Horton v. Fisher

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DWIGHT HORTON

CIVIL ACTION

VERSUS

NO. 19-272-JWD-EWD

RICKY DEAN FISHER, ET AL.

RULING ON DEFENDANTS’ DAUBERT MOTION IN LIMINE

TO EXCLUDE DR. JACK LEIFER

Before the Court is the Daubert Motion in Limine to Exclude Dr. Jack Leifer (Doc. 66)

(“Motion”) brought by defendants Transport Risk Solutions Risk Retention Group, Inc.

(“Transport Risk”) and KLLM Transport Services, LLC (“KKLM”) (collectively “Defendants”).

It is opposed by plaintiff Dwight Horton (“Plaintiff” or “Horton”). (Doc. 69 and Doc. 69-1.)

Defendants filed a reply brief. (Doc. 74.) The Court has carefully considered the law, facts in the

record, and the arguments and submissions of the parties and is prepared to rule. For the

following reasons, the Motion is denied.

I. BACKGROUND

This case arises out of a motor vehicle accident which occurred on December 7, 2017.

(Doc. 1-4.) According to Plaintiff, defendant Ricky Dean Fisher,1 driving a KLLM truck, made a

wide left turn from the right-hand lane forcing Plaintiff off the road where he crashed into a tree

stump. (Id. at 3, ¶ 6.) According to Defendants, “[t]his is a minor motor vehicle accident” and

“Defendants contest the nature and extent of damages claimed by plaintiff. . . .” (Doc. 66-1 at 1;

see also Doc. 16 at 2.)

1 For reasons which are unclear, defendant Ricky Dean Fisher, the driver of the KLLM truck (Doc. 78 at 3,

Established Fact 4) which allegedly caused the accident, did not join in this motion.

Plaintiff and Defendants each hired an expert to analyze the collision and the impact

forces involved. Plaintiff hired Dr. Jack Leifer, a mechanical engineering professor, to provide

his opinions “regarding both [the] collision between a Chevrolet Express Van and a large tree

stump, as well as the methods and conclusions of a report . . . authored by Defense Consultant

Charles E. Bain, B. Eng., M.D . . . .” (Doc. 69-5 at 1.) Both sides have filed Daubert motions

challenging the other’s expert. (Doc. 69 and Doc. 67.)

II. SUMMARY OF ARGUMENTS OF THE PARTIES

Defendants move to exclude Leifer’s testimony for three reasons: first, he “is not

qualified to render opinions in the field of accident reconstruction. . . .” (Doc. 66-1 at 3; see also

id. at 5-6); second, his opinions “are not consistent with the governing legal standards for the

admissibility of expert testimony,” (id. at 3), and “[are] not based on sufficient facts and data and

lack[] a reliable methodology,” (id. at 6–7); and third, his report “inappropriately criticizes Dr.

Bain and [is] irrelevant and not helpful to the trier of fact” (id. at 9–10).

Plaintiff responds that Leifer is well qualified and has “[c]onsulted as an expert witness in

crash analysis for over 14 years.” (Doc. 69-1 at 8–9). He points to Leifer’s multiple degrees and

teaching positions. (Id.) As to his methodology, Plaintiff maintains that it is accepted and

disagrees that Leifer’s opinions are not based on peer-reviewed publications, pointing the Court

to those attached to Leifer’s report. (Id. at 11–12.) Regarding the appropriateness of Leifer’s

criticism of Bain, Plaintiff argues that the criticism is “supported by direct quotations from peer-

reviewed papers, which in many cases were listed by Dr. Bain himself. . . .” (Id. at 18.)

In their reply, Defendants re-urge their previous arguments and point to their expert’s

criticism of Leifer’s methods and conclusions. (Doc. 74 at 3.)

III. STANDARD REGARDING EXPERT TESTIMONY

Pursuant to Federal Rule of Evidence 702, “[a] witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise” if the rule's preconditions are met. As this Court has explained:

The admissibility of expert testimony is governed by Federal Rule

of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,

which provide that the court serves as a gatekeeper, ensuring all

scientific testimony is relevant and reliable. This gatekeeping role

extends to all expert testimony, whether scientific or not. Under

Rule 702, the court must consider three primary requirements in

determining the admissibility of expert testimony: 1) qualifications

of the expert witness; 2) relevance of the testimony; and 3) reliability

of the principles and methodology upon which the testimony is

based.

Fayard v. Tire Kingdom, Inc., No. 09-171, 2010 WL 3999011, at *1 (M.D. La. Oct. 12, 2010)

(internal citations omitted) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147

(1999)).

This Court has broad discretion in deciding whether to admit expert opinion testimony.

See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (1997) (appellate courts review a trial

court's decision to admit or exclude expert testimony under Daubert under the abuse of

discretion standard); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (“District

courts enjoy wide latitude in determining the admissibility of expert testimony.”); Hidden Oaks

Ltd. v. City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) (“Trial courts have ‘wide discretion’

in deciding whether or not a particular witness qualifies as an expert under the Federal Rules of

Evidence.”).

Defendants’ motion is a Daubert challenge. Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579 (1993). When Daubert is invoked, a district court may, but is not required to, hold a

hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic

Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). However, when no hearing is held, “a district court

must still perform its gatekeeping function by performing some type of Daubert inquiry.” Id. “At

a minimum, a district court must create a record of its Daubert inquiry and ‘articulate its basis

for admitting expert testimony.’ ” Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d 567,

581 (5th Cir. 2001)).

The role of the trial court is to serve as the gatekeeper for expert testimony by making the

determination of whether the expert opinion is sufficiently reliable. As the Fifth Circuit has held:

[W]hen expert testimony is offered, the trial judge must perform a

screening function to ensure that the expert's opinion is reliable and

relevant to the facts at issue in the case. Daubert went on to make

“general observations” intended to guide a district court's evaluation

of scientific evidence. The nonexclusive list includes “whether [a

theory or technique] can be (and has been) tested,” whether it “has

been subjected to peer review and publication,” the “known or

potential rate of error,” and the “existence and maintenance of

standards controlling the technique's operation,” as well as “general

acceptance.” The [Supreme] Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.

Its overarching subject is the scientific validity and thus the

evidentiary relevance and reliability-of the principles that underlie a

proposed submission. The focus, of course, must be solely on

principles and methodology, not on the conclusions that they

generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988–89 (5th Cir. 1997) (internal citations omitted).

The Supreme Court has recognized that not all expert opinion testimony can be measured

by the same exact standard. Rather, the Daubert analysis is a “flexible” one, and “the factors

identified in Daubert may or may not be pertinent in assessing reliability, depending on the

nature of the issue, the expert's particular expertise, and the subject of his testimony.” Kumho,

526 U.S. at 150, cited with approval in Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.

2002).

Cases following Daubert have expanded upon its original factors and explained that

Daubert’s listing is neither all-encompassing nor is every factor required in every case. See, e.g.,

Joiner, 522 U.S. 136, 142 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.

2004). Indeed, courts may look to other factors. Joiner, 522 U.S. at 146.

“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of expert

testimony is the exception and not the rule.’ ” Johnson v. Samsung Elecs. Am., Inc., 277 F.R.D.

161, 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 advisory committee note to 2000

amendment). Further, as explained in Scordill v. Louisville Ladder Grp.:

The Court notes that its role as a gatekeeper does not replace the

traditional adversary system and the place of the jury within the

system. As the Daubert Court noted, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” The Fifth Circuit has

added that, in determining the admissibility of expert testimony, a

district court must defer to “the jury's role as the proper arbiter of

disputes between conflicting opinions. As a general rule, questions

relating to the bases and sources of an expert's opinion affect the

weight to be assigned that opinion rather than its admissibility and

should be left for the jury's consideration.”

No. 02-2565, 2003 WL 22427981, at *3 (E.D. La. Oct. 24, 2003) (Vance, J.) (internal citations

omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (1987), and United States

v. 14.38 Acres of Land, More or Less Sit. in Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir.

1996)).

IV. DISCUSSION

A. Leifer’s Qualifications

Defendants’ contention that Leifer is not qualified to testify as an accident reconstruction

or crash analysis expert borders on the frivolous. Leifer’s curriculum vitae can be found in the

record at Doc. 69-20. Leifer has a BS degree in Mechanical Engineering from Massachusetts

Institute of Technology (Doc. 69-20 at 1), a Masters’ Degree in Mechanical Engineering from

the University of Texas, (id.), and a PhD in mechanical engineering, also from the University of

Texas, (id.). He has been an Assistant Professor of Mechanical Engineering at the University of

South Carolina – Aiken, and University of Kentucky, Padukah Campus. (Id. at 1–2.) He is

currently a Tenured Associate Professor of Mechanical Engineering at Trinity University in San

Antonio, Texas. (Id. at 1) He is a licensed professional engineer in the State of Texas. (Id. at 8;

Doc. 69-4 at 1.) He has authored or co-authored 15 peer-reviewed research publications, (id. at

3-5; Doc. 69-5 at 1), at least two of which deal with issues relevant to the present case, (Doc. 69-

4 at 2.) He has been consulted as an expert witness in crash analysis for over 14 years and

testified at trial or deposition on these issues some 150 times, (Doc. 69-4 at 1; Doc. 69-5 at 1),

never being disqualified from testifying (Doc. 69-4 at 1.)

