Fields v. Ashford et al
Filing
88
ORDER Granting Defendants' 81 Motion to Exclude Expert Opinion Testimomy of Gary McDonald. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELA J. FIELDS,
Plaintiff,
Case No. 17-cv-11812
Hon. Matthew F. Leitman
v.
PIERRE OCTAVIUS ASHFORD, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO EXCLUDE EXPERT
OPINION TESTIMONY OF GARY McDONALD (ECF NO. 81)
This action arises out of an automobile accident between Plaintiff Angela
Fields and Defendant Pierre Octavius Ashford that occurred on I-96 in Milford,
Michigan. Fields’ Ford Edge crashed into the back of Ashford’s semi-truck shortly
after Ashford pulled his truck from the shoulder into Fields’ lane of travel. The
central dispute between the parties is: what caused the accident? Fields says that
Ashford caused the wreck by pulling into her lane and leaving her “no time at all to
avoid [the] collision.” (Fields Resp. Br., ECF No. 82, PageID.2337.) Ashford
counters that he is not to blame because Fields had enough time to see his truck and
to avoid the accident by braking and/or changing lanes.
Fields has retained accident reconstructionist Gary McDonald to support her
causation theory. Ashford and Defendants Corr Transport, Inc. and Dakota Lines,
1
Inc. have moved to exclude McDonald’s opinions on the ground that his opinions
do not rest upon a reliable foundation. (See Mot. to Exclude, ECF No. 81.) The
Court will grant Defendants’ motion.
McDonald’s deposition testimony makes clear that he cannot reliably support
Fields’ causation theory. Indeed, McDonald admitted that he did not conduct any
analysis that would allow him to “say” that Fields’ “didn’t have enough time” to
avoid the accident. (McDonald Dep. at 35, ECF No. 81-1, PageID.2258.) Moreover,
McDonald’s expert report and the remainder of his deposition testimony
demonstrate that he did not perform a reliable evaluation of the crash and that none
of his causation opinions rest upon a reasonable foundation. His expert report is one
page and lists conclusions without any causation analysis, and his deposition
testimony revealed that he did not employ any analytical methodology, much less a
reliable one. Therefore, for all of these reasons, the Court GRANTS Defendants’
motion and EXCLUDES McDonald’s testimony in its entirety.
I
A
The accident between Fields and Ashford occurred on May 25, 2016.
Immediately prior to the accident, Ashford had stopped his semi-truck on the
shoulder of I-96. (See Ashford Dep. at 37, ECF No. 71-2, PageID.1592.) Ashford
then pulled back into the right lane of traffic at a speed of roughly 20-to-25 miles
2
per hour. (See id. at 45, PageID.1600.) Fields was driving in that same lane. (See
Fields Dep. at 43, ECF No. 71-3, PageID.1695.) Shortly after Ashford re-entered
the highway, Fields crashed into the rear of Ashford’s semi-truck. (See id. at 45-46,
PageID.1697-98.) Both parties have engaged expert witnesses to support their
contention that the other party is at fault for the crash.
B
Fields’ proposed accident-reconstruction expert is McDonald. McDonald is
the President of Magnetic North Consulting, and he is a former officer with the
Michigan State Police. (See McDonald Dep. at 7-10, ECF No. 81-1, PageID.22512252.)
He is also a member the Michigan Association of Traffic Accident
Investigators and the International Association of Accident Reconstruction
Specialists. (See id. at 9-10, PageID.2252.)
Fields retained McDonald in June of 2016. (See id. at 17-18, PageID.2254.)
Thereafter, McDonald inspected Fields’ car and reviewed the following documents:
A Michigan State Police “UD-10” crash report;
An unidentified “fee calculation form” that McDonald acquired through the
Freedom of Information Act;
A Michigan State Police report from the “Traffic Crash Reconstruction Unit”;
Unidentified Detroit Diesel Engine Control “reports”; and
A Michigan State Police “Police Incident Report.”
(McDonald Expert Rpt., ECF No. 81-1, PageID.2246.)
3
On June 5, 2018, McDonald submitted his expert report. (See id.) In that
report, he opines that Ashford “was the cause of [the] crash.” (Id., PageID.22462247.) But the report contains no analysis whatsoever to support or explain that
conclusion. Instead, the report – which consists of a mere 329 words and less than
a single full page of text – simply lists a handful of facts related to the accident and
then states McDonald’s conclusion that Ashford caused the crash. In full, the report
states as follows:
Based on my review of the above listed items and
materials I have the following opinions. This crash
occurred on I-96 approximately a 1/2 mile East of the
Milford Road-Oakland County in the Eastbound lane
speed limit 70 mph. The vehicles involved were a 2005
freightliner semi-tractor with trailer in a 2010 Ford Edge.
The semi-tractor trailer with being operated by Pierre
Octavius Ashford, 31 years old of Southfield Michigan.
The Ford Edge was being operated by Angela Jeanne
fields, 56 years old.
The semi-tractor/trailer was on the right-hand shoulder
and merged onto the right-hand lane of I-96 and was struck
from behind by the Ford Edge.
The review of the Michigan State Police Report, scale
drawings and photographs show and indicate that impact
location of this crash was in the right hand lane of the
Eastbound I-96.
The impact of the Ford Edge such that the ACM “black
box” was damaged to the extent that it could not be
downloaded with the CDR tool “computer” for a speed
determination.
4
During the examination of the Ford Edge it was noted that
the speedometer needle was a 92 mph and the rpm needle
was at 2100 RPM. The rpm’s at 2100 and the speed of 92
mph do not appear usable to indicate a true and accurate
method of speed determination thus no speed
determination was calculated for the Ford Edge.
