Ashton ex rel. Estate of Ashton v. Knight Transportation, Inc. (772 F. Supp. 2d 772, 2011)

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, District Judge.

Before the Court is Plaintiff Kelly Ash-ton’s Motion for Sanctions for Spoliation or for an Adverse-Inference Jury Instruction (“Motion for Sanctions”) (doc. 98), filed September 23, 2010. At issue is whether the Defendants destroyed or otherwise altered evidence they had a duty to preserve, and if so, the appropriate sanction for such conduct. For the reasons stated below, the Court GRANTS Plaintiffs Motion for Sanctions.

I.

BACKGROUND

A. Basic Facts

As set forth in previous filings of the Court, this action arises out of an automobile accident occurring in Republic County, Kansas on August 11, 2007. (Defs.’ Mot. Summ. J. 1). Plaintiff Kelly Ashton, her husband Don Ashton, and friend William Helton were returning to Texas from South Dakota along U.S. Hwy. 81 in the Ashton’s 2006 Hummer H3. (Id.). While driving through Kansas, the Hummer was struck by a 1988 Chevrolet Camaro driven by Jacob Valek, a 15-year-old minor who, while under the influence of alcohol, had ignored a stop sign. Sometime during or soon after the collision with Mr. Valek, Don Ashton died. Precisely what caused Don Ashton’s death lies at the heart of this case.

Plaintiff contends that Mr. Ashton survived the accident, crawling out of the Hummer and onto U.S. Hwy 81, where he was subsequently run over and killed by an eighteen-wheeler operated by Defendant George Muthee (“Muthee”) and owned by Defendant Knight Transportation (“Knight”). (Pl.’s Resp. 2-4). Defendants, on the other hand, maintain that Mr. Ashton died as a result of the initial crash with Valek, not due to any contact with the vehicle driven by Muthee. (Defs.’ Mot. Summ. J. 1-2).

B. Procedural Background

The Defendants filed a Motion for Summary Judgment on May 24, 2010, arguing, inter alia, that Plaintiff could not prove that Muthee was the proximate cause of Don Ashton’s death. The Court denied the Defendants’ motion on September 20, 2010, 2010 WL 3703985, finding that Plaintiff had presented sufficient summary judgment evidence to raise a genuine factual dispute over whether Muthee’s eighteen-wheeler struck Don Ashton and whether Don Ashton was alive at the time he was struck (doc. 80). The case proceeded toward trial. On the eve of the pretrial conference, Plaintiff filed her Motion for Sanctions (doc. 98), alleging that Defendants had engaged in a bad faith course of conduct by destroying, altering, and concealing evidence, before and after the filing of this suit. (Pl.’s Mot. Sanctions 6-15).

Because of the serious nature of Plaintiffs allegations, the Court determined that the spoliation issue should be decided prior to the commencement of trial. The Court thus entered an order continuing the trial setting, establishing a briefing schedule on the Motion for Sanctions, and setting an evidentiary hearing on the spoliation issue (doc. 100). Defendants responded to the Motion for Sanctions (doc. 104), and Plaintiff replied (doc. 108). After a three-day evidentiary hearing and a full opportunity to review the evidence and to assess the credibility of each witness, the Court finds that Plaintiff has proven by clear and convincing evidence that the Defendants engaged in evidence spoliation and that they should be sanctioned accordingly. The parties’ contentions and the pertinent facts follow.

II.

PARTIES’ ARGUMENTS ON SPOLIATION

A. Plaintiff’s Contentions

Plaintiff maintains that Defendants, Knight and Muthee, intentionally altered or destroyed two key pieces of evidence in this case, both highly unfavorable to the defense. First, she contends that the Defendants destroyed evidence on Muthee’s truck and tires that implicated the Defendants in Don Ashton’s death. (PL’s Mot. Sanctions 6-9). Second, Plaintiff maintains that the Defendants intentionally destroyed or altered Qualcomm communications between Muthee and Knight, which occurred in the hours and days surrounding the accident and which evidenced Knight’s complicity in Muthee’s post-accident conduct. (Id at 15). Plaintiff recites a litany of facts, beginning in the aftermath of the accident, which she maintains establish the Defendants’ bad faith course of conduct. Specifically, Plaintiff makes the following contentions:

• Will Helton, who was in the Hummer with the Ashtons on the night of the accident, has stated that Don Ashton was alive after the initial impact by Valek but that as Muthee drove through the debris field Helton heard a loud explosion after which he found Ashton’s body in pieces;

• Muthee immediately fled from the scene of the accident depriving the Kansas Highway Patrol (“KHP”) of the opportunity to examine the eighteen-wheeler and to test Muthee’s blood;

• Muthee failed to return to the accident scene or contact Kansas police even after stopping within a mile of the accident and observing that his truck had been damaged and was missing its fairing;

• A 7' x 3' piece of fairing from Mu-thee’s truck was dislodged as he drove through the debris field;

• The dislodged fairing was used by KHP to connect Knight’s truck to the accident scene;

• Muthee falsified his driver’s log for the time period he was involved in the accident, attempting to make it appear he was sleeping in his berth in Nebraska at the time of the Kansas accident;

• After the accident, Muthee continued driving approximately 1,400 miles to Sparks, Nevada where he had the truck’s two front steer tires replaced, the replacement authorized and paid for by Knight. The tires are now “lost”;

• Muthee drove the truck to California, parking it in a Home Depot parking lot where it was retrieved by Knight employees who returned it to Knight’s facility in California;

• Knight hired a lawyer and investigator within days of the accident for itself and Muthee;

• Within days of the accident, Knight’s lawyer and investigator inspected and performed destructive testing on the truck at Knight’s facility in California, removing samples of “flesh” from the truck and placed the samples in baggies before any law enforcement officials were able to inspect the truck;

• Knight failed to cooperate with KHP’s investigation of the accident by blocking its efforts to interview Muthee and to obtain key documents in its possession such as Muthee’s driver file. The lack of cooperation is evidenced in a series of e-mails between KHP and others involved in the investigation, including one in which a KHP trooper laments that the Defendants “have obstructed my investigation”;

• During discovery in this case, Knight concealed their private investigator’s August 2007 inspection of the tractor until after the court-imposed expert designation deadline, and were later forced to reveal the inspection by interrogatory in April 2010;

• Knight delayed production of a document showing that it knew that Mu-thee was illegally driving over hours in the days and hours leading up to the crash, until after the expert designation deadlines;

• Knight failed to preserve Qualcomm, (e-mail type messages) between itself and Muthee during the critical hours surrounding the accident and much of what it did produce for the communications in the days surrounding the accident was in an illegible format.