Ignoring three degrees in mechanical engineering from two prestigious university

engineering programs and his 14 years of experience, Defendants challenge Leifer’s expertise

because he has taken no formal accident reconstruction courses and is not certified as an accident

reconstruction expert. (Doc. 66-1 at 6.) Defendants point the Court to no authority holding that

either is required for qualification as an expert witness in this field. Defendants cite no cases in

which Leifer failed to qualify as an expert witness or has been limited in his testimony. Indeed,

Leifer represents he never has. (Doc. 69-4 at 1.) Therefore, the Court rejects Defendants’

challenge on Leifer’s qualifications in accident reconstruction and crash analysis and finds him

sufficiently qualified in this area.2

Defendants argue Leifer concedes he is not a “biomechanic” (Doc. 66-1 at 6) and yet

“offers biomechanical opinions . . . [and] opinions on injuries and injury risk in motor vehicle

collisions.” (Id.) Defendants do not quote or cite Leifer’s statements, testimony or opinions about

which they are complaining. (Id.) Plaintiff insists Leifer is not being called to give biomechanical

engineering opinions but rather to criticize the basis for Bain’s “use of his calculated change

speed for the plaintiff’s van (less than 4 mph) as a metric for evaluating whether injury can

occur.” (Doc. 69-1 at 10.) In his affidavit, Leifer himself denies he is giving biomechanical

testimony and explains:

Rather than offer opinions on injury and injury risk, my report

critiques Dr. Bain’s use of his calculated change in speed for the

plaintiff’s van (less than 4 mph) as a metric for evaluating whether

injury can occur. Two of the papers I’ve listed (Tsoi and Gabler and

Allen et al. (also cited by Dr. Bain)) specifically state the change in

vehicle speed during a collision is not a reliable metric for

determining whether someone has been injured. Furthermore, I

believe that a third paper cited - - and co-written by Dr. Bain (Funk,

Cormier, Bain et al.) -- is biased, because the volunteers used to

“prove” the harmlessness of ‘everyday activities’ (purportedly

similar to the forces experienced by the Plaintiff in the subject

collision) were employees of Biodynamics Research Corporation

(BRC), the company also employing Dr. Bain. These are not

opinions on injury or injury risk; rather, they’re opinions

(based on peer-reviewed literature) on metrics used by Dr. Bain

– including a paper written by Dr. Bain himself.

2 It bears mentioning that university degrees are not necessary in order to be qualified as an expert accident

reconstructionist since such qualification can also be based on experience and training. See, e.g., Byrd v. Allstate

Prop. & Cas. Ins. Co., No. 16-563, 2018 WL 4693812, at *4 (M.D. La. Oct. 1, 2018) (deGravelles, J.). The Court

also notes that while Leifer appears well qualified as an accident reconstruction expert, “Rule 702 does not mandate

that an expert be highly qualified in order to testify about a given issue. Differences in expertise bear chiefly on the

weight to be assigned to the testimony by the trier of fact, not its admissibility.” Carlson v. Bioremedi Therapeutic

Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)).

(Doc. 69-4 at 3.)

In their reply memorandum, Defendants fail to respond or address this issue at all. It is

clear to the Court that Defendants’ argument lacks merit and rejects same.

B. Methodology and Foundation

Defendants argue Leifer’s opinions “are not consistent with the governing legal standards

for the admissibility of expert testimony,” (Doc. 66-1 at 3), and “[are] not based on sufficient

facts and data and lack[] a reliable methodology,” (id. at 6 -7). Defendants’ charge specifically

that Leifer’s “opinions are not based on [any] peer-reviewed studies or any other, reasonable

scientific studies,” (id. at 3), and that “Dr. Leifer conducted no independent testing or analysis

[but] merely critiqued Dr. Bain,” (id. at 7). Even a cursory reading of Leifer’s report shows that

these charges are unfounded.

In the first sentence of Leifer’s report, he makes clear that he is doing a crash analysis of

the subject accident as well as a critique of Bain’s “methods and conclusions.” (Doc. 69-5 at 1.)

After listing the materials reviewed and summarizing background information gathered from

those materials, Leifer goes through what he describes as an “Analysis of Chevrolet/Stump

Impact”. (Id. at 3–6.) Using data from the National Automotive Sampling System (NASS) which

is administered by the National Highway Traffic Safety Administration (NHTSA), he

summarizes the results of his analysis as follows:

Calculating the incoming speed of the van as it hit the tree stump

was accomplished by using the estimate for energy dissipation

discussed in the previous section, as well as the weight of the van

specified on p. 5 of the Bain report (6051 pounds) plus 180 pounds

for Mr. Horton. Using these estimated values and ranges, the pre-

impact speed of the van as it hit the tree stump was calculated to

range between 7.6 – 7.9 mph. Using an impact duration of 0.125

seconds [Ivory], this corresponds to an average impact force ranging

between 17260 – 17945 pounds.

(Doc. 69-5 at 6.)

Thus, despite Defendants’ bald assertion to the contrary, it is clear that Leifer did an

analysis of vehicle’s pre-impact speed and force at impact and utilized peer reviewed literature to

support it. The Court takes no position, of course, as to the correctness of Leifer’s analysis or

conclusions. That issue is for the jury. Gen. Elec. Co. v. Joiner, 522 U.S. at 154, (Stevens, J,

concurring in part, dissenting in part) (“Daubert quite clearly forbids trial judges to assess the

validity or strength of an expert's scientific conclusions, which is a matter for the jury.”)

The question for the Court is not whether the expert’s conclusions are correct but whether

the expert used a valid methodology with a sufficient foundation. Much of Defendants’ argument

is aimed at Leifer’s specific conclusions, and they support their criticism with the opinion of

their own expert. (Doc. 66-1 at 8–9.) These objections go to the weight, not admissibility, of the

evidence and are best tested by vigorous cross examination at trial.

Defendants next allege that Leifer’s “opinions are not based on any peer-reviewed studies

or any other reasonable scientific studies.” (Doc. 66-1 at 3.) This is clearly incorrect. On page

two of his report, he writes: “In addition to the materials provided, I’ve used information from

various commercial and government databases, as well as from other sources. These have either

been listed in the References section or appended to the report, as appropriate.” (Doc. 69-5 at 2.)

There are 13 articles listed in the References section of his report, (id. at 14–15), and additional

articles attached to the report, (id. at 69-6 to 69-19). Two examples of Leifer’s use of peer

reviewed literature are found in the sections of his report, (Doc. 69-5 at 6), and affidavit, (Doc.

69-4 at 3), quoted above. (See also Doc. 69-4 at 3, ¶ 6.)

In conclusion, the Court rejects this part of Defendants’ motion and finds that Leifer’s

methodology and foundation are sufficient.

V. RELEVANCE AND HELPFULNESS TO THE TRIER OF FACT

In their final attack, Defendants argue that “Dr. Leifer’s report and testimony should be

excluded on the basis that it inappropriately criticizes Dr. Bain’s report, and would not be helpful

to the trier of fact.” (Doc. 66-1 at 9 (citing Arnold v. Pfizer, Inc., 970 F. Supp. 2d 1106, 1122 (D.

Or. 2013) (“To the extent that Freeman expresses his opinion as to the relative value of Batura's

conclusions, or provides gratuitous negative characterizations of Batura's work, that content is

hereby stricken.”)).) First, the main issue about which Leifer and Bain disagree, the force of the

impact, is obviously and highly relevant. If there are errors in the analysis of either expert, it is

relevant. Ironically, while Defendants attempt to exclude Leifer’s testimony because he is critical

of Bain’s analysis, Defendants point this Court to Bain’s criticism of Leifer in support of their

motion. (See, e.g., Doc. 66-1 at 8.) Both criticisms are relevant and will help the trier of fact.

The second prong of Defendants’ attack is that Leifer’s criticism is “inappropriate” and,

by citing Arnold, 970 F. Supp. 2d at 1122, suggests that Leifer expresses an opinion as to the

“relative value of [Bain’s] work” and “provides gratuitous negative characterizations” of it. The

Court has carefully reviewed Leifer’s original report (Doc. 69-5) as well as his affidavit (Doc.

69-4) and finds that, while he makes a detailed and forceful critique of Bain’s analysis and

conclusions, this critique does not purport to opine as to the “relative value” of Bain’s opinions,

does not “provide[] gratuitous negative characterizations” and is not “inappropriate”. The Court

rejects this final part of Defendants’ motion.

VI. CLOSING THOUGHTS

It troubles the Court that counsel for Defendants cavalierly makes categorical assertions

to this Court which are demonstrably incorrect. He asserts that Leifer’s “opinions are not based

on any peer-reviewed studies or any other reasonable scientific studies,” (Doc. 66-1 at 3) when

as noted and quoted above, such is not the case. He states Leifer conducted no independent

analysis but “merely critiqued Dr. Bain,” (id. at 7) when, as discussed above, such is clearly not

the case, Leifer calculating speed and force at impact. The Court understands an attorney’s duty

to zealously advocate on behalf of his or her client but there is a line between this duty and a

lawyer’s duty of candor to the court. To enforce this distinction, the Court urges counsel for

Defendants to re-read Federal Rule of Civil Procedure 11 and to review In re Grodner, 587 F.

App’x 166 (5th Cir. 2014).

VII. CONCLUSION

For the foregoing reasons, Defendants’ Daubert Motion in Limine to Exclude Dr. Jack

Leifer (Doc. 66) is DENIED.

Signed in Baton Rouge, Louisiana, on August 26, 2021.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA