Ardesh v. Oreilly Auto

7ermont Superior Court
Filed 04/17/26
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case Nos. 22-CV-03657
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

Anna Ardesh,
Plaintiff

v DECISION ON MOTIONS

O'Reilly Auto Enterprises, LLC,
Defendant

RULING ON MOTIONS IN LIMINE

This personal injury action arising out of a motor vehicle accident is scheduled for a jury
trial beginning on April 21, 2026. Now pending before the Court are numerous motions in
limine filed by the parties. The Court will address Plaintiff's motions first, and will then turn to
Defendant's motions.

Plaintiff's Motions in Limine

I. Expert Testimony of Michael Sorensen (Mot. #13).

Defendant has retained Michael Sorensen, who is an accredited crash reconstructionist, to
testify as an expert. Mr. Sorensen has not attempted to reconstruct the accident; he has taken the
data that Plaintiff's expert, John Smith, relied on to reconstruct the accident, and issued a report
rebutting the conclusions that Mr. Smith reached. Plaintiff moves to exclude Sorensen's
opinions and conclusions that are derived from his use of Virtual Crash 6 simulation software or
his reliance on an online program providing data about average driver response times, on the
grounds that his reasoning and methodology are not sufficiently reliable under Daubert. She
also seeks to preclude him from testifying about the expected reaction time of Plaintiff and
whether the collision was avoidable and about the nature, extent, or cause of injury to either
driver involved in the accident. Defendant responds that Sorensen has not reconstructed the
accident and is only being offered as a rebuttal expert to evaluate the reliability of Plaintiff's
expert, JJohn Smith.

Under Rule 702 of the Vermont Rules of Evidence, expert testimony as to "scientific,
technical, or other specialized knowledge" is admissible if it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." V.R.E. 702. Trial judges act as
"gatekeepers," screening expert testimony to ensure that it is reliable and helpful before a jury
J
hears it. State v. Pratt, 2015 VT 89, 17, 200 Vt. 64. "The reliability of an expert's opinion
depends on whether it is 'sufficiently rooted in scientific knowledge.'" State v. Rheaume, 2024
J
VT 53, J 29, 325 A.3d 2 (quoting Pratt, 2015 VT 89, 17). To make that reliability
determination, a trial court may consider the four Daubert factors: “(1) whether the applicable
theory or technique can be tested; (2) whether it has been subjected to peer review and
publication; (3) its known or potential error rate; and (4) whether it has been generally accepted
by the scientific community.” Id. (citation omitted); see Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 591-94 (1993). These factors are not “exhaustive,” and the Court has “broad
discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant”
in evaluating the reliability of an expert’s opinion. Rheaume, 2024 VT 53, ¶ 29 (quoting State v.
Scott, 2013 VT 1036, ¶ 10, 195 Vt. 330)).

Mr. Sorensen has been using the Virtual Crash software since 2017 or 2018. Courts in
other states have allowed accident reconstructionists to rely on the Virtual Crash software in
rendering their expert opinions in cases involving motor vehicle accidents. See, e.g., Abbott v.
Mega Trucking, LLC, No. 2:20-CV-776-WKW, 2023 WL 2640203, at *11-13 (M.D. Ala. Mar.
25, 2023) (allowing accident reconstructionist to rely on Virtual CRASH software to create
accident simulations); Bales v. Green, No. 16-CV-106-GKF-JFJ, 2018 WL 1470259, at *4 (N.D.
Okla. Mar. 26, 2018) (finding “Defendants’ challenges to the facts on which Painter relies and
which were input into the crash simulation software go to the weight, not admissibility, of
Painter’s opinions,” and stating expert’s use of Virtual CRASH software is reliable); Popovski v.
Titan Transfer, Inc., No. 20-CV-27-SWS, 2022 WL 17095747, at *3 (D. Wyo. Jan. 28, 2022)
(finding expert’s use of Virtual Crash software was “sufficiently reliable to satisfy the F.R.E.
702/Daubert standard”).

