United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
William J. Martinez United States District Judge.
lawsuit arose from a bicycle accident that caused significant
injuries to Plaintiff Michael Olivero. He and his wife,
Plaintiff Angela Olivero (together, the
“Oliveros”),  sue Defendant Trek Bicycle Corporation
(“Trek”) on theories of product liability,
negligence, breach of warranty, and (as to Angela Olivero)
loss of consortium.
before the Court are four motions: (1) Trek's Motion for
Summary Judgment (ECF No. 33); (2) Trek's Motion in
Limine to Preclude Evidence Related to Certain Alleged
Future Economic and Noneconomic Damages (“Motion in
Limine”) (ECF No. 47); (3) the Oliveros'
Motion to Strike Defendant's Rebuttal Accident
Reconstruction Expert (“Motion to Strike Rebuttal
Expert”) (ECF No. 68); and (4) the Oliveros' Motion
to Strike the Affidavits and New Evidence from
Defendant's Summary Judgment Reply Brief (“Motion
to Strike Reply Evidence”) (ECF No. 78). For the
reasons discussed below, Trek's summary judgment motion
is denied. As for the various evidentiary motions, each is
granted in part and denied in part, and, as to certain
objections to expert testimony, both parties must elect
whether to seek a rebuttal from an expert of their own, as
explained below. Absent such an election, the Court will
strike a portion of the expert opinions in question.
designs, manufactures, and sells bicycles and their various
components. (ECF No. 33 at 3, ¶ 1.) Sometime in 2014,
Olivero purchased a Trek bicycle. (Id. ¶ 2.) On
March 25, 2015, Olivero purchased a new Trek carbon fiber
bicycle fork to replace the fork then installed on his
bicycle. (Id. ¶ 5.) This new fork was not
manufactured in a Trek facility, but was instead manufactured
by a Chinese subcontractor named Martec Industrial Corp.
(“Martec”). (ECF No. 49 at 7, ¶ 1.)
had his new fork professionally installed by the bike shop
where he purchased the fork. (ECF No. 33 at 3, ¶ 6.) The
bike shop performed the installation properly. (ECF No. 49 at
15, ¶ 1.) From that date (March 25, 2015) until the
accident that led to this lawsuit, Olivero rode his bicycle
with the replacement fork many times for a significant
distance, in the aggregate. (ECF No. 33 at 4, ¶ 7; ECF
No. 49 at 6-7.)
15, 2015, Olivero was riding his bicycle on South Garrison
Street in Lakewood, Colorado, when he “suddenly and
unexpectedly crashed.” (ECF No. 33 at 5, ¶¶
15-16.) Olivero has no memory of the event. (Id.
¶ 17.) Two eyewitnesses saw it happen, however.
(Id. at 6, ¶ 18.) These eyewitnesses were
traveling in a car some distance behind Olivero, who was
riding to the right of the automobile traffic lanes and also
to the right of a designated bike lane. (Id.
¶¶ 19-22.) Both eyewitnesses testified to seeing
essentially the same event: the bicycle fork snapped in a
backwards direction for no discernible reason, the bicycle
collapsed beneath Olivero, and he fell forward over his
handlebars and onto the pavement. (ECF No. 49 at 16,
¶¶ 4-10.) The right side of his face struck the
pavement just before, or about the same time as, the rest of
Olivero does not remember the accident. Based on his normal
riding behavior, however, he estimates that he was likely
traveling 15-20 mph at the time. (Id. at 17, ¶
12.) Post-accident investigation revealed no skidmarks or
signs of a foreign object that might have lodged in
Olivero's wheel. (Id. at 18, ¶ 17;
id. at 21, ¶ 32.)
the bicycle components, including the broken fork, have been
preserved as evidence for this lawsuit (ECF No. 33 at 7,
¶ 29), which Olivero filed on April 1, 2016 (ECF No. 1).