Mr. Ashford driver of the 2005 freightliner stated that he
pulled off the right-hand shoulder onto the right-hand lane
of I-96 and was traveling 20 to 25 mph when he was
impacted by the Ford Edge.
Ms. Fields driver of the Ford Edge stated that she was
traveling approximately 70 mph speed limit and never
slowed or braked prior to impact.
It is in my opinion based on my review and analysis of this
crash Mr. Ashford was the cause of this crash by entering
onto the right lane of I-96 in front of Ms. Fields path of
travel.
(Id., PageID.2246-2247.)
C
1
On June 4, 2019, McDonald appeared for a deposition in this action. He
testified that he had reached the following conclusions: “Mr. Ashford failed to yield,
he was driving below the minimum speed for commercial vehicles on the freeway
and he took away Ms. Fields’ right-of-way.” (McDonald Dep. at 24, ECF No. 81-1,
PageID.2255.) Based upon these conclusions, McDonald opined that Ashford was
“a hundred percent” at fault for the accident. (Id. at 26, PageID.2256.)
5
2
During McDonald’s deposition, Ashford’s counsel asked McDonald to
identify any evidence that Ashford left Fields no time to avoid the accident. (See id.
at 34-36, PageID.2258.) In response to those questions, McDonald identified only
Fields’ own testimony that Ashford’s truck “jumped right out in front of her.” (Id.
at 35, PageID.2258.) He then admitted that, apart from Fields’ version of events, he
had “no evidence” that Ashford had, in fact, “jumped” in front of Fields. (Id.) More
importantly, McDonald admitted that his own work and analysis did not allow him
to “say” that Fields “didn’t have enough time” to avoid the accident. (Id.) And
McDonald further conceded that he could not explain why Fields did not brake, did
not swerve, and/or did not slow down before the crash. (See id. at 34, PageID.2258.)
McDonald may not have been able to explain why Fields did not brake, swerve, or
slow down because his analysis did not account for “perception-reaction time” and
because he did not “factor in perception time.”1 (Id. at 30, PageID.2257.)
1
In Fields’ opposition brief, she says that McDonald “made numerous mathematical
calculations to check and support his conclusions,” including calculations related to
“known or accepted perception reaction time.” (Fields Resp. Br., ECF No. 82,
PageID.2236.) But McDonald was asked directly at his deposition if he “[a]t any
point [] factor[ed] in perception time,” and McDonald unequivocally answered “no.”
(McDonald Dep. at 30, ECF No. 81-1, PageID.2257.)
6
3
McDonald’s deposition testimony also revealed that he had done only limited
work before reaching his conclusions. More specifically, McDonald acknowledged
that apart from reviewing the five pieces of evidence listed in the bullet points above
(in Section (I)(B)) and inspecting Fields’ vehicle, he did not review any other
evidence and did not do any modeling or testing before reaching his opinions and
issuing his expert report:
Q: So looking at your report … you listed out five items
that were reviewed in conjunction with this report: the
UD-10, the State of Michigan Freedom of Information Act
fee calculation form, a [Michigan State Police] police
report [from the] traffic crash reconstitution unit, the
[Detroit Diesel Engine Control] reports [] and the
[Michigan State Police] police incident report. Is that
correct?
A: Correct.
A: Did you review, prior to issuing your report … any
other evidence, other than those five items?
A: No.
Q: Other than the vehicle inspection [of Fields’ car] did
you perform any other independent investigation?
A: No.
Q: Have you inspected any exemplar vehicles in
conjunction with this case?
A: No.
7
Q: Have you done any testing?
A: No.
Q: Have you done any modeling in conjunction with this
case?
A: No.
[….]
Q: Have you created any animations in conjunction with
the Fields case?
A: No.
Q: Have you run any simulations in conjunction with the
Fields case?
A: No.
(Id. at 20-22, PageID.2254-2255.) In addition, McDonald testified that he did not
perform a “crush analysis,” a “scene or grade analysis,” or a “speed of impact”
analysis related to the accident. (Id. at 22, 34, PageID.2255, 2258.) Nor did he ever
conduct any analysis “to calculate the Ford Edge’s speed.” (Id. at 29, PageID.2257.)
McDonald further admitted that he “never examined” Ashford’s truck, never “made
any conclusions specifically regarding the truck,” and never rendered “an opinion as
to the speed of [Ashford’s] lane change” based on his “scientific” or technical
“expertise.” (Id. at 30, 32-33, PageID.2257-2258.)
Finally, McDonald
acknowledged that he did not “rely on any scholarly articles or treatises” in reaching
his opinions. (Id. at 24, PageID.2255.)
8
4
Long after McDonald reached his opinions and issued his report, he did some
additional work related to the accident. For instance, two days prior to his deposition
– and nearly a full year after he issued his report containing his causation opinion –
McDonald completed some handwritten mathematical calculations.2 (Id. at 25,
PageID.2256.) During McDonald’s deposition, Ashford’s counsel asked McDonald
to explain the meaning of those calculations. McDonald offered the confusing
explanation below:
Q: I’m looking at the handwritten notes that you provided
me. Could you explain kind of what these numbers
working from the top of the page to the bottom of the page,
kind of what those numbers all mean?
A: Yes.
Q: And what you’re calculating in that sheet.
