Citations
- 30 F. Supp. 3d 1085
Full opinion text
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
State Farm Fire and Casualty Company brought suit against Dallas N. Hartman, Charles C. Conner, III, Branlyn Finnell as natural guardian and next friend of minor C.M., Jamie N. Bell, Jared M. Wilkinson, and The Pantry, Inc. seeking a declaratory judgment that it owed no coverage arising out of an accident and no duty to defend Kenneth Keen, its insured. State Farm now has resolved its claims against all defendants. In her responsive pleading, however, Bell brought cross-claims against her co-defendants and a third-party action against Keen. On June 5, 2013, Bell stipulated to the dismissal of the third-party defendant Keen and each of the other co-defendants except The Pantry Inc. (Doc. 111.) Therefore, cross-claim plaintiff Bell and cross-claim defendant The Pantry, Inc. are the only remaining parties in this action. Hereafter, for simplicity, the Court will refer to cross-claim plaintiff Bell as “plaintiff’ and cross-claim defendant The Pantry, Inc. as “defendant.”
This lawsuit arises from a motor vehicle accident that occurred on September 18, 2011, in Gardner, Kansas. C.M., a minor, who was not licensed and driving illegally, drove a Mercedes SUV over the curb and onto the sidewalk in front of a convenience store owned and operated by defendant. The vehicle struck plaintiff, who was standing on the sidewalk, and pinned her against the building. As a result, plaintiff sustained personal injuries including a crushed pelvis, broken knees, and multiple cuts and bruises. In this diversity action, plaintiff brings a negligence claim under Kansas law against defendant. Plaintiff alleges that defendant breached its duty of care by failing to keep plaintiff reasonably safe under the circumstances because defendant failed to install parking bollards or wheel stops or take other precautions to protect the storefront or pedestrians standing on the sidewalk between the storefront and the head-in parking spaces. Plaintiff further alleges that a dangerous condition existed on defendant’s property because it lacked bollards or other barriers in the parking lot protecting the pedestrian walkway and storefront from vehicular damage. Plaintiff contends that defendant had knowledge and notice of the dangerousness of the condition and that plaintiffs injuries were foreseeable.
This matter comes before the Court on plaintiffs Motion to Exclude or Limit the Testimony of Expert Richard D. Blomberg (Doc. 162), defendant’s Motion to Exclude Expert Testimony (Doc. 166), and defendant’s Motion for Summary Judgment (Doc. 164). For the reasons explained below, the Court grants in part and denies in part plaintiffs Motion to Exclude or Limit the Testimony of Expert Richard D. Blom-berg, grants in part and denies in part defendant’s Motion to Exclude Expert Testimony (Doc. 166), and denies defendant’s Motion for Summary Judgment.
I. Motions to Exclude Expert Testimony
A. Legal Standard
The Court has a “gatekeeping obligation” to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). In performing this gatekeeping role, the Court has broad discretion when deciding whether to admit expert testimony. Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1498 (10th Cir.1996) (quoting Orth v. Emerson Elec. Co., 980 F.2d 632, 637 (10th Cir.1992)). The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed.R.Evid. 702.
This Court must apply a two-part test to determine admissibility. Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir.2013). First, the Court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education’ to render an opinion.” United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir.2009) (quoting Fed.R.Evid. 702). Second, the Court “ ‘must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.’ ” Id. (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir.2006)) (further citations omitted).
To qualify as an expert, the witness must possess “such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would tend to aid the trier of fact in his search for truth.” LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir.2004) (internal quotation omitted)., To determine whether the expert’s testimony is reliable, the Court must assess “whether the reasoning or methodology underlying the testimony is scientifically valid and ... whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. The Supreme Court set forth in Daubert a non-exhaustive list of four factors that trial courts may consider when determining the reliability of the proffered expert testimony under Fed.R.Evid. 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. Id. at 593-94, 113 S.Ct. 2786. The Supreme Court has emphasized, however, that these four factors are not a “definitive checklist or test” and that a court’s gatekeeping inquiry into reliability must be “tied to the facts of a particular case.” Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. In some cases, .“the relevant reliability concerns may focus upon personal knowledge or experience,” rather than the Daubert factors and scientific foundation. Id.
“The proponent of expert testimony bears the burden of showing that the testimony is admissible.” Conroy, 707 F.3d at 1168 (citing Nacchio, 555 F.3d at 1241). “[R]ejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee notes. While Daubert requires the Court to act as a gatekeeper for the admission of expert testimony, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof’ remain “the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786 (citation omitted).
The Court has discretion to determine how to perform its gatekeeping function under Daubert. Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000). “The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.” Id. (citations omitted). In this case, the parties do not request a hearing. The Court has carefully reviewed the exhibits filed with the motions and believes this review is sufficient to render a decision without conducting a hearing.
B. Plaintiffs Motion to Exclude or Limit the Testimony of Expert Richard Blomberg (Doc. 162)
Plaintiff seeks to exclude or limit the expert opinion testimony of Richard D. Blomberg, an engineer designated by defendant as an expert witness. As pertinent here, one may summarize Blomberg’s opinions as follows.
Blomberg is President of Dunlap and Associates, Inc., a research firm. In this position, he has directed or been involved in the application of human engineering and systems analytic principles to highway safety, product safety, aircraft design and certification, and the design and evaluation of human-computer interfaces. His work includes the study of pedestrian safety problems and the development of countermeasures to them. Blomberg is a member of the Transportation Research Board (“TRB”), an Emeritus (Lifetime) member of TRB’s Pedestrian Committee, a former member of its Committee on Alcohol, Other Drugs, and Transportation, and a member of the Human Factors and Ergonomics Society, Society of Automotive Engineers, the Institute for Operations Research and the Management Sciences, the Association for Consumer Research, and the American Institute of Aeronautics and Astronautics. Mr. Blomberg holds B.S. and M.S. degrees in Industrial and Management Engineering from Columbia University. Blomberg reviewed various materials about the accident, as described in his expert report, and on May 21, 2013, he conducted an on-site examination of the accident scene and visited 21 other convenience stores located in the greater Kansas City area.
