Opinion
Case No. 8:00CV558
January 9, 2002
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the following: the Defendant Pro Transportation, Inc.'s ("Pro Transportation's") Motion in Limine regarding Photographs, (Filing No. 92); the Defendant Pro Transportation's Motion in Limine to Exclude the Opinion Testimony of Larry E. Tremmel, (Filing No. 94); the Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Experts Robert J. Caldwell, Donald L. Asa, and Carlos Trevino, (Filing No. 96); and the Plaintiffs' Motion in Limine ( Daubert Challenge) to exclude the testimony of the Defendant Pro Transportation's expert J. Peter Matilla, (Filing No. 98). Evidence has been filed and briefs have been submitted by the parties. Oral argument and an evidentiary hearing were held pursuant to Federal Rule of Civil Procedure 104 on December 21, 2001 and January 8, 2002. The Court took judicial notice of the court file, including all attachments.
Defendant Pro Transportation's Motion in Limine regarding Photographs, (Filing No. 92)
Pursuant to the parties' request, this matter was submitted to the Court based on the evidence in the court file and the briefs.
The Defendant Pro Transportation moves the Court for an order prohibiting any party from presenting evidence or referring to photographs of burned bodies or charred remains such as those presented as Exhibits 2-12, 73-75, 78-80, 105-107, 117-128 and 132-154 on the basis that these photographs are irrelevant and that their probative value is substantially outweighed by danger of unfair prejudice.
These exhibit numbers refer to the photographs as described in the motion and briefs and as presented to the Court in the Defendant's Index of evidence, (Filing No. 93, Exhibit 7).
The Plaintiffs concede the motion as to the photographs contained in Exhibits 132-154. Plaintiffs' Brief in Opposition to Defendant's Motion in Limine Re Photographs at 3. Accordingly, the motion is granted as to photographs 132-154.
The Defendant Pro Transportation argues: (1) the remaining photographs are irrelevant and are without sufficient foundation; (2) any probative value is substantially outweighed by the danger of unfair prejudice; and (3) the photographs are cumulative.
The Court notes, however, that the list of exhibits accompanying the order on final pretrial conference, (Filing No. 113), does not appear to reflect any foundational objections to the photographs.
Generally, all relevant evidence is admissible at trial. Fed.R.Evid. 402. Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Transclean Corp. v. Bridgewood Services, Inc., 101 F. Supp.2d 788, 793 (D.Minn. 2000).
The federal rules of evidence generally allow for the admission of photographs, assuming a proper showing of foundation. Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir. 1991). Furthermore, as stated by the Eighth Circuit Court of Appeals, as a general rule "the balance should be struck in favor of admission." Block v. R.H. Macy Co., Inc., 712 F.2d 1241, 1244 (8th Cir. 1983). Photographs may be excluded, however, if their "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403. Therefore, Rule 403 requires the Court to balance the probative value of the evidence against the harm that is likely to result from its admission. Within this context, unfair prejudice "`means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" Block, 712 F.2d at 1244 (quoting Fed.R.Evid. 403 advisory committee's note).
The Court has carefully considered the evidence, including the photographs, and the parties' arguments. The Court finds that the total number of photographs in question may be cumulative, particularly if all are offered. Nevertheless, the photographs are relevant to the anticipated testimony of the Plaintiffs' witnesses Nebraska State Trooper Carlos Trevino and Nebraska State Trooper Lance Rogers insofar as the photographs may fairly illustrate what the troopers found upon their arrival on the scene of the accident and matters incident to their subsequent investigation. Also, the photographs appear to be relevant to the anticipated testimony of the Plaintiffs' proposed accident reconstruction expert witness, Robert J. Caldwell, and the Plaintiffs' proposed heavy equipment expert witness, Donald Asa. In carefully balancing the appropriate factors, the Court finds that the probative value outweighs any harm that is likely to be caused by their admission.
As explained below, while the Court will not allow Mr. Asa to testify as to the cause of the accident that is the subject of this lawsuit, the Plaintiffs may call Mr. Asa as a fact witness.
