Ziegler et al v. Polaris Industries, Inc.

Filing 166

MEMORANDUM OF DECISION AND ORDER that (1) Polaris's 109 MOTION to Strike Plaintiffs' Retained Testifying Expert Dr. Jerry Bauer is GRANTED IN PART and DENIED IN PART; (2) Polaris's 113 MOTION to Strik e Plaintiffs' Retained Testifying Expert Dr. Stan V. Smith is GRANTED; (3) Polaris's 116 MOTION to Strike Plaintiffs' Retained Testifying Expert Dr. Garrett Wood is GRANTED IN PART and DENIED IN PART; (4) Plaintiffs&# 039; 119 MOTION in Limine to Bar Mission Hosp Toxicology Results is DENIED; (5) Polaris's 121 MOTION to Strike Plaintiffs' Retained Testifying Expert Dr. David Bosch is GRANTED; (6) Polaris's 124 MOTION to Strike Plaintiffs' Retained Testifying Expert Robert E. Burnham is GRANTED; (7) Plaintiffs' 120 MOTION, as corrected, 127 Amended MOTION in Limine to Bar Tackett Testimony is DENIED; and (8) Plaintiffs' 114 MOTION, as corrected, 128 Amended MOTION in Limine to Bar Warner Testimony is GRANTED IN PART and DENIED IN PART. Signed by Chief Judge Martin Reidinger on 2/7/2024. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00112-MR-WCM
WILLIAM ZIEGLER
and VICKI ZIEGLER,

)
)
)
Plaintiffs,
)
)
vs.
)
)
POLARIS INDUSTRIES, INC.
)
and ERIC KIPP,
)
)
Defendants.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the following motions:
(1) Polaris’s Motion to Strike Plaintiffs’ Retained Testifying Expert
Dr. Jerry Bauer [Doc. 109];
(2) Polaris’s Motion to Strike Plaintiffs’ Retained Testifying Expert
Dr. Stan V. Smith [Doc. 113];
(3) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Dr. Garrett Wood [Doc. 116];
(4) Plaintiffs’ Motion in Limine to Bar Mission Hospital Toxicology
Results [Doc. 119];
(5) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Dr. David Bosch [Doc. 121];

(6) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Robert E. Burnham [Doc. 124];
(7) Plaintiffs’ Motion in Limine to Bar Tackett Testimony as Amended
[Doc. 120, as corrected, Doc. 127]; and
(8) Plaintiffs’ Motion in Limine to Bar Warner Testimony as Amended
[Doc. 114, as corrected, Doc. 128].
I.

FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2019, William and Vicki Ziegler (“Plaintiffs”) were

visiting Eric Kipp (“Kipp”), Vicki’s brother. [Doc. 102-11: W. Ziegler Dep. at
10, 30, 32]. After midnight, Kipp suggested that he and Mr. Ziegler go for a
ride on Kipp’s Polaris Ranger, a utility task vehicle (“UTV”). [Id. at 33, 38].
Both had been drinking. [Id. at 33-34, 78-79]. During the ride, the UTV
crashed into a creek, causing its rollover protective structure (“ROPS”) to
deform. [Id. at 40, 45, 83]. At the time of the crash, Kipp was driving, and
Mr. Ziegler was riding in the passenger seat. [Id. at 40, 45]. As a result of
the crash, Mr. Zeigler suffered substantial injuries. [Id. at 6, 44, 50]. Both
Mr. Ziegler and Kipp were transported to Mission Hospital, where tests were
conducted to determine their blood alcohol content (“BAC”). [Docs. 101-2:
Schweinler Dep. at 34-35; 97-3: Mr. Ziegler Toxicology Results; 97-4: Kipp
Toxicology Results].

2

On November 10, 2021, Plaintiffs initiated this action by filing their
Complaint1 against Polaris Industries, Inc. (“Polaris”), and Kipp.2 [Doc. 1].
Plaintiffs allege claims against Polaris for strict liability design defect,
negligence, and loss of consortium, contending that Mr. Ziegler was injured
because the UTV’s ROPS deformed during the crash. [Id.]. Polaris raises
several affirmative defenses, including that Mr. Ziegler’s actions contributed
to his injuries. [See Doc. 12 at 16-17]. Plaintiffs and Polaris have both
retained expert witnesses in this matter, and each party now moves to
exclude some of the other’s proposed expert testimony. [See Docs. 109,
113, 114, 116, 120, 121, 124, 127, 128]. Plaintiffs also move to exclude the
toxicology test results from Mission Hospital. [See Doc. 119]. The parties
have responded in opposition, [see Docs. 135, 137, 138, 139, 143, 144, 146,
147, 148], and filed replies [see Docs. 149, 150, 151, 152, 153, 154, 155,
156, 157]. As such, these motions are ripe for disposition.
II.

STANDARD OF REVIEW

1

This matter was initially filed in the United States District Court for the Western District
of Michigan. [See Doc. 1]. However, on April 24, 2023, that court granted Polaris’s motion
to transfer venue, and this matter was transferred here the next day. [See Docs. 67-68].
2

On May 27, 2022, Plaintiffs’ claims against Kipp were dismissed with prejudice, and he
was terminated as a defendant. [See Doc. 30].

3

State law controls the substantive tort issues in this matter, as it is
pending in federal court pursuant to diversity jurisdiction. See Bryte ex rel.
Bryte v. Am. Household, Inc., 429 F.3d 469, 476 (4th Cir. 2005). However,
federal law governs the admissibility of evidence. Id. Rule 7023 of the
Federal Rules of Evidence states:
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
the proponent demonstrates to the court that it is
more likely than not that: (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’s opinion reflects a reliable application
of the principles and methods to the facts of the case.
Under Rule 702, trial judges are to serve “as ‘gatekeepers of expert
testimony’ to protect the judicial process from the ‘potential pitfalls of junk
science.’” Sardis v. Overhead Door Corp., 10 F.4th 268, 275 (4th Cir. 2021)
(quoting United States v. Bonner, 648 F.3d 209, 215 (4th Cir. 2011)). In
fulfilling this gatekeeping function, a trial court must “ensure that an expert’s
testimony both rests on a reliable foundation and is relevant to the task at

3

Rule 702 was amended on December 1, 2023. 344 F.R.D. 850. The amended version
is to “govern in all proceedings . . . commenced [after December 1, 2023,] and, insofar as
just and practicable, all proceedings then pending.” Id. Accordingly, the Court will apply
the amended version of Rule 702 here.
4

hand.” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)).
Regarding scientific knowledge, the trial court initially must determine
whether the reasoning or methodology used is scientifically valid and is
applied properly to the facts at issue. Daubert, 509 U.S. at 589. The Court
has broad discretion in making this determination.

Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 153 (1999). However, there are several key
factors that should be considered, including whether the expert opinion can
be tested; whether it has been subjected to peer review; the error rate of the
methods that the expert employed; the existence and maintenance of
standards used in the expert's methods; and whether the expert's methods
are generally accepted in the scientific community. Daubert, 509 U.S. at
592-94; Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 261
(4th Cir. 2005).

In weighing these factors, the Court is guided by the

following, somewhat competing, principles:
On the one hand, the court should be mindful that
Rule 702 was intended to liberalize the introduction
of relevant expert evidence. And the court need not
determine that the expert testimony a litigant seeks
to offer into evidence is irrefutable or certainly
correct. As with all other admissible evidence, expert
testimony is subject to being tested by vigorous
cross-examination,
presentation
of
contrary
evidence, and careful instruction on the burden of
proof. On the other hand, the court must recognize
5

that due to the difficulty of evaluating their testimony,
expert witnesses have the potential to be both
powerful and quite misleading. And given the
potential persuasiveness of expert testimony,
proffered evidence that has a greater potential to
mislead than to enlighten should be excluded.
Smith v. Wyeth-Ayerst Lab’ys Co., 278 F. Supp. 2d 684, 690 (W.D.N.C.
2003) (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th
Cir. 1999)) (internal citations and quotation marks omitted).
III.

