Olivero et al v. Trek Bicycle Corporation

Filing 84

ORDER on Pending Motions. Trek's Motion for Summary Judgment (ECF No. 33 ) is DENIED; Trek's Motion in Limine (ECF No. 47 ) is DENIED, but certain of the Oliveros' evidence is nonetheless excluded, as stated in Part VI, above; The Ol iveros Motion to Strike Rebuttal Expert (ECF No. 68 ) is DENIED except as to the third paragraph of Brettings "Opinions" section. As to that paragraph, the Oliveros shall file a notice with the court no later than November 27, 2017 stating whether they choose to have the Court exclude Bretting's opinions, or whether they instead choose to disclose a rebuttal report as to those opinions; The Oliveros' Motion to Strike Reply Evidence (ECF No. 78 ) is DENIED; This matter REMAI NS SET for a Final Trial Preparation Conference on January 26, 2018, at 2:00 p.m., and a five-day jury trial beginning on February 12, 2018, all in Courtroom A801 of the Alfred J. Arraj United States Courthouse. ORDERED by Judge William J. Martinez on 11/16/2017. (angar, )

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 ON PENDING MOTIONS

This lawsuit arose from a bicycle accident that caused significant injuries to
Plaintiff Michael Olivero. He and his wife, Plaintiff Angela Olivero (together, the
“Oliveros”), 1 sue Defendant Trek Bicycle Corporation (“Trek”) on theories of product
liability, negligence, breach of warranty, and (as to Angela Olivero) loss of consortium.
Currently before the Court are four motions: (1) Trek’s Motion for Summary
Judgment (ECF No. 33); (2) Trek’s Motion in Limine to Preclude Evidence Related to
Certain Alleged Future Economic and Noneconomic Damages (“Motion in Limine”)
(ECF No. 47); (3) the Oliveros’ Motion to Strike Defendant’s Rebuttal Accident
Reconstruction Expert (“Motion to Strike Rebuttal Expert”) (ECF No. 68); and (4) the
Oliveros’ Motion to Strike the Affidavits and New Evidence from Defendant’s Summary
Judgment Reply Brief (“Motion to Strike Reply Evidence”) (ECF No. 78). For the
reasons discussed below, Trek’s summary judgment motion is denied. As for the
1

Any reference in this order solely to “Olivero” refers to Michael Olivero.

various evidentiary motions, each is granted in part and denied in part, and, as to
certain objections to expert testimony, both parties must elect whether to seek a rebuttal
from an expert of their own, as explained below. Absent such an election, the Court will
strike a portion of the expert opinions in question.
I. UNDISPUTED FACTS
Trek designs, manufactures, and sells bicycles and their various components.
(ECF No. 33 at 3, ¶ 1.) Sometime in 2014, Olivero purchased a Trek bicycle. (Id. ¶ 2.)
On March 25, 2015, Olivero purchased a new Trek carbon fiber bicycle fork to replace
the fork then installed on his bicycle. (Id. ¶ 5.) This new fork was not manufactured in a
Trek facility, but was instead manufactured by a Chinese subcontractor named Martec
Industrial Corp. (“Martec”). (ECF No. 49 at 7, ¶ 1.)
Olivero had his new fork professionally installed by the bike shop where he
purchased the fork. (ECF No. 33 at 3, ¶ 6.) The bike shop performed the installation
properly. (ECF No. 49 at 15, ¶ 1.) From that date (March 25, 2015) until the accident
that led to this lawsuit, Olivero rode his bicycle with the replacement fork many times for
a significant distance, in the aggregate. (ECF No. 33 at 4, ¶ 7; ECF No. 49 at 6–7.)
On June 15, 2015, Olivero was riding his bicycle on South Garrison Street in
Lakewood, Colorado, when he “suddenly and unexpectedly crashed.” (ECF No. 33 at
5, ¶¶ 15–16.) Olivero has no memory of the event. (Id. ¶ 17.) Two eyewitnesses saw it
happen, however. (Id. at 6, ¶ 18.) These eyewitnesses were traveling in a car some
distance behind Olivero, who was riding to the right of the automobile traffic lanes and
also to the right of a designated bike lane. (Id. ¶¶ 19–22.) Both eyewitnesses testified
to seeing essentially the same event: the bicycle fork snapped in a backwards direction

2

for no discernible reason, the bicycle collapsed beneath Olivero, and he fell forward
over his handlebars and onto the pavement. (ECF No. 49 at 16, ¶¶ 4–10.) The right
side of his face struck the pavement just before, or about the same time as, the rest of
his body.
Again, Olivero does not remember the accident. Based on his normal riding
behavior, however, he estimates that he was likely traveling 15–20 mph at the time. (Id.
at 17, ¶ 12.) Post-accident investigation revealed no skidmarks or signs of a foreign
object that might have lodged in Olivero’s wheel. (Id. at 18, ¶ 17; id. at 21, ¶ 32.)
All of the bicycle components, including the broken fork, have been preserved as
evidence for this lawsuit (ECF No. 33 at 7, ¶ 29), which Olivero filed on April 1, 2016
(ECF No. 1).
II. THE OLIVEROS’ MOTION TO STRIKE TREK’S EXPERT EVIDENCE
Before addressing the parties’ substantive arguments for and against summary
judgment, the Court must resolve a heated dispute over the proper extent of Trek’s
rebuttal expert’s opinions.
A.

The Competing Reports
The Oliveros retained Braden Kappius—who has significant education in

metallurgy, materials science, and mechanical engineering—to inspect the broken
bicycle and to provide an expert report. Kappius’s report is dated November 11, 2016.
(ECF No. 68-1 at 11.) The most important statements in the report are as follows:
Purpose:
The purpose of this analysis was to determine the most likely
cause of the accident and whether or not manufacturing
defects and/or improper installation and assembly of the fork
onto the frame caused or contributed to the June 15, 2015
accident.
3

Procedure:
The bicycle components recovered following the accident
were inspected . . . [in] the presence of representatives from
the Trek Bicycle Corporation.
***
Bicycle Description:
. . . Mr. Olivero reports riding the bike under normal riding
conditions without incident or impact damage until the date
of the accident. . . .
***
Fork Description:
***
After the accident, the fork was fractured on both fork legs
approximately 5 inches above the wheel dropout location
. . . . The location of the failure is away from any moving
parts of the wheel. There is no indication in the region of the
failure that there was [a]n impact to the fork legs from a
foreign object prior to or contributing to the failure.
***
Conclusions:
After analyzing the available evidence and through
engineering analysis, we have reached the following
conclusions with a reasonable degree of engineering
certainty:
•

There is no engineering evidence to suggest that
improper assembly of Mr. Olivero’s bicycle caused or
contributed to the June 15, 2015 incident in which
Mr. Olivero was injured.

•

There is no indication of undue applied stresses to the
bicycle from, but not limited to, crashing of the bicycle,
use under unsuitable conditions which the bicycle was
not designed for[,] or abnormal external forces.

•

With the evidence available to date, all signs point toward
spontaneous and catastrophic failure of the fork that can

4

only be attributed to underlying defects. While these
defects might not have made themselves present prior to
the accident, that does not preclude them from existing.
Carbon fiber composites can and will often fail in a
sudden and catastrophic manner. This is a function of
the mechanical properties of carbon fiber composites.
(Id. at 11–15 (typeface formatting in original).)
Trek designated a mechanical engineer, Gerald Bretting, as its rebuttal expert.
Bretting’s rebuttal report is dated January 6, 2017. (ECF No. 68-2 at 4.) The Bretting
Report contains a substantially longer narrative of what he observed at the in-person
inspection of Olivero’s bicycle. (Id. at 5–7.) Among his observations were “an impact
crack to the aft surface of the left fork blade between 3.5 and 3.75 inches below the
crown race seat [i.e., below where the fork inserts into the head tube] with scraping
around in this area that leads to the inboard surface of the left fork blade”; that the front
wheel has one broken spoke, but “[t]he direction of the overload that caused the spoke
to break cannot be determined by the spoke alone”; and that “[t]he valve stem of the
inner tube [of the front wheel] is bent from a load that is opposite the direction of
rotation.” (Id. at 5, 6.) Later in the report, it becomes clear that the broken spoke was
immediately adjacent to the bent valve stem. (Id. at 7.)2 Bretting also noted that the
parts of the bicycle that normally sit closest to the ground, i.e., the crank arms and the
chain rings, showed “no signs of ground contact.” (Id. at 6.)
As for his opinions, Bretting disputes Kappius’s statement
that there is no indication of undue applied stresses to the
bicycle frame; to the contrary, there is abundant physical
evidence of stress being applied at the aft facing surface of
2

In other words, if the bicycle was in forward motion and an observer was watching it
from the side, the observer would see the valve stem pass through the fork and then the spoke
that ultimately broke would pass through immediately afterward.

5

the left fork blade, which then translated into force on the
forks being applied by the rider pitching over the front as
described below.
(Id. at 7, ¶ 1(a).) This opinion foreshadows the bulk of Bretting’s remaining opinions,
which largely comprise a description of how a foreign object must have been picked up
and carried by the valve stem or a spoke until it lodged against the aft surface of the
fork blade, which bent the valve stem and then lodged against the adjacent spoke,
causing the wheel to suddenly stop rotating, in turn causing Olivero and the rearward
portion of his bicycle to pitch forward around the axis created by the now-immobilized
front wheel. That forward pitch caused an enormous amount of stress on the spoke and
the forks, causing both to break. (Id. at 7–8, ¶¶ 2–5.) But, says Bretting, Olivero would
have pitched forward and off his bike in any event (i.e., even if the fork had not broken)
given the sudden stoppage of the front wheel. (Id. ¶ 4.) Bretting’s reconstruction of this
scenario contains details at the millisecond level, e.g., how long it would take for a
foreign object to be picked up and carried until it hit the back of the fork, how quickly the
fork would have snapped, etc. (Id. ¶ 3.)
Bretting also offered the following attacks on Kappius’s opinions:
The loads required to break a spoke of the front wheel were
in the order of magnitude of 400 to 500 lbs. A load of this
magnitude is only created when the bicycle and rider are
pitching over with an object wedged between the back of the
fork and a spoke.
The cracking on the under surface of the fork crown is
further evidence of a large rearward load being applied to
the fork blades.
During normal riding the fork is in [sic] forward bending. The
load on the fork on a smooth road with a 160 lb rider with his
hands on the brake hoods is between 72 and 144 lbs. If the
fork was to break under those circumstances, the front wheel
would move forward away from the rest of the bicycle. As
6

the front wheel moves away, the bicycle will drop toward the
ground with either the large chain ring or a crank arm
impacting the ground first followed by the upper fracture
surface of the fork blades.
The lack of physical evidence of ground contact to the chain
rings, crankarms, chain, and the upper fracture surfaces of
the fork blades is inconsistent with the fork failing during
normal riding loads.
(Id. at 8, ¶¶ 7–10.)
B.

The Oliveros’ Objections to Bretting’s Report
1.

Failure to Submit the Report in the Form of an Affidavit or Declaration

Trek attached Bretting’s expert report as-is to its summary judgment motion. The
Oliveros, in their response brief, objected that Bretting’s opinions are not competent
summary judgment evidence in that form, but must be in the form of an affidavit or
declaration. (ECF No. 49 at 14.) Trek, in its reply brief, attached an affidavit from
Bretting attesting that he would testify consistent with his expert report. (ECF No. 63-2.)
He expressed no new opinions in that affidavit. Unsatisfied, the Oliveros filed their
Motion to Strike Reply Evidence, opening with a gratuitous ad hominem: “It appears that
Trek simply cannot figure out how to procedurally pursue a summary judgment motion.
Further motion practice is therefore necessary.” (ECF No. 78 at 1.) The Oliveros argue
that Bretting’s reply affidavit is simply too late. (Id. at 1–4.)
It is difficult to understand how such a petty and easily correctable issue could be
worthy of motion practice. Unfortunately, the Oliveros’ counsel have company—the
Court has recently faced this issue in multiple cases. The resolution here is the same
as before:
The Court is frankly tired of addressing this utterly formalistic
and baseless (yet surprisingly common) objection. See
Pertile v. Gen. Motors, LLC, 2017 WL 4237870, at *2 (D.

7

Colo. Sept. 22, 2017). The cases [the Oliveros] cite[] in
support of [their] position—Adickes v. S. H. Kress & Co., 398
U.S. 144, 158 n.17 (1970), and Sofford v. Schindler Elevator
Corp., 954 F. Supp. 1459, 1462–63 (D. Colo. 1997)—have
been abrogated on this point by the 2010 amendments to
Federal Rule of Civil Procedure 56. See Pertile, 2017 WL
4237870, at *2 & n.3. The proper question at summary
judgment is whether the proffering party “is incapable of
presenting its experts’ intended testimony ‘in a form that
would be admissible in evidence [at trial].’” Gunn v. Carter,
2016 WL 7899902, at *2 (D. Colo. June 13, 2016) (quoting
Fed. R. Civ. P. 56(c)(2)). [The Oliveros] do[] not attempt to
show that [Trek] cannot bring [Bretting] to testify at trial, or
that [Bretting’s] opinions have not been adequately
disclosed. [The Oliveros’] objection is therefore overruled.
Sanchez v. Hartley, 2017 WL 4838738, at *12 n.11 (D. Colo. Oct. 26, 2017).
2.

Improper Rebuttal Opinions

The Oliveros have a second attack on Bretting’s report. Trek disclosed Bretting
as a rebuttal expert, but, according to Trek, Bretting’s opinions go well beyond proper
rebuttal. (ECF No. 68.)
A proper rebuttal expert opinion is one offered “solely to contradict or rebut
evidence on the same subject matter identified by another party” through that party’s
affirmative expert disclosures. Fed. R. Civ. P. 26(a)(2)(D)(ii). Understanding whether
any of Bretting’s opinions are proper rebuttal opinions requires keeping in mind the
following three statements that Kappius made in his report:
•

“There is no indication in the region of the failure that there was [a]n
impact to the fork legs from a foreign object prior to or contributing to the
failure.” (ECF No. 68-1 at 14.)

•

“There is no indication of undue applied stresses to the bicycle from, but
not limited to, . . . abnormal external forces.” (Id. at 15.)

•

“With the evidence available to date, all signs point toward spontaneous
8

and catastrophic failure of the fork that can only be attributed to underlying
defects.” (Id.)
Given these statements, Bretting remained within the realm of proper rebuttal by
offering contrary opinions, i.e., that there is an indication in the region of the failure of an
impact from a foreign object; that there is an indication of undue applied stresses from
abnormal external forces; and that “all signs” do not point toward spontaneous failure
that can only be attributed to underlying defects. Bretting was also entitled to explain
why he believes these opinions are true, namely, why the evidence leads him to believe
that a foreign object became lodged in the spokes and then against the back of the fork,
causing a pitch-over event that led both to the fork breaking and Olivero tumbling over
the handlebars.
The Oliveros argue that “[t]his fanciful defense theory could have never been
foreseen by Plaintiffs as an alternative cause that had to be ruled out.” (ECF No. 68
at 11.) They even go so far as to claim that Bretting’s theory “was about as expected
and fanciful as Mr. Olivero being somehow stricken by unseen lightning descending
from the heavens!” (ECF No. 77 at 8.) This is simply not true. Kappius’s report
specifically describes whether he saw evidence of a foreign object, or of undue external
forces, or of any potential cause aside from a latent defect. He says he did not.
Bretting says he did. The jury will decide whose opinions are more plausible, but
Kappius’s report shows that a theory such as Bretting’s was at least foreseeable.
Accordingly, the Court finds that paragraphs 1–2 and 4–15 of Bretting’s “Opinions”
section (ECF No. 68-2 at 7–9) are proper rebuttal opinions that may be tested through
cross-examination, as with all other admissible expert testimony.

