Gaytan Soto v. Swift Transportation Services, LLC

           UNITED STATES DISTRICT COURT                              
               DISTRICT OF MINNESOTA                                 

Ricardo Gaytan Soto and                Case No. 0:17-cv-124-JRT-KMM       
Marisol Gaytan Soto,                                                      

                   Plaintiffs,                                       

v.                                           ORDER                        
Swift Transportation Services, LLC, and                                   
Anthony Shealey,                                                          
                 Defendants.                                         

Brian E. Wojtalewicz, Wojtalewicz Law Firm, Ltd., PO Box 123, Appleton, MN, 
56208, counsel for plaintiffs                                             
Brian A. Wood, Matthew D. Sloneker, Michael Thomas Burke, William L. Davidson, 
Lind Jensen Sullivan & Peterson, PA, 901 Marquette Ave. S., Suite 1300, Minneapolis, 
MN, 55402, counsel for defendants                                         


This case arises out of a traffic accident involving the plaintiff, Richard Gaytan 
Soto, and a semi-truck operated by defendant Anthony Shealey for Swift    
Transportation Services, LLC. Mr. Gaytan Soto and his wife, Marisol Gaytan Soto, 
allege that on the night of November 15, 2016, Mr. Gaytan Soto was driving his sedan 
on an interstate highway in Minnesota when he crashed into the trailer of 
Mr. Shealey’s overturned semi-truck, which was blocking the roadway. Just before the 
accident, Mr. Shealey lost control of the semi-truck when he encountered a herd of 
deer in the roadway, attempted to avoid hitting them, drove into a ditch, and tried to 
return to the road. At that point, Mr. Shealey’s vehicle overturned and the trailer 
completely blocked oncoming westbound traffic. [Am. Compl. ¶¶ 24–25.] The 
plaintiffs assert that Mr. Shealey is liable for negligence and that Swift is vicariously 
liable because he was acting as Swift’s agent at the time of the accident. [Id. ¶¶ 26–35, 
44–48.] The plaintiffs also allege that Swift is liable for negligently hiring, training, 
supervising, and retaining Mr. Shealey as a driver.1 [Id. ¶¶ 36–43.]      
                 MOTION TO AMEND2                                    
The plaintiffs have moved to amend their complaint to add claims for punitive 
damages. [ECF No. 85.] Through their Proposed Second Amended Complaint, the 
plaintiffs would add requests for punitive damages against Mr. Shealey personally and 
against Swift. [ECF No. 94.] Generally speaking, the plaintiffs argue that: 
(1) Mr. Shealey deliberately disregarded appropriate training for a professional driver 
of a commercial motor vehicle who encounters deer in the roadway and otherwise 
showed indifference to the safety of others; and (2) Swift hired Mr. Shealey and kept 

1    The case is in federal court based on diversity jurisdiction. See 

. 
2    The Court bases the following factual recitation on the evidentiary materials 
provided by the plaintiffs in support of their motion to amend. These materials are 
attached to the Declaration of Brian Wojtalewicz as Exhibits A through K. [ECF 
No. 93.] The evidence includes: the deposition of Mr. Shealey (Exhibit A); the 
deposition of Christina Shealey (Exhibit B); the deposition of Swift’s 30(b)(6) 
representative Bill Peyton, a regional safety director for the company (Exhibit C); the 
deposition of Swift employee Victor Malchesky (Exhibit D); the preliminary report of 
Michael Long, a Large Vehicle Accident Consultant, who opines that Mr. Shealey’s 
driving conduct was below the standard for a commercial motor vehicle driver 
(Exhibit E); and photographs of the accident scene (Exhibits I and J). Exhibits F, G, 
and H to Mr. Wojtalewicz’s declaration are unpublished cases provided for the 
Court’s consideration. Finally, Exhibit K is a timeline of events concerning 
Mr. Shealey’s work as a commercial driver. Finally, the Court has also reviewed the 
information submitted by the plaintiffs in Mr. Wojtalewicz’s Supplemental 
Declaration and the attached Exhibit A, which is an early accident scene report 
prepared for Swift by its insurer. [ECF No. 110.] For the purposes of this ruling, the 
Court need not more closely parse the factual record, including the materials 
submitted by the defendants, because even a generous reading of the documents 
relied upon by the plaintiffs does not satisfy the high bar for amendment under 

. Accordingly, the Court finds it unnecessary to permit the defendants 
to supplement the record as they requested in a May 10, 2018 letter.      
him employed as a driver despite knowing that he posed a high likelihood of danger 
to others’ safety.                                                        

