Dixon Legacy Transportation Systems, LLC

Filing 160

ORDER that Plaintiff's 130 Motion to Strike Legacy's Expert Witness Michael Dilich, or Alternatively, to Preclude Expert Testimony is DENIED without prejudice to filing a motion in limine to exclude or limit the scope of his testimony at trial. Signed by Magistrate Judge Peggy A. Leen on 9/6/2017. (Copies have been distributed pursuant to the NEF - SLD)

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    1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 SARAH DIXON, 8 9 10 11 v. Case No. 2:15-cv-01359-JAD-PAL Plaintiff, ORDER (Mot Strike – ECF No. 130) LEGACY TRANSPORTATION SYSTEMS, LLC, et al., Defendants. 12 13 Before the court is Plaintiff’s Motion to Strike Legacy’s Expert Witness Michael Dilich, 14 or Alternatively, to Preclude Expert Testimony Regarding the Speed that Third-Party Defendant 15 Ryan Richards was Traveling at the Time of the Collison [sic] Pursuant to FRE 702 (ECF No. 16 130). The court has reviewed the motion, Legacy Defendants’ Opposition (ECF No. 141), and 17 Plaintiff’ Reply (ECF No. 148). The court also heard oral argument from counsel at a hearing 18 conducted September 5, 2017. Eric Dobberstein appeared on behalf of plaintiff, Benjamin Carman 19 appeared on behalf of defendant Ryan Richards, and Steven Jaffe and Jason Wigg appeared for 20 the remaining defendants. 21 BACKGROUND 22 This case involves an August 13, 2013 multi-vehicle collision on I-15 south of Las Vegas 23 between Jean and Primm, Nevada. Plaintiff Sarah Dixon (“Dixon”) was a passenger in a 2009 24 Mitsubishi being driven by her then-boyfriend, defendant Ryan Richards (“Richards”). Both 25 Dixon and Richards were in the United States Marine Corps at the time and returning to Camp 26 Pendleton after a trip to Las Vegas. Defendant Leoncio Angeles (“Angeles”) was driving a tractor 27 trailer leased from defendant Legacy Transportation Systems, LLC (“Legacy”). The Mitsubishi 28 and tractor trailer collided. The parties dispute who was at fault for the accident. Plaintiff claims 1     1 that Angeles suddenly pulled his tractor trailer into the emergency lane blocking the Mitsubishi 2 being driven by Richards as Richards was in the process of trying to merge back into freeway 3 traffic. Plaintiff clams Richards was forced out of the emergency lane to avoid hitting the tractor 4 trailer, lost control, and swerved onto the freeway striking two vehicles before ending up stopped 5 in the middle traffic lane. Plaintiff claims Angeles was cited and pled guilty to making an unsafe 6 lane change and is at fault for the accident. Legacy claims that Richards was at fault for the 7 accident because he was highly intoxicated, and driving recklessly at a high rate of speed on the 8 shoulder of the road. What is not disputed is that Dixon was airlifted from the accident to UMC 9 where she was treated for life-threatening injuries. 10 The Complaint (ECF No. 1) in this case was filed July 17, 2015. The parties requested and 11 received special scheduling review when the court approved a joint proposed Discovery Plan and 12 Scheduling Order (ECF No. 23) on October 21, 2015. The initial discovery plan and scheduling 13 order established an April 18, 2016 deadline for disclosure of experts, and a June 13, 2016 deadline 14 for completing discovery. The parties requested and received two extensions of the discovery plan 15 and scheduling order deadlines extending the deadline for disclosure of experts until May 31, 2016, 16 and later to October 21, 2016. A third stipulation to extend the deadlines was filed by the parties 17 on December 19, 2016 (ECF No. 39). At a hearing held on January 10, 2017, on their third request 18 for extension, the court was dissatisfied with the parties’ discovery progress and required the 19 parties to schedule all remaining discovery and inform the court of what specific discovery was 20 still needed to be completed as well as proposed schedule for completing that discovery. See 21 Minutes of Proceedings (ECF No. 49). The court was also skeptical about defendants’ claims they 22 should receive another extension of the expert disclosure deadline because they had been unable 23 to retain a trucking standard of care expert because their own client, Angeles, had not yet been 24 deposed. The parties submitted a stipulated discovery plan and proposed order which the court 25 approved extending the deadline for defendant to disclose a trucking standard of care expert until 26 February 17, 2017. However, all other initial expert disclosures were closed. 27 This litigation has become increasingly contentious, and the court has decided many, many 28 discovery disputes. It is apparent that there have been communication breakdowns among counsel 2     1 that have contributed to counsel imputing bad faith and ill motives to one another that have resulted 2 in an inordinate amount of motion practice on matters counsel would ordinarily work out among 3 themselves without judicial intervention. 4 DISCUSSION 5 In the current motion, plaintiff seeks to strike the testimony of Legacy expert witness 6 Michael Dilich, or in the alternative, preclude him from testifying regarding the speed at which 7 Ryan Richards was traveling at the time of the collision. Plaintiff argues the testimony is 8 inadmissible under Fed. R. Evid. 702, and that the court should exercise its gatekeeping function 9 to exclude his testimony. Both sides in this case retained an accident reconstructionist expert. 10 Plaintiff argues that the opinions of defendants’ expert, Michael Dilich, are not based on proper 11 scientific principles and ignore “a massive amount of evidence” developed in deposition and other 12 discovery in this case. His opinions are highly speculative and unreliable because they are 13 contradicted by eyewitness testimony. Both the plaintiff and defendants’ experts agree that neither 14 can give reliable testimony regarding Richards’ speed at the time of the collision because they lack 15 the foundation to form such an opinion. This is because the NHP trooper investigating this 16 accident testified there were no measureable skid marks and he did not call in a specialty team to 17 assist in his investigation. The lack of physical evidence and Dilich’s failure to consider critical 18 eyewitness testimony, it is argued, should preclude his testimony. 19 Defendants oppose the motion arguing that expert testimony is admissible if it: (1) will 20 assist the trier of fact to understand the evidence; (2) is based on sufficient facts and data; and (3) 21 is the product of reliable methodology. Defendants assert Mr. Dilich’s opinions and report meet 22 this standard. Plaintiff’s own accident reconstructionist, Mr. Jones, testified at his deposition about 23 Richards’ speed at the time of the collision. Mr. Jones testified that, assuming Richards’ estimate 24 of his own speed at a certain point was correct, his speed at the time of the accident would be in 25 the area of 60-70 m.p.h. Mr. Dilich’s opinion and analysis is based on Richards’ testimony and 26 other testimony. Defendants dispute that Mr. Dilich’s opinions are contrary to, or fail to address, 27 eyewitness testimony provided in this case. 28 3     1 Plaintiff replies that Leoncio Angeles was cited and pled guilty to making an unsafe lane 2 change. The experts for both sides are unable to estimate Richards’ speed at the time of the 3 accident based on the lack of physical evidence. Trooper Tully, who investigated this accident, 4 admits that he did not have enough skid marks at the scene to perform measurements to calculate 5 speed at the time of the collision and therefore, his speed estimate was based solely on eyewitness 6 testimony. Under these circumstances, the court should exclude Mr. Dilich’s testimony pursuant 7 to Rule 702. 8 Having reviewed and considered the moving and responsive papers and the arguments of 9 counsel at the hearing, the court will deny the motion. The court has reviewed Mr. Dilich’s report. 10 The report opines that Richards’ loss of control and crash could be reconstructed to some extent if 11 there were sufficient measurements regarding the path of his vehicle on and off the shoulder and 12 damage sustained to his vehicle. However, he acknowledges that he has no such measurements 13 and does not know if they are available. He also agrees that there is no physical evidence to 14 reconstruct whether or not Angeles swerved into the shoulder and caused Richards to lose control 15 as Richards claims, or to reconstruct if the truck [tractor trailer] was even at the crash site, let alone 16 Richards’ loss of control. His report acknowledges that whether or not Angeles was a factor in 17 Richards’ loss of control depends on the validity of witness memory. His opinions regarding the 18 speed of Richards’ vehicle at the time of the collision are based on Richards’ testimony concerning 19 his speed at the time of the accident. In essence the report opines that if Richards’ estimate of his 20 speed is correct, applying the laws of physics and doing the math, the accident did not occur as 21 Richards claims. 22 Both plaintiff’s expert and defendants’ expert agree that there was inadequate physical 23 evidence collected at the accident scene to conduct an accident reconstruction. Both offer opinion 24 testimony tailored to alternative scenarios suggested by conflicting eyewitness accounts. The court 25 finds that whether or not Mr. Dilich has any admissible testimony to offer should be deferred until 26 the time of trial. Given the admitted lack of physical evidence, and the parties’ acknowledgement 27 that the eyewitness testimony is essential and somewhat in conflict, the district judge will only be 28 4     1 able to determine whether Mr. Dilich has any admissible expert testimony to offer after hearing 2 the foundational evidence at trial. Accordingly, 3 IT IS ORDERED that Plaintiff’s Motion to Strike Legacy’s Expert Witness Michael 4 Dilich, or Alternatively, to Preclude Expert Testimony Regarding the Speed that Third-Party 5 Defendant Ryan Richards was Traveling at the Time of the Collison [sic] Pursuant to FRE 702 6 (ECF No. 130) is DENIED without prejudice to filing a motion in limine to exclude or limit the 7 scope of his testimony at trial. 8 DATED this 6th day of September, 2017. 9 10 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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