Griffeth et al v. USA

Filing 51

ORDER AND MEMORANDUM DECISION granting 40 Motion in Limine to Exclude Testimony by Expert Witness Kaitlyn Phelps; granting 27 Motion in Limine to Exclude Testimony re Pilot Vehicle Theory. Signed by Judge Tena Campbell on 12/8/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

LINDA GRIFFETH and DARIN GRIFFETH,
Plaintiffs,

ORDER
AND

vs.

MEMORANDUM DECISION

UNITED STATES OF AMERICA,

Case No. 1:13-cv-00019-TC

Defendant.

The United States filed a Motion in Limine to Exclude from Trial All Testimony
Concerning a Pilot Vehicle Theory (Dkt. No. 27), and a Motion in Limine to Exclude from Trial
All Testimony by Plaintiffs’ Expert Witness Kaitlyn [sic] Phelps (Dkt. No. 40). On December 4,
2014, the court heard oral argument on both motions and testimony from Kaitlin Phelps to
determine whether she qualifies as an expert under Rule 702 of the Federal Rules of Evidence
and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Having considered the
parties’ arguments and the pertinent law, the court holds that (1) all evidence related to the pilot
vehicle theory will be excluded at trial, and (2) Ms. Phelps is not qualified to testify as an expert
witness. Accordingly, the court GRANTS the United States’ motions.
PROCEDURAL HISTORY
On September 16, 2010, Linda Griffeth was driving a recreational motorcycle in Cache
County, Utah when she collided with a “large rubber-tired loader vehicle, owned by the United
States Forest Service and being driven by employee James Roberson.” (Compl. ¶ 8, Dkt. No. 2.)

Ms. Griffeth was injured in the accident and filed an administrative claim with the Forest
Service based on the following grounds: “The loader may not have been in working order, was
traveling too fast for the conditions and the driver was not keeping a proper look out [sic] and
failed to stop or make room in the roadway for the claimant’s vehicle to pass.” (Administrative
Claim at 2, Dkt. No. 14-1.) On January 28, 2013, the Griffeths filed their complaint, alleging that
Mr. Roberson negligently caused the accident “in that he was in the wrong lane, did not keep a
proper lookout, did not have proper lighting on the vehicle, and failed to warn oncoming traffic
of his location in the road despite being notified that traffic was coming.” (Compl. ¶ 10.)
Approximately one year later, the Griffeths moved to amend the complaint to add twelve
paragraphs that raised new theories that the United States acted negligently by “not providing a
pilot vehicle or flag car ahead of the loader, failing to give adequate warning of the loader’s
movement, and not posting proper signage in the area of the loader’s operation.” (Proposed Am.
Compl. ¶ 20, Dkt. No. 10.) The Griffeths provided Kaitlin Phelps’ expert report on January 15,
2014 (Dkt. No. 12), and Dr. Scott Kimbrough’s report on January 29, 2014 (Dkt. No. 15). Dr.
Kimbrough’s report explains his reconstruction of the accident and provides his conclusions
about the accident, including his opinion that the United States should have used a pilot vehicle.
Magistrate Judge Evelyn Furse recommended that the court deny the Griffeths’ motion to
amend for three reasons: (1) the new negligence claims were jurisdictionally barred because they
were not included in the Griffeths’ administrative claim; (2) the Griffeths’ motion was untimely;
and (2) allowing the proposed amendments would unduly prejudice the United States. (Report
and Recommendation at 1, Dkt. No. 22.) The court agreed and adopted Judge Furse’s report and
recommendation. (Dkt. No. 26.)
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ANALYSIS
I.

Pilot Vehicle Theory
Under the Federal Rules of Evidence, “[i]rrelevant evidence is not admissible.” Fed. R.

