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Delgado v. Schwab, Inc.

United States District Court, D. Kansas

March 13, 2017

WENDY L. DELGADO, Plaintiff,
LYLE J. UNRUH, et al., Defendants.



         Plaintiff Wendy Delgado brings this lawsuit to recover for personal injury damages suffered during a motor vehicle collision with Defendant Lyle J. Unruh in Ponca City, Oklahoma on August 20, 2012. Defendant Unruh was an employee of and in a truck owned by Defendant Tim R. Schwab, Inc. at the time of the accident. This matter is before the Court on motions to exclude expert testimony concerning the causation of Plaintiff's back injuries. The Court considers Plaintiff's Motion to Exclude the Testimony of Defendants' Experts Cleve Bare, Dr. Christine Raasch, and Dr. David Smithson (Doc. 101) and Defendants' Motion to Exclude the Testimony of Plaintiff's Rebuttal Experts John Smith, Dr. Kevin Stallbaumer, and Dr. Michael Freeman (Docs. 95, 97, 99). Also pending before the Court is a Joint Motion for a Status Conference (Doc. 110). The motions are fully briefed, and the Court is prepared to rule. As discussed more fully below, the Court grants in part and denies in part the parties' motions to exclude the six expert witnesses pursuant to the standards set forth in Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.[1]

         I. Legal Standard

         The Court has broad discretion in deciding whether to admit expert testimony.[2]

         Generally, 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.[3]

         The proponent of expert testimony must show “a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation.”[4] In order to determine whether an expert opinion is admissible, the Court performs a two-step analysis. “[A] district court must [first] determine if the expert's proffered testimony . . . has ‘a reliable basis in the knowledge and experience of his discipline.'”[5]To determine reliability, the Court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid.”[6] Second, the district court must further inquire into whether the proposed testimony is sufficiently “relevant to the task at hand.”[7] An expert opinion “must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute certainty is not required.”[8] And it is not necessary to prove that the expert is “indisputably correct, ” but only that the “method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements.”[9]

         Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 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.[10] But “the gatekeeping inquiry must be tied to the facts of a particular case.”[11]

         Occasionally, courts allow generalized expert testimony to be admitted to explain general or background information. The Advisory Committee's note to Fed.R.Evid. 702 explains that

it might be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case. . . . For this kind of generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony “fit” the facts of the case.[12]

         It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.[13] The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.[14] In this case, the parties have not requested a hearing on this motion. The Daubert issues have been fully and thoroughly briefed by the parties. The Court has carefully reviewed the extensive exhibits filed with the motions, including the written reports, deposition testimony, and affidavits submitted by the experts. The Court finds this review is sufficient to render a decision without conducting an oral hearing.

         II. Background A. The Accident

         The following is taken from the pretrial order.[15] On August 20, 2012, Wendy Delgado and Lyle Unruh were in a motor vehicle and truck collision in Ponca City, Oklahoma. The event occurred in the eastbound left turn lane of South Avenue at the intersection with Waverly Street, where both vehicles had been stopped at a red light. Unruh was driving a 2007 Kenworth T600 tractor pulling a Great Dane box trailer. Plaintiff was driving a 2007 Lexus ES350. Kenneth Powell was in the front passenger seat of the Lexus and Christian Powell was in the backseat behind the driver and all were wearing their seatbelts. The contact between the truck and the car occurred when Unruh backed his truck and came in contact with the front of the Lexus.

         Plaintiff contends that she did not suffer any back or neck pain before the collision. After August 20, 2012, she suffered from pain and discomfort in her back and neck. She sought chiropractic care from Dr. Jerimy Cox and Dr. Amy Cox on August 22, 2012. She returned for three visits after that. Dr. Jerimy Cox and Dr. Amy Cox believe that Plaintiff's back and neck injuries were caused by the August 20, 2012 accident.

         Plaintiff was treated at the Ponca City Medical Center Emergency Room on August 24, 2012 for back pain she argues was a result of the August 20, 2012 collision. At this visit, Plaintiff alleges that the doctor noted moderate spasms of the paracervical musculature bilaterally. Dr. Trung Nguyen, a pain management physician, treated Plaintiff from September 6, 2012 through November 13, 2012. Plaintiff alleges that Dr. Nguyen believes her injuries were caused by the trauma from the wreck on August 20, 2012. Dr. Robert Remondino, a neurosurgeon, next treated Plaintiff from December 5, 2012 to the present. Plaintiff alleges that Dr. Remondino has stated that the symptoms of pain and disability and the treatments and surgeries were caused by the accident on August 20, 2012.[16] She alleges suffering extreme permanent physical disability, pain and suffering, medical expenses, and damages.

         Defendants contend that these injuries are not attributable to the accident due to the minor forces involved. Defendants allege that Plaintiff's injuries are attributable to generally poor health and a pre-existing degenerative condition. Thus, the main contention in the case is the causation of Plaintiff's injuries-whether related to the accident or preexisting.

         B. Cleve Bare, Dr. Christine Raasch, & Dr. David Smithson

         Dr. Christine Raasch, Cleve Bare, P.E., and Dr. David Smithson are witnesses offered by Defendants to contradict that Plaintiff's injuries were sustained in the collision on August 20, 2012. Raasch and Bare are employees of Exponent Failure Analysis Associates (“Exponent”) of Phoenix, Arizona. Smithson is a medical doctor.

         Cleve Bare is a Senior Managing Engineer in Exponent's Vehicle Engineering practice, specializing in the analysis and reconstruction of motor vehicle crashes involving passenger cars, light and heavy trucks, and sport utility vehicles. He is a licensed Professional Engineer in the states of Michigan and Arizona. His educational background includes a Master of Science in Mechanical and Aerospace Engineering and a Bachelor of Science in Mechanical Engineering from the University of Missouri.

         He has more than 25 years of experience in the reconstruction of complex accident situations including high-speed collisions, pole/guard rail impacts, and post-collision fuel-fed fires. In the process of his analysis, he has conducted numerous physical demonstrations including high and low-speed full-scale crash tests, vehicle component and restraint system testing, and handling demonstrations. He has particular expertise in the investigation of vehicle rollover crashes, including assessments of vehicle handling, tire/component failure, rollover dynamics, and rollover stability. Bare further has an in-depth background in the analysis of computer programs and simulations used for vehicle dynamics, rollover simulation, and the reconstruction of crashes.

         Bare provided a written report that quantified the speed involved in the collision. Bare explained that his opinions were based on inspection of the subject Lexus, the accident site, an exemplar truck and trailer, an exemplar Lexus, and his review of materials listed in Appendix A of his report, including pleadings, depositions, accident reports, and extensive additional materials from the record. He also relied on his training and experience in the fields of mechanical and automotive engineering, crashworthiness, and accident reconstruction; his knowledge of the principles of physics and engineering; books, publications, and treatises in the general fields; and background and review of testing performed by himself, Exponent and others. The methodologies utilized in the analyses of the reconstruction included the principles of Conservation of Momentum and Conservation of Energy. These techniques are generally accepted and commonly used in the accident reconstruction community.

         Bare came to four conclusions in his report.[17] First, the Lexus was located behind the Kenworth tractor semitrailer in the eastbound left turn lane on South Avenue. Second, the Kentworth began backing at a maximum speed of between 2 and 4.5 miles per hour and contacted the front of the Lexus. Third, the underride guard of the trailer overrode the bumper reinforcement of the Lexus and contacted the upper components of the front of the Lexus. Fourth, during the impact, the Lexus experienced a maximum velocity change between 2 and 4 miles per hour with a principal direction of force from the 12:00 o'clock position.

         Dr. Raasch is a Principal in Exponent's Biomechanics practice and is based in the Test and Engineering Center in Phoenix, Arizona. Her educational background includes a Doctorate in Mechanical Engineering with an emphasis in biomechanics from Stanford University. In addition, she has a Bachelor of Science and Master of Science in Mechanical Engineering. She has conducted extensive research in biomechanics, including work funded by the National Institutes of Health and the Veterans Administration.

         Dr. Raasch specializes in the biomechanics of injury, vehicle occupant dynamics and kinematics, human injury tolerance and associated test criteria, occupant restraint systems, and accident reconstruction. Dr. Raasch's work involves analysis of traumatic injuries associated with motor vehicle and other accidents, computer simulation of occupant motions using software, and analysis of vehicle restraint system performance. She has conducted test projects including full-scale vehicle crash and sled testing, motorcycle testing, component testing, and specialized biomechanical studies such as helmet impact testing. Dr. Raasch also oversees Exponent's anthropomorphic test dummy (“ATD”) laboratory, and provides analysis of ATD biofidelity issues and project-specific modification of ATDs. She has developed ATD calibration fixtures and procedures. Her research has focused on analysis of locomotion and reaching movements, and impaired control of movement after head injury or stroke. Her investigations have included the creation of complex computer models of muscle and skeletal dynamics, use of optimization techniques, and experiments using motion analysis and electromyography.

         Dr. Raasch provided a written report quantifying the forces that acted on Plaintiff during the collision. Dr. Raasch used Bare's analysis of the speed of the accident to quantify the forces. Dr. Raasch explained that her opinions were based on inspection of the police photographs, vehicle inspection photographs, accident site photographs, and her review of materials listed in Appendix A of her report, including pleadings, depositions, accident reports, and extensive additional materials from the record. In Appendix B, she listed 36 articles used in her report, which are comprised of peer-reviewed journal articles and peer-reviewed conference proceedings. She personally observed and inspected the accident scene, Plaintiff's vehicle, and an exemplar tractor-trailer.

         Dr. Raasch came to six conclusions in her report.[18] First, during the accident, Plaintiff's motion was arrested by light incidental contact with her seat belt, similar to that experienced in hard braking, and any rebound would have been limited by interaction with her padded seatback and head restraint. She further concluded that the subject accident provided no mechanism to produce pathological range of motion or forces on Plaintiff's spine beyond incidental contact forces, which were well below those necessary to cause injury beyond minor levels. Two, the forces acting on Plaintiff's spine during the accident were well below cervical spine injury tolerances and static voluntary tolerance levels, and comparable to those experienced in vigorous activities. Third, the forces acting on Plaintiff's lumbar spine during the accident were lower than those associated with normal everyday activities. Fourth, data from real-world frontal accidents with severity similar to or greater than that of the subject accident indicates an extremely low risk of acute spine injury. Fifth, disc pathologies, such as herniations, have been shown in peer-reviewed scientific literature to be created by repetitive loading with force levels similar to those experienced in daily activities, in what is known in engineering terms as a fatigue process. Sixth, based on the above analysis, a causal biomechanical relationship between the subject accident and the injury complaints of Plaintiff, beyond transient strain, has not been established.

         Dr. Smithson is a medical doctor who has been board certified by the American Board of Physical Medicine & Rehabilitation for more than 16 years. He is currently the Medical Director for the Inpatient Rehabilitation Unit for Saint Joseph Medical Center in Kansas City, Missouri. He researched the Role of Flexion Versus Extension Exercises in Low Back Pain for his thesis. He has performed research in spinal cord injury at the University of Washington that resulted in publication in a peer reviewed journal.

         Dr. Smithson provided a written report with medical conclusions on Plaintiff's injuries.[19]His opinion was rendered based on his review of Plaintiff's medical records, his education, and his experience in the medical profession. His opinion is further evidenced based on pages of handwritten notes taken during the review of Plaintiff's records.[20] Dr. Smithson opined that Plaintiff violated the standard of care for a patient, which he concluded required that a patient visit the emergency department with a subsequent follow up with a primary care physician. He also concluded that the conditions that led to her surgery were explained by factors other than the accident, including degenerative arthritis that preceded the surgeries, obesity, and sleep problems.

         C. John Smith, Dr. Kevin Stallbaumer, & Dr. Michael Freeman

         John Smith, Dr. Kevin Stallbaumer, and Dr. Michael Freeman are rebuttal witnesses offered by Plaintiff. Plaintiff has conceded that if the Court excludes Dr. Raasch, Bare, and Dr. Smithson, then Smith, Dr. Stallbaumer, and Dr. Freeman may also be excluded as irrelevant.

         John Smith is an engineer who specializes in accident investigation and reconstruction. He has a Master of Science in biomechanical trauma and electrical engineering and a Bachelor of Science in geophysical engineering. Smith has been performing accident reconstruction for 38 years and accident biomechanics for 24 years. He has authored more than 19 articles and attended more than 8 courses, conferences, and seminars dealing with accident investigations, accident reconstruction, injury causation, and biomechanics.

         Smith filed a rebuttal report to Bare and Dr. Raasch's report.[21] Smith consulted the repair estimate for the Lexus, the reports from Bare and Dr. Raasch, the CARFAX and specification data for both vehicles, and the photographs and medical data from the accident. In his report, Smith first concluded that the data reviewed indicated that the bumper system on Plaintiff's Lexus and the underride bar on Defendants' trailer were involved in the accident. The damage distribution on Plaintiff's vehicle indicated the collision had angular accelerations associated with it. Due to Defendant Unruh not observing Plaintiff's vehicle behind him, on impact, his vehicle continued to engage with the Lexus and pushed the vehicle backward. The invoice for Plaintiff's vehicle was significantly higher than the estimate, which indicates that not all of the damage was identified by the estimate. The Lexus has a three-piece foam core bumper system, and damage to this type of bumper system cannot be assessed without removal of the bumper cover and absorber. The steel reinforcement on the bumper is damaged, although there appears to be minimal damage to the cover. Based on this, Smith concluded that the damage to the Lexus must be considered not fully defined, and the photographs could not be assumed to be an accurate representation of the damage to the vehicle.

         Smith further opined that the truck backed a total of 33 feet. The 33 feet is accounted for by the pre-impact separation of the vehicles and the movement of Plaintiff's vehicle as a result of the collision. Thus, the lower the pre-impact separation, the farther Plaintiff's vehicle was pushed. At the asserted maximum speed of three miles per hour, Defendant Unruh's vehicle would have been backing for more than seven seconds while the other driver attempted to turn. Smith concludes that under any reasonable scenario, the turning driver would have completed the turn before Defendant Unruh finished backing. He opines that there would be no reason for Defendant Unruh to have backed up because there was ample room for the truck to turn.

         Smith opines that because Defendant Unruh never observed Plaintiff's vehicle pre-impact, the only source as to initial separation is the occupants of Plaintiff's vehicle. Using a distance of 18 to 20 feet and a reasonable acceleration rate, he estimates an impact speed of 7 to 11 miles per hour, which is consistent with the damage. If there had been no relevant damage to the vehicle, he estimates the impact speed could have been in excess of seven miles per hour. However, because of the presence of damage, it was likely a higher speed. As a result of the impact, he concludes that Plaintiff's vehicle was rapidly accelerated rearward by at least seven miles per hour and projected rearward. This estimate is not a maximum, but rather a reasonable minimum.

         Smith states that Plaintiff was subjected to forces much more severe than those normally encountered. Thus, the cervical injuries are correlated to the flexion procession, and Plaintiff was subjected to compression, tension, shearing, and differential loading. Also as a result of the forces, the lumbar region was subjected to compression, tension, and shearing. He adds that there were several aggravating factors in the collision, including seatbelt use, the applied angular acceleration, her gender, and her potential disposition to injury.

         Smith contradicts Bare and Dr. Raasch's reports in several ways. He offers that there is no minimum speed change value below which people are not injured, which contradicts Dr. Raasch's testimony about injury thresholds. Smith testified that Bare failed to consider the dimensions of the collision, did not inspect Defendant Unruh's truck, did not discuss the limitations of assessing damage through photographs, did not limit his consideration to minimum speeds, failed to properly use the IIHS test data, failed to consider contradictory testimony, and failed to perform a time distance calculation. Smith also testified that Dr. Raasch did not perform proper biomechanical analysis, provided that Plaintiff sustained a significant rebound from the seatbelt in contravention of the Law of Motion, used volunteer tests that did not match the specifics of the collision, used static testing to compare to a dynamic event, used tests that are not valid, and used comparison of daily activities to the accident in contravention of accepted engineering and scientific principles.

         Dr. Freeman is a medical doctor offered to contradict Bare and Dr. Raasch's opinion that the accident could not have caused Plaintiff's injuries. Dr. Freeman is a doctor of medicine and an epidemiologist, and has been a crash reconstructionist since 1996. He has had an Accreditation Commission on Traffic Reconstruction (“ACTAR”) accreditation since 2005. He has participated in the reconstruction of more than 2000 crashes. He has more than 30 scientific publications pertaining to injury biomechanics, including a book for the Society of Automotive Engineering. He was co-founder and co-editor in chief of the Journal of Whiplash and Related Disorders. He has published more than 170 scientific papers, abstracts, book chapters and books on topics involved in the cause of injuries in vehicle crashes. He serves as an Affiliate Professor of Epidemiology and Psychiatry at Oregon Health and Science University School of Medicine, in the Departments of Public Health and Preventive Medicine and Psychiatry.

         Dr. Freeman filed a rebuttal report to Bare and Raasch's findings in this case.[22] Dr. Freeman concluded that Dr. Raasch's implication that Plaintiff's collision could not have caused her musculoskeletal injuries, including symptomatic spinal disk injuries in her cervical and lumbar spines, because the forces in the collision were less than those of ordinary and benign activities is not reliable, relevant, or validated methodology for assessing injury causation. Further, even if Bare's claimed delta V of 2 to 4 miles per hour as a maximum for the collision were accurate, Dr. Freeman concluded that such a collision could produce a significant occupant motion that in no way resembles any of the comparisons to daily activities used by Dr. Raasch. He concluded that such a comparison is inappropriate and highly misleading as well as irrelevant to any disputed issues in the case. Dr. Freeman critiqued a number of the studies Dr. Raasch used in support of her opinion and her use of the computer program 3DSSPP. Ultimately, Dr. Freeman stated that Dr. Raasch's opinions concerning the subject crash shed no light on any issue of injury risk or injury causation, and give the erroneous impression that it is impossible that Plaintiff was injured in the crash. Dr. Freeman instead concluded that Plaintiff's injuries were caused by the accident given the strong correlation between the onset of the injuries and the timing of the accident. He suggests that there were aggravating factors present during the accident that made Plaintiff more susceptible to injury.

         Dr. Freeman's findings were based on review of Plaintiff's medical records, the accident reports, and the accident photographs. He also relied on literature that states that the severity of the crash is not a determining factor for whether a person is injured in a particular collision. He also reviewed Dr. Raasch and Bare's reports that were submitted in this case as well as many of the articles that Dr. Raasch and Bare used.

         Dr. Stallbaumer is a doctor of chiropractic offered to contradict Bare and Dr. Raasch's opinions that the accident could not have caused Plaintiff's injuries. Dr. Stallbaumer has been a licensed chiropractor in Kansas since 2009. He has several post-graduate courses and certifications related to low-speed impact injuries. In 2014, he obtained Advance Certification from the Spine Research Institute of San Diego. In 2013, he obtained an Advanced Certification in Whiplash and Brain Injury Traumatology from the Spine Research Institute of San Diego, California. He has 15 hours of training in accident reconstruction. He has taken other courses in accident reconstruction other than the Spine Research Institute.

         Dr. Stallbaumer filed a rebuttal report to Dr. Raasch and Bare's findings in this case.[23]Dr. Stallbaumer concluded that the opinions of Bare, Dr. Smithson and Dr. Raasch are inaccurate and don't stand up to scrutiny of current medical or biomechanical research. The injuries that Plaintiff sustained in the crash are consistent with the mechanism of the collision and sufficient forces were present to cause those injuries. He concluded Plaintiff is a female, with a history of a cervical acceleration/deceleration (“CAD”) injury, who was riding in the front driver's seat and was wearing her seatbelt in a crash with a speed less than 10 miles per hour. All of these are risk factors that increase the likelihood of an injury in a collision. He further concluded that the fact that the bullet vehicle was a loaded 18 wheeler significantly increased the forces present in the collision and thus the likelihood of injury. He opined that the accident on August 20, 2012 caused the injuries described in the subsequent medical records he reviewed. Thus, the presence of muscle spasms immediately after the accident, as documented by all of her providers, is consistent with acute disc herniations.

         Dr. Stallbaumer's conclusion was based off his clinical experience as well as current medical and automotive research including the research of Arthur Croft and his crash testing documented in the video and research papers Man Versus Machines at the Spine Research Institute of San Diego. He also reviewed Plaintiff's medical records. He reviewed the reports of Dr. Smithson, Dr. Raasch, Bare, Dr. Remondino, Dr. Nguyen, Dr. Jerimy Cox, and Dr. Amy Cox. He reviewed the accident reports and photos.

