Quilez-Velar et al v. Ox Bodies, Inc. et al

Filing 456

MEMORANDUM AND ORDER re: 405 MOTION in Limine; 411 MOTION in Limine; 408 MOTION in Limine; 407 MOTION in Limine; 422 MOTION in Limine; 406 MOTION in Limine; 419 MOTION in Limine; 424 MOTION in Limine; 409 MOTION in Limine; 423 MOTION in Limine; 418 MOTION in Limine; 417 MOTION in Limine; 421 MOTION in Limine; 410 MOTION in Limine; 420 MOTION in Limine; 412 MOTION in Limine. Plaintiffs' Show Cause Response due by 2/2/2015.Signed by US Magistrate Judge Silvia Carreno-Coll on 2/1/2015.(NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

BERARDO A. QUILEZ-VELAR,
ET AL.,
Plaintiffs,
v.

CIV. NO.: 12-1780(SCC)

OX BODIES, INC., ET AL.,
Defendants.

MEMORANDUM AND ORDER
Before the court are several motions in limine filed by the
parties in advance of the trial in this case. I take them up
individually below.
I. Plaintiffs’ Motions
A. Motion to Exclude Dr. Alfred P. Bowles (Docket No.
417)
Defendants intend to call Dr. Alfred Bowles as an expert on
how traumatic injuries occur as a result of physical exposure to
various forces. Plaintiffs seek to exclude Dr. Bowles because,

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they say, his report shows he plans to testify on subjects on
which he has no expertise, such as the “adequacy of rear
underride guards.” Docket No. 417, at 8. Plaintiffs’ concerns
are misplaced. For example, Plaintiffs complain about a
statement in Dr. Bowles’s report where he states that the
alternative designs proposed by other experts lack “confirmatory impact tests” that would show that they would not have
injured the decedent. Docket No. 417-1, at 5. But Dr. Bowles is
an expert in biomechanics and impact trauma, and he is surely
qualified to say that no tests have been performed, and he may
propound on the significance of that lack of tests. Likewise,
Plaintiffs complain about Dr. Bowles’s intent to testify that “the
proposed alternative rear guard designs would not eliminate
the potential mechanism for fatal head injury in an alternative
comparative crash.” Id. Dr. Bowles is certainly qualified to
testify about the biomechanical import of various rear guard
designs. Finally, while Dr. Bowles is not qualified to discuss
traffic control measures,1 he may certainly testify about the

1.

Meaning that he should not testify about what traffic control
configurations would have been “better,” see, e.g., Docket No. 417-1, at
5, though he may testify about the how the biomechanics of the impact
would have been different in alternative crash scenarios.

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biomechanical effects of collisions with, e.g., truck-mounted
attenuators.
As I read the report, Dr. Bowles does not intend to testify
about what various rear guard’s would have done to the
decedent’s vehicle. Rather, his testimony takes the results of
other experts’ testimony and extends it by showing what effect
various surmised and hypothetical impacts would have had on
the decedent’s body. This seems well within his expertise and
is plainly useful to the jury. For that reason, I am unpersuaded
about Plaintiffs’ complaints that Dr. Bowles relies on other
experts’ statements. This is because in doing so, he is not
parroting their results, he is applying his own expertise to their
results, in order to better inform the jury. Docket No. 417 is
accordingly DENIED.
B. Motion to Exclude Police Report (Docket No. 418)
Plaintiffs move to exclude an investigative report of the
accident, which was written by POPR Agent Anibal VélezCruz. Plaintiffs object specfically to a portion of the report in
which Agent Vélez concludes that at the time of the accident,
the decedent’s car was moving “at such a speed that it did not
allow control over the vehicle itself.” Docket No. 418-2, at 3.
According to Plaintiffs, this is problematic because Agent

