829 F. Supp. 2d 1041
D. Colo.2011Background
- Plaintiff Kimberly Squires, a seventeen-year-old with disabilities, sues BOEC and Mountain Man over a February 13, 2008 ski accident at Breckenridge.
- Squires rode in a Mountain Man FFS Dual Ski bi-ski controlled by an adaptive instructor; tethers connected the bi-ski to the instructor's control.
- A collision occurred when another skier crossed into the tethers, causing the bi-ski to lose control and strike a tree, injuring Squires.
- Plaintiff’s Second Amended Complaint (Filed June 2, 2011) asserts Sixth–Ninth Claims against Mountain Man (strict liability, implied warranty, negligence, express warranty).
- Mountain Man moves for summary judgment on those four claims and separately seeks to exclude plaintiff’s expert Stanley Gale under Rule 702/Daubert; BOEC moves to strike/limit Gale and Bil Hawkins.
- The court conducted a Daubert hearing and, on summary judgment, granted Mountain Man’s motion and excluding Gale’s Mountain Man-related opinions, while denying BOEC's request to strike Hawkins.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gale qualifies as an expert under Rule 702 for Mountain Man. | Gale has relevant experience in ski safety and helps the jury. | Gale lacks qualifications in adaptive ski design and warnings for Mountain Man’s bi-ski. | Gale excluded for Mountain Man (not qualified) and reliability concerns. |
| Whether Gale’s opinions about Mountain Man’s product design/warnings are admissible. | Gale’s experience supports design/warning opinions. | Opinions lack reliable methodology and are outside Gale’s expertise. | Gale’s Mountain Man opinions excluded; alternative grounds also found unreliable. |
| Whether Gale’s opinions regarding BOEC are admissible. | Gale’s alpine/adaptive skiing background supports terrain/teaching opinions relevant to BOEC. | BOEC expert DeMuth conflicts; Gale’s adaptive skiing opinions are unreliable. | Admissibility of Gale as BOEC expert left intact; BOEC’s challenge largely unresolved with respect to Gale’s terrain opinions—decided on gatekeeping grounds elsewhere. |
| Whether Mountain Man’s summary judgment on Squires’ Sixth–Ninth Claims is proper. | Material facts remain; Gale’s excluded opinions do not defeat cognizable claims. | Under CRS 13-80-106 and 13-21-403, claims are time-barred or unsupported without admissible expert testimony. | Summary judgment granted for Mountain Man on Sixth–Ninth Claims; statutory tolling and rebuttable presumption govern, but without admissible expert support, Squires cannot prevail. |
Key Cases Cited
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (gatekeeping in Rule 702 requires reliable methodology)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (U.S. 1993) (general gatekeeping standard for expert testimony)
- Wehler v. Sandoz Pharmaceuticals, 162 F.3d 1158 (4th Cir. 1998) (gatekeeping and reliability considerations for expert testimony)
- Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083 (10th Cir. 1994) (admissibility and weight of expert testimony; breadth of cross-examination)
- Bonner v. ISP Technologies, Inc., 259 F.3d 924 (8th Cir. 2001) (Daubert gatekeeping and reliability standards)