DISCUSSION
A.

Polaris’s Motion to Exclude Testimony of Dr. Jerry Bauer

Polaris seeks to exclude what it characterizes as Dr. Bauer’s opinions
relating to “how Mr. Ziegler’s injuries occurred and what part of the vehicle
Mr. Ziegler came into contact with during the crash.” [Doc. 110 at 1-2].
A witness may only provide expert opinion testimony to the extent his
testimony is based upon his knowledge, skill, experience, training, and
education. See Fed. R. Evid. 702. An expert, therefore, may not offer
opinion testimony outside of his area of expertise. See Redman v. John D.
Brush & Co., 111 F.3d 1174, 1179 (4th Cir. 1997); Steele v. Kenner, 129 F.
App’x 777, 781 (4th Cir. 2005); see also In re Pella Corp., 214 F. Supp. 3d
478, 496 (D.S.C. 2016).

Additionally, experts may not offer opinion

testimony “based on assumptions which are speculative and are not

6

supported by the record.” Tyger Constr. Co. v. Pensacola Constr. Co., 29
F.3d 137, 142 (4th Cir. 1994); Am. Household, Inc., 429 F.3d at 477.
Polaris concedes that Dr. Bauer qualifies as an expert in neurology,
and it does not seek to exclude the opinions in his report related to the nature
and extent of the injuries Mr. Ziegler suffered during the crash. [See Docs.
111; 150 at 1]. It argues, instead, that “during his deposition, Dr. Bauer went
beyond th[ese] opinion[s] and purported to testify as to how Mr. Ziegler
suffered these injuries.” [Doc. 110 at 3-4]. Polaris specifically argues that
Dr. Bauer’s following answers to its questions are beyond the scope of his
qualifications:
Q.
Do you have an opinion regarding what caused
Mr. Ziegler’s scalp laceration and skull fracture?
A.

Yes.

Q.

And what is that opinion?

A.

A direct blow to that area.

Q.
Do you have an opinion regarding what it was
that contacted Mr. Ziegler’s head in that area?
A.
I have guesses, but I don’t have an absolute
hundred percent opinion . . . .
Q.
Is it your opinion as a medical doctor that to [a]
medical degree of -- to a reasonable degree of
medical certainty, that Mr. Ziegler’s injuries were
caused by the ROPS of the vehicle crushing him?

7

A.
Again, I’m not a reconstruction specialist. I’ve
never seen a UTV. But if you -- so I can testify about
the injuries to the skull and to the cervical spine. But
by glancing at the pictures, I would have guessed -just by glancing at the pictures, without having
special expertise in this, I would have guessed it was
the roof that, to me, was slanted down on the right
side that caused the injury . . . .
Q.
But you do believe, having looked at the
pictures, that the upper right corner of the ROPS is
what caused Mr. Ziegler’s injuries?
A.
Well, I didn’t say upper right corner. So what I
think -- and, again, it’s pure speculation -- by
looking at the picture, it looks to me like the roof on
the right side came down and hit Mr. Ziegler on the
left side of the head and pushed his head forward.
[Id. at 7; Doc. 110-2 at 51:17-52:1, 67:3-16, 68:10-22 (emphasis added)].
To the extent that Dr. Bauer’s responses to these questions were
intended to be expert opinions, they are clearly speculative and therefore
inadmissible. Indeed, when Polaris asked Dr. Bauer if he had “an opinion
regarding what . . . contacted Mr. Ziegler’s head,” Dr. Bauer responded, “I
have guesses, but I don’t have an absolute . . . opinion.” [Doc. 110-2 at
51:23-52:1]. Similarly, when Dr. Bauer was asked if it was his opinion to a
reasonable degree of medical certainty that Mr. Ziegler had been injured by
the UTV’s deformed ROPS, Dr. Bauer indicated that he could only “guess”
and “speculate” as to the cause of Mr. Ziegler’s injuries. [See id. at 67:3-

8

68:22]. Given his obvious lack of any foundation or basis, and even lack of
a true opinion, Dr. Bauer will not be allowed to “guess” and “speculate” that
the UTV’s deformed ROPS caused Mr. Ziegler’s injuries at trial. See Tyger
Constr. Co., 29 F.3d at 142.
Polaris also argues more generally that Dr. Bauer is unqualified to offer
any testimony about the cause of Mr. Ziegler’s injuries, as he does not have
expertise in biomechanics, kinematics, or accident reconstruction. [See Doc.
110 at 6, 8].

However, expert physicians may testify upon a proper

foundation that injuries related to their expertise are consistent with certain
causes. See Fitzgerald v. Manning, 679 F.2d 341, 351 n.9 (4th Cir. 1982);
see also Zellers v. NexTech Ne., LLC, 533 F. App’x 192, 197 (4th Cir. 2013);
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001). Here,
Mr. Ziegler sustained extensive injuries to his spine and brain, and Polaris
concedes that Dr. Bauer is qualified to testify as an expert neurologist.
Accordingly, Dr. Bauer may testify regarding the nature and extent of Mr.
Ziegler’s injuries and to whether Mr. Ziegler’s cervical spine injuries are
generally consistent with what sort of impact to what part of his body.
However, he may not proffer an opinion as to specifically how Mr. Ziegler’s
injuries occurred, or as to what part of the UTV Mr. Ziegler may have
contacted during the crash.

9

For these reasons, Polaris’s motion to exclude portions of Dr. Bauer’s
testimony is granted in part and denied in part.
B.

Polaris’s Motion to Exclude Testimony of Dr. Stan Smith

Polaris moves to exclude Dr. Smith’s testimony regarding his opinions
as to the reduction in value of Mr. Ziegler’s life and Mrs. Ziegler’s loss of
society, arguing that Dr. Smith’s testimony, and particularly his methodology,
does not meet the requirements of Rule 702. [See Doc. 115 at 4-5, 7].
Dr. Smith’s methodology for estimating Mr. Ziegler’s “reduction in value
of life” is as follows.4 [Doc. 144-1 at 11 of 23].5 Dr. Smith’s first step is to
estimate “the value[] of a statistical life,” which appears to be a statistical
assessment of the value of a life of some average human. [See id. at 12 of
23]. Dr. Smith explains that several “principal systematic reviews (metaanalyses)” have “combined” the results of individual studies estimating this
value in making their own estimates.6 [Id. at 20 of 23]. Dr. Smith reaches

Dr. Smith uses the terms “value of enjoyment of life,” “loss of enjoyment of life,” “value
of life,” and “value of a statistical life,” on what appears to be an interchangeable basis.
However, he does not define these terms, nor explain why he views them as
interchangeable. [See, e.g., Doc. 144-1 at 11-12, 23 of 23].
4

Both Dr. Smith’s report and deposition are contained in the same electronic filing. As
such, citations to [Doc. 144-1] specifically indicate whether such citation is to his report or
to his deposition.
5

6

It is entirely unclear what, if any, parameters were employed by the authors of these
reviews. For instance, Dr. Smith has provided no indication that variables such as race,
sex, socioeconomic status, nationality, etc., were properly accounted for.
10

his figure by averaging the estimates of five of these principal reviews. [Id.
at 20-21 of 23, Dep. at 38:4-11]. As his second step, Dr. Smith reduces his
estimate by “human capital,” which he defines as the value of an individual’s
wages and household services. [Id. at 20 of 23, Dep. at 41:12-43:21]. Dr.
Smith then further reduces his estimate by a 24 percent “conservatism
factor,” as his third step. [Id.]. As his fourth step, although he does not state
that he does so, Dr. Smith apparently discounts the resulting figure to
“present value.” [See id. at Tables 18-23]. Finally, as his fifth and final step,
Dr. Smith multiplies his discounted figure by 50 and 90 percent, Mr. Ziegler’s
estimate of his own percentage of impairment. [Id. at 12 of 23, Dep. at 28:1429:21].

