United States District Court, N.D. Texas, Dallas Division
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
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