Navarrete et al v. Wiebe et al

Filing 71

ORDER granting 27 Daubert Motion. Signed by Honorable Timothy D. DeGiusti on 7/25/2014. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MIGUEL NAVARRETE, individually
and as co-executor of the Estate of
Miguel Navarrete, Jr., et al.,
Plaintiffs,
v.
MICHAEL C. WIEBE, et al.,
Defendants.

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Case No. CIV-13-708-D

ORDER
Before the Court is Defendants’ Daubert Motion [Doc. No. 27], filed pursuant to Fed.
R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Defendants Michael C. Wiebe, Jerry C. Wiebe, and Wiebe Farms, Inc. seek to prohibit
Plaintiffs from presenting opinion testimony of an expert witness, Jim G. Jackson. Plaintiffs
have filed a timely response [Doc. No. 43], to which Defendants have replied [Doc. No. 44].
Thus, the Motion is fully briefed and at issue.
This case concerns a motor vehicle collision between a pickup truck and a sprayer
tractor at a rural, uncontrolled intersection of two unpaved county roads. Plaintiffs assert a
claim regarding the alleged wrongful death of their son, a passenger in the pickup. Plaintiffs
have designated Mr. Jackson as an expert in accident reconstruction to testify in support of
their claim, and he has provided an expert report regarding his investigation and opinions.
Defendants do not challenge the field of accident reconstruction as an appropriate one for
expert opinions, nor do they challenge Mr. Jackson’s qualifications or expertise in this field.

Rather, Defendants contend the opinions stated in Mr. Jackson’s report either lack factual
and analytical support or do not require specialized knowledge or expertise. Regarding
Mr. Jackson’s opinions based on specialized knowledge, Defendants argue that they are not
supported by “a reliable basis in the knowledge and experience of his discipline,” Daubert,
509 U.S. at 592, and that they invade the province of the jury.1
The opinions of Mr. Jackson at issue are the following:
1.

The Chevrolet pickup driver, [A.N., a thirteen year old], should not
have been driving.

2.

[A.N.] should have yielded the Right of Way to the tractor.

3.

The tractor driver [Michael Wiebe] should have seen the pickup truck
as it was approaching the county intersection if he, in fact, did look.

4.

Michael Wiebe should have slowed down or stopped to avoid the
collision by allowing the pickup truck to have the Right of Way,
thereby avoiding the collision.

5.

The information and evidence I have at this time does not support
Wiebe Brothers, LLC[’s] statement “pickup traveling at a high rate of
speed” while traveling into impact, when considering:
a.

The distance the pickup truck traveled to its final resting
position.

b.

The initial impact damage to the pickup.

c.

The lack of serious damage to the sprayer unit by the impact.

d.

The distance the sprayer traveled to its final resting position.

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Defendants also argue that Mr. Jackson’s report is deficient under Fed. R. Civ. P. 26(a)(2) because
it fails to sufficiently state the reasons for his opinions and the facts or data he considered. However,
Defendants do not seek to exclude Mr. Jackson’s testimony on this basis under Fed. R. Civ. P. 37(c). See
Motion at 7. Accordingly, the informal conference requirement of LCvR37.1 does not apply.

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6.

I consider both drivers of having neglected to approach this 4-way
intersection with caution.

Defs.’ Motion, Ex. 2 [Doc. No. 27-2], Jackson Report, p.3.
Standard of Decision
Rule 702 codifies the Supreme Court’s decision in Daubert and sets forth the standard
for admissibility of expert opinions. When the testimony of an expert is challenged, the
proponent of the testimony bears the burden of establishing its admissibility. See United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc); Fed. R. Evid. 104(a).
Defendants’ Motion calls for Plaintiffs to establish that Mr. Jackson’s “specialized
knowledge will help the trier of fact to understand the evidence or to determine a fact in
issue;” that his opinions are “based on sufficient facts or data;” that they are “the product of
reliable principles and methods;” and that he “has reliably applied the principles and methods
to the facts of the case.” See Fed. R. Evid. 702(a)-(d). Plaintiffs’ response to the Motion
consists solely of copies of Mr. Jackson’s report and photographs of the accident scene
depicting a flat rural area with an open intersection and no obstructed views.
Discussion
Upon consideration, the Court finds that Mr. Jackson should not be permitted to testify
regarding the opinions stated in his report for two reasons.
Mr. Jackson’s first three opinions do not require specialized knowledge or expertise.
His first opinion – that a 13-year-old driver (A.N.) should not have been operating a pickup
truck on a county highway – would be obvious to a lay person. The second opinion – that

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A.N. should have yielded the right-of-way – states a conclusion that would be reached by
anyone with knowledge of motor vehicle laws stating right-of-way rules for highway
intersections. See Okla. Stat. tit. 47, § 11-401.B (when two vehicles reach an intersection at
approximately the same time, the driver of the vehicle on the left must yield to the driver on
the right). The conclusion is reflected in the official traffic collision report prepared by an
Oklahoma Highway Patrol (OHP) trooper showing A.N. was cited for violating § 11-401.B.
Mr. Jackson’s third opinion – that the tractor driver would have seen the pickup approaching
the intersection if he had looked – would be reached by anyone informed of the conditions
stated in the OHP collision report (daylight hour, clear weather, open area, unobstructed
visibility) and witnesses’ descriptions or photographs of the intersection. Because no
specialized knowledge is needed for these opinions, expert testimony regarding them would
not assist the jury.
The remainder of Mr. Jackson’s opinions – that the tractor driver should have yielded
the right-of-way to A.N., that the pickup was not traveling “at a high rate of speed” before
impact, and that both drivers neglected to proceed with caution – may employ specialized
knowledge or expertise. However, all of these opinions are stated as bare-bones conclusions;
Mr. Jackson’s report does not reveal the bases for them. As stated in the report (which is all
Plaintiffs have presented), these opinions are not shown to be based on sufficient facts or
data, or a product of reliable principles and methods, and it cannot be said that the expert has
reliably applied any principles or methods to the facts of the case. For example, the opinion
expressed by Mr. Jackson regarding the pickup’s speed is purportedly based on distances
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traveled and damage to the vehicles. But Mr. Jackson does not cite any measurements,
calculations, diagrams, methodology, or other support for his opinion. Earlier in his report,
Mr. Jackson refers to measurements included in the OHP collision report, but he does not
apply this information in any demonstrable, reliable way to support his opinion that the
pickup was not traveling at a “high rate of speed,” which is left undefined. Further,
Mr. Jackson’s opinions that the tractor driver should have taken action to avoid the collision
and that both drivers were “neglectful” are not explained or supported.
Conclusion
For the foregoing reasons, the Court finds that Plaintiffs have failed to establish the
admissibility of the proposed opinions of their expert in accident reconstruction.
IT IS THEREFORE ORDERED that Defendants’ Daubert Motion [Doc. No. 27] is
GRANTED. Plaintiffs are prohibited from soliciting opinion testimony from expert witness
Jim G. Jackson.
IT IS SO ORDERED this 25th day of July, 2014.

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