Evid. 402. Evidence is relevant if it supports a fact that “is of consequence in determining the
action.” Fed. R. Evid. 401(b). The United States maintains that “[t]he facts and arguments
concerning the pilot vehicle theory are not of consequence to this action because the pilot vehicle
theory was excluded by this Court’s Order. Therefore, any such testimony is irrelevant to the case
and should be excluded.” (United States’ Mot. in Limine to Exclude from Trial All Testimony
Concerning a Pilot Vehicle Theory and Mem. in Supp. at 6, Dkt. No. 27.) The court agrees.
Before filing suit under the Federal Tort Claims Act (FTCA), a plaintiff must comply
with the FTCA’s notice requirements, which “must be strictly construed” and “are jurisdictional
and cannot be waived.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852
(10th Cir. 2005) (quotations omitted). The jurisdictional statute, 28 U.S.C. § 2675(a) dictates that
claims presented to federal agencies must include “a written statement sufficiently describing the
injury to enable the agency to begin its own investigation.” Id. (quotations omitted). If a plaintiff
fails to give adequate notice, the district court lacks jurisdiction to hear the claim.
To comply with § 2675(a), the administrative claim must “serve[] due notice that the
agency should investigate the possibility of particular (potentially tortious) conduct.” Id. This
requires “notice of the facts and circumstances underlying a claim rather than the exact grounds
upon which plaintiff seeks to hold the government liable.” Id. at 853.
In Trentadue, the government argued that the plaintiffs’ administrative claim was
insufficient to support an intentional infliction of emotional distress cause of action because the
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claim “was based on a theory that prison officials had murdered Trentadue and did not discuss
the specific grounds relied on by the district court.” Id. at 852. The Tenth Circuit disagreed and
found that the plaintiffs had given sufficient notice because “the plaintiffs’ administrative claim
specifically included a claim for intentional infliction of emotional distress and was based on the
same underlying conduct that supported their amended complaint.” Id. at 853.
By contrast, the court in Staggs v. United States ex rel. Department of Health and Human
Services, 425 F.3d 881 (10th Cir. 2005), found the plaintiff’s administrative claim inadequate to
support a claim for lack of informed consent. The plaintiff in Staggs provided the agency with a
detailed explanation of the grounds for her claim for medical malpractice. Id. at 883. Although
the plaintiff argued that lack of informed consent should have been implied, the plaintiff never
mentioned lack of informed consent in her administrative claim. Id. In addition, the court
“deem[ed] it noteworthy that Staggs’ complaint [was] silent regarding lack of informed consent.”
Id. at 885. Because lack of informed consent was omitted from the administrative claim and the
complaint, the court concluded that the agency “could have reasonably concluded that a claim of
lack of informed consent was not intended and that an investigation into lack of informed
consent was unnecessary.” Id.
Here, although the Griffeths were not required to spell out the exact grounds on which
they would base their case, they were required to give “due notice that the agency should
investigate the possibility of particular (potentially tortious) conduct.” Trentadue, 397 F.3d at
852. As in Staggs, the Griffeths did not mention the failure to use a pilot vehicle in their
administrative claim. And the Griffeths’ complaint is silent regarding the pilot vehicle theory. All
of the negligence alleged in the Griffeths’ claim and complaint focuses on what the driver did or
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did not do. There is nothing in the administrative claim that would give the agency notice of a
pilot vehicle theory or the need to investigate the theory.
The court previously denied the Griffeths’ motion to amend, primarily because the
Griffeths did not include a pilot vehicle theory in their administrative claim.1 After further
consideration of the issues and applicable law, the court again concludes that the motion to
amend was appropriately denied. The Griffeths may not avoid this ruling by attempting to
introduce evidence of the pilot vehicle theory at trial. Such evidence is not relevant to the claims
and theories alleged in the Griffeths’ administrative claim and complaint, which relate solely to
Mr. Roberson’s operation of his vehicle. The Griffeths’ witnesses, including Dr. Kimbrough,
may testify to the extent their testimony relates to the negligence alleged in the complaint, but no
witness may testify about the pilot vehicle theory.
II.

Kaitlin Phelps
The Griffeths seek to call Kaitlin Phelps as an expert in the area of motorcycle operation.

The Griffeths plan to use Ms. Phelps’ testimony to show that Ms. Griffeth was not negligent in
the way she drove her motorcycle on the day of the accident. The United States contends that Ms.
Phelps is not qualified to testify as an expert under Rule 702 of the Federal Rules of Evidence
and that she has not given a sufficient explanation of how she reached her conclusions.
Although the standard under Rule 702 is “liberal . . . regarding expert qualifications,”
United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995), “[t]he proponent of expert

