Marla Ubaldo Ramos et al v. ONEOK Rockies Midstream, L.L.C. et al

Filing 165

MEMORANDUM AND ORDER granting 139 Motion to Exclude Guntharp's testimony; denying without prejudice 146 Motion to Exclude Krehbiel's testimony; granting 141 Motion to Exclude BiFulco's testimony; denying 136 Motion to Exclude Tremp's testimony. See order for additional information. Signed by District Judge Holly L. Teeter on 6/3/2021. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ARNULFO RAMOS RIOS,
Plaintiff,
v.

Case No. 2:19-cv-02602-HLT

REX RAMAGE, et al.,
Defendants.

MEMORANDUM AND ORDER
This is a negligence case arising out of a vehicle accident. Plaintiff Arnulfo Ramos Rios
alleges that Defendant Rex Ramage, the driver of the truck that hit the vehicle Plaintiff was riding
in, is liable for negligence.1 Defendant has filed four motions to exclude expert testimony. Docs.
136, 139, 141, and 146. For the reasons discussed below, the Court grants Defendant’s motion as
to Walter Guntharp, denies without prejudice Defendant’s motion as to Tim Krehbiel, grants
Defendant’s motion as to Santo Steven BiFulco with a limited exception, and denies Defendant’s
motion as to Robert Tremp.
I.

BACKGROUND2
This case arises out of an accident that occurred at approximately 5:20 p.m. on December

21, 2018. Defendant was driving a white 2014 Ford F-250 that collided with a black 1999 Ford F250 driven by Bryce Sears. The accident occurred at the intersection of 28th Road and Avenue J,
which is approximately 1.5 miles east of Little River, Kansas. Sears was westbound on Avenue J

1

At the same time the Court issued this ruling, it separately granted summary judgment in favor of ONEOK Services
Company, Ramage’s employer, on grounds that Ramage was not acting within the scope of his employment at the
time of the accident. See Doc. 164. Although the Daubert motions were filed by Ramage and ONEOK collectively,
Ramage is now the only remaining defendant.

2

The following facts are taken from the undisputed facts in the parties’ recent summary-judgment motions. See
Doc. 164.

and did not have a stop sign. Defendant was northbound on 28th Road and did have a stop sign at
the intersection with Avenue J. Plaintiff was a passenger in Sears’s truck and suffered injuries in
the accident. Plaintiff asserts that Defendant negligently failed to yield. In support of his case,
Plaintiff has designated the testimony of at least four experts.
Walter Guntharp claims expertise in the fields of commercial vehicle safety, operation, and
compliance. He opines in his report that there were no obstructions to vision or lighting at the
intersection where the accident occurred, that Defendant would have seen the vehicle Plaintiff was
riding in had he followed requirements in the Kansas Driving Handbook to look both ways twice,
that Defendant violated Kansas law by failing to yield, and that Defendant’s failure to check the
intersection properly caused the crash. See generally Doc. 140-2.
Tim Krehbiel has submitted a report offering two opinions: (1) that videos he made and
photographs he took represent the lighting conditions at the time of the accident, and (2) that
Sears’s running lamps were on at the time of the accident. See generally Doc. 147-7.
Santo Steven BiFulco is a life-care planner who has provided a report that opines on
Plaintiff’s future medical costs. See generally Doc. 145-1.
Robert Tremp is a vocational expert who provided a vocational evaluation that concludes
that Plaintiff, given his current condition, may now expect to earn minimum wage, “may need to
work part-time,” or may be unable to work at all. See generally Doc. 144-1.
Defendant seeks to exclude the testimony of all four experts. See Docs. 139, 146, 141, and
136, respectively.
II.

STANDARD
Federal Rule of Evidence 702 governs expert testimony:

2

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. Rule 702 imposes upon the district court a “gatekeeping role” to ensure that
expert testimony is both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 589, 597 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
In performing this gatekeeping function, the “the district court generally must first
determine whether the expert is qualified ‘by knowledge, skill, experience, training, or education’
to render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting
Fed. R. Evid. 702). Second, if the expert is qualified, the court next determines if the expert’s
opinion is reliable under Daubert. Id. The burden is on the party offering the expert testimony to
prove its admissibility. Id. “A district court has ‘wide discretion’ in determining whether a
witness’s experience is sufficient to qualify him as an expert.” Ronwin v. Bayer Corp., 332 F.
App’x 508, 512-13 (10th Cir. 2009) (citation omitted).
III.

