McKeon v. Aaran Transport, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Raymond P. Moore
Civil Action No. 21-cv-03264-RM-KAS
KIM MCKEON,
Plaintiff,
v.
BANK OF AMERICA,
AARAN TRANSPORT, LLC,
NUR ABDI, and
DAVID BAILEY,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This Order addresses eight Motions now pending in this personal injury action: six
motions to strike or preclude expert testimony (ECF Nos. 159, 160, 161, 162, 163, 164) and two
motions in limine (ECF Nos. 186, 187). The Motions have been briefed and are ripe for review.
I. 	BACKGROUND
This case arises from a series of vehicle crashes that happened on a snowy day on
Interstate 70. (ECF No. 131, ¶ 3.) On March 3, 2019, Defendant Abdi was driving a semi-truck
owned by Defendant Aaran Transport, LLC down the highway in the left lane when he struck a
Mazda CX-5. (Id. at ¶¶ 1, 2, 6.) The Mazda spun out of control, striking a Nissan Pathfinder in
the center lane. (Id. at ¶¶ 7.) The Pathfinder then spun out of control and rolled. (Id. at ¶ 10.)
The semi-truck, Mazda, Pathfinder, and two other vehicles all ended up along the ditch on the
side of the highway. (Id. at ¶ 19.) The Pathfinder was on its side. (Id. at ¶ 10.)
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At the time of the initial accident, Plaintiff was a backseat passenger in a Nissan Rogue
traveling in the center lane. (Id. at ¶ 13.) After the driver of the Rogue saw the semi-truck pass
on the left and hit the Mazda, he pulled over, about even with the Pathfinder. (Id. at ¶¶ 15, 16,
18.) Plaintiff and her sister exited the Rogue to see if the occupants of the Pathfinder needed
help. (Id. at ¶¶ 22, 25.) One of the occupants had already exited the vehicle, and Plaintiff’s
sister helped another climb out through a window. (Id. at ¶¶ 26, 27.) A third occupant was able
to exit without assistance. (Id. at ¶¶ 31, 38, 39.)
In the meantime, Defendant Bailey, an employee of Defendant Bank of America, was in
the center lane and approaching the scene in an Audi A4.1 (Id. at ¶¶ 47, 48.) As he changed into
the right lane to avoid a slow-moving tractor-trailer, his car began sliding. (Id. at ¶ 49.) The
Audi slid off the road and struck Plaintiff as she was standing next to the Pathfinder, causing her
serious injury. (Id. at ¶¶ 50, 99, 105, 106.)
Plaintiff filed her Complaint in this action in December 2021. (ECF No. 1.) She asserts
claims for negligence and negligence per se against Defendant Bailey and for vicarious liability
against Defendant Bank of America (collectively, the “BOA Defendants”). She also asserts
claims for negligence and negligence per se against Defendant Abdi and for vicarious liability,
negligent entrustment, negligent hiring and retention, and negligent training and supervision
against Defendant Aaran Transport (collectively, the “Aaran Defendants”). The parties have
filed various motions seeking to limit the testimony and evidence that may be presented at trial.
1 Plaintiff contends Defendant Bailey was acting in the scope of his employment at the time.
(ECF No. 1, ¶ 65.)
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II. 	LEGAL STANDARDS
A. 	Expert Testimony
“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.” Fed. R. Evid. 702. “The proponent
of expert testimony bears the burden of showing that its proffered expert’s testimony is
admissible.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).
The Court has the duty to act as a gatekeeper by ensuring that an expert’s testimony rests
on a reliable foundation and is relevant to the task at hand. Bill Barrett Corp. v. YMC Royalty
Co., LP, 918 F.3d 760, 770 (10th Cir. 2019). If the Court determines that an expert is
sufficiently qualified to render an opinion, it must then determine whether the expert’s opinion is
reliable by assessing the underlying reasoning and methodology. See Nacchio, 555 F.3d at 1241.
