This case arises out of injuries sustained by Brandon Jensen on his bicycle when he collided with a semi-truck who made a left turn through his lane of travel. The semi-truck was driven by Defendant Michael Beale. Beale was working for Crete Carrier at the time of the accident.
To begin with, Defendants Michael Beale and Crete Carrier Corporation (Crete Carrier) filed three motions in limine concerning the testimony of the Plaintiffs’ accident reconstruction expert, Dr. Jay Przybyla.
First, Defendants Michael Beale and Crete Carrier Corporation (Crete Carrier) filed a motion to exclude seven videos relied on by Przybyla in his rebuttal report that show semi-truck trailers turning into the Crete Carrier terminal. Second, the Defendants filed a motion to exclude Przybyla’s opinions about the time required for Plaintiff Jensen to stop his bicycle. Finally, the Defendants filed a motion exclude Przybyla’s reconstruction simulations on the ground that he made improper assumptions about truck weight.
Transportation Engineering Expert Witness
Jay J. Przybyla, Ph.D., P.E. is a licensed professional engineer and managing engineer at Focus Forensics with experience, education, and training in the fields of civil engineering, forensic engineering, and transportation safety. He also holds a Master’s and Ph.D. in transportation engineering from the University of Utah and a Bachelor’s in civil engineering from Brigham Young University.
The Court questioned Przybyla outside the presence of the jury on the morning of November 12, 2025. The Court cautioned the witness to avoid opining on the credibility of Beale’s testimony or the propriety of Beale’s choices, but the Court found that the methodology for his accident reconstruction analysis was otherwise reliable. To be clear, uncertainties about bicycle stopping time or the assumptions about truck weight that Przybyla used to model his simulations went to the weight of the evidence rather than its admissibility.
Moreover, the Court found that the seven videos showing Crete Carrier trucks turning into the terminal were used in rebuttal to opinions from the Defendants’ accident reconstruction expert and were admissible for illustrative purposes. The Defendants’ concerns that the trucks were different makes and models and had different loads could be addressed during cross examination.
Held
The Court denied the Defendants’ motion in limine to exclude seven videos relied on by Jay Przybyla.
The Court denied the Defendants’ motion in limine to exclude Jay Przybyla’s opinions on the time required for Plaintiff Brandon Jensen to stop.
The Court denied the Defendants’ motion in limine to exclude Jay Przybyla’s reconstruction simulations.
Key Takeaway:
Uncertainties about bicycle stopping time or the assumptions about truck weight that Przybyla used to model his simulations could be adequately examined during cross examination.
Case Details:
Case Caption:
Jensen V. Crete Carrier Corporation
Docket Number:
1:23cv105
Court Name:
United States District Court for the District of Utah, Northern Division
On January 4, 2023, 74-year-old Bonnie Thurston, accompanied by her grandchildren, Hailey and Roger Thurston, was riding a WMATA Metrorail train to Reagan National Airport. The train halted before reaching the station platform. Without any announcement of arrival or door opening, Thurston, observing the platform, stood up without holding onto any train supports. The train then moved forward to fully berth at the station, causing Thurston to fall and suffer injuries to her left femur and hip.
The central liability questions are: (1) whether the train operator was obligated to announce the train’s intended movement for re-berthing, thus warning passengers to secure themselves, and (2) whether such an announcement was, in fact, made.
Thurston subsequently filed a negligence lawsuit against WMATA on May 17, 2024. Following the conclusion of discovery, WMATA moved to exclude Thurston’s liability expert, Dr. Carl Berkowitz. WMATA contends that Berkowitz’s testimony should be barred due to his alleged failure to establish a national standard of care and the perceived lack of factual basis for his opinions.
Transportation Engineering Expert Witness
Carl Berkowitz, PE, Ph.D., AICP, a transportation and traffic engineering expert, has been providing litigation consultation since 1997. His 49 years of experience make him a highly sought-after advisor, particularly at the outset of potential litigation. He offers impartial evaluations that can significantly influence the course of a case. By assessing the technical strengths and weaknesses, he helps clients determine the feasibility of legal action. Berkowitz’s extensive background and experience enable him to provide valuable contributions at every stage of litigation.
WMATA sought to exclude expert testimony from Berkowitz, arguing he failed to establish a national standard of care. Thurston countered, asserting that Virginia’s established standard for common carriers, not a national standard, was applicable. She further argued that, even if a national standard were relevant, Berkowitz’s testimony satisfied it.
