RENDERED: NOVEMBER 3, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1320-MR

HAWA MOHAMED; IBRAHIM 

MUYA; AND F.I., A MINOR APPELLANTS

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 17-CI-005185

LISA BERGER; AND STATE FARM 

MUTUAL AUTOMOBILE 

INSURANCE COMPANY APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.

EASTON, JUDGE: The Appellants, Hawa Mohamed (“Mohamed”), Ibrahim 

Muya (“Muya”), and Hawa Mohamed, as next of kin for F.I., a minor (“F.I.”) 

(collectively “Appellants”), appeal from the Jefferson Circuit Court’s Order of

Judgment dismissing the Appellants’ claims with prejudice after a jury returned a 
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verdict in favor of the Appellee, Lisa Berger (“Berger”). The Appellants allege the 

circuit court made evidentiary errors during the trial. Having reviewed the record 

and the applicable law, we affirm. 

FACTUAL AND PROCEDURAL HISTORY

 On October 27, 2016, Berger’s car rear-ended the car Mohamed was 

driving. Passengers in Mohamed’s car included Muya, F.I., and another minor 

child. Mohamed’s car was stopped in traffic at a red light when the impact

occurred. Mohamed was driving a rental car owned by Enterprise Rent-A-Car 

(“Enterprise”), while Berger was driving her own car. After the collision, the 

rental car was returned to Enterprise. 

Appellants filed suit on October 2, 2017 in the Jefferson Circuit 

Court. The Complaint alleged Berger’s negligent operation of her car caused the 

collision. The Complaint stated all three Appellants suffered injuries because of

the accident. The Complaint also initially named State Farm Insurance (“State 

Farm”) as a defendant. The allegations against State Farm were bifurcated, and

given the result of the trial, that claim has not proceeded further. State Farm is not 

a participant in this appeal.

 The Appellants indicated English is not their primary language. 

Interpreters were utilized throughout the case. Language presented challenges, 

especially when witnesses were impeached with prior testimony.
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 Depositions of all three Appellants were taken. The first law 

enforcement officer on the scene, Eric Brandes (“Officer Brandes”) was also 

deposed. A representative of Enterprise, Christopher Buck, was deposed as well. 

 On September 18, 2019, the Appellants filed a Motion for Partial 

Summary Judgment. Because Berger conceded liability for the accident in her 

Answer, Appellants asked the court to grant them summary judgment on liability. 

Berger’s response admitted liability, but she disputed the accident caused any 

injuries that required medical care. The circuit court granted summary judgment to 

the Appellants on liability, but the court found an issue of material fact regarding 

causation of any claimed injuries. 

Berger filed her expert witness disclosure in late 2019. She disclosed 

C. Brian Tanner (“Tanner”), an engineer, as her expert. Appellants filed a motion 

to exclude his testimony four days later. On October 6, 2020, the circuit court held 

a Daubert1 hearing to determine if it would allow Tanner to testify. The circuit 

court found he qualified as an expert in engineering and could testify about 

biomechanics. The circuit court ruled, however, that Tanner could not testify 

regarding any medical causation. It limited his causation testimony to generally 

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 

469 (1993).
-4-

giving examples of daily activities that would be consistent or inconsistent with the 

force experienced by the Appellants in the accident. 

 The circuit court set an initial trial date of January 7, 2020. The 

circuit court issued a pretrial order that outlined discovery deadlines and ordered 

mediation. Multiple continuances of the trial occurred. Finally, a jury trial began 

on September 13, 2022. 

Prior to testimony beginning, Appellants renewed their motion to 

exclude Tanner’s testimony. They claimed his math did not “add up” and that he 

essentially “made up” the speed he used in his calculations. The circuit court 

responded that Appellants were in possession of his calculations for quite some 

time. The court stated the Appellants could have asked Tanner about all these 

questions in a deposition, yet they chose not to do so. The court declined to 

exclude Tanner’s testimony; however, the circuit court stated it may consider 

questioning him outside the presence of the jury if it became necessary to do so.

Before jury selection, Berger’s counsel asked the court to make clear 

to the Appellants that they may not mention “insurance” in their testimony in front 

of the jury. There had been a prior ruling that the word “insurance” may not be 

used, and the court reiterated this ruling at this time. The court stated to all the 

parties that there shall be no mention of insurance coverage, insurance companies, 

insurance agents, or insurance policies, and that if someone were to mention any of 
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these, it would bring the trial “to a very fast halt.”2 At this point, the only objection 

Appellants’ counsel raised to this ruling was that he likes to ask potential jurors 

during voir dire if anyone worked for an insurance company. The court replied 

that voir dire is a separate issue, and he would be allowed to ask this question. 

Once the jury was selected, Appellants began their case in chief. 

They called two chiropractors who treated the Appellants (Dr. Watley and Dr. 

Krawchison), a family physician who treated F.I. (Dr. Lach), and a medical expert

(Dr. Barrett). All three Appellants also testified. 

Both treating chiropractors and the family physician testified 

similarly. They all testified that the parties complained of headaches, back pain, 

neck pain, and shoulder pain. Dr. Lach and Dr. Krawchison testified that F.I. 

suffered from muscle spasms after the accident. Additionally, Muya suffered from 

pain in his right ankle and right wrist. Likewise, Mohamed had pain in her arms 

and legs. All treatment providers testified the Appellants suffered from acute 

injuries due to the motor vehicle accident that occurred on October 27, 2016.

 None of the treatment providers believed Appellants were 

exaggerating or falsifying their injuries. The treatment providers testified that all 

three Appellants sought treatment for approximately three months and reached 

maximum medical improvement. All treatment providers testified as to their bills, 

2 Trial, 9/13/2021, 10:59:31.
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and stated they believed all the treatment Appellants received was reasonable and 

necessary, and that their bills were reasonable. 

Much like their direct testimony, the treatment providers testified

similarly during their cross-examinations. They all stated that previous medical 

history is important in treating patients. They testified they did not know of any 

prior injuries the Appellants had. All were apparently unaware of a previous motor 

vehicle accident Muya had been involved in approximately seven months prior to 

the accident in question. 

Appellants’ expert witness, Dr. Mark Barrett, confirmed the treatment 

providers. He believed, based on his review of the parties’ medical records, that 

the treating physician and chiropractors’ diagnoses of the Appellants were

accurate. Dr. Barrett noted they all had similar injuries, which he claimed was not 

unusual. He saw nothing unexpected in their records, and he saw no reason to 

question the diagnoses or their injuries as genuine. He stated there are ways to 

determine if someone is faking or exaggerating an injury, and he saw no indication 

of that in any of the records. 

During his cross-examination, Dr. Barrett stated he did not treat or 

speak with the Appellants himself. He admitted his opinions are based upon the 

accuracy of the statements in the records, and if there were any inaccuracies, they 

would impact his opinion. Dr. Barrett acknowledged it is important to have a
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correct history of the patient to give opinions and provide effective treatment. He 

stated Muya’s prior motor vehicle accident was not referenced in any of the 

chiropractic records he reviewed. He additionally said he was not provided with 

any information regarding the damage to the vehicles, but he said this was 

irrelevant. Dr. Barrett opined it is possible for the occupants of a vehicle to be 

injured even if the damage to the vehicle was minimal. 

F.I. was the first of the Appellants to testify. She was ten years old 

when the accident occurred and sixteen at the time of the trial. She said she had no 

previous injuries prior to the accident, and she was able to do normal daily 

activities. After the accident, her activity was very limited because of pain. She 

missed several days of school. The pain in her neck made it difficult to sleep. 

On cross-examination, Berger’s counsel asked F.I. if she was wearing 

her seat belt at the time of the accident. He also asked if her younger brother (age 

two at the time of the accident) was in a car seat. She replied affirmatively to both

questions. Berger’s counsel then pointed to her deposition testimony (taken 

approximately two years after the accident and four years prior to trial), in which 

she stated she was not wearing a seat belt and that her brother was sitting in her lap 

at the time the accident occurred. She replied she did not remember giving that 

testimony.
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F.I. testified her mother was driving. During cross-examination, she 

was asked if her parents had switched seats at any point. F.I. replied that they had 

because her father wasn’t feeling well. Again, Berger referred to F.I.’s deposition 

testimony where she stated her father has headaches often and asked if a headache 

was the reason her mother took over driving. F.I. responded that she did not recall.

 Berger additionally asked about her parents having pain prior to the 

accident. F.I. said she was unaware of her parents having any issues prior to this 

accident. Again, her deposition was referenced, in which she testified her father 

had an injured leg prior to this accident. She further stated in her deposition that 

she and her younger siblings would massage her mother’s arms and legs because of 

pain before this accident. Again, F.I. stated she did not recall saying any of this.