Dr. Smith then opines that the value of Mr. Ziegler’s “loss of

enjoyment of life” is between the two resulting numbers. [Id. at 12, 23 of 23].
As a primary matter, Dr. Smith’s methodology for calculating the value
of an individual’s “loss of enjoyment of life” has been routinely rejected as
unhelpful and unreliable for three decades.7 See, e.g., Smith v. Jenkins, 732
F.3d 51, 66 (1st Cir. 2013); Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245
(10th Cir. 2000) (“Attempts to quantify the value of human life have met
considerable criticism in the literature of economics as well as in the federal
court system. Troubled by the disparity of results reached in published

7

Enjoyment of life damages are often referred to as hedonic damages.
11

value-of-life studies and skeptical of their underlying methodology, the
federal courts which have considered expert testimony on hedonic damages
in the wake of Daubert have unanimously held quantifications of such
damages inadmissible.”); Mercado v. Ahmed, 974 F.2d 863, 871 (7th Cir.
1992) (“The district court [correctly] ruled that, despite Smith’s training,
extensive research and countless calculations, his testimony would not aid
the jury in evaluating the evidence and arriving at its verdict (the true test of
expert testimony under Fed. R. Evid. 702) because Smith was no more
expert in valuing life than the average person.”); see also Balan v. Vestcor
Fund XXII, Ltd., No. 3:19-cv-351-MMH-JBT, 2021 WL 2138876, at *1 n.1
(M.D. Fla. May 26, 2021) (collecting over 20 cases decided between 1992
and 2020 excluding Dr. Smith’s testimony as unreliable or unhelpful, or both);
Snyder v. Bank of Am., N.A., No. 15-cv-042280-KAW, 2020 WL 6462400, at
*9 (N.D. Cal. Nov. 3, 2020) (“While Dr. Smith equated the value of life with
the value of enjoyment of life . . . it is readily apparent that the two are not
the same.”) (internal citations and quotation marks omitted); Santiago v.
Fischer, No. 09-CV-1383 (MKB), 2020 WL 9816014, at *5 (E.D.N.Y. Sept. 4,
2020) (“[T]he Court finds that Plaintiff has not established the reliability of Dr.
Smith’s methodology for demonstrating the particular damages at issue

12

here—loss of enjoyment of life damages—and finds that Dr. Smith’s expert
testimony as to a specific damages amount will not be helpful to the jury.”).
An analysis of the individual steps that Dr. Smith uses to reach his
opinion in this case underscores why his methodology has been so
consistently rejected. As his first step, Dr. Smith estimates “the value of a
statistical life.” As noted above, he does this by averaging the results of
reviews that base their own estimates on “peer-reviewed” studies that have
estimated this value by considering (1) consumer behavior, e.g., how much
someone might pay for protective measures, such as smoke detectors; (2)
wage risk premiums to workers, i.e., how much additional compensation
workers receive for performing dangerous jobs; and (3) cost-benefit analyses
of government regulations, e.g., comparing the benefits and costs of
smokestack scrubbers at coal power plants. [See Doc. 144-1 at 12 of 23].
These studies, however, do not “reliably measure the value of life.” Santiago,
2020 WL 9816014, at *5 (citing Crawford v. Franklin Credit Mgmt. Corp., No.
08-CV-6293, 2015 WL 13703301, at *8 (S.D.N.Y. Jan. 22, 2015) (collecting
cases)); Mercado, 974 F.2d at 871 (“[W]e have serious doubts about
[Smith’s] assertion that the studies he relies upon actually measure how
much Americans value life.”); Smith, 732 F.3d at 66 (“[W]e have serious
doubts that the underlying studies actually measure the value of life.”). Nor

13

do their estimates of the total value of life have any relation to the component
of damages at issue here, the enjoyment of life. See Mercado, 974 F.2d at
871; Smith, 732 F.3d at 67 (Smith’s “studies do not relate in any way to the
actual component of damages, the enjoyment of life.”); Snyder, 2020 WL
6462400, at *9; Santiago, 2020 WL 9816014, at *5.8
Additionally, even if the results of these studies were reliable and
relevant, Dr. Smith does not explain how he is able to reach an exact
estimate of the value of the statistically average life—5.9 million in 2005
dollars—by averaging the estimates of five reviews where those estimates
were only expressed in terms of broad ranges. Indeed, when examined
together, the reviews state that the correct figure could be anywhere between
2.86 million and 9.6 million in 2005 dollars, a more than three-fold variance.
[Doc. 144-1 at 21 of 23]. Moreover, one review itself indicates that its
estimate could vary from the correct value by as much as 44 percent. [Id.].
Dr. Smith’s estimate of 5.9 million dollars, the average of the reviews’
estimates, amounts to nothing more than “eyeballing,” and “surely lacks
8

Dr. Smith provides almost no information regarding the five reviews he uses to reach
his estimate of the value of the statistically average life. For instance, he does not state
the areas of expertise and the qualifications of the reviewers, the facts or data they relied
upon, nor the methodologies they used to analyze data from the studies each review
combined. Even if the studies’ results were relevant and reliable, Plaintiffs would have
needed to provide this basic information about the reviews to demonstrate that Dr. Smith’s
testimony meets the requirements of Rule 702.

14

scientific reliability in the sense of producing consistent results. Anyone can
look at the same range and come up with a different figure.” Ayers v.
Robinson, 887 F. Supp. 1049, 1060 (N.D. Ill. 1995). For these reasons,
Plaintiffs have failed to demonstrate both that Dr. Smith’s testimony would
be helpful, and that it is based on reliable principles and methods. See Fed.
R. Evid. 702(a) & (c). Further, because Plaintiffs have not established the
reliability of the studies and thereby the reviews—which are the sole basis
for Dr. Smith’s estimate of the value of the statistical life—Plaintiffs have also
failed to demonstrate that Dr. Smith’s estimate is based on sufficient facts or
data. See id. at 702(b). Moreover, as the remaining portions of Dr. Smith’s
methodology build upon his unscientific guesswork at step one, they are
necessarily equally unreliable and irrelevant.
While these grounds are sufficient for exclusion, all the other “principal
parts of [Dr.] Smith’s proposed testimony on the issue of hedonic damages
are inadmissible” and are equally flawed in other respects. Ayers, 887 F.
Supp. at 1064. For instance, there are at least three problems with Dr.
Smith’s second step, his reduction for “human capital.” [Doc. 144-1 at 20 of
23; Dep. at 41:12-43:21]. First, Dr. Smith does not explain why he makes
this reduction. It appears he believes that by subtracting human capital—
the economic component of the value of one’s life—from the total value of

15

one’s life, that the resulting “noneconomic leftover must be the value of
enjoyment of life.” Stokes v. John Deere Seeding Grp., No. 4:12-cv-04054SLD-JAG, 2014 WL 675820, *5 (C.D. Ill. Feb. 21, 2014). However, Dr. Smith
provides “no basis, scientific or otherwise, for asserting that the only
components of life’s value are economic productivity and enjoyment.” Id.
Indeed, his logic is entirely “illusory.” Id.
Second, applying Dr. Smith’s logic, individuals working minimum wage
jobs, or those who are unemployed, necessarily must enjoy their lives more
than well-paid entrepreneurs or professionals.

