Ellis et al v. Machinerylink, Inc.

Filing 127

MEMORANDUM AND ORDER - IT IS ORDERED: Defendant MLI Transport, LLC's, motion in limine (Filing No. 67 ) is denied. Plaintiffs' Daubert motion to exclude expert opinion and testimony (Filing No. 69 ) is denied. Ordered by Senior Judge Joseph F. Bataillon. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDOLPH ELLIS, husband and wife; and
DEBRA ELLIS, husband and wife;
8:13CV273
Plaintiffs,
v.

MEMORANDUM AND ORDER

MLI TRANSPORT, LLC, a Kansas limited
liability company;
Defendant.

This matter is before the court on defendant MLI Transport, LLC's motion in
limine, Filing No. 67, and on plaintiffs’ Daubert motion to exclude expert opinion and
testimony, Filing No. 69. This is an action for damages for personal injuries sustained in
a collision. Jurisdiction is premised on diversity of citizenship under 28 U.S.C. § 1332.
Both parties seek exclusion of the testimony of the opposing parties' expert
witness. The defendant seeks the exclusion of the testimony of Colin H. Daly, Ph.D. It
contends Dr. Daly’s opinions are not based upon the scientific method, or upon
methodology that is generally accepted in the field of biomechanical engineering. The
plaintiffs contend the testimony of Brian Weaver, P.E., must be excluded because his
opinion is unreliable and irrelevant.
I.

Facts

In support of their respective motions, the parties submit the affidavits of their
experts and supporting documentation. See Filing No. 68, Index of Evid., Exs. 1-14;
Filing No. 73, Amended Index of Evid., Exs. 1-6; Filing No. 85, Index of Evid., Exs. 1-5;
Filing No. 90, Exs. A-l; Filing No. 99, Index of Evid., Exs. 1-2; Filing No. 100, Index of
Evid., Exs. 1-8.

The record shows that plaintiffs' expert Colin H. Daly has a Bachelor of Science
degree in mechanical engineering from the University of Glasgow and a Ph.D. in
bioengineering from the University of Strathclyde. Filing No. 90-8, Index of Evid., Ex. H,
Affidavit of Colin H. Daly ("Daly Aff.") at 1; id., Ex.A, Curriculum Vitae.

He was

employed for 38 years at the University of Washington as a Professor of Mechanical
Engineering.

Id., Daly Aff. at 2.

He has written numerous papers in the fields of

bioengineering, physics research, and has consulted on biomechanics of injury and
trauma. Id., Daly Aff., Ex. B. He has reviewed the accident report, repair invoices,
photos, medical records, diagrams, and deposition testimony in connection with this
case. Id., Daly Aff. at 3.
The record shows Dr. Daly reviewed plaintiff Randolph Ellis's medical records
and has conducted a conservation of momentum analysis, which is a generally
accepted method of analyzing an impact.
directly from Newton’s Laws of Motion.

Id. at 3-4.
Id.

The methodology is derived

Dr. Daly utilizes the conservation of

momentum analysis to determine the speed of Mr. Meskimen’s tractor-trailer at the
moment of impact. Id. He relies upon a peer-reviewed, in-vivo study to establish what
velocity change is necessary to cause injury in a normal, healthy spine. Id. at 8-9; Ex.
D, Bailey and Wong Study.

He states his opinions and analysis comport with the

generally accepted methodologies used in biomechanical engineering. Id., Daly Aff. at
2.
The defendant's expert, Brian T. Weaver, is a Professional Engineer specializing
in biomechanics, accident reconstruction, computer simulation and mechanical systems
designs. Filing No. 68-1, Affidavit of Brian T. Weaver ("Weaver Aff.") at 1. He has a
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Bachelor of Science in Engineering Mechanics/Biomechanics and a Master of Science
in Engineering Mechanics.

Id.; Ex. 2, Curriculum Vitae.