Mohamed then testified. She stated she had no pain prior to the 

accident, but afterwards, she had trouble sleeping due to the pain she experienced. 

She first sought treatment the day after the accident. 

During cross-examination, Berger brought up several inconsistencies 

between Mohamed’s trial and deposition testimony. For example, in her 

deposition, Mohamed stated she was driving because Muya had a headache. At 

trial she was driving because she wanted to drive the rental car. At trial Mohamed 

said she did not have a smartphone so she could not take pictures of the vehicles; at 

her deposition, she said she did have a smartphone that had the ability to take 
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photographs. Her trial testimony was that she sought treatment the day after the 

accident; her deposition testimony was that she did not seek treatment for about a 

week after the accident.

 Mohamed’s chiropractor records stated she hit her left shoulder on the 

door upon impact; she testified at trial that this did not occur. Upon being asked 

about these inconsistencies, Mohamed states she did not understand many of the 

questions being asked during the deposition and there was a miscommunication or 

mistranslation. It was unclear if the translator present during the depositions was 

certified or what agency employed the translator. Neither Appellants’ current 

counsel nor Berger’s trial counsel were present at the depositions to give any 

insight to the court regarding the translator.

Ibrahim Muya was the final witness to testify for Appellants. He 

testified he had no issues prior to this accident. He acknowledged he had been in a 

previous accident with similar injuries, but he stated those injuries had healed 

completely before this accident. He stated he badly injured his neck, back, 

shoulder, leg, and ankle. His first chiropractor visit was an after-hours emergency 

visit, which occurred the evening of the accident. He stated the pain was so severe 

he needed painkillers just to sleep. 

During Muya’s cross-examination, Berger’s counsel again points to 

significant disparities between Muya’s deposition testimony and his trial 
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testimony. Muya stated the rental car they were in sustained heavy damage, while 

his deposition testimony describes the damage as only a small dent in the bumper. 

In his deposition, Muya denied going to the chiropractor the day of the accident.

 Muya was hostile to Berger’s counsel during cross-examination. He 

appeared to take issue with Berger’s counsel using the transcript of his deposition 

testimony, to which he stated: “I am not the one who publishes this information, I 

don’t use the computer; you are the one who publishing this information.”3“You 

are one of them.”4“You should stop this line of questioning.”5“You are the one 

who wrote this.”6“Do not try to force me to say something I did not say.”7

At this point, a bench conference occurred in which Berger’s counsel 

requested to bring in deposition testimony from a separate lawsuit involving a 

subsequent motor vehicle accident Muya was in. In this deposition, Muya 

specifically states the chiropractor is lying when he said Muya was seen the day of 

the accident which is the subject of the trial in this case. Appellants’ counsel 

objected, as he claimed he had not seen this deposition transcript. The circuit court 

3 Trial, 9/15/2022 at 4:03:09.

4

Id. at 4:03:24.

5

Id. at 4:04:41.

6

Id. at 4:05:18.

7

Id. at 4:06:57.
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allowed some of the testimony to be brought in; however, it admonished counsel 

that the court did not want to bring in any information about the subsequent 

accident or lawsuit. 

During this line of questioning, Muya also denies making the 

statements in this deposition. He claims there was no interpreter during this 

deposition. At a bench conference, the court determined based on the deposition 

transcript that there was in fact an interpreter present, although the interpreter was 

for Maay Maay, not Somali. Maay Maay is Mohamed’s native language, while 

Somali is Muya’s native language. Upon further questioning regarding his 

deposition testimony, Muya again denies making the statements quoted in the 

deposition transcript. Muya states that English is not his first language. He again 

accuses Berger’s attorney of creating the deposition transcript. He stated Berger’s 

counsel is trying to take advantage of him. He claims the testimony being read 

from the transcript did not occur. “I am getting angry right now, so please leave 

me alone.”8 At this point, the circuit court concluded for the day.

Upon reconvening the next morning, Muya’s cross-examination 

continued. Berger’s counsel commented that Muya acknowledged in his direct 

testimony the day before that he had been in a prior motor vehicle accident. But in 

his deposition Muya denied ever having been in an accident before. Muya testified 

8

Id. at 4:48:59.
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he probably did not understand the question. Berger’s counsel points to further 

deposition testimony in which Muya denies ever having any prior injuries or 

problems with the body parts he injured in the previous accident. Muya then stated 

it was because his prior injuries had healed completely before this accident took 

place. In response to Berger’s final cross-examination question, Muya stated he 

did not miss any work following this accident. 

