United States District Court, M.D. Louisiana
RULING AND ORDER
JACKSON JUDGE UNITED STATES DISTRICT COURT
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.
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., ).
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).
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).
moves to exclude the opinions of both experts under Federal
Rule of Evidence 702. (Doc. 44).
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.
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).
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. (Doc. 65 at 7). The Court agrees.
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 ...