(See generally id.).

B. Defendants’Response

The Defendants flatly deny that they engaged in spoliation and maintain that Plaintiff cannot meet her burden of proof to establish otherwise. They question. whether they had a legal duty to preserve the evidence they are accused of destroying given that their alleged actions occurred “prior to the litigation in this cause” and they were under no “court order to preserve evidence” prior to suit being filed. (Defs.’ Resp. 4-5, 7).

As for Plaintiffs factual allegations, the Defendants do not dispute that Muthee drove through the accident debris field and, in so doing, that his truck “contacted” Don Ashton. The Defendants further agree that Muthee failed to stop at the accident site, left the state of Kansas, got the two front steer tires replaced, and returned the truck to a parking lot in California, where Knight employees retrieved it. The Defendants, however, strongly deny that Muthee did these things with Knight’s knowledge or under its direction. Knight maintains that — to date — Muthee has never communicated with the company about the accident, or his post-accident conduct. Knight also maintains that it has not attempted to obtain a statement or an explanation from Muthee about the accident or his actions following the accident, insisting that Muthee acted on his own from the time he departed the accident scene until he abandoned Knight’s truck in Los Angeles.

Curiously, in view of its professed lack of involvement with Muthee’s post-accident decisions, Knight nevertheless defends him, arguing that he did not realize he had hit something in the accident debris field and, consequently, that his actions following the accident were “innocuous.” (Id. at 13-16).

As for the host of other factual allegations by Plaintiff, the Defendants either deny them or dismiss them as “red herrings” and “leaps of logic.” (Id. at 8-16). They deny obstructing KHP’s attempts to inspect the truck once it was returned to Knight’s custody in California. And, instead, insist that the inspection and testing of Muthee’s truck by Knight’s private investigator and lawyer was conducted “with the full knowledge of the Kansas Highway Patrol.” (Id. at 10). In any event, the Defendants assert that Plaintiff has provided “no explanation” for her theory that the suspect truck, if made available for inspection, would have yielded relevant evidence regarding the cause of Ashton’s death. (Id.). Finally, the Defendants deny engaging in obstructionist discovery tactics.

In sum, the Defendants do not dispute many of the facts that Plaintiff relies on in support of her motion for sanctions. What is hotly contested between the parties and at the core of the Court’s spoliation inquiry is whether these events were, as argued by Plaintiff, part of a deliberate effort orchestrated by Knight and Muthee to conceal their culpability for the death of Don Ash-ton or, as urged by Defendants, simply an innocuous series of events triggered by Muthee’s ill-advised exit from the accident scene. Witness credibility is therefore a critical component of the Court’s resolution of the spoliation issue. A review of the testimony at the evidentiary hearing follows, accompanied by the Court’s credibility determinations and assessment of the evidence.

III.

EVIDENTIARY HEARING

A. Plaintiffs Evidence

i. Christopher Sandberg

Plaintiffs first witness was Christopher Sandberg, a former Yard Manager for Knight Transportation who was in charge of the Fontana Yard in California where the tractor in question was taken after the accident. (I, 22 — 23). Sandberg’s testimony covered the events beginning immediately after Muthee abandoned Knight’s truck in a Los Angeles-area parking lot and continued through the time period after Sandberg retrieved the truck and placed it at Knight’s Fontana Yard facility.

Sandberg described Fontana Yard as a “drop yard” where repairs are made to trucks. (Id. at 29). He testified that in August 2007, he was instructed by someone from Knight management in Arizona to retrieve Muthee’s truck. (Id. at 25-26). He testified that when he got to the site where the truck was located, he talked to Knight officials on the phone who told him the vehicle had been in an accident and asked him whether there was any damage to the truck. (Id. at 26, 28, 41-42). He responded that part of the fairing was missing. (Id. at 26). Sandberg, a former Knight truck driver, described the fairing as an expensive piece of equipment and that a driver would be in trouble for leaving a piece of equipment like that on the road. (Id. at 26-27). He also testified that any driver involved in an accident is supposed to notify the trucking company. (Id. at 93). He said that the trucks are equipped with satellite equipment that enabled Knight officials to track the truck’s location. (Id. at 107-09). He also said that Knight’s company policy required drivers to contact the company and get its approval before money was spent on truck repairs, including tire replacements. (Id. at 99-100). He stated that the drivers must tell the company why the tires need to be changed or replaced and that the company would dictate the vendor to do the work and approve payment. (Id. at 99-106). He said that once he told Knight about the damage to Muthee’s truck, that the truck “sat” out in the open in the Fontana yard for “a couple of weeks.” (Id. at 30-31). He said that during those weeks the right mud flap and one of the truck’s tail lights were removed. (Id. at 34).

Sandberg further testified that on August 25 or 26, 2007, approximately two weeks after he picked up the truck, a lawyer and investigator working for Knight came out to the yard and took pictures and inspected the truck. (Id. at 31, 41-44). He said that Knight’s lawyer told him that they were there “to let us know that there was actually flesh underneath the truck” and that the truck had been in an accident. (Id. at 44, 46-47). Sandberg said that for approximately one hour he observed the investigator use “swabs” to take “substances” the attorney described as “flesh” from the body of the truck and then put the swabs into plastic bags. (Id. at 47-49). Sandberg, who had managed the yard for three years, stated that he told Knight officials that the truck was not adequately protected from wind, sand and other elements for the months it was in the yard. (Id. at 52). He said he was concerned that the truck, which he was told by Knight and its attorney had been involved in an accident and had some human flesh on it, was “getting sandblasted” by being outdoors in the yard. (Id. at 54). He said that after the truck had been in the yard for three months, Ontario, California police officials came out to look at it. (Id. at 24, 58-59). He said he told the police about the missing mudflap and rear tail light and the inspection by Knight’s lawyer and investigator. (Id.).

Sandberg said that shortly after he discussed the condition of the truck with Ontario police, Knight terminated him, after eight years of employment. (Id. at 23-24, 59). He said there was no reason for his firing and that he had “increased profits” at the yard more than prior managers. (Id. at 23). He said, by way of explanation for his firing, that he was later told by a Knight employee “you talk too much.” (Id. at 61).

