IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SCOTT NESTOR, individually and as : Case No. 3:17-cv-93

Administrator for the Deceased on behalf :

of Katlynn Nestor and Hudson Nestor, : Judge Thomas M. Rose

:

Plaintiff, :

:

- vs - :

:

EVERLAST ROOFING, INC., and :

JAMES DUNKEL, :

:

Defendants. :

:

ENTRY AND ORDER GRANTING IN PART AND DENYING IN PART

MOTION IN LIMINE (DOC. 28) AS TO OPINIONS OF STEPHEN M. ASHTON

Pending before the Court is Defendants’ Motion in Limine (Doc. 28) to exclude certain 

opinions of Plaintiffs’ expert, Stephen Ashton. On September 18, 2018, the Court held a hearing 

during which the parties presented argument regarding the Motion in Limine, among other pretrial issues. Subsequent to the hearing, Plaintiffs filed a written Response in Opposition (Doc. 37) 

to the Motion in Limine. This matter is therefore ripe for review.

I. BACKGROUND

This is a wrongful death case brought by the estates of two teenage siblings, Hudson Nestor

(“Hudson”) and Katlynn (“Katlynn”) Nestor, who died in a car accident. On December 21, 2015, 

Hudson was driving a vehicle with his sister Katlynn as a passenger on Gettysburg-Pitsburg Road 

in Darke County, Ohio. Defendant James Dunkel was driving a tractor-trailer and making a 

delivery for Defendant Everlast Roofing. Dunkel was on Neff Road, turning onto GettysburgPitsburg Road. As Dunkel made his turn, the decedents’ vehicle collided with his vehicle. 

Plaintiffs allege that Dunkel was negligent. Defendants allege that Hudson was contributorily 

negligent.
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This matter is set for trial on October 9, 2018. Defendants raised several evidentiary issues 

in anticipation of Plaintiffs’ presentation of evidence at trial, including the instant Motion in 

Limine directed toward Plaintiffs’ expert, Stephen Ashton.

II. MOTION IN LIMINE STANDARD

District courts adjudicate motions in limine under their “inherent authority to manage the 

course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). Courts should exclude 

evidence in limine “only when evidence is clearly inadmissible on all potential grounds.” Gresh 

v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D.Ky.2010) (citation omitted). The Sixth 

Circuit advisesthat the “better practice” is to address questions regarding the admissibility of broad 

categories of evidence “as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 

712 (6th Cir.1975). “[A] court is almost always better situated during the actual trial to assess the 

value and utility of evidence.” Owner–Operator Independent Drivers Ass’n v. Comerica Bank, 

No. 05–CV–0056, 2011 WL 4625359, at *1 (S.D. Ohio Oct.3, 2011). Denial of a motion in limine 

does not necessarily mean that the evidence, which is the subject of the motion, will be admissible 

at trial. Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). This rationale 

applies to motions in limine to exclude expert witness testimony. Jahn v. Equine Servs., PSC, 233 

F.3d 382, 393 (6th Cir.2000) (“A district court should not make a Daubert ruling prematurely, but 

should only do so when the record is complete enough to measure the proffered testimony against 

the proper standards of reliability and relevance.”)

III. ANALYSIS

Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. It 

states:

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

case.

Fed. R. Evid. 702. “A district court's task in assessing evidence proffered under Rule 702 is to 

determine whether the evidence ‘both rests on a reliable foundation and is relevant to the task at 

hand.’” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (quoting 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).

The Supreme Court has identified several factors that might bear on reliability, including 

testing, peer review, publication, known or potential rate of error, and general acceptance. 

Daubert, 509 U.S. at 593–94. These factors are neither definitive nor exhaustive, however, and 

may not apply in every case. Mike’s Train House v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir.

2006). In certain cases, an expert’s experience alone may provide a reliable basis for his testimony. 

Fed. R. Evid. 702 (2000 Amendments advisory committee notes); see also Campbell v. City of 

Springboro, Ohio, 788 F. Supp. 2d 637, 662 (S.D. Ohio 2011) (stating that reliability concerns 

may focus on personal knowledge and experience). “If the witness is relying solely or primarily 

on experience, then the witness must explain how that experience leads to the conclusion reached, 

why that experience is a sufficient basis for the opinion, and how that experience is reliably applied 

to the facts.” Fed. R. Evid. 702 (2000 Amendments advisory committee notes); see also Surles ex 

rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296 (6th Cir. 2007).

Although Rule 702 “does not require anything approaching absolute certainty,” an expert’s 

opinion cannot be based on mere speculation. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 

(6th Cir. 2010). The Sixth Circuit has instructed as follows:

[A]n expert’s opinion ... should be supported by good grounds, based on what is 

known. The expert’s conclusions regarding causation must have a basis in 

established fact and cannot be premised on mere suppositions. An expert’s opinion, 

where based on assumed facts, must find some support for those assumptions in the 

record. However, mere weaknesses in the factual basis of an expert witness’

opinion . . . bear on the weight of the evidence rather than on its admissibility.

McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800–01 (6th Cir. 2000) (internal quotations and 

citations omitted); see also In re Gen. Motors OnStar Lit., No. 2:–CV–DT, 2011 WL 679510, at 
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*8 (E.D. Mich. Jan.12, 2011) (expert’s failure to consider all available material goes to weight of 

testimony), report and recommendations adopted by, No. 2:07–MDL–01867, 2011 WL 674727 

(E.D. Mich. Feb.16, 2011). “An expert need not consider every possible factor to render a ‘reliable 

opinion;’ rather the expert need only consider enough factors to make his or her opinion 

sufficiently reliable in the eyes of the court.” In re Gen. Motors OnStar Lit., 2011 WL 679510, at 

*8 (internal citation and quotation omitted). “Vigorous cross-examination, presentation of 

contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate 

means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595.

Defendants ask the Court to enter an order in limine excluding Ashton’s opinions “based 

on speculation or which exceed the scope of his expertise.” (Doc. 28 at 1.) Defendants identify 

the following specific opinions as inadmissible:

1) That Hudson failed to perceive the tractor-trailer because “the headlights of 

the tractor were positioned in the southbound lane on Gettysburg-Pitsburg 

Road,”

2) That Hudson had “no expectation that a tractor-trailer would be on rural 

Gettysburg-Pitsburg Road,”

3) That, on the night of the accident, the tractor-trailer was not visible due to 

its lack of reflectivity and conspicuity; and

4) That “a normal, prudent person would not have taken the responsibility of 

pulling an entirely blank, unreflective, unmarked, cloth-like cargo 

box/semi-trailer on a dark, rural road . . .”

(Id. at 2-3, quoting Doc. 32-1, Ex. 3 at 17-18.)

As to the first of these opinions, Defendants argue that Ashton can only speculate regarding 

what Hudson did or did not perceive at the time of the accident. Defendants refer to Plaintiffs’

stipulation, at Ashton’s deposition, that “we will never know what went through Mr. Nestor’s mind 

when he died.” (Doc. 32 at 145.) Plaintiffs agree that Ashton cannot testify as to what Hudson 

perceived. (Doc. 37 at 2.) Defendants’ Motion in Limine as to this opinion is GRANTED.

Defendants argue that the second opinion—that Hudson would not have expected to see a 

tractor-trailer—should be excluded for lack of foundation. This opinion, like the first, also 

presumes to know what was going on in Hudson’s mind on the night of the accident. Ashton 
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testified at his deposition that this opinion is based on his “own life experience that [on] county 

roads, you don’t see many tractor trailers at night, period, and especially not making left turns.” 

(Doc. 31 at 131:15-19.) Defendants argue that the opinion amounts to no more than Ashton’s 

“personal belief,” which is not an accepted basis for expert testimony. In response, Plaintiffs

neither describe Ashton’s personal experience on country roads nor argue its relevance to 

Plaintiffs’ car accident. The Court therefore GRANTS the Motion in Limine as to this opinion. 

As to the third opinion, Defendants argue that Ashton is not qualified to render an opinion 

regarding the reflectivity and conspicuity of the tractor-trailer. They claim that Ashton’s education 

in this area is based on a single 80-hour presentation, which included one portion regarding 

conspicuity. Defendants further argue that Ashton’s opinions on light reflectivity are untested and 

unverifiable. In response, Plaintiffs argue that Ashton’s opinions regarding these issues are 

“largely admissible” and Defendants’ objections go to their weight, not admissibility. At this time, 

the Court is not persuaded that Ashton lacks the expertise under Rule 702 to render an opinion on 

these issues. Defendants’ Motion in Limine is therefore DENIED as to his opinions on the 

reflectivity and conspicuity of the tractor-trailer. 

Lastly, Defendants argue that Ashton’s opinion on what a “reasonable, prudent person” 

would have done is a matter of law on which only the judge may instruct the jury. Plaintiffs do 

not contest this issue but agree that an expert witness should not be permitted to testify regarding 

the law or an “ultimate conclusion of fact for the jury.” (Doc. 37 at 1.) Defendants’ Motion in 

Limine as to this opinion is therefore GRANTED.

IV. CONCLUSION

For the reasons above, Defendants’ Motion in Limine (Doc. 28) is GRANTED IN PART 

and DENIED IN PART.

DONE and ORDERED in Dayton, Ohio, this Thursday, October 4, 2018. 

s/Thomas M. Rose

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE