Lawes v. CSA Architects and Engineers ( 2020 )

United States Court of Appeals
For the First Circuit
No. 16-2275
GRANDVILL D. LAWES,
Plaintiff, Appellant,
v.
CSA ARCHITECTS and ENGINEERS LLP,
Defendant, Appellee,
PUERTO RICO PORTS AUTHORITY; MAPFRE-PRAICO INSURANCE COMPANY;
MUNICIPALITY OF SAN JUAN; CONSTRUCTORA SANTIAGO II, CORP.;
RAFAELA RIVIERE-ANDINO; MIGUEL A. BONILLA, INC.; COOPERATIVA DE
SEGUROS MULTIPLES DE PUERTO RICO; PUERTO RICO ELECTRIC POWER
AUTHORITY; ACE INSURANCE CO.; INTEGRAND ASSURANCE COMPANY;
Q.B. CONSTRUCTION SE; TRIPLE-S PROPIEDAD, INC.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Jorge M. Izquierdo San Miguel, with whom Izquierdo San Miguel
Law Office, P.S.C. was on brief, for appellant.
Ricardo F. Casellas-Sánchez, with whom Diana Pérez-Seda,
Casellas Alcover & Burgos P.S.C., Fernando J. Gierbolini-González,
Richard J. Schell, and Monserrate Simonet & Gierbolini, LLC, were
on brief, for appellee.
June 18, 2020
THOMPSON, Circuit Judge. This case involves a
construction project, a pedestrian-involved collision, and a
twelve-day Daubert hearing that culminated in the exclusion of
plaintiff's only expert witness pursuant to Federal Rule of Civil
Procedure 26 and Federal Rule of Evidence 702. With his expert
ousted, plaintiff's negligence case collapsed halfway through
trial, and then the district court entered judgment as a matter of
law for defendants. The plaintiff has appealed the entry of
judgment against him and the district court's evidentiary rulings,
which sounded the death knell for his suit under Article 1802 of
the Puerto Rico Civil Code. On this voluminous record, even from
our deferential perch, we find that the district court erred.
So we vacate the lawsuit's dismissal and remand the matter for
proceedings consistent with this opinion.
BACKGROUND
In 2011, plaintiff-appellant Grandvill Lawes was hit by
an SUV while walking in a construction-affected area near Old San
Juan, Puerto Rico. The facts are drawn from a massive record,
including myriad motions and depositions, a 188-page pretrial
order, and several weeks of trial.1 We therefore beg the reader's
patience as we set the scene and describe the litigation that
followed.
1 All docket references ("D. _") are to Lawes v. Q.B. Constr.,
No. CV 12-01473 (D.P.R.).
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The Scene
Fernández Juncos Avenue ("Fernández Juncos" for short)
is an undivided four-lane highway, with two eastbound lanes and
two westbound lanes of traffic. Calle Del Tren, a two-lane
arterial roadway, lies to the north of Fernández Juncos. These
parallel roadways are separated by a cement median. Fernández
Juncos runs alongside San Juan Bay, and connects the working
waterfront (particularly, for our purposes, Piers 8, 9, and 10) to
Old San Juan, Puerto Rico. There is a sidewalk adjacent to the
waterfront to the south of Fernández Juncos (the "southern
sidewalk"), and there is a sidewalk to the north of Calle Del Tren
(the "northern sidewalk"). Before construction, pedestrians,
including sailors whose ships are docked at the waterfront piers,
could use the sidewalks on either side of the combined roadways to
travel into Old San Juan. Using just the southern sidewalk,
pedestrians heading into town could walk to the very end of the
piers before needing to cross over.2
Around 2010, the Bahía Urbana Pier 7 and 8 Improvement
Project, a government-funded construction project meant to
beautify the waterfront just outside of Old San Juan, was initiated
and, thereafter, significantly changed the landscape of the area.
2 Certain sailors testified at trial that they used the
southern sidewalk in order to avoid an area along the northern
sidewalk known as the "hot corner," where drug users purportedly
loiter and harass passersby.
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Defendant CSA Architects and Engineers, LLP was hired to draw the
plans for the Project. CSA was also responsible for designing a
Management of Traffic plan ("MOT") to safely control vehicular and
pedestrian traffic in the construction-affected area. Defendant
Q.B. Construction, the Project's primary contractor, was tasked
with implementing CSA's designs, including the MOT. As instructed
by CSA's MOT, Q.B. installed a temporary concrete barrier along
the southern sidewalk near the middle of the block (the "midblock
barrier"). The midblock barrier closed part of the southern
sidewalk -- but only part -- from pedestrian use. The midblock
barrier also jutted into Fernández Junco's southernmost eastbound
lane of traffic, reducing the width of that lane.
According to defendants (and as designed in the MOT),
Spanish-language signs at a permanent, mechanical crosswalk near
Pier 9 indicated that the southern sidewalk was partially closed
and instructed pedestrians to cross over to the unobstructed
northern sidewalk.3 If pedestrians didn't spot the signs, didn't
understand them, or chose to ignore them, nothing prevented them
from walking along the southern sidewalk until the concrete
midblock barrier, nearly 300 feet away from the crosswalk.
3
Lawes disputes that certain Spanish-language signs provided
for in the MOT (including a sign that was supposed to instruct
pedestrians to cross over to the northern sidewalk at a crosswalk
near Pier 9) were in place at the time of Lawes' accident.
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At that point, they could either walk back to the crosswalk (about
3/4 the length of a football field) and risk walking toward the
hot corner or they could jaywalk.4
The Accident
Lawes was one of several merchant marines docked at San
Juan Bay on October 22, 2011, when he and his shipmate, Carlos
Gordon, ventured off their ship to grab dinner in Old San Juan.
Gordon, who had visited the area prior to construction, normally
traveled into town using the southern sidewalk. When Gordon and
Lawes reached the recently implemented midblock barrier on the day
of the accident, however, they took a detour: they jaywalked
across Fernández Juncos and Calle Del Tren, and resumed their trek
along the northern sidewalk (a healthy distance away from the "hot
corner"). When the sun had set and the street was dark, the pair
journeyed back to the piers. They started on the northern
sidewalk, which would have led them to a permanent crosswalk back
to the piers. They decided to jaywalk a second time.
Lawes took the lead. After successfully crossing Calle
Del Tren, he attempted to cross Fernández Juncos. He was standing
on the roadway's yellow divider, two eastbound lanes away from the
southern sidewalk, when something awful happened: a traffic light
4 Apparently, some pedestrians came up with a third solution:
scurry alongside the midblock barrier, against oncoming traffic,
without crossing Fernández Juncos in the construction-affected
area.
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changed down the block and cars began rushing toward Lawes from
both directions, trapping him on the yellow divider.
Seconds later, he was struck head on by a westbound SUV. Lawes is
now quadriplegic and will need medical care for the rest of his
life. As he tells it, his medical expenses have already reached
$10 million.
The Lawsuit
On June 14, 2012, Lawes filed a negligence-based lawsuit
under Article 1802 of the Puerto Rico Civil Code against public
and private entities involved in the Bahía Urbana construction
project, including the Project's contractor Q.B.; the Constructora
Santiago Corp. II (another construction company involved in the
Project); the Puerto Rico Ports Authority; the Municipality of San
Juan; and their respective insurance companies. Soon after, Q.B.
filed third-party complaints against Rafaela Riviere-Andino, the
driver who struck Lawes with her car, and her insurer. On November
26, 2013, Q.B. and Riviere-Andino jointly filed a third-party
complaint against: CSA, the Project's designer; Miguel A. Bonilla,
Inc., the Project's inspection firm; the Puerto Rico Electric Power
Authority ("PREPA"), which was conducting maintenance on
streetlights in the construction-affected area; and these parties'
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insurance companies.5 Thereafter, Lawes amended his complaint
twice, adding Q.B.'s insurers and CSA as direct defendants in 2014
and 2015, respectively. Although CSA is the only remaining
defendant on appeal,6 we are tasked with reviewing district court
rulings that resolved concomitant arguments raised by CSA, former
defendant Q.B., and certain third-party defendants mentioned
above. Thus, to aid the reader in understanding the district
court's reasoning and our review of it, we must occasionally
provide facts and conduct analysis concerning parties who are no
longer part of the litigation.
After instituting his lawsuit, Lawes did what any smart
plaintiff in his position would do: he retained an expert witness
to opine on the standard of care owed to pedestrians in
construction-affected areas and to explain how defendants'
negligence caused his accident. Enter scene: Ralph Aronberg, the
5To simplify our recitation of the various defendants and
third-party defendants in this litigation, we are omitting the
names of the insurance carriers and will refer only to the parties
they insured. Over the course of the litigation, there were no
meaningful differences between the theories advanced by the
insurance carriers and the insured, and (in some instances) the
insurers and the insured were represented by the same counsel.
6Lawes voluntarily dismissed his claims against Constructora
Santiago Corp. II and the Ports Authority in August 2012 and
January 2013, respectively. The district court entered partial
judgment for the Municipality of San Juan and its insurance
carrier, dismissing both Lawes' claims and the third-party
complaint against the Municipality. And on April 19, 2017, this
Court granted Lawes' unopposed motion to dismiss all remaining
appellees except CSA, following a partial settlement.
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traffic engineer that Lawes brought into the case as his star (and
only) expert witness. For the reasons we explain later, Aronberg's
expert opinions were crucial to Lawes' case, and the district
court's exclusion of them is part of the reason why Lawes appealed.
Thus, Aronberg (and his opinions) are the primary focus of our
review. That's why we're going to walk you through his role in
the case, starting with his first act (here, a preliminary report).
Aronberg's Preliminary (and Only) Expert Report
On January 25, 2013, about six months after Lawes filed
his first complaint, Aronberg submitted a three-page, self-
described "preliminary report." (Spoiler alert: this would be
the only expert report Aronberg produced.) Attached to the report,
Aronberg provided a copy of his CV, a list of recent trials and
depositions in which he testified as an expert, and excerpts from
the 2009 edition of the Manual on Uniform Traffic Control Devices
("MUTCD") (which we'll discuss often here). Aronberg, according
to his CV, is an expert in traffic accident reconstruction, traffic
engineering design, work-zone traffic control evaluation, and
pedestrian safety. A 1978 graduate of the University of Virginia
with a Bachelor of Science in Civil Engineering, he also holds a
Master of Science in Engineering Management from Nova Southeastern
University in Fort Lauderdale, Florida. Aronberg worked for
several years as a traffic engineer in Florida before founding a
consulting firm in 1983. In the four years before he was hired by
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Lawes, Aronberg qualified to serve as an expert witness in sixteen
trials and was deposed as an expert over forty times.
The report begins by disclosing the source of Aronberg's
methodology: the MUTCD,7 a set of guidelines published by the U.S.
Department of Transportation, which Aronberg later described as
the "Bible" for traffic engineers. The MUTCD (among other things)
includes guidance on "[p]edestrian [c]onsiderations" in
construction zones. It advises, for example, that "pedestrians
need a clearly delineated and usable travel path" in temporary
traffic control ("TTC") zones. Because "pedestrians are reluctant
to retrace their steps" or "add distance," they should be provided
a "convenient and accessible path" that replicates a continuous
sidewalk. According to the MUTCD, alternative routes that require
pedestrians to cross a roadway are discouraged, but (if
unavoidable) such routes should include "advance signing" to
encourage safe travel across the roadway.
Importantly, pedestrians should not be confronted with "midblock
worksites" that "will induce them to attempt skirting the worksite
7 According to the U.S. Department of Transportation, the
MUTCD is a set of guidelines used by "road managers nationwide to
install and maintain traffic control devices on all public streets,
highways, bikeway, and private roads open to public travel." MANUAL
ON UNIFORM TRAFFIC CONTROL DEVICES FOR STREETS AND HIGHWAYS,
https://mutcd.fhwa.dot.gov/index.htm. Moreover, the MUTCD
compiles "national standards for all traffic control devices,
including road markings, highway signs, and traffic signals" and
is updated periodically by the Federal Highway Administration.
Id. The current MUTCD edition was published in 2009. Id.
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or making a midblock crossing." To "minimize[e] the possibility
of midblock crossings," the MUTCD advises that TTC devices,
including temporary traffic barriers or "longitudinal channelizing
devices," may be used. But whenever feasible, "closing off the
worksite from pedestrian intrusion" is preferable to channelizing
foot traffic with TTC devices. The MUTCD (as a whole) is
incorporated by reference into CSA's MOT (recall that the MOT
governed the management of vehicular and pedestrian traffic in the
area where Lawes' accident occurred).8
As to the data Aronberg had considered, his report
references Lawes' police accident report; photos taken by police
on the scene; daytime and nighttime aerial photos of the accident
site; observations from Aronberg's inspection of Riviere-Andino's
SUV and the accident site; unspecified construction "plans"; the
2003 and 2009 editions of the MUTCD; lighting records produced by
PREPA (purportedly showing that certain streetlights in the area
were under maintenance and not operational the night of the
accident); and a description of Lawes' activities before the
accident (provided by Lawes' counsel).
8Specifically, General Note 4 of the MOT states:
"[p]rovisional signing and control of traffic shall be as provided
in the Manual on Uniform Traffic Control Devices, Part VI . . .
and with Specification 638 listed on Standard Specifications for
Road and Bridge Construction." We'll go over the relevance of the
MUTCD and Specification 638 to this case in more detail later.
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After providing a summary of the relevant facts,9
Aronberg's report ends with one long paragraph of analysis, which
discloses the following opinions:
1. The "contractor" (Q.B.) created a dangerous
condition that contributed to Lawes' accident "by not providing a
safe sidewalk and/or positive guidance in the use of sidewalks."
2. Given the lack of "positive guidance," Lawes' path
on the night of his accident was reasonable.
3. The contractor did not take steps to ensure the
area streetlights were functioning that night.
4. The contractor should have closed the southern
sidewalk completely with a barricade starting at the intersection
(where the crosswalk was located). Positive guidance "in the form
of a sign reading 'SIDEWALK CLOSED CROSS HERE'" could have been
attached to the barrier.
5. In view of his opinion about closing the southern
sidewalk completely, Aronberg opined that the southernmost
eastbound lane of traffic could have been blocked off and
repurposed as a continuous temporary sidewalk (known as a
9 Aronberg's factual summary was derived in part from the
police accident report. How do we know? It contains the police
report's erroneous cardinal directions (i.e., Aronberg's report
says south when it should say north and says east when it should
say west (and vice versa)). Aronberg later clarified that he was
aware of this issue (as of his visit to the site) but nevertheless
adopted the police accident report's directions for consistency.
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"pedestrian corridor"). Left open, the lane was too narrow for
vehicular traffic anyhow.10
Crucially, these opinions were primarily directed at
Q.B., the contractor. The report concludes by claiming the
contractor "and others" proximately caused Lawes' accident, but
does not mention anyone else by name.11 Aronberg, however, reserved
the right to modify his report in light of sworn testimony or other
evidence produced during discovery.
Aronberg's First Deposition
Speaking of sworn testimony, eleven months after
publishing his report, Aronberg was deposed for the first time on
November 8, 2013. Riviere-Andino, the Municipality of San Juan,
10To be clear: Aronberg at no point suggested that the narrow
southernmost eastbound lane caused Riviere-Andino to hit Lawes,
which makes sense because Riviere-Andino was traveling in the
westbound lane when the accident occurred. Rather, as Aronberg
clarified in depositions and during his Daubert hearing, the lane's
narrowness was relevant because it could have been closed to
vehicular traffic and converted into a continuous sidewalk for
pedestrians (in accordance with MUTCD guidance and other industry
standards). In Aronberg's expert opinion, providing such a
pedestrian corridor would have been safer than leaving the
partially-blocked sidewalk open, which he believed induced Lawes'
jaywalking.
11At the time the report was published, CSA was not a direct
defendant in the litigation.
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and Q.B. sent their lawyers to the deposition, which lasted six
hours.
Q.B. began with a line of questions about Aronberg's
background, qualifications, and methodology. When given the
opportunity to spell out his methodology, Aronberg explained that
he had applied the MUTCD to the conditions in place during Lawes'
accident to determine "the devices that should have been used and
the manner in which [Q.B.] should have implemented a traffic
control plan to account for pedestrian traffic." Aronberg claimed
that his MUTCD-based methodology is generally accepted by traffic
engineers, and it was validated by the Federal Highway
Administration, a division of the U.S. Department of
Transportation that publishes the MUTCD. When asked whether his
methodology had been reviewed by others in the industry, Aronberg
mentioned the Institute of Transportation Engineers Journal
("ITE") as an example. He insisted, however, that he did not need
to rely on the ITE or other publications to know that the MUTCD
applied. Rather, experts in the field need only look to the MUTCD
itself, which Aronberg described as both the "law" and the "Bible"
for traffic engineers. For Aronberg, the MUTCD serves as the
ultimate litmus test for evaluating traffic control plans for
pedestrian safety.
After being quizzed about his methodology, Aronberg
listed the data he considered in forming his expert opinions, which
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was mostly consistent with his preliminary report.
Aronberg revealed for the first time, however, that he had measured
the width of Fernández Juncos' southernmost eastbound lane (from
the yellow lane divider to the beginning of the midblock barrier)
during his July 16, 2012 site inspection. Aronberg also
volunteered information about new data he had considered since
publishing his report. His new sources included video animations
of what he thought occurred the night of the accident; the
guidelines issued by the American Association of State Highway
Transportation Officials ("AASHTO")12 (which set standards for
highways, including the southernmost eastbound lane that Aronberg
believed was too narrow, and which are incorporated by reference
in the MUTCD); and CSA's MOT (which Aronberg did not have access
to in full when writing his preliminary report). He also reviewed
deposition testimony from Ruth Vargas (CSA's lead MOT designer)
and Edgardo Velez (Q.B.'s project manager).
12
As Aronberg explained during his first deposition: "AASHTO
is a nonprofit, nonpartisan association representing highway and
transportation departments in the 50 states, the District of
Columbia, and Puerto Rico . . . . Its primary goal is to foster
the development, operation, and maintenance of an integrated
national transportation system." According to the U.S. Department
of Transportation, AASHTO serves as "a liaison between State
departments of transportation and the Federal government," and
produces manuals and other guidance concerning (among other
things) the national standards for roadway design and
installation. U.S. Department of Transportation,
https://safety.fhwa.dot.gov/roadway_dept/countermeasures/reduce_
crash_severity/aashto_guidancecfm.cfm (last visited June 17,
2020).
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Defense counsel's microscope eventually turned to
Aronberg's expert opinions. From under the lens, Aronberg unveiled
some new opinions, and added color to the opinions disclosed in
his report. We'll tackle the "new" opinions first. Aronberg
stated, for the first time, that there should have been "something"
in place preventing Lawes from crossing at midblock from the
northern sidewalk to the southern sidewalk. In particular, orange
safety fences should have been installed along the northern
sidewalk to prevent pedestrians from jaywalking to the open part
of the southern sidewalk after the midblock barrier. He pointed
out that this opinion was consistent with CSA's MOT. The MOT, in
addition to providing the contractor with a blueprint of how the
construction-affected area should look, includes twelve "General
Notes." Note 11, according to Aronberg, supported his orange
safety fence opinion. It states: "orange safety fences shall be
installed between the sidewalk and the working area for the safety
of the pedestrian flow."13 Aronberg's other new opinion was that
Q.B. should have monitored the area for dangerous conditions.
Had Q.B. been on proper daytime and nighttime monitoring duty, as
Aronberg suggested, it would have detected unsafe pedestrian
conduct before Lawes' tragic accident.
13The MUTCD also calls for the implementation of "pedestrian
channelizing" devices, where needed, to "minimiz[e] the
possibility of midblock crossings."
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Aronberg also provided more substance to his previously
disclosed opinions. First, he elaborated that "positive guidance"
is important because pedestrians are more likely to take a shorter,
more dangerous route to their destinations if left to their own
devices. When asked to provide the basis for his conclusions
regarding pedestrian behavior in construction zones, Aronberg
explained that he (and other traffic engineers) received training
on "human factors" that helped predict "how people are going to
conduct themselves, whether it be foot traffic or vehicular
traffic."14 Aronberg also noted that the deposition testimony of
sailors who admitted to jaywalking to and from the southern
sidewalk supported his opinion that the area impacted by the Bahía
Urbana project lacked adequate positive guidance. Based on the
excerpts from Aronberg's deposition in the record, his deposers
did not ask him to elaborate further on what positive guidance
should have been in place.
Second, considering new data he had received since
submitting his report, Aronberg expounded on his opinion that the
14At the time, Aronberg was not asked by any deposer whether
the MUTCD supported his opinion. However, the MUTCD specifically
"recognize[s] that pedestrians are reluctant to retrace their
steps to a prior intersection for a crossing or to add distance or
out-of-the-way travel to a destination." The MUTCD, therefore,
cautions against "midblock worksites that will induce
[pedestrians] to attempt skirting the worksite or making a midblock
crossing," and it advocates in favor of "appropriately" directing
pedestrians with guidance such as "advance signing."
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southern sidewalk should have been completely closed. When he was
drafting his preliminary report, he only had access to "some pages"
of the construction "plans."15 He eventually received the full
MOT, which was an exhibit to (CSA MOT designer) Ruth Vargas'
deposition. With the help of the MOT and Vargas' deposition
testimony, Aronberg now understood that the MOT left the sidewalk
partially open to accommodate a planned bus stop that was being
relocated from an area closed for construction.
Aronberg, therefore, did not "fault" Vargas (and, by extension,
CSA) for designing the midblock barrier and partially open
sidewalk. He continued to think, however, that closing the
sidewalk completely was generally the safer option for
pedestrians. And notwithstanding the bus stop, Aronberg still
believed Q.B. should have done more to ensure the design's
implementation was safe for pedestrians. Aronberg explained, for
example, that Q.B. could have initiated a "request for information
process" to identify alternatives to the midblock barrier, and it
could have installed the safety fence (part of his new opinion)
along the northern sidewalk to prevent midblock jaywalking.
Third, Aronberg described the pedestrian corridor
opinion in greater detail. Recall that the preliminary expert
report concluded (without elaboration) that Fernández Juncos'
15
It is not clear from the record what plans Aronberg had
access to when forming the opinions disclosed in his report.
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southernmost eastbound lane of traffic was too narrow and could
have been closed due to the midblock barrier that jutted into it.
When asked how he knew the lane was too narrow, Aronberg stated
that he measured the lane during his July 2012 inspection. Based
on his measurements, the lane was less than 8 feet wide. He
understood from AASHTO references that the lane ordinarily should
have been at least 10 feet wide. Aronberg believed that a
construction contractor like Q.B. should have noticed the lane was
too narrow when it constructed the midblock barrier. Since the
lane was unsafe, Q.B. should have "approach[e]d the [Puerto Rico]
highway authority and the designers to determine what should be
done." A reasonable next step, as Aronberg tells it, was to close
the unsafe lane and convert it into a pedestrian corridor.
Finally, Aronberg expanded his report's one-sentence
opinion that Q.B. had to ensure the streetlights were working in
the area. When pressed about Q.B.'s authority over streetlights
(or lack thereof), he claimed the contractor was responsible for
ensuring adequate lighting in the construction "work area"
regardless of the maintenance work that PREPA was conducting the
night of Lawes' accident. For support, he pointed to his years of
experience in the industry, an unspecified part of the MOT, and
Vargas' deposition, in which she explained that Q.B.'s area of
responsibility included the northern sidewalk. That's it for the
first deposition.
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Aronberg's Second Deposition
On August 21, 2014, Aronberg was deposed a second time.
There was one major development in the litigation at the time:
Lawes amended his complaint to include allegations against CSA.16
CSA, the new defendant on the block, sent counsel to depose Lawes'
expert.17
As was the case for his first deposition, Q.B. conducted
the first round of questioning. Out of the gate, Aronberg revealed
he had considered new data, namely: the July 2014 expert report
published by Murray Yates on behalf of CSA;18 the deposition of
Riviere-Andino's accident reconstruction expert, Steven Schorr
(who testified that the construction-affected area would have been
16In his successful motion for leave to file a third amended
complaint naming CSA as a defendant, Lawes stated that "after
further discussions with [Aronberg]" he had concluded that CSA's
"poor design of the construction contributed to the accident in
this case."
17 The other parties present were: Q.B.; Bonilla (the
engineering inspection firm retained in connection with the
Project); PREPA (the municipal agency responsible for maintaining
the light poles near Piers 7 and 8); the Municipality of San Juan;
and two of their insurance carriers.
18 Yates' report states that he has expertise in "construction
engineering," as well as the design, inspection, and evaluation of
temporary traffic control plans. The report concludes that CSA
had a duty to reasonably design the MOT and it fulfilled that duty;
Q.B. was responsible for implementing CSA's design; and Bonilla
was obligated to monitor the site. Stay tuned because we'll
discuss Yates' report and the report published by Q.B.'s expert
after we wrap up Aronberg's second deposition.
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safer if pedestrians were not required to cross any lanes of
traffic); the report and deposition of Riviere-Andino's other
accident reconstruction expert, Iván Baigés Valentín (who
testified the signage along the southern sidewalk was inadequate);
the depositions of Paul Levergne Arostegui and Francisco Bechara
Rivera;19 the deposition of Grandvill Lawes; a second deposition
of Riviere-Andino; an American National Standards Institute
document pertaining to lighting and signage; Q.B.'s requests for
information ("RFIs") from CSA and others during the implementation
of the MOT; and minutes from meetings attended by Q.B., CSA, and
other parties to the Bahía Urbana construction contract.
In addition, Aronberg visited the scene of the accident again,
this time at night.20
Aronberg openly acknowledged he had developed some new
opinions, modified some earlier opinions, and put a finer point
(i.e., more detail) on other previously expressed opinions.
Perhaps the most important new opinion for our purposes: Aronberg
now opined that CSA's "poor" design contributed to Lawes' accident.
19
These individuals do not come up elsewhere in the portion
of the record pertinent to our review.
20Three months before his August 2014 deposition, Aronberg
inspected the scene at night. He was not asked to provide the
exact time of his visit. But he did explain that there were
"lights in the area" that he believed were not there before.
Recall that Aronberg opined in his preliminary report and prior
deposition that the streetlights along the northern sidewalk were
not operational at the time of the accident.
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In other words, Aronberg offered the expert opinion that the MOT
was negligently designed. For support, he identified two major
flaws.
First, according to Aronberg, the MOT failed to properly
instruct Q.B. on implementing "positive guidance" for pedestrians.
Although the MOT included "notes that a contractor could
implement," those instructions were not detailed enough. In
Aronberg's opinion the "best practice" was to "provide the positive
guidance [and] not leave things up to the contractor who might not
have the expertise of the actual designer." So the design should
have specifically instructed Q.B. to implement a "fence" or other
"physical barrier," as well as signs that would assist pedestrians
in following a safe, MOT-approved footpath to and from the
waterfront.21 Although he did not cite any MUTCD provision that
applied, he explained that his opinion was consistent with the
MUTCD's purpose.22
Second, CSA was negligent by including the midblock
barrier in its design. In contrast to his report and prior
21He explained, for example, that the MOT lacked "signs
guiding pedestrians [on the northern sidewalk] to go to the
crosswalk at the traffic signal before crossing the roadway."
These signs might say: "Crosswalk Further Ahead," "Detour," or
"Pedestrian Detour."
