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CHRISTOPHER w. WOOD, ESQ. / SBN: 193955 FILED
CAMNHUNG T. LE, ESQ. / SBN: 319570
DREYER BABICH BUCCOLA wooo CAMPORA, up MAR 1 5 2m .
20 Bicentennial Circle
Sacramento, CA 95826 CLERK OF THE L‘Ju‘m'
SUFERI'Ui-‘a
‘
379-3500 NTY OF STfiei-‘iiimAUS
Telephone:
Facsimile:
(916)
(916) 379-3599 BY _‘ . -
DBBWC-ESERVICE@dbbwc.com
Attorneys for Plaintiffs
SUPERIOR COURT OF CALIFORNIA
COUNTY OF STANISLAUS
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11 TIFFANY BURR and RYAN BURR; Individually Case No.2 CV-19-001129
and as Guardian ad Litem for TAYLOR BURR,
12 a minor, PLAINTIFF'S MOTION IN LIMINE NO. 17
TO PRECLUDE DEFENDANTS’ RETAINED
13 Plaintiffs, EXPERT DEAN STOLWORTHY, PH.D.'$
TESTIMONY REGARDING MEDICAL
14 v. CAUSATION OF PLAINTIFF’S INJURIES
15 GURNEY TRUCKING, INC., Trial: March 15, 2022
ANTONIO JOSE MENDOZA and Time: 9:30 a.m.
16 DOES 1 through 10, inclusive, Dept: 23
17 Defendants. Complaint Filed: February 13, 2019
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19 PLAINTIFF’S MOTION IN LIMINE NO. 17 TO EXCLUDE DEFENDANTS’ RETAINED EXPERT
zuzznggfiw
20 DEAN STOLWORTHY, PH.D.’S TESTIMONY
21 REGARDING MEDICAL CAUSATION OF PLAINTIFF’S INJURIES
22 Plaintiff moves this Court to exclude the testimony of Defendants' biomechanist Dean
23 Stolworthy, Ph.D. Plaintiff makes this Motion on the grounds that Dr. Stolworthy does not possess
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24 the or to as to the causation of Plaintiff’s
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experience, training, expertise provide testimony
MAR
25 injuries. He is not a medical doctor and is not qualified to render opinions regarding medical
26 causation in this matter. His opinions should be limited to his area of expertise, Specifically the
27 loads and forces of a collision, only.
28 ///
Plaintiff’s Motion in Limine No. 17
Dr. Stolworthy’s deposition went forward on March 1, 2022, wherein he failed to bring the
foundational materials or studies which he identified in his report as support for his nonmedical
opinions thereby preventing Plaintiff's counsel from fully inquiring into these claimed supportive
materials that served as his foundational basis. He referred counsel generally to his list of
referenced articles/literature indicating that he could not produce the materials because they were
copyright protected. During this deposition it became apparent that Dr. Stolworthy was not
qualified to provide opinions regarding medical causation of Ms. BURR's injuries. He is not a
medical doctor and does not have sufficient experience, training, or expertise to provide opinions
regarding causation of Ms. BURR’s cervical spine injury or traumatic brain injury. (See Bourland v.
1o City of Redding (2013) U.S. Dist. LEXIS 5476, at *11 (E.D. Cal.) stating, background as a
11 biomechanics expert does not qualify that expert to testify regarding medical causation. Citing
12 Smelser v. Norfolk Southern Railway Co. (1997) 105 F.3d 299, 305.) Accordingly, Dr. Stolworthy
13 is not qualified to render opinions regarding the medical causation of Plaintiff’s injuries. Plaintiff
14 brings forth this Motion in Limine to preclude Dr. Stolworthy from offering any testimony and/or
15 opinions regarding the medical causation of Plaintiff’s injuries.
16 In California, expert witne‘ss qualification is strictly governed by statute under California
17 Evidence Code, Section 720, which provides as follows:
18 (a) A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on
19 the subject to which his testimony relates. Against the objection of a party,
such special knowledge, skill, experience, training, or education must be
20 shown before the witness Section
may testify as an expert. (Evidence Code
21
720.) [Emphasis added.]