The Court emphasized that Virginia law does not recognize a national standard of care in common carrier tort cases. Instead, Virginia mandates that common carriers exercise “the highest degree of practical care” for passenger safety. Therefore, the Court deemed Berkowitz’s ability to articulate a national standard irrelevant. His expertise was sufficient to explain to the jury what constitutes “the highest degree of practical care” under Virginia law.
Furthermore, the Court reiterated the established Virginia principle that a party cannot unilaterally define its own standard of care through internal rules. Consequently, Berkowitz was prohibited from referencing WMATA’s Standard Operating Procedures (SOPs) during his direct examination.
The Court determined that Berkowitz’s opinions are primarily grounded in his extensive experience within the transit industry. This experience includes his employment with various transit authorities, his participation in transit-related committees, and his sustained involvement in the public transportation community. He also gathers information through discussions with industry professionals and his review of transit system standard operating procedures and training manuals.
Based on this expertise, Berkowitz is qualified to testify regarding the appropriate standard of care for a train operator who must re-berth a train that has partially stopped within a station platform. However, the Court found that Berkowitz lacks sufficient foundation to testify about other areas covered in his expert report, such as falling mechanics, jerk rates, system failures, and national standards of care. Therefore, he is precluded from offering opinions on these topics.
Furthermore, Berkowitz is prohibited from presenting factual conclusions about the specific incident in question. This restriction is to avoid encroaching on the jury’s role as the fact-finder.
Held
The Court granted in part and denied in part the Defendant WMATA’s motion to exclude Plaintiff’s liability expert. Dr. Carl Berkowitz may testify only about the standard of care required of a train operator who needs to reposition or “re-berth” a train that has come to a stop partially within a station platform.
Key Takeaway:
The Court ruled that Virginia law dictates the “highest degree of practical care” rather than a national standard, and that the expert’s experience qualified him to testify on this standard specifically regarding re-berthing procedures. However, the expert was restricted from referencing WMATA’s internal procedures or testifying on other matters outside his specific expertise, ensuring he stayed within his qualified area and did not encroach on the jury’s role. Ultimately, the Court allowed the expert to testify narrowly on the standard of care for re-berthing, while excluding his testimony on other topics.
Case Details:
Case Caption:
Thurston V. Washington Metropolitan Area Transit Authority
This lawsuit arises out of Port Arthur’s decision to designate Sassine Avenue as a “no truck route.” Kirk Thomas (“Thomas”) and KT Trucking and Cattle, LLC (“KT Trucking”) (collectively, “Plaintiffs”) engaged in various agricultural and commercial activities on Thomas’ property, including a land farming operation and the management of his personal trucking business. As a result, large commercial vehicles frequently entered and exited the property. Plaintiffs asserted that the only safe way for these vehicles to access the property was via Sassine Avenue. However, Port Arthur’s designation prohibited large commercial vehicles from using the road.
On May 20, 2024, the City of Port Arthur, Texas (“Port Arthur”), and Flozelle Roberts (“Roberts”) (collectively, “Defendants”), designated John McInturff as a testifying expert, expecting him to support their position that Thomas’ use of Sassine Avenue did not constitute routine commerce.
In response, Plaintiffs filed a motion to exclude and/or limit the testimony of Defendants’ expert John McInturff. Thereafter, they submitted an amended motion to exclude and/or limit his testimony, wherein they attached exhibits they had omitted from the original filing.
Transportation Engineering Expert Witness
John McInturff is a civil engineer licensed in Louisiana and Texas. McInturff graduated with a Master of Engineering from Texas A&M University and has spent about 50 years, working specifically in highway, traffic, and transportation engineering. Currently, McInturff is a Principal Engineer at Kittelson, LLC, in College Station, Texas.
Plaintiffs styled their objections to McInturff’s testimony as two distinct claims. First, Plaintiffs asserted that McInturff’s testimony should be excluded because it was so speculative that it constituted the ipse dixit of the expert. Second, Plaintiffs maintained that McInturff’s testimony should be excluded because “the analytical gap between the facts and McInturff’s opinion on whether hauling drilling mud is routine commerce is vast.”
McInturff’s Reliability
Plaintiffs did not challenge McInturff’s reliability under the Daubert factors. Instead, they maintained that his testimony lacked reliability because it was based on insufficient facts and data. Plaintiffs claimed that McInturff not only failed to link his opinion regarding the characterization of Thomas’ use of Sassine Avenue to his knowledge and expertise as a civil engineer but also relied on erroneous and unsupported facts to arrive at his conclusions.