ANALYSIS
A.

Guntharp

Defendant challenges Guntharp’s opinions (1) that there were no obstructions or lowlighting conditions that would have blocked Defendant’s view of the approaching truck

3

(“Conditions Opinion”), (2) that Defendant’s failure to properly check before pulling into the
intersection caused the accident (“Causation Opinion”), and (3) that Defendant violated Kansas
law (“Traffic Rules Opinion”). Doc. 140 at 7.
Conditions Opinion. Guntharp’s opinion on conditions encompasses two areas:
obstructions to vision and lighting. Defendant argues that these are fact questions appropriate for
fact witnesses and that Guntharp’s opinion on the subject is not reliable. The Court agrees.
Guntharp’s Conditions Opinion is largely based on witness statements in the police report and a
Google Earth image. He did not visit the scene. He merely repeats as expert opinion the statements
of fact witnesses from the police report, which is not appropriate expert testimony. See Hanan v.
Crete Carrier Corp., 2020 WL 584370, at *3 (N.D. Tex. 2020) (excluding certain opinions of
Guntharp that merely regurgitated factual information that could be presented to a jury through
witness testimony). To the extent Guntharp relied on a Google Earth image for his opinion that the
intersection and nearby roads were flat or level, see Doc. 140-3, the Court finds the opinion
unreliable. The Google Earth image contains no information about elevation or topography and on
its face reflects nothing but a one-dimensional image of two roads intersecting.
Guntharp’s opinion that there was adequate lighting is only based on the time of day the
accident occurred. It’s unclear why expert testimony would be needed on this point, as the lighting
just after sunset is within the understanding of lay witnesses and jurors, and eyewitnesses can
testify to how light or dark it was. See Fed. R. Evid. 702(a) (defining expert testimony as
encompassing an expert’s “scientific, technical, or other specialized knowledge [that] will help the
trier of fact to understand the evidence or to determine a fact in issue”); see also Dahlberg v. MCT
Transp., LLC, 2012 WL 8945006, at *2 (D.N.M. 2012) (“In some instances, Mr. Guntharp’s
opinion states matters which would be obvious to the jury and his expert testimony is not required

4

to assist the jury to determine a fact in issue.”); Jones v. Beelman Truck Co., 2015 WL 3620651,
at *7 (E.D. Mo. 2015) (excluding expert opinion regarding dirt on a headlamp based on a
photograph because a “jury is as capable as [the expert] of viewing a photograph and noting the
presence of dirt on the windshield and headlamps.”). Guntharp testified that his opinions on
lighting were based in part on his “many, many years of driving.” Doc. 140-1 at 5. Surely most
jurors have similar experience. He also specifically testified he was “not a conspicuity expert or
lighting expert.” Id. Nor did Guntharp visit the accident scene or measure any ambient lighting.
See Jones, 2015 WL 3620651, at *6 (excluding conclusory lighting testimony as “fundamentally
unsupported” in part because it was not based on any testing). Accordingly, the Court concludes
Guntharp’s Conditions Opinion is not reliable and would not help the jury understand or determine
a fact in issue
Causation Opinion. Regarding the Causation Opinion, Defendant argues it is inadmissible
because it was not based on any accident reconstruction and is impermissible ipse dixit. The Court
agrees that Guntharp is unqualified to offer an opinion on the cause of the accident when he did
no accident reconstruction. See Dahlberg, 2012 WL 8945006, at *3 (excluding certain opinions of
Guntharp about driving and accident causation because “he is not a reconstructionist and the Court
is not satisfied that he has the requisite, knowledge, skill, experience, training or education which
would qualify him as an expert”); Hanan, 2020 WL 584370, at *3-4 (striking Guntharp opinions
that touch on legal cause of crash). To the contrary, Guntharp testified to not knowing numerous
variables that would have impacted the accident. See Doc. 140-1 at 9 (“no idea” how fast Sears
was driving); 12 (did not measure any distances); 16 (not aware how much time passed from when
Defendant entered intersection and accident); 17 (not aware how fast Defendant accelerated).