A: Basically, I’m asking myself questions and answering
them. 92 miles an hour was the question. In the report it
indicates that the speedometer was stuck at 92 miles an
hour, which converts to 134 feet per second. Mr. Ashford
said he was out on the road for probably a minute, which
is 60 seconds. That means that Miss Fields was 8,088 feet
away when he entered the road for a minute. 30 seconds,
she was 4,000 feet behind; 15 seconds, she was 2,022 feet
per second; 10 seconds, she was 1,348 feet; 5 seconds,
she was 674 feet.
2
The handwritten calculations were identified as Exhibit 5 during McDonald’s
deposition and are included in the record here at ECF No. 81-1, PageID.2301.
9
Q: So essentially, that chart which would constitute, I
guess, the second chunk of writing there –
A: Yes.
Q: - that chart is essentially a cross-analysis of the time
that she would have been on the roadway versus how far
she would have been away.
A: Based on certain times.
Q: So that’s not an assertion of exactly how long he was
on the roadway or anything like that. You’re just saying if
it was this, it’s that, correct?
A: Correct.
Q: Please continue.
A: The next one says 70 miles an hour is 102.6 feet per
second. I converted that into the same 60, 30, 15, on the
road for 60 seconds and she was traveling 92 miles an
hour, she’d be 8,000 feet away. But he saw her, so she had
to be closer than that.
Q: It was your testimony earlier that you did not believe
that the 92 miles per hour was an accurate speed reading.
Is that correct?
A: That’s correct.
(Id. at 36-39, PageID.2258-2259.)
Later during McDonald’s deposition, Fields’ counsel returned to the topic of
McDonald’s handwritten calculations. Like the colloquy between defense counsel
and McDonald concerning the handwritten calculations, the exchange between
Fields’ counsel and McDonald about the calculations – reproduced verbatim below
10
– is difficult to understand. That difficulty stems in no small part from the fact that,
as the italicized portions of the colloquy below indicate, some of the key questions
are imprecise and McDonald did not directly or clearly answer certain important
questions:
Q: Now, the hand calculations that you completed
Sunday, I think they are exhibit 5?
A: Yes.
Q: It’s my understanding that you were thinking this
through in preparation for the deposition and you just did
some calculations to see if Mr. Ashford’s testimony made
any sense, correct?
A: Correct.
Q: And these calculations indicate that they3 don’t make
any sense, correct?
A: They don’t make any sense to me and – some of them
don’t.
Q: Right. And the point is, is that I think it was 102.67, I
guess exactly, feet per second, that a person driving at 70
miles an hour could lawfully proceed down the highway,
correct?
A: Correct.
Q: So given a period of three seconds, that person would
cover over the distance of a football field, correct?
3
This question is a follow-up to a question about whether Ashford’s “testimony”
makes sense, but the question (and the answer) confusingly uses the word “they” in
what appears to be a reference to some unidentified portions of the testimony.
11
A: Yes.
Q: Would it be possible, for this first calculation to be
6,157 feet, that’s more than a mile away, correct?
A: Correct.
Q: It wouldn’t be possible for Mr. Ashford to see her at
that distance, correct?
A: Not to be able to identify her.4
Q: And it wouldn’t be possible, even at half of that
distance, which is still over a half a mile, to see her and
appropriately judge her speed and what she was doing,
correct?
A: And also, if she’s travelling at 70 miles an hour and
Mr. Ashford enters the road at 20 to 25 miles an hour and
then 30 seconds later he hasn’t shifted from 7th to 8th
because he said he was on his way to 8, well, that means
he’s got 30 seconds to shift.5
4
In this exchange, Fields’ counsel appears to be attempting to elicit testimony that
would undermine any claim by Ashford that he could see Fields as he entered the
highway. But McDonald did not answer the question that was asked – whether
Ashford could have “see[n]” Fields if she was 6,157 feet away from him. Instead,
McDonald answered a different question – whether, at that distance, Ashford could
have seen Fields clearly enough to “identify her.” It is not clear what McDonald
means by “identify her.” For instance, it is not clear whether McDonald means (1)
identify Fields specifically as the driver of the approaching vehicle, (2) identify that
an unknown driver in a Ford Edge (the type of vehicle Fields was driving) was
approaching, or (3) identify that an unknown driver in an unknown vehicle was
approaching.
5
In this exchange, Fields’ counsel appears to be attempting to elicit testimony that
Ashford could not have seen Fields and correctly judged her speed even if she was
only 3,078 feet away from him. But McDonald did not answer that question. Indeed,
12
Q: So he’s not even going to gain that speed. It’s going to
take him a long time to pick that speed up.
A Right.
(Id. at 47-49, PageID.2260-2261; emphasis added.)
McDonald also prepared a set of drawings at some unidentified point during
his work.6 (Id. at 39-42, PageID.2259-2260.) The drawings do not speak to whether
Ashford left Fields enough time to avoid the crash. Instead, according to McDonald,
the drawings purport to show that Ashford “didn’t have to enter the road [from the
shoulder] at 20 to 25” miles per hour and that Ashford “could have got up to 65 miles
an hour on the shoulder and then entered.” (Id. at 42, PageID.2260.)
Finally, McDonald conducted a computer calculation that he labeled “Skid
Distance to Stop From Known Speed and Drag Factor.”7 This single calculation –
which takes up roughly one-fifth of one page – shows only that if “a vehicle [is]
traveling 70 [miles per hour], it’s going to take 192 feet to stop without perception
time reaction.” (Id. at 30, PageID.2257.)
McDonald’s response does not begin with a “yes” or any other express indication of
agreement. Instead, McDonald vaguely begins his answer with “And also.”
6
The drawings were identified Exhibit 6 during McDonald’s deposition and are
included in the record here at ECF No. 81-1, PageID.2302-2306.
7
This calculation was identified as Exhibit 4 during McDonald’s deposition and is
included in the record here at ECF No. 81-1, PageID.2300.
13
II
Defendants moved to exclude McDonald’s expert opinion testimony on June
26, 2019. (See Mot. to Exclude, ECF No. 81.) In support of that motion, Defendants
argued, among other things, that the Court should exclude McDonald’s testimony
because “his own unsupported speculative beliefs … are not the product of reliable
principles and methods.” (Id., PageID.2196.) Fields filed a response to the motion
on July 17, 2019. (See Fields Resp. Br., ECF No. 82.)
Pursuant to Local Rule 7.1(f)(2), the Court concludes that oral argument is not
necessary and would not aid its decision on Defendants’ motion.
III
Defendants argue that McDonald’s proposed testimony does not satisfy the
standards for the admission of opinion testimony set forth in Federal Rule of
Evidence 702. That rule provides:
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
14
(d) the expert has reliably applied the principles and
methods to the facts of the case.
FRE 702.
Under this rule, district courts have “broad discretion as [] ‘gatekeeper[s]’ to
determine the admissibility” of expert testimony. Pride v. BIC Corp., 218 F.3d 566,
578 (6th Cir. 2000). In assessing proposed expert testimony, a district court must
“determine whether [the] evidence ‘both rests on a reliable foundation and is relevant
to the task at hand.’” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527
(6th. Cir. 2012) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993)).
In Daubert, the Supreme Court stressed that there is no “definitive checklist
or test” that a district court must apply when considering the reliability of expert
testimony. Daubert, 509 U.S. at 590. Yet, at the same time, the Supreme Court
identified “several factors that a district court should consider when evaluating the
scientific validity [and reliability] of expert testimony, notably: the testability of the
expert’s hypotheses (whether they can be or have been tested), whether the expert’s
methodology has been subjected to peer review, the rate of error associated with the
methodology, and whether the methodology is generally accepted within the
scientific community.” Pride, 218 F.3d at 577 (citing Daubert, 509 U.S. at 593-94).
In addition, “Daubert and its progeny make clear that ‘[p]roposed [expert] testimony
must be supported by appropriate validation.’” Id. at 578 (quoting Daubert, 509 U.S.
15
at 591). As the Sixth Circuit recognized following Daubert, “[t]he party seeking to
have testimony admitted bears the burden of showing that the expert’s findings are
based on sound science, and this will require some objective, independent validation
of the expert’s methodology; the expert’s bald assurance of validity is not enough.”
Smelser v. Norfolk S. Ry., 105 F.3d 299, 303 (6th Cir. 1997) (internal quotation
marks omitted), abrogated on other grounds by Morales v. Am. Honda Motor Co.,
Inc., 151 F.3d 500 (6th Cir. 1998).
The Daubert “factors, while perhaps most apt in evaluating a purely scientific
discipline, can also apply in evaluating non-scientific fields that are ‘technical’ or
‘specialized’ in nature.” United States v. Mallory, 902 F.3d 584, 593 (6th Cir. 2018)
(quoting Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-53 (1999)).
However, these factors may not be useful in evaluating the reliability of some types
of expert testimony, and thus applying the “factors [is] not mandatory in every case.”
Id. For instance, the Daubert factors may be “unhelpful” where an expert’s opinion
testimony is based entirely upon his personal knowledge and “practical
experiences.” First Tenn. Bank Nat. Ass’n v. Barreto, 268 F.3d 319, 335 (6th Cir.
2001); see also Wood v. Wal-Mart Stores E., LP, 576 F. App’x 470 (6th Cir. 2014)
(same).
Finally, “nothing in either Daubert or the Federal Rules of Evidence requires
a district court to admit evidence that is connected to existing data by the ipse dixit
16
of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In the end, “[t]he
questions of what factors to apply and what conclusions to draw about an expert’s
reliability are entrusted to the district court’s discretion.” Mallory, 902 F.2d at 593;
see also Kuhmo Tire, 526 U.S. at 141 (“[W]hether Daubert’s specific factors are, or
are not, reasonable measures of reliability in a particular case is a matter that the law
grants the trial judge broad latitude to determine.”).
IV
As the “proponent” of McDonald’s causation opinion testimony, Fields must
“establish its admissibility by a preponderance of proof.” Nelson v. Tenn. Gas
Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001). More specifically, Fields “bears
the burden of showing, among other things, that [McDonald’s] opinion is based on
a reliable foundation.” Harms v. United States, 2017 WL 3642202, at *9 (E.D. Mich.
Aug. 24, 2017).8 She has failed to carry that burden.
8
See also Berry v. Crown Equip. Corp., 108 F. Supp. 2d 743, 754 (E.D. Mich. 2000)
(“It is [p]laintiff’s burden to establish by a preponderance of evidence that
her expert’s theories are reliable and adequately supported by sound technical data,
methodology and testing.”); Stevens v. Nat. Liability & Fire Ins. Co., 2015 WL
5567758, at *2 (E.D. Mich. Sept. 21, 2015) (“The proponent of expert testimony …
has the burden of showing by a preponderance that her experts are qualified and their
methods reliable.”); United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir 2004)
(internal quotation marks omitted) (“The proponent of expert testimony always bears
the burden to show that … the methodology by which the expert reach[ed] his
conclusions is sufficiently reliable ….”).
