Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kay v. Lamar Advertising of South Dakota

August 21, 2009

RICHARD W. KAY AND DEANA D. KAY, HUSBAND AND WIFE, PLAINTIFFS,
v.
LAMAR ADVERTISING OF SOUTH DAKOTA, INC., A SOUTH DAKOTA CORPORATION, AND CODY P. BURTON, DEFENDANTS/COUNTER-CLAIMANTS,
v.
RICHARD W. KAY, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER DENYING DEFENDANTS' MOTION TO LIMIT TESTIMONY OF JUBAL D. HAMERNIK AND JOHN E. HUNTER

Defendants, Lamar Advertising of South Dakota and Cody Burton, move to limit the testimony of plaintiffs' expert witnesses, Dr. Jubal Hamernik and Mr. John Hunter. Plaintiffs, Richard Kay and Deana Kay, oppose the motion. For the reasons stated below, defendants' motion is denied.

BACKGROUND

The relevant background for purposes of addressing defendants' motion to limit plaintiffs' expert witnesses is as follows: On July 19, 2006, plaintiffs were involved in a motorcycle accident at an intersection near Sturgis, South Dakota. Plaintiffs were riding a motorcycle that was driven by Richard Kay. The motorcycle collided with a boom truck owned by defendant, Lamar Advertising, and driven by Cody Burton, an employee of Lamar Advertising.

Plaintiffs claim that Lamar Advertising's truck was negligently operated in such a manner that caused plaintiffs' injuries. Defendants deny any negligence on their behalf and assert several affirmative defenses and a counterclaim against Richard Kay on the basis that Richard Kay had operated the motorcycle in a negligent manner.

Plaintiffs identified three accident reconstruction experts in their Fed. R. Civ. P. 26(a)(2) disclosure statement. These three experts submitted their reports and analyses. The experts were later deposed by defendants. Plaintiffs later stipulated to only using two of the three identified experts: Jubal D. Hamernik, Ph.D., and John Hunter.

Under Rule 702, defendants move to exclude Dr. Hamernik's opinions about the appropriate "drag factor," or "deceleration factor," applied to the motorcycle operated by Richard Kay. Defendants also seek to exclude Dr. Hamernik's opinions relating to defendants' negligence. Plaintiffs resist this motion.

With regard to Hunter, defendants move under Rule 702 to exclude his opinions related to Richard Kay's speed. Defendants also move to exclude Hunter's opinion that defendants' negligence caused the accident. Plaintiffs resist this motion as well.

DISCUSSION

1. Standard for Admissibility of Expert Testimony

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence.*fn1 District courts have discretion in determining whether to admit expert witness testimony under Rule 702. See In re Air Crash at Little Rock Arkansas, on June 1, 1999, 291 F.3d 503, 509 (8th Cir. 2002). The proponent of expert testimony must prove its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 2796, 125 L.Ed. 2d 469 (1993).

Under Rule 702, the trial judge acts as a "gatekeeper" screening evidence for relevance and reliability. Id. at 589, 113 S.Ct. at 2795. "Rule 702 reflects an attempt to liberalize the rules governing the admission of expert testimony. The rule clearly is one of admissibility rather than exclusion." Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations omitted). "The exclusion of an expert's opinion is proper only if it is so fundamentally unsupported that it can offer no assistance to the jury." Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306, 309 (8th Cir. 1997) (internal quotations and citation omitted).

The Eighth Circuit has determined that a district court should apply a three-part test when screening testimony under Rule 702.

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if the finder of fact accepts it as true, it provides the assistance the finder of fact requires.

Lauzon, 270 F.3d at 686 (internal citations and quotations omitted). The third part of the test pertains to three elements added to Rule 702 after Daubertand its progeny. Id. These include: "(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." Fed. R. Evid. 702.

A. Dr. Hamernik

i. Admissibility of Dr. Hamernik's Opinions Related to "Drag Factor" and "Deceleration Rate"

Defendants argue that any statements by Dr. Hamernik about the applicable "drag factor"*fn2 and "deceleration rate" in this case are inadmissible under Rule 702.*fn3 Defendants assert that Dr. Hamernik failed to identify any authority to support his statements about the applicable drag factor. This assertion pertains to the third part of the test set out in Lauzon and the three elements in Rule 702 that are associated with it. See 270 F.3d at 686.*fn4 The third part of the test set out in Lauzon requires that "the proposed evidence must be reliable or trustworthy in an evidentiary sense."

Id. (internal quotation omitted). In order to determine this, the evidence must be "based upon sufficient facts or data" and "the product of reliable principles and methods." Id. Then the witness must have "applied the principles and methods reliably to the facts of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.