9

Paragraph 3 of Bretting’s “Opinions” section, however, requires a different result.
This paragraph goes far beyond an opinion that the damage to the bike is consistent
with a foreign object lodging in the spokes. It instead provides a millisecond-bymillisecond account of how Bretting believes the accident played out. It is, in other
words, an affirmative accident reconstruction opinion. Its apparent primary purpose is
to show how a fork failure caused by a foreign object could happen so quickly that it
would be indistinguishable to most eyewitnesses from spontaneous failure—which is
what the eyewitnesses here said that they saw. This is not offered solely to contradict
or rebut Kappius’s report, and should have been disclosed no later than the affirmative
expert deadline, thus giving the Oliveros a chance to provide a rebuttal.
The question at this point is the proper remedy. The default remedy is exclusion,
per Rule 37(c)(1). However, the Court will give the Oliveros a choice between exclusion
or obtaining a rebuttal to Bretting’s paragraph 3. 3 If the Oliveros choose to obtain a
rebuttal report, the Court will set an appropriate deadline that accommodates the quickly
approaching trial. The Oliveros’ choice has no effect on the outcome of Trek’s summary
judgment arguments, as will become clear in Part IV, below.
III. THE OLIVEROS’ MOTION TO STRIKE REPLY EVIDENCE
Yet another evidentiary motion stands in the way of the Court’s summary
judgment analysis. The Oliveros have moved to strike an affidavit submitted with Trek’s
summary judgment reply brief. (ECF No. 78.) The context for this motion is as follows.
The Oliveros’ response brief argues that a disputed issue of fact exists regarding
3

A rebuttal to paragraph 3 would, almost by necessity, likely provide indirect rebuttal to
other paragraphs in Bretting’s report. This is appropriate, but—should the Oliveros elect to
obtain a rebuttal report—the Oliveros are warned not to abuse this opportunity by offering
theories that they should have affirmatively disclosed.

10

whether the fork was actually manufactured according to proper standards because,
among other reasons, Trek wanted to obtain Martec’s precise technical specifications
for its carbon fiber fabrication process, but Martec balked due to trade secret concerns,
and Trek backed off. (ECF No. 49 at 22–23, ¶¶ 41–45.) The implication, of course, is
that Trek was not as careful as it claimed to be. The Oliveros also argued from a
blueprint of the fork containing a footnote stating, “Failure mode must be ductile [i.e.,
bending without breaking] and within the aluminum parts. Failure in the carbon legs is
not permitted.” (Id. at 24–25, ¶¶ 51–53 (internal quotation marks omitted).) The
Oliveros compare this to the fact that the legs of the fork in question did fail, thus
attempting to raise the inference that the fork did not conform to manufacturing
specifications. Finally, the Oliveros argued that Trek’s evidence regarding Martec’s
testing of forks after their manufacture is inadmissible hearsay because, among other
reasons, Trek had not shown that Martec was “under a business duty or compulsion to
provide accurate information to qualify for the reliability and trustworthiness rationale of
the [business records] exception [i.e., Fed. R. Evid. 803(6)].” (Id. at 11.)
To address all of these assertions, Trek submitted with its reply brief an affidavit
of Stephen Moechnig, a Trek engineer who actually designed the model of fork that
failed in this case. (ECF No. 63-6.) Moechnig explained that, once Trek decided not to
press Martec on the trade secret issue, it chose instead to create a system by which
every Martec fork would undergo load testing to ensure proper manufacturing. (Id.
¶¶ 13–28.) As for the blueprint describing the ductile “failure mode” requirement,
Moechnig explained that the blueprint was referring to a “Frontal Impact test, which was
intended to simulate a cyclist’s front wheel colliding with an immobile obstruction.” (Id.

11

¶ 9.) Lastly, concerning Martec’s business duty, Moechnig claimed that Martec was
indeed under a business duty by way of a particular contract. (Id. ¶ 27.)
Seeking to exclude this affidavit from Moechnig, the Oliveros first object that
submitting evidence with a summary judgment reply brief is simply not allowed. (ECF
No. 78 at 5–7.) The undersigned enforces no such restriction. To be sure, evidence
attached to a reply brief rarely eliminates a dispute over a material fact. But there is no
blanket procedural exclusion of such evidence.
The Oliveros additionally object that Moechnig’s statements are the sort that one
would expect to be backed up by documentary evidence, yet Trek produced no such
evidence during discovery. (ECF No. 78 at 7–13.) The Oliveros’ insinuation is that Trek
and/or Moechnig are simply making things up now, or that an egregious discovery
violation took place. Trek responds by affirming that it has produced all documents
responsive to the Oliveros’ discovery requests and all documents that it must produce
under Rule 26. (ECF No. 81 at 13.) They further affirm that Moechnig’s affidavit “is
based on Mr. Moechnig’s extensive personal knowledge and experience as the Trek
engineer who personally designed and oversaw the production of the Fork on behalf of
Trek.” (Id.)
The Court agrees with the Oliveros to the extent that the matters addressed in
the Moechnig affidavit are the sort of thing one would normally expect leave a paper
trail. But it is not beyond belief that a paper trail never existed, or no longer exists.
Trek’s attorneys have now represented as officers of the Court that they and their client
have complied with discovery obligations. In such circumstances, the Court has no
basis to look behind counsel’s representation.

12

Given this, the Court finds nothing objectionable about the Moechnig affidavit. It
provides additional detail to rebut arguments raised by the Oliveros in their response
briefs. It is therefore typical reply-brief evidence. As will become clear below, it does
not “clinch” summary judgment for Trek, but it is nonetheless appropriately considered
at summary judgment. The Oliveros’ Motion to Strike Reply Evidence is denied. 4
IV. SUMMARY JUDGMENT ANALYSIS
Having cleared away all of the foregoing, the Court now turns to Trek’s argument
that it is entitled to summary judgment.
A.

Legal Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the

4

The Oliveros are free, of course, to cross-examine Moechnig regarding the lack of a
paper trail, to the extent his direct testimony includes discussion of the issues addressed in his
affidavit.

13

Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
B.

“Without More” and the “Malfunction Doctrine”
In Colorado, it is established that, “without more,” the fact of damage or

malfunction “does not establish that the product was defective or unreasonably
dangerous.” Colo. Jury Instr., Civil 14:7 (4th ed., June 2017 update). Trek’s primary
summary judgment argument is that the Oliveros’ have failed to provide the “more”
required to move from the fact of malfunction to the inference of a manufacturing defect.
1.

The Meaning of Union Insurance

Trek particularly attacks Kappius’s expected testimony because his report rather
baldly concludes that “all signs point toward spontaneous and catastrophic failure of the
fork that can only be attributed to underlying defects.” (ECF No. 68-1 at 15.) Trek
argues that Kappius’s “inability to identify the alleged defect in the Fork renders his
opinion nothing more than conjecture and subjective belief, which is insufficient to
survive a motion for summary judgment.” (ECF No. 33 at 15.)
The Oliveros respond with Union Insurance Co. v. RCA Corp., 724 P.2d 80
(Colo. App. 1986). The Union Insurance case arose from a house fire. Id. at 81. The
plaintiff insured that residence, paid the insurance claim, and thereby became subrogee
of the insured. Id. In that capacity, the plaintiff brought suit against the manufacturer of
the insured’s television set, claiming that “the fire was caused when the TV ignited
because of defects in its design and/or manufacture.” Id. at 81–82. The plaintiff lost at
trial and then appealed. Id. at 81.
The arguments on appeal largely focused on a particular jury instruction that the
Colorado Court of Appeals held to be erroneous. Neither those arguments nor the
14

