Paget v. UDOT ( 2013 )

2013 UT App 161_________________________________________________________
THE UTAH COURT OF APPEALS
TIMOTHY PAGET AND ANNETTE PAGET,
Plaintiffs and Appellants,
v.
STATE OF UTAH, DEPARTMENT OF TRANSPORTATION,
Defendant and Appellee.
Opinion
No. 20120481‐CA
Filed June 27, 2013
Third District, Salt Lake Department
The Honorable Robert P. Faust
No. 080925951
Mark R. Taylor and David C. Biggs, Attorneys for
Appellants
John E. Swallow and Peggy E. Stone, Attorneys for
Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JAMES Z. DAVIS and CAROLYN B. MCHUGH concurred.
ORME, Judge:
¶1 Timothy and Annette Paget initiated this negligence action
against the Utah Department of Transportation (UDOT) after a
horrific car crash in which Annette was severely injured and their
daughter was killed. The district court granted summary judgment
in favor of UDOT, and the Pagets now appeal from that decision.
While we affirm the court’s ruling on the inadmissibility of expert
testimony, we reverse the summary judgment.
Paget v. UDOT
BACKGROUND
¶2 In January 2007, a westbound car crossed over the median
on I‐80 in Parley’s Canyon and into oncoming eastbound traffic,
colliding with the Pagets’ vehicle. Annette was severely and
permanently injured, and the Pagets’ daughter died in the crash.
The Pagets sued UDOT, claiming that UDOT was negligent in
designing and constructing the portion of I‐80 on which the
accident occurred because there was no median barrier in place to
separate eastbound and westbound traffic.
¶3 UDOT filed a motion for summary judgment, arguing that
it had not breached the applicable standard of care and that the
Pagets’ proposed expert testimony was inadmissible. UDOT
supported its motion with an expert report from Thomas Alcorn,
a forensic engineer. In preparing his report, Alcorn reviewed
incident reports from the crash, photographs of the site, and I‐80
design drawings. He also conducted a personal inspection of the
crash site and measured the site’s road grade at 1.77%–2.2% and
the width of its median at between 43 and 44 feet. Alcorn’s report
thoroughly discussed the historical evolution of the design
standards developed by the American Association of State
Highway and Transportation Officials (AASHTO), which UDOT
has adopted for use in designing roads and highways in Utah.
Using the AASHTO standard applicable to the construction of
median barriers, Alcorn concluded that a median barrier at the
crash site was “not required” when the road was first constructed
and was only “optional” at the time of the crash. Alcorn came to
these two conclusions by plugging the crash site’s median width
and average daily traffic volume into AASHTO’s median barrier
requirement matrix.1 Because the matrix indicated that a median
1
The AASHTO median barrier requirement matrix, con‐
tained within the AASHTO Roadside Design Guide, has under‐
gone several revisions and iterations in the last several decades.
For example, the 1968 matrix contained only two categories:
“Median Barrier Required” and “Median Barrier Not Required.”
(continued...)
20120481‐CA 2 2013 UT App 161Paget v. UDOT
barrier was only “optional” at the time of the crash, Alcorn
concluded that “median barriers were not warranted or required”
and that UDOT’s decision not to construct a barrier at the crash site
fully complied with the applicable AASHTO standard. Alcorn’s
conclusion did not discuss the road grade at the crash site, the
typical weather conditions in Parley’s Canyon, the traffic density,
or anything other than the matrix’s “optional” categorization.
Given Alcorn’s conclusion, UDOT asserted that its decision not to
construct a median barrier was reasonable—essentially because a
barrier was optional—and thus satisfied its duty of care.
