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Filing # 135598042 E-Filed 09/29/2021 04:08:23 PM
IN THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
IN AND FOR MARION COUNTY, FLORIDA
CASE NO. 2019-CA-2760
MARSHA SUE PIDHERNEY,
Plaintiff,
vs.
MARION COUNTY, FLORIDA, a political
subdivision of the State of Florida,
Defendant.
/
DEFENDANT’S RESPONSE TO PLAINTIFE’S MOTION TO STRIKE
OR EXCLUDE TESTIMONY OF DR. JAMES R. IPSER AND
INCORPORATED MEMORANDUM OF LAW
Defendant, MARION COUNTY, FLORIDA, by and through its undersigned counsel,
hereby file their Response to Plaintiff, MARSHA SUE PIDHERNEY’S Motion to Strike or
Exclude Testimony of Dr. James R. Ipser, and states as follows:
Plaintiff moves to (1) exclude any testimony from Dr. Ipser as to “delta-v”, (2) any
expectation of injury, (3) analogous ways of reproducing force, or equivalent ways of reproducing
force. Plaintiff seeks to have this testimony of Dr. Ipser ruled inadmissible under the Daubert
standard for scientific evidence and Section 90.403, Florida Statutes.
I. Brief Background Notwithstanding Plaintiffs statement that “[t]his cause stems from a
motor vehicle crash occurring on April 3, 2019, . . .” in fact, the claim relates to a minor bump
between the Defendant’s transit van and the rear bumper of Plaintiff's Chevrolet. See Photo of
back of Plaintiff's vehicle, attached hereto as Ex. A., and Photos of front of Defendant’s van,
attached hereto as Exhibits B., C. and D.
Florida Rule of Evidence 90.702 was amended in 2018 and reads, in its entirety, as follows:
Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier
of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify about it in the form of an
1
Electronically Filed Marion Case # 19CA002760AX 09/29/2021 04:08:23 PMopinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
IL. Plaintiff's Motion Is Not Based on Relevant Controlling Authority
Plaintiffs un-numbered seventeen page motion is primarily grounded on a single appellate
decision, Mattek v. White, 695 So.2d 942 (Fla. 4° DCA 1997), and ten non-precedential local
orders, five of which are more than 20 years old, and the most recent of which dates from 2013.
The citation to Mattek appears to be a “red herring,” in that the holding of that case was that Dr.
Ipser, because he had no medical training, was unqualified to testify that plaintiff had no permanent
injury as a result of the rear-end accident in that case. The defense is not offering Dr. Ipser to
render testimony regarding permanency of injury in the instant case, and therefore the holding of
Mattek is irrelevant to the testimony sought to be excluded by Plaintiff's motion. Dr. Ipser also
testified regarding vehicle speed in Mattek, which testimony was not challenged.
There are several appellate decisions, none of which are mentioned by Plaintiff, that are relevant
to the issues in Plaintiff's motion.
In a decision involving Dr. Ipser, the Fourth District reversed a verdict for Plaintiff after
holding that the trial court erred in prohibiting Dr. Ipser from offering expert testimony
regarding the speed and force of impact in the parties’ automobile collision. See Bryant v.
Beurman, 739 So.2d 710 (Fla. 4" DCA 1999). The Bryant court noted that Dr. Ipser’s improperly
excluded opinions “would have been helpful to the jury” and they would have buttressed the
defendant’s argument “that the plaintiff's injury could not have been caused by a slow-speed, low-
impact accident.” And, Judge Klein’s special concurring opinion noted that “‘it is well settled that
an expert in accident reconstruction can render an opinion about the speed of a vehicle and the
force of impact. Whether that issue can be the subject of expert testimony is not controversial.”
739 So.2d at 713.A year after the Bryant decision, the Fourth District in Zane v. Coastal Unilube, Inc., 744
So.2d 761 (Fla. 4" DCA 2000), held that the defendant’s expert was properly allowed to testify “as
to eh probabilities of plaintiff suffering no injury from a S-mile an hour accident with an
operational seatbelt in use.” In Zane, the expert’s testimony was offered solely as to the
‘expectation’ of plaintiff suffering no injury.
In Gregory Council v. State, 98 So.3d 115 (Fla. 1 DCA 2012), involving a charge of
criminal child abuse by the defendant, the court overturned the jury’s conviction and held that the
defendant’s expert was qualified to testify that a fall from a day bed could have caused the type
of brain trauma suffered by the victim, while shaking alone could not have cause such injuries, and
thus the expert’s testimony should not have been excluded.
In Maines y. Fox, 190 So.3d 1135 (Fla. 4" DCA 2016, the court held that “biomechanical
opinions as to the general causation of a type of injury are admissible.” It follows that Dr. Ipser’s
opinions regarding the likelihood of the presence of a mechanism of serious injury are admissible
and should not be excluded.
In Booker v. Sumter County Sheriff's Office / North America Risk Svcs., 166 So.3d 189 (Fla.
1* DCA 2015), the court held that a judge is permitted to take judicial notice of the reliability of
an expert’s testimony if the expert testimony has been deemed reliable by an appellate court.
In Boyles v. Dillard’s, Inc., 199 So.3d 315 (Fla. 15 DCA 2016), an appellate decision
involving the testimony of Dr. Ipser that post-dates all of the cases and orders cited by Plaintiff in
support of its motion, the court indicated that Dr. Ipser was permitted to testify about the physical
forces involved in the subject accident, noting that his testimony was well within the parameters of
Maines with respect to accident reconstruction. The Court held that Dr. Ipser did not render
inadmissible opinions that required medical expertise. The court went on to state that Dr. Ipser
could have given testimony as to the causal mechanisms of the sorts of injury plaintiff suffered andit would have been admissible. Therefore, in light of the Boyles decision and following Booker,
Defendant asks the court to take judicial notice of the reliability of Dr. Ipser’s testimony with
respect to the three subjects of testimony raised by Plaintiff's motion.
TIL. Recent Rulings Involving Dr. Ipser
Point II of Plaintiffs motion, concerning prior disqualifications of Dr. Ipser, asserts that “Dr. Ipser
has a long and unsettling history with the courts of Florida, and they have repeatedly limited or
excluded his opinion testimony.” One might infer from Plaintiffs comments that no courts are
permitting Dr. Ipser to offer the type of testimony Plaintiff seeks to exclude herein. The Florida
appellate decisions discussed above are to the contrary. In addition to those appellate decisions,
the Defendant cites the June 25, 2021 Order on Plaintiffs Fifth Motion in Limine in Lesa Black v.
Cynthia Lewis, Case No. CA 19-740 (Seventh Judicial Circuit of Florida), wherein the court denied
the motion to strike Dr. Ipser’s testimony. (Copy attached as Ex. E), That case was tried to verdict
about two weeks ago. Next, Defendant cites the Order in Moore v. Estate of Posey, 2021 WL
2660618, U.S.D.C., S.D. Miss., Eastern Div., April 15, 2021 (Copy attached as Ex. F), wherein the
District Judge denied a Motion to Exclude Expert Opinions of Dr. James Ipser. Coincidentally,
Dr. Ipser has been in Mississippi this week, testifying in the trial of that matter. In DePaul et al.,
v. XPO Logistics Truckload, Inc., Case No. 562016CA00127 AN, the Circuit Judge in her October
25, 2018 “omnibus order” on pretrial motions, at paragraph 3, denied “Plaintiffs Motion in Limine
to Exclude All Evidence, Opinions, and Argument at Trial Concerning Defendants’ Expert James
Ipser, Ph.D.’s Opinion Testimony Regarding the Injuries Sustained by Plaintiff Jirah DuPaul, with
Supporting Memorandum of Law.” (Copy attached as Ex. G).
IV. ARGUMENT
Dr. Ipser's testimony should be admitted because it will assist the trier of fact in
understanding the issues in this case, and Dr. Ipser is more than qualified to render his opinion,
4which is based on sufficient facts and data reliably applied to the circumstances of this case.
Further, courts in other jurisdictions have permitted similar testimony as to analogies, finding that
such analogies would assist the trier of fact in understanding the issues.
The offered testimony of Dr. Ipser would be as any other accident reconstructionist. In
order to assist the jury in understanding the forces to which he will testify, he intends to provide
the jury with a frame of reference from their own everyday experiences. Dr. Ipser also intends to
testify to certain equivalent means of reproducing the same impact and to analogies to certain
everyday activities that typically produce the same force. The proffered testimony does not
violate section 90.403, Florida Statutes as Plaintiff contends.
As set forth below, there are a number of courts throughout the state of Florida that have
permitted Dr. Ipser to testify to the equivalencies and analogies, finding that they would assist the
trier of fact in understanding the forces testified to by Dr. Ipser. In this case, Dr. Ipser has testified
that the force on Plaintiff s car was less than 1.4Gs and that we are dealing with an upper limit
delta-v of 4.5 miles per hour. (Ipser Depo., page 44, lines 8-9). Although jurors may be familiar
with the concept of 4.5 miles per hour, Defendants assert that jurors would likely not comprehend
the meaning of a 4.5 mpg delta-V of the 1.75G forces generated in this type of accident. To prohibit
Dr. Ipser from explaining these characteristics in terms of equivalents and real world examples to
assist the trier of fact would be prejudicial to the Defendant.
In this case, causation is a major issue. If the Court limits or excludes Dr. Ipser's testimony
as to the equivalents or analogies used by him to describe the forces involved in this accident,
Defendant will be prejudiced. Plaintiff will be allowed to argue that this accident, no matter how
minor, can result in the claimed injuries, yet the jury will not be permitted to hear any testimony
to explain the forces in this accident.
Defendant respectfully requests that this court consider the facts and circumstances of the
5instant case and permit Dr. Ipser's testimony in its totality. If any concerns are raised during his
testimony at trial, the Court can order a proffer of the intended testimony. Defendant submits that
such a proffer would be a more appropriate way to address the testimony regarding the equivalents
and analogies, and would permit the Court to consider such testimony in the context of the trial.
in the Fields of Biomechanics and Accident Reconstruction
The first step into any Daubert inquiry is to determine if the witness is qualified to testify
as an expert. Courts have long held that "the test for expertise is not overly rigorous and the trial
court should not exclude expert testimony simply because the court feels that the proffered witness
is not the most qualified or does not have the specialization considered most appropriate by the
court." Galloway v. Big G Express, Inc., 590 F. Supp. 2d 989, 994 (E.D. Tenn. 2008). Courts have
also long held that an expert may be qualified based on his experience in the field; professional
education is not required. See United States v. Frazier, 387 F.3d 1244, 1260-61 (11" Cir. 2004).
