STATE OF WISCONSIN CIRCUIT COURT LA CROSSE COUNTY. Involuntary Plaintiffs Case No. 13-CV-463 v. Case Code: 30101

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1 STATE OF WISCONSIN CIRCUIT COURT LA CROSSE COUNTY DANA M. SCHLICHT and KATELEY SCHLICHT, Plaintiffs, STATE OF WISCONSIN DEPARTMENT OF HEALTH SERVICES OFFICE OF LEGAL COUNSEL, DEPT. OF HEALTH SERVICES and ARTISAN TRUCKERS CASUALTY COMPANY Involuntary Plaintiffs Case No. 13-CV-463 v. Case Code: AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY and PETER THOMPSON, Defendant. DEFENDANTS RESPONSE BRIEF TO PLAINTIFF S DAUBERT MOTION INTRODUCTION Defendants, Peter Thompson and American National Property And Casualty Company, by their attorneys, Moen, Sheehan, Meyer, Ltd., file this response to Plaintiff s Motion to exclude testimony by defense expert, Billy Cox, under Wis. Stat Plaintiff s main criticisms are actually focused on Mr. Cox s credibility; the law is clear that credibility determinations are only to be made by a jury, not the court. Further, Mr. Cox s opinions are 1

2 admissible based on the facts and arguments set forth below and in the Affidavit and Brief filed in support of Mr. Cox s testimony. FACTS This case involves a two-car accident which occurred on September 17, Ms. Schlicht, Plaintiff, was stationary in her vehicle and was struck from behind by a vehicle driven by Peter Thompson, American National Property And Casualty Company s insured. She claims to have suffered injury as a result of this accident. (See Complaint). Among the issues in this case, is the speeds of the vehicles and the force of the impact. Defendants have named Billy S. Cox, Jr. as an expert witness and seek to introduce his opinions regarding the forces involved in the impact and the speed of the vehicles. Mr. Cox will also offer opinions, based on his own testing, government testing and private-industry testing, that those same speeds and forces have not produced injury to human occupants. Mr. Cox is offering engineering opinion testimony as to the forces expended by the vehicles and the relationship between impact severity and injury potential. He is offering opinion testimony that the impact-induced velocity change sustained by the Dodge Neon SXT sedan was calculated to be less than 6.0 mph. Mr. Cox is offering an opinion that relevant scientific research and literature, along with impact tests using human subjects, indicate that velocity changes within this range are below levels associated with injuries for adult occupants under normal seating conditions. Cox Affidavit. He opines that the impact-induced velocity change experienced by the Dodge Neon XST sedan in the accident is not associated with an injury inducing event. Id. Mr. Cox s testimony will assist the trier-of-fact understand evidence related to speed, impact velocity and crash-test data using the same variables. His expert report and opinions are 2

3 based on his review of the photographs, review of significant car data and appraisal reports, Ms. Schlicht s statement and a review of test data and studies as well as significant literature concerning low-velocity impacts. Cox Affidavit. ARGUMENT Wisconsin adopted the Daubert standard in 2011, as set forth in Section , Wis. Stat., which 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, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. The Wisconsin statue is relatively new; therefore, there is not much in the way of Wisconsin authority. Federal precedent is helpful but not binding. See Daniel D. Blinka, The Daubert standard in Wisconsin: A Primer, 84 Wisconsin Lawyer 3 at 14. Daubert changed the law by establishing a gatekeeper function for trial judges under Federal Rules of Evidence 702. Faced with a proffer of expert scientific testimony, the trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Goebel v. Denver & Rio Grande W., R.R. Co., 215 F.3d 1083, 1087 (10 th Cir. 2000) citing Daubert, 509 U.S. at 592, 113 S.Ct This gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert s opinion, and determine whether it is scientifically valid and applicable to a particular set of facts. Id. It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert. Id. For instance, the court may hold a Daubert hearing; 3

4 assess the matter through motions in limine, or during objection at trial. See Id. The important step is for the court to make findings on the record. See Id. at I. COX S TESTIMONY CONCERNING THE PHYSICAL FORCES INVOLVED IN THE SUBJECT COLLISION ARE ADMISSIBLE UNDER WIS. STATS A. COX IS QUALIFIED TO TESTIFY REGARDING THE SPEED AND FORCES INVOLVED IN THE SUBJECT COLLISION AND THEIR CONCURRENT IMPACT UPON VEHICLE OCCUPANTS. Cox s opinions are two-fold: first, Cox opines that the impact-induced velocity change sustained by the Dodge Neon SXT sedan was less than 6.0 mph. Second, Cox opines that scientific research and literature, along with impact tests using human subjects, indicate that velocity changes within this range are below levels associated with injuries for adult occupants under normal seating conditions. This information statistical evidence regarding speed and velocity is beyond that of a lay person s knowledge. Sec (1). While Plaintiff discusses what Mr. Cox is not, the Court should be fully aware of all his credentials. Mr. Cox is the President and CEO of Billy Cox Group, which was founded in Cox Affidavit. He is a nationally recognized expert in the field of crash reconstruction and impact biomechanics. Id. Cox has over 27 years of experience, training and education as an analyst, consultant and testifying expert in the field of transportation crash reconstruction, crash testing and impact biomechanics. Id. His most current curriculum vitae details his educational and work experience from 1980 to present. Id. It also lists all of the professional organizations, research appointments, seminars, publications and courses that he has taken over the last 27 years. Id. Cox has been recognized as an expert and been qualified numerous times in the areas of crash reconstruction, crash magnitude, biomechanical engineering, and the biomechanical response of occupants when subjected to various crash magnitudes, the probability of injury or the type of injury one might expect. Id. The jurisdictions include, City Courts, State District 4

5 Courts, Parrish Courts and State Circuit Courts. Id. He has provided expert testimony outside the United States of America and in Federal court in the areas of crash reconstruction, crash magnitude, the biomechanical response of the occupants when subjected to various crash magnitudes, the probability of injury or the type of injury one might expect. Id. Since 1995, Cox has personally conducted hundreds of crash tests with human subjects and anthropomorphic devices. Cox Affidavit. In 1996, Cox designed and built a mobile crash laboratory called the Low Velocity Impact Simulator (LVIS). Id. This device is used today to study low speed impact biomechanics, vehicle seat properties and occupant kinematic responses. Id. In the last 27 years, Cox has personally inspected more than 3000 vehicles to evaluate and quantify crash damage. Id. He has conducted photographic analysis on an additional 8,000 vehicles. Id. In 2001, Cox conducted a 300 hour study, sponsored by the National Highway Traffic Safety Administration (NHTSA), at John Hopkins University Applied Physics Lab, which focused on the correlation between seat geometry and neck injury. Cox Affidavit. Cox has been a frequent lecturer on the topics of crash reconstruction and impact biomechanics; his audiences have included business, legal and insurance professionals, as well as members of the automotive reconstruction industry. Id. Cox holds Crash Reconstruction Accreditation (#983) from the Accreditation Commission for Traffic Accident Reconstruction (ACTAR). Id. This certifies that he meets the standards that have been designed to advance the recognition of the ACTAR accreditation program, and in doing so, encourage the integrity, consistency and professionalism of those involved in traffic accident investigation and reconstruction. Id. Further, ACTAR promotes the professional and intellectual development of those individuals, organizations and institutions involved in traffic accident investigation and reconstruction, and assists the legal and 5

6 scientific community in weighing the suitability of individuals offering their services as Accident Reconstructionists. Id. All of Mr. Cox s testing methods protocol and opinions correlate and coincide with published protocols from the Society of Automotive Engineers. Cox Affidavit. Cox has never performed or relied upon crash data tests that produce different results from peer-reviewed theories. Id. Nothing Cox relies upon in his analysis or opinion would be unique from existing testing protocol or deviates in any manner from existing peer-reviewed data. Id. Cox s opinions relate to the calculated velocity changes and proven testing showing such changes are normally not associated with injury. Cox Affidavit. Cox is duly qualified to relate speeds to test results and literature to reveal to the jury the outcomes in such studies. He is not offering a medical opinion. Furthermore, Cox has performed 100 s of crash tests, has attended Texas A&M University, performed a significant U.S. government contracted study on neck injury as a result of rear impacts and has been qualified numerous times as an expert in crash reconstruction, impact biomechanics and biomechanical engineering in City, State and Federal courts. Cox Affidavit. B. MR. COX S OPINION IS BASED UPON SUFFICIENT FACTS AND DATA. A sufficiency determination is for the judge, pursuant to Wis. Stat (1), and is distinct from, but also related to, the types of facts and data an expert may rely on, which is governed by Wis. Stat (Blinka, p. 18, citing Wasson v. Peabody Coal Company, 542 F.3d 1172 (7 th Cir. 2008).) The analysis requires the judge to find that the expert is relying on a sufficient basis of information whether admissible or not[.] (Id., citing n. 26, Fed. R. Evid. 702 Adv. Comm. Note, 2000 Amendment) (Emphasis original). 6

