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Vore v. Osborn

United States District Court, D. South Dakota, Western Division

March 9, 2016

THEODORE J. VORE, Plaintiff,


JEFFREY L. VIKEN, Chief District Judge.


Plaintiff Theodore Vore filed a complaint against defendant Clifford Osborn seeking recovery for Vore's injuries suffered in a collision between their two motorcycles on August 5, 2012. (Docket 1). Mr. Osborn filed an amended answer and counterclaim seeking recovery for his own injuries. (Docket 7). Mr. Vore filed a reply to the counterclaim. (Docket 8). Mr. Osborn filed two Daubert[1] motions challenging the opposing party's expert witnesses and another related motion. (Dockets 55, 57 & 70). Mr. Vore filed a motion to strike. (Docket 68). Each motion will be separately resolved by this order.


Rule 702 of the Federal Rules of Evidence governs testimony by expert witnesses and states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Rule 703 describes the bases for expert testimony.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Fed. R. Evid.703.

As a preliminary matter, "[t]he proponent of the expert testimony must prove its admissibility by a preponderance of the evidence." Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing Daubert, 509 U.S. 579 at 592; see also Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006) (same).

The trial judge "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."[2] Daubert, 509 U.S. at 589. The subject of an expert's testimony must be scientific, technical, or other specialized knowledge. Id. at 589-90. This requirement "establishes a standard of evidentiary reliability."[3] Id. at 590; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (noting it is the word "knowledge" in Rule 702 that "establishes a standard of evidentiary reliability'") (citing Daubert, 509 U.S. at 589-90).

Although Daubert deals specifically with expert testimony based on scientific knowledge, the Supreme Court extended the principles in Daubert to all expert testimony. Kumho, 526 U.S. at 141. "Proposed testimony must be supported by appropriate validation" i.e., good grounds, ' based on what is known." Id.

Expert evidence is unreliable, and thus inadmissible, "if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case." United States v. Bailey, 571 F.3d 791, 803 (8th Cir. 2009); see also United States v. Two Elk, 536 F.3d 890, 904 (8th Cir. 2008) ("[N]othing in Rule 702, Daubert, or its progeny requires that an expert resolve an ultimate issue of fact to a scientific absolute in order to be admissible.'") (quoting Kudabeck v. Kroger Co., 338 F.3d 856, 861 (8th Cir. 2003)).

Rule 702 requires expert testimony to be relevant, that is, to "assist the trier of fact to understand the evidence or to determine a fact in issue.'" Daubert, 509 U.S. at 591. "Rule 702's helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Id. at 591-92. The issue is one of does the testimony "fit." Id. at 591. "Fit' is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes." Id.

In sum, "[f]aced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), [4] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at 592. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id. at 592-93.

To make this determination, a district court may evaluate one or all of a number of non-exclusive factors. Those include whether a theory or technique

(1) can be (and has been) tested;
(2) has been subjected to peer review and publication;
(3) [has a] known or potential error rate... and the existence and maintenance of standards controlling the technique's operation...; and
(4) is generally accepted by the scientific community.[5]

Daubert, 509 U.S. at 593-94. A district court may consider all or none of these factors; a court should consider them in cases "where they are reasonable measures of the reliability of expert testimony." Kumho, 526 U.S. at 152. The applicability of these factors will depend on the particular facts of the case. Id. at 150-51.

"[T]he factual basis of an expert's opinion generally relates to the weight a jury ought to accord that opinion.... Thus, unless the factual or methodological basis for the testimony is fundamentally unreliable, its admission is not an abuse of discretion." Margolies v. McCleary, Inc., 447 F.3d 1115, 1121 (8th Cir. 2006). Challenges to the factual basis for an expert's opinion do not generally affect its admissibility. "As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." Children's Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (citing Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929-30 (8th Cir. 2001) (quoting Hose v. Chicago Northwestern Transportation Co., 70 F.3d 968, 974 (8th Cir. 1996)).

The United States Court of Appeals for the Eighth Circuit gives "great latitude" to district courts in determining whether expert testimony satisfies the requirements of Rule 702. Allen v. Brown Clinic, P.L.L.P., 531 F.3d 568, 573 (8th Cir. 2008) (citing Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761, 776 (8th Cir. 2004)). Regardless of what factors are evaluated, the main inquiry is whether the proffered expert's testimony is sufficiently reliable. Id. at 574 (citing Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005) ("There is no single requirement for admissibility as long as the proffer indicates that the expert evidence is reliable and relevant.")).

Rule 702 requires a flexible approach. Daubert, 509 U.S. at 594. The focus of Rule 702 "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. at 596; see also Two Elk, 536 F.3d at 903 (A district court "must exclude expert testimony if it is so fundamentally unreliable that it can offer no assistance to the jury, otherwise, the factual basis of the testimony goes to the weight of the evidence.'") (emphasis in original) (quoting Larson v. Kempker, 414 F.3d 936, 940-41 (8th Cir. 2005)). "[D]oubts about whether an expert's testimony will be useful should generally be resolved in favor of admissibility." Larabee v. M M & L International Corp., 896 F.2d 1112, 1116 n.6 (8th Cir. 1990) (citing J. Weinstein & M. Berger, Weinstein's Evidence, para. 702[02] at 702-30 (1988)).