Mr. Shealey was an independent driver who had been contract-driving for Swift 
for about five months at the time of the accident. The plaintiffs assert that he showed 
an indifference to the safety of others because he referred to drivers of ordinary 
passenger vehicles with disdain, calling them “asshats.” They assert that Mr. Shealey 
was not aware of Swift’s training materials advising professional drivers never to 
swerve to avoid deer on a highway. Although his semi-truck carried a full load, the 
plaintiffs allege that Mr. Shealey showed deliberate disregard for others’ safety because 
he was driving 68 miles per hour at the time of the incident, which exceeded the 
speeding policy Swift applied to its employee drivers. The plaintiffs contend that 
Mr. Shealey ignored commercial driver’s license manuals that recommend semi-truck 
drivers steer their vehicles to the right in an emergency. Further, they allege that 
Mr. Shealey thought about staying in the ditch when he veered off the road, but 
instead attempted to turn back on the roadway. Plaintiffs complain that Mr. Shealey 
refused to agree that the accident was preventable and he did not accept fault for the 
crash and the rollover. They also emphasize that Mr. Shealey claimed that he never 
heard Mr. Gaytan Soto’s vehicle crash into his truck, and he recalled, allegedly 
incorrectly, that there was no shoulder between the left lane and the grassy median. 
According to the plaintiffs, Mr. Shealey’s improper conduct is further demonstrated 
by the fact that he did not attempt to warn oncoming vehicles of an emergency 
immediately after his vehicle came to rest on its side. Finally, the plaintiffs argue that 
amending their complaint to seek punitive damages is proper because Mr. Shealey 
testified that he might make the same decisions if confronted with multiple deer on 
the highway again.                                                        
In their negligent hiring, supervision, training, and retention claims against 
Swift, the plaintiffs argue that the company ignored Mr. Shealey’s prior trucking 
violations and didn’t inquire about why he left a prior trucking job after only a few 
months of employment. Swift also allegedly ignored evidence that Mr. Shealey suffers 
from post-traumatic stress disorder, and the plaintiffs assert that the company should 
have responded differently to evidence showing that Mr. Shealey was unemployed for 
several years. Swift also allegedly ignored Mr. Shealey’s criminal history, which 
involved one assault and one trespass charge, even though Swift’s safety manager 
considers temperament and judgment relevant factors for a truck driver.   
The plaintiffs also point to conduct of Mr. Shealey during his Swift 
employment that they claim the company should have handled differently. The 
plaintiffs argue that Swift ignored the fact that Mr. Shealey had an incident involving 
failure to control a semi-truck during his training that took place a few months before 
the crash at issue. They also point to the fact that Mr. Shealey got a speeding ticket in 
October of 2016, and assert that Swift did respond appropriately.         
Finally, the plaintiffs allege that Swift didn’t adequately train Mr. Shealey. The 
plaintiffs argue that Mr. Shealey and his wife, Christina Shealey, who was in the truck 
with him on the night of the incident, stated that they were not trained by Swift on 
what to do upon encountering deer on the highway or how to operate the semi-truck 
upon going off the road. The plaintiffs further argue that amending the pleadings to 
seek punitive damages from Swift is appropriate because Mr. Shealey had not heard of 
“outrunning his headlights” as a safety concept and Swift allegedly does not require 
trainees or drivers to read the company’s safety manual, which includes warnings 
relating to encountering deer on the roadway.                             
                  LEGAL STANDARD                                     
Under Minnesota law, punitive damages are available when a plaintiff shows by 
clear and convincing evidence “that the acts of the defendant show deliberate 
disregard for the rights or safety of others.” 

, subd. 1(a). A 
defendant acts with such “deliberate disregard” where the defendant:      
has knowledge of facts or intentionally disregards facts that create a high 
probability of injury to the rights or safety of others and:         
     (1) deliberately proceeds to act in conscious or intentional    
  disregard of the high probability of injury to the rights or safety of 
  others; or                                                         
     (2) deliberately proceeds to act with indifference to the high  
  probability of injury to the rights or safety of others.           

, subd. 1(b)(1)–(2).                                  
The parties disagree whether Mr. Gaytan Soto should be allowed to amend his 
complaint to add a claim for punitive damages based on a related Minnesota statute: 

, which is sometimes referred to as the “gatekeeping statute.”3 
According to the gatekeeping statute, plaintiffs are not permitted to include a claim 
for punitive damages in an initial complaint. Instead, plaintiffs are required to make a 
prima facie evidentiary showing, by one or more affidavits, that defendants acted with 

3    Recent decisions reflect a disagreement among magistrate judges within the 
District of Minnesota regarding whether 

 or Federal Rule of Civil 
Procedure 15 should govern a request for leave to amend to add punitive damages to 
a complaint. Compare Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-
3183 (ADM/LIB), Doc. No. 534 (D. Minn. Mar. 8, 2018) (applying 

), with Selective Ins. Co. of S.C. v. Sela, No. 16-cv-4077 (PJS/SER), Doc. 
No. 111 (D. Minn. Apr. 26, 2018) (concluding that Fed. R. Civ. P. 15 applies to 
requests for amendment to add claims of punitive damages), and In re Bair Hugger 
Warming Devices Prods. Liab. Litig., No. 15-2666 (JNE/FLN), 

 (D. 
Minn. July 27, 2017) (denying the motion to amend to plead punitive damages 
according to Fed. R. Civ. P. 15 standards); see also Ramirez v. AMPS Staffing, Inc., 

, at *2–6 (D. Minn. Apr. 27, 2018) (acknowledging the split of authority 
but declining to resolve the issue because the plaintiff satisfied both 

 and Fed. R. Civ. P. 15). Because neither party has asked the Court to apply 
anything other than 

 in this case, the Court will examine the 
motion to amend to add punitive damages according to that statute.        
deliberate disregard for others’ rights or safety in order to add such a claim. See 

 The 
prima facie showing must be clear and convincing. See Berczyk v. Emerson Tool Co., 

 (D. Minn. 2003). The Court reviews the evidence provided by 
a plaintiff as it would review a motion for a directed verdict, without making 
credibility rulings or considering a challenge, “by cross examination or otherwise, to 
the plaintiff’s proof.” 

 at 1008 n.3. This means that “[t]he trial court may not allow 
an amendment where the motion and supporting affidavits do not reasonably allow a 
conclusion that clear and convincing evidence will establish the defendant acted with 
willful indifference4. . . .” 

 (internal quotations omitted). “A mere showing 
of negligence is not sufficient to sustain a claim of punitive damages.” 

 
(internal quotations and alterations omitted).                            
                       ANALYSIS                                      
In this case, the plaintiffs have failed to demonstrate an entitlement to plead 
punitive damages according to 

. Despite their attempt to 
characterize this as a case involving deliberate disregard for the safety of others, the 
record does not clearly and convincingly support that contention. Specifically, the 
plaintiffs do not offer clear and convincing evidence that Mr. Shealey or Swift 
deliberately disregarded a high risk to the safety of others.             
A.   No Precedent For Punitive Damages In Similar Cases                   
One substantial obstacle to the plaintiffs’ motion to amend is that they point to 
no case from the Minnesota Court of Appeals, Minnesota Supreme Court, or even the 
District of Minnesota applying the gatekeeping statute, where a plaintiff has been 
allowed to add a punitive damages claim under facts similar to those at issue here. 

