United States District Court, N.D. Indiana, Hammond Division
BENJAMIN ROGERS, individually and as personal representative of THE ESTATE OF ASHLEY ROGERS, Plaintiff,
QUALITY CARRIERS, INC., and KIMBERLY THIETJE, Defendants.
OPINION AND ORDER
LOZANO, Judge United States District Court
matter is before the Court on the: (1) Defendants' Motion
for Summary Judgment, filed by Defendants, Quality Carriers,
Inc. and Kimberly Thietje, on February 8, 2017 (DE #101); (2)
Plaintiff's Motion for Partial Summary Judgment, filed by
Plaintiff, Benjamin Rogers, as personal representative of the
estate of Ashley Rogers, and individually, on February 28,
2017 (DE #105); (3) Motion to Exclude Opinion Testimony of
Nick Tumbas, Trooper Elwood, and Dr. E. Allen Griggs, filed
by Defendants, Quality Carriers, Inc. and Kimberly Thietje,
on March 2, 2017 (DE #109); and (4) Belated Motion for Oral
Argument Pursuant to Local Rule 7.5, filed by Defendants,
Quality Carriers, Inc. and Kimberly Thietje, on June 26, 2017
reasons set forth below, Defendants' Motion for Summary
Judgment (DE #101) is GRANTED IN PART AND DENIED IN PART. It
is GRANTED as to the claims of negligent infliction of
emotional distress and punitive damages, which are DISMISSED
WITH PREJUDICE. It is DENIED as to causation. Plaintiff's
Motion for Partial Summary Judgment (DE #105) is DENIED. The
Motion to Exclude Opinion Testimony (DE #109) is DENIED. The
Motion for Oral Argument (DE #124) is also DENIED.
filed this wrongful death suit against Defendant, Quality
Carriers, Inc. (“Quality Carriers”) and its
employee, Kimberly Thietje (“Thietje”), in state
court in 2014. Defendants removed the case to this Court on
March 10, 2015. The case stems from a car crash in December
2013, on southbound I-65, which killed Ashley Rogers
(“Rogers”). The Jeep driven by Rogers was struck
multiple times, by multiple vehicles, including being struck
by the tractor-trailer driven by Thietje. The parties have
put forth different versions of how the accident occurred,
and where Ashley Rogers was during the impacts.
February 9, 2017, Defendants filed a motion for summary
judgment, arguing that Plaintiff failed to produce sufficient
evidence to create a genuine issue of material fact that
Thietje's wrongful act or omission was the responsible
cause of Rogers' death. (DE #101.) Plaintiff filed a
response in opposition on March 1, 2017 (DE #107), and
Defendants filed a reply (DE #110).
February 28, 2017, Plaintiff filed a motion for partial
summary judgment arguing no genuine issues of material fact
exist so that a jury could find that Rogers was struck by an
unknown non-party. (DE #105.) Defendants filed a response on
March 28, 2017 (DE #112), and Plaintiff filed a reply on
April 10, 2017 (DE #113).
March 2, 2017, Defendants filed the instant motion to exclude
opinion testimony of Plaintiff's experts, Nick Tumbas,
Trooper Elwood, and Dr. E. Allen Griggs. (DE #109.) Plaintiff
filed an opposition on March 16, 2017. (DE #111.)
Defendants filed a motion for oral argument on June 26, 2017.
(DE #124.) Plaintiff filed a response in opposition on June
26, 2017. (DE #125).
such, all four motions have been fully briefed and are ripe
for Oral Argument
outset, the Court will address Defendants' Motion for
Oral Argument as to the motion to exclude testimony and
motion for summary judgment. (DE #124.) Pursuant to Local
Rule 7-5., the Court may “grant or deny a request for
oral argument or an evidentiary hearing in its
discretion.” N.D. Ind. L.R. 7-5. (c)(1). Here, the
parties' memoranda have sufficiently apprised the Court
of the issues at hand, and the Court does not believe that
oral argument is necessary. Therefore, the Court denies
Defendants' Motion for Oral Argument (DE #124), and turns
to the merits of the motions.
to Exclude Opinion Testimony of Nick Tumbas, Trooper Elwood,
and Dr. E. Allen Griggs
Defendants entitle this motion as one to exclude
“opinion testimony, ” they cite to Federal Rule
of Evidence Rule 702, and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993), in applying the legal
standard for the admissibility of expert testimony.
Additionally, the two main cases they rely upon, Owens v.
Ford Motor Co., 297 F.Supp.2d 1099, 1105 (S.D. Ind.
2003), and Clark v. Takata Corp., 192 F.3d 750 (7th
Cir. 1999), both analyze the admissibility of expert
testimony under Rule 702 and the guiding principles in
Rule of Evidence 702, which governs expert testimony,
provides the following:
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 a product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
F.R.E. 702. In addition, in Daubert, the Supreme
Court fashioned a two-prong test of admissibility for
evidence based on the “scientific knowledge”
mentioned in Rule 702. Daubert, 509 U.S. at 592. To
be admissible, evidence must be both relevant and reliable.
Id. at 589; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999) (noting the
objective of court's gatekeeping requirement is to ensure
reliability and relevancy of expert testimony).
the reliability prong, scientific evidence must be reliable
in the sense that the expert's testimony must present
genuine scientific knowledge. Daubert, 509 U.S. at
592-93; Deimer v. Cincinnati Sub-Zero Prods. Inc.,
58 F.3d 341, 344 (7th Cir. 1995). Generally, the expert
witness must employ in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the witness's field. Kumho, 526 U.S.
at 152. Specifically, a court may, but is not required to,
consider a nonexclusive list of four factors in assessing
reliability: (1) whether the expert's theories and
techniques can be verified by the scientific method through
testing; (2) whether the theories and techniques have been
subjected to peer review and publication; (3) whether the
theories and techniques have been evaluated for their
potential rate of error; and (4) whether the theories and
techniques have been generally accepted by the relevant
scientific community. Daubert, 509 U.S. at 593-94.
the relevance prong, the testimony must assist the trier of
fact to understand the evidence in the sense that it is
relevant to or “fits” the facts of the case.
Daubert, 509 U.S. at 591; Smith v. Ford Motor
Co., 215 F.3d 713, 718 (7th Cir. 2000). In other words,
the testimony must be such that the jury can apply it in a
meaningful way to the facts at hand. This “fit”
analysis essentially represents an inquiry similar to if not
indistinguishable from the basic evidentiary inquiries into
whether evidence is relevant and, if so, whether its
probative value is nonetheless substantially outweighed by,
among others, the danger of unfair prejudice and jury
confusion. See Daubert, 509 U.S. at 595; Ayers
v. Robinson, 887 F.Supp. 1049, 1058-59 (N.D. Ill. 1995).
Defendants move to strike the testimony of three witnesses -
Nick Tumbas, Trooper Danielle Elwood, and Dr. E. Allen
Griggs. Ultimately, it comes down to this: Plaintiff's
theory of the case is that Rogers was either inside or near
her vehicle when Thietje's truck struck Rogers' Jeep.
On the other hand, Defendants' theory of the case is that
Rogers was struck as a pedestrian by a vehicle other than
Thietje's. Thus, Defendants are trying to bar
Plaintiff's experts from opining that Rogers was near or
inside her vehicle at the ...