22
At another point in his deposition, Aronberg elaborated on
his positive guidance opinion at a more general level. He
emphasized, as he had in his first deposition, that positive
guidance is necessary because pedestrians (when left to their own
- 22 -
deposition testimony, both of which blamed Q.B. for errors in
implementing the MOT, Aronberg concluded that CSA's negligence
also extended to the midblock barrier. Why? Following his last
deposition, Aronberg had received and reviewed Q.B.'s RFIs and
responses from the Project. One such RFI response from the Puerto
Rico Metropolitan Bus Authority indicated that the planned bus
stop was not going to be relocated to the southern sidewalk after
all. And Project meeting minutes, which Aronberg had also
reviewed, indicated that both Q.B. and CSA were present for a
discussion of the decision not to relocate the bus stop to the
southern sidewalk. Having solved the bus stop mystery, Aronberg
now concluded: (1) there was no justification for the midblock
barrier, which Aronberg viewed as an unsafe condition that
contradicted MUTCD guidance;23 and (2) assuming CSA's MOT designers
knew the bus stop was not going to be relocated to the southern
sidewalk,24 CSA had the duty to act, including redesigning the MOT
with a closed sidewalk.
devices) are more likely to take a dangerous, shorter path through
a construction zone. To bolster his expertise on the subject
matter, Aronberg testified about his extensive training on "and
observation of" pedestrian behavior in construction-affected
areas.
23
In Aronberg's professional opinion, the MUTCD allows
sidewalks to be closed at mid-block if and only if "there's
something that the sidewalk serves."
24
When pushed by CSA's counsel, Aronberg conceded that he did
not know whether the CSA representatives at the meeting were
- 23 -
Adding to his new theories about CSA's negligence,
Aronberg claimed that when CSA was designing the MOT and first
learned a bus stop was going to be situated in the construction-
affected southern sidewalk, it "should have at least requested .
. . permission" from the Puerto Rico Metropolitan Bus Authority to
put the bus stop somewhere else. In Aronberg's opinion, CSA had
a "professional duty . . . to design something safely," including
by taking the affirmative step of contacting municipal authorities
to request a different location for the bus stop so that Q.B. could
close the sidewalk completely. Aronberg was asked whether his
opinion conflicted with the MUTCD, which includes one model traffic
control design in which the sidewalk is left partially open in a
construction-affected area. He countered that, pursuant to the
MUTCD, such a design is only appropriate "[i]f there was a reason
that the sidewalk has to be left open."25 Here, given CSA's options
involved with the MOT design or whether they focused on other parts
of the Project. So he could not say for sure whether the changed
bus stop plans were passed on to the design team. While he believed
CSA's MOT designers had a duty to know "what was happening with
their design," he elected to "only fault them if they knew" the
bus stop was not going to be relocated.
25The MUTCD states, for example: "Whenever it is feasible,
closing the worksite from pedestrian intrusion may be preferable
to channelizing pedestrian traffic along the site with TTC
devices." MUTCD Section 6D.12; see MUTCD Section 6D.09 (discussing
strategy for minimizing midblock crossings).
- 24 -
and the conditions in place, the sidewalk should have been closed
completely.
Later on, Aronberg was asked to clarify whether his new
opinions regarding CSA's negligent design extended to the narrow
eastbound lane of traffic, which Aronberg thought could be closed
and converted into a pedestrian corridor. In Aronberg's opinion,
the design (albeit imperfectly drawn)26 instructed Q.B. to keep the
lane width as is. And, even if Q.B. mistakenly thought the design
required the encroachment, it should have followed up to confirm
before implementation. Aronberg thus blamed Q.B.'s negligent
implementation (not CSA's negligent design) for the narrow lane.
To avoid confusion down the line, we'll stress here that the lane's
width was only relevant insofar as it indicated that the lane could
be closed and converted to a better use: providing pedestrians
like Lawes with a safe, continuous sidewalk to the south of
Fernández Juncos. In Aronberg's book, Q.B. was to blame for not
making the connection between the narrow lane (which it should
have identified while implementing the barrier) and the
opportunity to implement a safer alternative for pedestrians. And
since Q.B. was the Project's lead contractor, Aronberg concluded
26
Aronberg acknowledged that there were issues with CSA's
drawn-to-scale depiction of the construction-affected area. He
noted, for example, that it did not provide the actual dimensions
of Fernández Juncos' lanes, and there was a lane down the block
from Lawes' accident that the MOT got wrong.
- 25 -
that it should have taken affirmative steps to close the lane from
traffic even if it meant contacting the Puerto Rico Highway and
Transportation Authority to request permission to do so.
Apart from the above-mentioned new and amended
opinions,27 Aronberg mostly doubled down on those he had previously
expressed. For instance, when defense counsel pointed out that
the regulation of streetlights in Puerto Rico falls within the
jurisdiction of the federal government, Aronberg responded that
Q.B., as the construction contractor, still had lighting-related
responsibilities. Aronberg said that he did not need to review
the law to support this opinion. Rather, the MOT itself dictates
that contractors are responsible for adequate illumination of
their area.28 At a different point, Aronberg touched upon his
27While we don't need to spill much ink on this because of
its tangential relevance, Aronberg also opined about the
negligence of Bonilla, the project's safety inspector and third-
party defendant in the district court case. Although he believed
Bonilla missed the mark in performing its inspection duties, he
still claimed that Q.B. should have routinely monitored the area.
28The excerpts in the record do not indicate whether Aronberg
pointed out the applicable section of the MOT to support this
opinion. Relevant here though, MOT General Note 10 instructs Q.B.
to read Specification 638 of the Standard Specifications for Road
and Bridge Construction issued by the Puerto Rico Highway and
Transportation Authority. Specification 638 "puts [the
contractor] [o]n notice that he has the primary responsibility for
providing the necessary traffic control devices and taking other
appropriate measures for the protection of the public and his
personnel."
- 26 -
opinion that there should have been an orange safety fence29 along
the northern sidewalk to "channelize pedestrians" and discourage
midblock crossings.
Aronberg was forthcoming about the fact that he
considered the August 2014 deposition to be an opportunity to
supplement his opinions. Asked by Q.B.'s counsel if he intended
to provide a supplemental written report, Aronberg replied: "I
would only amend it if I'm asked to amend it. To me, I've given
a report and I've supplemented the report in depositions, which is
sworn testimony for everybody to read. I don't know that I'm
required to put it in any further written form beyond that."
Later, CSA's lawyer asked Aronberg: "I just want to make sure to
understand that I guess your final report would be your preliminary
report and your testimony in the depositions. Is that a fair
assessment?" Aronberg's "yes" in response was unequivocal.
The Other Experts
Defendants also put up experts, who agreed with some of
Aronberg's opinions and attempted to cast doubt on others. We'll
talk about a few of them. First up, CSA's traffic engineering
29During Aronberg's second deposition, it became clear that
the orange safety fence opinion was the offspring of his more
general opinion that the construction-affected area lacked
positive guidance for pedestrians. To avoid confusion, however,
we will continue to discuss the orange safety fence opinion
separately because of what happened down the road.
- 27 -
expert, Yates, concluded in his July 2014 report that CSA's MOT
design was reasonable, and that Q.B. had primary responsibility
for the design's implementation, according to the standard
specifications30 (and other such "contract documents") referenced
in the MOT's General Notes. During Yates' first deposition on
August 23, 2014 (two days after Aronberg's second deposition), he
explained that the standard specifications and the MUTCD required
Q.B. to monitor the construction area to ensure pedestrians were
safely navigating it -- which aligns with Aronberg's monitoring
opinion. Notwithstanding Q.B.'s monitoring obligations, Yates
opined that "all the parties" (including CSA, Q.B., and the
project's safety inspector, Bonilla) "should be looking at the job
and verifying whether the conditions were attributing to [unsafe
pedestrian patterns] in some way." When he was asked about the
utility of Aronberg's "orange safety mesh" fence, however, Yates
explained that such barriers would not have made a difference here.
On August 30, 2014, days after Aronberg's second and
Yates' first deposition, Q.B.'s traffic engineering expert,
Hanscom, released a report. Hanscom, per his report, previously
served on the National Committee for Uniform Control Devices, which
helps the Federal Highway Administration draft the MUTCD. Hanscom
concluded that Lawes' "crossing behavior" (i.e., jaywalking)
30 Relevant here, Specification 638.
- 28 -
caused his accident, and neither additional signage nor adequate
street illumination would have prevented it. He also claimed that
Aronberg had failed to articulate why the width of the southernmost
eastbound lane was relevant to Lawes' accident. Exactly three
months later, on November 20, 2014, Hanscom filed a supplemental
report "in response to depositions" he had reviewed after filing
his initial report. In particular, Hanscom finally got the
opportunity to review Aronberg's and Yates' deposition testimony.
As is relevant here, Hanscom's supplemental report claimed that:
(1) Lawes' negligence caused the accident; (2) CSA and Q.B. were
not responsible for providing "positive guidance" on the
unobstructed northern sidewalk; (3) Bonilla (not Q.B.) was
responsible for "inspection activity," which included observing
"pedestrian flow activity"; (4) the midblock barrier did not force
pedestrians into a "pattern of dangerous walking behavior";
rather, "abundant evidence" indicated that they were trying to
avoid a dangerous area along the northern sidewalk (i.e., the hot
corner); (5) signage location, the midblock barrier, and the narrow
eastbound lane did not contribute to Lawes' accident and, even if
they did, "the placement of those items is an issue of [CSA's MOT]
design"; (6) because Q.B. was responsible for illuminating the
work area only when construction was underway, it had no lighting
obligations at night, when Lawes' accident occurred; and (7) Q.B.
was not authorized to modify the MOT without CSA's permission.
- 29 -
Hanscom doubled down on most of these opinions during his
deposition on January 29, 2015, which Lawes and CSA attended.31
However, when confronted with MUTCD Section 6B, which requires
that construction-affected areas undergo routine day and night
inspections, he acknowledged that the MUTCD was ambiguous as to
whether Q.B. (the contractor) or Bonilla (the inspector) was
required to conduct such monitoring of the area while the MOT was
in effect.
Separately, Riviere-Andino's accident reconstruction
expert,32 Ivan Baigés Valentín, inspected the accident site,
measured the width of the lanes, conducted perception visibility
analysis (including an evaluation of lighting in the area),
calculated Riviere-Andino's speed reaction time, and prepared an
accident reconstruction diagram. The main thrust of his expert
report (which is described but not included in the record) and
June 2014 deposition testimony was that Riviere-Andino was not
31 Q.B. also retained a professional engineer, Dennis
González. The bulk of González's expert report from August 29,
2014 is dedicated to distinguishing Q.B.'s project-related
responsibilities from Bonilla's; he explained that Bonilla (not
Q.B.) was in charge of monitoring the construction-affected area
after the MOT's implementation. González also claimed that PREPA
(not Q.B.) was responsible for insufficient lighting (if any).
32Riviere-Andino's other expert, Steven Schorr, published an
expert report on May 20, 2013 and was deposed on November 11, 2013.
The record provides minimal insight into his opinions and
methodology.
- 30 -
responsible for Lawes' "actions" or the "hazardous conditions" in
the area. But, according to Baigés Valentín, the lack of street
lighting along the northern sidewalk impacted Lawes' visibility
(to Riviere-Andino), and inadequate signage was also an issue.33
The Trial and the Daubert Hearing
On March 7, 2016, following the close of several years
of discovery, a jointly filed 188-page pretrial order, the
"longest" pretrial conference in the district court's twenty-three
years on the bench, and prodigious motion practice, the trial on
Lawes' claims began. It lasted twenty-eight days, and was
litigated by twelve, and sometimes thirteen, lawyers on any given
day.
On the fifteenth day of the trial, April 19, 2016, the
court commenced what turned out to be a twelve-day Daubert
hearing,34 with the purpose of determining whether or not Lawes'
expert could testify before the jury. It is important to
underscore that, although defendants had made some efforts to
restrict Aronberg's testimony in their motions in limine, no party
33
With respect to signage, Baigés Valentín clarified during
his deposition that he believed more signage was needed along the
southern sidewalk.
34
The Daubert hearing concluded on May 16, 2016, after
thirteen days on the court's docket. But since Aronberg did not
appear in court and was not questioned on April 22 (when the court
heard the parties on Lawes' motion to disqualify the judge), we do
not count that day.
- 31 -
had formally moved to exclude his testimony in its entirety. In
fact, the court opened the hearing by pointing out that, even
though there was no Daubert challenge on the docket, "plaintiff
has made arguments to the Court that have obligated the Court to
hold a Daubert hearing."
That same day, Q.B. (via its insurer) complained for the
first time that Aronberg was not a reliable witness under Federal
Rule of Evidence 702, and that Lawes had insufficiently disclosed
Aronberg's expert opinions prior to trial in violation of Federal
Rule of Civil Procedure 26(a)(2)'s disclosure requirements and
Rule 26(e)(2)'s supplementation requirements. From Q.B.'s
perspective, when Aronberg started to explain its responsibility
to place an orange mesh fence between the northern sidewalk and
the combined roadways' many lanes, the expert was expressing an
opinion that was unreasonably speculative and previously
undisclosed. The very next day, Q.B. filed a motion in limine to
sanction Lawes for his Rule 26 disclosure violations pursuant to
Rule 37(c)(1), and requested the court exclude Aronberg's
testimony under Rule 702. Lawes argued in his opposition that
defendants had not demonstrated surprise and prejudice (factors
favoring preclusion under Rule 37(c)(1)) since Aronberg had
expressed the orange safety fence opinion during both of his
depositions, defendants' experts had rebutted the opinion in their
- 32 -
reports and depositions,35 and the opinion was disclosed in the
parties' jointly-filed pretrial order. Moreover, the orange
safety fence opinion was supported by sufficient facts and data to
withstand Q.B.'s first official Daubert challenge. Nonetheless,
the district court issued an order explaining that, to be
admissible at trial, Aronberg's opinions must have been included
in his preliminary expert report or a written supplemental report.