Sandberg was a credible witness who did not veer from the key portions of his direct testimony on cross-examination. In essence he established that, in August 2007, he was directed to retrieve Muthee’s truck by Knight officials who informed him that the truck had been in an accident. He further established that within a few weeks after he picked up the truck, Knight’s lawyer and investigator came out to the yard to inspect and test it and that the lawyer told him that there was “flesh” underneath the truck. Sandberg’s testimony showed that the investigator took samples from the truck with swabs and placed them in baggies. He also established that the truck was left exposed to the wind and sand even though it was partially covered by tarps. He credibly established, as a former eight-year employee, that it was Knight’s policy to require approval before getting repair work done to its trucks. Finally, the fact that Sandberg was terminated after eight years of employment soon after he told the Ontario police about the private investigator’s inspection of the truck and the missing mudflap and tail light bolstered Plaintiffs theory that Knight’s assurances to KHP that it would cooperate were questionable.

ii Trooper Kip Ballinger

Plaintiffs second witness was Trooper Kip Ballinger, Kansas Highway Patrol’s (“KHP”) chief investigator of the Kansas accident scene. His testimony, a key part of Plaintiffs case, focused on his investigation of the accident and his communications and interactions with the Defendants, their lawyers and agents over the course of his investigation. The primary focus of Ballinger’s testimony was the basis for his opinion that Knight and its lawyers obstructed his investigation.

Ballinger, part of the KHP critical highway accident response team, testified that he was called to the Kansas accident scene the night of the crash. (I, 115-18). After examining the accident site and inspecting the dislodged piece of fairing found at the site, Ballinger concluded that a third vehicle, not found at the scene, had been involved in the accident. {Id. at 118-19; Pl.’s Ex. 3). He said that certain identifiers on the fairing enabled KHP investigators to trace it to Knight Transportation and then contact the company directly. (I, 119-21). He stated that he first discovered that Muthee’s truck had been located by Knight when he was called by Steve McKinzie, Knight’s private investigator and a former KHP trooper and colleague of Ballinger’s. {Id. at 123-25).

Ballinger said McKinzie called him on August 25, 2007, from the Fontana yard where the truck was located and told him that he was at the yard to inspect the truck. {Id. at 123, 125-26). Ballinger said McKinzie had not contacted him about the truck or his desire to inspect the truck before this call from the Fontana yard. {Id. at 123,127). Nor, he said, did McKinzie or anyone from Knight ask Ballinger to accompany McKinzie to the yard. {Id.). Ballinger stated that he did not authorize McKinzie to conduct any type of destructive testing on the truck. {Id. at 125-27). Ballinger said that McKinzie followed up with an e-mail the day after he examined the truck and described his initial conclusions from his inspection. {Id. at 127; PL’s Ex. 52). Ballinger testified that McKinzie, reported to him that he “found nothing that indicated a body contact” and that it appeared that the truck “did not hit a person.” (I, 127-32, PL’s Ex. 52). Ballinger testified that McKinzie assured him that Knight would fully cooperate with Kansas authorities. (I, 131-32; PL’s Ex. 52).

Ballinger testified at length about his frustration following McKinzie’s initial assurances of cooperation when his efforts to obtain information from Knight were consistently stymied by the company and its lawyers. (I, 121-23, 137-153, 156-59, 160-64, 179-80). His testimony was corroborated by a series of e-mails, admitted as Plaintiffs Exhibit 52, between August 26, 2007 and December 17, 2009. (Pl.’s Ex. 52). The e-mails, between Ballinger and Knight’s attorney, Lee Baty, and between Ballinger and other law enforcement officials, document multiple attempts by Ballinger to enlist Knight’s assistance to obtain an interview with Muthee and to procure documents in Knight’s possession related to the accident. (I, 122-23; PL’s Ex. 52 at 3-6). The documents that Ballinger requested from Knight included: Muthee’s e-mail or other communications with Knight from August 10 through August 24, 2007, Muthee’s driver file, his driver logbook, receipts from his Kansas trip, his vehicle inspection and repair records, any statements by Muthee about the accident, and any other records relating to Ballinger’s investigation. (I, 125-164; PL’s Ex. 52 at 3, 5-6). The e-mails reflect Ballinger’s growing concern with Knight’s delay in making Muthee available for an interview and to produce the documents requested. (1,122-23, 135-37, 154-64; PL’s Ex. 52 at 7, 8, 11,12, 13, 14, 18, 32, 35). For example, despite numerous requests by Ballinger to interview Muthee beginning in late August 2007 and Baty’s repeated assurances to acquiesce, it was not until October 25, 2007, that Baty informed Ballinger via e-mail that “Muthee is no longer employed at Knight Transportation. He had not returned to work and subsequently has submitted a resignation. I understand that he is also being represented by counsel to advise him personally.” (I, 123; PL’s Ex. 52 at 3-21). This is despite the fact that Baty had been acting as Muthee’s lawyer since a few days after the accident. (II, 72).

Despite Ballinger’s request for documents in an August 28, 2007 e-mail and Baty’s assurances on August 29, 2007, to have the documents available by “early next week,” by December 7, 2007, Balling-er still had not received many of the critical records. (PL’s Ex. 52 at 35). Ballinger testified that Knight never provided him with Muthee’s employment file so he could determine, among other things, whether Muthee had any driver’s violations. (I, 180). Ballinger said that Knight did comply with his request to give him copies of Muthee’s “daily driver logs” to show how many hours Muthee had driven in the period immediately preceding the accident. (Id. at 237-38, 240; PL’s Ex. 28). Balling-er said the logs showed Muthee to be sleeping in his truck’s berth in Nebraska at the time of the accident. (I, 238-40; PL’s Ex. 28). He stated he later learned that the driver logs that Knight had given him had been falsified. (I, 288). He also said Knight did not disclose to him, that, in truth, Muthee had been driving 60-65 hours, in violation of federal laws, at the time he drove through the Kansas debris field. (Id. at 241-43). Ballinger confirmed that Muthee was charged criminally with leaving the accident scene. (Id. at 246-7).

On cross-examination, Ballinger was challenged for not confronting McKinzie and Knight with his belief that they were obstructing his investigation. (Id. at 200-OS). When asked why he did not confront his former colleague McKinzie about his concerns, he indicated that, based on his prior relationship with McKinzie, he “had no reason to believe that ... [McKinzie] would maliciously destroy evidence.” (Id. at 208).

