Jensen et al v. Crete Carrier et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
BRANDON JENSEN and REBECCA
JENSEN,
Plaintiffs, 	MEMORANDUM DECISION AND
ORDER DENYING MOTION IN LIMINE
CONCERNING EXPERT TESTIMONY
OF LARRY BAAREMAN
v.
Case No. 1:23-cv-00105-TC-JCB
CRETE CARRIER CORPORATION and
MICHAEL BEALE,
Defendants.
Judge Tena Campbell
Magistrate Judge Jared C. Bennett
Before the court is the Defendants’ motion in limine to exclude the testimony of Larry
Baareman. (ECF No. 59.) The Plaintiffs designated Mr. Baareman as an expert in traffic
reconstruction and transportation. (See Pls.’ Expert Designations, ECF No. 59-2 at 2.) For the
following reasons, the court denies the motion.
LEGAL STANDARD
Under Rule 702 of the Federal Rules of Evidence, a “witness who is qualified as an
expert by knowledge, skill, experience, training, or education” may offer their opinions at trial if
it is more likely than not that “(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’s opinion reflects a reliable application of the
principles and methods to the facts of the case.”
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“The proponent of expert testimony bears the burden of showing that the testimony is
admissible.” Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). And the district court
performs a gatekeeping function to ensure that expert testimony is both relevant and reliable.
Macsenti v. Becker, 237 F.3d 1223, 1233 (10th Cir. 2001). To determine reliability, the court
considers whether: 1) the theory has been or can be tested or falsified; 2) the theory or technique
has been subject to peer review and publication; 3) there are known or potential rates of error
regarding specific techniques; and 4) the theory or approach has general acceptance. Bitler v.
A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2005) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593–94 (1993)); see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141-42 (1999) (extending the Daubert standard to expert testimony
based on technical or other specialized knowledge).
ANALYSIS
The Defendants maintain that Mr. Baareman’s testimony should be excluded because it
duplicates other testimony, would be a waste of judicial economy, and consists of conclusory
opinions that are not properly within the scope of expert testimony that would aid the trier of
fact. But the court disagrees for the reasons stated on the record after the court conducted voir
dire of the witness.
The court questioned Mr. Baareman outside the presence of the jury on the morning of
November 13, 2025. Mr. Baaremen testified that he had several decades of experience driving
trucks and training other truck drivers. As the court noted in its preliminary ruling, “[m]ost
jurors do not drive semi-trucks and are not familiar with the Utah Commercial Driver’s License
Manual.” (Prelim. Ruling Mots. Limine, Oct. 31, 2025, ECF No. 125 at 2.) Given Mr.
Baareman’s qualifications and experience, the court found that Mr. Baareman could properly
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offer his opinions about safety considerations while driving a truck, especially concerning left
turns and the use of the truck horn during emergency situations.
But the court directed the witness to avoid using the term “right-of-way.” The Plaintiffs’
accident reconstruction expert, Dr. Jay Przybyla, used this term while testifying on
November 12, 2025, and the court instructed the jury to disregard that testimony.
The court recognizes that the Tenth Circuit has previously upheld the admission of expert
testimony about the right-of-way. In Frase v. Henry, applying Kansas law, the Tenth Circuit
upheld the admission of testimony from an investigating officer who opined that one of the
drivers in the accident at issue had failed to yield the right-of-way. 444 F.2d 1228, 1231 (10th
Cir. 1971). The court held that the officer’s answer “was admissible because it was an aid to the
jury insofar as it synthesized the foregoing facts which the jurors unaided could not have
synthesized for themselves.” Id.
But the Supreme Court of Kansas later overruled contrary authority that that had been
decided under the Frase rationale and established this rule: “[I]n an automobile accident
negligence case, an expert witness, whether an investigating police officer or other expert, may
not state his opinion as to what actions of the parties, if any, contributed to the collision or as to
who was at fault in causing the collision.” Lollis v. Superior Sales Co. Inc., 580 P.2d 423, 431
(Kan. 1978) (overruling in part Ziegler v. Crofoot, 516 P.2d 954 (Kan. 1973), and Massoni v.
State Highway Comm’n, 522 P.2d 973 (1974)).
The Oklahoma Supreme Court adopted a similar rule:
We agree with the rationale of the Kansas Court, and we are persuaded to adopt
the same rule here. Accordingly, we find that the officer’s opinion as to
appellant’s failure to yield right of way should have been excluded not just
because it bore on an ultimate issue, but because the conclusion of the officer did
not assist the jury in its deliberations. It was not useful since the jury was just as
capable of drawing a proper conclusion from those facts as was the officer.
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Gabus v. Harvey, 678 P.2d 253, 256–57 (Okla. 1984).
It is unclear whether the Utah Supreme Court would adopt exactly the same rule. In
Randle v. Allen, the Court found that it was not an abuse of discretion to allow a police officer to
testify about which driver involved in an accident had the right-of-way. 862 P.2d 1329, 1337–38
(Utah 1993). But this case does not suggest that such testimony is always admissible. Notably,
the officer was not simply an accident reconstruction expert but the investigating officer at the
scene of the accident. Id. at 1337. And the determination about right-of-way involved a
somewhat unusual situation—namely, that traffic heading south had a stop sign and was required
to yield to traffic heading north that was turning obliquely across the lane of traffic to enter an
interstate on-ramp. Id. The Court therefore upheld the exclusion of a jury instruction based on a
Utah statute now codified at Utah Code Ann. § 41-6a-903.1(1)(a), which states: “The operator of
a vehicle … intending to turn to the left shall yield the right-of-way to any vehicle approaching
from the opposite direction which is so close to the turning vehicle as to constitute an immediate
hazard[.]” Id. at 1336–37.
Here, the application of this statute is more straightforward, and the parties agree that the
jury may receive an instruction based on this statute. (See Stip. Jury Instructions, ECF No. 131
at 28.) Whether Defendant Michael Beale should have yielded the right-of-way to Plaintiff
Brandon Jensen is really a question about whether Mr. Jensen was “so close to the turning
vehicle as to constitute an immediate hazard.” But this is a question of fact for the jury. While
the court has allowed the parties to present accident reconstruction experts to offer their opinions
about timing and distance, any opinions about who had the right-of-way would come perilously
close to an opinion on the ultimate issue presented to the jury. See Frase, 444 F.2d at 1231
(“[A]n expert’s opinion … is admissible up to the point where an expression of opinion would
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require the expert to pass upon the weight or credibility of the evidence.”). In addition, the
application of right-of-way principles to the facts of this case is not so technical or difficult to
synthesize that an expert opinion would aid the trier of fact. Accordingly, the court finds that
expert witnesses should avoid opining about who had the right-of-way.
ORDER
For the reasons stated on the record after examination of the expert witness, the court
ORDERS as follows:
1. 	The Defendants’ Motion in Limine to Exclude Testimony from Larry Baareman
(ECF No. 59) is DENIED.
2. 	All expert witnesses should refrain from offering their opinion about whether Mr.
Beale or Mr. Jensen had the right-of-way.
DATED this 17th day of November, 2025.
BY THE COURT:
_____________________
Tena Campbell
United States District Judge
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