Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for damages stemming from a motor vehicle accident that occurred in April 2022.
Specifically, Plaintiffs alleged that at approximately 12:21 a.m. on April 1, 2022, Plaintiff Zhu was traveling westbound on a two-lane section of Interstate 70 in Bond County, Illinois, as part of his employment. The right lane of the highway contained markings for ongoing construction, but no construction work was being performed at that time.
At or near milepost 37.6 westbound, there was a manmade pothole (i.e., a cutout) that was only marked by cones in the right lane. According to Plaintiff, however, the pothole protruded into the left lane without any signs or cones signifying the full length of the protrusion. As a result, Plaintiff Zhu’s vehicle crashed into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff Zhu to suffer severe injury and expense.
Defendant Keeley filed three Daubert motions seeking to exclude the expert reports, testimony, and opinions of Michelle Albers, Dr. Richard G. Bowman, and Dr. Helena Breuer.
Vocational Rehabilitation Expert Witness
Michelle J. Albers has a Master of Science degree in rehabilitation psychology from the University of Wisconsin and has obtained numerous licenses and certifications related to rehabilitation counseling and life care planning. In addition, she has practiced vocational rehabilitation counseling for over 27 years, has worked as a vocational and life care planner for over 17 years, and has served as a social security vocational expert since 2004. Albers has also served as an expert witness in numerous cases across various state and federal courts.
Physical Medicine and Rehabilitation Expert Witness
Dr. Richard Graham Bowman earned his M.D. from West Virginia University, and he specializes in physiatry (physical medicine and rehabilitation). In addition, Bowman has been certified by the World Institute of Pain as a Fellow of Interventional Pain Practice and he has been certified by Capital University School of Law as a Certified Life Care Planner. He has also served on the International Commission on Health Care Certification’s Certified Life Care Planner Board of Commissioners.
Transportation Engineering Expert Witness
Dr. Helena K. Breuer obtained a master’s degree and a bachelor’s degree in civil engineering, both of which included a focus in transportation engineering. In addition, she obtained a Ph.D. in civil engineering with a specialization in transportation engineering.
Breuer also completed 280 hours of accident reconstruction-related training approved by the Accreditation Commission for Traffic Accident Reconstruction.
Discussion by the Court
I. Michelle Albers’ Expert Opinions
Defendant Keeley challenged the sufficiency of the facts and data underlying Albers’ opinions, as well as the methodology and reliability of those opinions.
However, Albers’ opinions about Plaintiff Zhu’s inability to work and lost earning potential were based on sufficient facts and data. Her expert report considered hundreds of documents including dozens of medical and billing records, depositions, tax returns, photographs and videos, and numerous other discovery documents from this case.
Defendant Keeley next contended that Albers failed to rely on personal observations of Plaintiff to reach her opinions. Albers conducted a clinical interview of Plaintiff Zhu, relied on the depositions of Plaintiff Zhu and his family, and also relied on the medical records and findings of Plaintiff Zhu’s doctors.
Next, Defendant Keeley argued that Albers’ testimony should be excluded because she did not follow a reliable methodology, and thus “the opinions included in her report are unreliable because they amount to mere speculation or conjecture.”
While Defendant Keeley contended that Albers merely explained what those methods entail, without also explaining how they were applied in this case, the Court does not believe that to be true. Rather, Albers’ report demonstrates how she applied those accepted methodologies to the facts of Plaintiff Zhu’s case.
Finally, Defendant Keeley argued that Albers’ testimony and report should be excluded because her opinions would not assist the trier of fact due to the lack of data underlying her opinions and errors or inconsistencies in her methodology. The Court has already rejected Defendant Keeley’s data and methodology arguments above.
Thus, all that is left is to determine whether Albers’ opinions may be helpful to the jury. Suffice to say, the Court believes Albers’ expert opinion as to lost earning capacity would be relevant and helpful to the trier of fact in determining damages, if applicable.
