Stearney v. United States

          ORDER

          David G. Campbell, Senior United States District Judge.

         Plaintiff Kaori Stearney, guardian of the estate of R.H. and administrator of the estate of Yuki Hirayama, has sued the United States, alleging that the Navajo Nation Police Department caused a drunk driver to crash into the Hirayama family's van and kill three members of the family. Doc. 59. Plaintiff brings claims for wrongful death, negligence, and negligent infliction of emotional distress under the Federal Tort Claims Act (“FTCA”). Id. Defendant has filed a motion for summary judgment, and Plaintiff moves to exclude one of Defendant's experts. Docs. 92, 106. The motions are fully briefed and oral argument will not aid the Court's decision. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). The Court will grant the motion for summary judgment in part and deny the motion to exclude the expert.

         I. Background.

         The following facts are undisputed. On March 28, 2014, at 9:41 p.m., Navajo Nation Police Sergeant David Butler observed a pick-up truck run a stop sign in Tuba City, Arizona. Doc. 109 at 119. Butler activated his emergency lights and siren to initiate a traffic stop, but the truck's driver, Kee Brown, refused to stop. Id. Butler soon lost sight of Brown's truck and deactivated his lights and siren. Id. At 9:45 p.m., a citizen approached Butler's vehicle and informed him that the same truck was driving erratically and had hit a school yard's fence. Id.; Doc. 93-2 at 29-30. When Butler saw Brown again at 9:46 p.m., he reactivated his lights and siren. Doc. 109 at 120. Brown fled in his truck, making his way to the eastbound lane of Highway 160 at milepost 322. Doc. 93-2 at 19.

         Brown accelerated to speeds in excess of 100 m.p.h., weaving in and out of traffic. See Id. at 19-20; Doc. 109 at 19-20. Butler's police truck had a governor that kept it from going faster than 98 m.p.h. Doc. 93-2 at 24-25. Butler testified that he ended his pursuit between mileposts 323 and 327 when he judged that Brown was about 0.75 miles ahead of him and pulling away. Doc. 93-2 at 23. Butler testified that he continued following Brown to monitor his location, and drove as fast as possible with his siren and lights activated. Id. at 22-24; Doc. 109 at 35.

         The terrain between mileposts 344 and 345 obstructed Butler's view of Brown's taillights. Doc. 93-2 at 35-36. When Butler came around a curve at milepost 345, he decelerated because he saw a vehicle nearby on Indian Route 6011. Id. at 36-37. Quickly determining that the vehicle was not Brown's pick-up truck, he accelerated again and continued east on Highway 160. Id. at 37. At about 10:03 p.m., Butler arrived at the scene of a vehicle accident near milepost 346.5. Id. at 38; Doc. 109 at 33. Brown had crossed into oncoming traffic and caused a head-on collision with the Hirayama van. Doc. 109-3 at 15. Five people died in the accident. Brown, who had a blood-alcohol level of 0.267, was killed along with his passenger. Doc. 109-1 at 25, 32. R.H.'s father, mother, and brother also were killed. Id. at 25-26.

         II. Plaintiff's Daubert Motion.

         Dr. Joseph Peles, Ph.D., is a bioengineer with background and training in accident reconstruction. Doc. 93-2 at 82. Dr. Peles opined about Brown's impact speed, Butler's proximity to the accident when it occurred, the reason for Mr. Hirayama's left-turn maneuver before impact, and the lines of sight for the three vehicles involved. Id. at 88-93.

         Under Rule 702, an expert may testify on the basis of “scientific, technical, or other specialized knowledge” if it “will assist the trier of fact to understand the evidence, ” provided the testimony rests on “sufficient facts or data” and “reliable principles and methods” and “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(a)-(d). The proponent of expert testimony has the ultimate burden of showing that the expert is qualified and the proposed testimony is admissible under Rule 702. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). The trial court acts as a gatekeeper to assure that expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

         Plaintiff challenges Dr. Peles' opinion regarding lines of sight. Doc. 106. Butler testified that he last saw Brown's vehicle between mileposts 344 and 345, yet R.H. testified that her father and brother saw police lights just before impact at milepost 346.5. Doc. 93-2 at 90. Dr. Peles visited the relevant stretch of Highway 160 and concluded that the terrain creates a positioning scenario in which Butler could not see Brown yet the Hirayamas could see Butler. Id. at 90-91. Plaintiff does not challenge this conclusion.

         Dr. Peles then considered whether the documents, physical evidence, and testimony could support a conclusion that the three vehicles were positioned in that way on the night of the accident. Doc. 93-2 at 91-93. Relying on calculations based on locations, speeds, and rates of deceleration, Dr. Peles concluded that this scenario was possible. Id. at 91-92. Such a scenario would mean that Brown could not have seen Butler's emergency lights for at least 56.4 seconds before impact. Id. at 92.

         Plaintiff does not challenge the relevance of Dr. Peles' opinion or the reliability of his principles and methods. See Doc. 106. Plaintiff instead contends that the data on which Dr. Peles relies to calculate his opinion are uncertain or unreliable. See Id. at 3-6. Defendant counters that these arguments go to the weight of Dr. Peles' opinion, not to its admissibility. Doc. 116 at 5-8.

         Plaintiff emphasizes that Dr. Peles lacks evidence that establishes, with certainty, Butler's location when he lost sight of Brown's truck, the specific location where Butler began decelerating, Butler's rates of deceleration, and the distance Butler travelled at 40 m.p.h. Doc. 106 at 3-6. And yet Dr. Peles' assumptions on each of these points find support in the record. Butler testified that he lost sight of Brown near a general store between mileposts 344 and 345 and that he began decelerating at a curve near the intersection with Indian Route 6011. Doc. 93-2 at 35, 85-86; Doc. 106 at 32-33. Dr. Peles acknowledged that identifying a precise rate of deceleration would be impossible, so he used a typical rate of low-friction braking. Doc. 106 at 29-31. And Butler testified that he slowed down for only a few seconds before accelerating again once he passed Indian Route 6011. Doc. 93-2 at 85-86; Doc. 109 at 48-52.

         Although the Court might be required analyze the sufficiency of this evidence and the reasonableness of Dr. Peles' assumptions more fully if he was going to testify before a jury, there will be no jury trial in this FTCA case. 28 U.S.C. § 2402; Brown v. United States, 993 F.2d 881 (9th Cir. 1993) (“a party bringing an action under the FTCA is not entitled to a jury trial”). Plaintiff does not challenge other opinions of Dr. Peles, so he will testify at trial in any event. The Court will consider the evidence on this specific opinion in detail during the trial and decide whether the opinion of Dr. Peles should be admitted under Rule 702 and, if so, what weight it should receive. The Court will deny Plaintiff's motion to exclude Dr. Peles' opinion before trial.

         III. Summary Judgment Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         IV. Discussion.

         Plaintiff's complaint contains five counts. Four are brought on behalf of R.H. - wrongful death of R.H.'s father and mother in violation of A.R.S. § 12-611 (Counts One and Two), negligence (Count Four), and negligent infliction of emotional distress (Count Five). Doc. 59 ¶¶ 43-55, 63-73. Count Three is a wrongful death claim brought on behalf of the estate of Yuki Hirayama, R.H.'s brother. Id. ¶¶ 56-62. Plaintiff identifies various categories of negligent conduct for each count, including failure to establish and enforce effective policies governing high-risk traffic pursuits, failure to train and supervise Navajo Nation police officers, and improper high-speed chase. See Id. ¶¶ 43-73. Defendant argues that some of Plaintiff's claims are barred by the discretionary function exception to the FTCA, that Plaintiff has no ...