Plaintiff complains that Sorensen is not qualified to rely on the Virtual CRASH system
because he does not understand how the software performs its calculations once data is put into
the program. This argument has been rejected by the Vermont Supreme Court:

Forensic investigation increasingly requires the use of computer software or other
technological devices for the extraction of data. While an investigator must have
specialized knowledge in the use of the particular software or device, it is not
required – nor is it practical – for an investigator to have expertise in or
knowledge about the underlying programming, mathematical formulas, or other
innerworkings of the software.

Pratt, 2015 VT 89, ¶ 24; see also id. ¶ 30 (“[A]ny deficiencies in the program should be drawn
out through the adversarial process, including vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof.” (quotation omitted)).

Defendant acknowledges that Sorensen’s opinion also relies on average driver response
times derived from the Driver Response Institute, LLC. Defendant cites cases where courts
routinely allow experts to rely on average driver assumptions in rendering their opinions.
Plaintiff does not argue that she falls outside the range of average drivers, and this is a subject
that can be explored at trial. Thus, there is no basis to exclude Sorensen’s opinion that relies on
such information. Similarly, the Court finds no reason to preclude Sorensen from relying on the
fact that Defendant’s employee suffered no injuries from the accident, to the extent relevant to
his opinion. We note that he is not expected to testify about the extent of Plaintiff’s injuries.

2
Trial courts have broad discretion in deciding whether to admit or exclude evidence.
Boehm v. Willis, 2006 VT 101, ¶ 12, 180 Vt. 615. In sum, Plaintiff’s arguments go to the weight,
not the admissibility, of Sorensen’s opinions. See 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc.,
2008 VT 14, ¶ 10, 183 Vt. 208 (noting that “the trial court’s inquiry into expert testimony should
primarily focus on excluding “junk science” – because of its potential to confuse or mislead the
trier of fact – rather than serving as a preliminary inquiry into the merits of the case.”).
Accordingly, Plaintiff’s motion to preclude Sorensen from testifying at trial is DENIED.

I. Criminal History of Dorota Luksza (Mot. #14).

Plaintiff intends to call her sister, Dorota Luksza, to testify on her behalf, and moves to
preclude Defendant from impeaching Ms. Luksza by introducing evidence relating to her
criminal history or her remote history of drug use. Defendant points to court records that in
December 2016, Ms. Luksza was convicted in Connecticut of second-degree larceny and first-
degree failure to appear. Defendant does not address Ms. Luksza’s former drug use in its
opposition or contend that it intends to introduce this information.

Rule 609(a) of the Vermont Rules of Evidence provides that evidence of a witness’s
criminal conviction may be used to impeach a witness’s credibility if the crime (1) involved
untruthfulness or falsification or (2) was punishable by imprisonment in excess of one year under
the law of another jurisdiction where the witness was convicted, and no more than fifteen years
have elapsed since the date of the conviction(s). V.R.E. 609(a), (b). While neither party argues
that untruthfulness or falsification is a statutory element of the convicted crimes, they are both
classified as felonies in Connecticut and are punishable by more than one year in prison. Ms.
Luksza was sentenced to four years in jail for the larceny conviction and one year for the failure
to appear conviction, both suspended.

