United States District Court, D. Idaho
ROBERT WILLIAM SHERWOOD and PAMELA LOUISE SHERWOOD, husband and wife, Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation d/b/a The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, U.S. District Court Judge
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
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. Having considered the briefs and
the record in this case, the Court has determined that oral
argument is unnecessary and issues the following Order.
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).
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).
Plaintiffs' Motions in Limine
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.
Motion to Limit Testimony of Timothy Arnold (Dkts. 43,
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.
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.
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.
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.
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.
Motion to Exclude Timothy Arnold's Video Recreations
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.
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.
Motion to Limit Testimony of Dr. Ronald Klein's (Dkt. 44,
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.
Dr. Klein's Opinions Regarding the ...