IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`CIVIL ACTION NO.
`3:18-CV-00629
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`JURY DEMAND
`JUDGE CAMPBELL
`MAGISTRATE JUDGE BROWN
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`WENDY NICHOLS and
`JAMES NICHOLS,
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`Plaintiffs,
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`v.
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`KOFI MANU
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`Defendant.
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`PLAINTIFFS’ MOTION IN LIMINE # 3 TO EXCLUDE TESTIMONY OF
`DEFENSE EXPERT WITNESS TODD HUTCHISON
`AND TO EXCLUDE COLLISION ANIMATIONS
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`Plaintiffs move the Court to exclude certain testimony of Todd Hutchison, who has been
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`identified as an expert witness by Defendant. A copy of Mr. Hutchison’s expert report is
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`attached here as Exhibit A. As shown below, Mr. Hutchison’s proffered opinions are not
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`reliable, are not based on any scientific or engineering principles, and present impermissible
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`legal conclusions. In addition, Plaintiffs move to exclude the video animations prepared by Mr.
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`Hutchison because they are not reliable and unfairly prejudicial.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`This case arises from a motor vehicle collision that occurred on September 20, 2017 near
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`the merge of Interstates I-40 and I-24 near downtown Nashville. At that time, Plaintiffs Wendy
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`Nichols and James Nichols were in the back seat of a Nissan Versa driven by an Uber driver,
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`Defendant Kofi Manu. Following the merge of I-40 and I-24, Mr. Manu’s vehicle collided with
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`a semi truck driven by James Kovac. The collision caused Mr. Manu’s Nissan Versa to spin out
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`at highway speeds across several lanes of traffic and crash into the median between the
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`eastbound and westbound lanes. Mrs. Nichols sustained serious injuries to her back in the
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`collision, eventually requiring surgery and leaving her with permanent injuries and disability.
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`In their original Complaint, Plaintiffs alleged that both Defendant Kovac (and,
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`vicariously, his employer Gateway Transportation) and Defendant Kofi Manu were responsible
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`for the collision. Mr. Kovac and Gateway Transportation have since been dropped from this
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`case. At trial, Plaintiffs will contend that Mr. Manu is responsible for the collision and Plaintiffs
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`will bear the burden of proof to establish his liability for the collision and Plaintiff Wendy
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`Nichols’ resulting injuries. Mr. Manu, conversely, contends that Mr. Kovac was at fault and
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`bears the burden of proving any fault that the jury might allocate to Mr. Kovac.
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`In his videotaped deposition, which Plaintiffs will present at trial, Mr. Kovac testifies as
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`follows:
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`Q. Can you just tell the jury in your own words what -- what happened that led up
`to this collision we're here about.
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`A. I'm not 100 percent certain. I just know it was about eleven o'clock at night. I
`was wanting to merge over and I signalled my blinker for at least ten seconds
`prior. I did not see a car. I checked all my mirrors properly; did not see a vehicle
`anywhere in the vicinity. I did not merge over yet.
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`I was starting to merge, so I was probably right over the line between the lanes.
`And then the next thing I see is a vehicle sitting in front of my car and, I mean --
`you know, for a brief second, and then the vehicle kind of went off to the other
`side of the truck.
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`Q. When you say, just as a point of clarification, you were over the line, meaning
`you were across the line or on top of the line?
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`A. I was certain on top of the line.
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`Q. Okay. So you had not crossed, in fact. You had begun to merge but had not
`crossed, in fact, into the other lane?
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`A. That is correct.
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`2
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`…
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`Q. Okay. Do you believe that this other car, then, had come towards your lane at
`the moment of impact?
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`A. He had to be on top of the line as well, yes.
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`(Deposition of James Kovac, at 10-11, attached as Exhibit B).
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`Q. Mr. Kovac, I have just a few follow-up questions for you.
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`A. Okay.
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`Q. You had indicated on examination from Ms. Webb that prior to beginning to
`move over at all into the adjacent lane you checked your three mirrors?