Based on his examination, Blomberg concludes that the motor vehicle accident occurred because of the error committed by C.M. (i.e., mistakenly pressing the accelerator instead of the brake) and that this error was independent of the design of the convenience store’s property. He opines that the design of the property was fully consistent with the prevailing practices of the convenience store industry and that it was neither defective nor unreasonably unsafe. Blomberg concludes that an alternate design of the property, such as one using bollards, likely would have changed the dynamics of the accident, but he also opines that there are significant, inherent risks in using bollards or other barriers and in designing parking lots without head-in parking. Because of these risks, Blomberg opines that bollards are not a preferable choice for the design of the convenience store property at issue in this case.
Plaintiff contests Blomberg’s qualifications to testify on the specific issues in this case, as well as the relevance and reliability of his opinions. The Court first addresses Blomberg’s qualifications and then assesses the reliability and relevance of his opinions.
1. Qualifications
Plaintiff . argues that Blomberg’s expert testimony should be excluded because he has no experience or expertise to opine on the dangerousness of the convenience store parking lot or whether bollards or other barriers should have been installed. Blomberg is an engineer with 45 years of experience in safety research and approximately 41 years of experience in pedestrian safety research. For almost 20 years, Blomberg served as the safety consultant to the East Ramapo Central School District in East Ramapo, New York. In that position, he consulted with the school' district on the design of the parking lots for the approximately 200 schools in that district. These parking lots included head-in or diagonal parking. Blomberg also testified that he performed this same type of consulting work for several other school districts in the same geographic area. Blomberg also has directed research studies on the design of shopping center parking lots and has created model parking lot designs. He has written research reports about parking lot designs for commercial stores, and several of these reports involved preventing pedestrian accidents. His research also includes the evaluation of specific parking lot designs and the configuration of parking lots.
Plaintiff attacks Blomberg’s qualifications by asserting that he has never been hired to design or consulted to design a parking lot for a commercial establishment (including a convenience store, as is involved in this case), he has not published any articles about parking lot design, and he has never provided expert opinion or testimony in a case involving convenience store parking lots with head-in parking (or the design or safety of such a parking lot). Although plaintiff criticizes Blomberg’s lack of specific knowledge about convenience store parking lot designs, these arguments go to the weight and not the admissibility of Blomberg’s testimony. See Utility Trailer Sales of Kansas City, Inc. v. MAC Trailer Mfg., Inc., 267 F.R.D. 368, 371 (D.Kan.2010) (refusing to exclude an expert witness’s testimony based on his lack of specific experience in the trailer industry; rather, this was a subject “defendants may explore ... on cross examination.”)
Plaintiff also takes issue with Blom-berg’s observations of 21 other convenience stores that he visited in the Kansas City area on his way to the airport after inspecting the site of the accident in Gardner, Kansas. Plaintiff argues that none of these other stores were configured in the same way as the convenience store at issue, which had gas pump islands but no gas pumps. Plaintiff also criticizes Blom-berg for failing to gather historical information about other vehicle incursion accidents at these convenience stores. The Court determines that Blomberg’s inspection of the 21 other convenience stores does not render him unqualified to testify as an expert in this case. Rather, plaintiffs criticisms about Blomberg’s inspection of these 21 convenience stores go to the weight of the evidence, and plaintiff may cross-examine Blomberg on those topics.
Based on his experience described above, the Court concludes that Blomberg is qualified to testify on the matters set forth in his expert report. “Experience alone — or experience combined with other knowledge, skill, training, or education— may provide a sufficient foundation for expert testimony.” Utility Trailer Sales of Kansas City, Inc., 267 F.R.D. at 370 (citing Fed.R.Evid. 702 advisory committee notes). However, a witness “relying solely or primarily on experience” must “explain how the experience leads to the conclusion reached.” Fed.R.Evid. 702 advisory committee notes; see also United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir.2003). The Court has reviewed Blomberg’s expert report and the transcript of his deposition where he explained that he bases his opinions on his training and experience as an engineer and researcher. The Court is satisfied that Blomberg is qualified to testify about the opinions in his expert report.
2. Reliability
Plaintiff next contends that Blomberg’s opinions are not based upon reliable facts. In formulating his opinions, Blomberg reviewed the Johnson County, Kansas -zoning ordinances and a PowerPoint presentation he found on the internet. With respect to the Johnson County, Kansas zoning ordinances, Blomberg admits that he is not a legal expert and he does not know if these zoning requirements even apply to the convenience store at issue. Blomberg testified that the convenience store at issue is located within the city limits of Gardner, Kansas, but the Johnson County,- Kansas zoning ordinances apply only to unincorporated areas of the County which no city has annexed. Therefore, the Court concludes that Blom-berg’s reliance on these zoning ordinances is inappropriate here. As’ Daubert cautioned, an expert must base his or her opinion on “reasoning or methodology [that] properly can be applied to the [actual] facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. Here, the County’s zoning ordinance cannot be applied to this case’s facts because it does not apply to the incorporated location where the accident occurred. Therefore, to the extent Blomberg relied on the Johnson County, Kansas zoning ordinances in formulating his opinions, the Court excludes those opinions because they are based on unreliable facts.
