Wientjes v. Kanyuh

Filing 48

ORDER granting 40 Motion to Strike expert witness designations. Signed by U.S. District Judge Charles B. Kornmann on 1/17/19. (DJP)

UNITED STATES DISTRICT COURT

^

JAM 23 2019

DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

CODY R. WIENTJES,
1:17-CV-01005-CBK

Plaintiff,
ORDER
vs.

WAYNE KANYUH,
Defendant.

Plaintiff instituted this negligence action in state court seeking compensation for
personal injury and property damage arising out of an October 23, 2016, automobile
accident in rural Campbell County, South Dakota. The matter was removed to federal ,
court by the defendant on the basis of diversity jurisdiction under 28 U.S.C. § 1332.
Defendant filed a counterclaim against the plaintiff alleging automobile negligence.
Plaintiff filed "disclosures of expert opinions" wherein plaintiff set forth that
certain fact witnesses have expertise and whose trial testimony may include expert
opinions. Plaintiff has not retained any expert witnesses. Defendant has moved to strike
the expert designation of Sheriff Lacey Perman, EMT Bob Huber, and Mikala Deibert
from plaintiffs expert witness disclosures.
Fed. R. Evid. 702 authorizes the admission of expert testimony in the form of an
opinion if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier offact 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 has reliably applied the principles and methods to the facts ofthe
case.

The Court must determine under Rule 702(a) whether 1) the proposed expert
possesses specialized knowledge 2)that will assist the trier of fact to determine a fact in

issue. The Court must determine under Rule 702(b-d) whether the proposed expert

testimony is reliable. The district court acts "as a gatekeeper in determining whether the
proposed expert's testimony both is relevant and rests upon a reliable foundation."

United States v. Geddes. 844 F.3d 983, 991 (8th Cir. 2017). Plaintiff bears the burden to
prove the admissibility of his proposed expert testimony by a preponderance of the

evidence. Menz v. New Holland North America. Inc.. 507 F.3d 1107, 1114(8th Cir.
2007), Lauzon v. Senco Prods.. Inc.. 270 F.3d 681, 686 (8th Cir. 2001).
The collision occurred on a rural gravel road. Defendant and his passengers may

have been hunting in the area and defendant's vehicle was either stopped or moving
slowly just over the crest of a hill when plaintiff, driving a semi pulling a trailer of hay,
came over the hill and struck defendant's vehicle. Plaintiff apparently intends to elicit

testimony from SheriffPennan regarding plaintiffs negligence, that is, whether plaintiff
could have avoided the collision; from EMT Huber that he smelled alcohol at the scene
of the collision(which has no relevance, unless there is some evidence that the driver of

the vehicle in question had been consuming alcohol which affected his driving abilities);
and from Ms. Deibert concerning driving "etiquette" near the scene of the collision.

At the outset, I must determine whether the proposed experts possess specialized
knowledge concerning the subject matter of their proposed testimony. "A witness may
be qualified by knowledge, skill, experience, training, or education." United States v.

Holmes. 751 F.3d 846, 849(8th Cir. 2014). "[A]n individual can qualify as an expert

where she possesses sufficient knowledge gained from practical experience, even though
she may lack academic qualifications in the particular field of expertise." United States
V. Johnson. 860 F.3d 1133, 1140(8th Cir. 2017) iauotins Fox v. Dannenherg. 906 F.2d

1253, 1256 (8th Cir. 1990)). It is sufficient if the experts in question base their opinions
on relevant evidence they have observed, their specialized knowledge in the field, their
review of the scientific literature, and discussions with other experts in the field. United
States V. Carlson. 810 F.3d 544, 553(8th Cir. 2016). Where the proposed testimony does
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not rest on scientific foundations, the "relevant reliability concerns may focus upon

personal knowledge or experience." United States v. Holmes, 751 F,3d at 850.
The problem with the proposed testimony of SheriffPerman is that he did not

apparently take any measurements or do any meaningfiil accident reconstruction.
Whether or not he possesses experience or training in determining the cause of an
accident, he would not be allowed to opine on the whether or not either plaintiff or
(

defendant followed the rules of the road, was negligent, or had any fault in the causation
of the collision.

As for the proposed testimony concerning alcohol consumption, it does not take
expertise to detect the odor of alcohol. However, absent scientific evidence that either
driver was intoxicated or had a significant blood alcohol level, such testimony would not
be admissible to infer that either driver was negligent.

Finally, in no event would a lay witness be allowed to testify as to their "expert"
opinion as to driving etiquette. Negligence in South Dakota is judged by the rules ofthe
road and not by rules of etiquette.
While expert testimony is allowed if it "will help the trier offact to understand the
evidence or to detennine a fact in issue," Fed. R. Evid. 702, an expert may not "usurp the
providence (sic) of the jury" by testifying who was at fault for the accident. Booth v.
Kellev. 882 F.3d 759, 762(8th Cir. 2018).
Plaintiff appears to concede that the proposed witnesses would not be giving
expert testimony under Fed. R. Evid. 702 but contends that the proposed testimony is
admissible as lay opinion testimony under Fed. R. Evid. 701. Plaintiff characterizes the

proposed testimony as "statements drawn from common sense perceptions" by witnesses
who live near the accident scene and were at the scene after the accident.

Pursuant to Fed. R. Evid. 701,

If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
Fed. R. Evid. 701.

Whether either party violated the South Dakota rules of the road, was otherwise

negligent, or could have avoided the collision are ultimate issues for the jury. The drivers
ofthe vehicles are allowed to testify to their perceptions as to the speed ofthe vehicles
before the collision and any attempts made to avoid the collision. The proposed lay
witnesses cannot do so. While expert witnesses may review deposition testimony as to
speed, take measurements at an accident scene, and draw conclusions as to the time it

takes to stop a vehicle once a vehicle is observed ahead, such testimony is not the type of
lay opinion testimony allowed under Rule 701.
Law enforcement officers make decisions as to whether to write tickets for the

violation ofthe rules ofthe road. Such tickets, like charges brought by prosecutors in
complaints and issued by grand juries in indictments, do not establish the violation of a
law. Only juries determine whether laws, including South Dakota's rules of the road,
have been violated. A Sheriffs decision to issue or not issue a ticket is not evidence of

the commission of a crime or negligence, or the lack thereof.

Lay witnesses' custom and experience in driving and stopping semis on rural

roads is immaterial to whether either party in this case was negligent. Such testimony
will not be allowed.

The briefs refer to the fact that one witness claims to have found empty beer
containers at the accident scene and another witness claims to have smelled alcohol while

assisting the accident victims. The admissibility of evidence concerning the consumption

of alcohol by a driver prior to impact should be raised either by a motion in limine or at
the time the testimony is offered. The consumption of alcohol by anyone at any time
prior to the collision does not establish negligence absent blood tests showing a driver
was operating a motor vehicle in violation of the law. The admissibility ofthe evidence
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concerning the odor of alcohol or the presence of empty alcohol containers would be
subject to a relevance inquiry as well as a Rule 403 inquiry.
Now,therefore,

IT IS ORDERED that defendant's motion, Doc. 40, to strike expert witness

designations is granted. ^

DATED this / ^day of January, 2019.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge