This is a case under the Federal Employers’ Liability Act (“FELA”) to recover damages for personal injuries Plaintiff Rachael Snider alleged that she sustained during the scope of her employment working as a conductor for the Defendant railroad.
Union Pacific has offered the testimony of Dr. Jeffrey P. Broker. Snider sought to exclude Broker’s testimony on the basis that he is unqualified and utilized an unreliable methodology.
Biomechanics Expert Witness
Dr. Jeffrey Palmer Broker holds a Ph.D. from the University of California at Los Angeles in Biomechanics and Motor Control. He is an associate professor of biomechanics at the University of Colorado at Colorado Springs, the owner of the consulting firm Echelon Biomechanics, and an advisor in sport biomechanics to the United States Olympic Committee.
He has published dozens of articles, books, chapters, and review articles, and testified as an expert witness in other FELA cases.
The Court found that Broker is qualified to provide his biomechanical analysis. He has a Ph.D. in biomechanics and motor control and has extensive experience, including in publishing and testifying, on topics in that field. However, to the extent Broker attempts to offer expert testimony on medical topics, like the nature of Snider’s preexisting back injury and its likely role in her current pain, he is unqualified to do so.
He has no medical expertise and may only opine on matters relating to biomechanics. Likewise, Broker is not qualified to opine on Snider’s credibility, such as implying she is exaggerating her symptoms or misrepresenting when they began.
Lastly, Union Pacific agreed that Broker cannot opine on or analyze Union Pacific’s internal rules, such as regarding handholds on stairs. The Court agreed that Broker is not qualified as an expert in railroad rule interpretation and may discuss Union Pacific’s rules only as necessary to provide context to the biomechanical aspects of his analysis.
B. Reliability
Snider next argued that Broker’s opinions are unreliable because he based them on inaccurate photographs of the stairs in question, he did not conduct any biomechanical testing, and his method is not scientific.
Snider’s critiques of Broker’s analysis are well-taken. Importantly, Broker himself admitted that in two of his three reports, he relied on inaccurate photographic depictions of the stairs in question that showed significantly more anti-slip material on the steps than existed at the time of the accident. However, he claimed that this error did not change his ultimate conclusion that Snider was responsible for the fall due to overstepping, not due to slipping on the step regardless of how much anti-slip material was worn away. Ultimately, Broker’s mistaken reliance on inaccurate photographs as well as Snider’s other critiques about the lack of hands-on testing Broker performed go to credibility, not admissibility.
Broker adequately explained the scientific basis for his methods as being rooted in biomechanics such that the Court is convinced he employed a sufficiently reliable methodology.
Snider will be free to criticize his methods and explore his purported mistakes on cross-examination, and her own expert will be able to explain why he believes the additional testing he conducted resulted in a better analysis that Broker’s. The Court declined to exclude Broker’s testimony in its entirety.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude the testimony of Jeffrey Broker.
Key Takeaway
When making the reliability inquiry, the Court should focus on principles and methodology, not on the conclusions that they generate. However, conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data.
Plaintiff Tabria Montgomery’s father, Michael Montgomery sustained fatal injuries while operating a Bobst Mastercut 145 PER 2.0 Die-Cutter machine. She asserted claims individually on behalf of herself and her father’s estate against Defendant Bobst Group North America, Inc. (“Bobst NA”) for strict products liability, negligence, wrongful death, and survival.
Plaintiff sought to exclude the opinions of Bobst NA’s expert Alfred P. Bowles II, M.D.
Biomechanics Expert Witness
Alfred Palmer Bowles II, M.D. has a Bachelor of Science in mechanical engineering and is a Doctor of Medicine who was a licensed physician for over twenty-five years in the fields of general medicine and general surgery. He served in the United States Air Force Reserve for twenty-one years as a credentialed general surgeon and flight surgeon. He is also an accredited traffic accident reconstructionist. Bowles received post-graduate education in trauma medicine, accident reconstruction, and biomechanics applied to the investigation of impact trauma.
Plaintiff contended that Bowles is not sufficiently qualified to offer his opinions regarding cause and manner of death and the duration of conscious pain and suffering because he is primarily a biomechanics expert and not a forensic pathologist.
As Bobst NA explained, Bowles has over twenty-four years of experience in the fields of general surgery, general medicine, and emergency medicine. Bowles also testified that he has previously provided professional expert opinions in litigation matters regarding the duration of conscious pain and suffering.
He testified that “the duration of conscious activity . . . is where my work starts and ends, with the understanding that once your conscious activity has ended, then you’re no longer able to perceive or process . . . the thoughts or the feelings of . . . pain.” He explained that in the cases that he has worked on, “usually there is some allegation that relates to something or a concept that is like pain or suffering.”
Given his experience and training, the Court found that Bowles satisfied the liberal standards for expert qualification even if he is not the most qualified expert to opine on the subjects at issue.
Held
The Court denied the Plaintiff’s motion to exclude the opinions of Defendant Bobst North America, Inc.’s expert Alfred Bowles.
Key Takeaway
A medical degree is not a prerequisite for qualification as an expert capable of testifying regarding the cause of a person’s injuries. In other words, an expert need not possess a particular medical specialty to testify regarding the cause of Montgomery’s death or the duration of any conscious pain and suffering he may have experienced.
Case Details:
Case Caption:
Montgomery V. Bobst Mex SA
Docket Number:
2:24cv367
Court Name:
United States District Court, Pennsylvania Eastern
This suit involves the unnecessary use of excessive force by police officers against a black man suffering from a mental health crisis.
On November 21, 2021, during a mental health crisis, Jabari Asante-Chioke encountered Louisiana State Police (“LSP”) Officer Nicholas Dowdle and East Jefferson Levee District (“EJLD”) Officers Jonathon Downing and Gerard Duplessis (collectively referred to herein as “Officer Defendants”
Plaintiff, Malikah Asante-Chioke, individually, and on behalf of her father, Jabari Asante-Chioke, herein filed this action against the Defendants, accusing them of failure to use less-than-lethal methods in accordance with training and state and federal law, to subdue Mr. Asante-Chioke.
LSP Defendants argued that the Court should exclude Plaintiff’s expert John C. Gardiner, along with his testimony and opinions, because he is unqualified, his methodology is unreliable, and his testimony is irrelevant.
EJLD Defendants made similar arguments, but they also argued that Gardiner’s testimony will not help the factfinder.
Biomechanics Expert Witness
Dr. John Carter Gardiner, PhD PE holds a Bachelor of Science in Mechanical Engineering and a Doctor of Philosophy in Bioengineering. He is a Senior Biomechanical Engineer who conducts biomechanical analysis of a variety of events including shootings.
Gardiner is a principal and senior biomechanical engineer at MEA Forensic. He joined the firm in 2002 and leads the Biomechanics Group in the Los Angeles office.
LSP Defendants argued that Gardiner is unqualified to opine on the likely source of the shots fired because, apart from his expert reviews, he lacked specific training, education, or experience analyzing bullet trajectory “based on gunshot wounds.”
Gardiner estimates that he has performed biomechanical analyses in “50 different cases involving” gunshot wounds.
LSP Defendants offered no authority which requires Senior Biomechanical Engineers to have specific training, experience, or education in bullet trajectory analysis to opine on the source of each bullet wound. Further, courts have allowed biomechanical engineers, including Gardiner, to opine on the source of wounds in a shooting.
Accordingly, the Court found that Gardiner is qualified to opine on the likely source of Mr. Asante-Chioke’s gunshot wounds.
II. Reliability of Gardiner’s Methodology
LSP Defendants also argued that Gardiner’s methodology is unreliable because he did not calculate or quantify the officers’ exact shooting angles.
Plaintiff contended that Gardiner did not merely “eyeball” the footage and instead considered “the relative positions of each of the three officers to Asante-Chioke, the gunshot wound entrances and exits, the gunshot wound trajectories, and the anatomical postures and positions of Asante-Chioke during the shooting incident.”
This Court agreed with Plaintiff. LSP Defendants offered no authority which requires an expert to quantify or calculate exact shooting angles to opine on shooting source and position.
LSP Defendants also argued that Gardiner’s methodology is unreliable due to alleged inconsistencies and contradictions concerning the timing of certain wound in his report termed as Gunshot Wounds #14 and #15 and his conclusions concerning how many gunshot wounds were consistent with coming from Dowdle during the final 1.1 seconds of the shooting. However, as Plaintiff correctly pointed out, LSP Defendants primarily disputed Gardiner’s conclusions, not his methodology.
III. Relevance of Gardiner’s Opinions
Defendants argued that Gardiner’s opinions are irrelevant to the issue of qualified immunity at this stage of the litigation. LSP Defendants also suggested that Gardiner opined on ultimate causation and damage issues regarding Gunshot Wound #15.
This Court found that most of Gardiner’s opinion is relevant. In his report, Gardiner opines on the likely source of Asante-Chioke’s bullet wounds and when the shooting officers, including Dowdle, likely fired them. Such opinions are relevant to the pertinent qualified immunity issues of “whether Dowdle fired any shots; how many if so; and when, in relation to Asante-Chioke’s actions and death.”
Still, in his report Gardiner also references Chief Forensic Pathologist Dr. Dana Troxclair’s conclusion that the “bullet causing Wound #15 killed Mr. Asante-Chioke.” Opinions and references thereto concerning which bullet killed Asante-Chioke are irrelevant to the limited issue of whether the shooting officers are entitled to qualified immunity when they continued to fire upon him. Accordingly, the Court excluded such opinions and references from Gardiner’s report.
IV. Helpfulness of Gardiner’s Opinions
EJLD Defendants also argued that Gardiner’s testimony will not assist the factfinder because video captures the incident.
Plaintiff argued that neither of EJLD Defendants’ cited cases mention the use of experts or hold that experts cannot assist the factfinder in interpreting facts depicted on video. The Court agreed with Plaintiff.
By opining on the likely source and timing of each gunshot wound, Gardiner will help the factfinder determine whether each of the shooting officers acted unreasonably when they continued to fire upon Asante-Chioke.
Held
The Court granted in part and denied in part the LSP Defendants’ motion to exclude the testimony and opinions of John Gardiner.
The Court denied the EJLD Defendants’ motion to exclude the testimony of Plaintiff’s expert John C. Gardiner.
Key Takeaway:
While Gardiner will be allowed to testify as an expert in this case, but he will not be able to opine or reference opinions on which wound likely killed Asante-Chioke.
Opinions and references thereto concerning which bullet killed Asante-Chioke are irrelevant to the limited issue of whether the shooting officers are entitled to qualified immunity when they continued to fire upon him.
This action arises out of a car accident that took place in April 2022 in Gainesville, Georgia. At the time of the accident, Defendant Darar Kerenso was employed as a driver for HJ Trucking. Plaintiff Charlene Taylor-Thomas was sitting in the driver’s seat of a parked and turned off vehicle with a friend in the passenger seat.
Specifically, the vehicle was parked on a curb near the entrance to a gas station. Kerenso turned his trailer into the gas station parking lot and struck the rear of the Plaintiff’s vehicle.