The first witness Berger called was Officer Brandes, a retired LMPD9

officer who responded to the accident scene. He testified he had no issues 

communicating with the parties in English, which gives us some pause about the 

translation difficulties claimed. Officer Brandes said he asked if anyone was 

injured or needed medical attention, and they all said no. Officer Brandes saw 

only minor damage to both vehicles. He elaborated that the car Appellants were 

driving had mostly transfer marks or paint damage and no structural damage. The 

damage to the front of Berger’s car was a little more pronounced.

 Officer Brandes estimated Berger’s speed upon impact to be between 

fifteen and twenty miles per hour. He stated this speed was his best “guess,” as no 

speed had been clocked with radar or observed. He stated this was consistent with 

rolling into someone’s bumper. 

9 Louisville Metro Police Department.
-13-

Lisa Berger testified next. She remembered travelling approximately 

twenty miles per hour before applying the brakes when she saw Appellants’ 

vehicle in front of her. She estimates the speed at impact was less than five miles 

per hour. Berger testified the damage to the vehicles was very minimal. She stated 

her vehicle already had several scratches on its front, and she could not tell if there 

was any additional damage to it after the accident occurred. She did not take any 

pictures of the damage to the vehicles, because it was so minor it didn’t occur to 

her to do so.

 Muya was the only occupant in Appellants’ vehicle she spoke to. She 

claimed Muya did not appear to be injured or in pain. She stated he did not appear 

dazed or confused. Berger testified he appeared very alert. Muya responded to her 

questions quickly, so she believed he understood her. 

Berger’s next witness was Christopher Buck, who is a group risk 

manager for Enterprise. He testified as to the protocol when a rental car is returned 

to them. He stated that after a vehicle is returned, an agent does a walk-around 

inspection for any damages. He testified that if a car is returned with damage, 

Enterprise will open a claim. He states that damage is documented, and it goes 

into their system. For them to open a claim, the damage must meet a certain 

threshold to not be considered normal wear and tear. Buck testified that examples 

of damage to a bumper which would exceed the threshold would be cracks, 
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scratches longer than two to three inches, dents, or a misalignment. He stated that 

a dent would need to be at least the size of a quarter on a plastic bumper for them 

to open a claim.

 While he did not inspect Muya’s rental vehicle himself, Buck testified 

that Enterprise’s system had no documented damage to the vehicle after Muya 

returned it to them. Buck said there would have been a notation in the system if 

any repairs were made to the vehicle after Muya returned it, and there were none. 

On cross-examination Buck admitted the vehicle was rented out again the morning 

following Muya’s return, and there was noted damage to it after that return. 

Berger’s final witness was her expert witness, C. Brian Tanner. 

Tanner stated his ultimate opinion is that the collision between the vehicles 

resulted in a speed change of no more than five miles per hour to Mohamed’s 

vehicle, with the acceleration being no more than 5G.

10

 He further stated the 

Appellants’ joints would not have moved more than their normal range of motion. 

He opined that the forces on their bodies would be like forces exerted by 

performing normal activities, such as rapidly descending a set of stairs, opening a 

heavy door, or flopping back onto a chair or bed. 

10 G is a unit for measuring forces, comparing them to the force of gravity, where Earth gravity 

equals 1G. John Papiewski, What Does G Force Mean?, SCIENCING.COM, Sciencing.com/whatdoes-g-force-mean-13710432.html (last updated Mar. 29, 2018).
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Tanner testified that to reach his conclusions, he reviewed the 

accident report, the Complaint and response in the circuit court action, depositions 

of the Appellants and the investigating officer, the email and deposition of the 

Enterprise employee, data for the vehicles involved, and street level and aerial 

views of the accident scene. Additionally, he referenced previous tests he had 

performed with similar vehicles regarding the amount of damage the vehicles 

sustained when it hit an object while moving at a certain speed. Based on this 

information, he performed several calculations which led to his conclusions.

Tanner stated he estimated Berger’s speed to be about four miles per 

hour upon impact with Mohamed’s vehicle. He testified he determined this speed 

because he had performed a controlled test with an equivalent vehicle. During this 

test, the vehicle sustained significantly more damage than Berger’s vehicle when it 

impacted a fixed barrier travelling at five miles per hour. 