Dr. Ipser has provided testimony in over 250 cases in state and federal courts throughout
Florida as well as several other states. Dr. Ipser has been retained in over 4,000 cases as an accident
reconstruction and biomechanical physics consultant and has possessed a reconstructionist
certification for 24 years. Plaintiff's motion fails to address the complete extent of Dr. Ipser's
education, background, experience and training. A copy of Dr. Ipser's Curriculum Vitae (CV) is
attached as Exhibit H to Defendant’s response. As the CV reflects, Dr. Ipser earned a Bachelor's
Degree in Physics from Loyola University in 1964. He earned his M.S. and Ph.D. in Physics from
the California Institute of Technology in 1967 and 1969, respectively. Dr. Ipser has been a
professor of physics for more than 30 years at the University of Florida, Department of Physics
and previously was a tenured physics professor at the University of Chicago for 10 years.
It is undisputed that concepts of physics are used in the field of biomechanics. Indeed, the
fundamental basis for biomechanics is physics. Mechanics is the most fundamental area ofphysics. It focuses on the structure and motion of all objects, how these attributes are described,
and the way in which they are affected by the application of forces. Dr. Ipser's undergraduate and
graduate coursework included extensive study of mechanics, with extensive applications to
humans and vehicle collisions in particular. Dr. Ipser has also had annual continuing education in
accident reconstruction and biomechanics.
In 1997, he created and subsequently began teaching a graduate-level course called
"Physics of Accident Reconstruction and Biomechanics." In order for this course to be taught, it
first had to be peer-reviewed by the faculty of the College of Liberal Arts and Sciences at the
University, and then certified by the State University System as part of its graduate curriculum.
Dr. Ipser has been certified, since 1997, as an Accident Reconstructionist by the international
organization known as the Society of Accident Reconstruction (SOAR). In order to obtain this
certification, Dr. Ipser was required to demonstrate his education, training, background, work
product, trial experience, and ability to analyze accidents in various types of cases. Dr. Ipser is
also a member of the International Society of Biomechanics, Accident Reconstruction Network,
and the Society of Automotive Engineers. He is also a member of numerous professional physics
organizations. He has worked as a consultant in the field of biomechanics and accident
reconstruction since 1993.
As detailed above and as set forth fully in his CV, Dr. Ipser's education and professional
experience more than qualify him as an expert in this case and he should be permitted to provide
his intended opinion in the areas-of accident reconstruction and biomechanics.
Dr. Ipser made it clear during his deposition that he does not intend to offer any medical
opinions. (Ipser Depo., Page 27, Line 25; Page 28, Lines 1-3) Specifically, Plaintiffs counsel
asks Dr. Ipser during his August 26, 2021 deposition the following:
Question: Okay. And you agree with me that the mechanism of serious injury, that is going
7to get into medical causation. Correct?
Answer: No, it’s not.
In another exchange, (Ipser Depo., Page 32, Lines 10-16), Plaintiff counsels states the
following:
Question: Well, in regards to a reason why a lawsuit could be brought, medical causation,
you are not qualified to render any opinion about that.
Answer: I’m not offering a medical cause. My analysis of that accident, if I did analyze it
and use it in any way, wouldn’t be a medical issue.
Pe &,
Nevertheless, Plaintiff repeatedly refers to Dr. Ipser’s “statements” but fails to identify
what statements were actually made during the deposition. In fact, Plaintiff repeatedly states “Dr.
Ipser’s deposition transcript to be provided upon receipt of same” and never cites to any specific
deposition testimony of Dr. Ipser. Therefore, Plaintiff's Motion does not adequately apprise
Defendant of the testimony sought to be stricken.
The equivalents and analogies are being offered by Dr. Ipser to help the jury understand
the levels of the forces that we're dealing with here in ways other than just saying the delta-v is 4.5
miles per hour. In this connection, the validity of the equivalents is based on the laws of physics.
That the forces in the equivalents are the same as in the subject accident is simply a consequence
of the laws of physics. That the same forces must produce the same physical effects is again simply
a consequence of the laws of physics. Any argument that the application of this logical process
involves medical opinions lack merit.
ir. Ipser's Opinion: i inciples and Methods
Plaintiff argues that Dr. Ipser's testimony as to the equivalents and analogies are not based
on reliable principles and methods. As noted above, Plaintiff has not taken the time to identify
specific deposition testimony from Dr. Ipser and leaves this Court having to rely on Plaintiff'ssummarization of the deposition testimony of Dr. Ipser.
The rationale behind the standard is to ensure that the methodology employed by the expert
is reliable as shown through testing, peer review, error rates and acceptability in the relevant
scientific community. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). These factors
are only illustrative, not exhaustive; not all of them will apply in every case and in some cases
other factors will be equally important in evaluating the reliability of the proffered expert opinion.
Moreover, "[uJnlike an ordinary witness, an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge and observations." Daubert, 509 U.S.
at 592 (emphasis added). Relaxation of first-hand knowledge "is premised on an assumption that
the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.
Id.
In this case, Dr. Ipser's testimony is based on reliable principles and methods, and all of
Plaintiff's arguments to the contrary lack merit. As Dr. Ipser stated during his deposition, to
prepare his opinions in this case, he collected and reviewed relevant documents and information.
He visited the scene and took measurements and photographs. He also collected data on the
physical characteristics of the vehicles involved in the accident. Thereafter, Dr. Ipser performed
physics analyses in the areas of accident reconstruction and biomechanical physics, and the
application of the fundamental area of physics known as "mechanics," including laws of energy
and momentum conservation. Dr. Ipser was able to assess the crash damage to both vehicles by
looking at the photographs provided of each vehicle, as well as through photographic examination
of the Defendant’s vehicle. Of note, Plaintiff sold her vehicle prior to Dr. Ipser being retained to
provide expert analysis and testimony in the present matter. It is generally accepted in the accident
reconstruction community that one can in general use vehicle photographs.
Using the data and information collected, Dr. Ipser was able to reconstruct the accident,
9the relative velocity or closing speed of the vehicles at contact, the changes in velocity at impact,
and the forces created in the same. In order to further explain the velocity and force calculations,
Dr. Ipser uses equivalents and analogies to assist the trier of fact.
Dr. Ipser applied the principles incorporated in Newton's Laws of Physics to the accident
reconstruction and biomechanical analysis of this case. Newton's Laws of Physics have been tested
and subject to peer review for centuries. Indeed, these principles are the content of physics
textbooks and are completely accepted within the biomechanical and scientific communities.
Plaintiff has not presented any evidence whatsoever that Dr. Ipser has made incorrect calculations
applying Newton's Laws and their consequences in reaching his opinions regarding the velocities
and forces in this accident. Plaintiff was provided a detailed account of each and every physics
equation, formula, and calculation Dr. Ipser used, in his own handwriting, prior to the deposition.
If Dr. Ipser's scientific method is questioned, Defendant requests that the Plaintiff, rather than
simply making bare pronouncements, provide a concrete scientific basis for that questioning.
As to the equivalents used by Dr. Ipser to illustrate the forces of impact and changes of
velocity, they are specifically grounded within the laws of physics. Plaintiff appears to recognize
that the forces involved, including those in the equivalents, are beyond the experience of any
juror, which render them precisely the type of subject on which expert testimony is proper and
needed.
As for the barrier-impact equivalent, its worthiness is further supported by the programs of
the National Highway Traffic Safety Administration (NHTSA). For over 30 years, NHTSA has
used barrier impacts to simulate vehicle and occupant forces of impact in real-world vehicle-to-
vehicle impacts. Various NHTSA programs have for decades utilized barrier impacts to measure
forces of impact experienced by occupants, as well as crash-strength properties of vehicles
themselves, which are deemed to extend reliably to vehicle-to-vehicle impacts. The results of
10these studies are even used to develop and improve standards for vehicle design. Plaintiff's
arguments regarding the lack of reliability of Dr. Ipser’s testimony would call into question all of
the decades of data that NHTSA has collected and utilized to make vehicles safer for the motoring
public.
In regards to the analogies Dr. Ipser intends to use to explain the forces in this impact,
Plaintiff has also claimed those are not reliable under Daubert. Unlike the equivalents, which are
designed according to the laws of physics to reproduce the forces of impact on an object both in
magnitude and direction, these average daily activity analogies involve the same magnitude of
forces, but not direction. Dr. Ipser will use the analogies to provide additional information that
the jury can consider to better understand the levels of forces involved.
The methodology and principles used by Dr. Ipser in his accident reconstruction and
biomechanical analyses, have been tested, peer reviewed, and are commonly accepted within the
biomechanical and scientific community. The equivalents (i.e., the barrier test, sled test and swing
test) are not subject to error because they are based on the laws of physics. In particular, the heights
from which the sled and pendulum/swing must be released in order to yield the required change
of velocity are uniquely determined by the change of velocity, in accordance to the work
energy theorem in physics. The average daily activity analogies, likewise, have been generally
accepted in the field. Dr. Ipser's method for analyzing an accident is reliable. Additional comments
of Dr. Ipser are in support of this response are attached hereto as Ex. I. Defendant was unable to
obtain an affidavit from Dr. Ipser in time to file this Response, because he was out-of-state.
D * timony Will Assist the Trier
The jury in this case will be asked to determine whether or not the impact in this case
resulted in injuries to the Plaintiff. The nature of the accident is a very important aspect of this
llcase, As demonstrated herein, Dr. Ipser's opinions are well grounded in the laws of physics and
they will assist the trier of fact in determining the issues in this case. The general population does
not have an understanding of the laws of physics applied by Dr. Ipser including the laws of energy
and momentum conservation, relative velocity or change of velocity (delta-v), and the different
types of forces. These issues are highly technical scientific laws and calculations. Dr. Ipser's
testimony would certainly aid the jury in understanding and determining the issues in this case.
Further, for the reasons set forth herein, Dr. Ipser's testimony would be more helpful than
harmful. As such, Dr. Ipser's testimony is not subject to exclusion under Florida Rule of Evidence
90.403. In fact, it would be prejudicial to the Defendants not to allow Dr. Ipser to testify. Relevant
evidence is inherently prejudicial and it is only unfair prejudice, substantially outweighing
probative value, which permits exclusion of relevant matters. Veach y, State, 254 So.3d 624 (1%
DCA 2018).
erous Court: Vi _ Ipser to Testify to Similar Opini
While Plaintiff has presented the court with orders that have limited or excluded the
testimony of Dr. Ipser, often on issues completely unrelated to Dr. Ipser’s opinions in this case,
Plaintiff has failed to even mention that many courts throughout the state have permitted Dr. Ipser
to testify on subjects similar to those at issue in the instant case, and specifically as to the analogies
Dr. Ipser mentioned during his deposition. The discussion below includes a sampling, and not an
exhaustive list, of those cases in which Dr. Ipser was permitted to testify to issues similar to those
at issue in the instant case.