In all, Ballinger was a very credible witness. His demeanor and his recollection of the facts evidenced an earnest individual who was forthright in recounting his version of events. He explained credibly that he did not express concerns about Knight and McKinzie’s actions sooner because of his prior law enforcement relationship with McKinzie and because he trusted him to follow through on his promise that Knight would cooperate in the investigation. The collection of e-mails in Plaintiffs Exhibit -52 strongly supports Ballinger’s testimony that, initially, he believed McKinzie’s promises to cooperate, and that his trust later turned to dismay that McKinzie and Knight were purposefully obstructing his investigation. It was also clear from Ballinger’s testimony that McKinzie’s, Knight’s, and Muthee’s actions prevented him from collecting critical evidence immediately after and in the days and weeks following the accident including, but not limited to, inspecting the truck and its tires as they appeared immediately after Muthee’s truck drove through the scene or as soon thereafter as possible, interviewing Muthee and obtaining a blood sample from him, and obtaining the Qualcomm communications as they appeared in their screen-shot format.

in. Robert McKinzie

The third chronological witness, private investigator and former KHP trooper Robert McKinzie, was called by the Defendants out of order due to scheduling issues. McKinzie was hired by Knight as a private investigator to look into the Kansas accident. McKinzie testified about his investigation as well as his communications with and interactions with KHP and Plaintiffs representatives.

McKinzie, Ballinger’s former supervisor at KHP who is now a private investigator specializing in accident reconstruction, was hired on August 19, 2007, by Knight’s lawyers at the Baty law firm to investigate the accident. (I, 251-56). Touting his accident reconstruction qualifications, he testified that, when working for KHP, he “wrote” the policies and procedures for gathering and securing evidence from accident scenes. (Id. at 254). He said that, in his private capacity, KHP still calls on him to provide accident reconstruction training and consulting. (Id. at 255). An outgrowth of his relationship with KHP, according to McKinzie, is that he said he still has the home and cell phone numbers for most of his former KHP colleagues, including Ballinger. (Id. at 262). He said he was asked by Knight’s lawyers to go to the Fontana yard to inspect the truck. (Id. at 256-57). In direct conflict with Ballinger’s version of events, McKinzie testified that he told Ballinger about his plans to travel to California to inspect the truck before he made the trip and asked Ballinger if he was going to California as well. (Id. at 258-59). Also contradictory to Ballinger’s testimony, McKinzie said Ballinger declined the trip but that Ballinger, nevertheless, knew that McKinzie planned to “do a thorough examination of the truck.” (Id. at 259-60). He claimed that he told Ballinger, in advance of his inspection, about the type of inspection and sampling he intended to do. (Id.). He testified that, in inspecting the truck, he observed “a piece of debris” on the undercarriage of the tractor but that he did not “touch it.” (Id. at 266, 291-92). Although he states he did not “touch” or test the tissue, he later stated that the test results he received back from a private testing lab “on all the other samples [he] collected” allowed him to conclude that the tissue he did not submit for testing was not human. (Id. at 292-93). Also as to the tissue, McKinzie claimed he did not mention it to the Knight employees at the yard, in conflict with Sandberg’s testimony that Ms. Otto, accompanied by McKinzie, told him there was flesh on the truck. I, 303.

McKinzie agreed that in August 2007, he told Ballinger in an e-mail that Knight would make Muthee available to him. (II, 17-21). Despite being hired by Lee Baty, the attorney for both Knight and Muthee, McKinzie testified that — to date — he has never spoken to Muthee and that he did not even know if Baty had ever spoken to Muthee. (I, 258, 298). He later maintained that he did not know that Baty was actually in touch with Muthee. (II, 40). He stubbornly refused to acknowledge that he “vouched” for Knight in his initial e-mail to Ballinger where he wrote “I’ve known these folks for years and have no doubt that they will be cooperative .... ” (I, 298-99).

On cross-examination by Plaintiffs counsel, McKinzie became argumentative, tangling with Plaintiffs counsel on even minor issues such as whether Ballinger was a “qualified state trooper.” (Id. at 277-280). More than once, the Court had to direct him to be responsive to the questions posed. He did admit that he had no phone records to substantiate his claim that he had called Ballinger twice before he traveled to California. (Id. at 280-82). He conceded that he took samples of “foreign material” from the exterior of the truck but insisted he did so with KHP’s permission through Ballinger. (Id. at 307-08). He said he sent the samples for private testing and never turned them over to Ballinger because “he never asked for them.” (Id. at 309-12). He said that everything he did was with the knowledge and consent of Knight’s counsel, Lee Baty. (Id. at 309-10). He continually insisted that, although he represented a potential defendant in a traffic fatality investigation, Ballinger had authorized him to inspect and conduct destructive testing on the truck and samples taken from the truck. (II, 16). He absurdly insisted that allowing interested private parties access to accident vehicles before police is something he would train KHP accident investigators to do in certain circumstances. (Id. at 27-36).

McKinzie ultimately conceded that his role in inspecting the truck for Knight, a potentially liable party, “could” have presented a conflict of interest for him with respect to his dealings with KHP officials investigating the accident. (Id. at 66-67). He did admit that the optimal conditions for KHP’s investigation would have been if the truck had remained at the scene. (Id. at 67). He further conceded that KHP would not have permitted Muthee to remove the truck from the scene or drive it across state lines had they been notified before he left the scene and the state. (Id. at 67-68). And he agreed that if Knight had instructed Muthee to leave the state, that it would have been against the law. (Id. at 68).

McKinzie also conceded some irregularities in his written report, composed March 17, 2010, for the Baty law firm in connection with this civil action. (Pl.’s Ex. 45). Specifically he agreed that the written report for this suit contained no indication that McKinzie himself had been the one who conducted the August 25, 2007 inspection or precisely what he did in conducting his inspection. (I, 285-89, 291-93, 297). He further conceded that the written report failed to mention what he told Ballinger in August, 2007 that he had observed “fatty tissue” on the truck’s undercarriage. (Id. at 288-91). He agreed that his written report, instead concluded that after a “thorough examination of the vehicle’s exterior and undercarriage” he found “no trace of contacting a body.” (Id. at 288). He also agreed that he took around 175 photographs of the truck during his August 25, 2007 inspection but failed to mention the pictures in his written report instead indicating that KHP was responsible for the photos in his report. (Id. at 294-97).

McKinzie’s testimony was problematic for several reasons. For starters, McKinzie had an undeniable conflict of interest in accepting employment with a trucking company under investigation for a traffic fatality and then assuming the lead role in inspecting the very truck suspected in the crash. Resting on his strong ties with KHP, all the while assuring KHP that Knight would fully cooperate, McKinzie appears to have initially lulled his former law enforcement colleagues into not questioning his motives or his clear conflict of interest. This partially explains how he was able to position himself in the highly irregular role of being the first person to inspect the suspect truck.

