This dispute arises from an incident that occurred on February 6, 2021, in which Plaintiff Lee James Barley was injured when he fell while loading his belongings into a trailer.
Defendants ArcBest II, Inc. and Old Dominion Freight Line, Inc. filed motions to exclude the opinions of Mark Respass, Jeffrey Marksthaler, and Michael Freeman.
Trucking Expert Witness
Mark Respass has 40 years of training and experience in the commercial trucking industry, including fleet safety management, risk management, driver recruiting and training, accident investigation.
Engineering Expert Witness
Jeffrey R. Marksthaler is a licensed Professional Engineer with 35 years of experience in heavy manufacturing facilities and production management, manufacturing process and quality control, mechanical and chemical testing, accreditation, failure analysis and risk assessment for processes, materials, components, consumer products, food product, and consumer goods.
Forensic Medicine Expert Witness
Michael David Freeman is credentialed as a Fellow of the Royal College of Pathologists (UK), Fellow of the Faculty of Forensic and Legal Medicine (FFLM) of the Royal College of Physicians (UK) and member of the British Association in Forensic Medicine.
He has also taught courses in forensic medicine, forensic epidemiology, and injury epidemiology at the Oregon Health and Science University School of Medicine and Maastricht University.
Discussion by the Court
I. Motion to Exclude Expert Opinions of Mark Respass
To begin with, Defendants sought to exclude the opinions of Respass on the grounds that he lacked the requisite qualifications, expertise, or experience to render expert opinions regarding Old Dominion’s scheduled inspections and maintenance of the trailer door and strap or the applicable Federal Motor Carrier Safety Regulations (“FMCRs”) regarding annual inspections and maintenance.
Respass made several findings including that the strap at issue was “badly worn and weakened” when the trailer was delivered to Plaintiff, the Old Dominion driver who delivered the trailer failed to notice that the strap was badly worn and weakened, and Old Dominion fell below a reasonable standard of care for a motor carrier by not maintaining the roll-up door’s mechanical components and the pull strap.
However, Respass conceded that he did not have “expertise in pull straps” or in “determining what causes them to fail” or any expertise “in what fibers or materials were involved in this particular strap.” He also stated that he based his finding that the strap was “badly worn and weakened” when the trailer was delivered to Plaintiff on “common sense, that this is an old strap.” When asked to “put aside common sense” and to provide what “expertise he has in determining why this particular strap failed,” Respass stated that he “would not have any scientific expertise as to why it failed.”
Accordingly, the Court concluded that Plaintiff has not established by a preponderance of the evidence that Respass’ opinions are based on adequate facts or data or on a reliable methodology. Plaintiff also has not established that Respass is qualified as an expert by his “knowledge, skills, experience, training, or education” or that his technical or other specialized knowledge will help the trier of fact.
II. Motion to Exclude Expert Opinions of Jeffrey Marksthaler
A. Marksthaler’s Initial Expert Report
Defendants sought to exclude the opinions of Marksthaler contained in his initial expert report on the grounds that he lacked the requisite education, training, experience, and expertise to qualify as an expert in the testing and analysis of the door strap or operation, maintenance, repair, or inspection of commercial trailer doors, and he failed to apply reliable scientific principles and methodology to his analysis and instead relied on speculation and intuition.
Marksthaler testified that he is a metallurgical engineer and his only education on woven materials involved a “very small amount” of a one-semester general materials undergraduate course. Marksthaler admitted that he “had no experience in what might cause fraying polyester or similar fibers or materials, such as a strap.”
When asked for the source of Marksthaler’s information and opinion that fibers fray more easily when they are dirty, he responded that it was a video on YouTube regarding climbing rope rather than a scientific article or similar.
B. Marksthaler’s Rebuttal Report
In his rebuttal report Marksthaler opined that “immediately before failure, only a small section of the strap width remained.” At deposition, however, Marksthaler conceded that “he would have to think of a way” to scientifically determine when various sections of the strap failed.
Marksthaler agreed at deposition that the idea of shock loading “occurred to [him]” before his first expert report, but he did not make any mention of shock loading in his initial report. He also agreed that none of the defense experts mentioned or discussed shock loading.
Marksthaler conceded that he had the information to opine about shock loading before he produced his first report and the record reflects that defendants’ experts did not mention or discuss shock loading. Accordingly, the Court concludes that Marksthaler’s opinion regarding shock loading in his rebuttal report is precluded by Rule 26.
The Court concluded that Plaintiff has not established by a preponderance of the evidence that Marksthaler’s opinions are based on adequate facts or data or on a reliable methodology.
C. Motion to Strike Marksthaler’s Declaration
Defendants filed a motion to strike Marksthaler’s declaration, which was submitted in support of Plaintiff’s response to Defendants’ motion to exclude, on the grounds that most of the declaration contradicted his deposition testimony, contained hearsay, and was not supported by the evidence.
The Court granted Defendants’ motion to strike to the extent that it would disregard the portions of the declaration that contradicted Marksthaler’s deposition testimony, were not supported by the evidence, and/or did not contain admissible evidence.
III. Motion to Exclude Expert Opinions of Michael Freeman, Ph.D.
A. Freeman’s Qualifications
Freeman acknowledged at deposition that he is an epidemiologist “with a focus on traffic crash related injuries,” not an engineer or a biomechanical engineer and he does not have a degree in engineering, biomechanical engineering, biomechanics, kinematics, or kinetics.
Plaintiff also cited several cases in which courts have admitted Freeman as an expert, but these cases involved traffic accident reconstructions, a topic in which Freeman is well-versed.
B. Reliable Principles and Methods
On September 9, 2024, Adanty completed a report in which he opined that Plaintiff’s injuries are not consistent with him falling directly on to his elbows and that if the strap broke as Plaintiff reported, “he would not have fallen in a movement pattern that would result in his body landing on the left side of the ramp.”
In his rebuttal report Freeman, however, stated that “absent video footage of the fall, there is no way to determine the dynamics of the fall, beyond the basic description” provided by Plaintiff at deposition where he stated that he fell backwards.
When asked what biomechanical principles supported Freeman’s view that Plaintiff fell backwards off the ramp, Freeman responded that “it’s Plaintiff’s recollection. I don’t have a video to say what he says isn’t true.”
The Court concluded that Plaintiff has not established by a preponderance of the evidence that Freeman is qualified to offer a rebuttal opinion on the biomechanical aspects of the incident at issue or that Freeman applied reliable principles and methods under Rule 702 or Daubert.
C. Freeman’s Declaration
Defendants also filed a motion to strike Freeman’s Declaration on the basis that it is contradicted by this deposition testimony, reports, and curriculum vitae. The Court granted Defendants’ motion to strike to the extent that it will disregard the portions of Freeman’s declaration that are contradicted by his deposition testimony, are not supported by the evidence, and/or do not contain admissible evidence.
Held
The Court granted Defendants’ motions to exclude the opinions of Mark Respass, Jeffrey Marksthaler, and Michael Freeman.
Key Takeaway
An expert may submit a rebuttal report if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party. Using a rebuttal report as a backdoor to introduce analysis that could have been included in the opening report is squarely foreclosed by Rule 26.
Case Details:
| Case Caption: | Barley, II V. Arcbest II, Inc. |
| Docket Number: | 3:22cv1921 |
| Court Name: | United States District Court, Oregon |
| Order Date: | March 11, 2026 |
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