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`A. Yes.
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`Q. Okay. What are the three mirrors in a tractor-trailer?
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`A. Well, you got your front spot mirror on the hood and then you got your two --
`then you got your side mirror with another spot mirror on the side mirror, too.
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`Q. Okay. That was my point of confusion. So the side mirror actually has two
`mirrors on it?
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`A. That's correct.
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`Q. Okay. Now, in addition to checking your mirrors, you also turned your turn
`signal on, correct?
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`A. Yes.
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`Q. Okay. And the reason for turning the turn signal on is to alert anybody else that
`you have an intention to move over?
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`A. That's correct.
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`Q. And, again, just to clarify, you began -- your intention was to merge into the
`other lane, but at no point did your truck move across that dotted lane line in the
`adjacent lane?
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`MS. WEBB: Object to the form.
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`THE WITNESS: No, sir.
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`3
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`Q. (By Mr. Hagy) It did not move into the adjacent lane?
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`A. I don't -- I don't believe it did, no.
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`(Kovac Depo., at 61-63). While Mr. Kovac has testified that he did not cross into the adjacent
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`lane, Mr. Manu, not surprisingly, is expected to testify that Mr. Kovac’s truck did in fact cross
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`into his lane and hit him there. There is simply a conflict in the two witnesses’ recollection
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`and/or perception of the events. Plaintiffs, for their part, were back seat passengers and do not
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`know whether Mr. Kovac, Mr. Manu, or both, moved out of their respective lanes of travel.1
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`This said, and importantly, where the collision between Mr. Manu and Mr. Kovac
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`occurred is not conclusive in assessing liability for the collision. Plaintiffs contend that Mr.
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`Manu is responsible for the collision even if the jury were to conclude that Mr. Kovac’s truck
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`had moved into Mr. Manu’s lane of travel. In particular, Plaintiffs allege that Mr. Manu was not
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`paying attention, failed to notice the truck or its blinker, and failed to keep a proper lookout and
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`use due care to avoid an accident and injury to his passengers. The jury will determine the facts
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`and the extent of liability of Mr. Manu based on this Court’s instructions regarding the law.
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`EXPERT REPORT OF TODD HUTCHISON
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`Defendant’s counsel has disclosed the expert report of Todd Hutchison, an “accident
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`reconstructionist” who they plan to call as an expert witness at trial. The report contains several
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`purported opinions which are at issue in this Motion and are copied below:
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`1) The crash occurred in the 3rd lane from the left on I-40 when the front of the
`right side of the Kovac Semi crossed over the dashed center line and impacted
`into the left side of the Manu Nissan. This was determined by the contact damage
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`1 Mr. Hutchison claims in his report that Plaintiffs will testify that the impact occurred in Mr.
`Manu’s lane of travel. This is not correct. Plaintiff Wendy Nichols was texting on her phone at
`the time and has no idea what happened to cause the collision. While Plaintiff James Nichols did
`see the Kovac truck with its blinker on prior to the impact, he did not see the impact and
`therefore does not know and cannot testify as to whether Mr. Kovac’s truck came into their lane
`or whether Mr. Manu moved left and hit the Kovac truck.
`4
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`on each vehicle and by the depositions testimony of plaintiff’s (sic) James and
`Wendy Nichols and the declaration of defendant Kofi Manu. Mr. Kovac said that
`he didn’t see the Manu vehicle before the crash and said that he had his right tires
`on the line (the dash lines to his right) when he felt the collision.
`…
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`7) Based on plaintiff’s testimony that the Manu Nissan was in the 3rd lane from
`the left and was not exceeding the speed limit before or when the crash occurred
`and only went out of control when the Kovac Semi turned into its lane it is my
`opinion that Mr. Manu was not at fault in the cause of this accident.
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`8) Since neither Mr. Manu nor Mr. Kovac saw the other vehicle before the
`collision Mr. Manu had to be located either in the blind spot location of the Kovac
`Semi until the impact occurred or was paying attention to the roadway in front of
`him and not looking out his vehicle to the left and not seeing the Kovac Semi with
`the turn signal on was not responsible for having to move over but the
`responsibility was with Mr. Kovac in making sure that it was clear before
`changing lanes to his right. Even if Mr. Manu did see the turn signal to his left
`Mr. Manu also indicated that there was a vehicle to his right and with this the
`case, he would have had to make sure he could safely change lanes before leaving
`his lane.
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`In summary, based on the above it is my opinion that the crash occurred because
`the Kovac Semi changed lanes into the left side of the Manu Nissan without
`making sure that it was clear before doing so. It is my opinion that Kofi Manu
`was not at fault in the cause of the accident.
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`(Hutchison Report, Exhibit A, at 2-3).
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`ARGUMENT AND CITATION OF AUTHORITIES
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`I.
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`DEFENDANT’S EXPERT WITNESS TODD HUTCHISON MAY NOT TESTIFY
`THAT DEFENDANT KOFI MANU WAS “NOT AT FAULT”, “NOT
`RESPONSIBLE FOR HAVING TO MOVE OVER”, OR ANY SIMILAR
`OPINION REGARDING “NEGLIGENCE” OR “REASONABLENESS”
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`In his expert report, Todd Hutchison specifically offers the opinion that “it is my opinion
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`that Mr. Manu was not at fault in the cause of this accident.” (Report, ¶ 7). He similarly testifies
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`that Mr. Manu “was not responsible for having to move over but the responsibility was with Mr.
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`Kovac in making sure that it was clear before changing lanes to his right.” (Report, ¶ 8).
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`Plaintiffs expect that at trial Mr. Hutchison may attempt to offer such opinions or similar
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`opinions such as that “Mr. Manu was not negligent” or that “Mr. Manu acted reasonably and
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`with due care.” Any such opinions are impermissible legal conclusions and must be excluded.
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`The Sixth Circuit has made clear that experts cannot offer testimony on legal conclusions.
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`Caudill Seed and Warehouse Co. v. Jarrow Formulas, Inc., 2019 WL 1435934, at *3 (W.D.Ky.
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`Mar. 29, 2019), citing Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985). “While
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`an opinion is not objectionable just because it embraces an ultimate issue, ‘the issue embraced
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`must be a factual one.’” Id. quoting Berry v City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994).
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`Further, “experts must not ‘merely tell the jury what result to reach.’” Crabbs v. Pitts, 2018 WL
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`5262397, at *6 (S.D.Ohio Oct. 23, 2018); Fed.R.Evid. 704 Advisory Committee’s Note on
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`Proposed Rule. An expert cannot opine whether someone’s conduct was or was not
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`“reasonable.” Id.
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`In Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994), the Sixth Circuit discussed this
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`limitation of expert testimony in detail and adopted a line of reasoning from the “typical”
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`holding of the Second Circuit in Hygh v Jacobs, 961 F.2d 359 (2d. Cir. 1992):
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`This circuit is in accord with other circuits in requiring exclusion of expert
`testimony that expresses a legal conclusion…. Even if a jury were not misled into
`adopting outright a legal conclusion proffered by an expert witness, the testimony
`would remain objectionable by communicating a legal standard – explicit or
`implicit – to the jury. Whereas an expert may be uniquely qualified by experience
`to assist the trier of fact, he is not qualified to compete with the judge in the
`function of instructing the jury…
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`We have held that an expert’s testimony that a defendant was “negligent” should
`not have been allowed.
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`25 F.3d at 1354. The Sixth Circuit then commented that “[i]f the rule were other than as
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`indicated by the Second Circuit, we would soon breed a whole new category of ‘liability experts’
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`whose function would be to tell the jury what result to reach.” Id. Whether Mr. Manu is “at
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`fault” for the collision, or whether he was “responsible” for avoiding the collision, are the exact
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`legal conclusions the jury will be asked to determine based on the facts admitted at trial and after
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`being instructed by the Court as to the appropriate legal standards. Such opinions are
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`impermissible and must be excluded.
