This case arises from 13-year-old Jake Kaminski’s death from a ski accident at the Christmas Mountain Village resort in March 2023. Melissa Kaminski, who is Jake’s mother, and his sisters Mikayla and Jordan brought claims against the owner of Christmas Mountain, BlueGreen Vacations Unlimited, Inc. The Kaminskis contended that Jake’s death was caused by Christmas Mountain’s negligence in failing to properly mark and pad an electrical box near the site of Jake’s accident. The Kaminskis also brought claims for negligent infliction of emotional distress based on their distress at learning of Jake’s death.
Christmas Mountain filed a motion to strike the testimony of the Kaminskis’ liability expert, Larry D. Heywood.
Heywood opined that (1) Jake had the skiing skills to ski on the run he was on, including the cross-through trail, (2) Christmas Mountain breached its duties as a ski operator by failing to pad or mark the electrical box, and (3) Jake’s death was caused by the failure to mark or pad the electrical box because he hit the electrical box before hitting the tree.
However, Christmas Mountain contended that Heywood is not qualified to offer opinions on the cause of Jake’s injury and that his opinions are not the result of a reliable method applied to the facts of this case. Specifically, Christmas Mountain contended that Heywood’s opinion about the cause of Jake’s death is speculative and not based on either a scientific methodology or Heywood’s specialized experience in the winter recreation industry.
Snow and Ski Safety Expert Witness
Larry Dwight Heywood is a Snow and Ski Safety Consultant. Heywood previously worked in the ski industry as a ski patroller, director of ski patrol, and then director of mountain operations at a ski resort in California and now works as a consultant on operational and safety issues in the winter recreation industry.
Heywood’s experience working in the winter recreation industry qualifies him to offer opinions about what conditions create safety hazards on a ski slope and the duty that Christmas Mountain owed to those skiing on the mountain. But nothing in Heywood’s report or work history shows that he has any training, special knowledge, or experience on which he based his opinion that Jake hit the electrical box before hitting the tree. To write his report, Heywood reviewed photographs of the scene and Jake’s skis, video of Jake skating, witness statements, and Christman Mountain’s discovery responses.
Heywood’s assertion that Jake hit the electrical box is based on two pieces of evidence from those materials: a statement from a bystander who did not see the crash but heard a metallic bang before seeing Jake lying on the ground and a dent in one of Jake’s skis. Heywood did not analyze the scene or electrical box in person and his report does not contain any analysis of photographs of the electric box itself. According to the Court, Heywood’s analysis of these two pieces of evidence applies nothing more than common sense to speculate that the metallic bang the bystander heard was Jake’s ski hitting the electrical box and that the dent in his ski must have been caused by the electrical box because that “type of damage only occurs when ski edges strike very hard materials like a rock or metal.”
Held
The Court granted Christmas Mountain’s motion to exclude testimony from Larry Heywood concerning causation. But the argument in Christmas Mountain’s motion did not justify its request that the Court preclude Heywood from offering any testimony at all.
Heywood may not testify that Jake struck the electric box before hitting the tree, but he may offer testimony consistent with his report on the other topics.
Key Takeaway:
To begin with, Heywood does not have any training or experience in accident reconstruction or materials science, and he did not consider whether any other hard objects on the mountain could have caused the dent or the metallic sound.
An opinion based on nothing more than common sense that would be obvious to a layperson does not assist the trier of fact in understanding the evidence or determining a fact in issue.
Case Details:
Case Caption:
Kaminski, Melissa Et Al V. Bluegreen Vacations Unlimited, Inc.
On March 19, 2023, a ski collision at Aspen Highlands Ski Resort between Tasha Barber (Plaintiff) and Christine Mack (Defendant) led to a lawsuit. Barber claims Mack, skiing uphill, had the responsibility to avoid the collision and is seeking damages for her resulting injuries. Mack denies these claims and has engaged Jonathan Delk as an expert witness. Delk’s expert report includes a section titled “Conclusion and Opinions” where he presents factual conclusions and his professional opinions. At the end of that section, Delk offered three opinions:
1. Barber was responsible for avoiding the collision based on her being the uphill skier.
2. Barber was neither prepared nor aware enough to begin skiing, nor does she acknowledge that her being in motion (“coasting”) as skiing, which it is. These real facts and perspectives shared by Tasha Barber prove that Tasha was not sufficiently in control or aware of her surroundings to have avoided a collision.
3. Barber’s choice of actions to avoid the collision (shouting, leaning back, twisting) were ultimately the cause of her skis coming into contact with Christine Mack’s. Tasha Barber’s movements were the ultimate mechanism of her injury.
Jonathan Delk is an experienced trainer and risk manager with 15 years of ski, snowboard, and cycling coaching and training experience. From 2004 – 2019 he was employed in various roles in the ski industry including instructor, guide, coach, trainer, manager, and director of snowsports.