For example, in Garcia v, Kelly-Springfield Tire Company, 2004 WL 6047326 (M.D. Fla.
2004), the Honorable District Judge Elizabeth A. Kovachevich of the United States District Court
for the Middle District of Florida denied in its entirety a motion in limine to exclude the testimony
of Dr. Ipser. As in this case, in Garcia, Dr. Ipser indicated he intended to testify to, among other
12things: "speed of vehicle at time of the accident" and "comparisons of G-forces experienced by
[the plaintiff] with every day activities and the values needed to damage tissue and bone."
The court found that Dr. Ipser was qualified to testify by virtue of his education and service
as a member of the University of Florida faculty, and his certification as an accident
reconstructionist. Further, while the court did not specifically address the issue of Dr. Ipser's
analogies, the court found that Dr. Ipser's methodology was reliable and that he was "testifying
based on principles long accepted in the relevant scientific community."
Numerous Florida state courts have also permitted Dr. Ipser to testify to similar opinions
as those at issue here. In Vaughn v. Varn, Case No. 16-10-CA-837 (Fourth Judicial Circuit of
Florida Dec. 5, 2012), the Honorable Jack M. Schemer denied a motion to strike and/or limit the
testimony of Dr. Ipser. In so doing, the court specifically ruled that "Dr. Ipser is allowed to testify
regarding the forces in the accidents, his delta-v calculations of the accidents, and the equivalents
(barrier test, swing test, sled test, and examples regarding average daily activities)."
In Gibbs v. Travelers Property Casualty Insurance Company, Case No. 07-1640- CI-13
(Sixth Judicial Circuit of Florida, June 17, 2010), the court denied a motion in limine to exclude
Dr. Ipser, and specifically ruled that "Dr. Ipser will be permitted to testify as to equivalents and
daily activities with similar forces as to those involved in the subject accident, but is precluded
from mentioning whether or not such equivalents can cause injury."
In Cadle v. Geico General Insurance Company, Case No. 05-2009-CA-013025
(Eighteenth Judicial Circuit of Florida Mar. 1, 2011), the court conducted a Frye inquiry and
denied plaintiff s motion to strike Dr. Ipser's testimony. In its Order, the court addressed Dr. Ipser's
intended testimony regarding force comparisons to everyday life, finding that "it is not uncommon
for experts to provide comparisons so that the trier of fact can better understand what the expert
is attempting to explain." The court ruled that those comparisons would be admissible "[i]f the
13examples . . . discuss and explain speed and would assist the trier of fact in better understanding
the issues and testimony."
In Wright v. Hatcher, Case. No. 02-CA-5669 (Ninth Judicial Circuit of Florida, July 2,
2007), the court ruled that Dr. Ipser was permitted to testify. The court in that case specifically
ruled that "the testimony of Dr. Ipser will aid the jury in evaluating the core issues in the case, i.e.,
the speed at the time of the collision; the forces applied to the vehicles and consequently to the
occupants; and whether Plaintiff likely sustained injury or damage proximately or legally caused
by the collision." See also Wagner v. Elkihel, Case No. 10-43432 (23) (Eleventh Judicial Circuit
of Florida Sept. 15, 2011) (ruling that Dr. Ipser was permitted to testify but that he would not be
testifying on the issue of injury to the plaintiff) (attached hereto as Exhibit J).
In Bonanno-Weisser y. Capital Lighting-West Palm Beach, Case No.
502008CA007472XXXXMB(AB) (Fifteenth Judicial Circuit of Florida Dec. 12, 2008), Dr. Ipser
proposed to testify to the forces in a car accident and the comparison of those forces to equivalent
forces in everyday life. The court ruled that Dr. Ipser could testify to "force of impact as it concerns
the issues within his level of expertise and also as to speed as well...and...to issues of physics and
accident reconstruction."
In Arraga v. Garcia, (Fifteenth Judicial Circuit of Florida Nov. 8, 2001), Dr. Ipser was
permitted to testify at trial using analogies comparing everyday activities and the forces involved
in the accident at issue. Those analogies include plopping into a set from a height of eight inches,
sneezing and riding a roller coaster.
Conclusion
As detailed herein, Dr. Ipser possesses the knowledge, skill, experience, training and
education that qualify him to testify as an expert witness in this case. Moreover, his opinions are
grounded in the well-established principles of physics and are reliable and generally accepted in
14the accident reconstruction, biomechanical and scientific communities. His testimony will assist
the trier of fact in determining the issues in this case, and his opinions are not subject to exclusion
under Florida Rule of Evidence 90.403. Moreover, he has been permitted by numerous courts in
the state of Florida to testify to similar opinions. The parties have a 30-minute, non-evidentiary
hearing time with respect to Plaintiff's Motion. Defendant respectfully requests that if the Court
is inclined to grant the Motion, an evidentiary hearing be scheduled before making a final decision
thereon.
WHEREFORE, Defendant, MARION COUNTY, respectfully request that this court deny,
in its entirety, Plaintiff's Motion to Strike or Exclude the Testimony of Dr. James R. Ipser.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic mail
this 29" day of September, 2021, to the following: D. Graham Anderson, Esquire, Bogin, Munns
& Munns, P.A., at ganderson@boginmunns.com and csherr@boginmunns.com and
aquintana@boginmunns.com and BMMservice@boginmunns.com.
MATTHEW G. MINTER
COUNTY ATTORNEY
/s/ Matthew G. Minter
Matthew G. Minter, Esquire
Florida Bar # 298719
Attorney for Defendant Marion County
Marion County Attorney’s Office
601 SE 25" Avenue
Ocala, Florida 34471
Telephone: (352) 438-2330
Fax: (352) 438-2331
E-mail:matthew.minter@marioncountyfl.org
donnita.martin@marioncountyfl.org
15EX. CEX. DIN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA
CASE NO.: CA19-740
DIVISION: 55
LESA BLACK,
Plaintiff,
vs.
CYNTHIA LEWIS,
Defendant.
/
ORDER ON PLAINTIFE’S FIFTH MOTION IN LIMINE
This cause is before this Court pursuant to “Plaintiff's Fifth Motion in Limine
(To Strike the Testimony of Dr. James Ipser).” [DIN 238]! Having considered the
evidence and testimony at the hearing conducted on June 1, 2021, the arguments of
counsel, and being otherwise fully advised in its premises, the Court finds as follows:
This case involves a claim for personal injuries as a result of a motor vehicle
crash on December 20, 2017. This matter is currently scheduled for trial during the
trial term that commences on September 13, 2021. [DIN 275] Pursuant to the orders
scheduling trial, the parties disclosed their expert witnesses. Defendant disclosed
Dr. James Ipser as an expert who will testify at trial. [DIN 167] Plaintiff moves to
' References to the court docket are made by identifying the Docket Identification Number (“DIN”). E.g.
[DIN 1].
1
Filed for record 06/28/2021 10:08 AM Clerk of Court St. Johns County,
X. Eexclude Dr. Ipser’s opinion testimony, asserting it does not comply with the
requirements in Fla. Stat. §90.702.7
Fla. Stat. §90.702 governs the admissibility of expert testimony and provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact in understanding the evidence or in determining a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify about it in the form of an opinion or
otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the
facts of the case.
See also, In re Amendments to Florida Evidence Code, 278 So.3d 551 (Fla. 2019).
The current version of Fla. Stat. §90.702 follows Rule 702 of the Federal Rules of
Evidence. In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
the U.S. Supreme Court explained that Rule 702 imposes an obligation on a trial
court to act as gatekeeper, to ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable. Id. at 589. Accordingly, courts properly
admit expert testimony only when the proffering party establishes by a
? The Defendant challenges Plaintiff’s motion on procedural grounds, asserting the Plaintiffs motion was
vague and didn’t adequately specify the expert opinions challenged. Plaintiff's counsel acknowledged the
motion was vague in order to have satisfied the Court’s deadlines for filing such motions. At the outset of
the hearing on the motion, Plaintiffs counsel specified the portions of Dr. Ipser’s opinions he challenges;
thus, the Court and defense counsel were able to focus on the specified issues raised. Additionally, the
Court gave defense counsel additional time to submit a post-hearing memorandum on the issues raised.
[DIN 291] Thus, defense counsel was not unfairly prejudiced by the vague nature of Plaintiffs motion.
Lastly, in her post-hearing memorandum, defense counsel raised for the first time a challenge to the
Plaintiff's hearing notice for the instant motion, asserting it failed to specify the hearing would be
evidentiary. Because defense counsel failed to raise this challenge at the time of the hearing, and she had
Dr. Ipser present at the hearing to testify, this challenge will not be entertained.
2preponderance of the evidence that (1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the methodology by which the expert
reaches his conclusions is sufficiently reliable as determined by the sort of inquiry
mandated in Daubert, and (3) the testimony assists the trier of fact through the
application of scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue. Hudgens v. Bell Helicopters/ Textron, 328
F.3d 1329, 1338 (11 Cir. 2003). In Kumho Tire Co. Ltd. v. Carmichael, 526 U.S.
137 (1999), the U.S. Supreme Court explained that the gatekeeper role for the trial
court, in determining the admissibility of expert testimony, is applicable to non-
scientific as well as scientific expert testimony.
For the purpose of conducting the reliability inquiry mandated by Daubert,
the U.S, Supreme Court has suggested that a trial court consider a number of factors,
which include (1) whether the theory or technique can be, and has been, tested; (2)
whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error; and (4) whether the theory has attained
general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-
94. These factors are not exhaustive and do not necessarily apply to all experts or
in every case. Kumho Tire, 526 U.S. at 141; Allison v. McGhan Med. Corp., 184
F.3d 1300, 1312 (11" Cir. 1999). The Court’s inquiry must focus on the
methodology, not the conclusions, but the Court is not required to admit opiniontestimony only connected to existing data by an expert’s unsupported assertion.
Daubert, 509 U.S. at 595; General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997).
In addition to determining the reliability of the proposed testimony, Daubert
instructs that Rule 702 requires the Court to determine whether the evidence or
testimony assists the trier of fact in understanding the evidence or determining a fact
in issue. Daubert, 509 U.S. at 591. This consideration focuses on the relevance of
the proffered expert testimony or evidence. The Court explained that to satisfy this
relevance requirement, the expert testimony must be “relevant to the task at hand.”
Id. Because scientific testimony does not assist the trier of fact unless it has a
justified scientific relation to the facts, the U.S. Eleventh Circuit Court of Appeals
has opined that “there is no fit where a large analytical leap must be made between
the facts and the opinion.” McDowell v. Brown, 392 F.3d 1283, 1299 (1 Ith Cir.
