COURT USE ONLY Case Number: 15CV vs.

Transcription

1 DISTRICT COURT, EL PASO COUNTY, COLORADO Court Address: 270 South Tejon Street P.O. Box 2980 Colorado Springs, Colorado Phone Number: (719) Plaintiff(s) RYAN GRAHAM vs. COURT USE ONLY Case Number: 15CV32280 DATE FILED: March 10, 2016 CASE NUMBER: 2015CV32280 Defendant(s): KOHLBY SHARPLES, STEPHANIE SHARPLES and TRACY SHARPLES Division: 13 Courtroom: S306 ORDER RE: MOTION IN LIMINE FOR SHRECK HEARING TO PRECLUDE TESTIMONY BY DEFENSE EXPERT MR. CARTER THIS MATTER comes before the Court on Plaintiff s Motion in Limine for Shreck Hearing to Preclude Testimony by Defense Expert Mr. Carter. The Court having reviewed the Motion in Limine, having considered the Response and Amended Response thereto, having considered the testimony and evidence at the hearing held on March 9, 2016 (including the thumb drive) and being fully advised in the premises FINDS and ORDERS as follows: I. Factual Synopsis: Defendant, Kohlby Sharples, was driving westbound on Burgess Road, approaching the intersection of Burgess and Vollmer Road in the Black Forest area in El Paso County, Colorado. Mr. Sharples approached the intersection, which had a flashing red light and a stop sign for his direction of traffic. It is alleged that Mr. Sharples pulled out in front of the Plaintiff, Ryan Graham, who was driving northbound on Vollmer Road driving a Dodge Ram pick-up truck and pulling a trailer. The parties dispute the material facts, including the speed of the vehicles, of the accident. The resulting collision is the subject of this litigation. II. Issue: Whether Defense Expert Neal Carter testimony and reports should be excluded under C.R.E 702 and Shreck? III. Analysis: In determining the admissibility of expert testimony before trial, the trial court employs a Shreck analysis. Such analysis requires the Court to determine whether (1 ) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony would be helpful to the jury; and (4) the evidence satisfies C.R.E People v. Shreck, 22 P.3d 68 (Colo. 2001). Qualifications of the expert: Defendants have endorsed Neal Carter, M.S., P.E., ( Carter ) to testify as an expert in accord with his narrative report. Carter used the software PC-Crash to assist him in concluding that the Plaintiff, Ryan 1

2 Graham was driving at a high rate of speed prior to the collision. Plaintiff objects to this testimony as inadmissible under CRE 403, CRE 702, and under the totality of the circumstances. Carter testified at the Shreck hearing held on March 9, 2016 where he was qualified as an Expert under C.R.E. 702 as an expert in the areas of engineering and traffic accident reconstruction. Carter is a registered Professional Engineer in the State of Colorado and an accredited Traffic Accident Reconstructionist. Scientific principles underlying the testimony are reasonably reliable: Plaintiff raises several challenges to Carter s narrative report and the supplement thereto, which contain the subject of his anticipated testimony. Plaintiff contends that Carter s report does not meet the requirements of C.R.C.P. 26 (a) (2) (B) (I) which requires a party to an action to provide an expert s witness s report or summary, specifically: The report or summary shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions (italics supplied). Plaintiff contends that Carter lacked relevant vehicle weight information or trailer loading information and the report does not contain data supporting the weights he used and because the report relies on scenarios conducted with a wide range of trailer loading weight, Mr. Carter s report does not meet the requirements of C.R.C.P. 26 (a) (2) (B) (I) to opine about specific timeline of events at the intersection of Burgess and Vollmer in Black Forest on June 23, 2014 based on mere estimates. Plaintiff contends that Mr. Carter lacked the necessary measurements to reach his conclusions. Mr. Carter s report states that the software allows the analyst to specify the vehicle and scene geometries, the roadway surface conditions, the impact configuration (based on the damage). Specifically that Mr. Carter lacked specific measurements in the following areas: a. Weight of Nissan Altima b. Weight of Dodge Ram pickup c. Loading type and loading weight of trailer d. Hitch rating of trailer e. Coefficient of friction on roadway f. Reaction time of the Plaintiff (the driver of the Dodge Ram) g. Exit position and speed given both vehicles rolled out. The Court disagrees. While Carter primarily utilized the photographs of the scene which included the resting position of the vehicles post-accident, he also considered the diagram of the investigating officers ( troopers report ) and other physical evidence. In his reports, and at hearing, Carter addressed the specific measurement concerns raised by Plaintiff (a g). Carter testified as to the data, inputs and sequences used by him with the PC-Crash software in arriving at his conclusions. (a) and (b): Carter used the weight and dimensions of Plaintiff s 1998 Dodge Ram 2500 Pick-up and Defendant s 2004 Nissan Altima, weather conditions, the type of roadway (asphalt), aerial photographs of the intersection, among other salient information. The Court finds the evidence at hearing reveals that the data or metrics Carter used was not speculative or unsupportable. Carter testified that he used 2

