Bullock v. Freightliner, LLC et al

Filing 331

ORDER that 317 Defendants motion is GRANTED to the extent it seeks a pretrial evaluation and ruling regarding an admissibility issue. Defendants motion is DENIED to the extent it seeks a ruling that the MADYMO modeling analysis will be admissible as substantive evidence at trial. The MADYMO modeling analysis will not be admissible as substantive evidence at trial. by Judge William J. Martinez on 5/3/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 08-cv-00491-WJM-MEH
AMY BULLOCK, as an individual, as the next of kin and personal representative of
JEFFREY BULLOCK, deceased, and as parent and next friend of ADAM BULLOCK,
CHELSEA BULLOCK, and MELISSA BULLOCK,
Plaintiffs,
v.
DAIMLER TRUCKS NORTH AMERICA, LLC, formerly known as Freightliner, LLC,
Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Early Pretrial
Evaluation and Ruling on Admissibility of Computer Animation of Accident. (ECF No.
317.) The motion is fully briefed and ripe for disposition. The Court has putative subject
matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 based on diversity
jurisdiction. For the following reasons, Defendant’s Motion for Early Pretrial Evaluation
and Ruling on Admissibility of Computer Animation of Accident is GRANTED in part and
DENIED in part.
I. BACKGROUND
A.

FACTUAL BACKGROUND
This is an action brought by Jeffrey Bullock’s surviving spouse and children,

alleging that Defendant Daimler Trucks North America, LLC, wrongfully caused
Bullock’s death. (ECF No. 226, at ¶¶ 2, 8-9.) On the morning of August 15, 2006,

Bullock and Donald Green were riding in a tractor-trailer truck traveling west on
Highway 50 in Gunnison County, Colorado. (Id. at ¶¶ 14, 16-18; ECF No. 231, at ¶¶ 14,
16-18.) Defendant manufactured the tractor in which Bullock and Green were riding.
(ECF No. 226, at ¶ 16; ECF No. 231, at ¶ 16.) Just before 7 am, Green lost control of
the vehicle in a left hand curve. (ECF No. 226, at ¶ 18; ECF No. 231, at ¶ 18.) The
tractor-trailer left the roadway, rolled, and came to rest at the bottom of an embankment.
(ECF No. 226, at ¶ 19; ECF No. 231, at ¶ 19.) Bullock was killed as a result of the
accident; Green was not. (ECF No. 226, at ¶¶ 20-21; ECF No. 231, at ¶¶ 20-21.)
B.

PROCEDURAL BACKGROUND
Plaintiffs filed this action on March 10, 2008. (ECF No. 1.) They bring product

