The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
John Antonio Evans seeks to hold the Washington Metropolitan Area Transit Authority liable for injuries he received when he crashed his motorcycle into the back of an automobile, was flipped off the bike into the street, and run over by a Metro bus. At the close of discovery, WMATA filed a motion to dismiss and/or for summary judgment, which the Court granted in part but denied otherwise without prejudice awaiting a Daubert*fn1 hearing on Mr. Evans' expert witness, David Stopper. That hearing having been held, the Court concludes that Mr. Stopper's testimony is admissible within appropriate limits. It also finds that Mr. Evans has alleged a theory of negligence against WMATA and is not required to rely solely on the theory of "last clear chance" but may introduce evidence to counter WMATA's defense of contributory negligence.
As described by Mr. Evans' lawyer:
This case arises from a January 4, 2007 accident in which a WMATA bus struck plaintiff John Antonio Evans. Prior to the accident, Evans had been operating a motorcycle southbound in the 2700 block of Martin Luther King Avenue, S.E., Washington, D.C. His motorcycle struck a car which was making a left-hand turn from the left lane. Plaintiff was thrown off his motorcycle into the roadway. A WMATA bus in the right lane came along and ran over the plaintiff, causing extensive de-gloving injuries to his left leg and buttocks.
Pl.'s Mem. on Admissibility of Expert Testimony ("Pl.'s Mem.") [Dkt. # 43] at 1. See Compl. ¶ 2 ("Plaintiff struck a passenger car which was stopped to make a left turn."). In its motion for summary judgment, WMATA argued that the Court should put aside the testimony of Daysha Smith and Niaya White, pedestrians at the site of the accident, because it is undermined by credible evidence or physical impossibility. Def.'s Reply in Supp. of Mot. for Summ. J. ("Def.'s Reply") [Dkt. # 34] at 7. WMATA also argued that Mr. Stopper's accident reconstruction is lacking in a sufficient evidentiary basis to be accepted as expert testimony because he relied solely upon these two witnesses' accounts. Id. at 15-16.
Federal Rule of Evidence 702 governs expert testimony. It provides: 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 (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. The presumption under the Federal Rules is that expert testimony is admissible. Daubert, 509 U.S. at 588; Nimely v. City of New York, 414 F.3d 381, 395 (2d. Cir. 2005) ("It is a well-accepted principle that Rule 702 embodies a liberal standard of admissibility for expert opinions, representing a departure from the previously widely followed, and more restrictive, standard of Frye v. United States.") (citing Daubert, 509 U.S. at 588); Fed. R. Evid. 702 Advisory Committee Note (2000) ("A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule."). Nonetheless, Federal Rule of Evidence 702 imposes a "special obligation upon a trial judge" to ensure that expert testimony is not only relevant, but reliable. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
In Daubert, the Supreme Court established the trial court's obligation to exercise a "gatekeeping" function, 509 U.S. at 589, which is done in the first instance by "examining the expert's qualifications." McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 30, 35 (D.D.C. 2004). Kumho Tire makes clear that this function extends to all expert testimony, not just that from scientists. Mr. Stopper's qualifications are not at issue here so the Court's "gatekeeping" function is to determine whether his methodology was both reliable and relevant. Daubert, 509 U.S. at 597. Testimony from an expert is relevant if it would be helpful to the jury and aid the jury in resolving a factual dispute. Daubert, 509 U.S. at 592-93. The method of determining reliability of proffered expert testimony is within the discretion of the trial court. Kumho Tire, 526 U.S. at 152. Trained experts commonly extrapolate from existing data, but the court will not admit "opinion evidence which is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
A. Nature of the Proffered Testimony
WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts that Mr. Stopper relied solely upon the two pedestrians whose versions of events could not be physically correct. At the Daubert hearing, Mr. Stopper explained that the pedestrians gave a description of the motorcycle hitting the automobile and projecting Mr. Evans into the roadway in much the same way as did a driver immediately behind the motorcycle, who clearly saw it. From this, he deduced that the pedestrians could actually see the event and that the bus was not blocking their view. He therefore concluded that the bus driver had the opportunity to avoid running over Mr. Evans. Mr. Stopper said he considered all the witnesses who gave statements or were deposed, but only the pedestrians place the bus potentially far enough away from where Mr. Evans landed in the roadway for the bus driver to have avoided the accident.
Mr. Stopper's expert report contains his opinions that: (1) "it is most likely the bus was still north of the collision site when Mr. Evans was ejected and came to rest in the traffic lanes;" (2) the bus operator "would have first observed the collision of the motorcycle into the rear of the Subaru Outback and the motorcycle operator's ejection from the motorcycle over the top of the automobile;" and the bus operator "should have observed the prone body of Mr. Evans lying in the roadway next to the Subaru from his elevated position in the driver's seat of the Metrobus." Def.'s Mot. for Discovery [Dkt. # 23], Ex. 2 (January 26, 2009 Report of David Stopper ("Stopper Report")) at 5-7. Further, Mr. Stopper opined that the bus operator "failed to keep a proper lookout and failed in ...