3 the VIN numbers and on-line tools to ascertain the precise weight and dimensions of the vehicles and that dealerships were called to ascertain more specific information as to the subject vehicles. Further, while the post-accident photographs were taken by Defendant Kohlby Sharples parents, the Court finds the evidence supports that the photographs accurately reflected the resting place of the vehicles. Carter testified the post-accident photographs did not have a scale or legend to reveal measurements; however Carter used meta-data contained within the camera itself to ascertain relevant metrics. The photographs revealed other relevant data including, but not limited to tire marks, gouge mark and where the police marked (painted) the gouge mark. Carter received Plaintiff s expert, John Smith s file on March 1, 2016 (subsequent to Carter s initial report) which contained correspondence between Plaintiff s counsel and Smith as to Plaintiff Graham s own estimate of the weight of the cargo that he was carrying in the bed of his pickup and an estimate for the weight of the trailer. Plaintiff Graham stated his estimates for the trailer width (2100 pounds), the cargo weight (1,500 to 2,000 pounds) and the topper weight (200 to 250 pounds). Carter testified that he used this information provided by Plaintiff Graham. (c) As noted in Carter s report, this combined weight [total weight for the loaded truck and trailer of 10, 168 to 10, 718 pounds] is within the range that I utilized in the analysis described in my initial report. Further, with the revised information from Mr. Smith s file regarding weight and loading condition of the Graham Dodge and trailer, I refined the vehicle weights and ran an additional series of simulations to represent the weights estimated by Mr. Graham. (d) Carter testified that the hitch was able to tow and was not separated. Carter also looked at Plaintiff Graham s trailer in relation to brakes and based on Plaintiffs own statements to Plaintiff s Expert Smith, the trailer was not equipped with trailer brakes thus Carter ran simulations without trailer brakes as well. (e) Carter testified as to coefficient of friction on the highway (slide 10). (f) Carter testified that he used sequencing in addressing the issue of the reaction time of Plaintiff. (g) Carter testified regarding the roll out information and examining the parameters of any roll out to ascertain if it matched the physical evidence. Plaintiff contends that Carter s proferred expert testimony does not meet the legal standard for admissibility under C.R.E. 702 and People v. Shreck. Specifically, Plaintiff argues that the PC-Crash software used by Mr. Carter is not reasonably reliable because the Defendants have not shown that it has been subjected to peer review and publication, or that it had been generally accepted in the accident reconstruction field. Plaintiff submits that while Carter s report states that there is technical literature which describes and validates the use of PC-Crash for accident reconstruction, the literature listed contains papers mostly authored by developers and distributors of the PC-Crash software, such information having been easily obtained by the undersigned attorney with a handful of Google searches. PC-Crash was created by DSD, and MEA forensic is a North American distributor of the PC-Crash program. 3