Accordingly, the Court will grant the Defendant Pro Transportation's Motion in Limine regarding Photographs, (Filing No. 92), as to photographic Exhibits 132-154; otherwise, the motion is denied.
The Opinion Testimony of Larry E. Tremmel, (Filing No. 94)
Pursuant to the parties' request, this matter was also submitted to the Court based on the evidence in the court file and the briefs.
Larry E. Tremmel appears in the order on final pretrial conference, (Filing No. 113), as a lay witness for the Plaintiffs. The Defendant Pro Transportation seeks under Federal Rules of Evidence 701 to exclude Mr. Tremmel's opinion testimony insofar as he would opine as to the cause of the accident, (Filing No. 94). Specifically, Mr. Tremmel testified in his deposition that Jake Stanczyk lost control of the Pro Transportation truck because Stanczyk was driving too fast for existing road and weather conditions.
Federal Rule of Evidence 701 provides:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
The purpose of Rule 701 is to eliminate the possibility of ignoring the reliability requirements of Federal Rule of Evidence 702 by proffering what truly amounts to an expert witness under the guise of a lay witness. Fed.R.Evid. 701 advisory committee's note. Insofar as the lay witness provides testimony based on scientific, technical, or other specialized knowledge within the scope of Rule 702, the witness' testimony must be scrutinized under the applicable rules governing expert testimony. Id.
The Eighth Circuit Court of Appeals has determined that "in order to conclude that [lay opinion] testimony is admissible, the court must find that the witness' testimony is based upon his or her personal observation and recollection of concrete facts." Wactor v. Spartan Transp. Corp., 27 F.3d 347, 350 (8th Cir. 1994) (quoting Kreuger v. State Farm Mut. Auto. Ins. Co., 707 F.2d 312, 317 (8th Cir. 1983) (quoting United States v. Jackson, 688 F.2d 1121, 1124 (7th Cir. 1982), cert. denied, 460 U.S. 1043 (1983))). Therefore, Mr. Tremmel's proposed testimony must be examined under Rule 701.
Mr. Tremmel testified in his deposition that he has been a truck driver since 1968 and that he witnessed the Pro Transportation truck jackknifing on December 19, 1999. He testified that it was windy and the road was wet and icy on the bridges. He admitted, however, that he did not know: the speed of the Pro Transportation truck before it jackknifed; the cause of the jackknife; whether the Pro Transportation truck had mechanical problems; or whether the driver of the truck made a driving error.
While Mr. Tremmel is undoubtedly an experienced truck driver, his proposed testimony clearly fails to satisfy the requirements of Rule 701 because the testimony is not rationally based on his perception. Though Mr. Tremmel saw the Pro Transportation truck in a jackknife, he knows nothing about the driver Stanczyk's actions prior to the jackknife, what driving maneuvers Stanczyk was using, or any mechanical problems Stanczyk may have encountered before the jackknife. In short, Mr. Tremmel is unaware of sufficient details surrounding the truck and its driver, and consequently there is no basis for his opinion that Stanczyk lost control of the truck because he was driving too fast under existing road and weather conditions. 29 Wright Gold, Federal Practice and Procedure, § 6255, at 155 (1997) (stating that "where the opinion is offered without supporting factual details, it represents `little more than choosing up sides' and `exclusion for lack of helpfulness is called for by the rule.'"); cf. Wactor, 27 F.3d at 351 (finding that proposed testimony satisfied Rule 701 requirements where lockmen from the U.S. Army Corps of Engineers had sufficient experience and observed the plaintiff's actions before the lockline broke, causing an injury accident).
In summary, while the Plaintiffs may wish to call Mr. Tremmel as a fact witness, he will not be allowed to offer opinion testimony as to the cause of the accident, i.e., Stanczyk's speed in driving the Pro Transportation truck in relation to existing road and weather conditions. Therefore, the Defendant Pro Transportation's Motion in Limine to Exclude the Opinion Testimony of Larry E. Tremmel, (Filing No. 94), is granted, consistent with this memorandum opinion.