The Court concludes that Defendant may impeach Ms. Luksza using the larceny
conviction. It is generally understood that larceny implicates dishonest conduct. See State v.
Covell, 146 Vt. 338, 341, 503 A.2d 542, 544 (1985) (holding trial court erred when it excluded
evidence of witness’s conviction for attempting to receive stolen property “solely because such
evidence might have a chilling effect on the complaining witness’s testimony”). Therefore, it is
relevant and has some probative value. Moreover, as Defendant notes, Plaintiff fails to identify
any undue prejudice that would result from such impeachment using the larceny conviction.
V.R.E. 609(a)(2) (court may allow impeachment by evidence of felony conviction if probative
value substantially outweighs danger of unfair prejudice); see also Wright & Miller, 28 Fed.
Prac. & Proc. Evid. § 6134 (2d ed.) (noting that evidence “is unfairly prejudicial to the extent it
may induce the jury to decide the case on an improper basis,” but a jury may use “conviction
evidence . . . for the proper purpose of drawing an inference about the witness's credibility”
(footnotes omitted)). However, the Court does not find that failing to appear in court sufficiently
implicates dishonesty to be a relevant consideration for the jury. Therefore, it has no probative
value that would “substantially outweigh[] its prejudicial effect.” V.R.E. 609(a)(2). Accordingly,
Plaintiff’s motion to exclude evidence of Ms. Luksza’s criminal convictions is DENIED as to
larceny and GRANTED as to failure to appear. The motion is MOOT as to evidence of any prior
drug use by Ms. Luksza, as Defendant has not responded that it intends to offer such evidence.

3
III. Judicial Notice of Mortality Tables (Mot. #15).

Plaintiff moves the Court to take judicial notice of government-issued mortality tables
pursuant Rules 201, 902, and 1005. Defendant opposes the motion on the basis of relevance,
contending that Plaintiff provides no foundational evidence demonstrating that life expectancy
tables are relevant to the issues for trial: “Unless Plaintiff successfully admits evidence that
Plaintiff’s alleged injuries are permanent, life expectancy tables are irrelevant.” Opp. to Mot. at
2.

The Court may take judicial notice of adjudicative facts “at any stage of the proceeding.”
V.R.E. 201(f). While the Court notes that parties routinely stipulate to the admission of such life-
expectancy tables, the Court will DEFER ruling on this motion until trial. Plaintiff may move
for the Court to take judicial notice of the mortality tables at an appropriate time during the trial
and Defendant may consider whether to renew its objection.

Defendant’s Motions in Limine

I. Expert Testimony of John Smith (Mot. #16).

Plaintiff has retained John Smith, who is a biomechanical engineer and accident
reconstruction expert. He prepared a report reconstructing the accident based on information he
gleaned from the Crash Report of the accident, a report from the DMV, repair estimates for both
vehicles involved in the accident, photographs of the vehicles after the accident, discovery
responses, deposition transcripts, and Plaintiff’s medical records. Defendant challenges the data
and methods Mr. Smith used in reconstructing of the accident under Rule 702 and Daubert,
asserting that Smith relied on intuition rather than scientific research. Plaintiff explains that
Smith included two different opinions in his report: a crash reconstruction addressing liability
and a biomechanical analysis of the impact of the forces of the crash on Plaintiff’s body.
Because Defendant concedes liability, Plaintiff states that only the biomechanical analysis is
relevant.

Defendant does not challenge Smith’s credentials or status as an expert in accident
reconstruction or biomechanical engineering. It merely challenges the way Smith went about
obtaining the data he used in reconstructing the accident and engaging in the biomechanical
analysis. As was the case in addressing Plaintiff’s motion to exclude Defendant’s expert,
Defendant’s criticisms go to the weight, not the admissibility of Smith’s report and opinions.
Defendant’s counsel will have the opportunity to challenge the basis of Smith’s report and
opinion on cross-examination, and it will be up to the jury to determine Smith’s credibility and
determine what weight to give his testimony or report. See Pratt, 2015 VT 89, ¶ 30 (“So long as
scientific or technical evidence has a sound factual and methodological basis and is relevant to
the issues at hand, it is within the purview of the trier of fact to assess its credibility and
determine the weight to be assigned to it.” (quotation omitted)). Accordingly, Defendant’s
motion to preclude Smith from testifying at trial is DENIED.

