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Wientjes v. Kanyuh

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

January 17, 2019

CODY R. WIENTJES, Plaintiff,
v.
WAYNE KANYUH, Defendant.

          ORDER

          CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 negligence.

         Plaintiff 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.

         Fed. R. 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         The 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).

         The 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.

         At the 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 at 850.

         The 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 collision.

         As for 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 was negligent.

         Finally, 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 ...


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