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Vélez’s assessment was based on “unfounded opinion based
on hearsay.” Docket No. 418, at 5. Accordingly, say Plaintiffs,
the report should be excluded.
The question is whether Agent Vélez’s report complies with
Federal Rule of Evidence 803(8)(B)’s trustworthiness requirement. Plaintiffs argue that it does not, because the “report
contains no physical data or evidence to support” Vélez’s
conclusions about speed, which must therefore have been
based on witness statements. Docket No. 418, at 6 (citing Faries
v. Atlas Truck Body Mfg. Co., 797 F.2d 619, 622 (8th Cir. 1986)).
Trustworthiness, in the context of Rule 803(8), “refers to
matters such as whether the evidence is self-authenticating or
contemporaneously compiled by a person of adequate skill and
experience.” Blake v. Pellegrino, 329 F.3d 43, 48 (1st Cir. 2003).
To this end, I may consider “the sources of information
utilized.” Id. But it cannot be argued that there is a bar against
admitting a report that is based on hearsay, as long as the
report has indicia of trustworthiness. See, e.g., Remington Inv.,
Inc. v. Quintero & Martinez Co., Inc., 961 F. Supp. 344, 352 (“The
First Circuit has flatly rejected the argument that official
firsthand knowledge is required.” (citing Robbins v. Whelan, 653
F.2d 47 (1st Cir. 1991)).

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Here, the report deserves an “initial presumption of
admissibility.” Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 45–46
(1st Cir. 1991). Nonetheless, it should be excluded. Nothing in
the report—which is brief and preliminary, see Docket No. 4182, at 3 (noting that the “case is pending for investigation)—describes the origin of Agent Vélez’s conclusions. He
did not witness the accident, and it seems he performed no
measurements or tests, so his conclusions are likely not
conclusions at all, but, rather, the parroting of witnesses’
unverifiable hearsay opinions. Because these opinions form the
entire basis for Vélez’s conclusions, and because the report is
so conclusory that Plaintiffs could have no opportunity to
undermine it on its own terms, I would strike the report on
trustworthiness grounds.2 Accordingly, I GRANT Plaintiffs’
motion and exclude the police report.3

2.

I note, moreover, that the problem of introducing this hearsay through
the police report is amplified by the fact that the conclusions Agent
Vélez adopts in the report are extremely prejudicial to Plaintiffs.
Evidence that the decedent was speeding and lost control of her vehicle
is more fairly presented by direct evidence.

3.

Alternatively, the report may be omitted with the offending passage
redacted.

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C. Motion to Exclude Anand Kasbekar and Brian Halpin
(Docket No. 419).
Plaintiffs seek to exclude the testimony of Anand Kasbekar
and Brian Halpin, primarily because “neither one rendered any
report.” Docket No. 419, at 4. As to Kaskebar, this matter is
moot because Plaintiffs have no plan to call him as a witness in
this case. Docket No. 439, at 1.
As to Halpin, it appears that contrary to Plaintiffs’ contention, he did submit an expert report almost a year ago, on April
11, 2014. See Docket No. 439-3; see also Docket No. 439-1, at 5
(email sending report to Plaintiffs’ counsel). It is plain, then,
that Plaintiffs’ motion is improper, and it is DENIED.4 What
needs to be explained, though, is why Plaintiffs have made the
patently false claim that Halpin’s report was not provided,
when it clearly was. To that end, before the start of trial
Plaintiffs must SHOW CAUSE why sanctions should not be
imposed against them and/or their counsel for making false

4.

That said, the email by which Plaintiffs’ counsel was sent Halpin’s
report does not appear to also contain his CV and other information
required to be disclosed under the rules. It is unclear when or if that
material was disclosed. However, even if had not been, I would be
disinclined to strike Halpin’s testimony for that reason alone.

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representations to this Court.5
D. Motion to Exclude Whitney G. Morgan (Docket No.
420)
Defendants intend to call Whitney Morgan as an expert in
commercial motor vehicle compliance, enforcement, and
safety. Morgan will testify that the rear guard in this case
complied with certain federal regulations. According to
Plaintiffs, this testimony must be excluded because the “proper
standard of care in this case is a matter for the Jury to decide,”
and “[c]ompliance with regulations does not preclude the jury
from finding that defendants breached their duty.” Docket No.
420, at 9. Plaintiffs’ position is wholly frivolous. Of course, it is
for the jury to decide what the applicable standard of care is in
this case. As Plaintiffs’ counsel surely knows, the jury is
assisted in that endeavor by expert witnesses, who testify as to

5.