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`Mr. Hutchison’s opinions that Defendant Manu was not “at fault” and “not responsible”
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`are also likely to confuse the jury because they rely on an improper understanding of the
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`applicable legal standards. Every driver has a duty to keep a proper lookout, to see and be aware
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`of what is in that driver’s view, and to use reasonable care to avoid an accident. 8 Tenn. Prac.
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`Pattern Jury Instr. T.P.I.-Civil 5.01 (2019 ed.). Similarly, “each driver is charged with the duty
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`to see that which under the facts and circumstances he should have seen by the proper use of his
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`senses” and may be found negligent for “failing to look or in not looking carefully.” Id. It is a
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`basic requirement of due care in the operation of an automobile that the driver keep a reasonably
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`careful lookout for traffic upon the highway commensurate with the dangerous character of the
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`vehicle and the nature of the locality, and to see all that comes within the radius of his line of
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`vision, both in front and to the side. Van Sickel v. Howard, 882 S.W.2d 794 (Tenn. App.
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`1994)(boldface added); see also McElroy v. Sharp, 2001 WL 1180604, at *2 (Tenn.Ct.App. Oct.
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`8, 2001)(a driver “must look not only straight ahead, but laterally, to discover whether there is a
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`danger of collision with the side of his car”). Also, “a person who has the right of way is not
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`excused from using reasonable care to avoid an accident.” 8 Tenn. Prac. Pattern Jury Instr.
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`T.P.I.-Civil 5.02 (2019 ed.). Indeed, Plaintiffs have specifically alleged that Defendant Manu is
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`negligent per se by violation of T.C.A. § 55-8-136(b) which states:
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`Notwithstanding any speed limit or zone in effect at the time, or right-of-way
`rules that may be applicable, every driver of a vehicle shall exercise due care
`by operating the vehicle at a safe speed, by maintaining a safe lookout, by
`keeping the vehicle under proper control and by devoting full time and attention
`to operating the vehicle, under the existing circumstances as necessary in
`order to be able to see and to avoid endangering life, limb or property and to
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`see and avoid colliding with any other vehicle or person…
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`T.C.A. § 55-8-136(b)(boldface added).
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`Mr. Hutchison’s opinions that Mr. Manu is “not at fault” and “not responsible” ignore these
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`applicable legal standards, and thus, in addition to being improper legal conclusions, also contain
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`incorrect statements of the law and are thus likely to confuse the jury and unfairly prejudice the
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`plaintiffs.
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`II. MR. HUTCHISON’S OPINION THAT THE COLLISION OCCURRED IN MR.
`MANU’S LANE OF TRAVEL MUST BE EXCLUDED.
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`In his expert report, Mr. Hutchison opines that “[t]he crash occurred in the 3rd lane from
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`the left on I-40 when the front of the right side of the Kovac Semi crossed over the dashed center
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`line and impacted into the left side of the Manu Nissan.” (Report, ¶ 1). He further opines that
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`“[i]n summary, based on the above it my opinion that the crash occurred because the Kovac
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`Semi changed lanes into the left side of the Manu Nissan without making sure that it was clear
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`before doing so.” (Report, at p. 3). Mr. Hutchison’s “opinion” about the location of the impact is
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`not based on any scientific, technical, or engineering analysis. Instead, the “opinion” is based
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`solely on choosing to favor the testimony of one witness (Defendant Manu) against the testimony
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`of another witness (Mr. Kovac). This is impermissible, does not assist the jury, and improperly
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`judges the credibility of witnesses.
