Sherwood v. BNSF Railway Company et al

Filing 215

MEMORANDUM DECISION AND ORDER Plaintiffs' Renewed Motion to Limit the Testimony of Timothy Arnold (Dkt. 162 ) is GRANTED in part and DENIED in part. Plaintiffs' Renewed Motion to Limit the Testimony of Cloie Johnson (Dkt. 163 ) is GRANTED in part and DENIED in part. Plaintiffs' Renewed Motion to Limit the Testimony of Dr. Ronald Klein (Dkt. 164 ) is GRANTED. Plaintiffs' Motion to Exclude the Timothy Arnold Video Recreations (Dkt. 167 ) is GRANTED, but may be shown to the jury as a demonstrative exhibit. Defendants' Renewed Motion to Exclude Medical Testimony from Danielle Justin and Michelle Farella (Dkt. 173 ) is DEEMED MOOT. Defendants' Renewed Motion to Exclude Testimony of Charles Greear (Dkt. 174 ) i s DENIED. Defendants' Renewed Motion to Limit Testimony from James Sobek (Dkt. 175 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD and
PAMELA LOUISE SHERWOOD,
husband and wife,

Case No. 2:16-cv-00008-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
BNSF RAILWAY COMPANY, a
Delaware corporation d/b/a The
Burlington Northern and Santa Fe
Railway Company, and JOHN DOES
I through X,
Defendants.

INTRODUCTION
On July 14, 2014, Plaintiff Robert Sherwood cycled over a railroad crossing near
Sandpoint, Idaho. He alleges that his front tire lodged in a narrow gap between two
cement panels at the crossing, which caused him to be thrown over his handlebars and
onto the pavement. Defendants contend that Mr. Sherwood over-braked, which caused
him to flip over his handlebars. Mr. Sherwood suffered severe injuries and now sues for
negligence.
Trial is scheduled to begin on March 4, 2019. Currently before the Court are

MEMORANDUM DECISION AND ORDER - 1

several motions in limine. See Dkts. 162, 163, 164, 167, 173, 174, 175.1 Having
considered the briefs and the record in this case, the Court has determined that oral
argument is unnecessary and issues the following Order.
LEGAL STANDARD
Many of the pending motions relate to expert witnesses. Whether and to what
extent experts may testify at trial is addressed under the well-known standard first
enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93
(1993), and now set forth in Rule 702 of the Federal Rules of Evidence. Rule 702
establishes several requirements for permitting expert opinion testimony. First, the
evidence offered by the expert must assist the trier of fact either to understand the
evidence or to determine a fact in issue. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir.
2010); Fed. R. Evid. 702. The witness must also be sufficiently qualified to render the
opinion. Id. at 563. If specialized knowledge will assist the trier of fact to understand the
evidence or determine a fact in issue, a witness qualified by knowledge, skill, experience,
training or education may offer expert testimony where: (1) the opinion is based upon
sufficient facts or data, (2) the opinion is the product of reliable principles and methods;
and (3) the witness has applied those principles and methods reliably to the facts of the
case. Fed. R. Evid. 702; Daubert 509 U.S. at 592–93; Kumho Tire Co. v. Carmichael,

1

Earlier in this litigation, the Court denied several of the Parties’ motions in limine without prejudice. See
Dkt. 151, denying Motions at Dkts. 43, 44, 45, 62, 64, 75. The parties have now renewed each Motion as
previously filed at Dkts. 162, 163, 164, 173, 174, 175.

MEMORANDUM DECISION AND ORDER - 2

526 U.S. 137, 147 (1999).
The inquiry is a flexible one. Primiano, 598 F.3d at 564. Ultimately, a trial court
must “assure that the expert testimony both rests on a reliable foundation and is relevant
to the task at hand.” Id. In determining whether expert testimony is reliable and relevant,
the Court must determine “whether the reasoning or methodology underlying the
testimony is scientifically valid and ... whether that reasoning or methodology properly
can be applied to the facts in issue.” Boyd v. City and County of San Francisco, 576 F.3d
938, 945 (9th Cir.2009). Daubert and its progeny reveal that exclusion of expert
testimony is the exception rather than the rule. Fed. R. Evid. 702, Adv. Comm. Notes
(2000).
ANALYSIS
1.