Court of Appeals’s holding are relevant to this case. See id. at 82. However, the
defendant put forth an alternative basis for affirming the verdict, namely, that the
erroneous jury instruction “was harmless error because plaintiff offered only
circumstantial evidence that the TV caused the fire, and, absent direct evidence of
cause and defect, defendant was entitled to a directed verdict.” Id. The Court of
Appeals disagreed, noting “[e]xtensive and detailed testimony by experts in fire
investigation showed that the fire started in the specific location of the TV and identified
the area in the TV at which ignition occurred. This testimony also excluded other
possible causes of the fire.” Id. at 83.
The defendant persisted however, “contend[ing] that evidence showing that the
TV ignited should not be sufficient to establish the inference that it was defective.” Id.
The Court of Appeals again disagreed:
[D]irect proof of defect was impossible in this case because
the TV was destroyed in the fire. A ruling that proof of defect
is unattainable as a matter of law in circumstances such as
these would effectively establish a conclusory presumption
of non-liability in favor of strict product liability defendants
whose products self-destruct in the process of causing injury
to persons or property. We are not prepared to adopt such a
view. Therefore, we hold that plaintiff’s evidence was
sufficient as a matter of law to create an issue of fact as to
the element of defect.
Id.
The Oliveros cite Union Insurance for the proposition that, “even in the absence
of direct evidence of cause and a specific defect, circumstantial evidence may provide
that further evidence [i.e., the ‘more’ in ‘without more’] and be sufficient to create an
inference of product defect.” (ECF No. 49 at 30.) The Oliveros also note two Tenth
Circuit decisions that arguably interpret Union Insurance in this way. The first of those

15

cases is Weir v. Federal Insurance Co., 811 F.2d 1387 (10th Cir. 1987), a case arising
from a house fire allegedly caused by a defective clothes dryer. Id. at 1389. The
defendant manufacturer argued, as the defendant did in Union Insurance, “that there is
no evidence of how a particular defect in the dryer caused the fire and that, therefore,
the district court erred in denying [the defendant’s] motions for a directed verdict or a
judgment n.o.v.” Id. at 1392. The Tenth Circuit disagreed, quoting the same portion of
Union Insurance block-quoted above. Id. It then stated that “[t]he inference of a defect
is permissible whenever the plaintiff has introduced evidence that would exclude other
causes of the accident.” Id. The Tenth Circuit concluded that the plaintiff had
introduced such evidence, and therefore rejected the defendant’s argument. Id.
The second of the Oliveros’ two Tenth Circuit cases is Oja v. Howmedica, Inc.,
111 F.3d 782 (10th Cir. 1997), which was a manufacturing defect lawsuit about a hip
replacement implant. Id. at 784–85. The district court had granted the defendant’s
motion for directed verdict on any theory of manufacturing defect, leaving only a theory
of design defect. Id. at 792. The Tenth Circuit’s review of the district court’s directed
verdict contains the following analysis:
Under Colorado law, a plaintiff may prove a manufacturing
defect by direct or circumstantial evidence. [Citing Union
Insurance.] In this case, the [key component of the artificial
hip] was completely missing when Dr. Evans removed [the
artificial] hip. Under such conditions, direct proof of a defect
in the staking peg was impossible. [Citing Union Insurance.]
Accordingly, Oja relied exclusively on circumstantial
evidence to support her manufacturing defect claim.
Id. The Tenth Circuit then went on to note that the defendant manufacturer had
received two reports of problems arguably similar to those experienced by the plaintiff,
and that the defendant manufacturer had inspected the lot of implants from which the

16

plaintiff’s hip had come and had rejected one of them based on a problem arguably
similar to what could have caused the deterioration of the plaintiff’s artificial hip. Id. at
792–93. The Tenth Circuit found that a jury could reasonably rely on this evidence to
conclude that the plaintiff’s artificial hip suffered from a manufacturing defect. Id. at 793.
The Oliveros claim that this general approach to product defect cases is known
as the “malfunction doctrine” and has been embodied in the Restatement (Third) of
Torts: Product Liability § 3 (1998) (“Restatement § 3”):
It may be inferred that the harm sustained by the plaintiff
was caused by a product defect existing at the time of sale
or distribution, without proof of a specific defect, when the
incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product
defect; and
(b) was not, in the particular case, solely the result of causes
other than product defect existing at the time of sale or
distribution.
(Emphasis added.) This Restatement section has never been explicitly adopted in
Colorado, but the Oliveros argue that Union Insurance effectively establishes the same
rule. (ECF No. 49 at 33–35.)
Trek replies that the rule of Union Insurance only applies if the accident destroys
the object that allegedly caused it. (ECF No. 63 at 8–9.) Trek relies on the analysis of
U.S. District Judge Phillip S. Figa (since deceased) in Hauck v. Michelin North America,
Inc., 343 F. Supp. 2d 976 (D. Colo. 2004). Hauck arose from an auto accident
ultimately caused by a tire that suddenly shed its tread while the vehicle was traveling
on the freeway. Id. at 978–79. The defendant filed a Rule 702 motion to exclude the
plaintiff’s expert’s testimony regarding the cause of the tire failure. Id. at 978. Judge
Figa granted the Rule 702 motion for various reasons, including that the expert’s
17

opinions were not adequately supported by reliable technical or scientific reasoning. Id.
at 980–86. Then, when evaluating the defendant’s summary judgment motion, Judge
Figa noted that exclusion of the plaintiff’s expert meant the plaintiff had “no relevant
evidence that the [tire in question] was defective at any time, or specifically that it failed
due to a manufacturing defect, a matter that is beyond the ambit of common knowledge
or experience of ordinary persons.” Id. at 988.
The plaintiff persisted, however, citing Union Insurance and Oja (although
apparently not Weir) for the proposition “that Colorado law allows for proof of product
defect through circumstantial evidence.” Id. Judge Figa rejected this argument,
distinguishing Union Insurance and Oja as cases about products that destroyed
themselves and therefore could not be examined:
While it is correct that the Union and Oja opinions state that
a plaintiff may prove a manufacturing defect by
circumstantial evidence, it is apparent to this Court that
those statements are based on the particular factual
situation that existed in each case, and do not supply a rule
for general application.
In both Union and Oja, the alleged defective product was
destroyed or was completely missing after the incident that
gave rise to the claims of strict liability, and hence direct
proof of a defect was impossible. Here, by contrast, the
allegedly defective tire is not destroyed or missing. . . .
Accordingly, the statements made in Union and Oja
regarding the use of circumstantial evidence to support a
manufacturing defect claim when the alleged defective
product has been destroyed have no application here.
Id. (internal quotation marks and citations omitted). In addition, said Judge Figa, no
“competent expert on tire design and tire manufacturing” had “ruled out” the possibility
of conducting tests on the tire. Id. at 988–89.
Trek views Union Insurance as operating against a background rule that

18

manufacturing defects must be proven by direct evidence. Trek apparently finds this
background rule in the requirement that malfunction or damage, without more, does not
permit a finding of defect. In other words, for Trek, the general rule is that the “more” in
“without more” must include observation and testing of the item in question to formulate
a hypothesis about a certain manufacturing error that likely caused the malfunction.
But, says Trek, Union Insurance created a narrow exception in cases where the
allegedly defective item can no longer be examined. In those cases, “more” can exist
by way of circumstantial evidence, including evidence that tends to exclude other
causes (as in Union Insurance and Weir), or shows that a defect similar to the one
allegedly at issue has been found in other specimens of the same product (as in Oja).
The Court doubts that this is the best reading of Union Insurance. In particular,
the Court doubts whether the court in Union Insurance was reasoning against the
background rule articulated by Trek (as opposed to a background rule that some form of
evidence must exist beyond the fact of malfunction, be it direct or circumstantial
evidence). But even if Trek has correctly divined the Colorado Court of Appeals’s intent
in Union Insurance, this Court would still need to address the Oliveros’ argument that
the Colorado Supreme Court would adopt the malfunction doctrine as stated in
Restatement § 3, if presented with the question. (See ECF No. 49 at 4–5, 35.) That is
because, at least for this Court, the Colorado Court of Appeals is not the final word on
the subject. See Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1240–41 (10th
Cir. 2003) (federal courts sitting in diversity are not bound by the decisions of state
intermediate appellate courts).
2.