liability claims against Defendant based on negligence and strict liability. (ECF No. 226,
at 10-12.) Specifically, Plaintiffs allege that the tractor manufactured by Defendant was
defective and unreasonably dangerous because the tractor was not crashworthy, the
sleeper compartment was not crashworthy, and the sleeper compartment contained an
inadequate restraint system. (Id.; ECF No. 244, at 4-5.)
On November 20, 2009, Plaintiffs filed a Rule 702 Motion & Brief to Preclude
Testimony of James Chinni. (ECF No. 173.) Attached as an exhibit to Plaintiffs’ motion
was Defendant’s Third Supplemental Disclosure Statement, which identified Mr. Chinni
and stated that, under Mr. Chinni’s direction, “the IMMI Center for Advanced Product
Evaluation has performed a MADYMO modeling analysis illustrating the movements of
Messrs. Bullock and Green during the subject rollover event with vehicle dynamics data
provided by Robert J. Butler, Ph.D., P.E., and Harry Smith, Ph.D., M.D.” (Id., Ex. 2, at
1.) In their motion, Plaintiffs argued that Mr. Chinni’s proposed testimony fell within the
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scope of Federal Rule of Evidence 702, but that Mr. Chinni had not been disclosed as
an expert by Defendant. (See ECF No. 173.) Defendant opposed the motion on
December 23, 2009, arguing that Mr. Chinni was not a designated expert, but instead
was properly endorsed as a fact witness to explain the use of the MADYMO software
and to authenticate the MADYMO modeling analysis. (See ECF No. 211.) Plaintiffs
filed a reply brief on January 14, 2010. (ECF No. 215.)
On September 30, 2010, Judge Philip A. Brimmer, to whom this action was
previously assigned, granted the motion to preclude Mr. Chinni’s testimony under
Federal Rule of Evidence 702. (ECF No. 268.) The Court based its decision on the fact
that Defendant had disavowed any intention to have Mr. Chinni offer testimony falling
within the ambit of Rule 702. (See id. at 2, 3-4.) As for Defendant’s position that Mr.
Chinni would testify as a fact witness to explain the use of MADYMO software and
authenticate the MADYMO modeling analysis, the Court stated,
The Court, however, cannot determine at this stage of the litigation
whether and to what extent Mr. Chinni might be able to testify as a fact
witness regarding . . . the modeling analysis conducted in this case. . . .
Similarly, Daimler’s claim that Mr. Chinni should be permitted to
authenticate the modeling analysis is not properly before the Court. If and
when the question of the admissibility of the modeling analysis is
presented at trial, Mr. Chinni’s ability to describe the procedure used to
enter data provided by others might be relevant to authentication of the
demonstrative exhibit. What Daimler’s response makes equally clear,
however, is that Mr. Chinni will not be offering an opinion that the events in
this case, about which he does not have personal knowledge, occurred in
any particular way based on his own analysis of the available data. . . . Mr.
Chinni asserts [in his affidavit] that the modeling program used in this case
‘is the worldwide standard for visual illustration of crash worthiness and
occupant safety analysis.’ [citation omitted] This testimony will not aid in
the authentication of the particular modeling analysis conducted in this
case and, therefore, will not be permitted for the purpose for which
Daimler offers Mr. Chinni as a witness.

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Id. at 2-3 & n.1.
On January 27, 2011, Defendant filed the pending Motion for Early Pretrial
Evaluation and Ruling on Admissibility of Computer Animation of Accident. (ECF No.
317.) In the motion, Defendant seeks a pretrial ruling on the admissibility of the
MADYMO modeling analysis. (Id. at 1, 4, 8.) Defendant explains that Mr. Chinni will
testify as a fact witness to authenticate the MADYMO modeling analysis by explaining
how the MADYMO analysis was created and what data was used to create it. (Id. at 2,
6, 7-8.) The declaration of Mr. Chinni submitted in support of the pending motion is the
same declaration that was submitted in opposition to Plaintiffs’ Rule 702 motion. (See
ECF No. 211, Ex. A; ECF No. 317, Ex. A.)
On March 16, 2011, Plaintiffs filed a Response, arguing that Mr. Chinni’s
proposed testimony would amount to that of an expert under Rule 702, testimony that
this Court has already barred. (See ECF No. 324.) Plaintiffs also argued that there is
no indication whether Defendant has disclosed all of the data that was used to create
the MADYMO modeling analysis. (See id. at 4, 9.) On April 5, 2011, Defendant filed a
reply brief. (ECF No. 327.)
On February 9, 2011, this action was reassigned to the undersigned. (ECF No.
320.) Trial is set for October 17, 2011. (See ECF No. 313.)