The Eighth Circuit reviews under an abuse of discretion standard a district court's ruling admitting expert testimony. United States v. Eagle, 515 F.3d 794, 800 (8th Cir. 2008); see also Kuhmo, 526 U.S. at 152 (A "court of appeals is to apply an abuse-of-discretion standard when it review[s] a trial court's decision to admit or exclude expert testimony.'") (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 138-39 (1997)).


Mr. Osborn challenges Richard Kiley on the basis that he is a "motorcycle safety instructor" offering "opinions on motorcycle safety issues." (Docket 56 at p. 3). The seemingly significant and only opinion expressed by Mr. Kiley is "that Osborn contributed to the cause [of] the accident by failing to employ proper defensive driving strategies, namely: failing to keep a proper following distance." Id . Mr. Osborn argues this opinion "involves common sense and simple rules of the road which are well within the common knowledge of lay jurors." Id . Mr. Osborn further objects to the witness' testimony because he "reached [his] conclusion, not by conducting independent tests and/or analysis or by relying on the accident reconstructionists' opinions in this case, but solely on the statements of Osborn and driver safety manuals." Id.

Mr. Osborn contends the witness' testimony is not admissible because the witness "does not know what speed Osborn and Vore were traveling prior to and at the time of impact, the actual distance between Osborn and Vore, or how many feet per second Osborn would have traveled going at his rate of speed." Id. at p. 4. Mr. Osborn argues Mr. Kiley does not have any "specialized training to qualify him as an expert on motorcycle safety" and "[o]ther than a certification as a driver's education instructor and holding a title of safety instructor" the witness has "no certifications and little to no additional training and/or education" to qualify him as an expert witness. Id.

Mr. Osborn's final challenge is that Mr. Kiley's opinion is "clearly phrased in terms of negligence itself.'" Id. at p. 5 (citing Zens v. Harrison, 538 N.W.2d 794, 796 (S.D. 1996) (internal quotation and citation omitted). Mr. Osborn argues this invades the province of the jury and "does not provide useful or helpful testimony... as required by Rule 702." Id.

Mr. Kiley holds a bachelor's degree in health and physical education and received certification as a driver's education instructor. (Docket 59-1 at p. 2 (5:1-4). He earned a master's degree in education in 1998. (Docket 59-2 at p. 1). These educational activities in and of themselves are not especially material to the analysis. However, his teaching activities and additional training are significant to the court's analysis of his qualifications to testify as an expert witness. Mr. Kiley taught driver's education for seven years. (Docket 59-1 at p. 2 (6:9). From 1978 to present Mr. Kiley has worked with the South Dakota Safety Council. Id. at p. 2 (7:9-11). In 1985, he assumed the position of Director of the South Dakota Motorcycle Rider Education Program. Id. at p. 2 (7:17-19 & 18:7-14). Since 2010 Mr. Kiley has been the full-time director of that program. Id. at p. 3 (10:3-13).

Mr. Kiley teaches motorcycle operators to use a system called "Following Distance, RiderRadar and Visual Lead Times." Id. at p. 12 (47:10-12). This is a basic defensive driving strategy. Id. at p. 7 (25:4-6). The intent of this system is "to indicate proper following distance and space cushion or cushion of space... required." Id. at p. 12 (48:20-22). It was through applying this process that Mr. Kiley arrived at his opinion testimony. In a nutshell, Mr. Kiley testified that "[b]ased on the materials I reviewed, it was apparent... that Mr. Osborn had not employed proper defensive driving strategies that would have enabled him to avoid the collision." Id. at p. 7 (25:12-15).

Mr. Osborn challenges this opinion testimony arguing Mr. Kiley "reached this conclusion, not by conducting independent tests and/or analysis or by relying on the accident reconstructionists' opinions in the case, but solely on the statements of Osborn and driver safety manuals." (Docket 56 at p. 3). Mr. Osborn's argument on the lack of the witness' expertise culminates with his declaration that "even if Kiley relies on his driver safety instructor experience generally, Kiley cannot explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.'" Id. at p. 5 (Fed. R. Evid. 702, Notes of Advisory Committee). Even if Mr. Kiley's opinion is generally admissible under Rule 702, Mr. Osborn argues the opinion is "clearly phrased in terms of negligence itself.'" Id . (quoting Zens, 538 N.W.2d at 796). Mr. Osborn asserts this would tend to confuse the jury, since resolution of the issue of negligence is a jury question. Id . Instead, Mr. Osborn argues "[w]hat Kiley intends to testify to is nothing different than what would be expected from opposing counsel in closing argument." Id. at p. 6. Finally, Mr. Osborn argues Mr. Kiley ...

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