Further, McKinzie’s testimony conflicted with Ballinger’s in important respects. McKinzie maintained that he told Balling-er he was going to inspect and test the truck before he took the trip to California and that Ballinger had “authorized” the inspection. Yet there is no evidence to support this claim other than McKinzie’s word. Ballinger categorically denies that McKinzie called him before taking the trip or that he ever authorized McKinzie’s inspection. And Ballinger’s account is certainly the more reasonable of the two versions. Ballinger testified that this was the first time in seventeen years of investigating accident scenes that he has seen an interested private party inspect an accident vehicle before law enforcement had access to it. McKinzie did not deny that his access to the truck under these circumstances was atypical. It stands to reason that Ballinger would not “authorize” such an aberration in KHP’s procedures, particularly in a case involving a fatality. And it is further reasonable to infer that McKinzie’s lack of candor on this point evidences his questionable motives in undertaking the inspection and testing of the truck on behalf of Knight in the first place. The subsequent wholesale failure by Knight to cooperate with KHP, despite McKinzie’s assurances, is further proof that McKinzie was not being candid in his account of the facts.

Another troubling area of McKinzie’s testimony was his description of his actions at the Fontana yard. McKinzie’s account of events at the yard was simply not reasonable in parts and conflicted in key respects with Christopher Sandberg’s. Sandberg credibly testified that on August 25, 2007, when McKinzie and Knight’s lawyer came out to the yard to inspect the truck, that the lawyer told Sandberg “that there was actually flesh underneath the truck.” (I, 46-47). McKinzie, in contrast, gave no indication that the conversation Sandberg described about the “flesh” even took place. McKinzie testified that the “folks” at the yard were not told about his observations of the truck, leaving the impression that the conversation Sandberg described with Otto did not occur. Whether the “tissue” he stated he observed was actually human flesh or not, McKinzie’s testimony that he never tested it is nothing short of baffling. If McKinzie was “authorized”, as he claimed, by KHP to conduct testing, the fact that, in the face of a vehicular homicide investigation, he did not touch or sample the one item that appeared to be tissue or flesh makes little sense. McKinzie’s next-day e-mail report to Ballinger described “fatty tissue” and concluded “it might be grease” and further “that this tractor did not hit a person.” (PL’s Ex. 52 at 1). Further confounding McKinzie’s account of events was that his official report, prepared in March 2010 for this suit, makes no mention of tissue and concludes that the examination of the truck’s exterior and undercarriage “revealed no trace evidence of contacting a body.” (PL’s Ex. 45 at 13).

Further, as a highly experienced former lawman working for a company implicated in a fatality accident, it defies common sense that McKinzie never took a statement from or even talked to Muthee about the accident. The illogic of McKinzie’s testimony on this point is underscored by the fact that, at the very time McKinzie claims he never spoke to Muthee, he was acting as Knight’s accident investigator, hired by Lee Baty, the very same lawyer who was representing Knight’s driver George Muthee in connection with the accident.

Finally, McKinzie’s demeanor and his argumentative and evasive manner of responding to straightforward questions severely undermined his believability. Moreover, his testimony was contradicted by other more credible witnesses and in many respects was simply not reasonable.

iv. Will Helton (by deposition)

Plaintiff next offered portions of the deposition testimony of Will Helton, who was driving the Hummer when it was struck. (II, 81). Helton’s deposition was presented partially in question — answer format and partially via the video format of the deposition. It was, nonetheless, compelling and credible in its detail of the horrific events that occurred during and after the accident.

Quoting from the transcript of Helton’s deposition, as it was read and replayed for the Court at the evidentiary hearing, are the following relevant portions, which begin with Helton describing what he observed when he crawled out of the Hummer after the crash with Valek:

QUESTION: Well, let me ask you this way: Give me what sensations you had in terms of sound, force, feeling, what you sensed when this 18-wheeler, this red 18-wheeler came by.

ANSWER [Helton]: I looked up from being in front of the Hummer. I looked because I saw lights coming, getting brighter. And I looked up, and the truck was (makes sounds) and I jump back, massive energy force, wind, major impact, major boom, crunch, splat. And as it ... as it cleared the immediate impact area, it feathered its brakes, went 200 yards, stopped; hit the brakes and slowed down significantly; took his foot off the brakes, and you could hear (makes sounds).

QUESTION: Okay. And either ... either in its headlights or when it hit its brakes, could you see Don anywhere in the road?

ANSWER [Helton]: No.

QUESTION: Okay. After it left, tell me what happened. I understand your shoes had been knocked off and you were walking ... I think you testified that you ... tell me what happened.

ANSWER [Helton]: Exactly what happened, after the truck left, I was pissed off. I knew that something wrong had happened. I was cursing, yelling down the road at the truck; walked out on the street to ... around to the driver’s rear door, kneeled down, pulled the bags off of Kelly.

I looked up. The truck is at this point in time just very distant. I was thinking, you know, this guy is going to come back, you know, and he never did. And there was no cars. There was no lights.

The dome light, which was on the ground, was lit so I could see Kelly’s face. And then she was ... blood all over her face. She was bent all the way over. I was pulling bags out, and I reached in as far as I could and grabbed her hand.

And I said, “You are going to be okay. It is okay. You are all right. It is okay.”

She says, ‘Where’s Don?’

I said, T don’t know, but I’m going to go look for him ... ’

And I continued to hold her hand; get up and start walking down the road, and I’m walking in guts, blood and guts. I could feel it between my toes with my socks on. And then I tripped over an object and in my ... I have no shoes on, and there was glass, metal everywhere, but I hit a solid object.

I looked down and seen in the moonlight, I could see the outline, and it was Don’s shoe, his white ankle sock, his leg up to the top of his thigh, and all of his muscles and nerves hanging out of it.

And I reached down and I touched it. And I was like, ‘Oh, fuck,’ is exactly what I said. At that point in time, I picked the leg up, and I’m ... at this point in time, I’m in shock.

As I walked back toward the Hummer and toward Kelly, didn’t know where Don landed, didn’t know where he was at that point in time. All I saw was blood, guts and body parts. Walking back to the Hummer in the far right lane is when I saw the lights of the other truck coming in, and I was like, oh, my God, here we go again.

But this truck geared down and makes sounds. You could hear the brakes. It would skid a little bit, grinding down the gears, it’s all the way over. And it was hitting metal objects. It passed me by a large distance and then comes over to the right-hand lane and stops.

