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Manion v. Ameri-Can Freight Systems Inc.

United States District Court, D. Arizona

August 16, 2019

Zandra Manion, et al., Plaintiffs,
v.
Ameri-Can Freight Systems Incorporated, et al., Defendants.

          ORDER

          Dominic W. Lanza United States District Judge

         This case arises from a March 12, 2016 traffic accident that resulted in the death of Johnathan Blyler (“Decedent”). The vehicle that struck Decedent's vehicle was a tractor-trailer driven by Steven Robertson (“Robertson”), an employee of Ameri-Can Freight Systems, Inc. (together, “Defendants”). The plaintiffs are (1) Decedent's mother, Zandra Manion, who asserts a wrongful death claim under A.R.S. § 12-611 as a statutory beneficiary of Decedent, and (2) Decedent's wife, Lisa Blyler, who asserts both a wrongful death claim under A.R.S. § 12-611 in her capacity as a statutory beneficiary and a survival claim under A.R.S. § 13-1440 on behalf of the Decedent's estate (together, “Plaintiffs”).

         The Final Pretrial Conference is scheduled for August 26, 2019. (Doc. 91.) In anticipation of trial, the parties have filed three motions to exclude expert opinions. (Docs. 70, 71, 72.) Having reviewed those motions and the responses and replies thereto, the Court hereby rules as follows. The parties will be free at the Pretrial Conference to present additional argument concerning any of these rulings and attempt to convince the Court to change its mind.

         LEGAL STANDARD

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. “The party offering expert testimony has the burden of establishing its admissibility.” Bldg. Indus. Ass'n of Washington v. Washington State Bldg. Code Council, 683 F.3d 1144, 1154 (9th Cir. 2012). As a threshold matter, an expert witness must be qualified “by knowledge, skill, experience, training, or education, ” Fed.R.Evid. 702, but “Rule 702 ‘contemplates a broad conception of expert qualifications, '” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004) (citation and emphasis omitted).

         Under Rule 702, a qualified expert may testify 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.” The Federal Rules of Evidence obligate trial courts to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Rule 702(a) “goes primarily to relevance” and “requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 591-92. With respect to reliability, “the test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (Apr. 27, 2010) (citation omitted). To “assess the reasoning or methodology, ” courts should consider “such criteria as testability, publication in peer reviewed literature, and general acceptance, but the inquiry is a flexible one.” Id. Courts should not exclude an expert's opinion merely because it is “shaky, ” because such evidence may “be attacked by cross examination, contrary evidence, and attention to the burden of proof.” Id. See also Fed. R. Evid. 702, advisory committee note to 2000 amendments (“[P]roponents do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable. . . . The evidentiary requirement of reliability is lower than the merits standard of correctness.”) (citation and internal quotation marks omitted).

         ANALYSIS

         I. Defendants' Motion Regarding Michael Shepston (Doc. 70)

         Defendants seek to preclude Plaintiffs' proposed accident reconstruction expert, Michael Shepston (“Shepston”), “specifically as it relates to avoidability analysis, perception time, visibility, avoidability conclusions, vehicle electrical systems and additional factors.” (Doc. 70 at 1.) They argue (1) Shepston “provides opinions outside the scope of his specialized knowledge” and (2) Shepston's “opinions are not based on any specialized, scientific or technical knowledge and are not based upon reliable evidence.” (Id. at 2, 4.) Although the motion is broadly titled, Defendants clarify in their reply that they “are not disputing the methodology of Shepston as to the [accident] reconstruction or his opinions on the reconstruction itself.” (Doc. 80 at 2.)

         In response, Plaintiffs contend: (1) “Defendants' motion attempts to characterize the entirety of Shepston's opinions as scientific and ignores the information he has provided related to the details of the testing he performed and the information he compiled in arriving at his opinions”; (2) Shepston's “opinions are based on his knowledge and experience as a professional accident reconstructionist and his extensive experience in performing investigative analysis of crashes”; and (3) “Defendants do not dispute that Shepston is a qualified accident reconstructionist, or assert that his opinions have not been adequately disclosed.” (Doc. 76 at 4-5.)

         A. Accident Reconstruction

         As with many of the other pretrial motions in this case, the parties seem to be talking past each other to some extent. In their motion, Defendants did not indicate they were challenging Shepston's methodology as to the accident reconstruction, and they clarified in their reply that they were not making such a challenge. Thus, Shepston will be permitted to offer opinions regarding accident reconstruction at trial.

         …

         B. Avoidability, Perception Time, Defendant's ...


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