United States District Court, D. Colorado
ORDER ON MOTIONS IN LIMINE
JOHN L. KANE, Senior District Judge.
Plaintiff Kelly Willerding was driving westbound on I-70 in a 2004 Toyota Camry on the morning of December 7, 2008. Defendant Richard Steger, driving westbound on I-70 in a semi-truck trailer ("truck"), struck Ms. Willerding's vehicle and caused it to lose control and crash, allegedly leading to various injuries sustained by Ms. Willerding. Mr. Steger is a professional truck driver employed by Defendant HTC Express, Inc. Ms. Willerding filed suit against both driver and employer in Colorado district court in Summit County and Defendants removed to federal court. At issue are Ms. Willerding's Motion In Limine, ECF DOC 52 (Dec. 4, 2013); Defendant's Motion In Limine, ECF DOC 54 (Dec. 6, 2013); and Defendants' First Revised Objections and Deposition Designations (considered as a motion per Chambers instruction), ECF DOC 55 (Dec. 6, 2013); which variously request the court to take judicial notice of certain applicable state and federal highway safety statutes, discloses the parties' deposition designations, and expresses Ms. Willerding's intent to cross-examine Defendants and Defendants' witnesses (including experts) about their awareness of the statutes sought to be judicially noticed and their understanding of the conduct necessary for compliance with those statutes.
Defendants' motions object to several of Ms. Willerding's designations on the ground that they impermissibly concern the meaning and applicability of the safety statutes and accordingly "invade the province of the court" to define the law for the jury and then designate their own deposition testimony. Ms. Willerding in turn has objected to several excerpts of Defendants' designations and those objections are addressed following those of Defendants'.
II. FRE 702
Federal Rule of Evidence 702 states in part that:
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 expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Fed. R. Evid. 702. Under Rule 702, the expert's ability to offer an opinion is proper only so long as "the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function." Specht v. Jensen, 853 F.2d 805, 809-10 (10th Cir. 1988). More recently, the Tenth Circuit held that "[e]xpert witnesses may not testify as to ultimate issues of law governing the jury's deliberations, because instructing the jury is the function of the trial judge." U.S. Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1150 (10th Cir. 2009) (citing Sprecht ). However, the court recognized that "a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms." Sprecht at 809.
Defendants' objections to Ms. Willerding designated testimony regarding the various highway safety statutes and regulations and Ms. Willerding's plan to reference them in cross-examination rests principally on these two Tenth Circuit cases. Under this case law, they object to any discussion of the "meaning and application of various laws and regulations" as violations of Rule 704. They correctly state the restriction imposed by Sprecht and later U.S. Aviation, but do not show it relevant to the opposed content. Both of these cases involved experts called to testify as to whether the law applied to the set of facts at issue and then to render an ultimate opinion as to whether the litigated conduct was legal. The Tenth Circuit has categorized state of mind inquiries or explanations "couched in legal terms" as outside the "narrow" line drawn restricting an expert's ability to opine on the law. Sprecht at 809 (citing Herman & MacLean v. Huddleston, 459 U.S. 375) (attorney expert in securities law allowed to testify that a statement in a prospectus was standard language for the issuance of a new security because this information helped the jury weigh the evidence of defendants' scienter). Defendants would render the "meaning and application" restriction so broadly that it would exceed the narrow rule in Sprecht that barred testimony by experts which defined the scope of the law and thus restrict more testimony than is called for by the Tenth Circuit's earlier holding.
A. Deposition of Richard Steger - Defendant's Objections
Defendants object to lines 8:21-12:6, 27:9-29:15, 30:4-30:17, 68:4-68:17, 81:2-81:12, 83:10-83:19 of Mr. Steger's deposition testimony. Defs.' Objections Pl.'s Designations 2-3, ECF DOC 55 (Dec. 6, 2013) (referencing Ex. 1, Pl.'s Br. Supp. Pl.'s Mot. Summ. J., ECF DOC 29 (Jan. 17, 2013)). Here, Ms. Willerding's counsel questions Mr. Steger about the laws as he knew them, what they required, and what he needed to do personally to stay in compliance with them. Rather than asking about the scope and applicability of various laws generally as contemplated in Sprecht, Ms. Willerding's counsel asks Mr. Steger if he knew the laws and regulations that governed his conduct and if he knew what he must do to stay in compliance with the law. On the whole, the line of questioning is a factual inquiry into Mr. Steger's own knowledge and understanding at the time of the incident, and does not invade the province of the judge to define the law for the jury. Therefore, Defendants' objection to the designations are overruled (8:21-12:6, 27:9-29:15, 30:4-30:17, 68:4-68:17, 81:2-81:12, 83:10-83:19). Of course, should counsel stray into the territory of Sprecht and its progeny during any live questioning of Ms. Steger and Defendants' objections are renewed, such objections will be sustained.
B. Deposition of Dr. Kaylee Boutwell - Defendant's Objections
Because Ms. Willerding disclosed Dr. Kaylee Boutwell as only a treating physician witness and not also as an expert witness, Defendants object to lines 37:4-37:12 and 37:13-38:5 of her deposition testimony. Defs.' Objections Pl.'s Designations 5, ECF DOC 55 (Dec. 6, 2013). At 37:4-37:12, Defendants object to Dr. Boutwell answering a question about whether she frequently saw patients months or even years after an accident. At 37:13-38:5, Ms. Willerding's counsel asks Dr. Boutwell whether the injuries she observed on Ms. Willerding were likely consistent with a car accident. The latter question is a ...