Since the orange safety fence opinion was not disclosed in a
report, the court found that Lawes had violated Rule 26's expert
disclosure and supplementation requirements. Moreover, because of
Lawes' "ambush litigation tactics," his misconduct required the
exclusion of all orange safety fence-related testimony. The court
reserved for another day its opinions on Aronberg's reliability.
The hearing's civility deteriorated from there. The
attorneys pushed and shoved one another and, alarmingly, one
defense counsel purportedly suggested he and plaintiff's counsel
take their courtroom drama "downstairs." At times, Aronberg, the
hearing's only witness, could not get a word in edgewise. Near
the end of this unusually eventful Daubert hearing, several motions
were filed to preclude Aronberg's testimony as a sanction for
35
CSA's expert opined during his deposition that placing such
a fence in the median between the northern sidewalk and Fernández
Juncos would not have prevented Lawes' accident since "mesh fences
are about 30 inches in height" so "all an individual has to do is
step over it."
- 33 -
Lawes' discovery violations (motions that are typically filed and
resolved before trial), and/or to exclude Aronberg from trial under
Federal Rule of Evidence 702. These motions were granted on June
23, 2016, and Lawes was ordered by the court "to show cause"
whether or not he would proceed even though "the Court . . .
excluded the only witness that could establish causation between
Defendants' acts and Plaintiff's accident." The district court
nevertheless allowed Lawes to soldier on, and he finally rested
his case on July 6, 2016. Defendants moved for judgment as a
matter of law under Federal Rule of Civil Procedure 50(a), which
the district court allowed, ending Lawes' case.
On October 10, 2016, Lawes timely appealed his expert's
exclusion from the litigation and the entry of judgment against
him. That brings us to the present.
OUR TAKE
We'll kick things off by explaining the role of expert
testimony in Lawes' case. Under Puerto Rico law, which supplies
the substantive law in this diversity case, Lawes "had to show
'damage . . . through fault or negligence.'" Aponte-Bermúdez v.
Colon, 944 F.3d 963, 963-64 (1st Cir. 2019) (citing Rodríguez-
Tirado v. Speedy Bail Bonds, 891 F.3d 38, 41 (1st Cir. 2018), and
quoting P.R. Laws Ann. tit. 31, § 5141). Lawes argued that CSA,
the sole remaining defendant, negligently designed the MOT and
caused his injuries. Lawes therefore needed to establish that
- 34 -
"[CSA] owed [him] a duty," "that the duty was breached, that
damages resulted, and that those damages were caused by the
breach[.]" Calderón-Ortega v. United States, 753 F.3d 250, 252
(1st Cir. 2014). In negligent design cases, like this one, experts
are needed to educate the jury on the industry-specific standard
of care that applied. See Aponte-Bermúdez, 944 F.3d at 964
(explaining that in negligent design cases "under Puerto Rico law,
[plaintiffs] would ordinarily have to prove the applicable
standard of care through expert witnesses" (citing Vázquez-
Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 51-52
(1st Cir. 2007))). We have explained that determining what
constitutes a reasonably safe design is "ordinarily 'beyond the
experience or knowledge of an average lay person.'" Id. (quoting
Vázquez-Filippetti, 504 F.3d at 52). What is "'ordinarily' true
is not invariably true," so there may be exceptional cases in which
the "negligence in design [is] blatant enough not to require expert
testimony[.]" Id. In this case, after excluding Lawes' only
expert, the district court concluded that expert testimony was
essential to establishing the applicable standard of care, which
Lawes had to do as a matter of law. Lawes v. Q.B. Constr., No. CV
12-1473 (DRD), 2016 WL 4660915, at *4 (D.P.R. Sept. 7, 2016)
(stating that "a lay jury certainly may not rely on personal
experience and knowledge to establish the duty of care owed to
pedestrians by designers of temporary management of traffic
- 35 -
plans"). Then, the district court dismissed Lawes' case. For
reasons we'll explain later, we do not reach the district court's
entry of judgment on the merits for defendants. Instead, we'll
focus our energy on the rulings that resulted in Aronberg's
exclusion from trial in the first instance, keeping in mind the
district court's musings regarding the importance of expert
testimony to Lawes' case.
Standard of Review
We review both of the rulings resulting in Aronberg's
exclusion from trial for an abuse of discretion. Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009) (applying abuse
of discretion to expert's preclusion under Rules 26 and 37(c)(1));
Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83
(1st Cir. 1998) (reviewing expert's exclusion after Daubert
hearing for abuse of discretion). Abuse of discretion "occurs
when a material factor deserving significant weight is ignored,
when an improper factor is relied upon, or when all proper and no
improper factors are assessed, but the court makes a serious
mistake in weighing them." Fashion House, Inc. v. K Mart Corp.,
892 F.2d 1076, 1081 (1st Cir. 1989) (quoting Ind. Oil & Chem.
Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d
927, 929 (1st Cir. 1988)). "This standard is not monolithic:
within it, embedded findings of fact are reviewed for clear error,
questions of law are reviewed de novo, and judgment calls are
- 36 -
subjected to classic abuse-of-discretion review." Bricklayers and
Trowel Trades Int'l Pension Fund v. Credit Suisse Sec. (USA) LLC,
752 F.3d 82, 91 (1st Cir. 2014) (quoting Ungar v. Palestine
Liberation Org., 599 F.3d 79, 83 (1st Cir. 2010)). On abuse-of-
discretion review, we will reverse a trial court's decision if we
determine the judge committed "a material error of law" or "a
meaningful error in judgment." United States v. Jordan, 813 F.3d
442, 445 (1st Cir. 2016) (citing Ruiz-Troche, 161 F.3d at 83).
We review de novo the district court's judgment as a
matter of law under Rule 50. Blomquist v. Horned Dorset Primavera,
Inc., 925 F.3d 541, 546 (1st Cir. 2019) (citing Thomas & Betts
Corp. v. New Albertson's, Inc., 915 F.3d 36, 60 (1st Cir. 2019));
see Fed. R. Civ. P. 50.
We acknowledge the district court's valiant effort to
effectively and fairly administer the discovery process in this
case. However, our close review of the record persuades us that
the district court abused its discretion in refusing to allow
Aronberg to testify. To be sure, Lawes' pretrial disclosures were
far from ideal. Nevertheless, in reaching the decision to exclude
Lawes' sole expert, the district court undervalued or overlooked
significant factors and made serious missteps in balancing the
import of other factors relevant to its analysis. We therefore
reverse Aronberg's exclusion and vacate the entry of judgment as
a matter of law (without ruling on the merits of that decision).
- 37 -
Although CSA is the sole remaining defendant on appeal, our review
is informed by the district court's assessment of Aronberg's expert
opinions and testimony as a whole. Thus, when necessary, we will
discuss district court analysis that concerns former defendants
and third parties. We'll begin our take with the discovery rules,
and we'll end with Daubert and Federal Rule of Evidence 702.
Rule 26: Expert Discovery Disclosure
Rule 26 "is an integral part of the machinery devised to
facilitate the management of pretrial discovery." Downey v. Bob's
Disc. Furniture Holdings, Inc., 633 F.3d 1, 5 (1st Cir. 2011)
(quoting Gómez v. Rivera Rodríguez, 344 F.3d 103, 112 (1st Cir.
2003)). "Recognizing the importance of expert testimony in modern
trial practice, [Rule 26] provide[s] for extensive pretrial
disclosure of expert testimony." Thibeault v. Square D Co., 960
F.2d 239, 244 (1st Cir. 1992). Plaintiffs and defendants alike
must identify their expert witnesses and produce their experts'
reports by court-approved deadlines. Fed. R. Civ. P. 26(a)(2)(A)-
(B). An expert's report must include a "complete statement" of
all the expert's opinions and the "basis and reasons" for them;
the facts and data the expert considered; any exhibits the expert
intends to rely on; a list of cases from the last four years in
which the witness testified as an expert at trial or by deposition;
and the compensation the expert will receive in exchange for his
testimony in the case. Fed. R. Civ. P. 26(a)(2)(B). But the
- 38 -
expert's work doesn't end there. Rule 26(e) then instructs parties
that expert disclosures "must be kept current." Macaulay v. Anas,
321 F.3d 45, 50 (1st Cir. 2003) (citing Fed. R. Civ. P. 26(e)(1)).
During litigation, usually before trial, experts must supplement
their reports at the court's request or when a party learns that
its "disclosure or response is incomplete or incorrect" and "the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing." Fed. R. Civ. P. 26(e)(1). The duty to supplement
extends "to information included in the [expert's] report and to
information given during the expert's deposition." Fed. R. Civ.
P. 26(e)(2).
Complete and timely disclosures and supplementation
ensure an even playing field, preventing any party from gaining an
"unfair tactical advantage" at trial. Lohnes v. Level 3 Comm.,
Inc., 272 F.3d 49, 60 (1st Cir. 2001); see Licciardi v. TIG Ins.
Grp., 140 F.3d 357, 363 (1st Cir. 1998) (explaining that adherence
to Rule 26 averts "the heavy burden placed on a cross-examiner
confronted by an opponent's expert whose testimony had just been
revealed for the first time in open court" (quoting Johnson v.
H.K. Webster, Inc., 775 F.2d 1,7 (1st Cir. 1985)). In the interest
of fairness, district courts may sanction litigants who disregard
these obligations. Pursuant to Rule 37(c)(1), incomplete or late
disclosures may result in (among other possible sanctions) the
- 39 -
preclusion of the "relevant expert information . . . 'at a hearing,
or at a trial, unless the failure was substantially justified or
is harmless.'" Esposito, 590 F.3d at 77 (emphasis added) (quoting
Fed. R. Civ. P. 37(c)(1)). Preclusion is not strictly required,
however. "When noncompliance occurs, the ordering court should
consider the totality of events and then choose from the broad
universe of available sanctions in an effort to fit the punishment
to the severity and circumstances of the violation." Young v.
Gordon, 330 F.3d 76, 81 (1st Cir. 2003) (emphasis added) (citing
Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st
Cir. 2002)). And where preclusion "carrie[s] the force of a
dismissal," as the district court implied it did here, the
justification for this sanction must be "more robust." Esposito,
590 F.3d at 79 (citing Young, 330 F.3d at 81 (explaining that
"dismissal ordinarily should be employed as a sanction only when
a plaintiff's misconduct is extreme" (citation omitted)));
see Tower Ventures, 296 F.3d at 45-47 (concluding that the
plaintiff's "serial violations" of the district court's scheduling
orders constituted extreme misconduct that warranted dismissal).
"[D]ismissal should not be viewed either as a sanction of first
resort or as an automatic penalty for every failure to abide by a
court order." Young, 330 F.3d at 81. Because dismissal "runs
counter to our 'strong policy favoring the disposition of cases on
the merits,'" this severe sanction "should be employed only after
- 40 -
the district court has determined 'that none of the lesser
sanctions available to it would truly be appropriate.'" Enlace
Mercantil Internacional, Inc. v. Senior Indus., Inc., 848 F.2d
315, 317 (1st Cir. 1988) (quoting Zavala Santiago v. Gonzalez
Rivera, 553 F.2d 710, 712 (1st Cir. 1977)). Ultimately, "the
choice of an appropriate sanction must be handled on a case-by-
case basis." Young, 330 F.3d at 81 (citing Tower Ventures, 296
F.3d at 46).
Moving from the general to the specific, the trial court
found that Aronberg's preliminary report violated Rule 26(a)(2)
because it did not include all his opinions or the basis and
reasons for them; Aronberg didn't say how much he was getting paid
to testify; and the photographs Aronberg took of the accident site
were not attached to the report (though they were mentioned and
disclosed later in the litigation). Adding to these violations,
Aronberg did not submit a written supplemental expert report after
his two depositions, which the district court considered a
violation of Rule 26(e). The district court then considered the
severity of Lawes' misconduct, and imposed one of the harshest
sanctions available, precluding the expert's testimony despite
Lawes' tremendous need for it.
Lawes does not argue on appeal that Aronberg's expert
disclosures satisfied Rule 26, so we won't spill any ink on the
question. As to Lawes' quarrel with the district court's sanction,
- 41 -
the question "is not whether we would have imposed the same
sanction. Rather, the question is whether the district court's
action was so wide of the mark as to constitute an abuse of
discretion." Macaulay, 321 F.3d at 51. Thus, "appellate panels
traditionally give district courts considerable leeway in the
exercise of the latter's admitted authority to punish noncompliant
litigants." Young, 330 F.3d at 81. In undertaking our review, we
look to "the history of the litigation, the proponent's need for
the challenged evidence, the justification (if any) for the late
disclosure, and the opponent's ability to overcome its adverse
effects." Macaulay, 321 F.3d at 51 (citations omitted). Although
analysis of each factor is relevant, the "focus of a preclusion
inquiry is mainly upon surprise and prejudice" to defendants.
Thibeault, 960 F.2d at 246-47 (affirming preclusion of expert
testimony where plaintiff's "eleventh-hour" change in theory days
before trial would have forced the defendant to rush its
preparations). Since surprise and prejudice serve as "important
integers" in our deferential review, it makes sense to start there.
Macaulay, 321 F.3d at 51.
As the district court tells it, CSA was "caught off-
guard" (read: surprised) by Aronberg's Daubert testimony that the
MOT was "sloppy." For support, the district court cited Aronberg's
Daubert testimony from May 10, 2016. At that point in the day,
CSA was following up with Aronberg about his reactions to some
- 42 -
documents Q.B. had cross-examined him on earlier. For context,
the day before, Q.B. gave Aronberg a copy of the MOT, then showed
him a blueprint of the area where Lawes' accident occurred in its
original (pre-construction and pre-MOT) state. Next, Q.B.'s
counsel conducted an experiment while Aronberg was sitting on the
stand: he placed the pre-construction blueprint over the MOT
design, and asked Aronberg his thoughts on the superimposition.
