Olivero et al v. Trek Bicycle Corporation
Filing
96
ORDER denying 90 Plaintiffs Rule 702 Motion to Exclude the Opinions of Trek's Expert, Gerald P. Bretting, by Judge William J. Martinez on 06/25/2018. (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 PLAINTIFF’S RULE 702 MOTION
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”), 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 is the Oliveros’ Rule 702 Motion to Exclude the
Opinions of Trek’s Expert, Gerald P. Bretting (“Rule 702 Motion”). (ECF No. 90.)
Bretting opines that Olivero’s accident was not caused by a manufacturing defect, but
by a foreign object lodging in Olivero’s spokes which suddenly stopped his front wheel
from rotating. (See ECF No. 90-1 at 4–6.) Bretting further opines that this sudden
stoppage caused Olivero and the rear portion of his bike to pitch forward, putting
1
Any reference in this order solely to “Olivero” refers to Michael Olivero.
enormous pressure on the fork and causing it to snap. (Id.) But, he says, Olivero would
have pitched forward off his bike whether or not the fork failed (id.), thus absolving Trek
from liability—assuming a jury accepts his opinion.
Since reading Bretting’s expert report, the Oliveros have been nearly histrionic in
their attempts to discredit and exclude it. (See, e.g., ECF No. 77 at 8 (describing
Bretting’s foreign object theory as “about as expected and fanciful as Mr. Olivero being
somehow stricken by unseen lightning descending from the heavens!”).) The Rule 702
Motion is their latest effort in this regard, and it provides an interesting preview of how
they might cross-examine Bretting at trial. But, for the reasons explained below, they
have not demonstrated that Bretting’s expected testimony is inadmissible under Rule
702. Their motion will therefore be denied.
I. LEGAL STANDARD
A district court must act as a “gatekeeper” in admitting or excluding expert
testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission
of expert testimony is governed by Rule 702, which provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving
the foundational requirements of Rule 702 by a preponderance of the evidence. United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).
2
An expert’s proposed testimony also must be shown to be relevant and otherwise
admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th
Cir. 2016). To be relevant, expert testimony must “logically advanc[e] a material aspect
of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011)
(alterations in original).
While an expert witness’s testimony must assist the jury to be deemed
admissible, Fed. R. Evid. 702(a), it may not usurp the jury’s fact-finding function. See
Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful
to the jury and what intrudes on the jury’s role as the finder of fact is not always clear,
but “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed.
R. Evid. 704.
The trial court’s focus under Rule 702 is on the methodology employed by an
expert, not on his or her conclusions. Bitler, 400 F.3d at 1233. Ultimately, “the rejection
of expert testimony is the exception rather than the rule.” Fed. R. Evid. 702 advisory
committee’s note. “[T]he trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system. . . . Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Id. (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)).
II. ANALYSIS
Through motions related to summary judgment practice, the Court has already
become familiar with the parties’ expert reports. See Olivero v. Trek Bicycle Corp., 291
3
F. Supp. 3d 1209, 1212–16, 1224–25 (D. Colo. 2017) (ECF No. 84). In particular, the
Court has already thoroughly summarized Bretting’s opinion. Id. at 1213–14. The
Court need not repeat that summary here, but simply emphasizes the basic contours of
Bretting’s report. Bretting, as a rebuttal expert, largely attacks the conclusions of the
Oliveros’ expert, Braden Kappius, whose report rather generically states that there is no
evidence of a foreign object or impact to the fork legs, and that “all signs point toward
spontaneous and catastrophic failure of the fork that can only be attributed to underlying
defects.” Id. at 1213. Bretting counters with evidence he believes is consistent with a
foreign object becoming lodged in Olivero’s spokes, causing the pitch-over, fork failure,
and injury.
The Court previously held that paragraph 3 of Bretting’s opinions—a millisecondby-millisecond reconstruction of how he believes the accident played out (see ECF No.
90-1 at 4–5)—was excludable because it was in substance an affirmative opinion that
should have been disclosed in an affirmative expert report, rather than a rebuttal report.
Id. at 1216. The Court gave the Oliveros an election “between exclusion [of paragraph
3] or obtaining a rebuttal to Bretting’s paragraph 3.” Id. The Oliveros elected exclusion.
(See ECF No. 85.)
The Oliveros now argue that all of Bretting’s remaining opinions run afoul of Rule
702, for various reasons. The Court will address those reasons in turn.
A.
Failure to Perform Scientific Testing
The Oliveros’ first argument is a rather elaborate attack on Bretting’s choice to
inspect the failed fork only visually, and not also through scientific testing:
Mr. Bretting has never performed an FEA (Finite Element
Analysis) on any carbon fiber fork or any carbon fiber fork
4
failure. Similarly, he performed no chemical analysis, no
x-rays, no testing other than a visual inspection, and no
microscopic examination of the fracture. In terms of both the
fracture analysis and the accident reconstruction,
microscopic examination of the fracture would show whether
the front fork legs were in compression or tension at the time
of the fracture. Carbon composite will fail in compression
before tension. Under normal riding conditions, the front fork
is in compression. . . . In fact, this is critical to determine
whether the front fork fractured forwards or backwards
because a forward fracture would indicate a normal weight
distribution from the rider under normal riding conditions and
a backwards fracture might be consistent with a pitch-over
where the forces translate rearward during the somersault.
Plaintiffs herein make a proffer that [their expert]
Mr. Kappius, an expert in carbon fiber failure analysis, would
testify that the fore surface of the front fork was in
compression and the aft surface was in tension such that the
fracture took place in a forward motion consistent with
normal riding conditions and weight distribution.
(ECF No. 90 at 8–9.) Thus, the Oliveros say, Bretting “lacks . . . a reliable methodology
or application of any methodology to [support his] opinions.” (Id. at 10.) This argument
fails for at least two reasons.
First, the argument relies on this new proffer from Kappius regarding
compression and tension. Considering that discovery has long since closed and trial
begins on July 30, 2018, this amounts to an egregiously tardy supplemental expert
disclosure. The Oliveros have not attempted to justify this disclosure under Federal
Rule of Civil Procedure 37(c)(1)’s “substantially justified or . . . harmless” standard.
Accordingly, Kappius’s proffer is inadmissible.
Second, even if the Court found Kappius’s proffer admissible, it would still not
establish that Bretting’s expert methodology was fatally unreliable because Kappius is
now speaking out of both sides of his mouth. In summary judgment proceedings,
Kappius affirmatively represented that he had performed no scientific testing for latent
5
defects because the Oliveros did not ask him to do so, and it would not have been
helpful anyway:
[G]iven 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%.
Olivero, 291 F. Supp. 3d at 1225 (quoting ECF No. 49-22 ¶ 13). Now Kappius believes
that scientific testing is required, at least as to Bretting’s theory. If Kappius himself
cannot decide the value of scientific testing, the Court certainly cannot hold that Bretting
lacks a reliable methodology because he did not employ scientific testing.
B.
“Reasoning to the Best Inference”
The Oliveros next invoke the Tenth Circuit’s Bitler decision, arguing that
Bretting’s report does not live up to Bitler’s requirements. (ECF No. 90 at 10–12.) Bitler
involved a basement explosion traced to a propane safety valve that, in the plaintiffs’
experts’ opinion, malfunctioned due to accumulation of copper sulfide. 400 F.3d at
1231. The experts reached this conclusion through a process of elimination that the
Tenth Circuit dubbed “reasoning to the best inference.” Id. at 1237. In reviewing the
defendants’ challenge to the district court’s decision to admit these experts’ opinions,
the Tenth Circuit announced a somewhat arid gloss on Rule 702 as applied to opinions
based on process of elimination. The Tenth Circuit’s (apparent) requirements for such
opinions are as follows:
•
“Experts must provide objective reasons for eliminating alternative causes
. . . .”
6
•
“[T]he inference to the best explanation must first be in the range of
possible causes; there must be some independent evidence that the
cause identified is of the type that could have been the cause.”
•
“[A]n inference to the best explanation for the cause of an accident must
eliminate other possible sources as highly improbable, and must
demonstrate that the cause identified is highly probable.”
•
“[B]ut this is not to say that an expert, in order to testify on causation, must
be able to categorically exclude each and every possible alternative cause
. . . .”
Id. at 1237–38 & n.6 (internal quotation marks omitted; certain alterations incorporated).