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`In Paragraph 1 of his report, Mr. Hutchison sets forth the entire basis for his opinion that
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`the collision occurred in Mr. Manu’s lane of travel. In particular, the report states that the
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`opinion “was determined by the contact damage on each vehicle and by the deposition testimony
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`of plaintiff’s (sic) James and Wendy Nichols and the declaration of defendant Kofi Manu.” Of
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`course, the “contact damage on each vehicle” simply shows that the front right side of the Kovac
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`truck and the left side of the Manu vehicle made contact. That is undisputed. The only evidence
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`cited for the opinion about where the impact occurred on the roadway is the testimony of
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`Plaintiffs2 and Mr. Manu. Although Mr. Hutchison notes the testimony of Mr. Kovac, he simply
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`ignores it. Noticeably absent from the report is any scientific or engineering basis for the
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`opinion. Nor is there any physical evidence to support the opinion about where the collision
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`occurred.
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`Federal Rule of Evidence 702 governs testimony by expert witnesses. With the 2000
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`and 2011 amendments to the evidentiary rules, “the maxims of Daubert and Kumho Tire
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`have been incorporated into Rule 702.” Rule 702 provides:
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`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:
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`(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.
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`Since the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
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`(1993), trial courts have been designated as “gate keepers” to ensure expert testimony meets
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`the requirements of Rule 702 and if not, to exclude testimony deemed unreliable as a result
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`of the expert’s failure to meet those requirements. Kumho Tire made it clear that the
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`mandates in Daubert applied to all expert testimony, not just that of a scientific nature. 526
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`U.S.137 (1999).
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`Mr. Hutchison’s opinion about where on the roadway the collision took place fails the
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`reliability test of Rule 702. The testimony is based on exactly zero facts or data. Mr. Hutchison
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`does not point to any skid marks, impact marks, or other physical evidence as to where the
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`2 As noted above, Plaintiffs will not testify as to whether the Kovac truck struck their vehicle,
`whether Mr. Manu moved left into the Kovac truck, or whether both things occurred.
`9
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`accident occurred. Nor does he do any calculations to show where on the roadway – with respect
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`to whether in the second lane of travel, the third lane of travel, or in between – the impact
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`occurred. Mr. Hutchison’s proposed testimony is not based on any reliable principles or
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`methods. His opinion, as it is, is simply a regurgitation of the testimony of others (Mr. Manu).
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`As such, it is inadmissible under Rule 702.
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`Further, implicit in Mr. Hutchison’s opinion is that the jury should find Mr. Kovac’s
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`testimony – that his vehicle was struck by Mr. Manu before he crossed into the adjacent lane of
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`travel – not credible; and, that the jury should instead believe Mr. Manu. Again, this is not
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`permissible. “It is clearly established that expert witness testimony concerning the credibility of
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`a fact witness is improper.” Hobart Corp. v. Dayton Power & Light Co., 2019 WL 4593589, at
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`*7 (S.D.Ohio Sept. 23, 2019) citing Greenwell v. Boatwright,184 F.3d 492, 496 (6th Cir. 1999).
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`Opinion testimony to the effect that the jury should believe one witness rather than the other “(1)
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`usurps a critical function of the jury; (2) is not helpful to the jury, which can make its own
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`determination of credibility; and (3) when provided by impressively qualified experts on the
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`credibility of other witnesses is prejudicial and unduly influences the jury.” Id. quoting United
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`States v. Hill, 749 F.3d 1250, 1258 (10th Cir. 2014). Also, “such testimony exceeds the scope of
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`the expert’s specialized knowledge and therefore merely informs the jury that it should reach a
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`particular conclusion.” Id. quoting United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995).
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`To be clear, Plaintiffs do not argue that Mr. Hutchison’s opinion testimony is
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`inadmissible only because it contradicts the testimony of Mr. Kovac. Indeed, if Mr. Hutchison’s
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`opinion as to the location of collision were based on physical evidence or on scientific or
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`engineering principles and inquiry, it might be admissible despite the contradiction with Mr.
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`Kovac’s testimony. See, e.g. Greenwell v. Boatwright, 184 F.3d 492, 497-98 (6th Cir. 1999).
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`10
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`But that is not the case. Here, Mr. Hutchison’s “opinion” that the Kovac truck contacted Mr.