Q.B. queried whether the MOT's drawn-to-scale specifications
instructed Q.B. to place the midblock barrier partially in the
southernmost eastbound lane. Aronberg did not agree that this was
the MOT's intent. Rather, as he told Q.B., the "drawing" in the
MOT was "sloppy." When CSA brought this testimony up during its
cross-examination of Aronberg on May 10, 2016, the expert confirmed
his belief that the MOT was "sloppy."
The trial court also found surprising Aronberg's Daubert
testimony about CSA's responsibility to ensure the sidewalk was
closed at the intersection in its design. To the district court's
dismay, Aronberg testified on May 9, 2016 that CSA was obligated
to contact the Municipal Bus Authority about the phantom bus stop
since it was the only reason CSA could not close the sidewalk
completely. Later, when defense counsel brought up Vargas' trial
testimony from several weeks before, during which Vargas testified
that she didn't know the bus stop plans had changed, Aronberg
explained that someone from CSA (if not Vargas) should have been
- 43 -
in communication with the Bus Authority to get the most up-to-date
information about the MOT design and implementation process. Since
this opinion was not contained in Aronberg's report, the district
court concluded that CSA must not have known about it before. For
example, after CSA finally wrapped up its bus stop questions during
the Daubert hearing on May 10, 2016, the district court described
Aronberg's design defect opinion as "late" and asked CSA whether
it agreed, prompting vigorous verbal opposition from Lawes'
counsel and a court-initiated 10-minute recess. In view of
Aronberg's Daubert testimony as to CSA'S design, the trial court
concluded that Aronberg was a moving target, and so it found that
CSA was prejudiced as a result. As the district court explained,
the "prejudice . . . lies in the basis Aronberg provided for
imposing liability on CSA at the Daubert hearing[:] engineering
common sense." We favorably assume the district court meant that
CSA's ability to test and confront Aronberg's conclusions at trial
was thwarted by the expert's perceived shiftiness and Lawes'
discovery violations.
Here's the rub: Lawes' pretrial disclosures and relevant
excerpts from Aronberg's depositions (which Lawes attached to and
quoted in his motions opposing sanctions) gave CSA more than
sufficient notice of Aronberg's negligent-design-related opinions.
Based on this record, CSA was neither surprised nor prejudiced by
Aronberg's Daubert testimony. Nearly two years before trial, on
- 44 -
June 20, 2014, Lawes requested leave to file a third amended
complaint in which he explained that, "after further discussions
with [his] expert," he was now alleging that CSA's "poor design"
contributed to Lawes' accident. Then, in August 2014, CSA
participated in Aronberg's eight-hour deposition, where it
extensively questioned Aronberg's opinions about CSA's allegedly
negligent design. At that time, Aronberg explained that the MOT
was "poor" (as opposed to "sloppy") because it failed to provide
clear, nondiscretionary instructions to Q.B. regarding how the
design was supposed to be implemented. He opined, moreover, that
the design's signage placement was off, and its General Notes
needed to be more specific to comport with industry standards,
including the MUTCD (the traffic engineer's Bible). At one point,
Aronberg was asked (by Q.B.) whether it would have been helpful
for CSA to note the real-life dimensions of the roadways in its
design, and Aronberg agreed that would have helped.
He nevertheless explained that a contractor familiar with roadway
work should have been able to implement the plan without placing
the midblock barrier partially in the street, causing the eastbound
lane to fall under 8 feet in width. In other words, although he
believed the MOT was poor (or sloppy), Q.B. should have advocated
for a blocked off narrow lane as soon as it discovered the width
issue. When Aronberg was confronted with new material on the
Daubert stand in the form of the superimposed MOT, he still stuck
- 45 -
to his guns about Q.B.'s ultimate responsibility for implementing
a pedestrian corridor (never mind CSA's sloppy design). Under
these circumstances, we think it improper to penalize an expert
for reacting to a defendant's evolving theories of the case. After
all, as every trial lawyer knows, "[e]vidence and theories evolve
in the last minute preparation for trial and trial itself" so "[i]t
is common for there to be some deviation between what was said in
discovery and what comes out at trial," Licciardi, 140 F.3d at
367, especially as witnesses respond to opposing counsels'
suggestions on cross-examination. At bottom, the district court
does not explain how, in view of the deposition excerpts available
to it, CSA was surprised by Aronberg's characterization of the MOT
as sloppy during the Daubert hearing. See Gay v. Stonebridge Life
Ins. Co., 660 F.3d 58, 64 (1st Cir. 2011) (finding that the
expert's testimony was a "reasonable elaboration" of his
previously disclosed opinions "[a]lthough his testimony uses
different words").
The district court's other example of Aronberg's
surprising Daubert testimony concerned the expert's opinion that
CSA should have done more to close the sidewalk notwithstanding
the phantom bus stop. But this too was foreseeable to anyone who
attended Aronberg's second deposition or reviewed the deposition
excerpts in the record. Aronberg explained during his August 2014
deposition that CSA's design team should have closed the sidewalk
- 46 -
at the intersection even if that meant following-up with the Bus
Authority about the bus stop. And when (or if) CSA learned the
bus stop was not going to be moved to the southern sidewalk,
Aronberg's opinion at his deposition was that CSA had a duty to
see that the MOT was designed (or redesigned) with a closed
sidewalk based on industry standards. The thrust of Aronberg's
opinion was the same at his Daubert hearing, even though he was
asked about new evidence (here, Vargas' trial testimony) on the
spot. There was no meaningful difference between Aronberg's
Daubert and deposition testimony.
In holding that CSA was somehow surprised by what
Aronberg had to say, the district court did not give any effect to
Aronberg's depositions. The court even said that it would not
treat "hundreds of pages of deposition testimony as sufficient
notice of Aronberg's testimony." We have no quarrel at the moment
with the district court's position that deposition testimony is
not a "suitable substitute" for a Rule 26(a)(2) expert report or
a supplemental report under Rule 26(e). However, there is no
support in the rules or our case law for disregarding deposition
testimony in considering whether (and to what extent) sanctions
are appropriate given the discovery violations at issue. District
courts should "consider all the circumstances surrounding [an]
alleged [expert disclosure] violation" in considering what
sanction (if any) is warranted in a given case. Thibeault, 960
- 47 -
F.2d at 246; see González-Rivera v. Centro Médico Del Turabo, Inc.,
931 F.3d 23, 27 (1st Cir. 2019) ("When evaluating the
appropriateness of a sanction, a reviewing court must take into
account the totality of the circumstances."). Careful attention
to the pretrial record, in particular, is necessary to determine
whether a party's failure to abide by Rule 26's expert disclosure
requirements resulted in harm to the other party at trial. For
instance, if the pretrial record reveals that the party opposing
sanctions provided notice of a change in its expert's testimony
(even if insufficient to satisfy the duty to supplement), then the
other side's "claimed surprise" at trial is less credible, and the
district court should consider whether a lesser sanction (if any)
is appropriate for the discovery violation. See Licciardi, 140
F.3d at 366. Here, the severity of Lawes' misconduct turns (in
part) on whether CSA was surprised by (and thus unprepared for)
Aronberg's Daubert testimony regarding flaws in the MOT. To
determine whether CSA's surprise was genuine, the district court
should have reviewed and considered whether Aronberg's August 2014
deposition testimony put CSA on notice of the pertinent changes in
Aronberg's opinions regarding the design. See Curet-Velázquez v.
ACEMLA de P.R., Inc., 656 F.3d 47, 56–57 (1st Cir. 2011) (citing
Brennan's Inc. v. Dickie Brennan & Co., 376 F.3d 356, 375 (5th
Cir. 2004) (affirming denial of a motion to exclude plaintiff's
late-filed expert report where the defense had access to the
- 48 -
documents underlying the expert's opinion and where the defense
was already familiar with the underlying data)). The district
court's disregard for deposition testimony in this case amounts to
a meaningful error in judgment that, in turn, precipitated the
district court's erroneous conclusion that CSA was in fact
surprised by Aronberg's testimony. Because the pretrial record
does not support any claim of surprise in this case, we cannot
agree that "the punishment . . . approximately fit the crime."
Esposito, 590 F.3d at 80.
Next, the district court's concerns about prejudice36 are
reasonable, but they still do not tip the scale in favor of the
case-dispositive sanction imposed here. The district court
observed, for example, that defendants would be forced to "read
hundreds of pages of [Aronberg's] depositions" in order to prepare
for trial. While we assume trial attorneys routinely review
deposition transcripts when preparing for trial, we nevertheless
recognize that Rule 26 was designed to reduce the significant
burden of managing expert discovery. We can also reasonably assume
that Lawes' failure to supplement Aronberg's report generated
countless hours of extra work for the lawyers involved in this
36 Although the district court determined that Aronberg's
preliminary report violated Rule 26 because it failed to disclose
his expert fee and photographs that he purportedly relied upon,
neither the court nor the defendants claim that these omissions
resulted in surprise or prejudice to defendants at trial.
- 49 -
litigation. Notwithstanding the inconvenience (and monotony) of
deposition transcript review, CSA had more than enough time (nearly
two years) before trial to prepare its defense to the opinions
Aronberg expressed in his August 2014 deposition. As we've already
explained, there was no meaningful difference between his
deposition testimony and the opinions he offered at the Daubert
hearing. Regardless, the record reflects that CSA made good use
of the time it had to prepare for Aronberg's testimony. Indeed,
CSA made Yates, its own traffic engineering expert, available for
a deposition a few days after Aronberg was deposed for the second
time. Yates' deposition testimony, which referenced and at times
rebutted Aronberg's deposition testimony, suggests that CSA was
aware of Aronberg's opinions regarding its liability and was
actively preparing its defense for trial. Unlike the cases in
which we have affirmed a more severe sanction, there is no
indication here that Lawes' expert disclosure violations prevented
CSA from prepping its theory of the case for trial. Cf. Santiago-
Díaz v. Laboratorio Cliníco y De Referencia Del Este & Sara López,
M.D., 456 F.3d 272, 277 (1st Cir. 2006) (affirming preclusion where
"plaintiff's foot-dragging in announcing her expert and providing
his report deprived the defendants of the opportunity to depose
him, impeach his credentials, pursue countering evidence, or
generally prepare their defenses"); Macaulay, 321 F.3d at 52(affirming preclusion of a supplemental expert report where the
- 50 -
late-filed disclosure would have either "force[d] the defense to
trial without appropriate preparation (such as targeted pretrial
discovery)" or required the court to "reopen discovery and vacate
the trial assignment"); Licciardi, 140 F.3d at 363 (ordering a new
trial where, given the defense expert's pretrial concession that
the accident caused the plaintiff's trauma, the plaintiff had no
reason to develop "the sort of testimony which plaintiff would
have put in" had the plaintiff known before trial that defendant's
expert in fact planned to contest that the accident caused the
trauma); Thibeault, 960 F.2d at 247 ("In this case, had the court
allowed the tardy supplementation, [the defendant] would have had
to scrap much of its earlier preparation in favor of a frantic,
last-minute scramble to investigate the emergent witnesses,
counter their testimony, and rebut a new and different case
concept."); Freund v. Fleetwood Enters., Inc., 956 F.2d 354, 358
(1st Cir. 1992) (holding that the trial court properly excluded
plaintiff's expert testimony where substance of that testimony was
not made known to defendants until the middle of trial, and noting
that "had [defendants] known about the [expert] testimony sooner,
they might well have decided to counter it, through cross-
examination or other expert testimony"). Thus, the record here
lacks the surprise or prejudice that warrants the "strong medicine"
- 51 -
of precluding Lawes' sole expert during his case-in-chief.
Esposito, 590 F.3d at 79.37
Although we have never affirmed an expert's preclusion
when we were not persuaded by the proffered evidence of surprise
or prejudice in the record, for the sake of completeness, we'll
address the other factors relevant to our sanctions analysis. As
to the history of the litigation, Lawes timely disclosed Aronberg's
preliminary report, and he made his expert available for two, full-
day depositions. At Aronberg's second deposition, CSA was provided
the opportunity to scrutinize Aronberg's opinions. It even heard
directly from the horse's mouth that Aronberg did not plan to write
a supplemental report regarding CSA's liability; rather, as
Aronberg told defendants, he believed his depositions adequately
37
Although CSA is the focus of our review on the sanctions
front (since it is the only defendant with any skin left in the
game), the district court's examples of surprise and prejudice as
to former defendant Q.B. similarly fail to justify the sanction
imposed. The district court found, for example, that Aronberg's
Daubert testimony disclosed new sources. But these sources
(Section 6B of the MUTCD and Specification 638) were incorporated
by reference into CSA's MOT, they were disclosed in Aronberg's
preliminary report and depositions, referenced in the joint
pretrial order, and/or acknowledged by defendants' experts in
rebutting Aronberg's opinions. For instance, Q.B.'s expert, Fred
Hanscom, was deposed regarding whether Section 6B imposed
monitoring obligations on contractors, and he agreed during his
deposition that "it was a mandatory requirement for [Q.B.] to read
Specification Number 638" to understand its responsibilities.
In the same vein, contrary to the district court's assertions,
Aronberg's depositions clearly gave adequate heads-up about his
opinions regarding Lawes' path the night of his accident, as well
as Q.B.'s lighting and monitoring obligations.
