United States District Court, D. South Dakota, Northern Division
CODY R. WIENTJES, Plaintiff,
WAYNE KANYUH, Defendant.
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE.
instituted this negligence action in state court seeking
compensation for personal injury and property damage arising
out of an October 23, 2016, automobile accident in rural
Campbell County, South Dakota. The matter was removed to
federal court by the defendant on the basis of diversity
jurisdiction under 28 U.S.C. § 1332. Defendant filed a
counterclaim against the plaintiff alleging automobile
filed "disclosures of expert opinions" wherein
plaintiff set forth that certain fact witnesses have
expertise and whose trial testimony may include expert
opinions. Plaintiff has not retained any expert witnesses.
Defendant has moved to strike the expert designation of
Sheriff Lacey Perman, EMT Bob Huber, and Mikala Deibert from
plaintiffs expert witness disclosures.
Evid. 702 authorizes the admission of expert testimony in the
form of an opinion 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Court must determine under Rule 702(a) whether 1) the
proposed expert possesses specialized knowledge 2) that will
assist the trier of fact to determine a fact in issue. The
Court must determine under Rule 702 (b-d) whether the
proposed expert testimony is reliable. The district court
acts "as a gatekeeper in determining whether the
proposed expert's testimony both is relevant and rests
upon a reliable foundation." United States v.
Geddes. 844 F.3d 983, 991 (8th Cir. 2017). Plaintiff
bears the burden to prove the admissibility of his proposed
expert testimony by a preponderance of the evidence. Menz
v. New Holland North America. Inc.. 507 F.3d 1107, 1114
(8th Cir. 2007), Lauzon v. Senco Prods.. Inc.. 270
F.3d 681, 686 (8th Cir. 2001).
collision occurred on a rural gravel road. Defendant and his
passengers may have been hunting in the area and
defendant's vehicle was either stopped or moving slowly
just over the crest of a hill when plaintiff, driving a semi
pulling a trailer of hay, came over the hill and struck
defendant's vehicle. Plaintiff apparently intends to
elicit testimony from Sheriff Perman regarding plaintiffs
negligence, that is, whether plaintiff could have avoided the
collision; from EMT Huber that he smelled alcohol at the
scene of the collision (which has no relevance, unless there
is some evidence that the driver of the vehicle in question
had been consuming alcohol which affected his driving
abilities); and from Ms. Deibert concerning driving
"etiquette" near the scene of the collision.
outset, I must determine whether the proposed experts possess
specialized knowledge concerning the subject matter of their
proposed testimony. "A witness may be qualified by
knowledge, skill, experience, training, or education."
United States v. Holmes. 751 F.3d 846, 849 (8th Cir.
2014). "[A]n individual can qualify as an expert where
she possesses sufficient knowledge gained from practical
experience, even though she may lack academic qualifications
in the particular field of expertise." United States
v. Johnson. 860 F.3d 1133, 1140 (8th Cir. 2017)
(quoting Fox v. Dannenberg. 906 F.2d 1253, 1256 (8th
Cir. 1990)). It is sufficient if the experts in question base
their opinions on relevant evidence they have observed, their
specialized knowledge in the field, their review of the
scientific literature, and discussions with other experts in
the field. United States v. Carlson. 810 F.3d 544,
553 (8th Cir. 2016). Where the proposed testimony does not
rest on scientific foundations, the "relevant
reliability concerns may focus upon personal knowledge or
experience." United States v. Holmes, 751 F.3d
problem with the proposed testimony of Sheriff Perman is that
he did not apparently take any measurements or do any
meaningful accident reconstruction. Whether or not he
possesses experience or training in determining the cause of
an accident, he would not be allowed to opine on the whether
or not either plaintiff or defendant followed the rules of
the road, was negligent, or had any fault in the causation of
the proposed testimony concerning alcohol consumption, it
does not take expertise to detect the odor of alcohol.
However, absent scientific evidence that either driver was
intoxicated or had a significant blood alcohol level, such
testimony would not be admissible to infer that either driver
in no event would a lay witness be allowed to testify as to
their "expert" opinion as to driving etiquette.
Negligence in South Dakota is judged by the rules ...