Turning next to Blomberg’s reliance on the PowerPoint presentation that he located on the internet, Blomberg testified that he found this document on the National Association of Convenience Stores (“NACS”) website. Blomberg believes that it provides an example of what the convenience store industry considers as an acceptable model store. Plaintiff challenges Blomberg’s characterization of this document- as showing what is acceptable in the industry because the PowerPoint presentation itself contains a disclaimer that the opinions expressed in it do not necessarily state or reflect those of the NACS. Plaintiff further argues that Blom-berg’s reliance on this document is improper because he does not know anything about the authors’ knowledge, training, experience, or expertise in the convenience store parking lot industry, he did not attend the conference where the presentation was made, and the document does not address safety measures in convenience store parking lots. The Court agrees with plaintiff that the PowerPoint presentation is not a reliable indicator of what the convenience industry considers as an acceptable model of store, especially because it contains an express disclaimer that it does not state or reflect the views of the NACS. Moreover, Blomberg is unable to provide any background information about the authors of the presentation to show that they are a reliable source for what is acceptable in the industry. Accordingly, the Court excludes Blomberg’s opinions to the extent they are based on the PowerPoint presentation.
Last, plaintiff contends that Blom-berg ignored facts that were unfavorable to defendant in reaching his conclusions, and by doing so, made his opinions unreliable. ' Specifically, plaintiff complains that Blomberg failed to consider other vehicle incursion incidents at defendant’s stores across the country, the prior vehicle incursion accident that occurred in 2009 at the convenience store at issue, and defendant’s installation of bollards at newly constructed or remodeled stores. The Court determines that Blomberg’s failure to consider facts that disfavor defendant does not render his opinions so unreliable, however, that the jury should not hear them. As our Court has explained before, an expert’s decision not to consider certain facts in formulating his opinions is a matter for cross-examination, and not exclusion, because that decision goes to the weight of the testimony, not its admissibility. See In re Urethane Antitrust Litig., MDL No. 1616, No. 04-1616-JWL, 2012 WL 6681783, at *3 (D.Kan. Dec. 21, 2012) (“The extent to which [the expert witness] considered the entirety of the evidence in this case is a matter for cross-examination.”) The Court declines to exclude Blomberg’s opinions on this basis.
3. Relevance
Finally, plaintiff argues that Blomberg’s proffered testimony is not relevant to the issues in this case. Plaintiff moves for the exclusion of seven specific opinions that are asserted by Blomberg either in his expert report or deposition. The Court addresses each of these proffered opinions in turn below.
a. Opinion About the Nature of the Driver
Blomberg opines that the “root cause” of the accident was human error. He describes C.M. as an' “unlicensed and totally inexperienced 14 year old” driver, who was not experienced with driving in general or the Mercedes SUV that she was driving at the time of the accident. He notes that C.M. admitted that she pressed the accelerator instead of the brake, and he opines that C.M.’s erro? caused the accident. Specifically, he states in his expert report that the pedal error committed by C.M. made an accident “inevitable.” Blomberg also testified in his deposition that if C.M. had been a more experienced driver, the likelihood of committing the pedal error would have been lower.
Plaintiffs argument misstates Blom-berg’s opinion. Plaintiff claims that his opinion “that the accident was inevitable due to the nature of the driver is not based upon facts, scientific studies or any relevant experience, education or training.” Pl’s. Mem. in Supp. of Mot. to Limit or Exclude the Test, of Expert Richard D. Blomberg (Doc. 163 at 13). But Blom-berg’s opinion is not phrased that way in his report. Rather, Blomberg states that C.M.’s pedal error (a fact that is not disputed) made an accident inevitable.
Plaintiff also argues that Blomberg’s opinion that the driver was untrained, inexperienced, and immature is speculative. The Court disagrees. Blomberg reviewed C.M.’s deposition in formulating his expert opinion. C.M. testified that she was 14 years old on the date of the accident and that she did not have a driver’s license at that time. She also testified that prior to the accident, she had only driven about two or three times on back roads for about ten or fifteen miles each time. C.M. also admitted that she had never driven the Mercedes SUV before the accident. Blom-berg’s opinion that the driver was untrained and inexperienced is supported by sufficient facts to satisfy the relevance threshold of the analysis.
Plaintiff also contends that Blomberg’s opinion that there was a higher risk of pedal error because C.M. was untrained and inexperienced is not relevant to the issues in this case. Blomberg admits that unintended acceleration occurs in drivers of all ages, that pedal error is a “known phenomenon” in the traffic safety industry, and that the accident in this case would not have been prevented if C.M. had a learner’s permit authorizing her to drive. The Court finds that these arguments are more appropriate for cross-examination rather than determining the admissibility of Blomberg’s testimony. Blomberg’s opinion about the characteristics of the driver is relevant, and the Court declines to exclude this expert testimony.
b. Opinion that the Parking Lot Design Meets Regulations
Plaintiff moves to exclude Blom-berg’s opinion that the convenience store parking lot at issue complies with the Johnson County, Kansas zoning ordinances. As explained above, these ordinances do not apply to a convenience store located within the city limits of Gardner, Kansas, which is where defendant’s store is located. Therefore, Blomberg’s opinion that the parking lot complies with the Johnson County, Kansas zoning ordinances is not relevant to the issues in this case, and the Court excludes this opinion.
c. Opinion that the Use of Head-In Parking Without Bollards is Standard in the Convenience Store Industry, that the Design of the Parking Lot at Issue is not Unrea- . sonably Dangerous, and Any Other Design Would Be Significantly More Dangerous
Blomberg renders three opinions about the convenience store parking lot at issue in this case. He opines that: (1) the use of head-in parking without bollards or other protective barriers is standard in the convenience store industry; (2) the parking lot design at the convenience store at issue in this case, which consisted of head-in parking without bollards or other protective barriers, is neither defective nor unreasonably dangerous; and (3) any other parking lot designs are more dangerous.
