Georgel v. Preece et al

Filing 147

MEMORANDUM OPINION & ORDER, 1) granted in part and denied in part 115 MOTION to Exclude by Philippe Georgel 2) Motion is granted to the extent it seeks to exclude Opinions 1,2,3,4,and 6 and 3) Motion is denied to the extent it seeks to exclude Opinion 5.. Signed by Judge David L. Bunning on 8/6/15.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT ASHLAND
CIVIL ACTION NO. 13-57-DLB-EBA
PHILIPPE GEORGEL

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

DEFENDANT

***************
I.

Introduction

This is a personal injury lawsuit in which Plaintiff Phillippe Georgel seeks to recover
damages from Defendant State Farm Mutual Automobile Insurance Company (“State
Farm”) for injuries he sustained during a motorcycle accident in August 2012. With fact
discovery substantially complete, Georgel now moves to exclude the testimony of expert
witness Alfred Cipriani, who plans to opine on behalf of State Farm regarding a number of
issues, including the cause of the accident. (Doc. # 115). For the reasons discussed
below, the Motion to Exclude will be granted in part and denied in part.
II.

Factual and Procedural Background

On August 12, 2012, Georgel and three companions were riding their motorcycles
near the city of Louisa, in Lawrence County, Kentucky. (Doc. # 116 at 2-3). The riders
were traveling south on U.S. 23 when they arrived at the intersection of Kentucky State
Route 32. (Doc. # 116-4 at 3). As the group prepared to turn right, a Chevrolet pickup

1

truck approached from the east. (See id.) While his companions turned ahead of the
oncoming truck, Georgel waited for the truck to pass and then made his turn. (Id.) The
truck, now in between Georgel and his fellow riders, belonged to former defendant
Waynwright Preece. (Doc. # 116 at 2).
Route 32 has one lane for each direction of traffic, which are separated by double
yellow dividing lines. (Doc. # 116-7 at 15). After turning, Georgel was traveling in the
westbound lane directly behind Preece. (Id.) He continued on this path for approximately
15 seconds when Preece began to slow his truck and pull over to the shoulder of the road.1
(Id.) Based on the truck’s position and speed, Georgel assumed that Preece was allowing
him the opportunity to pass, so he accelerated his motorcycle while staying in the
westbound lane. (Doc. # 116-1 at 4). However, before he could overtake the truck, it
began to turn left towards Willow Drive, a road that intersects with Route 32 from the south.
(Id.) Due to the proximity of the vehicles when Preece began his turn, Georgel was forced
to brake hard and “lay his bike down” in order to avoid a collision. (Id.) He slid for
approximately 80 feet and came to rest in a nearby field. (Doc. # 116-7 at 16). Georgel
did not cross the double yellow dividing lines until after his bike went down, and though he
incurred significant injuries during the slide, he never made contact with Preece’s truck.
(See Doc. # 116-2 at 4).

1

Georgel testified that “if [the truck] was not a complete stop, that [it] was very, very close
to a complete stop.” (Doc. # 116-1 at 4). He added that “[t]he [truck] is not at all on the lane; the
[truck] is on the side.” (Id.) Cipriani emphasizes that Georgel also gave testimony suggesting that
Preece’s truck might have been partially within the road, as opposed to completely on the shoulder.
However, Georgel’s Motion resolves any doubt as to where he believed Preece’s truck was located
when he attempted the pass. “[T]he Preece vehicle was completely off the traveled portion of
Route 32 and Plaintiff’s lane of travel was clear.” (Doc. # 116 at 2).
2