22 “The question of whether a person qualifies as an expert is case specific inquiry based
23 on the facts of that particular case and the witnesses qualifications.” (People v. Singh (1995) 37
24 Cal.App.4th 1343, 1377.) “The qualifications of an expert must be related to the particular
25 subject upon which he or she is giving expert testimony. Even qualifications on merely related
26 subject matter are insufficient." (People v. Hogan (1982) 31 Ca|.3d 815, 852.) Our California
27 Supreme Court has repeatedly re-stated the long standing rule that in deciding whether a witness
28 is qualified to offer an opinion on a particular subject, that the witness’ expertise must be
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Plaintiff's Motion in Limine No. 17
carefully distinguished and limited. (People v. Kelly (1976) 17 Cal. 3d 24, 39.)
Dr. Stolworthy is a trained biomechanical expert. He deals with loads and forces and
accident reconstruction. Dr. Stolworthy is not licensed to practice medicine in the State of
California, nor does he have any background or training in the practice of medicine. Dr. Stolworthy
is not a clinical practitioner who physically examines patients and reviews their diagnostic findings
to render opinions regarding medical causation. He is unable to correlate Plaintiff’s subjective
complaints to the objective findings in order to medically diagnose injuries. Therefore Dr.
Stolworthy is not qualified to render opinions regarding medical causation of injuries.
An expert witness may testify in the form of an opinion; however, that opinion is limited
10 under California Evidence Code, Section 801 to an opinion that is:
11 (a) Related to a subject that is sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact; and
12 (b) Based on matter (including his special knowledge, skill, experience,
training, and education) perceived by or personally known to the witness or
13 made known to him at or before the whether or not admissible, that isof a
hearing,
type that reasonably may be relied upon by an expert in forming an opinion upon
14 the to which his unless an is law
subject testimony related, expert precluded by
from using such matter as a basis for his opinion. (Evidence Code Section 801.)
15
(Emphasis added.)
16
17 "The law is well settled that in a personal injury action causation must be proven within a
18 reasonable medical probability based upon competent expert testimony." (Guerrero v. United
19 States (2014) U.S. Dist. LEXIS 165092, at *10 (C.D. Cal. Nov. 25, 2014), citing Miranda v. Bomel
20 Construction Co. Inc. (2010) 187 Cal. App. 4th 1326, 1336 and Salasguevara v. Wyeth
21 Laboratories Inc. (1990) 222 Cal. App. 3d 379, 385, "medical causation can only be determined
22 by expert medical testimony.") Dr. Stolworthy is not a medical doctor and cannot provide expert
23 medical testimony. His training and expertise is as a biomechanist.
24 As noted above, the admissibility of the biomechanical testimony has been considered by
25 this Court in Bourland v. City of Redding and by the Sixth Circuit in Smelser v. Norfolk Southern
26 Ry. Co. ((6th Cir. 1997) 105 F.3d 299, 301.) In Smelser, a FELA case involving a railroad
27 employee injured in an accident while driving a pickup truck, a biomechanical expert admitted that
28 “biomechanics are qualified to determine what injury causation forces are in general and can tell
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Plaintiff’s Motion in Limine No. 17
how a hypothetical person's body will respond to those forces, but are not qualified to render
medica/ opinions regarding the precise cause of a specific injury.” Id., at page 305, italics
supplied.) The expert also admitted that “each individual has his or her own tolerance level and
pre—existing medical conditions could have an effect on what injuries result from an accident.”
(M) The Sixth Circuit held that the biomechanical expert's testimony about the plaintiff’s
specific injuries was beyond the field of biomechanics, and was limited to testimony about general
issues regarding the types of injuries that are generated by accidents. Here, Dr. Stolworthy is not
qualified to render opinions regarding medical causation of Plaintiff’s cervical spine injuries and
traumatic brain injury. Dr. Stolworthy is only qualified to render opinions regarding the general
10 injuries that would be sustained in this incident. However, Dr. Stolworthy cannot render, to a
11 certain degree of medical probability, opinions regarding the precise cause of Plaintiff's injuries.
12 Dr. Stolworthy will confuse the issues and will not aid the jury in resolving a factual dispute.
13 If permitted to provide any opinions, extensive cross-examination will be required, and will be a
14 waste of this Court’s time. Accordingly, Plaintiff respectfully submits that Dr. Stolworthy's
15 testimony should be precluded in itsentirety.
16 DATED: March // , 2022 DREYER BABICH BUCCOLA WOOD CAMPORA, LLP
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CHRISTOPHER w. Wooo'
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Plaintiff’s Motion in Llmine No. 17
PROOF OF SERVICE - CCP § 1013, 1013a, 2015.5
and California Rules of Court, Rules 2.306, 2.251
Burr v. Gurney Trucking Inc., et al.
Stanislaus County Superior Case No.: CV-19-001129
I, Erica Placeres, declare that:
I am a citizen of the United States and am over the age of eighteen years and not a
party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood
Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826.
On MarchJL, 2022, I served the within document:
PLAINTIFF'S MOTION IN LIMINE NO. 17
1o On the parties in said action addressed as follows:
11 SEE ATTACHED SERVICE LIST
12 D BY MAIL: I am familiar with my employer's practice for the collection and processing of
correspondence for mailing with the United States Postal Service and that each day’s mail
13 is deposited with the United States Postal Service that same day in the ordinary course of
business. On the date set forth above, I served the aforementioned document(s) on the
14 parties in said action by placing a true and correct copy thereof enclosed in a sealed
envelope with postage thereon fully prepaid, for collection and mailing on this date,
15 following ordinary business practices, at Sacramento, CA, addressed as set forth above.
16 g BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the
parties to accept service by electronic transmission, I caused the documents to be
17 electronically sent to the persons on the attached service list. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
18 transmission was unsuccessful.
19 D BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the
addressee above.
20
D BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be
21 personally delivered via the following overnight courier service:
22 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and that this declaration s execute n March (z, 2022, at
23 Sacramento, CA.
24
Erica Placeres
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Plaintiff’s Motion in Limine No. 17
SERVICE LIST
Daniel P. Schrader, Esq. Attorneys for Defendants,
Mary Katherine Back, Esq. GURNEY TRUCKING, INC. and
Kelley T. Mahoney, Esq. ANTONIO JOSE MENDOZA
MANNING GROSS + MASSENBURG, LLP
201 Spear Street, 18‘“ Floor
San Francisco, CA 94105
Telephone: (415) 512-4381
Facsimile: (415) 512-6791
Email: dschrader@mgm|aw.com;
KMahoney@mgmlaw.com;
MBack@mgmlaw.com;
KMiller@mgmlaw.com;
MEstus@mgmlaw.com;
LSiIva@mqmlaw.com: DSabri@mqmlaw.com
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Plaintiff's Motion in Limine No. 17
Preview
‘I a) CHRISTOPHER w. WOOD, ESQ. / SBN: 193955 FILED CAMNHUNG T. LE, ESQ. / SBN: 319570 DREYER BABICH BUCCOLA wooo CAMPORA, up MAR 1 5 2m . 20 Bicentennial Circle Sacramento, CA 95826 CLERK OF THE L‘Ju‘m' SUFERI'Ui-‘a ‘ 379-3500 NTY OF STfiei-‘iiimAUS Telephone: Facsimile: (916) (916) 379-3599 BY _‘ . - DBBWC-ESERVICE@dbbwc.com Attorneys for Plaintiffs SUPERIOR COURT OF CALIFORNIA COUNTY OF STANISLAUS 10 11 TIFFANY BURR and RYAN BURR; Individually Case No.2 CV-19-001129 and as Guardian ad Litem for TAYLOR BURR, 12 a minor, PLAINTIFF'S MOTION IN LIMINE NO. 17 TO PRECLUDE DEFENDANTS’ RETAINED 13 Plaintiffs, EXPERT DEAN STOLWORTHY, PH.D.'$ TESTIMONY REGARDING MEDICAL 14 v. CAUSATION OF PLAINTIFF’S INJURIES 15 GURNEY TRUCKING, INC., Trial: March 15, 2022 ANTONIO JOSE MENDOZA and Time: 9:30 a.m. 16 DOES 1 through 10, inclusive, Dept: 23 17 Defendants. Complaint Filed: February 13, 2019 18 19 PLAINTIFF’S MOTION IN LIMINE NO. 17 TO EXCLUDE DEFENDANTS’ RETAINED EXPERT zuzznggfiw 20 DEAN STOLWORTHY, PH.D.’S TESTIMONY 21 REGARDING MEDICAL CAUSATION OF PLAINTIFF’S INJURIES 22 Plaintiff moves this Court to exclude the testimony of Defendants' biomechanist Dean 23 Stolworthy, Ph.D. Plaintiff makes this Motion on the grounds that Dr. Stolworthy does not possess 1 24 the or to as to the causation of Plaintiff’s 1 experience, training, expertise provide testimony MAR 25 injuries. He is not a medical doctor and is not qualified to render opinions regarding medical 26 causation in this matter. His opinions should be limited to his area of expertise, Specifically the 27 loads and forces of a collision, only. 28 /// Plaintiff’s Motion in Limine No. 17 Dr. Stolworthy’s deposition went forward on March 1, 2022, wherein he failed to bring