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conveyed all his opinions. CSA also signed on to a jointly filed
pretrial order, where Lawes summarized Aronberg's expert opinions
against CSA. There is no evidence that Lawes deliberately and
repeatedly disregarded his discovery obligations. Cf. Santiago–
Díaz, 456 F.3d at 277 & n.4 (upholding the preclusion of a late-
disclosed expert witness, where the sanctioned party's
"dereliction was both obvious and repeated" and "[t]he record makes
manifest that the plaintiff was guilty of several discovery
violations besides those related to her expert witness"). The
fact that CSA cried foul for the first time during the Daubert
hearing, after the district court described one of Aronberg's
opinions as "late-arriving," further suggests Lawes' conduct and
disclosures throughout the litigation were at least minimally
sufficient to defendants until the very end. The next factor,
substantial justification, does not favor Lawes since he has not
offered one. (In fact, Lawes fell on his sword, admitting his
lack of 100% compliance with Rule 26's updating requirement, but
tried to stress to the court that his failure didn't end the
inquiry.) Finally, as the district court explained, the importance
of Aronberg's testimony to Lawes' case could not be "understated."
On balance, given our review of the evidence of surprise and
prejudice identified by the district court, the history of the
litigation, and the undeniable import of the excluded testimony to
Lawes' case against CSA, we find that preclusion was overly strong
- 53 -
medicine and thus, an abuse of discretion.38 We do not discount
the district court's valid concerns about Lawes' discovery
violations and respect for the defendants' (and the court's) time.
Even so, in this case, we find that preclusion was excessive. See
Enlace, 848 F.2d at 318 (finding that dismissal with prejudice
constituted an abuse of discretion and advising the district court
to consider the "broad panoply of lesser sanctions" available to
it on remand (quoting Richman v. Gen. Motors Corp., 437 F.2d 196,
199 (1st Cir. 1971))). So we reverse the sanction imposed by the
district court under Rule 26 and Rule 37(c)(1). To ensure
38In its statement of supplemental authorities filed on July
26, 2019 pursuant to Federal Rule of Appellate Procedure 28(j),
CSA argues that our decision in González-Rivera compels a different
outcome here. But that case is readily distinguishable. There,
we found the district court properly considered the totality of
the circumstances in excluding plaintiff's expert report, which
was filed nearly a year after the court's discovery deadline (not
to mention defendants' motions for summary judgment) and attempted
to revive plaintiff's claims against a defendant she had previously
moved to dismiss from the litigation. González-Rivera, 931 F.3d
at 26-28. Here, by contrast, the court chose not to consider an
entire category of documents relevant to its inquiry (i.e.,
Aronberg's depositions), and identified purported prejudice that
was unsupported by the record. The circumstances before us bear
no resemblance to those at issue in González-Rivera. The
authorities cited in CSA's other 28(j) letters do not add anything
new to our discussion, so we won't mull over them here. See
Aponte-Bermúdez, 944 F.3d at 964 (explaining that a claimant in a
negligent design case ordinarily must put up an expert to opine on
the applicable standard of care); Ciomber v. Coop. Plus, Inc., 527
F.3d 635, 638 (7th Cir. 2008) (affirming exclusion of plaintiff's
expert, where expert's report was filed after the district court's
discovery deadline and plaintiff failed to file a supplemental
expert report by his own self-imposed deadline).
- 54 -
proceedings consistent with this opinion, we also reverse the
district court's order precluding Aronberg's orange safety fence
opinion for expert disclosure violations during the Daubert
hearing.
Rule 702
Lawes also seeks reversal of the district court's
decision to prohibit Aronberg from testifying at trial as an expert
witness. Daubert assigns the trial court the role of "gatekeeper,"
which requires courts to make an independent determination that
"any and all scientific testimony or evidence admitted [at trial]
is not only relevant, but reliable." Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 589 (1993).39 The Daubert court concluded,
moreover, that Rule 702 displaced the "general acceptance" test of
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), under which
"the admissibility of an expert opinion or technique turned on its
'general acceptance' vel non within the scientific community."
Ruiz-Troche, 161 F.3d at 80. Rule 702 provides that:
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
39 While Daubert remains relevant, Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999), clarified that the gatekeeper
function applies to all expert testimony, not just scientific.
Kumho, 526 U.S. at 141.
- 55 -
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.
The Rule, therefore, "necessitates an inquiry into the methodology
and the basis for an expert's opinion." Samaan v. St. Joseph
Hosp., 670 F.3d 21, 31 (1st Cir. 2012).
Reliability is a flexible inquiry, allowing for
consideration of factors like whether the expert's methodology has
been objectively tested; whether it has been subjected to peer
review and publication; the technique's known or potential error
rate; and whether the expert's technique has been generally
accepted within the relevant industry. Milward v. Acuity Specialty
Prods. Grp., Inc., 639 F.3d 11, 14 (1st Cir. 2011) (citing Daubert,
509 U.S. at 593-94). At the end of the day, however, "[t]he focus
. . . must be solely on principles and methodology[.]" Daubert,
409 U.S. at 594-95.
Notwithstanding the deep dive that courts often take to
adequately assess the reliability of expert methodology,
especially in highly technical industries, they must stop short of
weighing the evidence, evaluating credibility, or unnecessarily
picking sides in a battle between experts. "So long as an expert's
scientific testimony rests upon 'good grounds, based on what is
known,' it should be tested by the adversarial process." Milward,
639 F.3d at 15 (quoting Daubert, 509 U.S. at 590). However, the
"reliability" bar cannot be met "by an expert's self-serving
- 56 -
assertion that his conclusions were derived by the scientific
method"; rather, "the party presenting the expert must show that
the expert's findings are based on sound science, and this will
require some objective, independent validation of the expert's
methodology." Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1317-
90 (9th Cir. 1995)("Daubert on remand").
In addition, to be "helpful" to the jury, the expert's
conclusions must have a "valid scientific connection to the
pertinent inquiry[.]" Id. at 1320. This means that the conclusion
must not only be relevant to the facts at issue, but also that
each step in the expert's process, including the link between the
universe of pertinent facts and his conclusions, must be reliable.
Although the court must focus "on principles and methodology, not
on the conclusions they generate," Daubert, 509 U.S. at 595, this
focus "need not completely [preclude] judicial consideration of an
expert's conclusions." Ruiz-Troche, 161 F.3d at 81. In General
Electric Co. v. Joiner, the Supreme Court acknowledged that
"conclusions and methodology are not entirely distinct from one
another. Trained experts commonly extrapolate from existing data.
But nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert."
522 U.S. 136, 146 (1999). For this reason, "[a] court may conclude
that there is simply too great an analytical gap between the data
- 57 -
and the opinion proffered." Id.; see Samaan, 670 F.3d at 32
(providing that the trial court may "examin[e] . . . [the expert's]
conclusions to determine whether they flow rationally from the
methodology employed"). An "analytical gap between the data and
the opinion proffered" may provide the basis for the expert's
exclusion. Samaan, 670 F.3d at 32 (quoting Gen. Elec. Co., 522
U.S. at 146). This requirement, which is sometimes described as
"fit," ensures that the connection between the expert's data, his
conclusions, and the facts of the case is reliable. See id.
The Daubert inquiry is case-specific. "Exactly what is
involved in 'reliability' . . . 'must be tied to the facts of a
particular case.'" Milward, 639 F.3d at 14–15 (quoting Beaudette
v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006)).
Adding to the complexity, "there is no particular procedure that
the trial court is required to follow in executing its gatekeeping
function under Daubert." United States v. Diaz, 300 F.3d 66, 73
(1st Cir. 2002). Importantly, "Daubert does not require that a
party who proffers expert testimony carry the burden of proving to
the judge that the expert's assessment of the situation is
correct"; rather, to satisfy Daubert's objective, the proponent
must show "that the expert's conclusion has been arrived at in a
scientifically sound and methodologically reliable fashion."
Milward, 639 F.3d at 15 (quoting Ruiz-Troche, 163 F.3d at 85).
"Vigorous cross examination, presentation of contrary evidence,
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and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence."
Daubert, 509 U.S. at 596.
In this case, the district court began Aronberg's
Daubert hearing on its own initiative toward the end of the
plaintiff's case-in-chief. Aronberg, the only witness to testify
at the hearing, was cross-examined by multiple defense counsel for
twelve days. The trial court admitted and considered evidence
solely for the purpose of the Daubert hearing, cross-examined the
witness, and fielded countless spats between the parties during
and after long hearing days. Following this grueling and
acrimonious procedure, the trial court refused to qualify Aronberg
as an expert in Lawes' case, concluding: (1) Aronberg's opinions
were not supported by sufficient data; (2) Aronberg's methodology
was inconsistent with one article written by another expert in the
field and was therefore unreliable; and (3) Aronberg did not
reliably apply the principles and methods of traffic engineering
to the facts of Lawes' case in reaching his expert opinions. After
careful review and consideration of our deferential approach, we
find that Aronberg's opinions -- although not bulletproof -- were
sufficiently reliable to present to a jury. By excluding Aronberg,
"the district court exercised its gatekeeping role under Daubert
with too much vigor." Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d
796, 805 (7th Cir. 2013). Our reasoning follows.
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Sufficiency of Aronberg's Data
Rule 702 requires that expert testimony be based on
"sufficient facts or data." Fed. R. Evid. 702(b). Although an
expert's methodology is the "central focus of a Daubert inquiry,"
courts "may evaluate the data offered to support an expert's
bottom-line opinions to determine if that data provides adequate
support to mark the expert's testimony as reliable." Ruiz–Troche,
161 F.3d at 81. However, district courts must not "unduly
scrutinize[] the quality of the expert's data," because such
scrutiny "usurps the role of the jury." Manpower, 732 F.3d at
806.
To begin, the district court proclaimed that "[n]either
case law nor the Rules require courts to scrutinize the sufficiency
of [an expert's] data." The court nevertheless raked a fine-tooth
comb through Aronberg's sources and concluded the expert had missed
certain data that it considered necessary to "lend proper support"
to his opinions. The district court found that Aronberg failed to
review "any contractual documents pertaining to the Bahía Urbana
[construction] project" or any Puerto Rico law. These sources,
according to the district court, were relevant to understanding
the roles and responsibilities of the parties to the Project
contract. Because Aronberg did not consult these sources, the
district court further determined that Aronberg's conclusions
regarding the legal and contractual duties owed to pedestrians
- 60 -
like Lawes were not supported by sufficient data. In particular,
the district court observed that Aronberg's lighting opinion --
i.e., that Q.B. (in its role as primary contractor for the Project)
was responsible for and failed to provide adequate illumination of
the construction-affected area –- was based on Aronberg's
misunderstanding of Q.B.'s obligations.40 As the district court
explained, if Aronberg had reviewed the construction project plans
and/or any local law, he would have known that third-party
defendant PREPA (and not Q.B.) was responsible for ensuring
streetlights near the scene of Lawes' accident were functioning
properly.41
The district court overstates the importance of these
unspecified "contractual documents" and local law to Aronberg's
expert opinions. We favorably assume that portions of the Bahía
Urbana construction project contract set forth the parties'
responsibilities for managing the flow of traffic in the area
40The district court also determined that Aronberg was
unfamiliar with CSA's role in the Project because the expert
described the MOT as sloppy "for the first time" during the Daubert
hearing. As we noted earlier, however, Aronberg opined on CSA's
role as MOT designer and the purported flaws in the MOT during his
second deposition in August 2014 based upon the sources available
to him at the time. See supra at 42-43.
41CSA likewise claims that Aronberg's conclusions were not
based on sufficient data since the expert failed to review relevant
contract documents and, instead, relied upon his experience in the
industry to determine whether the parties breached their
contractual obligations.
- 61 -
covered by the MOT.42 And we recognize that a review of local law
could prove useful for understanding municipal authority in and
around roadways (like Fernández Juncos). But even if we assume
(as the district court did) that Aronberg did not review these
sources,43 there is no indication that Aronberg's data
insufficiently supported his opinions regarding "who's who" and
"who's responsible for what." Aronberg considered the MUTCD, which
even defendants' experts described as "clearly delineat[ing] the
responsibilities of who does what in terms of what [the parties
were] responsible for." He also reviewed streetlight maintenance
records produced by PREPA, who was responsible for conducting
streetlight maintenance in the area of Lawes' accident. As
Aronberg gained access to new documents during discovery, he
modified his expert opinions and offered new opinions during
42CSA does not dispute that its responsibility was to design
the MOT. And also relevant to our analysis, Q.B.'s responsibility
was to implement the MOT design, abiding by its General Notes.
Q.B. did not argue otherwise before the district court.
43The district court does not point us to the sections of the
contract documents that it believes were relevant; nor does it
identify Aronberg's testimony that he did not in fact review them.
CSA tells us to read Aronberg's testimony on Day 5 of the Daubert
hearing. But there, Aronberg admitted that he had not read "CSA's
contract," which is related to but not entirely consistent with
the district court's finding that Aronberg "did not mention
analyzing any contractual documents pertaining to the [Project]."
Lawes, however, does not challenge the district court's assessment
and, instead, concedes "Aronberg's non-reliance on the contract -
- outside of the MOT and its General Notes, the MUTCD and
Specification 638 . . . ."
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depositions based on his more complete understanding of the
parties' contractual duties and their purported breach of them.
Between publishing his preliminary report and his first
deposition, for example, Aronberg was able to review the complete
MOT, including the notes from CSA with specific instructions and
relevant standards that Q.B. was required to implement.
Thereafter, Aronberg reviewed hundreds of pages of deposition
testimony, during which parties to the contract explained their
roles in (among other things) the underlying construction Project,
the management of traffic in the construction-affected area, and
their duty to ensure the safety of pedestrians traversing the
construction-affected area. Aronberg considered expert reports
produced by defendants, which further defined the key players'
obligations and often rebutted Aronberg's opinions as to the
players' liabilities. Aronberg's data likewise included pre-
litigation documents produced from Project files (e.g., the
meeting minutes and RFIs that covered day-to-day action items and
objectives for each party to the contract). Taken as a whole,
these documents provide sufficient data from which Aronberg could
reliably opine about the parties' respective obligations to keep
the area safe for pedestrians. The district court's concern,
therefore, would be valid only "if the parts of the record that
[Aronberg] did not read contained information that was unavailable
in the parts that he did read." Mitchell v. United States, 141
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F.3d 8, 16 (1st Cir. 1998). Rule 702 does not demand that experts
rely on all data that could be deemed relevant. It does not even
require the expert to seek out the best possible source of relevant
information. "Sufficien[cy]" is the benchmark for an expert's
data under the Rule. Fed. R. Evid. 702(b); see 29 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 6268
(2d ed. 2017) (explaining that "the word 'sufficient' in Rule 702
signifies that the expert may properly base her opinion on
something less than all the pertinent facts or data" and, as a
result, "sufficiency is not a matter of whether the judge believes
in the facts or data on which the expert relies"). The district
court erred by holding Aronberg's data to a more stringent standard
than was required by the rules.
