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HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 044 - Plaintiffs' Motion In Limine To Exclude Testimony Of Dr. Lloyd Thurston Do DISTRICT COURT, LARIMER COUNTY, STATE OF COLORADO Court Address: 201 Laporte Ave. Fort Collins, CO 80621 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, STATE OF COLORADO Court Use Only Attorneys for Plaintiffs: Laura Browne, # 46673 Ashley Fridovich, # 47538 WILHITE, ROSE, MCCLURE &, SAWAYA P.C. 1600 Ogden Street Denver, CO 80218 Phone Number: (303) 839-1650 FAX Number: (303) 832-7102 E-mail: lbrowne@sawayalaw.com afridovich@sawayalaw.com Case Number: 2020CV30363 Division: 5A PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY OF LLOYD THURSTON, D.O. COME NOW the Plaintiffs, Stuward Cross and Katrina Richman, by and through their attorneys Wilhite, Rose, McClure & Sawaya, P.C. and hereby submit their Motion in Limine: To Preclude Reference to Attorney-Referred Care. Plaintiffs state for their Motion the following: RULE 121 CONFERRAL STATEMENT Counsel for Plaintiff conferred with counsel for Defendant prior to filing these Motions. Defendant opposes this Motion. DATE FILED: October 11, 2021 9:41 PM FILING ID: DA8F83C2EB94C CASE NUMBER: 2020CV30363 I. BACKGROUND 1. This is a case regarding personal injuries Plaintiffs sustained when they were struck by a dump truck driven by Antonio Lopez, now deceased, who was operating in the course and scope of his employment for Defendant City of Fort Collins. 2. Shortly before the subject collision, Plaintiff Cross was traveling in traffic on northbound Lemay Avenue in Fort Collins, Colorado. Plaintiff Cross stopped his vehicle in heavy traffic to allow some vehicles to cross the street from the right to go southbound on Lemay Avenue. Plaintiff Cross began to move his vehicle again when traffic began moving, but Mr. Lopez continued to come across traffic to attempt to go southbound on Lemay Avenue. When Plaintiff Cross realized Mr. Lopez’s dump truck was headed towards him, Plaintiff Cross attempted to evade the dump truck by accelerating and swerving to his left. 3. The dump truck Mr. Lopez was driving struck the right rear of Plaintiff Cross’s taxi cab. 4. The dump truck Mr. Lopez was driving struck the taxi cab Plaintiff Cross was driving at an unknown speed. 5. Witnesses to the collision include both Plaintiffs, as well as two eye witnesses who were disclosed in the Traffic Accident Report, Glenn Vigil and Joseph Zastron. 6. Both Plaintiffs have been diagnosed with injuries as a result of the collision. 7. Defendants served their initial expert disclosures on July 9, 2021, which included the reports of Lloyd J. Thurston, D.O. 8. In his report for both Plaintiffs (attached hereto as Exhibit 1—Plaintiff Cross and Exhibit 2— Plaintiff Richman), Dr. Thurston opined that the forces involved in the collision at issue were not enough to cause the claimed injuries. See Exhibit 1, pp. 6-9, 11, 13, 14, 16 and Exhibit 2, pp. 17, 18, 23, 28.1 9. In his report for Plaintiff Cross, Dr. Thurston opined that the forces in the collision equaled a ΔV < 5 mph (i.e. a change in velocity of less than five miles per hour) based on his examination of a police report, and photographs of the taxi cab. See Exhibit 1, p. 9. 10. In his report for Plaintiff Richman, Dr. Thurston went on to discuss gravitational translation forces and the likelihood that the accident at issue could have caused the injuries reported by Plaintiff by: 1) estimating the gravitational translation force Ms. Richman experienced and 2) comparing it to the gravitational translation force thought to be necessary for a concussive impact in American football. See Exhibit 2, at p. 17-18. 11. Dr. Thurston then utilized his threshold force calculations to conclude that both Plaintiffs: 1) Were not injured in the collision and 2) because they were not injured, her complaints amount to symptom magnification (Plaintiff Richman) and malingering (Plaintiff Cross). See Exhibit 1, p. 6, 14, 15 and Exhibit 2, p. 14, 16, 17, 28. 12. Dr. Thurston’s curriculum vitae is attached to this Motion. See Exhibit 3. As detailed in it, he is a doctor of osteopathic medicine whose practice has primarily focused on family medicine, addiction counseling, and occupational medicine. Id. No reference is made therein to any specialized training or experience in the areas of accident reconstruction , engineering, or physics. Id. II. ARGUMENT 13. Dr. Thurston should be precluded from offering any opinions concerning the forces involved in the collision, the forces exerted on Plaintiffs’ bodies as a result of the collision, or any 1 When referencing page numbers, counsel is using the page number on Dr. Thurston’s report s which does not count the cover page of his reports. threshold force below which Plaintiffs could supposedly not have been injured. 14. This type of “threshold force” testimony is barred under Colorado law as scientifically unreliable and unduly prejudicial. 