II. Dr. Richard Bowman’s Expert Opinions
Defendant Keeley first argued that Bowman’s evaluation is not supported by sufficient facts or data. In this regard, Defendant Keeley emphasizes that Bowman “did not perform any physical tests or any kind of investigation” into Plaintiff Zhu’s capabilities and instead relied on Plaintiff Zhu’s subjective self-reporting. However, as shown in Bowman’s report, he relied on extensive medical records from Plaintiff Zhu’s providers and also evaluated Plaintiff Zhu over Zoom.
Defendant Keeley argued that Bowman relied exclusively on the conclusions of other medical providers, rather than the underlying data generated by them.
The Court rejected Keeley’s argument that Bowman’s opinion could only rely on the “data generated” by Plaintiff Zhu’s medical providers and not their overall conclusions. To the contrary, had Bowman relied solely on the data Plaintiff Zhu’s doctors generated, that would have raised much greater concerns as to Bowman’s qualifications and methodology, absent a showing that he was qualified to interpret underlying data from every type of medical field at issue in this case.
Defendant Keeley’s challenge related to whether Plaintiff Zhu has and will continue to avail himself of the treatment Bowman accounted for in his reports is also a question of weight, not admissibility. Admittedly, evidence that Plaintiff Zhu has not, or will not, avail himself of treatment that Bowman anticipated in his life care plan is something that goes to the weight of Bowman’s plan and cost estimates.
However, Plaintiff Zhu’s alleged treatment noncompliance does not impact the reliability of Bowman’s methodology. And, in regard to methodology, Bowman reasonably relied upon medical opinions as to the care Plaintiff Zhu will need and then expanded upon that information by using his expertise to estimate future costs. That is an appropriate methodology for determining Plaintiff’s care costs.
III. Helena Breuer’s Expert Opinions
a. Breuer’s Qualifications as an Expert
As Plaintiffs admit, this is Breuer’s “first case as an expert.” Obviously, however, the Court’s inquiry focuses on Breuer’s qualifications and not her experience or lack thereof as an expert witness.
Breuer did not dispute the fact that she is not a licensed engineer, has not designed a traffic control plan, has not assisted or evaluated the setup of an active traffic control plan, and has no prior work experience related to commercial truck drivers in construction zones.
Here the purpose of Breuer’s investigation and report was “to determine if the temporary traffic controls (TTC) at the time of the incident (1) met the requirements outlined in the approved TTC plans, (2) adequately warned road users of hazards created by work activities, and (3) provided adequate positive guidance for drivers to safely navigate the work zone.” Accordingly, given Breuer’s extensive education in civil engineering with a focus in transportation engineering along with her accident reconstruction training, the Court found that she is qualified and has an adequate foundation to answer the above questions.
Defendant Keeley has also argued that, even if Breuer is qualified to provide expert opinions on certain transportation related topics, such as passenger vehicles and commercial vehicles at rest, she is not qualified to provide expert opinions for situations involving “extensive interstate construction and commercial vehicles traveling on a busy interstate.”
Thus, to the extent Breuer has greater specialized experience in passenger vehicles or commercial vehicles at rest, as opposed to “commercial vehicles traveling on a busy interstate,” that distinction goes to the weight of her expert opinions, not their admissibility.
b. Sufficient Facts and Data
Defendant contended that Breuer’s report is lacking facts and data because: (1) she never visited the crash site or performed any sort of scene examination; (2) she has no knowledge of how traffic control measures were placed at the end of the construction day; (3) she lacks knowledge as to the reasons for the cutout extension; and (4) her opinions rely on unsupported assumptions. Again, the Court is not persuaded.
Analysis
For one, even if the Court assumes that there was value in Breuer visiting the crash site several years after the incident in question, Defendant Keeley’s argument improperly presumes that the failure to personally visit the site renders an expert’s opinions unreliable. This is an argument that has already been rejected in this circuit on multiple occasions.
Turning to Defendant Keeley’s next contention—that Breuer has no knowledge of how traffic controls were placed at the end of the workday—the Court again found that this challenge would, at most, go to the weight of Breuer’s opinions. For one, Breuer’s report demonstrates that several individuals associated with Defendant Keeley have claimed that their placement of safety barrels was permissible at the time of the accident. Put simply, Breuer’s expert opinion on the placement of safety barrels at the time of the accident is not impacted by the separate question of whether those safety barrels were initially placed in different, suitable locations.