4
II. Craig Lichtblau’s Causation Opinion (Mot. #16).

Plaintiff has retained Craig Lichtblau as a medical expert to opine on the causation of
Plaintiff’s injuries. Defendant asserts a Daubert challenge to his testimony, not because Dr.
Lichtblau lacks proper credentials, but because it contends Lichtblau relied too heavily on
Plaintiff’s self-reported medical history and did not review enough of Plaintiff’s medical records.
Lichtblau’s report includes a comprehensive examination of Plaintiff and documents the
information he relied on in reaching his opinions. Thus, there is no basis to exclude his opinion
under Rule 702 or Daubert. As the Court has previously noted, Defendant will have the
opportunity to cross-examine Dr. Lichtblau about the records he reviewed (or didn’t review) and
the basis for his opinions. It will be up to the jury to determine how much weight to give to Dr.
Lichtblau’s opinions. Therefore, Defendant’s motion to exclude Dr. Lichtblau’s testimony as to
causation is DENIED.

III. Plaintiff’s Past and Future Medical Expenses (Mot. #16).

Defendant objects to Plaintiff’s introduction into evidence of reports by Dr. Lichtblau or
the economist Arthur Wolf as the basis of her future medical expenses. Plaintiff represents that
she does not intend to rely on either Dr. Lichtblau’s cost projections or the analysis prepared by
Mr. Wolf. Thus, Defendant’s motion on this issue is MOOT.

Defendant also objects to Plaintiff’s introduction into evidence of any past billing
invoices or the amounts she has spent on medical treatments because Plaintiff did not disclose
her medical billing records to Defendant until March 12, 2026, despite Defendant’s discovery
requests issued in December 2022 seeking this information. Plaintiff has agreed to exclude any
reference to her billing invoices and the amounts of her medical treatments at trial. Likewise,
then, Defendant’s motion on this topic is also MOOT.

IV. Witnesses Disclosed after Close of Discovery (Mot. #16).

Discovery in this case closed in July 2025. Plaintiff supplemented her discovery
responses in March 2026, and in response to Defendant’s interrogatory asking for “the names
and addresses of all persons known to you or your attorney who have knowledge of any facts
relating to your alleged injuries and claims for damages,” Plaintiff added four names to those she
identified in her original response: Mateusz Luksza, Hope Dorsey, Amir Ardesh, and Noah
Morwood. Plaintiff had identified her son Mateusz in response to an earlier interrogatory asking
for names of anyone with “knowledge of any facts relating to the alleged incident, and facts
relating to the claims and defenses in this lawsuit.” The other three individuals were identified
for the first time in March 2026.

Because Plaintiff identified her son Mateusz as someone with knowledge of the facts
surrounding the accident, Defendant could have deposed him and determined the extent of his
knowledge. The same cannot be said of the other three individuals, and Plaintiff has failed to
adequately explain why they were not disclosed with the discovery deadline. Accordingly, the
motion to excluded witnesses is GRANTED as to Hope Dorsey, Amir Ardesh, or Noah
Morwood, but DENIED as to Mateusz Luksza. See White Current Corp. v. Vt. Elec. Co-op, Inc.,

5
158 Vt. 216, 222-23, 609 A.2d 222, 225-26 (1992) (finding court did not abuse its discretion by
precluding witnesses from testifying at trial due to party’s late disclosure).

V. Spoliation of Evidence (Mot. #16).

A. Plaintiff’s Vehicle

Defendant complains about “spoliation of evidence” by Plaintiff and two of her experts.
First, Defendant focuses on the car Plaintiff was driving when the accident occurred. Plaintiff
allowed that car to be sold in March 2022. Defendant asserts that Plaintiff’s failure to preserve
her vehicle for inspection deprived it of the opportunity to develop its evidence on liability and
causation and led to Mr. Smith’s speculation as to how the accident occurred. Defendant asks
the Court to preclude Plaintiff from offering evidence and argument based on the post-accident
condition of her car because she failed to preserve it as evidence.