Preece recalls the incident differently in certain key respects. While he admits to
gradually slowing his truck, he states that he did so only to prepare for a left-hand turn onto
Willow Drive, not because he intended to allow Georgel to pass him from behind. (Id. at
4-5). Moreover, he insists that his truck was completely within the westbound lane when
he started the turn and did not enter the shoulder lane at any point before then. (Id.; see
also Doc. # 116-3 at 2). Preece concedes that his turn signals were not operational, and
that some of his break lights were not working, yet he contends that the accident was
caused by Georgel’s high rate of speed and failure to maintain a proper lookout. (Doc. #
116-3 at 2-3).
Two of Georgel’s companions gave depositions regarding the events of August 12,
2012. (Docs. # 116-4 and 116-5). Relevant here is their testimony vis-a-vis the position
of Preece’s truck immediately before the accident. Chris Ferguson, who at the time was
driving ahead of Preece, stated that “[Preece] had pulled off to the right side of the road
and I seen the truck stopped on the right side of the road.” (Doc. # 116-4 at 3). Also
positioned in front of Preece, Chris Gibson similarly recalled that he “saw the pickup pull
off to the right of the road and stop . . . . I’m thinking well he pulled over to let Philippe go
by him because he knew he was with us. ” (Doc. # 116-5 at 4).
Local law enforcement officer Deputy Chuck Jackson responded to the scene and
later prepared an accident report. Deputy Jackson was questioned regarding the contents
of his report during a November 3, 2014 deposition, which revealed the following:
Q:
All right. I’ve gone through the report, and I don’t’ see anything noted,
but what physical evidence, if anything was there at the scene?
A:

There was none.

3

Q:

None? Okay.

A:
It was--my report was complied on what both parties had told me.
There was no physical evidence to indicate that Mr. Preece was on the right
or that Mr. Preece was on the left or if Georgel was speeding or was not
speeding. There was nothing there for me to observe.
Q:
And just so the record is clear, when we say “physical evidence,” let
me just ask you, there weren’t any skid marks, correct?
A:
I did not see any skid marks, no gouge marks, no debris, no yaw
marks. None of that was observed.
(Doc. # 116-6 at 3-4).
Georgel filed his complaint on May 2, 2013, alleging Preece was at fault and seeking
damages for injuries he sustained as a result of the accident. (Doc. # 1 at 2-4, ¶ 8-13).
Having learned that Preece was underinsured, Georgel also named State Farm as a
defendant because his motorcycle is covered by a State Farm policy which includes
benefits for damages caused by underinsured motorists. (Id.) Preece was dismissed from
the case by agreed order on February 6, 2014, at which point Georgel chose to proceed
against State Farm on all claims asserted. (Docs. # 57 and 58). Since then, the parties
have taken considerable discovery.
In the event this matter goes to trial, State Farm intends to call Alfred Cipriani as an
expert witness. Cipriani, an engineer and certified traffic accident reconstructionist, will
opine on a variety of issues, including the ultimate cause of the accident. (See Doc. # 1167). He has prepared a written report explaining his opinions in accordance with Federal
Rule of Civil Procedure 26(a)(2)(B). (Doc. # 116-7). He was deposed on October 8, 2014.
(Doc. # 116-8).

4

In his Motion to Exclude, Georgel contends that Cipriani’s testimony should be
excluded pursuant to Rule 702 of the Federal Rules of Evidence. (Doc. # 116). State Farm
responded on December 2, 2014, and Georgel replied in turn. (Docs. # 120 and 123).
Neither party has requested a Daubert hearing, and the Court has decided that one is not
necessary. Accordingly, the Motion to Exclude is ripe for review.
III.

Analysis
A.

Rule 702

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules
of Evidence. Rule 702 provides as follows:
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.
Thus, expert testimony is admissible under Rule 702 if (1) the expert is qualified and
the testimony is reliable, and (2) the evidence is relevant and helpful to the jury. Scott v.
Deerbrook Ins. Co., 714 F. Supp. 2d 670, 673 (E.D. Ky. 2010) (citing United States v.
Jones, 107 F.3d 1147, 1156 (6th Cir. 1997)). The decision to admit or exclude expert
testimony “ultimately lies in a fact-intensive analysis that is particular to each circumstance
and subject to the discretion of the trial court.” Scott, 714 F. Supp. 2d at 673 (citing Kuhmo
Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-51 (1999)). The proponent of the testimony

5

bears the burden of establishing admissibility, which must be shown by a preponderance
of the evidence. See Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir.
2001).
1.

