Lake v. Adams

Filing 23

MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 3/2/2020. (ssm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JOHN R. LAKE,
Plaintiff,
v.
ZACHARY RICHARD ADAMS,
Defendant.

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Clerk’s Office
U. S. District Court
FILED
03/02/2020
Julia C. Dudley, Clerk
By: /s/ Susan Moody
Deputy Clerk

Civil Action No. 7:18CV00244
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge

This negligence action, arising in diversity, stems from an allegation that defendant
Zachary Adams drove into plaintiff John Lake while Lake rode his bike through a crosswalk and
across a street: Beamer Way in Blacksburg, Virginia. See Compl. Adams asserts the defense of
contributory negligence. See Answer.
Discovery is underway in this case. At his deposition, Lake testified that he did not stop
before crossing Beamer Way, and saw Adams’ vehicle, but assumed that Adams would stop at the
stop sign, based on his experience as a bicyclist riding in cities. ECF No. 17-3. Adams testified
at his deposition that bushes at the corner of Beamer Way prevented him from fully seeing down
the street, and that he pulled forward to see around them. ECF No. 17-1. Adams struck Lake
while doing so. Id.
In support of his defense of contributory negligence, Adams offers an expert, Aaron
Prussin. Prussin proposes to offer three opinions on what a “reasonable bicyclist” would have
done in Lake’s position before crossing Beamer Way. ECF No. 16-3, Report for A.J. Prussin.
First, according to Prussin, a reasonable bicyclist would have been travelling slow enough to stop
before entering the intersection in order to ensure that any vehicles would stop. Second, a
reasonable bicyclist would have come to a full and complete stop before entering the intersection.
Third, a reasonable bicyclist would not enter the intersection “without certainty” that any traffic

was stopped or stopping. Id. Prussin’s proffered qualifications include commuting daily for about
five years, taking part in “extensive” road cycling, and riding in “a few” local races and organized
rides. Id.
This matter is before the court on Lake’s motion to exclude testimony from Prussin on
three grounds. ECF No. 15. Lake argues that Prussin is not qualified to be an expert, that Prussin’s
opinions would not be helpful to a jury, and that Prussin’s opinions are unreliable. ECF No. 16.
Standard of Review
Under Federal Rule of Evidence 702, a qualified expert may provide an opinion if four
conditions are met. First, “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.” Second, “the
testimony is based on sufficient facts or data.” Third, “the testimony is the product of reliable
principles and methods.” Fourth, “the expert has reliably applied the principles and methods to
the facts of the case.” Fed. R. Evid. 702. Whether an expert bases his opinion “upon professional
studies or personal experience,” courts have a “gatekeeping” role to limit improper expert
testimony from reaching a jury. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). A district court enjoys “broad
latitude” in determining the admissibility of expert testimony. Id. at 153.
For a court evaluating whether to permit an expert’s testimony, “helpfulness to the trier of
fact is its ‘touchstone.’” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting Friendship
Heights Associates v. Koubek, 785 F.2d 1154, 1159 (4th Cir. 1986)). “Expert testimony has its
place, but courts are permitted to exclude expert testimony when ‘it concerns matters within the
everyday knowledge and experience of a lay juror.’” Pitt Ohio Exp., LLC v. Pat Salmon & Sons,
Inc., 532 F. App’x 439, 442 (4th Cir. 2013) (quoting Kopf , 993 F.2d at 377). The United States

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Court of Appeals for the Fourth Circuit has held that “[a]s a general proposition,” standards such
as “objective reasonableness” “may be comprehensible to a lay juror.” Kopf, 993 F.2d at 378.
“On the other hand, any ‘objective’ test implies the existence of a standard of conduct, and, where
the standard is not defined by the generic”—for example, by reference to what “a
reasonable officer” would do as opposed to “a reasonable person”—“it is more likely that Rule
702’s line between common and specialized knowledge has been crossed.” Id. In addition, “[a]n
opinion is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a).
Discussion
Prussin proposes to offer opinions that would not be helpful to a jury. Accordingly, the
court grants the motion to exclude his proposed testimony, and need not rule on whether he is
qualified as an expert or whether he applied reliable methods in reaching his opinions.1
Some courts have allowed experts to testify about specialized driving scenarios, such as
commercial truck driving. See, e.g., Lacaillade v. Loignon Champ-Carr, Inc., No. 10-CV-68, 2011
WL 6001792, at *4 (D.N.H. Nov. 30, 2011) (permitting expert opinion on whether truck driver
had given bicyclist adequate space when passing him); Hatten v. Sholl, No. 3:01-CV-00031, 2002
WL 236714, at *4 (W.D. Va. Feb. 13, 2002) (finding that testimony from expert in commercial
truck driving “would assist the trier of fact who . . . is unlikely to have knowledge of the special
procedures involved in reversing a 50,000 ton tractor”).
In contrast, courts routinely exclude expert testimony on non-specialized questions about
driving. See, e.g., Pitt Ohio Exp., LLC., 532 F. App’x at 442 (affirming preclusion of opinion on
“whether someone was driving too slow or too fast or was otherwise negligent under the conditions
encountered on April 20, 2009”); Ryans v. Koch Foods, LLC, No. 1:13-CV-234, 2015 WL

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Although there is no need to rule on the matter, the court has great doubts that Prussin would qualify as an
expert under the Federal Rules of Evidence.

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11108937, at *6 (E.D. Tenn. July 16, 2015) (“The question of what ‘any reasonably alert driver’
would do, however, does not require any scientific, technical, or other specialized knowledge. The
effects of fatigue on a driver are matters of common knowledge.”); Carvajal v. H & M Enterprises
& Logistics of Statesville, Inc., No. 2:13-CV-07853, 2014 WL 5072726, at *5 (C.D. Cal. Oct. 6,
2014) (precluding expert opinion that plaintiff had “violated bicycle operating regulations”).
Looking to the relevant legal standard in this case, the Virginia Supreme Court has ruled
that questions of whether a bicyclist at an intersection was contributorily negligent “must be
proved according to an objective standard whether the plaintiff failed to act as a reasonable person
would have acted for his own safety under the circumstances.” Rascher v. Friend, 689 S.E.2d 661,
664 (Va. 2010) (internal quotation marks and citations omitted). Further, Virginia courts look to
the standard of care exercised by a pedestrian when instructing a jury on the appropriate standard
of care for a bicyclist in Lake’s position. See Russ v. Destival, 593 S.E.2d 201, 203 (Va. 2004)
(holding that jury instructions were in error, citing Va. Code Ann. §§ 46.2-904, 46.2-924(B)).
Thus, applying Fourth Circuit authority, the court believes that no specialized knowledge is
required to rule on this defense, because a lay jury will have experience as pedestrians. Cf.
Kopf, 993 F.2d at 377 (reversing motion to exclude testimony by experts regarding use of a police
dog and slapjacks by officer in a reasonable use of force case).
Adams argues that riding a bicycle is a specialized practice, compared to a pedestrian
walking. He states that bicycles are “faster, they have operational features which require conscious
attention to use ([brakes] and gears),” and have more momentum. Opp. at 2. There is some merit
to this argument. The court can imagine matters on which an expert cyclist’s opinion could help
a jury. See, e.g., Sherwood v. BNSF Ry. Co., No. 2:16-CV-00008, 2019 WL 943467, at *2 (D.
Idaho Feb. 25, 2019) (permitting bicycle mechanic to testify regarding proper maintenance and

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