Plaintiffs’ Motions in Limine
At issue are Plaintiffs’ motions to exclude testimony from three defense experts:

(1) Timothy Arnold, a bicyclist and bicycle mechanic, (2) Dr. Ron Klein, a psychologist,
and (3) Cloie Johnson, a life care planner. The Court will address each motion in turn.
A. Motion to Limit Testimony of Timothy Arnold (Dkts. 43, 162)
At trial, Defendants intend to offer expert opinion testimony from Timothy
Arnold. Mr. Arnold is an experienced cyclist and a bicycle mechanic. See Dkt. 43-6. If
permitted to do so, he plans to testify as to the cause of plaintiff’s accident. He will opine
that plaintiff slammed on his brakes and flipped over the handlebars because only the
front brake was working. See Id. at 11.

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Plaintiffs argue that Mr. Arnold is qualified only to the extent he wishes to testify
as to “the cycling standard of care – i.e., whether it was safe to ride over the crossing at
fifteen to eighteen miles per hour.” Dkt. 90, at 9. Otherwise, to the extent Mr. Arnold
intends to testify as to why Mr. Sherwood crashed, or the dynamics of the crash,
Plaintiffs believe this testimony should be excluded because Mr. Arnold is not a trained
crash reconstructionist. Id. Defendants attempt to distinguish Mr. Arnold’s opinion from
that of a reconstructionist by asserting his opinion is based on technical and specialized
knowledge in bicycles which qualifies him to opine on “factual scenarios that cause
specific damage to bicycles.” Dkt. 79 at 2.
The Court generally agrees with Plaintiffs. Although Mr. Arnold is an able bicycle
mechanic and rider, he bases much of his planned opinion testimony upon factors that
involve accident reconstruction, including, for example, Mr. Sherwood’s speed at the
time of the accident. See, e.g. Dkt. 43-6 at 11. In addition, Mr. Arnold’s report relies upon
a “review of the photographs available” and an “inspection of the scene;” a personal
reenactment of the accident by riding his bike over the same railroad crossing; and an
assessment of Mr. Sherwood’s “alleged line” of travel the day of the accident. Id. at 4, 8.
These aspects of Mr. Arnold’s opinion go beyond the scope of his expertise as a bicyclist
and bicycle mechanic and enter the realm of accident reconstruction—an area in which
Mr. Arnold is not qualified to offer expert testimony.
Not all Mr. Arnold’s anticipated testimony exceeds the scope of his qualifications.
Mr. Arnold is an able bicycle mechanic and rider with proper qualifications in this area.

MEMORANDUM DECISION AND ORDER - 4

See Dkt. 43-6 at 2, 12-13. He has operated a bicycle shop for nearly twenty-five years,
was a professional bicycle racer, taught community college classes on bicycle
maintenance, and has experience designing and building bike wheels and testing relevant
products. Dkt. 43-5 at 7, 20, 50. In his report, Mr. Arnold indicated that he inspected Mr.
Sherwood’s bicycle and would offer opinions on “maintenance defects,” the “Trek Incite
8i bicycle computer,” information regarding safe cycling behavior, and the “mechanics”
that were involved in the accident so far as it relates to the “mechanics” of bicycles and
not “mechanics” of how accident may have occurred. Dkt. 43-6 at 2, 6-7, 10, 12-13. Mr.
Arnold must avoid providing testimony that re-constructs the accident, but may testify as
to the nature of the damage he observed to Mr. Sherwood’s bicycle as long as he relies on
his technical or specialized knowledge and experience related to bicycles.
Therefore, Plaintiffs’ motion to exclude Mr. Arnold’s testimony will be granted to
the extent the witness attempts to offer expert opinion regarding accident reconstruction,
but otherwise is denied. The Court will allow Mr. Arnold to offer expert opinions
regarding: (1) general bicycle safety; (2) bicycle maintenance; (3) the condition of Mr.
Sherwood’s bicycle; (4) the general phenomenon of a bicycle somersaulting if the rider
applies too much pressure on the front brake; and (5) the nature of the damage he
observed to Mr. Sherwood’s bicycle.
B. Motion to Exclude Timothy Arnold’s Video Recreations (Dkt. 167)
In a related motion, Plaintiffs ask the Court to exclude videos Mr. Arnold created
as part of his investigation. Dkt. 167. Mr. Arnold used a GoPro camera attached to his

