UNITED STATES’ MOTION TO PRECLUDE CASE NO. 3:17-CV-00733-SK

TESTIMONY OF RICHARD BURGESS

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CHAD A. READLER

Acting Assistant Attorney General, Civil Division

ALEX G. TSE

Acting United States Attorney

DEBRA D. FOWLER

debra.fowler@usdoj.gov

Senior Aviation Counsel

JOSHUA H. JOSEPH

joshua.h.joseph@usdoj.gov

Trial Attorney

Torts Branch, Civil Division

U.S. Department of Justice

Post Office Box 14271

Washington, DC 20044-4271

Phone: (202) 616-4025

Fax: (202) 616-4002

Attorneys for Defendant 

United States of America

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

MITCHELL OW and MARGARET 

BEDIMA-OW,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

No. 3:17-CV-00733-SK

DEFENDANT UNITED STATES OF 

AMERICA’S NOTICE OF MOTION AND 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF 

MOTION TO EXCLUDE TESTIMONY 

OF PLAINTIFFS’ EXPERT RICHARD 

BURGESS; AND PROPOSED ORDER

Date: September 10, 2018

Time: 9:30 a.m.

Judge: Hon. Sallie Kim
UNITED STATES’ MOTION TO PRECLUDE CASE NO. 3:17-CV-00733-SK

TESTIMONY OF RICHARD BURGESS

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NOTICE OF MOTION AND MOTION

TO ALL COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on September 10, 2018, or as soon thereafter as

counsel may be heard by the above-entitled court, located at 450 Golden Gate Ave.,

Courtroom A, 15th Floor, San Francisco, California, in the courtroom of Judge Sallie 

Kim, Defendant the United States of America will and hereby does move this Court to 

issue an Order excluding testimony of Plaintiffs’ expert Richard Burgess regarding 

causation because it is unreliable and lacks proper foundation.

This Motion is based on the Notice of Motion, Motion and the Memorandum of

Points and Authorities filed herewith, the evidence filed in support of this Motion, and

upon such other matters as may be presented to the Court at the time of a hearing.

Dated: July 23, 2018 Respectfully submitted,

CHAD A. READLER

Acting Assistant Attorney General

Civil Division

ALEX G. TSE

Acting United States Attorney

/s/Debra D. Fowler

DEBRA D.FOWLER

Senior Aviation Counsel

debra.fowler@usdoj.gov

JOSHUA H. JOSEPH

joshua.h.joseph@usdoj.gov

Torts Branch, Civil Division

U.S. Department of Justice

Post Office Box 14271

Washington, DC 20044-4271

Tel: (202) 616-4025/30

Fax: (202) 616-4002

 Attorneys for United States
UNITED STATES’ MOTION TO PRECLUDE CASE NO. 3:17-CV-00733-SK

TESTIMONY OF RICHARD BURGESS

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The United States moves to limit the testimony of Plaintiffs’ air traffic control 

expert. His testimony should be limited to his field. The United States moves to strike 

his opinions that exceed the subject matter of air traffic control, such as his opinion about 

why Plaintiff Mitchell Ow, a firefighter driving a firefighting vehicle, turned the vehicle

at a particular time.

This case is brought under the Federal Tort Claims Act and arises from the

personal injuries Plaintiff Ow sustained in a vehicle accident on June 24, 2014, at the

Oakland International Airport. At the time of the accident, Ow was participating in a

training drill at the Airport. The drill called for the responding firefighters to travel from 

their station northbound on taxiway “Bravo” to the intersection of taxiway “Bravo 1” 

where they would make a right turn to the ramp of the Oakland Maintenance Center 

(OMC). (Deposition of Richard “Pete” Burgess, hereinafter “Burgess Depo.,” attached to 

the concurrently filed Declaration of Debra Fowler (Fowler Decl.) as Exhibit A, at 55:22-

56:3.) Three of the responders who were approximately 32 seconds ahead of Ow

negotiated the route without incident. See, Id. When Ow made the same turn onto 

taxiway Bravo 1, however, he rolled the firetruck he was driving. Shortly before the 

rollover, a jet on the north side of the airport that had been taxiing southbound on Bravo 

on the North field slowed and stopped roughly 200 feet on the northeast side of the
UNITED STATES’ MOTION TO PRECLUDE CASE NO. 3:17-CV-00733-SK

TESTIMONY OF RICHARD BURGESS

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Bravo/Bravo 1 intersection.

1

 Plaintiffs’ Complaint alleges that federally-employed air 

traffic controllers negligently allowed the jet to enter the area of the drill, failed to warn 

Ow about the jet, and that the mere presence of the jet required Ow to take evasive action 

to avoid it, which caused the accident. 

