UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

DEANDRIA BLACKBURN, §

§

Plaintiff, §

§

versus § CIVIL ACTION NO. 1:23-CV-250

§

RIGHT WAY TRANSPORT, INC., §

§

Defendants. §

MEMORANDUM AND ORDER

Pending before the court is a Motion for Summary Judgment filed by Defendants Right

Way Auto Transport, Inc. (“Right Way”) and John Eric Depew (“Depew”) (collectively

“Defendants”) (#15). Plaintiff Deandria Blackburn (“Blackburn”), Individually and as Next

Friend of G.B., a Minor Child (“Plaintiff”) filed a Response on July 2, 2024 (#16). Having

considered the motion, the submissions of the parties, the record, and the applicable law, the court

is of the opinion that the motion should be denied. 

I. Background

Plaintiff originally filed suit in the 260th Judicial District of Orange County, Texas, on

June 13, 2023. Plaintiff sued Right Way, Depew, and Lashay Javon Wheeler (“Wheeler”), in

reference to a motor vehicle collision that occurred on Wednesday, June 16, 2021, at

approximately 3:35 p.m. in a construction zone on the westbound lane of Interstate Highway 10

(“I-10”) within the city limits of Orange, Orange County, Texas. The following operative facts

are taken from the Original Petition (#3):

Defendant DEPEW was operating a red 2014 Peterbilt 388 tractor, with trailer in

tow, in the inside lane of westbound I-10 when suddenly, and without warning,

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Defendant DEPEW failed to control the speed of the tractor-trailer and struck the

rear of a white 2016 Freightliner Sprinter cargo van.

The force of the impact caused the cargo van to be pushed into the rear of a red

2014 Ford F-150. 

Defendant DEPEW then drove the tractor-trailer to the outside lane, striking a grey

2017 Honda CR-V that was being driven by Defendant WHEELER. The

passengers inside the Honda CR-V included Plaintiff and her minor child, G.B.

Next, Defendant WHEELER’S Honda CR-V moved to the inside lane and struck

the Ford F-150.

Following impact, local authorities from the Texas Department of Public Safety

and emergency personnel from Acadian Ambulance Service arrived on the scene. 

When EMS personnel began providing treatment to Plaintiff, she advised them she

was experiencing pain in her lower abdomen and that she was twenty (20) weeks

pregnant. In turn, Plaintiff and her minor child were immediately transported from

the scene to the emergency room at Baptist Hospital of Southeast Texas in

Beaumont, TX.

At all times in question, the 2014 Peterbilt 388 tractor was owned by Defendant

RIGHT WAY and operated or otherwise under the control of Defendant DEPEW

in the course and scope of his employment with Defendant RIGHT WAY and in

furtherance of Defendant RIGHT WAY’s business interests.

Upon information and belief, the 2017 Honda CR-V was deemed a total loss due

to the force of the impact.

As a result of the actions and/or omissions of Defendants, Plaintiff and her minor

child suffered serious bodily injuries and other damages, including Plaintiff’s early

delivery of her child, for which she sues.

Citations were issued for each defendant on June 14, 2023. On June 30, 2023, Right Way

filed a Notice of Removal (#1). On July 7, 2023, Right Way filed an Answer to the Complaint

and a Demand for a Jury Trial (#4). On July 28, 2023, Plaintiff filed a Motion to Remand to State

Court (#6). Depew filed an Answer, a Notice of Consent to Removal, and a Demand for a Jury

Trial on August 8, 2023 (#s 7, 8). Right Way then filed a Response in Opposition to the Motion

to Remand on the same day (#9). On December 29, 2023, the court denied the Motion to

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Remand, finding improper joinder, and instructed the case to be restyled removing Wheeler as a

named defendant (#14). 

Defendants move for complete summary judgment on all of Plaintiff’s claims, arguing that

based on the record, she cannot meet the necessary elements of her burden of proof and cannot

establish that a genuine dispute of material fact exists with respect to her negligence claim. 

Defendants assert that Plaintiff failed to produce any evidence to support the element of damages

as of the discovery deadline of June 1, 2024. Specifically, Defendants contend that Plaintiff has

never produced the required Rule 26 Initial Disclosures, or any documents, for that matter. 

