United States District Court, N.D. Indiana, South Bend Division
JULIEANNE DAHL individually and as Independent Executor of the estate of Russell Dahl, deceased, Plaintiff,
BRIAN HOFHERR, et al., Defendants.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
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).
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.
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”),
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.
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.
Applicable Legal Standard
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
(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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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).
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.
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).
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)
Dwayne G. Owen, Accident Reconstructionist
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.
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;
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. 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.,
• Bosch CDR Crash Data Retrieval, Powertrain EDR Data,
downloaded by Brach Engineering on 02/14/2014
• Case Report, Starke County Sheriff's Department,
• Caterpillar Electronic Technician ECM Data, downloaded
• Computer Aided Dispatch Detail, Indiana State Police,
• 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
• U.S. Health Works Drug Test Results
• Driver Logs, Driver Brian Hotberr, Carrier Ag
• 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 ...