Relatedly, we take issue with the district court's
characterization of Aronberg's lighting opinion, which was offered
by the court as an example of how the expert's insufficient data
failed him during the Daubert hearing. The district court
determined that the lighting opinion was supported by Aronberg's
incorrect assumption that Q.B. had a duty to provide adequate
lighting in the area when, in fact, PREPA was the only entity
responsible for streetlights. Based on our review of the record,
and as Lawes' counsel attempted to explain during the Daubert
hearing, however, Aronberg's opinion was that Q.B. had a
contractual duty to provide lighting (temporary or otherwise) in
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the construction area, including the northern sidewalk. During
his first deposition, for example, Aronberg explained: "Q.B. would
have a duty to provide alternative illumination once the
[street]lights [were] turned off" by PREPA. He also explained
that his lighting opinion was supported by his review of the
complete MOT44 and Vargas' deposition testimony regarding Q.B.'s
contractual duty to illuminate the work area. Accordingly, the
district court has not identified anything that would suggest to
us that Aronberg's lighting opinion was based on insufficient data.
As best we can discern, the court's issue with Aronberg's data was
that it could have been more robust and not, as the court claimed,
that it was insufficient as a whole. For reliability purposes,
however, the court's evaluation of the data must be limited to
determining whether it "provides adequate support to mark the
expert's testimony as reliable." Ruiz–Troche, 161 F.3d at 81;
Packgen v. Berry Plastics Corp., 847 F.3d 80, 88 (1st Cir. 2017)
(affirming admission of expert testimony where expert's data
"provided the minimal basis necessary to support" the assumptions
44
Although Aronberg was not asked to identify the section of
the MOT that supported his lighting opinion, he nevertheless
explained during his November 2013 deposition that "[the MOT] says
the contractor shall provide adequate illumination in the work
area at all times." His testimony was consistent with MOT General
Note 9, which states: "the contractor shall provide adequate
illumination in the work area at all times." Moreover, Lawes'
portion of the joint pretrial report explains that "defendants
failed to comply with General Note No. 9 which states that Q.B.
had to provide artificial illumination at all times."
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underlying expert's conclusions, even though the expert could have
done a market survey to test them further).
In sum, while an "expert opinion grounded on a
nonexistent fact is not significantly probative," Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 8 (1st Cir. 2010), the
district court points to no authority that supports its conclusion
that Aronberg's testimony was unreliable merely because there were
perhaps other relevant sources he did not consider. Even if it is
good practice for an expert to review all available contract
documents and applicable law, whether Aronberg took shortcuts in
his data collection efforts "is a matter affecting the weight and
credibility of the testimony — a question to be resolved by the
jury." United States v. Vargas, 471 F.3d 255, 264 (1st Cir. 2006)
(quoting Int'l Adhesive Coating Co. v. Bolton Emerson Int'l, Inc.,
851 F.2d 540, 545 (1st Cir. 1988)). In our view, the district
court placed undue weight on the sources Aronberg did not consider,
which contained facts that were readily available to Aronberg as
part of the data he did consider. Even if the factual
underpinnings of Aronberg's opinions could be viewed as weaker
than they would have been had he considered the data the court
focused on, "that was a matter affecting the weight and credibility
of [his] testimony," not its admissibility. Payton v. Abbott Labs,
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780 F.2d 147, 156 (1st Cir. 1985) (citing Coleman v. DeMinico, 730
F.2d 42, 47 (1st Cir. 1984)).
Reliability of Aronberg's Methodology
Aronberg's methodology appears to us relatively
straightforward: (1) he conducted an investigation into the
conditions in place on the night of Lawes' accident, including by
visiting the scene on two occasions, reviewing the police accident
report, developing a computer automation of the accident, and
reviewing photos, testimony, the MOT and underlying documents, and
other sources; and (2) he applied the relevant sections of the
MUTCD (and other standards) to the facts ascertained from his
investigation to determine what conditions should have been in
place to protect pedestrians from injury. Aronberg opined that
his methodology was generally accepted in the field of traffic
engineering, which hails the MUTCD as the "Bible." Defendant CSA's
expert traffic engineer, Yates, applied a similar methodology to
rebut Aronberg's opinions. Aronberg explained all of this again
during his Daubert hearing. The district court still took issue
with Aronberg's methodology, which diverged from recommendations
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set forth in one article by Himat Chadda and Thomas E. Mullnazzi
that was published in the ITE in 1987 (the "1987 Chadda article").45
Here's the run down. On Day 9 of Aronberg's Daubert
hearing, Q.B.'s counsel took Aronberg to task on the minutia of
the expert's methodology. He asked Aronberg to confirm the sources
he had relied upon and why, and then asked Aronberg whether he
conducted a number of tests (discussed in more detail later) which
Aronberg confirmed he had not conducted because they were not
germane to his opinions. Counsel then directed Aronberg's
attention to the 1987 Chadda article, which the district court
allowed into evidence for purpose of the Daubert hearing only.46
The article is entitled "The Traffic Engineer as an Expert
Witness." The purpose of the article, according to its
introduction, is to "discuss[] how a traffic engineer can prepare
for the challenging role of an expert" and to provide an "outline"
of the "various types of data and information needed, the
documentation and evaluation of the data, and the presentation of
45
For context, the ITE is published by an organization that
Aronberg previously described as the "most widely recognized
organization for transportation engineers in the world." Chadda
is a professional engineer whom Aronberg was generally familiar
with from his years in the industry. Aronberg even brought one of
Chadda's articles from 1984 to his second deposition to support
testimony regarding pedestrian behavior in a construction zone.
46
Although Q.B.'s counsel admitted the 1987 Chadda article
into the Daubert record, he did not explain how he came by the
article and it does not appear to be part of the pretrial record.
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the data for expert testimony." The article also includes a list
of "dos and don'ts . . . that should help improve the
effectiveness" of traffic engineers serving as expert witnesses.
In essence, the article contains what could be described as best
practices for traffic engineers testifying as experts, and
implicitly recognizes that such practices will vary based on the
facts of each case.
As was relevant to the district court, the article
recommends that expert witnesses carefully study the statements
from accident witnesses, take into consideration that police
accident reports may be inaccurate, visit the accident around the
time and day similar to the accident, and conduct certain studies
designed to measure the volume of traffic on the roadway where the
accident at issue occurred. The district court found that
Aronberg's Daubert testimony regarding his methodology
contradicted "Chadda's methodology." Namely, as the district
court tells it, Aronberg did not consider it important to interview
eyewitnesses to the accident and, instead, he testified that the
police accident report was the more important document. Relevant
to the district court, the 1987 Chadda article describes police
reports as the "weak link" in the traffic engineering expert's
investigation. The district court also dinged Aronberg for not
performing certain traffic engineering studies despite the
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article's recommendation that experts conduct any such studies
that are "appropriate" for their case.
As a threshold matter, it is not clear to us why, based
on the record here, the 1987 Chadda article should be viewed as
providing the definitive methodology for traffic engineers serving
as expert witnesses, and the district court never explains its
willingness to place so much reliance on it. Indeed, the article's
introduction describes what follows as a set of recommendations
designed to increase the "effectiveness" (as opposed to
reliability) of rendering expert witness testimony, and warns
experts against "embarrassment" at trial (rather than exclusion
under Rule 702). But even if the record established the 1987
Chadda article as an authoritative source on traffic engineering
methodology, Aronberg's investigation complied with many of the
article's recommendations. For instance, consistent with the
article and contrary to the district court's assessment, Aronberg
visited the accident site on two occasions, including once at
night. The article also encourages the use of technical references
like the MUTCD and guidance published by AASHTO (American
Association of State Highway and Transportation Officials) -- both
of which were cited by Aronberg as part of his methodology and
data considered. Moreover, the alleged differences between
Aronberg's methodology and the article's recommendations are
insignificant. Contrary to the district court's assertions, the
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transcript of Aronberg's Daubert testimony does not indicate that
the expert viewed fact witness statements as unimportant or less
important than police reports. Rather, Aronberg testified that it
was not important to talk to each witness that could have possibly
observed the accident. Later that same day, Aronberg testified
that he received and considered a summary of eyewitness accounts
of the accident from Lawes' counsel prior to drafting his report.
Aronberg then provided a step-by-step retelling of the events
immediately prior to Lawes' accident from the perspective of Lawes'
shipmate and fellow jaywalker, Gordon. Neither the defendants nor
the court averred then that Aronberg's understanding of the
accident was incomplete or otherwise unreliable. With respect to
police accident reports, Aronberg merely opined that he had relied
on such reports in other cases and did so again here. Without
more, the district court has not provided any support for its
conclusion that Aronberg's consideration of witness statements and
the police accident report here was unreliable.
The district court also found Aronberg's methodology
unreliable because he did not conduct certain traffic studies the
court believed necessary. The 1987 Chadda article proposes that
experts conduct "appropriate studies," including a "speed study"
and a "complete collision diagram." Extrapolating from the
article's study-based recommendations, the district court found
that Aronberg did not perform a "vehicle capacity study" or a "peak
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pedestrian/vehicular volume study." But these studies are not
mentioned at all in the 1987 Chadda article. They were brought up
by Q.B.'s counsel during cross-examination at the Daubert hearing,
and several days later Q.B. referenced Aronberg's failure to
conduct these studies in its motion to exclude Aronberg's
testimony. In apparent agreement with Q.B., the district court,
pointing to nothing authoritative, claimed that (without these
studies) Aronberg could not reliably assign Fernández Juncos a
roadway category which, in turn, was important to determining how
wide its lanes should be. Recall that the appropriate and actual
width of the southernmost eastbound lane served as the factual
underpinning for Aronberg's pedestrian corridor opinion.
However, the mere "existence of other methods of
gathering facts does not mean that the facts [Aronberg] relied
upon were insufficient"; nor does it mean that Aronberg's
methodology was unreliable. Packgen, 847 F.3d at 86–87. In lieu
of performing the capacity and volume studies that the district
court believed were necessary, Aronberg personally measured the
width of the southernmost eastbound lane during a site visit, and
he concluded that it was too narrow in view of industry guidance
concerning the required width of highway lanes. Like Aronberg,
Yates (CSA's expert) testified at his deposition that the MUTCD
and AASHTO provide national standards and references for highway
width. Yates stated that "assuming" Aronberg's measurement of the
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lane was accurate, Yates ("as an engineer") would have a "problem"
with the fact that the lane was not closed.47 When asked whether
speed limits or daily volume of traffic dictated the minimum width
of a highway, Yates acknowledged that these were relevant
considerations. However, he noted that pursuant to the MUTCD and
AASHTO the minimum acceptable width for any highway lane was nine
feet. Considering Yates' deposition testimony, even if capacity
and volume studies are helpful for determining the appropriate
width of a given highway, no capacity study was necessary to
support Aronberg's conclusion that Fernández Juncos' southernmost
eastbound lane was narrow enough to be considered for closure (even
if such closure was not mandatory). With no explanation as to why
it believed these studies indispensable, the court erred in
treating Aronberg's decision not to conduct them as a crucial flaw
in his methodology, especially since Aronberg's methodology was
consistent with the devices employed by other experts in the field
and logically flowed from what was known to him. See Packgen, 847
F.3d at 88 ("Experts may, however, make reasonable assumptions
that are consistent with the evidence available to them." (citing
47
When asked why the "eight feet measurement of a lane or
width of a lane" would be a problem, Yates explained: "It would
be difficult for vehicles to pass through an eight foot window
that close to a wall without driving – without the drivers tending
to straddle the lane line." For this very reason and consistent
with AASHTO guidance, Aronberg concluded that the southernmost
eastbound lane could have been closed to vehicular traffic and
converted into a pedestrian corridor.
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Cummings v. Standard Register Co., 265 F.3d 56, 65 (1st Cir. 2001)
(affirming admission of damage expert's testimony given the
expert's assumptions were also made by similar experts "with some
frequency")).48
Even if the district court had identified meaningful
differences between Aronberg's methodology and what was
recommended in the 1987 Chadda article, "Daubert does not require
that the party who proffers expert testimony carry the burden of
proving to the judge that the expert's assessment of the situation
is correct. It demands only that the proponent of the evidence
show that the expert's conclusion has been arrived at in a
scientifically sound and methodologically reliable fashion."
United States v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002) (quoting
Ruiz-Troche, 161 F.3d at 85). In Ruiz-Troche, for example, the
defendant's expert analyzed the concentration of cocaine detected
48
For the first time on appeal, defendant CSA claims that
Aronberg's methodology was unreliable because he failed to perform
a visibility analysis of the driver, a perception-reaction
analysis, or a lighting analysis for the vehicle's headlights.
These studies were not mentioned in the 1987 Chadda article or the
district court's opinion. In fact, the only mention of these
studies appears to have been during the deposition of driver
Riviere-Andino's accident reconstruction expert, Baigés Valentín.
The expert claimed to have conducted these studies as part of his
analysis, which focused on Riviere-Andino's liability for Lawes'
accident. But these studies were not germane to Aronberg's traffic
engineering expert opinions. As Aronberg explained to the court
during his Daubert hearing, he was not testifying as an expert in
accident reconstruction in this case (although he had done so in
other cases) and therefore he did not need to apply accident
reconstruction methodology to support his conclusions.