Blackburn responds to the motion for summary judgment, attaching business record affidavits from

medical providers that provided care to Plaintiff following the accident at issue in this case. 

Plaintiff also argues she is entitled to give oral testimony on the physical, mental, and economic

aspects of her damages, pointing to Defendants’ Response in Opposition to Plaintiff’s Motion to

Remand as affirmation of their negligence in causing the accident at issue. Defendants did not file

a reply.

II. Analysis

A. Motion for Summary Judgment 

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Union Pac. R.R. Co.,

41 F.4th 696, 703 (5th Cir.), cert. denied, 143 S. Ct. 579 (2023); United Steel, Paper & Forestry,

Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Anderson, 9 F.4th 328, 331

(5th Cir. 2021); Smith v. Harris County, 956 F.3d 311, 316 (5th Cir. 2020); Parrish, 917 F.3d

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369, 378 (5th Cir. 2019). The parties seeking summary judgment bear the initial burden of

informing the court of the basis for their motion and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which they believe demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); MDK Sociedad De Responsabilidad Limitada v. Proplant Inc.,

25 F.4th 360, 368 (5th Cir. 2022); Goldring v. United States, 15 F.4th 639, 644-45 (5th Cir.

2021); Playa Vista Conroe v. Ins. Co. of the W., 989 F.3d 411, 416-17 (5th Cir. 2021); Jones v.

United States, 936 F.3d 318, 321 (5th Cir. 2019). To warrant judgment in their favor, the

movants “must establish beyond peradventure all of the essential elements of the claim or

defense.” Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020) (quoting Dewan

v. M-I, L.L.C., 858 F.3d 331, 334 (5th Cir. 2017)); accord Access Mediquip L.L.C. v.

UnitedHealthcare Ins. Co., 662 F.3d 376, 378 (5th Cir. 2011). 

“A fact issue is ‘material’ if its resolution could affect the outcome of the action.” 

Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015) (quoting Burrell

v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)); see MDK

Sociedad De Responsabilidad Limitada, 25 F.4th at 368; Lexon Ins. Co., Inc. v. Fed. Deposit Ins.

Corp., 7 F.4th 315, 321 (5th Cir. 2021); Dyer v. Houston, 964 F.3d 374, 379 (5th Cir. 2020). 

“Factual disputes that are irrelevant or unnecessary will not be counted.” Tiblier v. Dlabal, 743

F.3d 1004, 1007 (5th Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)); accord Valencia v. Davis, 836 F. App’x 292, 296 (5th Cir. 2020); see Dyer, 964 F.3d

at 379; Parrish, 917 F.3d at 378. “An issue is ‘genuine’ if it is real and substantial, as opposed

to merely formal, pretended, or a sham.” Gerhart v. Barnes, 724 F. App’x 316, 321 (5th Cir.

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2018) (quoting Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001));

accord Johnson v. City of San Antonio, No. 22-50196, 2023 WL 3019686, at *6 n.7 (5th Cir.

Apr. 20, 2023); Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). Thus, a genuine

dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Hefren, 820 F.3d at 771; accord MDK Sociedad De Responsabilidad

Limitada, 25 F.4th at 368; Sanchez Oil & Gas Corp. v. Crescent Drilling & Prod., Inc., 7 F.4th

301, 309 (5th Cir. 2021); Dyer, 964 F.3d at 379; Tiblier, 743 F.3d at 1007. The moving parties,

however, “need not negate the elements of the nonmovant’s case.” Terral River Serv., Inc. v.

SCF Marine Inc., 20 F.4th 1015, 1018 (5th Cir. 2021) (quoting Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994)); Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th

Cir. 2014); see Savoy v. Kroger Co., 848 F. App’x 158, 160 (5th Cir. 2021). 

Once a proper motion has been made, the nonmoving party may not rest upon mere

allegations or denials in the pleadings but must present affirmative evidence, setting forth specific

facts, to demonstrate the existence of a genuine issue for trial. Celotex Corp., 477 U.S. at 322

n.3; see Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting FED. R. CIV. P. 56(e)); Flowers v.

