Loading...
HomeMy WebLinkAbout2020CV30363 - Stuward Cross And Katrina Richman V. City Of Fort Collins - 052 - Df's Resp Mil Re Dr. ThurstonDISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 498-6100 Plaintiffs: STUWARD CROSS AND KATRINA RICHMAN v. Defendant: THE CITY OF FORT COLLINS, State of Colorado COURT USE ONLY Andrew W. Callahan, #52421 – acallahan@wicklaw.com Julie M. Yates, #36393 – jyates@wicklaw.com WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 John R. Duval, #10185 – jduval@fcgov.com Adam Stephens, #55637 – adstephens@fcgov.com Fort Collins City Attorney’s Office P.O. Box 580 Fort Collins, CO 80524 (970) 221-6520 Case No.: 2020 CV 30363 Division: 3C DEFENDANT’S RESPONSE TO MOTION IN LIMINE TO EXCLUDE TESTIMONY OF LLOYD THURSTON, D.O. COMES NOW Defendant the City of Fort Collins, by and through counsel, and for its response to Plaintiffs’ Motion in Limine to Exclude Testimony of Lloyd Thurston, D.O., states as follows: I. Plaintiff’s Motion is Untimely Plaintiffs’ Motion should be denied because it was filed well past the deadline to file Rule 702 motion. C.R.C.P 16(c) states that “motions challenging the admissibility of expert testimony pursuant to C.R.E. 702…must be filed no later than 70 days (10 weeks) before trial. While titled as a motion in limine, Plaintiffs’ motion is clearly one based on Rule 702. The deadline for filing 2 Rule 702 motions was September 6, 2021. Plaintiffs waited an additional six weeks after the deadline to file the instant motion and did not seek leave of Court to file it out of time. Plaintiffs do not have any substantial justification for their delay. Defendant served its expert disclosures on July 9, 2021, approximately two months before the deadline to challenge expert testimony. There is no logical reason that Plaintiffs waited until the eve of trial to file the instant motion. “Sound caseflow management plans are essential not only to ensure timely justice but also to provide a just process.” Burchett v. S. Denver Windustrial Co., 42 P.3d 19, 21 (Colo. 2002). “Well-designed management plans are realistic, encourage settlement, encourage preparedness for trial by attorneys, reduce the costs of litigation, and increase the quality of the outcome of cases.” Id. Here, there is actual prejudice to Defendant. Under the typical deadlines, Defendant would have 28 days to prepare a response to the instant motion. Here, because of the stipulated extension on filing pretrial motions, Defendant has only seven days to prepare a response. Moreover, there is no time for Defendant to prepare additional materials in support of their response. For this reason alone, Plaintiffs’ motion should be denied. II. Dr. Thurston’s Testimony is Well Supported Dr. Thurston is the physician retained by Defendant to offer opinions regarding the injuries Plaintiffs allege to have sustained in the collision at issue. His opinions are well supported by the 3 evidence that this was a very minor “low energy” collision. And his opinions that this impact could not have caused the injuries in question is supported by the appropriate medical literature. a. This was a low energy impact. As this was a “T-bone” type collision, it would be expected that any significant impact would cause Plaintiff’s vehicle to skid or veer sideways due to the impact. This did not happen. Plaintiff Cross acknowledged in his deposition that the contact between the City truck and his cab car did not cause his vehicle’s tires to skid, and that there was no structural damage to his vehicle. He described the impact as follows: A. … From my recollection, the frame of the car itself actually moved quite a bit, because it was pushed in the back corner. The frame of the car moved quite· a bit, and of course, releasing the bumper, it moved back the other way. So I got a real good shock on the framing, but going over my recollection and even looking back on the accident scene, I don't think the tires ever broke free. Q. Okay. So you don't think the tires themselves slid on the pavement at all. A. Maybe just a chirp on the back end. I couldn't see that they did at all. Q. You know immediately following the impact your vehicle was essentially going the same direction it was before the impact. A. That's right. See Deposition of Stuward Cross, Exhibit 1, p. 69. Plaintiff Cross further acknowledged that there was no structural damage to his vehicle, and that the fiberglass bumper was not cracked or dented. (Ex. 1, p. 52). Plaintiff further 4 acknowledged that the picture below shows all the damage to the vehicle other than “a trace” of additional scuff marks. (Ex. 1, p. 52-53). To the extent that Dr. Thurston is opining that the impact in this collision was “minor” and “low energy”, that opinion is well supported by the available evidence. Moreover, Plaintiffs’ own retained expert, Dr. John