Defendant Keeley also argued that Breuer’s opinions should be excluded because she lacks knowledge as to the underlying cause for the cutout extension (i.e., the manmade pothole referenced in the Complaint). The Court questions how Breuer’s alleged lack of knowledge as to the underlying reasoning for the extension of the cutout impacts her opinions and testimony related to traffic safety.
For similar reasons, the Court rejected Defendant Keeley’s argument that Breuer lacked knowledge to provide expert opinion as to the failure to inform the Illinois Department of Transportation about the cutout extension. Undoubtedly, if Defendant Keeley possesses evidence tending to demonstrate that the engineer in question was informed of the extension, they are free to use that evidence to challenge Breuer’s opinion that there is no evidence the engineer was informed.
c. Methodology
Defendant Keeley challenged: (1) Breuer’s use of photogrammetry to form her opinion as to the extension of the cutout; and (2) her failure to look at other factors that may have contributed to the incident.
Breuer’s report first describes the site and the accident. It then lays out the purpose and utility of temporary traffic control measures before discussing the hazard created by the extension of the cutout. Breuer references numerous resources and evidence discussing/specifying what temporary traffic control occurred in this case and what was required under the applicable plans and standards. Her report then outlines the responsibilities the Defendants failed to follow for proper temporary traffic control. Finally, her report lists seven findings related to the traffic hazard at issue and the failure to take appropriate actions to protect drivers from it.
To the extent Defendant Keeley has even challenged Breuer’s overall methodology, the Court is not persuaded. Breuer’s report provides sufficient context, explains and relies on applicable standards and plans, and analyzes Defendant Keeley’s alleged deviation from those requirements to reach her opinions. In other words, Breuer arrived at her opinions with appropriate soundness and care.
Moreover, regarding the specific photogrammetry challenge Defendant Keeley has raised, the Court found that such an approach was permissible because it satisfies the reliability requirements specified in Daubert.
Additionally, the Court is not persuaded by Defendant Keeley’s argument that Breuer’s methodology was inadequate because she failed to use the same methodology to “determine Plaintiff’s lane positioning” or “the width of other cutouts in the construction zone.” If Defendant Keeley wanted an expert to opine on Plaintiff’s lane positioning or the adequacy of temporary traffic controls for other cutouts in the area, it should have retained its own expert to conduct that analysis.
d. Breuer’s Report is Relevant and Will Assist the Trier of Fact
Defendant avers that Breuer’s report and opinions are unreliable, provide little to no independent investigation, and can readily be observed through evidence in the record (and underlying standards and specifications cited therein). The Court did not find any of these arguments convincing.
The Court need not rehash its prior finding that Breuer’s methodology was reliable. It was. Likewise, that methodology demonstrates that Breuer provided ample independent investigation. In fact, the Court found it curious that Defendant Keeley challenged Breuer’s use of, among other things, photogrammetry, while also claiming that she provided no useful independent analysis. Regardless, the Court found that Breuer’s report relied upon useful, independent analysis of temporary traffic control standards and compliance. Moreover, contrary to Defendant Keeley’s argument, the Court did not believe that the pictures and other evidence in the record adequately establish whether traffic control measures were appropriately followed. In addition, contrary to Defendant’s assertions, such a topic is not within the purview of the average juror.
Held
The Court denied Defendant Keeley & Sons, Inc.’s Daubert motions seeking to exclude the testimony of Michelle Albers, Dr. Richard Bowman, and Dr. Helena Breuer.
Key Takeaway
Medical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions. This is particularly true in the area of life care planning because it would be virtually impossible to find an expert life care planner who was qualified to opine on every distinct type of underlying injury.
Case Details:
| Case Caption: | Zhu V. Keeley & Sons, Inc. |
| Docket Number: | 3:24cv908 |
| Court Name: | United States District Court, Illinois Southern |
| Order Date: | July 02, 2026 |
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