For instance, Dr. Smith

deducts the value of an individual’s human capital—which he defines as the
value of one’s wages and household services—from his fixed estimate of the
“value of a statistical life.” [Doc. 144-1 at 20 of 23; Dep. at 41:12-43:21].
Thus, because unemployed individuals receive a much smaller deduction
from the “value of a statistical life” for their “human capital,” as they earn less
in wages, they necessarily must enjoy their lives at a proportionally greater
rate than those receiving more in compensation. The truth of this is plainly
doubtful.

However, at minimum, neither Plaintiffs, nor Dr. Smith, have

provided any evidence supporting this “logic.”
Third, even assuming Dr. Smith’s logic were sound, he does not state
in his report that he reduced his estimate of the “value of the statistical life”

16

by the actual value of Mr. Ziegler’s human capital. Rather, it appears that
Dr. Smith deducted a constant for human capital, which he based on
“literature reviews.” [See id. at 20 of 23]. This is plainly inconsistent with Dr.
Smith’s own definition of human capital, as individuals hold a wide array of
different jobs, receive vastly different wages for their work, and provide
countless different services to their households. Underscoring this, when Dr.
Smith’s estimates of Mr. Ziegler’s wages and household services are
subtracted from Dr. Smith’s estimate of the “value of the statistical life,” the
result is a negative number, rather than the 4.8 million dollar figure that Dr.
Smith states is a “credible . . . value” “net of human capital” based on
“literature reviews.” [Id. at 20 of 23]. Put differently, using Dr. Smith’s logic,
when the economic components of Mr. Ziegler’s life are subtracted from the
“value of the statistical life,” Mr. Ziegler had a net-negative “value of
enjoyment of life.” Moreover, because Dr. Smith does not include any stepby-step calculations in his report, it is impossible to reconcile these
discrepancies.
As his third step, Dr. Smith reduces his figure by a 24 percent
“conservatism factor.”

[Id. Dep. at 42:18-43:5]. However, he offers no

scientific or scholarly basis for applying such a factor. Rather, Dr. Smith
explains that he makes this reduction because “[he] like[s] to be able to tell

17

a jury that if they use the numbers that [he] provide[s] them, they are
providing a conservative estimate.

So it’s just for that reason.”

[Id.].

Moreover, when asked why he uses 24 percent, as opposed to 22 or 23
percent, Dr. Smith offered no explanation or method for calculating the
conservatism factor. Instead, he responded, “It’s just simply what I do. Do
you want to make another suggestion off the record sometime? I can take it
under advisement.” [Id. Dep. at 43:22-44:3]. That Dr. Smith offered no
explanation or method for calculating the 24 percent conservatism factor,
and even agreed that the figure was arbitrary and could be easily adjusted,
“leav[es] the Court with no option but to conclude that the conservative value
is derived through unmethodical, subjective ‘eyeballing.’” Stokes, 2014 WL
675820, at *4 (quoting Ayers, 887 F. Supp. at 1060).
After these deductions, Dr. Smith apparently discounts the resulting
amount to present value, as his fourth step, based on an assumption that the
individual will live to a statistically average age. [See Doc. 144-1 at Tables
18-23]. Dr. Smith does not acknowledge performing this discounting in his
report. However, he includes several tables tending to demonstrate that he
did so.

[Id.].

Dr. Smith’s failure to mention that he conducted this

discounting, and to explain why he did so, gives the impression that these
tables were included merely “to give the illusion of forensically precise

18

calculations in [a] specific case.” See Fams. Advoc., LLC v. Sanford Clinic
N., No. 3:16-CV-00114, 2019 WL 1442162, at *5 (D.N.D. Mar. 31, 2019).
For all of these reasons, Plaintiffs have not demonstrated that Dr. Smith’s
testimony regarding the “reduction in value” of Mr. Ziegler’s life meets any of
the requirements set forth in Rule 702. Accordingly, it will be excluded.
Turning to Dr. Smith’s calculation of Mrs. Ziegler’s loss of society
damages, Dr. Smith states that he estimates this amount to be $2,025,486,
and that this figure is “[b]ased on a benchmark loss of 35 percent[.]” [Doc.
144-1 at 13 of 23]. Dr. Smith never explains, however, how he used this
“benchmark” to calculate the value of Mrs. Ziegler’s loss of society.
Presumably, he multiplied some component of Mr. Ziegler’s damages by 35
percent, but he does not explain how the value of one individual’s loss of
society can be reliably estimated as a fraction of another’s damages. See
Fams. Advoc., LLC, 2019 WL 1442162, at *5-*7 (quoting Wood v. Minn.
Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997)) (excluding Dr. Smith’s
loss of society testimony because his calculations are “arbitrary,” “unrelated
to the facts of this case,” and “‘so fundamentally unsupported that [they] can
offer no assistance to the jury.’”).
Additionally, when asked why he selected a 35 percent benchmark, Dr.
Smith stated that he arrived at this figure because Mr. Ziegler said in an

19

interview that he believed Mrs. Ziegler’s quality of life had been reduced by
half or more because of his injuries. [Doc. 144-1 Dep. at 47:3-14]. However,
Dr. Smith stated that 35 percent was just used “as an example[,]” and that it
is not his opinion “that the loss of society or relationship that Mrs. Ziegler
sustained is 35 percent[.]” [Id. Dep. at 47:10-21]. This sort of arbitrary
sample calculation will not assist the trier of fact, is not based on Dr. Smith’s
expertise in economics, is not based on any facts or data, and is not the
product of reliable principles and methods. See Fed. R. Evid. 702(a)-(c). For
these reasons, Dr. Smith’s loss of society testimony will be excluded.
In sum, Polaris’s motion to exclude Dr. Smith’s testimony regarding Mr.
Ziegler’s “reduction in value of life” and Mrs. Ziegler’s loss of society is
granted.
C.

Polaris’s Motion to Exclude Testimony of Dr. Garrett Wood
Polaris moves to exclude the testimony of Plaintiffs’ accident

reconstructionist, Dr. Wood, in its entirety, arguing that his opinions are
“either descriptions of the [UTV] or crash scene for which no expert testimony
is required” or are “speculative.” [See Docs. 116; 117].
The proponent of an expert’s testimony must demonstrate that “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[.]” Fed. R.

20

Evid. 702(a). “Although expert testimony is generally presumed helpful to
the jury, . . . [Rule] 702 excludes expert testimony on matters within the
common knowledge of jurors.” Persinger v. Norfolk & W. Ry. Co., 920 F.2d
1185, 1188 (4th Cir. 1990). Additionally, “[a] reliable expert opinion must be
based on scientific, technical, or other specialized knowledge and not on
belief or speculation[.]” Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250
(4th Cir. 1999).
In his report, Dr. Wood states the following opinions:
1.

As the [UTV] occupied by Mr. Ziegler
approaches the incident area, there is a limited
sight distance to oncoming traffic due to
obstructions in a left-hand curve.

2.

The eastern edge of Dark Ridge Road is
bordered by a narrow shoulder, limiting the
opportunity for vehicles exiting the paved
surface to regain the roadway.

3.

A restrained passenger with an intact occupant
compartment would not be expected to strike
the left side of their head in the evaluated
sequence of events.

4.

The [UTV]’s rollover protection system
deformed as a result of this incident, intruding
into the passenger occupant compartment.

5.

The deformation of rollover protection system
components and the [UTV]’s roof towards Mr.
Ziegler allowed for the opportunity to strike the
left side of his head.

21

[Doc. 117-2 at 22].
What Dr. Wood characterizes as his first, second, and fourth “opinions”
merely describe the scene of the crash and the appearance of the UTV after
the crash.