Robert J. Caldwell, Donald L. Asa and Carlos Trevino, (Filing No. 96) Daubert Standard
In light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), this Court must screen proffered expert testimony for relevance and reliability. Blue Dane Simmental Corp. v. American Simmental Ass'n, 178 F.3d 1035, 1040 (8th Cir. 1999). A reliable opinion must be based on scientific methodology rather than on subjective belief or unsupported speculation. See Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir. 2000). Furthermore, the expert's information or opinion must "assist" the trier of fact to understand or determine a fact in issue. Fed.R.Civ.P. 702.
In assessing reliability, the Court should consider factors including whether the proposed expert's theory, methodology or technique: 1) can be and has been tested; 2) has been subjected to peer review; 3) has a known or potential rate of error; 4) is generally accepted by the relevant community; 5) ruled out alternative explanations; and 6) sufficiently connected the proposed testimony with the facts of the case. Lauzon v. Senco Prod., Inc., 270 F.3d 681, 687 (8th Cir. 2001); Jaurequi v. Carter Mfg. Co., Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). This list of factors is not exclusive, and this Court is allowed "great flexibility" in its analysis. Id.
Moreover, in deciding Kumho Tire Co., Ltd., 526 U.S. at 137, the Supreme Court held that Daubert applies to all expert testimony, not only scientific expert testimony. Id. at 141. Robert J. Caldwell
The Defendant Pro Transportation seeks under Federal Rules of Evidence 104 and 702 to exclude the opinion testimony of Plaintiffs' proposed expert witness Robert J. Caldwell, particularly insofar as he would offer his opinion testimony as to the cause of the accident, (Filing No. 96). Mr. Caldwell appears in the order on final pretrial conference, (Filing No. 113), as an expert witness. Mr. Caldwell would testify about the estimated speed of Stanczyk's truck, that Stanczyk's failed to maintain proper control of his truck, and where the jackknife occurred. In his deposition, Mr. Caldwell stated that he "believed" that Stanczyk operated his truck at a speed excessive for existing conditions. He qualified that "belief," however, by stating that he could not state with a reasonable degree of engineering certainty the cause of the accident. (Filing No. 93, Exhibit 8, Caldwell Deposition, 88:7-14.) Specifically, the Defendants challenge Mr. Caldwell's qualifications as well as his methodology under Rule 702.
Concerning Mr. Caldwell's qualifications as an expert, the Court notes Mr. Caldwell obtained a Bachelor of Science degree in architectural engineering from the University of Colorado in 1973. He undertook graduate study in civil engineering in 1975 and 1976 also at the University of Colorado, although he did not obtain a graduate degree. Mr. Caldwell is a professional engineer specializing in the area of accident reconstruction. He is a senior engineer and president of Ponderosa Associates, Ltd., a firm with which he has been affiliated for twenty-eight years. He also has additional engineering experience. (Exhibit 1.) Mr. Caldwell has a professional engineering license in Colorado, once held a professional engineering license in Wyoming, is or was a member of several professional and honorary societies, and has lectured frequently at colleges, trial advocacy institutes, and for various legal and engineering professional associations. He has investigated more than 4,000 accidents, with at least 500 of those involving heavy trucks and large transportation rigs. He explained to the Court the principles of the science of accident reconstruction involving the application of physics and mathematics to the physical evidence in an attempt to assemble a "picture" of the accident. Mr. Caldwell explained that his methods are used and generally accepted by others in his profession.
Exhibit numbers in the portion of this memorandum opinion relating to Mr. Caldwell refer to exhibits received at the January 8, 2002 hearing.