2004). An expert must know facts which enable him or her to express a reasonably
accurate conclusion instead of mere conjecture or speculation, and an expert’s
assurances that they used generally accepted scientific methodology is insignificant.
McCain v. Metabolife Int'l, Inc., 401 F.3d 1233,1244 (1 1th Cir. 2005). An expert’s
opinion must be based on “knowledge,” not merely “subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 590. Nothing in Daubert requires a court “to
admit opinion evidence that is connected to existing data only by the ipse dixit of the
expert,” and “[a] court may conclude that there is simply too great an analytical gapbetween the data and the opinion proffered.” Joiner, 522 U.S. at 146. Further, to
assist the trier of fact, expert testimony must concern “matters that are beyond the
understanding of the average lay person . . . expert testimony generally will not help
the trier of fact when it offers nothing more than what lawyers for the parties can
argue in closing arguments.” U.S. v. Frazier, 387 F.3d 1260, 1262-63 (11th Cir.
2004).
The Court conducted an evidentiary hearing on June 1, 2021, at which time it
received testimony from Dr. Ipser. Dr. Ipser is a physicist, who plans on rendering
opinions involving a motorcycle crash that Plaintiff was involved in that occurred in
October 2018, subsequent to the crash which is the subject of this case. Defendant
has asserted in her affirmative defenses that the subsequent motorcycle crash was a
cause, in whole or in part, of the injuries Plaintiff claims were caused from the 2017
crash. [DIN 283] Dr. Ipser’s testimony at trial would consist of an accident
reconstruction of the 2018 crash, the occupant kinematics of Plaintiff's body as a
result of that crash, the forces that would have been placed on Plaintiff’s body as a
result of that crash, and the likelihood of injury a person might suffer as a result of
those forces. Dr. Ipser made clear that he has no intention to opine on whether the
2018 motorcycle crash caused Plaintiff's injuries.
More specifically, Dr. Ipser’s opinions focus on the likelihood a person would
suffer head and/or neck injuries as a result of the forces that would have beensustained by the human body from the 2018 crash. As discussed above, Dr. Ipser
first conducted an accident reconstruction to determine the speed of the motorcycle
Plaintiff was riding upon at the time of the 2018 crash. Dr. Ipser then analyzed the
kinematics to determine the biomechanics of what Plaintiff's body would have done
during the crash and the forces her body would have sustained. Dr. Ipser then
applied the Federal Motor Vehicle Safety Standards to determine the likelihood of
injury to a person sustaining those forces.? Dr. Ipser opined that based on the
aforementioned standards, the range of forces Plaintiff would have incurred from the
2018 crash created a likelihood of a serious closed head injury, as well as a serious
neck injury.
The opinions being offered by Dr. Ipser in this case are similar to the opinions
the Court held were properly admitted in Boyles v. Dillard’s Inc., 199 So.3d 315
(Fla. 1 DCA 2016). There, as here, Plaintiff moved to strike Dr. Ipser’s testimony
before trial. At the Daubert hearing, Dr. Ipser testified, as in this case, that he was
offering opinions regarding the accident reconstruction and the nature of the physical
forces involved, to help the jury understand the levels of those forces on the human
body. Jd. at 317. As in this case, Dr. Ipser did not offer an opinion as to whether
the forces produced caused an injury to the Plaintiff. Jd. The Court, applying the
3 Plaintiffs counsel challenges Dr. Ipser’s use of these federal standards. The Court in Garcia v. Kelly-
Springfield Tire Co., 2004 WL 6047326, *2 (M.D. Fla. 2004) acknowledged acceptability of this criteria
as a basis for similar opinions rendered by Dr. Ipser deemed admissible following a Daubert hearing.
6same version of §90.7024 as is applicable here, found the trial court properly
admitted Dr. Ipser’s opinions, and the testimony “was well within [the proper]
parameters ... , and he didn’t even render admissible opinions as to the causal
mechanisms of the sorts of injuries plaintiff suffered.” Jd. at 318 (emphasis in
original).> See also Garcia, supra, (following Daubert hearing U.S. District Court
found Dr. Ipser’s opinions admissible including susceptibility of serious injury based
on forces Plaintiff suffered following motor vehicle crash); Miles v. General Motors
Corp., 262 F.3d 720, 723-26 (8th Cir. 2001).
This Court finds that Dr. Ipser is qualified to render the opinions offered;® the
opinion testimony is based on sufficient facts and data; the opinion testimony is the
product of reliable principals and methods; and the principals and methods have been
reliably applied to the facts of this case.
* There had been confusion over the past decade as to the proper standard for trial courts to apply in
admitting expert opinions. The Florida Legislature amended $90.702 in 2013 to no longer follow the long-
standing standard in Frye v. U.S., 293 F. 1013 (1923) for the admissibility of scientific testimony, and
adopted the Daubert standard adopted by the federal courts and the supermajority of states. However, in
DeLisle v. Crane Co. 258 So.3d 1219 (Fla. 2018), the Florida Supreme Court declared that the legislative
amendment to §90.702 exceeded the authority of the Legislature because it is a procedural rule which was
beyond the power of the Legislature to amend. In 2019, the Florida Supreme Court ended the confusion
and adopted the current version of §90.702, returning Florida to the Daubert standard. In re Amendments
to Florida Evidence Code, 278 So.3d 551 (Fla. 2019).
5 This Court is permitted to take judicial notice of expert testimony previously deemed reliable by an
appellate court. Boyles, 199 So, 2d at 318, citing Booker v. Sumter County Sheriff's Office/ No. Amer. Risk
Svs., 166 So.3d 189, 194 (Fla. 1 DCA 2015).
© Dr. Ipser holds a Ph.D. in physics and has taught undergraduate and graduate courses at the University
of Florida in accident reconstruction and occupant kinematics. Dr. Ipser’s qualifications in accident
reconstruction and occupant kinematics are largely unchallenged. Dr. Ipser has testified as an expert
witness in these areas numerous times, including before this Court.
7It is undisputed that Plaintiff is claiming she suffered neck injuries from the
2017 crash; therefore, Dr. Ipser’s opinion testimony regarding the forces a person
would have incurred from the 2018 motorcycle crash, and the likelihood those forces
could cause a neck injury to a person, is relevant. However, less clear is the
relevance of Dr. Ipser’s opinion testimony with regard to the likelihood those forces
could have caused a serious closed head injury. Plaintiff's counsel represented at
the hearing that Plaintiff is only asserting neck injuries from the 2017 crash, and is
not claiming to have suffered a closed head injury. Defense counsel represented at
that hearing that Plaintiff is claiming to suffer headaches as a result of the 2017 crash.
This Court has insufficient information at that this time to determine the relevance
of Dr. Ipser’s opinion regarding the likelihood a person could suffer a head injury as
a result of the forces from the 2018 crash. Accordingly, the Court will defer ruling
on that portion of Dr. Ipser’s opinion testimony until trial.
Therefore, it is ORDERED AND ADJUDGED that:
Plaintiff's Fifth Motion in Limine (To Strike the Testimony of Dr. James
Ipser) is DENIED as to Dr. Ipser’s opinion regarding the 2018 crash accident
reconstruction, kinematics, the forces Plaintiff's body would have suffered, and the
likelihood a person could have suffered neck injuries from those forces. The Court
defers ruling until trial regarding the portion of Dr. Ipser’s opinions regarding thelikelihood a person could have suffered a head injury from the forces that would
have occurred from that crash.
DONE AND ORDERED in chambers, in St. Johns County, Florida, on 25 day
of June, 2021.
e-Signed 6/25/2021 4:21 PM CA19-0740
CIRCUIT JUDGE
Copies to:
Eric R. Andeer, Esq.
Jennifer L. Watson, Esq.9/27/21, 3:05 PM Moore v. Estate of Posey | Cases | Mississippi | Westlaw
ta oder
2021 WL 2660618
Only the Westlaw citation is currently available.
United States District Court, S.D. Mississippi, Eastern Division.
Moore v. Estate of Posey
United States District Court, S.0. Mississippi, Easter Division. April 15,2021 Slip Copy 2021 WL 2660818 (Approx. 3 pages)
v.
dants 1-8, Defendants
Ernest Posey, Individually, and on behalf of all the wrongful death
beneficiaries and representatives of the heirs at law of Brooke Posey,
deceased minor, Consolidated, Plaintiff
v.
Zackary Moore, Nicholas Konz and USAA Casualty Insurance Company,
Consolidated, Defendants
CIVIL ACTION NO, 1:18-CV-327-KS-RPM
Signed 04/15/2021
Attorneys and Law Firms
George W. Healy, [V, Anthony R. Liberate, George W. Healy, IV & Associates, Albert Ralph
Jordan, IV, Healy & Jordan, PLLC, Gulfport, MS, for Ernest Posey.
fan A. Brendel, Alexander Shunnarah Gulf Coast, LLP, Mobile, AL, Edward Coleman Taylor,
Katie R. Van Camp, Daniel, Coker, Horton & Bell, Gulfport, MS, for Zackary Moore.
James Scott Rogers, Vernis and Bowling, Flowood, MS, for USAA Casualty Insurance
‘Company.
Nicholoas Konz, Kiln, MS, Pro Se.
ORDER
KEITH STARRETT, UNITED STATES DISTRICT JUDGE
“1 This cause came before the Court on the Motion to Exclude Expert Opinions of Dr.
James Ipser filed by Defendant Zackary Moore ("Moore") [246]. The motion is fully briefed
and ripe for ruling. Having reviewed the parties’ submissions and the relevant legal
authorities, and otherwise being duly advised in the premises, the Court finds that the
motion will be denied.
1, BACKGROUND
This case arises from a multiple vehicle collision that occurred on March 16, 2017, which
resulted in the death of Brooke Posey. There were four vehicles involved—a white
Chevrolet Silverado driven by Nicholas Konz; a black Honda Civie driven by Brooke Posey;
a black Chevrolet Silverado driven by Zackary Moore; and a back Toyota Tundra driven by
Guy Layton, which was pulling a boat on a trailer and was the last vehicle impacted. There
are widely divergent views of what occurred on that fateful aftemoon, mainly due to the fact
that there were no eyewitnesses to the entirety of the actual accident. Because of that, one
of the main factual disputes involves the precipitating event that set in motion the collisions
that took place.
Moore contends that prior to the impact between his vehicle and Ms, Posey's vehicle, Ms.