Applying the foregoing, one must keep in mind that (1) Bretting was a rebuttal
expert, and (2) the opinion he was retained to rebut (i.e., Kappius’s opinion) can fairly
be summarized as follows: “I didn’t see any evidence of a foreign object, prior damage,
or abnormal forces, so it must have been a manufacturing defect.” Cf. Olivero, 291 F.
Supp. 3d at 1213 (extensively quoting Kappius’s report). In other words, Bretting’s set
out to show why Kappius’s process of elimination was faulty. In doing so, he opined
that one theory Kappius ruled out—a foreign object—was the likely culprit. Thus, it is
not obvious to the Court that Bitler applies. To the contrary, Bitler seems like the sort of
case that Trek would invoke against Kappius’s opinions, as supported by Bretting’s
expert report which supposedly shows that Kappius failed to eliminate other possible
sources with sufficient certainty. 2
2
To be clear, the Court is not inviting such a motion. The Court has now read Kappius’s
and Bretting’s respective reports multiple times and finds that both present plausible theories,
with competing strengths and weaknesses. It must be left to a jury to decide which theory is
7
Regardless, Bretting’s rebuttal opinions satisfy the Bitler standards. Concerning
the need for objective evidence eliminating alternative causes, Bretting primarily points
to (1) the amount of pressure needed to break a carbon fiber fork, which supposedly
could not have been present under the circumstances; and (2) the lack of damage to
certain components that should have struck the ground first if the fork had failed
spontaneously. (ECF No. 90-1 at 5, ¶¶ 7–10.) Regarding a need for evidence that a
foreign object can cause this sort of pitch-over accident, the mechanics are obvious—no
additional scientific confirmation is needed.
Bitler’s assertion that an expert “must eliminate other possible sources as highly
improbable, and must demonstrate that the cause identified is highly probable,” 400
F.3d at 1238, gives the Court more pause, because the Court is frankly uncertain what
the Tenth Circuit intends by this requirement. Must the expert convince the Court of
these high probabilities and improbabilities, or must the expert present only a reliably
supported opinion as to these matters, leaving it to the jury to decide whether to credit
that opinion? The Court concludes that the latter possibility is the better interpretation.
The former possibility would essentially dictate that, in a process-of-elimination case,
only one side gets to put on its expert—the side that convinces the Court of the relevant
probabilities and improbabilities. The Court doubts that the Tenth Circuit intended as
much. The Court therefore views this portion of Bitler as requiring only that the expert
present a reliably supported opinion showing the improbability of other potential causes
and the probability of the identified cause.
For the reasons already stated, Bretting’s report meets this standard. Bretting
more persuasive.
8
has identified objective reasons for doubting that the fork failed spontaneously.
Furthermore, Bretting’s examination revealed what he believed to be an impact crack
from the supposed foreign object. A jury may or may not agree with Bretting’s opinions,
but they are not so unreliable as to be unhelpful to the jury and therefore inadmissible.
C.
Lack of Verified Testing Methods
The Oliveros next argue that Bretting’s opinion lacks necessary support through
research regarding the difference between spontaneous failure and pitch-over events:
Unlike motor vehicle accident reconstruction, there is a
paucity of generally accepted literature, testing, or other
foundations for bicycle accident reconstruction. Most
importantly, there is no literature, testing, or other scientific
foundation for differentiating an accident caused by a
catastrophic failure of a front bicycle fork from an accident
caused by some foreign object/pitch[-]over event.
Mr. Bretting certainly refers to none. . . . Therefore, he can
point to no accidents, testing or literature that describes and
differentiates an accident caused by a failed front fork from
some distinctive features seen only in foreign object/pitchover reconstruction. Finding that some damage or finding is
“consistent with” his theory hardly rules out an alternative
explanation. Without comparative data to distinguish the two
scenarios and identify unique objective factors or damage
that differentiates the two scenarios, there is no objective
basis to challenge either his methodology or the conclusions
reached.
(ECF No. 90 at 13.)