There are several photographs in the record showing the

damaged UTV, the scene of the crash, and the area around the scene. [Id.
at 5-10, 13-16, 20]. Thus, to the extent that Dr. Wood’s descriptions can be
considered “opinions” under Rule 702, they will be excluded because the
trier of fact will be able to form its own conclusions upon viewing these
photographs. See United States v. Dorsey, 45 F.3d 809, 815 (4th Cir. 1995)
(“the comparison of photographs is something that can sufficiently be done
by the jury without help from an expert.”).

Nonetheless, this factual

information could potentially be admitted under Rule 703 if it serves as a
basis for Dr. Wood’s third and fifth opinions, provided that these opinions are
admissible under Rule 702.
Regarding Dr. Wood’s third opinion, his report states that a surrogate
occupant study, in which an individual of similar size to Mr. Ziegler was
seated and observed in an undamaged exemplar UTV, demonstrated that
there was “likely greater than 1.5 feet of standoff from Mr. Ziegler’s head to
the A-pillar and windshield header of” the UTV prior to the crash and that
“[g]iven a restrained occupant, significant movement out of position would

22

not be expected.” [Doc. 117-2 at 21]. Addressing the two pieces of this
opinion separately, Dr. Wood could reliably measure the distance from the
test subject’s head to the undamaged ROPS of the exemplar UTV simply by
using a ruler or tape measure. Thus, Dr. Wood may testify about conducting
the surrogate occupant study and state the distance he measured from the
test subject’s head to the undamaged UTV’s ROPS.
However, Dr. Wood does not demonstrate in his report that he
performed any scientific or scholarly analysis in determining that a restrained
occupant would not move significantly out of position during a crash. Rather,
it appears that Dr. Wood merely assumed, based on common sense, that
restraint systems, such as seatbelts, prevent occupants in a vehicle from
moving significantly during a crash and thus, that an individual wearing a
seatbelt would not move enough to strike their head on an object 1.5 feet
away during a crash. This is the exact sort of “common sense inquiry” that
the “untrained layman [is] qualified to determine intelligently . . . without
enlightenment from those having specialized” training. See Fed. R. Evid.
702 advisory committee’s note on proposed rule; see also Scott v. Sears,
Roebuck & Co., 789 F.2d 1052, 1055 (4th Cir. 1986) (“Rule 702 makes
inadmissible expert testimony as to a matter which obviously is within the
common knowledge of jurors . . . .”). Moreover, Dr. Wood did no testing or

23

analysis of the seatbelt that the presumes restrained Mr. Ziegler. As such,
this is more in the nature of an assumption than a common sense inquiry,
much less a scientific opinion. Thus, the second portion of Dr. Wood’s third
opinion will be excluded because he did not demonstrate that it is based on
any scientific or scholarly methodology and because it would be unhelpful to
the trier of fact. See Fed. R. Evid. 702(a).
With regard to Dr. Wood’s fifth opinion, an expert’s “speculat[ion] as to
a possibility . . . lack[s] any probative value” and therefore, is inadmissible
under Rule 702(a) because it is unhelpful. See Oglesby, 190 F.3d at 251;
see also Rohrbough v. Wyeth Lab’ys., Inc., 241 F.2d 164, 972 (4th Cir. 1990)
(“[A]n expert’s opinion as to proximate cause must be stated in terms of
reasonable probability.”); Textron Inc. ex rel. Homelite Div. v. Barber-Colman
Co., 903 F. Supp. 1570, 1575 (W.D.N.C. 1995) (“[T]o guard against raw
speculation[,]” the fact-finder should not consider an “expert opinion [t]hat
suggests merely a possibility[.]”). Dr. Wood states that “[t]he deformation of
rollover protection system components and the [UTV]’s roof towards Mr.
Ziegler allowed for the opportunity to strike the left side of his head.” [Doc.
117-2 at 22 (emphasis added)]. When asked about this opinion during his
deposition, however, Dr. Wood agreed that he does not “know whether [Mr.]
Ziegler hit the left side of his head on the deformed ROPS” and that this is

24

merely “possible.” [Doc. 138-1 at 291:18-292:7, 294:17-20]. He also stated
that “we don’t know enough specifics about the rollover in this case” to
determine what caused Mr. Ziegler’s injuries and agreed that it is equally
likely that the left side of Mr. Ziegler’s head struck the lightbar mounted on
the rear of the UTV’s ROPS during the crash, and that this may have caused
his injuries. [Id. at 295:14-24, 296:21-297:1]. Put simply, Dr. Wood is merely
speculating that given the deformation of the UTV’s ROPS, it is possible that
it struck Mr. Ziegler’s head during the crash and thereby caused his injuries.
This speculation is unhelpful. Therefore, Dr. Wood’s fifth opinion will be
excluded. See Fed. R. Evid. 702(a).
Returning to Dr. Wood’s descriptions of the damaged UTV and the
crash scene, to be admissible under Rule 703, this factual information must
serve as a basis for Dr. Wood’s admissible opinions. See Fed. R. Evid. 703.
Here, only Dr. Wood’s opinion regarding the distance measured between the
test subject’s head and the ROPS of the exemplar UTV during the surrogate
occupancy study is admissible. Neither Dr. Wood’s descriptions of the scene
of the crash nor the damaged UTV’s ROPS are at all related to Dr. Wood’s
measurement of the distance between the test subject’s head and the
undamaged exemplar UTV’s ROPS during the surrogate occupancy study.

25

Thus, Dr. Wood’s descriptions included in his report as opinions one, two,
and four will be excluded.
For these reasons, Polaris’s motion to exclude Dr. Wood’s testimony
is granted in part and denied in part.
D.

Polaris’s Motion to Exclude Testimony of Dr. David Bosch

Polaris moves to exclude the testimony of Dr. Bosch, Plaintiffs’ expert
on industry standards, in its entirety, arguing that his testimony regarding
rollover standards is irrelevant, that his opinions based on his interpretation
of the OSHA 1928.53 standard are unhelpful, and that his opinions regarding
alternative designs are not based on sufficient facts or data and are not held
to a reasonable degree of certainty. [See Docs. 121; 123]. Polaris also more
generally contends that Dr. Bosch’s report does not demonstrate how he
applied the facts of this case in coming to his conclusions. [Doc. 123 at 2].
An “expert witness’ report must contain, among other things, ‘a
complete statement of all opinions the [expert] witness will express and the
basis and reasons for them[.]’” Bresler v. Wilmington Tr. Co., 855 F.3d 178,
189 (4th Cir. 2017) (quoting Fed. R. Civ. P. 26). To satisfy this requirement,
“[e]xpert reports must not be sketchy, vague or preliminary in nature and
must include how and why the expert reached a particular result, not merely
the expert’s conclusory opinions.” Id. at 210 (Wynn, J., concurring in part)

26

(quoting Salgado ex rel. Salgado v. Gen. Motors Corp., 150 F.3d 735, 741
n.6 (7th Cir. 1998)) (internal quotation marks omitted). An expert’s opinions
are inadmissible where his report “is devoid of any explanation regarding the
methodology, analysis, or expert knowledge . . . used to reach his opinions.”
Bunting Graphics, Inc. v. Whiting-Turner Contracting Co., No. 19-cv-2323LKG, 2022 WL 14664724, at *9 (D. Md. Oct. 25, 2022).
Dr. Bosch begins his analysis by stating the elements of different
rollover protection standards, including the FMVSS standards, the ISO
standard, the OSHA standard, and the SCORE standard, facts about these
standards, facts about how testing is conducted under these standards, and
his commentary about the adequacy of each standard. [Doc. 102-7 at 2132]. He also later discusses the FMVSS standards in more detail. [Id. at 5573]. However, “[a] design standard that does not . . . apply to the product at
issue categorically lacks a valid scientific connection to the pertinent inquiry.
It is, in simpler words, the touchstone of irrelevancy under Daubert.” Sardis,
10 F.4th at 289 (citing Daubert, 509 U.S. at 592). Plaintiffs do not contend
that the FMVSS standards, the ISO standard, or the SCORE standard apply
to the UTV at issue in this case. [See Doc. 135]. Indeed, Dr. Bosch states
in his report that the FMVSS standards apply to automobiles, that the ISO
standard applies to earth-moving machinery, and that the SCORE standard