The Court finds that Mr. Caldwell is qualified under Rule 702 as an expert witness to testify about reconstruction of the accident, i.e., the matters to which he testified in the January 8, 2002, hearing. The Court has evaluated the reliability of the methodology Mr. Caldwell used to formulate his opinions by evaluating his proposed testimony in light of factors including those set out in Lauzon, 270 F.3d at 687, and Jaurequi, 173 F.3d at 1082. The Court finds the reliability of his methodology sound under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Therefore, the Court finds that Mr. Caldwell may testify as an expert witness to matters about which he offered opinions in his January 8, 2002 testimony, i.e. the speed of Stanczyk's truck, where the accident happened, and matters relating to Mr. Caldwell's expertise in the field of accident reconstruction. However, the Court will not allow Mr. Caldwell to opine as to the cause of the jackknife, as such testimony would not be supported by reliable methodology and because Mr. Caldwell testified in his deposition that he cannot do so to a reasonable degree of engineering probability.
Therefore, the Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Experts Robert J. Caldwell, (Filing No. 96), is granted in part and denied in part consistent with this memorandum opinion.
Donald Asa
Donald Asa appears in the order on final pretrial conference, (Filing No. 113), as an expert witness. The Defendant Pro Transportation seeks under Federal Rules of Evidence 104 and 702 to exclude the Mr. Asa's proposed opinion testimony, particularly insofar as he would offer his opinion testimony as to the cause of the accident, (Filing No. 96). The Plaintiffs seek to offer Mr. Asa's testimony as to the operation of heavy vehicles and, more importantly for purposes of Pro Transportation's motion, the cause of the accident. Mr. Asa would testify that Stanczyk failed to maintain proper control of his truck. Pro Transportation does not challenge Mr. Asa's anticipated testimony as to the operation of heavy vehicles. Rather, Pro Transportation challenges Mr. Asa's proposed testimony regarding federal trucking regulations and his opinion that Stanczyk violated a regulation and was negligent in doing so, therefore causing the accident. The reliability of Mr. Asa's methodology is challenged under Rule 702.
Concerning Mr. Asa's qualifications as an expert, the Court notes Mr. Asa's experience with trucks since his youth. He has been involved in the trucking industry since approximately 1945, with the exception of time spent in military service. Mr. Asa has an organization called "Truck Safe America," and he writes scripts and produces videos relating to truck safety, although none of those materials have been submitted to any professional organizations for peer review or approval. Mr. Asa also has been affiliated with D A Consultants, Inc. since 1983. He is currently president and chairman of the board of that company which is in the business of truck safety. Mr. Asa, at various times since his early involvement with trucks and truck safety, has worked: as a commercial vehicle accident investigator; as a consultant on such matters as truck driver actions, responsibilities, compliance and safety; in the operation and maintenance of tractor-trailer brake systems; and as a truck driver, instructor and safety supervisor. Specifically, since 1966, Mr. Asa has been engaged in training drivers in the safe operation of their commercial vehicles, having founded the SOS Big Rig Driver Training School in 1968. ( See Exhibit 1.) The Court notes that while Mr. Asa earned a general equivalency diploma in 1950 during his military service and had additional education in compliance and safety training through the American Trucking Association as well as WNH and Associates, he lacks additional formal education. Mr. Asa testified that he has no specialized training in mathematics or physics, and he did not have any high school physics classes. While Mr. Asa has "worked on" more than 2,000 truck accidents, he is not an expert in accident reconstruction. The Court notes that Mr. Asa's curriculum vitae reflects the following publications: Asa's Truck Safety Bulletins; Audio/Visual Training Programs on Truck Driving, Safety, Compliance; Handbook of Trucking and Truck Accidents; Introduction to Trucking; and SOS Driver Training Manual. Mr. Asa's curriculum vitae also indicates his membership in the National Association of Professional Accident Reconstruction Specialists and the National Safety Council. No specific honors are noted in Mr. Asa's curriculum vitae. The Court finds that while Mr. Asa may have sufficient knowledge through training, education and experience to be considered qualified to offer an expert opinion regarding the operation of heavy commercial vehicles, his qualifications are insufficient to render him an expert as to the cause of this particular accident.
Exhibit numbers in this portion of the memorandum opinion relating to Mr. Asa refer to exhibits received at the December 21, 2001, evidentiary hearing, unless otherwise noted.