¶4 The Pagets offered a report and subsequent affidavit in
opposition to UDOT’s motion for summary judgment from
Edward Ruzak, a civil and traffic engineer from California. Ruzak
did not travel to the crash site nor did he take any of his own
measurements. Instead, Ruzak reviewed an incident report from
the crash, photographs, design drawings, “I‐80 Traffic Volumes,”
and “[c]ollision reports on I‐80 near MP 137.”2 Ruzak’s report
1
(...continued)
The 1971 matrix added an “Optional Zone” and created an
exception to the “Median Barrier Not Required” category for
“Adverse Accident Experience.” The 1977 matrix was reduced to
contain only “Warranted” and “Optional” categories. In 1996,
the current categorical regime was adopted. It includes three
categories: (1) “Evaluate Need for Barrier,” (2) “Barrier Op‐
tional,” and (3) “Barrier Not Normally Considered.”
2
Ruzak obtained the I‐80 collision reports pursuant to a
public records request. See generally Utah Code Ann. § 63G‐2‐201
(LexisNexis Supp. 2012). Neither party disputes that this infor‐
mation is not discoverable or admissible as evidence under 23
U.S.C.A. § 409 (West Supp. 2013). See Miller v. Utah Dep’t of
Transp., 2012 UT 54, ¶¶ 26 n.4, 28, 285 P.3d 1208 (confirming that
section 409 protects any information an agency generates for the
purposes of developing any highway safety project). Despite the
information’s inadmissibility, the Pagets maintain that Ruzak
(continued...)
20120481‐CA 3 2013 UT App 161Paget v. UDOT
incorrectly stated that the median width at the crash site was only
16 feet, and his affidavit incorrectly stated that the road grade at
the crash site was 6%.3 In both his report and affidavit, Ruzak
concluded that a median barrier should have been constructed at
the crash site and that UDOT’s mere reliance on AASHTO’s
“optional” recommendation was unreasonable. While Ruzak did
not believe that UDOT’s compliance with the AASHTO standard
was, without more, enough to be appropriately considered
reasonable, Ruzak admitted in his deposition that he was unaware
of any other scientifically accepted standard that supported his
assertions.
¶5 After reviewing both experts’ opinions, the district court
found that UDOT’s decision not to construct a median barrier at
the crash site complied with the AASHTO standard and was
therefore reasonable. The district court also found that the Pagets
had failed to make the required “threshold showing” that Ruzak’s
opinions were reliable. The court specifically emphasized that
Ruzak relied on “vague and/or inadmissible data” and did not
support his opinion with any published standard that was accepted
by the relevant expert community. The court excluded Ruzak’s
opinion and, based on the lack of “evidence that UDOT’s design of
I‐80 fell below a recognized standard of care,” granted summary
judgment for UDOT. The Pagets now appeal.
2
(...continued)
did not intend on testifying about it at trial, as evidenced by the
fact that his affidavit makes no reference to the information.
While the Pagets are correct that Ruzak’s affidavit does not men‐
tion or rely on this protected information, his report both dis‐
cusses and relies on the information contained in the collision
reports. Thus, it is fair to infer that Ruzak’s ultimate conclusions
relied at least in part on this inadmissible information.
3
Neither party disputes the accuracy of Alcorn’s measure‐
ments of the median’s width or the highway’s grade at the site of
the accident.
20120481‐CA 4 2013 UT App 161Paget v. UDOT
ISSUES AND STANDARDS OF REVIEW
¶6 The Pagets first argue that the district court erred in
excluding Ruzak’s testimony as unreliable under rule 702 of the
Utah Rules of Evidence. We review a district court’s exclusion of
expert testimony for an abuse of discretion, and we will disturb
that exclusion “only when it exceeds the limits of reasonability.”
Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power,
2012 UT App 20, ¶ 16, 269 P.3d 980 (citation and internal quotation
marks omitted).