I suspect that Plaintiffs might attempt to defend themselves by claiming
that the report was filed untimely. The Court will not accept such an
excuse, however, because Plaintiffs’ motion was obviously meant to
create the impression that the report was never filed. See, e.g., Docket
No. 419, at 6 (referring to “defendants’ absolute failure” to provide
Halpin’s report (emphasis added)); see also id. (arguing that the
prejudice of Defendants’ failure was “palpable and irreversible”
because Plaintiffs were “completely deprived” of the ability to counter
Halpin’s report (emphasis added)).

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what, in their opinions, the proper standard is. See, e.g.,
Vazquez-Filipetti v. Banco Popular de P.R., 504 F.3d 43, 54 (1st Cir.
2007) (explaining that in a defective design case, the use of an
expert witness is typically necessary to present evidence “as to
the relevant standard of care for the design”). And plainly,
Morgan will testify that the regulation at issue is the proper
standard of care in this case. See Docket No. 420-1, at 3 (“The
[regulations at issue] set forth the requirements and industry
standards for motor carriers with regard to driver qualifications,
vehicle maintenance, cargo securement, as well as the parts
and accessories necessary for safe operation.” (emphasis
added)). As such testimony is obviously and routinely allowed,
the motion is DENIED.
E. Motion to Exclude Rudolf G. Mortimer (Docket No.
421)
Defendants intend to call Rudolf Mortimer to testify
regarding human factors that might have been involved in the
decedent’s accident. Plaintiffs object, principally because, in his
report, Mortimer relies in part on the conclusions and opinions
of other expert witnesses. Docket No. 421, at 8–9. In essence,
Mortimer takes some conclusions from other experts regarding
the circumstances of the accident, and using those conclusions

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as a basis, opines on whether, had she been paying attention,
the decedent would have had time to avoid the crash. See
Docket No. 421-1, at 2–3. His conclusions in this regard are
largely based on published research. See id. For that reason, I
reject entirely Plaintiffs’ intimation that Mortimer’s conclusions
would not be helpful to the jury or are mere parroting of other
experts’ work. As with the testimony of Dr. Bowles,
Mortimer’s proposed testimony is a useful and helpful
extension of other experts’ work.
As to the whether Mortimer may rely, in forming his
opinions, on the conclusions of others, it is likely that he may
permissibly do so, but the record before me does not allow me
to answer the question definitively. Pursuant to Federal Rule
of Evidence 703, an expert may base his opinion on the types
of information that an expert in his field “would reasonably
rely on.” And, as the First Circuit has noted, “[e]xperts who
testify regularly in court commonly and permissibly rely in
some measure on information gathered by other experts.”
United States v. McGhee, 627 F.3d 454, 460 (1st Cir. 2010), rev’d
on reh’g on other grounds, 651 F.3d 153 (1st Cir. 2011). Though it
seems likely that experts like Mortimer, who focus on a rather
narrow question regarding accident reconstruction, would

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typically rely on the work of other experts, I will reserve
judgment on that question, and the parties will be permitted to
conduct a brief voir dire of Mortimer on this matter. The
motion is accordingly DENIED WITHOUT PREJUDICE.6
F. Motion to Exclude Peter A. Murphy (Docket No. 422)
Murphy will be called to testify about traffic control
devices, and specifically about whether the Municipality of San
Juan, in parking its truck as it did, complied with the 2009
Manual on Uniform Traffic Control Devices (“MUTCD”).
According to Plaintiffs, this testimony is improper because
Murphy fails to “establish that the December 2009 MUTCD
was in operation in Puerto Rico on the date of the accident”—and that, indeed, it was not adopted by Puerto Rico
until somewhat later. Docket No. 422, at 8–9. It is hard to take
Plaintiffs’ argument seriously in this regard, given that it has

6.

That said, I DENY the motion WITH PREJUDICE insofar as it argues
that Mortimer’s testimony must be stricken because, in reaching his
conclusions, he has “cherry picked” evidence that favors Defendants.
Docket No. 421, at 9. Apart from the opinions of other experts, on
which I have reserved ruling, the evidence on which Mortimer relies
satisfies Rule 703, and his choosing among it in rendering his report
does not invade the jury’s province. Of course, neither Mortimer nor
any other witness can testify about whether he believes or disbelieves
the factual testimony of other witnesses, but I am sure he will not.

