Plaintiff filed suit against the defendant related to damages related to a collision between two tractor-trailers. The plaintiff disclosed an Accident Reconstruction Expert Witness to provide testimony. The defendant filed a motion to exclude this expert from testifying. The court granted the motion in part and denied it in part.
Facts: This case (Anzora v. Lezama et al – United States District Court – District of Colorado – July 25th, 2019) involves damages that arises out of a midnight collision between two tractor-trailers. The plaintiff alleges that she sustained injuries when the defendant, who was traveling in the opposite direction, veered into her lane and struck the side mirror of her truck. The plaintiff has disclosed Accident Reconstruction Expert Witness Trooper Delbert Kirby as a non-retained expert to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The court first notes that Mr. Kirby has over 256 hours of accident reconstruction training through numerous classroom and practical exercises.
The defendants seek to exclude any of his opinions, drawings made, or citations given based on his assessment of the credibility of the parties. In addition, the defendants state that Kirby’s opinions were not based on sufficiently reliable accident analysis methods which would warrant inclusion. The plaintiffs state that Kirby will not be offering opinion testimony that is impermissible because he conclusions were based on factors other than the credibility of the parties.
The court opines that Kirby’s testimony should not be excluded as it relates to his investigation that does not turn on the credibility of the parties. Thus, the court opines that he may testify as to his impression of the location of the vehicles, who called in the accident, the weather and road conditions, and where each party was found.
In addition, the court opines that Kirby will be allowed to provide appropriate lay testimony about his involvement in this matter and the facts he observed. However, his deposition and accident report show that his interviews with the parties were an important part to his opinion on ultimate liability.
Thus, his ultimate conclusions and the portions of his report that reflect them will be excluded. In addition, his other proffered testimony is not opinion testimony, but fact testimony, he will be able to testify as a law witness. But, the court opines, he may not testify as an expert witness under Rule 702.
Conclusion: The motion to exclude the expert witness testimony of Trooper Delbert Kirby is granted in part and denied in part.