the foundational materials or studies which he identified in his report as support for his nonmedical opinions thereby preventing Plaintiff's counsel from fully inquiring into these claimed supportive materials that served as his foundational basis. He referred counsel generally to his list of referenced articles/literature indicating that he could not produce the materials because they were copyright protected. During this deposition it became apparent that Dr. Stolworthy was not qualified to provide opinions regarding medical causation of Ms. BURR's injuries. He is not a medical doctor and does not have sufficient experience, training, or expertise to provide opinions regarding causation of Ms. BURR’s cervical spine injury or traumatic brain injury. (See Bourland v. 1o City of Redding (2013) U.S. Dist. LEXIS 5476, at *11 (E.D. Cal.) stating, background as a 11 biomechanics expert does not qualify that expert to testify regarding medical causation. Citing 12 Smelser v. Norfolk Southern Railway Co. (1997) 105 F.3d 299, 305.) Accordingly, Dr. Stolworthy 13 is not qualified to render opinions regarding the medical causation of Plaintiff’s injuries. Plaintiff 14 brings forth this Motion in Limine to preclude Dr. Stolworthy from offering any testimony and/or 15 opinions regarding the medical causation of Plaintiff’s injuries. 16 In California, expert witne‘ss qualification is strictly governed by statute under California 17 Evidence Code, Section 720, which provides as follows: 18 (a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on 19 the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be 20 shown before the witness Section may testify as an expert. (Evidence Code 21 720.) [Emphasis added.] 22 “The question of whether a person qualifies as an expert is case specific inquiry based 23 on the facts of that particular case and the witnesses qualifications.” (People v. Singh (1995) 37 24 Cal.App.4th 1343, 1377.) “The qualifications of an expert must be related to the particular 25 subject upon which he or she is giving expert testimony. Even qualifications on merely related 26 subject matter are insufficient." (People v. Hogan (1982) 31 Ca|.3d 815, 852.) Our California 27 Supreme Court has repeatedly re-stated the long standing rule that in deciding whether a witness 28 is qualified to offer an opinion on a particular subject, that the witness’ expertise must be -2- Plaintiff's Motion in Limine No. 17 carefully distinguished and limited. (People v. Kelly (1976) 17 Cal. 3d 24, 39.) Dr. Stolworthy is a trained biomechanical expert. He deals with loads and forces and accident reconstruction. Dr. Stolworthy is not licensed to practice medicine in the State of California, nor does he have any background or training in the practice of medicine. Dr. Stolworthy is not a clinical practitioner who physically examines patients and reviews their diagnostic findings to render opinions regarding medical causation. He is unable to correlate Plaintiff’s subjective complaints to the objective findings in order to medically diagnose injuries. Therefore Dr. Stolworthy is not qualified to render opinions regarding medical causation of injuries. An expert witness may testify in the form of an opinion; however, that opinion is limited 10 under California Evidence Code, Section 801 to an opinion that is: 11 (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and 12 (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or 13 made known to him at or before the whether or not admissible, that isof a hearing, type that reasonably may be relied upon by an expert in forming an opinion upon 14 the to which his unless an is law subject testimony related, expert precluded by from using such matter as a basis for his opinion. (Evidence Code Section 801.) 15 (Emphasis added.) 16 17 "The law is well settled that in a personal injury action causation must be proven within a 18 reasonable medical probability based upon competent expert testimony." (Guerrero v. United 19 States (2014) U.S. Dist. LEXIS 165092, at *10 (C.D. Cal. Nov. 25, 2014), citing Miranda v. Bomel 20 Construction Co. Inc. (2010) 187 Cal. App. 4th 1326, 1336 and Salasguevara v. Wyeth 21 Laboratories Inc. (1990) 222 Cal. App. 3d 379, 385, "medical causation can only be determined 22 by expert medical testimony.") Dr. Stolworthy is not a medical doctor and cannot provide expert 23 medical testimony. His training and expertise is as a biomechanist. 