¶7 The Pagets also argue that the district court improperly
granted summary judgment in favor of UDOT because the decision
not to construct a median barrier at the crash site was
unreasonable, regardless of whether UDOT complied with the
AASHTO standard. “Summary judgment is appropriate only when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Eagar v. Burrows, 2008 UT
42, ¶ 13, 191 P.3d 9. We review a district court’s legal conclusions
and ultimate grant of summary judgment for correctness. Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
ANALYSIS
I. Admissibility of Expert Testimony
¶8 The Pagets contend that Ruzak’s testimony was erroneously
excluded because rule 702 of the Utah Rules of Evidence, as
explained in our decision in Gunn Hill Dairy Properties, LLC v. Los
Angeles Department of Water & Power, 2012 UT App 20, 269 P.3d 980,
requires a proponent of expert testimony to make only a minimal
“threshold showing” of reliability. See id. ¶ 33. They reason that
Ruzak’s qualifications as an engineer, coupled with his
consideration of factors not taken into account by the AASHTO
standard, satisfies the requisite “threshold showing.”
20120481‐CA 5 2013 UT App 161Paget v. UDOT
¶9 Trial court judges have a responsibility to function as
“gatekeeper[s]” to “screen out unreliable expert testimony.” Utah
R. Evid. 702 advisory committee note. See Gunn Hill, 2012 UT App
20, ¶ 28. While this gatekeeping function “marks only the
beginning of a reliability determination,” a trial court must ensure
that a proponent of expert testimony has made a “threshold
showing” of reliability before it allows the trier of fact to make an
ultimate reliability determination. See id. ¶ 33 (emphasis omitted).
“That ‘threshold’ requires only a basic foundational showing of indicia
of reliability for the testimony to be admissible.” Utah R. Evid. 702
advisory committee note (emphasis added).
¶10 It is often the case that experts will employ competing
principles or methodologies that lead to inconsistent opinions and
recommendations. See id. The mere fact that the opinions are
inconsistent does not mean that one or the other is unreliable. Id. It
is quite possible that two competing and inconsistent expert
opinions will both contain the necessary indicia of reliability—the
quintessential example being where two competing methodologies
are both generally accepted by the relevant expert
community—and the advisory committee note to rule 702 explains
that differing yet reliable opinions should be admitted and then
reconciled by the finder of fact. Id.
¶11 However, an opinion based on principles or methodologies
that are not generally accepted by the relevant expert community
or that offers an unconventional perspective does not meet the
necessary threshold simply because that opinion was rendered by
a qualified expert. See Gunn Hill, 2012 UT App 20, ¶ 30 (explaining
that rule 702 requires a bifurcated analysis of admissibility and that
a reliability determination under rule 702(b) is separate and distinct
from an assessment of the expert’s qualifications under rule 702(a)).
On the contrary, when an expert opinion is based on principles or
methodologies that are not generally accepted in the relevant
expert community, a proponent of that opinion can meet the
requisite “threshold showing” only by demonstrating other indicia
of reliability. See Utah R. Evid. 702 advisory committee note (noting
that a failure to show general acceptance in the relevant expert
20120481‐CA 6 2013 UT App 161Paget v. UDOT
community does not make the opinion inadmissible but does
require that the threshold be satisfied by “other means”).
Accordingly, if an expert opinion is not based on generally
accepted principles or methodologies and is also devoid of other
indicia of reliability, a trial court is well within its gatekeeping
discretion to exclude the proposed testimony. See id.
¶12 We conclude that the district court did not abuse its
gatekeeping function by excluding Ruzak’s proposed testimony.
The AASHTO standards are generally accepted as the benchmark
for designing and constructing highways in Utah. By his own
admission, Ruzak is not aware of a generally accepted standard
that substantiates his recommendation to go above and beyond or
deviate from the AASHTO guidelines, and the Pagets have not
pointed to one. Therefore, Ruzak’s methodology is not based on a
generally accepted standard, and it was incumbent upon the Pagets
to provide other indicia demonstrating the reliability of his
methodology.
