United States District Court, E.D. Washington
ORDER ON PENDING MOTIONS
O. RICE, Chief United States District Judge
THE COURT are Defendant United States of America's Motion
for Summary Judgment (ECF No. 12), Motion to Exclude (ECF No.
39) and corresponding Motion to Expedite (ECF No. 40).
Defendant's Motion for Summary Judgment was submitted
with a request for oral argument, while the remaining motions
were submitted for consideration without oral argument. The
Court has reviewed the completed briefing and record and
files therein, and is fully informed. The Court finds oral
argument unnecessary and the hearing was stricken. For the
reasons discussed below, the Defendant's Motion to
Exclude is GRANTED, Defendant's Motion to Expedite is
DENIED AS MOOT, and Defendant's Motion for Summary
Judgment is DENIED.
has embedded motions and requests in various pleadings.
Plaintiff requests the Court for a new discovery cutoff, ECF
No. 23-2 at 7; moved to strike the submission of
Plaintiff's past speeding tickets from the record, ECF
No. 23-3; moved to strike Defendant's expert report, ECF
No. 37 at 6; and moved for summary judgment on liability, ECF
No. 37 at 7-8. In accordance with Fed.R.Civ.P. 7 and LR 7.1,
motions are to be submitted to the Court as pleadings and
noted for hearing and not buried in declarations or attached
as an exhibit. Accordingly, these array of requests are
instant suit involves a head-on collision between two
vehicles. On the day of the accident, April 10, 2014,
“[i]t was a beautiful spring day[, ]” ECF No.
13-2 at 5, and the sky was clear, ECF No. 13-4 at 8. The
accident occurred around 11:22 a.m. ECF No. 13-4 at 8.
Leading up to the accident, Plaintiff, Mr. Kiver and Ms.
Kovalenko, an employee of Defendant United States of America,
were driving on West Depot Springs Road - a gravel road with
a posted speed limit of 35 mph - when the vehicles they were
driving collided head-on. See ECF Nos. 13-4 at 8
(overview of road); 13-8 (pictures of vehicles after
collision); 34-1 at 12-19 (graphic rendition of vehicles
approaching and colliding). At the time of the accident, Ms.
Kovalenko was driving a red 1995 Jeep Cherokee eastbound
delivering mail on behalf of the United States Postal
Service. ECF Nos. 13 at ¶ 6; 34-1 at 2. Mr. Kiver was
driving a white 2007 Nissan Sentra westbound on his way back
to his residence. ECF No. 1-1 at ¶ 3.1.
to the Complaint, leading up to the accident Mr. Kiver was
driving around a long curve to the right that sloped up,
leveled off, then sloped down when he “found a red Jeep
Cherokee in his lane, approaching a mailbox that was on his
side of the road.” ECF No. 1-1 at ¶ 3.3. Mr. Kiver
swerved to the lane on his left (the south lane) and slammed
his brakes, skidding along the gravel road from his side of
the road into the oncoming vehicle's side of the road.
ECF No. 1-1 at ¶ 3.4. According to the Complaint, Ms.
Kovalenko swerved back into her lane of travel (from the
north side lane to the south side lane), resulting in the
head-on collision. ECF No. 1-1 at ¶ 3.5.
deposition, Mr. Kiver indicated the line of sight was
“probably a hundred meters [328 feet] where [Ms.
Kovalenko] was in my lane of travel when I came up out of the
dip and the blind turn and I saw her.” ECF No. 13-2 at
5. However, Mr. Kiver submitted a supplemental declaration
stating the distance from Mr. Kiver to Ms. Kovalenko
“could have been as few as 240 feet, or it could have
been a little over 300 feet.” ECF No. 35-2 at ¶ 5.
Plaintiff's and Defendant's expert relied on the
initial number of 100 meters. ECF Nos. 13-4 at 11; 34-1 at
Kovalenko represents that she was driving east bound in her
lane (the south side lane) at a speed of about 15 to 20 miles
per hour when she saw Mr. Kiver's oncoming vehicle. ECF
No. 13-5 at ¶ 15. She represents that Mr. Kiver was
going fast, and that she pulled off to the shoulder on her
side of the road and was either stopped or almost stopped
before the point of collision. ECF No. 13-5 at ¶ 16.
Kiver brought suit in the Spokane County Superior Court
seeking over $1.3 million in damages; Defendants then removed
the action to this Court. ECF Nos. 1; 1-1. Defendant United
States of America was substituted as Defendant for Ms.
Kovalenko because Ms. Kovalenko was delivering mail for the
United States Postal Service at the time of the accident.
brought a Motion for Summary Judgment (ECF No. 12), arguing
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Plaintiff opposed
the motion and, after deadlines were adjusted to account for
the inclusion of Ms. Kovalenko's claim as a third party
Plaintiff against Mr. Kiver, Plaintiff supported his
opposition to the Motion with an expert opinion. This Motion
is now before the Court.
TO EXCLUDE (ECF No. 39)
expert opined that a single track mark suggests Ms. Kovalenko
was driving on the wrong side of the road. See ECF
No. 43-1. However, as Defendant notes, this opinion is not
based on any scientific principles or methods, but is rather
the ipse dixit of the expert based on the mere
observation of a track mark found in pictures from the
accident scene after it was disturbed by responding emergency
crews. The Court finds there is no specialized knowledge
utilized in reaching this conclusion and thus, the opinion
violates Federal Rule of Evidence 702(c) and (d). As a
result, the opinion does nothing to help the trier of fact in
determining the source of the track or resolve the issue of
whether Ms. Kovalenko was driving on the wrong side of the
road; thus, the opinion is not admissible under Federal Rule
of Evidence 702. Defendant's Motion to Exclude the
expert's opinion is granted.
FOR SUMMARY JUDGMENT