4    As the court noted in Olson v. Snap, Inc., the Minnesota Legislature replaced the 
phrase “willful indifference” with “deliberate disregard” in 1990, with the newer 
standard being characterized “as a ‘heightened’ one.” 

, 1035 & n.2 
(D. Minn. 1998) (quoting Bougie v. Sibley Manor, Inc., 

, 500 n.4 (Minn. 
App. 1993)).                                                              
They also have not cited any Minnesota appellate case upholding an award of punitive 
damages under similar circumstances. And the Court found no such authority in 
conducting its own research.                                              
This absence of precedent to support the plaintiffs’ position is central to the 
Court’s conclusion that leave to amend under the gatekeeping statute is inappropriate. 
Minnesota’s statutory scheme for punitive damages is designed to weed out 
unmeritorious punitive damages claims and requires a court do more than rubber 
stamp a plaintiff’s allegations. See Ulrich v. City of Crosby, 

, 866–67 (D. 
Minn. 1994) (explaining that Minnesota enacted § 549.191 “to deter certain practices 
in the presentment of punitive damages claims which were thought to be abusive”); id. 
at 868–69 (“[W]hen presented with a Motion for leave to assert a punitive damage 
claim, the function of the Court is to do more than “rubber stamp” the allegations in 
the Motion papers. The Court must independently ascertain whether there exists 
prima facie evidence that the defendant acted with a deliberate disregard of the rights 
or safety of others.”).                                                   
At the hearing on the motion, the Court asked the plaintiffs’ counsel for any 
authority applying Minnesota law that supports their request for leave to amend. 
Counsel conceded that he could not think of an auto-accident case involving negligent 
driving where such damages were permitted, with one readily distinguishable 
exception. Counsel noted that Minnesota courts have permitted recovery of punitive 
damages where an automobile accident is caused by a driver who is under the 
influence of alcohol.5 See Anderson v. Amundson, 

 (Minn. Ct. App. 

5    In the year 2000, the Minnesota Legislature enacted a law specifically 
authorizing punitive damages in civil actions involving motor vehicle accidents where 
the accident was caused by a drunk driver. Minn. Stat. § 169A.76(a) (“In a civil action 
involving a motor vehicle accident, it is sufficient for the trier of fact to consider an 
award of punitive damages if there is evidence that the accident was caused by a 
driver” whose blood alcohol concentration exceeds the legal limit, who was under the 
influence of a controlled substance, or was under the influence of alcohol and refused 
                                    (footnote continued on following page) 
1984) (“If the act of drinking and driving was of such a nature that a jury could find 
[the defendant] acted with a willful indifference to the rights or safety of others, an 
award of punitive damages is an appropriate sanction for the operation of a motor 
vehicle while under the influence of alcohol.”) (internal quotations omitted). 
However, reliance on this authority is misplaced. There is nothing in the record that 
suggests Mr. Shealey was driving under the influence of alcohol or any other 
substance at the time of the accident at issue in this case. And the plain disregard for 
the safety of others evidenced by driving after drinking is certainly different from the 
negligence alleged against Mr. Shealey.                                   
Because of the uniquely high bar contained in the Minnesota punitive damages 
statutory scheme, the Court is not persuaded by plaintiffs’ citation to cases from other 
jurisdictions. For example, the plaintiffs cite to a North Dakota trial court decision, 
Boyer v. Weist Truck Line, Inc. et al., No. 18-2012-CV-01621, in which plaintiffs were 
permitted to amend their complaint to add a claim for punitive damages against a 
trucking company and the driver of a commercial vehicle. [Wojtalewicz Decl., Ex. F, 
ECF No. 93-6.] However, the North Dakota statute at issue in that case required only 
a preponderance of the evidence to amend the complaint to add punitive damages. 
Moreover, the decision did not explain what circumstances led the court to find 
sufficient evidence that the driver consciously disregarded legal limits on how long 
and how often a driver can drive without rest. [Id., Ex. F at 2 (citing 

(a)(1)–(2)).] Given the different standard, the lack of significant discussion, and 
the fact this case does not involve any claim that Mr. Shealey should not have been 

(footnote continued from previous page)                                   
to take a chemical test for intoxication). This statute is plainly inapplicable here 
because there are no facts in the record or even any allegation that Mr. Shealey was 
under the influence of alcohol at the time of the accident.               
driving at all at the time of the accident, the plaintiffs’ reliance on this case is 
misplaced.6                                                               
In sum, the Court can find no legal support for the plaintiffs’ position that, in a 
case of alleged negligence causing a traffic accident, leave to amend should be granted 
pursuant to Minnesota’s gatekeeping statute. Indeed, existing caselaw strongly 
suggests that punitive damages are not permitted in such cases. See Olson, 

 (“[T]he mere existence of negligence or of gross negligence does not rise 
to the level of willful indifference so as to warrant a claim for punitive damages.”) 
(quoting Ulrich v. City of Crosby, 

 (D. Minn. 1994)); see also James 
Gempeler & Lindsay Mancini, Smart Phones Dumb Driving and the Law the Criminal and 
Civil Consequences of Distracted Driving, Bench & B. Minn. at 23 (November 2016) 
(“Currently, Minnesota courts have only allowed compensatory damages in tort 
automobile claims, unless the at-fault party was intoxicated as established under Minn. 
Stat. § 169A.76.”).                                                       
B.   No Prima Facie Showing As To Mr. Shealey                             
Aside from the lack of precedent, the evidentiary record offered by the plaintiff 
does not transform Mr. Shealey’s reaction to encountering a herd of deer on the 
highway into a deliberate act taken in conscious or intentional disregard of a high 
probability of injury to the rights or safety of others. See 

, 
subd. 1(b). There is certainly no suggestion that Mr. Shealey acted with intent to injure 
anyone.7 There is also no showing that Mr. Shealey had been driving erratically, 

6    The authority from other jurisdictions cited by the plaintiffs also fails to 
convince the Court that leave to amend should be granted under the unique 
parameters of Minnesota’s gatekeeping statute in this case. [Pls.’ Mem. at 44–46 (citing 
several cases from other jurisdictions), ECF No. 97.]                     
7    The Court is unpersuaded that Mr. Shealey’s Facebook post referring to drivers 
of regular passenger vehicles as “asshats” transforms his split-second reaction to deer 
into an intentional tort or a malicious act.                              
recklessly, or without adequate rest at the time he encountered the herd of deer. 
Instead, the record shows that Mr. Shealey was driving under the posted speed limit 
and that he attempted to move around the deer when he saw them because he was 
concerned about his own safety, his wife’s safety, and the safety of his dog. [Dep. of 
Anthony Shealey at 110:7–12.] Even if these facts and Mr. Shealey’s actions could 
demonstrate negligence under these circumstances, they would not permit a jury to 
find by clear and convincing evidence that he was willfully indifferent to the safety of 
other motorists.                                                          
The Court is also not persuaded by the plaintiffs’ reliance on Mr. Shealey’s 
alleged failure to warn other drivers that his trailer was blocking traffic after his 
vehicle overturned. As the plaintiffs acknowledge in their brief, Mr. Shealey testified 
that he was unconscious after his semi-truck flipped onto its side in the roadway, and 
came to after law enforcement was on the scene. [See Dep. of Anthony Shealey at 
36:5–10.] In the face of this reality, his failure to warn does nothing to establish that 
he was willfully indifferent to other drivers’ safety. Similarly, the Court is unpersuaded 
by the plaintiffs’ curious reference to the Mr. Shealey’s and Ms. Shealey’s testimony 
that they did not hear Mr. Gaytan Soto’s car hit the trailer at the time of the accident. 
The Court simply does not understand how this fact is relevant to any question of 
deliberate disregard for the safety of others.                            
C.   No Prima Facie Showing As To Swift                                   
With respect to Swift, the plaintiffs have failed to show that they should be 
given leave to amend under the Minnesota gatekeeping statute as well. Specifically, 
they have not shown prima facie clear and convincing evidence that Swift was willfully 
indifferent to the safety of others in connection with its hiring, retention, or training 
of Mr. Shealey. Nor have they demonstrated an entitlement to allege a punitive 
damages claim based on Mr. Shealey’s actions as Swift’s agent because they have failed 
to make the requisite prima facie showing that Swift deliberately disregarded a high 
probability that Mr. Shealey was unfit to be a commercial motor vehicle driver. See 

, subd. 2(2) (permitting punitive damages against a master or 
principal because of the acts of an agent where “the agent was unfit and the principal 
deliberately disregarded a high probability that the agent was unfit”).   
The record does not show by prima facie clear and convincing evidence that 
Swift was willfully indifferent to facts indicating that Mr. Shealey posed a great risk to 
others on the road. For instance, the plaintiffs have not presented evidence that 
Shealey’s driving conduct had caused repeated accidents before he was hired and that 
Swift was aware of such a history. Nor have the plaintiffs shown that after hiring 
Mr. Shealey, Swift ignored information that he was operating his semi-truck 
improperly.                                                               
The Court is not persuaded by the plaintiffs’ suggestion that Mr. Shealey’s 
previous assault and trespassing cases support its punitive damages case. These non-
driving incidents do not establish that Swift deliberately disregarded facts showing he 
was unfit to operate a commercial vehicle.8 And the plaintiffs’ reference to 
Mr. Shealey’s PTSD, a condition arising from his military service, is even less 
persuasive and, frankly, less respectable. There is no evidence whatsoever in this 
record that Mr. Shealey’s mental health history contributed in any way to how he 
handled his nighttime encounter with deer on the road.                    
The plaintiffs also suggest that Swift demonstrated a deliberate disregard for 
the safety of others because its training was insufficient. However, the plaintiffs’ own 
prima facie evidence demonstrates that Swift’s training materials included the very 

8    The plaintiffs point to testimony from a Swift representative agreeing that 
judgment and temperament are important traits for a commercial driver and argue 
that Swift’s decision to hire Mr. Shealey deliberately disregarded his lack of fitness for 
the job because of his criminal history. However, there is not any showing in this 
record that Mr. Shealey’s previous criminal charges made him unfit to drive a semi-
truck, let alone a clear and convincing one. Indeed, neither of the charges identified 
are even shown to relate to driving conduct. The assault case involved a confrontation 
with his wife’s stepfather, to which Mr. Shealey pleaded guilty in 1998. [Dep. of 
Anthony Shealey at 99:15–100:2.] There was no information about his 1987 charge 
for trespassing. [Id. at 99:6–14.]                                        
instruction (not swerving to avoid deer) that they contend should have been followed 
in this case. It is difficult to see how Swift’s inclusion of that very admonition in its 
training materials clearly and convincingly demonstrates that Swift was willfully 
indifferent to the safety of others. The fact that such training was allegedly not 
followed here does not convert a negligence claim into one which supports punitive 
damages.                                                                  
Ultimately, the plaintiffs point to evidence that may be relevant and helpful to 
their negligence claims. However, none of that evidence clearly and convincingly 
shows that Swift deliberately disregarded a high probability that others would be 
injured by Mr. Shealey when Swift hired him and allowed him to drive a semi-truck 
for the company.                                                          

IT IS HEREBY ORDERED THAT the plaintiffs’ Motion for Complaint       
Amendment for Punitive Damages [ECF No. 85] is DENIED.                    

