Wiedeman v. Canal Insurance Company et al

Filing 240

OPINION AND ORDER denying in part as moot and denying in part Plaintiff Gregory Wiedeman's Motion to Exclude Daren Marceau Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. Plaintiff's Motion is denied as moot with respect to Marceau 's opinions regarding Plaintiff's impaired vision and that Plaintiff could have avoided the Collision. Plaintiff's Motion is denied with respect to Marceau's opinion that Plaintiff improperly activated and locked his rear brake alone, resulting in a loss of control prior to impact. Signed by Judge William S. Duffey, Jr on 7/7/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GREGORY WIEDEMAN,
Plaintiff,
v.

1:15-cv-4182-WSD

CANAL INSURANCE COMPANY,
H&F TRANSFER, INC., AUTOOWNERS INSURANCE
COMPANY, and WALTER
PATRICK DORN, IV,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Gregory Wiedeman’s
(“Plaintiff”) Motion to Exclude Daren Marceau Pursuant to Daubert v. Merrell
Dow Pharmaceuticals, Inc. [182] (“Motion”).
I.

BACKGROUND
This action arises from an August 8, 2014, collision (the “Collision”)

between Plaintiff and Defendant Walter Patrick Dorn, IV, an employee of
Defendant H&F Transfer, Inc. (“H&F”). The parties dispute, among other things,
which party had the right-of-way and whether Plaintiff had lost control of his
motorcycle before being struck by H&F’s truck.

H&F intends to call Daren Marceau to testify regarding the mechanics of the
crash, including the appropriateness of Plaintiff’s actions prior to the Collision.
Plaintiff challenges the following of Marceau’s opinions:
 Plaintiff could have avoided the Collision if Plaintiff had noticed and reacted
to the truck’s movement earlier, ([112] at 14-15);
 Plaintiff improperly activated and locked his rear brake alone, resulting in a
loss of control prior to impact, (id. at 12); and
 Plaintiff’s vision was impaired by his tinted helmet visor, the raindrops
hitting his visor, and the glare created by headlights reflecting off the rain,
(id. at 15).
H&F now states that Marceau will not be offered to testify as to Plaintiff’s
impaired vision or that Plaintiff could have avoided the Collision. Accordingly,
Plaintiff’s Motion is denied as moot with respect to these two opinions. H&F still
intends to offer Marceau to testify that Plaintiff improperly activated and locked
his rear brake alone, resulting in a loss of control prior to impact.
Plaintiff argues that Marceau’s testimony is “unsupported by any
calculation, precise measurement, or collected data[,]” and that it is contradicted by
relevant scientific literature. (Mot. at 4). To support his argument, Plaintiff notes
that, when deposed, Marceau admitted he did not perform any testing or
calculations to support his conclusions, and he admitted he did not consult any
specific authority to form his opinions. (Id. at 3 (citing Marceau Dep. [182.2])).

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Plaintiff further argues that Marceau’s ignores obvious alternative explanations,
and that his testimony would not be helpful to the jury.
H&F notes that Marceau has more than two decades of experience in civil
and traffic engineering and accident reconstruction. (See [112]; [195.1] (“Marceau
Decl.”). He obtained a Bachelor of Science in Civil Engineering from North
Carolina State University in 1994 and a Master of Science in Civil Engineering
from North Carolina State University in 1995. (Marceau Decl. ¶ 2). He is a
Registered Professional Engineer in four states; North Carolina, Virginia, South
Carolina, and Georgia. (Id.) He is a Certified Traffic Signal Technician and
Signal Inspector and wrote, among other publications, a book titled Accident
Reconstruction at Traffic Signal Intersections. (Id.). Marceau instructs various
professionals on topics including traffic accident investigation, reconstruction
involving traffic control devices, and human factors within the roadway, driving,
and pedestrian environments. (Id.). He is a court-qualified expert in motorcycle
operations, and he has operated motorcycles for many years. (Id.). He also has
personal experience, during training and non-training operations, with motorcycle
skidding on wet and dry paved and non-paved surfaces, and has participated in
motorcycle crash testing. (Id.).

