Olivero et al v. Trek Bicycle Corporation

Filing 119

ORDER denying 111 Motion to Exclude Defendant's Rebuttal Expert, Mr. Bretting, as a Witness at Trial, by Judge William J. Martinez on 07/18/2018. (wjmlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-0761-WJM-MJW
MICHAEL OLIVERO and
ANGELA OLIVERO,
Plaintiffs,
v.
TREK BICYCLE CORPORATION, a Wisconsin Company,
Defendant.

ORDER DENYING PLAINTIFFS’ “FURTHER MOTION”
TO EXCLUDE EXPERT TESTIMONY

This lawsuit arose from a bicycle accident that caused significant injuries to
Plaintiff Michael Olivero. According to Olivero, the fork on the front of his bicycle
spontaneously and catastrophically failed due to what must have been, he believes, a
manufacturing defect. He and his wife, Plaintiff Angela Olivero (together, the
“Oliveros”), sue Defendant Trek Bicycle Corporation (“Trek”) on a theory of product
liability. 1 Trial is currently set to begin on July 30, 2018. Currently before the Court is
the Oliveros’ “Further Motion to Exclude Defendant’s Rebuttal Expert, Mr. Bretting, as a
Witness at Trial” (“Motion”). (ECF No. 111.)
Depending on how one counts, this Motion is at least the Oliveros’ third attempt
to exclude Bretting’s expected expert witness testimony. Cf. Olivero v. Trek Bicycle
Corp., 2018 WL 3102811, at *1 (D. Colo. June 25, 2018) (ECF No. 96) (denying the
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at 1.)

The Oliveros recently abandoned their other theories of liability. (See ECF No. 114

Oliveros’ Rule 702 motion to exclude Bretting’s opinions); Olivero v. Trek Bicycle Corp.,
291 F. Supp. 3d 1209, 1215–16 (D. Colo. 2017) (ECF No. 84) (mostly denying the
Oliveros’ claim that Bretting’s report presented improper rebuttal opinions). The
Oliveros’ current challenge runs as follows: (i) this Court ruled that, save for one opinion
that the Court excluded, Bretting’s expert opinions are proper rebuttal opinions; but
(ii) the Oliveros have now elected not to call their expert, Braden Kappius, whose
opinions Bretting’s testimony is intended to rebut; therefore (iii) Bretting’s expected
testimony must likewise be excluded, since he now has nothing to rebut.
Circumstances may exist in which the party proffering and then withdrawing an
affirmative expert might prevail on such an argument. Imagine, for example, a breach
of contract dispute where the plaintiff has been claiming future lost profits, and has
proffered an expert to calculate those damages. The defendant has proffered a rebuttal
expert criticizing the affirmative expert’s calculations and offering an alternative
calculation. If the plaintiff abandons its claim for future lost profits, then the defendant’s
rebuttal expert’s testimony would probably become inadmissible because it would be
irrelevant, not because the expert had been proffered under the “rebuttal” label. Indeed,
the expert could have produced a preemptive report on the affirmative expert deadline
(compare Federal Rule of Civil Procedure 26(a)(2)(D)(i) with 26(a)(2)(D)(ii)) and his or
her testimony would still likely be inadmissible as irrelevant. It would no longer address
a matter that is “of consequence in determining the action.” Fed. R. Evid. 401(b).
The situation presented here is not precisely analogous. The Oliveros have not
abandoned any portion of their case. They have only “abandoned” a particular witness
who might have supported their theory of the case, which remains the same

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(spontaneous failure due to latent manufacturing defect). In other words, there is still a
theory to rebut, even if an affirmative expert will not testify in support of that theory.
There is no rule that, at trial, a rebuttal expert may testify only in response to an
affirmative expert’s trial testimony. Indeed, with some frequency the Court sees one
party presenting its theory without expert testimony and the opposing party challenging
that theory with expert testimony.
Moreover, this is a different matter from the question of when the expertproffering party was required to disclose the expert’s opinions under Rules 26(a)(2)(D)(i)
and (ii). Whether the expert is properly considered a “rebuttal expert” for purposes of
judging timeliness of disclosure under Rule 26(a)(2)(D) has nothing necessarily to do
with whether the admissibility of that expert’s opinions at trial turns on some other
expert testifying first.
As applied to this case, it certainly would have been an interesting scenario if the
Oliveros had let the affirmative expert disclosure deadline pass without disclosing
Kappius’s opinions. Trek probably would have been left with no way, procedurally
speaking, to disclose Bretting’s report (and therefore his trial testimony) absent
modification of the scheduling order. But, as it happened, the Oliveros did disclose
Kappius’s opinions and Bretting’s rebuttal report offered, for the most part, proper
rebuttal in light of the opinions Kappius actually rendered. See 291 F. Supp. 3d at
1215–16.
In short, the Court finds that the Oliveros’ choice to present their case without
expert testimony is not dispositive of whether Trek can defend through testimony of an
expert properly disclosed under Rules 26(a)(2)(D) as a rebuttal expert. The Oliveros

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intend to prove the same theory that Kappius would have presented through his
opinions, and so Bretting’s opinions continue to have a “tendency to make a fact [of
consequence] more or less probable than it would be” otherwise. Fed. R. Evid. 401(a)
& (b). For these reasons, the Oliveros’ Further Motion to Exclude Defendant’s Rebuttal
Expert, Mr. Bretting, as a Witness at Trial (ECF No. 111) is DENIED.
Dated this 18th day of July, 2018.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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