Hinkle et al v. Ford Motor Company

Filing 71

MEMORANDUM OPINION & ORDER: that plaintiffs' Mtn in Limine to Exclude Opinioin Testimony by State Troopers and to Exclude the Kentucky Uniform Police Traffic Collision Report and Related Documents (Record No. #34 ) is GRANTED, in part, and DENIED, in part. Signed by Judge Danny C. Reeves on 9/19/2012.(AKR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Frankfort)
KERRY HINKLE, Administrator of the
Estate of Kiara Hinkle, et al.,
Plaintiffs,
V.
FORD MOTOR COMPANY,
Defendant.

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Civil Action No. 3: 11-24-DCR

MEMORANDUM OPINION
AND ORDER

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As a final pretrial matter, Plaintiffs Kerry Hinkle, Administrator of the Estate of Kiara
Hinkle, Jason Turner, and Natya Stafford have moved the Court in limine to exclude the
testimony of certain state troopers during the trial of this matter. Additionally, they request that
the Court exclude from evidence the Kentucky Uniform Traffic Collision Report and related
documents (hereafter, “the Report”). [Record No. 34]1 Ford opposes the motion. [Record No.
43] It contends that, under relevant Sixth Circuit authority, the Court should allow the
introduction of the documents in issue and should allow Kentucky State Troopers Martin and
Collins to testify with respect to their investigation of the accident.

1

In prior opinions, the Court addressed the effect of in limine rulings [Record No. 68] as well
as the standard applied to the admission of expert testimony [Record No. 69]. And in its earlier
Memorandum Opinion and Order filed on September 13, 2012, the Court discussed the limitations
imposed by Rules 402 and 403 of the Federal Rules of Evidence. [Record No. 68] The record of this
proceeding will not be burdened further by repeating those matters. However, the Court’s
discussion in those opinions applies with equal force regarding the present motion.
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Although identified in the defendant’s preliminary list of trial witnesses on August 28,
2012, it does not appear that Ford identified either trooper as an expert witness in its Rule 26
disclosures or expert witness reports. As a result, neither individual will be allowed to offer
expert opinions during trial. However, the testimony of Trooper Martin2 and Trooper Collins
will not be excluded entirety. For example, the troopers will not be precluded from testifying
as fact witnesses, based on their observations and examination of the scene of the accident. The
Court also concludes that several pages of the Report contain inadmissible hearsay. The
defendant will be precluded from offering these materials because it has not demonstrated that
the subject documents have sufficient guarantees of reliability or trustworthiness.
I.
A. Proposed Testimony of the Kentucky State Troopers
The plaintiffs’ motion does not identify by name the individuals who are the subject of
their request. However, they contend that it would violate Rule 701 of the Federal Rules of
Evidence for state troopers to offer opinions regarding the accident in issue. Because the rule
limits the testimony of lay witnesses, the plaintiffs assert that the opinions of the troopers who
investigated the scene of the accident, interviewed witnesses, and prepared official reports
regarding the matter should be excluded. Plaintiffs cite a number of Kentucky cases in support
of their claim that such individuals are not qualified to offer opinions regarding events that they
2

Ford indicates in its response that Trooper Martin was recognized as an expert in the field
of accident reconstruction in Branam v. Burger, 2009 WL 2192637, at *4 (Ky. Ct. App. 2009). It
also asserts that “the training and experience of Trooper Martin ‘may well ultimately qualify him
as an expert.’” [Record No. 43, p. 3] However, Ford does not address the fact that neither Trooper
Martin nor Trooper Collins were identified as expert witnesses in the defendant’s Rule 26 expert
witness designations and reports.
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did not personally observe. See Ross Bros. Const. v. Moore, 2006 Ky. App. Unpub. LEXIS 973
(Ky. Ct. App. Mar. 24, 2006); Service Lines, Inc. v. Mitchell, 419 S.W. 525 (Ky. 1967);
Southwood v. Harrison, 638 S.W.2d 706, 708 (Ky. Ct. App. 1982).3
In response, Ford indicates that Tooper Martin is an accident reconstructionist for the
Kentucky State Police. As such, and presumably by virtue of his education, training and
experience, he is qualified to offer opinions regarding the cause of the accident. And as
indicated in the documents that the plaintiff seek to exclude from evidence, these opinions would
be based, in part, upon interviews and statements given by various third parties. Under relevant
federal and Sixth Circuit case law, Ford contends that such testimony is admissible. Dortch v.
Fowler, 2007 U.S. Dist. LEXIS 41615 (W.D. Ky. June 6, 2007)4; Logan v. Cooper Tire &
Rubber Co., 2011 U.S. Dist LEXIS 119934 (E.D. Ky. Oct. 17, 2011).
Absent a Daubert hearing, this Court is unable to determine whether either Trooper
Martin or Collins would be qualified to testify as expert witnesses in this case. However, further
evaluation of their training, education, and experience is unnecessary because Ford failed to