To the extent the reference to “an alternative explanation” refers back to the
Oliveros’ Bitler argument, the Oliveros appear to be arguing for the sort of categorical
exclusion that Bitler says is not required. See 400 F.3d at 1238 n.6. Beyond that, the
Oliveros argument insists on far more than Rule 702 actually demands. Based on his
knowledge of the ways in which a bicycle can fail, structurally speaking, Bretting has
presented a plausible—although assailable—theory of why the evidence is more
9
consistent with a pitch-over caused by a foreign object as compared to spontaneous
failure. There is no Rule 702 requirement that he back up his opinion with pre-existing
research. To be sure, the existence of such research, testing standards, and so forth is
a factor the Court may consider in judging admissibility of expert testimony. See
Daubert, 509 U.S. at 593–94 (listing various factors a Court may consider in the
“flexible” Rule 702 inquiry). But their absence in this case, without more, does not
convince the Court that Bretting’s analysis is unreliable.
D.
Lack of Qualifications
Throughout the Oliveros’ Rule 702 Motion, they scatter references to Bretting’s
lack of qualifications. (See, e.g., ECF No. 90 at 5, 6, 10.) They do not argue, however,
that Bretting lacks the qualifications to be an expert in the field he claims as his
expertise, i.e., bicycle accident reconstruction. Rather, they seem to be arguing that he
is not qualified to testify that spontaneous failure was not the cause of the accident
because he has not performed the proper testing, there is no research to support his
theory, etc. In short, the Oliveros’ attack on Bretting’s qualifications just another way of
asserting all of the Oliveros’ previously discussed arguments. It is not a true challenge
to Bretting’s qualifications, and as such is rejected.
E.
The Oliveros’ “Commonsense Hypothetical Reconstruction”
At the end of their Rule 702 Motion, the Oliveros offer
a commonsense hypothetical reconstruction . . . which is
consistent with the physical evidence and largely debunks
Mr. Bretting’s “conclusive” evidence and opinions to the
contrary: (1) the right front fork blade fractured due to a
manufacturing defect; (2) due to the fracture, the front wheel
would tip slightly to the right due to the uneven support
10
(Opinion 9)[3]; (3) the left fork blade would then almost
instantaneously fracture from overloading as the sole
support; (4) the jagged proximal left fork blade would
collapse into and impale the rotating front wheel[;] (5) the
impact of the left fork blade would cause the spoke to break,
the valve stem to bend, and the aft surface of the left fork
blade would show some impact damage from the rotating
wheel (Opinions 1a; 2); (6) as the fork blade became
entangled in the front wheel, it would trip [sic] the wheel
rearward into the right lower surface of the down tube
causing scuff marks and damage to the cable (Opinions 2
and 9 . . .); (7) the entangled wheel impacting the right
underside of the down tube would trip [sic] the frame of the
vehicle to the right side without causing damage to the more
distal chain rings, crank arms, and chain (Opinions 9 and
10); (8) the overloading of one fork blade and the other
accident dynamics would cause some markings to the
specially designed crown’s “crumple zone”—where, per the
performance specifications, the failure mode is supposed to
take place and not in the carbon fiber components of the fork
(Opinion 8); (9) the irregular fracture with splintering of the
composite is also “consistent with” a defective fork (Opinion
6); and (10) as a result of the collapsing bicycle into the
wheel, and the resulting rightsided tip-over, Mr. Olivero was
hurled face-forward into the pavement causing his rightsided facial and head injuries with minimal damage to his
helmet.
(ECF No. 90 at 14–15.)
If the Oliveros wish to use this scenario as a basis for cross-examining Bretting,
the Court generally sees no problem—although the Court will not prejudge any
objection Trek might make to a particular cross-examination question. Nonetheless, the
Court will not permit the Oliveros to present this scenario through one of their own
witnesses or through attorney argument. It is not a mere “commonsense hypothetical
reconstruction” (a euphemism for “something we think requires no expert disclosures”).
Although a few discrete items may be common sense (e.g., items 2–4, assuming item 1
3
Referring to paragraph 9 of the “Opinions” section of Bretting's report (ECF No. 90-1 at
4–6).
11
is true), most of this theory relies on matters outside the normal experience of a jury.
Thus, it is something the Oliveros were required to disclose in discovery. They did not
do so and, again, make no argument that this late disclosure is substantially justified or
harmless under Rule 37(c)(1).
III. CONCLUSION
For the reasons set forth above, the Oliveros’ Rule 702 Motion (ECF No. 90) is
DENIED.
Dated this 25th day of June, 2018.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?