MEMORANDUM DECISION AND ORDER - 5

helmet and recorded himself riding over the railroad crossing several times. Id. Plaintiffs
argue these videos should be excluded because they are irrelevant and prejudicial. See
Dkt. 167-1 at 2 (citing Fed. R. Evid. 401, 402, 403). Specifically, Plaintiffs argue BNSF
cannot carry its burden of demonstrating that Mr. Arnold’s video is substantially similar
to the event in issue, i.e. Mr. Sherwood’s bicycle crash on July 14, 2014. Id. at 4-5. As
Defendants point out, however, the video serves to show the jury “what it looks like to
approach and ride across a railroad crossing at 18 miles per hour – which is the
approximate speed all experts in this case used in formulating their opinions, for both
parties.” Dkt. 192, at 3. In other words, Defendants acknowledge the videos are not
intended to serve as a reconstruction of Mr. Sherwood’s accident. The video may assist
the jury in providing it a generalized understanding of the accident scene and what was
involved in negotiating the intersection at the same speed as Mr. Sherwood.
However, as such, the video is, at most, a demonstrative exhibit with no
substantive relevance – i.e., it may be helpful to the jury but does not make any disputed
fact more or less probable than it would be without the evidence. Accordingly, the
exhibit will not be admitted as an exhibit at trial. However, the Court will allow it to be
played to the jury as a demonstrative with an appropriate limiting instruction advising the
jury of the very limited purpose for which the video is being shown to them. It will not
accompany the jury into the jury room during their deliberations.
C.

Motion to Limit Testimony of Dr. Ronald Klein’s (Dkt. 44, 164)

MEMORANDUM DECISION AND ORDER - 6

Plaintiffs also seek to exclude portions of Dr. Ronald Klein’s testimony,
specifically Dr. Klein’s opinions regarding: (1) Mr. Sherwood’s motives for pursuing this
lawsuit; (2) accident reconstruction and Mr. Sherwood’s character; and (3) the objectivity
of Mr. Sherwood’s treating medical providers. Dkt. 44 at 1-3.
(1) Dr. Klein’s Opinions Regarding the Motivations for the Lawsuit
Plaintiffs argue that Dr. Klein’s expert report failed to disclose opinions regarding
Mr. Sherwood’s “alleged motivations for pursuing this lawsuit.” See Dkt. 44-1 at 6. Rule
26 requires an expert report to contain “a complete statement of all opinions the witness
will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B)(i). Despite
Rule 26’s requirement of a “complete statement” of “all opinions,” federal courts
generally allow an expert to “supplement, elaborate upon, and explain his report in his
oral testimony,” as long as he does not provide entirely new opinions that were not
disclosed in his expert report. See, e.g., Godinez v. Huerta, No. 16-CV-0236-BAS-NLS,
2018 WL 2018048, at *8 (S.D. Cal. May 1, 2018). Federal Rule of Civil Procedure 37(c)
provides two exceptions: (1) when the failure to disclose is substantially justified, or (2)
when the nondisclosure is harmless. R & R Sails, Inc. v. Insurance Co. of Pennsylvania,
673 F.3d 1240 (9th Cir. 2012).
Here, Plaintiffs seek to prevent Dr. Klein from offering opinions on whether Mr.
Sherwood was motivated to pursue this lawsuit to “make up for past wrongs” from a
business transaction or to emulate the opportunistic behavior of his late father. Dkt. 44-3.
at 9, 13-15. Dr. Klein performed a psychological evaluation and assembled a report on

