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Anzora v. Lezama

United States District Court, D. Colorado

July 24, 2019



          Hon. Daniel D. Domenico United States District Judge.

         This diversity case for damages arises out of a midnight collision between two tractor-trailers. Plaintiff alleges that she sustained injury when Defendant, travelling in the opposite direction, negligently veered into her lane and struck the driver side mirror of her truck. Before the Court are several evidentiary motions, which the Court considers in turn.

         I. BACKGROUND

         The basic facts are not in dispute. Plaintiff Maritza Anzora and Defendant Jose Lezama are tractor-trailer (i.e., semi-truck) drivers. Defendant Meja Logistics, LLC, is Mr. Lezama's trucking company. On May 9, 2016, at 12:45 a.m., Ms. Anzora and Mr. Lezama were traveling in opposite directions on U.S. Route 40 in Lincoln County, Colorado. Ms. Anzora had just taken over driving from her husband and was heading east. Near milepost 420 on the two-lane highway, Ms. Anzora alleges she saw Mr. Lezama's westbound semi-trailer headed toward her and entering her lane. She swerved to the right shoulder, but despite her best efforts she could not avoid a collision between the driver-side mirrors of the two trucks. Debris from Mr. Lezama's truck broke through Ms. Anzora's windshield and struck her head, face, neck, chest, and arms. She pulled over to the side of the road, but Mr. Lezama kept driving and was miles away before the authorities caught up with him. The Colorado State Patrol responded to the scene of the collision, investigated further, concluded that Mr. Lezama had fallen asleep at the wheel, and cited him for careless driving in violation of Colo Rev. Stat. § 42-4-1402.

         Ms. Anzora filed this diversity action on August 16, 2017, asserting a single claim of negligence against Defendants, who denied liability and maintain that Mr. Lezama did not enter Ms. Anzora's lane. Discovery is complete, the deadline for filing dispositive motions has passed, and the parties now move to exclude certain evidence at trial. Defendants seek to limit testimony of the investigating officer, who cited Mr. Lezama for the accident, and additional witnesses who aim to testify concerning the reasonableness of Ms. Anzora's medical bills. (Docs. 87, 95, 96, 97.) Ms. Anzora moves to exclude Mr. Lezama's accident reconstruction expert entirely, asserting his conclusions are impermissibly unreliable. (Doc. 110.) These matters are ripe for review. (Docs. 91, 94, 98, 99, 100, 104, 105, 106, 119, 122.)

         II. ANALYSIS

         The motions before the Court concern, in large part, the standard for admission of opinion testimony by experts. 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:
(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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         Additionally, Rule 703 permits an expert to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”

         While the proponent of expert testimony is not required to prove that the expert's opinion is objectively correct, it bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999); Benton v. Avedon Eng'g, Inc., No. 10-CV-01899-RBJ-KLM, 2012 WL 3399367, at *2 (D. Colo. Aug. 15, 2012) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10 (1993)). In evaluating proffered expert testimony under these rules, a district court must first decide “whether the reasoning or methodology underlying the testimony is [ ] valid.” Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 (10th Cir. 2005) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993)). Second, the district court must inquire into whether proposed testimony is sufficiently “relevant to the task at hand.” Id. Third, it must decide whether the testimony is reliable. To this end, a court's function is that of gatekeeper, which it performs by making specific findings on the record. Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000).

         “[A]ny step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.” Mitchell, 165 F.3d at 782. Additionally, “[u]nder the regime of Daubert . . . a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.” Id. at 783. Whether the specific expert testimony at hand focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a case, the expert's testimony often will rest “upon an experience confessedly foreign in kind to [the jury's] own. The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (holding the Daubert factors applicable to all types of experts). With these principles in mind, the Court turns to the motions at hand.

         A. Defendants' Motion to Limit Testimony of Trooper Kirby

          Colorado State Patrol Trooper Delbert Kirby has thirteen years of experience in his position. He has over 256 hours of accident reconstruction training through a variety of classroom and practical exercises. His topics of study included-among others-classification and processing of an accident scene, the different types of roadway evidence, vehicle damage analysis, hit and run accidents, crash scene photography, related mathematical principles, and deciphering “how” a crash occurred. He regularly completes online refresher courses.

         Trooper Kirby was on duty during the early hours of May 9, 2016. Dispatch notified him of the collision, and he arrived about an hour after it occurred. Only Ms. Anzora's truck remained at the scene, but it had been moved from the point of impact. He noted the damage to the truck, clear weather conditions, and lack of obstructions on the road. He went to the hospital and interviewed Ms. Anzora who spoke consistently with her allegations in the Amended Complaint. After Mr. Lezama's truck was stopped some miles away, Trooper Kirby interviewed him. Mr. Lezama stated that Ms. Anzora's truck had gotten too close to the center and the mirrors clipped as he was trying to set his radio station.

         Trooper Kirby then prepared an accident report form, including a field sketch diagram, in which he concluded that Mr. Lezama crossed the double yellow line into Ms. Anzora's lane, was distracted, likely fell asleep, and hit Ms. Anzora in her lane. While his conclusion considered all the evidence he gathered, he testified at deposition that it was largely based on his evaluations of the parties' statements and their post-collision conduct:

Q. When you're investigating a crash like this, how do you decide the outcome? How do you decide responsibility?
A. This crash was a little bit unique in that there was no definitive point of impact where the accident happened that I could say 100 percent positive that it either happened in her lane or in his lane. I based this decision on their statements, based on the fact that she stopped and reported it, based on his statement that he didn't have a cellphone signal to report the crash. And after that he actually drove through the nearest town where there would be a dispatch center, a hospital, and a gas station where he could've stopped and reported the accident. . . .
Q. When you make an assessment to your opinion on what happened, how big of a role does your interpretation of the truthfulness of a witness play?
A. It depends on the circumstances. In this case, without having any physical evidence on-scene of the accident that I could find, it was based - very highly based on the truthfulness of - or the interview of both drivers.

         Trooper Kirby cited Mr. Lezama for careless driving causing bodily injury, failing to remain at the scene of an accident involving injury, and failing to notify police of an accident.

         Ms. Anzora disclosed Trooper Kirby as a non-retained expert expected to testify consistently with the findings, opinions, and conclusions noted above. Defendants seek to exclude any of his opinions, drawings made, or citations given based on his assessment of the credibility of the parties. Credibility, they argue, is the province of the jury. They further submit that, to the extent his opinions do not rely on the parties' statements, they were not based on sufficiently reliable accident analysis methods as to warrant inclusion. Ms. Anzora counters by suggesting that Trooper Kirby will not be offering impermissible opinion testimony because his conclusions were based on many factors other than the parties' credibility.

         Defendants frame their motion under United States v. Hill, 749 F.3d 1250 (10th Cir. 2014). There, the defendant was convicted of robbery after an FBI agent trained in “special tactics and ways to identify deception in statements and truths in statements” testified at trial that the defendant's “answers [during an interrogation] were not worthy of credence and did not make sense.” Id. at 1251. The agent commented that certain of the defendant's statements were evasive and inconsistent with any he had heard from an innocent person. Id. He concluded, “My training has shown me, and more so my experience in all these interviews, . . . [that t]hose are deceptive statements.” Id. On ...

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