State Farm Fire & Cas. Co. v. Bell, Case No. 12–2456–DDC–KGG.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Citation: 30 F.Supp.3d 1085
• Docket Number: Case No. 12–2456–DDC–KGG.
• Parties: STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff, v. Jamie N. BELL, Defendant, Cross–Claimant/Third–Party Plaintiff, and C.M., a minor, by and through her natural guardian and next friend, Branlyn Finnell, Dallas N. Hartman, Charles C. Conner, III, Jared M. Wilkinson and The Pantry, Inc., Defendants/Cross–Claim Defendants, and Kenneth M. Keen, Third–Party Defendant.
• Decision Date: 08 July 2014

30 F.Supp.3d 1085

STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff,
v.
Jamie N. BELL, Defendant, Cross–Claimant/Third–Party Plaintiff,
and
C.M., a minor, by and through her natural guardian and next friend, Branlyn Finnell, Dallas N. Hartman, Charles C. Conner, III, Jared M. Wilkinson and The Pantry, Inc., Defendants/Cross–Claim Defendants,
and
Kenneth M. Keen, Third–Party Defendant.

Case No. 12–2456–DDC–KGG.

United States District Court, D. Kansas.

Signed July 8, 2014

Plaintiff's motion granted in part and denied in part; defendant's motion denied.

[30 F.Supp.3d 1091]

James L. Sanders, Nathaniel A. Dulle, Wallace Saunders Austin Brown & Enochs Chartered, Overland Park, KS, for Plaintiff.

Casey O. Housley, Gerald A. King, Karrie J. Clinkinbeard, Lynn W. Hursh, Armstrong Teasdale LLP, Kansas City, MO, for Defendant, Cross–Claimant/Third–Party Plaintiff.

MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.

State Farm Fire and Casualty Company brought suit against Dallas N. Hartman, Charles C. Conner, III, Branlyn Finnell as natural guardian and next friend of minor C.M., Jamie N. Bell, Jared M. Wilkinson, and The Pantry, Inc. seeking a declaratory judgment that it owed no coverage arising out of an accident and no duty to defend Kenneth Keen, its insured. State Farm now has resolved its claims against all defendants.¹ In her responsive pleading, however, Bell brought cross-claims against

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her co-defendants and a third-party action against Keen. On June 5, 2013, Bell stipulated to the dismissal of the third-party defendant Keen and each of the other co-defendants except The Pantry Inc. (Doc. 111.) Therefore, cross-claim plaintiff Bell and cross-claim defendant The Pantry, Inc. are the only remaining parties in this action. Hereafter, for simplicity, the Court will refer to cross-claim plaintiff Bell as “plaintiff” and cross-claim defendant The Pantry, Inc. as “defendant.”

This lawsuit arises from a motor vehicle accident that occurred on September 18, 2011, in Gardner, Kansas. C.M., a minor, who was not licensed and driving illegally, drove a Mercedes SUV over the curb and onto the sidewalk in front of a convenience store owned and operated by defendant. The vehicle struck plaintiff, who was standing on the sidewalk, and pinned her against the building. As a result, plaintiff sustained personal injuries including a crushed pelvis, broken knees, and multiple cuts and bruises. In this diversity action,² plaintiff brings a negligence claim under Kansas law against defendant. Plaintiff alleges that defendant breached its duty of care by failing to keep plaintiff reasonably safe under the circumstances because defendant failed to install parking bollards ³ or wheel stops or take other precautions to protect the storefront or pedestrians standing on the sidewalk between the storefront and the head-in parking spaces. Plaintiff further alleges that a dangerous condition existed on defendant's property because it lacked bollards or other barriers in the parking lot protecting the pedestrian walkway and storefront from vehicular damage. Plaintiff contends that defendant had knowledge and notice of the dangerousness of the condition and that plaintiff's injuries were foreseeable.

This matter comes before the Court on plaintiff's Motion to Exclude or Limit the Testimony of Expert Richard D. Blomberg (Doc. 162), defendant's Motion to Exclude Expert Testimony (Doc. 166), and defendant's Motion for Summary Judgment (Doc. 164). For the reasons explained below, the Court grants in part and denies in part plaintiff's Motion to Exclude or Limit the Testimony of Expert Richard D. Blomberg, grants in part and denies in part defendant's Motion to Exclude Expert Testimony (Doc. 166), and denies defendant's Motion for Summary Judgment.

I. Motions to Exclude Expert Testimony A. Legal Standard

The Court has a “gatekeeping obligation” to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). In performing this gatekeeping

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role, the Court has broad discretion when deciding whether to admit expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1498 (10th Cir.1996) (quoting Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir.1992)). The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed.R.Evid. 702.

This Court must apply a two-part test to determine admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir.2013). First, the Court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (quoting Fed.R.Evid. 702). Second, the Court “ ‘must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.’ ” Id. (quoting United States v. Rodriguez–Felix, 450 F.3d 1117, 1122 (10th Cir.2006)) (further citations omitted).

To qualify as an expert, the witness must possess “such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004) (internal quotation omitted). To determine whether the expert's testimony is reliable, the Court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786. The Supreme Court set forth in Daubert a non-exhaustive list of four factors that trial courts may consider when determining the reliability of the proffered expert testimony under Fed.R.Evid. 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. Id. at 593–94, 113 S.Ct. 2786. The Supreme Court has emphasized, however, that these four factors are not a “definitive checklist or test” and that a court's gatekeeping inquiry into reliability must be “tied to the facts of a particular case.” Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In some cases, “the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the Daubert factors and scientific foundation. Id.

“The proponent of expert testimony bears the burden of showing that the testimony is admissible.” Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241). “[R]ejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee notes. While Daubert requires the Court to act as a gatekeeper for the admission of expert testimony, “[v]igorous cross-examination, presentation of contrary evidence, and

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careful instruction on the burden of proof” remain “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (citation omitted).

The Court has discretion to determine how to perform its gatekeeping function under Daubert. Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000). “The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.” Id. (citations omitted). In this case, the parties do not request a hearing. The Court has carefully reviewed the exhibits filed with the motions and believes this review is sufficient to render a decision without conducting a hearing.

B. Plaintiff's Motion to Exclude or Limit the Testimony of Expert Richard Blomberg (Doc. 162)

Plaintiff seeks to exclude or limit the expert opinion testimony of Richard D. Blomberg, an engineer designated by defendant as an expert witness. As pertinent here, one may summarize Blomberg's opinions as follows.

Blomberg is President of Dunlap and Associates, Inc., a research firm. In this position, he has directed or been involved in the application of human engineering and systems analytic principles to highway safety, product safety, aircraft design and certification, and the design and evaluation of human-computer interfaces. His work includes the study of pedestrian safety problems and the development of countermeasures to them. Blomberg is a member of the Transportation Research Board (“TRB”), an Emeritus (Lifetime) member of TRB's Pedestrian Committee, a former member of its Committee on Alcohol, Other Drugs, and Transportation, and a member of the Human Factors and Ergonomics Society, Society of Automotive Engineers, the Institute for Operations Research and the Management Sciences, the Association for Consumer Research, and the American Institute of Aeronautics and Astronautics. Mr. Blomberg holds B.S. and M.S. degrees in Industrial and Management Engineering from Columbia University. Blomberg reviewed various materials about the accident, as described in his expert report, and on May 21, 2013, he conducted an on-site examination of the accident scene and visited 21 other convenience stores located in...