Wal-Mart Inc., 79 F.4th 449, 452 (5th Cir. 2023); MDK Sociedad De Responsabilidad Limitada,

25 F.4th at 368; Clark v. CertainTeed Salaried Pension Plan, 860 F. App’x 337, 340-41 (5th Cir.

2021); Acadian Diagnostic Lab’ys, L.L.C. v. Quality Toxicology, L.L.C., 965 F.3d 404, 410 (5th

Cir. 2020). The court “should review the record as a whole.” Black v. Pan Am. Lab’ys, LLC,

646 F.3d 254, 273 (5th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000)); see Hacienda Recs., L.P. v. Ramos, 718 F. App’x 223, 234 (5th Cir. 2018);

City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014). All the evidence must be

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construed in the light most favorable to the nonmoving party, and the court will not weigh the

evidence or evaluate its credibility. Reeves, 530 U.S. at 150; Seigler v. Wal-Mart Stores Tex.,

L.L.C., 30 F.4th 472, 476 (5th Cir. 2022); Batyukova v. Doege, 994 F.3d 717, 724 (5th Cir.

2021); Lyons v. Katy Ind. Sch. Dist., 964 F.3d 298, 302 (5th Cir. 2020). The evidence of the

nonmovant is to be believed, with all justifiable inferences drawn and all reasonable doubts

resolved in her favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014) (quoting Anderson, 477 U.S.

at 255); Seigler, 30 F.4th at 476; Batyukova, 994 F.3d at 724; Lyons, 964 F.3d at 302. The

evidence is construed “in favor of the nonmoving party, but only where there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts.” Spring

St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir. 2013) (quoting Boudreaux v. Swift

Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005)); accord Lexon Ins. Co., Inc., 7 F.4th at

321;Geovera Specialty Ins. Co. v. Odoms, 836 F. App’x 197, 200 (5th Cir. 2020) (quoting Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

B. Evidence of Damages

Under Texas law, a negligence claim consists of four essential elements:

(1) a legal duty owed to the plaintiff by the defendant;

(2) a breach of that duty;

(3) an actual injury to the plaintiff; and

(4) a showing that the breach was the proximate cause of the injury.

Eckhardt v. Qualitest Pharm., Inc., 751 F.3d 674, 681 (5th Cir. 2014) (quoting Kroger Co. v.

Elwood, 197 S.W.3d 793, 794 (Tex. 2006)); see Molina v. Home Depot USA, Inc., 20 F.4th 166,

169 (5th Cir. 2021); Milligan v. Home Depot USA, Inc., 809 F. App’x 217, 219 (5th Cir. 2020);

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Espinoza v. Cargill Meat Sols. Corp., 622 F.3d 432, 443 (5th Cir. 2010); Elephant Ins. Co., LLC

v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022); In re Oncor Elec. Delivery Co. LLC, 630 S.W.3d

40, 43 (Tex. 2021). Here, Defendants challenge only the element of damages. 

At the outset, the court notes that Plaintiff does not contest Defendants’ assertion that

Plaintiff failed to produce the required Rule 26 Initial Disclosures or any other documents prior

to the June 1, 2024, discovery deadline. Interestingly, Defendants did not move to compel their

disclosure or seek any assistance from this court regarding discovery prior to filing their motion

for summary judgment. Defendants also did not seek sanctions under Federal Rule of Civil

Procedure 37(c). In response to the motion for summary judgment, Plaintiff attaches business

record affidavits from Acadian Ambulance Service, Baptist Hospital, Gemini Chiropractic &

Rehab, Magnolia Diagnostics, and Xtreme Physical Therapy (#16-1 thru #16-5). These records

indicate that Plaintiff incurred over $20,000.00 in medical expenses. While the court questions

the admissibility of this evidence at trial given its late disclosure, Defendants have failed to file

any objections to the evidence, move to strike the evidence, or offer any substantive reply to the

response. At this juncture, it would appear that Plaintiff has created a genuine dispute of material

fact as to the element of damages, and summary judgment should be denied. 

III. Conclusion

Accordingly, Right Way and Depew’s Motion for Summary Judgment (#15) is DENIED.

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