Plaintiff responds that the insurance companies arranged for the car’s disposal and she
was not aware of any duty to maintain it as evidence. Defendant does not contend that Plaintiff
acted in bad faith or with any ill intent, nor that she knew the car would be needed as evidence in
litigation. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to
preserve material evidence arises not only during litigation but also extends to that period before
the litigation when a party reasonably should know that the evidence may be relevant to
anticipated litigation.”). The Court notes that the Complaint in this case was not filed until
October 2022, many months after the car was sent overseas. Further, it is clear that both Plaintiff
and Defendant are at a disadvantage in reconstructing the accident without being able to inspect
Plaintiff’s car.

This case is distinguishable from the cases Defendant cites where an instrumentality was
allegedly faulty or defective and this fault or defect was alleged to be the cause of a plaintiff’s
damages. See, e.g., Silvestri, 271 F.3d at 586-87, 593-95 (affirming trial court’s decision to
dismiss case involving defective air bag where defendant had no opportunity to inspect vehicle
before it was sold); Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 92, 95-96 (1st Cir. 1999)
(affirming trial court’s decision to limit plaintiffs’ reliance on seat belts’ post-accident condition
at trial where seat belts were alleged to be faulty and vehicle was destroyed before defendant had
opportunity to inspect vehicle’s seat belts); Donato v. Fitzgibbons, 172 F.R.D. 75, 82-84
(S.D.N.Y. 1997) (sanctioning defendant for destroying headlights of vehicle when issue in case
was proper functioning of headlights). Unlike those cases, Plaintiff alleges that Defendant’s
employee crashed into her and that the crash is what caused her injuries and other damages. No
one has alleged that any defect with Plaintiff’s car led to the accident.

There is no doubt that the parties would have benefited from the preservation of
Plaintiff’s car, at least to the extent of determining causation. However, because Defendant
concedes liability, the only issue left is to determine whether and to what extent Plaintiff
experienced damages caused by the accident. Both parties are equally at a disadvantage and can
cross-examine the assumptions of the opposing side’s experts with regard to how the accident
occurred, if they wish. Thus, the Court concludes the spoliation doctrine is simply inapplicable
here, and declines to impose any sanctions. Accordingly, Defendant’s motion on such grounds is
DENIED.

6
B. Craig Lichtblau’s Recorded Interview with Plaintiff

Dr. Lichtblau testified that he recorded his interview with Plaintiff when she came in for
a medical examination and that the recording was destroyed in the regular course of his business
once the audio recording was transcribed. Defendant complains that the destruction of this
recording deprives it of “critical material on which Dr. Lichtblau relied and which is
discoverable expert material.” Defendant asks the Court to prohibit Dr. Lichtblau from testifying
to the extent his testimony is based on his interview with Plaintiff.

Again, Defendant does not point to any evidence suggesting that the destruction of the
audio recording was done in bad faith or to place Defendant at a disadvantage. Nor does
Defendant provide any support for its assertion that Dr. Lichtblau had an obligation to preserve
the recording. Defendant’s motion to limit Dr. Lichtblau’s testimony is DENIED.

C. John Smith’s Failure to Preserve Path on Google Earth

Plaintiff’s expert, Mr. Smith, testified that he used a measurement tool on Google Earth
to project the path of the vehicles involved in the accident and determine the angle of collision.
Defendant complains that Mr. Smith did not preserve and produce a copy of this projection in
discovery and asserts that “Smith’s decision to destroy this critical analysis leaves O’Reilly
without the crucial evidence needed to impeach his testimony.” Defendant asks the Court to
preclude Mr. Smith from testifying to the extent his opinions are based on the projection he made
using Google Earth.

During his deposition, Mr. Smith explained how he used the plotting tool on Google
Earth, and Defendant can question him about this at trial. The Court concludes that Defendant
has failed to demonstrate any prejudice based on the alleged “lack of access” to the tool’s
projections. The motion is DENIED.

