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Expert Precluded from Testifying as to Time of Vehicle Collision and Speed of Other Vehicle Based on Data Obtained from Event Data Recorder

Michael Ferguson v. National Freight, Inc., et al.
(March 22, 2016) United States District Court for the Western District of Virginia

by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (

Available at:

In a recent opinion, the United States District Court for the Western District of Virginia held that an expert accident reconstructionist could not testify, based on data from an Event Data Recorder (“EDR”) in one vehicle, as to the time of the accident or the speed of the other vehicle involved in the accident.

On July 30, 2013, Plaintiff, a tow truck driver, responded to a service call for a vehicle that had suffered a flat tire. Because the disabled vehicle was carrying more people than Plaintiff could fit into his truck, Plaintiff’s mother accompanied him to assist in transporting the stranded individuals. Plaintiff arrived at the disabled vehicle and found that it had been pulled onto the right-hand shoulder of Interstate 81. He attached the disabled vehicle to his truck, and his mother loaded additional passengers into her car. Plaintiff and his mother then both merged into the right lane of the Interstate. At the same time, a truck owned and operated by Defendants was driving in the same lane. Plaintiff’s mother observed Defendants’ truck and swerved back onto the right-hand shoulder, but Plaintiff did not. Defendants’ truck crashed into the rear of Plaintiff’s tow truck, causing him bodily injury.

Plaintiff filed a diversity action in the United States District Court for the Western District of Virginia, alleging causes of action for negligence against each Defendant. In the course of the litigation, Defendants named Heath C. Spivey, M.S., P.E., as an expert in accident reconstruction and forensics. In pertinent part, Mr. Spivey was offered to testify regarding: (1) the content of the data recorded by the EDR present in Defendants’ truck; (2) his opinion as to the time at which the collision occurred, including the time between the driver’s application of the brakes and the collision; and (3) the speed of Plaintiff’s tow truck at the time of the collision, based on the EDR data and Mr. Spivey’s inspection of the damage suffered by each vehicle. Ultimately, Mr. Spivey would opine that the Defendant driver was unable to avoid the accident because Plaintiff’s truck pulled into the right lane at too slow a speed. Plaintiff moved to exclude Mr. Spivey’s testimony to the extent that he sought to testify regarding the speed of Defendants’ truck, the time of impact, the time at which the Defendant driver applied the brakes, and the speed of Plaintiff’s truck. Plaintiff did not, however, challenge Mr. Spivey’s ability to testify as to the contents of the data recorded by the EDR.

Judge Glen E. Conrad denied, in part, and granted, in part, Plaintiff’s motion. Initially, the Court rejected Plaintiff’s argument that Mr. Spivey should not be allowed to testify as to the speed of Defendants’ truck. It noted that other courts had previously permitted such testimony and concluded that such testimony would assist the jury in interpreting the EDR data. The Court therefore permitted Mr. Spivey to testify as to the speed of Defendants’ truck at various times prior to the collision.

Regarding Mr. Spivey’s proposed testimony as to the time when the collision occurred and the speed of Plaintiff’s truck, however, the Court held that Defendants had “not sufficiently established the reliability of [Mr.] Spivey’s methodology.” It noted that Mr. Spivey relied on a single study that had found that a decrease of fifteen (15) feet per second or more within a period of one (1) second is indicative of a vehicle collision. From this study, Mr. Spivey proffered his opinion that Defendants’ truck must have been traveling between 44 and 55 miles-per-hour, while Plaintiff’s truck must have been traveling at a significantly lower speed. The Court concluded that this methodology failed to take into account the weight of each vehicle, the incline of the roadway, the condition of the roadway, and the condition of Defendants’ truck’s tires. These concerns were heightened by Mr. Spivey’s admission that he could not determine specifically where on Interstate 81 the collision occurred. Moreover, Mr. Spivey did not explain how his inspection of the damage to the vehicles assisted his conclusion this regard. Accordingly, the Court concluded that Mr. Spivey’s testimony as to these subjects was inadmissible.

The Court also excluded Mr. Spivey’s testimony regarding the time at which the Defendant driver braked prior to the impact. As an initial matter, Mr. Spivey’s testimony was based on a single study that was not peer-reviewed and that pertained to a completely different type of EDR. In any event, Mr. Spivey’s conclusion regarding the time between the application of the brakes and the time of impact was unsupported for the same reasons applicable to his testimony about the time of the collision and Plaintiff’s truck’s speed. Specifically, Mr. Spivey’s testimony failed to take into account the particular conditions of the road and the vehicles at the time of the collision. Consequently, the Court determined that Mr. Spivey’s testimony in this regard was also inadmissible.