Reliability2

Rule 702 provides a general framework for assessing the reliability of expert
testimony. A district court should ask whether the proffered testimony is “based on
sufficient facts or data,” whether it “is the product of reliable principles and methods,” and
whether “the expert has reliably applied the principles and methods to the facts of the
case.” Fed. R. Evid. 702. The focus, then, is on the validity of the principles and
methodology, “not on the conclusions that they generate.” Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 595 (1993). An expert seeking to offer his opinion in the courtroom
must employ “the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
In Daubert, the Supreme Court identified four factors to assist district judges in
making a reliability determination. These factors include (1) whether the expert's method
can be tested, (2) whether it is widely published or has been subjected to peer review, (3)
whether it has “a known or potential rate of error,” and (4) whether it is generally accepted
in the “relevant scientific community.” Daubert, 509 U.S. at 593-94. Because the test for
reliability is a “flexible one,” the Daubert factors are not regarded as a “definitive checklist.”
Id. To the contrary, they should be tailored to each case as necessary, see id., or

2

Having reviewed Cipriani’s background and experience, as detailed in pages 1 through
4 of the expert report, the Court find that he is qualified to offer expert testimony in the field of
accident reconstruction. (See Doc. # 116-7). Georgel openly concedes this point. (Doc. # 116 at
3, n.1). Therefore, the only issue to address under the first prong of Rule 702 is reliability.
6

disregarded completely if “they are [not] reasonable measures of the reliability of expert
testimony.” Gross v. Comm’r, 272 F.3d 333, 339 (6th Cir. 2001).
While Daubert involved scientific testimony, Rule 702 also contemplates expert
opinions that are based on “technical [or] other specialized knowledge.” Fed. R. Evid. 702.
When expert testimony is nonscientific, “experience alone--or experience in conjunction
with other knowledge, skill, training or education” can be sufficient to establish reliability.
Id. (see advisory committee notes); see also Kumho Tire Co., Ltd., 526 U.S. at 150 (noting
with regard to nonscientific experts that “the relevant reliability concerns may focus upon
personal knowledge or experience”).

However, where a witness relies primarily on

experience as the foundation for her testimony, “the witness must explain how that
experience leads to the conclusion reached, why that experience is sufficient basis for the
opinion, and how that experience is reliably applied to the facts.” Fed. R. Evid. 702 (see
advisory committee notes). If such explanations are lacking, “[a] district court is not
required to admit expert testimony ‘that is connected to the existing data only by the ipse
dixit of the expert. A court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered.’” Nelson, 243 F.3d at 254 (quoting General
Electric. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
Regardless of how a district court gauges an expert’s reliability, the baseline inquiry
is always whether the proffered testimony is “supported by appropriate validation.” In re
Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008). Ultimately, a judge’s task
is to verify that the expert’s theory or technique “works”:
The foundation must include a showing of the results when the technique
was used on prior occasions . . . [n]either the expert's voucher nor general
acceptance in the field nor even long term, repeated use of the theory
7

suffices . . . It is also clear that it is not enough for the witness to assert in
conclusory fashion that she is relying on her general ‘expertise,’ ‘knowledge,’
or ‘education.’ Those considerations can qualify the witness as an expert, but
they do not speak to the validity of the expert's theory or technique. To
provide a useful expert insight, the witness must identify a more specific
technique or theory. The witness must articulate that technique or theory.
Otherwise, the witness is venturing nothing more than a guess.
1 McCormick on Evidence, § 13 (7th ed. 1999).
Finally, the Sixth Circuit has held that district courts should be particularly skeptical
of expert testimony when the following "red flags" are present: "reliance on anecdotal
evidence, improper extrapolation, failure to consider other possible causes, lack of testing,
and subjectivity." Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir.
2012). "In addition, if a purported expert's opinion was prepared solely for litigation, that
may also be considered as a basis for exclusion." Id.
2.

Relevance

The other factor to consider under Rule 702 is relevance, which simply means the
expert testimony “will help the trier of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702(a). In order to properly assist the jury, however, the opinion
must concern matters that are “beyond the understanding of the average lay person.”
Seiber v. Estate of McRae, Case No. 11-CV-00111, 2013 WL 5673601, at *6 (W.D. Ky.
Oct. 17, 2013) (citing United States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004)
(internal quotations omitted)). “Proffered expert testimony generally will not help the trier
of fact when it offers nothing more than what lawyers for the parties can argue in closing
arguments.” Id.

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B.