7 The scientific basis of Cox s testimony is grounded in time-tested research and procedure. The principles of science that are utilized in calculating the Delta-V of a vehicle and making a determination whether the forces generated in a given collision are sufficient to produce injury for the occupants are rooted in Newtonian physics. Cox Affidavit. Likewise applicable are the fundamental kinematic equations described in the Law of Conservation of Momentum and the Law of Conservation of Energy. Id. One can calculate Delta-V by comparing the damage on the subject vehicles with the performance analysis described barrier crash test data. In biomechanical analysis of a car wreck, the ultimate conclusion is based on velocity change, Delta-V. Cox Affidavit. The relevant scientific literature conclusively demonstrates that as the magnitude of the collision increases, the potential for injury increases as well. The relevant scientific literature also describes with a high degree of scientific certainty, the Delta-V at which injury begins to occur, and the types of injuries that do occur, when the Delta- V is exceeded. Id. The variables required to calculate the Delta-V of a given crash using standard kinematic equations, include the weight of the vehicles, the coefficient of restitution for the crash, and the damage sustained by an exemplar vehicle in a controlled test. Cox Affidavit. Standardized industry data provides vehicle weights. Id. Another component is the determination of impact energy and damage related to a particular crash test. The National Highway Traffic Safety Administration (NHTSA) sets minimum standards for vehicle bumper performance. They also publish crash test results. Applicable low speed barrier crash test data is published by the Insurance Institute for Highway Safety (IIHS). Id. As well, there are available private injury crash test results and those conducted by Billy Cox Group. Id. All crash test results detail down to component part what was damaged at what speed including if there was occupant injury. Id. 7

8 Mr. Cox s analysis is the exact same as that relied upon by nearly all biomechanical/forensic analysts in the industry. Cox Affidavit. Why? Because such analysis is based on aspects of physics/kinetics that have existed for centuries. Scientists peer-review papers/formulas/theories to either validate data or present new/novel theories. In the case of forensic analysis, Billy Cox is not presenting nor has he presented any new theory which required/mandated peer review. Billy Cox Group has never performed crash data tests which produced differing results from peer-reviewed theories. Cox Affidavit. As such, submitting the results would not be accepted; there is nothing unique from their testing protocol that would deviate from other peer-reviewed data. Id. Further, Cox s conclusions in this case were based on the voluminous materials provided to him: 1) Motor Vehicle Accident Report; 2) Damage Repair Estimate of both vehicles; 3) 42 photographs of both vehicles with measurements depicted in the photos; and 4) Recorded statement of Plaintiff. Cox Affidavit. From this data, Cox was able to calculate the impact velocity to/from either vehicle. Cox also analyzed the photos and damage estimate against a significant volume of crash data, all peer-reviewed, to produce a conclusion applicable to these facts. Cox was then able to formulate an opinion for his client regarding its claim. Cox was hired not during any pending litigation, but during the insurer s claim process. He was hired by American National Property And Casualty Company on July 3, 2012, and this matter was placed in litigation on July 15, Cox Affidavit. 8

9 C. MR. COX S TESTIMONY IS THE PRODUCT OF RELIABLE PRINCIPLES AND METHODS AND HE HAS APPLIED THEM IN A RELIABLE SCIENTIFIC FASHION TO THE FACTS OF THIS CASE. Plaintiff offers mere rhetoric regarding Cox s theories being untested or not subject to peer review. All of his conclusions/opinions are backed by scientific theory and peer-reviewed publication. His methods are not novel or new merely because they do not contain his name or moniker in some fashion do not render them quack science. Cox Affidavit. Plaintiff attempts to discredit Cox s methodology and opinions by referencing two studies which have findings contradicting Cox. Those studies are inadmissible hearsay. Plaintiff s attorney has not listed any witnesses who will testify as to the content of such studies or their impact on Mr. Cox s conclusions. (See Plaintiff s Expert List). Plaintiff is asking the court to disregard Mr. Cox s opinions on the basis of two articles written in part by Chiropractors, one from 1999 and one later, 2005, which repeats the 1999 work. A clear attempt to refute an expert without hiring one. Plaintiff s attorney does a wonderful job citing a multitude of cases and opinions of other courts, but never gets to the crux of Billy Cox s opinions. Mr. Cox not only used and identified crash test studies conducted by the U.S. Government and other private entities, he conducted his own crash test studies to validate those findings. He then compared all of the studies to specific literature and peer-reviewed findings to validate his findings. Cox Affidavit. He then applied these case specific facts to those test studies, findings and literature to reach a conclusion. Id. All this would be confirmed if Plaintiff s attorney interrogated Mr. Cox. Instead, he elected not to incur such cost, elected not to hire his own expert, and submits articles to the court, asking the court to wade through supposed contradictory theories. 9

10 The Daubert reliability analysis turns on the expert witness s ability to articulate with some specificity the principles and methods on which he or she relies. Blinka at 60. (Emphasis original.) In Kumho Tire, the court stated: We conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where there are reasonable measures of the reliability of an expert. The trial court must have same kind of latitude in deciding how to test an expert s reliability and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert s relevant testimony is reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). The trial judge has the discretion both to avoid unnecessary reliability proceedings in ordinary cases where the reliability of an expert s methods is probably taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert s reliability arises. Kumho, 526 U.S. at 153. Plaintiff does not appear to challenge the federal data or the underlying government studies Mr. Cox relies upon. He challenges his conclusions. Cox has adequately articulated the principles on which he bases his conclusions. (Cox Affidavit). Testimony based on facts, a reasonable investigation, and traditional technical and/or mechanical expertise can be admissible when the expert provides a reasonable link between the information and procedures he uses and the conclusions he reaches. See Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D. La.1996). As the court stated in Kumho Tire, no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized evidence. Kumho Tire, 526 U.S Further, as the Committee notes, most 10

11 experts pass a Daubert challenge: A review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule. (Fed. R. Evid. 702 Adv. Comm. Note.) Cox s testimony and opinions clearly link the studies upon which he relies to the facts of this case. While Plaintiff may not like his opinions and may claim he is not credible, those criticisms are misplaced in a Daubert analysis. As well, Plaintiff s citation to Suanez v. Egeland, 801 A. 2d 1186 (N.J. Super. Ct. App. Div. 2002), has nothing but a citation and dicta with the overreaching conclusion, The court s logic in Suanez would bar Cox s opinions here. (Plaintiff s Brief, p. 22). No discussion of how or why. Same with reference to Clemente and Schultz v. Wells, 13 P. 2d 846, 851 (Colo. Ct. App. 2000); Clemente v. Blumenberg, 705 N.Y.S. 2d 792, 795 (N.Y. App. Div. 1999), the Plaintiff seeks to have the court do its work. Instead of going through and providing the experts reports in Suanez, Clemente, and/or Schultz 1234 and each of the studies/literature/reports those experts relied upon and comparing that to Cox and what he relied upon Plaintiff takes the gigantic leap and asks the court to do so, saying it s 1 In Suanez, supra, the issue for the court was whether there was a reliable scientific foundation for purported expert opinion testimony by a bio-mechanical engineer that a low-impact auto accident cannot cause a herniated disc. The court held that Defendant failed to establish a proper foundation of reliability for the expert s opinion. Specifically, the expert did not personally conduct or observe tests of low-impact collisions on humans, nor was any of the scientific literature he relied on introduced. Again, to the contrary, Cox, conducted and observed 100 s of low-impact collision tests and has identified and submitted for review the scientific literature on which he relies in formulating his opinions. 2 In Schultz, supra, the court permitted Defendant s expert to testify to velocity changes in the car and G-forces Plaintiffs were subject to. The court prohibited the expert from testifying about the threshold speed/force injury results of rear-end crash testing with human volunteers. This was upheld because the testing data that expert relied upon related not to injury potential, but tests conducted for the purpose of ascertaining safety with regard to the expense of designing car seats. Id. At 851. Cox s testing data is solely focused on occupant injury. 3 In Clemente, supra, the court allowed a biomedical engineer to testify as an expert and render an opinion as to general formula of forces upon objects. He was prohibited from testifying Plaintiff would not have suffered a herniated disc. In 1999, this expert had little knowledge of relevant crash-test data, engaged in no such crash-test studies and miscalculated speeds from erroneous factual data. At the time of this case, the engineer s studies may have been newer, certainly not novel; today, 14 years later, there is no other accepted principles of accident reconstruction. Cox s opinions are backed by scientifically established principles all peer-reviewed and accepted. Cox Affidavit. 4 In Azzano, supra, the court held that Billy S. Cox, Jr. was qualified to perform accident reconstruction and to evaluate the forces interacting in a collision. The court s exclusion of his opinion regarding the likelihood of bodily symptoms was related to the failure to introduce or identify supporting data. In this case, all has been introduced and provided to the court. Again 16 years later, Cox s qualification render him uniquely qualified to opine on the likelihood of injury. 11