5

Rather, Guntharp’s conclusion is that the cause of the accident was that Defendant failed
to check for oncoming vehicles and entered the intersection when Sears was too close to avoid the
collision. But he bases this finding on the fact that an accident occurred. Doc. 140-1 at 15. In other
words, Guntharp is opining that the accident occurred because Defendant did not yield, and we
know Defendant did not yield because the accident occurred. In considering a Daubert challenge,
the Court must consider whether the proposed testimony is based on facts and data that sufficiently
satisfy Rule 702. Rodgers v. Beechcraft Corp., 759 F. App’x 646, 659 (10th Cir. 2018). The focus
is on the method used, not the conclusions reached. Id. Here, Guntharp’s opinion is entirely
conclusory, and therefore his Causation Opinion must be excluded.
Defendant also takes issue with Guntharp’s conclusion that “[h]ad Mr. Ramage acted in a
safe, professional manner, this crash would not have occurred and Mr. Rios would not have been
injured.” See Doc. 140-2 at 5. Other courts have rejected nearly identical opinions by Guntharp.
Hanan, 2020 WL 584370, at *4 (“For example, Mr. Guntharp concludes many times, using
different words, that ‘[h]ad Mr. Knapp acted in a safe, professional manner, this crash would not
have occurred.’ . . . The Court will ask the jury—not a witness, even one who is an expert—to
make such conclusions.”). Further, as Defendant notes, “professional” is not a standard for Kansas
drivers. Thus, it’s not clear what purpose this opinion serves. Plaintiff alludes to Guntharp’s
expertise in commercial driving. To the extent this opinion was offered in the context of
Defendant’s employment with ONEOK, the Court has concluded that Ramage was not acting
within the scope of his employment at the time of the accident. See Doc. 164. Accordingly, to the
extent Guntharp is opining on Ramage’s professionalism or on standards associated with
commercial driving, those opinions are not relevant in this case and should be excluded.

6

Traffic Rules Opinion. Regarding the Traffic Rules Opinion, Defendant argue that it is an
impermissible legal conclusion. Again, the Court agrees. As a preliminary matter, Guntharp’s
opinion that Defendant violated Kansas traffic rules is based on the same faulty and conclusory
reasoning excluded above in the Causation Opinion. Beyond that, whether Defendant was
negligent under Kansas law is the precise issue the jury will be asked to decide. Jones, 2015 WL
3620651, at *3 (excluding expert opinion that “squarely address the ultimate issue of whether [the
other driver] was negligent in driving his vehicle . . . because they invade the province of the jury
on questions that the jury is entirely capable of answering as the trier of fact”). Opinions on
“whether certain conduct is ‘legal’ or ‘authorized’ under the law” is generally not proper. In re
Motor Fuel Temperature Sales Pracs. Litig., 2012 WL 3611010, at *2 (D. Kan. 2012).
Based on this analysis, the Court finds that Guntharp’s testimony should be excluded in its
entirety. Accordingly, the Court grants Defendant’s motion to exclude as to Guntharp.
B.

Krehbiel

Defendant seeks to exclude Krehbiel’s videos and photographs to the extent he relies on
them to show lighting conditions at the time of the accident because lighting conditions at sunset
are common knowledge and because Krehbiel’s opinions as to lighting are not reliable because he
was not present at the accident and the conditions when he took the photos and video are not
substantially similar to the time of the accident.3
To the extent Krehbiel simply wants to testify that, in his opinion, there was adequate
lighting at the time of the accident, that testimony is not proper. As discussed above in the context
of Guntharp’s Conditions Opinion about the lighting at the time of the accident, that is not an issue
that requires expert testimony. See Fed. R. Evid. 702(a). An ordinary juror does not need an expert

3

Defendant does not challenge Krehbiel’s opinion that Sears’s running lamps were on. Doc. 147 at 2 n.1.

7

to tell her how light it is at a certain time of day, absent any scientific testing measuring ambient
lighting—something Krehbiel admitted he did not do. Beyond that, there are several fact witnesses
who observed the conditions at the time of the accident first-hand and can testify to how light it
was.
The question about whether Krehbiel may present his lighting recreation—in the form of
video and photographs—to the jury is a separate question. As a preliminary matter, the parties
dispute whether Krehbiel’s video and photos demonstrating lighting conditions at the intersection
are an attempt to reconstruct the accident or, as Plaintiff contends, are merely demonstrative
evidence that illustrate certain scientific principles. This dispute matters because different
standards apply depending on the type of evidence. Reconstructions or simulations are admissible
if they are “made under conditions which are substantially similar to those which are the subject
of the litigation.” Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1442 (10th
Cir. 1992). But media not meant to depict the accident in question, and which only demonstrates
mechanical principles, only need to be conducted under similar conditions. Id.; see also S.V. v.
Midwest Coast Transp., Inc., 2004 WL 3486464, at *2 (D. Kan. 2004) (“Regarding films or videos,
the case law has long distinguished between films or videos which simulate actual events and those
which simply illustrate mechanical principles.”). The higher standard for recreations is due to the
concern that recreations are significantly more likely to confuse the jury. Altman v. Bobcat Co.,
349 F. App’x 758, 763 (3d Cir. 2009).
A district court has wide discretion in determining the admissibility of experiments. Gilbert
v. Cosco Inc., 989 F.2d 399, 402 (10th Cir. 1993). In determining whether proposed evidence is a
reconstruction or merely demonstrative, courts consider how close the media is to simulating the
accident versus how much it simply demonstrates abstract scientific principles. See id.; McKnight

8

By & Through Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1994). “The more
blurred that distinction becomes, the greater the risk for prejudice.” Gilbert, 989 F.2d at 403.
Courts generally look to whether the media is sufficiently close in appearance to the original
accident and whether it could create a risk of misunderstanding by the jury. Jodoin v. Toyota Motor
Corp., 284 F.3d 272, 278-79 (1st Cir. 2002). In such cases, the higher “substantially similar”
standard applies. Id.
Here, the Court has reviewed the still photos in Krehbiel’s report, Doc. 147-7 at 7-8, and
the video provided, see Doc. 154.4 The images were taken on December 21, 2019, at approximately
5:23 p.m.—almost exactly one year to the minute after the accident. Other images were taken on
July 11, 2019, at approximately 9:02 p.m., which is just after sunset for that time year. They are
taken from the driver’s seat of a 2011 Ford F-250 positioned at the stop sign in the northbound
lane of 28th Road—the vantage of Defendant right before the accident and in a similar vehicle.5
A 1999 black Ford F-250—the same vehicle Sears was driving with Plaintiff as a passenger—was
positioned in the westbound lane of Avenue J. The still images show the black truck approaching
the intersection. The video reflects the black truck approaching and passing through the
intersection. The still images are taken from the video.
On these facts, the Court concludes this video is a recreation of the accident scene and is
therefore subject to the “substantially similar” standard. Although the video obviously does not
depict the accident, the video recreates everything else. Instead of just documenting the
approximate lighting of the time of the accident—something that could at least arguably fall under
the lower standard that applies to media that simply illustrate mechanical or scientific principles,

4

Defendant states in his motion that there are many videos and photographs, but that the photos in Krehbiel’s report
and the video submitted to the Court are exemplars. Doc. 147 at 3 n.2.

5

Krehbiel’s report states that a 2011 Ford F-250 exemplar was used. Defendant was driving a 2014 Ford F-250.

9

Krehbiel’s videos and photographs go further and create images that are sufficiently close in
appearance to the original accident. See Four Corners Helicopters, 979 F.2d at 1442. This
resemblance is what crosses the line into the realm of reconstruction and gives rise to the
requirement of substantial similarity. Frederick v. Swift Transp. Co., 616 F.3d 1074, 1083 (10th
Cir. 2010) (“However, Reed’s proposed studies feature Reed behind the wheel of a tractor-trailer
substantially similar to those involved in the accident and doing actions substantially similar to
those that Swift’s driver and the driver of the Yellow tractor-trailer did . . . . These studies clearly
go beyond mere trucking safety or regulatory compliance and into the realm of accident
reconstruction . . . .”); see also Muth v. Ford Motor Co., 461 F.3d 557, 566-67 (5th Cir. 2006).
Notably, it’s not just lighting—as a scientific principle—depicted in the video, but also the
visibility of the vehicles involved. Krehbiel testified as much, stating that the purpose of the video
“was to document what the truck looked like as it approached the intersection, and also to
document the lighting conditions at the time.” Doc. 151-1 at 80. The Court also notes that Plaintiff
often refers to Krehbiel’s media as a reconstruction or recreation.6
Accordingly, Krehbiel’s reconstruction must be shown to have been taken under conditions
substantially similar to the accident to be admissible. Four Corners Helicopters, 979 F.2d at 1442.
“Substantially similar” does not mean identical, but the conditions “must be sufficiently similar to
provide a fair comparison.” Id.; see also Jodoin, 284 F.3d at 279 (noting that the “substantial
similarity” standard is not akin to “virtually identical”). The standard turns on the theory of the

6

See Doc. 151 at 2 (referring to “demonstrative evidence which seeks to reproduce to some extent the light
conditions at the time of wreck”); 3 (noting that Plaintiff’s attorneys asked Krehbiel to “us[e] data to recreate
conditions as nearly identical as scientifically possible” and “to recreate the light conditions due to weather, time
of day, and time of year”); 7 (stating that “Krehbiel returned on two different occasions to faithfully recreate the
light conditions”); 9 (“Krehbiel did faithfully recreate the visibility . . .”).

