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Covic v. Berk

United States District Court, W.D. Tennessee, Western Division

September 12, 2014

OMER COVIC, Plaintiff,
v.
MIKE BERK and AUSLANDER CORP. d/b/a AUSCOR TRANSPORTATION SERVICES, Defendants, MIKE BERK, Counter-Plaintiff,
v.
OMER COVIC, Counter-Defendant. EWELINA GRABOWSKA, Plaintiff,
v.
OMER COVIC, Defendant.

ORDER GRANTING IN PART, DENYING IN PART MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF JOHN D. BETHEA

THOMAS ANDERSON, District Judge.

Before the Court is Omer Covic's Motion in Limine to Exclude the Testimony of John D. Bethea (ECF No. 81) filed on September 2, 2014. Mike Berk and Ewelina Grabowska have responded in opposition (ECF No. 86). For the reasons set forth below, the Motion in Limine is GRANTED in part, DENIED in part.

BACKGROUND

This matter arises from the collision of two tractor trailers in the early morning hours of March 29, 2011. Plaintiff Omer Covic was operating an 18-wheeler on Interstate 40 in Fayette County, Tennessee, when Defendant Mike Berk's 18-wheeler had a rear-end collision with Covic's trailer. Covic filed a Complaint for negligence against Berk and Berk's employer Auslander Corp. d/b/a Auslander Transportation Services (hereinafter "Auslander") on July 7, 2011, civil case no. 11-2571-STA-dkv.[1] Berk filed a counterclaim (ECF No. 17) against Covic on September 14, 2011. On March 27, 2012, Ewelina Grabowska, Berk's spouse, filed a separate action against Covic, civil case no. 12-2244-STA-dkv, alleging loss of consortium. The Court subsequently consolidated both cases for all further proceedings. On May 23, 2013, the Court denied Covic's motion for summary judgment, holding that genuine issues of material fact remained for trial. Thereafter, Covic settled all of his claims against Berk and Auslander, and on June 17, 2013, the parties filed a stipulation of dismissal (ECF No. 65). As such, only Berk and Grabowska's claims against Covic remain. A jury trial is set for September 15, 2014.

In the Motion before the Court, Covic seeks an order excluding the opinion testimony of Berk and Grabowska's (collectively "Berk") retained expert John D. Bethea. Covic argues three reasons the Court should exclude Bethea's testimony about the accident at issue. First, Bethea has reconstructed the accident by assuming Berk was driving his vehicle at two different speeds, 64 MPH and 61.6 MPH. Bethea based his assumption of a speed of 64 MPH on the fact that Berk's truck allegedly had a governor to limit its speed to 64 MPH. Bethea derived his assumption of a speed of 61.6 MPH from data recorded on an electronic control module (ECM), an onboard computer recording data about the operation of Berk's truck. According to Bethea, the ECM showed Berk was operating his truck at an average speed of 61.6 MPH during the hour prior to the collision.

Covic contends Bethea's assumptions about the speed of Berk's truck are not reliable. The same ECM data also showed that over the two months prior to the accident, Berk's truck exceeded 66 MPH 2, 648 times. The ECM recorded the truck's maximum speed at 126.5 MPH on January 14, 2011. Covic argues then that Bethea's assumption of a maximum speed of 64 MPH is unreliable. Likewise, his assumption of an average speed over a one-hour time frame is unreliable because the average speed represents many different speeds and not Berk's exact speed at the moment before the collision. Because both assumptions are unreliable, the Court should exclude Bethea's calculations.

Second, Covic argues that Bethea's calculations of Covic's speed at the time of the collision are also unreliable. Bethea calculated that Covic must have been driving at 34 or 37 MPH. Bethea arrived at these conclusions strictly on the basis of his assumptions that Berk was driving at 64 MPH or 61.6 MPH. The Court should exclude Bethea's calculations of Covic's speed because they are based on Bethea's unreliable assumptions about Berk's speed. Bethea's calculations of Covic's speed suffer from a number of other problems. Bethea used an average friction factor for wet asphalt surfaces instead of measuring the actual friction factor for the stretch of interstate where the accident occurred. Bethea also calculated Covic's speed by using the average curb weight of each tractor and not actual weight and average weights for both trailers. And Bethea failed to take into account the weight of the contents of the tractor, including the driver and his personal belongings. Covic contends that the Court should not admit Bethea's calculation of Covic's speed for all of these reasons.

Third, Covic objects to Bethea's theory explaining why Berk was unable to detect Covic's much slower speed. Bethea cited a study of the Society of Automotive Engineers for the proposition that on a straight roadway, drivers need an additional increment of time to recognize a slow moving lead vehicle as a hazard. Covic argues that Bethea's opinion on this point is simply irrelevant. Covic highlights Berk's testimony that he did not see Covic's vehicle until he was one truck-length away from it. In other words, this is not an instance where Berk observed Covic's trailer but could not judge how slowly Covic was driving and take action to avoid Covic. Bethea's reliance on the study does not fit the evidence in the case and is therefore irrelevant. Covic adds that Berk has failed to rule out other causes for the collision. Therefore, the Court should exclude this part of Bethea's testimony.

Berk has responded in opposition to Covic's Motion in Limine. Berk defends Bethea's assumptions about Berk's rate of speed and his related calculations of Covic's speed. Berk emphasizes the number of factors on which Bethea relied in arriving at his in-line momentum calculations, including the distance which the vehicles traveled after the collision, the absence of skid marks on the road surface, the grade of the road, the wet conditions present at the time of the accident, the lack of lighting on the roadway, the damage to the vehicles, the locking of the braking systems on each vehicle, and the altered coefficient of friction for commercial tires. Berk argues that Covic's criticisms of Bethea's methodology go to the weight of his conclusions and not their reliability. According to Berk, "pinpoint precision is not required." Berk argues that Bethea's use of an average speed and a maximum speed have evidentiary support in the record. As for Bethea's reliance on the Society of Automotive Engineers study, Berk contends that the study fits the evidence and provides a plausible theory about why the accident occurred as it did in this case. Therefore, the Court should deny Covic's Motion in Limine.

STANDARD OF REVIEW

Covic claims that the opinions offered by Plaintiff's safety expert are inadmissible under the Federal Rules of Evidence and Daubert. Under 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 ...

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