Consequently, the Plaintiff filed a motion to exclude the testimony of Ian Campbell and Marc Paradiso on grounds that the Defendants’ failed to properly disclose these experts and provide a timely expert report pursuant to Fed. R. Civ. P. 26(a)(2)(B).
Biomechanics Expert Witness
Ian C. Campbell, Ph.D, P.E. is a Senior Managing Engineer at Exponent Engineering & Scientific Consulting. He received his bachelor’s degree in Physics and Mathematics from St. Olaf College and his doctorate in Biomedical Engineering from the Georgia Institute of Technology and Emory University. He is a professionally licensed engineer in the states of Georgia, Texas, and California.
Basically, Campbell conducts research in micromobility products (including electric scooters and bicycles), airbag interactions, and analyzes specific incidents resulting in an injury.
Marc A. Paradiso, M.S., P.E. is a Senior Managing Engineer at Exponent Engineering & Scientific Consulting. He received his bachelor’s degree in Mechanical Engineering from The Georgia Institute of Technology and his master’s degree in Mechanical Engineering from Clemson University. He is a professionally licensed engineer in the states of Georgia, Arkansas, and New York.
Paradiso specializes in the investigation and reconstruction of on- and off-road motor vehicle accidents.
Specifically, Plaintiff contended that the Defendants did not provide either a complete statement or written report from these experts as to the subject of their testimony until March 18, 2025, six days prior to the close of the discovery period. As a result, the Plaintiff had less than a week to review the expert reports, schedule depositions, and identify rebuttal experts.
The Defendants opposed the motion, noting that the Plaintiff did not dispute that the content of their disclosures complied with Rule 26 but took issue only with the timing of their disclosures.
They contended that they disclosed the experts’ identities along with a statement as to their backgrounds, qualifications, and expected opinions and testimony on January 21, 2025, approximately three months before discovery closed on March 24.
The Defendants acknowledged that the full expert reports were not served on the Plaintiff until March 18 but asserted that the Plaintiff informed them in February that, although she intended to depose Exponent, Inc.—Campbell and Paradiso’s employer—under Rule 30(b)(6), she did not intend to depose Campbell and Paradiso themselves. As a result, the Defendants argued, any failure to comply with Rule 26 was harmless.
Analysis
However, the Court did not find exclusion of the Defendants’ experts to be warranted under the facts presented. First, it did not appear that the Defendants actually violated Rule 26 with regard to the timing of their disclosures because both experts were identified and complete expert reports were provided to the Plaintiff prior to the close of discovery on March 24, 2025.
The Court acknowledged, however, that the Defendants’ disclosure of the complete expert report on March 18th gave the Plaintiff a tight timeline to review the report and make strategic decisions before the close of discovery on the March 24th.
Second, the Defendants have presented evidence that they provided the Plaintiff with ample opportunity to depose the experts prior to the close of discovery or even after and that the Plaintiff did not express interest in doing so.
Given the Plaintiff’s apparent decision not to pursue deposing Campbell and Paradiso themselves, and to postpone her scheduled deposition of Exponent, the Court cannot find that any violation of Rule 26 harmed the Plaintiff.
As no trial date has been set and Rule 26(a)(2)(D) gave the Plaintiff 30 days to identify a rebuttal expert once she received the complete expert report, the Court cannot find that the Plaintiff has suffered any harm from the Defendants’ alleged violation.
Held
The Court denied the Plaintiff’s motion to exclude the expert reports of Ian Campbell and Marc Paradiso.
Key Takeaway:
The purpose of Rule 26 is to provide the parties ample opportunity to “prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses.”
Plaintiffs alleged that Defendants former Washington County Sheriff’s Office (“WCSO”) Deputy Defendant Jeffrey Aaron Edwards (“Edwards” or “Deputy Edwards”) and former WCSO Deputy Brian Mizelle (“Mizelle” or “Deputy Mizelle”) used excessive force against them during a March 2, 2022, attempt to transport Plaintiff Gary Thomas (“Thomas”) to the Washington County Courthouse. The factual circumstances in this case primarily surround the transportation of Plaintiff Thomas from a patrol vehicle to the Washington County Courthouse and Plaintiff Mary Moore’s aggressively lunging at Edwards during that attempt, which caused her to be properly struck by Edwards.
Thomas was placed under arrest by Deputy Edwards and was being transported inside the courthouse with the assistance of Deputy Mizelle when Moore interfered with Thomas’ arrest. Thomas became injured while he resisted arrest requiring Edwards and Mizelle to use force to maintain safety and control of this incident.
Defendants Edwards, Barnes, and Mizelle offered the testimony of Albert Vangura to opine on the biomechanics of the interactions between Edwards and Plaintiffs, the cause of Plaintiffs’ injuries, and the position of Edwards’s hand when he struck Moore.
Plaintiffs filed a motion in limine to exclude the testimony of Vangura.
Biomechanics Expert Witness
Albert Vangura is an engineering professional with nearly forty years of experience in biomechanical and human factors evaluations, product design and development, manufacturing, and testing.
He holds a Master of Science Degree in Bioengineering from the University of Pittsburgh, a Bachelor of Science Degree in Exercise and Sports Science, and an Associate of Science Degree in Mechanical Engineering Technology, both from The Pennsylvania State University.
In their motion in limine to exclude Vangura’s opinions and testimony, the Plaintiffs argued that Vangura’s report and opinion lacked any reliable or recognized methodology; therefore, the Court should exclude them.