He has also received

specialized training in traffic accident reconstruction from Northwestern University
Center for Public Safety in Evanston, Illinois, and holds two certificates of completion for
that training. Id., Weaver Aff. at 1. He has performed over 100 accident reconstruction
analyses. Id. at 2.
In connection with this case, he reviewed the physical evidence captured in the
post-incident photographs of the vehicles in their rest positions, including the skid mark.
Filing No. 68, Index of Evid. Ex. 1, Weaver Aff. at 2; Id., Ex. 3; Filing No. 73, Amended
Index of Evid., Ex. 1, Engineering and Biomechanical Analysis ("Weaver report"). He
also considered the separation distance between the vehicles post collision as depicted
in the photographs, the damage to the vehicles depicted in the photographs, the
depositions of William Meskimen, the owner-operator driving the defendant’s vehicle,
and of the plaintiff, Randolph Ellis. Filing No. 68, Index of Evid., Ex. 7. He expressed
an opinion based upon a conservation of momentum analysis, and opined "there is no
biomechanical basis to conclude that the forces and motions Mr. Ellis experienced in his
cervical spine during the subject collision event were an exceptional contributor to his
documented cervical condition." Filing No. 73, Amended Index of Evid., Ex. 1, Weaver
Report at 26, (CM/ECF Page ID # 389). Weaver also criticizes Dr. Daly's methods. Id.
at 26-28; Filing No. 68-1, Ex. 1, Weaver Aff at 2-10.
II.

LAW

Federal Rule of Evidence 702 governs the admissibility of expert testimony and
has "three distinct but related requirements:
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(1) the evidence must be based on

scientific, technical or other specialized knowledge that is useful to the finder of fact in
deciding the ultimate issue of fact; (2) the witness must have sufficient expertise to
assist the trier of fact; and (3) the evidence must be reliable or trustworthy.@ Kudabeck
v. Kroger Co., 338 F.3d 856, 859 (8th Cir. 2003). When faced with a proffer of expert
testimony, trial judges are charged with the Agatekeeping@ responsibility of ensuring that
all expert evidence admitted is both relevant and reliable.

Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 147 (1999); Daubert v. Merrell Dow Pharms., 509 U.S. 579,
589 (1993); United States v. Wintermute, 443 F.3d 993, 1000 (8th Cir. 2006).
A trial court must be given wide latitude in determining whether an expert=s
testimony is reliable. Kumho Tire, 526 U.S. at 152. This analysis requires that the court
make a Apreliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or methodology . . .
can be [properly] applied to the facts in issue.@ Id. at 147; Daubert, 509 U.S. at 592-93.
The Supreme Court identified a number of factors that might assist the district court in
determining the admissibility of expert evidence. Id. The court may consider several
factors in determining the soundness of the scientific methodology including: (1)
whether the theory or technique can be and has been tested; (2) whether the theory or
technique has been subjected to peer review and publication; (3) the known or potential
rate of error and the existence and maintenance of standards controlling the technique;
and (4) whether the theory or technique used has been generally accepted in the
relevant scientific community. Id. Courts must focus on the principles and methodology
rather than the conclusion they generate.

Id. at 595.

"Expert evidence may be

excluded if 'there is simply too great an analytical gap between the data and the opinion
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proffered.'” Union Pac. R. Co. v. Progress Rail Servs. Co., — F.2d —, —, 2015 WL
570300, *3 (8th Cir. Feb. 11, 2015) (quoting General Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997)).
Second, the court must ensure that the proposed expert testimony is relevant
and will serve to aid the trier of fact. Id. at 592. Doubts regarding whether an expert's
testimony will be useful should generally be resolved in favor of admissibility. Miles v.
General Motors Corp., 262 F.3d 720, 724 (8th Cir. 2001). Expert testimony assists the
trier of fact when it provides information beyond the common knowledge of the trier of
fact. Id. at 860. "The general rule that 'the factual basis of an expert opinion goes to
the credibility of the testimony, not the admissibility,'" but "'if the expert's opinion is so
fundamentally unsupported that it can offer no assistance to the jury, it must be
excluded.”

Lawrey v. Good Samaritan Hosp., 751 F.3d 947, 953 (8th Cir. 2014)

(quoting Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416
(8th Cir. 2005); see also Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056
(8th Cir. 2000) (“Even a theory that might meet certain Daubert factors, such as peer
review and publication, testing, known or potential error rate, and general acceptance,
should not be admitted if it does not apply to the specific facts of the case.”).
ANothing in Rule 702, Daubert, or its progeny requires 'that an expert resolve an
ultimate issue of fact to a scientific absolute in order to be admissible.'" Kudabeck, 338
F.3d at 861 (quoting Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001)).
Rather, the proponent of expert testimony bears the burden of providing admissibility
beyond a preponderance of the evidence. Lauzon v. Senco Prods., Inc., 270 F.3d 681,
686 (8th Cir. 2001).
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The United States Court of Appeals for the Eighth Circuit adheres to the rule that
when the application of a scientific methodology is challenged as unreliable under
Daubert and the methodology itself is otherwise sufficiently reliable, outright exclusion of
the evidence is "warranted only if the methodology was so altered by a deficient
application as to skew the methodology itself." United States v. Gipson, 383 F.3d 689,
697 (8th Cir. 2004) (brackets omitted) (quoting United States v. Martinez, 3 F.3d 1191,
1198 (8th Cir. 1993)); United States v. Dico, Inc., 266 F.3d 864, 871 (8th Cir. 2001)
(holding that the sufficiency of the factual basis of an expert's theory is open to any
challenge on cross-examination, but sufficiency is not a reason to exclude the expert's
testimony altogether). "As the Supreme Court emphasized in Daubert, 509 U.S. at
595–96, 'Vigorous 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.'" United States v. Vesey, 338 F.3d 913, 917 (8th Cir.
2003). The gatekeeper role should not, however, invade the province of the jury, whose
job it is to decide issues of credibility and to determine the weight that should be
accorded evidence. Id.
III.

DISCUSSION

The record shows that both experts are qualified to express their expert opinions.
Both Mr. Weaver and Dr. Daly relied on reports, witness deposition testimony,
photographs of the scene and of damage to the vehicle, the police report, plaintiff
Randolph Ellis's medical records, and their years of experience performing experiments
and other analyses concerning injuries in automobile accidents.

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These materials

contain the facts relevant to an accident reconstruction, a biomechanical analysis, and
an injury causation analysis.1
The principles applied by both experts are standard, accepted accident
reconstruction and biomechanics principles, and their opinions have sufficient bases in
fact. Simply because each expert disagrees with the other's conclusions and criticizes
the other's reconstruction methods does not render the methodology fallible. The court
finds that each expert's methodology “fits” the facts of the case and that the proffered
testimony will be helpful to the jury.

Each expert's criticism of the other experts'

testimony is properly the subject of thorough cross-examination and not a reason to
totally exclude the testimony.
At this time, it appears that plaintiffs’ Daubert objections go more to the weight
than to the admissibility of the experts’ testimony, subject to a proper showing of
foundation and reliability. The record shows that the experts are qualified to testify to
the opinions contained in their reports and those opinions satisfy Daubert’s reliability
requirements. The sufficiency of the opinions and the weight to be accorded them are
matters for the jury to determine. The court will properly limit the experts’ testimony to
matters that would be helpful to the jury and are within the experts’ area of expertise.

1

Courts have admitted accident reconstruction and biomechanics expert testimony based on
evidence comparable to the evidence that Dr. Daly and Mr. Weaver relied on here. See, e.g., Miles v.
Gen. Motors, 262 F.3d at 724 (expert considered a police report, photographs of the scene, plaintiff's
medical records, plaintiff's radiology reports, witness statements and depositions, and medical literature);
In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 978 F.
Supp. 2d 1053, 1069 (C.D. Cal. 2013) (causation and biomechanics expert considered another expert's
report, photographs the vehicle, medical records, and a police report); Chavez v. Marten Transp., Ltd.,
No. 10CV4, 2012 WL 988011 (D.N.M. Mar. 22, 2012) (accident reconstruction and biomechanics expert
considered deposition testimony, a police report, plaintiff's medical records, plaintiff's worker's
compensation complaint, and the parties' expert reports); Paine v. Johnson, No. 06C 3173, 2010 WL
749857 (N.D. Ill. Feb. 25, 2010) (accident reconstruction expert considered a police report and
photographs of the vehicle damage and accident site).

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Accordingly, the court finds the parties' Daubert challenges should be rejected and the
parties’ motions for an order in limine excluding the evidence should be denied.
IT IS ORDERED:
1.

Defendant MLI Transport, LLC's, motion in limine (Filing No. 67) is denied;

2.

Plaintiffs' Daubert motion to exclude expert opinion and testimony (Filing

No. 69) is denied.
DATED this 10th day of March, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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