Trekell v. Target Corporation

Filing 82

ORDER finding as moot 67 motion to strike ; granting in part and denying in part 70 motion to strike. Signed on November 16, 2020, by District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KENNETH TREKELL
Plaintiff,
v.

TARGET CORPORATION,
Defendant.

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No.: 4:18-CV-00662-DGK

ORDER GRANTING IN PART MOTION TO EXCLUDE EXPERT TESTIMONY
This personal injury case arises from a motorcycle accident. Plaintiff Kenneth Trekell
alleges a tractor-truck pulling a trailer branded with Defendant Target Corporation’s (“Target”)
logo caused a collision that resulted in his foot being fractured. The tractor-truck and trailer that
allegedly caused the accident drove away without stopping, and the driver of the tractor-truck is
unknown. Plaintiff argues Target is responsible for his injuries. Target denies liability.
Now before the Court is Plaintiff’s Motion to Strike Fred Semke as an Expert Witness
and to Exclude His Opinions and Testimony (Doc. 70). 1 Finding some of Semke’s opinions are
not admissible as expert testimony, the motion is GRANTED IN PART.
Standard
Where, as here, a federal court is hearing a lawsuit pursuant to its diversity jurisdiction,
the admissibility of expert testimony is governed by federal law. Unrein v. Timesavers, Inc., 394
F.3d 1008, 1011 (8th Cir. 2005). Federal Rule of Evidence (“FRE”) 702 provides that:
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:
1

ECF document #67 is Plaintiff’s original motion and incorporated brief to exclude expert testimony. ECF
document #70 is the same motion and brief revised to cite federal law instead of state law.

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(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.
In other words, the proponent must show that the expert’s opinions are relevant, the expert is
qualified to offer them, and “the methodology underlying his conclusions is scientifically valid.”
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006).
The party seeking to introduce the expert testimony bears the burden of establishing its
admissibility by a preponderance of the evidence. Lauzon v. Senco Products, Inc., 270 F.3d 681,
686 (8th Cir. 2001). Doubts are resolved in favor of admissibility. Marmo, 457 F.3d at 758.
Analysis
Defendant’s expert witness, Fred Semke (“Semke”), has a master’s degree in mechanical
engineering and has worked as an accident reconstructionist for over twenty years. Semke offers
six opinions in his expert report (Doc. 72-1), each in a correspondingly numbered paragraph.
In the first opinion, Semke opines that GPS data provided to him by Defendant indicates
that Defendant did not have any trailers in the vicinity of the accident at the time of the collision.
Accident Evaluation at 9. Further, after conducting an internet search for companies with the
word “Target” in their name—and notwithstanding the testimony of three eyewitnesses who said
the trailer at issue bore Defendant Target’s logo—Semke opines it is more likely that the trailer
that ran over Plaintiff’s foot belonged to another company with “Target” in its name. Id.

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In opinions two through five, Semke asserts where the various vehicles involved in the
accident were positioned after the accident and in the moments leading up to the accident. Id. at
9-10. Defendant argues this testimony will help the jury understand how long it takes a vehicle
to stop when it is traveling at 35 miles per hour—the speed Plaintiff testified during his
deposition that he was traveling before the accident.

Defendant also contends Semke’s

testimony will assist the jury in understanding the field of view of the various drivers involved in
the subject accident, and how long it would take a driver to react after observing a stimuli.
These opinions are based on Semke’s own measurements and inspection of the accident scene,
his calculations (including one produced by a computer program called Interactive Driver
Response Research (“IDDR”) created by Dr. Jeff Muttart), his review of police reports, and his
review of testimony from other witnesses.
In his sixth opinion, Semke states that had Plaintiff followed a recommendation in the
Missouri Department of Revenue’s Motorcycle Operator Manual which encourages
motorcyclists to position themselves in driving lanes in such a way as to distance themselves
from potential hazards, he would have changed lanes prior to the accident. He then would have
avoided injury once the accident occurred. Id. at 10.
Finally, although not offered as an opinion in his report, during his deposition Semke
opined on the accuracy and reliability of the eyewitnesses’ testimony concerning the accident.
He stated, “I’ve read, obviously, witnesses’ testimony over the years, and time and distance is
something that’s not accurately remembered.” Semke Depo 64:20 - 23 (Doc. 68). “I’ve seen it
change from statements to depos before, and sometimes there’s depo 1 and depo 2, and it’s—it’s
just not very reliable. I think there’s research that would show that it’s not very reliable.” Id.
64:25 – 65:1 - 4. Plaintiff is concerned Defendant may elicit these opinions during trial.

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Plaintiff seeks to exclude all of Semke’s testimony arguing: (1) his testimony will not
assist the jury; (2) the jury will not need expert testimony to reach their conclusion about the
manner in which the accident occurred; (3) his opinion rests on false and selective reading of the
testimony in the record; (4) his testimony on perception reaction time is derivative of other
experts’ work (specifically, Dr. Muttart’s IDDR program, which Plaintiff contends is simply an
Excel spreadsheet) and is unreliable; (5) he is not relying on the type of facts generally relied
upon by accident reconstructionists, instead relying on hearsay and speculation; (6) his accident
simulations are irrelevant and unduly prejudicial; and (7) his opinions on human perception and
witness reliability are outside his area of expertise and an improper subject of testimony.
The Court rules as follows.
Semke’s first opinion is not admissible because allowing him to testify about GPS data
for Target trailers would contravene the Court’s Order Granting in Part Motion to Strike (Doc.
60). That order prohibited Defendant from calling any witness “employed by Target,” or the
“Hogan, Ruan, or Dart” carriers, or “a representative of any entity maintaining or providing GPS
devices and GPS data for trucks hauling Target trailers[,] or Target trailers,” to testify “about the
location of trucks hauling Target trailers at the time of the accident, or GPS data for such trucks
and/or trailers” on the day of the accident. Order Granting in Part Mot. to Strike at 11. The
Court entered this order as a sanction for Defendant’s violating Rule 26 by failing to identify
such witnesses until the very last day of discovery. Hence, allowing Semke to testify about GPS
tracking data provided to him by Defendant would effectively operate as an “end run” around
this sanction, which the Court will not permit. Even if Semke’s testimony about GPS data was
not foreclosed by the sanction’s order, the Court would still exclude this testimony because

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Defendant has not demonstrated that Semke is qualified to provide expert testimony on GPS
data.
The Court also prohibits Semke from testifying about the likelihood that the trailer that
ran over Plaintiff’s foot belonged to another company with “Target” in its name. Semke’s
internet search is not a foundation on which to base expert testimony concerning the likelihood
that another company’s trailer was involved in the collision, particularly since there is testimony
from multiple eyewitnesses—including testimony from a witness who has no relationship to
either party—that the trailer that ran over Plaintiff’s foot bore Defendant Target’s distinctive
logo. Defendant’s contention that Semke’s testimony is required because once the jury hears
Plaintiff’s evidence that the trailer bore Defendant’s logo, it will be difficult for the jury to
understand how Defendant’s trailer was not involved in the accident, is unavailing. The issue
here is whether Semke is qualified to give an expert opinion on this subject, and he is not.
Accordingly, Semke’s first opinion is excluded in its entirety. Defendant is prohibited
from offering: (1) any testimony about what GPS data might show about its trailers’ locations on
the day of the accident; (2) any opinion based in whole or in part on GPS data; and (3) any
opinion about the likelihood that another company with the word “Target” in its name bears
responsibility for the accident.
Turning to the opinions offered in paragraphs two through five of Semke’s expert report,
the Court holds Defendant has demonstrated they are admissible under FRE 702. Defendant has
shown these opinions are offered pursuant to Semke’s knowledge, skill, experience, training, and
education, and they will advance the jury’s understanding of the accident. His opinion and
testimony appear to be based on reliable principles and methods that are typically used by an
expert in the field of accident reconstruction, and Semke reliably applied those principles and

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methods to the facts here. Further, his opinion and testimony appear to be based on sufficient
facts and data. While Plaintiff has identified what are arguably flaws in his methodology, for
example, selectively reading the testimony in the record to support a conclusion that will please
Defendant who is paying him approximately $24,000 for his testimony, this argument goes to the
weight Semke’s testimony should be given, not its admissibility. Accordingly, opinions two
through five are admissible.
Opinion six, which essentially opines Plaintiff was not riding his motorcycle safely at the
time of the accident, is not admissible.
technical, or specialized knowledge.

This opinion is not based on Semke’s scientific,

It is based on Semke’s reading a brochure from the

Missouri Department of Revenue. This is not a sufficient basis for Semke to offer expert
testimony on this subject. Accordingly, opinion six is excluded in its entirety.
Finally, the Court turns to Semke’s deposition testimony concerning the reliability of
witnesses perception and memory of time and distance.

Although it is unclear whether

Defendant intends to offer this as an expert opinion at trial, out of an abundance of caution, the
Court will address this issue. As a threshold matter, this testimony is inadmissible because it is
not in Semke’s expert report. Even if it were disclosed in his report pursuant to the Court’s
scheduling and trial order, however, it would still be inadmissible because Semke’s opinions on
human perception and witness reliability are outside his area of expertise. Thus, this opinion is
excluded. 2
Conclusion
For the reasons discussed above, Plaintiff’s Motion to Strike Fred Semke as an Expert
Witness (Doc. 70) is GRANTED IN PART.

2

Of course, if Plaintiff’s counsel questions Semke on the topic of the reliability of witness perception or memory at
trial, she may open the door to admission of this testimony.

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IT IS SO ORDERED.
Date: November 16, 2020

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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