Squires v. Goodwin

• Decision Date: 07 November 2011
• Docket Number: Civil Action No. 10–cv–00309–CBS–BNB.
• Citation: 86 Fed. R. Evid. Serv. 1419,829 F.Supp.2d 1041
• Parties: Kimberly N. SQUIRES, by and through her Guardian and Natural Parent, Lyle K. SQUIRES, Plaintiff, v. James Michael GOODWIN, Breckenridge Outdoor Education Center, and Mountain Man, Inc., Defendants.
• Court: U.S. District Court — District of Colorado

829 F.Supp.2d 1041

86 Fed. R. Evid. Serv. 1419

Kimberly N. SQUIRES, by and through her Guardian and Natural Parent, Lyle K. SQUIRES, Plaintiff,

v.James Michael GOODWIN, Breckenridge Outdoor Education Center, and Mountain Man, Inc., Defendants.

Civil Action No. 10–cv–00309–CBS–BNB.

United States District Court, D. Colorado.

Nov. 7, 2011.

Colleen M. Parsley, Gregory A. Gold, Gold Law Firm, L.L.C., Greenwood Village, CO, Richard Waldron Bryans, Jr., The Bryans Law Office, Denver, CO, for Plaintiff.

Gary L. Palumbo, Bayer & Carey, P.C., Deana R. Dagner, Joan S. Allgaier, John W. Grund, Grund Dagner, P.C., Denver, CO, Timothy A. Meinert, Meinert & Parmley, L.L.C., Dillon, CO, for Defendants.

ORDER ON PENDING MOTIONS

CRAIG B. SHAFFER, United States Magistrate Judge.

THIS MATTER comes before the court on (1) Defendant Mountain Man, Inc.'s (“Mountain Man”) Motion for Summary Judgment on Plaintiff's Sixth, Seventh, Eighth and Ninth Claims for Relief (doc. # 58), filed on January 14, 2011; (2) Defendant Mountain Man, Inc.'s Motion to Exclude Plaintiff's Expert Testimony Pursuant to F.R.E. 702 (doc. # 87), filed on June 6, 2011; and (3) Defendant Breckenridge Outdoor Education Center's (“BOEC”) Motion to Strike and/or Limit Plaintiff's Experts Bil Hawkins and Stanley Gale Under Fed.R.Evid. 702 and Daubert (doc. # 88), filed on June 6, 2011.

Plaintiff Kimberly Squires filed her Response to Defendant Mountain Man, Inc.'s Motion for Summary Judgment (doc. # 68) on February 4, 2011, as well as a Supplemental Memorandum Brief in Response (doc. # 83) on May 26, 211. Ms. Squires responded (doc. # 102) to Defendant Mountain Man's Motion to Exclude Plaintiff's Expert Testimony on June 30, 2011, and filed her Response to Defendant BOEC's Motion to Strike and/or Limit (doc. # 97) on June 27, 2011. Defendant Mountain Man filed a Reply Brief (doc. # 71) in support of its Motion for Summary Judgment on February 18, 2011 and a further Supplemental Memorandum Brief (doc. # 78) on May 5, 2011. Defendant BOEC submitted a Reply to Motion to Strike and/or Limit (doc. # 105) on July 11, 2011.

On September 16, 2010, the above-captioned case was referred to this court to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. I have reviewed the instant motions, the related briefs and exhibits, the arguments presented during hearings on July 20, 2011 and October 20, 2011, and the entire case file.

PROCEDURAL BACKGROUND

This action arises out of a ski accident that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. The basic facts are not in dispute. At the time of the incident, Kimberly Squires was 17 years old, with disabilities that include legal blindness, cognitive developmental delay and cerebral palsy. Breckenridge Outdoor Education Center is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. On the day in question, Jennifer Phillips was employed by BOEC as an adaptive ski instructor and paired with Ms. Squires, and Jim Trisler, a BOEC volunteer who was assigned to assist Ms. Phillips as a “blocker.” Ms. Squires was placed in a bi-ski, the FFS Dual Ski, manufactured by Mountain Man, Inc., which Ms. Phillips controlled from behind using tethers attached to her wrist. Ms. Squires and Ms. Phillips started their day on Peak 9 at Breckenridge Ski Resort and skied without incident down Bonanza, a designated “blue” or intermediate ski trial. On their second run of the day, Ms. Squires and Ms. Phillips proceeded down Cashier trail, another “blue” run. At some point, James Goodwin who also was skiing down Cashier lost control and crossed into the tethers linking Ms. Phillips and the bi-ski containing Ms. Squires. The force of the collision with Mr. Goodwin caused Ms. Phillips to lose control of the tethers and therefore contact with the bi-ski. At that point, the bi-ski and its passenger continued down Cashier trail without any control or restraint until it collided with a tree, resulting in injuries to Ms. Squires.

Ms. Squires filed her initial Complaint (doc. # 1) on February 12, 2010, asserting diversity of citizenship jurisdiction and alleging four claims for relief against Defendant Goodwin and one claim against BOEC. She filed her First Amended Complaint (doc. # 5) on April 15, 2010, adding four claims against the newly joined Defendant Mountain Man. Ms. Squires re-filed her First Amended Complaint (doc. # 11) on April 19, 2010 pursuant to a request from the Clerk of the Court. Plaintiff's Second Amended Complaint (doc. # 13), the current operative pleading, was filed on June 2, 2011. The First, Second, Third, and Fourth Claims for Relief against Defendant Goodwin allege negligence per se under the Ski Safety Act, Colo.Rev.Stat. § 33–44–109(2) and common law negligence. Ms. Squires' Fifth Claim for Relief alleges willful and wanton, reckless, and/or gross negligence against Defendant BOEC. Ms. Squires' Sixth, Seventh, Eighth, and Ninth Claims for Relief allege strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach of express warranty against Defendant Mountain Man. Mountain Man has moved for summary judgment as to Plaintiff's Sixth, Seventh, Eighth and Ninth Claims for Relief.¹

Defendants have separately moved to strike and/or limit at trial the expert opinions proffered by Ms. Squires' retained experts, Bil Hawkins ² and Stanley Gale, arguing these witnesses propose to offer opinions that fail to satisfy the requirements of Fed.R.Evid. 702 and the standards enunciated in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. Given Mr. Gale's prominent role in Plaintiff's responses to Defendants' summary judgment motions, it is appropriate to begin by addressing the Rule 702 motions.

I. Defendants' Motions to Strike

In its motion to strike, Defendant Mountain Man argues that Plaintiff's expert, Stanley Gale, is not qualified to render any opinions regarding the design or manufacture of the FFS Dual Ski. Mountain Man further contends that Mr. Gale's proposed opinions regarding design defects and deficient product warnings or instructions do not rest on a reliable foundation or the application of a valid methodology as required by Fed.R.Evid. 702 and the Supreme Court's analysis in Daubert.

Plaintiff Squires argues in opposition that Rule 702 must be applied liberally and that Mr. Gale's opinions should be permitted because they would be “helpful to the trier of fact.” According to Plaintiff, Mr. Gale is “qualified to proffer his opinions” based upon his “knowledge, skill, experience and training as a ski patrol officer of 38 years” and “his extensive knowledge and experience with ski patrol equipment and mountain terrain safety.” See Plaintiff's Response to Defendant Mountain Man, Inc.'s Motion to Exclude (doc. # 102), at 9 and 11. As for the reliability of Mr. Gale's methodology, Plaintiff insists that his “opinions are based on sound principles” and reflect a “side-by-side comparison of two similar products: the ski patrol toboggan as manufactured by Cascade, and the bi-ski as manufactured by Mountain Man.” Id. at 14. Notably, however, Plaintiff's brief never identifies or analyzes Mr. Gale's “sound principles,” but merely parrots the expert's conclusory assertions.

BOEC's motion raises very similar arguments, suggesting that Mr. Gale's background in ski safety and ski accident reconstruction is limited to alpine skiing and does not qualify him to offer expert opinions relating to adaptive skiing standards or practices. While acknowledging Mr. Gale's “Level I Alpine Certification,” Defendant BOEC contends that Mr. Gale's lack of “specialized knowledge in the area of adaptive skiing” leaves him wholly unqualified and calls into question any opinions he might offer regarding Ms. Phillips, Mr. Trisler, and BOEC. See BOEC's Motion to Strike and/or Limit Plaintiff's Experts (doc. # 88), at 25.

In response, Plaintiff insists that Mr. Gale's opinions will assist the jury. Plaintiff argues that Mr. Gale's accumulated experience as a ski instructor and ski patrol member, coupled with his Level I Alpine certification, qualifies him to offer expert opinions on ski terrain selection, methods for guiding incapacitated individuals down off a mountain using a sled, and the use of knots in context of skiing-related activities. See Plaintiff's Response to Defendant BOEC's Motion to Strike and/or Limit Plaintiff's Experts (doc. # 97), at 12–13.

This court held a Daubert hearing on October 20, 2011, at which time the court received testimony from Mr. Gale and Ruth Ann DeMuth, an expert in the field of adaptive skiing proffered by Defendant BOEC, as well as related exhibits. In discharging its obligations under Fed.R.Evid. 702, the court has considered this information, as well as the legal arguments presented in the parties' briefs and during the October 20 hearing.

Rule 702 of the Federal Rules of Evidence provides that:

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.

By its very terms, Rule 702 imposes three requirements for the admission of expert testimony. First, the expert must be qualified by specialized knowledge, skill, experience, training or education to testify on the subject matter of his or her testimony. Second, the testimony must be “ ‘based upon sufficient facts or data,’ ‘the product of reliable principles and methods;’ and the product of the reliable application of these principles and methods to the facts of the case.” Cook v. Rockwell International Corp., 580 F.Supp.2d 1071, 1082 (D.Colo....