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Kiver v. United States

United States District Court, E.D. Washington

October 13, 2017

PHIL KIVER, Plaintiff,


          THOMAS O. RICE, Chief United States District Judge

         BEFORE 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.

         Plaintiff 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 denied.


         The 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.

         According 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.”[2] 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.

         At his 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 12.

         Ms. 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.

         Mr. 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.

         Defendant 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.

         MOTION TO EXCLUDE (ECF No. 39)

         Plaintiff's 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.


         A. ...

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