12 all the same. Cox did what these other experts did. Does Plaintiff have this material to show the defense, Mr. Cox and the court, so we can compare apples to apples? Again, Plaintiff seeks to have the court conduct discovery of Mr. Cox s background, method and theory by raising a Daubert Motion. There is nothing in the Motion providing information and the opinions of the biomechanical experts in Suanez, Schultz, and Clemente to review and compare and therefore, reliance on those court decisions as a basis to exclude this expert s opinion would be erroneous. Further, Plaintiff attempts to offer her own lay analysis of the studies Cox cited in his report. As to the first study, Plaintiff states, Limited useful data can be gathered from the study given the very small sample size, the lack of medical testing before and after the impact, and the use of cars which were over forty (40) years old and chosen because of their structural strength. (Plaintiff s Brief, p. 24). The court is being asked to rely on the veracity of a lawyer s opinion of a leading study in the field of forensic analysis as opposed to that of an expert engaged in the field for over 27 years? For the second study cited, Attorney Butler opines that: This study has extremely limited value as it has an extremely small sample size, all the subjects were male, where the Plaintiff is female, and all but one of the subjects were members of the engineer s staff. (Plaintiff s Brief, p. 25). Is Attorney Butler holding himself out as an expert at this point in analyzing the scientific validity of crash-test data? The same is true for the rest of the studies Plaintiff criticizes. Plaintiff s attorney continues to offer what amounts to expert opinion testimony on the scientific validity of the studies without any expert or even lay foundation for authoring the same. Most interesting is his comments on page 27 regarding the Siegmund study and its irrelevancy, wherein he states Ms. Schlicht was aware of the impending collision. He states this in his own affidavit. Such 12

13 an assertion must be stricken as Attorney Butler cannot aver to such facts as a matter of personal knowledge. Second, it directly contradicts her statements to various medical providers. See Certified Medical Records. Finally, instead of actually questioning Mr. Cox as to his methods, research and testing which is voluminous as is evidenced by his curriculum vitae, Exhibit A, Plaintiff relies on Mr. Cox s testimony from cases in 1996, 1998 and Butler Affidavit. Again, such reliance is misplaced. In the 1998 case, Dudley v. Starkey, Cox, in fact, was qualified as an expert in crash reconstruction and impact biomechanics and provided expert testimony at trial. The deposition in 2002, Brooker v. State Farm Mutual Automobile Insurance Company, has little relevance in the subject case due to the fact that the case involved an automobile-pedestrian collision and no biomechanical opinions were rendered; however, Cox was qualified as an expert in crash reconstruction and testified as an expert in trial. Since 1996, Mr. Cox has participated as a researcher in hundreds of crash tests, including many involving human subjects in order to study biomechanical outcomes. Cox Affidavit. Many of these tests preceded his report in this case. Cox organized and conducted several more crash tests since authoring his report. Id. Attorney Butler ultimately concludes that there is fatal lack of explanation and justification for drawing these studies findings with the present case. In fact, Attorney Butler s reliance on an obvious canned Brief from a Plaintiff s database regarding Daubert Motions suffers from a lack of explanation and justification. One cannot merely aver that an expert does not pass muster because in other cases a similar expert did not do so; nor can one cite articles opining that the theory of biomechanical engineering is false, so therefore, you must exclude this expert. Cox s own experience and own application of these facts to the existing data, theories and research make him uniquely qualified to render his opinion. Nothing, despite 13

14 37 pages to the contrary, proves otherwise. Plaintiff s innuendo and inapplicable facts thrown at the court in the hopes of rendering this expert s opinion inadmissible, is unworthy of excluding Mr. Cox s opinions. Cox acted in accord with all of the recognized standard protocols in the industry for a forensic analysis of the accident. His level of work does not differ whether the matter proceeds through litigation or not. To make a blanket assertion that Mr. Cox was not as careful because it involved litigation consulting is absurd. Cox was hired prior to any litigation. He was given all necessary materials, including Ms. Schlicht s statement, prior to rendering his report. Cox Affidavit. Ms. Schlicht had not even filed suit never mind subject herself to a deposition prior to Cox s report. Id. Cox admittedly does not have the requisite medical background to diagnose and treat a medical condition. However, the opinions he formulated about the causation of a specific injury are rooted in the engineering science of impact biomechanics. The earliest studies of human performance center around tests performed by the United States Air Force in the late 1940 s to determine the effects of acceleration on pilots in jet aircraft. The design improvements and advanced safety features that are part of today s modern automobile such as airbags, three point seatbelts, seat belt pretensioners, side curtain airbags, and a host of crash sensors are the direct result of advances in biomechanical research and the study of human performance in car crashes with respect to the mechanism of injury in a crash. Cox Affidavit. The severity of a collision is quantified by describing the direction of impact and the change in velocity sustained by the subject vehicle. The literature shows that as the magnitude of the collision increases, the potential for injury increases as well. Cox Affidavit. Moreover, testing and research have shown that there are specific injury mechanisms that relate to specific forces 14

15 in a collision. Id.. These are not medical opinions. They are opinions based on collision physics and an understanding of human tolerance to applied forces. Id. In part, Cox s opinions have been derived after conducting hundreds of volunteer crash tests and review of engineering literature that covers more than 60 years of study in the field of human performance in crash tests. Contrary to Cox, it is Plaintiff s experts that do not have the requisite background to render an opinion as to cause in this accident. Attorney Butler wants to elicit testimony from Ms. Wickert and Mr. Johnson as to the cause of Ms. Schlicht s injuries where neither of these experts have any engineering training nor any experience/knowledge/or training regarding the force needed to cause injury, the Delta-V s, velocity to energy impact ratios or the type of injury one might be expected to see for a specific collision magnitude. (See Defendant s Motion in Limine). Furthermore, Ms. Schlicht s own doctor, Dr. Hoefert, stated that he has a difficult time connecting Ms. Schlicht s injuries to the accident due to the low speed nature of the impact. (Certified Medical Records). II. THE COURT HAS DISCRETION IN PERFORMING ITS GATEKEEPING DUTIES. It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert. Goebel, 215 F.3d at Federal precedent is helpful but not binding. Daniel D. Blinka, The Daubert standard in Wisconsin: A Primer, 84 Wisconsin Lawyer 3 at 14. factors: Daubert set forth a non-exclusive checklist for trial courts, which includes the following 1. Whether the expert s technique or theory can be or has been tested that is, whether the expert s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2. Whether the technique or theory has been subject to peer review and publication; 15