The Court found that Vangura’s testimony lacked reliability. Vangura did not identify methods or principles underlying his ”bioengineering and biomechanical engineering investigation and analyses.” In fact, when asked about his methodology, Vangura responded that he used the ASTM E620-18. The ASTM E620-18 is not a methodology. It is three pages of standards about forensic or technical reports an expert can use in any field. In other words, it tells the expert how to write their report, not the methodology the expert should follow.
Moreover, Vangura used one of the cited sources in his report, and he misapplied it. Specifically, Vangura cited Accidental Injury, a book that “looks at the applied biomechanics of accidental injuries.” Vangura used findings from Accidental Injury to analyze Moore’s facial injuries. It is undisputed that Defendant Edwards struck Moore in the face intentionally; thus, “observations from accidental injuries” are irrelevant and inapplicable. This fact undermined the reliability of Vangura’s report.
Biomechanics experts frequently address causation issues, but experts addressing causation must demonstrate how and why they eliminated other causes when reaching their conclusions. Vangura never mentions if or how he eliminated other causes when he opines on proximate cause.
Relevance
Plaintiffs argued that Vangura’s testimony consisted of common sense observations. Vangura spent most of his report narrating and characterizing the video evidence, which requires no specialized knowledge and is within the function of the jury. Beyond the video narration, Vangura’s discussion and findings included opinions and testimony about the biomechanics of walking. Vangura admitted that he made findings by simply ”watching this video,” a factfinding exercise that is well within the jury’s function.
The Court found that these findings “risk ‘supplanting a jury’s independent exercise of common sense’ and its role of determining the facts.”
Qualification
Plaintiffs argue that Vangura is not qualified to opine about law enforcement tactics and practices or the parties’ injuries and medical conditions. Vangura has an associate’s degree in mechanical engineering technology, a bachelor’s in exercise and sports science, and a master’s in bioengineering but no medical degree. Moreover, Vangura is not qualified to speak on proximate cause because his testimony rests on opinions about law enforcement tactics and practices.
The Court found that Vangura’s testimony about the proximate cause of injuries in products liability cases does not qualify him to testify to proximate cause in an excessive force case, especially when his testimony goes beyond the purview of biomechanics and leads to hypotheticals about the necessity of arrests and an officer’s use of force.
The Court also found that Vangura’s report consisted of improper opinions on the parties’ injuries. The parties agreed that biomechanical experts cannot make independent medical diagnoses or offer opinions about the specific causes of an injury.
Lastly, the Court found that Vangura is not qualified to opine about whether Thomas was conscious after falling down the courthouse stairs despite consulting Thomas’s medical records. Vangura has not demonstrated that he has any knowledge, education, or training to (1) determine whether a person is conscious based on video evidence or (2) assess the relationship between loss of consciousness and a traumatic brain injury. Thus, Vangura is not qualified to opine on this topic.
Held
The Court granted the Plaintiffs’ motion in limine to exclude the testimony of Albert Vangura.
Key Takeaway:
Expert testimony may be admissible even though it does not rely on anything like a scientific method. But the expert must explain how his experience leads to the conclusion reached. why his experience is a sufficient basis for the opinion. and how his experience is reliably applied to the facts. Vangura failed to demonstrate how his experience as a biomechanics expert specializing in products liability and vehicle crashes led him to his conclusions, why that experience suffices to support his findings in an excessive force case, or how he applied that experience to the video evidence here.
Case Details:
Case Caption:
Moore Et Al V. Barnes Et Al
Docket Number:
2:23cv56
Court Name:
United States District Court, North Carolina Eastern
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation. The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Even though the Court found that Barczyk is qualified to opine on the medical causation of Plaintiff’s musculoskeletal injuries, the Court nonetheless excluded his testimony as to the same. The Court found that Barczyk’s testimony with respect to medical causation would be inadmissible because it would not reflect a reliable application of methodology to the facts of this case.
Martin requested that this Court reconsider its prior ruling which precludes Barczyk from testifying as to the medical causation of Plaintiff’s alleged injuries.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
With respect to whether Barczyk reliably applied his methodology, the Court held that Plaintiff has still failed to establish that Barczyk has done so. Plaintiff explained that “following the completion of the physical examination and examination of the medical history of Plaintiff, Barczyk was in position to render a reliable opinion regarding causation.” Plaintiff then stated that “Barczyk was able to eliminate previous and alternative causes of Plaintiff’s condition.”
However, Plaintiff’s argument missed the point. Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. And, even if he had done so, the Court held that his report fails to demonstrate as much. For example, Barczyk failed to demonstrate how or why he was able to eliminate alternative causes for the Plaintiff’s condition. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
With respect to Barczyk’s qualifications to opine on the medical causation of Plaintiff’s alleged traumatic brain injury, Plaintiff’s arguments for reconsideration are likewise unavailing. Plaintiff restated Barczyk’s qualifications, which the Court has already found to be insufficient. Plaintiff further stated that Barczyk has performed research, testing, and clinical practice with respect to brain injuries. But she cited no examples of Barczyk’s publications, research, or clinical experience.
However, the Court did clarify that, given Barczyk’s expertise in biomechanics, Barczyk is qualified to “testify as to the amount of force he believes was generated by the subject collision and the observed effect of such force on a hypothetical human body in a comparable accident.”
Held
The Court denied the Plaintiff’s motion for reconsideration of the Court’s ruling limiting Dr. David Barczyk’s testimony regarding medical causation.
Key Takeaway:
Whether Barczyk was in a position to offer reliable testimony does not establish that he reliably applied his methodology to the facts of this case. The Court is thus left with the Plaintiff’s and Barczyk’s own assurances that Barczyk reliably applied his methodology. These subjective assurances do not establish admissibility.
