Accordingly, the Court denies plaintiff's third motion in limine (doc. # 50) without prejudice.
In so doing, the Court expresses no view as to what weight, if any, will be given to Mr. Rodgers’
opinion testimony.

Il.

Plaintiff's Exhibit 16 is adocument entitled, “On-The-Job Safety Review/Analysis” (“JSA”),
that is a pre-printed form describing how to safely perform a particular job within postal service.
The postal service apparently uses this form to provide safety information to employees after an
accident occurs. Plaintiff's Exhibit 16 was produced by the United States during discovery as a
document that related to the investigation of the collision involving Mr. Hoover. However,
testimony by Ms. Griffin, as well as by another postal service employee, has raised a question as to
whether Plaintiff's Exhibit 16 is in fact the JSA that was prepared in connection with this accident
~ as does the face of plaintiff's Exhibit 16, which does not appear to make any reference to this
accident. This has led plaintiff to argue that there was a different JSA prepared by the United States
that pertained to this specific accident, but that it has been concealed because it has statements or
other information damaging to the defense.

Defendants’ first motion in limine seeks to bar admission of Plaintiff's Proposed Exhibit 16,
and testimony by Donna Griffin about it, as improper evidence of subsequent remedial measures
barred by Fed. R. Evid. 407, and as unduly prejudicial, confusing, or a waste of time under Fed. R.
Evid. 403. We are not persuaded by either of those arguments.

Plaintiffs Exhibit 16 is a preprinted form that does not appear to contain any analysis of why
or how the specific collision here occurred, much less any suggested changes in procedures to

prevent its reoccurrence. Moreover, contrary to the United States’ argument, an evaluation of how



whether the other requisites of Rule 702 have been met, the Court is mindful that the proponent of
the proposed expert testimony — here, the United States — has the burden of proving that the opinion
testimony is admissible. Bradley v. Brown, 852 F. Supp. 690, 697 (N.D. Ind.), aff'd, 42 F.3d 434
(7" Cir. 1994). However, we are also mindful that “the trial court’s role as gatekeeper is not
intended to serve as a replacement for the adversary system.” United States v. 14.3 Acres of Land
Situated in LeFloure, County, Mississippi, 80 F.3d 1074, 1078 (5" Cir. 1996). As recognized in
Daubert, “[v}igorous 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.” 509 U.S. at 595. Thus, it is not surprising that the advisory comments to the 2000
amendments to Rule 702 noted that “[a] review of the case law after Daubert shows that the rejection
of expert testimony is the exception rather than the rule.” Advisory Committee Comments to the
2000 Amendments to Rule 702.

In this case, questions concerning the assumptions (or extrapolations) made by Mr. Rodgers,
and the computer program he used, strike the Court as fit subjects for cross-examination that will
allow the Court to determine what weight ~ if any — to give to Mr. Rodgers’ opinions. Full
examination of Mr. Rodgers on these points, and perhaps others, will allow the Court to be better
informed when making that decision. In any event, given that this case will proceed as a bench trial,
the Court sees little in the way of efficiency to be gained by holding a pre-trial hearing to develop
that evidentiary record, and no prejudice that would result from the Court hearing that evidence at

trial rather than before trial.


an accident occurred is not inadmissible under Rule 407; at most, what the Rule excludes is evidence
of subsequent remedial measures resulting from the evaluation of the accident. And even then, the
Rule excludes subsequent remedial measures only when offered to Prove “negligence, culpable
conduct, a defect in a product, a defect in a product’s design, or a need for warming or instruction.”
Fed. R. Evid. 407. The Rule goes on to state that subsequent remedial measures are not excluded
when offered for other relevant purposes. Here, there is no evidence that plaintiff seeks to offer
Plaintiff's Exhibit 16 for a purpose prohibited by Rule 407. Thus, Rule 407 does not warrant
excluding the exhibit or testimony about it.

We also failed to see how the evidence that is the subject of this motion would run afoul of
Rule 403. Plaintiff's theory is that the government has produced a JSA that has nothing to do with
this accident, instead of one that was prepared and that does relate to this accident. From this
premise, plaintiff argues that the Court could infer that the United States failed to produce the correct
document because it contained information damaging to its case. If plaintiff could prove that
premise (and we express no view as to whether the plaintiff can do so), the evidence might have
probative value, See Empire Gas Corp. v. American Bakeries Co., 646 F. Supp. 269, 274 (N.D. Ill.
1986) (“wrongdoing by [a] party in connection with his case, amounting to an obstruction of justice
is also commonly regarded as an admission by conduct”). In that event, the probative value of that
evidence certainly would not be “substantially outweighed by the danger of unfair prejudice,” which
is what Rule 403 requires for exclusion — any “prejudice” resulting from evidence that a party
purposefully concealed relevant documents would be entirely fair. Nor would this evidence be
confusing, or constitute a waste of time. Accordingly, the government’s first motion in limine is

denied.


Minute Onder Form (06/97)

United States District Court, Northern District of IHinois

lame ju 4 ‘i Sitting Judge if Othe
N me vegies Jat Sidney I. Schenkier thea alteed Judge
CASE NUMBER 01 C 2372 DATE 8/27/2003
CASE Larry Hoover vs. Arthur N. Delaney, Jr., et al.
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oOo Filed motion of [ use listing in “Motion” box above.]

(2) ia} Brief in support of motion due

(3) Oo Answer brief to motion due__. Reply to answer briefdue___.

(4) Oo Ruling/Hearing on__setfor__at

(5) a Status hearing[held/continued to] [set for/re-set for]on__—_—setfor__at

(() Oo Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—sat__—.

(7) oO Trial(set for/re-set for]on__ at

(8) o [Bench/Jury trial] [Hearing] held/continuedto__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OFRCP4(m) O Local Rule 41.1 OOFRCP4i(a\(1) [)FRCP41(a)(2).

qo) = [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. Plaintiff's third

motion in limine [doc. # 50] and defendants’ first motion in limine [doc. #51] are denied.

ay 8 [For further detail see order attached to the original minute order.}
No notices required, advised in open court.
No notices required.
ov | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form. Lynod LOLS “SN
Copy to judge/magistrate judge. wu319
L~ 65 :Z|Wd 82 ON £0
courtroom
me cms ONL dHIOG $05 UIs
Date/time réceWJedhin
central Clerk's Office



CONCLUSION
For the foregoing reasons, plaintiff’s third motion in limine (doc. # 50) and defendants’ first
motion in limine (doc. # 51) are denied.

ENTER:

MOLI XQ

SIDNEY L SGHENKIER
United States Magistrate Judge

Dated: August 27, 2003



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LARRY HOOVER, )
)
Plaintiff, )
) No. 01 C 2372
vs. )
) Magistrate Judge Schenkier
ARTHUR N. DELANEY, JR., and the )
UNITED STATES OF AMERICA, )
)
Defendants. ) yy)
“iy
G thes
MEMORANDUM OPINION AND ORDER Co ®
0,50

In this claim brought under Federal Tort Claims Act, 28 U.S.C. § 1346, plaintiff, a UniteX@>
Airlines employee, seeks damages as a result of a collision that occurred on April 9, 1999 between
a refueling truck that he was driving and a Ford Windstar minivan driven by Arthur Delaney, an
employee of the United States Postal Service. The bench trial of this case is scheduled to begin on
September 22, 2003 (a third-party claim brought by the United States against United Airlines has
been stayed as a result of United’s pending bankruptcy proceeding, and by agreement has been
severed so that the claim by Mr. Hoover may proceed to trial). By consent of all the parties and
pursuant to 28 U.S.C. § 636(c), the case has been assigned to this Court for all proceedings,
including the entry of final judgment (doc. ## 12-15).

Pending before the Court are two motions in limine: plaintiffs third motion in limine (doc.
# 50), and defendant’s first motion in limine (doc. # 51). For the following reasons, both motions

in limine are denied.'

‘In an earlier ruling, this Court granted without objection plaintiff's motions in limine prohibiting evidence or
argument relating to payment of plaintiff's medical expenses by insurance or other collateral sources; plaintiff's failure
to use a seat belt at the time of the collision; and expert opinion not contained in certain expert reports or depositions

SY



I
In his third motion in limine, plaintiff seeks to bar defendant’s expert, Michael W. Rodgers,
from providing opinion testimony concerning the severity of the collision or the manner in which
it occurred. Plaintiff does not challenge Mr. Rodgers’ qualifications; rather, plaintiff argues that
Mr. Rodgers’ opinions are inadmissible because they are not sufficiently grounded on facts or data
that would allow Mr. Rodgers to reach the opinions he would express. In particular, the plaintiff
argues that Mr. Rodgers cannot express an opinion about the collision speed of the two vehicles,
because he lacks specific knowledge of the weight distribution, size and extent of damage to the
United Airlines’ fuel truck; and, for the same reasons, that he cannot reliably opine about the post-
impact movements of the vehicles. The plaintiff also complains that Mr. Rodgers has not provided
details about the computer program that he used to perform certain calculations.
As amended in 2000 in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), Rule 702 of the Federal Rules of Evidence provides as follows:

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.
Fed. R. Evid. 702. In this case, there is no question that the offered opinion testimony would be

relevant to certain facts in issue (the speed at the time of collision and the post-collision movement

of the fuel truck driven by the plaintiff), and that Mr. Rodgers is qualified as an expert. In deciding

(doc. # 49),