I walked back to Kelly and checked on her. I get back up, and I walk back over towards the truck that had stopped. The lady gets out of the truck and she is, ‘oh, my God. Oh, my God. Call 911.’ I was pissed off. I just didn’t want to go over there, so I went back to Kelly.

Walking back to Kelly is when I see the headlights of the Lincoln and the guy, the silver-headed guy walking around out there. When his lights were on, I could see Jacob Valek’s car, and I could see him, and he is just hanging out of the car dead. I didn’t bother to go over to check on him because, frankly, I didn’t even care.

I went back over to Kelly. While walking over to Kelly, looking around for Don, never saw him, his upper torso, and then go back to Kelly and that is when I kind of blank out.

The police officers come. And the first police officer says, ‘Sir, are you okay?’ And I remember saying, ‘No, I’m not, I can’t breathe. I don’t know what is wrong with me.’ And then I said, Tou guys need to go get this fucking truck that just left. Somebody just ran through here.’

QUESTION: Let me stop you right there for a second, please, sir. Was this noise loud enough ... a loud enough noise that it could have been easily heard by anybody?

ANSWER [Helton]: Yes.

QUESTION: Like an explosion?

ANSWER [Helton]: Absolutely.

QUESTION: ... Is there any doubt in your mind that the truck that came through after you heard Don moaning was an 18-wheeler?

ANSWER [Helton]: Yes, no doubt in my mind.

QUESTION: Okay. Did any vehicle, between the time you heard Don’s moaning, the time you heard this explosion and the 18-wheeler come through and leave the scene, did any other vehicle come through that could have struck Don?

ANSWER [Helton]: No.

QUESTION: Any question in your mind?

ANSWER [Helton]: There is no doubt in my mind.

QUESTION: Are you speculating on that?

ANSWER [Helton]: No. I know for a fact no other vehicle went through there.

QUESTION: All right, let me stop you there. There were some questions that I think were intended to see whether this was Mr. Valek moaning or Don Ashton moaning, and here is my question to you: How long had you known Don?

ANSWER [Helton]: Since 2002; five years.

QUESTION: Did you know Don’s voice?

ANSWER [Helton]: Oh, yes.

QUESTION: Did you know if this was Don or someone else moaning?

ANSWER [Helton]: It was definitely Don.

QUESTION: Any doubt in your mind?

ANSWER [Helton]: No doubt.

QUESTION: From your physical sensation, including your auditory sensation, was Don alive?

ANSWER [Helton]: Yes, he was definitely alive.

QUESTION: Is what you have described to us something you could easily forget?

ANSWER [Helton]: No, absolutely not. I replay it in my brain every day, every night. And of course I work at Firestone still, and every time that I see anything that references him, I can still hear the (makes noise), I can still see his leg. I can still feel ... yeah. No. My memory of it is very clear.

(II, 85-89, 91,101-02,105-06).

Helton’s video deposition testimony was remarkably strong. His demeanor, even viewed on the video tape, was of a credible individual with a vivid recollection of the horrific events surrounding the accident. Helton exuded anger, as opposed to confusion, as he described Muthee driving too fast through the debris field, causing an “explosion” and then slowing down but never stopping. His testimony established that Muthee not only drove at a reckless rate of speed through the site but also that it would have been highly unlikely that Muthee did not realize that he caused major damage to objects in the debris field.

v. Roger Warren (by deposition)

After presenting Helton’s deposition testimony, the Plaintiff offered excerpts from the deposition of Roger Warren, the Sedgwick County Regional Forensic Center Medical Examiner who responded to the scene of the accident on August 11, 2007. (Id. at 107). Warren interviewed Helton at the scene. (Id. at 108; Pl.’s, Ex. 43 at 10-11). Warren’s deposition testimony, along with his report, composed at 4:30 am on August 11, 2007, established that Helton told him at the scene that Ashton was struck by Muthee’s truck. (PL’s Ex. 43 at 10-11). Moreover, Warren’s report itself confirms that Helton told Warren that he saw Ashton struck by Muthee. (Id. at 10 (“... Decedent struck by N. Bound semi which left the scene.”); id. at 11 (“Witnesses report that the subject [Ashton] was then struck by a semi-tractor trailer.”)). Warren’s report states that “decedent” (Don Ashton) “may have been alive when struck by the missing semi truck....” (Id. at 10). Warren also opined, during his deposition, that, based on his investigation, it was his opinion that “to a reasonable degree of medical probability” Don Ashton “was probably alive” before Muthee hit him. (II, 115-16).

According to deposition testimony offered by the Defendants, Helton told Warren later at the hospital that he was still inside the Hummer when Muthee’s truck drove through the scene. (Id. at 111-12). This contradicted Helton’s later deposition testimony that he was outside the Hummer when Muthee’s truck drove through the scene. (Id. at 111-13). Nonetheless, Warren himself later explained, in response to questions during his deposition, that Helton could have been disoriented after treatment at the hospital when he told Warren he was inside the Hummer when Muthee’s truck went through the scene. (Id. at 116-17).

The fact, as brought out by the Defendants, that Helton told Warren at the hospital after the accident that he was inside the Hummer at the time of Muthee’s impact and later stated he was outside at the time of impact did not undermine the credible impact of Helton’s testimony. Nor does it alter the consistent version of events from Helton, since he was interviewed at the accident scene, that Mu-thee’s truck drove through the debris filed and hit Ashton.

vi. Discovery Issues

Plaintiffs counsel closed their evidence with a presentation in support of their position that the Defendants had engaged in discovery abuses. First, Plaintiffs counsel maintained that they sought, through formal requests for production: all documents regarding communications relating to the accident between Knight and it representatives and KHP, between Knight and the Republic County Attorney, between Knight and any other Kansas law enforcement agency, and between Knight and any federal law enforcement agency. (II, 122-23; PL’s Ex. 17). Plaintiffs counsel stated that he asked for these communications in July 2009, but that the Defendants did not produce them when they turned over other responsive documents. (II, 122-27). Instead, Plaintiffs counsel complained, the documents showing these communications and which unquestionably cast Knight in a unfavorable light, ultimately had to be obtained through Balling-er and other sources. (Id. at 125-27). Knight did not contest that this was how the documents had to be obtained.