VI. Evidence Proving Liability (Mot. #16).

Defendant asks the Court to preclude Plaintiff from introducing any evidence of
Defendant’s liability for the accident because Defendant has conceded the issue of liability.
Plaintiff agrees that evidence of Defendant’s actions and inactions concerning its hiring of
drivers, screening, training, and supervision practices are no longer relevant. Plaintiff also
agrees that evidence of Defendant’s employee’s driving history, prior DUI, and performance at
O’Reilly are not relevant to the issues to be tried. Accordingly, the Court does not expect such
evidence to be offered.

However, the Court agrees with Plaintiff that some circumstances of the collision are
relevant and may be introduced. Such context will likely be helpful to the jury, including
Plaintiff’s testimony concerning how the accident occurred, what she perceived and experienced
during the accident, and how it affected her. There is no basis to exclude such evidence, and
therefore, Defendant’s motion, to the extent it is not MOOT, is DENIED.

7
VII. “Reptile Theory” Comments, Etc. (Mot. #16).

Defendant’s final requests concern the lawyers’ anticipated conduct at trial. Such a
motion merely seeks to have counsel comply with the Court’s expectations that they will conduct
themselves with the utmost civility and professionalism, and therefore should be entirely
unnecessary. Without focusing on counsel’s alleged conduct while taking depositions, the
parties should understand that, when addressing the jurors, the Court expects counsel on both
sides to focus on the evidence that is expected to be introduced (in opening statements) or that
has been introduced (in closing statements) and to avoid any negative comments about the
plaintiffs’ bar or the defense bar. Similarly, no reference shall be made to insurance policies or
whether Plaintiff’s claims are covered by any liability insurance. See V.R.E. 411 (evidence of
liability insurance not admissible to prove negligence or fault). In short, the Court expects all
attorneys and witnesses to show respect to the Court and all opposing counsel and parties, and
that counsel will follow the rules of evidence, rules of civil procedure, and rules of professional
responsibility in trying this case.

VIII. Defendant’s Motion to Exclude “Late-Disclosed” Photographs (Mot. #18).

Defendant moves the Court to exclude photographs produced by Plaintiff during the
parties’ recent meeting regarding proposed exhibits that were not produced in response to
Defendant’s discovery requests. Plaintiff represents the photos depict her at various times in her
life. Defendant argues the photos should have been produced in response to requests for
“documents” showing or relating to her damages claims.

Defendant has failed to demonstrate that the pictures were clearly requested in discovery,
such that the failure to produce them warrants the sanction of exclusion. Defendant admits it did
not include a definition of “documents” in its document requests. Thus, it was not unreasonable
for Plaintiff to apply the definition contained in the Interrogatories, which could have mentioned
“photographs” as among the examples included, but did not. Moreover, where Defendant sought
photographs in other requests, it expressly requested them. Rule 34’s definition of “documents
or electronically stored information” is not controlling, since Defendant apparently did not
incorporate that definition into its requests, and in any event, the rule defines information that
parties may request, but does not say what is designated by a party. See V.R.C.P. 34(a). Nor
does the Court find sufficient unfair prejudice to Defendant to support excluding the
photographs, which presumably will be used as illustrations of matters to which Plaintiff will
testify anyway. Defendant’s motion is DENIED.

Order

For the foregoing reasons, the parties’ motions in limine are determined as follows:

• Plaintiff’s Motion to Exclude Expert Testimony of Michael Sorensen (Mot. #13)
is DENIED.

• Plaintiff’s Motion to Exclude Criminal History of Witness Dorota Luksza (Mot.
#14) is DENIED as to the larceny conviction and GRANTED as to the failure to appear.

8
• Plaintiff’s Motion for Judicial Notice of Life-Expectancy Tables (Mot. # 15) is
DEFERRED until trial.

• Defendant’s Motion in Limine (Mot. #16) is GRANTED in part and DENIED in
part as set forth above.

• Defendant’s Motion to Exclude Late-Disclosed Photographs (Mot. #18) is
DENIED.

Electronically signed on April 17, 2026 at 4:14 PM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

9