Where Expert Testimony Depends on Disputed Factual Testimony, Proper Procedure Is to Introduce the Disputed Witness Testimony First and then Frame the Expert Questions as Hypotheticals

From Evans v. Washington Met. Area Transit Auth., 2009 U.S. Dist. LEXIS 117608 (D.D.C. Dec. 16, 2009):

WMATA agrees that Mr. Stopper is an expert in accident reconstruction and does not challenge his background, education or experience. Rather, it asserts that Mr. Stopper relied solely upon the two pedestrians whose versions of events could not be physically correct. At the Daubert hearing, Mr. Stopper explained that the pedestrians gave a description of the motorcycle hitting the automobile and projecting Mr. Evans into the roadway in much the same way as did a driver immediately behind the motorcycle, who clearly saw it. From this, he deduced that the pedestrians could actually see the event and that the bus was not blocking their view. He therefore concluded that the bus driver had the opportunity to avoid running over Mr. Evans. Mr. Stopper said he considered all the witnesses who gave statements or were deposed, but only the pedestrians place the bus potentially far enough away from where Mr. Evans landed in the roadway for the bus driver to have avoided the accident.

Mr. Stopper's expert report contains his opinions that: (1) "it is most likely the bus was still north of the collision site when Mr. Evans was ejected and came to rest in the traffic lanes;" (2) the bus operator "would have first observed the collision of the motorcycle into the rear of the Subaru Outback and the motorcycle operator's ejection from the motorcycle over the top of the automobile;" and the bus operator "should have observed the prone body of Mr. Evans lying in the roadway next to the Subaru from his elevated position in the driver's seat of the Metrobus." *** Further, Mr. Stopper opined that the bus operator "failed to keep a proper lookout and failed in his duty to avoid hazards in the roadway ahead." *** Finally, he concluded that "the accident where [the bus driver] in the WMATA bus ran over Mr. Evans was a preventable accident . . . ." ***

WMATA complains that Mr. Stopper's report provided no analysis of the witnesses' testimonies as they pertained to his conclusions and that he did not scientifically test or account for the bus driver's perception-response times. *** The only basis for Mr. Stopper's opinions reflected in his report is that the sequence of events — rear-end impact, Mr. Evans flung forward of the Subaru, and his being in position for the bus to run over him — could not have happened in the 1.045 to 0.784 seconds it would take for the bus to travel 23 feet (the distance between its front and rear axles). Mr. Stopper does not say how far Mr. Evans was in front of the bus, although he estimates that he was thrown 17-18 feet before he came to rest (that being the length of the Subaru plus two feet). Stopper Report at 5.

WMATA makes two essential complaints about relying on the pedestrian witnesses: first, that one reports that they both walked into the street to aid Mr. Evans before the bus struck him, although no one else observed that and they would have been hit by the bus had they actually gone into the street at that time; and second, from the sidewalk neither witness could possibly have seen the bus tires on the other side of the bus as it ran over Mr. Evans. WMATA argues that their testimony is too incredible to be allowed before the jury and that Mr. Stopper's reliance on it is fatal to his report.

***Mr. Stopper repeatedly explained that his conclusions were based on "a preponderance of the evidence," but that determination is clearly one for the jury to make.

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