Martinez v. Cunningham, et al

Filing 89

ORDER AND REASONS granting in part and denying in part 59 Motion in Limine as stated herein. Signed by Judge Sarah S. Vance on 1/31/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS MARTINEZ

CIVIL ACTION

VERSUS

NO. 16-14896

DANTE CUNNINGHAM, ET AL.

SECTION “R” (5)

ORDER AND REASONS
Defendants move to exclude the expert testimony of Valery Rousseau. 1
For the following reasons, the motion is granted in part and denied in part.

I.

BACKGROUND
This case arises out of injuries sustained by plaintiff Nicholas Martinez

when the door of a transport trailer fell on him. Plaintiff alleges that on April
18, 2016, he was helping defendant Dante Cunningham load Cunningham’s
car and motorcycle into a transport trailer.2 The rear of this transport trailer
featured a large cargo door hinged at the bottom. 3 While the door usually
opened and closed by means of a cable and winch system, the system was
broken at the time.4

1
2
3
4

R. Doc. 59.
R. Doc. 1 at 2-3 ¶¶ 5-6.
Id. at 3 ¶ 7.
Id. at 3 ¶ 8.
1

According to plaintiff, he and Cunningham tried to pull the door down
manually.5 Because Cunningham, who is 6’ 8”, is much taller than plaintiff,
initially only Cunningham could reach the top of the door. 6

Plaintiff

positioned himself beneath the door and waited for Cunningham to lower it
to where plaintiff could reach it. 7 According to plaintiff, Cunningham then
let go of the door because it was too heavy, causing the door to crush
plaintiff’s legs and injure his back. 8 Cunningham testified in a deposition
that if plaintiff had held the door closer to the hinges from the beginning,
then the door would not have fallen. 9
Plaintiff sued Cunningham for damages on September 22, 2016.
Plaintiff added USAA Casualty Insurance Company, which provided liability
insurance to Cunningham, as a defendant on December 14, 2016.10 Trial is
set for February 26, 2018. Defendants now move to exclude the expert
testimony and report of Valery Rousseau, a physicist at Loyola University
New Orleans.11

5
6
7
8
9
10
11

Id. at 3-4 ¶¶ 8-9.
Id.
Id. at 4 ¶ 9; R. Doc. 63 at 2-3.
R. Doc. 1 at 4 ¶ 9.
R. Doc. 63-1 at 2.
R. Doc. 5.
R. Doc. 59.
2

II.

LEGAL STANDARD
Federal Rule of Evidence 702 gives the district court considerable

discretion to admit or exclude expert testimony. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997). Rule 702 provides that a witness “qualified as
an expert by knowledge, skill, experience, training, or education” may
provide opinion testimony when “scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702. To be admissible, Rule 702
requires that (1) the testimony be based on sufficient facts or data, (2) the
testimony be the product of reliable principles and methods, and (3) the
witness apply the principles and methods reliably to the facts of the case. Id.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
held that Rule 702 requires the district court to act as a gatekeeper to ensure
that “any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” 509 U.S. 579, 589 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (clarifying that the Daubert
gatekeeping function applies to all forms of expert testimony). The Court’s
gatekeeping function therefore involves a two-part inquiry. First, the Court
must determine whether the expert testimony is reliable, i.e., “grounded in
the methods and procedures of science.” SEC v. Life Partners Holdings, Inc.,
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854 F.3d 765, 775 (5th Cir. 2017) (quoting Johnson v. Arkema, Inc., 685 F.3d
452, 459 (5th Cir. 2012)). The party offering the testimony has the burden
of establishing reliability by a preponderance of the evidence. See Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The Court must assess
whether the reasoning or methodology underlying the expert’s testimony is
valid. See Daubert, 509 U.S. at 590. The aim is to exclude expert testimony
based merely on subjective belief or unsupported speculation. See id. The
Court’s inquiry into the reliability of expert testimony is flexible and
necessarily fact-specific. See Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 372 (5th Cir. 2000).
Second, the Court must determine whether the expert’s reasoning or
methodology “fits” the facts of the case and whether it will assist the trier of
fact to understand the evidence. See Daubert, 509 U.S. at 591. This is
primarily an inquiry into the relevance of the expert testimony. See id; see
also Bocanegra v. Vicmar Services, Inc., 320 F.3d 581, 584 (5th Cir. 2003)
(“The expert testimony must be relevant . . . in the sense that the expert’s
proposed opinion would assist the trier of fact to understand or determine a
fact in issue.”). Expert testimony is unnecessary if the court finds that “the
jury could adeptly assess [the] situation using only their common experience

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and knowledge.” Peters v. Five Star Marine Serv., 898 F.2d 448, 450 (5th
Cir. 1990).

III. DISCUSSION
Rousseau’s report offers three opinions.12 First, Rousseau states that
the door exerted no force on Cunningham when it began its downward
descent. Second, Rousseau opines that this force increased to a maximum of
115 pounds as the door descended, and that plaintiff could reach the top of
the door only when it had moved 40.8° from its vertical position. Third,
Rousseau opines that plaintiff’s “presence closer to the door when the door
first began its downward movement” would not have made “a difference in
preventing the door from dropping.”13 According to plaintiff, these opinions
would rebut Cunningham’s testimony that plaintiff should have helped to
hold up the door as soon as the door started moving downwards. 14
Rousseau’s opinions about the downward force exerted by the door are
both reliable and helpful.

These opinions are based on the physical

characteristics of the door—its weight, length, and distance from the
ground—and trigonometric equations. The Court is satisfied that Rousseau

12
13
14

See R. Doc. 59-3 at 3.
Id. at 1.
R. Doc. 63 at 3.
5

arrived at these opinions using scientific methods and procedures.15 See Life
Partners Holdings, 854 F.3d at 775. Moreover, these opinions could assist
the jury in determining whether Cunningham acted negligently either by
trying to lower the door manually or by letting go, and whether plaintiff was
contributorily negligent by not helping to hold up the door.
Rousseau’s opinion about the angle at which plaintiff could have
reached the top of the door, however, is not reliable. This opinion is based
in part on Rousseau’s assumption that plaintiff “has average body
proportions”—specifically, his shoulder height is 82% of his body height, and
his arm length is 38% of body height. 16 This assumption lacks “any specific
factual support” in the record, and is therefore speculative. Hathaway v.
Bazany, 507 F.3d 312, 318 (5th Cir. 2007). Plaintiff argues that Rousseau
could rely on a specific photograph to make this assumption, but the
photograph does not reveal, with any precision, the proportions of plaintiff’s
shoulders and arms. 17 Moreover, bodily proportions on average people can

Defendants argue that Rousseau’s opinions are unreliable because he
did not look at a photograph of the transport trailer door. R. Doc. 59-2 at 5.
But Rousseau states in an affidavit that he did look at such a photograph.
R. Doc. 63-2 at 1. Rousseau further states that he based his calculations on
dimensions provided by the manufacturer. Id.
16
R. Doc. 59-3 at 1.
17
See R. Doc. 63-3.
6
15

vary, and plaintiff fails to explain why Rousseau could not simply use
plaintiff’s actual proportions.
Rousseau’s final opinion—that the door would have fallen even if
plaintiff had helped to hold it up—is also unreliable. Rousseau’s report
states: “If Martinez placed his hands on the middle of the door when the door
was still vertical, the effectiveness of Martinez’s force as the door began its
descent would only be 50% of Cunningham’s and would have made little
difference in preventing the door from dropping.”18 The report further states
that it was “more advantageous and more effective” for plaintiff to “wait[] for
the door to make some angle before putting his hands on it.” 19 This opinion
is not based on any discernible methodology. Nor does it consider how much
weight plaintiff can bear.

Without this critical piece of information,

Rousseau can only speculate that the door still would have fallen had plaintiff
helped to hold it up from the beginning.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion to

exclude Valery Rousseau’s report and testimony to the extent he opines

18
19

R. Doc. 59-3 at 3.
Id.
7

about the angle at which plaintiff could have reached the top of the door, and
about whether plaintiff’s presence closer to the door when the door began its
downward descent would have prevented the door from falling. The Court
otherwise DENIES defendants’ motion.

31st
New Orleans, Louisiana, this _____ day of January, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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