Boren et al v. Smith Motor Freight et al
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Smith Motor Freight, Inc. and Kenneth Fingerhut's Motion to Exclude Testimony of Plaintiff Diana Boren's Expert, David Stopper (Doc. 24) is GRANTED in part and DENIED in part.. Signed by District Judge John A. Ross on 7/24/15. (LGK)
UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIANA BOREN and ALMA ARCHIE,
Plaintiffs,
vs.
SMITH MOTOR FREIGHT, INC., and
KENNETH FINGERHUT,
Defendants.
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Case No. 4:14-CV-00437-JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendants Smith Motor Freight, Inc. and Kenneth
Fingerhut's Motion to Exclude Testimony of Plaintiff Diana Boren's Expert, David Stopper
(Doc. 24). The Motion is fully briefed and ready for disposition. Defendants request oral
argument on their Motion, however the Court finds that the matter is thoroughly briefed and that
oral argument is unnecessary. For the following reasons, Defendants' Motion will be
GRANTED in part and DENIED in part.
I. Background
This action arises from a motor vehicle accident on October 31, 2013, involving a Toyota
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Corolla operated by Plaintiff Diana Boren ("Boren"), with Plaintiff Alma Archie ("Archie")
riding in the front passenger seat, and a tractor-trailer driven by Defendant Ken Fingerhut
("Fingerhut") while in the scope of his employment with Defendant Smith Motor Freight
("Smith Motor"). On March 10, 2014, Plaintiffs filed a three-count complaint alleging
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The parties represent to the Court that Ms. Archie has settled her claims against the Defendants. The
Court notes, however, that the record does not reflect this agreement and Ms. Archie is still a party to the litigation.
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negligence per se (Count II) and various claims of negligence (Counts I & III) against Fingerhut
and Smith Motor.
Boren offers David Stopper, an accident reconstruction expert, to opme on whether
Fingerhut crossed the centerlines and that the area of impact was in the Plaintiffs' westbound
lane. Defendants do not dispute Mr. Stopper's qualifications but, instead, seek to exclude several
of his expert opinions as based on insufficient facts and invalid methodologies that render them
irrelevant and unreliable speculation (Doc. 24 at 1; Doc. 25 at 3). Specifically, Defendants
request the exclusion of the following four opinions:
A. The fluid spatter Trooper Palmer, the investigating state trooper, observed could not
have leaked from the Toyota during the impact.
B. Certain gouge marks might be related to the collision.
C. "Trailer swing" caused the rear of the Defendants' trailer to slide into the Plaintiffs'
westbound lane.
D. The vehicles could only have collided at Mr. Stopper's determined impact angle if the
Defendants' trailer was in the Plaintiffs' westbound lane.
II. Analysis
The admission of expert testimony in federal court is governed by Federal Rule of
Evidence 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
See Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998). Doubt regarding "whether an expert's
testimony will be useful should generally be resolved in favor of admissibility." Id. (citation and
internal quotation marks omitted). In Daubert, the Supreme Court explained that in examining an
expert's opinions for admissibility, trial courts should consider the following criteria: (1) whether
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the theory being offered by the expert has been tested; (2) whether the theory has been subjected
to peer review, publication, or analysis by others considered experts in the field; (3) whether the
theory has a "known or potential rate of error"; and (4) whether the theory has been generally
accepted by others in the field. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94
(1993). "The proponent of the expert testimony must prove its admissibility by a preponderance
of the evidence." Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing
Daubert, 509 U.S. at 592). " 'The exclusion of an expert's opinion is proper only if it is so
fundamentally unsupported that it can offer no assistance to the jury.' " Sappington v. Skyjack,
Inc., 512 F.3d 440, 448 (8th Cir. 2008) (quoting Wood v. Minn. Mining & Mfg. Co., 112 F.3d
306, 309 (8th Cir. 1997)).
A. Fluid Spatter
First, Defendants seek to exclude Mr. Stopper's opinion that the fluid spatter Trooper
Palmer, the investigating state trooper, observed could not have leaked from the Toyota during
the impact. In his deposition, Trooper Palmer concludes that the initial impact between the two
vehicles occurred at the center of the roadway. Trooper Palmer indicates that he came to this
determination because of a pattern of debris as well as liquids from the Toyota (Doc. 27-2 at 23). Mr. Stopper refutes this conclusion. Defendants argue that Mr. Stopper's opinion, however,
should be excluded because it is based on a fundamentally flawed analysis. Specifically,
Defendants argue that Mr. Stopper's opinion is unreasonable on its face and is not supported by
sufficient facts because his calculations failed to consider the undisputed fact that the Toyota's
deceleration was not constant and he relied on several assumptions (Doc. 25 at 6-7).
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Boren responds that Mr. Stopper used "a widely accepted reconstruction formula" 2 to
make these calculations. In so-doing he calculated the average deceleration rate and sliding time
necessary in order to reach the 354 feet from the antifreeze to the final resting place. While Mr.
Stopper did make an assumption regarding the post-impact speed, he used the assumed speeds of
40 mph and 50 mph, assumptions that are both higher than the likely post-impact speed of the
Toyota and therefore more favorable to the Defendants (Doc. 33 at 5-7).
Defendants' arguments tend to go to the weight of the testimony not the admissibility of
the testimony. While the Court is charged as a "gatekeeper" to exclude unhelpful and unreliable
expert testimony, " '[i]t is decidedly the jury's role to evaluate the weight to be given to the
testimony of dueling qualified experts.' " ABT Sys., LLC v. Emerson Elec. Co., No.
4:11CV00374 AGF, 2013 WL 490174, at *1 (E.D. Mo. Feb. 8, 2013)(quoting Uniloc ESA, Inc.
v. Microsoft Corp., 632 F.3d 1292, 1306 (Fed. Cir. 2011)). The Court does not believe that Mr.
Stopper's opinion is so fundamentally unsupported that it can offer no assistance to the jury.
Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988). Further, Defendants have
conceded that Mr. Stopper is qualified to give opinions regarding accident reconstruction.
Therefore, Defendants' Motion as to Mr. Stopper's opinion regarding the fluid spatter
will be denied.
B. Gouge Marks
Defendants next request that the Court exclude Mr. Stopper's testimony regarding certain
gouge marks in the roadway. Specifically, Defendants assert that while Mr. Stopper claims the
gouges are "more likely" related to the accident than other gouges he saw, Mr. Stopper concedes
that he cannot be sure that they are related to the accident (Doc. 25 at 9). Boren responds that Mr.
Stopper is not opining that the observed gouge marks are from this crash. Instead, Boren argues,
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Specifically, Boren indicates that Mr. Stopper utilized a reconstruction formula from the Traffic Crash
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Mr. Stopper will testify that the gouge marks are from an automobile crash, that they are in the
vicinity of where the collision occurred based on his calculations, and that they may have been
made by the Toyota because the damage to the car indicates it would have been capable of
making the gouge marks (Doc. 33 at 8).
The Court finds that Mr. Stopper's opinion regarding the gouge marks is too speculative
as the gouge marks are not sufficiently connected to this accident. Although Boren urges the
Court to consider Mr. Stopper's calculations and his review of the damage to the Toyota, Mr.
Stopper admits that he does not know whether the Toyota caused any of the gouges. Thus his
ultimate conclusion is too speculative especially in light of the report that the area is "a
commonplace [sic] for a crash" (Doc. 27-4 at 2). See Jaurequi v. Carter Mfg. Co., 173 F.3d
1076, 1084 (8th Cir. 1999) (finding the district court did not abuse its broad discretion in
concluding that the proffered testimony flunked the reliability prong of Daubert because "he has
provided no basis for us to believe that his opinions are anything more than unabashed
speculation."); see also Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir. 2001)
("In sum, the district court's gatekeeping role separates expert opinion evidence based on 'good
grounds' from subjective speculation that masquerades as scientific knowledge.")
Therefore, Defendants' Motion as to Mr. Stopper's opinion regarding the gouge marks
will be granted. If Plaintiff has some further support for this testimony, an offer of proof can be
made at trial.
C. "Trailer Swing"
Defendants also assert that the Court should exclude Mr. Stopper's opinion that the
Defendants' trailer experienced "trailer swing." Defendants argue that Mr. Stopper's theory is
not based on any accident reconstruction methodology and therefore is nothing more than pure
Reconstruction Manual. TRAFFIC RECONSTRUCTION (Lynn B. Fricke ed., 2nd ed. 2010).
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speculation. Specifically, Defendants assert that Mr. Stopper does not have enough facts to
scientifically support his theory (Doc. 25 at 10). Boren responds that Mr. Stopper's opinion
regarding "trailer swing" is admissible because it is a reoccurring phenomenon well known and
accepted in the field of accident reconstruction. Further, Boren argues that Mr. Stopper's opinion
is based on the following eight factors: "(1) the velocity of the tractor-trailer; (2) the wind
conditions on the day of the accident; (3) the wet road condition of the highway; (4) the driver's
approach to the curve; (5) the deceleration of the tractor-trailer; (6) the super-elevation of the
curve and resulting g forces exerted on the vehicle; (7) the trailer's light load and (8) the angle of
impact" (Doc. 33 at 10).
The Court does not believe that Mr. Stopper's opinion is so fundamentally unsupported
that it can offer no assistance to the jury. See Loudermill, 863 F.2d at 570. Mr. Stopper's opinion
is based on multiple factors that existed at the time of the accident. He has therefore sufficiently
connected his proposed testimony with the facts of the case. Lauzon, 270 F.3d at 686-87. Further,
Defendants will have the opportunity to challenge Mr. Stopper's assumptions and methodology
through cross-examination and contrary evidence. Such opportunity for "cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509
U.S. at 596.
Therefore, Defendants' Motion as to Mr. Stopper's opinion regarding "trailer swing" will
be denied.
D. Lane of Impact
Finally, Defendants assert that the Court should exclude Mr. Stopper's opinion that the
collision could not have occurred in the Defendants' lane based on Mr. Stopper's conclusion
about the vehicles' impact angle. Defendants argue that this opinion is based on unsupported
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speculation without excluding another recognized alternative (Doc. 25 at 16). Specifically,
Defendants argue that Mr. Stopper failed to consider the alternative explanation that Boren's
Toyota veered leftward towards the trailer rather than traveling in a rigid straight line before
impact (Doc. 37 at 8). Boren responds that Mr. Stopper's determination of the lane of impact is
based on the damage profile of the two vehicles and the physical impossibility of other
alternative explanations (Doc. 33 at 13).
Upon review, Defendants' objections to this testimony go more to the weight of the
testimony than to the admissibility of the expert's testimony. The sufficiency of the opinion and
the weight to be accorded it are matters for the jury to decide. ABT Sys., LLC v, 2013 WL
490174, at
*1.
Also, Defendants will have the opportunity to cross examine Mr. Stopper
regarding, to the extent the Court finds it relevant, alternative theories. Daubert, 509 U.S. at 596.
Therefore, Defendants' Motion as to Mr. Stopper's opinion regarding the lane of impact
will be denied.
III. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Defendants Smith Motor Freight, Inc. and Kenneth
Fingerhut's Motion to Exclude Testimony of Plaintiff Diana Boren's Expert, David Stopper
(Doc. 24) is GRANTED in part and DENIED in part
Dated
thi~of July, 2015.
.ROSS
D STATES DISTRICT JUDGE
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