The United States denies all allegations of negligence. For the purposes of this 

motion, however, a determination of whether the controllers breached any duty of care is 

not material. At issue here is whether Plaintiffs’ air traffic control expert, Richard “Pete”

Burgess, can offer opinions that exceed his area of his expertise. Burgess seeks to offer 

his opinion about why Ow turned his vehicle – effectively testifying about Ow’s state of 

mind to opine that Ow turned the vehicle to avoid the jet. 

Burgess’ opinions about causation are unreliable, irrelevant, and beyond the scope 

of his expertise. He has no background, training, or experience as an Aircraft Rescue 

Firefighter (ARFF), and has never driven an ARFF vehicle. He is not an accident 

reconstruction expert and he has not even reviewed a reconstruction of this accident. 

Accordingly, the United States respectfully requests that this Court exclude Burgess’ 

improper causation testimony under Federal Rule of Evidence 702 and Daubert v. 

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

II. LEGAL STANDARD

The admissibility of expert testimony is governed by Federal Rule of Evidence 702. 

 

1

 The Oakland airport complex is made up of three runways on the “North” field and one

runway on the “South” field. 
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TESTIMONY OF RICHARD BURGESS

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When evaluating whether an individual is qualified to render opinions on a particular 

subject the trial court should look to the purported expert’s “knowledge, skill, experience, 

training, or education.” Fed. R. Evid. 702. 

Rule 702 provides that a qualified expert may testify if the expert’s “knowledge 

will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. 

R. Evid. 702(a). In other words, the testimony must be relevant. Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993). The expert’s testimony must also be 

reliable. See id. at 590. To ensure reliability, the expert testimony must relate to 

scientific, technical, or other specialized knowledge. See id. The testimony cannot be 

based on unsubstantiated speculation or subjective beliefs. See id. The trial judge, acting 

as the gatekeeper, has a special obligation to ensure that all expert testimony is both 

relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

“Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the 

pertinent inquiry as a precondition to admissibility.” Daubert, 509 U.S. at 591-92. “The 

adjective ‘scientific’ implies a grounding in the methods and procedures of science.” Id.

A. Burgess’s Opinions Are Unreliable and Outside the Scope of his 

Qualifications. 

Burgess’ background is in air traffic control. He retired from the Federal Aviation 

Administration (FAA) in 1994. His assignment for this case was to formulate opinions 

strictly related to air traffic control and nothing outside of that area. (Burgess Depo. at

7:25-8:4.) Burgess is not an accident reconstruction expert and he has never had any 

training as an ARFF driver. (Burgess Depo. at 42:20-43:1.) He has never testified as an 
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TESTIMONY OF RICHARD BURGESS

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expert on vehicle rollovers or as a human factors expert. (Burgess Depo. at 44:3-7.) 

Despite his lack of qualifications to do so, Burgess opines that Ow turned at the 

intersection of taxiway Bravo and Bravo 1 to avoid the aircraft that was holding short on 

the north side of that intersection. He faults air traffic controllers for not instructing the 

aircraft to stop further from the intersection and/or advising the ARFF drivers that the jet 

“was going to stop before it got to taxiway B-1.” (Expert Report of Burgess, hereinafter 

“Burgess Rep.,” attached to Fowler Decl. as Exhibit B, at ¶¶ 4-5.) These opinions – that 

alleged air traffic control failures “caused” Ow’s vehicle to roll over – are conclusory and 

not based on Burgess’s background or expertise in the field of air traffic control. His report 

does not explain the basis for such opinions. 

When asked about the basis at his deposition, Burgess’s responses consisted entirely 

of conjecture:

Q. Okay. Now I’m going to go back to my question which was how 

[would] Mr. Brown stopping the aircraft at the bridge have avoided 

this accident?

A. It would eliminate the conflict.

Q. Okay. How would that have avoided the accident?

A. It would eliminate a head-on situation between rescue vehicle and an 

aircraft which were both moving.

Q. How would that have avoided the accident?

A. The rescue vehicles could have concentrated on what the simulated 

alert was about to get to the OMC.

Q. How do you know what Mr. Ow was concentrating on?

A. I mentioned that before I have no idea they know what their mission 

was and they – I can’t speak for him and he doesn’t have any recall 

because of his injuries.

(Burgess Depo. at 86:24-87:14). Burgess later testified that “anything that involves Mr. 