Please refer to the blog previously published about this case:
This case arises from a January 2023 automobile accident. On April 16, 2023, Plaintiff Gina Martin was driving eastbound on Interstate I-10, nearing the Chef Menteur exit in New Orleans, Louisiana, when Defendant Micah Cunningham crashed his truck into the rear of Martin’s vehicle. Martin alleged that she suffered various severe injuries as a result of this collision.
Plaintiff retained Dr. David J. Barczyk, D.C as an expert witness in the field of biomechanics in order to opine about the causation of Martin’s injuries.
Defendants filed a motion in limine to exclude the testimony of Barczyk arguing that Barczyk lacked the qualifications and expertise to render opinions regarding medical causation.
Biomechanics Expert Witness
David Barczyk is licensed in Louisiana as a chiropractor and continues to practice as a chiropractor in the office that he established. Barczyk has postdoctoral training in neurology and training in crash biomechanics.
He has received over 350 hours of neurological training and is a diplomate of the American Chiropractic Neurology Board. He has several certifications in biomechanics and has attended over a dozen trainings. Barczyk has given a number of lectures on topics in biomechanics.
Barczyk produced two expert reports regarding Plaintiff’s injuries. The first report, dated December 3, 2024, sets out Plaintiff’s treatment history since the accident.
The report concluded with a summary, in which Barczyk stated that Plaintiff’s injuries to her cervical and lumbar spines, her shoulder, and foot are causally related to the accident. In addition, Barczyk stated that the accident produced an injury mechanism for Plaintiff’s brain.
The second report, dated March 18, 2025, is identical to the first report with respect to its discussion of the biomechanics of Plaintiff’s accident and its conclusions on medical causation.
Barczyk’s Qualifications
Plaintiff proffered Barczyk as a qualified expert in chiropractic medicine and biomechanics. It should be noted that Barczyk has a doctoral degree in chiropractic medicine, is a board-licensed chiropractor, and has practiced chiropractic medicine since 1994.
Although Barczyk does not have a formal degree in biomechanics, he has extensive training. His CV attests that he has attended over a dozen trainings in biomechanics and has attained several certifications.
It should be noted that the Plaintiff did not cite any case holding that a chiropractor could testify to medical causation.
Medical Cause of Plaintiff’s Alleged Brain Injury
While the Court found that Barczyk was qualified to opine on the medical causation with respect to Plaintiff’s musculoskeletal injuries on the basis of his chiropractic expertise, it is not satisfied that Barczyk is qualified on the basis of his chiropractic expertise to testify as to the medical cause of Plaintiff’s alleged brain injury.
After all, Barczyk’s training and diploma do not amount to a medical degree.
Moreover, Plaintiff cited no evidence that Barczyk has conducted research with respect to the brain injury that Plaintiff allegedly suffered or that, as part of his chiropractic practice, Barczyk diagnoses or treats brain injuries or orders diagnostic tests in connection with brain injuries.
With respect to Barczyk’s expertise in biomechanics, the Court likewise found that Barczyk was not qualified to opine on the medical cause of any of Plaintiff’s injuries on that basis.
In sum, on account of his chiropractic expertise, the Court found that Barczyk is qualified to opine on the cause of Plaintiff’s musculoskeletal injuries. However, he is not qualified to opine on the cause of Plaintiff’s brain injury.
On account of his expertise in biomechanics, Barczyk is qualified to opine on the effects of the force that the accident generated on the hypothetical human body but is not qualified to opine on the medical causes of Plaintiff’s injuries.
The Reliability of Barczyk’s Opinions
As for Barczyk’s opinions as to the medical causes of Plaintiff’s musculoskeletal injuries, Barczyk’s analysis initially describes the mechanism of injury as the result of “impact in a rear end crash.” But there are no additional facts regarding the specifics of the accident in this case.
The Court found that Barczyk’s analysis is generalized and therefore any conclusion applying his analysis to the facts of this case is unreliable.
The Court also noted that, in the “Occupant Risk Factor” section of his report, Barczyk identified certain risk factors particular to Plaintiff. He cited several sources for the risk factors that he identified. However, his discussion in that section is terse, cursory, and conclusory.
Barczyk does not explain how Plaintiff’s characteristics serve as risk factors in this case or the role they played in causing her injuries. Again, the Court is left with nothing but Barczyk’s own assurances that he has reliably analyzed the risk factors.
Whether Barczyk’s Testimony Would Be Cumulative
Federal Rule of Evidence 403 provides that a district court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.”
Without the benefit of hearing the evidence that Plaintiff will have introduced at trial, the Court finds that it would be premature to exclude Barczyk’s testimony as cumulative at this juncture.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to exclude the testimony of David J. Barczyk.
Key Takeaway:
While the Court has focused on the reliability of Barczyk’s opinions with respect to the medical causes of Plaintiff’s musculoskeletal injuries, the defect in Barczyk’s analysis which renders these opinions unreliable equally characterizes his opinion as to the cause of Plaintiff’s alleged brain injury. Accordingly, that opinion is also excludable as unreliable pursuant to Rule 702. However, the Court will not exclude Barczyk’s general discussion on the mechanisms of injury typically associated with rear-end collisions.