Cipriani’s Report

Cipriani’s expert report contains the following six opinions:
1) There was no contact between the Chevrolet and the Kawasaki;
2) Mr. Georgel attempted to pass the Chevrolet in a “no passing” zone;
3) The turn signals and brake lights on the Chevrolet were not operational;
4) Mr. Georgel lost control of his Kawasaki as he attempted to pass the
Chevrolet while crossing the double yellow centerline;
5) Mr. Georgel was traveling at approximately 30-41 mph when he lost
control of his Kawasaki; and
6) Mr. Georgel’s accident was caused by his failure to maintain control of his
Kawasaki while attempting to pass the Chevrolet in a “no passing” zone of
the road.
(Doc. # 116-7).
According to the report, Cipriani conducted three procedures to arrive at these
opinions. (Id. at 9). First, he reviewed the materials within the accident file, including the
police report, the parties’ recorded statements, transcripts from five depositions,
photographs of the scene (taken two months after the accident), photographs of the
motorcycle, a repair estimate for the motorcycle, and Georgel’s interrogatories and
answers. (Id.) Second, he researched the dimensions and specifications of each vehicle.
(Id.) Finally, he explored the area surrounding the accident using street views and aerial
photographs from Google. (Id.) Cipriani testified that he never actually visited the scene
because the accident itself produced no useful physical evidence, such as gouge marks
or skid marks. (Doc. # 116-8 at 7).
In the analysis section of the report, Cipriani elaborates on his opinions in varying
degrees.

(Doc. # 116-7 at 15-17).

Opinions 1 and 3, which consist primarily of
9

uncontested facts, are discussed quite briefly. (Id. at 16). Opinion 2 is more involved,
however, as it required Cipriani to establish the position of Preece’s truck when it started
to turn left; i.e., whether it was partially within the westbound lane, or clear of the main road
and completely onto the shoulder. (Id.) After reviewing the “differing accounts presented
in statements and depositions,” Cipriani decided that the truck was still in the westbound
lane, at least to some degree. (Id.) This, along with the fact that Route 32's driving lanes
are separated by a double yellow dividing line, led to the conclusion that “Mr. Georgel
attempted to pass the Chevrolet in a ‘no passing’ zone.” (Id.)
Opinion 4 also rests on a number of predicate findings. Because Preece’s intentions
were unclear as he approached Willow Drive, Cipriani initially determined that Georgel was
“incorrect” in assuming that Preece was allowing him the opportunity to pass. (Id.) He then
explained that Georgel’s decision to “accelerate and attempt to pass . . . contributed to [his]
inability to slow sufficiently or to maintain control of the Kawasaki.” (Id.) He further
declared that Georgel would have avoided the collision “[h]ad he not accelerated for an
attempted pass.” (Id.) These findings directed the opinion that “Mr. Georgel lost control
of his Kawasaki as he attempted to pass the Chevrolet while crossing the double yellow
line.” (Id. at 17).3

3

Cipriani conceded that Opinion 4 is “inartfully phrased.” (Doc. # 116-8 at 13). He
acknowledged that Georgel did not attempt to pass by crossing over the double yellow dividing
lines, but rather started the pass within his own lane of travel and crossed over the yellow lines only
after Preece began to turn left, in order to avoid a collision. (Id.) To this point, Cipriani explained:
So the initial effort of Mr. Georgel was to pass in a no passing zone in the
westbound lane. And then because of the movement of the pickup truck, whether
he did or didn’t take that left, Mr. Georgel then reacted to that and steered further
to the left going over the double yellow line, probably going down at that point and
sliding down to his final rest position. But the original pass was in the [westbound]
lane.
10

Opinion 5 required Cipriani to conduct “a speed analysis for the Kawasaki based on
the approximate final rest position, the sliding distance range given by Mr. Preece, and
using a frictional drag coefficient of 0.5 to 0.7.” (Id.) In doing so, he determined that “Mr.
Georgel was traveling between 30 and 41 mph when he lost control of his Kawasaki.” (Id.)
Finally, Opinion 6 consists of a single statement, and is precisely what it claims to be. “In
summary, Mr. Georgel’s accident was caused by his failure to maintain control of his
Kawasaki while attempt to pass the Chevrolet in a ‘no passing’ zone of the road.” (Id.)
During his October 8, 2014 deposition, Cipriani was pressed further regarding the
manner in which he formulated his opinions. Many of the exchanges prove quite relevant
in determining admissibility under Rule 702. With respect to Opinion 2, for instance,
Georgel’s attorney asked Cipriani what “principles of traffic accident reconstruction” he
used to establish that Georgel attempted to pass in a no passing zone. (Doc. # 116-8 at
12). Cipriani replied:
Oh, that’s too easy. It’s a two lane road with a double yellow line. That
means no passing . . . . Now . . . if the truck is completely off the road so that
there is a completely clear lane, well, then he’s not passing anybody that’s
in the road. But all the testimony indicates that that pickup truck is still in the
road with most of the vehicle in the road.
(Id.) Regarding the truck’s position, Georgel’s attorney inquired, “So you’re relying upon
the subjective statements of the witnesses and the parties?”, to which Cipriani responded,
“Essentially, yes.” (Id. at 13). Clarifying further, the attorney asked, “And you are
determining what weight to give those statements and testimony, correct?” (Id.) Cipriani
answered:

