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Koenig v. Beekmans

United States District Court, W.D. Texas, San Antonio Division

January 9, 2018




         Before the Court is Plaintiff Benjamin Koenig's Motion to Limit the Testimony of Deputy Antonio Alvarez [#131]. This case was assigned to the undersigned for disposition of all pre-trial matters, pursuant to Rules CV-72 and 1(c) & (d) to Appendix C of the Local Rules for the United States District Court for the Western District of Texas [#115]. The Court has diversity jurisdiction over this case, see 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 [#131], Defendant Anthony Beekmans' Response [#140], Koenig's Reply [#143], the relevant law, the pleadings, and the governing scheduling order, the Court GRANTS Koenig's Motion to Limit the Testimony of Deputy Antonio Alvarez [#131]. Deputy Alvarez is not qualified as an expert in accident reconstruction and, at most, he might be qualified to testify as an expert in accident investigation. But even assuming for purposes of this order that Deputy Alvarez were qualified as an expert in accident investigation, opinions or testimony from him regarding the cause of the collision, its contributing factors, and the positions of the vehicles prior to and at impact lacks the required indicia of reliability. Accordingly, Deputy Alvarez is excluded from offering an opinion regarding the cause of the collision, any of the collision's contributing factors, or the position of the vehicles prior to or at impact. Deputy Alvarez, however, may testify as a lay witness regarding his personal observations when he arrived at the scene, including any witness statements he personally received, provided of course that any such out-of-court statement is otherwise admissible.

         I. Background

         This 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.

         On August 26, 2016, the parties deposed Deputy Alvarez, the officer who investigated the accident and issued the Texas Peace Officer's Crash Report. (See [#131-4]). In his Crash Report, Deputy Alvarez provides a narrative addressing his personal observations when he arrived at the scene of the collision, including witness statements he received. In the second to last sentence of this narrative, Deputy Alvarez concludes that “[b]ased on the damage to the vehicles it appears that Unit 1 [Koenig] was driving on the wrong side of the road when he encountered Unit 2 [Beekmans].” (Rep. at 3). Accordingly, Deputy Alvarez lists Koenig's “driver inattention” and “failure to drive in a single lane” and “other” as contributing factors to the collision. (Id.; see also Alvarez Dep. 28:17-24; 98:3-4). The Crash Report also includes a small diagram illustrating that Koenig was driving on the wrong side of the road when the collision occurred. (Rep. at 3).

         During his deposition, Deputy Alvarez disclaimed possessing the qualifications necessary to testify as an expert in accident reconstruction, (Alvarez Dep. 34:20-35:4; 36:23-37:1), including specifically the ability to provide an expert opinion regarding which lane either party occupied, the respective fault of each party for the accident, or the vehicles' speeds at the time of impact (id. 35:24-36:3). He also explained that he does not remember this particular accident and that reviewing the Crash Report does not refresh his memory. (Id. 24:3-8; 38:22-39:6; 41:14). Accordingly, Deputy Alvarez explained that he can only testify as to what is documented in the Crash Report. (Id.)

         On October 21, 2016, almost two months after Deputy Alvarez was deposed, Beekmans designated him as an unretained expert in this case. (See [#50] at 9). According to the designation, Deputy Alvarez “may give testimony regarding his accident investigation, measurements, skid marks, road and weather conditions, lighting conditions, speed limit, the position of the vehicles, witnesses and issues relating to alcohol.” (Id.) In addition, “Deputy Alvarez may testify regarding the subject matter, facts and opinions specified in the Texas Peace Officer's Crash Report and set forth in his deposition testimony given in this case.” (Id.) According to Beekmans' proposed pretrial order, Beekmans intends to offer Deputy Alvarez's testimony by means of video deposition. (See [#142-6]).

         On December 14, 2017, almost a year and four months after Deputy Alvarez was deposed, Koenig filed the instant motion to limit his testimony [#131]. By his motion, Koenig seeks to exclude Beekmans from “introducing any evidence or testimony from Deputy Antonio Alvarez regarding his opinions or conclusions contained in the Contributing Factors, Narrative Summary, and Diagram section of the crash report that he completed.” (See [#131-3]). Koenig argues that Deputy Alvarez's testimony regarding the position of the vehicles prior to or during the collision and the fault of the parties is inadmissible because Deputy Alvarez is not qualified to give such opinions and his conclusions do not rest on a reliable foundation. Koenig also argues that because Deputy Alvarez did not witness the collision, he cannot offer a lay opinion on such topics.

         Beekmans argues Deputy Alvarez is qualified as an accident investigator based on classroom and field training, and that all the information in his report is admissible as a public record pursuant to Federal Rule of Evidence 803(8). Finally, Beekmans argues that the Court should not consider Koenig's motion because the relevant scheduling order required objections to an expert's testimony be made within 14 days after the expert's deposition testimony-a deadline that expired long before Koenig filed the instant motion.

         II. Legal Standards

         Expert Opinion Testimony. Koenig's challenges to the admissibility of Deputy Alvarez'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).

         Daubert 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.

         At the 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 ...

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