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Byrd v. Allstate Property and Casualty Insurance Co.

United States District Court, M.D. Louisiana

October 1, 2018

KEDRICK BYRD
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY AND GARY F. NORMAN

          RULING ON PETITIONER'S MOTION TO DISQUALIFY OR LIMIT THE TESTIMONY OF DEFENDANTS' EXPERT WITNESS (DAUBERT MOTION)

          JOHN W. DEGRAVELLES JUDGE.

         Before the Court is a motion by plaintiff Kedrick Byrd (“Plaintiff” or “Byrd”) to disqualify or limit the testimony of accident reconstruction expert Michael S. Gillen (“Gillen”), hired by defendants P&S Transportation LLC (“P&S”) and Gary Norman (“Norman”), (collectively, “Defendants”). (Doc. 77.) It is opposed by Defendants. (Doc. 80.) Plaintiff filed a reply memorandum. (Doc. 81.) For the reasons which follow, Plaintiff's motion is denied.

         I. FACTUAL BACKGROUND

         Plaintiff alleges that on August 7, 2015, he was driving a 2013 BMW 328 owned by his passenger Stacy Henry (“Henry”)[1] in an easterly direction on Interstate Highway 10 in East Baton Rouge Parish, Louisiana. (Doc 77-1 at 1.) At the same time, Norman was driving a tractor-trailer rig on the same highway, in the same direction when, according to Plaintiff, Norman's tractor-trailer rear-ended the BMW. (Id., at 1-2.) Liability does not seem to be in serious dispute.[2] Trial is set for December 3, 2018.[3]

         According to Defendant, and not disputed by Plaintiff, after the accident, the expert witness hired by Henry (Jeremy Hoffpauir) retrieved data from the BMW's Crash Data Retrieval (CDR) system (the vehicle's so-called “black box”). (Doc 80 at 5.) Defendants requested that their expert be allowed to retrieve the CDR data, but this request was refused by the vehicle's owner, Henry, through Henry's attorney. (Doc 80 at 6; see also the attached exhibit.)

         Defendants' expert Gillen issued a report on January 25, 2018. (Doc. 77-2.) His opinions are based in part on the CDR data retrieved by Hoffpauir. Among other opinions rendered by Gillen, he concludes that Plaintiff was buckled in his seat belt and the BMW was stationary at the time of impact. (Doc. 77-1 at 2, citing Doc 77-2 at 7.) He opines that it was a very low impact accident with very little force transferred to the occupants of the BMW. (Doc. 77-2 at 8-10.)

         II. PLAINTIFF'S ARGUMENT

         Plaintiff concedes Gillen's expertise in the area of accident reconstruction. (Doc. 81 at 1.) Indeed, “[Plaintiff] does not object to his opinions as to how the accident happened” but rather, focuses his concern on Gillen's opinions regarding “the amount of force transferred in this accident.” (Doc. 77-1 at 6.) As to this, Plaintiff makes five objections:

1. Gillen is not qualified to testify regarding G forces since “he does not possess the requisite [educational] degrees to testify about G forces in this matter.” (Doc. 77-1 at 5.)
2. Gillen “refers to a book [The Physics Factbook] which presumably he read that discusses facts outside his expertise as an Accident Reconstructionist.” (Id., at 3)
3. Gillen's opinions based on the CDR data are “not based on scientific and technical training” since “Gillen did not retrieve this information and has no knowledge of who Mr. Hoffpauir is or who attempted to read this information.” (Id., at 2.)
4. The CDR data is unreliable for various reasons. (Doc. 81 at 2-4.)
5. Gillen's opinion is directly contradicted by [Plaintiff] and the [police investigation]…” (Doc. 77-1 at 2.)

         III. DEFENDANTS' ARGUMENTS

         Defendants respond that:

         1. Gillen is highly qualified and a “well-known and respected Baton Rouge [accident reconstruction] expert…” and “…has never been ...


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