10

case and the specific variables alleged to have contributed to the accident. See Jodoin, 284 F.3d at
279-80.
Here, the parties primarily dispute whether Krehbiel’s reconstruction was taken under
similar weather conditions as existed the evening of the accident. Plaintiff contends that, while
some evidence suggests it was cloudy or overcast, other evidence suggests it was not. Defendant
has presented evidence that it was cloudy at the time of the accident. Defendant also points to other
factors that call into question whether Krehbiel’s reenactment is substantially similar to the actual
accident. Doc. 157 at 5.
The Court shares Defendant’s concerns about whether Krehbiel’s reenactment is
substantially similar to the accident. The Court is also concerned that the jury not be confused or
misled. However, on the current record, the Court is unable to conclude whether Krehbiel’s media
is substantially similar enough to be admissible because there are disputed questions of fact about
the circumstances of the accident. Accordingly, the Court will deny Defendant’s motion without
prejudice to refiling at trial. Krehbiel will not be permitted to testify about or present the media
until after the Court is able to voir dire him about his reenactment and determine whether the
circumstances of the reenactment were substantially similar to the accident.7
C.

BiFulco

Defendant seeks to exclude the testimony of BiFulco, Plaintiff’s life-care planner, as
unreliable. Defendant does not challenge BiFulco’s qualifications. Doc. 159 at 2. Defendant
instead seeks to exclude BiFulco’s report as unreliable for two reasons. First, BiFulco did not

7

As noted above, Defendant does not challenge Krehbiel’s opinion that Sears’s running lamps were on. Doc. 147
at 2 n.1. Accordingly, Krehbiel will be able to testify as to that opinion without restriction.

11

consider more recent medical records or testimony. Second, BiFulco’s recommendations are not
supported by or based on any recommendations by Plaintiff’s treating physicians.
As a preliminary matter, it is not clear whether Plaintiff intends to seek damages for all the
costs projected by BiFulco—something Defendant points out and Plaintiff does not address.
BiFulco’s report projects future medical expenses over the course of Plaintiff’s life of
$1,384,648.50, which includes $654,160 in home care/home services. Doc. 145-1 at 13. In the
pretrial order, Plaintiff only seeks future medical expenses of $654,160—the amount projected by
BiFulco just for home care/home services.8 See Doc. 127 at 5. Thus, it is unclear whether Plaintiff
has abandoned the other projected costs stated in BiFulco’s report, or whether Plaintiff just seeks
some amount of all the future expenses projected by BiFulco but in lesser amounts. Although it
would have been helpful for Plaintiff to address this discrepancy in the briefing, the Court finds it
unnecessary to reach this issue given its finding that BiFulco’s opinions lack reliability.
BiFulco’s report is dated April 22, 2019. Doc. 145-1 at 2. It states that he reviewed
Plaintiff’s medical records from December 21, 2018, through February 7, 2019, and that he
obtained information directly from Plaintiff on March 28, 2019. Id. BiFulco’s report states that his
conclusions, medical cost projections, and recommendations are based on, in part, a
comprehensive review of available medical records. Id. at 4.
Defendant first argues that BiFulco failed to consider some of Plaintiff’s medical records
from 2020, and that those medical records contradict some of BiFulco’s recommendations. But
questions about the sources of an expert’s opinion go to the weight to be assigned to that opinion,
rather than admissibility, and are for the trier of fact to determine. Escalante v. LifePoint Hosp.

8

The pretrial order also requests $757,841.97 (ongoing) in past medical expenses, $2 million in past non-economic
loss, $2 million in future non-economic loss, $3,672 in current wage loss, and $3 million in future wage loss. Doc.
127 at 5-6.