In doing so, the Court considers (1) whether the testimony is based on sufficient facts or data;
(2) whether it is the product of reliable principles and methods; and (3) whether the expert has
reliably applied the principles and methods to the facts of the case. See Fed. R. Evid. 702(b)-(d).
If the evidence is sufficiently reliable, the Court then evaluates whether the proposed
evidence or testimony is sufficiently relevant that it will assist the jury in understanding the
evidence or determining a fact at issue. See Norris v. Baxter Healthcare Corp., 397 F.3d 878,
884 (10th Cir. 2005). The Court has discretion in how it performs its gatekeeper function.
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See Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000).
III. 	MOTIONS TO STRIKE OR PRECLUDE TESTIMONY
A. 	Mr. Barbera
The BOA Defendants have moved to strike or limit the testimony of Guy Barbera,
Plaintiff’s expert who is an engineer and accident reconstructionist, on the grounds that he is not
qualified to opine on “human factors” that may have contributed to the accident and that he did
not use a reliable methodology in reaching certain opinions about Defendant Bailey and Plaintiff.
Specifically, the BOA Defendants object to Mr. Barbera’s opinions that Defendant Bailey “failed
to keep a proper lookout, to slow down, and to maintain control of his vehicle” and that his
actions were “unsafe and unreasonably dangerous.” (ECF No. 159 at 2.) They also object to
Mr. Barbera’s opinion that Plaintiff did not cause her own injuries because it was normal and
expected for her to exit her vehicle to attempt to help the occupants of the Pathfinder as well as
to any opinions by Mr. Barbera seeking to rebut those of their expert on human factors and
ergonomics, Dr. Figueroa. (Id. at 11.)
Citing Bottorff v. Swift Transportation Co., 2009 WL 10706716, at *4 (D. Kan. July 22,
2009) (unpublished), the BOA Defendants contend that “human factors” is “the scientific
discipline concerned with the understanding of interactions among humans and other elements of
a system, and the profession that applies theory, principles, data, and other methods to design in
order to optimize human well-being and overall system performance.” But they have not
presented any authority for the proposition that opinions related to human factors are
categorically distinct from those Mr. Barbera can present based on his expertise as an engineer
and accident reconstructionist. Further, the BOA Defendants do not challenge Mr. Barbera’s
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qualifications as an expert in accident reconstruction or make any showing that his opinions are
unreliable. Nor is the Court persuaded that simply because Mr. Barbera’s opinions amount to
impermissible attacks on Defendant Bailey’s credibility simply because they are unfavorable to
the BOA Defendants. “Ultimately, the rejection of expert testimony is the exception rather than
the rule.” O’Sullivan v. GEICO Cas. Co., 233 F. Supp. 3d 917, 922 (D. Colo. 2017) (quotation
omitted). In rejecting the Aaran Defendants’ Motion, the Court notes the absence of anything in
Mr. Barbera’s reports that would preclude the jury from making its own assessment as to how to
apportion liability for Plaintiff’s injuries. The Court will consider any additional objections to
Mr. Barbera’s testimony at trial, but for present purposes the BOA Defendants’ Motion is
denied.2
B. 	Mr. Opp
The BOA Defendants have also moved to strike the testimony of Jeffrey B. Opp,
Plaintiff’s financial expert, on the grounds that “his opinions regarding future wage loss are
invalid because they are based on assumptions that proved to be false.” (ECF No. 160 at 1.) But
the Court cannot agree that because some of Mr. Opp’s projections rely on the assumption that
Plaintiff would stop working or reduce her workload beginning January 1, 2023—neither of
which has materialized—his opinions are therefore rendered invalid and unhelpful to the jury.
The jury, not Mr. Opp, will ultimately be charged with determining when they expect Plaintiff to
stop working and the impact that will likely have on her future losses. The Court has little
2 Although the Motion is denied, the Court does not intend to grant carte blanche as to testimony
pertaining to actors’ conduct. While the request to exclude is overbroad, the Court will consider
at trial narrower objections concerning matters such as conclusory legal opinions or testimony
that lacks a factual basis or exceeds an expert’s area of expertise.
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trouble finding that Mr. Opp’s projections of Plaintiff’s future earnings, which are based on her
historical earnings, are likely to be helpful to the jury in calculating the amount of her future
losses.
While the Court agrees with the BOA Defendants that Mr. Opp’s supplemental report—
submitted after the Motion was filed and after the deadline for expert disclosures had passed—
must be excluded, the Court discerns no basis for excluding Mr. Opp’s initial report or limiting
his testimony about Plaintiff’s potential future earnings. The BOA Defendants do not challenge
Mr. Opp’s qualifications or attempt to show that the information he relied upon is unreliable.
Accordingly, the Court will deny the Motion and allow Mr. Opp to testify about his initial report
and to opine on Plaintiff’s potential future earnings and how they will be impacted when she
stops working.
C. 	Dr. Hyzy
The BOA Defendants have moved to strike or limit the testimony of Matthew W. Hyzy,
Plaintiff’s expert on life care planning. Mr. Hyzy, a physiatrist, opines on the cost of Plaintiff’s
future medical treatment. The BOA Defendants contend that certain testimony by Dr. Hyzy is
outside the scope of his expertise and not based on reliable methodology and that he lacks
qualifications to offer some of his opinions. The Court is not persuaded.
There is no dispute that Dr. Hyzy is a board-certified physiatrist who has received
additional training to become a life care planner. As explained in Plaintiff’s Response,
Dr. Hyzy’s opinions constituting Plaintiff’s life care plan are based on 80th percentile
methodology and the Context4Heathcare database. (ECF No. 179 at 4-7.) Based in part on Dr.
Hyzy’s qualifications and extensive experience as a medical doctor, the Court is not persuaded
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that the life care plan he created is so outside the scope of his expertise as to render his opinions
inadmissible. The Court finds that BOA Defendants’ criticism of Dr. Hyzy’s testimony goes to
its weight rather than its admissibility. To the extent Defendants seek to challenge Dr. Hyzy’s
qualifications or methodology, they may do so by cross-examination or by offering competing
evidence at trial. The Motion is denied.
D. 	Mr. Michener
The BOA Defendants have also moved to limit the testimony of Adam Michener, an
engineer and accident reconstructionist retained by the Aaran Defendants. Specifically, the BOA
Defendants contend that Mr. Michener should not be allowed to offer his opinion that Defendant
Bailey “was driving too fast for conditions, inattentive, distracted, impaired or a combination
therein if his report of avoiding a collision with a slower moving vehicle prior to his loss of
control is true.” (ECF No. 162 at 2.) They also contend that because Mr. Michener is not an
expert in human factors, he should not be able to provide rebuttal opinions in response to the
BOA Defendants’ human factors expert, Dr. Figueroa.
This Motion raises similar arguments to those made against Mr. Barbera. The BOA
Defendants do not challenge Mr. Michener’s qualifications as an engineer or accident
reconstructionist. Rather, they contend that he used no methodology in reaching his opinion that
Defendant Bailey was driving negligently. However, as explained in the Aaran Defendant’s
Response, Mr. Michener’s opinions are based on his review of over twenty-five different
sources, including forensic engineering inspections of the Audi and the incident site, accident
reports, deposition testimony, and weather reports. “As a general rule, the factual basis of an
expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the
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opposing party to examine the factual basis for the opinion in cross examination.” Squires
v. Goodwin, 829 F.Supp.2d 1041, 1056 (D. Colo. 2011) (quotation omitted); see also Goebel
v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“The gatekeeper
inquiry under Rule 702 is ultimately a flexible determination.”).
The BOA Defendants have not shown that Mr. Michener’s opinions fall outside his
expertise merely because he is not a human factors expert. As discussed above, the BOA
Defendants have not established a principled basis for categorically excluding opinions by an
engineer or accident reconstructionist that touch on human factors. Therefore, the Court denies
this Motion as well.