Second, Plaintiffs counsel also stated they requested Muthee’s driving records, including any driving violations, from the Defendants in July 2009. He stated that, despite Defendants’ counsel’s assurances that all responsive documents had been produced, that he did not get critical information responsive to this request from the Defendants until June 2010, on the eve of deposing Knight’s safety director, Brett Sant, and that what he received, admitted as Plaintiffs Exhibit 19, was “unintelligible.” (II, 128-30; Pl.’s Ex. 19). Counsel said it was not until Sant’s deposition that he was able to obtain from Defendants a document, Plaintiffs Exhibit 22, showing that Muthee, in the hours and days preceding the accident, had been driving excess hours in violation of federal law and that Knight knew about the situation at the time, which was just prior to the Kansas accident. (II, 129-32; Pl.’s Ex. 22). It was not until after receiving this document, Plaintiffs counsel argues, that he was able to determine through Sant, that Knight was communicating with Muthee in the days preceding the accident and telling him to stop because he was driving over legally permissible hours. (II, 130-32). Knight did not dispute this sequence of events.

Finally, with respect to the Qualcomm communications between Muthee and Knight in the days and hours surrounding the accident, Plaintiffs counsel argued that the Defendants turned over some documents covering the 13th and 14th of August that were in an easily readable “screen shot” e-mail type format but produced nothing for the period of the 8th through the 12th. (Id. at 132-38; Pl.’s Ex. 26). After complaining to Defendants’ counsel, the Defendants produced an excel-spreadsheet type document purportedly covering the 8th through the 12th which was in Plaintiffs counsel’s words “indecipherable” in its format, triggering an acrimonious e-mail exchange reflected in Plaintiffs Exhibit 27. (See II, 133-36, 161-62). Ultimately, according to Plaintiffs counsel, the Defendants took the position that there were no communications between Muthee and Knight in the hours immediately surrounding the accident. As for the communications on August the 8th through the 12th, other than those immediately before and after the accident, Knight concedes it could have preserved them in the screen shot format, as it did for the 13th and 14th but did not. Knight’s claims manager, Greg Williams, testified that his failure to preserve these screen shots was an “oversight” and agreed that the excel spread sheet format, unlike the screen shots, could be manipulated or edited.

B. Defendants’Evidence

i Lee Baty

The Defendants’ first witness (other than Robert McKinzie, who was called during Plaintiffs presentation of evidence for scheduling reasons) was Lee Baty, the attorney hired by Knight shortly after the accident. He said he was called by Knight a few days after August 17, 2007. (II, 172). Baty said that someone at Knight called him after the company had been notified by KHP that one of its trucks may have been involved in an accident. (Id. at 173). Baty said that he hired McKinzie within a week after being retained by Knight. (Id. at 174). He said that in the week after he was hired, arrangements were made to fly McKinzie along with Baty’s partner, Theresa Otto, to inspect the truck in California. (Id. at 174-75). He testified that he spoke by phone with Trooper Ballinger before the trip and told Ballinger about the trip and its purpose and told him that Knight would pay for Ballinger’s trip but that Ballinger declined. (Id. at 175). He said he did not receive and was not aware of any objection or resistance on the part of Ballinger or KHP to Knight’s private inspection of the truck. (Id. at 176-77).

As for Muthee, Baty said that Knight told him that Muthee was no longer an employee and could only be contacted by cell phone. (Id. at 177). He said he told Ballinger that he would try to make Mu-thee available for an interview but that because “Ballinger could not ... travel to California” and because Muthee hired criminal counsel who would not permit him to return to Kansas, that the meeting never occurred. (Id. at 177-78). He said he never took any type of written or recorded statement from Muthee. (Id. at 179). And he said that Knight told him that the company had not taken any written statements from Muthee. (Id.).

On cross-examination, Baty conceded that he was not entirely sure whether he had communicated with Ballinger before McKinzie and Otto traveled to California in August 2007. (Id. at 191-92). He indicated that he knew there was a homicide investigation in progress in Kansas in connection with the accident when he authorized McKinzie’s trip and inspection and testing of the truck. (Id. at 193-95). He said that he spoke with Muthee by phone after the accident but would not reveal the details of the conversation due to attorney-client privilege. (Id. at 202-03). Baty also said that he located and hired a criminal defense attorney for Muthee named Tom Haney. (Id. at 205-08). He agreed that throughout his discussions with Ballinger over the months following the accident that he was acting as Knight’s lawyer and for much of it he was acting as Mu-thee’s counsel as well. (Id. at 204-05, 209). He testified at the evidentiary hearing that he was still representing Knight and Muthee. (Id. at 219). He said that he never disclosed to Ballinger that he was operating as Muthee’s counsel. (Id. at 205, 239-40).

Baty agreed that the missing steer tires were key pieces of evidence but that he believed that Muthee thought he had the authority to order their replacement. (Id. at 213-15). He said his attorney-client relationship with Knight precluded him from addressing whether he spoke with Knight about authorizing the tire replacement. (Id. at 216). He testified that he tried to cooperate with Ballinger in his investigation but agreed that he filed a motion to quash a subpoena for documents from the State of Kansas in connection with their criminal investigation of Mu-thee. (Id. at 220-22).

Baty said Greg Williams, Knight’s claims manager, hired him to represent Knight and it was Williams to whom he reported to in connection with the accident investigation. (Id. at 234-35). He stated that Williams told him that Muthee never contacted anyone at the company after the accident and instead left the truck in a parking lot in California. (Id. at 235-236). He agreed that the truck’s removal from the accident site to the California yard impeded the investigation, (Id. at 237). He said he was told that Knight first learned about the accident on August 17th but that he did not know whether Knight had authorized the tire replacement before or after the work was done. (Id. at 237-238).

Baty, although positioned to know the details of key events, either disclaimed personal knowledge or claimed attorney-client privilege as to any material facts. He stood by Knight’s dubious story that Muthee never contacted the company after the accident and thereafter abandoned both his truck and his job only to have Knight hire Baty to represent him.

ii Corey Paul

The next defense witness was Corey Paul, Director of Maintenance at Knight. (II, 243). He said he was familiar with TDS, the tire vendor Muthee had used in Sparks, Nevada. (Id. at 246-47). He said that the TDS facility was an authorized vendor for Knight. (Id.). He testified that Knight expects its drivers to obtain its authorization before getting tires repaired or replaced. (Id. at 248). He said the following information would be needed from the driver for Knight to authorize tire repair or replacement:

Position, meaning what position tire it is on what piece of equipment, the equipment number, and what was happening to the tires in the case of this being a tire bank, if it was a previously re-tread-ed tire, that would have a different disposition than a unretreaded tire, so we would want to know that

(Id.). He testified that he had no first-hand knowledge about Muthee’s tire replacement but talked about standard operation procedures for obtaining approval from Knight for tire and other truck repairs. (Id. at 249-56).