II. STANDARD OF REVIEW AND APPLICABLE LAW
“The admissibility of evidence in diversity cases in federal court is generally
governed by federal law.” Blanke v. Alexander, 152 F.3d 1224, 1231 (10th Cir. 1998).
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“The admission or exclusion of evidence lies within the sound discretion of the trial court
. . . .” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994). See also
United States v. Golden, 671 F.2d 369, 371 (10th Cir. 1982) (“Trial judges have
discretion to decide whether an adequate foundation has been laid for the admission of
evidence.”).
Video animation adds a new and powerful evidentiary tool to the trial
scene. McCormick's work on evidence observes that with respect to one
party’s staged reproduction of facts ‘not only is the danger that the jury
may confuse art with reality particularly great, but the impressions
generated by the evidence may prove particularly difficult to limit . . .’ 2
McCormick on Evidence 19 (4th ed. 1992) (footnote omitted). Because of
its dramatic power, trial judges should carefully and meticulously examine
proposed animation evidence for proper foundation, relevancy and the
potential for undue prejudice.
Id. at 1088. District courts should “carefully and meticulously make an early pretrial
evaluation of issues of admissibility, particularly of scientific expert opinions and films or
animations illustrative of such opinions.” Id. at 1089.
Federal Rule of Evidence 702 provides, “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.”
“The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Fed. R. Evid. 901(a).
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III. ANALYSIS
Given that discovery in this action has closed and trial is approaching, the Court
finds it appropriate to make an early pretrial ruling regarding the admissibility of the
MADYMO modeling analysis at issue, and therefore grants Defendant’s motion to that
extent.
In order for the MADYMO modeling analysis to be admissible, Defendant must
lay an adequate foundation for the MADYMO’s introduction into evidence. See Fed. R.
Evid. 901. The Court concludes that Defendant has not done so. The record is
inadequate for the Court to determine how the MADYMO program actually works. See
Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1054 (Fed. Cir. 2001) (“Without
knowing the[] foundations [underlying a computer simulation], a court cannot evaluate
whether the simulation is probative . . . .”). Given this, the Court is not in a position to
evaluate properly Mr. Chinni’s representations that the MADYMO modeling analysis is
merely an illustration – an animation – of the expert opinions of Defendant’s designated
experts Drs. Harry Smith and Robert Butler. (See ECF No. 317, Ex. A, ¶¶ 19, 28.) The
record is unclear to what extent, if any, the MADYMO program, using data provided by
the experts, actually generated its own “opinions” regarding the movements of Mr.
Bullock and Mr. Green during the accident in question.
The rapid advances in computer technology have made possible a
dramatic new type of demonstrative evidence in the form of on-screen
computer animations or simulations. Animations are visual depictions that
serve to illustrate or clarify such things as . . . an expert's opinion as to
what occurred . . . . Animations, therefore, are usually offered as
illustrative evidence.
Simulations, on the other hand, are created by entering known data
into a computer program, which analyzes those data according to the
rules by which the program operates (e.g., the laws of physics or
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mathematics) to draw conclusions about what happened and to recreate
an event at issue. The program itself, rather than witness testimony, is the
source of the visual images depicted and may actually serve as the basis
for opinion testimony. Simulations are therefore usually classified as
substantive evidence. . . .
Because animations are typically used to illustrate witness
testimony, if a computer-generated animation is offered into evidence,
usually the only foundation necessary is that required of other forms of
demonstrative evidence—the testimony of a knowledgeable witness that
the animation fairly and accurately depicts what its proponent claims. . . .
[A] limiting instruction should be given telling the jury the purpose for
which the animation is admitted and that it is not to be considered as
substantive evidence. Usually illustrative evidence is not sent to the jury
room . . . .
A simulation designed to recreate an event at issue is normally
offered as substantive evidence and requires a much more rigorous
foundation, because the jury is being asked to accept the simulation,
which may go beyond anything a witness observed, as evidence of what
actually happened. . . . A simulation normally must be authenticated by
showing: (1) the qualifications of the expert who prepared the simulation;
(2) the capability and reliability of the computer hardware and software
used; (3) the calculations and processing of data were done on the basis
of principles meeting the standards for scientific evidence under Fed. R.
Evid. 702; (4) the data used to make the calculations were reliable,
relevant, complete, and properly inputted; and (5) the process produced
an accurate result. Simulations which are not properly authenticated are
excluded.
5 Federal Evidence § 9:26 (3d ed. 2010) (citations omitted).
In this case, if the MADYMO program was used to generate an independent
“opinion” regarding the events in question based on the underlying data of Drs. Smith
and Butler, expert testimony – likely from Mr. Chinni, who oversaw the creation of the
modeling analysis – would be necessary to establish the reliability of the MADYMO