During his tenure in the ski industry, he created and administered safety trainings for instructors and resort staff related to the Skier’s Responsibility Code and the Colorado Skier’s Safety Act. While his primary work has shifted fields, he remains active in the ski industry both as an instructor and member of PSIA-AASI, the governing body of instructor certifications in the United States for which he was also employed during his career as an examiner.
The Federal Rules of Civil Procedure do not expressly provide for a motion for reconsideration on non-dispositive issues. But district courts have plenary power to revisit and amend interlocutory orders as justice requires. When asked to amend such an order, “courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error.”
The Court determined that the Defendant misunderstood the applicable standard, instead arguing for the application of state reconsideration rules. Consequently, because the Defendantrelied on the incorrect standard, she failed to address the proper one. Furthermore, she criticized Magistrate Judge Chung’s analysis of Delk’s opinions, thereby attempting to reargue her previous points. Ultimately, however, the Tenth Circuit had clearly stated that a motion for reconsideration was not meant for relitigating previously decided issues by the losing party.
To illustrate, the Defendant made two additional attempts to justify Delk’s first opinion.
First Opinion
Firstly, she tried to strengthen the opinion by claiming personal experience with the crash site supported it. However, as the Court previously noted, this justification originated solely from the arguments of her counsel and was absent from Delk’s report.
If the Defendant wished to leverage Delk’s specific expertise regarding fall lines, she could have obtained a narrower opinion concerning how the various slopes and paths would generally impact a skier’s acceleration. She did not do so. Instead, she presented an opinion that relied on assumptions and presumptions to reach a broader conclusion on liability. This opinion exceeded the bounds of expertise by selecting facts for the jury and was therefore inadmissible.
The previous ruling specifically noted that the problem with the opinion is that it did not “explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Second Opinion
The Court also found a similar flaw in the second opinion. The Defendant argued that Delk’s knowledge of ski equipment and its effect on reaction time would be helpful to a jury. While this might be accurate, it wasn’t the content of Delk’s report. Instead, the opinion merely criticized the Plaintiff’s preparedness by noting she was “possibly buckling her boots while in motion.” Thus, the core of the opinion didn’t rely on Delk’s expertise in ski equipment. Rather, it stemmed from Delk’s interpretation of the Plaintiff’s deposition testimony as to whether her conduct constitutes “paying attention to her direction of travel.” Jurors don’t need expert assistance to understand the meaning of paying attention.
Third Opinion
Lastly, the Defendant tried to justify Delk’s third opinion, arguing that his expertise in ski control supported his conclusions that the Plaintiff was (1) not buckling her boots, (2) looking down, (3) following the cues of another, and (4) not paying attention to her surroundings. However, the report lacked any explanation of a reliable methodology, based on training and experience, used to reach these conclusions. Furthermore, it’s unlikely a jury needs expert help to determine if the Plaintiff was buckling her boots in motion, looking down, or not just paying attention to her surroundings– or if such inattentive actions could cause an ensuing collision. The Court found that Delk’s opinion here didn’t help the jury understand the facts but rather directed them to choose a specific narrative, offering only an obvious consequence of that narrative as expertise.
Furthermore, the Defendant did not address Delk’s lack of qualifications to state that “Tasha Barber’s movements were the ultimate mechanism of her injury,” a “medical conclusion” for which “Delk has” no “medical training, education, or experience that would allow him to render an expert opinion on injury causation.” In essence, the Court did not disregard Delk’s experience or demand a scientific basis, but rather emphasized that “[e]xpert testimony based on experience alone must reveal how the experience led to the expert’s conclusion, why the experience is a ‘sufficient basis for the opinion,’ and how the experience was reliably applied.” Applying this standard, Delk’s report was deficient. The Defendant’s motion provides no evidence that striking Delk’s report was a clear error.
To the extent the Defendant desires to offer information about the Skier’s Responsibility Code, the Colorado Skier’s Safety Act, or other general skiing information to the jury, the previous order did not foreclose those possibilities.
Held
The Court denied the Defendant Christine Mack’s motion to reconsider pursuant to C.R.C.P. 121 § 1-15(11) regarding Plaintiff’s 702 motion to strike Jonathan Delk’s opinions.
Key Takeaway:
While the Defendant correctly points out that excluding expert testimony should be the unusual case, a district court bears the responsibility of ensuring that such testimony is reliable, relevant, and helpful to the jury. Although Delk possesses knowledge regarding skiers’ responsibilities, the opinions the Defendant intends to present through him are not aimed at informing the jury about these duties. Rather, they seek to convince the jury, faced with different accounts of events, to adopt the version where the Plaintiff failed to meet those responsibilities.
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.