What the Colorado Supreme Court Would Likely Decide

The Court agrees with the Oliveros that the Colorado Supreme Court would likely
19

adopt Restatement § 3 (assuming its framework is not already a part of Colorado law).
This is so for three major reasons.
First, Trek’s position would almost always—and perhaps literally always—require
a plaintiff in a manufacturing defect case to retain an expert to perform special analysis,
testing, etc., on the remains of the damaged object. But historically the Colorado
Supreme Court has rejected arguments that would make expert testimony a necessary
part of the plaintiff’s case. See, e.g., Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333,
344 (Colo. 2004) (“If the reasonable investigation and denial of an insured’s claim is
within the common knowledge and experience of ordinary people, then expert testimony
is not required.”); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 920 (Colo. 1997)
(“expert testimony is not necessary to establish a prima facie case of trespass”);
Pomeranz v. McDonald’s Corp., 843 P.2d 1378, 1384 n.7 (Colo. 1993) (“Expert
testimony is not always required to establish the amount of future damages.”). 5
Second, and closely related to the foregoing, is that Trek essentially proposes a
“best obtainable evidence rule,” a proposition the Colorado Supreme Court looked upon
unfavorably in Pomeranz, supra. Specifically at issue in Pomeranz were damages for
future taxes and future maintenance expenses flowing from breach of a commercial
lease. 843 P.2d at 1380–81. The plaintiffs’ only testimony regarding these damages
was through the landlord’s “managing co-owner.” Id. at 1380. The defendant argued
that the co-owner had not been qualified as an expert and so his estimates of future
5

The major exception, it seems, is professional negligence claims—although even in
that context the Colorado Supreme Court has not spoken categorically. See Redden v. SCI
Colo. Funeral Servs., Inc., 38 P.3d 75, 81 (Colo. 2001) (“Expert testimony is generally
necessary to assist the trier of fact in determining the applicable standards [of care in a
professional negligence case] because in most cases such standards are not within the purview
of ordinary persons.”).

20

damages should have been excluded. Id. at 1382. The defendant drew this argument
from a previous Colorado Supreme Court decision where it had found a lay witness’s
lost profits testimony admissible because it was a “reasonable basis for computation
and the best evidence obtainable under the circumstances of the case.” Tull v.
Gundersons, Inc., 709 P.2d 940, 945 (Colo. 1985) (internal quotation marks omitted).
The landlord’s witness, the defendant argued, did not present the best evidence
obtainable under the circumstances because an expert could have testified regarding
mill levies, property valuations, and so forth. Pomeranz, 843 P.2d at 1382. The
Colorado Supreme Court disagreed, reasoning that Tull “did not establish a requirement
that plaintiffs must always submit the best obtainable evidence under the
circumstances.” Id. at 1382–83 (emphasis in original). “Were such a requirement
always necessary, courts would be required to draw arbitrary lines on what is the best
evidence under the circumstances, or whether expert testimony is always necessary.”
Id. at 1383 n.7.
This is fundamentally the same problem raised by Trek’s interpretation of Union
Insurance. Trek seems to think that Union Insurance establishes an easy, binary
distinction: whether the allegedly defective item destroyed itself or not. In real life this
question cannot always be answered with a simple yes or no. Accidents of the type at
issue here are a good example. Consider a carbon fiber bicycle fork that, through some
sort of manufacturing error, conceals a few small air pockets in one particular location.
If the fork eventually snaps in that location, would the evidence of the air pockets’
existence still be detectable, or would the tearing of the carbon fibers (as visible in the
photographs submitted in this case) obliterate the evidence of their existence? What if

21

the accident happens as Bretting says it would, i.e., the front wheel drifts forward and
the large chain ring or a crank arm strikes the ground, followed by the upper fracture
surface of the fork, potentially scraping away a few millimeters of the upper fracture
surface as it grinds against the pavement? In these scenarios, the various pieces of the
bicycle are still available for inspection, but it is not clear whether any expertly
administered test could detect that air bubbles had once been present at the location of
the fracture. Given these complications, courts operating under the rule of Union
Insurance (as Trek articulates it) “would be required to draw arbitrary lines on what is
the best evidence under the circumstances.” Pomeranz, 843 P.2d at 1383 n.7.
Third, many states already accept that a plaintiff may pursue a manufacturing
defect case solely on circumstantial evidence, without establishing a specific defect.
See Restatement § 3, Reporter’s Note to cmt. c (citing cases to this effect from, or
applying the law of, Arizona, Arkansas, the District of Columbia, Florida, Hawaii, Idaho,
Illinois, Michigan, Minnesota, Missouri, Nevada, Ohio, Oklahoma, Pennsylvania, and
West Virginia). Trek has pointed to no jurisdiction that has rejected such a theory, nor
can the Court envision a reason for the Colorado Supreme Court to do so. Again, the
Colorado Supreme Court has not typically been doctrinaire about the way a plaintiff
must go about proving the case-in-chief. Thus, the Court predicts that the Colorado
Supreme Court would adopt Restatement § 3.
Trek seems to believe it is significant that the Oliveros did not even try to perform
any special testing on the fork. (See ECF No. 63 at 8 (“Because Plaintiffs elected to
forgo any analysis of the available physical evidence—including something as basic as
measuring the Fork—they are not entitled to an evidentiary inference of defect.”

22

(emphasis removed)).) This seems like a fact to be elicited on cross-examination. It is
not a fatal legal flaw in the Oliveros’ case. The basic problem against which Trek
struggles is the reality that a plaintiff may choose to go to trial on less-than-ideal
evidence, so long as the evidence is not so weak that no reasonable jury could find in
the plaintiff’s favor. That is the real question here, to which the Court turns next.
C.

Sufficiency of the Oliveros’ Evidence
Again, Restatement § 3 permits a plaintiff to present a circumstantial

manufacturing defect case, “without proof of a specific defect,” if the plaintiff can prove
that the harm-causing incident “(a) was of a kind that ordinarily occurs as a result of
product defect,” and “(b) was not, in the particular case, solely the result of causes other
than product defect existing at the time of sale or distribution.” Trek challenges both
elements, and so the Court will discuss both in turn.
1.

“Was of a Kind That Ordinarily Occurs as a Result of Product Defect”

The Oliveros have presented sufficient evidence of this element through at least
the following.
First, “Trek has admitted that, absent a manufacturing defect, absent prior
damage, and absent an overloading event, this fork should not fail under normal riding
conditions.” (ECF No. 49 at 22, ¶ 36.)
Second, Trek’s own literature regarding the fork at issue here states,
In an accident or impact that does not break the carbon fiber,
the carbon fiber could have internal or hidden damage but
appear normal. . . .
***
WARNING: A carbon fiber part that has damage can
break suddenly, causing serious injury or death.
Carbon fiber can conceal damage from an impact or

23

crash. . . .
(ECF No. 49-23.) Although these statements refer to accidental damage, the principle
that carbon fiber can conceal a flaw and then suddenly fail is certainly relevant here.
Third, Trek does not dispute the following characterization of Moechnig’s
deposition testimony:
[t]here are a variety of potential failures in the manufacturing
process for carbon fiber at Martec that are highly technical in
nature and involve a lot of hand labor, such as the carbon
fiber-to-resin ratio, a gap where there is no carbon fiber
leaving a thin spot in the layer, the operator not following the
production standards, using the incorrect size and angles of
the sheets of carbon fiber in the lay-up, problems with
bonding, “kitting”, curing with a heated press . . . .
(ECF No. 49 at 23, ¶ 47.)
This evidence, if presented to a jury, would be enough for the jury to find the first
element satisfied. To be sure, Trek can present contrary evidence, such as its assertion
that braking to a stop would likely place more pressure on the fork than the normal
riding conditions that, according to the Oliveros, led to its failure. But Trek’s evidence is
not so overwhelming that a reasonable jury would be forced to reject the Oliveros’ case.
2.