Plaintiff seeks to exclude all three opinions by arguing that Blomberg lacks knowledge of the industry standard for convenience stores, and therefore his opinion is not reliable. Indeed, Blomberg testified that he did not find any document in his research that identified an industry standard for the use of bollards. Blom-berg instead bases his opinion on his personal observations of the 21 conveniences stores he visited in the Kansas City area and the PowerPoint presentation that he downloaded from the NACS website; The Court agrees with plaintiff that Blom-berg’s opinion about what is “standard in the convenience store industry” is not reliable. As it has already explained above, the Court excludes Blomberg’s opinions that are based on the PowerPoint presentation because it is unreliable. The Court further finds that Blomberg’s visits to 21 conveniences stores in the Kansas City area do not provide a sufficiently reliable basis for him to render an opinion on the “standard in the industry” for convenience stores. Therefore, the Court excludes Blomberg’s opinion that the use of head-in parking without bollards or other protective barriers is standard in the convenience store industry.
The Court declines to exclude the remaining two opinions, however. The Court finds that Blomberg’s training and experience as an engineer and a researcher provide him a reliable basis to opine about parking lot designs. The Court therefore rejects plaintiffs challenges to Blomberg’s opinion that the parking lot design at the convenience store at issue in this case, which consisted of head-in parking without bollards or other protective barriers, is neither defective nor unreasonably dangerous and his opinion that any other parking lot designs are more dangerous.
d. Opinion that the Installation of Bollards Would Not Have Prevented the Accident, but Would Have Changed the Nature, Severity, and/or the Victim of the Accident
Blomberg also opines that the installation of bollards at the subject convenience store would not have prevented an accident, but it would have changed the nature, severity, and/or the victim of the accident. He states in his expert report that, in this case, the presence of bollards “might” have prevented the Mercedes SUV from injuring plaintiff. However, in that scenario, the Mercedes SUV would have hit a bollard which may have resulted in injuries to the vehicle’s occupants, damage to the vehicle, “possible” damage to the vehicle(s) parked adjacent to the Mercedes SUV, and “possible” injuries of a different nature to plaintiff and other pedestrians.
Plaintiff argues that this opinion is based on speculation and therefore should be excluded. The Court disagrees. Although expert opinions “ ‘must be based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation, ... absolute certainty is not required.’ ” Goebel v. Denver & Rio Grande W. R.R., 346 F.3d 987, 991 (10th Cir.2003) (quoting Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir.1995)). The proponent of expert testimony is not required to prove that the expert is “undisputably correct.” Id. (citing Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir.1999)). Rather, the proponent “must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts that satisfy Rule 702’s reliability requirements.” Id. (citing Mitchell, 165 F.3d at 781). Here, the Court concludes that Blomberg’s experience with safety and pedestrian research provides a sufficiently reliable basis for the jury to hear his opinion that installing bollards would have changed the nature of the accident. Plaintiffs arguments that Blomberg ignored certain facts when formulating this opinion or that he is unable to state with absolute certainty the outcome of the accident had bollards been installed are proper subjects for cross-examination. The Court declines to exclude this expert opinion.
e. Opinion that Defendant is a Safety Conscious Company
Blomberg testified in his deposition that defendant is a safety conscious company. Plaintiff argues that this opinion is unreliable because Blomberg admits that he has not spoken with anyone at defendant’s company and the only basis for his opinion is what he read in defendant’s corporate representative’s deposition. He. also admits that he did not investigate whether defendant considered the safety of the design of the parking lot or pedestrian walkway at the convenience store at issue. Defendant did not address this specific opinion in its Opposition to plaintiffs motion. The Court agrees with plaintiff. This particular opinion is not reliable or relevant .to the issues in this case, and therefore, the Court excludes Blomberg’s opinion that defendant is a safety conscious company.
4. Conclusion
For the reasons set forth above, the Court grants in part and denies in part plaintiffs Motion to Exclude or Limit the Testimony of Expert Richard D. Blom-berg. The Court determines that Blom-berg is qualified to testify as an expert in this case. The Court also finds certain of his opinions are reliable and relevant as described above, and therefore those opinions are admissible as expert testimony. The Court, however, excludes Blomberg’s opinions that are based on the Johnson County, Kansas zoning ordinances and on the PowerPoint presentation that he located on the NACS website because these materials are not reliable or relevant sources of information to the issues in this case. The Court also excludes Blomberg’s opinions that (1) the convenience store parking lot at issue complies with the Johnson County, Kansas zoning ordinances, (2) the use of head-in parking without bollards or other protective barriers is standard in the convenience store industry, and (3) defendant is a safety conscious company because these opinions are neither reliable nor relevant to the issues in the case.
C. Defendant’s Motion to Exclude Expert Testimony (Doc. 166)
Defendant seeks to exclude or limit the expert opinion testimony of four individuals designated by plaintiff as expert witnesses: (1) Robert Reiter, an expert in the design and use of safety devices in the convenience store industry; (2) Warren Vander Helm, an expert in parking design and planning; (3) Anthony Gamboa, PhD, MBA, a vocational economic analyst; and (4) Laura Lampton, a registered nurse and life care plan specialist. The Court addresses the opinion testimony of each one of plaintiffs proffered expert witnesses in turn below.
1. Robert Reiter
Plaintiff has designated Robert Reiter to offer expert opinion testimony about: (1) the dangerousness of the convenience store at issue; (2) the foreseeability of the accident; and (3) the cost and feasibility of safety devices to protect customers and to prevent vehicle incursions. Defendant moves to exclude Reiter’s opinions about the dangerousness of the convenience store property and the foreseeability of the accident arguing that these opinions are unreliable and not relevant.
a. Qualifications
Defendant does not challenge Reiter’s qualifications to opine about the dangerousness of the convenience store property or the foreseeability of the accident. The Court notes that, for more than ten years, Reiter has engaged actively in the research and development of safety devices, such as bollards, to protect buildings and pedestrians from vehicle incursions. Reiter has worked with industry groups to set standards for testing and installation of bollards and barriers for government, public agencies, utilities, private companies, and underwriters and insurers. Reiter also founded the Storefront Safety Council to bring attention to the problem of accidental vehicle incursion, promote academic and industry focused research on the scope of the problem, present best practices and solutions, and to educate the public, industry groups, and code enforcement entities about emerging crash test standards and potential solutions. Reiter is qualified to provide expert testimony on the dangerousness of the convenience store property and the foreseeability of the accident in this case.
