Trinidad v. Moore et al
MEMORANDUM OPINION AND ORDER: It is ORDERED that the 49 Motion in Limine is GRANTED only to the extent that opinions of Johnson as to the credibility of eyewitnesses, to the extent they are offered, are excluded as further set out in the order. The Motion is DENIED in all other respects. Signed by Honorable Judge W. Harold Albritton, III on 8/31/2016. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOSE A. TRINIDAD
DANIEL JOE MOORE, JR., and RDB
Civil Action No. 2:15CV323- WHA
MEMORANDUM OPINION AND ORDER
This cause is before the court on the Defendants’ Motion to Preclude the Testimony of
Plaintiff’s Expert Gary Johnson (Doc. #49).
The admissibility of expert testimony is governed by Fed. R. of Evid. 702 which, as
interpreted by the Supreme Court, Aassign[s] to the trial judge the task of ensuring that an
expert=s testimony both rests on a reliable foundation and is relevant to the task at hand.@
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587 (1993). This Agatekeeping@ function is
important Ato ensure that speculative, unreliable expert testimony does not reach the jury under
the mantle of reliability that accompanies the appellation expert testimony.@ Rink v. Cheminova,
Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (quotation and citation omitted).
In determining the admissibility of expert testimony under Rule 702, this court must
conduct Aa rigorous three part inquiry,@ considering whether: (1) the expert is qualified to testify
competently regarding the matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry
mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in
issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998).
In determining reliability, the court may ask: “(1) whether the expert's theory can be and
has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the
known or potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.” McCorvey v. Baxter Healthcare
Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). Other factors which may be relevant to a
determination of reliability are (1) whether they have developed their opinions expressly for the
purpose of testifying, (2) whether there is an analytical gap between an accepted premise and a
conclusion, (3) the expert's consideration of alternative hypotheses, (4) the degree of care
exercised, (5) and whether the field of expertise is known to reach reliable results. See
Fed.R.Evid. 702, Advisory Committee's Note.
The Defendants seek to exclude under these rules, and Rule 26 of the Federal Rules of
Civil Procedure, the testimony of accident reconstructionist Gary Johnson primarily on the basis
that Johnson’s testimony as to the events which transpired during the vehicle wreck at issue in
this case is not consistent with the testimony of any of the three witnesses to the event, including
the Plaintiff, the Defendant, and a third-party witness.
The facts of the case are greatly in dispute. The Plaintiff, Jose Trinidad, testified in his
deposition that Defendant Moore drove his vehicle and pulled out of a gas station, turning into
the left lane of a four-lane highway. Trinidad has stated that he passed Moore’s vehicle on the
right, and then Moore accelerated and moved into Trinidad’s vehicle’s lane, and Trinidad
collided with his vehicle. (Doc. #49-6 at p.144-145).
Defendant Moore has stated that he pulled out of the gas station immediately into the
right-hand lane after making a wide turn. He saw a car pass him on the left. He then saw the
Plaintiff’s vehicle come up behind him as the car was passing him, and he moved his vehicle
toward the right- hand shoulder of the road. The car passed his vehicle and was in front of the
Defendant’s vehicle when the Plaintiff’s vehicle came up behind Moore’s vehicle and hit it.
The third-party driver of the car has stated that she saw Moore’s vehicle make a wide turn
into the right-hand lane, but passed the vehicle on the left as it was straightening from the turn,
and as she passed the vehicle, she heard the impact with Trinidad’s vehicle. (Doc. #49-4 at p.2330).
The Plaintiff’s proferred expert, Gary Johnson, has stated in a deposition that he and the
Defendants’ expert agreed that the facts could not have occurred in the manner in which Trinidad
described them. (Doc. #49-1 at p.13-14). Johnson offers the opinion that Defendant Moore
pulled directly into the left lane but the third-party driver of the car had time to pass him on the
left, and then Defendant’s vehicle moved into the right lane into the Plaintiff’s path, where the
Plaintiff’s vehicle struck his.
A case referenced by the Defendants in their motion provides a basis for analysis of this
motion. See Greenwell v. Boatwright, 184 F.3d 492 (6th Cir. 1999). In Greenwell, an accident
reconstructionist introduced a theory of liability that contradicted aspects of the eyewitnesses’
testimony. The court agreed with the plaintiffs that testimony by an expert regarding the
credibility of eyewitness testimony was improper. Id. at 496. The testimony set forth in the
opinion was that the expert stated he had “to observe that an event which takes place in a few
seconds, only a certain type of recollection can exist of any person trying to witness, trying to
recall an event that takes place in a short time.” Id. at 495. The court found no prejudice in
admitting this testimony, however, because the jury was instructed that it had to weigh the
credibility of each witness and could disregard the expert’s opinion entirely. Id.
The court went on to hold that expert witness testimony is not inadmissible simply
because it contradicts eyewitness testimony. Id. at 497. The court explained that expert testimony
based on physical evidence is admissible, even if it contradicts eyewitness testimony, unless the
witness testimony rose to the level of judicial admissions. Id.
In this case, any testimony by Johnson as to credibility of the eyewitnesses, would be
improper. Testimony based on physical evidence inconsistent with eyewitness testimony is not,
however, due to be excluded based merely on inconsistency.
The Plaintiff contends that Johnson’s testimony is based on physical evidence and is
admissible on that basis. As to Johnson’s testimony based on physical evidence in this case, the
Defendants contend that Johnson relies on the third-party witness’s testimony that she was
traveling 60 mph at the time of the accident even though she stated that she is not a good
estimator of speeds. The Defendants also argue that the property damage does not match
Johnson’s opinion and he did not inspect either truck. The Defendants also criticize Johnson’s
testimony as explaining the calculations made, but not the methodology behind the calculations.
The Defendants do not challenge Johnson’s qualifications. Johnson has many years of
experience as an accident reconstructionist, has engineering degrees, and is accredited as an
accident reconstructionist. The Plaintiff points to the deposition testimony of Johnson in which
he states that he based his opinion on the Alabama Uniform Traffic Crash Report, photographs
taken at the scene, depositions, and other physical evidence. The Plaintiff also points to his
testimony that Johnson used a computer program, Interactive Driver Response Research, to
determine reaction times and to make lane-change calculations. He also explained calculations
regarding inline momentum. (Doc. #57-3 at p. 112-113). The Plaintiff also points out that
Johnson testified that his reliance on the third-party witness’s estimation that she was driving 60
MPH did not have a significant impact on his calculations.
“Expert testimony is admissible which connects conditions existing later to those existing
earlier provided the connection is concluded logically.” Jones v. Otis Elevator Co., 861 F.2d 655,
662 (11th Cir.1988). Whether a logical basis for admitting the testimony has been established is
within the court's discretion, and the weaknesses in the underpinnings of the expert's opinion go
to its weight rather than its admissibility. Id. at 663. Thus, “[o]n cross-examination, the opposing
counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly
evaluates the testimony's weight and credibility.” Id.
In this case, Johnson relied on physical evidence in offering his opinion, and explained
his calculations, therefore, the court cannot conclude that it is due to be excluded in its entirety.
See Cameron v. Teeberry Logistics, LLC, No. 3:12cv181-TCB, 2013 WL 7874709 (N.D. Ga.
May 21, 2013)(finding that an expert opinion regarding accident reconstruction based on
measurements was not due to be excluded even though it was inconsistent with other facts of the
case and noting that the plaintiff was free to identify flawed data or facts the expert relied upon
in cross-examination). Accordingly, it is hereby ORDERED that
the Motion in Limine (Doc. #49) is GRANTED only to the extent that opinions of
Johnson as to the credibility of eyewitnesses, to the extent they are offered, are excluded. The
Motion is DENIED in all other respects.
DONE this 31st day of August, 2016.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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