Reagan et al v. Dunaway Timber Company et al
ORDER that Plaintiff Teri Reagan's Motion to Exclude Clint Evans 110 is DENIED. IT IS FURTHER ORDERED that Third-Party Defendant Barry McCoys Motion to Excuse Appearance 113 is GRANTED. McCoy is excused from appearing at trial. IT IS FURTHER ORDERED that Defendants Motion to Bifurcate 116 isGRANTED. Any portion of the trial concerning punitive damages will be bifurcated from proceedings concerning compensatory damages. IT IS FURTHER ORDERED that McCoys Motion to Dismiss Cross Claims [ 119] is GRANTED. McCoys cross claims are DISMISSED under Federal Rules of Civil Procedure 41(a)(2)and 41(c). IT IS FURTHER ORDERED that Defendants' Motion to Continue 122 is DENIED. This matter remains set for trial to begin at 9:00 AM in Harrison on November 2, 2011. Signed by Honorable P. K. Holmes, III on October 31, 2011. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TERI REAGAN, Individually and as Personal
Representative of the Estate of Roger Reagan;
and MAVERICK TRANSPORTATION, LLC.
Case No. 3:10-CV-03016
DUNAWAY TIMBER COMPANY; MORGAN
QUISENBERRY; JOHN DOE TRUCKING;
and JOHN DOE INCORPORATED
Before the Court are Plaintiff Teri Reagan’s Motion to Exclude Clint Evans (Doc. 110),
Third-Party Defendant Barry McCoy’s Motion to Excuse his Appearance at Trial (Doc. 113),
Defendants’ Motion to Bifurcate (Doc. 116); McCoy’s Motion to Dismiss his Cross Claims (Doc.
119), and Defendants’ Motion to Continue (Doc. 122). The Court has considered these Motions as
well as all corresponding supporting documents, responses, and replies and is well and sufficiently
advised so as to issue its findings as reflected herein. The Court will address each Motion in turn.
I. Reagan’s Motion to Exclude Clint Evans (Doc. 110)
Plaintiff Teri Reagan filed a Daubert1 Motion to Exclude Corporal Clinton Evans from
testifying at trial. Defendants filed a Response out of time, without citing any good cause for their
failure to file a timely response and without seeking leave of Court to file an untimely response.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Reagan filed a Reply without leave of Court. Plaintiff Maverick Transportation, LLC (“Maverick”)
and Third-Party Defendant Barry McCoy both filed “Replies” to Reagan’s Motion without leave.
(Doc. 126). The Court has not considered any filings in regards to this Motion which were not
appropriately filed. The Court has, however, carefully reviewed Reagan’s Motion and the record as
a whole. The Court finds that a Daubert hearing on this issue is unnecessary and instead determines
the admissibility of Evans’ opinions, as set forth below, based upon its review of the record.
The crux of the present matter seems to be whether or not Evans may be recognized as an
expert in “accident investigation” as opposed to an expert in “accident reconstruction,” or rather,
whether two such different fields of expertise can be said to exist. A review of Eighth Circuit law
has not provided any guidance as to this narrow issue, and district courts in other circuits have
reached different conclusions in recent opinions. Compare Graves v. Toyota Motor Corp., 2011 U.S.
Dist. LEXIS 113841 (S.D. Miss. 2011) (finding no meaningful distinction between officers’
conclusions based on accident investigation and expert conclusions based on accident reconstruction
and granting a motion to exclude), with Logan v. Cooper Tire & Rubber Co., 2011 U.S. Dist. LEXIS
84393 (E.D. Ky. 2011) (distinguishing accident investigation and reconstruction and denying
exclusion of investigating officer’s testimony). The distinction made by the officer, and adopted by
the court, in Logan seemed to be that accident investigation involves forming conclusions based on
experiential data processed from the evidence available to an investigating officer at the scene, while
accident reconstruction involves forming conclusions based on a more scientific approach including
collecting a broader range of data after the fact. Logan, 2011 U.S. Dist. LEXIS 84383 at *9-10. The
Court in Graves, however, found that, labels aside, both accident investigation and accident
reconstruction involved opinions and conclusions which necessarily emanated from technical or
specialized knowledge that the investigating officers in that case, who were not trained in accident
reconstruction, did not possess. Graves, 2011 U.S. Dist. LEXIS 113841 at *18. The Graves court
stated that it “cannot buy into the argument that there is an important distinction between an opinion
reconstructing how the [accident] occurred and a ‘conclusion’ as to how the [accident] occurred.”
Id. The Court acknowledges, as well, that there are numerous opinions generally regarding
admissibility of the testimony of investigating officers that differ in their conclusions, most of which
do not analyze whether accident investigation may be considered a separate field of expertise. The
Court has read and considered many of these opinions, but in the interests of time and efficiency will
not go into a detailed analysis or compilation of those opinions herein.
While both of the above-cited district court opinions are well-reasoned and contain
compelling arguments as to their respective positions, this Court sides with the position taken by the
Logan court. While the distinction may be small, the Court believes that an investigating officer may
have expertise in the field of “accident investigation” without being qualified as an expert in
“accident reconstruction.” Moreover, a reasonable jury should be able to distinguish between such
fields of expertise. An expert in accident investigation would base his conclusions on his
observations of the physical evidence at the scene of an accident. His conclusions would be based
on his experience investigating accidents as well as any training in the field of accident investigation.
In contrast, experts in the field of accident reconstruction will presumably present evidence based
on a scientific analysis of a broad range of data collected after an accident. In fact, the type of
distinction between these two fields of expertise is one explicitly recognized by the Supreme Court
in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999), in which the Court found that certain
expert testimony “rests upon scientific foundations . . . In other cases, the relevant reliability
concerns may focus upon personal knowledge or experience.” In the case at hand, the jury may be
presented with both types of expert testimony, as recognized by the Supreme Court in Kumho,
regarding the same issue. If Evans’ testimony is otherwise admissible, it should be left to the jury
to determine which expert testimony they find more credible and reliable. The Court now has to
analyze whether Evans’ testimony, as a potential expert in accident investigation, is admissible.
Federal Rule of Evidence 702 governs the admissibility of expert testimony. “Rule 702 was
amended in 2000 in response to Daubert . . . and its progeny.” Robinson v. GEICO Gen. Ins. Co.,
447 F.3d 1096, 1100 (8th Cir. 2006). “District courts must ensure that all scientific testimony is both
reliable and relevant.” Marmo v. Tyson Fresh Meats, 457 F.3d 748, 757 (8th Cir. 2006) (citing
Daubert, 509 U.S. at 580; Fed. R. Evid. 702). While Daubert and Kumho set forth some factors that
a court may consider when determining admissibility, “[t]he inquiry as to the reliability and
relevance of the testimony is a flexible one designed to ‘make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the same level
of intellectual rigor that characterizes the practice of an expert in the relevant field.’” Id. (quoting
Kumho, 526 U.S. at 152). “‘A review of the caselaw after Daubert shows that the rejection of expert
testimony is the exception rather than the rule.’” Robinson, 447 F.3d at 1100 (quoting Fed. R. Evid.
702 advisory committee’s note). Rule 702, the Eighth Circuit has found, “clearly is one of
admissibility rather than exclusion.” Polski v. Quigley Corp., 538 F.3d 836, 839 (8th Cir. 2008)
(internal quotation omitted). “Courts should resolve doubts regarding the usefulness of an expert’s
testimony in favor of admissibility.” Marmo, 457 F.3d at 758. However, “[w]hen the analytical gap
between the data and the proffered opinion is too great, the opinion must be excluded.” Id. The
standard set forth by the Eighth Circuit is that “[t]he exclusion of an expert’s opinion is proper only
if it is so fundamentally unsupported that it can offer no assistance to the jury.” Polski, 538 F.3d at
839 (internal quotation omitted).
In her Daubert motion, Reagan relies, in large part on the Eighth Circuit case of Faries v.
Atlas Truck Body Mfg., Co., 1986 U.S. App. LEXIS 30713 (8th Cir. 1986). While both Faries and
the instant case involve consideration of the admissibility of testimony of investigating officers
regarding a motor vehicle accident, the Court finds that the facts of this case differ in a few important
regards from the facts at issue in Faries. Consideration of admissibility of expert testimony is
inherently fact-specific, and a “district court must customize its inquiry to fit the facts of each
particular case.” Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th Cir. 2007). In Faries, the
investigating officer did not measure the relative positions of the vehicles involved in the accident
and did not conduct an interview of both drivers involved, instead relying only on statements taken
from the driver of one of the two vehicles involved. Id. at *10. As to the accident at issue in this case,
Evans arrived at the scene approximately 40-45 minutes after the accident and conducted an
investigation. (Doc. 111-1, pp. 12-13). Evans testified in his deposition that he based his opinions
on the physical evidence at the scene, including measurements taken of the vehicles and inspection
of their final resting positions. Id. at 13-14, 40-41, 56. Evans further testified that he took into
consideration the statements of various witnesses at the scene, taken by his fellow officers, and that
his conclusions remained the same regardless of those statements. Id. at pp. 44-45, 47. Evans noted
that gouge marks were present at the scene but that he did not consider them reliable in reaching a
conclusion, since he testified that he did not know whether they had been made as a result of the
accident. Id. at pp. 45-46. The Court notes, as well, that Evans has over 20 years of experience as
a police officer, including 14 years of experience with the Arkansas State Police. Id. at 51-52. He
has completed officer training in accident investigation and has experience investigating motor
vehicle accidents, including multi-vehicular accidents and accidents involving tractor trailers. Id. at
52-53. Because of these factual differences, and in viewing this case in light of Daubert and its
progeny (decided subsequent to Faries), this case presents a closer call as to admissibility than the
facts presented in Faries.
While the Court does believe that the facts of this case present a close call as to admissibility,
the Court has carefully considered the appropriate factors under Daubert and Fed. Rule Evid. 702
and is satisfied with Evans’ knowledge, experience, and training and finds that Evans’ testimony is
reasonably based on that expertise. The Court ultimately concludes that Evans’ testimony is not so
fundamentally unsupported that it can offer no assistance to the jury. Evans, as evidenced by his
deposition testimony, has experience investigating motor vehicle accidents; he conducted an
investigation of the accident at issue in this case shortly after the accident occurred; and he took into
account his examination of the physical evidence at the scene in reaching his conclusions. The Court
finds that Evans is generally qualified to offer expert testimony as to accident investigation under
Rule 702. Therefore, Reagan’s Motion to Exclude Evans’ testimony is DENIED. Any deficiency in
Evans’ methodology and/or the extent of his knowledge as to accident investigation bears more on
the weight of Evans’ testimony rather than the fundamental reliability of his analysis. “Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof
are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509
U.S. at 596.
The Court must use a different standard when ruling on the admissibility of the accident
report prepared by Corporal Evans. Reagan argues that the inadequacy of Evans’ investigation and
Evans’ reliance on Separate Defendant Quisenberry’s statements demonstrate a lack of
trustworthiness sufficient to exclude admission of the accident report under Federal Rule of Evidence
803(8)(c). In this case, Corporal Evans’ investigation was timely; Evans is an experienced officer
who has previously investigated motor vehicle accidents; and there is no indication in the record that
Evans was motivated by anything other than objectivity. See Simmons v. Chicago and Northwestern
Transp. Co., 993 F.2d 1326, 1328 (8th Cir. 1993) (admitting an accident report as a public record
after finding that the elements to be considered in determining the trustworthiness of a public record
had been satisfied). “The party opposing the admission of the matter reported as a public record has
the burden of proving lack of trustworthiness.” Faries, 1986 U.S. App. LEXIS 30713 at *9. Reagan
has not met that burden at this juncture.
For all of the above reasons, the Court finds Reagan’s Motion to Exclude should be DENIED
and that Evans should be allowed to testify as to his investigation of the accident, including any
observations he made at the scene, as well as to any conclusions based on his investigation. This
finding does not preclude Reagan from renewing her objections at trial to the extent appropriate. Nor
does this finding relieve Defendants of any obligation to lay the necessary factual foundation for the
admissibility of Evans’ testimony at trial or for the admissibility of the accident report or of
establishing the necessary predicates for the admission of the report under Fed. R. Evid. 803(5) at
trial. In addition, Evans will be strictly limited to testifying as to conclusions based solely on his
investigation of the accident based on his experience and knowledge as an accident investigator. The
Court will rule on appropriate objections at trial if Evans strays outside his area of expertise. Any
attempt at further “reconstruction” of the accident not included in his accident report or attempt to
testify as to conclusions not based on his investigation at the scene will be prohibited.
II. McCoy’s Motion to Excuse Appearance (Doc. 113)
On September 29, 2011 Third-Party Defendant Barry McCoy was involved in a motor vehicle
accident and suffered serious injuries as a result. A letter from his physician indicates that McCoy
“is unable to sit for any period of time and relies on [an] external orthotic device” due to fractures
in his back. (Doc. 121-2). McCoy has indicated that, while he would not be able to sit through a fiveday trial for eight hours each day, he could likely be made available for testimony with certain
accommodations being made. Furthermore, McCoy has already given sworn testimony during a
videotaped trial deposition. McCoy has moved for dismissal of his injury cross claims in this case,
and Defendants will not, therefore, suffer any prejudice from allowing either live testimony from
McCoy in his present condition or from allowing for presentation of McCoy’s video deposition in
his absence. While Defendants have filed a Motion to Continue, they have not filed any objections
to McCoy’s request to excuse his appearance at trial. Defendants’ main contention, contained within
their Motion to Continue, seems to be that they would like an opportunity to cross-examine McCoy
at trial. McCoy need not be present during the full five-day trial in order to be subject to crossexamination as desired by Defendants. Even if he is unable to attend as a live witness, McCoy’s
testimony has already been preserved in this case, and Defendants have had the opportunity to crossexamine him. Barry McCoy, as Third-Party Defendant, could make a more plausible claim regarding
prejudice due to his inability to appear and defend against Defendants’ third-party claims. McCoy,
however, expresses his desire that this trial move forward as currently scheduled. Requiring his
presence is unnecessary and would be medically inadvisable. As such, the Court finds that McCoy’s
Motion to Excuse Appearance should be GRANTED.
III. Defendants’ Motion to Bifurcate (Doc. 116)
Defendants request that the compensatory damages portion of this trial be bifurcated from
any portion of the trial related to punitive damages. “The decision of whether to isolate the punitive
damages phase of the trial is within the sound discretion of the trial court.” Thorne v. Welk Inv., Inc.,
197 F.3d 1205, 1213-14 (8th Cir. 1999). Under Arkansas law, if a plaintiff seeks punitive damages
and either party requests bifurcation, the issues of compensatory and punitive damages must be
bifurcated. Ark. Code Ann. § 16-55-211(a)(1)-(2). Likewise, under Arkansas law, “[e]vidence of the
financial condition of the defendant and other evidence relevant only to punitive damages is not
admissible with regard to any compensatory damages determination.” Ark. Code. Ann. § 16-55211(b). Although Arkansas procedural law is not binding on this Court, a bifurcation of the issues
in the instant matter would nonetheless prevent prejudice and comport with Arkansas law. Therefore,
the Court finds that Defendants’ Motion to Bifurcate should be GRANTED.
IV. McCoy’s Motion to Dismiss Cross Claims (Doc. 119)
Barry McCoy moves to dismiss his cross claims against Defendants, stating that he believes
such dismissal to be in his best interests. The Court finds that McCoy’s Motion should be
GRANTED under Federal Rules of Civil Procedure 41(a)(2) and 41(c).
V. Defendants’ Motion to Continue (Doc. 122)
Defendants move to continue this trial based on Barry McCoy’s inability to be present at trial
due to his medical condition. This case has already been continued on two prior occasions. The case
was originally set for trial on April 11, 2011. The matter was continued, upon the Court’s granting
of a Joint Motion filed by all parties, to July 25, 2011. Shortly before trial was set to start in July,
Defendants filed a Motion for Continuance due to the potential unavailability of Defendant Morgan
Quisenberry at trial. The Court granted Defendants’ Motion, over the objections of the other parties,
and continued the trial to October 24, 2011 to allow the parties to take a supplementary video
deposition of Mr. Quisenberry for trial. The Court, due to scheduling conflicts, then had to briefly
continue the trial to its current setting of November 2, 2011. The trial is scheduled to be split across
two weeks, as this was the only time period in the near future which the Court had open to hold a
five-day trial in Harrison. Because of the number of lawyers and parties involved in this matter, as
well as the fact that the Court has a full docket well into next year, granting a continuance would
necessarily involve delaying this trial for an extended period of time. The Court also notes that the
Harrison courtroom is shared space such that scheduling of various judges must be accommodated
when trying to set this matter for trial. The Court further notes that previous attempts at finding ANY
mutually agreeable times for trial among the lawyers and parties have been problematic to say the
As discussed above, Defendants’ main contention in requesting this continuance seems to
be that they would like an opportunity to cross-examine McCoy at trial. Mr. McCoy has now
indicated that he could likely be made available for testimony at trial with certain accommodations
being made. However, even if he is unable to attend as a live witness, McCoy’s testimony has
already been preserved in this case through a video deposition during which Defendants had the
opportunity to cross-examine him. While this may not be an ideal situation for any party involved
in this case, allowing the case to go forward as scheduled will not be unduly prejudicial to
Defendants, especially considering that McCoy’s cross claims against Defendants will be dismissed
as a result of this Order. All remaining parties, including Barry McCoy, object to the granting of any
continuance. The Court finds that the interests of justice and judicial efficiency would best be served
by moving forward with the trial as scheduled. As such, Defendants’ Motion to Continue is
For the reasons stated above, IT IS HEREBY ORDERED that Plaintiff Teri Reagan’s Motion
to Exclude Clint Evans (Doc. 110) is DENIED.
IT IS FURTHER ORDERED that Third-Party Defendant Barry McCoy’s Motion to Excuse
Appearance (Doc. 113) is GRANTED. McCoy is excused from appearing at trial.
IT IS FURTHER ORDERED that Defendants’ Motion to Bifurcate (Doc. 116) is
GRANTED. Any portion of the trial concerning punitive damages will be bifurcated from
proceedings concerning compensatory damages.
IT IS FURTHER ORDERED that McCoy’s Motion to Dismiss Cross Claims (Doc. 119) is
GRANTED. McCoy’s cross claims are DISMISSED under Federal Rules of Civil Procedure 41(a)(2)
IT IS FURTHER ORDERED that Defendants’ Motion to Continue (Doc. 122) is DENIED.
This matter remains set for trial to begin at 9:00 AM in Harrison on November 2, 2011.
IT IS SO ORDERED this 31st day of October, 2011.
/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE
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