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State Farm Fire & Casualty Co. v. Bell

United States District Court, District of Kansas

July 8, 2014

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
JAMIE N. BELL, Defendant, Cross-Claimant/ Third-Party Plaintiff, and C.M., a minor, by and through her natural guardian and next friend, BRANLYN FINNELL, DALLAS N. HARTMAN, CHARLES C. CONNER, III, JARED M. WILKINSON and THE PANTRY, INC., Defendants/Cross-Claim Defendants, and KENNETH M. KEEN, Third-Party Defendant.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

State Farm Fire and Casualty Company brought suit against Dallas N. Hartman, Charles C. Conner, III, Branlyn Finnell as natural guardian and next friend of minor C. M., Jamie N. Bell, Jared M. Wilkinson, and The Pantry, Inc. seeking a declaratory judgment that it owed no coverage arising out of an accident and no duty to defend Kenneth Keen, its insured. State Farm now has resolved its claims against all defendants.[1] In her responsive pleading, however, Bell brought cross-claims against her co-defendants and a third-party action against Keen. On June 5, 2013, Bell stipulated to the dismissal of the third-party defendant Keen and each of the other co-defendants except The Pantry Inc. (Doc. 111.) Therefore, cross-claim plaintiff Bell and cross-claim defendant The Pantry, Inc. are the only remaining parties in this action. Hereafter, for simplicity, the Court will refer to cross-claim plaintiff Bell as “plaintiff” and cross-claim defendant The Pantry, Inc. as “defendant.”

This lawsuit arises from a motor vehicle accident that occurred on September 18, 2011, in Gardner, Kansas. C.M., a minor, who was not licensed and driving illegally, drove a Mercedes SUV over the curb and onto the sidewalk in front of a convenience store owned and operated by defendant. The vehicle struck plaintiff, who was standing on the sidewalk, and pinned her against the building. As a result, plaintiff sustained personal injuries including a crushed pelvis, broken knees, and multiple cuts and bruises. In this diversity action, [2] plaintiff brings a negligence claim under Kansas law against defendant. Plaintiff alleges that defendant breached its duty of care by failing to keep plaintiff reasonably safe under the circumstances because defendant failed to install parking bollards[3] or wheel stops or take other precautions to protect the storefront or pedestrians standing on the sidewalk between the storefront and the head-in parking spaces. Plaintiff further alleges that a dangerous condition existed on defendant’s property because it lacked bollards or other barriers in the parking lot protecting the pedestrian walkway and storefront from vehicular damage. Plaintiff contends that defendant had knowledge and notice of the dangerousness of the condition and that plaintiff’s injuries were foreseeable.

This matter comes before the Court on plaintiff’s Motion to Exclude or Limit the Testimony of Expert Richard D. Blomberg (Doc. 162), defendant’s Motion to Exclude Expert Testimony (Doc. 166), and defendant’s Motion for Summary Judgment (Doc. 164). For the reasons explained below, the Court grants in part and denies in part plaintiff’s Motion to Exclude or Limit the Testimony of Expert Richard D. Blomberg, grants in part and denies in part defendant’s Motion to Exclude Expert Testimony (Doc. 166), and denies defendant’s Motion for Summary Judgment.

I. Motions to Exclude Expert Testimony

A. Legal Standard

The Court has a “gatekeeping obligation” to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). In performing this gatekeeping role, the Court has broad discretion when deciding whether to admit expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1498 (10th Cir. 1996) (quoting Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir. 1992)). The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) 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;
(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 of the case.

Fed. R. Evid. 702.

This Court must apply a two-part test to determine admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). First, the Court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (quoting 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.’” Id. (quoting United States v. Rodriguez–Felix, 450 F.3d 1117, 1122 (10th Cir. 2006)) (further citations omitted).

To qualify as an expert, the witness must possess “such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004) (internal quotation omitted). To determine whether the expert’s testimony is reliable, the Court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93. The Supreme Court set forth in Daubert a non-exhaustive list of four factors that trial courts may consider when determining the reliability of the proffered expert testimony under Fed.R.Evid. 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. Id. at 593–94. The Supreme Court has emphasized, however, that these four factors are not a “definitive checklist or test” and that a court’s gatekeeping inquiry into reliability must be “tied to the facts of a particular case.” Kumho Tire, 526 U.S. at 150. In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience, ” rather than the Daubert factors and scientific foundation. Id.

