Unqualified And Unreliable Expert Testimony In Mountain-Bike Race Case

After mountain bike race collision involving a truck, excluding affidavit by plaintiffs’ expert on standard of care in mountain bike races as neither qualified nor reliable because his experience pertained to racing on a paved surface rather than the open course race involved in Milne ex rel. Hall v. USA Cycling Inc., 575 F.3d 1120 (10th Cir. Aug. 10, 2009) (No. 07-4247)

A recurring problem in assessing expert testimony under FRE 702 involves deciding when a proffered expert’s testimony is qualified (or “expert enough”) for the facts of the case. See, e.g., Determining When An Expert Witness Is “Expert Enough”. While this question may defy any easy answers, a recent case in the Tenth Circuit case again underscores that expertise is a matter that must be assessed within the context of the evidence presented. The panel split and illustrated the illusive nature of trying to ensure that the expertise closely matches the subject at issue in the case.

In the case, plaintiffs brought a diversity negligence and wrongful death action on behalf of bike riders killed or injured in “a tragic accident that occurred during a bicycle race called the ‘Tour of Canyonlands’ near Moab, Utah. During the race, racers collided with an SUV and trailer driving in the opposite direction. One racer was killed, and another was badly injured. The injured rider and the decedent’s mother-in her own capacity and on behalf of her son’s estate-filed suit against the race’s organizers and the entities responsible for promoting and overseeing the race.” Milne, 575 F.3d at 1122.

Significantly, the “Tour of Canyonlands” race (TOC) was different than other types of bike races:

“Although a portion of this race took place on an open road, the race was governed exclusively by the mountain bike racing rules developed by NORBA [National Off-Road Bicycle Association]. These rules differ significantly from road racing rules. For example, road racers must obey a ‘center-line rule,’ and may be disqualified if they cross over the line painted in the middle of the road. Mountain bike racers, on the other hand, will not be disqualified for crossing the center-line. This distinction is based at least in part on the fact that, unlike the roads used for road racing, open-course mountain bike races often take place on dirt roads that do not have a clearly marked center line. Thus, a center-line rule would be difficult, if not impossible, to enforce.”
Milne, 575 F.3d at 1123.

The district judge granted summary judgment for the defendants after striking the plaintiffs’ expert’s second affidavit regarding the standard of care applicable to mountain bike races. The district court found that the proffered expert unqualified to testify as an expert on mountain bike races and in any event, his testimony “would be speculative and not sufficiently reliable” with regard to the standard of care applicable to such races.

The Tenth Circuit found no abuse of discretion in excluding this proffered expert testimony. First, the circuit noted that the proffered expert’s evidence was a substantial part of the plaintiff’s claim that “the race organizers were grossly negligent.” However, the expert “admittedly had no experience in organizing, supervising, or studying mountain bike races and, therefore, was not qualified to offer expert testimony on the standard of care for mountain bike races.”

For example, in his deposition the expert was asked, “‘As a matter of fact-just so we’re clear, you’re not an expert on mountain bike racing ... Is that a fair statement?’ He answered, ‘Yes, it is.’” Because the alleged expert participated in only one or two mountain bike races over 15 years ago, had “never published any articles about bicycle racing of any sort, let alone mountain bike racing,” and based his analysis on his experience “as a police officer, [who] investigated hundreds of vehicle-bicycle collisions,” but not accidents “on a dirt road or in the course of a race,” he was not “even an experienced mountain bike rider,” much less expert on it, the Tenth Circuit concluded. Milne, 575 F.3d at 1133.

The purported expert’s experience and knowledge “was insufficient to qualify him to testify about mountain bike races,” given the unique aspects of mountain bike races. These unique factors included use of different “rules and practices that prevail at mountain bike races-even the on-the-road portion of mountain bike races-[that] are different from the rules and practices that prevail at traditional road races,” such as the fact that mountain bike racing on a dirt road had no center line to separate traffic and therefore no rule against crossing a center line. Milne, 575 F.3d at 1133.

Even had the witness been qualified as an expert, the circuit agreed with the trial court that his proffered testimony was not shown to be sufficiently reliable. Because the proffered expert’s:

“opinions in this case were not based on a study of other similar races, an analysis of precautionary measures used in mountain bike races and the risks and benefits of such measures, or any other empirical or quantitative studies. Instead, he relied almost exclusively on his experience in paved road racing-experience that the district court reasonably determined was inapplicable to the context of mountain bike racing-to form his conclusions about the standard of care that should have been used in this case.”
Milne, 575 F.3d at 1134. As a result, the expert’s “conclusions about the safety precautions that should have been taken in this case are, therefore, mere speculation.” Milne, 575 F.3d at 1134 (citing Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (“It is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.”)).

However, the panel was not united in this conclusion and Circuit Judge Gorsuch did not concur in this analysis. While acknowledging it was questionable whether the plaintiff’s witness was an expert in mountain bike racing, nonetheless the judge noted that the witness did “have substantial experience in organizing and conducting traffic control operations for bicycle racing and similar events-and the adequacy of the defendants’ traffic control operations lie at the heart of this case.” However, the judge concurred in the result because he found that the proffered testimony “doesn’t illuminate the plaintiffs’ gross negligence claim. And a district court is not obliged to entertain evidence, expert or otherwise, irrelevant to the claims before it.” Milne, 575 F.3d at 1135.

The Milne case provides another example of the courts probing the extent of relevant “expertise” to the facts and issue in contention. The circuit’s disposition is similar to that reached by others considering equivalent issues of expertise. See, e.g., United States v. Lee, 502 F.3d 691, 698-99 (7th Cir. 2007) (Defense witness who had an associate degree in police science and worked in law enforcement excluded from testifying as expert because he lacked “experience and training necessary to” explain that partial fingerprint was unsuitable for comparison given that he had “no formalized training or experience in the analysis of fingerprints.”); United States v. Crotteau, 218 F.3d 826, 833 (7th Cir. 2000) (expert testimony excluded from witness who examined surveillance tapes of charged bank robbery and took measurements from which he concluded that the perpetrator was five feet two inches tall, because the witness had only one year of high school, was home-taught and had only a GED, claimed to have trained himself on use of computer software for making the measurements and had only two years experience on computers; in addition the witness admitted that he did not consider himself an expert and that he relied on tapes of poor quality, and while he visited the bank and took measurements, but did not measure the dimensions of the teller’s counter where the robbery occurred).

Federal Rules of Evidence