On cross-examination, Paul agreed that, based on the information contained in Plaintiffs Exhibit 8, which was paperwork documenting the tire replacement, that Knight knew about the tire replacement on August 14th. (Id. at 256; Pl.’s Ex. 8). He testified that drivers must get approval from Knight before having their tires replaced by communicating with someone at Knight. (II, 257-258, 263). He said that approval was usually obtained in one of two ways; either by the driver calling Knight on the phone or sending the company a Qualcomm message. (Id. at 258-59). He said if the approval was by phone that a “repair order would be created.” (Id. at 258). He said that the only reason a driver would stop on a trip to have tires replaced instead of returning to Knight’s offices is if the tires were “illegal to run.” (Id. at 260-61). He agreed that Plaintiffs Exhibit 8 showed that Knight authorized the Muthee’s tires to be “buffed-off and retreaded.” (Id. at 261-62). He agreed that Plaintiffs Exhibit 8 showed that on August 14, 2007, that “someone from Knight Transportation authorized the tread to be completely buffed off those tires.” (Id. at 262). Finally, Paul agreed with Plaintiffs counsel that Plaintiffs Exhibits 57 and 8, oddly, showed Muthee’s truck having less mileage at the time of the tire replacement on August 13, 2007 (111,111) than it had in June, 2007(192, 686). (Id. at 265-66).

Despite his status as a defense witness, Paul’s testimony only reinforced Plaintiffs theory that Knight’s settled policy for tire replacement or repair was to obtain company authorization in advance of the repair work. With his professed lack of personal knowledge about the facts of Muthee’s repair, he added nothing to the defense theory that Knight did not authorize or even know about Muthee’s tire replacement until after it was done.

in. Cory Staheli

The Defendants called Corey Staheli, Knight’s Vice President of Information Technology, as their third witness. (Ill, 2). Staheli’s testimony centered primarily on the electronic data stored by the company that reflected communications between Muthee and Knight for the critical period surrounding the accident, August 8, 2007, through August 13, 2007.

Staheli indicated that he was asked to provide the Qualcomm data showing electronic communications to and from Mu-thee’s truck for August 8th through the August 13th but that the data no longer existed in a “print screen” format. (Id. at 3, 15, 24-26). Instead, he said that he had to retrieve the data from a tape and “export” it into an “excel spread sheet” format. (Id. at 3-6). He said the data he retrieved was contained in Defendants’ Exhibit 19. (Id. at 4-6). He could not explain why the data was not preserved in the more easily readable “screen shot” format of Defendants’ Exhibit 18 instead of the excel format reflected in Defendants’ 19 (Plaintiffs Exhibit 27A contains the same data as Defendants’ Exhibit 19). (Id. at 20-22, 39-40, 56-57; Defs.’ Exs. 18, 20). He testified that the stored electronic data in Defendants’ Exhibit 19 showed no communications between Muthee and Knight for the night of August 10th and the early morning hours of August 11th, the critical period surrounding the accident. (111,23).

On cross-examination, Staheli agreed that the screen shots for the relevant dates could have been preserved by printing them out within a year of their creation. (Id. at 26-27). He could not explain why, in the face of a request from KHP to preserve data within days of the accident, that the screen shots were not preserved. (Id. at 33-35, 38). He agreed again that the screen shots are in a much more readable format than the data that remains on the system after one year. (Id. at 30-31, 56-57). He also agreed that once the data contained on the screen shots is deleted that the excel spread sheet format in which it is retrievable can be manipulated and information deleted. (Id. at 45-46, 57). He conceded that he could not tell if the data presented in the excel spreadsheet format of Defendants’ Exhibit 19 had been edited. (Id. at 45-48, 58).

As to Knight’s truck repair policy, Staheli did, however, state that it is company policy for truckers involved in accidents to stop driving and report the accident to Knight’s safety department or potentially lose their jobs. (Id. at 18-20). He also agreed that drivers must get company approval before getting tires replaced. (Id. at 65-67, 68, 70).

iv. Greg Williams

Greg Williams was the fourth defense witness. He stated that, as former Director of Claims for Knight, he was the first person in the company to be notified of a trucking accident. (Id. at 74-75). He testified he was notified by KHP that one of Knight’s trucks may have been involved in an accident around six days after the accident. (Id. at 75-76, 78). He said he narrowed his search to Muthee. (Id. at 78). He indicated that he checked the Qualcomm system for communications from Muthee indicating he had been in an accident, but found none. (Id. at 78-79). He stated that he tried to reach Muthee but that Muthee did not respond to his calls. (Id.). He said he used'the “Qualcomm positioning system” to locate Mu-thee’s truck “in the L[os] A[ngeles] basin ... area.” (Id. at 79). He said that he sent two Knight employees out to retrieve the truck and return it to Knight’s “Fontana California drop yard.” (Id.). He said the truck was parked in the Los Angelesarea lot without its trailer. (Id. at 152).

Williams testified that a few days after the accident, he retained attorney Lee Baty to represent Knight and that Baty, in turn, hired McKinzie to investigate the accident. (Id. at 82-83). He claimed that he did not speak to Muthee at any time about the accident and did not know if Baty had spoken to him. (Id. at 85-86, 116, 140-41). Nonetheless, he stated that he hired Baty for Knight and Muthee. (Id. at 115,154). He said he believed Baty “debriefed” Muthee about the accident but could not explain why, with Baty representing both parties, he was unable to interview Muthee. (Id. at 156-57). Nor could he explain, if he never talked to Muthee, how it was that Muthee gave his approval for Knight to hire and pay for a lawyer to represent him. (Id. at 155-56). He also had no justification for the fact that, instead of hiring a lawyer for Muthee, Knight did not simply fire him for violating company policy by leaving the scene of an accident, having unauthorized repairs done to the truck, and abandoning his rig and job. (Id. at 158-59). He conceded this was the first incident he remembered where the company failed to obtain a statement from a driver involved in a major accident explaining what happened. (Id. at 140-42). He agreed that not attempting to obtain a statement from Muthee did not “look good” for the company. (Id. at 143).

Williams said he had been the designee in the company to handle vehicle damage repair issues. (Id. at 123). He said he would not approve damage repair without first knowing the cause. (Id. at 124). As for the repairs, Williams said in the days after the accident, he found company records indicating that Muthee had some repairs done to the truck. (Id. at 88-92). He could not explain why Plaintiffs Exhibit 8, the TDS document regarding Mu-thee’s tire change, reflecte