Posey, traveling southbound, rear-ended Mr. Konz's white Silverado as it sat in the
southbound lane, waiting to turn left. This impact allegedly forced Ms. Posey's vehicle into
Moore's lane of travel. Moore, on the other hand, contends that Mr. Konz was not sitting still
waiting to turn; instead, Konz pulled out in front of Ms, Posey from the western shoulder of EX. F
https://1 next.westlaw.com/Document/I08b18750d952 11 eb984dc49525be265a/View/FullText. htm! ?listSource=RelatedInfo&list=CitingReft9/27/21, 3:05 PM Moore v. Estate of Posey | Cases | Mississippi | Westlaw
the road. Both Plaintiffs and Moore have hired accident reconstructionists, Dr. James Ipser
and Mr. Allen Powers, respectively, to testify in support of the parties’ theories. 1 Moore
now seeks to exclude the testimony of Plaintiffs’ expert, Dr. Ipser under the Daubert
standard,? arguing that the testimony is unreliable. [246] at p. 2.
Il. DISCUSSION
A. Legal Standard
The motion before the Court challenges the admissibility of expert testimony and opinions
under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993), The admissibility of expert testimony is
governed by Rule 702, which states:
Awitness 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;
(e) 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.
*2 The Supreme Court has explained that this rule places the district court into a
gatekeeping role in order to ensure that scientific evidence is both reliable and relevant.
See Curtis v. M&S Petroleum. Inc., 174 F.3d 661, 668 (5th Cir. 1999) (citing Daubert, 509
Preview
Filing # 135598042 E-Filed 09/29/2021 04:08:23 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA CASE NO. 2019-CA-2760 MARSHA SUE PIDHERNEY, Plaintiff, vs. MARION COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant. / DEFENDANT’S RESPONSE TO PLAINTIFE’S MOTION TO STRIKE OR EXCLUDE TESTIMONY OF DR. JAMES R. IPSER AND INCORPORATED MEMORANDUM OF LAW Defendant, MARION COUNTY, FLORIDA, by and through its undersigned counsel, hereby file their Response to Plaintiff, MARSHA SUE PIDHERNEY’S Motion to Strike or Exclude Testimony of Dr. James R. Ipser, and states as follows: Plaintiff moves to (1) exclude any testimony from Dr. Ipser as to “delta-v”, (2) any expectation of injury, (3) analogous ways of reproducing force, or equivalent ways of reproducing force. Plaintiff seeks to have this testimony of Dr. Ipser ruled inadmissible under the Daubert standard for scientific evidence and Section 90.403, Florida Statutes. I. Brief Background Notwithstanding Plaintiffs statement that “[t]his cause stems from a motor vehicle crash occurring on April 3, 2019, . . .” in fact, the claim relates to a minor bump between the Defendant’s transit van and the rear bumper of Plaintiff's Chevrolet. See Photo of back of Plaintiff's vehicle, attached hereto as Ex. A., and Photos of front of Defendant’s van, attached hereto as Exhibits B., C. and D. Florida Rule of Evidence 90.702 was amended in 2018 and reads, in its entirety, as follows: Testimony by experts.—If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an 1 Electronically Filed Marion Case # 19CA002760AX 09/29/2021 04:08:23 PMopinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. IL. Plaintiff's Motion Is Not Based on Relevant Controlling Authority Plaintiffs un-numbered seventeen page motion is primarily grounded on a single appellate decision, Mattek v. White, 695 So.2d 942 (Fla. 4° DCA 1997), and ten non-precedential local orders, five of which are more than 20 years old, and the most recent of which dates from 2013. The citation to Mattek appears to be a “red herring,” in that the holding of that case was that Dr. Ipser, because he had no medical training, was unqualified to testify that plaintiff had no permanent injury as a result of the rear-end accident in that case. The defense is not offering Dr. Ipser to render testimony regarding permanency of injury in the instant case, and therefore the holding of Mattek is irrelevant to the testimony sought to be excluded by Plaintiff's motion. Dr. Ipser also testified regarding vehicle speed in Mattek, which testimony was not challenged. There are several appellate decisions, none of which are mentioned by Plaintiff, that are relevant to the issues in Plaintiff's motion. In a decision involving Dr. Ipser, the Fourth District reversed a verdict for Plaintiff after holding that the trial court erred in prohibiting Dr. Ipser from offering expert testimony regarding the speed and force of impact in the parties’ automobile collision. See Bryant v. Beurman, 739 So.2d 710 (Fla. 4" DCA 1999). The Bryant court noted that Dr. Ipser’s improperly excluded opinions “would have been helpful to the jury” and they would have buttressed the defendant’s argument “that the plaintiff's injury could not have been caused by a slow-speed, low- impact accident.” And, Judge Klein’s special concurring opinion noted that “‘it is well settled that an expert in accident reconstruction can render an opinion about the speed of a vehicle and the force of impact. Whether that issue can be the subject of expert testimony is not controversial.” 739 So.2d at 713.A year after the Bryant decision, the Fourth District in Zane v. Coastal Unilube, Inc., 744 So.2d 761 (Fla. 4" DCA 2000), held that the defendant’s expert was properly allowed to testify “as to eh probabilities of plaintiff suffering no injury from a S-mile an hour accident with an operational seatbelt in use.” In Zane, the expert’s testimony was offered solely as to the ‘expectation’ of plaintiff suffering no injury. In Gregory Council v. State, 98 So.3d 115 (Fla. 1 DCA 2012), involving a charge of criminal child abuse by the defendant, the court overturned the jury’s conviction and held that the defendant’s expert was qualified to testify that a fall from a day bed could have caused the type of brain trauma suffered by the victim, while shaking alone could not have cause such injuries, and thus the expert’s testimony should not have been excluded. In Maines y. Fox, 190 So.3d 1135 (Fla. 4" DCA 2016, the court held that “biomechanical opinions as to the general causation of a type of injury are admissible.” It follows that Dr. Ipser’s opinions regarding the likelihood of the presence of a mechanism of serious injury are admissible and should not be excluded. In Booker v. Sumter County Sheriff's Office / North America Risk Svcs., 166 So.3d 189 (Fla. 1* DCA 2015), the court held that a judge is permitted to take judicial notice of the reliability of an expert’s testimony if the expert testimony has been deemed reliable by an appellate court. In Boyles v. Dillard’s, Inc., 199 So.3d 315 (Fla. 15 DCA 2016), an appellate decision involving the testimony of Dr. Ipser that post-dates all of the cases and orders cited by Plaintiff in support of its motion, the court indicated that Dr. Ipser was permitted to testify about the physical forces involved in the subject accident, noting that his testimony was well within the parameters of Maines with respect to accident reconstruction. The Court held that Dr. Ipser did not render inadmissible opinions that required medical expertise. The court went on to state that Dr. Ipser could have given testimony as to the causal mechanisms of the sorts of injury plaintiff suffered andit would have been admissible. Therefore, in light of the Boyles decision and following Booker, Defendant asks the court to take judicial notice of the reliability of Dr. Ipser’s testimony with respect to the three subjects of testimony raised by Plaintiff's motion. TIL. Recent Rulings Involving Dr. Ipser Point II of Plaintiffs motion, concerning prior disqualifications of Dr. Ipser, asserts that “Dr. Ipser has a long and unsettling history with the courts of Florida, and they have repeatedly limited or excluded his opinion testimony.” One might infer from Plaintiffs comments that no courts are permitting Dr. Ipser to offer the type of testimony Plaintiff seeks to exclude herein. The Florida appellate decisions discussed above are to the contrary. In addition to those appellate decisions, the Defendant cites the June 25, 2021 Order on Plaintiffs Fifth Motion in Limine in Lesa Black v. Cynthia Lewis, Case No. CA 19-740 (Seventh Judicial Circuit of Florida), wherein the court denied the motion to strike Dr. Ipser’s testimony. (Copy attached as Ex. E), That case was tried to verdict about two weeks ago. Next, Defendant cites the Order in Moore v. Estate of Posey, 2021 WL 2660618, U.S.D.C., S.D. Miss., Eastern Div., April 15, 2021 (Copy attached as Ex. F), wherein the District Judge denied a Motion to Exclude Expert Opinions of Dr. James Ipser. Coincidentally, Dr. Ipser has been in Mississippi this week, testifying in the trial of that matter. In DePaul et al., v. XPO Logistics Truckload, Inc., Case No. 562016CA00127 AN, the Circuit Judge in her October 25, 2018 “omnibus order” on pretrial motions, at paragraph 3, denied “Plaintiffs Motion in Limine to Exclude All Evidence, Opinions, and Argument at Trial Concerning Defendants’ Expert James Ipser, Ph.D.’s Opinion Testimony Regarding the Injuries Sustained by Plaintiff Jirah DuPaul, with Supporting Memorandum of Law.” (Copy attached as Ex. G). IV. ARGUMENT Dr. Ipser's testimony should be admitted because it will assist the trier of fact in understanding the issues in this case, and Dr. Ipser is more than qualified to render his opinion, 4which is based on sufficient facts and data reliably applied to the circumstances of this case. Further, courts in other jurisdictions have permitted similar testimony as to analogies, finding that such analogies would assist the trier of fact in understanding the issues. The offered testimony of Dr. Ipser would be as any other accident reconstructionist. In order to assist the jury in understanding the forces to which he will testify, he intends to provide the jury with a frame of reference from their own everyday experiences. Dr. Ipser also intends to testify to certain equivalent means of reproducing the same impact and to analogies to certain everyday activities that typically produce the same force. The proffered testimony does not violate section 90.403, Florida Statutes as Plaintiff contends. As set forth below, there are a number of courts throughout the state of Florida that have permitted Dr. Ipser to testify to the equivalencies and analogies, finding that they would assist the trier of fact in understanding the forces testified to by Dr. Ipser. In this case, Dr. Ipser has testified that the force on Plaintiff s car was less than 1.4Gs and that we are dealing with an upper limit delta-v of 4.5 miles per hour. (Ipser Depo., page 44, lines 8-9). Although jurors may be familiar with the concept of 4.5 miles per hour, Defendants assert that jurors would likely not comprehend the meaning of a 4.5 mpg delta-V of the 1.75G forces generated in this type of accident. To prohibit Dr. Ipser from explaining these characteristics in terms of equivalents and real world examples to assist the trier of fact would be prejudicial to the Defendant. In this case, causation is a major issue. If the Court limits or excludes Dr. Ipser's testimony as to the equivalents or analogies used by him to describe the forces involved in this accident, Defendant will be prejudiced. Plaintiff will be allowed to argue that this accident, no matter how minor, can result in the claimed injuries, yet the jury will not be permitted to hear any testimony to explain the forces in this accident. Defendant respectfully requests that this court consider the facts and circumstances of the 5instant case and permit Dr. Ipser's testimony in its totality. If any concerns are raised during his testimony at trial, the Court can order a proffer of the intended testimony. Defendant submits that such a proffer would be a more appropriate way to address the testimony regarding the equivalents and analogies, and would permit the Court to consider such testimony in the context of the trial. in the Fields of Biomechanics and Accident Reconstruction The first step into any Daubert inquiry is to determine if the witness is qualified to testify as an expert. Courts have long held that "the test for expertise is not overly