Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowery v. Ace American Insruance Co.

United States District Court, M.D. Louisiana

March 11, 2019

SHELBY LOWERY
v.
ACE AMERICAN INSURANCE COMPANY ET AL.

          RULING AND ORDER

          BRIANS JACKSON JUDGE UNITED STATES DISTRICT COURT

         Before the Court is Plaintiff Shelby Lowery's Motion to Exclude (Doc. 44) the opinions of (1) Defendants' accident reconstructionist, Michael Gillen; and (2) Defendants' vocational-rehabilitation expert, Nancy Favaloro. For the reasons that follow, the Motion (Doc. 44) is DENIED.

         I. BACKGROUND

         This is a car-accident case. (Doc. 1). It arises from a collision on Jefferson Highway in Baton Rouge, Louisiana. (Id. at ¶ 3). Shawn Williams was driving a van for his employer, Sherwin-Williams. (Id. at ¶ 4). Shelby Lowery was travelling in an ambulance, working as a paramedic. (Id. at ¶ 3). Alyssa Toucey was driving the ambulance-with flashers activated-in the center lane. (Id.). Williams tried to turn left onto Jefferson Highway but instead struck the ambulance. (Id. at ¶ 5). Lowery sued. (Id., ).

         Defendants hired Gillen to analyze the collision. (Doc. 44-5 at 2). Gillen is a twenty-year veteran of the Baton Rouge Police Department; he was the primary investigator for the hit-and-run division for some of that time. (Doc. 65-4 at 1). He opines that (1) Toucey could have prevented the collision; and (2) Toucey failed to drive with "due regard for safety," in violation of Louisiana Revised Statutes 32:24(D). (Doc. 44-5 at 20).

         Defendants hired Nancy Favaloro to prepare a vocational-rehabilitation assessment. (Doc. 44-8 at 1). She opines that Plaintiff will not suffer a loss of earnings as a result of the collision. (Id. at 5).

         Plaintiff moves to exclude the opinions of both experts under Federal Rule of Evidence 702. (Doc. 44).

         II. LEGAL STANDARD

         Because Defendants offer the testimony of Gillen and Favaloro, Defendants must show that (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) Gillen and Favaloro have applied the principles and methods reliably to the facts of the case. See Carlson u. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016) (citing Fed. R. EviD. 702).

         III. DISCUSSION

         A. Gillen

         Plaintiff asks the Court to exclude Gillen's opinions because (1) Gillen is not qualified to opine that Toucey could have prevented the collision; and (2) Gillen's opinions ignore facts unfavorable to Defendants. (Doc. 44-1 at 6-10).

         For his first argument, Plaintiff asserts that Gillen is not qualified to opine on the preventability of the accident because he is not an expert in EMS traffic-safety procedures. (Doc. 44-1 at 7). Defendants rejoin that Gillen's experience applying Louisiana Revised Statutes 32:24(D)-the same law that governs ambulance drivers-to decide if police officers have safely operated police cruisers qualifies him to opine on Toucey's operation of the ambulance.[1] (Doc. 65 at 7). The Court agrees.

         Gillen has made "over 25, 000" traffic stops. (Doc. 44-5 at 19). "Many" stops involved the use of emergency lights. (Id.). Gillen created and supervised the Traffic Homicide Unit of the Baton Rouge Police Department, which investigated "serious police fleet collisions" and offered opinions on "speed, avoidance opportunity, and compliance with standard operating procedures." (Id.). And Gillen has judged whether officers driving police cruisers have complied with the same standard that governs Touncey's operation of the ambulance. See La. R.S. 32:24(D). Plaintiffs challenges to Gillen's expertise in the narrower area of EMS traffic-safety procedures go to the weight a jury may assign to Gillen's opinions, not to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.