MEMORANDUM DECISION AND ORDER - 7

Mr. Sherwood to “determine whether psychological and/or neuropsychological injuries
had been sustained as a consequence of [the accident at issue].” Dkt. 44-2 at 2. But, Dr.
Klein’s report does not include an opinion regarding Mr. Sherwood’s alleged motivations
for bringing this lawsuit. See generally, Id. Dr. Klein devoted his report to the issue of
Mr. Sherwood’s “psychological and/or neuropsychological injuries” and whether those
injuries were caused by the accident or whether they existed before the bicycle accident.
Dkt. 44-2 at 2. Because Mr. Sherwood’s motivations for bringing this lawsuit were not
included in Dr. Klein’s expert report, his opinions about motivation are not elaborations
of his report, and they do not fit the Rule 37 exceptions, Dr. Klein may not offer expert
opinion on that issue at trial.
(2) Dr. Klein’s Opinions Regarding Crash Reconstruction and Character
Plaintiffs also ask the Court to prevent Dr. Klein from testifying regarding (1) Mr.
Sherwood’s “character for speed,” (2) “the danger of speed,” and (3) “crash
reconstruction.” Dkt. 44-1 at 8.
First, Plaintiffs argue that Dr. Klein testifying about Mr. Sherwood’s “character
for speed” constitutes inadmissible character evidence under F.R.E. 404(b)(1).2 Dkt. 44-1
at 10. Dr. Klein developed a theory that Mr. Sherwood has a certain “affinity for high
speed” in his expert report and at his deposition. Dkt. 44-2 at 10; Dkt. 44-3 at 21-24.

2

Plaintiffs also argue that Dr. Klein’s “affinity” theory was not properly disclosed
under F.R.C.P. 26(a)(2)(B)(i). Dkt. 44-1 at 10. This argument fails because Dr. Klein
included the “affinity” theory in his report. Dkt. 44-2 at 11.

MEMORANDUM DECISION AND ORDER - 8

It is well-settled that evidence of a person’s character is not admissible to prove
that the person acted in conformity with his character on a particular occasion. Fed. Rule
Evid. 404(a)(1) 2006 Adv. Comm. Notes (“[I]in a civil case evidence of a person's
character is never admissible to prove that the person acted in conformity with the
character trait.”); See also United States v. Firempong, 624 F. App'x 497, 499 (9th Cir.
2015). Defendants counter that Dr. Klein’s testimony regarding Mr. Sherwood’s alleged
“affinity for speed” is relevant to contributory negligence. Dkt. 77 at 8. Put another way,
Defendants argue that Dr. Klein’s general clinical impressions prove that Mr. Sherwood
contributed to the accident by negligently traveling too fast that day. See Id. But the
evidence still runs afoul of Rule 404. Dr. Klein’s testimony about Mr. Sherwood’s
character as evidence that he acted in conformity with his alleged “affinity for high
speed” the day of the accident is inadmissible. To be clear, Dr. Klein’s opinions and
evaluations regarding “psychological and/or neuropsychological injuries” and whether
those injuries were “sustained as a consequence” of the bicycle accident are admissible
under Rule 702. But, Dr. Klein’s “affinity” theory of causation is not allowed under Rule
404.
Furthermore, as the Court discussed above regarding Mr. Arnold, an expert
witness must be properly qualified to offer opinions on the general danger or risks
involved with speed or crash reconstruction. The Court will not rehash its reasoning, but
will simply point out that Dr. Klein is not qualified to testify as to the inherent dangers of
high-speed bicycling or to offer opinions related to crash reconstruction. See Dkt. 44-2.