rigorous and the trial court should not exclude expert testimony simply because the court feels that the proffered witness is not the most qualified or does not have the specialization considered most appropriate by the court." Galloway v. Big G Express, Inc., 590 F. Supp. 2d 989, 994 (E.D. Tenn. 2008). Courts have also long held that an expert may be qualified based on his experience in the field; professional education is not required. See United States v. Frazier, 387 F.3d 1244, 1260-61 (11" Cir. 2004). Dr. Ipser has provided testimony in over 250 cases in state and federal courts throughout Florida as well as several other states. Dr. Ipser has been retained in over 4,000 cases as an accident reconstruction and biomechanical physics consultant and has possessed a reconstructionist certification for 24 years. Plaintiff's motion fails to address the complete extent of Dr. Ipser's education, background, experience and training. A copy of Dr. Ipser's Curriculum Vitae (CV) is attached as Exhibit H to Defendant’s response. As the CV reflects, Dr. Ipser earned a Bachelor's Degree in Physics from Loyola University in 1964. He earned his M.S. and Ph.D. in Physics from the California Institute of Technology in 1967 and 1969, respectively. Dr. Ipser has been a professor of physics for more than 30 years at the University of Florida, Department of Physics and previously was a tenured physics professor at the University of Chicago for 10 years. It is undisputed that concepts of physics are used in the field of biomechanics. Indeed, the fundamental basis for biomechanics is physics. Mechanics is the most fundamental area ofphysics. It focuses on the structure and motion of all objects, how these attributes are described, and the way in which they are affected by the application of forces. Dr. Ipser's undergraduate and graduate coursework included extensive study of mechanics, with extensive applications to humans and vehicle collisions in particular. Dr. Ipser has also had annual continuing education in accident reconstruction and biomechanics. In 1997, he created and subsequently began teaching a graduate-level course called "Physics of Accident Reconstruction and Biomechanics." In order for this course to be taught, it first had to be peer-reviewed by the faculty of the College of Liberal Arts and Sciences at the University, and then certified by the State University System as part of its graduate curriculum. Dr. Ipser has been certified, since 1997, as an Accident Reconstructionist by the international organization known as the Society of Accident Reconstruction (SOAR). In order to obtain this certification, Dr. Ipser was required to demonstrate his education, training, background, work product, trial experience, and ability to analyze accidents in various types of cases. Dr. Ipser is also a member of the International Society of Biomechanics, Accident Reconstruction Network, and the Society of Automotive Engineers. He is also a member of numerous professional physics organizations. He has worked as a consultant in the field of biomechanics and accident reconstruction since 1993. As detailed above and as set forth fully in his CV, Dr. Ipser's education and professional experience more than qualify him as an expert in this case and he should be permitted to provide his intended opinion in the areas-of accident reconstruction and biomechanics. Dr. Ipser made it clear during his deposition that he does not intend to offer any medical opinions. (Ipser Depo., Page 27, Line 25; Page 28, Lines 1-3) Specifically, Plaintiffs counsel asks Dr. Ipser during his August 26, 2021 deposition the following: Question: Okay. And you agree with me that the mechanism of serious injury, that is going 7to get into medical causation. Correct? Answer: No, it’s not. In another exchange, (Ipser Depo., Page 32, Lines 10-16), Plaintiff counsels states the following: Question: Well, in regards to a reason why a lawsuit could be brought, medical causation, you are not qualified to render any opinion about that. Answer: I’m not offering a medical cause. My analysis of that accident, if I did analyze it and use it in any way, wouldn’t be a medical issue. Pe &, Nevertheless, Plaintiff repeatedly refers to Dr. Ipser’s “statements” but fails to identify what statements were actually made during the deposition. In fact, Plaintiff repeatedly states “Dr. Ipser’s deposition transcript to be provided upon receipt of same” and never cites to any specific deposition testimony of Dr. Ipser. Therefore, Plaintiff's Motion does not adequately apprise Defendant of the testimony sought to be stricken. The equivalents and analogies are being offered by Dr. Ipser to help the jury understand the levels of the forces that we're dealing with here in ways other than just saying the delta-v is 4.5 miles per hour. In this connection, the validity of the equivalents is based on the laws of physics. That the forces in the equivalents are the same as in the subject accident is simply a consequence of the laws of physics. That the same forces must produce the same physical effects is again simply a consequence of the laws of physics. Any argument that the application of this logical process involves medical opinions lack merit. ir. Ipser's Opinion: i inciples and Methods Plaintiff argues that Dr. Ipser's testimony as to the equivalents and analogies are not based on reliable principles and methods. As noted above, Plaintiff has not taken the time to identify specific deposition testimony from Dr. Ipser and leaves this Court having to rely on Plaintiff'ssummarization of the deposition testimony of Dr. Ipser. The rationale behind the standard is to ensure that the methodology employed by the expert is reliable as shown through testing, peer review, error rates and acceptability in the relevant scientific community. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). These factors are only illustrative, not exhaustive; not all of them will apply in every case and in some cases other factors will be equally important in evaluating the reliability of the proffered expert opinion. Moreover, "[uJnlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge and observations." Daubert, 509 U.S. at 592 (emphasis added). Relaxation of first-hand knowledge "is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id. In this case, Dr. Ipser's testimony is based on reliable principles and methods, and all of Plaintiff's arguments to the contrary lack merit. As Dr. Ipser stated during his deposition, to prepare his opinions in this case, he collected and reviewed relevant documents and information. He visited the scene and took measurements and photographs. He also collected data on the physical characteristics of the vehicles involved in the accident. Thereafter, Dr. Ipser performed physics analyses in the areas of accident reconstruction and biomechanical physics, and the application of the fundamental area of physics known as "mechanics," including laws of energy and momentum conservation. Dr. Ipser was able to assess the crash damage to both vehicles by looking at the photographs provided of each vehicle, as well as through photographic examination of the Defendant’s vehicle. Of note, Plaintiff sold her vehicle prior to Dr. Ipser being retained to provide expert analysis and testimony in the present matter. It is generally accepted in the accident reconstruction community that one can in general use vehicle photographs. Using the data and information collected, Dr. Ipser was able to reconstruct the accident, 9the relative velocity or closing speed of the vehicles at contact, the changes in velocity at impact, and the forces created in the same. In order to further explain the velocity and force calculations, Dr. Ipser uses equivalents and analogies to assist the trier of fact. Dr. Ipser applied the principles incorporated in Newton's Laws of Physics to the accident reconstruction and biomechanical analysis of this case. Newton's Laws of Physics have been tested and subject to peer review for centuries. Indeed, these principles are the content of physics textbooks and are completely accepted within the biomechanical and scientific communities. Plaintiff has not presented any evidence whatsoever that Dr. Ipser has made incorrect calculations applying Newton's Laws and their consequences in reaching his opinions regarding the velocities and forces in this accident. Plaintiff was provided a detailed account of each and every physics equation, formula, and calculation Dr. Ipser used, in his own handwriting, prior to the deposition. If Dr. Ipser's scientific method is questioned, Defendant requests that the Plaintiff, rather than simply making bare pronouncements, provide a concrete scientific basis for that questioning. As to the equivalents used by Dr. Ipser to illustrate the forces of impact and changes of velocity, they are specifically grounded within the laws of physics. Plaintiff appears to recognize that the forces involved, including those in the equivalents, are beyond the experience of any juror, which render them precisely the type of subject on which expert testimony is proper and needed. As for the barrier-impact equivalent, its worthiness is further supported by the programs of the National Highway Traffic Safety Administration (NHTSA). For over 30 years, NHTSA has used barrier impacts to simulate vehicle and occupant forces of impact in real-world vehicle-to- vehicle impacts. Various NHTSA programs have for decades utilized barrier impacts to measure forces of impact experienced by occupants, as well as crash-strength properties of vehicles themselves, which are deemed to extend reliably to vehicle-to-vehicle impacts. The results of 10these studies are even used to develop and improve standards for vehicle design. Plaintiff's arguments regarding the lack of reliability of Dr. Ipser’s testimony would call into question all of the decades of data that NHTSA has collected and utilized to make vehicles safer for the motoring public. In regards to the analogies Dr. Ipser intends to use to explain the forces in this impact, Plaintiff has also claimed those are not reliable under Daubert. Unlike the equivalents, which are designed according to the laws of physics to reproduce the forces of impact on an object both in magnitude and direction, these average daily activity analogies involve the same magnitude of forces, but not direction. Dr. Ipser will use the analogies to provide additional information that the jury can consider to better understand the levels of forces involved. The methodology and principles used by Dr. Ipser in his accident reconstruction and biomechanical analyses, have been tested, peer reviewed, and are commonly accepted within the biomechanical and scientific community. The equivalents (i.e., the barrier test, sled test and swing test) are not subject to error because they are based on the laws of physics. In particular, the heights from which the sled and pendulum/swing must be released in order to yield the required change of velocity are uniquely determined by the change of velocity, in accordance to the work energy theorem in physics. The average daily activity analogies, likewise, have been generally accepted in the field. Dr. Ipser's method for analyzing an accident is reliable. Additional comments of Dr. Ipser are in support of this response are attached hereto as Ex. I. Defendant was unable to obtain an affidavit from Dr. Ipser in time to file this Response, because he was out-of-state. D * timony Will Assist the Trier The jury in this case will be asked to determine whether or not the impact in this case resulted in injuries to the Plaintiff. The nature of the accident is a very important aspect of this llcase, As demonstrated herein, Dr. Ipser's opinions are well grounded in the laws of physics and they will assist the trier of fact in determining the issues in this case. The general population does not have an understanding of the laws of physics applied by Dr. Ipser including the laws of energy and momentum conservation, relative velocity or change of velocity (delta-v), and the different types of forces. These issues are highly technical scientific laws and