¶13 Given the record before us, Ruzak’s methodology
appears almost completely devoid of any such indicia of
reliability. While Ruzak endorses a methodology that considers
“changes in elevation, roadway curvature, frequency of adverse
weather conditions, etc.,” Ruzak himself did not travel to the
crash site, did not take his own measurements, and—most
problematically—relied on incorrect measurements in both his
report and affidavit. Moreover, Ruzak’s report analyzes and relies
on evidence that is inadmissible under 23 U.S.C.A. § 409 (West
Supp. 2013), and his affidavit sandwiches numerous vague and
conclusory statements around a lone explanatory assertion that a
median barrier was warranted because of I‐80’s “geometric
features” and its “six percent downgrade.”4
¶14 The Pagets point to UDOT’s Roadway Design Manual of
Instruction as support for Ruzak’s belief that UDOT “should have
4
As previously mentioned, the actual downgrade at the
crash site is around 2%.
20120481‐CA 7 2013 UT App 161Paget v. UDOT
done more than simply rely on AASHTO.”5 All they point out,
however, is that the manual notes that under some circumstances
UDOT will need to augment or change the AASHTO standards.
5
The Pagets also point to Miller v. Utah Department of
Transportation, 2012 UT 54, 285 P.3d 1208, and UDOT’s construc‐
tion of a median barrier at the crash site subsequent to the acci‐
dent as indicia of reliability. They argue that in Miller, the Utah
Supreme Court questioned the sufficiency of the AASHTO
standard and consequently “beg[ged] the question of whether
AASHTO alone is ‘safe.’” Miller, however, does not discuss
AASHTO at all and merely reaffirms the longstanding principle
that “the government’s duty of care to maintain road safety is
susceptible to general tort analysis.” Id. ¶ 46. Furthermore, Miller
does not in any way address the reliability of Ruzak’s methods
for determining whether a median barrier should have been
constructed.
Similarly, UDOT’s subsequent decision to construct a median
barrier cannot function as an indicator of reliability because it is
a classic example of an inadmissible subsequent remedial mea‐
sure. See Utah R. Evid. 407. The Pagets claim that the evidence
can function to prove the reliability of Ruzak’s testimony, which
is akin to showing the “feasibility of precautionary measures.”
Id. This claim fails for two reasons. First, Ruzak’s opinion was
not that a barrier was feasible but rather that a barrier was neces‐
sary, and that opinion was based on a methodology that deviates
from the generally accepted methodology in the relevant expert
community. Moreover, the feasibility of building a median
barrier is only tangentially related to the reliability of an expert’s
method for determining when a barrier is necessary. Second, the
subsequent construction of a barrier does not show that Ruzak’s
methodology is reliable, because there is no proof that UDOT’s
decision to construct a barrier was based on his methodology.
And, as discussed in more detail below, UDOT’s decision to
finally install a barrier may simply have been premised on
AASHTO’s “Barrier Optional” classification.
20120481‐CA 8 2013 UT App 161Paget v. UDOT
This suggestion that AASHTO is not an end‐all solution and may
need to be modified in certain situations does not specifically refer
to AASHTO’s median barrier requirements, and it certainly is not
an endorsement of Ruzak’s alternative methodology.
¶15 In sum, Ruzak’s opinion is based on evaluations that contain
incorrect measurements and inadmissible data. The Pagets have
not pointed to any generally accepted standard that substantiates
his methods, and they have failed to provide any other indicia that
his proposed testimony is reliable. We conclude that the district
court properly excluded his testimony.
II. Summary Judgment
¶16 Even in a case, unlike this one, where a party opposed to a
motion for summary judgment “‘submits no documents in
opposition, the moving party may be granted summary judgment
only . . . if he is entitled to judgment as a matter of law.’” Ward v.