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In his Declaration, Marceau explains that, based upon his education,
training, knowledge, and expertise as a civil and forensic engineer, accident
investigator, and accident reconstructionist, he is familiar with the principles and
methodology accepted in the profession and he has used those principles and
methodologies in preparing his opinions this case. (Marceau Decl. ¶ 3). Marceau
bases his opinion that Plaintiff improperly activated and locked his rear brake
alone, resulting in a loss of control prior to impact on the following: (1) tire marks
showing skidding on the rear tire, not the front tire (2) the lack of damage to the
H&F truck’s grill; and (3) the testimony of witness LuAnn Downes that she heard
skidding. Based on this evidence, Marceau explains the methodology he used to
support his opinion that a locking rear tire alone will cause a motorcycle to “go
down.” (See [195] at 13-18). His methodology “is based on a combination of
physical evidence and physics[,]” including Newton’s first law of motion.
(Marceau Decl. ¶ 4).
II.

DISCUSSION
Under the Federal Rules of Evidence, expert testimony is admissible if:

(1) the expert is qualified to testify regarding the subject matter of her testimony;
(2) the methodology that the expert used to reach his or her conclusions is
sufficiently reliable; and (3) the expert’s testimony will assist the trier of fact in

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understanding the evidence or in determining a fact at issue. United States
v. Scott, 403 F. App’x 392, 397 (11th Cir. 2010) (citing United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004)) (en banc); Fed. R. Evid. 702.
With respect to the first requirement, Plaintiff does not contest, and the
Court finds, that Marceau is qualified to testify regarding the effects of using front
and rear brakes in a motorcycle.
Turning to the second element, a district court must make a preliminary
determination as to whether the expert’s methodology is reliable. Scott, 403 F.
App’x at 397. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 (1993),
the Supreme Court provided a non-exclusive list of factors for the district court to
consider:
(1) whether the expert’s theory can be and has been tested;
(2) whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error of the particular
scientific technique; and (4) whether the technique is generally
accepted in the scientific community.
Frazier, 387 F.3d at 1262. These factors are only general guidelines, and the trial
judge has “considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 152 (1999).

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Plaintiff claims Marceau’s methodology is not reliable because he did not
perform any calculations. With respect to the skid marks on the rear tire of
Plaintiff’s motorcycle, Marceau combines photographic evidence with the
testimony of witness LuAnn Downes that she heard skidding to opine that the skid
marks on the rear tire were created during the Collision. Marceau opines that,
based on photographs of the tire, ([195.1] at 11-12), Plaintiff “applied his rear
brakes as is evident by the skid marks on the tire. This shows that [Plaintiff]
locked up his rear brake which is why he began to fall over as explained above.”
(Marceau Decl. ¶ 12). Plaintiff relies on Motorcycle Accident Reconstruction,
1997, Albert T. Baxter, IPTM, p. 90 to support this conclusion. Plaintiff does not
offer any evidence or argument to show the types of measurements Marceau could
have made with respect to the skid marks on the tire, and he does not contend that
Marceau’s reliance on Motorcycle Accident Reconsturction is misplaced. See Fed.
R. Evid. 702, Adv. Comm. Note (2000) (“Some types of expert testimony will not
rely on anything like a scientific method, and so will have to be evaluated by
reference to other standard principles attendant to the particular area of
expertise.”). Underscoring that calculations are not necessary or appropriate with
respect to evaluating skid marks, Plaintiff’s own expert, Sean Alexander, opined
that a “skidding tire will have a skid patch left from the demolition of the rubber

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compound on the road. Since the road surface . . . acts as an abrasive, the tires are
essentially sanded down and a flat spot may exist.” (Alexander Dep. 103:8-13).
Regarding the lack of damage to the truck’s grill, Marceau notes that, based
on a tape measurement, (see [195.1] at 14), the middle of the top portion of the
truck bumper is approximately 2.5’ high. Based on publicly-available
information, (see [195.1] at 16), the saddle on Plaintiff’s motorcycle is
approximately 2.5’ high. He opines that, based on these measurements, if the
motorcycle was upright during impact, it and Plaintiff’s body would have been
high enough to also cause damage to the grill. Because the photograph of the front
of the truck shows that all the damage is on the bumper and there is no damage to
the grill, he opines that this result “can only happen if the motorcycle was already
tipping over at the time of impact.” (Marceau Decl. ¶ 13). Plaintiff appears to
ignore Marceau’s measurements with respect to the truck’s grill, focusing instead
on Marceau’s alleged lack of measurements relating to his testimony that
Alexander’s conclusion is “physically impossible.” (See [208] at 7-8). This
testimony is not the subject of Plaintiff’s Motion, and does not support Plaintiff’s
argument that Marceau’s methodology with respect to Plaintiff’s use of the rear
brake is unreliable. The Court rejects Plaintiff’s argument that Marceau should
have conducted more measurements or calculations in forming his conclusion.

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Plaintiff next argues that Marceau’s methodology is not reliable because he
failed to consider obvious alternative explanations. The advisory committee’s
notes for Rule 702 provide an additional list of factors or tests for a court to
consider, including “[w]hether the expert has adequately accounted for obvious
alternative explanations.” “Like the four Daubert factors, these [additional] factors
do not comprise a definitive checklist, nor is any single factor dispositive of
reliability; instead, the tests articulated in the advisory committee’s notes merely
illustrate the issues a court may consider in evaluating an expert’s testimony.
Stoner v. Fye, No. 5:15-cv-102 (CAR), 2017 WL 2434461, at *4 (M.D. Ga. June 5,
2017). Plaintiff points to Alexander’s alternate explanation that Plaintiff applied
both brakes and locked the front brake, causing “[t]he front steering assembly [to]
instantaneously turn.” ([182] at 12 (quoting Alexander Dep. 104:6-15)).
Alexander, however, further opined that had both brakes been applied, the
motorcycle “would fall down very shortly thereafter.” (Alexander Dep. 105:24106:2). Marceau, in fact, considered and rejected this explanation, opining that,
“[h]ad [Plaintiff] applied both brakes hard, and not locked the rear brake, the bike
would not have likely gone into a yaw and tipped over . . . [and] his stopping
distance would have been shorter than applying a rear brake only.” (Marceau

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Decl. ¶ 16). The Court finds Marceau did not fail to consider obvious alternate
explanations.
Turning to the final Rule 702 factor, the Court finds Marceau’s testimony
will assist a jury. The jury is unlikely to know about the differences between using
a front or rear brake in a motorcycle, the skid marks that result from the use of
either brake, and the effects of using each brake on the stability of a motorcycle.
These issues are fundamental to the question whether Plaintiff lost control of his
motorcycle prior to being struck by H&F’s truck. Because Marceau is qualified to
opine regarding the use of brakes in a motorcycle, his methodology is sufficiently
reliable, and his testimony will assist a jury, Marceau’s testimony is admissible.
Plaintiff’s Motion is denied.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Gregory Wiedeman’s Motion to

Exclude Daren Marceau Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc.
[182] is DENIED IN PART AS MOOT and DENIED IN PART. Plaintiff’s
Motion is DENIED AS MOOT with respect to Marceau’s opinions regarding
Plaintiff’s impaired vision and that Plaintiff could have avoided the Collision.
Plaintiff’s Motion is DENIED with respect to Marceau’s opinion that Plaintiff

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improperly activated and locked his rear brake alone, resulting in a loss of control
prior to impact.

SO ORDERED this 7th day of July, 2017.

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