(Id.)
11

To some degree that would be true. But again, we have a concurrence shall
we say of the testimony first of the involved parties, even though they were
friends of Mr. Georgel’s, as to how far the Chevrolet was off the road or not
off the road . . . . Again, you know, it would appear from all the testimony .
. . that Mr. Preece was 1 to 2 feet over the white line with his car.4
(Id. at 13-14). (emphasis added).
Georgel’s attorney then asked how Cipriani’s education, training or experience made
him more qualified than a judge or jury to evaluate the witnesses’ testimony. (Id. at 14).
Evading the issue at first, Cipriani replied that “[a]n educated accident reconstructionist
would get to the same result, let’s just put it that way.” (Id.) The attorney restated his
question, and Cipriani answered, “Engineering training, vehicle accident reconstruction for
the last 34 years, appreciation for what people do out on the road. I think it makes . . . a
significant difference on being able to read these various depositions and statements and
evaluate what they’re saying than the average individual.” (Id.) Cipriani later offered a
more pedestrian explanation for the weight he afforded each witness’s testimony. (Id. at
15). He reasoned that Georgel and Preece were potentially biased due to their direct
involvement in the accident, and discounted their statements as a result. (Id.) However,
he deemed the other riders “independent,” and thus gave more credence to their
description of the accident, particularly with respect to where the truck was located. (Id.)

4

Despite some inconsistencies in his testimony, Georgel’s position continues to be that
Preece’s truck was entirely off the road when it began to turn left onto Willow Drive. See supra note
1. Georgel’s companions, Ferguson and Gibson, have provided similar accounts, (Doc. # 116-4
at 3; Doc. # 116-5 at 4), although according to Cipriani, they have also made statements suggesting
that the truck was only 1 to 2 feet off the side of the road. (Doc. # 116-8 at 13). Presumably, these
statements are contained in the full deposition transcripts, which have not been filed with the Court.
Finally, Preece’s position is and always has been that he never entered the shoulder lane prior to
turning. (Doc. # 116-3 at 2). While Cipriani contends that there is a “concurrence” among the
various parties’ accounts, obviously he was required to resolve these testimonial discrepancies in
rendering his opinion.
12

The exchange eventually turned to Opinion 6, at which point Georgel’s attorney
asked how Opinion 6 was any different from Opinions 2 or 4. (Id. at 16). Cipriani
explained, “It’s a summary conclusion I guess is the best way to put it. But yes, number
two and number four are part of that.” (Id.) State Farm then began its examination, asking
first if it is typical to have a case involving no physical evidence at the scene of the
accident. (Id. at 16-17). Cipriani estimated that it occurred roughly 25 percent of the time.
(Id.) State Farm also inquired, “In your 34 years of accident reconstruction and engineering
experience, how often do you have a case where you don’t look at any witness statements
whatsoever?” (Id. at 17-18). Cipriani confirmed that he relies on witness statements for
every accident he reviews. (Id. at 18).
C.

Except for Opinion 5, Cipriani’s Testimony will be Excluded
1.

Opinions 2, 4 and 6 are unreliable and irrelevant

In this case, the issue of liability will depend largely upon whose side of the story the
jury believes. If Preece, after pulling his truck completely off the road, suddenly turned left
from the shoulder lane without using a turn signal, the jury could certainly find that he
caused the accident along with Georgel’s injuries. If, on the other hand, Preece remained
in his lane and was simply slowing down to turn left onto Willow Drive, then, despite the fact
that his truck lacked properly functioning turn signals and break lights, the jury could
reasonably conclude that Georgel is to blame, as he attempted to pass in a lane that was
already occupied and designated a no passing zone.
Opinions 2, 4 and 6 are designed to persuade the jury that the latter scenario is what
actually occurred. In other words, they will be offered to show that Georgel was the cause
of the accident. However, in order to be admissible under Rule 702, the opinions must be
13

reliable and relevant. Daubert, 509 U.S. at 589. The Court will address each criterion in
turn.
i

