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Boykin v. Western Express, Inc.

United States District Court, S.D. New York

February 6, 2015



NELSON S. ROMN, District Judge.

This action arises out of an automobile accident involving Plaintiff's vehicle and a tractor-trailer owned by Defendant Western Express, Inc. ("Defendant"). As a result of the accident, Plaintiff claims to have suffered spinal and shoulder injuries requiring surgeries in September 2012 and April 2013. Defendant retained a biomechanical engineer, Douglas R. Morr, P.E,, to perform an accident reconstruction and biomechanical analysis. (See Bauer Decl., Ex. E, ECF No. 32-5 [hereinafter Morr Report].) In his report, Mr. Morr opined that the forces that Plaintiff experienced during the collision were "not consistent with causing injury [sic]." (Id. at 1, 12.) Plaintiff retained Dr. Michael D. Freeman to rebut Mr. Morr's opinions. (See Bauer Decl., Ex. H, ECF No. 32-8 [hereinafter Freeman Report].) Defendant now moves in limine to bar Dr. Freeman's testimony under Rule 702 of the Federal Rules of Evidence and Daubed v, Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the following reasons, the motion is DENIED.


Plaintiff's vehicle and Defendant's tractor-trailer were traveling on 1-84 East on the morning of February 1, 2011 on a snowy but plowed stretch of highway. (Morr Report at 4; Freeman Report at 2-3.) The tractor-trailer veered from the left lane into Plaintiff's lane and impacted her vehicle, causing it to rotate. (Morr Report at 4; Freeman Report at 5.) While yawing across the highway, Plaintiff's vehicle struck the tractor-trailer one or more additional times, and ultimately came to rest in the snowbank on the side of the highway. (Morr Report at 4; Freeman Report at 2, 5-6.)

Defendant's expert, Mr. Morr, issued a report dated August 26, 2013, reflecting the results of his accident reconstruction and biomechanical analysis. An accident reconstruction considers the accident's ex post evidence-vehicle damage, skid marks, testimony-to estimate to the extent possible a vehicle's movements during an accident, including the associated forces and accelerations. Cabassa-Rivera v. Mitsubishi Motors Corp., Civil No. 05-1217(JAF), 2006 WL 6870560, at *6 (D.P.R. May 2, 2006). A biomechanical analysis estimates to the extent possible an occupant's movements during an accident-including the forces and accelerations exposed to the occupant's various body parts-and identifies the mechanism for injury, if any. Id. at * 12. (Morr Report at 9-11.)

Mr. Morr's accident reconstruction found that the greatest impact forces occurred during the initial impact between the tractor-trailer and Plaintiff's vehicle. (Morr Report at 9.) Mr. Morr estimated that the initial impact resulted in forward longitudinal[1] acceleration of "approximately 0.2 g's"[2] and rightward lateral acceleration of "approximately 0.3 g's." (Id. ) Mr. Morr found that the car then rotated and slid across the roadway, collided with the tractor-trailer one or more additional times, and came to rest in the snowbank on the side of the road. (Id. ) Mr. Morr opined that the final impact with the snowbank resulted in "primarily rearward-directed longitudinal accelerations at or below those experienced during normal vehicle braking events." (Id. )

Mr. Morr's biomechanical analysis found that that the "highest magnitude event" was likewise the initial impact, with a "resultant acceleration of less than 0.4 g's acting forward and to the right." (Id. at 11.) He described that upon initial impact, Plaintiff's seat assembly moved forward and rightward while Plaintiff's body remained at its initial position and speed. (Id. ) In relation to the seat assembly, Plaintiff's pelvis and lower limbs moved leftward and rearward, but because the accelerations were so low, relative pelvic movement was minimal. (Id. ) Plaintiff's torso also moved rearward and leftward, resulting in greater interaction with the seat back. (Id. ) Plaintiff's head response lagged that of the torso, continuing rearward and leftward, and may have contacted the head restraint. (Id. ) Mr. Morr opined that all other movements during the accident involved accelerations of a smaller magnitude. (Id. ) The final impact with the snowbank resulted in Plaintiff's body leaning forward "similar to that experienced when bringing a vehicle to a controlled stop in traffic or at a stop sign." (Id. ) Ultimately, Mr. Morr concluded that the forces acting on Plaintiff's body were below applicable "accepted injury thresholds" and were of a magnitude and direction similar to that experienced during "routine daily activities."[3] (Id. at 11-12.) Accordingly, Mr. Morr opined that the forces and accelerations that Plaintiff experienced during the collision were "not consistent with causing injury." (Id. at 12.)

Plaintiff's expert, Dr. Freeman, issued a rebuttal report dated September 19, 2013 and an addendum dated October 2, 2013. (Freeman Report; Bauer Decl., Ex. I, ECF No. 32-9.) Dr. Freeman reviewed Mr. Morr's report, photographs of the damage to the vehicle, color photographs of the accident site, the police report, Plaintiff's deposition testimony, a witness's deposition testimony, and Plaintiff's medical records. (Freeman Report; Bauer Decl., Ex. I; Bauer Decl., Ex. J at 13:15-17, ECF No. 32-10 [hereinafter Freeman Dep. Tr.].) Dr. Freeman largely agreed with Mr. Morr's description of the directional movements of the vehicle and Plaintiff's body during the initial impact. (Compare Morr Report at 9, 11 with Freeman Report at 2-6.) But Dr. Freeman opined that Mr. Morr's analyses were flawed for several reasons. First, Dr. Freeman opined that the precise forces and accelerations acting on Plaintiff's vehicle throughout the accident were not calculable because numerous variables were unknown.[4] (Freeman Report at 10.) Nevertheless, the available evidence suggested that the forces were far greater than Mr. Morr's estimates. (Id. ) For example, Dr. Freeman pointed out that the B-pillar, a "very stiff' part of Plaintiff's vehicle, was crushed in the initial impact and that the vehicle was launched a distance of roughly 10 feet. (Id. ) The lateral acceleration required to achieve such a result would have been at least 3 g's, and could have been more than 6 g's (far greater than Mr. Morr's estimate of 0.3 g's). (Id. ) The longitudinal acceleration resulting from the initial impact, in Dr. Freeman's opinion, was not calculable; Mr. Morr's estimate of 0.2 g's was speculative. (Id. ) Dr. Freeman also opined that upon final impact with the snowbank, Plaintiff's vehicle probably went from a counterclockwise rotation to a clockwise rotation, which would have caused accelerations on Plaintiff's body 20 to 50 times greater than Mr. Morr's maximum estimate of 0.4 g's. (Id. ) Dr. Freeman also pointed out that Mr. Morr did not attempt to quantify the forces, accelerations, injury thresholds, or tolerances associated with any part of Plaintiff's body, and ignored the well-established principle that "occupant accelerations are typically substantially greater than vehicle accelerations." (Id. at 7, 10-11.) Dr. Freeman also opined that Mr. Morr utilized sideswipe-collision principles that are inapplicable to the instant collision. (Id. at 10.) He also challenged Mr. Morr's causation principles, opining that it is scientifically invalid to rebut causation by comparing peak acceleration to generalized injury thresholds, or by comparing accelerations experienced in a collision to those experienced during other activities. (Id. at 11-13.) Dr. Freeman further opined that the available evidence favored the collision as the cause of Plaintiff's injuries because of the presence of a mechanism for injury in the collision (i.e., "if [Plaintiff] were holding on to the steering wheel as she stated in her deposition, the collisions would have provided a mechanism for injury to her shoulder as well as her spine"), a temporal connection between the collision and her injuries, and her pre- and post-collision medical history. (Id. at 5, 12; Freeman Aff. ΒΆ 5, ECF No. 38.)


The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence:

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. Following the Supreme Court's ruling in Daubert, 509 U.S. at 597, trial courts are to serve as gatekeepers for expert testimony. Specifically, Rule 702 requires a trial court to make an initial determination as to whether the proposed witness qualifies as an expert. Baker v. Outfitters, Inc., 254 F.Supp.2d 346, 352-53 (S.D.N.Y. 2003). If this threshold requirement is met, then a court must inquire into whether the scientific, technical, or other specialized testimony provided by the expert is both relevant and reliable. Id.

The Second Circuit follows a liberal interpretation of the qualification requirement. Mancuso v. Consolidated Edison Co. of N.Y., Inc., 967 F.Supp. 1437, 1442 (S.D.N.Y. 1997). In determining whether a witness is qualified to render an expert opinion, a district court "must first ascertain whether the proffered expert has the educational background or training in a relevant field." Cary Oil Co. v. MG Ref & Mktg., Inc., No. 99 CIV. 1725 (VM), 2003 WL 1878246, at *2 (S.D.N.Y. Apr. 11, 2003). Then the court "should further compare the expert's area of expertise with the particular opinion the expert seeks to offer and permit the expert to testify only if the expert's particular expertise enables the expert to give an opinion that is capable of assisting the trier of fact." Id. (alterations and internal quotation marks omitted).

In assessing the relevance of proffered expert testimony, a district court looks to Rule 401 of the Federal Rules of Evidence-"i.e., whether it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the ...

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