MEMORANDUM DECISION AND ORDER - 9

Therefore, the Court will grant Plaintiffs’ motion to limit Dr. Klein’s testimony
regarding (1) Mr. Sherwood’s “character for speed,” (2) “the danger of speed,” and (3)
“crash reconstruction.” Dkt. 44-1 at 8.
(3) Dr. Klein’s opinions regarding the objectivity of treating physicians
Finally, Plaintiffs argue that Dr. Klein’s opinions pertaining to treating physicians
and their objectivity were not properly disclosed under Rule 26, are unhelpful to a jury
under Rule 702, and are prejudicial under Rule 403. Dkt. 44-1 at 11. Dr. Klein did not
examine the treating physicians in this case, and did not include any opinion related to
them in his expert report. See Dkt. 44-2. Dr. Klein may speak to his own qualifications
and expertise as a forensic medical expert, but may not compare his own medical
objectivity to treating medical providers. See Dkt. 44-3 at 4-5. Any testimony about the
treating providers would be beyond the scope of his written report under Rule 26, and
unhelpful to the jury under because he has not examined any treating physicians. Thus,
Dr. Klein’s opinions regarding the lack of objectivity of treating physicians or the
objectivity of forensic medical experts will be excluded.
In summary, Dr. Klein will not be allowed to testify regarding (1) Mr. Sherwood’s
motivations for bringing this lawsuit; (2) Mr. Sherwood’s affinity for speed, the danger or
risks of speed, and crash reconstruction; and (3) the lack of objectivity of treating
physicians or the objectivity of forensic medical experts.
C.

Motion to Limit Testimony of Cloie Johnson (Dkts. 45, 163)

MEMORANDUM DECISION AND ORDER - 10

Plaintiffs seek to limit Cloie Johnson’s planned testimony in two ways. First,
Plaintiffs seek to exclude Ms. Johnson’s testimony that derives from nursing reference
materials by preventing testimony (a) describing their content, (b) interpreting or
applying those reference materials; and (c) opining as to whether Mr. Sherwood’s life
care planner, Liz Holakiewicz (also a nurse), complied with nursing standards as
described in the reference materials. Second, Plaintiffs seek to prevent Ms. Johnson from:
(a) “claiming that she met with Mr. Sherwood or performed a life care planning clinical
interview;” and (b) “describing any observations she may have made during [Dr. Klein’s]
neuropsychological forensic evaluation.” Dkt. 93, at 8.
(1) Ms. Johnson’s Testimony Regarding Nursing Materials and Ms.
Holakiewicz’s Life Care Plan
First, the Court agrees that Ms. Johnson is not a nurse and is therefore not
qualified to offer opinions regarding the practice of nursing or to base her testimony on
nursing-specific reference materials. But, Ms. Johnson is qualified in the field of lifecare
planning. See Dkt. 45-6. In that capacity she can offer expert opinions related to the
procedures and methodology that Ms. Holakiewicz used in preparing her life care plan
for Mr. Sherwood. In preparing her expert report Ms. Johnson conducted her “standard
life care planning assessment,” examining: the “nature and extent” of Mr. Sherwood’s
impairment, “future case services,” and the “work product” quality of Ms. Holakiewicz’s
life care plan through the lens of her decades of experience in the lifecare planning field.
Dkt. 45-3 at 9. The Court agrees that Ms. Johnson may not offer opinions pertaining to

MEMORANDUM DECISION AND ORDER - 11

Ms. Holakiewicz’s work as a nurse, but she is certainly qualified to testify regarding
whether Ms. Holakiewicz used the correct methodology for preparing a life care plan for
Mr. Sherwood. The Court will therefore deny Plaintiffs’ motion to exclude her testimony
about Ms. Holakiewicz’s life care plan.
(2) The Rule 35 Stipulation and Order
Plaintiffs also argue that Ms. Johnson should be precluded from offering testimony
related to her participation in Dr. Klein’s examination. Dkt. 45-1 at 7-10. Specifically,
Plaintiffs seek to preclude Ms. Johnson from: (a) saying she “had the opportunity to meet
Mr. Sherwood,” or “performed a life care planning clinical interview,” and (b) describing
any observations she made during Dr. Klein’s exam. Id. Plaintiffs first argue that
allowing Ms. Johnson to testify regarding her observations from the examination and the
list of questions she submitted to Dr. Klein violates a Rule 35 Stipulation and Order. Id.;
see also Dkt. 27. Second, Plaintiffs claim that Ms. Johnson did not properly disclose any
such observations as the basis of her report. Dkt. 45-1 at 9.
The Court is not persuaded. Here, Plaintiffs were not deprived from attending and
objecting to Ms. Johnson’s attendance at the May 3, 2017 examination. Dkt. 27 at 2.
Plaintiffs were also free to ascertain the scope of the Rule 35 Stipulation and Order and
whether Ms. Johnson would be permitted to attend. The language of the Rule 35 Order
and Stipulation does not support Plaintiffs’ assertion that Ms. Johnson was prohibited
from attending the examination or submitting questions pertinent to her report to Dr.