15. Colorado courts have recognized that there is no scientific evidence to support the notion that there is a threshold force needed to injure a driver hit from behind in a rear-end car crash. Schultz v. Wells, 13 P.3d 846 (Colo. App. 2000). 16. Dr. Thurston’s opinions are exactly the type of opinions that were rejected in Schultz. 17. In Schultz, the trial court prohibited the expert [who was qualified in the fields of engineering, accident reconstruction, and biomechanics] from testifying about the threshold speed/force injury results of rear-end crash testing with human volunteers. After hearing evidence as to the reliability of the test results, the trial court excluded this testimony. The court ruled that evidence indicating there is a threshold force level below which a person probably could not be injured in a rear-end automobile collision is inadmissible under both the test articulated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1993), and the Colorado Rules of Evidence. 13 P.3d at 849. 18. The Schultz trial court held that the proposed expert opinion, based largely on rear-end crash testing of human volunteers, was too unreliable to show that there is a threshold level below which any particular person could not be injured in a rear-end automobile collision. Id. at 850. 19. In this case, Dr. Thurston has authored an opinion indicating that: “It is my medical opinion based on my review of the mechanism of injury and the photos of the cab that the ΔV was less than 5 mph and was a scarping mechanisms with much force absorbed by the rear bumper and bumper cover.” See Exhibit 1, p. 9. 20. Dr. Thurston cites no authority for his opinions regarding bumper integrity or forensic force determinations in rear-end motor vehicle collisions save for a single line of his report where he states that, “Injury to the passengers of vehicles involved in impact accidents is typically inversely related to the ΔV of the involved vehicles; i.e., the more rapidly the forces are transferred to the passengers (the shorter the ΔV), the greater the injuries to the passengers.” See Exhibit 1, p. 15. Dr. Thurston cites to no authority for that proposition. 21. To wit, Dr. Thurston is not qualified to perform such analyses nor did he attempt to perform them in this case. See generally, Exhibit 1 and Exhibit 2. 22. Instead, in Plaintiff Cross’s report, Dr. Thurston has attempted to hang his hat on the final, anecdotal sentence of the paragraph suggesting that because he perceives there to have been little damage to Plaintiffs’ vehicle in this case, forces transferred to the inhabitants were minimal and did not cause any physical or emotional injuries. See Exhibit 1, p. 16. 23. Dr. Thurston’s report for Plaintiff Richman states: Research on concussive and non-concussive impacts in American football athletes has indicated that the magnitude of concussion impact was on average 95 gravitational translation forces (gtf), with a range of 60-120 gtf. According to McCrea, current thinking is that to sustain a mild TBI you need to be exposed to the gravitational acceleration of between 80 and 100 gtf. 100 gravitational translational force is roughly equivalent to a vehicle traveling at 25 mph, hitting a brick wall and the occupant striking his or her head against the dashboard. With these figures in mind, it is my medical opinion that Ms. Richman did not experience forces near this intensity. See Exhibit 2, p. 17-18. 24. Dr. Thurston is not qualified to render expert opinions regarding: 1) the likely force generated by a collision or 2) the likely force exerted on vehicle occupants’ bodies based on forces generated in collisions. See Exhibit 3. 25. He has no training or experience that would allow him to make these calculations. Id. 26. His opinions regarding the force threshold below which Plaintiffs could suffer no injury in this particular case are also problematic because they clearly do not meet the criteria established by Schultz and subsequently adopted by People v. Shreck, 22 P.3d 68 (Colo. 2001) for admissibility of “injury threshold opinions.” A. The Colorado Rules of Evidence Are the Appropriate Test of the Admissibility of Dr. Thurston’s Proffered Opinions 27. The Court of Appeals determined in Schultz that the results of automobile collision experiments with human volunteers were not the sort of novel scientific evidence in the realm of hard science that would have possibly warranted continued use of the Frye test at that time. 13 P.3d at 850. 28. Rather, it determined that application of CRE 402 and 702 was the proper test of the admissibility of such evidence. Id. 29. Approximately eight months later, the Colorado Supreme Court adopted a similar approach and held that CRE 702 rather than Frye would henceforth govern a trial court's determination as to whether scientific or other expert testimony should be admitted in this state. Shreck, 22 P.3d at 70. 