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Warger v. Shauers

September 14, 2010


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge



This matter is before the court pursuant to plaintiff's motion for costs and fees incurred as a result of a mistrial in the above-captioned case. (Docket 109). Defendant resists the motion. (Docket 113). The court allowed briefing and oral argument on this matter, which is ripe for adjudication.


The court limits its recitation to those facts necessary to resolve plaintiff's pending motion. The court's recitation constitutes its findings of fact in support of this order. Additional findings of fact are contained in the court's discussion of the relevant case law and application to this case.

This case arises from a collision that occurred on August 4, 2006, between plaintiff Gregory P. Warger, who was operating a motorcycle, and defendant Randy D. Shauers, who was operating a pickup truck with an attached camper trailer. (Docket 1 at ¶¶ 5 & 6). The collision occurred on U.S. Highway 385 in Pennington County, South Dakota. Id. at ¶ 7. On March 12, 2010, the court entered a scheduling order setting the dates for pretrial submissions, the pretrial conference, and the jury trial. (Docket 24). Pretrial submissions, including motions in limine, were due by July 6, 2010; the pretrial conference was scheduled for July 13, 2010; and the jury trial was set to begin on July 20, 2010. (Docket 24).

As part of his pretrial submissions, plaintiff filed a motion in limine to exclude, in relevant part, any reference to the South Dakota Highway Patrol accident report completed by Trooper David Berkley and any opinion or testimony from Trooper Berkley "regarding the accident, how it occurred, or who is at fault." (Docket 50 at p. 1). Plaintiff argued the accident report lacked the necessary trustworthiness to be admitted as a public record under Fed. R. Evid. 803(8)(C). (Docket 51 at pp. 1-3). Plaintiff also argued Trooper Berkley's opinion testimony was the result of guesswork and mere speculation and lacked the foundation required of expert testimony under Fed. R. Evid. 702.

Id. at pp. 3-4. Defendant resisted the motion. (Docket 63).

On July 13, 2010, the court began a three-day joint pretrial conference and motions hearing. On July 14, 2010, the court heard oral argument on plaintiff's motion in limine, but reserved ruling until Trooper Berkley testified. (Docket 73). On July 16, 2010, Trooper Berkley testified as to his professional experience and training, his observations at the scene immediately following the collision, the procedures used to investigate the collision and preserve and collect evidence, and the taking of statements from defendant and eyewitness Clint Elmore. (P.C.T. pp. 2-23).*fn1 Trooper Berkley also testified as to his opinions regarding how the collision occurred and who was at fault and the basis for his opinions. (P.C.T. pp. 24-27, 31-62). In relevant part, Trooper Berkley discussed the basis for his opinion that plaintiff entered U.S. Highway 385 from the south fork of the Y intersection at Sheridan Lake Road. Trooper Berkley testified he based his opinion primarily on information provided by defendant, not by evidence available at the scene of the collision. (P.C.T. p. 31, lines 1-22). Indeed, Trooper Berkley testified he was unsure as to which fork of the intersection plaintiff used to enter the highway. (P.C.T. p. 31, lines 23-25).

After carefully considering Trooper Berkley's testimony within the framework of Fed. R. Evid. 702 and 803(8)(C) and relevant case law, the court granted in part and denied in part plaintiff's motion in limine with respect to Trooper Berkley's accident report and opinion testimony. (P.C.T. p. 63, lines 7-25; p. 64, lines 1-5). The court provided the following explanation for its ruling:

With regard to plaintiff's motion in limine number 1 seeking to exclude the South Dakota Highway Patrol accident report completed by Trooper David Berkley, I am going to grant the motion in limine and exclude the report. I specifically asked the lieutenant in box 14 where the lieutenant indicated the driver one, which in his report that's the plaintiff, Mr. Warger, failed to yield to vehicle. He based that on the configuration of the road to the presence of the stop sign.

3. The fact the crash occurred. And

4. The South Dakota statute regarding failure to yield.

I find that this is not a matter of credibility, this is a matter of reliability and trustworthiness. The report is not reliable in its entirety because the trooper did not, in order to reach his conclusions and findings in the report, did not apply accident reconstruction methodology to reach his conclusions and findings. He did not know crucial facts from objective sources regarding the conduct of each driver. The trooper did not have enough data available from objective sources to which he then applied accident reconstruction methodology to reach his conclusions and findings. That renders his report unreliable.

This is not a question of the completeness of his investigation, this is a matter of the data upon which the lieutenant relied in reaching his conclusions and making his findings.

With regard to the speed and the action of each driver, with regard to speed the only information which the lieutenant had at the time was from an interested party and that is Mr. Shauers, the driver of the pickup pulling the camper. The lieutenant did not testify that he considered the Elmore statement in reaching his conclusions and findings in his report. And frankly, that statement, if you read it, is not sufficient information or data upon which the conclusions and findings in the motor vehicle traffic accident report could be based. Therefore, the traffic accident report and its field notes which are the initial document prepared by the lieutenant are not admissible as public records under Federal Rule of Evidence 803(8)(C) because they lack trustworthiness.

Again, that's not a question of credibility of the witness, it is a question of admissibility because I determined the report is neither reliable nor trustworthy.