MEMORANDUM DECISION AND ORDER - 12

Klein; nor does Rule 35 support such a prohibition. See Id.; Fed. R. Civ. P. 35. Thus, Ms.
Johnson is not precluded from saying that she sat in on the Rule 35 exam.
Even if Ms. Johnson should not have attended the Rule 35 examination, Plaintiffs
admit that she could have reviewed the video of the entire examination. As Defendants
point out, “Ms. Johnson would have all the same information from the video of the
examination, even if she [had] not attend[ed] in person.” Dkt. 81 at 6. Given that
Plaintiffs have admitted that Ms. Johnson could have reviewed the video in any event,
she is not precluded from testifying as to any observations made during that examination.
Thus, Ms. Johnson’s attendance and clinical observations: did not deprive the Plaintiffs
an opportunity to object, did not violate Rule 35, and it did not violate the Rule 35
Stipulation and Order (Dkt. 27).
Finally, the Court is not convinced, as Plaintiffs suggest, that it would be
prejudicial or misleading under Rule 403 for Ms. Johnson to tell the jury she “met” with
Mr. Sherwood. Dkt. 45-1 at 8. Nor is it misleading for Ms. Johnson to say that she
clinically observed Mr. Sherwood. Ms. Johnson did in fact meet with Mr. Sherwood on
May 3, 2017 during Dr. Ronald Klein’s mental examination. Id.; see also Dkt. 81 at 4. As
such, the Court disagrees with Plaintiffs that Ms. Johnson’s testimony about “meeting”
with Mr. Sherwood would be unfairly prejudicial or confusing under Rule 403.
For the foregoing reasons Plaintiffs motion to limit portions of Cloie Johnson’s
expert testimony will be denied.

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2.

Defendants’ Motions in Limine
Defendants seek to limit or exclude testimony from two witnesses: (1) Charles

Greear, a crash reconstructionist; and (2) James Sobek, a forensic engineer.3
A.

Motion to Exclude Testimony of Charles Greear (Dkt 64, 174)

Defendants argue that Charles Greear’s testimony should be excluded because it is
irrelevant and unreliable under Rule 702. Dkt. 64 at 1.
Federal Rule of Evidence 702 “allows admission of ‘scientific, technical or other
specialized knowledge’ by a qualified expert if it will ‘assist the trier of fact to
understand the evidence or determine a fact in issue.’” Elsayed Mukhtar v. Cal. State
Univ., Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002). Defendants argue that Mr. Greear
fails to “provide any scientific or specialized knowledge to assist the trier of fact in
determining what happened [because] his opinion conclusively tells the jury what
happened based on his admitted speculation.” Dkt. 64-1 at 17. Specifically, Defendants
assert that Mr. Greear bases his opinion on Mr. Sherwood’s belief of how the accident
occurred and simply repeats the same theory under the “guise of expert opinion.” Id. at
16-17.
Mr. Greear’s opinions are both relevant and sufficiently reliable under Rule 702.
Mr. Greear performed a detailed analysis that will assist the trier of fact. For instance,

3

Defendants also filed a motion in limine asking the Court to exclude medical opinion testimony
from lay witnesses Danielle Justin and Michelle Farella. See Dkt. 62. Plaintiffs, however, indicated that
they do not intend to call these witnesses as experts. The parties thus agree on the parameters for these
witnesses’ planned testimony and no ruling on the motion in limine is necessary at this time.