30. The Supreme Court further specified that, “Such an inquiry should focus on the reliability and relevance of the proffered evidence and requires a determination as to (1) the reliability of the scientific principles, (2) the qualifications of the witness, and (3) the usefulness of the testimony to the jury.” Id. 31. The Schultz Court had employed a similar test utilizing the first and third factors listed above. 13 P.3d at 850. 32. Some additional key factors considered by that court were: “(1) the testability of the scientific theory or technique; (2) whether the theory or technique had been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence or non-existence of maintained standards; and (5) whether the theory or technique has general acceptance in a relevant scientific community.” Id. at 851 (citing, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). 33. Applying these criteria, the Court of Appeals affirmed the trial court's finding that “the force threshold for probability of injury demonstrated in the test results could not be used to ‘prove that a particular person was not injured or was likely not injured in this accident.’” Id. 34. The court stated that, “There is no agreement, far from it, in the engineering field or in the automobile industry concerning whether there is such a threshold.” Id. at 852. B. Dr. Thurston’s Proffered Opinions Are Not Admissible 35. The scientific principles employed by Dr. Thurston are unreliable in derogation of the first prong of the admissibility test established by Shreck. 22 P.3d at 70. a. As noted above, Dr. Thurston based his force estimate on his examination of a police report and photographs of the taxi cab bumper (that has neither been subjected to photogrammetry nor wire frame modeling). See Exhibit 1 and 2. b. No measurements were made or referred to by him of 1) the vehicles’ relative locations before and after the collision, 2) the POD, or 3) the masses of either vehicle. Id. c. Further, no comparison was made by him of these measurements to other rear-end motor vehicle accidents or their resultant vehicle damage. Id. d. Dr. Thurston offers no comparison of Plaintiffs’ body positions within the vehicle at the time of impact to other collision victims’ body positions in similar collisions and their resultant injuries. Id. e. No determination of Plaintiffs’ body positions within the vehicle was even made by him. Id. f. Dr. Thurston haphazardly estimated the force Plaintiff Richman experienced as a result of the motor vehicle collision at issue and then compared it to a study of American football players’ injuries suffered by them during play. See Exhibit 2, pp. 17- 18. 36. Dr. Thurston is not qualified to make force determinations or to render threshold of injury opinions as required by the second prong of the Shreck test. 22 P.3d at 70. a. Dr. Thurston has no training or experience in the fields of accident reconstruction, biomechanics, engineering, or physics. See Exhibit 3. b. He is a doctor of osteopathic medicine whose practice has focused on family medicine, addiction counseling, and occupational medicine. Id. 37. Under a Daubert analysis, Dr. Thurston’s methods: (1) lack testability and are not even what one might describe as scientific theories or techniques; (2) are certainly not peer-reviewed; (3) have no known rate of error; (4) are not subject to any maintained standards; and (5) have no general acceptance within the scientific community. 38. Rather, they are sheer guesswork based on a desire to minimize Plaintiffs’ injuries for remuneration. 39. For all the reasons stated above, Dr. Thurston’s proffered testimony would not be useful to the jury and does not pass muster under the third prong of Shreck. 22 P.3d at 70. III. CONCLUSION To allow Dr. Thurston to testify concerning the opinions which are the subject matter of this motion, or to allow other witnesses to rely upon those opinions would be contrary to the holding and standards established by Schultz and affirmed by Shreck. Doing so would put before the jury unreliable, irrelevant, misleading, and highly prejudicial testimony. WHEREFORE, Plaintiffs respectfully requests that this Court enter an Order striking and excluding the testimony of Lloyd J. Thurston, D.O. and precluding any reference to such testimony in the presence of the jury, either in voir dire, opening statement, witness questions, or any other context and for such other and further relief as this Honorable Court deems just and proper in the circumstances. DATED: October 11, 2021 Respectfully submitted, WILHITE, ROSE, MCCLURE & SAWAYA, P.C. /s/ Laura Browne Original Signature on File in Attorney’s Office Laura Browne, Attorney for Plaintiffs CERTIFICATE OF SERVICE I certify that on October 11, 2021 this PLAINTIFFS’ MOTIONS IN LIMINE TO EXCLUDE TESTIMONY OF LLOYD THURSTON, D.O. was served on all parties via Colorado Court’s E-Filing to the following: Andrew W. Callahan, Esq. Julie M. Yates, Esq. WICK & TRAUTWEIN, LLC P.O. Box 2166 Fort Collins, CO 80522 Attorney for Defendant Adam Stephens, Esq. FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Attorney for Defendant /s/ Kassandra Burival Original Signature on File in Attorney’s Office Kassandra Burival, Litigation Paralegal