During his cross-examination, Tanner stated he disregarded Officer 

Brandes’ speed estimate of fifteen to twenty miles per hour, because the amount of 

damage to the vehicles would have been significantly greater than the damage 

sustained in this collision if Berger had been travelling at that speed. 

Appellants’ counsel asked Tanner to “show his work” and solve his 

equations for the jury. Over objection, the circuit court initially agreed to allow it, 

although deemed “unusual.” However, Tanner then stated to counsel and the court 
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that while he could solve the equations, he did not solve them by hand in his 

analysis. He stated he used a computer program called “Mathcad” to solve the 

equations. This program is used by engineers to save time and solve standard 

mathematical equations. Tanner stated it would take him one to two hours to solve 

them by hand and he would need a lot of paper. The court ruled that it would have 

no probative value to have Tanner solve his equations using pen and paper if that is 

not how he reached his conclusion. 

At this point, Appellants renewed their motion to exclude 

Tanner’s testimony. They alleged his method was never disclosed to them, and 

that no computer program was ever mentioned. They argue they have no 

information on this program or how reliable it is. After some argument, the court 

overruled Appellants’ motion. The circuit court stated Appellants had the 

opportunity to challenge the calculations at the Daubert hearing, by deposition, or 

by hiring their own expert. 

The jury returned with a verdict in favor of Berger. They found 

unanimously that the collision on October 27, 2016 was not a substantial factor in 

causing injuries alleged by Hawa Mohamed or Ibrahim Muya. Ten out of twelve 

jury members found that the collision on October 27, 2016 was not a substantial 

factor in causing the injuries alleged by F.I. They awarded nothing to the 

Appellants. The circuit court entered an Order of Judgment dismissing with 
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prejudice the claims against Lisa Berger on October 10, 2022. This appeal timely 

followed. 

STANDARD OF REVIEW

“In reviewing the exclusion of expert witness testimony, this Court 

applies an abuse of discretion standard.” Jackson v. Ghayoumi, 419 S.W.3d 40, 43 

(Ky. App. 2012). “The trial court has discretion to control the presentation of 

evidence. In the absence of any abuse, the reviewing court will not reverse the 

decision of the trial judge.” Pendleton v. Commonwealth, 685 S.W.2d 549, 554 

(Ky. 1985). Likewise, “the standard of review of an evidentiary ruling is abuse of 

discretion.” Cox v. Commonwealth, 553 S.W.3d 808, 814 (Ky. 2018). “The test for 

abuse of discretion is whether the trial judge’s decision was arbitrary, 

unreasonable, unfair or unsupported by sound legal principles.” Woodard v. 

Commonwealth, 147 S.W.3d 63, 67 (Ky. 2004). 

ANALYSIS

Appellants claim the circuit court made several errors during 

the jury trial. First, they allege the circuit court erred in allowing defense expert 

Tanner to testify. They first claim that Tanner’s methodology was not properly 

disclosed, and second, that his methodology did not meet the requirements of 

Daubert. Appellants also contend the circuit court erred in denying their request 

for Tanner to solve his equations in front of the jury. 
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Appellants’ second contention of error is that the circuit court erred in 

barring any mention of the word “insurance” in the presence of the jury. They 

argue KRE11 411 does not require such a broad prohibition. Finally, Appellants 

claim the circuit court erred in allowing Muya to be cross-examined regarding 

deposition testimony from an unrelated case when it was not disclosed prior to 

trial. 

The Circuit Court Did Not Abuse Its Discretion

in Allowing Tanner to Testify

 Appellants claim the circuit court abused its discretion by not 

excluding the testimony of defense expert Tanner. They claim Berger failed to 

properly comply with the disclosure requirements of CR12 26.02(4)(a)(i). 

CR 26.02(4)(a)(i) states:

A party may through interrogatories require any other 

party to identify each person whom the other party 

expects to call as an expert witness at trial, to state the 

subject matter on which the expert is expected to testify, 

and to state the substance of the facts and opinions to 

which the expert is expected to testify and a summary of 

the grounds for each opinion.

 Appellants argue that because Tanner did not 

disclose that he had performed his mathematical 

calculations through a particular computer program, 

Berger did not sufficiently comply with discovery rules. 