         III. Discussion

         Before discussing the issue of exclusion of the individual experts in this case, the Court must analyze the threshold matter of whether an independent medical evaluation is required in this case. Plaintiff argues that the Court should not consider Defendants' experts because Plaintiff could have submitted to an independent medical evaluation, but instead Defendants chose to use accident reconstruction experts. Plaintiff does not cite nor is the Court aware of law requiring that Defendants conduct an independent medical evaluation in order to offer expert testimony. It is a strategic decision by Defendants whether to conduct an independent medical evaluation as opposed to retaining accident reconstruction experts. Thus, this argument is rejected.

         Another threshold issue is whether Plaintiff's arguments opposing Defendants' experts' admission are technical objections that have been waived. Defendants argue the Court should summarily deny Plaintiff's motion to exclude their experts to the extent Plaintiff raises technical objections to the sufficiency of Defendants' experts' reports under Fed.R.Civ.P. 26(a)(2)(B) because these objections are now untimely. Fed.R.Civ.P. 26(a)(2)(B) requires that expert reports contain:

(1) a complete statement of all opinions the witness will express and the basis and reason for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness's qualifications, including a list of all publications authored in the previous 10 years; (5) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (6) a statement of the compensation to be paid for the study and testimony in the case.

         Pursuant to the Scheduling Order, the parties were required to serve any objections to the expert witness reports (other than objections made pursuant to Fed.R.Evid. 702 and Daubert) within 14 days after the service of expert disclosures. Defendants served their disclosure in September 2015, [24] and Plaintiff filed this motion in August 2016. Thus, if these objections did fall under Fed.R.Civ.P. 26(a)(2)(B), these allegedly technical objections would be untimely.

         The Court finds that Plaintiff's motion to exclude Defendants' experts are not technical objections made pursuant to Fed.R.Civ.P. 26(a)(2)(B), but rather are made pursuant to Fed.R.Evid. 702 and Daubert. In McCoy v. Whirpool Corp., [25] this Court addressed the difference between a substantive attack on the content of an expert report under Daubert and an attack on the facial sufficiency of an expert report under Rule 26(a)(2)(B). The Court held that objections to an expert report on the basis that it does not spell out in sufficient detail the facts and scientific methodologies which the expert relied on goes to the form of the expert report and stops short of advancing an argument that the expert is not qualified.[26]

         Here, Plaintiff advances arguments that go to the substance of whether Defendants' experts are qualified under Fed.R.Evid. 702 and Daubert. Plaintiff's arguments go beyond simply stating that the expert reports lack sufficient detail and scientific methodology. Rather, speaking generally of the testimony Defendants' experts offer, Plaintiff argues that Bare's testimony is erroneous in its calculation of the delta V in this case. She argues that the methodology used was erroneous. Plaintiff argues that Dr. Raasch's testimony uses invalid methodology, including publications that are not generally accepted in the biomechanical community. She argues that Smith's testimony relating to the patient duty of care is not reliable. These grounds are colorable arguments that these experts are not qualified to testify as opposed to mere technical objections. Thus, the Court proceeds to consider whether the retained experts are qualified under the standards espoused in Fed.R.Evid. 702 and Daubert.

         A. Cleve Bare

         Based on Bare's curriculum vitae, the Court is satisfied that he is qualified as an expert by knowledge, skill, experience, training or education as required by Rule 702.[27] Bare's testimony merely relates to the physics of the accident, not the medical causation of the injury. With respect to accident reconstruction, Bare is a licensed Professional Engineer with a Master of Science in Mechanical and Aerospace Engineering with more than 25 years of experience. Bare has reconstructed thousands of accidents. He has particular expertise in the investigation of vehicle rollover crashes including assessments of vehicle handling, tire/component failure, rollover dynamics, and rollover stability. Bare further has an in-depth background in the analysis of computer programs and simulations used for vehicle dynamics, rollover simulation, and the reconstruction of crashes. Under the circumstances, Bare possesses sufficient training and experience to qualify as an expert on accident reconstruction and the physics of an accident. It is important to note that Bare does not offer opinions on the causation of Plaintiff's injuries as he only opines about the delta V for the accident.

         The Court also finds that Bare's proferred testimony is highly relevant. In order to prove her negligence claim, Plaintiff must show that the collision caused the alleged injuries. The parties agree that causation is in issue. Bare's testimony goes to the speed at issue in the collision, which was used by Dr. Raasch to determine the force exerted on the body and whether it could have caused the injuries ...

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