b. Reliability
Defendant contests the reliability of Reiter’s opinion that a vehicle incursion accident was foreseeable. Reiter bases this opinion on calculations about the number of accidental vehicular incursions that occur each day at convenience stores and the rate with which pedal error causes such accidents. Reiter states that the frequency of accidental vehicular incursions at convenience stores and the rate at which pedal error causess such accidents made the accident at issue here foreseeable to defendant.- Defendant contends that these calculations are based upon flawed data and unsupported assumptions, and therefore are unreliable.
i. Opinion that about 20 accidental vehicular incursions occur every day at convenience stores in the United States
Reiter opines in his expert report that accidental vehicle incursions occur about 40 to 50 times each day in the United States. Reiter further estimates that convenience stores, specifically, experience accidental vehicular incursions about 20 times per day. He reaches the estimate for convenience stores by relying on a study that he conducted with the Texas Traffic Institute at Texas A & M University in which he analyzed data from two convenience store chains. In that study, Reiter reviewed data from about 8,000 conveniences stores over a five year period to conclude that vehicular incursions occur about 20 times per day at convenience stores. Defendant argues that this sample size is only about five percent of the convenience stores in the United States and that this “limited data” does not provide a reliable basis for Reiter to opine that the accident was foreseeable.
The Court disagrees that the sample size of the data renders Reiter’s opinion unreliable. This opinion is based on Reiter’s own research and study, which, as plaintiff points out, was peer reviewed by Texas A & M University. Defendant is free to cross-examine Reiter about the sample size of the data, but the Court declines to find that the opinion is unreliable on this basis. Further, the Court disagrees with defendant’s reliance on Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521 (6th Cir.2012). In that case, the Sixth Circuit affirmed the district court’s exclusion of an expert’s opinion because of “four red flags” in the methodology: “anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.” Id. at 528 (emphasis added). Specifically, the court in Newell Rubbermaid faulted the expert for opining that a latching or spring-loaded rear door was necessary to make a forklift safe when the expert never actually tested either of the alternative designs and his opinion favoring a rear guard door was contrary to industry standards. Id. at 528-29. Conversely, in this case, Reiter has sufficient experience in the research and development of safety devices to protect pedestrians from vehicle incursions, and he relied on sufficient data when formulating his opinion about the number of vehicle incursions that occur on a daily basis at convenience stores.
Defendant also argues that Reiter’s opinion'did not account for other factors that may affect a convenience store’s rate of vehicular incursions, including: the number of customers visiting the store, the age of the customers, the design of the property, or the state where the store is located. Defendant contends that Reiter’s failure to consider these other factors does not allow him to draw a correlation between accidental vehicle incursions at other stores with the convenience store at issue in this case. While Reiter’s failure to consider these other factors may persuade a jury that his method was not the “superior” method for calculating the rate of vehicular incursions across the county, the Court does not find that it renders the opinion so unreliable that the jury should not hear it. See Util. Trailer Sales of Kansas City, Inc., 267 F.R.D. at 371 (stating that while the expert may not have employed the “best” method in making his calculations, “the standard for admissibility is reliability, not superiority”).
The Court also does not agree with defendant’s reliance on Parker v. Walr-Mart Stores, Inc., 267 F.R.D. 373 (D.Kan.2010). In that case, the proposed expert witness opined that defendant’s mode of operation was negligent based on the number of slip- and-falls that had occurred at the store in the last two years, but the expert knew none of the details of any of the. accidents, including the condition of the floor, whether defendant was at fault, how many employees were working, or how many customers were in the store at the time. Id. at 376. Judge Murguia excluded this opinion as unreliable because the expert witness did not rely on any industry standards in reaching this conclusion, and he did not have any reliable source to compare the number of slip-and-falls at the store in relation to other stores of a similar size and customer base. Id. Reiter’s opinion differs from the expert opinion at issue in Parker. In this case, Reiter used reliable sources in formulating his opinion about the rates of vehicular incursions. Further, he is not contending that defendant was negligent based simply on the number of accidents at its store. Rather, Reiter has estimated the number of vehicular incursions that occur on a daily basis at convenience stores around the country, and from that data, he opines the vehicle incursion accident in this case was foreseeable to defendant as a convenience store owner. To the extent defendant criticizes Reiter’s opinion based on his failure to consider other factors, defendant certainly will have the chance to explore those concerns on cross-examination.
Finally, defendant complains that Reiter provides only an,“estimate” that about 20 vehicular incursion accidents occur daily at convenience stores and that he is unable to state with any certainty the probability of a vehicle incursion at the convenience store at issue. But, as noted above, the proponent of the testimony need not prove that the expert is “undisputably correct.” Goebel, 346 F.3d at 991 (citing Mitchell, 165 F.3d at 781). The Court is satisfied that Reiter’s method in reaching this opinion is scientifically sound and that his opinion is based on facts that satisfy Rule 702’s reliability requirements. Id. (citing Mitchell, 165 F.3d at 781). Therefore, Reiter’s opinion that about 20 vehicular incursion accidents occur on a daily basis at convenience stores is reliable, and he may provide expert testimony about this opinion.
ii. Opinion that 41% of accidental vehicle incursions are caused by pedal error
Reiter also opines that pedal error accounts for 41% of all accidental vehicle incursion accidents. This number is not specific to convenience stores; rather, it encompasses the universe of vehicle into building crashes. Reiter reaches this conclusion based on his review of media reports, law enforcement reports, and data from other convenience store chains. However, he testified that more than 90% of the data that he used to estimate the percentage of pedal error.came from national media reports. Defendant argues that media reports are inherently unreliable, and therefore Reiter’s opinion is inadmissible. Defendant points out that one of the studies that Reiter relied upon in forming his opinions cautions about the use of media reports because of competing and complementary issues that may bias the reporting of pedal misapplication crashes. See National Highway Traffic Safety Administration, DOT HS 811 597 Pedal Application Errors (Mar. 2013) (Doc. 167-5 at 4). That study further recognizes that even reported incidents of pedal error may contain missing data if the media report does not include information about the driver, the vehicle, the crash location, any pre-crash maneuvers, or other specifics of the crash. (Id. at 30.) The Court agrees that Reiter’s heavy reliance on media reports to reach his estimate that pedal error accounts for 41% of vehicle incursion accidents renders this opinion unreliable. Therefore, the Court excludes this opinion.