“The proponent of expert testimony bears the burden of showing that the testimony is admissible.” Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241). “[R]ejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee notes. While Daubert requires the Court to act as a gatekeeper for the admission of expert testimony, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof” remain “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596 (citation omitted).

The Court has discretion to determine how to perform its gatekeeping function under Daubert. Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). “The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.” Id. (citations omitted). In this case, the parties do not request a hearing. The Court has carefully reviewed the exhibits filed with the motions and believes this review is sufficient to render a decision without conducting a hearing.

B. Plaintiff’s Motion to Exclude or Limit the Testimony of Expert Richard Blomberg (Doc. 162)

Plaintiff seeks to exclude or limit the expert opinion testimony of Richard D. Blomberg, an engineer designated by defendant as an expert witness. As pertinent here, one may summarize Blomberg’s opinions as follows.

Blomberg is President of Dunlap and Associates, Inc., a research firm. In this position, he has directed or been involved in the application of human engineering and systems analytic principles to highway safety, product safety, aircraft design and certification, and the design and evaluation of human-computer interfaces. His work includes the study of pedestrian safety problems and the development of countermeasures to them. Blomberg is a member of the Transportation Research Board (“TRB”), an Emeritus (Lifetime) member of TRB’s Pedestrian Committee, a former member of its Committee on Alcohol, Other Drugs, and Transportation, and a member of the Human Factors and Ergonomics Society, Society of Automotive Engineers, the Institute for Operations Research and the Management Sciences, the Association for Consumer Research, and the American Institute of Aeronautics and Astronautics. Mr. Blomberg holds B.S. and M.S. degrees in Industrial and Management Engineering from Columbia University. Blomberg reviewed various materials about the accident, as described in his expert report, and on May 21, 2013, he conducted an on-site examination of the accident scene and visited 21 other convenience stores located in the greater Kansas City area.

Based on his examination, Blomberg concludes that the motor vehicle accident occurred because of the error committed by C.M. (i.e., mistakenly pressing the accelerator instead of the brake) and that this error was independent of the design of the convenience store’s property. He opines that the design of the property was fully consistent with the prevailing practices of the convenience store industry and that it was neither defective nor unreasonably unsafe. Blomberg concludes that an alternate design of the property, such as one using bollards, likely would have changed the dynamics of the accident, but he also opines that there are significant, inherent risks in using bollards or other barriers and in designing parking lots without head-in parking. Because of these risks, Blomberg opines that bollards are not a preferable choice for the design of the convenience store property at issue in this case.

Plaintiff contests Blomberg’s qualifications to testify on the specific issues in this case, as well as the relevance and reliability of his opinions. The Court first addresses Blomberg’s qualifications and then assesses the reliability and relevance of his opinions.

1. Qualifications

Plaintiff argues that Blomberg’s expert testimony should be excluded because he has no experience or expertise to opine on the dangerousness of the convenience store parking lot or whether bollards or other barriers should have been installed. Blomberg is an engineer with 45 years of experience in safety research and approximately 41 years of experience in pedestrian safety research. For almost 20 years, Blomberg served as the safety consultant to the East Ramapo Central School District in East Ramapo, New York. In that position, he consulted with the school district on the design of the parking lots for the approximately 200 schools in that district. These parking lots included head-in or diagonal parking. Blomberg also testified that he performed this same type of consulting work for several other school districts in the same geographic area. Blomberg also has directed research studies on the design of shopping center parking lots and has created model parking lot designs. He has written research reports about parking lot designs for commercial stores, and several of these reports involved preventing pedestrian accidents. His research also includes the evaluation of specific parking lot designs and the configuration of parking lots.

Plaintiff attacks Blomberg’s qualifications by asserting that he has never been hired to design or consulted to design a parking lot for a commercial establishment (including a convenience store, as is involved in this case), he has not published any articles about parking lot design, and he has never provided expert opinion or testimony in a case involving convenience store parking lots with head-in parking (or the design or safety of such a parking lot). Although plaintiff criticizes Blomberg’s lack of specific knowledge about convenience store parking lot designs, these arguments go to the weight and not the admissibility of Blomberg’s testimony. See Utility Trailer Sales of Kansas City, Inc. v. MAC Trailer Mfg., Inc., 267 F.R.D. 368, 371 (D. Kan. 2010) (refusing to exclude an expert witness’s testimony based on his lack of specific experience in the trailer industry; rather, this was a subject “defendants may explore . . . on cross examination.”)

Plaintiff also takes issue with Blomberg’s observations of 21 other convenience stores that he visited in the Kansas City area on his way to the airport after inspecting the site of the accident in Gardner, Kansas. Plaintiff argues that none of these other stores were configured in the same way as the convenience store at issue, which had gas pump islands but no gas pumps.

Plaintiff also criticizes Blomberg for failing to gather historical information about other vehicle incursion accidents at these convenience stores. The Court determines that Blomberg’s inspection of the 21 other convenience stores does not render him unqualified to testify as an expert in this case. Rather, plaintiff’s criticisms about Blomberg’s inspection of these 21 convenience stores go to the weight of the evidence, and plaintiff may cross-examine Blomberg on those topics.

Based on his experience described above, the Court concludes that Blomberg is qualified to testify on the matters set forth in his expert report. “Experience alone—or experience combined with other knowledge, skill, training, or education—may provide a sufficient foundation for expert testimony.” Utility Trailer Sales of Kansas City, Inc., 267 F.R.D. at 370 (citing Fed.R.Evid. 702 advisory committee notes). However, a witness “relying solely or primarily on experience” must “explain how the experience leads to the conclusion reached.” Fed.R.Evid. 702 advisory committee notes; see also United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003). The Court has reviewed Blomberg’s expert report and the transcript of his deposition where he explained that he bases his opinions on his training and experience as an engineer and researcher. The Court is satisfied that Blomberg is qualified to testify about the opinions in his expert report.

2. Reliability

Plaintiff next contends that Blomberg’s opinions are not based upon reliable facts. In formulating his opinions, Blomberg reviewed the Johnson County, Kansas zoning ordinances and a PowerPoint presentation he found on the internet. With respect to the Johnson County, Kansas zoning ordinances, Blomberg admits that he is not a legal expert and he does not know if these zoning requirements even apply to the convenience store at issue. Blomberg testified that the convenience store at issue is located within the city limits of Gardner, Kansas, but the Johnson County, Kansas zoning ordinances apply only to unincorporated areas of the County which no city has annexed.[4] Therefore, the Court concludes that Blomberg’s reliance on these zoning ordinances is inappropriate here. As Daubert cautioned, an expert must base his or her opinion on “reasoning or methodology [that] properly can be applied to the [actual] facts in issue.” Daubert, 509 U.S. at 592–93. Here, the County’s zoning ordinance cannot be applied to this case’s facts because it does not apply to the incorporated location where the accident occurred. Therefore, to the extent Blomberg relied on the Johnson County, Kansas zoning ordinances in formulating his opinions, the Court excludes those opinions because they are based on unreliable facts.

Turning next to Blomberg’s reliance on the PowerPoint presentation that he located on the internet, Blomberg testified that he found this document on the National Association of Convenience Stores (“NACS”) website. Blomberg believes that it provides an example of what the convenience store industry considers as an acceptable model store. Plaintiff challenges Blomberg’s characterization of this document as showing what is acceptable in the industry because the PowerPoint presentation itself contains a disclaimer that the opinions expressed in it do not necessarily state or reflect those of the NACS. Plaintiff further argues that Blomberg’s reliance on this document is improper because he does not know anything about the authors’ knowledge, training, experience, or expertise in the convenience store parking lot industry, he did not attend the conference where the presentation was made, and the document does not address safety measures in convenience store parking lots. The Court agrees with plaintiff that the PowerPoint presentation is not a reliable indicator of what the convenience industry considers as an acceptable model of store, especially because it contains an express disclaimer that it does not state or reflect the views of the NACS. Moreover, Blomberg is unable to provide any background information about the authors of the presentation to show that they are a reliable source for what is acceptable in the industry. Accordingly, the Court excludes Blomberg’s opinions to the extent they are based on the PowerPoint presentation.

Last, plaintiff contends that Blomberg ignored facts that were unfavorable to defendant in reaching his conclusions, and by doing so, made his opinions unreliable. Specifically, plaintiff complains that Blomberg failed to consider other vehicle incursion incidents at defendant’s stores across the country, the prior vehicle incursion accident that occurred in 2009 at the convenience store at issue, and defendant’s installation of bollards at newly constructed or remodeled stores. The Court determines that Blomberg’s failure to consider facts that disfavor defendant does not render his opinions so unreliable, however, that the jury should not hear them. As our Court has explained before, an expert’s decision not to consider certain facts in formulating his opinions is a matter for cross-examination, and not exclusion, because that decision goes to the weight of the testimony, not its admissibility. See In re Urethane Antitrust Litig., MDL No. 1616, No. 04-1616-JWL, 2012 WL 6681783, at *3 (D. Kan. Dec. 21, 2012) (“The extent to which [the expert witness] considered the entirety of the evidence in this case is a matter for cross-examination.”) The Court declines to exclude Blomberg’s opinions on this basis.

3. Relevance

Finally, plaintiff argues that Blomberg’s proffered testimony is not relevant to the issues in this case. Plaintiff moves for the exclusion of seven specific opinions that are asserted by Blomberg either in his expert report or deposition.[5] The Court addresses each of these proffered opinions in turn below.

a. Opinion About the Nature of the Driver

Blomberg opines that the “root cause” of the accident was human error. He describes C.M. as an “unlicensed and totally inexperienced 14 year old” driver, who was not experienced with driving in general or the Mercedes SUV that she was driving at the time of the accident. He notes that C.M. admitted that she pressed the accelerator instead of the brake, and he opines that C.M.’s error caused the accident. Specifically, he states in his expert report that the pedal error committed by C.M. made an accident “inevitable.” Blomberg also testified in his deposition that if C.M. had been a more experienced driver, the likelihood of committing the pedal error would have been lower.

Plaintiff’s argument misstates Blomberg’s opinion. Plaintiff claims that his opinion “that the accident was inevitable due to the nature of the driver is not based upon facts, scientific studies or any relevant experience, education or training.” Pl’s. Mem. in Supp. of Mot. to Limit or Exclude the Test. of Expert Richard D. Blomberg (Doc. 163 at 13). But Blomberg’s opinion is not phrased that way in his report. Rather, Blomberg states that C.M.’s pedal error (a fact that is not disputed) made an accident inevitable.

Plaintiff also argues that Blomberg’s opinion that the driver was untrained, inexperienced, and immature is speculative. The Court disagrees. Blomberg reviewed C.M.’s deposition in formulating his expert opinion. C.M. testified that she was 14 years old on the date of the accident and that she did not have a driver’s license at that time. She also testified that prior to the accident, she had only driven about two or three times on back roads for about ten or fifteen miles each time. C.M. also admitted that she had never driven the Mercedes SUV before the accident. Blomberg’s opinion that the driver was untrained and inexperienced is supported by sufficient facts to satisfy the relevance threshold of the analysis.

Plaintiff also contends that Blomberg’s opinion that there was a higher risk of pedal error because C.M. was untrained and inexperienced is not relevant to the issues in this case.[6]Blomberg admits that unintended acceleration occurs in drivers of all ages, that pedal error is a “known phenomenon” in the traffic safety industry, and that the accident in this case would not have been prevented if C.M. had a learner’s permit authorizing her to drive. The Court finds that these arguments are more appropriate for cross-examination rather than determining the admissibility of Blomberg’s testimony. Blomberg’s opinion about the characteristics of the driver is relevant, and the Court declines to exclude this expert testimony.

b. Opinion that the Parking Lot Design Meets Regulations

Plaintiff moves to exclude Blomberg’s opinion that the convenience store parking lot at issue complies with the Johnson County, Kansas zoning ordinances. As explained above, these ordinances do not apply to a convenience store located within the city limits of Gardner, Kansas, which is where defendant’s store is located. Therefore, Blomberg’s opinion that the parking lot complies with the Johnson County, Kansas zoning ordinances is not relevant to the issues in this case, and the Court excludes this opinion.

c. Opinion that the Use of Head-In Parking Without Bollards is Standard in the Convenience Store Industry, that the Design of the Parking Lot at Issue is not Unreasonably Dangerous, and Any Other Design Would Be Significantly More Dangerous

Blomberg renders three opinions about the convenience store parking lot at issue in this case. He opines that: (1) the use of head-in parking without bollards or other protective barriers is standard in the convenience store industry; (2) the parking lot design at the convenience store at issue in this case, which consisted of head-in parking without bollards or other protective barriers, is neither defective nor unreasonably dangerous; and (3) any other parking lot designs are more dangerous.

Plaintiff seeks to exclude all three opinions by arguing that Blomberg lacks knowledge of the industry standard for convenience stores, and therefore his opinion is not reliable. Indeed, Blomberg testified that he did not find any document in his research that identified an industry standard for the use of bollards. Blomberg instead bases his opinion on his personal observations of the 21 conveniences stores he visited in the Kansas City area and the PowerPoint presentation that he downloaded from the NACS website. The Court agrees with plaintiff that Blomberg’s opinion about what is “standard in the convenience store industry” is not reliable. As it has already explained above, the Court excludes Blomberg’s opinions that are based on the PowerPoint presentation because it is unreliable. The Court further finds that Blomberg’s visits to 21 conveniences stores in the Kansas City area do not provide a sufficiently reliable basis for him to render an opinion on the “standard in the industry” for convenience stores. Therefore, the Court excludes Blomberg’s opinion that the use of head-in parking without bollards or other protective barriers is standard in the convenience store industry.

The Court declines to exclude the remaining two opinions, however. The Court finds that Blomberg’s training and experience as an engineer and a researcher provide him a reliable basis to opine about parking lot designs. The Court therefore rejects plaintiff’s challenges to Blomberg’s opinion that the parking lot design at the convenience store at issue in this case, which consisted of head-in parking without bollards or other protective barriers, is neither defective nor unreasonably dangerous and his opinion that any other parking lot designs are more dangerous.

d. Opinion that the Installation of Bollards Would Not Have Prevented the Accident, but Would Have Changed the Nature, Severity, and/or the Victim of the Accident

Blomberg also opines that the installation of bollards at the subject convenience store would not have prevented an accident, but it would have changed the nature, severity, and/or the victim of the accident. He states in his expert report that, in this case, the presence of bollards “might” have prevented the Mercedes SUV from injuring plaintiff. However, in that scenario, the Mercedes SUV would have hit a bollard which may have resulted in injuries to the vehicle’s occupants, damage to the vehicle, “possible” damage to the vehicle(s) parked adjacent to the Mercedes SUV, and “possible” injuries of a different nature to plaintiff and other pedestrians.

Plaintiff argues that this opinion is based on speculation and therefore should be excluded. The Court disagrees. Although expert opinions “‘must be based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation, . . . absolute certainty is not required.’” Goebel v. Denver & Rio Grande W. R.R., 346 F.3d 987, 991 (10th Cir. 2003) (quoting Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995)). The proponent of expert testimony is not required to prove that the expert is “undisputably correct.” Id. (citing Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)). Rather, the proponent “must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts that satisfy Rule 702’s reliability requirements.” Id. (citing Mitchell, 165 F.3d at 781). Here, the Court concludes that Blomberg’s experience with safety and pedestrian research provides a sufficiently reliable basis for the jury to hear his opinion that installing bollards would have changed the nature of the accident. Plaintiff’s arguments that Blomberg ignored certain facts when formulating this opinion or that he is unable to state with absolute certainty the outcome of the accident had bollards been installed are proper subjects for cross-examination. The Court declines to exclude this expert opinion.

e. Opinion that Defendant is a Safety Conscious Company

Blomberg testified in his deposition that defendant is a safety conscious company. Plaintiff argues that this opinion is unreliable because Blomberg admits that he has not spoken with anyone at defendant’s company and the only basis for his opinion is what he read in defendant’s corporate representative’s deposition. He also admits that he did not investigate whether defendant considered the safety of the design of the parking lot or pedestrian walkway at the convenience store at issue. Defendant did not address this specific opinion in its Opposition to plaintiff’s motion. The Court agrees with plaintiff. This particular ...


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