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Bonne v. Premier Athletics

October 29, 2007


The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge



This case is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the Orders [Docs. 47, 53] of the Honorable Thomas W. Phillips, United States District Judge, for disposition of defendants USA Gymnastics' and United States Gymnastics Federation's Motion in Limine Daubert Challenge [Doc. 46] and defendant Premier Athletics, LLC's Motion in Limine Daubert Challenge. [Doc. 51] On October 1, 2007, the parties came before the Court for a hearing on the instant motions. Attorney Stephen Yeager was present on behalf of the plaintiffs, attorney John Baker was present on behalf of defendant Premier Athletics, LLC, and attorney Samuel Rutherford was present on behalf of defendants USA Gymnastics and United States Gymnastics Federation. The Court took the motions under advisement after the hearing and they are now ripe for adjudication.

Defendants USA Gymnastics ("USAG") and United States Gymnastics Federation ("USGF") move the Court to exclude the testimony of Dr. Frank Gomer, plaintiff's expert on proper safety procedures [Doc. 46], and defendant Premier Athletics, LLC ("Premier") has adopted USAG's and USGF's motion. [Doc. 51] Defendants USAG, USGF, and Premier (collectively "Defendants") contend that the opinions are inadmissible as expert testimony, are irrelevant, and are overly prejudicial. Plaintiffs oppose Defendants' motions, arguing that the opinions are admissible, relevant, and not overly prejudicial.


This lawsuit arises from a fatal injury sustained by Jordan Tyler Bonne ("Jordan Bonne") during a gymnastics competition (the "Competition") hosted by Premier and sanctioned by USAG and USGF. [Doc. 30 at ¶ 7] Plaintiffs allege that, while performing a trampoline exercise during the Competition, Jordan Bonne, who was fifteen years old at the time of the incident and competing at the Junior Elite level, flew past the trampoline's padded end deck and struck his head on the unpadded concrete floor. [Id. at ¶ 8] Plaintiffs allege that Jordan Bonne's injuries were caused by defendant Premier's negligent failure to provide appropriate padding and spotting [Id. at ¶¶ 11-22] and defendants USAG's and USGF's negligent failure to provide the appropriate level of oversight and regulation of the Competition. [Id. at ¶¶ 23-31]


Defendants' motions challenge the admissibility of Dr. Gomer's testimony under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The trial judge must act as a gatekeeper, admitting only that expert testimony that is relevant and reliable. Daubert, 509 U.S. at 589. With regard to scientific knowledge, the trial court must initially determine whether the reasoning or methodology used is scientifically valid and is properly applied to the facts at issue in the trial. Id. To aid the trial court in this gatekeeping role, the Supreme Court has listed several key considerations: (1) whether the scientific knowledge can or has been tested; (2) whether the given theory or technique has been published or been the subject of peer review; (3) whether a known error rate exists; and (4) whether the theory enjoys general acceptance in the particular field. Id. at 592-94. The Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. "[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999); Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994). The trial court's objective "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. The trial judge enjoys broad discretion in determining whether the factors listed in Daubert reasonably measure reliability in a given case. Id. at 153. The party proffering the expert testimony bears the burden of showing its admissibility under Rule 702 by a preponderance of the evidence. Daubert, 509 U.S. at 592 n. 10. With this framework in mind, the Court will now address Defendants' motions.


Defendants move to exclude the plaintiffs' expert witness, Dr. Gomer, from testifying as to his opinions set forth in his affidavit dated May 6, 2006. [Doc. 46-3 at 22-24]. In support of their argument, Defendants contend that Dr. Gomer is not qualified to opine on the issues presented in his expert report; that Dr. Gomer's opinions invade the province of the jury; that Dr. Gomer's opinions are irrelevant; and that any testimony presented by Dr. Gomer is inadmissible under Rule 403 of the Federal Rules of Evidence because such testimony would be more prejudicial than probative. [Doc. 46] Plaintiffs oppose Defendants' motions, arguing that Dr. Gomer is qualified to offer expert testimony in this matter; that Dr. Gomer's testimony is reliable, relevant, and admissible; and that his testimony is not barred by the Rule 403 balancing test. [Doc. 55]

A. Qualifications

The Court begins its analysis with the qualifications of Dr. Gomer. Dr. Gomer received a Bachelor of Science in Psychology from Colgate University and a Doctorate in Human Factors and Psychology from Washington University. [Doc. 55-6] After receiving his Doctorate in 1974, Dr. Gomer served approximately four years in the United States Air Force as a Senior Human Factors Engineer. [Id.] Dr. Gomer received an honorable discharge in 1977 and began working for what is now known as the Boeing Company. [Id.; Doc. 46-2 at 3] Dr. Gomer worked for the Boeing Company from 1977 to 1982 as a Systems and Human Factors Engineer. [Doc. 55-6] From 1982 to 1986, Dr. Gomer worked for the GP Strategies Corporation performing safety audits and safety consulting. [Id.; Doc. 46-2 at 4] Dr. Gomer next worked from 1986 through 1997 for what is now known as Honeywell, Inc., initially as Manager of Systems and Human Factors Engineering, then as Program Manager of Next Generation Avionics Systems, and finally as Director of Engineering for Electronic Display System Products. [Doc. 55-6] In 1986, and continuing to the present, Dr. Gomer also founded the Gomer Consulting Group, a private company through which Dr. Gomer provides safety consulting services. [Id.] From 1997 to 1998, Dr. Gomer served as the Vice President of Engineering, Operations, and Major Programs of Global Technologies, Ltd., and from 1999 to 2000 Dr. Gomer served as the President and Chief Operating Officer and Member of the Board of Directors of The Network Connection, Inc. [Id.] After 2000, Dr. Gomer began full time consulting through the Gomer Consulting Group. [Id.; Doc. 46-2 at 6-7] Prior to this time, Dr. Gomer's consulting business comprised approximately only two to three percent of this time annually. [Doc. 46-2 at 6]

Dr. Gomer's resume reveals that he has extensive experience in the field of human factors engineering and has performed extensive consulting in products liability and premises liability cases. [Doc. 55-9 at ¶ 1] However, Dr. Gomer admits that he is not an "expert on gymnastic events" [Doc. 46-3 at 16] and that he has only limited experience in the field of gymnastics. [Id. at 15] Thus, while Dr. Gomer has extensive experience in the science and methodology related to safety engineering, Dr. Gomer lacks any significant experience in the field of gymnastics, nor is there evidence that Dr. Gomer has previously applied the techniques of his chosen field to the area of gymnastics.

One of the issues Dr. Gomer's testimony addresses is whether the Defendants breached the standard of care in their oversight and organization of the Competition. In describing the standard of care associated with sporting events, the Tennessee Court of Appeals*fn1 has held that the liability of defendants involved in a negligence case arising from a sporting event "should be analyzed under the ordinary negligence standard of reasonable care under the circumstances." Becksfort v. Jackson, C.A. No. 02A01-9502-CV-00027, 1996 Tenn. App. LEXIS 257, at *9 (Tenn. Ct. App. April 30, 1996). The Becksfort court also recognized that "conduct which may be unreasonable in the midst of a public street may be entirely reasonable on a playing field or during the course of an athletic competition." Id. The court further held that

We also note that the reasonableness of a person's conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and even encouraged in the boxing ring or ice hockey ring, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

Id. at *9 n. 4. Thus, the standard of care Defendants owed to Jordan Bonne turns upon the specific sport he was ...

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