THE OLIVEROS' MOTION TO STRIKE TREK'S EXPERT
addressing the parties' substantive arguments for and
against summary judgment, the Court must resolve a heated
dispute over the proper extent of Trek's rebuttal
The Competing Reports
Oliveros retained Braden Kappius-who has significant
education in metallurgy, materials science, and mechanical
engineering-to inspect the broken bicycle and to provide an
expert report. Kappius's report is dated November 11,
2016. (ECF No. 68-1 at 11.) The most important statements in
the report are as follows:
The purpose of this analysis was to determine the most likely
cause of the accident and whether or not manufacturing
defects and/or improper installation and assembly of the fork
onto the frame caused or contributed to the June 15, 2015
The bicycle components recovered following the accident were
inspected . . . [in] the presence of representatives from the
Trek Bicycle Corporation.
. . . Mr. Olivero reports riding the bike under normal riding
conditions without incident or impact damage until the date
of the accident. . . .
After the accident, the fork was fractured on both fork legs
approximately 5 inches above the wheel dropout location . . .
. The location of the failure is away from any moving parts
of the wheel. There is no indication in the region of the
failure that there was [a]n impact to the fork legs from a
foreign object prior to or contributing to the failure.
After analyzing the available evidence and through
engineering analysis, we have reached the following
conclusions with a reasonable degree of engineering
• There is no engineering evidence to suggest that
improper assembly of Mr. Olivero's bicycle caused or
contributed to the June 15, 2015 incident in which Mr.
Olivero was injured.
• There is no indication of undue applied stresses to
the bicycle from, but not limited to, crashing of the
bicycle, use under unsuitable conditions which the bicycle
was not designed for[, ] or abnormal external forces.
• With the evidence available to date, all signs point
toward spontaneous and catastrophic failure of the fork that
can only be attributed to underlying defects. While these
defects might not have made themselves present prior to the
accident, that does not preclude them from existing. Carbon
fiber composites can and will often fail in a sudden and
catastrophic manner. This is a function of the mechanical
properties of carbon fiber composites.
(Id. at 11-15 (typeface formatting in original).)
designated a mechanical engineer, Gerald Bretting, as its
rebuttal expert. Bretting's rebuttal report is dated
January 6, 2017. (ECF No. 68-2 at 4.) The Bretting Report
contains a substantially longer narrative of what he observed
at the in-person inspection of Olivero's bicycle.
(Id. at 5-7.) Among his observations were “an
impact crack to the aft surface of the left fork blade
between 3.5 and 3.75 inches below the crown race seat
[i.e., below where the fork inserts into the head
tube] with scraping around in this area that leads to the
inboard surface of the left fork blade”; that the front
wheel has one broken spoke, but “[t]he direction of the
overload that caused the spoke to break cannot be determined
by the spoke alone”; and that “[t]he valve stem
of the inner tube [of the front wheel] is bent from a load
that is opposite the direction of rotation.”
(Id. at 5, 6.) Later in the report, it becomes clear
that the broken spoke was immediately adjacent to the bent
valve stem. (Id. at 7.) Bretting also noted that the
parts of the bicycle that normally sit closest to the ground,
i.e., the crank arms and the chain rings, showed
“no signs of ground contact.” (Id. at
his opinions, Bretting disputes Kappius's statement
that there is no indication of undue applied stresses to the
bicycle frame; to the contrary, there is abundant physical
evidence of stress being applied at the aft facing surface of
the left fork blade, which then translated into force on the
forks being applied by the rider pitching over the front as
(Id. at 7, ¶ 1(a).) This opinion foreshadows
the bulk of Bretting's remaining opinions, which largely
comprise a description of how a foreign object must have been
picked up and carried by the valve stem or a spoke until it
lodged against the aft surface of the fork blade, which bent
the valve stem and then lodged against the adjacent spoke,
causing the wheel to suddenly stop rotating, in turn causing
Olivero and the rearward portion of his bicycle to pitch
forward around the axis created by the now-immobilized front
wheel. That forward pitch caused an enormous amount of stress
on the spoke and the forks, causing both to break.
(Id. at 7-8, ¶¶ 2-5.) But, says Bretting,
Olivero would have pitched forward and off his bike in any
event (i.e., even if the fork had not broken) given
the sudden stoppage of the front wheel. (Id. ¶
4.) Bretting's reconstruction of this scenario contains
details at the millisecond level, e.g., how long it
would take for a foreign object to be picked up and carried
until it hit the back of the fork, how quickly the fork would
have snapped, etc. (Id. ¶ 3.)
also offered the following attacks on Kappius's opinions:
The loads required to break a spoke of the front wheel were
in the order of magnitude of 400 to 500 lbs. A load of this
magnitude is only created when the bicycle and rider are
pitching over with an object wedged between the back of the
fork and a spoke.
The cracking on the under surface of the fork crown is
further evidence of a large rearward load being applied to
the fork blades.
During normal riding the fork is in [sic] forward
bending. The load on the fork on a smooth road with a 160 lb
rider with his hands on the brake hoods is between 72 and 144
lbs. If the fork was to break under those circumstances, the
front wheel would move forward away from the rest of the
bicycle. As the front wheel moves away, the bicycle will drop
toward the ground with either the large chain ring or a crank
arm impacting the ground first followed by the upper fracture
surface of the fork blades.
The lack of physical evidence of ground contact to the chain
rings, crankarms, chain, and the upper fracture surfaces of
the fork blades is inconsistent with the fork failing during
normal riding loads.
(Id. at 8, ¶¶ 7-10.)
The Oliveros' Objections to Bretting's
Failure to Submit the Report in the Form of an Affidavit
attached Bretting's expert report as-is to its summary
judgment motion. The Oliveros, in their response brief,
objected that Bretting's opinions are not competent
summary judgment evidence in that form, but must be in the
form of an affidavit or declaration. (ECF No. 49 at 14.)
Trek, in its reply brief, attached an affidavit from Bretting
attesting that he would testify consistent with his expert
report. (ECF No. 63-2.) He expressed no new opinions in that
affidavit. Unsatisfied, the Oliveros filed their Motion to
Strike Reply Evidence, opening with a gratuitous ad
hominem: “It appears that Trek simply cannot
figure out how to procedurally pursue a summary judgment
motion. Further motion practice is therefore
necessary.” (ECF No. 78 at 1.) The Oliveros argue that
Bretting's reply affidavit is simply too late.
(Id. at 1-4.)
difficult to understand how such a petty and easily
correctable issue could be worthy of motion practice.
Unfortunately, the Oliveros' counsel have company-the
Court has recently faced this issue in multiple cases. The
resolution here is the same as before:
The Court is frankly tired of addressing this utterly
formalistic and baseless (yet surprisingly common) objection.
See Pertile v. Gen. Motors, LLC, 2017 WL 4237870, at
*2 (D. Colo. Sept. 22, 2017). The cases [the Oliveros] cite
in support of [their] position-Adickes v. S. H. Kress
& Co., 398 U.S. 144, 158 n.17 (1970), and
Sofford v. Schindler Elevator Corp., 954 F.Supp.
1459, 1462-63 (D. Colo. 1997)-have been abrogated on this
point by the 2010 amendments to Federal Rule of Civil
Procedure 56. See Pertile, 2017 WL 4237870, at *2
& n.3. The proper question at summary judgment is whether
the proffering party “is incapable of presenting its
experts' intended testimony ‘in a form that would
be admissible in evidence [at trial].'” Gunn v.
Carter, 2016 WL 7899902, at *2 (D. Colo. June 13, 2016)
(quoting Fed.R.Civ.P. 56(c)(2)). [The Oliveros] do not
attempt to show that [Trek] cannot bring [Bretting] to
testify at trial, or that [Bretting's] opinions have not
been adequately disclosed. [The Oliveros'] objection is
Sanchez v. Hartley, 2017 WL 4838738, at *12 n.11 (D.
Colo. Oct. 26, 2017).
Improper Rebuttal Opinions
Oliveros have a second attack on Bretting's report. Trek
disclosed Bretting as a rebuttal expert, but, according to
Trek, Bretting's opinions go well beyond proper rebuttal.
(ECF No. 68.)
proper rebuttal expert opinion is one offered “solely
to contradict or rebut evidence on the same subject matter
identified by another party” through that party's
affirmative expert disclosures. Fed.R.Civ.P. 26(a)(2)(D)(ii).
Understanding whether any of Bretting's opinions are
proper rebuttal opinions requires keeping in mind the
following three statements that Kappius made in his report:
• “There is no indication in the region of the
failure that there was [a]n impact to the fork legs from a
foreign object prior to or contributing to the
failure.” (ECF No. 68-1 at 14.)
• “There is no indication of undue applied
stresses to the bicycle from, but not limited to, . . .
abnormal external forces.” (Id. at 15.)
• “With the evidence available to date, all signs
point toward spontaneous and catastrophic failure of the fork
that can only be attributed to underlying defects.”
these statements, Bretting remained within the realm of
proper rebuttal by offering contrary opinions, i.e.,
that there is an indication in the region of the
failure of an impact from a foreign object; that there
is an indication of undue applied stresses from
abnormal external forces; and that “all signs” do
not point toward spontaneous failure that can only
be attributed to underlying defects. Bretting was also
entitled to explain why he believes these opinions are true,
namely, why the evidence leads him to believe that a foreign
object became lodged in the spokes and then against the back
of the fork, causing a pitch-over event that led both to the
fork breaking and Olivero tumbling over the handlebars.
Oliveros argue that “[t]his fanciful defense theory
could have never been foreseen by Plaintiffs as an
alternative cause that had to be ruled out.” (ECF No.
68 at 11.) They even go so far as to claim that
Bretting's theory “was about as expected and
fanciful as Mr. Olivero being somehow stricken by unseen
lightning descending from the heavens!” (ECF No. 77 at
8.) This is simply not true. Kappius's report
specifically describes whether he saw evidence of a foreign
object, or of undue external forces, or of any potential
cause aside from a latent defect. He says he did not.
Bretting says he did. The jury will decide whose opinions are
more plausible, but Kappius's report shows that a theory
such as Bretting's was at least foreseeable. Accordingly,
the Court finds that paragraphs 1-2 and 4-15 of
Bretting's “Opinions” section (ECF No. 68-2
at 7-9) are proper rebuttal opinions that may be tested
through cross-examination, as with all other admissible
3 of Bretting's “Opinions” section, however,
requires a different result. This paragraph goes far beyond
an opinion that the damage to the bike is consistent with a
foreign object lodging in the spokes. It instead provides a
millisecond-by-millisecond account of how Bretting believes
the accident played out. It is, in other words, an
affirmative accident reconstruction opinion. Its apparent
primary purpose is to show how a fork failure caused by a
foreign object could happen so quickly that it would be
indistinguishable to most eyewitnesses from spontaneous
failure-which is what the eyewitnesses here said that they
saw. This is not offered solely to contradict or rebut
Kappius's report, and should have been disclosed no later
than the affirmative expert deadline, thus giving the
Oliveros a chance to provide a rebuttal.
question at this point is the proper remedy. The default
remedy is exclusion, per Rule 37(c)(1). However, the Court
will give the Oliveros a choice between exclusion or
obtaining a rebuttal to Bretting's paragraph
If the Oliveros choose to obtain a rebuttal report, the Court
will set an appropriate deadline that accommodates the
quickly approaching trial. The Oliveros' choice has no
effect on the outcome of Trek's summary judgment
arguments, as will become clear in Part IV, below.
THE OLIVEROS' MOTION TO STRIKE REPLY EVIDENCE
another evidentiary motion stands in the way of the
Court's summary judgment analysis. The Oliveros have
moved to strike an affidavit submitted with Trek's
summary judgment reply ...