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Dahl v. Hofherr

United States District Court, N.D. Indiana, South Bend Division

November 18, 2016

JULIEANNE DAHL individually and as Independent Executor of the estate of Russell Dahl, deceased, Plaintiff,
BRIAN HOFHERR, et al., Defendants.


          Michael G. Gotsch, Sr. United States Magistrate Judge

         On June 15, 2016, Defendants, Brian Hofherr and AG Trucking, Inc. filed their Motion to Exclude Expert Witness Testimony. Plaintiff, Julianne Dahl, filed her response in opposition to Defendants' motion on July 8, 2016. Defendants' motion became ripe on July 18, 2016, when they filed a reply brief. Jurisdiction in this Court is proper under 28 U.S.C. § 1332(a)(1), as Plaintiff and Defendants are citizens of different states and the amount in controversy exceeds $75, 000.000, exclusive of interest and costs. The Court issues the following opinion pursuant to the consent of the parties and 28 U.S.C. § 636(c).

         I. Relevant Background

         On December 11, 2013, Russell Dahl died as the result of injuries sustained in a car collision on U.S. Highway 30 near County Road 600 East, Washington, Indiana leaving behind his wife, Julianne Dahl, and his three adult children. The collision resulted when the tractor-trailer, driven by Defendant Hofherr, lost traction and yawed sideways before crossing the median and striking Mr. Dahl's automobile.

         At the time of the collision, wintry precipitation or its effects were present in the area despite the parties' dispute as to the actual road conditions resulting from the weather. The speed limit in the area of the collision was 60 miles per hour. Defendant Hofherr was driving west at 59 miles per hour and Mr. Dahl was driving east at 63 miles per hour while alongside a marked Sheriff's Police vehicle driven by Sheriff Oscar Cowan in the left lane. Hofherr submitted to a mandatory blood test, which yielded positive results for the presence of active tetrahydrocannabinol (“THC”), a cannabinoid.

         As a result of the collision, two legal matters are pending-one against Defendant Hofherr related to criminal felony charges of “Operating a Vehicle While Intoxicated Resulting in Death, ” under Ind. Code § 9-30-5-5(b)(2) and the instant civil action by Mrs. Dahl against Defendants for torts under Indiana's Wrongful Death Act. After completing fact discovery in the instant action, Mrs. Dahl disclosed the identity of three expert witnesses in compliance with Fed.R.Civ.P. 26(a)(2). Specifically, Mrs. Dahl disclosed (1) Dwayne G. Owen, an accident reconstructionist with related expertise in commercial motor vehicle operations and safety, and (2) David S. Gibson, a vocational economist expected to testify as to the value of Mr. Dahl's lost future earnings, both of which submitted expert reports pursuant to Fed. R. Civ. P. 26(a)(2)(B). Pursuant to Fed. R. Civ. P. 26(a)(2)(C), Mrs. Dahl also disclosed Dr. Sheila A. Arnold, the Forensic Toxicologist and Quality Control Coordinator for the Indiana Department of Toxicology, who did not submit a written report, but is expected to testify that Defendant Hofherr's alleged impairment from THC was the proximate cause of the collision.

         Through the instant motion, Defendants now challenge the reliability of these three experts asking the Court to exclude any testimony from them at trial. Defendants argue that the expert opinions are either unsupported by the evidence or that the expert is not qualified to give such an opinion. In general, Mrs. Dahl argues that all of the experts should be allowed to testify because the evidence supports their conclusions and each is qualified to give their opinion. The propriety of each expert's testimony will be considered in turn below.

         II. Analysis

         A. Applicable Legal Standard

         Federal Rule of Evidence 702 governs the admission of expert testimony and states that 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.

         As a threshold matter, courts must examine whether 1) the expert will “testify based on valid scientific, technical, or specialized knowledge, i.e., whether the expert's testimony is reliable, ” and 2) whether that testimony will assist the trier of fact in understanding or determining a fact in issue. Ruppel v. Kucanin, No. 3:08 CV 591, 2011 WL 2470621, at *2 (N.D. Ind. June 20, 2011) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993)); see also Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

         Accordingly, courts play a critical “gatekeeper” role ensuring that any expert testimony or evidence admitted is not only relevant but reliable. Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir. 2004). To fulfill the gatekeeper role, courts must determine whether an expert is qualified in the relevant field and whether the methodology underlying the expert's conclusion is reliable. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 816 (7th Cir. 2004). Experts can be qualified to testify based upon personal experience and knowledge, so long as the experience and knowledge is reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999); Smith, 215 F.3d at 718. A court should examine the full range of practical experience and technical training, as well as examine the methodology used in reaching a conclusion when deciding whether an expert is reliable and qualified to testify. Smith, 215 F.3d at 718.