Case Details:
Case Caption:
Martin V. National Interstate Insurance Company Et Al
This matter involves an incident that occurred on May 29, 2020. At the time, the Plaintiff, David Zuniga, was present during the George Floyd protests in Grand Park, Downtown Los Angeles. Plaintiff and his experts contended that Defendant Officer Aaron Green struck him with a nonlethal projectile to his head. Officer Green, along with the other named officer Defendants, was assisting in controlling a crowd of protestors. The protestors unlawfully protested in the Grand Park area after the Court declared an unlawful assembly and issued a dispersal order.
Defendants filed a motion to preclude the report and opinions of Plaintiffs’ biomechanics expert, John Gardiner, on the grounds that such evidence is irrelevant, improper, misstates the law, speculative, and would unduly prejudice Defendants.
Plaintiff opposes Defendants’ motion on the grounds that Gardiner’s opinions are based on the sworn testimony of Plaintiff and several Defendants. Additionally, Gardiner relied on video from body cameras and medical records. Plaintiff also argues that Gardiner is qualified to opine on the cause of Plaintiff’s injury because he is a biomechanics expert that has testified in other cases.
Biomechanics Expert Witness
John Gardiner holds a Doctor of Philosophy in Bioengineering from the University of Utah and a Bachelor of Science in mechanical engineering from the University of Minnesota. He is a principal and senior biomechanical engineer at MEA Forensic. He joined the firm in 2002 and leads the Biomechanics Group in the Los Angeles office. Gardiner is responsible for conducting reconstruction and biomechanical analyses of a variety of events including automobile collisions, falls, sports injuries, and shootings.
The video evidence and testimony are consistent with Zuniga being located within a group of protestors on N Spring St. at the time he sustained this injury.
The video evidence and testimony indicate that multiple less-lethal rounds were fired in the general direction of Zuniga’s location north of the officers.
The horizontal nature of the laceration on the top of Zuniga’s head is consistent with contact from an approximately horizontally traveling less-lethal munition.
The description and appearance of Zuniga’s scalp laceration is consistent with contact by a bean bag round fired by Officer Green.
In forming his conclusions, Gardiner reviewed various materials. Specifically, these included body camera video, testimony, and medical records, all of which he analyzed in detail. As a result, his opinions were supported by the evidence available to him, as established in previous rulings.
The Defendants contended that Gardiner’s opinions were based on factual assumptions not supported by the record. They highlighted that, in his deposition, Gardiner admitted he could not specifically identify the Plaintiff in the video at the time of the shooting. Furthermore, he acknowledged that the Plaintiff might have moved from his last known location in the video before the less-lethal munitions were fired. However, the Plaintiff noted that Gardiner did not need to present his opinions with absolute certainty for his testimony to be admissible.
Held
The Court denied Defendants’ motion to exclude Plaintiffs’ biomechanics expert, John Gardiner’s opinions and testimony at trial.
Key Takeaways:
Gardiner has an extensive background and experience in biomechanics. This qualifies him to testify regarding the cause of the Plaintiff’s injury.
No part of Gardiner’s expert report indicated that any of his opinions are based on assumptions outside of the evidence provided. This includes body camera footage and medical records.
Gardiner’s opinion regarding the horizontal nature of the laceration and its consistency with less-lethal munitions is not a legal conclusion. It is an expert analysis of the injury’s cause.
Please refer to the blog previously published about this case:
On August 28, 2019, Plaintiff Annie Perrone (“Plaintiff”) commenced this diversity action against Catamount Ski Resort, LLC (“Catamount Ski Resort”) and Catamount Development Corporation (“Catamount Development”; together with Catamount Ski Resort, “Catamount” or “Defendants”) alleging negligence and gross negligence in connection with injuries Plaintiff suffered while skiing at Catamount Ski Area.
Plaintiff and Defendants each sought to preclude or limit the testimony of the opposing party’s experts as per Rule 702.
Plaintiff sought to preclude Defendants’ biomechanical engineering expert, Irving Scher, Ph.D., “from testifying at trial regarding the causation of Plaintiff’s injuries.” Defendants sought to: (1) limit the testimony of Plaintiff’s testifying doctor, Thomas S. Eagan, M.D., and (2) preclude or limit the testimony of Plaintiff’s snow sports expert, Stanley Gale.
Biomechanics Expert Witness
Irving Scher is a Principal and Biomechanical Engineer at Guidance Engineering and Applied Research. He specializes in biomechanical engineering and accident reconstruction. Scher evaluates product safety and performance for recreational sports equipment, injury prevention products, and mechanical systems. Moreover, he investigates human injuries in accidents and product failures by using biomechanical engineering techniques that apply the principles of engineering to the human body.
Thomas S. Eagan is Board Certified in Orthopaedic Surgery; as such, he is a Diplomate of the American Board of Orthopaedic Surgery. He has been president of the Fulton County Medical Society. Eagan received his medical degree from Albany Medical College, and continued his orthopaedic training at Dartmouth Medical College in New Hampshire. Also, he keeps in touch with advances in the field of orthopaedic surgery through his active participation in many respected medical societies, such as the American Medical Association, the American Academy of Orthopaedic Surgeons, and the New York State Medical Society.
Stanley Gale has 51 years of on-snow ski safety training and experience. He is a veteran ski patroller of almost 40 years. He has been a ski and snow safety expert witness for over 14 years. Gale routinely travels to ski resorts, tubing hills, sledding hills and snowmobile locations. As a result, he is well versed in the latest custom and practices for safety and mitigation of risk. Moreover, he is aware of the practical applications and day to day experiences of skiers and sledders.
Plaintiff contended that Scher is “not a medical doctor” and did not have “the educational background or training” to provide an opinion as to the medical causation of Plaintiff’s pelvic fracture sustained in the ski accident.