calculations. Dr. Ipser's testimony would certainly aid the jury in understanding and determining the issues in this case. Further, for the reasons set forth herein, Dr. Ipser's testimony would be more helpful than harmful. As such, Dr. Ipser's testimony is not subject to exclusion under Florida Rule of Evidence 90.403. In fact, it would be prejudicial to the Defendants not to allow Dr. Ipser to testify. Relevant evidence is inherently prejudicial and it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters. Veach y, State, 254 So.3d 624 (1% DCA 2018). erous Court: Vi _ Ipser to Testify to Similar Opini While Plaintiff has presented the court with orders that have limited or excluded the testimony of Dr. Ipser, often on issues completely unrelated to Dr. Ipser’s opinions in this case, Plaintiff has failed to even mention that many courts throughout the state have permitted Dr. Ipser to testify on subjects similar to those at issue in the instant case, and specifically as to the analogies Dr. Ipser mentioned during his deposition. The discussion below includes a sampling, and not an exhaustive list, of those cases in which Dr. Ipser was permitted to testify to issues similar to those at issue in the instant case. For example, in Garcia v, Kelly-Springfield Tire Company, 2004 WL 6047326 (M.D. Fla. 2004), the Honorable District Judge Elizabeth A. Kovachevich of the United States District Court for the Middle District of Florida denied in its entirety a motion in limine to exclude the testimony of Dr. Ipser. As in this case, in Garcia, Dr. Ipser indicated he intended to testify to, among other 12things: "speed of vehicle at time of the accident" and "comparisons of G-forces experienced by [the plaintiff] with every day activities and the values needed to damage tissue and bone." The court found that Dr. Ipser was qualified to testify by virtue of his education and service as a member of the University of Florida faculty, and his certification as an accident reconstructionist. Further, while the court did not specifically address the issue of Dr. Ipser's analogies, the court found that Dr. Ipser's methodology was reliable and that he was "testifying based on principles long accepted in the relevant scientific community." Numerous Florida state courts have also permitted Dr. Ipser to testify to similar opinions as those at issue here. In Vaughn v. Varn, Case No. 16-10-CA-837 (Fourth Judicial Circuit of Florida Dec. 5, 2012), the Honorable Jack M. Schemer denied a motion to strike and/or limit the testimony of Dr. Ipser. In so doing, the court specifically ruled that "Dr. Ipser is allowed to testify regarding the forces in the accidents, his delta-v calculations of the accidents, and the equivalents (barrier test, swing test, sled test, and examples regarding average daily activities)." In Gibbs v. Travelers Property Casualty Insurance Company, Case No. 07-1640- CI-13 (Sixth Judicial Circuit of Florida, June 17, 2010), the court denied a motion in limine to exclude Dr. Ipser, and specifically ruled that "Dr. Ipser will be permitted to testify as to equivalents and daily activities with similar forces as to those involved in the subject accident, but is precluded from mentioning whether or not such equivalents can cause injury." In Cadle v. Geico General Insurance Company, Case No. 05-2009-CA-013025 (Eighteenth Judicial Circuit of Florida Mar. 1, 2011), the court conducted a Frye inquiry and denied plaintiff s motion to strike Dr. Ipser's testimony. In its Order, the court addressed Dr. Ipser's intended testimony regarding force comparisons to everyday life, finding that "it is not uncommon for experts to provide comparisons so that the trier of fact can better understand what the expert is attempting to explain." The court ruled that those comparisons would be admissible "[i]f the 13examples . . . discuss and explain speed and would assist the trier of fact in better understanding the issues and testimony." In Wright v. Hatcher, Case. No. 02-CA-5669 (Ninth Judicial Circuit of Florida, July 2, 2007), the court ruled that Dr. Ipser was permitted to testify. The court in that case specifically ruled that "the testimony of Dr. Ipser will aid the jury in evaluating the core issues in the case, i.e., the speed at the time of the collision; the forces applied to the vehicles and consequently to the occupants; and whether Plaintiff likely sustained injury or damage proximately or legally caused by the collision." See also Wagner v. Elkihel, Case No. 10-43432 (23) (Eleventh Judicial Circuit of Florida Sept. 15, 2011) (ruling that Dr. Ipser was permitted to testify but that he would not be testifying on the issue of injury to the plaintiff) (attached hereto as Exhibit J). In Bonanno-Weisser y. Capital Lighting-West Palm Beach, Case No. 502008CA007472XXXXMB(AB) (Fifteenth Judicial Circuit of Florida Dec. 12, 2008), Dr. Ipser proposed to testify to the forces in a car accident and the comparison of those forces to equivalent forces in everyday life. The court ruled that Dr. Ipser could testify to "force of impact as it concerns the issues within his level of expertise and also as to speed as well...and...to issues of physics and accident reconstruction." In Arraga v. Garcia, (Fifteenth Judicial Circuit of Florida Nov. 8, 2001), Dr. Ipser was permitted to testify at trial using analogies comparing everyday activities and the forces involved in the accident at issue. Those analogies include plopping into a set from a height of eight inches, sneezing and riding a roller coaster. Conclusion As detailed herein, Dr. Ipser possesses the knowledge, skill, experience, training and education that qualify him to testify as an expert witness in this case. Moreover, his opinions are grounded in the well-established principles of physics and are reliable and generally accepted in 14the accident reconstruction, biomechanical and scientific communities. His testimony will assist the trier of fact in determining the issues in this case, and his opinions are not subject to exclusion under Florida Rule of Evidence 90.403. Moreover, he has been permitted by numerous courts in the state of Florida to testify to similar opinions. The parties have a 30-minute, non-evidentiary hearing time with respect to Plaintiff's Motion. Defendant respectfully requests that if the Court is inclined to grant the Motion, an evidentiary hearing be scheduled before making a final decision thereon. WHEREFORE, Defendant, MARION COUNTY, respectfully request that this court deny, in its entirety, Plaintiff's Motion to Strike or Exclude the Testimony of Dr. James R. Ipser. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic mail this 29" day of September, 2021, to the following: D. Graham Anderson, Esquire, Bogin, Munns & Munns, P.A., at ganderson@boginmunns.com and csherr@boginmunns.com and aquintana@boginmunns.com and BMMservice@boginmunns.com. MATTHEW G. MINTER COUNTY ATTORNEY /s/ Matthew G. Minter Matthew G. Minter, Esquire Florida Bar # 298719 Attorney for Defendant Marion County Marion County Attorney’s Office 601 SE 25" Avenue Ocala, Florida 34471 Telephone: (352) 438-2330 Fax: (352) 438-2331 E-mail:matthew.minter@marioncountyfl.org donnita.martin@marioncountyfl.org 15EX. CEX. DIN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT, IN AND FOR ST. JOHNS COUNTY, FLORIDA CASE NO.: CA19-740 DIVISION: 55 LESA BLACK, Plaintiff, vs. CYNTHIA LEWIS, Defendant. / ORDER ON PLAINTIFE’S FIFTH MOTION IN LIMINE This cause is before this Court pursuant to “Plaintiff's Fifth Motion in Limine (To Strike the Testimony of Dr. James Ipser).” [DIN 238]! Having considered the evidence and testimony at the hearing conducted on June 1, 2021, the arguments of counsel, and being otherwise fully advised in its premises, the Court finds as follows: This case involves a claim for personal injuries as a result of a motor vehicle crash on December 20, 2017. This matter is currently scheduled for trial during the trial term that commences on September 13, 2021. [DIN 275] Pursuant to the orders scheduling trial, the parties disclosed their expert witnesses. Defendant disclosed Dr. James Ipser as an expert who will testify at trial. [DIN 167] Plaintiff moves to ' References to the court docket are made by identifying the Docket Identification Number (“DIN”). E.g. [DIN 1]. 1 Filed for record 06/28/2021 10:08 AM Clerk of Court St. Johns County, X. Eexclude Dr. Ipser’s opinion testimony, asserting it does not comply with the requirements in Fla. Stat. §90.702.7 Fla. Stat. §90.702 governs the admissibility of expert testimony and provides: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. See also, In re Amendments to Florida Evidence Code, 278 So.3d 551 (Fla. 2019). The current version of Fla. Stat. §90.702 follows Rule 702 of the Federal Rules of Evidence. In Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court explained that Rule 702 imposes an obligation on a trial court to act as gatekeeper, to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Id. at 589. Accordingly, courts properly admit expert testimony only when the proffering party establishes by a ? The Defendant challenges Plaintiff’s motion on procedural grounds, asserting the Plaintiffs motion was vague and didn’t adequately specify the expert opinions challenged. Plaintiff's counsel acknowledged the motion was vague in order to have satisfied the Court’s deadlines for filing such motions. At the outset of the hearing on the motion, Plaintiffs counsel specified the portions of Dr. Ipser’s opinions he challenges; thus, the Court and defense counsel were able to focus on the specified issues raised. Additionally, the Court gave defense counsel additional time to submit a post-hearing memorandum on the issues raised. [DIN 291] Thus, defense counsel was not unfairly prejudiced by the vague nature of Plaintiffs motion. Lastly, in her post-hearing memorandum, defense counsel raised for the first time a challenge to the Plaintiff's hearing notice for the instant motion, asserting it failed to specify the hearing would be evidentiary. Because defense counsel failed to raise this challenge at the time of the hearing, and she had Dr. Ipser present at the hearing to testify, this challenge will not be entertained. 2preponderance of the evidence that (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Hudgens v. Bell Helicopters/ Textron, 328 F.3d 1329, 1338 (11 Cir. 2003). In Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999), the U.S. Supreme Court explained that the gatekeeper role for the trial court, in determining the admissibility of expert testimony, is applicable to non- scientific as well as scientific expert testimony. For the purpose of conducting the reliability inquiry mandated by Daubert, the U.S, Supreme Court has suggested that a trial court consider a number of factors, which include (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the theory has attained general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593- 94. These factors are not exhaustive and do not necessarily apply to all experts or in every case. Kumho Tire, 526 U.S. at 141; Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11" Cir. 1999). The Court’s inquiry must focus on the methodology, not the conclusions, but the Court is not required to admit opiniontestimony only connected to existing data by an expert’s unsupported assertion. Daubert, 509 U.S. at 595; General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). In addition to determining the reliability of the proposed testimony, Daubert instructs that Rule 702 requires the Court to determine whether the evidence or testimony assists the trier of fact in understanding the evidence or determining a fact in issue. Daubert, 509 U.S. at 591. This consideration focuses on the relevance of the proffered expert testimony or evidence. The Court explained that to satisfy this relevance requirement, the expert testimony must be “relevant to the task at hand.” Id. Because scientific testimony does not assist the trier of fact unless it has a justified scientific relation to the facts, the U.S. Eleventh Circuit Court of Appeals has opined that “there is no fit where a large analytical leap must be made between the facts and the opinion.” McDowell v. Brown, 392 F.3d 1283, 1299 (1 Ith Cir. 2004). An expert must know facts which enable him or her to express a reasonably accurate conclusion instead of mere conjecture or speculation, and an expert’s assurances that they used generally accepted scientific methodology is insignificant. McCain v. Metabolife Int'l, Inc., 401 F.3d 1233,1244 (1 1th Cir. 2005). An expert’s opinion must be based on “knowledge,” not merely “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. Nothing in Daubert requires a court “to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,” and “[a] court may conclude that there is simply too great an analytical gapbetween the data and the opinion proffered.” Joiner, 522 U.S. at 146. Further, to assist the trier of fact, expert testimony must concern “matters that are beyond the understanding of the average lay person . . . expert testimony generally will not help the trier of fact when it offers nothing more than what lawyers for the parties can argue in closing arguments.” U.S. v. Frazier, 387 F.3d 1260, 1262-63 (11th Cir. 2004). The Court conducted an evidentiary hearing on June 1, 2021, at which time it received testimony from Dr. Ipser. Dr. Ipser is a physicist, who plans on rendering opinions involving a motorcycle crash that Plaintiff was involved in that occurred in October 2018, subsequent to the crash which is the subject of this case. Defendant has asserted in her affirmative defenses that the subsequent motorcycle crash was a cause, in whole or in part, of the injuries Plaintiff claims were caused from the 2017 crash. [DIN 283] Dr. Ipser’s testimony at trial would consist of an accident reconstruction of the 2018 crash, the occupant kinematics of Plaintiff's body as a result of that crash, the forces that would have been placed on Plaintiff’s body as a result of that crash, and the likelihood of injury a person might suffer as a result of those forces. Dr. Ipser made clear that he has no intention to opine on whether the 2018 motorcycle crash caused Plaintiff's injuries. More specifically, Dr. Ipser’s opinions focus on the likelihood a person would suffer head and/or neck injuries as a result of the forces that would have beensustained by the human body from the 2018 crash. As discussed above, Dr. Ipser first conducted an accident reconstruction to determine the speed of the motorcycle Plaintiff was riding upon at the time of the 2018 crash. Dr. Ipser then analyzed the kinematics to determine the biomechanics of what Plaintiff's body would have done during the crash and the forces her body would have sustained. Dr. Ipser then applied the Federal Motor Vehicle Safety Standards to determine the likelihood of injury to a person sustaining those forces.? Dr. Ipser opined that based on the aforementioned standards, the range of forces Plaintiff would have incurred from the 2018 crash created a likelihood of a serious closed head injury, as well as a serious neck injury. The opinions being offered by Dr. Ipser in this case are similar to the opinions the Court held were properly admitted in Boyles v. Dillard’s Inc., 199 So.3d 315 (Fla. 1 DCA 2016). There, as here, Plaintiff moved to strike Dr. Ipser’s testimony before trial. At the Daubert hearing, Dr. Ipser testified, as in this case, that he was offering opinions regarding the accident reconstruction and the nature of the physical forces involved, to help the jury understand the levels of those forces on the human body. Jd. at 317. As in this case, Dr. Ipser did not offer an opinion as to whether the forces produced caused an injury to the Plaintiff. Jd. The Court, applying the 3 Plaintiffs counsel challenges Dr. Ipser’s use of these federal standards. The Court in Garcia v. Kelly- Springfield Tire Co., 2004 WL 6047326, *2 (M.D. Fla. 2004) acknowledged acceptability of this criteria as a basis for similar opinions rendered by Dr. Ipser deemed admissible following a Daubert hearing. 6same version of §90.7024 as is applicable here, found the trial court properly admitted Dr. Ipser’s opinions, and the testimony “was well within [the proper] parameters ... , and he didn’t even render admissible opinions as to the causal mechanisms of the sorts of injuries plaintiff suffered.” Jd. at 318 (emphasis in original).> See also Garcia, supra, (following Daubert hearing U.S. District Court found Dr. Ipser’s opinions admissible including susceptibility of serious injury based on forces Plaintiff suffered following motor vehicle crash); Miles v. General Motors Corp., 262 F.3d 720, 723-26 (8th Cir. 2001). This Court finds that Dr. Ipser is qualified to render the opinions offered;® the opinion testimony is based on sufficient facts and data; the opinion testimony is the product of reliable principals and methods; and the principals and methods have been reliably applied to the facts of this case. * There had been confusion over the past decade as to the proper standard for trial courts to apply in admitting expert opinions. The Florida Legislature amended $90.702 in 2013 to no longer follow the long- standing standard in Frye v. U.S., 293 F. 1013 (1923) for the admissibility of scientific testimony, and adopted the Daubert standard adopted by the federal courts and the supermajority of states. However, in DeLisle v. Crane Co. 258 So.3d 1219 (Fla. 2018), the Florida Supreme Court declared that the legislative amendment to §90.702 exceeded the authority of the Legislature because it is a procedural rule which was beyond the power of the Legislature to amend. In 2019, the Florida Supreme Court ended the confusion and adopted the current version of §90.702, returning Florida to the Daubert standard. In re Amendments to Florida Evidence Code, 278 So.3d 551 (Fla. 2019). 5 This Court is permitted to take judicial notice of expert testimony previously deemed reliable by an appellate court. Boyles, 199 So, 2d at 318, citing Booker v. Sumter County Sheriff's Office/ No. Amer. Risk Svs., 166 So.3d 189, 194 (Fla. 1 DCA 2015). © Dr. Ipser holds a Ph.D. in physics and has taught undergraduate and graduate courses at the University of Florida in accident reconstruction and occupant kinematics. Dr. Ipser’s qualifications in accident reconstruction and occupant kinematics are largely unchallenged. Dr. Ipser has testified as an expert witness in these areas numerous times, including before this Court. 7It is undisputed that Plaintiff is claiming she suffered neck injuries from the 2017 crash; therefore, Dr. Ipser’s opinion testimony regarding the forces a person would have incurred from the 2018 motorcycle crash, and the likelihood those forces could cause a neck injury to a person, is relevant. However, less clear is the relevance of Dr. Ipser’s opinion testimony with regard to the likelihood those forces could have caused a serious closed head injury. Plaintiff's counsel represented at the hearing that Plaintiff is only asserting neck injuries from the 2017 crash, and is not claiming to have suffered a closed head injury. Defense counsel represented at that hearing that Plaintiff is claiming to suffer headaches as a result of the 2017 crash. This Court has insufficient information at that this time to determine the relevance of Dr. Ipser’s opinion regarding the likelihood a person could suffer a head injury as a result of the forces from the 2018 crash. Accordingly, the Court will defer ruling on that portion of Dr. Ipser’s opinion testimony until trial. Therefore, it is ORDERED AND ADJUDGED that: Plaintiff's Fifth Motion in Limine (To Strike the Testimony of Dr. James Ipser) is DENIED as to Dr. Ipser’s opinion regarding the 2018 crash accident reconstruction, kinematics, the forces Plaintiff's body would have suffered, and the likelihood a person could have suffered neck injuries from those forces. The Court defers ruling until trial regarding the portion of Dr. Ipser’s opinions regarding thelikelihood a person could have suffered a head injury from the forces that would have occurred from that crash. DONE AND ORDERED in chambers, in St. Johns County, Florida, on 25 day of June, 2021. e-Signed 6/25/2021 4:21 PM CA19-0740 CIRCUIT JUDGE Copies to: Eric R. Andeer, Esq. Jennifer L. Watson, Esq.9/27/21, 3:05 PM Moore v. Estate of Posey | Cases | Mississippi | Westlaw ta oder 2021 WL 2660618 Only the Westlaw citation is currently available. United States District Court, S.D. Mississippi, Eastern Division. Moore v. Estate of Posey United States District Court, S.0. Mississippi, Easter Division. April 15,2021 Slip Copy 2021 WL 2660818 (Approx. 3 pages) v. dants 1-8, Defendants Ernest Posey, Individually, and on behalf of all the wrongful death beneficiaries and representatives of the heirs at law of Brooke Posey, deceased minor, Consolidated, Plaintiff v. Zackary Moore, Nicholas Konz and USAA Casualty Insurance Company, Consolidated, Defendants CIVIL ACTION NO, 1:18-CV-327-KS-RPM Signed 04/15/2021 Attorneys and Law Firms George W. Healy, [V, Anthony R. Liberate, George W. Healy, IV & Associates, Albert Ralph Jordan, IV, Healy & Jordan, PLLC, Gulfport, MS, for Ernest Posey. fan A. Brendel, Alexander Shunnarah Gulf Coast, LLP, Mobile, AL, Edward Coleman Taylor, Katie R. Van Camp, Daniel, Coker, Horton & Bell, Gulfport, MS, for Zackary Moore. James Scott Rogers, Vernis and Bowling, Flowood, MS, for USAA Casualty Insurance ‘Company. Nicholoas Konz, Kiln, MS, Pro Se. ORDER KEITH STARRETT, UNITED STATES DISTRICT JUDGE “1 This cause came before the Court on the Motion to Exclude Expert Opinions of Dr. James Ipser filed by Defendant Zackary Moore ("Moore") [246]. The motion is fully briefed and ripe for ruling. Having reviewed the parties’ submissions and the relevant legal authorities, and otherwise being duly advised in the premises, the Court finds that the motion will be denied. 1, BACKGROUND This case arises from a multiple vehicle collision that occurred on March 16, 2017, which resulted in the death of Brooke Posey. There were four vehicles involved—a white Chevrolet Silverado driven by Nicholas Konz; a black Honda Civie driven by Brooke Posey; a black Chevrolet Silverado driven by Zackary Moore; and a back Toyota Tundra driven by Guy Layton, which was pulling a boat on a trailer and was the last vehicle impacted. There are widely divergent views of what occurred on that fateful aftemoon, mainly due to the fact that there were no eyewitnesses to the entirety of the actual accident. Because of that, one of the main factual disputes involves the precipitating event that set in motion the collisions that took place. Moore contends that prior to the impact between his vehicle and Ms, Posey's vehicle, Ms. Posey, traveling southbound, rear-ended Mr. Konz's white Silverado as it sat in the southbound lane, waiting to turn left. This impact allegedly forced Ms. Posey's vehicle into Moore's lane of travel. Moore, on the other hand, contends that Mr. Konz was not sitting still waiting to turn; instead, Konz pulled out in front of Ms, Posey from the western shoulder of EX. F https://1 next.westlaw.com/Document/I08b18750d952 11 eb984dc49525be265a/View/FullText. htm! ?listSource=RelatedInfo&list=CitingReft9/27/21, 3:05 PM Moore v. Estate of Posey | Cases | Mississippi | Westlaw the road. Both Plaintiffs and Moore have hired accident reconstructionists, Dr. James Ipser and Mr. Allen Powers, respectively, to testify in support of the parties’ theories. 1 Moore now seeks to exclude the testimony of Plaintiffs’ expert, Dr. Ipser under the Daubert standard,? arguing that the testimony is unreliable. [246] at p. 2. Il. DISCUSSION A. Legal Standard The motion before the Court challenges the admissibility of expert testimony and opinions under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993), The admissibility of expert testimony is governed by Rule 702, which states: Awitness 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; (e) 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. *2 The Supreme Court has explained that this rule places the district court into a gatekeeping role in order to ensure that scientific evidence is both reliable and relevant. See Curtis v. M&S Petroleum. Inc., 174 F.3d 661, 668 (5th Cir. 1999) (citing Daubert, 509