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also argued that Defendants cannot present evidence that they
did comply with federal regulations. See Docket No. 420.
Reading Murphy’s report, it is plain that he will testify
that—adopted or not7—the 2009 MUTCD represents the
proper standard of care that the Municipality should have
followed, and, further, that the Municipality failed to follow it.
Such testimony is entirely appropriate.8 Cf. Boston & M.R.R. v.
Talbert, 360 F.2d 286, 290 (1st Cir. 1966) (recognizing that
“nationally recognized standards were properly admissible as
one more piece of evidence upon which the jury could decide”
the standard of care); Considine v. City of Waterbury, 905 A.2d

7.

Defendants point out that a Municipal witness, J. Santiago-Martínez,
testified that he was familiar with the MUTCD (if not its content), and
that if the Municipal workers failed to follow it during the crash, they
might not have done their job correctly. See Docket No. 435-3, at 1–4.
There is at least a colorable evidentiary basis for thinking that the
Municipality was following or attempting to follow the MUTCD at the
time of the crash, even if Puerto Rico had not formally adopted it. I also
note that the MUTCD is, by law, “the national standard for all traffic
control devices installed on any street, highway, or bicycle trail open to
public travel.” 23 C.F.R. § 655.603(a).

8.

Notably, the report of Plaintiffs’ design expert, Perry Ponder, also
discusses the applicability of MUTCD, see Docket No. 405-1, at 3–4,
though, as Plaintiffs point out, he was not specific about the version to
which he was referring, see Docket No. 455, at 3.

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70, 91 (Conn. 2006) (noting that regulations could be useful
evidence of standard of care, even if they were not in effect at
the time of an accident (following Curtis v. District of Columbia,
363 F.2d 973 (D.C. Cir. 1966))).
Plaintiffs also challenge Murphy’s qualifications, arguing
that he has “no knowledge, skill, experience, training, or
education” in traffic control devices. Docket No. 422, at 12; see
also id. at 14 (“Mr. Murphy’s education, training and experience
show that he has no background in Traffic Control Devices.”).
According to Plaintiffs, Murphy’s background is solely in
accident reconstruction. Id. at 14. Plaintiffs badly misrepresent
Murphy’s CV, which, most notably, states that he has over
15,000 hours “installing and maintaining worksite traffic
control systems.” Docket No. 422-2. at 1. Further, he has
attended numerous traffic safety and traffic control seminars
and trainings over several decades, and he has lectured on
traffic control, especially in work zones. Plaintiffs’ misleading
objections to Murphy’s expertise are therefore rejected, and the
motion is DENIED.
G. Motion to Exclude Michael A. Sutton (Docket No. 423)
Plaintiffs’ first reason for excluding Michael A. Sutton, who
Defendants proffer as an accident reconstruction expert, is that

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in his report, he makes credibility assessments of witnesses by,
for example, crediting deposition testimony stating that the
decedent would have been able to see the stopped work truck
on her downhill approach. Docket No. 423, at 9–10. This
argument is easily dismissed. Pursuant to Rule 703, an expert
may of course rely on deposition testimony in reaching his
conclusions. See, e.g., Chavez v. Marten Transp., Ltd., Civ. No. 100004, 2012 WL 988011, at *2 (D.N.M. March 22, 2012) (collecting
cases standing for the proposition that accident reconstruction
experts routinely rely on deposition testimony in forming their
opinions (citing Miles v. Gen. Motors Corp., 262 F.3d 720, 724
(8th Cir. 2001))). If Plaintiffs are challenging the truth of the
deposition testimony on which Sutton relied, their challenge is
“to the credibility of [his] testimony, not the admissibility.”
Larson v. Kempker, 414 F.3d 936, 941 (8th Cir. 2005) (quotations
and citations omitted); see also Morales v. Monagas, 723 F.
Supp. 2d 411, 416 (D.P.R. 2010) (same). Plaintiffs’ challenge
thus fails on this ground.
Plaintiffs next object to Sutton’s finding that a “differently
designed underride guard would not have changed the
outcome of this accident.” Docket No. 423-1, at 7. Plaintiffs
admit that Rule 704 generally permits Sutton to reach a

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conclusion as to an ultimate issue. Nonetheless, they assert
without argumentation that this particular conclusion “grossly
overreaches and merely tells the Jury what result to reach.”
First, this argument is rejected because it is undeveloped. But
it fails on the merits too: the rest of the paragraph from which
the objected-to sentence comes provides a strong factual and
scientific basis for the conclusion. See Docket No. 423-1, at 7–8.
The same is true of Plaintiffs’ objection to Sutton’s conclusion
that the rear guard “did not cause or contribute to [the]
severity of the accident,” which conclusion is based on the
speed and angle of collision. Id. at 8. Plaintiffs motion is
rejected on these grounds as well.
Next, Plaintiffs object to Sutton’s finding that had the
decedent impacted a “shadow vehicle equipped with a truck
mounted attenuator,” the outcome would likely be different
because she would “have collided with a cushion device that
was capable of safely managing vehicle collisions at speeds
much higher than those in this accident.” Id. at 8. Plaintiffs call
this opinion “rank speculation,” but I can’t understand why.
All the opinion seems to be saying is that a different—and less
dangerous—result would have obtained had the decedent hit
a device—a truck mounted attenuator—that all of the relevant

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experts know is designed to absorb collision impacts. This is a
fairly unremarkable conclusion, and one Sutton seems qualified to make. Further, Sutton’s deposition testimony shows
that the conclusion was based on crash test data and regulations regarding how attenuators must function. See, e.g., Docket
No. 423-2, at 48. Plaintiffs’ arguments are rejected in this regard
as well.
Finally, Plaintiffs object to Sutton’s statement that the
decedent’s injuries “were cause in this accident by truck body
intrusion and not as a result of occupant dynamics.” Docket
No. 423-1, at 8. According to Plaintiffs, this constitutes “rank
speculation” because Sutton “is not an expert in bio-mechanics.” Docket No. 423, at 13. To be sure, Sutton should not
venture to give testimony about body dynamics unless he is
qualified as an expert in this field, but that does not make this
statement speculative. To the contrary, given the particularities
of this crash, even a layperson could determine that the
decedent died on account of “truck body intrusion.”
Plaintiffs’ Motion is DENIED.

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H. Motion to Exclude Andrew C. Latimer (Docket No.
424)
Andrew Latimer will be proffered as an expert in the design
and engineering of underride guards. Plaintiffs first object to
his testimony that Defendants complied with certain federal
regulations. This argument is rejected for the same reason it
was rejected with respect to Morgan: compliance with the
applicable regulation may not be dispositive, but it is probative.
Plaintiffs also object to Latimer’s opinion that the underride
guard was properly installed, “revealing no visible signs of
workmanship or installation defects.” Docket No. 424-1, at 6.
Plaintiffs say this is problematic because the overriding issue
here is design, not deficiency. More hyperbolically, they say
that Latimer “mischaracterizes the critical issue” and thereby
“overreaches and merely tells the jury what conclusion they
should reach.” Docket No. 424, at 12. To be sure, the issue in
this case is design. Nonetheless, Latimer’s proffered testimony
regarding installation and workmanship is useful as a foundation to his conclusion that the guard in this case performed as
it should. As such, Latimer’s statement is relevant. Further,
nothing in the paragraph on workmanship “tells the jury what

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conclusion they should reach”; by suggesting otherwise, it is
Plaintiffs who “mischaracterize[]” the relevant issue.
Plaintiffs next object to Latimer’s statement that at the time
the guard was installed, full-width underride guards were
“either extremely rare or nonexistent in practice on similar
dump bodies.” Docket No. 424, at 13. This statement plainly
foreshadows Latimer’s testimony regarding the relevant
standard of care. And as they have done with Defendants’
other experts, Plaintiffs object to this standard-of-care testimony because “the Jury is allowed to conclude that (despite
the rarity of full-width underride guards) failure to provide
one is a breach of defendants’ duty.” Id. This argument is still
misguided, as Defendants—like Plaintiffs—must present
evidence about the standard of care, even if the jury is not
obligated to agree. The argument fails.9
Finally, Plaintiffs object to Latimer’s opinion that a fullwidth rear guard “would interfere more often with terrain or
debris” than the one designed by Defendants, a fact that would

9.