27

applies to off-road racing vehicles. [Doc. 102-7 at 21-29]. These standards
are plainly irrelevant to the UTV at issue and thus, testimony based thereon
would be unhelpful. Moreover, Dr. Bosch never explains how he applied
these standards to the facts of this case. Therefore, Polaris’s motion to
exclude Dr. Bosch’s testimony based on the FMVSS standards, the ISO
standard, and the SCORE standard is granted.9
Dr. Bosch also states in his report that the UTV does not meet the
OSHA 1928.53 standard, which the parties agree applies to the UTV. [Id. at
24; Docs. 123 at 11; 135 at 5]. However, expert testimony that merely states
a legal conclusion is properly excluded as unhelpful. See United States v.
Barile, 286 F.3d 749, 760 (4th Cir. 2002) (citing Woods v. Lecureux, 110 F.3d
1215, 1220 (6th Cir. 1997)) (“It is, therefore, apparent that testimony offering
nothing more than a legal conclusion . . . is properly excluded under the
Rules.”). Dr. Bosch concedes that his conclusion that the UTV’s ROPS did
not meet the OSHA standard is based only on his interpretations of the
standard’s language and the decision in Spencer v. Honda Motor Corp. Ltd.,
No. 2:21-cv-00988-JAM-DMC, 2022 WL 14863071 (E.D. Cal. Oct. 26, 2022).
[See Doc. 102-7 at 154:22-155:5]. As such, this opinion amounts only to an

This includes Dr. Bosch’s testimony that Polaris designed the UTV’s ROPS according
to the “wrong” standard because it allegedly did not meet the requirements of these
inapplicable standards.
9

28

unhelpful legal conclusion. Additionally, while Dr. Bosch states in his report
that the UTV did not meet the OSHA standard, he contradicts this in his
deposition, stating that he has “no reason to believe that the relevant [ROPS]
here didn’t meet OSHA.” [Id. at 160:25-161:2]. As a result, it is unclear what
if any opinion Dr. Bosch holds regarding the UTV’s compliance with the
OSHA standard. For both reasons, Polaris’s motion to exclude Dr. Bosch’s
opinion regarding the UTV’s compliance with the OSHA standard is granted.
Dr. Bosch’s report also lists several alternative designs that he
contends would “significantly improve” the crashworthiness of the UTV’s
ROPS, such as using structural foam,10 higher strength steel, increasing the
plastic modulus by increasing dimensions or adding reinforcement plates,
using “X” bracing, increasing the dimensions of the ROPS tubing, etc. [Id. at
34-40]. However, an expert’s testimony regarding the safety of alternative
designs is properly excluded where it is “unsupported by any evidence such
as test data or relevant literature in the field.” See Nease, 848 F.3d at 234
(quoting Oglesby, 190 F.3d at 249). Dr. Bosch admits that he has not
conducted any testing on the designs he suggests, and his report does not
explain how any of the information referenced therein establishes that these

Plaintiffs represent that they are withdrawing Dr. Bosch’s opinions relating to the foam
alternative design. [Doc. 135 at 15].
10

29

alternative designs would improve performance of the UTV’s ROPS during
a crash. [Doc. 102-7 at 123:1-4, 261:15-262:5]. Indeed, Dr. Bosch’s report
does no more than list most of these alternatives.

[See id. at 34-36].

Accordingly, Plaintiffs have not met their burden of demonstrating that Dr.
Bosch’s alternative design testimony would be helpful to the jury, that it is
based on sufficient facts or data, or that it is the product of reliable principles
and methods.
Moreover, under North Carolina products liability law, a plaintiff must
provide evidence that a proposed alternative design is “safer, practical,
feasible, and otherwise reasonable”; that it “could then have been
reasonably adopted”; and that it “would not have substantially impaired the
usefulness, practicality, or desirability of the product.” See Sparks v. OxyHealth, LLC, 134 F. Supp. 3d 961, 987-88 (E.D.N.C. 2015) (quoting DeWitt
v. Eveready Battery Co., 144 N.C. App. 143, 154, 550 S.E.2d 511, 518
(2001), aff’d, 355 N.C. 672, 565 S.E.2d 140 (2002)). Dr. Bosch’s report does
not discuss how his alternative designs would be incorporated in the UTV,
nor whether they would be feasible. For all these reasons, Polaris’s motion
to exclude Dr. Bosch’s alternative design testimony is granted.
More broadly, as the proponents of Dr. Bosch’s testimony, Plaintiffs
have the burden of demonstrating that “it is more likely than not” that his

30

testimony “will help the trier of fact to understand the evidence or to
determine a fact in issue[,]” that it is “based on sufficient facts or data[,]” that
it “is the product of reliable principles and methods[,]” and that it “reflects a
reliable application of the principles and methods to the facts of the case.”
See Fed. R. Evid. 702. Dr. Bosch’s analysis spans pages 21 through 75 of
his report. [See Doc. 102-7 at 21-75]. Pages 21 through 32 contain facts
about rollover protection standards that mostly do not apply to UTVs, as
discussed above, pages 32 through 34 discuss general product engineering
principles, pages 34 through 40 contain a list of ways that roll cage designs
can be generally improved, as discussed above, pages 40 through 54
contain factual information about the history of automobile roof crush
standards, pages 55 through 73 discuss the FMVSS standard that applies to
automobiles, as discussed above, and pages 73 through 75 discuss testing
that automobile companies have done on their vehicles’ roofs in the past, as
well as the results of this testing. [Id.].
While some of the information Dr. Bosch recites in his report could
potentially support his conclusions, he never explains how these inapplicable
standards, general principles, and historical information relate to this case.
Indeed, he rarely mentions any of the facts of this case in his report’s
analysis, which appears to be largely boilerplate. Moreover, Dr. Bosch’s

31

report does not explain his methodology, and he mentions almost all of his
opinions for the very first time in his report’s conclusion, without explanation.
As a result, Plaintiffs have not demonstrated that Dr. Bosch’s testimony
meets any of the requirements of Rule 702.
Therefore, Polaris’s motion to exclude Dr. Bosch’s testimony is
granted.
E.

Polaris’s Motion to Exclude Testimony of Dr. Robert
Burnham

Polaris moves to exclude the testimony of Dr. Burnham, Plaintiffs’
mechanical engineering and “Finite Element Analysis” expert, in its entirety,
arguing that Dr. Burnham has not complied with the requirements of Rule 26
of the Federal Rules of Civil Procedure. [See Docs. 124, 126 at 4].
An expert’s report must contain “a complete statement of all opinions
the witness will express and the basis and reasons for them,” including “the
facts or data considered by the witness in forming them.” Fed. R. Civ. P.
26(a)(2)(B). The phrase facts or data is to “be interpreted broadly to require
disclosure of any material considered by the expert, from whatever source.”
Id. at advisory committee note to Rule 26(a)(2)(B). This material includes
any information that an expert “generates, reviews, reflects upon, reads,
and/or uses in connection with the formulation of his opinions, even if such
information is ultimately rejected.” Clean Mgmt. Envtl. Grp. v. Asymmetric
32