Graydon, 2011 UT App 358, ¶ 15, 264 P.3d 764 (emphasis and
omission in original) (quoting Olwell v. Clark, 658 P.2d 585, 586
(Utah 1982)). “A summary judgment movant must show both that
there is no material issue of fact and that the movant is entitled to
judgment as a matter of law.” Orvis v. Johnson, 2008 UT 2, ¶ 10, 177
P.3d 600 (emphasis in original). UDOT contends that once Ruzak’s
testimony is excluded, the Pagets’ claim fails as a matter of law and
UDOT is entitled to summary judgment. We disagree. Regardless
of whether Ruzak’s testimony is excluded, summary judgment is
not appropriate unless UDOT, as the moving party, has
demonstrated that it is entitled to judgment as a matter of law. See
id. Thus, we turn to the relevant standard of care and the report
from Alcorn, UDOT’s expert.
¶17 “[T]he government’s duty of care to maintain road safety is
susceptible to general tort analysis.” Miller v. Utah Dep’t of Transp.,
2012 UT 54, ¶ 46, 285 P.3d 1208. Therefore, the government has a
duty to take reasonable measures to minimize or prevent
unreasonable risks of foreseeable injury. See id. ¶¶ 43, 46(upholding as a correct statement of UDOT’s duty of care a jury
20120481‐CA 9 2013 UT App 161Paget v. UDOT
instruction asserting that UDOT had to exercise reasonable care,
including “tak[ing] reasonable measures to minimize or prevent
dangerous conditions that would create unreasonable risks of
foreseeable injury to motorists”). To that end, UDOT has adopted
the AASHTO standards as its guideline for the construction of
roads and highways within the state.
¶18 The AASHTO Roadside Design Guide, as adopted by
UDOT, contains standards and procedures for every facet of road
construction and design. Chapter 6 of the guide, and specifically
section 6.2, sets forth guidelines and recommendations for median
barrier construction. These recommendations are generated
through the use of a matrix, which factors in median width and
projected average daily traffic volumes over a five‐year span. The
matrix is intended to provide guidance specifically for “median
barriers on high‐speed, controlled‐access roadways that have
relatively flat, traversable medians,” and the applicable version of
the matrix contains three recommendation categories: (1) Evaluate
Need for Barrier, (2) Barrier Optional, and (3) Barrier Not Normally
Considered. Section 6.2 does not contain any special guidance for
evaluating whether a median barrier is necessary under the
“Evaluate Need for Barrier” category, and it does not state under
what circumstances a barrier will be considered under the “Barrier
Not Normally Considered” category.6 For the “Barrier Optional”
category, which is the pertinent category for the crash site here,
section 6.2 states that “a barrier is recommended only if there has
been a history of cross‐median crashes.” Section 6.2 does not,
however, provide any sort of target cross‐median crash rate—as
Alcorn himself points out—and it does not provide any guidance
other than the rather broad phrase “history of cross‐median
crashes.”
6
Section 6.2 does discuss analogous median barrier
requirements in Florida and California, but it does not
specifically endorse those requirements or encourage highway
designers to adhere to them.
20120481‐CA 10 2013 UT App 161Paget v. UDOT
¶19 AASHTO’s tripartite median barrier recommendation
scheme provides no guidance on whether and under what
circumstances a median barrier should reasonably be installed,
especially when a location falls within the “Barrier Optional”
category. Other than the direction to consider the “history of cross‐
median crashes,” the Roadside Design Guide does not provide any
criteria whatsoever, and the categories on either side of this
nebulous “Barrier Optional” category are of little help. On the one
hand, if a barrier is “Not Normally Considered,” the logical
implication is that typically a barrier will not be necessary, but in
atypical or abnormal circumstances it will be. Conversely, the
“Evaluate Need For Barrier” category suggests, at the very least,
that a barrier will not always be necessary—hence the need to
evaluate its necessity. Unfortunately, the Roadside Design Guide
does not state any factors or unusual circumstances that should be
considered in evaluating necessity. Given the confusing nature of
what should be the more predictable categories on either side of it,
the “Barrier Optional” category appears to countenance little more
than a free‐for‐all, affording highway designers carte blanche
discretion to build or not to build barriers based, apparently, on
little more than whim.
