he found Ms. Vivian Kenderdine's motorcycle to be
in second gear, and that was after a high-speed collision. I take it, again,
you wouldn't have any idea of what- what gear Ms. Kenderdine's
motorcycle would have been in because you never saw her and you don't
know fast she was travelling; correct?
Answer: Correct.
The following exchange between Ms. Grund and defense counsel during her cross
examination was produced at trial:
Question: [Plaintiffs counsel] mentioned that- as part of the investigation
that Vivian Kenderdine's motorcycle was found in second gear after the
incident. Do you recall that?
Answer: I remember him stating that.
Question: Yeah. Did you - did you go check her motorcycle as to what
gear it might be in?
Answer: No.
The plaintiff argues, correctly, that Ms. Grund's testimony does not establish that Ms.
Kenderdine's motorcycle was found in second gear or that it was in second gear at the
time ofthe collision. As shown by both direct and cross examinations, Ms. Grund had no
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 7 of 11 PageID #: <pageID>

personal knowledge of what gear Ms. Kenderdine's motorcyele was found in and the
referenee to second gear was not witness testimony. The jury was instructed that
questions by the parties' lawyers are not evidence. Jury Instruction No. 5 states:
Certain things are not evidence. I shall list those things again for you now:
1. Statements, arguments, questions, and comments by lawyers
representing the parties in the case are not evidence. . ..
Because there was no admissible evidence produced during the trial regarding what gear
Ms. Kenderine's motorcyele was found in after the collision, the Court will not consider
that alleged fact when ruling on this motion for a new trial.
The jury's verdict that Ms. Kenderdine was contributorily negligent, however,
accurately reflects the weight of the evidence admitted at trial. The jury was instructed
that it could find that either Ms. Schmidt or Ms. Kenderdine was negligent if they
violated a series of safety laws, but only ifthe negligent conduct was a proximate cause
of Ms. Kenderdine's death. S^ Jury Instruction No. 14. One ofthose safety laws states
that no person may drive onto or off of a controlled access roadway except at designated
entrances and exits. Another stated that a driver of a vehicle using a public highway has
a duty to exercise ordinary care at all times to avoid placing the driver or others in danger
and to exercise ordinary care to avoid an accident. During the trial, it was undisputed that
the three women both stopped on the shoulder ofthe highway and subsequently reentered
the highway—and did neither at a designated entry or exit point.
Ms. Henninger and Ms. Grund's testimony could be viewed to suggest that Ms.
Kenderdine failed to use ordinary care when merging onto the highway. When Ms.
Herminger was asked if she accelerated on the shoulder before merging onto the highway,
she answered,"Oh yes." When asked again later in her deposition about merging onto
the highway, Ms. Henninger said that although she did not know how far she drove on
the shoulder, she accelerated to a safe speed before merging onto the highway, and she
checked her rearview mirror before doing so. But when asked if Ms. Grund or Ms.
Kenderdine accelerated on the shoulder before merging onto the highway, Ms. Henninger
said that "she could not answer for them."
8
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 8 of 11 PageID #: <pageID>

When Ms. Grund was asked a similar question about whether she accelerated on
the shoulder before merging onto the highway, she answered,"I did not." She testified
that she did not remember exactly what she did, but she assumed that she would have
used her turn signal, taken a minimal amount oftime to get safely on the road, and
accelerated very quickly. When asked if she looked in the rearview mirror to see ifthere
were any vehicles on the road before accelerating, she responded,"No." She said that
she physically turned her head to look and see if there was oncoming traffic and that she
saw headlights "a long ways away" in the distance. She said that she turned her blinker
on before she started moving, and that she traveled "maybe 20 feet" or a very short
distance on the shoulder before entering the highway. Ms. Grund testified she might
have been going 20 or 30 miles per hour when she merged onto the highway.
Given that Ms. Kenderdine was riding behind Ms. Grund, it is reasonable to infer
that she acted similarly by not accelerating on the shoulder like Ms. Henninger did or
merged onto the highway in what could reasonably be interpreted as an unsafe manner or
unsafe speed like Ms. Grund did.^ Either ofthose actions, taken separately or in tandem,
could reasonably be interpreted a proximate cause of the accident, leading the jury to find
that Ms. Kenderdine was also negligent. Under South Dakota law, it is not difficult to
meet the standard of"more than slight" related to the question of contributory negligence.
A reasonable person could have interpreted the evidence presented related to Ms.
Kenderdine's actions as more than a "scanty" or "meager" contribution to the collision in
comparison to Ms. Schmidt's negligence. Based on the evidence presented during the
^ The plaintiff supports its argument by quoting the Court's position that Ms.
Kenderdine's speed was not a proximate cause of negligence. But this case involves two
separate instances of negligence. Of course, Ms. Kenderdine's speed is irrelevant to
whether Ms. Schmidt acted negligently while driving her truck on the highway because
Ms. Schmidt repeatedly said that she never saw Ms. Kenderdine until a fraction of a
second before the crash. The same cannot be said for the question of whether Ms.
Kenderdine contributed by operating her motorcycle negligently when merging onto the
highway after stopping beneath the overpass.
9
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 9 of 11 PageID #: <pageID>

trial, it cannot be said that allowing the verdict to stand amounts to a miscarriage of
justice allowing the Court to overturn the jury's decision.
The South Dakota cases cited by the plaintiff in his brief regarding a presumption
of due care for persons killed in an automobile accent do not change the outcome ofthis
motion for a new trial. Although the series of cases are binding South Dakota law, the
plaintiff never requested that this specific presumption be included in the jury
instructions. The instruction might have been enough to sway the jury, but it was neither
requested nor given. The plaintiff also does not argue that the presumption should have
been included in the jury instructions as a basis for a new trial in its motion. Moreover,
that presumption does not contradict anything that was included in the instructions
provided to the jury at trial. It is a standard presumption of due care applied to a vehicle
accident that potentially involves contributory negligence and "may be rebutted by direct
or circumstantial evidence to the contrary." Theunissen v. Briskv, 438 N.W.2d 221, 224
(S.D. 1989). As discussed above, a reasonable jury could have interpreted the evidence
presented at trial as showing that Ms. Kenderdine acted negligently and her contribution
to the crash was more than slight.
Were 1 the finder of fact, 1 might well have found for the plaintiff—but 1 was not
the finder offact. 1 have great respect for juries and our system. In the more than 27
years 1 have served on the bench, 1 have set aside one jury verdict. That was in a case
involving the Internal Revenue Service and a bank. 1 set aside a verdict for the bank and
was affirmed on appeal by the United States Court of Appeals for the Eighth Circuit.
IV. Conclusion
The outcome ofthis collision is tragic, and the jury's verdict is unfortunate in a
case where one party suffered the loss of life and the other party sustained minor damage
to their vehicle. But the bar to overturn a jury's verdict is high, and the plaintiff has not
made a sufficient showing to do so in this case.
10
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 10 of 11 PageID #: <pageID>

Now,therefore,
IT IS ORDERED that plaintiff Richard B. Kenderdine's motion for a newjtrial.
Doc. 73, is denied. /
DATED this^ / day ofDecember,2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
11
Case 1:20-cv-01030-CBK Document 77 Filed 12/17/22 Page 11 of 11 PageID #: <pageID>