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ESTATE OF WARNER v. UNITED STATES

July 3, 1990

ESTATE OF TODD C. WARNER, etc., Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 This District Court has established a task force to assist in the disposition of more-than-three-year-old cases on the calendars of any of the judges in this District. As part of that task force's activity, this Court has volunteered to try cases pending on the calendars of its colleagues, and this action (pending on the calendar of Honorable Charles Norgle) has been referred for that purpose.

 Following that referral this Court has supervised the preparation of a final pretrial order ("FPTO") pursuant to which the case is now ready for trial. *fn1" It now develops, through a motion in limine (submitted following the January 22, 1990 entry of the FPTO) as to the admissibility of expert testimony on behalf of the plaintiff ("Warner"), that resolution of that motion may shorten the trial appreciably -- or perhaps even permit the action to be disposed of via summary judgment rather than trial. This memorandum opinion and order deals with that motion.

 FACTS

 Although the facts (both agreed to and contested by the parties) are set out at greater length in the FPTO, only a skeletal version is necessary for consideration of the current motion. Todd Warner (whose estate is the plaintiff here) was killed in a tragic way when the car he was driving collided with an auto driven by teenager Rixecker. *fn2" Suit against the United States under the Federal Tort Claims Act ("FTCA") is based on Warner's contention that Great Lakes Police Officer Lester Caldwell ("Caldwell") -- an employee of the federal government -- was negligent (1) in following Rixecker after he had been told by the driver of a car that was stopped behind the one driven by Rixecker that the latter was (a) a runaway, (b) had tried to commit suicide, (c) was underage, and (d) had no driver's license and (2) in then continuing to pursue Rixecker after Caldwell had seen her make an illegal U-turn, almost hit a pedestrian and run a red light. It was during Rixecker's high-speed attempt to flee that she collided with Todd Warner's car.

 EXPERT TESTIMONY

 This Court is called upon to deal with a narrow issue rather than with the general admissibility of expert testimony to aid the trier of fact, as prescribed in Fed. R. Evid. ("Rule") 702:

 
Testimony by Experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

 Because the FTCA permits no jury trials against the United States, this Court -- as the "trier of fact" -- should logically be in the best position to make that judgment. And given the nature of the events described in the FPTO and the nature of the anticipated testimony from the proposed "expert" as set out in the current briefing, this Court does not view that testimony as meeting the test stated in Rule 702.

 Nonetheless, it seems appropriate to take a look at the legal question whether such a third-party opinion -- even though this Court might view it as not only unneeded but also unhelpful -- is subject to some rule of law that might mandate the opinion's being listened to (even if not agreed with). Accordingly this opinion will later turn to a consideration of the relevant substantive case law in the course of its discussion.

 At the outset, however, this Court finds itself puzzled by one aspect of the parties' current discussion -- that having to do with the rule of conduct by which Officer Caldwell's (and hence the United States') actions must be tested. Even though the United States refers at page 2 of its current motion to "due care," which is ordinarily viewed as a synonym for a negligence test, that seems wholly inappropriate for the reasons set out in the government's proposed Findings of Fact and Conclusions of law included in the FPTO. On the other side of the fence, Warner's FPTO submission urges that straight negligence should be the test.

 
1. Under the FTCA, Illinois law provides the rules of decision as to the United States' potential liability (28 U.S.C. ยง 2674 ("Section 2674") says that the "United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the ...

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