Date: May 14, 2018                                                        
                                     s/Katherine Menendez            
                                   Katherine Menendez                
                                   United States Magistrate Judge    

           UNITED STATES DISTRICT COURT                              
               DISTRICT OF MINNESOTA                                 

Ricardo Gaytan Soto and                Case No. 0:17-cv-124-JRT-KMM       
Marisol Gaytan Soto,                                                      

                   Plaintiffs,                                       

v.                                           ORDER                        
Swift Transportation Services, LLC, and                                   
Anthony Shealey,                                                          
                 Defendants.                                         

Brian E. Wojtalewicz, Wojtalewicz Law Firm, Ltd., PO Box 123, Appleton, MN, 
56208, counsel for plaintiffs                                             
Brian A. Wood, Matthew D. Sloneker, Michael Thomas Burke, William L. Davidson, 
Lind Jensen Sullivan & Peterson, PA, 901 Marquette Ave. S., Suite 1300, Minneapolis, 
MN, 55402, counsel for defendants                                         


This case arises out of a traffic accident involving the plaintiff, Richard Gaytan 
Soto, and a semi-truck operated by defendant Anthony Shealey for Swift    
Transportation Services, LLC. Mr. Gaytan Soto and his wife, Marisol Gaytan Soto, 
allege that on the night of November 15, 2016, Mr. Gaytan Soto was driving his sedan 
on an interstate highway in Minnesota when he crashed into the trailer of 
Mr. Shealey’s overturned semi-truck, which was blocking the roadway. Just before the 
accident, Mr. Shealey lost control of the semi-truck when he encountered a herd of 
deer in the roadway, attempted to avoid hitting them, drove into a ditch, and tried to 
return to the road. At that point, Mr. Shealey’s vehicle overturned and the trailer 
completely blocked oncoming westbound traffic. [Am. Compl. ¶¶ 24–25.] The 
plaintiffs assert that Mr. Shealey is liable for negligence and that Swift is vicariously 
liable because he was acting as Swift’s agent at the time of the accident. [Id. ¶¶ 26–35, 
44–48.] The plaintiffs also allege that Swift is liable for negligently hiring, training, 
supervising, and retaining Mr. Shealey as a driver.1 [Id. ¶¶ 36–43.]      
                 MOTION TO AMEND2                                    
The plaintiffs have moved to amend their complaint to add claims for punitive 
damages. [ECF No. 85.] Through their Proposed Second Amended Complaint, the 
plaintiffs would add requests for punitive damages against Mr. Shealey personally and 
against Swift. [ECF No. 94.] Generally speaking, the plaintiffs argue that: 
(1) Mr. Shealey deliberately disregarded appropriate training for a professional driver 
of a commercial motor vehicle who encounters deer in the roadway and otherwise 
showed indifference to the safety of others; and (2) Swift hired Mr. Shealey and kept 

1    The case is in federal court based on diversity jurisdiction. See 

. 
2    The Court bases the following factual recitation on the evidentiary materials 
provided by the plaintiffs in support of their motion to amend. These materials are 
attached to the Declaration of Brian Wojtalewicz as Exhibits A through K. [ECF 
No. 93.] The evidence includes: the deposition of Mr. Shealey (Exhibit A); the 
deposition of Christina Shealey (Exhibit B); the deposition of Swift’s 30(b)(6) 
representative Bill Peyton, a regional safety director for the company (Exhibit C); the 
deposition of Swift employee Victor Malchesky (Exhibit D); the preliminary report of 
Michael Long, a Large Vehicle Accident Consultant, who opines that Mr. Shealey’s 
driving conduct was below the standard for a commercial motor vehicle driver 
(Exhibit E); and photographs of the accident scene (Exhibits I and J). Exhibits F, G, 
and H to Mr. Wojtalewicz’s declaration are unpublished cases provided for the 
Court’s consideration. Finally, Exhibit K is a timeline of events concerning 
Mr. Shealey’s work as a commercial driver. Finally, the Court has also reviewed the 
information submitted by the plaintiffs in Mr. Wojtalewicz’s Supplemental 
Declaration and the attached Exhibit A, which is an early accident scene report 
prepared for Swift by its insurer. [ECF No. 110.] For the purposes of this ruling, the 
Court need not more closely parse the factual record, including the materials 
submitted by the defendants, because even a generous reading of the documents 
relied upon by the plaintiffs does not satisfy the high bar for amendment under 

. Accordingly, the Court finds it unnecessary to permit the defendants 
to supplement the record as they requested in a May 10, 2018 letter.      
him employed as a driver despite knowing that he posed a high likelihood of danger 
to others’ safety.                                                        