12

Inc., 2019 WL 2743910, at *5 (D. Kan. 2019). In other words, to the extent BiFulco did not
consider more recent medical records, that is fodder for cross examination.
Defendant’s second argument is that there is no basis for BiFulco’s recommendations about
the necessity or frequency of the services he recommends. On this point, the Court generally
agrees. Plaintiff’s response to Defendant’s motion repeatedly asserts that BiFulco’s contentions
are based on and cite to specific recommendations of his treating physicians. See, e.g., Doc. 152
at 2-3, 6, 8. But BiFulco’s report does not reflect this. Rather, BiFulco’s report relies on the medical
record and on Plaintiff’s statements to cite certain symptoms or diagnoses. He then cites to “clinical
practice guidelines” to project future care needs—care needs that apparently do not vary for the
next 62 years. See Doc. 145-1 at 8-11.9 BiFulco then calculates future costs based on those
projected future care needs. But with only a few exceptions, BiFulco cites nothing, other than
“clinical practice guidelines,” in support of what future care Plaintiff will actually need. These
“clinical practice guidelines” fail to support BiFulco’s recommendations, without something more.
See M.D.P. v. Middleton, 925 F. Supp. 2d 1272, 1275-76 (M.D. Ala. 2013) (“Deutsch also looks
at Clinical Practice Guidelines and recent research literature. . . . Deutsch explains in his deposition
that he does not make medical recommendations, but pulls recommendations from medical
records, or gets them from treating doctors.”). Here, there is nothing more. This fails the reliability
test under Daubert. See Queen v. W.I.C., Inc., 2017 WL 3872180, at *4 (S.D. Ill. 2017) (excluding

9

For example, BiFulco notes that Plaintiff sustained a traumatic brain injury. “Clinical practice guidelines”
recommend neurosurgery consultations and follow ups for evaluations, diagnostic studies, and further advanced
management. Accordingly, BiFulco includes costs for two neurosurgery evaluations every year for the next 62.9
years (Plaintiff’s life expectancy), at a total cost of $49,691. Doc. 145-1 at 8, 14. But other than the reference to
“clinical practice guidelines,” there is no suggestion that any of Plaintiff’s doctors have ever recommended, or
even suggested, that Plaintiff would need 125 neurosurgery evaluations over the course of his lifetime. And the
only “clinical practice guidelines” cited in BiFulco’s report are two websites, one which provides general
information “About Traumatic Brain Injury,” and another that explains generally what neurologists do. See id. at
7. Neither supports a recommendation that Plaintiff will require two neurosurgery evaluations every year for the
rest of his life. The same is true for the other websites cited by BiFulco. See id.

13

BiFulco’s life-care plan because “BiFulco’s report sets forth recommendations that are
unsupported by the medical records generated by Queen’s treating physicians, and BiFulco fails
to explain the basis for his additional treatment recommendations and valuations”).
Although not binding, the Court finds the decision in Queen persuasive. There, BiFulco
submitted a life-care plan for the plaintiff based on a review of the medical records and an
examination of the plaintiff. Id. at *4. Although the court found him to be qualified, id. at *3, it
concluded his methodology and reasoning were “not based on more than subjective belief and
unsupported speculation,” id. at *4 (emphasis in original). This was, in part, because BiFulco relied
on his own assessment of the plaintiff, not on the assessment of his treating physicians. Id. The
court went on to note
Dr. BiFulco’s recommended care plan suggests multiple treatments
that are neither supported by Queen’s medical records, nor
recommended by Queen’s treating physicians. Dr. BiFulco’s report
and his deposition testimony fail to provide insight into the methods
by which BiFulco reached the conclusions that Queen required
extensive physical therapy, massage therapy, mechanical traction,
intersegmental traction, electrical stimulation, muscle stimulation,
ultrasound, trigger point injections, steroid injections, and anesthetic
blocks. None of Queen’s treating physicians recommended those
proposed treatments; Dr. BiFulco never ordered any additional
diagnostic tests; Dr. BiFulco never spoke to Queen after that initial
examination; he never spoke to any of Queen’s family members; and
he never spoke to Queen’s treating physicians[.]
Id. Because BiFulco offered no basis for his opinion and failed to explain his methodologies, his
conclusions were excluded as improper ipse dixit. Id. at *5.
The Court does not dispute on a general level that life-care planners may be qualified to
testify to a patient’s future care needs and the costs of that care. See M.D.P., 925 F. Supp. 2d at
1275. In many cases, those recommendations come from a patient’s doctors. See Watson v. Taylor,
2006 WL 8440590, at *4 (D. Kan. 2006) (“Plaintiff argues that Patrick Griffith, M.D., one of her