App. Grp., No. 2:19-00942-BHH, 2020 WL 4679351, at *4 (D.S.C. June 12,
2020). “The federal rules impose an ‘automatic sanction’ of exclusion of a
party’s expert witness for failure to adhere to the requirements set forth in
Rule 26(a).” SSS Enters., Inc. v. Nova Petrol. Realty, LLC, 533 F. App’x 321,
324 (4th Cir. 2013); see also Campbell v. United States, 470 F. App’x 153,
156 (4th Cir. 2012) (affirming district court’s exclusion of plaintiff’s expert
where expert’s report did not contain the disclosures required by Rule 26(a)).
However, this sanction may be avoided where the failure to comply with Rule
26(a) is harmless. See Fed. R. Civ. P. 37(c).
Dr. Burnham was hired by Plaintiffs to determine the direction and
amount of force that was applied to the UTV’s ROPS during the crash. [See
Doc. 102-6 at 8]. However, rather than making his own determinations, Dr.
Burnham contracted with a third-party vendor, Adapt Technologies (“Adapt”),
to conduct computer simulations using different load cases11 in order to
select the load case that would result in deformation to a simulated ROPS
“most like” that observed in the photos of the UTV’s ROPS after the crash.12
[Id. at 11; Docs. 126-4; 152 at 2]. Each of Dr. Burnham’s opinions, which are

11

A load case is defined by Dr. Burnham as being the combination of the amount and
direction of a force, essentially a vector. [Doc. 133-1 at 5].
12

Adapt conducted simulations using at least 23 different load cases. [See Doc. 152 at
2].
33

as follows, depend on the “data surrounding the incident,” meaning the data
generated by Adapt during its simulations:

Opinion 1
Evident from the data surrounding the incident and
the injuries suffered by Mr. Ziegler is that the ROPS
design of the [UTV] was inadequate to protect beltedin passengers from a rollover incident that could be
clearly foreseen, given the performance and
intended use of the [UTV].
Opinion 2
It was feasible for Polaris to design a ROPS for the
[UTV] competent to withstand this foreseeable injury.
This was verified through the analytical process
described in the following paragraphs.
Opinion 3
A directional cost estimate of the proof-of-concept
design improvement for the [UTV] to make the ROPS
system functional in protecting passengers in rollover
shows such a solution to be economical, especially
in consideration of the extremely positive safety
benefit to be obtained and the cost in comparison to
the retail pricing of the [UTV].
[Doc. 102-6 at 11-23 (emphasis added)].
“The wholesale adoption of the opinion of another expert verbatim
cannot be within the intent of Fed. R. Evid. 702.” Bouygues Telecom, S.A.
v. Tekelec, 472 F. Supp. 2d 722, at 729 (E.D.N.C. 2007).

34

The purpose of expert testimony is to aid the factfinder, through explanation of complicated or
technical areas which require specialized knowledge
and understanding. While this function undoubtedly
can lead to the adoption or incorporation of the ideas,
information, and analysis of others with expertise in
the same field, it does not lead to the conclusion that
an expert with a perhaps overlapping . . . area of
expertise should be permitted to merely adopt and
incorporate verbatim another’s ‘expert’ opinion.
Id. (citing Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614-15
(7th Cir. 2002)) (internal citation omitted); see also Funderburk v. S.C. Elec.
& Gas Co., 395 F. Supp. 3d 695, 719 (D.S.C. 2019) (“[A]n expert may not
‘be the mouthpiece’ of another expert . . . because such an opinion would
not indicate reliability.”).
“mouthpiece” of Adapt.

Here, Dr. Burnham is seeking to be the
Indeed, he contracted with Adapt to determine

exactly the same information that Plaintiffs hired him to determine—the
direction and amount of force the UTV’s ROPS experienced during the crash.
He then, apparently, adopted Adapt’s opinion as his own without any further
analysis. Indeed, Dr. Burnham’s report does not so much as state that he
reviewed all the data that Adapt generated during its simulations. Thus, Dr.
Burnham’s opinions will be excluded because Plaintiffs have not
demonstrated that they meet the reliability threshold of Rule 702.
Additionally, even if Dr. Burnham reviewed all the data generated by
Adapt, that this data forms the basis of his opinions, and that he performed
35

some additional analysis, after he approved of the load case that Adapt
selected, Adapt “deleted the data of the load cases that had been rejected”
before it was provided to Polaris. [Doc. 133-1 at 5]. If Dr. Burnham reviewed
this data, and it forms the basis of his expert opinions in this matter, it
constitutes facts or data under Rule 26 which Dr. Burnham was required to
disclose to Polaris. See Clean Mgmt. Envtl. Grp., 2020 WL 4679351, at *4.
By allowing this data to be deleted, Dr. Burnham has failed to comply with
the requirements of Rule 26.
Plaintiffs do not argue that this failure is harmless error. [See Doc.
139]. However, to the extent that this issue is before the Court, Polaris has
established that it has been prejudiced by Dr. Burnham’s noncompliance
with Rule 26 because each of his opinions depend on Adapt’s data. Indeed,
his report states that opinions one and two are based upon the data Adapt
generated, and opinion three—that the alternative design tested by Adapt is
economically feasible—is irrelevant absent data demonstrating that this
design would perform better in a crash.

[See Doc. 102-6 at 11-17].

Additionally, because Dr. Burnham failed to provide Polaris with the data
relating to the 22 load cases Adapt rejected, Polaris cannot properly question
Dr. Burnham about how and why the one load case was selected, cannot
examine the data relating to the other load cases to determine if they more

36

accurately reflect the deformation sustained by the UTV’s ROPS during the
crash, and cannot analyze the total volume of data to discern any relevant
trends. Accordingly, even if Dr. Burnham had reviewed all of Adapt’s data
and this data forms the basis of his opinions, his testimony would still be
excluded.13 SSS Enters., Inc., 533 F. App’x at 324.
For these reasons, Polaris’s motion to exclude Dr. Burnham’s
testimony is granted.
F.

Plaintiffs’ Motion in Limine to Bar Mission Hospital
Toxicology Results / Plaintiffs’ Motion to Exclude Testimony
of Dr. Randall Tackett

Plaintiffs seek to bar admission of Mission Hospital’s toxicology test
results that state Mr. Ziegler’s and Kipp’s blood alcohol content after the
crash, arguing that the reports of these results state in a footnote that
“[p]ositive results have not been verified by a second confirmatory
procedure.

Unconfirmed results should not be used for nonmedical

purposes.” [Docs. 127-1 at 2; 127-2 at 3]. Plaintiffs also seek to exclude the

13

Plaintiffs contend that the data relating to the 22 load cases that Adapt rejected are
protected from disclosure under Rule 26(b)(4)(B) as drafts of Dr. Burnham’s work. [See
Doc. 139 at 8]. However, raw data itself does not amount to a draft of an expert’s report.
See Immunex Corp. v. Sanofi, No. 17-2613-SJO, 2018 WL 1941714, at *5 (C.D. Cal. Feb.
27, 2018) (“Contrary to defendants’ position, this raw data from the . . . [e]xperiments
does not qualify as ‘draft expert reports.’”). Moreover, even if raw data could be
considered a draft of an expert report, the data relating to the load cases that Adapt
rejected cannot be so considered because Dr. Burnham did not perform this testing.
Indeed, there is no indication that he ever saw this data.

37

testimony of Dr. Tackett, Polaris’s toxicology expert, because he relied on
these test results despite the footnotes. [Doc. 127 at 1-7].
“The results of an otherwise reliable medical procedure are [not]
rendered inadmissible simply because a hospital says [in a footnote] that the
results should not be used in legal proceedings.” O’Neill v. WindshireCopeland Assocs., 327 F.3d 281, 286 (4th Cir. 2004); Tunnell v. Ford Motor
Co., 330 F. Supp. 2d 731, 744 (W.D. Va. 2004) (“Simply because the medical
record . . . contains a disclaimer [that it should not be used for ‘legal
purposes’], however, does not mean that the underlying data is unreliable.”);
see also Thomas v. Hogan, 308 F.2d 355, 361 (4th Cir. 1962) (“There is good
reason to treat a hospital record as trustworthy. Human life will often depend
upon the accuracy of the entry, and it is reasonable to presume that a
hospital is staffed with personnel who competently perform their day-to-day
tasks.

