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Olivero v. Trek Bicycle Corp.

United States District Court, D. Colorado

November 16, 2017

TREK BICYCLE CORPORATION, a Wisconsin Company, Defendant.


          William J. Martinez United States District Judge.

         This lawsuit arose from a bicycle accident that caused significant injuries to Plaintiff Michael Olivero. He and his wife, Plaintiff Angela Olivero (together, the “Oliveros”), [1] sue Defendant Trek Bicycle Corporation (“Trek”) on theories of product liability, negligence, breach of warranty, and (as to Angela Olivero) loss of consortium.

         Currently 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.


         Trek 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.)

         Olivero 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.)

         On June 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 his body.

         Again, 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.)

         All of 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).


         Before 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 expert's opinions.

         A. The Competing Reports

         The 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 accident.
The bicycle components recovered following the accident were inspected . . . [in] the presence of representatives from the Trek Bicycle Corporation.
Bicycle Description:
. . . Mr. Olivero reports riding the bike under normal riding conditions without incident or impact damage until the date of the accident. . . .
Fork Description:
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 certainty:
• 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).)

         Trek 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.)[2] 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 6.)

         As for 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 described below.

(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.)

         Bretting 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.)

         B. The Oliveros' Objections to Bretting's Report

         1. Failure to Submit the Report in the Form of an Affidavit or Declaration

         Trek 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.)

         It is 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 therefore overruled.

Sanchez v. Hartley, 2017 WL 4838738, at *12 n.11 (D. Colo. Oct. 26, 2017).

         2. Improper Rebuttal Opinions

         The 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.)

         A 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.” (Id.)

         Given 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.

         The 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 expert testimony.

         Paragraph 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.

         The 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 3.[3] 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.


         Yet 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 ...

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