1

Although this order addresses the Griffeths’ administrative claim, the motion to amend
was also properly denied based on the untimeliness of the motion and the potential prejudice to
the United States.
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testimony bears the burden of showing that the testimony is admissible.” Conroy v. Vilsack, 707
F.3d 1163, 1168 (10th Cir. 2013). To determine whether the proponent has met its burden, the
court applies a two-part test. First, the court decides whether the witness is “qualified by
knowledge, skill, experience, training, or education to render an opinion.” Id. (quotations
omitted); Fed. R. Evid. 702. “Second, the court ‘must satisfy itself that the proposed expert
testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a
jury to assess such testimony.’” Conroy, 707 F.3d at 1168 (quoting United States v. RodriguezFelix, 450 F.3d 1117, 1122 (10th Cir. 2006)).
To satisfy the first prong, the Griffeths assert that Ms. Phelps is qualified as an expert
based on her experience with motorcycles. While a witness may qualify as an expert based solely
on experience, Ms. Phelps’ limited experience does not rise to the level that courts have found
sufficient under Rule 702. For example, in Werth v. Makita Elec. Works, Ltd., 950 F.2d 643
(10th Cir. 1991), the Tenth Circuit held that the plaintiffs’ safety expert was qualified based on
his experience, which included fifteen years as president of two safety consulting firms, five
years experience as a safety director for General Motors, and seven years as a safety engineer for
GMC and two insurance companies. Id. at 649 n.8. The plaintiffs’ second expert was also
qualified because he had worked in the relevant industry for ten years before forming his own
consulting firm. Id. at 652 n.10.
But in Milne v. USA Cycling Inc., 575 F.3d 1120 (10th Cir. 2009), the court concluded
that the plaintiff’s expert was not qualified to testify about the proper procedures for mountain
bike races. Although the expert had experience organizing road-bike races, he had minimal

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experience with mountain bikes and had only participated in one or two mountain bike races. Id.
at 1133-34.
Ms. Phelps’ experience is similarly insufficient. Ms. Phelps explained in her report and
again at the Daubert hearing that, although she has used ATVs throughout her life, she only
began driving motorcycles when she married her husband about nine and half years ago. And in
the last nine and a half years, Ms. Phelps’ experience has been limited to driving motorcycles “as
a family nearly every week when the weather allows,” which Ms. Phelps explained was generally
from late April to October. Ms. Phelps further stated that about 60-70% of this time is spent
driving motorcycles and the remainder is spent driving ATVs. Significantly, Ms. Phelps admitted
that she had never driven a motorcycle on the road where the accident took place until after she
prepared her report. In addition, Ms. Phelps has no formal training and has not received
endorsements or licenses for motorcycle operation. Ms. Phelps has never acted as an expert,
consulted, or written on the subject. Unlike the experts in Werth, Ms. Phelps has minimal
experience, limited to seasonal motorcycle riding with her family, in areas different than where
the accident happened. The Griffeths have not demonstrated that Ms. Phelps has sufficient
experience to qualify as an expert in this case.
Moreover, “a witness ‘relying solely or primarily on experience’ must ‘explain how that
experience leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts.’” United States v. Fredette, 315
F.3d 1235, 1240 (10th Cir. 2003) (quoting Fed. R. Evid. 702 advisory committee’s note). In
Fredette, the court excluded an expert’s testimony where he “never explained why his personal
experience was a sufficient basis for his opinion.” Id.
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Here, Ms. Phelps does not disclose any methodology underlying her opinions. Ms.
Phelps’ report does not provide any explanation of how her experience allowed her to reach
reliable conclusions about Ms. Griffeths’ operation of the motorcycle on the particular day and
on the specific road where the accident took place. And at the Daubert hearing, Ms. Phelps
conceded that, with the information provided in her report, it would be impossible for someone
else to determine how she formed her opinions. Under these circumstances, the court cannot find
that Ms. Phelps’ testimony “is the product of reliable principles and methods.” Fed. R. Evid.
702(b). Because Ms. Phelps’ testimony does not satisfy either prong of the Rule 702 standard,
she cannot testify as an expert in this case.
ORDER
For the foregoing reasons, the court GRANTS the United States’ Motion in Limine to
Exclude from Trial All Testimony Concerning a Pilot Vehicle Theory (Dkt. No. 27) and Motion
in Limine to Exclude from Trial All Testimony by Plaintiffs’ Expert Witness Kaitlyn [sic] Phelps
(Dkt. No. 40). The Griffeths may not offer any testimony or other evidence related to the pilot
vehicle theory. And Kaitlin Phelps may not testify as an expert.
SO ORDERED this 8th day of December, 2014.
BY THE COURT:

TENA CAMPBELL
United States District Judge

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