Zibolis-Sekella v. Ruehrwein et al

Filing 32

ORDER re: 13 Motion in Limine to Exclude Defendant's Expert Robert E. Duval and His Testimony and 14 Motion in Limine to Exclude Police Officer's Expert Testimony and Opinion as to Fault. Motions Hearing set for 8/28/2013 10:00 AM before Judge Joseph A. DiClerico Jr. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Dawn M. Zibolis-Sekella,
Administrator of the Estate
of Alisha F. Zibolis
v.

Civil No. 12-cv-228-JD

Kevin R. Ruehrwein and
Clifford W. Perham, Inc.
PROCEDURAL ORDER
On May 31, 2013, Dawn M. Zibolis-Sekella filed motions in
limine seeking to exclude the testimony and opinions of two of
the defendants’ experts:

Robert Duval, a Chief Engineer with TFM

Engineering, and Sergeant Kevin Furlong, a police officer with
the Milford, New Hampshire, Police Department.

The defendants

objected to both motions.
Zibolis-Sekella challenges Duval’s qualifications to give an
“expert opinion that it is not possible to say with a reasonable
degree of scientific certainty who had the right of way in the
above-captioned motor vehicle accident.”

She argues that Duval

is not an expert on “the operation of traffic signal timing and
sequence” and is not a qualified accident reconstructionist.
Although Duval is apparently an experienced engineer who has done
work related to traffic, the defendants have not shown that he is
qualified to render his “opinion that the video by itself is

inconclusive in determining which driver had the red signal at
the time of the crash.”

Duval Report at 3; see SMD Software,

Inc. v. Emove, Inc., --- F. Supp. 2d ---, 2013 WL 1332432, at *7
(E.D.N.C. Mar. 29, 2013) (the relevant question is whether “a
purported expert witness has . . . satisfactory knowledge, skill,
experience, training [or] education on the issue for which the
opinion is proffered . . . .”) (internal citations and quotations
marks omitted) (emphasis added).
Zibolis-Sekella contends that Furlong is not qualified to
give expert testimony because he “specifically denies being an
expert or performing any accident reconstruction” in his
deposition testimony.

She further argues that Furlong’s opinion

is based solely on witness statements, rather than on “scientific
evidence,” and is therefore unreliable.1

Although the defendants

discuss Furlong’s experience and training, they do not show what
is required to qualify Furlong as an expert in accident
investigations.

In addition, although the defendants discuss

1

Zibolis-Sekella frames her challenge to Furlong’s
methodology as an argument as under Federal Rule of Evidence 701,
which pertains to lay opinions. Her argument, however, focuses
largely on his failure to use “scientific evidence,” and is
therefore better characterized as a challenge to Furlong’s
methodology under Rule 702. See Fed. R. Evid. 701 (allowing for
lay opinion testimony under certain circumstances, including when
the opinion is “not based on scientific . . . knowledge within
the scope of Rule 702.”).
2

Furlong’s methodology, they have not provided a sufficient basis
to show that methodology is reliable.2

Conclusion
A hearing is necessary to determine whether Duval or Furlong
is qualified to give the opinions the defendants seek.
Daubert, 509 U.S. at 592-93.

See

A hearing will be held on

Wednesday, August 28, 2013, at 10:00 a.m. on Zibolis-Sekella’s
motion in limine to exclude the testimony of Robert Duval
(document no. 13) and her motion in limine to exclude the
testimony and opinion of Kevin Furlong

2

For example, the parties did not address whether Furlong’s
methodology contained any of the indicia of reliability
recognized by the Supreme Court, including 1) whether the
expert’s techniques can or have been tested; (2) whether the
techniques have been the subject of peer review; (3) whether the
techniques have been generally accepted in the relevant
scientific community or industry; and (4) with respect to a
particular technique, whether and to what extent there is a known
or potential rate of error, and whether there are standards
controlling the operation of the technique. Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993).
3

(document no. 14).

Counsel would be well-advised to familiarize

themselves with the Daubert requirements prior to the hearing.3

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 30, 2013
cc:

Robert M. Parodi, Esquire
Hector E. Zumbado, Esquire

3

The defendants, as proponents of the expert witnesses, bear
the burden of proving the admissibility of their opinions. See
Daubert, 509 U.S. at 592
4