Bailon v. Landstar Ranger, Inc.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY UNITED STATES DISTRICT JUDGE

         Before the court are Plaintiff Michele Bailon’s Motion to Exclude the Opinions and Testimony of Officer Christopher Cortemelia (Doc. 44), filed September 21, 2018; Plaintiff’s Motion to Set a Status Conference (Doc. 51), filed May 21, 2019; and Plaintiff’s Second Motion to Set a Status Conference (Doc. 53), filed September 25, 2019. After careful consideration of the motions, responses, record, reply and applicable law, the court denies without prejudice Plaintiff Michele Bailon’s Motion to Exclude the Opinions and Testimony of Officer Christopher Cortemelia (Doc. 44); grants Plaintiff’s Motion to Set a Status Conference (Doc. 51); and denies as moot Plaintiff’s Second Motion to Set a Status Conference (Doc. 53).

         I. Motion to Exclude A. Procedural and Factual Background

         This action arises from a vehicular accident that occurred near the interchange between Interstate Highway 20 East and Interstate Highway 635 North in Balch Springs, Texas, on April 27, 2015. Michele Bailon (“Plaintiff” or “Ms. Bailon”) originally filed this action on March 4, 2016, in the 44th Judicial District Court of Dallas County, Texas, against Landstar Ranger, Inc., (“Landstar”) and Camara Percival, Jr. (“Mr. Percival”) for negligence, negligence per se, and gross negligence.

         Ms. Bailon contends that Mr. Percival, ^[1] while acting within the course and scope of his employment with Landstar, was negligent, negligent per se, and grossly negligent when his vehicle violently collided with her vehicle on April 27, 2015. She contends that she sustained severe injuries, and she seeks compensation for her injuries.

         Landstar apparently intends to call Officer Cortemelia as an expert at the trial of this action. Ms. Bailon seeks to exclude the opinions and testimony of Officer Cortemelia. Her grounds for excluding his opinions and testimony are:

• Officer Cortemelia is not an accident reconstruction expert. Federal Rule of Evidence 702 and Daubert preclude him from offering testimony in the capacity of an accident reconstructionist to determine causation.

• His opinions also do not qualify as admissible lay opinion testimony under Federal Rule of Evidence 701. Officer Cortemelia was not a witness to the accident[, ] and his opinions in his police report are based upon inadmissible hearsay within hearsay. He cannot offer opinion testimony on the cause of the accident. Moreover, the information regarding causation in his report is demonstrably unreliable, as evidenced by the deposition testimony of an eye witness who stated that Officer Cortemelia’s version of events are impossible.

• Officer Cortemelia’s testimony and opinions must be limited to those facts of which he has personalized knowledge-such as observations he made at the scene of the accident or witness statements that he personally took.

         Pl.’s Mot. to Exclude 1 (Doc. 44).

         Landstar opposes striking Officer Cortemelia’s opinions and testimony. It contends that the court should not strike his testimony because:

Officer Cortemelia’s personal observations at the scene, combined with his training and experience, allowed him to offer an opinion regarding the motor vehicle accident at issue in this case. Plaintiff’s argument that Officer Cortemelia should not be able to offer an opinion because he is not an accident reconstructionist and he did not speak with eyewitnesses is a red herring. According to Officer Cortemelia this was a “normal accident” that occurs frequently at this intersection[, ] and it does not require accident reconstruction training. Plaintiff has not, and cannot, offer any evidence disputing this point. Officer Cortemelia was able to form an opinion regarding the cause of the accident – he believes Plaintiff was 100% at fault – based on (i) his observations of the location and damage to the vehicles, (ii) his years of experience working in the Traffic Division of Balch Springs Police Department, where the accident occurred, (iii) his personal experience with this interchange, and (iv) his (intermediate and advanced) training in accident investigation. No. advanced accident reconstruction training or eyewitness statements were necessary to form an opinion here. Even if Court excludes his opinions regarding the cause of the accident are, which it should not, Officer Cortemelia should nevertheless be allowed to testify regarding his observations at the scene.

Def.’s Resp. to Pl.’s Mot. to Exclude 1-2 (Doc. 48).

         B. Standard for the Admissibility of Expert Testimony Under Federal Rule of Evidence 702

         The admissibility of evidence is a procedural issue governed by federal law. See Reed v. General Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985). Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of ...