Ow what he did or didn’t do would be speculation.” (Burgess Depo. at 90:13-15.) 
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TESTIMONY OF RICHARD BURGESS

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The drill being conducted at the time of the accident required the ARFF personnel to 

leave the station, proceed northbound on taxiway Bravo, and turn right on taxiway Bravo 1 

into the OMC. (Burgess Dep. 27:18-28:9.) Three of the ARFF drivers traveled the route 

without incident. (Burgess Depo. at 55:22-56:3.) To make any sense out of Burgess’s

opinion that Ow turned to avoid the aircraft, one must also assume that Ow was unaware 

that the aircraft would be holding short of the intersection where he would be turning (and 

thus would never be in conflict with his route). Burgess testified, however, that he does not 

know whether Ow heard the pilots report that they were holding short, whether Ow heard 

the controller acknowledging and instructing them to continue holding short, and/or

whether Ow heard the pilots acknowledging, again, that they were holding short of Bravo 

1. When asked if Ow may have known that the pilots were going to stop, Burgess stated 

“that’s a guess” and that “anything is possible.” (Burgess Dep. 37:9-38:8.) He admitted 

that he doesn’t know if Ow knew the aircraft was going to stop. (Burgess Depo. at 78:19-

21.) 

Burgess agreed that we do not know what Ow heard, saw, thought or knew before 

and during the accident. (Burgess Depo. at 97:13-19, 98:10-99:24.) It is impossible, then, 

to know whether Ow would have operated his vehicle any differently if the jet stopped 

further from the intersection or if the tower had made a separate announcement that the jet 

was holding short specifically for the drill. Burgess cannot provide expert testimony on 

this subject; all he can do is guess. This type of speculative testimony is inherently 

unreliable. Ollier v. Sweetwater Union High Sch. Dist., 768 F. d 843, 861 (9th Cir. 2014). 

Therefore, Burgess’s speculation-based opinions about the cause of the accident should be
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TESTIMONY OF RICHARD BURGESS

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excluded. 

B. Burgess’s Opinion About Why Ow Turned Right on Bravo 1 Is 

Speculative and Will Not Assist the Court. 

Burgess’ opinion about why Ow turned right on Bravo is speculative and will not 

assist this Court. Expert testimony about state of mind is “impermissible.” In Rosuvastatin 

Calcium Patent Litig., No. 07-805, 2009 WL 4800702, at *8 (D. Del. Dec. 11, 2009) 

(“Generally, expert witnesses are not permitted to testify regarding ‘intent, motive, or state 

of mind, or evidence by which such state of mind may be inferred’”); In re Rezulin Prods. 

Liab.. Litig., 309 F. Supp. 2d 531, 547 (S.D.N.Y. 2004) (“Inferences about the intent or 

motive of parties or others lie outside the bounds of expert testimony.”).

In Missouri, a district court excluded testimony from an aviation expert about what 

the pilots might have “felt” or “forgot.” Johnson v. Avco Corp., 702 F. Supp. 2d 1093, 

1108-09 (E.D. Mo. 2010). The court ruled that such testimony merely speculated about 

possibilities and was not based on any scientific basis. Id. A district court in Florida 

likewise granted a motion to strike testimony where an aviation expert opined about 

whether a pilot felt pressured to land. King v. Cessna, No. 03–20482–CIV, 2010 WL 

1980861, *6-7 (S.D. Fla. May 18, 2010). The court found that the expert was essentially 

speculating as to the pilot’s state of mind, which was not scientific. Id. Similarly here, 

Burgess opines that Ow turned to avoid or yield to the aircraft, which is non-scientific 

speculation about Ow’s state of mind. 

Burgess did not attempt to reconstruct the accident nor has he seen a reconstruction 

of the accident. (Burgess Depo. at 20:20-21:13.) When asked the basis for his conclusion 
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that Ow turned to avoid the aircraft, Burgess testified that his opinion is based solely on the 

security video and the ARFF standard procedures.2 (Burgess Depo. at 92:3-93:9.) Yet

Burgess has no background or training as an ARFF driver. Even assuming Ow was 

attempting to avoid or yield to the aircraft, Burgess never sought to determine whether Ow 

could have simply stopped, pulled over, or proceeded straight past the plane. (Burgess 

Depo. at 94:9-17.) Burgess made no attempt to determine whether Ow could have taken 

any other actions if he really perceived the need to yield to the holding aircraft. Burgess 

made no attempt to determine whether Ow’s action or inactions caused or contributed to 

the rollover. He testified that he did not even examine that possibility. (Burgess Depo. at

47:16-21.)

Burgess’s report states that “[a]t approximately 1840:32, Rescue 4 turns to avoid 

Executive Jet 682, on C001” and “[t]he requirements in the Oakland ATCT and Fire 

Department Letter of Agreement required Rescue 4 to yield to all aircraft and resulted in 

the truck turning over on its left side.” (Burgess Rep. at 5, ¶11). This opinion – that Ow 

turned on Bravo 1 to avoid or yield to the jet – is speculative and unhelpful. Burgess’s

only causal link between the controllers’ actions and the accident is this unsupported 

opinion. He admits that he does not know if Ow saw the aircraft when he came out of the 

ARFF station or anywhere along the route; doesn’t know how fast Ow was driving; doesn’t 

know whether Ow had any distractions in his truck and doesn’t know whether Ow was 

driving his assigned vehicle. (Burgess Depo. at 84:14-85:21.) He further testified that he 

 

2 Notably, none of Plaintiffs’ other experts have expressed an opinion that Ow’s turn was an 

evasive action.
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TESTIMONY OF RICHARD BURGESS

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doesn’t know if Ow was monitoring his radio (Burgess Depo. at 90:2-18) or whether he 

would have turned in the same place if the aircraft had not been present (Burgess Depo. at

93:10-21). When asked if it is possible that Ow was driving to the OMC as planned and 

that he was simply driving too fast, Burgess answered that is “definitely speculation.” 

(Burgess Depo. at 100:2-10.)

Burgess admitted that he does know why Ow turned: 

Q. And wouldn’t you agree that whether the truck turned to avoid the 

aircraft is speculation?

A. As – excuse me as I said it’s my opinion based on seeing the aircraft 

eleven seconds before and seeing the aircraft turn so it’s my opinion.

Q. You don't know why Mr. Ow turned?

A. No, like I say it’s my opinion he turned to avoid the airplane to 

eliminate a head-on situation.

Q. But you don't know why he turned?

A. No. 

(Burgess Depo.at 106:7-10). When asked again to admit that he does not know why Ow 

turned on Bravo 1, Burgess conceded that “It would be speculation.” (Burgess Depo. at 

111:22-23.) Such speculative evidence is unreliable. See Ollier v. Sweetwater Union High 

Sch. Dist., 768 F. d 843, 861 (9th Cir. 2014). Even if Burgess’s opinion about why Ow 

turned right was deemed reliable, the opinion is not helpful to the trier of fact because it 

only offers Burgess’s untrained thoughts on the video evidence.

The video evidence is the sole basis for Burgess’s opinion. He testified “I see the 

truck turning and the jet’s in view.” (Burgess Depo. at 96:19-23.) Burgess admits that he

does not know where the video camera is located or how far it is from the accident 

intersection. (Burgess Depo. at 58:18-24.) Therefore, the conclusions Burgess drew from 

watching the video do not arise from any specialized knowledge. Instead, his conclusions
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stem from his personal opinions of what is depicted in the video. The Court can also watch 

the video and see what it depicts; Burgess’s opinions will not help the trier of fact because 

he has no special expertise on the subject of why the truck turned. As a matter of law 

under Rule 702, personal opinion testimony is inadmissible. See Ollier, 768 F. 3d at 861. 

2014). After watching the video and hearing qualified testimony about the accident, the 

Court will make the determination on causation. Burgess’s lay opinions are irrelevant and 

should not be permitted at trial.

III. CONCLUSION

For the foregoing reasons, the United States respectfully requests that Burgess’s

opinions as to causation be excluded from trial. 

Dated: July 23, 2018 Respectfully submitted,

CHAD A. READLER

Acting Assistant Attorney General

ALEX G. TSE

Acting United States Attorney

/s/Debra D. Fowler

DEBRA D.FOWLER

Senior Aviation Counsel

debra.fowler@usdoj.gov

JOSHUA H. JOSEPH

joshua.h.joseph@usdoj.gov

Torts Branch, Civil Division

U.S. Department of Justice

Post Office Box 14271

Washington, DC 20044-4271

Tel: (202) 616-4025/30

Fax: (202) 616-4002

 Attorneys for United States
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CERTIFICATE OF SERVICE

I certify that on July 23, 2018, the foregoing was electronically filed with the 

Clerk of the Court using the CM/ECF system, which will serve an electronic copy 

to the following counsel of record:

Steven J. Bell, Esq.

Ross J. Psyhogios, Esq.

JONES CLIFFORD, LLP

1390 Market Street, Suite 1200

San Francisco, CA 94102

sbell@jonesclifford.com

rpsyhogios@jonesclifford.com

/s/ Debra D. Fowler

Attorney for Defendant 

 United States of America