Hughes, agreed with Dr. Thurston that the collision was a “low energy event.” (See Report of Dr. Hughes, Exhibit 2, p. 6). b. Dr. Thurston’s opinion that the forces involved could not have caused Plaintiffs’ injuries is well supported by scientific literature. Plaintiffs cite one twenty-one-year-old case for the proposition that Colorado courts have uniformly rejected opinions that there is a minimum force below which an individual cannot be injured. See Schultz v. Wells, 13 P.3d 846 (Colo. App. 2000). In Schultz, the Court of Appeals held that the trial court did not abuse its discretion in excluding certain opinions by an engineer offered to show that under a certain force threshold, no individual could be injured. Id. at 852. 5 Both the trial court and the Court of Appeals undertook a fairly lengthy analysis of the proffered studies to determine that there was insufficient support for the engineer’s opinions. Plaintiffs have not sought to analyze the materials referenced by Dr. Thurston in arriving at his opinions that the Plaintiffs in this case could not have been injured by the impact in question. Instead, the urge the Court to apply a bright-line rule prohibiting any opinion testimony on threshold of injury. The medical literature regarding mechanism of injury and threshold of injury forces has advanced significantly in the past twenty-one years. Dr. Thurston has cited the following articles in support of his opinions: Lee et al, “Lumbar Intervertebral Disc Injuries in Low Velocity Rear-end Vehicular Collisions: The Current Evidence,” Ann Orthop Rheum , 2(4):1036 10/13/2014 Hannon P, Knapp K, Forensic Biomechanics, 2008 Brooks, C., Brigham, C., “Biomechanics in Rear-end Motor Vehicle Collisions,” The Guides Newsletter, May/June 2007 Laborde, J., “Biomechanics of minor automobile accidents: treatment implications for associated chronic spine symptoms.” Journal of the Southern Orthopaedic Association, 01 Jan 2000, 9(3):187-192 W, Guzman H, Bomar J, "Human Head and Neck Kinematics after Low Velocity Rear-End Impacts-Understanding ‘Whiplash.’" (SAE paper 930889) Society of Automotive Engineers, Inc. (1995) McConnell W, Guzman H, Bomar J, "Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts." (SAE paper 930889) Society of Automotive Engineers, Inc. (1993) (See Report of Dr. Thurston regarding Stuward Cross, Exhibit 2; and Report of Dr. Thurston Regarding Katrina Richman, Exhibit 3). Most of these articles were published well after Schultz, and they are not acknowledged by Plaintiffs in any way. The primary criticism in Schultz to the proffered testimony was that it was based upon cost-benefit engineering studies, rather than biomechanical studies. Schultz at 851- 6 852. In contrast, the four most recent articles cited by Dr. Thurston above are explicitly related to biomechanics and published in medical journals. Plaintiffs have not provided the Court with any analysis on these articles. Moreover, Plaintiffs elected not to take Dr. Thurston’s deposition and explore whether the proffered articles support his opinions. They are asking this Court to exclude Dr. Thurston’s opinions without have done any work to show how his scientific foundation is deficient. Trial courts are vested with broad discretion to determine the admissibility of expert testimony. People v. Ramirez, 155 P.3d 371, 380 (Colo. 2007). “This deference reflects the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his opinion would be helpful to the jury.” Id. A trial court's exercise of its discretion in this regard will not be overturned unless manifestly erroneous. City of Aurora v. Colo. State Eng'r, 105 P.3d 595, 612 (Colo. 2005). Here, the Court should exercise its discretion to deny Plaintiffs’ motion. To the extent that Plaintiffs believe Dr. Thurston’s opinions are unsupported, they are free to challenge him on cross- examination. Dr. Thurston should not be preemptively prevented from offering expert opinion testimony that is well within his expertise and supported by relevant medical literature. WHEREFORE, Defendant respectfully requests that this Court deny Plaintiffs’ motion in limine. Respectfully submitted this 25th day of October, 2021. 7 WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Julie M. Yates, ##36393 Attorneys for Defendants And John R. Duval, #10185 Adam Stephens, #55637 Fort Collins City Attorney’s Office 8 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S RESPONSE TO MOTION IN LIMINE TO PRECLUDE EVIDENCE OF WORKERS COMPENSATION AND OTHER COLLATERAL SOURCES was served via the Colorado Courts E-Filing System this 25th day of October, 2021, on the following: Laura Michelle Browne Ashley Fridovich Wilhite, Rose, McClure & Sawaya, P.C. 1600 N. Ogden Street Denver, CO 80218 Adam Stephens John Duval FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 s/Jody L. Minch