MEMORANDUM DECISION AND ORDER - 14

Mr. Greear applied numerous reconstruction calculations including “acceleration rates,”
“roadway radius analysis,” “throw distance calculations,” and “force calculations” to
come to his conclusion. Dkt. 96-35 at 10-11; Dkt. 96-2. Mr. Greear also considered
alternate theories of how the accident might have occurred, including the theory of
Defendant’s expert, Dr. Funk. Dkt. 96-35 at 11-12. Since Mr. Greear’s opinion
distinguishes Dr. Funk’s opinion, is based upon his own calculations and specialized
scientific knowledge, and evaluates Mr. Sherwood’s story, his opinion will be useful to
the trier of fact under Rule 702.
Defendants also assert that Mr. Greear’s testimony is unreliable. Dkt. 64 at 9.
Particularly, Defendants argue that Mr. Greear “lacks any facts or data, and performed no
calculations, to support plaintiffs’ theory of the accident” and that he “has no training or
experience in analyzing or reconstructing sole bicycle accidents such as this one. . ..” Id.
18-19. But, as explained above, Mr. Greear did indeed base his opinions on numerous
calculations and data. See Dkt. 96-35. The fact that Dr. Greear did not conduct
“destructive testing” like the Defendant’s expert conducted does not invalidate Dr.
Greear’s own methodology, which involved physical calculations. Indeed, both Mr.
Greear’s opinion and Defendant’s expert, Dr. Funk, considered the same objective data—
the Runtastic GPS data—to formulate their opinions. Dkt. 99 at 18-19;
Further, Mr. Greear’s reconstruction methodology is based on extensive
reconstruction qualifications and experience. Mr. Greear has 1,015 hours of formal crash
investigation and crash reconstruction training, he has been certified by the Accreditation

MEMORANDUM DECISION AND ORDER - 15

Commission for Traffic Accident Reconstructionist, he has years of experience as a
collision investigator and reconstructionist, and he teaches crash investigation and
reconstruction classes at the Idaho Peace Officers Standards and Training (POST) and
Washington Criminal Justice Training Center (WCJTC) Dkt. 96-5 at 1, 20-22. While it is
true that Mr. Greear has never investigated a bicycle-only type crash, this Court is not
convinced that single-bicycle-related experience is an essential qualification for accident
reconstruction. Mr. Greear’s qualifications in the reconstruction of motorcycle,
automobile, and pedestrian accidents qualify him to reconstruct a crash involving a single
cyclist.
For the foregoing reasons, Defendants’ motion to exclude Mr. Greear’s expert
testimony will be denied.
B.

Motion to Exclude Testimony of James Sobek (Dkt. 75, 175)

Defendants also move to exclude the expert testimony of James Sobek concerning
what Mr. Sherwood could see on the day of the accident because it “lack[s] the relevance
and reliability requirements for admission under FRE 702.” Dkt. 75-1 at 5.
With respect to relevance, Rule 702 “allows admission of scientific, technical or
other specialized knowledge by a qualified expert if it will assist the trier of fact to
understand the evidence or determine a fact in issue.” Mukhtar, 299 F.3d at 1063.
Defendants argue that Mr. Sobek’s testimony is irrelevant because it only assists the jury
in determining what is visible to someone analyzing after-the-fact photographs, not what
Mr. Sherwood himself could see on the day of the accident. Dkt. 75-1 at 10. Defendants

