United States District Court, D. Colorado
Daniel D. Domenico United States District Judge.
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.
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. §
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.)
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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
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).
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.
Defendants' Motion to Limit Testimony of Trooper
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.
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.
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
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.
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
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.
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