16 3. The known or potential rate of error of the technique or theory when applied; 4. The existence and maintenance of standards and controls; and 5. Whether the technique or theory has been generally accepted in the scientific community. (Fed. R. Evid. 702 Adv. Comm. Note.) The Committee notes specifically indicate that no attempt has been made to codify these specific factors. Daubert itself emphasized that the factors were neither exclusive nor dispositive. Not all of the specific Daubert factors can apply to every type of expert testimony. Id. Moreover, the consideration of the factors is not mandatory. The Kumho court noted: We also conclude the trial court may consider one or more of the specific factors that Daubert mentioned when doing so will help determine that testimony s reliability. But as the Court stated in Daubert, the test of reliability is flexible and Daubert s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. Kumho, 119 S.Ct. at 1171 (1999) (Emphasis in original). In construing statutes, may is construed as permissive and shall is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of legislature. City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184, 191, 125 N.W.2d 386, 389 (1963). Thus, even though Plaintiff outlines a plethora of alleged issues with Mr. Cox s opinions, these are not factors that the Court is required to consider. Thus, it is in the Court s discretion as to whether it wants to consider some, all or none of the factors listed in Plaintiff s brief. 16

17 The field of accident reconstruction has long been the subject of expert testimony. An issue similar to the one at bar arose in the case of Melberg v. Plains Mktg., L.P., 332 F. Supp.2d 1253, 1258 (D.N.D. 2004). In the Melberg case, the plaintiff alleged that there were issues with an accident reconstructionist s opinions with regard to the speed of the plaintiff s vehicle and the plaintiff s ability to react to danger based on the speed calculation. The court in that matter held that the reconstructionist s opinions were admissible and that the jury should assess his credibility: In reviewing the totality of the evidence presented, the Court finds that Dr. Smith s opinions are based on sufficient facts and data and are the product of reliable principles and methods. There are questions regarding whether Dr. Smith has applied the principles and methods reliably to the facts of the case as required under Daubert and Kumho. By Dr. Smith s own admission, there is uncertainty in his speed calculations Nevertheless, the opinions of Dr. Smith are based on sufficient facts and data, are the product of reliable principles and methods, and Dr. Smith has arguably applied the principles and methods to the facts of the case. As the Supreme Court stated in Daubert, vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. The trial court s role as gatekeeper is not intended to serve as a replacement for the adversary system. Dr. Smith s opinions will be admissible at trial and it will be for the jury to assess his credibility. (Melberg, at ; citations omitted.) Mr. Cox s opinions are based on experience in his field, coupled with his investigation in this matter (which includes not only the vehicle inspection, but also a review and synthesis of other information) and his analysis of pertinent studies. Based on the combination of all of these elements, Mr. Cox has used statistics to form expert opinions as to statistical probabilities. As 17

18 Mr. Cox s opinions deal with statistical interpretation, many of the potential criteria outlined by the federal case law cannot logically be applied. III. CREDIBILITY ISSUES MUST BE LEFT TO THE JURY: THEY CANNOT BE DECIDED BY THE COURT. Moreover, many of Plaintiff s arguments deal not with reliability issues, but rather with credibility issues. It is not the Court s role to determine whether an expert s theory is correct or not. Questions of credibility are for the jury, not the Court. [T]he gatekeeper role should not invade the province of the jury whose job it is to decide issues of credibility and to determine the weight to be accorded such evidence. Melberg, 332 F. Supp. 2d at 1258 (D.N.D. 2004). Federal case law from Wisconsin also notes that the jury, not the Court, must gauge an expert s credibility: The question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based. It is not the trial court s role to decide whether an expert s opinion is correct. The trial court is limited to determining whether expert testimony is pertinent to an issue in the case and whether the methodology underlying that testimony is sound. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7 th Cir. 2000) (Internal citations omitted.) The proper venue for attacking an expert s credibility would be cross-examination at trial. See Melberg, 332 F. Supp.2d at [V]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. The trial court s role as gatekeeper is not intended to serve as a replacement for the adversary system. 18

19 CONCLUSION For all of the foregoing reasons, the court should permit Mr. Cox to provide expert testimony in this matter. Dated this day of, MOEN SHEEHAN MEYER, LTD. Attorney for Defendants Peter Thompson and American National Property And Casualty Company By: Kara M. Burgos State Bar No Main Street, Suite 700 P.O. Box 786 La Crosse, Wisconsin Telephone: (608) Fax: (608) ATTESTATION OF SERVICE I attest that a copy of this document was served upon the attorneys for each of the parties by first class mail in care of their respective addresses of record on the day of, Samantha Burmester Legal Secretary TO: Attorney Scott Butler Attorney Jason Hermersmann 19