Mr. Shealey was an independent driver who had been contract-driving for Swift 
for about five months at the time of the accident. The plaintiffs assert that he showed 
an indifference to the safety of others because he referred to drivers of ordinary 
passenger vehicles with disdain, calling them “asshats.” They assert that Mr. Shealey 
was not aware of Swift’s training materials advising professional drivers never to 
swerve to avoid deer on a highway. Although his semi-truck carried a full load, the 
plaintiffs allege that Mr. Shealey showed deliberate disregard for others’ safety because 
he was driving 68 miles per hour at the time of the incident, which exceeded the 
speeding policy Swift applied to its employee drivers. The plaintiffs contend that 
Mr. Shealey ignored commercial driver’s license manuals that recommend semi-truck 
drivers steer their vehicles to the right in an emergency. Further, they allege that 
Mr. Shealey thought about staying in the ditch when he veered off the road, but 
instead attempted to turn back on the roadway. Plaintiffs complain that Mr. Shealey 
refused to agree that the accident was preventable and he did not accept fault for the 
crash and the rollover. They also emphasize that Mr. Shealey claimed that he never 
heard Mr. Gaytan Soto’s vehicle crash into his truck, and he recalled, allegedly 
incorrectly, that there was no shoulder between the left lane and the grassy median. 
According to the plaintiffs, Mr. Shealey’s improper conduct is further demonstrated 
by the fact that he did not attempt to warn oncoming vehicles of an emergency 
immediately after his vehicle came to rest on its side. Finally, the plaintiffs argue that 
amending their complaint to seek punitive damages is proper because Mr. Shealey 
testified that he might make the same decisions if confronted with multiple deer on 
the highway again.                                                        
In their negligent hiring, supervision, training, and retention claims against 
Swift, the plaintiffs argue that the company ignored Mr. Shealey’s prior trucking 
violations and didn’t inquire about why he left a prior trucking job after only a few 
months of employment. Swift also allegedly ignored evidence that Mr. Shealey suffers 
from post-traumatic stress disorder, and the plaintiffs assert that the company should 
have responded differently to evidence showing that Mr. Shealey was unemployed for 
several years. Swift also allegedly ignored Mr. Shealey’s criminal history, which 
involved one assault and one trespass charge, even though Swift’s safety manager 
considers temperament and judgment relevant factors for a truck driver.   
The plaintiffs also point to conduct of Mr. Shealey during his Swift 
employment that they claim the company should have handled differently. The 
plaintiffs argue that Swift ignored the fact that Mr. Shealey had an incident involving 
failure to control a semi-truck during his training that took place a few months before 
the crash at issue. They also point to the fact that Mr. Shealey got a speeding ticket in 
October of 2016, and assert that Swift did respond appropriately.         
Finally, the plaintiffs allege that Swift didn’t adequately train Mr. Shealey. The 
plaintiffs argue that Mr. Shealey and his wife, Christina Shealey, who was in the truck 
with him on the night of the incident, stated that they were not trained by Swift on 
what to do upon encountering deer on the highway or how to operate the semi-truck 
upon going off the road. The plaintiffs further argue that amending the pleadings to 
seek punitive damages from Swift is appropriate because Mr. Shealey had not heard of 
“outrunning his headlights” as a safety concept and Swift allegedly does not require 
trainees or drivers to read the company’s safety manual, which includes warnings 
relating to encountering deer on the roadway.                             
                  LEGAL STANDARD                                     
Under Minnesota law, punitive damages are available when a plaintiff shows by 
clear and convincing evidence “that the acts of the defendant show deliberate 
disregard for the rights or safety of others.” 

, subd. 1(a). A 
defendant acts with such “deliberate disregard” where the defendant:      
has knowledge of facts or intentionally disregards facts that create a high 
probability of injury to the rights or safety of others and:         
     (1) deliberately proceeds to act in conscious or intentional    
  disregard of the high probability of injury to the rights or safety of 
  others; or                                                         
     (2) deliberately proceeds to act with indifference to the high  
  probability of injury to the rights or safety of others.           

, subd. 1(b)(1)–(2).                                  
The parties disagree whether Mr. Gaytan Soto should be allowed to amend his 
complaint to add a claim for punitive damages based on a related Minnesota statute: 

, which is sometimes referred to as the “gatekeeping statute.”3 
According to the gatekeeping statute, plaintiffs are not permitted to include a claim 
for punitive damages in an initial complaint. Instead, plaintiffs are required to make a 
prima facie evidentiary showing, by one or more affidavits, that defendants acted with 

3    Recent decisions reflect a disagreement among magistrate judges within the 
District of Minnesota regarding whether 

 or Federal Rule of Civil 
Procedure 15 should govern a request for leave to amend to add punitive damages to 
a complaint. Compare Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-
3183 (ADM/LIB), Doc. No. 534 (D. Minn. Mar. 8, 2018) (applying 

), with Selective Ins. Co. of S.C. v. Sela, No. 16-cv-4077 (PJS/SER), Doc. 
No. 111 (D. Minn. Apr. 26, 2018) (concluding that Fed. R. Civ. P. 15 applies to 
requests for amendment to add claims of punitive damages), and In re Bair Hugger 
Warming Devices Prods. Liab. Litig., No. 15-2666 (JNE/FLN), 

 (D. 
Minn. July 27, 2017) (denying the motion to amend to plead punitive damages 
according to Fed. R. Civ. P. 15 standards); see also Ramirez v. AMPS Staffing, Inc., 

, at *2–6 (D. Minn. Apr. 27, 2018) (acknowledging the split of authority 
but declining to resolve the issue because the plaintiff satisfied both 

 and Fed. R. Civ. P. 15). Because neither party has asked the Court to apply 
anything other than 

 in this case, the Court will examine the 
motion to amend to add punitive damages according to that statute.        
deliberate disregard for others’ rights or safety in order to add such a claim. See 

 The 
prima facie showing must be clear and convincing. See Berczyk v. Emerson Tool Co., 

 (D. Minn. 2003). The Court reviews the evidence provided by 
a plaintiff as it would review a motion for a directed verdict, without making 
credibility rulings or considering a challenge, “by cross examination or otherwise, to 
the plaintiff’s proof.” 

 at 1008 n.3. This means that “[t]he trial court may not allow 
an amendment where the motion and supporting affidavits do not reasonably allow a 
conclusion that clear and convincing evidence will establish the defendant acted with 
willful indifference4. . . .” 

 (internal quotations omitted). “A mere showing 
of negligence is not sufficient to sustain a claim of punitive damages.” 

 
(internal quotations and alterations omitted).                            
                       ANALYSIS                                      
In this case, the plaintiffs have failed to demonstrate an entitlement to plead 
punitive damages according to 

. Despite their attempt to 
characterize this as a case involving deliberate disregard for the safety of others, the 
record does not clearly and convincingly support that contention. Specifically, the 
plaintiffs do not offer clear and convincing evidence that Mr. Shealey or Swift 
deliberately disregarded a high risk to the safety of others.             
A.   No Precedent For Punitive Damages In Similar Cases                   
One substantial obstacle to the plaintiffs’ motion to amend is that they point to 
no case from the Minnesota Court of Appeals, Minnesota Supreme Court, or even the 
District of Minnesota applying the gatekeeping statute, where a plaintiff has been 
allowed to add a punitive damages claim under facts similar to those at issue here. 

4    As the court noted in Olson v. Snap, Inc., the Minnesota Legislature replaced the 
phrase “willful indifference” with “deliberate disregard” in 1990, with the newer 
standard being characterized “as a ‘heightened’ one.” 

, 1035 & n.2 
(D. Minn. 1998) (quoting Bougie v. Sibley Manor, Inc., 

, 500 n.4 (Minn. 
App. 1993)).                                                              
They also have not cited any Minnesota appellate case upholding an award of punitive 
damages under similar circumstances. And the Court found no such authority in 
conducting its own research.                                              
This absence of precedent to support the plaintiffs’ position is central to the 
Court’s conclusion that leave to amend under the gatekeeping statute is inappropriate. 
Minnesota’s statutory scheme for punitive damages is designed to weed out 
unmeritorious punitive damages claims and requires a court do more than rubber 
stamp a plaintiff’s allegations. See Ulrich v. City of Crosby, 

, 866–67 (D. 
Minn. 1994) (explaining that Minnesota enacted § 549.191 “to deter certain practices 
in the presentment of punitive damages claims which were thought to be abusive”); id. 
at 868–69 (“[W]hen presented with a Motion for leave to assert a punitive damage 
claim, the function of the Court is to do more than “rubber stamp” the allegations in 
the Motion papers. The Court must independently ascertain whether there exists 
prima facie evidence that the defendant acted with a deliberate disregard of the rights 
or safety of others.”).                                                   
At the hearing on the motion, the Court asked the plaintiffs’ counsel for any 
authority applying Minnesota law that supports their request for leave to amend. 
Counsel conceded that he could not think of an auto-accident case involving negligent 
driving where such damages were permitted, with one readily distinguishable 
exception. Counsel noted that Minnesota courts have permitted recovery of punitive 
damages where an automobile accident is caused by a driver who is under the 
influence of alcohol.5 See Anderson v. Amundson, 

 (Minn. Ct. App. 

5    In the year 2000, the Minnesota Legislature enacted a law specifically 
authorizing punitive damages in civil actions involving motor vehicle accidents where 
the accident was caused by a drunk driver. Minn. Stat. § 169A.76(a) (“In a civil action 
involving a motor vehicle accident, it is sufficient for the trier of fact to consider an 
award of punitive damages if there is evidence that the accident was caused by a 
driver” whose blood alcohol concentration exceeds the legal limit, who was under the 
influence of a controlled substance, or was under the influence of alcohol and refused 
                                    (footnote continued on following page) 
1984) (“If the act of drinking and driving was of such a nature that a jury could find 
[the defendant] acted with a willful indifference to the rights or safety of others, an 
award of punitive damages is an appropriate sanction for the operation of a motor 
vehicle while under the influence of alcohol.”) (internal quotations omitted). 
However, reliance on this authority is misplaced. There is nothing in the record that 
suggests Mr. Shealey was driving under the influence of alcohol or any other 
substance at the time of the accident at issue in this case. And the plain disregard for 
the safety of others evidenced by driving after drinking is certainly different from the 
negligence alleged against Mr. Shealey.                                   
Because of the uniquely high bar contained in the Minnesota punitive damages 
statutory scheme, the Court is not persuaded by plaintiffs’ citation to cases from other 
jurisdictions. For example, the plaintiffs cite to a North Dakota trial court decision, 
Boyer v. Weist Truck Line, Inc. et al., No. 18-2012-CV-01621, in which plaintiffs were 
permitted to amend their complaint to add a claim for punitive damages against a 
trucking company and the driver of a commercial vehicle. [Wojtalewicz Decl., Ex. F, 
ECF No. 93-6.] However, the North Dakota statute at issue in that case required only 
a preponderance of the evidence to amend the complaint to add punitive damages. 
Moreover, the decision did not explain what circumstances led the court to find 
sufficient evidence that the driver consciously disregarded legal limits on how long 
and how often a driver can drive without rest. [Id., Ex. F at 2 (citing 

(a)(1)–(2)).] Given the different standard, the lack of significant discussion, and 
the fact this case does not involve any claim that Mr. Shealey should not have been 

(footnote continued from previous page)                                   
to take a chemical test for intoxication). This statute is plainly inapplicable here 
because there are no facts in the record or even any allegation that Mr. Shealey was 
under the influence of alcohol at the time of the accident.               
driving at all at the time of the accident, the plaintiffs’ reliance on this case is 
misplaced.6                                                               
In sum, the Court can find no legal support for the plaintiffs’ position that, in a 
case of alleged negligence causing a traffic accident, leave to amend should be granted 
pursuant to Minnesota’s gatekeeping statute. Indeed, existing caselaw strongly 
suggests that punitive damages are not permitted in such cases. See Olson, 

 (“[T]he mere existence of negligence or of gross negligence does not rise 
to the level of willful indifference so as to warrant a claim for punitive damages.”) 
(quoting Ulrich v. City of Crosby, 

 (D. Minn. 1994)); see also James 
Gempeler & Lindsay Mancini, Smart Phones Dumb Driving and the Law the Criminal and 
Civil Consequences of Distracted Driving, Bench & B. Minn. at 23 (November 2016) 
(“Currently, Minnesota courts have only allowed compensatory damages in tort 
automobile claims, unless the at-fault party was intoxicated as established under Minn. 
Stat. § 169A.76.”).                                                       
B.   No Prima Facie Showing As To Mr. Shealey                             
Aside from the lack of precedent, the evidentiary record offered by the plaintiff 
does not transform Mr. Shealey’s reaction to encountering a herd of deer on the 
highway into a deliberate act taken in conscious or intentional disregard of a high 
probability of injury to the rights or safety of others. See 

, 
subd. 1(b). There is certainly no suggestion that Mr. Shealey acted with intent to injure 
anyone.7 There is also no showing that Mr. Shealey had been driving erratically, 

6    The authority from other jurisdictions cited by the plaintiffs also fails to 
convince the Court that leave to amend should be granted under the unique 
parameters of Minnesota’s gatekeeping statute in this case. [Pls.’ Mem. at 44–46 (citing 
several cases from other jurisdictions), ECF No. 97.]                     
7    The Court is unpersuaded that Mr. Shealey’s Facebook post referring to drivers 
of regular passenger vehicles as “asshats” transforms his split-second reaction to deer 
into an intentional tort or a malicious act.                              
recklessly, or without adequate rest at the time he encountered the herd of deer. 
Instead, the record shows that Mr. Shealey was driving under the posted speed limit 
and that he attempted to move around the deer when he saw them because he was 
concerned about his own safety, his wife’s safety, and the safety of his dog. [Dep. of 
Anthony Shealey at 110:7–12.] Even if these facts and Mr. Shealey’s actions could 
demonstrate negligence under these circumstances, they would not permit a jury to 
find by clear and convincing evidence that he was willfully indifferent to the safety of 
other motorists.                                                          
The Court is also not persuaded by the plaintiffs’ reliance on Mr. Shealey’s 
alleged failure to warn other drivers that his trailer was blocking traffic after his 
vehicle overturned. As the plaintiffs acknowledge in their brief, Mr. Shealey testified 
that he was unconscious after his semi-truck flipped onto its side in the roadway, and 
came to after law enforcement was on the scene. [See Dep. of Anthony Shealey at 
36:5–10.] In the face of this reality, his failure to warn does nothing to establish that 
he was willfully indifferent to other drivers’ safety. Similarly, the Court is unpersuaded 
by the plaintiffs’ curious reference to the Mr. Shealey’s and Ms. Shealey’s testimony 
that they did not hear Mr. Gaytan Soto’s car hit the trailer at the time of the accident. 
The Court simply does not understand how this fact is relevant to any question of 
deliberate disregard for the safety of others.                            
C.   No Prima Facie Showing As To Swift                                   
With respect to Swift, the plaintiffs have failed to show that they should be 
given leave to amend under the Minnesota gatekeeping statute as well. Specifically, 
they have not shown prima facie clear and convincing evidence that Swift was willfully 
indifferent to the safety of others in connection with its hiring, retention, or training 
of Mr. Shealey. Nor have they demonstrated an entitlement to allege a punitive 
damages claim based on Mr. Shealey’s actions as Swift’s agent because they have failed 
to make the requisite prima facie showing that Swift deliberately disregarded a high 
probability that Mr. Shealey was unfit to be a commercial motor vehicle driver. See 

, subd. 2(2) (permitting punitive damages against a master or 
principal because of the acts of an agent where “the agent was unfit and the principal 
deliberately disregarded a high probability that the agent was unfit”).   
The record does not show by prima facie clear and convincing evidence that 
Swift was willfully indifferent to facts indicating that Mr. Shealey posed a great risk to 
others on the road. For instance, the plaintiffs have not presented evidence that 
Shealey’s driving conduct had caused repeated accidents before he was hired and that 
Swift was aware of such a history. Nor have the plaintiffs shown that after hiring 
Mr. Shealey, Swift ignored information that he was operating his semi-truck 
improperly.                                                               
The Court is not persuaded by the plaintiffs’ suggestion that Mr. Shealey’s 
previous assault and trespassing cases support its punitive damages case. These non-
driving incidents do not establish that Swift deliberately disregarded facts showing he 
was unfit to operate a commercial vehicle.8 And the plaintiffs’ reference to 
Mr. Shealey’s PTSD, a condition arising from his military service, is even less 
persuasive and, frankly, less respectable. There is no evidence whatsoever in this 
record that Mr. Shealey’s mental health history contributed in any way to how he 
handled his nighttime encounter with deer on the road.                    
The plaintiffs also suggest that Swift demonstrated a deliberate disregard for 
the safety of others because its training was insufficient. However, the plaintiffs’ own 
prima facie evidence demonstrates that Swift’s training materials included the very 

8    The plaintiffs point to testimony from a Swift representative agreeing that 
judgment and temperament are important traits for a commercial driver and argue 
that Swift’s decision to hire Mr. Shealey deliberately disregarded his lack of fitness for 
the job because of his criminal history. However, there is not any showing in this 
record that Mr. Shealey’s previous criminal charges made him unfit to drive a semi-
truck, let alone a clear and convincing one. Indeed, neither of the charges identified 
are even shown to relate to driving conduct. The assault case involved a confrontation 
with his wife’s stepfather, to which Mr. Shealey pleaded guilty in 1998. [Dep. of 
Anthony Shealey at 99:15–100:2.] There was no information about his 1987 charge 
for trespassing. [Id. at 99:6–14.]                                        
instruction (not swerving to avoid deer) that they contend should have been followed 
in this case. It is difficult to see how Swift’s inclusion of that very admonition in its 
training materials clearly and convincingly demonstrates that Swift was willfully 
indifferent to the safety of others. The fact that such training was allegedly not 
followed here does not convert a negligence claim into one which supports punitive 
damages.                                                                  
Ultimately, the plaintiffs point to evidence that may be relevant and helpful to 
their negligence claims. However, none of that evidence clearly and convincingly 
shows that Swift deliberately disregarded a high probability that others would be 
injured by Mr. Shealey when Swift hired him and allowed him to drive a semi-truck 
for the company.                                                          

IT IS HEREBY ORDERED THAT the plaintiffs’ Motion for Complaint       
Amendment for Punitive Damages [ECF No. 85] is DENIED.                    

Date: May 14, 2018                                                        
                                     s/Katherine Menendez            
                                   Katherine Menendez                
                                   United States Magistrate Judge