With regard to plaintiff's motion in limine number 2, which seeks to exclude any opinion or testimony from Trooper Berkley regarding the accident, how it occurred, or who was at fault, I am going to grant that motion in part and deny it in part. The trooper can testify regarding the accident but in doing so, he cannot testify regarding fault or causation. He cannot testify as to the finding he made in box 14 that the motorcycle driver Warger failed to yield. The trooper cannot testify about the speed of either vehicle, Warger or Shauers. And he cannot -- the trooper cannot relate the statements either of Mr. Shauers or Mr. Elmore because those are hearsay and he's not testifying about accident reconstruction matters or opinions or conclusions in the nature of expert testimony because I excluded it; therefore, those are hearsay statements. Both witnesses I am advised are going to testify at trial. So that permits the trooper to talk about being called to the scene, and his observations of the scene, his taking photographs. But the areas that I have enumerated he's not to discuss those, be asked questions about them. No reference or inferences are to be made concerning those matters when the lieutenant testifies. And again, those are not matters of credibility of this witness. Lieutenant Berkley is a matter of reliability and trustworthiness of his opinions, conclusions, and findings on the matters that I have excluded. (P.C.T. p. 64, lines 6-25; p. 65, lines 1-25; p. 66, lines 1-25; p. 67, line 1).

In accordance with its oral rulings, the court filed a written order granting in part and denying in part plaintiff's and defendant's motions in limine. (Docket 93). The court granted plaintiff's motion to exclude the South Dakota Highway Patrol accident report completed by Trooper Berkley. Id. at ¶ 3(a). The court granted in part and denied in part plaintiff's motion to exclude any opinion or testimony from Trooper Berkley. Id. at ¶ 3(b). The court allowed Trooper Berkley to testify as to how he was called to the scene of the collision, his observations at the scene, and his photographs of the scene. Id. However, the court precluded his testimony as to who was at fault for the collision, who or what caused the collision, whether plaintiff failed to yield to defendant's vehicle, or the speed of either vehicle. Id. The court also precluded Trooper Berkley from relating statements made by defendant or Clint Elmore because such statements are inadmissible hearsay. Id.

The jury trial commenced on July 20, 2010. (Docket 105). Plaintiff appeared in person and by his counsel, Steven Beardsley and Travis Jones. Id.

Defendant appeared in person and by his counsel, Ronald Kappelman and Greg Strommen. Id. On July 21, 2010, Brad Booth, an accident reconstructionist and plaintiff's expert witness, testified before the jury. Id. On July 22, 2010, during cross-examination, Mr. Kappelman asked Mr. Booth a series of questions:

Q: And Mr. Elmore testified in front of this jury that he didn't indicate on there whether he pulled out of the north -- Warger pulled out of the north forth or south fork of the Y. You heard that testimony?

A: I did.

Q: Yet you are telling us that you read into it that he pulled out of one fork or the other?

A: When you take a left and proceed south and are going to go back to the east, it would seem to me that would be the only logical conclusion you could come to.

Q: I see. Did you speak to Lieutenant Berkley, the investigating officer, about what logical conclusion he came to? (T.T. p. 8, lines 11-23).*fn2

Mr. Jones objected to this last question. (T.T. p. 8, line 24). The court stated, "There's a prior court ruling on this subject. Not knowing what the answer would be, I am going to sustain the objection." (T.T. p. 8, line 25; p. 9, lines 1-2). Mr. Kappelman resumed his cross-examination of Mr. Booth.

Shortly thereafter, Mr. Kappelman asked to approach the bench in order to obtain clarification of the court's ruling on an unrelated evidentiary matter. (T.T. p. 17, lines 18-20). Mr. Kappelman, Mr. Jones, and the court attempted to engage in a discussion on this matter, but could not make a proper record due to technological difficulties with the sound system, particularly with the white noise and the court reporter's headphones. (T.T. p. 21, lines 21-25; p. 22, lines 1-4). As a result, the court excused the jury to conduct a hearing. (T.T. p. 22, lines 4-7). During this hearing, Mr. Kappelman and the court engaged in the following pertinent discussion:

[MR. KAPPELMAN:] Lastly, I want to say that during part of my examination I was trying to establish that Mr. Booth, through his investigation, had talked with the investigating officer, and the investigating officer had thought that Mr. Warger came out of the south fork of the Y and the Court prevented me from doing that. And so I want -- I need to make sure whether I can even go into with Mr. Booth, who has personally visited with the trooper and read his report and seen his diagram, that simple question. I am not asking for causation, I am asking for: isn't it true that the trooper thought he came out of the south fork of the Y?

THE COURT: I want to make two clarifications on the three-point presentation you just made. Starting with the final point, the question you asked was the subject of plaintiff's objection which I sustained based on a prior ruling. That question, whether you intended to frame it that way or not, called for this witness to state Trooper Berkley's opinion with regard to the cause of this collision. The question was clear as a bell to me as to how a witness would truthfully answer that. That has been excluded. Trooper Berkley's opinion with regard to the cause of this collision was excluded last week, and so that's not coming in. That's why I sustained that objection. I am not accusing you of intentionally trying to violate the order in any way, but the question you asked would have required that as an answer, so that's the matter with that sustained objection. (T.T. p. 23, lines 20-25, p. 24, lines 1-22).

The court and counsel proceeded to discuss other matters. At the conclusion of the hearing, Mr. Booth again took the stand, and the jury returned to the courtroom. (T.T. p. 32, lines 8-17). The court advised Mr. Booth he was still under oath and asked Mr. Kappelman to resume his cross-examination. (T.T. p. 32, lines 18-19). Mr. Kappelman began by asking the following questions:

Q:... I want to clear one thing up, Mr. Booth. As part of your investigation on this case, you visited ...

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