Defendants asserted that Scher will not testify as to Plaintiff’s medical injuries, and that he relied on the review of a board-certified radiologist to identify and confirm the injuries Plaintiff sustained to her pelvis.
The Court found Scher qualified to testify regarding general causation, including the efficacy of whether commercially available padding on an object a Plaintiff collided with while downhill skiing could have prevented or reduced the severity of a Plaintiff’s injury.
Plaintiff further contended that because Scher never went to the accident site, he should not be able to testify that “a non-beginner skier should be able to stop or change direction to avoid open, obvious, visible, and marked snow making (or other obstacles) that are 135 feet away.”
The fact that Scher did not personally visit the site of the accident did not, by itself, make his testimony unreliable.
B. Defendants’ Motion in Limine
1. Thomas S. Eagan, M.D.
Eagan’s Opinion is Based on the Review of Plaintiff’s Medical Records
Defendants contended that Plaintiff was treated by “a number of orthopedists following her injury,” however, Plaintiff is only calling Eagan, a “regular courtroom witness,” whose office is over 150 miles from Plaintiff’s residence, to testify. Defendants relied on several cases for the proposition that “a non-treating physician, hired only to testify as an expert witness, may not state the history of an accident as related to him by the Plaintiff or testify as to Plaintiff’s medical complaints . . . nor can the expert summarize and read statements and findings contained in the reports and records of Plaintiff’s treating physicians, where reports and records were not in evidence and treating physicians did not testify at trial.”
In response, Plaintiff argued that Eagan’s opinion is not relying on hearsay, because he “conducted a physical examination of Plaintiff” and his opinion is based on the review of Plaintiff’s medical records.”
The Court found that Eagan may testify based on his examination of Plaintiff and the medical records he relied on in forming his opinion which are admitted into evidence, as long as he lays the proper foundation.
Eagan is qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury
Defendants next argued that there was “no evidentiary foundation” in the medical records for Eagan’s opinions that: (1) Plaintiff “suffered a torn labrum of the right hip”; (2) Plaintiff will “more likely than not develop arthritis of the right hip and require a hip replacement during her lifetime”; and (3) Plaintiff “is not able to perform heavy labor or place excessive loads on her injured pelvis.” The Court held that Defendants’ arguments “were more appropriate for cross examination” of Eagan at trial.
Defendants also asserted that Eagan was not qualified to testify based on his diagnostic tests “whether or not there is symptom magnification” by Plaintiff because this falls under the purview of a psychologist. The Court found that Eagan was qualified to testify as to the causal relationship between Plaintiff’s complaints and her reported injury, as long as he lays a proper foundation.
Defendants argued that Eagan’s opinion that Plaintiff “will require cesarean section for delivery of any children” should be precluded because “there is no evidentiary basis.” The Court disagreed and held that Defendants’ challenge is an appropriate subject for cross-examination.
Defendants added that Eagan’s opinion regarding whether Plaintiff will require a cesarian section for delivery of any children is cumulative of Plaintiff’s OB/GYN witness. The Court did not have sufficient information regarding the OB/GYN witness’ testimony to determine whether Eagan’s testimony would be cumulative.
2. Stanley Gale
To begin with, Defendants first argued that Gale is not qualified to give expert testimony because he did not “have the levels of knowledge, experience, or skill in the area of accident reconstruction or ski area operations” necessary to provide an expert opinion. Defendants asserted that his opinions were “speculative and conclusory.” The Court found that Gale is qualified to testify as to the customs and practices of the ski industry, including safety standards and practices.
Defendants next argued that Gale should be precluded from testifying that the snow gun was not marked, and his expert disclosure that the snow gun was not marked should be stricken. They contended that photographs obtained from Plaintiff showed that an orange lollipop marked the snow gun with which Plaintiff collided.
Defendants asserted that because Gale previously gave testimony that properly placed Catamount lollipops [marking snow guns] met the State Code, Gale should be precluded from testifying that the snow gun was unmarked. The Court disagreed and refused to exclude Gale’s testimony regarding that aspect.
Despite Defendant’s objections, the Court held that Gale had the requisite expertise to opine on practices related to padding a snow gun located on a ski trail. However, Gale must testify based on his personal knowledge, and he must explain how his personal experience leads to his conclusions.
Moreover, Defendants contended that Gale should be precluded from testifying that a ski trail “is not limited to the groomed surface” because he previously testified “on multiple occasions that there is a difference between grooming beginner and expert trails.” The Court held that Gale’s previous testimony was insufficient to preclude him from testifying whether a ski trail is limited to the groomed surface.
Held
To sum it up, the Court denied Plaintiff’s motion in limine to preclude Irving Scher’s testimony. The Court reserved decision on Defendants’ motion in limine as to a certain aspect of Thomas Eagan’s testimony until trial but denied the Defendants’ motion in limine to preclude or limit Stanley Gale’s testimony.
Key Takeaways:
The Court insisted on a proper foundation for each of the expert’s opinions. That is to say, Courts routinely examine the factual bases of expert opinions before arriving at a decision.
James Maples, the Plaintiff, filed a lawsuit against Union Pacific Railroad Company, Inc., the Defendant, under the Federal Employers’ Liability Act (“FELA”), alleging on-the-job injuries stemming from when a wheel broke and detached from the utility vehicle he operated. Union Pacific acknowledged responsibility for the wheel detaching from the utility vehicle but disputed that it caused any harm to Maples. Maples sought partial summary judgment on Union Pacific’s affirmative defenses, encompassing issues such as mitigation, apportionment of fault, failure to join a party, pendency of another related action, accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. Additionally, Maples aimed to exclude expert testimony from Union Pacific’s medical expert, Earl Peeples, and biomechanical expert, Jeffrey Broker.
