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Sherwood v. Bnsf Railway Co.

United States District Court, D. Idaho

February 25, 2019

BNSF RAILWAY COMPANY, a Delaware corporation d/b/a The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.


          B. Lynn Winmill, U.S. District Court Judge


         On July 14, 2014, Plaintiff Robert Sherwood cycled over a railroad crossing near Sandpoint, Idaho. He alleges that his front tire lodged in a narrow gap between two cement panels at the crossing, which caused him to be thrown over his handlebars and onto the pavement. Defendants contend that Mr. Sherwood over-braked, which caused him to flip over his handlebars. Mr. Sherwood suffered severe injuries and now sues for negligence.

         Trial is scheduled to begin on March 4, 2019. Currently before the Court are several motions in limine. See Dkts. 162, 163, 164, 167, 173, 174, 175.[1] Having considered the briefs and the record in this case, the Court has determined that oral argument is unnecessary and issues the following Order.


         Many of the pending motions relate to expert witnesses. Whether and to what extent experts may testify at trial is addressed under the well-known standard first enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993), and now set forth in Rule 702 of the Federal Rules of Evidence. Rule 702 establishes several requirements for permitting expert opinion testimony. First, the evidence offered by the expert must assist the trier of fact either to understand the evidence or to determine a fact in issue. Primiano v. Cook, 598 F.3d 558, 563 (9th Cir. 2010); Fed.R.Evid. 702. The witness must also be sufficiently qualified to render the opinion. Id. at 563. If specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified by knowledge, skill, experience, training or education may offer expert testimony where: (1) the opinion is based upon sufficient facts or data, (2) the opinion is the product of reliable principles and methods; and (3) the witness has applied those principles and methods reliably to the facts of the case. Fed.R.Evid. 702; Daubert 509 U.S. at 592-93; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

         The inquiry is a flexible one. Primiano, 598 F.3d at 564. Ultimately, a trial court must “assure that the expert testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. In determining whether expert testimony is reliable and relevant, the Court must determine “whether the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue.” Boyd v. City and County of San Francisco, 576 F.3d 938, 945 (9th Cir.2009). Daubert and its progeny reveal that exclusion of expert testimony is the exception rather than the rule. Fed.R.Evid. 702, Adv. Comm. Notes (2000).


         1. Plaintiffs' Motions in Limine

         At issue are Plaintiffs' motions to exclude testimony from three defense experts: (1) Timothy Arnold, a bicyclist and bicycle mechanic, (2) Dr. Ron Klein, a psychologist, and (3) Cloie Johnson, a life care planner. The Court will address each motion in turn.

         A. Motion to Limit Testimony of Timothy Arnold (Dkts. 43, 162)

         At trial, Defendants intend to offer expert opinion testimony from Timothy Arnold. Mr. Arnold is an experienced cyclist and a bicycle mechanic. See Dkt. 43-6. If permitted to do so, he plans to testify as to the cause of plaintiff's accident. He will opine that plaintiff slammed on his brakes and flipped over the handlebars because only the front brake was working. See Id. at 11.

         Plaintiffs argue that Mr. Arnold is qualified only to the extent he wishes to testify as to “the cycling standard of care - i.e., whether it was safe to ride over the crossing at fifteen to eighteen miles per hour.” Dkt. 90, at 9. Otherwise, to the extent Mr. Arnold intends to testify as to why Mr. Sherwood crashed, or the dynamics of the crash, Plaintiffs believe this testimony should be excluded because Mr. Arnold is not a trained crash reconstructionist. Id. Defendants attempt to distinguish Mr. Arnold's opinion from that of a reconstructionist by asserting his opinion is based on technical and specialized knowledge in bicycles which qualifies him to opine on “factual scenarios that cause specific damage to bicycles.” Dkt. 79 at 2.

         The Court generally agrees with Plaintiffs. Although Mr. Arnold is an able bicycle mechanic and rider, he bases much of his planned opinion testimony upon factors that involve accident reconstruction, including, for example, Mr. Sherwood's speed at the time of the accident. See, e.g. Dkt. 43-6 at 11. In addition, Mr. Arnold's report relies upon a “review of the photographs available” and an “inspection of the scene;” a personal reenactment of the accident by riding his bike over the same railroad crossing; and an assessment of Mr. Sherwood's “alleged line” of travel the day of the accident. Id. at 4, 8. These aspects of Mr. Arnold's opinion go beyond the scope of his expertise as a bicyclist and bicycle mechanic and enter the realm of accident reconstruction-an area in which Mr. Arnold is not qualified to offer expert testimony.