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`Manu’s vehicle in Mr. Manu’s lane of travel is not the product of any data, evidence, or reliable
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`scientific process, but simply a repeating of certain witness testimony (Mr. Manu’s) to the
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`exclusion of others (Mr. Kovac’s).
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`Finally, admitting such unfounded testimony would be unfairly prejudicial without
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`providing any assistance to the jury. Mr. Hutchison’s “opinion” about where on the roadway the
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`collision occurred is simply dressing up the testimony of Mr. Manu in the clothes of expert
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`opinion. The jury may be led to believe that an expert’s testimony is somehow more credible
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`than that of Mr. Kovac, even when he has zero scientific or engineering basis for the opinion.
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`The opinion can therefore be excluded under Rule 403.
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`III. MR. HUTCHISON’S COLLISION ANIMATIONS SHOULD BE EXCLUDED.
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`With his expert report, Defendant’s counsel also produced several animations prepared
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`by Mr. Hutchison that Plaintiffs expect Defendant intends to show to the jury for the purpose of
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`demonstrating Mr. Hutchison’s opinions about how the collision occurred. The animations
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`clearly and deliberately depict the Kovac truck crossing into Mr. Manu’s lane of travel and
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`striking his vehicle there. As noted and argued above, Mr. Hutchison’s opinion in this respect
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`should be excluded because it not based on a reliable scientific or engineering method and lacks
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`any factual support. Having him present an “animation” of that opinion is similarly improper
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`and, indeed, even more unfairly prejudicial. An animation of Mr. Manu’s testimony – which it
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`would be – would improperly bolster that testimony against the conflicting testimony of Mr.
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`Kovac.
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`Courts in the Sixth Circuit look with disfavor on animations or other similar
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`demonstrative evidence that attempt to simulate actual events rather than merely demonstrate
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`scientific principles. Dugle v. Norfolk Southern Railway Co., 2010 WL 2612331, at *1-3
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`(E.D.Ky. June 25, 2010). An animation is “not subject to cross-examination” and thus likely to
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`confuse the jury despite any effective cross-examination of the expert presenting it. Id. The
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`Sixth Circuit has said that for demonstrative evidence such as animated recreations to be
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`admissible they must be “substantially similar” to the actual conditions. Id.; and see Persian
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`Galleries, Inc. v. Transcontinental Insurance Co., 38 F.3d 253 (6th Cir. 1994). But where, as
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`here, there is no scientific or engineering basis to show where the collision took place, and the
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`eyewitnesses have substantial disagreements about the facts of the collision, no animation can be
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`found “substantially similar.” The animations should therefore be excluded under Rule 403
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`CONCLUSION
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`For all these reasons, Plaintiffs respectfully request the Court grant this Motion in Limine
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`# 3 and exclude the testimony of Todd Hutchison as forth herein and exclude the animations
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`prepared by Mr. Hutchison.
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`This 25th day of November, 2019.
`
`s/David S. Hagy
`David S. Hagy
`Tenn. BPR # 027003
`Law Office of David S. Hagy, PLC
`1507 16th Avenue South
`Nashville, Tennessee 37212
`Office (615) 515-7774
`Fax (615) 298-9353
`Cell (615) 975-7882
`dhagy@hagylaw.com
`
`12
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`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing PLAINTIFFS’ MOTION IN LIMINE # 3 TO EXCLUDE
`TESTIMONY OF DEFENSE EXPERT WITNESS TODD HUTCHISON AND TO
`EXCLUDE COLLISION ANIMATIONS has been filed with the Court’s ECF filing of system
`and will be electronically served on counsel of record as follows:
`
`Minton Mayer
`Pamela Webb
`Quintairos, Prieto, Wood & Boyer, P.A.
`424 Church Street, Suite 2000
`Nashville, Tennessee 37219
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`
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`This 25th day of November, 2019.
`
`s/ David S. Hagy ____________
`David S. Hagy
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`13
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