E. 	Mr. Bortles
Plaintiff has moved to preclude the demonstrative animation created by William Bortles,
the BOA Defendants’ proposed expert, arguing that it will mislead the jury because it does not
accurately represent the accident. The Court agrees that any probative value of the animation is
substantially outweighed by the danger of unfair prejudice and misleading the jury.
The animation purports to depict the accident from Defendant Bailey’s perspective.
However, as Plaintiff points out, numerous aspects of the animation lack any factual basis in the
record. First, the animation portrays that the tractor-trailer in front of Defendant Bailey was
traveling at a speed of twenty-five miles per hour when he approached and then suddenly slowed
down. Yet the BOA Defendants have adduced no evidence that the tractor-trailer was moving at
this speed or even that it was moving at all. Second, the trailer is shown as white and without
reflective tape or brake lights despite the absence of any evidence that the trailer was white,
lacked reflective tape, or did not have operating brake lights. The Court rejects the BOA
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Defendants’ contention that these are “irrelevant” and “superficial details” pertaining to the
tractor-trailer’s appearance in the animation. (ECF No. 177 at 8.) To the contrary, the Court
finds that both the speed of the tractor-trailer and whether its brake lights were on could be
highly relevant details with respect to how and why the accident occurred. Further, Plaintiff’s
objection to the animation’s depiction of a vehicle in the left lane is also well taken. In the
absence of any evidence that the left lane was not available to Defendant Bailey prior to the
collision, the representation of a vehicle in that lane is wholly speculative.
The BOA Defendants’ contention that the animation is helpful because it shows the
physical path of the collision is unavailing. Notably, Plaintiff’s Motion does not object to any
opinions Mr. Bortles provides in his expert report. The BOA Defendants have not cited any
authority for the proposition that an animated depiction of an accident must be treated the same
way as an expert report or other expert testimony on the topic. For present purposes, the Court
concludes that the animation’s limited probative value as to the physical path of the collision and
any other aspect of the accident—which the BOA Defendants have not shown cannot be
presented by other means—is substantially outweighed by its unsupported and potentially
misleading aspects. Therefore, Plaintiff’s Motion is granted.
F. 	Dr. Figueroa
Plaintiff has also moved to preclude certain testimony by Rosemarie Figueroa, the BOA
Defendants’ proposed expert on human factors. Specifically, she contends that Dr. Figueroa
should not be allowed to testify regarding the location of the accident because—as she has since
acknowledged in a deposition—she referenced the wrong bend on Interstate 70 in her report.
However, Plaintiff does not challenge Dr. Figueroa’s qualifications or the overall reliability of
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her human factors opinions. Moreover, Dr. Figueroa has provided a sworn affidavit stating that
she will not provide any testimony based on her previous error as to the precise location of the
accident. Under the circumstances, the Court finds Plaintiff’s Motion is overbroad and proposes
a fix to a problem that is unlikely to arise at trial. Thus, while the parties may offer more
narrowly tailored objections for the Court’s consideration at trial, for present purposes the
Motion is denied.
IV. 	MOTIONS IN LIMINE
The Aaran Defendants filed two motions in limine seeking to exclude at trial any
reference to Defendant Abdi’s current and past traffic citations or to Defendant Aaran
Transport’s liability insurance. The BOA Defendants have not responded to the Motions, and
Plaintiff has responded that she is not opposed to them. Having considered the statutory and
evidentiary bases underlying these requests, the Court agrees that such testimony is properly
excluded, and therefore these Motions are granted.
V. 	CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Strike (ECF No. 163) and the Aaran
Defendants’ Motions in Limine (ECF Nos. 186, 187) are GRANTED. The remaining Motions
addressed in this Order (ECF No. 159, 160, 161, 162, 164) are DENIED.
DATED this 27th day of February, 2024.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
Senior United States District Judge
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