I also reject Plaintiffs’ argument that Latimer’s statement regarding the
scarcity of full-width underride guards in 2002 is “speculative.” Docket
No. 424, at 14. Latimer’s CV shows that he has been active in this
particular field for 21 years; he would therefore have personal
knowledge of what the general practice was in 2002.

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“render[] a full-width rear guard impractical.” Docket No. 4241, at 9. Latimer’s opinion is supported in part by his observation that the original guard on the truck involved in this suit
showed visible damage suggesting that it “had already been
damaged by contact with uneven terrain or debris.” Id.
According to Plaintiffs, this supposition is “rank speculation.”
Docket No. 424, at 15. In fact, the supposition is a combination
of common sense and industry-specific knowledge. Latimer—who has been in the industry for more than 20
years—first notes that dump trucks often “operate in varied
conditions,” including those “with uneven terrain, piles of
depris and other obstacles.” Docket No. 424-1, at 9. Latimer
further states that Defendants’ rear guard is designed so as to
help accommodate use of the dump body in such areas. Id. In
explaining why a full-width guard would be less convenient in
this regard, he then notes that even the narrower original
guard had damage, and he makes the inferential leap that this
damage was caused by uneven terrain. Of course, he can not
say with certainty that such terrain damaged the guard, but
given his experience and common sense, he can make a
reasonable inference as to the cause of that damage. The
motion is DENIED.

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II. Defendants’ Motions
A. Motion to Exclude Perry Ponder (Docket No. 405)
Defendants seek to exclude Plaintiffs’ design expert, Perry
Ponder. Defendants make numerous objections to Ponder’s
report, most of which boil down to complaints that he did not
perform specific tests or calculations in the course of his
analysis. As Plaintiffs point out, however, Defendants do not
show that these specific tests must have been carried out to
provide a foundation for Ponder’s opinions. I have reviewed
Ponder’s report, and its conclusions are well-explained, and its
use of crash-test data appears appropriate. To the extent that
Defendants argue that Ponder should be excluded because his
report does not establish that Defendants’ guard was the
proximate cause of the crash, such a problem, if it existed,
would go to whether Plaintiffs can prove their case, not to
whether Ponder’s testimony is admissible. Defendants’ motion
is DENIED.
B. Motion to Exclude Reference to Decedent’s Minor Son
(Docket No. 406)
This motion is denied. It is true that the decedent’s minor
son is not a party to this case, and it is also true that, despite
that fact, constant reminders of the fact that he lost his mother

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might improperly influence the jury to compensate Plaintiffs
for the minor son’s loss. Still, Plaintiffs have a legitimate claim
to damages arising out of the fact that the decedent was a
mother at the time of her death, at least insofar as that fact has
affected Plaintiffs themselves. Plaintiffs may therefore testify
about how the decedent’s death affected them in this regard.
They may not, however, dwell on the minor son’s own losses,
as those have already been compensated and are no longer
before this Court. Further, Plaintiffs’ counsel are forewarned
against heavy-handed solicitations of sympathy for the minor
son; frequent mentions on their part will lead to a more
restrictive order from the Court on this matter.
C. Motion for Negative Inference Based on Spoliation
(Docket No. 407)
Defendants intend to present evidence from an eyewitness
that, after the crash, he saw the decedent’s phone lit up and
apparently on an active call. The phone itself, however, now
lacks its SIM card and has water damage, and so Defendants’
expert was unable to recover any information about what the
phone might have been doing at the time of the accident.
Defendants intimate that the SIM card was misplaced and the
phone broken on purpose, so as to hide adverse evidence, and

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they ask for a spoliation instruction. The prejudice Defendants
claim from the loss of this evidence is “the opportunity to
discover[] whether the decedent placed or received any
telephone calls or text messages in the moments prior to
impact.” Docket No. 407, at 12. What Defendants neglect to
mention is that they subpoenaed the decedent’s mobile phone
records from AT&T, and they therefore do have a record of the
decedent’s calls and texts. See Docket No. 442-2. Further, by
failing to mention the AT&T records, Defendants forfeited their
opportunity to explain why the AT&T records do not suffice to
mitigate their spoliation concerns. The motion is DENIED.
D. Motion to Limit Opinions of Dr. Mariusz Ziejewski
(Docket No. 408)
Plaintiffs proffer Dr. Mariusz Ziejewski as an expert in the
field of biomechanics. According to his report, his testimony
regards analysis of whether and how accidents would cause
various injuries. Docket No. 408-3, at 3. In essence, Dr. Ziejewski will testify that in a crash without truck body intrusion, the
decedent would have survived with only minor or moderate
injuries. See id. at 11. Plaintiffs object to several statements Dr.
Ziejewski made during his deposition, which they say deliver
opinions outside the scope of Dr. Ziejewski’s report (specifi-