While the Court excludes this particular opinion, the Court does not conclude that Reiter’s reliance on this opinion renders his entire testimony unreliable and inadmissible. Rather, the Court is satisfied that Reiter’s other opinions are reliable based on his opinions about the rate of vehicle incursions generally and specifically at convenience stores along with his experience in the industry.
c. Relevance
Last, the Court considers whether Reiter’s opinions are relevant. In performing this analysis, the Court must determine whether the expert has applied the principles and methods to the facts of the case such that his testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.
Defendant challenges the relevance of Reiter’s opinions by arguing that his opinions apply “generally” to any retail store with head-in parking, but do not account for the specific circumstances of the accident at issue in this case. Defendant asserts, and Reiter agrees, that it was not foreseeable to defendant that a 14-year-old unlicensed, untrained, and inexperienced driver would be driving a vehicle in the convenience store parking lot where pedestrians were present. Rather, Reiter bases his foreseeability opinion on his research on the rate of vehicle incursions at convenience stores on a daily basis and his other experience in the industry. For the same reasons explained above, defendant’s criticisms about Reiter’s failure to account for certain, specific information involving the other vehicle incursions are proper subjects for cross-examination, but it does not require exclusion of his opinion.
Defendant also contends that Reiter’s opinions about the dangerousness of the parking lot and the foreseeability of the accident amount to inadmissible legal conclusions. Defendant argues that these opinions usurp, the function of the jury, and therefore are inadmissible. Fed.R.Evid. 704 permits expert testimony that “embraces an ultimate issue to be decided by the trier of fact.” However, the Tenth Circuit has held that “[w]hile testimony on ultimate facts is authorized under Rule 704, the committee’s comments emphasize that testimony on ultimate questions of law is not favored.” Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.1988). The line drawn by the Tenth Circuit between admissible and inadmissible evidence regarding legal issues is narrow. Id. at 809. Expert testimony is admissible so long as “the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.” Id. at 809-10. Here, the Court finds that Reiter’s opinions are admissible to the extent that they express his opinions about the adequacy of the parking lot design and the foreseeability of curb-over incidents at convenience stores. See, e.g., Storts v. Hardee’s Food Sys., Inc., Nos. 98-3285, 98-3320, 210 F.3d 390, 2000 WL 358381, at *13 (10th Cir. Apr. 6, 2000) (unpublished) (an expert’s opinion about the foreseeability of the plaintiffs abduction from a restaurant parking lot that was based on the frequency of types of reported crimes was not improper testimony on the ultimate issue where the expert was questioned in detail about the other types of crime upon which he based his opinion and the court gave appropriate cautionary instructions to the jury). But the Court finds that any opinion that constitutes a purely legal conclusion is inadmissible and may not be considered on summary judgment. Of course, defendant may raise appropriate objections during trial if counsel believes that some of Reiter’s testimony represents an attempt by plaintiff to “define the legal parameters within which the jury must exercise its fact-finding function.” Specht, 853 F.2d at 809-10.
Defendant next asserts that Reiter’s opinions are based on evidence about other accidents that are not similar to the accident at issue in this case, and therefore his opinion is not relevant to this case. Defendant cites Black v. M & W Gear Co., 269 F.3d 1220 (10th Cir.2001), as support for its position, but that case appears to support admission of Reiter’s opinions, not their exclusion. In Black, the Tenth Circuit considered whether a district' court had erred by admitting expert opinion that relied on statistics about other accidents that were not shown to be “substantially similar” to the accident at issue in the case. Id. at 1227. The court held that “under circuit precedent ... experts are allowed to base their opinions on otherwise inadmissible evidence if the basis upon which the evidence would otherwise be considered inadmissible is reliability or relevance concerns.” Id. at 1229. The court found that the expert’s opinion about the other accidents was properly admitted because the substantial similarity requirement derives from relevance concerns, and therefore the expert could base his opinion on this inadmissible evidence. Id. Likewise, in this case, Reiter’s reliance on information about other accidents does not require exclusion of his opinion. Moreover, the other accidents upon which Reiter relies are not substantially similar to the accident at issue. Defendant points out that Reiter is unable to identify the ages of the motorists involved in those accidents, the locations of the accidents, or whether the incidents involved head-in parking. But each of the accidents involved a vehicle jumping the curb and striking a pedestrian and/or storefront, which resembles the facts of the accident at issue here. The Court declines to exclude Reiter’s opinion on this basis.
Finally, defendant argues that Reiter’s opinion that the accident was foreseeable and that bollards should have been installed at the convenience store is improper and prejudicial. Defendant argues that Reiter is unable to determine the likelihood of a vehicle incursion incident at the convenience store in issue, and therefore, his opinion is based only on his subjective belief. The Court disagrees. Reiter bases his opinion on reliable data involving the rate of vehicle incursions and his experience as addressed above. Defendant’s arguments about what Reiter does not know or fails to consider about the convenience store at issue go to the weight and not the admissibility of the opinion. The Court also does not find that defendant has demonstrated prejudice at this stage of the proceedings. The Court will consider this opinion on summary judgment, but as noted above, defendant remains free to challenge the admissibility of any of the underlying data before trial.