4 C.R.E 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 (italics supplied). The Colorado Supreme Court in Shreck established a liberal standard of admissibility that would be balanced by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Estate of Ford v. Eicher, 220 P3d 939, 944 (Colo. App. 2008), citing to Shreck, 22 P3d at 78, quoting People v. Daubert, 590 U.S. 579, 596, 113 S. Ct (1993). Scientific evidence is admissible under CRE 702 if the testimony is reliable and relevant. People v. Ramirez, 155 P.3d 371 (Colo. 2007), citing Shreck, 22 P.3d at 77. The CRE 702 inquiry contemplates a wide range of considerations that may be pertinent to the evidence at issue. Shreck, 22 P.3d at 77, citing United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985).The Supreme Court of Colorado articulated a nonexhaustive list of factors a trial court may consider, including: a. Whether the technique can and has been tested; b. Whether the theory or technique has been subjected to peer review and publication; c. The scientific technique s known or potential rate of error, and the existence and maintenance of standards controlling the technique s operation; d. Whether the technique has been generally accepted; e. The relationship of the proffered technique to more established modes of scientific analysis; f. The existence of specialized literature dealing with the technique g. The non-judicial uses to which the technique are put; h. The frequency and type of error generated by the technique; and whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. Shreck, 22 P.3d at 77-78, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, (1993) and Downing, 753 F. 2d at A trial court determines the reliability of scientific methods based upon a consideration of the totality of circumstances that may, but need not, include consideration of whether the technique can be and has been tested. Farland Mut. Ins. Companies v. Chief Ind. Inc., 170 P3d 832, 836 (Colo. App. 2007) An expert s testimony is not speculative simply because the testimony is in the form of an opinion or stated with less than certainty Ramirez at 378. The Court specifically considered the non-exhaustive list of factors delineated in Shreck with Carter s expert testimony and reports, which used PC Crash software. The Court incorporates its finding above. Further, PC Crash is a computer software simulation program that applies math, physics and other scientific principles for traffic accident reconstruction. Carter testified that though there are many variables that can be input into the program, the PC Crash program cannot be manipulated as it is constrained by the laws of physics. Further, the Court finds the 4

5 technique can and has been tested. Carter testified and his report reveals that PC Crash software program has been used by various law enforcement entities, insurance companies, automotive industry and universities to analyze vehicle collisions. As an accredited traffic accident reconstruction engineer, Carter utilizes PC-Crash software program daily for research purposes and for accident reconstruction as do other member of Kineticorp. PC Crash software has been subjected to peer review and publication. Carter testified that several articles are published on or related to PC Crash with many published by the Society of Automotive Engineers after substantial vetting and review. Carter personally co-authored some of those articles. The Court also finds Carter testified that PC-Crash has a known rate of error of three miles per hour. The Court finds that PC-Crash accident reconstruction software is generally accepted. While some of the publications were authored by engineers, distributors or developers by DSD (creator of PC Crash) creator) or MEA Forensic (distributor) suggesting a cloistered or in-house review as posited by Plaintiff, several other authors have published articles on the software. In his Supplemental Report Carter cited 26 publications in which PC-Crash has been subject to peer review, many cited references published through the Society of Automotive Engineers. In addition to the rigors of peer review by SAE, the expanse of time PC Crash has been subject to peer review (which ostensibly would include publications disputing the validity and/or the reliability of the PC-Crash software) was considered by the court; the span of years for the published articles runs from 1996 through Further, there have been over 6000 installations of the software used by a myriad of agencies and organizations. The Court finds PC-Crash software is generally accepted. The Court also considered the relationship of the proferred technique to more established modes of scientific analyses. The Court finds that as opposed to the more mechanistic approach ( hand-calculations ) used for traffic accident reconstruction, Carter testified that PC-Crash software analyzes information, bounded by math, physics and science to match the physical evidence. The reliability of the result appears, based upon Carter s testimony at the Shreck hearing, to be less subject to the vagaries of human error than a mechanistic hand-calculated result: What [Plaintiff s expert] Smith fails to understand is the utility of using simulations that do not match the rest positions in order to explain what set of inputs can be ruled out. These simulations, for instance, show that Mr. Smith s opinion that Mr. Graham was initially travelling 50 mph, does not agree with the physical evidence. Carter testified he ran thousands of simulation runs. In his Supplemental report, Carter states that the analyst then determines the degree to which a given set of inputs results in a match with the actual physical evidence of the accident, such as the deposited tire marks, the rest positions of the vehicles, and the configuration of the damage on the vehicles. Carter stated that he used inputs into the software program that were physically realistic, reasonable and justified by the available technical literature of accident reconstruction. The Court finds Carter s testimony credible and unrefuted; Carter testified he did not and could not, under the constraints of physics, manipulate the PC-Crash software to achieve some preordained result including the speed of the vehicles. Finally, the Court reviewed the PC-Crash Acceptance in Court attached to Defendant s Response to the Plaintiff s Motion in Limine for Shreck hearing. The Court finds that PC-Crash software evidence has been offered and admitted in Colorado and other jurisdiction within the United States and internationally. Under the totality of the circumstances, Carter s expert testimony and reports which used PC Crash software, is reasonably reliable. 5

6 Relevance helpful/useful to the jury: Plaintiff argues that should the Court find PC-Crash reliable, Mr. Carter lacked the necessary measurements to reach his conclusions. To determine relevancy under CRE 702, the court should consider whether the expert testimony would be useful to the fact finder. Ramirez, 155 P.3d at 379, citing Shreck, 22 P.3d at 77 (citing Brookes v. People, 975 P.2d 1105, 1114 (Colo. 1999)). The Court incorporates by reference its findings above including the data and PC-Crash software used by Carter in arriving at a reliable conclusion. The Court finds Carter s expert testimony would be helpful or useful to the fact finder. Unfair Prejudice: A Shreck analysis also requires consideration of the prejudicial effect of expert opinions pursuant to CRE 403. Under Rule 403 trial courts are given broad discretion in balancing the probative value of evidence against the danger of unfair prejudice Unfair prejudice as the phrase is used in Rule 403 does not mean prejudice that results from the legitimate probative force of the evidence, [but rather] unfair prejudice means an undue tendency on the part of admissible evidence to suggest a decision made on an unfair basis. Kelly v. Haralampopoulos, 327 P3d 255, (Colo. 2014). Even though proferred testimony may be admissible under the liberal standards of C.R.E. 702, the court must apply its discretionary authority under C.R.E. 403 to ensure that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of evidence. Ramirez 155 P.3d 379, citing 403; see also, Masters, 58 P.3d at 992. Plaintiff contends that Carter s testimony would be misleading to the fact finder and unfairly prejudicial because his conclusions rely on numerous assumptions or guesswork instead of scientific statistics or actual measurement. The Court rejects Plaintiff s arguments. The Court incorporates its findings above. Further, Carter utilized post-accident photographs, aerial photographs, tire marks, VIN numbers, vehicle measurements and weights of the vehicles, Plaintiff s own statements as to the weight and load of the trailer among other physical evidence. The Court also rejects Plaintiffs request to exclude evidence as unfairly prejudicial based upon the disparity between Carter s findings as to speed and the on-scene investigating police officer. It is the purview of the jury to reconcile disparate evidence. The Court also rejects Plaintiffs argument, raised at hearing, that a multi-media presentation would be impactful to a jury and unfairly prejudicial. Presentations of evidence through myriad forms of technology (including multi-media presentations) standing alone has not been shown by Plaintiff as constituting unfair prejudice. The Court finds that the use of technology, including the use of video (such as YouTube, Snapchat among others) is ubiquitous in the culture. The court may however, upon proper motion with citations to authority, consider a limiting instruction regarding parameters for viewing evidence. 6

7 IV. Conclusion: Plaintiff s Motion in Limine to Preclude the Testimony by Defense Expert Mr. Neal Carter is hereby DENIED. DONE THIS 10 March BY THE COURT: Honorable Barbara L. Hughes District Court Judge CERTIFICATE OF MAILING I certify that a true and correct copy of this Order was placed in the US mail or e-filed to both Plaintiff and Defendant this 10 March /s/ J.Herrera Deputy Clerk 7