Reliability

Cipriani’s position regarding the cause of the accident is not based on anything
resembling a scientific principle or method. Rather, he admits that due to the complete lack
of physical and objective evidence, he relied primarily on the subjective statements of
parties and witnesses, particularly in concluding that Preece’s truck remained partially
within the westbound lane. When asked what about his qualifications enabled him to
expertly weigh those statements, he cited his engineering training and 34 years of accident
reconstruction experience. While an expert may rely on experience to establish reliability,
he must “explain how that experience leads to the conclusion reached, why that experience
is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Fed. R. Evid. 702 (see advisory committee notes). Because Cipriani did none of these
things, the Court is left with only his ipse dixit to connect the proffered testimony with the
facts of this case.
Nonetheless, State Farm contends that Cipriani’s testimony is sufficiently reliable.
In support of this contention, it recites the various procedures from Cipriani’s expert report,
emphasizing that he “utilized the same time-tested accident reconstruction and analysis
techniques that he uses in every case to arrive at his opinions.” (Doc. # 120 at 8).
Similarly, State Farm observes that Cipriani’s reliance on the witness statements “was the
same” as in any case he reviews. (Id.) However, simply because an expert utilizes the
same procedures he employed in other cases does not establish that his testimony is
reliable. While such factors may “qualify the witness as an expert . . . they do not speak
14

to the validity of the expert’s theory or technique.” 1 McCormick on Evidence, § 13 (7th ed.
1999). Indeed, when it comes to establishing reliability, “[n]either the expert's voucher nor
general acceptance in the field nor even long term, repeated use of the theory suffices.”
Id. (emphasis added).
State Farm also relies on Clay v. Ford Motor Company, 215 F.3d 663 (6th Cir.
2000). There, two passengers in a Ford Bronco were killed when the car’s driver lost
control on the interstate. Id. at 666. The passenger’s parents brought suit against Ford,
claiming the Bronco was defectively designed, and retained an expert to explain how the
alleged defects caused the accident. Id. at 667. In doing so, the expert reviewed the police
report and the parties’ statements and testimony, and applied principles in engineering and
“dynamics,” which he defined as the “analysis of the forces that produce motion in objects.”
Id. at 668. He explained how he calculated the Bronco’s stability index and why he
believed it was too low. Id. He then opined that “Slonsky’s statement that the vehicle
‘overcompensated’ during the double lane change was consistent with the Bronco II’s
tendency to oversteer.” Id.
On appeal, the district court’s decision to admit the testimony was affirmed. Id. at
675. The Sixth Circuit, while acknowledging Ford’s criticism that the expert relied heavily
on the accident report and the parties’ statements and depositions, emphasized that Ford
had failed to challenge “the principle that dynamics can be used to analyze vehicle designs
and predict their motion.” Id. at 668. This point illustrates the crucial difference between
Clay and the case at hand. Though Cipriani relied on similar evidence to form the basis
for his opinions, he never connected the two with a legitimate theory or method. Therefore,
State Farm’s reliance on Clay is misplaced.
15

In summary, Opinions 2, 4 and 6 do not constitute reliable expert testimony. They
are not “supported by appropriate validation,” but rather are based almost exclusively on
the parties’ statements and testimony, which are highly subjective. The Court recognizes
that Cipriani weighed these statements in light of his experience in the field, but without
explaining why that experience provides a sufficient basis for his opinions, such efforts do
not satisfy the required standard under Daubert and Rule 702. Simply put, there is still “too
great an analytical gap between the data and the opinion proffered." Nelson, 243 F.3d at
254 (citing General Electric, 522 U.S. at 146).
ii.

Relevance

Even if Opinions 2, 4 and 6 were reliable, they would still be excluded. Expert
testimony must also be relevant, meaning it will help the jury to understand the evidence
or determine a fact in issue. Fed. R. Evid. 702. The cornerstone of Cipriani’s position is
that Preece’s truck was still partially within the westbound lane when it began to turn left.
Again, because there was no physical evidence at the accident scene, he admits that he
arrived at this conclusion by weighing the parties’ statements and testimony. In particular,
he considered the witnesses’ relationship to Georgel as well as the parties’ direct
involvement in the accident. (Doc. # 116-8 at 15). Such measures, though critical when
assessing a witness’s credibility, are not beyond the understanding of an average
layperson.5 In fact, assessing a witness’s credibility is what juries do in every trial.