¶20 UDOT’s decision not to construct a median barrier appears
to be based solely upon section 6.2’s unsatisfying matrix. And from
what appears in his report, Alcorn’s conclusion that a median
barrier was not warranted at the crash site also stems purely from
the crash site’s “Barrier Optional” categorization. After entering the
average daily traffic volume and median width into the matrix, and
without any additional explanation or consideration of the crash
site’s “history of cross‐median crashes,” Alcorn arrived at the
conclusion that a median barrier was “not warranted” when the
road was designed or constructed and was “optional” at the time
of the accident. His report does not list any factors, other than the
matrix, that may have guided UDOT’s actual decision not to build
a barrier initially or later. More importantly, the report does not
provide any meaningful analysis about whether the decision not to
construct a barrier was reasonable. Instead, it merely recited that
a barrier was “optional” at the time of the crash and then jumped
20120481‐CA 11 2013 UT App 161Paget v. UDOT
to the unexplained conclusion that a barrier was “not warranted.”
Indeed, the report’s reasoning appears to be entirely circular: The
AASHTO matrix defines the applicable standard of care, and
because construction of a median at the crash site was optional, the
standard was satisfied because UDOT opted not to construct a
median. Such an approach, much like the matrix itself, begs the
question of whether opting not to install a median barrier at the
crash site was a reasonable choice even when taking into account
the premise that the decision was optional rather than mandatory.
¶21 Without more, we are unconvinced that UDOT’s decision
not to construct a median barrier was reasonable as a matter of law.
While we understand that, under AASHTO, the decision whether
to erect a barrier was optional, both Alcorn and UDOT have wholly
failed to explain why UDOT’s decision was reasonable. UDOT
seems to suggest that because a barrier was optional it would have
been reasonable either to construct a barrier or not to construct a
barrier. But without any sort of explanation as to how UDOT
actually came to its decision, there is no way of knowing whether
UDOT’s decision was grounded in reasonable and prudent
judgement or whether it all boiled down to something as arbitrary
as a design engineer’s mental flip of a coin.
¶22 AASHTO’s rudderless median barrier requirements cannot,
without more, serve as the standard of care by which the
reasonable and prudent construction of highway median barriers
is measured.7 Because UDOT has failed to demonstrate anything
7
The many other provisions within AASHTO may well
provide reasonable and rational guidance for other aspects of
highway construction and design, and this opinion is not
intended as a wholesale criticism of the Roadside Design Guide.
Rather, we take issue solely with section 6.2, which contains no
rational guidance whatsoever and seemingly affords highway
designers unfettered discretion in determining whether to
construct median barriers. Such an arbitrary and unhelpful
(continued...)
20120481‐CA 12 2013 UT App 161Paget v. UDOT
other than that a median barrier was optional under AASHTO, it
has failed in its burden to prove that its actions in selecting the
option it did were reasonable as a matter of law and that it is
entitled to judgment as a matter of law. We therefore conclude that
the district court erred in granting summary judgment in favor of
UDOT.
CONCLUSION
¶23 The district court properly excluded Ruzak’s proposed
testimony because his methods and principles were not based on
a generally accepted standard in the relevant expert community,
and the Pagets failed to provide any other indicia of his opinion’s
reliability. UDOT, however, was not entitled to summary judgment
merely because Ruzak’s testimony was properly excluded. As the
moving party, UDOT was required to demonstrate that its decision
not to construct a median barrier was reasonable as a matter of law.
In basing its decision entirely on a standard that allows for
seemingly arbitrary and potentially unreasonable actions, UDOT
failed to demonstrate that it met the standard of care. We
consequently reverse the district court’s grant of summary
judgment and remand for trial or such other proceedings as may
now be in order.
7
(...continued)
standard cannot possibly stand alone as the relevant standard of
care for median barrier construction.
20120481‐CA 13 2013 UT App 161