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cally, that he testifies that the underride guard was defective
and he “crosse[s] into the realm of accident reconstruction”).
Docket No. 408, at 3.
Defendants’ concerns are mostly misplaced. They identify
five times that Dr. Ziejewski supposedly offered testimony on
the underride being defective, all of which I have reviewed.
The first of these is merely an explanation of the biomechanics
of an impact with Plaintiffs’ redesigned underride guard. See
Docket No. 408-4, at 4:14–24. In the second, he explains that in
his calculations he makes an assumption that, with the redesigned guard, there is no intrusion. See id. at 5:10–6:3. Likewise,
the third is simply a description, in biomechanical terms, of the
decedent’s cause of death. See id. at 10:8–11:9. None of these are
problematic, as they do not purport to render an opinion as to
the underride guard as such. The fourth instance, however, is
different. There, Dr. Ziejewski does opine that there was
substandard design, and this is improper. See id. at 18:8–19:11.
Though Plaintiffs argue he has the proper qualifications to
testify as to the substandard nature of the rear guard, Dr.
Ziejewski’s report does not support any opinions as to design.
He is therefore prohibited from offering any opinions as to the
guards themselves. See also id. at 21:3–24.

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As for Defendants’ argument that Dr. Ziejewski engages in
accident reconstruction, the first instance they cite is in actuality a benign instance of stating how he understands—from
other evidence—the accident to have taken place. See id. at
13:22–14:3. As for the final instance Defendants point to, it is in
no way “accident reconstruction”; to the contrary, it is Dr.
Ziejewski stating, in response to a question, whether he
believes “main frame rails are part of the protection devices for
an occupant of a vehicle.” Id. at 17:3–11. This seems to go to Dr.
Ziejewski’s area of expertise.
The motion is DENIED IN PART AND GRANTED IN
PART. Plaintiffs are ORDERED to ensure that Dr. Ziejewski’s
opinion testimony is consistent with the above.
E. Motion to Preclude Plaintiffs’ Counsel and Experts
from Referencing 49 C.F.R. § 393.86(a) (Docket No.
409)
Minimum standards for certain underride guards are set by
federal law in 49 C.F.R. § 393.86. Subdivision (b) sets the
standard for vehicles like the truck involved in this case. This
is the standard that Plaintiffs have strenuously objected to
Defendants’ experts mentioning in the course of this case.
Subdivision (a), by contrast, sets forth a more stringent

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standard that does not legally apply in this case. But its legal
inapplicability notwithstanding, I agree with Plaintiffs that
discussion of the competing standards may be useful to the
jury in considering what the standard of care was in this case.
Accordingly, the motion is DENIED. Cf. Hassan v. Stafford, 472
F.2d 88, 94 (3d Cir. 1973) (“The modern trend in federal and
state courts appears to favor the admission of regulations as
evidence of standard of care, even where the regulations do
not apply with the force of law to the individual defendant.”);
Girdler v. United States, 923 F. Supp. 2d 168, 188 (D.D.C. 2013)
(similar).
F. Motion to Exclude Duplicative Testimony on Mental
Anguish (Docket No. 410)
Plaintiffs intend to call their treating psychologist, Dr.
Magda Arroyo, as well as an expert in psychiatry, Dr. Jorge
Suria-Colón. Defendants argue that this testimony will be
duplicative, and Plaintiffs disagree, arguing that Dr. Arroyo
will testify about her treatment of Plaintiffs, while Dr. Suria
will presumably testify more globally about their mental states.
It is common in this district for Plaintiffs to present both their
treating and expert physicians, and I will not strike either of
their testimonies. However, Plaintiffs should be careful not to