program. See Ortiz v. Yale Materials Handling Corp., 2005 WL 2044923 (D. N.J. Aug.
24, 2005) (“While the Federal Rules of Evidence do not have specific provisions
governing the admission of computer-generated simulations, reconstruction and
animation as substantive evidence, such computer-generated evidence has long been
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accepted as an appropriate means to communicate complex issues to a lay audience,
so long as the expert's testimony indicates that the processes and calculations
underlying the reconstruction or simulation are reliable.”) (emphasis added); 57 Am. Jur.
Proof of Facts 3d 455, § 12 (2005) (“In order to have a computer animation or
simulation admitted into evidence, the proponent of that evidence generally must
acquire and have an expert in computer reconstruction or animation testify at trial.”); 2
McCormick On Evidence § 218 (6th ed. 2009) (“The computer-generated ‘opinion’ is
determined by the scientific principles that an expert has programmed into the
computer. Thus the simulation must be authenticated as an accurate result of a system
or process, pursuant to Federal Rule of Evidence 901(b) . . . . [R]eliability is the
‘watchword’ in determining the admissibility of computer-generated evidence.”).
However, as Defendant concedes, Mr. Chinni has not been designated as an expert in
this action, and he therefore cannot provide the testimony that would be necessary
regarding the scientific reliability of the MADYMO program.
Further, at this late stage of the proceedings, Defendant will not be allowed to
supplement its disclosures in an attempt to lay an adequate foundation for the
MADYMO modeling analysis. Defendant has repeatedly conceded throughout the
litigation that Mr. Chinni has not been designated as an expert in the case. (See, e.g.,
ECF Nos. 211, 317.) Mr. Chinni’s declaration has gone unchanged between December
2009 and the present. (See ECF No. 211, Ex. A; ECF No. 317, Ex. A.) In terms of Dr.
Smith’s involvement with the MADYMO modeling analysis, Dr. Smith’s expert report
makes no mention of the MADYMO analysis. (See No. 175, Ex. 1.) In a supplemental
declaration filed with this motion on January 27, 2011, Dr. Smith provides information
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about the MADYMO program similar to that previously provided by Mr. Chinni. (See
ECF No. 317, Ex. 2, ¶¶ 29-37.) However, that information also does not provide
sufficient detail for the Court to make an informed decision regarding how the MADYMO
program works. The MADYMO modeling analysis at issue will not be admissible as
substantive evidence at the trial of this action.
The decision in Salome-Torres v. Integrand Assurance Co., 2008 WL 5516485
(D. P.R. Dec. 2, 2008), upon which Defendant relies, is to be distinguished. There is no
indication in that opinion that the defendant was seeking to introduce a MADYMO
modeling analysis as substantive evidence at trial. Instead, at issue in that case was
whether a MADYMO technician would be allowed to testify about how the MADYMO
was prepared where Defendant had disclosed that its primary expert witness had relied
on the MADYMO modeling analysis to form his expert opinions. Thus, it does not
appear that Salome-Torres involved the policy concern regarding a jury viewing a video
animation and potentially confusing “art with reality.” Robinson, 16 F.3d at 1088.
Further, here, it does not appear that Dr. Smith used the MADYMO modeling analysis to
help form his expert opinions; nowhere in his expert report does he mention MADYMO
or James Chinni. (See ECF No. 175, Ex. 1.) It appears, instead, that the MADYMO
modeling analysis merely illustrates his expert opinions. (ECF No. 317, Ex. B, ¶ 37
(stating that the MADYMO modeling analysis “is an accurate illustration of the principles
I employed in rendering the opinions I have in this case, and will in my opinion, be
helpful to the jury in understanding my testimony”).
An out-of-court experiment may be offered by an expert at trial in order to
illustrate or demonstrate principles used to form an expert opinion. See Pandit v.
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American Honda Motor Co., Inc., 82 F.3d 376, 381-82 (10th Cir. 1996). Here, Dr. Smith
has declared that the MADYMO modeling analysis at issue “is an accurate illustration of
the principles I employed in rendering the opinions I have in this case, and will in my
opinion, be helpful to the jury in understanding my testimony.” (ECF No. 317, Ex. B, ¶
37.) The Court will allow Dr. Smith to show the MADYMO modeling analysis to the jury
during his testimony at trial in order to illustrate the principles Dr. Smith employed in
rendering his opinions.1 However, the MADYMO modeling analysis will not be admitted
into evidence, and the jury will only be allowed to view the MADYMO modeling analysis
during the course of Dr. Smith’s testimony. See United States v. Downen, 496 F.2d
314, 321 (10th Cir. 1974) (“[T]he submission of [demonstrative or illustrative exhibits],
whether or not admitted in evidence, to the jury for view during trial or jury deliberations,
accompanied by careful cautionary instructions as to their use and limited significance,
is within the discretion accorded the Trial Court in order that it may guide and assist the
jury in understanding and judging the factual controversy.”). Further, Dr. Smith shall be
precluded from providing testimony at trial that seeks to bolster the reliability of the
MADYMO program itself. As a precaution to prevent such bolstering, Dr. Smith shall be
precluded during his testimony from referring to the program’s name, MADYMO, or
referring to Mr. Chinni, Indiana Mills and Manufacturing, Inc. (“IMMI”), or TNO
Automotive Safety Solution BV (“TASS,” the creator of the MADYMO software
program).

1

Dr. Robert Butler will be precluded from testifying regarding the MADYMO
modeling analysis because his expert report does not mention the MADYMO analysis
and he has not provided a declaration stating that the MADYMO modeling analysis
accurately illustrates his expert opinions in the case.
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Because the MADYMO modeling analysis may be shown at trial solely to
illustrate the opinions of Dr. Smith, testimony of Mr. Chinni regarding the MADYMO
modeling analysis will be unnecessary. Mr. Chinni shall be precluded from testifying at
trial regarding the MADYMO modeling analysis or his involvement with its creation.2
IV. CONCLUSION
In accordance with the foregoing, it is therefore ORDERED as follows:
1. Defendant’s motion is GRANTED to the extent it seeks a pretrial evaluation
and ruling regarding an admissibility issue.
2. Defendant’s motion is DENIED to the extent it seeks a ruling that the
MADYMO modeling analysis will be admissible as substantive evidence at trial. The
MADYMO modeling analysis will not be admissible as substantive evidence at trial.
3. At trial, Defendant’s expert, Dr. Harry Smith, will be allowed to show the
MADYMO modeling analysis to the jury during the course of his testimony, in order to
illustrate the principles Dr. Smith employed in rendering his opinions, and a cautionary
instruction consistent with this limited ruling will be submitted to the jury. Dr. Smith shall
be precluded from providing testimony at trial that seeks to bolster the reliability of the
MADYMO program itself. Dr. Smith shall be precluded during his testimony from
referring to the program’s name, MADYMO, or referring to Mr. Chinni, IMMI, or TASS.
4. James Chinni shall be precluded from testifying at trial regarding the
MADYMO modeling analysis at issue or his involvement with its creation.

2

This order does not address or resolve the admissibility of Mr. Chinni’s other
proposed testimony, regarding “the development, design, testing and industry usage of
Class 8 tractor restraint systems.” (ECF No. 173, Ex. 2, at 1.)
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Dated this 3rd day of May, 2011.

BY THE COURT:

William J. Martínez
United States District Judge

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