14

treating physicians, already has provided an appropriate foundation for all of the future life care
needs outlined in Ms. Allison’s report and referenced in Professor Ward’s report.”); O’Shea v.
Welch, 2002 WL 1974046, at *2 (D. Kan. 2002) (“Tracy Wingate, a qualified expert life care
planner, testified that she discussed and confirmed the future medical needs of plaintiff through
communications with Dr. Burton.”); Snider v. New Hampshire Ins. Co., 2016 WL 3193473, at *2
(E.D. La. 2016) (“[T]his Court allows life care planners to testify as to future healthcare needs,
predicated upon the testimony of treating physicians as to the reasonable need for such care, and
the cost of such care.”). It’s not enough to base future care needs on speculation. See State Farm
Fire & Cas. Co. v. Bell, 30 F. Supp. 3d 1085, 1109 (D. Kan. 2014) (allowing certain testimony but
excluding other recommendations where “[t]he record provides no reliable evidence to support
Lampton’s opinion that plaintiff will require these procedures in the future”).
The only specific recommendations of Plaintiff’s doctors referenced in BiFulco’s report
are that, as of February 2019, he was recommended to use a sling for his right shoulder, Doc. 1451 at 8, and that a doctor recommended an MRI of his neck and brachial plexus, and an EMG study
of his upper extremity, id. at 10. BiFulco appropriately includes one-time future costs for the MRI
of Plaintiff’s neck and brachial plexus and the EMG of his upper extremity, id. at 17. But BiFulco
takes the sling recommendation, along with a description of Plaintiff’s shoulder injury and
recommends two orthopedic evaluations each year for the rest of Plaintiff’s life, id. at 14, even
though the only recommendation of Plaintiff’s doctor was that he wear a sling in 2019. Like
BiFulco’s recommendation based only on “clinical practice guidelines,” this is far too speculative.
Finally, Plaintiff argues that even if BiFulco’s report is not based on physician
recommendations, it would still be admissible because some courts have found that there is no
requirement that a life-care planner consult with treating physicians before formulating a life-care

15

plan, especially where the life-care planner is a medical professional, as BiFulco is. See Doc. 152
at 12. The Court acknowledges that there are divergent views on whether a life-care planner must
consult with treating physicians. See Durr v. GOL, LLC, 2019 WL 6464971, at *4 (E.D. La. 2019)
(citing cases). But here, not only did BiFulco not rely on recommendations of Plaintiff’s treating
physicians, the Court is unable discern any methodology he relied on to conclude that Plaintiff
requires such extensive care for the rest of his life, other than reciting various injuries he had in
2018 and 2019. Nor is the fact that BiFulco is a medical professional sufficient, standing alone,
especially where his report does not indicate that any of his opinions are based on his experience
and training. See Queen, 2017 WL 3872180, at *5 (“Here, BiFulco is a licensed physiatrist without
any orthopedic expertise. Given that plaintiff failed to establish a standard for a physiatrist to offer
these opinions, the Court finds that BiFulco’s opinion is not reliable and not based on proper
methodology.”).
Accordingly, the Court concludes that BiFulco’s projections about Plaintiff’s future
medical needs are not reliable and must be excluded. Because BiFulco’s cost estimates are based
on those needs, the cost estimates must also be excluded. The only exception is BiFulco’s
projections regarding an MRI of Plaintiff’s neck and brachial plexus, and an EMG of his upper
extremity. BiFulco may testify about that recommendation and the associated projected future
costs (in the amount of $2,550.00).
D.

Tremp

Finally, Tremp has offered opinions about Plaintiff’s future vocational abilities. Defendant
does not challenge Tremp’s qualifications in the field of vocational rehabilitation. Doc. 138 at 15.
Instead, Defendant argues that Tremp’s opinions lack factual foundation, are not based on any
discernible methodology, and are speculative.