McInturff’s Report
In this case, Plaintiffs challenged McInturff’s conclusion regarding the definition of “routine commerce” under Port Arthur Ordinance 106-41(b)(13). The relevant ordinance stated that Port Arthur cannot prohibit a commercial vehicle from using a street for “the purpose of going directly to or from any residential, commercial or industrial establishment abutting on such street for purposes of routine commerce.”
Regarding what constitutes “routine commerce”, his report stated that:
“Trucks traveling to/from the Thomas property are not using Sassine Avenue for routine commerce such as trips for pickup or deliver of goods or services; i.e., delivery of a refrigerator purchased by a homeowner for delivery to their residence, FedEx/UPS deliveries, etc. Instead, the evidence provided to me suggests that the trucks are engaged in non-routine heavy hauling in connection with the disposal of drilling mud from discrete construction projects. The evidence further shows that these hauling activities included twenty-four hour operations involving repeated trips up and down Sassine Avenue from FM 365, which for purposes of traffic design and engineering, is also not routine commerce to be expected on a residential street like Sassine Avenue”.
McInturff Failed to Link his Opinion Regarding the Characterization of Thomas’ Use of Sassine Avenue to his knowledge and Expertise as a Civil Engineer
McInturff evaluates the use of Sassine Avenue from the perspective of a traffic design and engineering expert. Due to the residential nature of the area, McInturff opined that the routine commerce on Sassine Avenue is commerce that provides residential goods and services to that neighborhood.
From a traffic design perspective, McInturff’s report evaluates what constitutes “routine commerce” based on the type of street at issue, the surrounding area, and the type of commerce that street would be expected to withstand. Additionally, McInturff provides examples, stating that routine commerce on Sassine Avenue could include use of the road by package delivery services, such as FedEx or UPS. Since Sassine Avenue, as a residential road, was not designed to withstand repeated and long-term use by large commercial vehicles like the ones used in Thomas’ commercial endeavors, McInturff concluded that Sassine Avenue’s residential design combined with its unsuitability for use by large commercial vehicles demonstrated that Thomas’ commercial activity did not constitute routine commerce.
The Court held that Plaintiffs’ first contention fell flat because Defendants had set forth sufficient facts and data to bridge the alleged analytical gap between McInturff’s opinion and his expertise.
McInturff based his opinion on erroneous facts and data
Specifically, Plaintiffs asserted that McInturff did not base his opinion on “any information . . . other than his belief that the drilling mud is coming from discrete construction projects that sometimes include twenty-four-hour operations and involve repeated trips.” Plaintiffs then elaborated that there is no evidence that the drilling mud Thomas uses in his land farming operation comes from “discrete construction projects.” Rather, Plaintiffs maintained that the drilling mud results from laying pipelines and drilling for oil, practices that Plaintiffs contend are routine in Southeast Texas.
Plaintiffs contended that the repetitious nature of the trips demonstrated the routine nature of Thomas’ commercial activity.
Regardless of the mud’s origin, the parties agreed that Thomas commonly permits companies to dispose of drilling mud on his property as part of his land farming operation. The parties also agreed that large commercial vehicles are needed to haul drilling mud. In his report, McInturff did not highlight Plaintiffs’ hauling practices to establish that the mud resulted from discrete construction projects. Rather, McInturff discussed Thomas’ hauling practices to emphasize the inconsistency between Thomas’ use of Sassine Avenue and the common commercial activity in that area. In other words, the source of the drilling mud was inconsequential to McInturff’s opinion. The Court held that McInturff’s opinion that Thomas’ proposed use did not constitute “routine commerce” was sufficiently based on his knowledge of traffic engineering and design.
Held
While the Plaintiffs’ original motion to exclude the testimony of Defendants’ expert John McInturff was denied as moot, the Plaintiffs’ amended motion to exclude and/or limit the testimony of McInturff was denied by the Court.
Key Takeaway:
McInturff’s report reflected a thorough and methodical evaluation of the present case from the perspective of a civil engineer. McInturff explained why, based on his knowledge of traffic design and roadway engineering, he determined that Thomas’ proposed use of Sassine Avenue did not constitute routine commerce. McInturff relied on the design of the road, its residential designation, the relevant zoning ordinances, the residential nature of the surrounding area, and his knowledge of the germane traffic patterns and signals. Consequently, McInturff’s challenged testimony and his underlying opinion rely on the facts of the present case, the data provided, and his own expertise.
Please refer to the blog previously published about this case:
