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Neal v. Fort

United States District Court, M.D. Tennessee, Nashville Division

January 30, 2017

WILL NEAL, JR., Plaintiff,
v.
JOHN FORT, Defendant.

          Newbern Magistrate Judge.

          MEMORANDUM

          ALETA A.TRAUGER UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Will Neal, Jr.’s Daubert Motion to Exclude the Testimony of Roman Kickirillo. (Doc. No. 36.) For the reasons stated herein, Plaintiff’s Motion will be granted.

         I. Background

         This is a personal injury case centered on a car wreck involving Plaintiff and Defendant in the early morning hours of January 3, 2015. The parties fundamentally disagree as to the cause of the accident. Unnamed Defendant State Farm Mutual Automobile Insurance Company (“State Farm”), the Plaintiff’s uninsured motorist carrier, disclosed Roman Kickirillo as an expert witness in the field of motor vehicle accident investigation and reconstruction. (Docket No. 47, p. 1.) State Farm retained him specifically to investigate the accident and “determine if a vehicle struck the rear of Mr. Neal’s 1999 Chevrolet [sic] Van, causing a loss of control.” (Docket No. 36-1, p. 14.) Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), Mr. Kickirillo prepared a written report of his findings and conclusions (the “Report”). (Id.) He bases his analysis on his March 9 study of the accident scene, seventy-three photographs of the Plaintiff’s and Defendant’s respective vehicles, the police report, and Plaintiff’s deposition. (Id.)

         The Report contains sections including Description of the Traffic Crash, Study of the Crash Site, Study of Vehicle 1 (Defendant’s Vehicle), Study of Vehicle 2 (Plaintiff’s Vehicle), Deposition of Plaintiff, Analysis of Traffic Incident, and Summary of Conclusions. (Id. at pp. 14–18.) The Description of the Traffic Crash recapitulates the information contained in the police report. (Id. at pp. 14–15.) The Study of the Crash Site is a one-paragraph depiction of the collision area. (Id. at p. 15.) Study of Vehicle 1 and Study of Vehicle 2 contain detailed physical descriptions of Plaintiff and Defendant’s respective vehicles, and Deposition of Mr. Will Neal summarizes Plaintiff’s deposition testimony. (Id. at pp. 15–16.) The heart of the Report is the Analysis of the Traffic Incident, in which Mr. Kickirillo provides a step-by-step breakdown of how he believes the accident occurred, along with attached diagrams to illustrate. (Id. at pp. 17, 68–70.) The reconstruction analysis supports State Farm’s claim that Plaintiff’s vehicle was not struck from behind by a third party. (Id. at p. 17.) The Summary of Conclusions consists of twenty bullet points that essentially reiterate the Analysis. (Id. at p. 18.) Among other things, Mr. Kickirillo again concludes that “Mr. Neal’s vehicle was not struck from behind by another vehicle,” (Docket No. 36-1, p. 18), which directly contradicts Plaintiff’s testimony that his vehicle was struck from behind (id. at p. 16).

         After Mr. Kickirillo’s Report was disclosed, he was provided with supplemental materials including the deposition transcripts of Brian and Kimberly Young, the deposition summaries of Alan Digruttolo and Christopher Scrum, and David G. Huskey’s expert report. (Id. at p. 72.) The additional materials did not alter Mr. Kickirillo’s opinion. (Id.)

         Plaintiff now moves to exclude Mr. Kickirillo’s Report, arguing that it fails to satisfy the standards of reliability and relevance set forth in Federal Rule of Evidence 702 as well as Daubert and its progeny. (Docket No. 36.) Plaintiff also asserts that the court should not permit an amendment of the Report, pursuant to Federal Rule of Civil Procedure 37(c)(1). (Id. at pp. 11–12.) State Farm filed a Response, contending that the Report is both reliable and relevant and thus that Kickirillo should not be excluded as a witness at trial. (Docket No. 47.)

         II. Legal Standard

         A. Daubert and Federal Rule of Evidence Rule 702

         Federal Rule of Evidence 702 governs the admissibility of an expert witness’ testimony at trial. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Under Rule 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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