17
A
According to Fields, McDonald’s causation opinions are reliable because
McDonald showed how the “empirical evidence … makes crystal clear that
[Ashford] left [Fields] no time at all to avoid [the] collision.” (Fields Resp. Br., ECF
No. 82, PageID.2337.) That is simply not true. Indeed, McDonald testified that he
did not conduct any analysis that would allow him to “say” that Fields “didn’t have
enough time” to avoid Ashford’s semi-truck. (McDonald Dep. at 35, ECF No. 81-1,
PageID.2258.) McDonald further acknowledged that he could not explain why
Fields did not brake before she collided with Ashford’s truck, could not explain why
she did not swerve to avoid the truck, and could not explain why she did not slow
down in any way. (See id. at 34, PageID.2258.) Moreover, McDonald never
determined how fast Fields was travelling at the time of the crash, and he never
factored in “perception-reaction time” when determining whether Fields had an
opportunity to stop before she hit Ashford’s truck. (Id. at 29-30, PageID.2257.) As
all of this makes clear, McDonald had no reliable basis on which to testify that
Ashford left Fields with no time to avoid the collision. Thus, the Court will not
permit McDonald to offer opinion testimony that Ashford caused the accident by
leaving Fields with no opportunity to avoid hitting his truck when he merged into
her lane.
18
B
Fields has also failed to establish that any other aspects of McDonald’s
causation opinions are based upon a reliable foundation. The fundamental flaw with
McDonald’s opinions is that they do not rest upon any discernible methodology at
all, much less a methodology that may be deemed reliable. As described above, in
McDonald’s report, he identified some background facts related to the accident and
then simply asserted that Ashford’s driving caused the accident. His report contains
no reasoning or analysis at all. Then, during McDonald’s deposition, he failed to
provide a chain of technical or scientific reasoning or analysis to explain how
Ashford’s driving caused the crash.9 Instead, he described some driving by Ashford
and described some drawings and calculations, but he never offered a cogent
explanation as to how he pieced these facts and materials together to support the
conclusion that Ashford caused the accident by leaving Fields with no time to avoid
the wreck.
Numerous courts have excluded proposed causation testimony by
9
It is, of course, no answer to say that Ashford’s entry into Fields’ lane of travel
obviously caused the accident and thus McDonald had no need to explain the basis
of his causation theory. If it is obvious that Ashford’s merge into Fields’ lane caused
the accident, then there is no basis to allow McDonald to present expert testimony
on causation. See, e.g., Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998)
(affirming exclusion of expert witness and noting that proposed expert “must testify
to something more than what is obvious to the layperson in order to be of any
particular assistance to the jury”) (internal quotation marks omitted); cf. Dawson v.
Delaware, 503 U.S. 159, 171 (1992) (Blackman, J., concurring) (“Jurors do not
leave their knowledge of the world behind when they enter a courtroom and they do
not need to have the obvious spelled out in painstaking detail.”).
19
accident reconstruction experts who similarly failed to identify a reliable
methodology (or any methodology at all) for their opinions.
The decision in Reynolds v. Freightliner, LLC, 2006 WL 5249744 (E.D. Ky.
June 21, 2006), is instructive. In Reynolds, the plaintiff sought damages for fatal
injuries suffered by her husband when he was “ejected from the cab of the truck he
was driving.” Id. at *1. Plaintiff alleged, among other things, that the “design and
manufacture of both the seatbelt and the door latch of the tractor” were defective. Id.
In support of that argument, the plaintiff sought to introduce the expert testimony of
an accident reconstructionist, Stephen Chewning. See id. at *2. In a “one and a half
page” initial expert report, Chewning sought to explain how the decedent was
ejected from the truck. Id.
The defendant moved to exclude Chewning’s expert testimony, and the
district court granted that motion. The court concluded that Chewning’s expert
opinions were not admissible because Chewning had failed to identify any
“particular methodology” that he used “to actually reach his opinions” and had failed
to “supply[] the reasons/bases underlying his conclusions.” Id. at *4 (internal
emphasis removed). In relevant part, the court held that:
In the instant case, Freightliner’s major criticism of
Chewning’s report-that it lacks any methodology at all-is
well-taken. Without any identifiable method of reasoning,
Chewning’s testimony is facially unreliable. In both the
Original and Supplemental Report, Chewning fails to
explain how, given the facts and data he relied upon,
20
he reaches the conclusions outlined in his report.
Chewning simply states his conclusions without
employing any discernable methodology at all. In
particular, Chewning opines on the forces imparted to and
against Mr. Reynolds’ body such that he concludes
sufficient force was exerted to break the seatbelt from its
floor attachment and to then exert enough force to push
open the driver’s door with his body, and finally to cause
a high-side ejection. [R. 64, Attach. 3]. Absent some
formulaic process involving engineering or other
mathematical principles, the Court is unable to determine
how Chewning could have surmised or even began to
calculate the forces involved in this accident and which are
impliedly necessary to reach his conclusions. The report
lacks any evidence that Chewning utilized any
demonstrable methodology to reach these conclusions.
Chewning simply states his conclusions regarding
complex matters of force and product design based on his
“analysis.” [Id.]. Any explanation or identification of this
“analyis” [sic] is missing from the report. In determining
whether a particular methodology is reliable, this Court is
not required to “admit opinion evidence that is connected
to existing data only by the ipse dixit of the
expert.” See Kumho Tire Co., 526 U.S. at 158. Because of
this deficiency, Freightliner correctly argues that it is
unable to validate or otherwise evaluate Chewning’s
testimony because it cannot be subjected to replication or
testing, and that such testing is required to ensure it’s
reliability under Daubert.
Instead of putting forth the actual methodology used by
Chewning, Reynolds responds by arguing that Chewning
uses the same methodology as others in the field and that
the ability to test a methodology is not required to sustain
its reliability. [R. 64]. Reynolds relies primarily on Clark
v. Chrysler Corp., 310 F.3d 361 (6th Cir. 2003) and Clay
v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000). Both
cases are distinguishable because Reynolds argument
essentially puts the proverbial “cart before the
horse.” Without the actual methodology before it, the
21
Court cannot take the next step to determine whether
testing makes it more or less reliable, or whether it is of
the kind that it utilized by others in the field. It is the
absence of a methodology that makes Chewning’s
testimony patently unreliable.
Id. at ** 8-9 (emphasis added).
The court in Neal v. Fort, 2017 WL 455499 (M.D. Tenn. Jan. 20, 2017),
reached the same conclusion. Neal was a “personal injury case centered on a car
wreck.” Id. at *1. “The parties fundamentally disagree[d] as to the cause of the
accident.” Id. In support of defendant’s version of events, defendant sought to
introduce the expert testimony of David G. Huskey, an accident reconstructionist.
See id. Huskey thereafter provided an expert report in which he “provide[d] a stepby-step breakdown of how he believe[d] the accident occurred.” Id.
The district court granted plaintiff’s motion to exclude Huskey’s opinion
testimony on the ground that his report failed to identify his methodology:
Mr. Huskey’s Report is virtually devoid of any
methodology and, without any identifiable method of
reasoning, his testimony is facially unreliable.
Defendant argues that “Mr. Huskey’s analysis of the
traffic crash includes diagrams of how the vehicles
received the corresponding damage, an evaluation of the
heights of the damage to the vehicles correlated with the
heights of the two vehicles, and an analysis of the rotation
of the vehicles at impact,” and that his “method of using
photographs of the damaged cars and recreating how that
damage occurred based [on] engineering principles and
the facts presented by the parties is reliable.” (Id. at p. 13.)
However, the issue is that Mr. Huskey has not cited a
single engineering principle, or indeed any principles.
22
While it is undisputed that Mr. Huskey is highly
experienced and qualified, that does not mean his
methodologies are inherently reliable. Without
employing a discernible methodology or sufficiently
explaining how he reached these conclusions, the court
is unable to examine the reliability of the analysis. It is
“well within” a district court’s discretion to exclude expert
testimony when there is an “absence of meaningful
analysis or reasoning[.]” See Brainard v. Am. Skandia Life
Assur. Corp., 432 F.3d 655, 664 (6th Cir. 2005) (citations
omitted).
Furthermore, the Report contains no explanation of
how Mr. Huskey’s experience informed his
conclusions. Without such an explanation, there is
simply too great an analytical gap between the facts of
the case and the proffered opinion to permit Mr.
Huskey’s testimony to go to the jury. While an expert’s
experience may be the basis for reliable testimony, it is not
sufficient for an expert merely to recite his experience
without further explanation.
[….]
It is undisputed that Mr. Huskey is a qualified accident
reconstruction expert; however, nothing in the record or
Report describes how his experience led to his
conclusions or explains how he reliably applied his
experience to the facts of the case.
Id. at *4 (emphasis added).
McDonald’s causation opinions suffer from the precise flaws that led the
courts in Reynolds and Neal to exclude the proposed causation opinions. Like the
expert in Neal, McDonald has not “describe[d] how his experience led to his
conclusions,” nor has he “explain[ed] how he reliably applied his experience to the
23
facts of the case.” Id. And, like the excluded expert in Reynolds, McDonald has not
presented “any identifiable method of reasoning” and he has failed to “explain how,
given the facts and data he relied upon, he reach[ed] the conclusions outlined in his
report” and deposition. Reynolds, 2006 WL 5249744, at *8. Thus, as in Neal and
Reynolds, “the absence of a methodology” makes McDonald’s “testimony patently
unreliable” and inadmissible. Id. at *9; see also Volkswagen of Am., Inc. v. Ramirez,
159 S.W.3d 897, 904-06 (Tex. 2004) (requiring exclusion of causation testimony by
accident reconstruction expert who “never explain[ed] how [certain] tests supported
his conclusions” and did not “explain how any of the research or tests he relied on
support his conclusion”).
C
There are additional reasons to question the reliability of the manner in which
McDonald reached his conclusions.
For instance, Fields has not shown that
McDonald’s causation testimony satisfies any of the Daubert factors. Fields has not
presented evidence that McDonald applied generally accepted causation-analysis
methods, that McDonald used techniques that had been tested or whose error-rates
had been determined, or that McDonald used any peer-reviewed approaches to
causation analysis. Nor has Fields presented evidence that McDonald’s work in this
case has been validated in any way. Fields’ failure to show that McDonald’s
testimony satisfies the Daubert factors, while not dispositive, further weighs against
24
admission of McDonald’s testimony. See, e.g., Mike’s Train House, Inc. v. Lionel,
L.L.C., 472 F.3d 398, 407-08 (6th Cir. 2006) (excluding proposed expert testimony
where, among other things, the expert’s “methodology had never been tested,
subjected to peer review, possessed a known or potential rate of error, or enjoyed
general acceptance”); Pride, 218 F.3d at 578 (holding that “[t]he failure of
[plaintiff’s] experts to test their hypotheses in a timely and reliable manner or to
validate their hypotheses by reference to generally accepted scientific principles as
applied to the facts of this case renders their testimony on [causation] unreliable and
therefore inadmissible under Daubert and Federal Rules of Evidence 702 and 104”).
In addition, it appears that McDonald’s work fell below the standard of
practice employed by the International Association of Accident Reconstruction
Specialists (“IAARS”), a group to which McDonald belongs. In order to become a
member of IAARS, an applicant must submit an “example of accident reconstruction
work” that the applicant has completed. (ECF No. 81-1, PageID.2313.) That
“example” must include a “scale diagram, photographs, measurements, [and] all
calculations done to arrive at speeds, angles, [and] distances.” (Id.) Yet in this case,
McDonald reached his causation opinion and issued his report before he had done
much of this work (if he completed it at all). (See McDonald Dep. at 24-25, ECF No.
81-1, PageID.2255-2256.)
25
Finally, Fields’ own submissions to the Court appear to suggest that
McDonald’s work on this case may fall short of the work that he has done on other
cases. In Fields’ words, McDonald “has [an] extensive background in [] accident
reconstruction including vehicle inspection, geometric construction, scale drawings
of collisions and scenes, scene examination, speed determinations, time distance
determinations, impact analysis, lamp examination, and conservation of linear
momentum.” (Fields Resp. Br., ECF No. 82, PageID.2335.) Yet here, McDonald
performed few, if any, of these analyses before he issued his report containing his
opinions, and that lends further support to the Court’s conclusion that his opinions
were not based on reliable methods. See, e.g., Mahoney v. USA Hockey, Inc., 138 F.
App’x 804 (6th Cir. 2005) (affirming exclusion of expert witness where, among
other things, proposed expert did not “attempt to replicate the incident, perform any
manner of accident reconstruction or conduct any relevant technical or scientific
testing”).
D
Fields counters that McDonald’s proposed causation testimony is based on
reliable methods and is therefore admissible. The Court does not find her arguments
to be persuasive.
Fields argues that McDonald’s work is reliable because he “made numerous
mathematical calculations to check and support his conclusion[]” that Ashford
26
caused the accident by leaving Fields no time to avoid his truck. (Fields Resp. Br.,
ECF No. 82, PageID.2336; emphasis added.) There are several problems with this
argument. First, as noted above, McDonald admitted that his work does not permit
him to reliably say that Fields did not have enough time to avoid the wreck. Second,
Fields never offers a coherent explanation as to how McDonald’s calculations show
that Ashford left Fields without enough time to avoid the accident. Indeed, as set
forth above (in Section (I)(C)(4)), McDonald’s testimony concerning the
calculations is not comprehensible in any meaningful way. Third, Fields vastly
overstates the extent of the mathematical calculations. McDonald made a limited
number of calculations that appear on one and one-quarter pages of paper. (See ECF
No. 81-1, PageID.2300-2301.) And McDonald admitted that a sizeable portion of
those calculations – including the calculations based upon Fields’ purported speed
of 92 miles per hour – address circumstances that, according to McDonald, did not
exist at the time of the accident. (See McDonald Dep. at 38-39, ECF No. 81-1,
PageID.2259.) Fourth, many of McDonald’s calculations were completed nearly a
year after McDonald drafted his expert report and reached the conclusion that
Ashford was “a hundred percent” at fault for the crash. (See id. at 25, PageID.2256.)
Finally, Fields has not cited any evidence that the calculations McDonald performed
27
are the types of calculations that other experts in the accident reconstruction field
rely upon when making causation determinations.10
Finally, Fields argues that the Court should find McDonald’s causation
opinions to be reliable because they are like the opinion testimony that the Sixth
Circuit deemed admissible in Dilts v. United Grp. Servs., LLC, 500 F. App’x 440
(6th Cir. 2012). In Dilts, the expert inspected the defective crane at issue, conducted
a generally accepted photographic measurement analysis, and used a computer
program to identify damage to the crane:
At his deposition, Nightenhelser [the expert] testified
that he inspected the crane’s straps, shackles, and
cable of the rigging and the dislodged panel at the
accident site. Upon inspection, he observed a depression
on or near one corner of the panel and some yellow paint.
He also testified that the end pieces on each end of the
panel were “bent, canted inward,” which meant that both
ends of the panel struck support surfaces during the fall,
causing an inward bent. Nightenhelser determined that the
shape of the depression was consistent with the shape of
the handrail. Based on the physical evidence, he
concluded that the panel rotated counterclockwise 180
10
Fields further suggests that McDonald’s causation opinion is reliable because
McDonald calculated that it took Ashford “two seconds” to merge from the shoulder
into Fields’ lane of traffic. (Fields Resp. Br., ECF No. 82, PageID.2337.) But
McDonald did not conduct that calculation prior to reaching his opinion and drafting
his expert report. Instead, he calculated it “in [his] head” during his deposition, and
he did not “have any kind of evidence or written-out calculation” to support that
computation. (McDonald Dep. at 31, ECF No. 81-1, PageID.2257.) Moreover,
McDonald acknowledged that he did not “review any kind of publications, article[s],
or treatise[s] regarding tractor-trailers and their ability to merge lanes” before
conducting that calculation and that the calculation was not based on any “scientific”
knowledge. (Id.)
28
degrees and struck the yellow handrail located in
between the top of the doghouse and the ground, which
caused the downward depression in the panel. He
further concluded that the scrape marks on the panel
demonstrated that the panel contacted the I-beam and
shifted out of position against the ductwork of the
doghouse structure.
Nightenhelser also conducted a photogrammetric
analysis, which entails using known measurements of
objects in a photograph to extract measurements of, or
measurements to, objects that are not known. In
addition, he performed calculations and algebraic
equations using a computer program to determine the
length and width of the panel. He testified that after
conducting his inspections at the accident site he put a
digital photograph on a computer screen, used a mouse
to identify points and create vectors of the crane and
the panel, and then inserted that information into a
computer program to determine the natural position of
the shackles and also to identify the damage on the Ibeam. Based on his analysis, Nightenhelser concluded
that the only mechanism that could lift the panel out of
position to strike the I-beam and then rotate 180 degrees
was the crane.
Id. at 445-46 (emphasis added).
Unlike the expert admitted in Dilts, McDonald did not visit the scene of the
accident, did not inspect Ashford’s truck, and did not create any models, simulations,
or animations related to the accident before reaching his opinion. McDonald is not
in the same position as the expert in Dilts, and Dilts therefore does not compel the
conclusion that McDonald’s opinions are based on reliable methods.
29
Fields also argues that the Sixth Circuit’s decision in Clark v. Chrysler Corp.,
310 F.3d 461, 470-71 (6th Cir. 2002), supports admission of McDonald’s testimony.
The Court disagrees. In Clark, the Sixth Circuit held that the district court did not
abuse its discretion in admitting opinion testimony from an accident
reconstructionist. But there was no showing in Clark, as there has been here, that
the accident reconstructionist failed to employ any recognizable methodology.
Thus, Clark does not compel the admission of McDonald’s testimony. See Reynolds,
2006 WL 5249744, at *10 (explaining that Clark does not support admission of
opinion testimony by accident reconstructionist who does not use a clear
methodology). In any event, the holding of Clark was simply that the district court
did not abuse its discretion in admitting the accident reconstructionist’s testimony;
the decision does not stand for the additional proposition that it would have been an
abuse of discretion to exclude that testimony.
The Court declines to admit
McDonald’s testimony pursuant to Clark.
E
For all of the reasons explained above, the Court concludes that Fields has
failed to demonstrate that any of McDonald’s opinions concerning the cause of the
accident rest upon a reliable foundation. Accordingly, the Court will exclude
McDonald’s proposed causation testimony in its entirety.
30
V
As noted above, as one component of McDonald’s overall causation opinion,
McDonald testified that Ashford was driving “below the minimum speed
[established by the Michigan Motor Vehicle Code] for commercial vehicles on the
freeway.” (McDonald Dep. at 24, 26, 46, ECF No. 81-1, PageID.2255, 2256.
2261.11) Because the Court has excluded McDonald’s proposed causation testimony
in its entirety (including all components of that testimony), Fields will not be
permitted to present this aspect of McDonald’s causation opinion.
The Court notes that there is an additional and independent ground for
excluding McDonald’s testimony that Ashford was traveling below the minimum
required speed: that testimony is not based upon scientific or technical principles or
knowledge, is unnecessary, and is not helpful to the jury. McDonald did not
calculate Ashford’s speed nor perform an analysis to determine whether Ashford
was traveling below the minimum speed. (See id. at 32, PageID.2257.) Instead,
McDonald simply compared (1) Ashford’s testimony that he entered the freeway at
20-to-25 miles per hour to (2) the minimum freeway speed established under the
Michigan Motor Vehicle Code. (See id. at 26-28, 32, PageID.2256, 2257.) That
comparison does not require any specialized training or knowledge. Indeed, every
11
McDonald’s testimony cited at the later pages above makes clear that his opinion
is tied to the minimum speed under the Motor Vehicle Code.
31
juror will be able to make the very same comparison – of Ashford’s admitted speed
to the Motor Vehicle Code’s minimum freeway speed – without any assistance from
McDonald.
Simply put, there is no basis or need for opinion testimony by
McDonald that Ashford was driving below the minimum speed. The Court would
therefore exclude McDonald’s testimony that Ashford was travelling below the
minimum required speed on this alternative basis as well.12
VI
For all of the reasons stated above, the Court GRANTS Defendants’ motion
to exclude McDonald’s testimony (ECF No. 81) and EXCLUDES McDonald from
offering any opinion testimony at trial.
The Court previously denied without prejudice Defendants’ motion for
summary judgment pending the Court’s consideration of Defendants’ motion to
12
Moreover, there is at least some authority for the proposition that a court should
not allow an expert to provide opinion testimony that a party violated a state’s motor
vehicle code because that testimony states a legal conclusion. See, e.g., Carvajal v.
H&M Enters. & Logistics of Statesville, Inc., 2014 WL 5072726, at *3 (C.D. Cal.
Oct. 6, 2014) (excluding expert witness where expert sought to testify that the
“plaintiff did not violate any traffic laws” because that testimony “would constitute
a legal conclusion on the ultimate issue of fact”); Glass v. Anne Arundel Cty., 38 F.
Supp. 3d 705, 717 (D. Md. 2014) (excluding portion of expert report where expert
opined that plaintiff “followed [defendant] too closely” because “this is a conclusion
about whether [plaintiff] violated the law”); Karahodzic v. JBS Carriers Inc., 2015
WL 11181973, at *6 (S.D. Ill. Apr. 27, 2015) (holding “experts may not opine on
whether defendants’ actions violated Illinois’ statutes governing merging traffic
(625 ILCS 5/11-905) and minimum speed regulations (625 ILCS 5/11-606), as such
opinions constitute legal conclusions”).
32
exclude McDonald’s testimony. (See Order, ECF No. 80.) At that time, the Court
told Defendants that it would “allow [them] to renew [their] motion for summary
judgment” after the Court ruled on the admissibility of McDonald’s testimony. (Id.,
PageID.2192.) If Defendants wish to file a renewed motion for summary judgment,
they shall do so by no later than November 26, 2019.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: November 5, 2019
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on November 5, 2019, by electronic means and/or
ordinary mail.
s/ Holly A. Monda
Case Manager
(810) 341-9764
33
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