While Berger did not initially disclose Tanner as an 

11 Kentucky Rules of Evidence.

12 Kentucky Rules of Civil Procedure.
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expert in her answer to Appellants’ interrogatories, she 

did file her expert witness disclosure naming Tanner as 

her expert on November 8, 2019, well within the 

discovery timeframe. 

Appellants do not argue that Berger failed to disclose Tanner’s 

opinions or the basis of his opinions. Appellants take issue with the fact that 

Tanner performed the calculations he testified to by using a computer program, 

rather than doing them himself by hand. 

The purpose of CR 26.02(4)(a)(i) is “to give the opposing party a

chance to prepare for the trial itself.” Hicks v. Cole, 566 S.W.2d 169, 171 (Ky. 

App. 1977). Berger’s disclosure gave notice to Appellants what the basis of his 

testimony would be, and why. The only missing piece is what format was used to 

solve the calculations, whether by hand, use of a calculator, or even a computer 

application. Additionally, while Appellants claim they had no notice that Tanner 

used a computer program to solve his equations, that is simply not accurate. 

During the Daubert hearing, Tanner testified that he used software to solve his 

equations. He references “the software” several times. Appellants failed to ask 

any follow up questions. The circuit court stated:

If you want to ask the questions how he got there, then 

there is enough information in the disclosure to point 

opposing counsel in that direction. So, the fact that there 

has not yet been a deposition, I don’t think, that, to me, is 

important, but more importantly, the disclosures 
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themselves give the blueprint for the testimony and the 

outline for any questions that would be asked.[13]

The circuit court noted the expert witness disclosure was not simply

conclusory; the disclosure here outlined the conclusions and the bases for them. 

The circuit court believed the expert witness disclosure was adequate to put 

Appellants on notice as to what the expert would testify to, and we agree. 

Appellants seem to ignore the remainder of CR 26.02(4)(a), which 

states: 

After a party has identified an expert witness in 

accordance with paragraph (4)(a)(i) of this rule or 

otherwise, any other party may obtain further discovery 

of the expert witness by deposition upon oral 

examination or written questions pursuant to Rules 30 

and 31. The court may order that the deposition be taken, 

subject to such restrictions as to scope and such 

provisions, pursuant to paragraph (4)(c) of this rule, 

concerning fees and expenses as the court may deem 

appropriate.

CR 26.02(4)(a)(ii).

The circuit court repeatedly asked Appellants if they had taken

Tanner’s deposition. As the circuit court determined in its decision to overrule 

their motion to exclude Tanner’s testimony during trial, Appellants were in 

possession of Tanner’s equations for at least a year, and they could have deposed 

13 Hearing of 10/6/2020 at 09:28:26.
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him or hired their own expert to challenge his calculations. They chose to do 

neither, despite having ample opportunity to do so.

Appellants further argue that Tanner should not be allowed to testify 

as an expert under Daubert because the methods he employed in reaching his 

conclusions are unreliable. KRE 702 is the rule that applies to expert testimony. It 

states: 

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.

Pursuant to Stringer v. Commonwealth:

Expert opinion evidence is admissible so long as (1) the 

witness is qualified to render an opinion on the subject 

matter, (2) the subject matter satisfies the requirements of 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 

579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), (3) the 

subject matter satisfies the test of relevancy set forth in 

KRE 401, subject to the balancing of probativeness 

against prejudice required by KRE 403, and (4) the 

opinion will assist the trier of fact per KRE 702.
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956 S.W.2d 883, 891 (Ky. 1997).

The circuit court held a Daubert hearing in this action specifically to 

determine if Tanner would be able to testify as an expert at trial. After hearing 

Tanner testify, the court determined he was qualified as an expert in his field. 

Appellants did not object to Tanner’s qualifications as an engineer, but as to his 

methods. The circuit court ruled that his calculations rest upon sound principles of

mechanics and biomechanics. The circuit court believed his opinions regarding the 

forces put upon Appellants’ bodies during the accident are within the expertise of a 

biomechanical engineer who deals with force acting upon other objects. The 

circuit court did rule, however, that Tanner could not testify as to medical 

causation, or lack thereof. 

