United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion in
Limine to Strike the Expert Testimony of Fred Semke (ECF No.
54). This motion is fully briefed and ready for
David Lax was operating a tractor-trailer on behalf of
Defendant Golden State Foods Corporation ("Golden
State"). On or about May 7, 2013, Lax was involved in a
vehicular accident with Plaintiff Heather Bailey in Wayne
County, Missouri. Bailey alleges she suffered permanent and
disabling injuries as a result of this accident. (ECF No. 1,
¶20). Bailey alleges claims for negligence against Lax
(Count I), vicarious liability against Golden State (Count
II), negligent hiring and retention against Golden State
(Count III), negligent training against Golden State (Count
IV), and negligent entrustment against Golden State (Count
Semke is identified by Defendants as an accident
reconstruction expert. See ECF No. 58-3. Mr. Semke
seeks to testify regarding the cause of the collision and the
relative positions and speeds of the vehicles leading up to
the collision. Mr. Semke also has created a simulation based
upon his analysis.
admission of expert testimony in federal court is governed by
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 methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
district court acts as a "gatekeeper" when
screening expert testimony for relevance and reliability.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
590-93 (1993); Russell v. Whirlpool Corp., 702 F.3d
450, 456 (8th Cir. 2012). To satisfy the reliability
requirement, the party offering the expert testimony
"must show by a preponderance of the evidence both that
the expert is qualified to render the opinion and that the
methodology underlying his conclusions is scientifically
valid." Barrett v. Rhodia, Inc., 606 F.3d 975,
980 (8th Cir. 2010) (quoting Marmo v. son Fresh Meats,
Inc., 457 F.3d 748, 757 (8th Cir. 2006)). To satisfy the
relevance requirement, the proponent must show that the
expert's reasoning or methodology was applied properly to
the facts at issue. Id. A court is entitled to
substantial discretion in determining whether expert
testimony should be allowed. "There is no single
requirement for admissibility as long as the proffer
indicates that the expert evidence is reliable and
relevant." Russell, 702 F.3d at 456-57
(quotation omitted). "An expert's opinion should be
excluded only if that opinion is so fundamentally unsupported
that it can offer no assistance to the jury."
Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th
Cir. 2007) (internal quotation marks and citation omitted);
see also Minn. Supply Co. v. Raymond Corp., 472 F.3d
524, 544 (8th Cir. 2006) (quotation omitted). Doubt regarding
"whether an expert's testimony will be useful should
generally be resolved in favor of admissibility."
Id. (citation and internal quotation omitted).
'"The exclusion of an expert's opinion is proper
only if it is so fundamentally unsupported that it can offer
no assistance to the jury.'" Sappington v.
Skyjack, Inc., 512 F.3d 440, 448 (8th Cir. 2008)
(quoting Wood v. Minn. Mining & Mfg. Co., 112
F.3d 306, 309 (8th Cir. 1997)).
Motion to Strike Fred Semke
argues that Mr. Semke failed to consider certain factual
evidence prior to forming his opinion. Specifically, Bailey
claims that Mr. Semke did not consider the foggy conditions
and that he did not review the depositions of Defendant David
Lax or Plaintiff Heather Bailey. (ECF No. 55 at 2). Bailey
also claims that Mr. Semke's methodology is flawed. (ECF
No. 55 at 2-3). Bailey contends that her car was facing
southwest when the tractor trailer hit it, but Mr.
Semke's methodology "purports to be certain that Ms.
Bailey could not have gotten to the location where the
collision occurred by turning from the left hand lane (the
'passing lane') of southbound Highway 67." (ECF
No. 55 at 2-3). Bailey faults Mr. Semke for failing to
consider Bailey's version of the accident. (ECF No. 55 at
3). Bailey also maintains that Mr. Semke failed to provide
the data points he used to create his simulation so that
Bailey could assess whether those data points are valid or
reasonable. (ECF No. 55 at 4). In sum, Bailey argues that the
jury would be prejudiced by hearing the purported expert
testimony of Mr. Semke, who relied on "hand-picked
'facts'" and "is unwilling to admit that he
has made several large assumptions to create the data points
he needed to complete his simulation." (ECF No. 55 at
response, Defendants assert that Mr. Semke's report and
testimony provide reliable expert testimony. Defendants note
that Mr. Semke has reviewed Lax's and Bailey's
testimony since he was deposed and confirmed that their
testimony does not alter his opinions. (ECF No. 58 at 2).
Defendants further contend that Mr. Semke did not cherry pick
evidence to support his claim. Rather, they assert that Mr.
Semke "relied on significant physical evidence gathered
from the inspection of the vehicles, his inspection of the
scene, measurements and data from the vehicles, and his
mathematical calculations." (ECF No. 58 at 4). Mr. Semke
testified that he considers depositions to be secondary to
the objective physical evidence, particularly the engine
control module downloaded from Lax's truck. (ECF No. 58
at 4). Defendants further argue that Bailey's retained
expert, William Hamilton, can attempt to rebut Mr.
Semke's opinions. Although Bailey criticized Mr. Semke
for not reviewing Bailey's deposition testimony and the
foggy weather conditions, Mr. Hamilton also did not review
Ms. Bailey's deposition, did not gather any information
from Bailey, and did not take fog into account in his
calculations. (ECF No. 58 at 5). Additionally, Defendants
maintain that Mr. Semke produced all utilized data at his
deposition and it was properly disclosed. Defendants explain
that Mr. Semke's simulation is not used for analysis, but
is a visual depiction of the opinions expressed in his
report. Thus, Defendants contend that the simulation is
simply an exhibit used to summarize the opinions contained in
his report. (ECF No. 58 at 6). Defendants state that this
simulation was timely disclosed on August 25, 2015 in
accordance with the Court's scheduling order. (ECF No. 58
at 7-8). Finally, Defendants note that Bailey never requested
any information under Fed.R.Civ.P. 37 after receiving Mr.
Semke's simulation, despite Mr. Semke offering to provide
additional data regarding his simulation exhibit. (ECF No. 58
Court holds that Mr. Semke can testify as an expert in this
case. The parties do not dispute that Mr. Semke is qualified
as an accident reconstruction expert. However, the parties
disagree regarding the methods used by Mr. Semke to formulate
his opinions and the simulation created by Mr. Semke to
express those opinions. First, the Court finds that Mr. Semke
has provided an adequate factual basis for his opinions.
Bailey's disagreement with the interpretation of those
facts or weighing of those facts is not a basis for
disqualifying Mr. Semke as an expert. Cf. J.B. Hunt
Tramp., Inc. v. Gen. Motors Corp.,243 F.3d 441, 444
(8th Cir. 2001) (expert properly excluded where he conceded
he had insufficient evidence to completely reconstruct the
accident as he theorized). The Court further notes that
Bailey has identified her own accident reconstruction expert.
Bailey's expert will be able to critique Mr. Semke's
factual basis for his opinions. See Children's Broad.
Corp. v. Walt Disney Co.,357 F.3d 860, 867 (8th Cir.
2004) (finding no error in allowing an expert to testify
where the expert was qualified to testify as an expert, and
the defendants had an opportunity to cross-examine him,
present evidence to rebut his testimony, and argue in
summation all of the inadequacies of the expert's
qualifications, credibility, methodology, and opinions).
While the Court is charged as a "gatekeeper" to
exclude unhelpful and unreliable expert testimony,
'"[i]t is decidedly the jury's role to evaluate
the weight to be given to the testimony of dueling qualified
experts.'" ABT Sys., LLC v. Emerson Elec.
Co., 4:11CV00374 AGF, 2013 WL 490174, at *1 (E.D. Mo.
Feb. 8, 2013)(quoting ...