For all these reasons, the Court is persuaded that Reiter’s expert testimony would aid the jury to understand the issues in this case. Therefore, the Court finds that Reiter’s opinions are relevant.
2. Warren Yander Helm
Plaintiff has designated Warren Vander Helm to offer expert opinion testimony about the defective and unreasonably dangerous design of the convenience store parking lot at issue and the foreseeability of the accident. In his expert report, Van-der Helm opines that the premises of the convenience store at issue in this case was not reasonably safe in that it failed to (1) maintain a safe walkway free of hazards and (2) separate vehicular traffic . from store patrons. Therefore, Vander Helm states that these purported shortcomings “ereat[ed] foreseeable injury to patrons.” (Doc. 169-2 at 2.)
a. Qualifications
Defendant does not challenge Vander Helm’s qualifications. The Court notes that Vander Helm is the Managing Partner of Parking Design Group, LLP, a company which specializes in the design, planning, and management of parking lots and multi-level parking structures. Vander Helm has over 30 years of parking design and planning experience, including land-use planning, site evaluation, conceptual design, needs assessment, parking studies, feasibility studies, premises liability, operations and management, and parking facility design. He also has provided parking design consultation to architects, developers, commercial property owners, and municipalities throughout the country, and he has helped develop and plan commercial parking operations in over 80 cities throughout the United States. Vander Helm also has provided management consulting to parking assets for shopping centers, strip malls, restaurants, universities, public buildings, hotels, municipalities, business parks, apartment communities, and mixed-use environments, including advice about' sustainable parking management plans. The Court finds that Vander Helm is qualified to provide expert opinion testimony in this case.
b. Reliability
Defendant contends that Vander Helm’s opinions are not reliable because he did not perform his own research in forming his conclusions; rather, he relies on the data compiled by Robert Reiter about the rate of accidental vehicle incursions and pedal error. An expert may base his opinion on facts or data that experts in the particular field would rely on reasonably in forming an opinion on the subject. Fed. R.Evid. 703. The Court has reviewed the materials cited by Vander Helm and deter-' mines that they are “of a type reasonably relied upon by experts in the particular field,” as required by Fed.R.Evid. 703.
Here, defendant argues, as it did above, that the underlying data provided by Reiter is unreliable. Therefore, defendant asserts that Vander Helm’s opinion is not reliable because it is based on the same flawed data. As explained above, the Court finds that Reiter’s opinion that some 20 vehicle incursions occur on a daily basis at convenience stores is based on reliable data and therefore admissible. The Court excludes Vander Helm’s opinion that 41% of vehicle incursions are caused by pedal error because that opinion is based predominately upon media reports which renders it unreliable.
The Court therefore excludes Vander Helm’s opinions to the extent they are based on Reiter’s statistic that 41% of vehicle incursions occur due to pedal error. The Court- does not find that Vander Helm’s reliance on this particular piece of data renders his entire opinion testimony-inadmissible. Rather, the Court is satisfied that Vander Helm’s opinions are reliable based on his consideration of Reiter’s opinion about the rate of vehicle incursions at convenience stores and his experience in the industry of parking lot design and planning.
Defendant further challenges Vander Helm’s opinions based on information that he admittedly does not know. Vander Helm testified that he does not know how many vehicle incursion accidents happen on a daily basis at convenience stores like the one at issue in this case, how many individuals were injured from vehicle incursions involving head-in parking (for either the year of the accident or the 5 years preceding the accident), how many individuals sustained injuries at retail establishments from vehicle incursions, or how many vehicle incursions result from pedal error. Defendant contends that without such information, Vander Helm’s opinion that the design of the parking lot was dangerous is based on speculation. The Court disagrees. As described above, Vander Helm has extensive experience in parking lot design and planning, upon which he bases his opinions in this ease. His lack of knowledge specific to vehicle incursion accidents is an appropriate topic for defendant to explore on cross-examination, but it does not require exclusion of his opinion testimony.
c. Relevance
In arguing that Vander Helm’s opinions are not relevant, defendant makes the same arguments it made when objecting to the relevance of Robert Reiter’s opinions. Defendant contends that Vander Helm’s opinions will not assist the trier of fact because they apply “generally” to any retail store with head-in parking without accounting for the specific circumstances of the accident at issue in this case. Defendant also argues that Vander Helm’s opinions must be excluded because they are inadmissible legal conclusions. Defendant also criticizes Vander Helm for basing his opinion on Reiter’s data which defendant contends is flawed and fails to account for other certain factors. For the same reasons addressed above, the Court rejects these arguments. The Court finds that Vander Helm’s opinions are relevant to the issues in this case, and any concerns raised by defendant are better addressed through cross-examination.
3. Anthony Gamboa
Defendant next seeks exclusion of the expert opinion testimony'of Anthony Gamboa. Plaintiff has designed Gamboa to offer expert opinion testimony about plaintiffs loss of earning capacity as a result of the injuries she sustained in the accident and the present value of the plaintiffs future medical treatment, as described in the life care plan prepared by Laura Lampton. Defendant does not challenge Gamboa’s qualifications to provide expert testimony in this case. The Court has reviewed Gamboa’s curriculum vitae and determines that he is qualified to render expert testimony in this case based on his education, training, and experience.
Instead, defendant contends that Gam-boa’s expert testimony is unreliable, based on speculation, and not supported by the evidence. Specifically, defendant claims that Gamboa’s opinion is based on the underlying assumption that plaintiff sustained a permanent physical impairment which defendant contends is not supported by the evidence. In preparing his expert opinion in this case, Gamboa interviewed plaintiff and obtained information about her medical condition. Plaintiff reported to him that she has difficulty with prolonged walking and prolonged standing, she is unable to run anymore; she must work in a job that allows her to sit, she is unable to squat or kneel, and she may likely require knee replacement surgery in the future. After the interview, Gamboa then reviewed plaintiffs medical records to determine whether plaintiffs self-described limitations were consistent with the limitations described by her health care providers in the medical records. Here, Gamboa determined that plaintiffs description of her injuries was congruent with the nature of the impairment described in the medical records. Based on the physical limitations described by plaintiff and confirmed in her medical records, Gamboa concluded that plaintiff has a mobility disability as defined by the U.S. Census Bureau’s American Community Survey (“ACS”). Under this definition, an individual has a mobility disability if she has serious difficulty walking or climbing stairs.
Gamboa also testified in his deposition that the first step in performing his vocational economic assessment is to determine whether a physician has diagnosed the individual with a permanent physical impairment. Gamboa admits that if there is no medically-diagnosed permanent physical impairment, then he does not perform a vocational economic assessment on the loss of earning capacity. In his case, Gamboa is not aware of any physician diagnosing plaintiff with a permanent physical impairment. Rather, he assumes that information is forthcoming. And, he admits that if there is no permanent physical impairment diagnosed by a doctor, then plaintiff has suffered no loss of earning capacity.
Defendant contends that Gamboa’s opinion is based on unsubstantiated evidence because no physician has diagnosed plaintiff with a permanent physical injury or has concluded that she has serious difficulty walking or climbing stairs. The Court does not find that the assumption that plaintiff suffers from a permanent physical impairment renders Gamboa’s testimony sufficiently unreliable to compel its exclusion. Rather, the Court finds that defendant’s concerns about the underlying assumptions of Gamboa’s opinion are better challenged through cross-examination than in determining the admissibility of expert testimony.
Moreover, plaintiffs treating orthopedic surgeon, who performed surgery on her knees, testified that while plaintiff is not currently subject to any medical restrictions, he does anticipate that plaintiff will have limitations on her daily living activities due to her knee injuries. He described the knee fractures that plaintiff sustained and the resulting damage to the knee cartilage that has caused plaintiff to develop arthritic knees. Plaintiffs treating orthopedic surgeon predicts that chances are high that plaintiff will develop bone to bone arthritic changes in her right knee, and at some point plaintiff will mostly likely have no cartilage on the end of her right knee. While he recognizes that it is impossible to predict, plaintiffs treating orthopedic surgeon testified that there is a high probability that plaintiff will require total knee replacement surgery in the future. The orthopedic surgeon also had discussions with plaintiff about her limited mobility and her inability to walk for more than 10 minutes due to pain. The Court concludes that Gamboa’s opinion is based on reliable underlying facts and declines to exclude his opinion.
4. Laura Lampton
Plaintiff has designated Laura Lampton to offer expert opinion testimony about the cost of plaintiffs future needs, care, and medical treatment as a consequence of the injuries she sustained in the accident. Defendant challenges Lampton’s opinions on two bases.
First, defendant contends that Lampton cannot testify about the medical necessity of any future medical care or treatment because she was not designated to testify on this topic and she is not qualified to testify about this topic because she is a registered nurse, not a medical physician. The Court rejects this argument. Plaintiff designated Lampton to testify about “the cost of [plaintiffs] future needs, care, and treatment” as a result of the injuries she sustained in the accident. The designation included a specific reference to plaintiffs future “needs,” and as stated in her expert report, Lampton bases her opinions about plaintiffs future needs on information she received from plaintiffs medical providers either through phone calls or from a review of plaintiffs medical records. In fact, plaintiff designated two of her treating providers, Dr. Molly Black and Dr. Daniel Farrell, to provide expert opinion testimony on “expected future symptoms, physical impairments and treatments.” It is proper for plaintiffs treating physicians to render such opinions. See Goeken v. Wal-Mart Stores, Inc., No. 99-4191-SAC, 2001 WL 1159751, at *3 (D.Kan. Aug. 16, 2011) (holding that a treating physician may testify to prognosis, the extent of present and future disability, and the need for future medical treatment as long as the opinion is based on the physician’s personal knowledge gained from the care and treatment of the plaintiff). It is also appropriate for Lampton to base her opinions on the underlying information she receives from plaintiffs medical providers. See, e.g., O’Shea v. Welch, No. 01-2336-JWL, 2002 WL 1974046, at *2 (D.Kan. Aug. 15, 2002) (accepting the testimony of a qualified expert life care planner who prepared a life care plan and based the future medical needs of the plaintiff on information that she received from plaintiffs treating physician).
Second, defendant argues that Lampton’s report is unreliable because she includes the costs for certain future medical treatment which defendant contends is speculative and not supported by the evidence. Defendant asserts that it is speculative for Lampton to opine that plaintiffs future medical treatment will include right and left knee replacements, a hip replacement, and a cesarean section. As noted above, Lampton bases her opinion on information she received from plaintiffs medical providers. The Court finds that Lampton’s opinion about plaintiffs need to undergo right knee replacement surgery is supported by information provided by plaintiffs treating orthopedic surgeon, Dr. Daniel Farrell. Dr. Farrell testified that plaintiff will likely require total knee replacement surgery on her right knee. While he notes that “it is impossible to state for sure” whether plaintiff will require knee replacement surgery on her right knee, he believes the “probability is high” that such surgery will be necessary. Plaintiff need not show that the expert opinion is “undisputably correct” as long as the expert’s method is scientifically sound and that the opinion is based on facts that satisfy Rule 702’s reliability requirements. Goebel, 346 F.3d at 991 (ating Mitchell, 165 F.3d at 781). The Court is satisfied that Lampton bases her opinion on the need for right knee surgery on reliable information provided by Dr. Farrell. Therefore, Lampton may provide expert testimony about future knee replacement surgery on plaintiffs right knee.
The Court also finds that Lamp-ton bases her opinion on plaintiffs need for a cesarean section on reliable information. Dr. Molly Black, an orthopedic surgeon a