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Melissa Jenks, Individually and As G/N/F of Roderick Jenks v. New Hampshire Motor Speedway

February 8, 2012

MELISSA JENKS, INDIVIDUALLY AND AS G/N/F OF RODERICK JENKS
v.
NEW HAMPSHIRE MOTOR SPEEDWAY, ET AL.
v.
TEXTRON FINANCIAL, INC. AND A.B.L., INC.



The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge

Opinion No. 2012 DNH 039

ORDER

Melissa Jenks, as the guardian and next friend of her husband, Roderick Jenks, and on her own behalf, sued New Hampshire Motor Speedway, Breann Thompson, and Textron, Inc., alleging negligence claims against Thompson and the Speedway and product liability claims against Textron. Textron brought cross claims against the Speedway and Thompson for contribution and indemnification. Textron moves to limit the testimony of Jenks's expert witness, William Vigilante. Jenks, the Speedway, and Thompson object to the motion.

Background

Roderick Jenks worked at the New Hampshire Motor Speedway on July 16, 2006, as part of a program in which the Speedway donates money to a charity in exchange for work done by individuals who volunteer to participate. Jenks, along with several others, was assigned to provide security in the track infield. After receiving their assignments, Jenks walked with a fellow worker, Marc MacAlpine, toward their assigned area.

Breann Thompson, a Speedway employee, drove by Jenks and MacAlpine in a golf car. MacAlpine asked Thompson to give them a ride, and she agreed. MacAlpine got into the passenger seat next to Thompson, and Jenks rode on the back of the car in an area for carrying golf bags. When Thompson swerved, Jenks fell off the car, hit his head, and was seriously injured.

The golf car driven by Thompson was an E-Z-GO model that was manufactured by Textron. A.B.L.. Inc. leased the golf car, along with many others, to the Speedway for the racing event.

Jenks brought negligence claims against the Speedway and Thompson and product liability claims against Textron. Textron brought cross claims against the Speedway and Thompson for contribution and indemnification.

Discussion

Textron seeks to preclude the opinion and testimony of Jenks's expert, Dr. William Vigilante, on the ground that they are not based on reliable methods and principles as required under Federal Rule of Evidence 702. Textron also contends that Vigilante's opinions are speculative and invade the province of the jury. The Speedway, Thompson, and Jenks object to Textron's motion and contend that Vigilante's opinions are admissible.

"The touchstone for the admission of expert testimony in federal court litigation is Federal Rule of Evidence 702." Crowe

v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007). Under that rule, [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 (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. As the structure of the rule suggests, before the factfinder in a case can consider testimony over an adverse party's objection, the court serves as a gatekeeper, "ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

Although the proponent of an expert witness bears the burden of proving the admissibility of his opinion, see Daubert, 509 U.S. at 592, the burden is not especially onerous, because "Rule 702 has been interpreted liberally in favor of the admission of expert testimony," Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006). Thus, so long as "an expert's scientific testimony rests upon 'good grounds, based on what is known,'" Rule 702 does "not require that [the proponent] carry the burden of proving to the judge that the expert's assessment of ...


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