Free Order on Motion for Partial Summary Judgment - District Court of Arizona - Arizona

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Case 2:03-cv-01990-PGR Document 103 Filed 07/07/2005 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Palma Bacca Urrutia, et al., Plaintiffs, v. Darrell Lee Ekdahl, et al. Defendants.

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No. CV 03-1990-PHX-PGR

ORDER

Pending before the Court is the Defendants' Motion for Partial Summary Judgment to Exclude Plaintiffs' Expert Opinion and Report (Doc. 55). The Court now rules on the motion. I. INTRODUCTION This case arises out of a motor vehicle accident between a semi tractor-trailer and a Ford truck which resulted in the deaths of Jose Luis Urrutia-Arrieta and Javier Arturo Sandate-Urrutia. The Plaintiffs are surviving family members who are bringing claims of wrongful death, negligence, and negligent hiring and supervision against the Defendants. On May 22, 2003, Defendant Darrell Lee Ekdahl ("Ekdahl") was driving a semi tractor-trailer eastbound on Interstate 10 for Vandy's Transportation, Inc. ("Vandy's Transportation"). On the same day and approximately the same time, decedent Urrutia was driving his Ford truck with his seventeen year old nephew. Ekdahl rear ended the Ford truck

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causing it to roll off the interstate and catch fire which resulted in the deaths of its two occupants. The Defendants now bring this motion for partial summary judgment "to exclude the expert opinion testimony and report of the Plaintiffs' accident reconstructionist on the grounds that no genuine issue of material fact exists with respect to Plaintiffs' expert's lack of foundation to provide expert testimony as to the dynamics of the accident." The Defendants state that they are entitled to exclude the expert opinion as a matter of law. II. LEGAL STANDARD AND ANALYSIS Although the Defendants filed the current motion as one for partial summary judgment, the motion is more properly characterized as a motion in limine because it requests that the Court deny the admission of certain evidence. Accordingly, the Court will treat the pleading as a motion in limine. Through their motion, Defendants assert two arguments in an attempt to persuade the Court that the Plaintiffs' expert's, Lamont Skousen ("Skousen"), opinion is based upon speculation and conjecture. First, the Defendants argue that Skousen did not utilize the correct pre-impact skid measurement in his reconstruction of the accident and thus his opinions and report should be precluded from evidence. Mr. Skousen opined that the Vandy Transportation semi tractor-trailer, driven by Ekdahl, was traveling at 75-85 mph. Skousen's opinion was based upon the pre-impact skid left by Ekdahl's vehicle. Skousen calculated the speed of the Ekdahl's vehicle using a pre-impact skid of 53 feet; however, the Defendants maintain that he should have used a pre-impact skid of 110 feet, the measurement taken by a police officer at the scene of the accident. According to the Defendants, any opinion regarding the speed of the semi tractor-trailer, the distance it traveled prior to impact with the deceased's truck, as well as Ekdahl's perception-reaction time, is based upon faulty information due to the expert's failure to use the correct pre-impact skid measurement. As pointed out by the Plaintiffs, the Defendants' argument fails both factually and legally. In this case, the officer at the scene of the accident, who had never conducted this type of investigation, incorrectly determined the pre-impact skid. In order to correctly determine the pre-impact skid in a semi tractor-trailer crash, the officer locates the point the
Case 2:03-cv-01990-PGR - 2 Document 103 Filed 07/07/2005 Page 2 of 4

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rear dual wheels of the trailer begin to skid. From that location he measures the distance to the point where the impact between the first bumper of the semi and the rear of the truck occurred. Since the skid distance is measured from the rear-most tractor axles, the length of the semi tractor-trailer must be subtracted. In this case, the officer on the scene testified that he simply failed to subtract the length of the semi-tractor trailer and recognized that the pre-impact skid would have been significantly less than the 110 feet he included in the accident report. Although the Defendants argue that the expert failed to use the correct preimpact skid of 110 feet as stated in the accident, they are incorrect. The Plaintiffs' expert correctly subtracted the length of the tractor trailer, which was 57 feet, leaving the correct measurement of 53 feet of pre-impact skid. The second argument the Defendants make in an effort to preclude the Plaintiffs' expert's report and opinion is that the expert's methodology in determining the speed of the deceased's vehicle upon impact is speculative. Specifically, the Defendants maintain that the expert erred in applying an acceleration factor of 0.15 to the deceased's vehicle in order to determine the speed the vehicle was traveling upon impact with the semi tractor-trailer. However, the Defendants' argument is flawed. The Plaintiffs point out that their expert determined the pre-impact speed of the deceased's vehicle by analyzing crush data and the distance the vehicle traveled after impact. Apparently, this is the same method utilized by the Defendants' expert. Despite the Defendants' arguments, it appears that the acceleration factor the Defendants' object to was not used to determine the speed of the deceased's vehicle prior to impact. Instead, after determining the speed of the vehicle before impact, the Plaintiffs' expert set forth a table of acceleration rates to demonstrate the range of time it would have taken the deceased's vehicle to accelerate and reach the pre-impact speed. Accordingly, there is no reason to preclude the Plaintiffs' expert's opinion based on the arguments the Defendants raise through this motion. Questions concerning the accuracy and reliability of an expert's testimony are properly reserved for the jury.

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IT IS ORDERED that Defendants' Motion for Partial Summary Judgment to Exclude Plaintiffs' Expert Opinion Testimony and Report (Doc. 55) is DENIED.

DATED this 7th day of July, 2005.

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