The factors for a trial court to apply to determine the admissibility of 

an expert's proffered testimony include: “(1) whether a theory or technique can be 

and has been tested; (2) whether the theory or technique has been subjected to peer 

review and publication; (3) whether, with respect to a particular technique, there is 

a high known or potential rate of error and whether there are standards controlling 

the technique's operation; and (4) whether the theory or technique enjoys general 

acceptance within the relevant scientific, technical, or other specialized 

community.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79 

(Ky. 2000). 
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Tanner has a master’s degree in engineering mechanics. He works in 

the areas of mechanical engineering and biomechanics. He’s been employed with 

a forensic engineering firm since 1994. His work has an emphasis on motor 

vehicle accident reconstruction and biomechanical analysis. He has also worked 

with the National Highway Traffic Safety Administration. He has contributed to 

more than twenty peer reviewed publications. He has an engineering license in six 

states. 

Tanner testified that based upon the description of the damage of the 

vehicles, he estimated the speed of Berger’s vehicle. He stated visiting the actual 

scene would not be helpful, as there would be no relevant evidence remaining after 

the passage of that much time. Additionally, he stated the collision itself was the 

basis of his calculations, and the actual scene wouldn’t add much value. He 

subsequently described his calculations, how he chose the values he did, and how 

he reached his conclusions. He used manufacturing information of the vehicles 

involved to determine the weight and build of the vehicles involved. He 

referenced collision tests he performed himself on the same or substantially similar

vehicles when making his analysis. While no pictures of the vehicles involved in 

this collision existed for his review, the description of the damage to the vehicles 

was relatively consistent among all witnesses, and he took that information into 

account when estimating the speed of Berger’s vehicle upon impact.
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 The fact that Tanner did not perform the actual calculations himself 

but used a computer program accepted in his field of study to solve the calculations 

does not necessarily render those calculations unreliable. As stated by the circuit 

court judge during trial, it is not unusual for an expert to employ a computer 

program to assist in performing complicated mathematical calculations. Tanner 

testified that the program he utilized was widely used and accepted in the 

engineering field. 

Appellants argue that Tanner was not employed as an expert until 

approximately three years after the accident in question occurred. They claim that 

because he did not visit the scene, did not review the vehicles or pictures of the 

vehicles in question, or examine any black box data from the vehicles, did not 

interview any of the parties, or take any measurements of the scene, he does not 

have sufficient facts or data with which to make his opinion. They claim there is 

no factual basis to support his equations. However, these arguments all go to the 

weight of the evidence, not the admissibility. See Clephas v. Garlock, Inc., 168 

S.W.3d 389, 394 (Ky. App. 2004); City of Nicholasville Police Department v. 

Abraham, 565 S.W.3d 639, 645 (Ky. App. 2018).

 Appellants’ counsel did, in fact, cross-examine Tanner thoroughly on 

these matters during the trial. It should also be noted that the circuit court properly 

limited Tanner’s testimony; he was not allowed to testify as to his conclusion
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stated in his report, which was that the force of the accident did not cause the 

Appellants’ injuries. The circuit court ruled this was a conclusion within the realm 

of medical causation, to which Tanner was not qualified to testify. We do not 

believe the court abused its discretion in allowing Tanner’s testimony at trial.

Appellants still argue the circuit court erred in not allowing them to 

have Tanner perform his calculations in front of the jury. “[Q]uestions concerning 

the scope of evidence are left to the discretion of the trial court to determine 

whether to admit and exclude evidence.” Baptist Healthcare Systems, Inc. v. 

Miller, 177 S.W.3d 676, 684 (Ky. 2005). The circuit court determined that 

because solving the equations by hand was not how Tanner solved the equations in 

reaching his conclusion, it had little probative value, especially considering the 

amount of time it would take. “The trial court also has ‘discretion ‘to . . . control 

. . . the amount of evidence produced on a particular point.’” Addison v. Addison, 

463 S.W.3d 755, 762 (Ky. 2015) (citations omitted).

 Tanner informed the court that it was possible for him to do the 

calculations by hand in front of the jury; however, it would take between one to 

two hours and many sheets of paper. We do not believe the circuit court abused its 

discretion in its ruling. Waste of time is properly avoided. KRE 403. A trial court 

“is vested with a large discretion in the conduct of the trial of causes and an 

appellate court will not interpose to control the exercise of such discretion by a 
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court of original jurisdiction, unless there has been an abuse or a most unwise 

exercise thereof.” Transit Auth. of River City (TARC) v. Montgomery, 836 S.W.2d 

413, 416 (Ky. 1992).

The Circuit Court Did Not Err in Barring the Word “Insurance”

in the Presence of the Jury

Appellants argue the circuit court’s prohibition against mentioning 

“insurance” prejudiced their cross-examination of Tanner. Appellants allege they 

wished to question Tanner regarding his history of testifying as an expert for 

insurance companies. 

The Appellants have not properly preserved this issue. Their citation 

in their brief to where they objected to the prohibition was during the testimony of 

Dr. Lach, not Tanner. At no point during Tanner’s testimony did Appellants bring 

up the possibility of bias based upon any history with an insurance company. 

“[T]he critical point in preservation of an issue remains: was the question fairly 

brought to the attention of the trial court.” MV Transp., Inc. v. Allgeier, 433 

S.W.3d 324, 331 (Ky. 2014). 

Likewise, during pretrial motions, when Berger’s counsel moved to 

exclude the use of the word “insurance,” the only argument Appellants’ counsel 

made is that he likes to ask if any potential jurors work for an insurance company 

during voir dire. 
-27-

Nowhere in the record do Appellants express their wish to crossexamine Tanner as to any bias he may have by his history of working with 

insurance companies. Appellants’ counsel did, in fact, ask Tanner if he ever 

worked as an expert for plaintiffs and what percentage of his cases testifying as an 

expert would be attributed to plaintiffs. Thus, the Appellants exposed any bias 

Tanner may have had for the jury to consider. They make no reference as to what 

precisely would have been asked or what the testimony would have been had they 

been allowed to use the term “insurance” in their line of questioning. At any rate, 

we determine that even if the circuit court erred in barring any use of the word 

“insurance,” it was harmless. An error is harmless if it does not affect the 

substantial rights of the parties. Morgan v. Scott, 291 S.W.3d 622, 637 (Ky. 2009).

The Circuit Court Did Not Err in Allowing Muya to be Impeached

with Prior Deposition Testimony from Another Case

Appellants allege it was error for the circuit court to allow Berger’s 

counsel to cross-examine Muya regarding deposition testimony he gave in an 

unrelated civil matter. They argue this deposition was never disclosed in discovery 

and therefore, should have been excluded. We find this argument to be without 

merit.

CR 32.01 governs the use of depositions in court proceedings. 

Subsection (a) states: “Any deposition may be used by any party for the purpose of 
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contradicting or impeaching the testimony of deponent as a witness.” (Emphasis 

added.) 

“A trial court has broad discretion in ruling upon the admissibility of 

impeaching evidence . . . . The law favors the admission of evidence that is 

relevant to a jury’s determination of a witness’s credibility.” MV Transp., Inc.,

supra, at 333. “[T]he credibility of any witness, including one’s own witness, may 

be impeached by showing that the witness has made prior inconsistent statements. 

This rule applies in both criminal and civil proceedings.” Wise v. Commonwealth, 

600 S.W.2d 470, 472 (Ky. App. 1978). “The credibility of a witness’ relevant 

testimony is always at issue, and the trial court may not exclude evidence that 

impeaches credibility even though such testimony would be inadmissible to prove 

a substantive issue in the case.” Sanborn v. Commonwealth, 754 S.W.2d 534, 545 

(Ky. 1988), receded on other grounds by Hudson v. Commonwealth, 202 S.W.3d 

17 (Ky. 2006). “It is well-settled that prior inconsistent statements by a witness 

may be received as substantive evidence.” Porter v. Commonwealth, 892 S.W.2d 

594, 596 (Ky. 1995). 

The court did not abuse its discretion in allowing this line of 

questioning by Berger. While the circuit court had previously ruled that any 

mention of subsequent motor vehicle accidents and lawsuits should be excluded as 

irrelevant, it properly balanced Berger’s ability to impeach Muya with his prior 
-29-

testimony while still excluding the fact that this deposition testimony came from a

separate action. Berger’s counsel was able to ask about the testimony without 

eliciting explicitly where it came from. Moreover, Berger did not introduce these 

statements as substantive evidence, but only to impeach Muya’s credibility. It was 

not an abuse of discretion for the circuit court to allow this line of questioning. 

CONCLUSION

Because the circuit court did not abuse its discretion in its evidentiary 

rulings during the jury trial, the Jefferson Circuit Court is AFFIRMED. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Michael A. Landisman

Louisville, Kentucky

BRIEF FOR APPELLEE LISA 

BERGER:

Scott A. Davidson

Louisville, Kentucky