Orthopedic Surgery Expert Witness
Dr. Raymond Earl Peeples, MD, graduated from the University of Oklahoma College of Medicine. Following his medical education, he completed a Straight Surgical Internship at Baptist Memorial Hospital. Subsequently, he pursued Orthopaedic Surgery Residency at the University of Oklahoma Health Sciences Center. Further enhancing his expertise, Peeples underwent a Hand Surgery and Microsurgery Fellowship at the University of Colorado Health Sciences Center’s Office of Graduate Medical Education. Currently, Raymond Peeples works at Peeples Medical Legal Consulting. His extensive medical education, residency, and fellowship experiences contribute to his qualifications as a medical expert in the field.
Biomechanics Expert Witness
Dr. Jeffrey Palmer Broker, Ph.D., received his Ph.D. in Biomechanics and Motor Control from the University of California, Los Angeles. He holds a B.S. in Mechanical Engineering from California Polytechnic State University. Broker specializes in Biomechanics of Injury, and Accident Causation. His expertise extends to areas like Cycling (control and falls, dynamic simulations, equipment failures) and Sports and Recreation Equipment. Broker has been the owner of Echelon Biomechanics. He also serves as an Associate Professor in Biomechanics at the University of Colorado.
Discussion by the Court
Summary judgment was denied concerning the mitigation and apportionment affirmative defenses. However, for the remaining affirmative defenses, summary judgment was granted, as Union Pacific explicitly stated its intention not to present them. Union Pacific retains the option to seek reconsideration if Maples introduces evidence that opens the door for these defenses.
Summary judgment was denied on the mitigation affirmative defense as it was determined that the question of whether Maples acted reasonably to mitigate his damages should be decided by a jury. This decision was based on the recognition that the failure to mitigate the loss of earnings is a valid affirmative defense in FELA cases. A genuine dispute existed regarding Maples’ capability to perform work beyond what he had undertaken since the accident. It was emphasized that the FELA does not exempt claimants from the obligation to seek suitable employment, and FELA Defendants have the right to a jury instruction on mitigation when the record supports it. In this case, the record indicated that Maples might not have adequately sought other jobs, potentially failing to mitigate damages.
Summary judgment was denied on the apportionment affirmative defense due to the existence of a genuine factual dispute regarding whether Maples’s back injuries pre-existed from the date of the accident. It was emphasized that FELA Defendants bear liability solely for damages resulting from their negligence. Therefore, the apportionment affirmative defense was deemed appropriate in this context.
Maples’s motion to exclude Peeples from offering expert testimony on secondary gain or malingering, Maples’s credibility, and Matthew Gornet‘s deposition testimony was denied as moot. It is worth noting that Plaintiff raised arguments against Peeples’ suggestions of Dr. Gornet doing something improper, illegal or unethical in this case.
This decision arose as Union Pacific affirmed its lack of intention to elicit trial testimony from Peeples on these specific issues. However, Maples retained the option to seek reconsideration if Union Pacific alters its course and expresses an intent to present testimony on these matters.
The Court acknowledged that Peeples, a medical doctor specializing in orthopedic surgery, was deemed qualified to testify about medical causation. This recognition was supported by the precedent set in Harris v. Ladd, No. 5:09CV00179 JLH (E.D. Ark. Jan. 25, 2012), where it was established that a Defendant’s medical expert has the right to testify that the physical injuries for which the Plaintiff seeks compensation were not caused by the accident.
The motion to prevent Peeples from expressing opinions on the reasonableness of the work restrictions prescribed by Maples’s doctor was denied based on Peeples’ qualification to provide such testimony. The Court noted that disagreements with a treating physician’s course of treatment could be addressed during cross-examination.
Peeples was permitted to testify about Gornet’s charges and liens, as the Court recognized that his specialized knowledge could assist a jury in making credibility determinations regarding these issues.
Maples’s motion to exclude Broker’s expert testimony was denied, as the Court found that Broker’s opinion was not “so fundamentally unsupported that it can offer no assistance to the jury.” This determination stemmed from Broker’s qualifications as a Ph.D. specializing in the biomechanics of injuries and accident causation. The Court deemed Broker’s testimony admissible, particularly his assertion that biomechanically, Maples’s low back injury was inconsistent with the forces exerted during his accident.
Held
The Court granted in part and denied in part Maples’ motion for partial summary judgment. The Court also denied Maples’ motions to exclude the testimony of Union Pacific’s experts Earl Peeples and Jeffrey Broker.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the legal proceedings between Maples and Union Pacific under the Federal Employers’ Liability Act (FELA), expert testimony played a crucial role. The Court allowed testimony from Earl Peeples, a medical doctor specializing in orthopedic surgery, on matters related to medical causation.Additionally, the Court permitted Peeples to testify about Gornet’s charges and liens, acknowledging Peeples’ specialized knowledge as beneficial for the jury in assessing credibility on these issues.
Similarly, the Court allowed Jeffrey Broker, a Ph.D. specializing in biomechanics, to provide expert testimony. Despite Maples’ attempt to exclude Broker’s testimony, the Court found that Broker’s opinion was not fundamentally unsupported and could offer assistance to the jury. The Court highlighted Broker’s qualifications in biomechanics of injuries and accident causation, particularly noting his assertion that Maples’s low back injury was biomechanically inconsistent with the forces exerted during the accident. In both instances, the Court’s decisions reflected a careful consideration of the experts’ qualifications and the relevance of their testimony to the case.