16

Regarding the factual foundation for Tremp’s opinion, Defendant again points to facts in
the record that contradict facts and assumptions made by Tremp. But as explained above, questions
about the sources of an expert’s opinion go to the weight to be assigned to that opinion—rather
than admissibility—and are for the trier of fact to determine. Escalante, 2019 WL 2743910, at *5.
Having reviewed Defendant’s four Daubert motions, the Court is well aware that Defendant
emphatically disputes the characterization of Plaintiff’s current condition, based on his more recent
medical records and other testimony in the case. But the Court is confident that Tremp’s opinion
on this score can be tested by vigorous cross examination.10
Defendant also seeks to exclude Tremp’s testimony because his methodology is “nonexistent” and his opinions are impermissible ipse dixit. The Court disagrees. Tremp’s report states
that his methodology is based on the RAPEL method, which “assesses relevant factors for
determining vocational damages (if any).” Doc. 144-1 at 3. The report states that “RAPEL is a
standardized methodology that is commonly used by vocational rehabilitation professionals” and
“has been peer reviewed numerous times and is a widely accepted methodology within the field
of Vocational Rehabilitation.” Id. According to Tremp’s report, the RAPEL method is based on
consideration of five factors. Id. at 3-4.
Defendant does not challenge the validity of the RAPEL method, which other courts have
recognized as valid. See Morgan v. Jacques, 2010 WL 11537864, at *3 (D. Vt. 2010). Rather,
Defendant contends that Tremp cites this method but then “does nothing to explain how those
factors lead to his opinions.” Doc. 138 at 12. Although the Court agrees that Tremp’s report could

10

The Court does note Defendant’s argument that Tremp reviewed BiFulco’s report. See Doc. 144-1 at 4. BiFulco’s
report has, in large part, been excluded by this order. To the extent Tremp relied on BiFulco’s recommendations
in reaching his own conclusions, those conclusions would now be without support. But it is unclear which of
Tremp’s conclusions are based on BiFulco’s report, as Tremp also reviewed Plaintiff’s medical records and another
expert report, and he interviewed Plaintiff. Accordingly, although the Court denies Defendant’s motion as to
Tremp, the denial will be without prejudice to the extent Tremp relied on BiFulco’s findings.

17

go a little further at connecting the dots, it does not agree that he abandons the RAPEL factors
altogether.
Tremp’s report states that the RAPEL method considers five factors: (1) rehabilitation plan,
(2) access to the labor market, (3) placeability, (4) earning capacity, and (5) labor force
participation. Doc. 144-1 at 4. After listing Plaintiff’s background, impairments, and employment
and educational background, Tremp opines on Plaintiff’s post-injury vocational capacity. In doing
so, he considered Plaintiff’s transferable skills, his access to the labor market, accommodations
and placeability, his labor force participation, and his earning capacity. Id. at 6-8. These factors
largely match up with the RAPEL factors he listed. See Morgan, 2010 WL 11537864, at *3
(allowing for slight modification to the RAPEL methodology, noting testimony that it requires a
“considerable amount of discretion in its application”). In considering these factors, Tremp tied
them to Plaintiff’s condition and offered his opinion that his conditions will limit his access to
vocational opportunities, will cause him to require accommodations that can limit employers’
willingness to hire him, that his conditions will reduce his ability to participate in the labor force,
and that his earning capacity will be limited as a result. Doc. 144-1 at 6-9. Based on this, the Court
cannot say his methodology is non-existent.
Finally, Defendant claims Tremp’s conclusions are speculative. But much of this argument
involves pointing to facts in the record that Defendant believes run counter to Tremp’s conclusions.
See Doc. 138 at 14. Again, the Court is confident that Defendant will be able to address these
concerns on cross examination.
IV.

CONCLUSION
The Court considered each motion. For the reasons discussed above, the Court grants

Defendant’s motion as to Guntharp, denies without prejudice Defendant’s motion as to Krehbiel,

18

grants Defendant’s motion as to BiFulco with a limited exception, and denies Defendant’s motion
as to Tremp.
THE COURT THEREFORE ORDERS that Defendant’s motion to exclude Guntharp’s
testimony (Doc. 139) is GRANTED.
THE COURT FURTHER ORDERS that Defendant’s motion to exclude Krehbiel’s
testimony about his reconstruction (Doc. 146) is DENIED WITHOUT PREJUDICE. Defendant
may reassert this motion at trial so that the Court can evaluate whether Krehbiel’s reconstruction
is substantially similar to the accident.
THE COURT FURTHER ORDERS that Defendant’s motion to exclude BiFulco’s
testimony (Doc. 141) is GRANTED except as to BiFulco’s projection about Plaintiff’s
recommended MRI and EMG.
THE COURT FURTHER ORDERS that Defendant’s motion to exclude Tremp’s
testimony (Doc. 136) is DENIED.
IT IS SO ORDERED.
Dated: June 3, 2021

/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE

19