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characterize this as only “[Mr. Sobek’s] own personal conclusions of what can or cannot
be seen, and not the actual memory or testimony of Mr. Sherwood.” Id.
Despite Defendants’ arguments, the Court finds Mr. Sobek’s testimony will be
relevant to the trier of fact. As Plaintiffs correctly point out, there is a genuine dispute
about whether the gap in BNSF’s railroad crossing was conspicuous. Dkt. 102 at 10.
Therefore, expert testimony about “how a person views a crossing” before riding on
it, with an emphasis on “the effects that lighting and shadows may have on the ground's
surface,” are directly relevant to the dispute in this case, and helpful to the ultimate trier
of fact. Id.; see also Dkt. 102-3 at 10-14. Because photos of the accident scene will be
used at trial to show jurors what the Mr. Sherwood might have been able to see, it is
relevant for an expert to explain why those photos should indicate that Mr. Sherwood
either could, or could not, see the gap in the railroad crossing at the time of the accident.
Defendants also argue that Mr. Sobek’s testimony is unreliable. Dkt. 75-1 at 11.
Particularly, Defendants assert that Mr. Sobek’s “methodology and evidence he used to
form his opinion was distorted and flawed.” Id. at 10. Defendants’ motion points out that
Mr. Sobek did not take the photographs himself and did not use any peer-reviewed or
scientific methodology to come to his conclusions about the visibility of the gap in the
railroad crossing. Id. Defendants raise several additional tests Mr. Sobek could have run,
including analyzing Mr. Sherwood’s bicycle riding habits, or performing an on-site
measurement of “photometric contrast.” Id. at 4-5. These alleged deficiencies can be

MEMORANDUM DECISION AND ORDER - 17

raised on cross examination, but do not invalidate Mr. Sobek’s qualifications under Rule
702. See Wells, 879 F.3d at 933.
While Defendants’ challenges to Mr. Sobek’s qualifications are fodder for cross
examination, the Court will not exclude his testimony on reliability grounds. As indicated
above, testimony is admissible when an expert “observed the physical evidence and
applied their scientific and engineering knowledge to reach certain conclusions.” Crouch,
2016 WL 157464, at *4. Defendants argue that while “Mr. Sobek has extensive general
experience and history with vision and conspicuity in other contexts and arenas, he has
none regarding where a bicyclist would be looking and what a bicyclist would or would
not see approaching a crossing.” Dkt. 116 at 6. As it concluded with respect to Mr.
Greear, however, the Court is not convinced Mr. Sobek must be a bicycle-specific expert
to provide an expert opinion on what Mr. Sherwood should have been able to see when
approaching the railroad crossing. Mr. Sobek’s thirty years’ experience as an accident
reconstruction expert with emphasis on analysis of visibility during accidents is enough
for him to assess the visibility of the crossing in this case. See Dkt. 102-1 at 2. The
Defendants have not challenged what appear to the Court to be Mr. Sobek’s considerable
qualifications to testify as to accident reconstruction issues, particularly issues related to
visibility. See id. The Court, therefore, finds that Mr. Sobek meets the standards for
reliability as set forth in Rule 702 and Daubert.
For the foregoing reasons, Defendants’ motion to exclude Mr. Sobek’s expert
opinion will be denied.

MEMORANDUM DECISION AND ORDER - 18

ORDER
IT IS ORDERED THAT:
(1) Plaintiffs’ Renewed Motion to Limit the Testimony of Timothy Arnold (Dkt.
162) is GRANTED in part and DENIED in part as explained above.
(2) Plaintiffs’ Renewed Motion to Limit the Testimony of Cloie Johnson (Dkt.
163) is GRANTED in part and DENIED in part as explained above.
(3) Plaintiffs’ Renewed Motion to Limit the Testimony of Dr. Ronald Klein (Dkt.
164) is GRANTED.
(4) Plaintiffs’ Motion to Exclude the Timothy Arnold Video Recreations (Dkt.
167) is GRANTED, but may be shown to the jury as a demonstrative exhibit.
(5) Defendants’ Renewed Motion to Exclude Medical Testimony from Danielle
Justin and Michelle Farella (Dkt. 173) is DEEMED MOOT.
(6) Defendants’ Renewed Motion to Exclude Testimony of Charles Greear (Dkt.
174) is DENIED.
(7) Defendants’ Renewed Motion to Limit Testimony from James Sobek (Dkt.
175) is DENIED.

DATED: February 25, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 19