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waste the jury’s and this Court’s time by going over the same
material twice. Dr. Arroyo’s testimony should hew to her
intervention and treatment, while the rendering of opinions as
to Plaintiffs’ mental suffering should be handled by Dr. Suria.
With this guidance, the motion is DENIED.
G. Motion to Prohibit Plaintiffs’ Experts from Parroting
the Opinions of Other Experts (Docket No. 411)
In substance, Defendants’ motion mirrors the one Plaintiffs
filed with respect to Rudolph Mortimer. See Docket No. 421. In
it, Defendants cite several instances where, during deposition
testimony, Plaintiffs’ experts admit to using other experts’
findings as starting points in their analyses; in each case, the
testifying expert disclaims personal knowledge of the truth of
the other expert’s conclusion. See Docket No. 411, at 3–5.
Defendants’ motion is DENIED with the same caveat as
Plaintiffs’ motion was denied with respect to Mortimer: no
expert, for either party, can vouch for the truth of another
expert’s conclusions (unless of course he or she personally has
the expertise and data necessary to do so); an expert may,
however, utilize another expert’s findings if the typical expert
in his field would do so. Defendants may request a brief voir
dire on this point, but as noted above the Court views these

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challenges with skepticism.10
H. Motion to Exclude Post-Accident and Autopsy Photos
(Docket No. 412)
Defendants seek to exclude any post-mortem photos of the
decedent on the groudns that the prejudice they would cause
would substantially outweigh their probative value. Fed. R.
Evid. 403. More to the point, Defendants argue that cause of
death is not in dispute in this case, and that the photos would
cause prejudice against Defendants as well as influence the jury
to in effect award Plaintiffs’ for the decedent’s suffering.
Plaintiffs respond by pointing out that they only seek to admit
three photographs, which they argue are crucial to showing
that the decedent very nearly avoided death, as they show the
head wound she suffered was near her left temple.
As Defendants argue, the cause of her death—as well as the
location of the impact—could be proved in other ways,

10. What I mean is that this is a complex case, and the syllogistic chain that
will allow either party to prevail requires expert opinions at many
points. Thus, for example, an accident reconstruction expert’s
conclusions are the raw material necessary for a biodynamic expert’s
conclusions. It is thus difficult to take seriously—that is, as anything
more than gamesmanship—either party’s occasional insistence that an
opposing expert cannot rely on another expert’s work if he could not
himself replicate it.

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including by Plaintiffs’ expert pathologist and the autopsy
report. Still, the photos are surprisingly compelling evidence
of just how close the decedent came to avoiding disaster, and
that fact may be probative of Plaintiffs’ claim. That said, the
second and third of the three photos Plaintiffs attached to their
opposition are gruesome and emotionally evocative. I fear that
showing either of them—and especially the third, which shows
the decedent’s un-bandaged wounds—would lead to the jury
responding with emotion, not reason. Moreover, neither of the
two full-face photographs are more probative than the first,
which shows only the portion of the decedent’s face above the
mouth. The first photograph, moreover, is far less likely to
prejudice Defendants.
Accordingly, I GRANT IN PART AND DENY IN PART
Defendants’ motion. I find that Plaintiffs may present the first
photograph attached to their motion, which shows the decedent’s head above the mouth. I find, however, that the prejudice that the other two photos would create substantially
outweighs their probative value, and I exclude them. Cf.
Johnson v. Rankin, 547 F. App’x 263, 270 (4th Cir. 2013) (recognizing “that autopsy photos are highly prejudicial” and
affirming their exclusion, despite the fact that they had some

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probative value); Bridges v. Enterprise Prods. Co., Civ. No. 05786, 2007 WL 571074, at *2 (S.D. Miss. Feb. 20, 2007) (excluding
autopsy photos in a wreck-related case where cause of death
was not disputed).
III.

Conclusion

For the reasons stated above, the motions in limine at
Docket Nos. 405, 406, 407, 409, 410, 411, 417, 419, 420, 421, 422,
423, and 424 are DENIED; the motion at Docket No. 418 is
GRANTED; and the motions at Docket Nos. 408 and 412 are
GRANTED IN PART AND DENIED IN PART. At the beginning of trial on the morning of February 2, 2015, Plaintiffs will
moreover be expected to SHOW CAUSE why sanctions should
be imposed upon them or their counsel.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 1st day of February, 2015.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE