Vigilant Insurance Company et al v. North Suburban Towing

Filing 41

ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Exclude Expert Testimony 29 is DENIED. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 9/24/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Vigilant Insurance, and
Federal Insurance Co.,

Civ. No. 17-1351 (PAM/HB)
Plaintiffs,

v.

MEMORANDUM AND ORDER

North Suburban Towing,
Defendant.

This matter is before the Court on Plaintiffs’ Motion to Exclude Expert Testimony
(Docket No. 29.) For the following reasons, the motion is denied.
BACKGROUND
In December of 2014, an employee of Relay House, Inc. (“Relay”) contacted Boyer
Trucks and asked them to tow a broken satellite uplink truck for repair. (Def.’s Opp’n
Mem. (Docket No. 36) at 2.) Boyer Trucks retained Defendant North Suburban Towing,
Inc., to complete the tow. (Id.) Defendant sent an employee to tow the truck, but rather
than towing it, he attempted to make repairs to the vehicle. (Id.) After making some
changes to the driveshaft, Defendant’s employee asked Relay’s employee to test drive the
vehicle. (Id. at 3.) During the test drive, the rear axle assembly completely separated from
the truck, causing damage to the truck and its contents. (Id.)
The truck and its contents were insured by Plaintiffs Vigilant Insurance Company
and Federal Insurance Company. (Compl. (Docket No. 1) at ¶ 2.) Relay made claims
under its policies. Plaintiffs made the required payments and became subrogated to the

rights of Relay. (Id. at ¶ 18.) They now sue Defendant in negligence, claiming that the
actions of Defendant’s employee caused the damage. (Id. at ¶ 20.)
Defendant hired Hernan Mercado-Corujo (“Mercado”), a mechanical engineer, to
review expert reports, claim files, photos taken by the adjusters, and deposition transcripts.
(Def.’s Opp’n Mem. at 4.) He concluded that the damage to the vehicle was inevitable due
to pre-existing problems with components on the underside of the vehicle, specifically the
U-bolts and rear axle. (Id. at 4.) He further concluded that the truck would likely have
suffered the same fate had it been towed as planned. (Id. at 5.)
DISCUSSION
Rule 702 provides for the admissibility of expert opinion testimony. According to
the Rule, this testimony is admissible if the expert is qualified and:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702. The Court’s role is to act as a “gatekeeper” to ensure that only relevant
and reliable expert testimony is admitted. See Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). To determine reliability, the Court should examine (1) whether the
theory or technique can be and has been tested, (2) whether it has been subjected to peer
review and publication, (3) the known rate of potential error, and (4) whether the theory or
technique has been generally accepted. Id. at 592-95.

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However, “the factual basis of an expert opinion goes to the credibility of the
testimony, not the admissibility, and it is up to the opposing party to examine the factual
basis for the opinion in cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929
(8th Cir. 2001) (citation and quotation omitted). The Court should exclude an expert
witness “[o]nly if the expert’s opinion is so fundamentally unsupported that it can offer no
assistance to the jury.” Id. at 929-30.
Plaintiffs argue that Mercado’s testimony should be excluded largely because:
(1) he is unqualified to express his opinion; (2) he did not inspect the truck or components
in person; (3) his analysis is based partially on statements and conclusions made by others;
and (4) his opinion is irrelevant because it does not address the potential fault of
Defendant’s employee.
A.

Qualifications
Plaintiffs contend that Mercado is not qualified because he has never worked with

or operated tow trucks, has insufficient experience outside of his education, and primarily
works in vehicle fire investigation. However, Mercado is a licensed mechanical engineer,
has used his engineering degree in the automotive industry for more than 16 years, and is
involved in multiple relevant professional associations. (See Martin Aff. (Docket No. 37)
at 37.) His curriculum vitae details extensive work with vehicles and their componentparts, including investigative work in those areas. (Id. at 42.) Overall, his education and
experience show that he is qualified to express his opinions on vehicular components and
their importance in this case. The fact that he has not investigated this exact situation in
the past does not render his report and testimony irrelevant.
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B.

Method of Inspection
Plaintiffs argue that because Mercado could not inspect the truck first-hand, his

testimony is inadmissible. This argument is meritless. Mercado had no opportunity to
inspect the damage in person because mechanics fixed the truck and discarded the damaged
parts before this lawsuit was initiated. (Pl’s Ex. B (Docket No. 29) at 4-5.) Plaintiffs’
disclosed expert, Richard Boesel, also conducted his investigation after the truck was
repaired. (Id. at 12.) By this logic, Plaintiffs’ argument would call for the exclusion of
their own expert witness as well as Defendant’s. Mercado admits in his report that his
findings are imperfect because he did not see the truck or components first-hand, but his
report and testimony would still assist a jury with facts in issue. His lack of first-hand
knowledge can be addressed on cross-examination.
C.

Basis of Mercado’s Opinions
The fact that Mercado formed his opinions and conclusions with the help of

statements and writings from others also does not mandate exclusion of those opinions.
Mercado’s expert report is based on photos taken of the vehicle and its components shortly
after the accident, statements from insurance adjusters and mechanics, and deposition
testimony from those present at the time of the damage. These are shortcomings in the
investigation that Mercado repeatedly acknowledges in his report, and they can be more
properly addressed during cross-examination. Despite these shortcomings, the reliability
of Mercado’s opinions and methods are bolstered by the fact that another mechanical
engineer at his company peer-reviewed his report. (Id. at 15.) While Mercado relies on
statements and information provided by others, he uses that information to piece together
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the situation as best he can, explain the component parts involved and the factors at play,
and then provide a conclusion. It is common for experts to analyze photos and documents
prepared by others, and it is up to the jury to decide whether Mercado’s conclusions are
credible due to his reliance on second-hand photos and documents. As it stands, the
materials Mercado used are a sufficient basis for his testimony.
D.

Subject of Mercado’s Opinions
Plaintiffs also take issue with Mercado’s failure to focus on the background and

training of Defendant’s employee. Testimony is admissible if, in part, “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.” Fed. R. Evid. 702(a). The Rule does not
require that the testimony assist the jury with all facts. Mercado’s report and testimony
addresses the root cause of the damage to the vehicle, and whether the damage would have
occurred had the vehicle been towed. These are certainly facts in issue. His opinions are
helpful to a jury because he explains, among other things: (1) the location, function, and
importance of the relevant truck components; (2) how these components interact with other
components on vehicles like the one in question; (3) how these components can fail, and
the consequences if they fail; and (4) his opinion on the likelihood of these components
failing during a tow. (See generally Pl’s Ex. B. (Docket No. 29.)) This is specialized
information that can help a jury better understand the technical and mechanical aspects of
the issues presented in this case. If Plaintiffs believe Mercado failed to consider all relevant
factors in forming his opinion, that is a matter for cross-examination.

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CONCLUSION
Mercado’s testimony and report are relevant to this case. Further, he is qualified to
give his opinions, which would assist the jury in understanding the technical and
mechanical issues presented. Accordingly, IT IS HEREBY ORDERED that Plaintiffs’
Motion to Exclude Expert Testimony (Docket No. 29) is DENIED.

s/ Paul A. Magnuson

Dated: September 24, 2018

Paul A. Magnuson
United States District Court Judge

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