United States District Court, W.D. Texas, San Antonio Division
ORDER GRANTING IN PART MOTION TO EXCLUDE TESTIMONY OF
BILLY S. COX, JR.
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion to Exclude the Testimony of Billy S.
Cox, Jr., filed by Plaintiff Benjamin Koenig [#89]. This case
was assigned to the undersigned for disposition of all
pre-trial matters, pursuant to Rules CV-72 and 1(c) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas [#115]. The Court has
diversity jurisdiction over this case pursuant to 28 U.S.C.
§ 1332, and the undersigned has authority to enter this
order pursuant to 28 U.S.C. § 636(b)(1)(A). See,
e.g., Target Strike, Inc. v. Marston &
Marston, Inc., No. SA-10-cv-0188-OLG-NN, 2011 WL
676185, at *1 (W.D. Tex. Feb. 16, 2011) (noting magistrate
judge's § 636(b) authority to rule on motions to
exclude expert testimony, which are non-dispositive). Having
considered Plaintiff Koenig's Motion [#89], Defendant
Anthony Beekmans' Response [#101], the relevant law, and
the pleadings, the Court GRANTS IN
PART AND DENIES IN PART the Motion to Exclude the
Testimony of Billy S. Cox, Jr., filed by Plaintiff Benjamin
Koenig [#89]. The Court finds that Cox is sufficiently
qualified to testify as an expert on the topic of accident
reconstruction in this case but that his testimony should be
limited as discussed herein.
personal injury lawsuit arises from an October 2, 2013
head-on car accident involving Koenig and Beekmans. Koenig
asserts claims for negligence and negligence per se, and
seeks damages from Beekmans in excess of $1 million. It is
undisputed that, as a result of the accident, Koenig
sustained (and was treated for) a fractured sternum as well
as a compression-type fracture of the L1 disc in his spine.
(See [#106-1]). The parties, however, dispute
whether the collision also caused Koenig to suffer a
traumatic brain injury and a herniated L5-S1 disc. The
parties also dispute who, Koenig or Beekmans, caused the
accident, including whether one of them was driving on the
wrong side of the road.
Beekmans designated accident reconstructionist Billy S. Cox
to offer an expert opinion regarding the accident's
causes and the sequence of events that led up to it.
(See [#89-1]). Cox concludes that the accident
occurred because Koenig was driving his vehicle eastbound in
the westbound lane lawfully occupied by Beekmans'
vehicle. According to Cox, Beekmans was traveling at or below
the posted speed limit (45 mph) when he noticed Koenig's
vehicle approaching his lane of travel. Cox concludes that
once Beekmans noticed Koenig's vehicle approaching his
lane, Beekmans reacted by steering his vehicle to his left
and applying his brakes, which reduced Beekmans' speed to
2 to 5 mph. According to Cox, Koenig was traveling between 40
to 50 mph and also changed lanes to the impact point but did
not apply his brakes before the collision. Cox concludes that
Beekmans' decisions to steer to his left to the point of
impact and apply his brakes to try to avoid the collision
were appropriate. He also concludes that had Koenig properly
applied his brakes, the parties could have avoided the
accident altogether. (Id. at 12).
motion attacks Cox's qualifications to testify as an
expert as well as the reliability and helpfulness of his
opinions and testimony.
challenges to the admissibility of Cox's expert testimony
are governed by Federal Rule of Evidence 702, along with
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993), and its progeny. See Black v. Food Lion,
Inc., 171 F.3d 308, 310, 314 (5th Cir.1999); Wells
v. SmithKline Beecham Corp., No. A-06-CA-126-LY, 2009 WL
564303, at *7 (W.D. Tex. Feb. 18, 2009). Rule 702 provides
that a witness “‘qualified as an expert . . . may
testify . . . in the form of an opinion . . . if (1) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.'” Guy v.
Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)
(quoting Fed.R.Evid. 702).
charges trial courts to act as evidentiary
“gate-keepers” to ensure that proffered expert
testimony is, among other things, sufficiently reliable.
Daubert, 509 U.S. at 589, 592-93; see Watk ins
v. Telsmith, Inc., 121 F.3d 984, 989 (5th Cir. 1997).
Courts enjoy wide discretion in deciding precisely how to
make such a reliability determination in a given case.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142
(1999). The reliability inquiry focuses “on
[experts'] principles and methodology, not on the
conclusions that [experts] generate.” Daubert,
509 U.S. at 594. The proponent of expert testimony is not
required to show that the testimony is correct, but rather
show-by a preponderance of the evidence-that the testimony is
sufficiently reliable. Moore v. Ashland Chem. Inc.,
151 F.3d 269, 276 (5th Cir. 1998). Whether an expert is
“basing testimony upon professional studies or personal
experience, ” a court must ensure the expert
“employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co.,
526 U.S. at 152.
same time, “the trial court's role as gatekeeper is
not intended to serve as a replacement for the adversary
system.” United States v. 14.38 Acres of Land,
80 F.3d 1074, 1078 (5th Cir. 1996). “Vigorous
cross-examination, presentation of contrary evidence, and
careful instruction on burden of proof are the traditional
and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596. In
general, “questions relating to the bases and sources
of an expert's opinion affect the weight to be assigned
that opinion rather than its admissibility and should be left
for the jury's consideration.” 14.38 Acres of
Land, 80 F.3d at 1077; see also Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987).
qualified to provide an accident reconstruction analysis in
this case, and his testimony regarding the vehicles'
momentum prior to impact, as well as the parties'
perception times and the reasonableness of each party's
accident-avoidance maneuvers are sufficiently reliable and
helpful to survive the motion to exclude. But Cox cannot
testify regarding which lane either party was occupying as
the vehicles approached one another or whether either party
was traveling at the posted speed limit at that same time
because his conclusions on those points are unreliable.
Cox's qualifications satisfy Rule 702 and
Daubert, which require that a “proffered
witness is qualified to testify [as an expert] by virtue of
his ‘knowledge, skill, experience, training, or
education.'” Wilson v. Woods, 163 F.3d
935, 937 (5th Cir. 1999) (quoting Fed.R.Evid. 702).
“Rule 702 does not mandate that the expert be highly
qualified in order to testify about a given issue, and the
issue of qualification has been described as presenting a
‘low threshold' for the proponent to clear.”
DiSalvatore v. Foretravel, Inc., No. 9:14-CV-00150,
2016 WL 7742824, at *10 (E.D. Tex. Jul. 20, 2016); see
also Guzman v. Mem'l Hermann Hosp. Sys., No. CIV.A.
H-07-3973, 2008 WL 5273713, at *15 (S.D. Tex. Dec. 17, 2008).
As long as an “expert meets liberal minimum
qualifications, then the level of the expert's expertise
goes to credibility and weight, not admissibility.”
Kannankeril v. Terminix Int'l, 128 F.3d 802, 809
(3d Cir. 1997).
experience, training, and education with accident
reconstruction qualify him to provide an expert opinion in
this case. Cox's resume and deposition testimony reflect
over 25 years of experience as a full-time forensic accident
reconstructionist, and involvement in thousands of accident
reconstruction cases. (See [#89-3]; Cox Dep. 8:1-3;
119:23-123:11). Cox is also accredited by the Accreditation
Commission for Traffic Accident Reconstruction, the only
accreditation available for accident reconstructionists, and
has taken the necessary continuing education courses to keep
his accreditation current for the ...