         Not all Mr. Arnold's anticipated testimony exceeds the scope of his qualifications. Mr. Arnold is an able bicycle mechanic and rider with proper qualifications in this area. See Dkt. 43-6 at 2, 12-13. He has operated a bicycle shop for nearly twenty-five years, was a professional bicycle racer, taught community college classes on bicycle maintenance, and has experience designing and building bike wheels and testing relevant products. Dkt. 43-5 at 7, 20, 50. In his report, Mr. Arnold indicated that he inspected Mr. Sherwood's bicycle and would offer opinions on “maintenance defects, ” the “Trek Incite 8i bicycle computer, ” information regarding safe cycling behavior, and the “mechanics” that were involved in the accident so far as it relates to the “mechanics” of bicycles and not “mechanics” of how accident may have occurred. Dkt. 43-6 at 2, 6-7, 10, 12-13. Mr. Arnold must avoid providing testimony that re-constructs the accident, but may testify as to the nature of the damage he observed to Mr. Sherwood's bicycle as long as he relies on his technical or specialized knowledge and experience related to bicycles.

         Therefore, Plaintiffs' motion to exclude Mr. Arnold's testimony will be granted to the extent the witness attempts to offer expert opinion regarding accident reconstruction, but otherwise is denied. The Court will allow Mr. Arnold to offer expert opinions regarding: (1) general bicycle safety; (2) bicycle maintenance; (3) the condition of Mr. Sherwood's bicycle; (4) the general phenomenon of a bicycle somersaulting if the rider applies too much pressure on the front brake; and (5) the nature of the damage he observed to Mr. Sherwood's bicycle.

         B. Motion to Exclude Timothy Arnold's Video Recreations (Dkt. 167)

         In a related motion, Plaintiffs ask the Court to exclude videos Mr. Arnold created as part of his investigation. Dkt. 167. Mr. Arnold used a GoPro camera attached to his helmet and recorded himself riding over the railroad crossing several times. Id. Plaintiffs argue these videos should be excluded because they are irrelevant and prejudicial. See Dkt. 167-1 at 2 (citing Fed.R.Evid. 401, 402, 403). Specifically, Plaintiffs argue BNSF cannot carry its burden of demonstrating that Mr. Arnold's video is substantially similar to the event in issue, i.e. Mr. Sherwood's bicycle crash on July 14, 2014. Id. at 4-5. As Defendants point out, however, the video serves to show the jury “what it looks like to approach and ride across a railroad crossing at 18 miles per hour - which is the approximate speed all experts in this case used in formulating their opinions, for both parties.” Dkt. 192, at 3. In other words, Defendants acknowledge the videos are not intended to serve as a reconstruction of Mr. Sherwood's accident. The video may assist the jury in providing it a generalized understanding of the accident scene and what was involved in negotiating the intersection at the same speed as Mr. Sherwood.

         However, as such, the video is, at most, a demonstrative exhibit with no substantive relevance - i.e., it may be helpful to the jury but does not make any disputed fact more or less probable than it would be without the evidence. Accordingly, the exhibit will not be admitted as an exhibit at trial. However, the Court will allow it to be played to the jury as a demonstrative with an appropriate limiting instruction advising the jury of the very limited purpose for which the video is being shown to them. It will not accompany the jury into the jury room during their deliberations.

         C. Motion to Limit Testimony of Dr. Ronald Klein's (Dkt. 44, 164)

         Plaintiffs also seek to exclude portions of Dr. Ronald Klein's testimony, specifically Dr. Klein's opinions regarding: (1) Mr. Sherwood's motives for pursuing this lawsuit; (2) accident reconstruction and Mr. Sherwood's character; and (3) the objectivity of Mr. Sherwood's treating medical providers. Dkt. 44 at 1-3.

         (1) Dr. Klein's Opinions Regarding the ...

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