“Was Not, in the Particular Case, Solely the Result of Causes Other Than
Product Defect Existing at the Time of Sale or Distribution”

The Oliveros have presented sufficient evidence of this element through at least
the following. First, from the eyewitnesses’ perspective, Olivero’s bicycle simply
collapsed underneath him—they saw no foreign object. Second, post-accident
investigation located nothing that might qualify as the foreign object necessary for
Bretting’s theory to be correct.
Trek argues that the Oliveros have nonetheless failed to plausibly rule out
alternative causes. (ECF No. 63 at 13–14.) But the Oliveros need not definitively do
24

so—they only need evidence from which a reasonable jury could conclude it is more
likely than not that the accident did not result solely from something other than a
manufacturing defect. Cf. Weir, 811 F.2d at 1392 (applying Union Insurance and noting
that “[e]vidence offered by the defendant that is contrary to the evidence offered by the
plaintiff creates a question for the jury; it does not prevent the jury from relying upon the
plaintiff’s evidence and inferring a defect”). On the record presented here, the Oliveros
have sufficient evidence from which a reasonable jury could conclude that no foreign
object existed, while Trek has presented evidence from which a reasonable jury could
conclude that a foreign object did exist. In such circumstances, summary judgment is
inappropriate.
3.

Result

To the extent the evidence at trial reflects what the Court has seen in the
summary judgment record, the Oliveros would be entitled to a jury instruction consistent
with Restatement § 3. Thus, the jury would be permitted to decide whether the two
elements of Restatement § 3 have been satisfied, and if so, the jury would be
permitted—although not required—to infer that a manufacturing defect of unknown
nature caused the fork to fail. Trek’s summary judgment motion will therefore be
denied.
V. TREK’S OBJECTION TO KAPPIUS’S RESPONSE AFFIDAVIT
Responding to Trek’s argument that Union Insurance requires testing if the object
remains available for inspection, the Oliveros submitted a supplemental affidavit from
Kappius. There, Kappius attempted to explain why he had not performed any tests on
the forks:
Knowledge of the actual manufacturing specifications,
25

including the specific fiber, epoxy types, and layup schedule,
would be extremely important, if not essential, in any further
analysis to determine if [the fork] was manufactured
according to the manufacturing specifications and why the
design specification was apparently not adhered to.
None-the-less, any further analysis that would be necessary
to potentially uncover the common and well-known sources
of carbon fiber catastrophic failures, such as porosity or
voids in the carbon fiber, delamination of layers, or improper
layup of the carbon fiber layers would require the
development of a detailed and expensive protocol involving
destructive testing of the carbon fiber fork, which testing
should minimally include the following: dissection, optical
and scanning electron microscopy, Fourier transform
infrared spectroscopy, thermogravimetric analysis, dynamic
mechanical analysis, and mechanical testing, and, because
the Chinese manufacturer’s specifications are unavailable,
comparative analysis with an exemplar of another fork of the
same make and model number.
However, given the nature of carbon fiber failure, and the
fracture in this case, which can often obliterate the actual
defect involved, any such testing would not necessarily be
conclusive or determinative of the existence or nonexistence of such a manufacturing defect, with the likelihood
of revealing the source of the failure being substantially less
than 100%.
I was never authorized or requested to perform such further
testing and that is the reason why I cannot further identify
the specific manufacturing defect(s) in this case.
(ECF No. 49-22 ¶¶ 11–14.)
Trek, in its summary judgment reply brief, objects to the admissibility of these
statements as an untimely expert disclosure. (ECF No. 63 at 10 n.7.) 6 Under the
circumstances, the Court agrees. Kappius’s additional information is the sort of
information that he should have disclosed in his original expert report, and his failure to
6

Trek’s objection in this manner is proper according to the undersigned’s Revised
Practice Standards. See WJM Revised Practice Standard III.B (requiring a separate motion to
obtain relief, except in certain circumstances such as “objections to summary judgment
evidence”).

26

do so deprived Trek of an opportunity to rebut these claims (e.g., to argue that these
tests are not as complicated as they sound, that a simpler test could yield useful results,
that testing would not necessarily be futile, etc.). The Court will therefore give Trek the
same choice it gave the Oliveros above: Trek must elect between exclusion or obtaining
a rebuttal to these new opinions. If Trek elects to obtain a rebuttal, the Court will set an
appropriate deadline.
VI. TREK’S MOTION IN LIMINE
The Court now turns to the final pending motion, namely, Trek’s Motion in Limine
seeking to exclude certain evidence related to Michael Olivero’s claim of ongoing
cognitive difficulties.
A.

Background
Olivero spent three days in the hospital following his bike accident and was

treated by, among others, Philip Yarnell, M.D., a neurologist. His diagnoses upon
discharge included: subarachnoid hematoma, facial lacerations, traumatic brain injury,
and intracranial hemorrhage. (ECF No. 66 at 3.) On July 9, 2015 (a little less than a
month after the accident), Olivero returned to Dr. Yarnell, who wrote the following in his
treatment note for that visit: “His personality has been normal, except for some
frustration intolerance, and cognition, he has had some short-term memory issues,
which his wife feels are improving, and some sequencing issues.” (ECF No. 66-5.)
Olivero filed this lawsuit on April 1, 2016. On May 23, 2016, Olivero returned to
Dr. Yarnell. Dr. Yarnell’s treatment note for that visit includes the following:
This is a one-year intensive follow-up . . . .
***
His wife says the only noticeable change cognitively and
27

personality wise may be a somewhat shortened frustration
tolerance. . . .
***
Michael is interested in getting a final evaluation as to the
extent of his injuries. We will obtain an MRI of the brain and
an EEG and also we will get formal neuropsychological
testing and be able to summarize the extent of his injuries.
(ECF No. 66-6 at 1–2.) Regarding the neuropsychological testing, Dr. Yarnell referred
Olivero to George Rossie, PhD. 7 (ECF No. 24 at 2.)
On June 2, 2016, U.S. Magistrate Judge Michael J. Watanabe entered the
Scheduling Order in this action. (ECF No. 16.) The Scheduling Order set November
18, 2016 as the deadline for expert witness disclosures. (Id. at 7.)
In written discovery responses dated September 27, 2016, Olivero described his
injuries, in relevant part, as follows: “Head injury symptoms remain that include
persistent tiredness, sequencing and short-term memory difficulties, lack of
concentration, fatigue and in particular, difficulty with multitasking challenges. Head
injuries appear permanent.” (ECF No. 47-1 at 2.) But Olivero answered “[n]o further
treatment is advised at this time” to Trek’s request that he “[i]dentify in detail each health
care provider who has advised that you may require future or additional treatment for
any injuries you attribute to the [accident].” (Id. at 3.)
On the expert disclosure deadline (November 18, 2016), the Oliveros disclosed
five non-retained treating doctors as experts under Rule 26(a)(2)(C), all of whom would
testify “consistent with [their] records” about the injuries they diagnosed and the
services they provided in response. (ECF No. 47-5 at 2–4.) Among these non-retained
7

The parties repeatedly spell Dr. Rossie’s name as “Rossi,” but his own report shows
that he spells his name “Rossie.” (See ECF No. 66-12.)

28

experts was Dr. Yarnell. (Id. at 3–4.) None of the summaries of the doctors’ expected
testimony included a statement about ongoing or permanent cognitive problems.
The Oliveros were deposed on December 21 and 22, 2016. They testified at
those depositions that Michael Olivero has consistently suffered a number of mental
and emotional symptoms since the accident, such as depression, frustration, feelings of
being overwhelmed, difficulty managing schedules, difficulty multitasking, forgetfulness,
and a short temper. (See generally ECF Nos. 47-2, 47-3, 66-7.)
This state of the evidence apparently left Trek unsure about whether and how the
Oliveros intended to prove some sort of permanent cognitive impairment. On the
rebuttal expert deadline (January 6, 2017), Trek disclosed Ernest Nitka, M.D., a
neurologist. (ECF No. 47-6.) Dr. Nitka opined, among other things, that “Mr. Olivero
would need to submit to high-quality neuropsychometric testing in an effort to validate
his complaints. Additionally[,] without this neuropsychometric testing, we don’t know
whether or not there are remedial actions that would help him in his daily life [to]
mitigate his complaints stemming from the accident.” (Id. at 5.)
The Oliveros claim that, “[c]onsistent with [Dr. Nitka’s] recommendations, on
January 23, 2017, an EEG and MRI were performed.” (ECF No. 66 at 4.) Two days
after those procedures, Dr. Rossie—the psychologist to whom Olivero had been
referred the previous May—began neuropsychological testing that lasted through March
14, 2017. (Id. at 4.)
On January 31, 2017, the Oliveros moved to amend the Scheduling Order “to
allow Plaintiffs additional time to supplement their [expert] Disclosures.” (ECF No. 24
at 1.) As grounds for such relief, the Oliveros explained as follows:

29

Dr. Philip Yarnell saw [Michael] in the hospital and
diagnosed him with cerebral contusions from this bike crash.
Dr. Philip Yarnell was disclosed as a Non-Retained FRCP
Rule 26(a)(2) Expert on November 16, 2016, but Dr. Yarnell
has continued to treat Plaintiff Michael Olivero and should be
able to supplement his opinions as more information is
provided. By way of example, Dr. Yarnell prescribed Plaintiff
Michael Olivero to get more care including an MRI, EEG
testing, and a neuropsychological evaluation from
Dr. George Rossi[e] on May 23, 2016. Documentation of
this prescription and report was provided to Defense
Counsel. However, the actual MRI and visit with Dr. Rossi[e]
did not occur until January of 2017. Plaintiff Michael Olivero
is getting much needed treatment for his brain injury, as this
type of injury is difficult to fully diagnose. Plaintiff seeks until
March 24, 2017 to file supplemental expert reports for
Dr. Yarnell and Dr. Rossi[e] about their opinions regarding
Plaintiff Michael Olivero[’s] injuries, bills, diagnosis, and
prognosis from the bike crash.
(Id. at 2.)
Trek opposed this motion. (ECF No. 26.) Trek emphasized that Michael Olivero
had been referred by Dr. Yarnell in May 2016 for an MRI, EEG, and neuropsychological
testing—many months before the November 2016 expert disclosure deadline. (Id.
¶¶ 17, 22–23, 29–30.) Trek also noted Olivero’s deposition testimony claiming that he
was still waiting for insurance approval of the MRI, and that he had made an
appointment with Dr. Rossie soon after Dr. Yarnell’s referral, but on the day of the
appointment, he simply did not feel like going and so he canceled it. (Id. ¶ 17.) Trek
accordingly argued that the Oliveros failed to meet the “excusable neglect” standard
necessary for modifying a scheduling order deadline that has already passed. (Id.
¶¶ 4–8, 33–38.)
While this motion was pending, Dr. Rossie issued a written report regarding the
outcome of the neuropsychological testing. (ECF No. 66-12.) Dr. Rossie diagnosed
some “deficits [that] are subtle but notable especially in the high-level tasks measured
30

by executive function tests.” (Id. at 2.) He also reported Angela Olivero’s opinion that
Michael “has problems with sequencing, memory for recent events and multitasking with
a ‘lower boiling point’. She does not think things have changed over the past year.”
(Id.) However, Dr. Rossie did not recommend “formal neuropsychological therapies.”
(Id.)
On April 5, 2017, Judge Watanabe denied the Oliveros’ motion to modify the
scheduling order. (ECF No. 44.) Judge Watanabe agreed with Trek that “Plaintiffs offer
no reason, compelling or otherwise, why Plaintiff Michael Olivero failed to seek and
obtain additional medical treatment, including the MRI and neuropsychological
evaluation from Dr. Rossie, before [the expert disclosure] deadline.” (Id. at 3.) The
Oliveros never filed a Rule 72(a) objection to this ruling.
On May 4, 2017, Michael Olivero visited Dr. Yarnell again for a “neurologic follow
up.” (ECF No. 66-15 act 1.) Dr. Yarnell’s treatment note for this visit shows that he
reviewed Dr. Rossie’s report, as well as reports of a recent EEG and MRI (apparently
those conducted in January 2017). (Id.) Dr. Yarnell diagnosed, among other things,
“some post-traumatic encephalopathy symptoms.” (Id. at 2.) He did not specifically
state what those symptoms were.
B.

The Instant Motion
On April 27, 2017, Trek filed the motion in limine now under consideration,

seeking to exclude “any evidence regarding Plaintiffs’ alleged future damages related to
Mr. Olivero’s brain injury.” (ECF No. 47 at 10.) Trek’s motion notes that the Oliveros
had, through their Rule 26 disclosures, disclosed six lay witnesses (described as
“friends, coworkers, and family”) who intended “to testify regarding their observations of

31

Mr. Olivero before and after the accident.” (Id. ¶¶ 4, 21.) 8 Trek argues that the medical
causation question (whether Olivero’s bike accident caused the cognitive symptoms of
which he now complains) and the permanence question (whether the symptoms can be
expected to last indefinitely) require expert testimony. Thus, Trek says, lay testimony
from the Oliveros and their witnesses about Michael Olivero’s changed behavior is not
enough. Trek further argues that the treating physicians may testify as experts only with
respect to matters reflected in their treatment records, and cannot offer a long-term
prognosis if not already reflected in those records. (Id. ¶¶ 4, 15–18, 21–23.) Cf. Davis
v. GEO Grp., 2012 WL 882405, at *2 (D. Colo. Mar. 15, 2012) (“when a [treating
physician] opines as to causation, prognosis, or future disability, the physician is going
beyond what he saw and did and why he did it and is giving an opinion formed because
there is a lawsuit,” and must therefore submit a formal expert report).
The Oliveros respond that the lay testimony they plan to offer is enough under
Colorado case law to permit a jury to infer causation and permanence. (ECF No. 66 at
7–10.) They also point to Tran v. Hilburn, 948 P.2d 52, 55 (Colo. App. 1997), which
contains the following passage:
Symptoms of mild closed-head injury include: (1) physical
symptoms such as nausea, headaches, dizziness, fatigue,
lethargy, and sensory loss; (2) cognitive deficits such as loss
of attention, concentration, perception, and memory not
otherwise explainable; and (3) behavioral changes such as
increased irritability, quickness to anger, disinhibition, and
mood swings not otherwise explainable.
Given this, they claim that Michael Olivero’s symptoms are “known sequelae” of the sort

8

The Final Pretrial Order, entered a few weeks after Trek filed its motion in limine, lists
eight friends, family members, and coworkers as may-call witnesses for the Oliveros “as to
damages.” (ECF No. 71 at 8–10.)

32

of brain injury he suffered during the bike crash. (ECF No. 66 at 2.) Moreover, they
claim, “[t]he fact of head trauma is unquestioned, no alternative explanations for the
continuing problems have been suggested, and they are consistent with sequelae of the
initial injury. . . . In such a case, expert testimony is not required and permanency and
continued future noneconomic damages may be inferred.” Id. at 9–10.
C.

Analysis
Concerning permanent injury and future damages, Colorado case law is

consistent with the observation this Court made above (Part IV.B.2), namely, it avoids
holding that expert testimony is always required for some set of theories or claims. But
it does not rule out the possibility that expert testimony may be required under the
circumstances of the case.
Trek relies on two Colorado Supreme Court cases where a jury verdict was
reversed and the case was remanded for new trial when the plaintiff was allowed to
seek damages for permanent injury and future pain solely on the plaintiff’s own
testimony. The first of these cases is Cookman v. Caldwell, 170 P. 952 (Colo. 1918),
where the plaintiff complained of a battery that injured her shoulder and back, leading to
a persisting problem of arm swelling and back pain when trying to lift objects or do
certain chores. Id. at 953. The Colorado Supreme Court held under the circumstances
that such testimony was not enough:
In the case at bar there was no evidence of a patent physical
fact, such as the loss of a limb or any other physical
impairment, that would by observation be apparent to the
jury, and show that the plaintiff had received a permanent
injury or would necessarily suffer pain for some period of
time, or would be affected in health and strength in the
future. The evidence did not show to a reasonable certainty
that the plaintiff would endure pain and suffering in the future
as a result of the assault and battery complained of. The
33

testimony of the plaintiff was all concerning a latent injury
which was not apparent, and would leave the jury to
conjecture whether or not it would affect her future health
and strength. The facts narrated by plaintiff were not such
that, as a matter of common knowledge, some future pain
and suffering would be inevitable.
Id. (emphasis added).
The second case cited by Trek is Barter Machinery & Supply Co. v. Muchow, 453
P.2d 804 (Colo. 1969). In this case, the plaintiff was knocked down by a watchdog but
his “injuries were slight, and the evidence was that he suffered a bruise on his right
buttock about four inches in diameter and two abrasions on his lower left thigh.” Id. at
804. “He testified that he had continuous lower back pain, but there was no medical
evidence connecting his complaints to the slight injury sustained when the dog knocked
him to the ground.” Id. “In fact, the medical testimony was that the back pains were
consistent with an arthritic condition, unrelated to the incident, and attributable to
plaintiff’s advanced age.” Id. The trial court therefore erred when it instructed the jury
on permanent injury and future pain. See id. at 805 (citing Cookman in support).
The following year, the Colorado Supreme Court decided CeBuzz, Inc. v.
Sniderman, 466 P.2d 457 (Colo. 1970), on which the Oliveros rely. The plaintiff in
CeBuzz sued a grocery store when she was bitten on the hand “by a tarantula spider or
similar spider-like insect” hidden in a bunch of bananas that she was waiting to
purchase. Id. at 458. She won at trial, including an award for permanent disability and
future pain and suffering, and the defendant appealed. Id. at 458, 461. The “main
thrust” of the defendant’s appeal from this portion of the damages award was “that
medical testimony is indispensable to the establishment of permanent disability, future
pain or suffering, or future medical expense.” Id. at 461. The defendant cited Barter

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Machinery for that proposition, but the Colorado Supreme Court distinguished it as a
case about “slight injuries” and potentially competing medical causes (being knocked
down vs. pre-existing arthritis). Id.
In the instant case, the medical testimony and the plaintiff's
testimony reveals continuous pain in the left arm which
started when plaintiff was bitten. The pain and weakness in
the left arm persisted for over three and a half years from the
time of injury to the date of trial and during the trial. The
evidence also revealed over 350 office calls to her doctor for
medication and treatment of her arm, and several
hospitalizations for tests, therapy and surgery in an effort to
alleviate this condition, which persisted unabated at the time
of trial.
This evidence on behalf of the plaintiff warrants
consideration by the jury on the question of damages arising
from future pain, medical expenses, and permanent
disability.
Id. The court therefore affirmed the verdict.
The Colorado Court of Appeals has since repeatedly relied on CeBuzz for the
notion that a jury may infer permanent injury from long-standing symptoms that started
with or surfaced after the original injury, and therefore expert medical testimony is not
required when such lay evidence exists. See Lawson v. Safeway, Inc., 878 P.2d 127,
130 (Colo. App. 1994); Morgan v. Bd. of Water Works of Pueblo, 837 P.2d 300, 304
(Colo. App. 1992); Sours v. Goodrich, 674 P.2d 995, 996 (Colo. App. 1983). In such
circumstances, therefore, an instruction that a jury may infer permanent injury is
appropriate, and it is left to the jury to decide whether to draw that inference. See
Lawson, 878 P.2d at 130.
The Court agrees with the Oliveros that their evidence may be presented in this
framework, without expert testimony. CeBuzz establishes that medical causation in
Colorado is not quite the inquiry that Trek seems to think it is. A plaintiff is not required
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to prove (via expert testimony or otherwise) that a certain injury is likely to lead to
certain symptoms if: (1) the relationship between the injury and the symptoms is fairly
direct; 9 and (2) those symptoms did not pre-date the injury. In addition, CeBuzz
establishes that the factual question of permanence may be satisfied by evidence of
uninterrupted symptoms for two to three years (or more).
The Oliveros satisfy all of these requirements. First, Michael Olivero indisputably
suffered a traumatic brain injury as a result of the accident, and the connection between
a serious head injury and later cognitive difficulties is sufficiently direct. Second, he is
prepared to present evidence that his current symptoms did not predate the accident.
Third, he is prepared to present evidence that those symptoms have persisted.
Accordingly, the Oliveros may pursue this theory before a jury and Trek’s Motion in
Limine will be denied. 10
All that said, a few issues remain in light of statements the Oliveros make in their
response brief—statements which amount to an announcement that they intend to
evade any restriction on their ability to produce more recently-generated evidence about
Michael Olivero’s condition. To begin, the Court will not permit the Oliveros to introduce
evidence of the EEG, MRI, or neuropsychological testing performed in 2017. To permit

9

This requirement is not discussed explicitly in the Colorado cases, but is certainly
implicit. For example, the woman bitten on her left hand by the spider in CeBuzz experienced
pain and weakness her left arm. But if she had instead complained of intestinal problems, or a
sudden onset of arthritis in her ankles, it is much more likely she would have needed to present
expert evidence on medical causation. This is essentially no different from the general rule that
“lay testimony about medical causation [is permitted] in cases where causation is fairly obvious.”
Llewellyn v. Ocwen Loan Servicing, LLC, 2015 WL 2127892, at *3 (D. Colo. May 5, 2015).
10

To be clear, the Court’s ruling does not rely on the fact that Tran, supra, described the
lingering effects of closed-head injuries. (See Part VI.B, above.) Simply because symptoms of
a medical condition are described in case law does not mean that laypersons understand the
condition or the symptoms.

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that evidence to come in through any method (including as Rule 703 evidence with
Dr. Yarnell on the stand, through cross-examination of Dr. Nitka, or otherwise) would
undermine Judge Watanabe’s order, to which the Oliveros never objected. This
includes evidence of expenses incurred. Further, Dr. Yarnell will not be permitted to
testify about Michael Olivero’s May 2017 visit. Dr. Yarnell’s treatment notes about that
visit are too vague for Trek to be able to prepare adequately for such testimony.
Finally, with regard to the Oliveros’ apparent trial strategy of putting on numerous
witnesses to discuss Michael Olivero’s personality before and after the accident, the
Court will vigorously police the provisions against wasting time and needless cumulative
evidence found in Rules 403 and 611(a). In particular, the Court will require an
extremely persuasive reason to admit all eight of the witnesses currently designated in
the Final Pretrial Order to testify on this topic. The Oliveros are strongly encouraged to
present only those witnesses who can provide the most compelling and salient
testimony.
VII. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Trek’s Motion for Summary Judgment (ECF No. 33) is DENIED;

2.

Trek’s Motion in Limine (ECF No. 47) is DENIED, but certain of the Oliveros’
evidence is nonetheless excluded, as stated in Part VI, above;

3.

The Oliveros’ Motion to Strike Rebuttal Expert (ECF No. 68) is DENIED except
as to the third paragraph of Bretting’s “Opinions” section. As to that paragraph,
the Oliveros shall file a notice with the court no later than November 27, 2017
stating whether they choose to have the Court exclude Bretting’s opinions, or

37

whether they instead choose to disclose a rebuttal report as to those opinions;
4.

The Oliveros’ Motion to Strike Reply Evidence (ECF No. 78) is DENIED;

5.

Trek shall file a notice with the court no later than November 27, 2017 stating
whether it chooses to have the Court exclude the opinions contained in
paragraphs 11–14 of Kappius’s supplemental affidavit (ECF No. 49-22), or
whether it instead chooses to disclose a rebuttal report as to those opinions;

6.

This matter REMAINS SET for a Final Trial Preparation Conference on January
26, 2018, at 2:00 p.m., and a five-day jury trial beginning on February 12, 2018,
all in Courtroom A801 of the Alfred J. Arraj United States Courthouse.
Dated this 16th day of November, 2017.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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