5

State Farm suggests that Cipriani’s credibility determinations are just another part of the
“engineering and accident reconstruction analysis.” (Doc. # 120 at 4). However, the Court finds
this argument disingenuous. It is well-settled that “witness credibility is a jury function.” Burley v.
Gagacki, 729 F.3d 610, 621 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)).
16

Cipriani’s testimony is really nothing more than the jury should believe Mr. Preece’s version
of events over Plaintiff’s. If Cipriani is not allowed to testify, State Farm is perfectly capable
of communicating this same point during opening and closing statements. Because
testimony of this nature does not “assist the trier of fact,” it is not relevant under Rule 702.
See Seiber v. Estate of McRae, No. 1:11-CV-00111-TBR, 2013 WL 5673601, at *6 (W.D.
Ky. Oct. 17, 2013) (holding that a jury, when faced with two conflicting accounts, “does not
require specialized knowledge to determine the more reliable account.”).
Finally, the parties acknowledge that Opinions 2, 4 and 6 also pertain to the
applicable standard of care. In effect, Cipriani has opined that Georgel acted negligently
by attempting to pass in an occupied lane that was also designated a no passing zone.
Again, this opinion is highly irrelevant. The jury does not require technical or specialized
knowledge to ascertain whether or not Georgel breached his standard of care. On these
facts, the issue is a matter of common sense, or, as the parties suggest, governed by state
traffic laws. Cipriani’s testimony does not assist in either area.6 Thus, to the extent
Opinions 2, 4 and 6 bear on the applicable standard of care, they are excluded as
irrelevant. See Smithfield Packing Co. v. Armstrong Indus. Refrigeration & Maint. Serv.,
No. 11-282, 2013 WL 757210, at *4 (E.D. Ky. Feb. 27, 2013) (“[W]here the standard of care
is within the general or common knowledge of laypersons, an expert witness is not
necessary to establish the standard.”).

6

Cipriani admits that he did not consult any state traffic laws in concluding that it was
improper for Georgel to attempt a pass in a no passing zone. Even if he had, Cipriani does not
contend to be an expert in interpreting traffic statutes. (Doc. # 116-8 at 15).
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2.

Opinions 1 and 3 are also excluded

The parties agree that there was no contact between Georgel’s motorcycle and
Preece’s truck. Because the jury needs no help in establishing this fact, Opinion 1 is
patently irrelevant.

Similarly, the parties agree that Preece’s turn signal was not

operational. They also agree that the break lights were not working properly, except that
Georgel asserts none of them functioned, while Preece maintains that the brake light above
the cab still worked. Cipriani does not attempt to resolve this dispute, nor does he establish
or refute any of these facts through engineering principles or accident reconstruction.
Instead, he simply recites what the parties and witnesses have already said. This the jury
can do without. Therefore, Opinion 3 is also irrelevant.
3.

Opinion 5 is admissible

To arrive at Opinion 5, Cipriani conducted “a speed analysis for the Kawasaki based
on the approximate final rest position, the sliding distance range given by Mr. Preece, and
using a frictional drag coefficient of 0.5 to 0.7.” (Doc. # 116-7 at 17). Without claiming to
understand the ins and outs of this calculation, the Court is confident that Cipriani is
applying engineering and/or accident reconstruction principles that the average lay person
would not be familiar with. The principles appear to be valid, properly applied and squarely
within Cipriani’s area of expertise.7 Because Opinion 5 is both reliable and relevant, it is
admissible pursuant to Daubert and Rule 702.

7

For instance, when discussing this calculation during the deposition, Cipriani explained that
if Georgel’s sliding distance was lower or higher, the estimate speed would change
correspondingly. (Doc. #116-8 at 14).
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IV.

Conclusion

Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Georgel’s Motion to Exclude (Doc. # 115) be, and is, hereby GRANTED IN

PART and DENIED IN PART;
(2)

The Motion is granted to the extent it seeks to exclude Opinions 1, 2, 3, 4

and 6; and
(3)

The Motion is denied to the extent it seeks to exclude Opinion 5.

This 6th day of August, 2015.

G:\DATA\Opinions\Ashland\13-57 Granting Motion to Exclude.wpd

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