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Paine v. Johnson

February 25, 2010

KATHLEEN PAINE, AS GUARDIAN OF THE ESTATE OF CHRISTINA ROSE EILMAN, A DISABLED PERSON, PLAINTIFF,
v.
OFFICER JEFFREY JOHNSON, OFFICER, RICHARD CASON, OFFICER ROSENDO MORENO, LIEUTENANT CARSON EARNEST, SERGEANT DAVID BERGLIND, DETENTION AIDE SHARON STOKES, OFFICER TERESA WILLIAMS, DETENTION AIDE CYNTHIA HUDSON, DETENTION AIDE CATONIA QUINN, OFFICER DEBORAH MABERY, OFFICER PAMELA SMITH, OFFICER BENITA MILLER, OFFICER PAULINE HEARD, AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Kathleen Paine ("Paine"), as Guardian of the Estate of Christina Rose Eilman ("Eilman"), filed this suit against the City of Chicago and various members of the Chicago Police Department (collectively, "Defendants"), alleging violations of Eilman's constitutional rights and violations of federal and Illinois law. As more fully set forth in this Court's Memorandum Opinion and Order dated February 22, 2010, Paine brings this suit on behalf of Eilman, her daughter, for injuries that Eilman incurred after the Chicago Police Department released her from custody. Paine has now moved to exclude all or parts of the proposed testimony of eight expert witnesses. Defendants have moved to exclude all or parts of the proposed testimony of seven expert witnesses. The Court held a hearing regarding the testimony of proposed expert David Dix. For the reasons set forth herein, Paine's Motion to Bar [the] Opinion Testimony and Report of David Dix is granted.

STANDARD OF REVIEW

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702") and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 states: "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." The Seventh Circuit has developed a three-step admissibility analysis for expert testimony under Rule 702 and Daubert. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill, experience, training, or education.'" Id. (quoting Fed.R.Evid. 702). Second, "the expert's reasoning or methodology underlying the testimony must be scientifically reliable." Id. (citing Daubert, 509 U.S. at 592-93). Courts are, however, granted "broad latitude when [they] decide[] how to determine reliability." Kumho Tire Co. v. Carmichael, 526 U.S 137, 142 (1999). Finally, the expert's testimony must be relevant, or "assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin, 492 F.3d at 904.

DISCUSSION

I. Paine's Motion to Bar the Expert Testimony of David Dix

David Dix ("Dix") is a licensed professional engineer in the State of Illinois who proposes to testify about an automobile accident in which Eilman was involved in February 2005. Dix's report opines that Eilman's vehicle was traveling between 41 and 52 miles per hour at the time of its impact with an electric power pole, that the impact was similar to that of a crash test conducted by the Insurance Institute for Highway Safety, that the vehicle continued to rotate and flipped airborne following the collision with the electric pole until striking another pole, that the vehicle eventually landed on its roof, and that the airbag of the vehicle deployed during the frontal collision with the power pole. Paine moves to bar his proposed testimony as irrelevant. The Court held a hearing on Paine's motion, including testimony from Dix, on January 27, 2010.

A. Qualifications

Although neither party has provided the Court with Dix's Curriculum Vitae, his deposition testimony reveals extensive experience in the fields of mechanical engineering and accident reconstruction in a variety of different contexts. (See R. 553, Ex. B, Deposition Testimony of David Dix, at 5-12.) (hereinafter "Dix Dep.") Paine does not challenge Dix's qualifications to testify as to his reconstruction of the February 2005 automobile accident, and the Court finds him to be so qualified. See Smith v. Ford Motor Co., 215 F.3d 713, 719-20 (7th Cir. 2000) (experts with engineering credentials and practical experience in the field of automobile accident reconstruction qualified as accident reconstruction experts).

B. Methodology

Dix's report reflects that his case review and accident reconstruction was based upon a variety of relevant information, including the California traffic collision report, photographs of the vehicle after the accident, photographs of the accident site, and extensive mechanical and structural information about Eilman's car and the objects with which it collided during the accident. These types of materials are appropriate foundations upon which an expert in mechanical engineering may reconstruct an accident. See Ford v. Nationwide Mut. Fire Ins. Co., 62 Fed. App'x 6, 9-11 (1st Cir. 2003) (upholding expert accident reconstruction testimony based on circumstantial evidence and equations similar to those used here).

At hearing, Paine's attorneys presented two challenge to Dix's methodology that were not raised in her formal Motion to Bar. The first of these new challenges is that Dix erred by basing certain of his calculations on crash data collected from an offset barrier crash involving a different model year than Eilman's vehicle, rather than crash test data using Eilman's precise vehicle and measuring a crash against a power pole. (See Mot. Hr'g Trans., David Dix, at 63-65, Jan. 27, 2010.) (hereinafter "Hr'g Trans.") The second new challenge is that he erred in failing to consider Eilman's medical records from the time immediately following the accident, and that by virtue of this omission he failed to confirm his calculations of the speed at which the vehicle was traveling by reference to available extrinsic data. (See Hr'g Trans. at 89.)

When considering a challenge to an expert's scientific methodology, courts are to consider four key factors: 1) whether the theory is based on scientific knowledge and can be tested; 2) whether the theory has been subjected to peer review or publication; 3) whether there is a known or potential rate of error and whether clear standards control the theory's operation; and 4) whether the methodology or technique used by the expert is generally accepted in the relevant scientific community. See Clark v. Takata Corp., 192 F.3d 750, 757 n.3 (7th Cir. 1999), citing Daubert, 509 U.S. at 593-94.

Here, the bulk of Dix's testimony regarding his reconstruction of the accident relies upon his extensive calculations "following the basis fundamental principles of physics." (Hr'g Trans. at 82.) Defendants do not challenge these formulae, which have been published, discussed, and accepted in the context of motor vehicle accident reconstruction for decades. (See Hr'g Trans. at 82.) Instead, they challenge the validity of Dix's underlying data, because he did not utilize crash test data involving the same vehicle and its impact with a wooden pole similar to that involved in the accident at issue here. Dix testified that data of this precisely comparable nature would be "the best way to analyze" the impact of Eilman's car into the power pole, but that he was not aware of such data existing. (Hr'g Trans. at 68-69.) He also explained, however, that he found the crash test data upon which he did rely to be applicable here because the vehicles were similar, the type of crash was similar, and the rotation of the car caused by the ...


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