PHARES v. MANHEIM REMARKETING, INC. et al

Filing 71

ORDER - Defendants' Motion to Exclude Portions of the Testimony of Plaintiff's Expert Peter A. Philbrick Docket No. 52 , is GRANTED. Plaintiff's response has no effect on our analysis and did not unduly prejudice Defendants, we DENY Defendants' motion to strike Docket No. 62 *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 2/18/2016. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BRADY PHARES,

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Plaintiff,
vs.
MANHEIM REMARKETING, INC.,
MANHEIM INVESTMENTS, INC.,
MANHEIM, INC.,
COX ENTERPRISES, INC.,
Defendants.

1:14-cv-01190-SEB-TAB

ORDER GRANTING DEFENDANTS’ MOTION TO EXCLUDE TESTIMONY
This cause is before the Court on Defendants’ Motion to Exclude Portions of the
Testimony and Opinions of Plaintiff’s Expert Peter A. Philbrick [Docket No. 52], filed
September 1, 2015. 1 For the reasons detailed herein, we GRANT Defendants’ motion. 2
Factual Background
Manheim is a vehicle auction company in the business of selling salvage vehicles
for rental car companies. Pursuant to its national contract with Enterprise Rental Car,
Manheim was assigned a wrecked Nissan Versa to sell on Enterprise’s behalf. After

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Defendants have also filed a motion requesting the Plaintiff’s response to its motion to exclude be stricken as
untimely. We agree that Plaintiff’s response should have been filed on or before September 18, 2015 pursuant to
Local Rule 7-1(c), rather than on September 28, 2015, which Plaintiff alleges was the proper date under Local Rule
56-1(b). However, because Plaintiff’s response has no effect on our analysis and did not unduly prejudice
Defendants, we DENY Defendants’ motion to strike [Docket No. 62].
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On October 23, 2015, this case was consolidated for purposes of discovery and pretrial proceedings with Collins v.
Manheim Remarketing, Inc., 1:14-cv-00056-SEB-TAB. Although they are separate causes, the two cases are based
on identical facts, and the Plaintiffs have relied on the same experts. Defendants in the two causes have filed
matching motions so exclude. Dkts. 41, 52 (respectively). As a result, our analysis in this order mirrors that of our
order in the Collins litigation.

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receiving the Versa, Manheim’s agent, Kevin Wiseman, reattached the car’s rear bumper
cover, which had become dislodged in a prior accident, using either zip ties or bumper
clips. Manheim sold the Versa to Burkhart Automotive. Ken Burkhart, on behalf of
Burkhart Automotive, retrieved the Versa from Manheim’s Indianapolis auction facility
using a flatbed rollback tow truck. During transit from Manheim’s Indianapolis facility to
Burkhart Automotive’s Greensburg location, the rear bumper cover fell off the vehicle
and came to rest in the left-hand lane of travel of eastbound Interstate 74 near mile
marker 98. Katrina Collins and Brady Phares were traveling in their car in the left-hand
lane of eastbound Interstate 74 where they came upon the Versa bumper cover. After
swerving to the right, their vehicle was propelled across the grass median into oncoming
traffic and was struck by a tractor-trailer truck, resulting in the death of Ms. Collins and
permanent injuries to Mr. Phares.
Plaintiff has retained Peter A. Philbrick as an expert in this case. Mr. Philbrick is
employed by Ruhl Forensic as a commercial vehicle safety specialist with expertise in
“truck driving, truck operations, truck management, truck safety, forklift management,
training, and safety, and warehouse operations.” Philbrick Dep. 5:20–23. He is expected
to testify to the applicability of the Federal Motor Carrier Safety Regulations with regard
to the accident at issue in this case.
On September 1, 2015, Defendants filed a motion to exclude Mr. Philbrick’s
expert opinion that “Manheim Remarketing employee Kevin Wineman negligently
reattached the bumper to the Versa using nylon wire ties or bumper clips, creating a latent
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or hidden defect,” arguing that it was inadmissible under Federal Rule of Evidence 702.
Dkt. 52. Our analysis of that motion to exclude ensues.
Legal Analysis
To be admissible, expert testimony must satisfy the conditions of Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Federal Rule of Evidence 702 states that, “[a] witness who is qualified as an expert…may
testify in the form of opinion…if the expert’s…specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702.
Daubert requires courts to ensure that any expert testimony is based on valid scientific,
technical, or specialized knowledge and that such testimony will be of assistance to the
trier of fact. 509 U.S. at 592; see also United States v. Welch, 368 F.3d 970, 973 (7th Cir.
2004).
The first task of the court in passing on the admissibility of expert testimony is to
determine whether the expert is qualified in the relevant field. Zelinski v. Columbia 300,
Inc., 335 F.3d 633, 640 (7th Cir.2003). A witness may offer an expert opinion only if he
draws on some special “knowledge, skill, experience, training, or education” to formulate
that opinion. Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir. 1999). Moreover, the
opinion he offers “must be an expert opinion (that is, an opinion informed by the witness'
expertise) rather than simply an opinion broached by a purported expert.” Id. (quoting
United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991)). “Whether a witness is
qualified as an expert can only be determined by comparing the area in which the witness
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has superior knowledge, skill, experience, or education with the subject matter of the
witness's testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990).
Here, Defendants claim that Mr. Philbrick is not qualified to opine on the proper
method of reconditioning the Nissan Versa. In other words, Defendants argue that Mr.
Philbrick’s opinion that “Manheim Remarketing employee Kevin Wineman negligently
reattached the bumper to the Versa using only wire ties or bumper clips creating a latent
or hidden defect” is in point of fact not an expert opinion. Philbrick Report at 4, ¶ 1. In
response, Plaintiff notes that Mr. Philbrick has accumulated more than three decades of
experience in commercial motor vehicle safety management and accident investigation,
with over a dozen years in commercial motor vehicle risk management, which experience
qualifies him as an expert in that field.
Rule 702 certainly permits testimony by an expert whose qualifications are based
on his substantial experience. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). However, “[i]f the witness is relying solely or primarily on experience, the
witness must explain how that experience leads to the conclusion reached, why that
experience is a sufficient bases for the opinion, and how that experience is reliably
applied to the facts. The trial court’s gatekeeping function requires more than simply
‘taking the expert’s word for it.’” Fed. R. Evid. 702 advisory comm. nn. (2000 Amends.)
(quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir.
1995); accord Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Plaintiff has failed to
provide any link between Mr. Philbrick’s stated experience and his conclusion with
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regard to the correct manner of reattaching a bumper. There is no evidence that Philbrick
is an expert in automobile fabrication, automobile repair, or the reconditioning of
salvaged vehicles, nor is there any evidence that Philbrick’s experience in commercial
motor vehicle operation, training, and safety offers a sufficient basis on which to form his
opinion regarding the proper reattaching of a bumper. Without support in the record, we
cannot simply assume that years of experience in commercial motor vehicle operation
translates into expertise in automotive fabrication or reconditioning. See Cunningham v.
Masterwear, Inc.¸ 2007 WL 1164832, at *10 (S.D. Ind. Apr. 19, 2007) (“Just as a lawyer
is not by general education and experience qualified to give an expert opinion on every
subject of the law, so too a scientist or medical doctor is not presumed to have expert
knowledge about every conceivable scientific principle or disease.”) (citation omitted).
Plaintiff rejoins that, in forming his opinion, Philbrick permissibly relied on Kevin
Wineman’s testimony, which revealed that he (Wineman) had reattached the bumper
using either zip ties or bumper clips “for looks” rather than for security, and that in his
opinion, doing so created a dangerous condition when the Versa was later transported.
Expert witnesses may base opinions on facts or data of which they have been made
aware, see Fed. R. Evid. 703, but as we have explained, the experts’ opinions must be
confined to their respective fields. Jones v. Lincoln Elec. Co., 188 F.3d 709, 723–24 (7th
Cir. 1999). Because Plaintiff has failed to refute Defendants’ argument that Mr.
Philbrick’s expertise is limited to commercial motor vehicle operation, training, and

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safety, it is testimony that is not relevant to the issues in the case at bar. We therefore
strike paragraph one of the conclusions listed in Peter Philbrick’s expert report.
Conclusion
For the reasons detailed above, Defendants’ Motion to Exclude Portions of the
Testimony of Plaintiff’s Expert Peter A. Philbrick [Docket No. 52], is GRANTED.
IT IS SO ORDERED.

Date: 2/18/2016

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Distribution:
Bruce D. Jones
CRUSER MITCHELL & GASTON LLC
[e-mail]
Keenan C. Fennimore
CRUSER MITCHELL & GASTON, LLC
[e-mail]
Sally Reed Hubbard
CRUSER MITCHELL & GASTON, LLC
[e-mail]
Keith A. Gaston
CRUSER, MITCHELL & GASTON, LLC
[e-mail]
Michael W. Phelps
KEN NUNN LAW OFFICE
[e-mail]
Troy Kevin Rivera
NUNN LAW OFFICE
[e-mail]

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