Even if the Court found Mr. Asa qualified to testify as an expert as to the cause of the accident, the Court finds Mr. Asa's methodology insufficient to support an opinion on causation. The Court has evaluated Mr. Asa's proposed testimony in light of factors including those set out in Lauzon, 270 F.3d at 687, and Jaurequi, 173 F.3d at 1082. The information in the record regarding Mr. Asa's methods and procedures concerns the Court. Mr. Asa reviewed the following: 1) depositions of two fact witnesses, Larry Tremmel and Steven Rowland, the only two witnesses to the accident; 2) the deposition of the Plaintiffs' proposed expert witness Carlos Trevino; 3) photographs taken by Mr. Rowland; and 4) the accident report. In forming his opinion, Mr. Asa also relied on an excerpt from the Defendant Pro Transportation's driver handbook, (Exhibit 2), and federal motor carrier safety regulations included as part of Title 49 of the Code of Federal Regulations, in particular 49 C.F.R. § 392.14 (entitled "Hazardous conditions; extreme caution), (Exhibit 3). Mr. Asa testified that while he has been to the site of the accident, a portion of westbound I-80 in western Nebraska, he did not personally go or send any of his associates to the site for purposes of forming his opinion in this case. Neither did he drive a similar vehicle through the accident site or a site with similar characteristics for purposes of this case. Mr. Asa did not know the specific grade of the incline at the site. Mr. Asa did not inspect the tractor-trailer driven by Stanczyk. Mr. Asa used a model of a tractor-trailer to demonstrate during his testimony on December 21, 2001, what happens when a tractor-trailer jackknifes. He physically demonstrated with the model what happens during a jackknife, stating that jackknifes occur not on their own but rather because of something event, usually the driver's action, e.g., taking a foot off the throttle or inadvertently braking in some manner. Mr. Asa stated that a heavy vehicle driver must take into account road and weather conditions in determining what actions to take in controlling the vehicle. Finally, Mr. Asa opined that to a reasonable degree of certainty in his field the cause of the accident was Stanczyk's error in controlling the vehicle and his violation of 49 C.F.R. § 392.14. Mr. Asa testified that driver error was the sole cause of the jackknife. Specifically, Mr. Asa agreed that he "assumed" driver error to be the cause merely because a jackknife occurred. However, he clarified later in his testimony that "most," but not all, jackknifes are the result of driver error. He quantified "most" as at least 95%. Mr. Asa stated that other causes might include: a dry fifth wheel; a shifting load during a turn; or one of "several reasons," including "anything." Mr. Asa testified that his opinion in this case is based on principles of trucking familiar to him through his years of experience in the trucking industry as well as his own understanding of federal safety regulations governing commercial vehicles.
The Court finds that Mr. Asa did not adequately explain his methodology and, to the extent that the methodology was explained, the Court finds the methodology deficient. Mr. Asa neither inspected the tractor-trailer or the fifth wheel of the truck, nor did he visit the site for purposes of this case. He is unaware of the specific characteristics of the site (including the grade), does not know and never tried to calculate Stanczyk's speed, does not know whether Stanczyk took any preventive action, or what Stanczyk was doing or how he was driving at the time of the accident. Mr. Asa admitted that, for example, other causes such as the tire(s) or the braking mechanism could have caused the accident. Therefore, Mr. Asa's methodology is inadequate for, among other things: 1) lack of personal examination of the vehicle and the site; 2) insufficient underlying data regarding the site, the vehicle and its condition, the specifics of Stanczyk's driving maneuvers including speed and exactly what he was doing at the time; and 3) the absence of literature in his field supporting his theory. Jaurequi, 173 F.3d 1076, 1082 (8th Cir. 1999) (discussing Daubert, 509 U.S. at 593-94). As stated in General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), "there is simply too great an analytical gap" between the information known about Stanczyk, the vehicle, the site, and the accident and the opinion proffered by Mr. Asa.
Finally, in evaluating whether an expert opinion would assist the trier of fact, an additional factor for consideration may be whether the expert proposes to testify about matters "`growing naturally and directly'" out of independent research or study as opposed to opinions developed expressly for the purpose of testifying in litigation. Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir.), cert. denied, 522 U.S. 817 (1997) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.) (on remand), cert. denied, 516 U.S. 869 (1995)). The importance of independent research or study is the resulting "`important, objective proof that the research comports with the dictates of good science.'" Id. (quoting Daubert, 43 F.3d at 1317). The record reveals that Mr. Asa has not performed research or other study independent of the litigation.
For these reasons, the Court finds that Mr. Asa's opinion is too speculative, conclusory, and unreliable for admission under the standards of Daubert and Kumho. While the Plaintiffs may decide to call Mr. Asa for other purposes, he may not testify as to the cause of the accident. Therefore, the Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Expert Donald L. Asa, on the issue of causation (Filing No. 96), is granted consistent with this memorandum opinion.
Carlos Trevino
The Defendant Pro Transportation seeks under Federal Rules of Evidence 104 and 702 to exclude the opinion testimony of Plaintiffs' proposed expert witness Nebraska State Trooper Carlos Trevino, particularly insofar as he would offer his opinion testimony as to the cause of the accident, (Filing No. 96). Trooper Trevino appears in the order on final pretrial conference, (Filing No. 113), as an expert witness. Trooper Trevino would testify that Stanczyk failed to maintain proper control of his truck. Specifically, the Defendants challenge Trooper Trevino's qualifications, as well as his methodology under Rule 702. Concerning Trooper Trevino's qualifications as an expert, the Court notes that he has been employed with the Nebraska State Patrol for approximately four years, including his six months of training and six-month probation. Trooper Trevino is a high school graduate, and he had one and one-half years community college education. Trooper Trevino has had no training in engineering, physics, accident reconstruction or mathematics for accident reconstruction. Trooper Trevino's six months of training at the Nebraska State Patrol training academy covered areas such as defensive driving, emergency vehicle operations, DWI enforcement, and accident investigation. On December 19, 1999, Trooper Trevino's responsibilities included traffic enforcement, helping stranded motorists and investigating accidents. Trooper Trevino testified that he is not qualified as an accident reconstructionist, but he estimated that he has investigated between 50 and 75 accidents, the majority of which occurred along Interstate 80. None of the accidents Trooper Trevino investigated before December 19, 1999, involved a head-on collision between two semi tractor-trailer trucks. The Court finds that Trooper Trevino's qualifications are insufficient to qualify him to testify as an expert regarding the cause of this particular accident.
The evidence does not include a curriculum vitae for Trooper Trevino. In his deposition taken on May 3, 2001 Trooper Trevino testified that he had been with the State Patrol for over three years. (Deposition, 6:19-21.) During his testimony on December 21, 2001 he testified that he had been with the State Patrol for four and one half years.
Even if the Court found Trooper Trevino qualified to testify as an expert as to the cause of the accident, the Court finds his methodology insufficient to support his opinions. The Court has evaluated Trooper Trevino's proposed testimony in light of factors including those set out in Lauzon, 270 F.3d at 687, and Jaurequi, 173 F.3d at 1082. The information in the record regarding Trooper Trevino's methods and procedures is deficient for these purposes. Trooper Trevino interviewed one witness who saw the jackknife, but he acknowledged that his investigation did not lead him to any individuals who knew what Stanczyk was doing just before his truck jackknifed.
To the extent that Trooper Trevino explained his methodology, the Court finds it deficient. Trooper Trevino admitted that the accident could have been caused by factors other than excessive speed under existing conditions, i.e., a blown tire or a malfunctioning brake system. Therefore, Trooper Trevino's methodology is inadequate for, among other things: 1) insufficient underlying data regarding the specifics of Stanczyk's driving maneuvers including speed and exactly what he was doing before the jackknife; and 2) the absence of literature supporting his theory. Jaurequi, 173 F.3d at 1082. As stated in Joiner, 522 U.S. at 146, "there is simply too great an analytical gap" between the information known about Stanczyk and the accident and the opinion proffered by Trooper Trevino.