         Nevertheless, the judge retains “the discretionary authority . . . to determine reliability in light of the facts and circumstances in a particular case.” Kumho Tire Co., 526 U.S. at 158. An expert's testimony is admissible when it provides “something more than what is obvious to the layperson in order to be of any particular assistance to the jury.” Dhillion v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001). In addition, “[a]n expert must substantiate his opinion; providing only an ultimate conclusion with no analysis is meaningless.” Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007) (internal quotations omitted). Similarly, opinion evidence may be unreliable and worthy of exclusion if a court concludes “that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).Stated another way, an expert opinion that only consists of “subjective belief or unsupported speculation” should be excluded. Deimer v. Cincinnati Sub-Zero Prod., Inc., 58 F.3d 341, 344 (7th Cir. 1995) (quoting Daubert, 509 U.S. at 590).

         However, exclusion of expert testimony should be the exception, not the rule. See Advisory Committee Notes to Rule 702. The jury must still be allowed to play its essential role as the arbiter of the weight and credibility of testimony. Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013). The soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis remain factual matters to be determined by the jury. Id.; see also Lees v. Carthage Coll., 714 F.3d 516, 525 (7th Cir. 2013)

         B. Dwayne G. Owen, Accident Reconstructionist

         As demonstrated on his curriculum vitae and deposition testimony, Mr. Owen-retained as an expert by Mrs. Dahl-is a Certified Accident Reconstructionist, Certified Crash Data Retrieval System Operator, and a Certified Forensic Examiner who has investigated over 6, 000 motor vehicle accident throughout the United States. Upon retiring from his position as Deputy Chief of the City of Freeport Police Department after 20 years of service that included regular and routine performance of accident reconstruction, Owen joined Ruhl Forensic, Inc., where he worked for another 20 years as a consultant and expert in accident reconstruction, commercial motor vehicle operation and traffic safety. Owen now owns and operates Crash Response, LLC, holds a Class A Commercial Driver's License with endorsements.

         As requested by Mrs. Dahl, Owen prepared an Expert Report in which he opined about the collision between the vehicles driven by Defendant Hofherr and Mr. Dahl. Owen opined that (1) Hofherr was driving too fast for roadway conditions and failed to keep a proper lookout;

         (2) Hofherr employed improper techniques to regain control of his tractor-trailer; (3) Hofherr was operating his tractor-trailer while under the influence of THC, a controlled substance, in violation of federal and state law; and (4) Mr. Dahl operated his vehicle with reasonable care and had no opportunity to avoid the crash.[1] In the Report, Owen indicated that he had based these opinions on his

knowledge, education, training and experience, [his] familiarity with the relevant commercial motor vehicle operation and safety standards and [his] review of
• Auto CAD drawing by Crash Response, LLC, a computer aided design/drafting application from Autodesk, Inc., Sausalito, CA
• Bosch CDR Crash Data Retrieval, Powertrain EDR Data, downloaded by Brach Engineering on 02/14/2014
• Case Report, Starke County Sheriff's Department, dated 12/11/2013
• Caterpillar Electronic Technician ECM Data, downloaded on 12/23/2013
• Computer Aided Dispatch Detail, Indiana State Police, 12/11/2013
• Deposition of Boehlke, Amanda; dated 06/16/2015
• Deposition of Cowan, Oscar; dated 11/23/2015
• Deposition of Hofherr, Brian; dated 06/l6/2015
• Deposition of Sherer, Nathan; dated 05/13/2015
• DOT Drug Test Results / Indiana State Dept of Toxicology Records
• U.S. Health Works Drug Test Results
• Driver Logs, Driver Brian Hotberr, Carrier Ag Trucking, Inc.
• Employment Information Handbook, Ag Trucking, lnc.
• Federal Motor Carrier Safety Regulations, 382.213 Controlled substance use, U.S. Department of Transportation, Federal Highway Administration.
• Indiana Code §9-30-5-l(c)
• Indiana Code ...

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