3

Although the plaintiffs’ motion seeks to exclude the troopers’ testimony in its entirety, they
concede that it would be proper for them to testify regarding the fact-finding investigation they
conducted such as “the measurements they took at the scene, their observations of the crash site, and
the statements of eyewitnesses if such statements are deemed to be admissible hearsay.” [Record No.
34-1, p. 4]
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In Dortch, Magistrate Judge Moyer concluded that the expiration of the disclosure deadline
was not a sufficient basis to exclude Officer Beauford from testifying as an expert witness because
he had given deposition testimony “more than a year ago.” Further, the parties were “well aware
of his opinions since before commencement of the action.” Notwithstanding those facts, the
magistrate judge concluded that his trial testimony would be confined to the scope of his report and
deposition testimony. Id. at *9. Here, no reports have been prepared and there is no indication in
the record that either trooper has been deposed.
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properly identify either trooper as an expert. As a result, the Court concludes that the plaintiffs
will be prejudiced if the troopers are allowed to testify as expert witnesses during the upcoming
trial. Thus, while Trooper Martin and Collins will not be precluded from testifying concerning
their investigation of the accident, they will not be allowed to offer opinions concerning the
cause of the accident. Likewise, they will not be allowed to testify concerning hearsay
statements received from third parties unless those statements are otherwise admissible under
the Federal Rules of Evidence.
B.

The Report

Rule 803(8)(C) of the Federal Rules of Evidence provides an exception to the hearsay
rule for reports or records of public offices setting forth factual findings resulting from an
investigation made pursuant to authority granted by law. Fed. R. Evid. 803(8)(C). However,
the Court has an independent obligation to assess the trustworthiness of the findings.
The Report which is the subject of the plaintiffs’ motion contains both hearsay and nonhearsay information. For example, the fourth page of the Report contains a drawing (presumably
prepared by Trooper Martin or Trooper Collins) depicting certain distances traveled. If the
information used to prepare the drawing was based on personal observations, that portion of the
report would be admissible. However, page two of the Report is based in large measure upon
statements of third parties given to the officer(s) at the scene of the accident. In relevant part,
the Report indicates, “another vehicle which was in the right lane began to swerve into the left
lane. The operator of unit 1 [Hinkle] swerved to the left to avoid the other vehicle and ran into
the median. . . .” Similar hearsay information is reflected in pages 7 through 9, 15, 18, and 19

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of the Report. [Record No. 34-2] At page 21 of the Report, the officer summarizes his findings.
Again, this summary appears to be based in large measure on the statements obtained from third
parties. It does not appear that any investigating officer conducted any physical examination of
vehicle following the accident. Without additional information, the officer’s conclusion that
“overcorrecting/over steering” was a contributing factor lacks sufficient reliability and
trustworthiness. Thus, Ford will not be allowed to offer the opinions contained in the Report.
II.
Ford has failed to identify either Trooper Martin or Trooper Collins as an expert witness
in its Rule 26 disclosures. As a result, it will not be allowed to call either person to offer expert
or opinion testimony during the trial of this matter. However, Ford is not precluded from calling
one or both as fact witnesses. Additionally, Ford may not offer into evidence portions of the
Kentucky Uniform Police Traffic Collision Report and related documents if those documents
contain hearsay statements of third parties or opinions of police officers concerning the cause
of the accident. Accordingly, it is hereby
ORDERED that the plaintiffs’ Motion In Limine to Exclude Opinion Testimony by State
Troopers and to Exclude the Kentucky Uniform Police Traffic Collision Report and Related
Documents [Record No. 34] is GRANTED, in part, and DENIED, in part.
This 19th day of September, 2012.

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