United States District Court, D. Colorado
ORDER ON MOTIONS TO EXCLUDE EXPERT
Y. WANG, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on three pretrial motions:
(1) Defendants' Motion to Exclude Expert Testimony of
Robert Bess, M.D., Regarding Future Medical Treatment
(“Motion to Exclude Dr. Bess”) [#99, filed July
(2) Defendants' Motion to Exclude or Limit Expert
testimony of Ann Stodola, P.E. (“Motion to Exclude Ms.
Stodola”) [#100, filed July 18, 2017]; and
(3) Defendants' Motion to Exclude or Limit Expert
Testimony of Roger Allen (“Motion to Exclude Mr.
Allen”) [#101, filed July 18, 2017].
Motions are before the undersigned pursuant to 28 U.S.C.
§ 636(c) and the Order of Reference dated July 22, 2016
[#30]. This court has reviewed the Motions and the associated
briefs, the entire docket, and the applicable case law. In
addition, the court held an evidentiary hearing on November
15, 2017, at which it considered the foundational issues
raised by the Motion to Exclude Ms. Stodola. For the reasons
set forth below, this court respectfully GRANTS IN PART and
DENIES IN PART the Motion to Exclude Dr. Bess; GRANTS IN PART
AND DENIES IN PART the Motion to Exclude Ms. Stodola; and
GRANTS IN PART and DENIES IN PART the Motion to Exclude Mr.
case arises from a motor vehicle collision that occurred on
January 30, 2014, when a tractor-trailer truck driven by
Defendant Thomas M. Estrada (“Defendant
Estrada”), and owned by Defendant MVT Services, LLC
d/b/a Mesilla Valley Transportation, Inc. (collectively,
“MVT”), struck the tractor-trailer truck in which
Plaintiff Celedonio Bautista (“Plaintiff” or
“Mr. Bautista”) was riding. [#5]. Mr. Bautista
contends that Mr. Estrada was traveling at an unsafe speed
for the winter conditions and caused the collision.
[Id. at ¶ 13]. Plaintiff alleges that as a
result of the collision, he was thrown from his sleeper bed
in the tractor-trailer and has suffered “serious and
severe personal injuries, including … [suffering] a
massive retracted tear of the rotator cuff which forced [him]
to have surgery and will require further surgery in the
future due to this collision.” [Id. at
¶¶ 15, 22]. Mr. Bautista originally filed this
action in District Court for Boulder County, Colorado on
April 6, 2016. [Id. at 1]. Defendants removed the
case to the United States District Court on May 12, 2016.
Complaint, Mr. Bautista asserts common law claims for
negligence and negligence per se against Defendants
and a claim for negligent entrustment against
See [#5]. On February 27, 2017, Defendants filed a
Motion for Partial Summary Judgment as to the negligent
entrustment claim and, on March 7 2017, supplemented the
Motion with recently issued authority from the Colorado
Supreme Court. See [#82, #83, #85]. The Parties then
stipulated to the dismissal of the claim for negligent
entrustment, leaving only the claims for negligence and
negligence per se against both Defendants.
See [#88, #89]. Mr. Bautista seeks both economic and
non-economic damages, including past and future medical bills
and healthcare costs, loss of future earnings, loss of
earning capacity, loss of past and future benefits, and loss
of household services, as well as for pain and suffering and
emotional distress. He also seeks prejudgment and
postjudgment interest and costs. [#5 at 8]. The court entered
a Final Pretrial Order on May 3, 2017, and a Trial
Preparation Order on May 19, 2017. A five day jury trial is
set to commence on January 22, 2018. See [#95].
18, 2017, Defendants filed three separate motions to exclude
expert testimony offered by three of Plaintiff's
designated experts: Robert Bess, M.D. (“Dr.
Bess”), Plaintiff's retained orthopedic surgeon
[#99]; Anne Stodola, P.E. (“Ms. Stodola”),
Plaintiff's retained professional engineer [#100]; and
Roger Allen (“Mr. Allen”), Plaintiff's
retained trucking industry expert [#101]. Plaintiff filed
responses to each of the respective motions, see
[#107, #108, #109], and Defendants filed replies,
see [#110, #112, #111]. The court then scheduled an
evidentiary hearing on the Motions that occurred on November
27, 2017 [#133] and December 4, 2017 [#138]. At the
respective hearings, each of the experts testified, but no
documentary evidence was admitted. The court took the matters
under consideration and now turns to consider each
702 of the Federal Rules of Evidence permits as follows:
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:
(a) 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;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
noted by the Advisory Committee when the Rule was
promulgated, “[a]n intelligent evaluation of facts is
often difficult or impossible without the application of some
scientific, technical, or other specialized ...