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in the body of one of the plaintiffs after a car accident to
conclude that she'd ingested the drug in a dosage that would have
impaired her perception, reflexes, reaction time, and judgment and
adversely affected her ability to drive just before the accident.
In response, that plaintiff offered peer review literature that
"cast doubt" on the expert's methodology and conclusion (for
example, they suggested his technique had "an uncertain rate of
error"). Ruiz-Troche, 161 F.3d at 85; see also id. at 86 (noting
that other literature suggested that scientists could not always
"correlate particular impairments to cocaine concentrations within
the body," and the plaintiffs urged that "only an immediate
neurological examination could have provided sufficiently reliable
evidence as to whether [the plaintiff] suffered from cocaine
intoxication at the time of the accident . . . and no such
examination was performed"). We concluded there that the
defendants' expert's methodology was nevertheless reliable given
that it satisfied other indicia of reliability; it still received
"significant support in the relevant universe of scientific
literature" and from the relevant plaintiff's own expert. Id. at
85. Though the literature did not "irrefutably prove" the expert
right, it showed his methods (and therefore his testimony) was
sufficiently reliable to reach the jury. Id. at 86. So we
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concluded there that the district court abused its discretion in
excluding the testimony. Id.Here, as we've explained, Yates was on board with
Aronberg's methodology. He described the MUTCD as "the standard"
used "by all traffic engineers." In fact, all the experts in the
case relied on AASHTO and/or the MUTCD in forming their opinions.
So, as in Ruiz-Troche, Aronberg's reliance on these technical
sources has been "subjected to, and survived, the rigors of
testing, publication, and peer review, and it appears to have won
significant (if not universal) acceptance within the scientific
community." Id. at 85.
We therefore find that the district court placed undue
weight on the importance of capacity and volume studies since
"Daubert neither requires nor empowers trial courts to determine
which of several competing scientific theories has the best
provenance." Id. One more time (it's worth repeating): Daubert
"demands only that the proponent of the evidence show that the
expert's conclusion has been arrived at in a scientifically sound
and methodologically reliable fashion." Id. (citing Kannankeril
v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997); In re
Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)).
As was the case in Ruiz-Troche, the district erred in weighing the
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factors relevant to the reliability of Aronberg's methodology.
Id.Application of Aronberg's Methodology
In excluding Aronberg's testimony, the district court
also identified several issues with the application of his
methodology. Although most of these issues concern former
defendant Q.B.'s liability, we must address the district court's
perceived weaknesses in Aronberg's testimony to explain and
contextualize our analysis and ultimate determinations relevant to
CSA. For the reasons that follow, we conclude that the district
court's concerns do not implicate "the reliability of [Aronberg's]
methodology" but (instead) constitute improper scrutiny of "the
conclusions that it generated." Manpower, 732 F.3d at 807.
The Monitoring Opinion. The trial judge deemed
unreliable Aronberg's testimony that Q.B. should have monitored
the construction site and taken appropriate steps to mitigate any
unsafe conditions observed therein. Here, the district court
opined that Aronberg had assumed certain facts not in evidence,
creating an analytical gap between the data Aronberg presented and
the conclusion that he drew regarding Q.B.'s monitoring
responsibilities. Of particular interest to the court, there was
testimony at trial that sailors traveling to and from the
waterfront when the MOT was in place traveled in "scattered groups"
and took other routes that did not involve jaywalking (like
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scurrying around the midblock barrier). Based on this testimony,
the court asserted that Aronberg's "categorical" assertion that a
monitoring plan would have detected the midblock crossing problem
had little support in the record.
In reaching this conclusion, the district court failed
to mention that Gordon (and other sailors) testified at trial that
they regularly jaywalked across Fernández Juncos after the
midblock barrier was in place in order to avoid the "hot corner"
on the northern sidewalk at the end of the pedestrian crosswalk.
Although the sailors admitted to skirting the barrier
occasionally, Gordon explicitly acknowledged that the group's
preferred route was to cross at midblock rather than skirting the
barrier. He perceived the latter as more dangerous after nearly
being "run down" during a prior skirting attempt. Gordon testified
that after the barrier was implemented (and before Lawes' accident)
he and crew members crossed at midblock (walking to and from Old
San Juan) at least once a week for over a year. When viewed as a
whole, the sailors' testimony establishes that at least some
pedestrians developed a noticeable pattern of crossing Fernández
Juncos at midblock. Whether this testimony establishes that
midblock crossings occurred often enough to have been observed by
a contractor monitoring the construction-affected area is a
question that goes to the weight rather than the admissibility of
Aronberg's opinions about Q.B. The district court was not free to
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take sides on disputed questions of fact in the trial record. We
find that Aronberg's conclusions regarding Q.B.'s duty to monitor
the area satisfy Daubert's threshold requirements for
admissibility.
Pedestrian Corridor, Positive Guidance, and Sidewalk
Opinions. The district court characterized as mere speculation
Aronberg's conclusions about defendants' duties to design and/or
implement a pedestrian corridor, an orange safety fence along the
northern sidewalk, and a closed-off southern sidewalk. In support
of this contention, the court declared that these opinions were
not practical because CSA and/or Q.B. would need to get the
approval of the Puerto Rico Highway and Transportation Authority
before closing a lane of traffic to build the pedestrian corridor,
erecting an orange safety fence along the northern sidewalk, or
changing the MOT design and closing the sidewalk at the
intersection. The district court's reasoning is based on a
fundamental misunderstanding of its gatekeeping function.
From our vantage, Aronberg's opinions logically flow
from the facts in this case and reflect the reliable application
of his MUTCD-based methodology. In view of applicable MUTCD
guidance (which, again, the district court does not identify as
the source of Aronberg's unreliability), Aronberg determined that
other traffic control devices were safer for pedestrians than the
midblock barrier, including closing the southern sidewalk at the
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crosswalk and/or creating a pedestrian corridor out of the
southernmost eastbound lane. Based on the statements and testimony
of sailors who regularly traversed the construction-affected area,
Aronberg concluded that the midblock barrier encouraged dangerous
pedestrian behavior (like jaywalking), which Q.B. should have
discovered while monitoring the area. Adding to this, Aronberg
opined that there was no justifiable reason for the midblock
barrier to remain in place considering the dangers it posed to
pedestrians and the fact that the planned bus stop was never
relocated to the southern sidewalk. Considering the pertinent
facts, the MUTCD, and his experience and education as a traffic
engineer, Aronberg therefore concluded that CSA and Q.B. were
obligated to take affirmative steps to remove the unsafe condition
and implement better traffic control devices. In particular,
according to Aronberg, these defendants should have sought
permission to close the southern sidewalk at the crosswalk and (in
the case of Q.B. only) to convert the narrow lane of traffic into
a pedestrian corridor. CSA does not argue (and there is no
evidence in the record) that it was precluded from requesting
permission to make changes to the MOT after the design's
implementation. There is a closer question of whether defendants'
duty to get input from municipal authorities weakens the causal
connection between their conduct and Lawes' accident. The district
court, for its part, suggests the relevant authorities would have
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denied any requests to change the MOT. Specifically, based on the
district court's understanding of Vargas' testimony at trial, the
Puerto Rico Highway and Transportation Authority previously
rejected a proposal to close the southernmost eastbound lane and
requested notice of contemplated lane closures prior to the MOT's
implementation. In light of the Highway Authority's position on
lane closures prior to the MOT, the district court speculated that
any follow-up requests to change the construction-affected area to
accommodate new traffic control devices would likely be rejected.
Although the district court did not cite to any evidence in the
record to support its theory, one could argue that municipal
authority over the area undermines Aronberg's conclusion that
defendants proximately caused Lawes' accident. However, for our
purposes, "there is an important difference between what is
unreliable support [for an expert's conclusions] and what a trier
of fact may conclude is insufficient support for an [expert's
conclusion]." Milward, 639 F.3d at 22. Here, at best, the
district court's concerns involve the latter. Accordingly, the
alleged weaknesses identified by the court go to the weight of
Aronberg's opinions, not their admissibility. See id.The district court's reasoning as to the speculative
nature of the orange safety fence is even more questionable given
that the MOT expressly contemplates such a fence in General Note
11. Neither the conclusions Aronberg reached nor the known facts
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fall outside the boundary of reliability. At any rate, "vigorous
cross examination" and the "presentation of contrary evidence" are
the appropriate means of "attacking shaky but admissible
evidence." Daubert, 509 U.S. at 596; see also Grp. Health Plan,
Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003)
(stating that "[a] certain amount of speculation is necessary,
[and] an even greater amount is permissible (and goes to the weight
of the testimony)," even if "too much is fatal to admission").
Midblock Barrier Opinion. According to the district
court, there is "no evidence on the record that supports the
conclusion that the placement of the barrier had any bearing" on
Lawes' accident. The district court, therefore, ruled that the
location of the barrier, and Aronberg's related conclusions about
CSA's liability, "lack any support, do[] not fit the facts of the
case, and [are] irrelevant to the tort in question." To reach
this conclusion, the district court either overlooked or deemed
not credible: (1) MUTCD guidance about pedestrian behavior and
the importance of implementing traffic control devices to prevent
pedestrians from taking a shortcut through the highway; (2)
testimony from sailors explaining that their habitual route to and
from the waterfront involved crossing at midblock (both ways); (3)
testimony from sailors about their desire to cross the roadways
before the intersection at the end of the northern sidewalk, where
the "hot corner" existed; (4) testimony from CSA's MOT designer
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that (but for the phantom bus stop) she believed closing the
sidewalk at the crosswalk was the safer design; and (5) Aronberg's
training and expertise in traffic engineering. Regardless of how
the district court got there, the result is the same. The district
court erred in applying the standard for admissibility for expert
testimony to the relevant factors in this case. Where, as here,
the expert's methodology, his conclusions, and the facts of the
case have a "valid scientific connection to the pertinent inquiry,"
they should be submitted to the jury to aid in its deliberation.
See Daubert on remand, 43 F.3d at 1320.
Aronberg's Contradictions on the Stand. Finally, the
district court concluded that Aronberg's self-contradictions over
the course of his rigorous twelve-day Daubert hearing also rendered
him unreliable to serve as an expert witness at trial. Namely,
the district court found that Aronberg testified inconsistently
about the impact of the southernmost eastbound lane on Lawes'
accident (focusing on Aronberg's testimony that the implementation
was Q.B.'s fault even if the MOT was sloppy), and that Aronberg
could not remember when he had mentioned Specification 638 during
his deposition two years prior. The district court also found
that Aronberg's memory was shaky as to his reliance on the police
accident report and review of contract documents, and as to whether
the lighting opinion was in his original report (which he did not
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have in front of him for this line of questioning).49 Moreover,
to the district court's chagrin, after relentless cross-
examination over the course of several days about the phantom bus
stop, there were purportedly differences in Aronberg's
explanation. All of the district court's hang ups about Aronberg's
preciseness, consistency, and credibility go toward (you guessed
it) the weight and not the admissibility of his testimony. See
Milward, 639 F.3d at 22 ("Lack of certainty is not, for a qualified
expert, the same thing as guesswork." (quoting Primiano v. Cook,
598 F.3d 558, 565 (9th Cir. 2010)); Int'l Adhesive Coating, 851
F.2d at 545 ("When the factual underpinning of an expert's opinion
is weak, it is a matter affecting the weight and credibility of
the testimony — a question to be resolved by the jury.").
With no further ado, we conclude that the judge "crossed
the boundary between gatekeeper and trier of fact" in this case.
Milward, 639 F.3d at 22. Because the district court's concerns
should have been reserved for the adversarial process at trial, we
49
The district court also determined Aronberg's lighting
opinion was unreliable in view of Vargas' trial testimony.
However, Vargas admitted on the stand that she did "not know for
a fact who's responsible" for illumination in the event a
streetlight was malfunctioning (as was alleged to be the case the
night of Lawes' accident). Given the totality of the witnesses'
testimony, we cannot agree that it undermines the reliability of
Aronberg's opinion (based on MOT General Note 9) that Q.B. was
obligated to ensure adequate illumination of the work area
(including along the northern sidewalk).
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conclude the district court abused its discretion in excluding
Aronberg's testimony under Rule 702.50
WRAP UP
We reverse the district court's rulings under Rule 26
and Rule 702, vacate the entry of judgment, and remand this matter
for further proceedings consistent with this opinion. Costs
awarded to Lawes.
- Concurring Opinion Follows -
50 To the extent the district court also suggests that
Aronberg's testimony is inadmissible under Rule 403's less
exacting relevance standard, we conclude (for all the reasons
already stated) that the probative value of the expert's testimony
to Lawes' case outweighs any potential prejudice envisioned by the
rules. See Fed. R. Evid. 403.
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TORRUELLA, Circuit Judge, (Concurring). To my mind this
is a very close case in which we are second guessing a trial judge
who was faced with a difficult decision and needed to keep a
semblance of order in the court's calendar. Santiago-Díaz, 456
F.3d at 277 (recognizing the district court's "interest in the
efficient management of its docket"). At the same time, we have
a compelling plaintiff who is left out in the cold, most probably
by actions beyond his personal doing. While I agree with the rules
articulated herein, I point out the practical difficulties
district court judges confront in their charge to penalize parties
who have flouted important procedural rules like Rule 26,
particularly where such noncompliance has been perceived by the
court as willful, and caution against dismissing the harm caused
by such noncompliance as an inconvenience. Finally, I recognize
that the district court's determinations regarding the
unreliability of the expert's evidence under Rule 702 flowed from
the expert's failure to provide detailed conclusions in a final
and complete expert report and advise parties wishing to avoid
exclusion on this basis to make a good faith effort to comply with
disclosure requirements or risk facing serious repercussions. In
the balance of things, I join my colleagues, but not without
expressing my concern with how our decision will impact future
actions by district court judges in their attempt to administer
their courts with a predictable order.
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