To this extent at least, hospital records are deserving of a

presumption of accuracy . . . .”).
Plaintiffs’ only argument for excluding the blood alcohol content test
results, and therefore Dr. Tackett’s testimony relying thereon, is that Mission
Hospital’s reports each contain the footnote quoted above. However, the
mere presence of disclaimers in these footnotes does nothing to
demonstrate that the data contained in the reports is inaccurate or unreliable.

38

See O’Neill, 327 F.3d at 286.14 Accordingly, Plaintiffs’ motion in limine to
exclude the test results is denied. Likewise, because Plaintiffs have not
established that Dr. Tackett unreasonably relied on the results contained in
these reports, their motion to exclude his testimony is also denied.
G.

Plaintiffs’ Motion to Exclude Testimony of Mark Warner

When Mr. Warner examined the scene of the crash three years after it
occurred, on November 22, 2022, he observed and photographed a tree with
broken branches. [Doc. 114-2 at 22-23]. Plaintiffs move to exclude his
testimony regarding when these branches broke, arguing that it is outside of
his expertise in accident reconstruction. [Doc. 114 at 2].
A witness may only provide expert opinion testimony to the extent his
testimony is based upon his knowledge, skill, experience, training, and
education. See Fed. R. Evid. 702. “An expert may base an opinion on
facts . . . that the expert . . . personally observed.”

Fed. R. Evid. 703.

Accident reconstructionists, specifically, often base their opinions on
information observed and collected from accident scenes. See Callahan v.
Pac. Cycle, Inc., 756 F. App’x 216, 224 n.4 (4th Cir. 2018) (“[A]n ‘accident

14

Additionally, medical records of regularly recorded activities are admissible unless the
party challenging its admission shows its “lack of trustworthiness” based on “the source
of [the] information or the method or circumstances of [its] preparation.” See Fed. R. Evid.
803(6)(E). Plaintiffs have not at all explained how the disclaimers in these reports
undermine the source of the test results, nor the methodology by which the results were
determined.
39

reconstructionist’ would determine how an accident occurred by measuring
‘skid marks and tire tracks’ at the scene of the accident.’”); State v. Denton,
265 N.C. App. 632, 636, 829 S.E.2d 674, 678 (2019). Experts may also
testify to the factual assumptions underlying their conclusions, so long as
these assumptions are supported by the evidence. See Sparks v. Gilley
Trucking Co., Inc., 992 F.2d 50, 54 (4th Cir. 1993) (citing E. Auto Distribs.,
Inc. v. Peugeot Motors of Am., Inc., 795 F.2d 329, 337-38 (4th Cir. 1986)).
In his report, Mr. Warner opines that “[a]fter the [UTV] left the roadway
and travelled airborne toward the riverbed, it passed through some trees
overhanging the river. One of these trees was impacted by the [UTV] and
was broken off by the rear bed of the [UTV].” [Doc. 114-2 at 22]. Mr. Warner
bases this opinion, in part, on the fact that he observed a tree with broken
branches at the crash scene on November 22, 2022. [Id. at 22-23]. As Rule
703 allows experts to base their opinions on facts that they personally
observe, Mr. Warner may testify that he observed a tree with broken
branches at the crash scene. Additionally, as there is evidence that the tree
is located within the path the UTV travelled during the crash, and its branches
were observed broken after the crash, Mr. Warner may testify about his
factual assumption that the branches were broken during the crash. See
Sparks, 992 F.2d at 54; [see also Doc. 148-1 at 6:5-7].

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During his deposition, however, Mr. Warner goes further than this,
offering opinions that the break pattern of the tree in question looked
“consistent with about two or three years of healing” and that the age of
certain portions of the tree might account for why they either broke or did not
break upon impact with the UTV. [Doc. 148-1: Warner Dep. at 23-24; Doc.
114 at 3-4].15 As foundation for these opinions, Mr. Warner testified that
“analyzing damage to vegetation” “comes into play frequently” when
reconstructing accidents and that he has been “involved” in a colleague’s
“thesis work on tree fracture energy.” [Doc. 148-1 at 12:9-21].
Mr. Warner does not indicate in his report or deposition testimony what
he meant, however, when he testified that accident reconstruction frequently
involves “analyzing damage to vegetation.” He fails to explain how often he
analyzes vegetation, what training he has in analyzing vegetation, and what
he typically analyzes vegetation to determine.16 Similarly, while Mr. Warner

15

The Court has cited Plaintiffs’ motion for Mr. Warner’s opinion that the age of certain
portions of the tree could explain why they either broke or did not break upon impact with
the UTV because Plaintiffs’ “Exhibit 3,” which purports to be excerpts of Mr. Warner’s
deposition, was not attached to Plaintiffs’ filing. [See Doc. 114-3]. However, Plaintiffs’
motion appears to quote the relevant part of Mr. Warner’s deposition verbatim, and
Polaris does not challenge the accuracy of Plaintiffs’ quotes.
16

While it is obvious that accident reconstruction might involve examining an accident
scene for damaged vegetation to help determine the trajectory of a crash, it does not
follow that accident reconstructionists are qualified to determine the age of vegetation
based on its appearance or that they are qualified to determine when vegetation was
damaged based on its healing.

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states that he has been “involved” in a colleague’s “thesis work on tree
fracture energy,” he does not identify this colleague, provide copies of this
work, nor explain his involvement in this research. Mr. Warner also explains
neither the phrase “tree facture energy,” nor how this concept applies to his
work as an accident reconstructionist. Rather, Mr. Warner plainly states in
his deposition, “I don’t have specific expertise in analyzing broken tree
branches.” [Id. at 5:12]. Thus, Mr. Warner’s opinions about the tree’s healing
and age based on its appearance are outside his established area of
expertise and will be excluded.
Accordingly, Plaintiffs’ motion to exclude Mr. Warner’s testimony is
granted in part and denied in part. Specifically, Mr. Warner will be allowed
to testify to observing the broken tree branches and to his assumption that
they were broken during the crash. He will be precluded, however, from
testifying that the tree’s healing indicated that its branches were broken two
to three years prior to his observations and that the age of certain portions
of the tree explains why they either broke or did not break upon impact with
the UTV.

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ORDER
IT IS THEREFORE ORDERED that:
(1) Polaris’s Motion to Strike Plaintiffs’ Retained Testifying Expert
Dr. Jerry Bauer [Doc. 109] is GRANTED IN PART and DENIED
IN PART;
(2) Polaris’s Motion to Strike Plaintiffs’ Retained Testifying Expert
Dr. Stan V. Smith [Doc. 113] is GRANTED;
(3) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Dr. Garrett Wood [Doc. 116] is GRANTED IN PART and DENIED
IN PART;
(4) Plaintiffs’ Motion in Limine to Bar Mission Hospital Toxicology
Results [Doc. 119] is DENIED;
(5) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Dr. David Bosch [Doc. 121] is GRANTED;
(6) Polaris’s Motion to Strike Plaintiffs' Retained Testifying Expert
Robert E. Burnham [Doc. 124] is GRANTED;
(7) Plaintiffs’ Amended Motion in Limine to Bar Tackett Testimony
[Doc. 120, as corrected, Doc. 127] is DENIED; and

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(8) Plaintiffs’ Amended Motion in Limine to Bar Warner Testimony
[Doc. 114, as corrected, Doc. 128] is GRANTED IN PART and
DENIED IN PART.
IT IS SO ORDERED.
Signed: February 7, 2024

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