United States District Court, D. Arizona
G. Campbell, Senior United States District Judge.
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
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
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.
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.
Plaintiff's Daubert Motion.
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.
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).
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
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.
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.
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.
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.
Summary Judgment Standard.
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).
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 ...