24 As noted above, the admissibility of the biomechanical testimony has been considered by 25 this Court in Bourland v. City of Redding and by the Sixth Circuit in Smelser v. Norfolk Southern 26 Ry. Co. ((6th Cir. 1997) 105 F.3d 299, 301.) In Smelser, a FELA case involving a railroad 27 employee injured in an accident while driving a pickup truck, a biomechanical expert admitted that 28 “biomechanics are qualified to determine what injury causation forces are in general and can tell -3- Plaintiff’s Motion in Limine No. 17 how a hypothetical person's body will respond to those forces, but are not qualified to render medica/ opinions regarding the precise cause of a specific injury.” Id., at page 305, italics supplied.) The expert also admitted that “each individual has his or her own tolerance level and pre—existing medical conditions could have an effect on what injuries result from an accident.” (M) The Sixth Circuit held that the biomechanical expert's testimony about the plaintiff’s specific injuries was beyond the field of biomechanics, and was limited to testimony about general issues regarding the types of injuries that are generated by accidents. Here, Dr. Stolworthy is not qualified to render opinions regarding medical causation of Plaintiff’s cervical spine injuries and traumatic brain injury. Dr. Stolworthy is only qualified to render opinions regarding the general 10 injuries that would be sustained in this incident. However, Dr. Stolworthy cannot render, to a 11 certain degree of medical probability, opinions regarding the precise cause of Plaintiff's injuries. 12 Dr. Stolworthy will confuse the issues and will not aid the jury in resolving a factual dispute. 13 If permitted to provide any opinions, extensive cross-examination will be required, and will be a 14 waste of this Court’s time. Accordingly, Plaintiff respectfully submits that Dr. Stolworthy's 15 testimony should be precluded in itsentirety. 16 DATED: March // , 2022 DREYER BABICH BUCCOLA WOOD CAMPORA, LLP 17 18 CHRISTOPHER w. Wooo' 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Motion in Llmine No. 17 PROOF OF SERVICE - CCP § 1013, 1013a, 2015.5 and California Rules of Court, Rules 2.306, 2.251 Burr v. Gurney Trucking Inc., et al. Stanislaus County Superior Case No.: CV-19-001129 I, Erica Placeres, declare that: I am a citizen of the United States and am over the age of eighteen years and not a party to the within above-entitled action. I am an employee of Dreyer Babich Buccola Wood Campora, LLP and my business address is 20 Bicentennial Circle, Sacramento, CA 95826. On MarchJL, 2022, I served the within document: PLAINTIFF'S MOTION IN LIMINE NO. 17 1o On the parties in said action addressed as follows: 11 SEE ATTACHED SERVICE LIST 12 D BY MAIL: I am familiar with my employer's practice for the collection and processing of correspondence for mailing with the United States Postal Service and that each day’s mail 13 is deposited with the United States Postal Service that same day in the ordinary course of business. On the date set forth above, I served the aforementioned document(s) on the 14 parties in said action by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, for collection and mailing on this date, 15 following ordinary business practices, at Sacramento, CA, addressed as set forth above. 16 g BY ELECTRONIC TRANSMISSION: Based on a Court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be 17 electronically sent to the persons on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 18 transmission was unsuccessful. 19 D BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the addressee above. 20 D BY OVERNIGHT COURIER: By causing a true copy and/or original thereof to be 21 personally delivered via the following overnight courier service: 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration s execute n March (z, 2022, at 23 Sacramento, CA. 24 Erica Placeres 25 26 27 28 Plaintiff’s Motion in Limine No. 17 SERVICE LIST Daniel P. Schrader, Esq. Attorneys for Defendants, Mary Katherine Back, Esq. GURNEY TRUCKING, INC. and Kelley T. Mahoney, Esq. ANTONIO JOSE MENDOZA MANNING GROSS + MASSENBURG, LLP 201 Spear Street, 18‘“ Floor San Francisco, CA 94105 Telephone: (415) 512-4381 Facsimile: (415) 512-6791 Email: dschrader@mgm|aw.com; KMahoney@mgmlaw.com; MBack@mgmlaw.com; KMiller@mgmlaw.com; MEstus@mgmlaw.com; LSiIva@mqmlaw.com: DSabri@mqmlaw.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's Motion in Limine No. 17