For these reasons, the Court finds that Trooper Trevino's opinion is too speculative, conclusory, and unreliable for admission under the standards of Daubert and Kumho. Therefore, Trooper Trevino may not testify as an expert witness as to the cause of the accident. The Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Expert Carlos Trevino on the issue of causation (Filing No. 96), is granted consistent with this memorandum opinion.
J. Peter Matilla (Filing No. 98)
The Defendant Pro Transportation has listed J. Peter Matilla, Ph.D. as an expert witness in the order on final pretrial conference, (Filing No. 113). Dr. Matilla's proposed testimony relates to the economic impact of the deaths of James Pond and Jerry Adams on their dependents. The Plaintiffs seek in their motion in limine to exclude Dr. Matilla's opinion testimony, arguing that the proposed testimony fails to meet necessary standards under Federal Rules of Evidence 104, 403, 702, 703 and 704 or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). However, the Plaintiffs' briefs and the testimony offered at the December 21, 2001 Rule 104 hearing suggest that the Plaintiffs' object to the portions of Dr. Matilla's testimony and methodology including future spousal earnings and future income tax consequences, as both items could lower an award of damages.
At the December 21, 2001 hearing, pursuant to the suggestion of Pro Transportation, the parties stipulated that Pro Transportation would withdraw the portions of Dr. Matilla's testimony relating to an offset for future spousal income. The focus of the evidence presented at the hearing relating to Dr. Matilla's testimony was the remaining issue of his offset for future income tax consequences. Then, in post-hearing briefs, Pro Transportation conceded that while Nebraska law applies to the issue of liability, California law governs the issue of damages, agreeing with the Plaintiffs on the choice of law issue. Pro Transportation then also conceded that California law precludes consideration of income tax consequences on a decedent's projected future earnings.
Therefore, the major issues of contention relating to Dr. Matilla's proposed testimony appear to have been settled by the parties. Because the Plaintiffs do not raise substantive objections to Dr. Matilla's qualifications or the relevance of his testimony under Federal Rule of Evidence 403, the Court shall consider those issues only briefly.
The Court, after reviewing the motion, briefs, and documentary evidence as well as hearing Dr. Matilla's testimony at the December 21, 2001, hearing, finds that he is qualified under Rule 702 as an expert witness. The Court finds the reliability of his methodology sound under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court finds his proposed testimony relevant under Rule 403, and that the proposed testimony is not improper under Rules 703 (Bases of Opinion Testimony By Experts) or 704 (Opinion of Ultimate Issue).
For the reasons discussed, the Court finds that Dr. Matilla may testify as an expert witness, and pursuant to the parties' stipulation and the Defendant Pro Transportation's concession in its post-hearing brief, his testimony shall not include offsets for future spousal earnings or income tax consequences. Therefore, the Plaintiffs' Motion in Limine ( Daubert Challenge) to exclude the testimony of the Defendant Pro Transportation's expert J. Peter Matilla, (Filing No. 98), is granted and denied consistent with this memorandum opinion.
IT IS ORDERED:
1. The Defendant Pro Transportation's Motion in Limine regarding Photographs, (Filing No. 92), is granted as to photographic Exhibits 132-154; otherwise, the motion is denied;
2. The Defendant Pro Transportation's Motion in Limine to Exclude the Opinion Testimony of Larry E. Tremmel, (Filing No. 94), is granted, consistent with this memorandum opinion and order;
3. The Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Expert Robert J. Caldwell, as the issue of causation (Filing No. 96), is granted in part and denied in part consistent with this memorandum opinion and order;
4. The Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Expert Donald L. Asa, as the issue of causation (Filing No. 96), is granted, consistent with this memorandum opinion and order;
5. The Defendant Pro Transportation's Motion in Limine to Exclude the Testimony of Plaintiffs' Expert Carlos Trevino, as the issue of causation (Filing No. 96), is granted, consistent with this memorandum opinion and order;
6. The Plaintiffs' Motion in Limine ( Daubert Challenge) to exclude the testimony of the Defendant Pro Transportation's Expert J. Peter Matilla, (Filing No. 98), is granted in part and denied in part consistent with this memorandum opinion and order.