ATV Expert Report Contradicts Victim’s Account of 50 Foot Plunge in Off-Roading Accident

    Court: United States District Court for the Middle District of Tennessee, Nashville Division
    Jurisdiction: Federal
    Case Name: Gummo v. Ward
    Citation: 2014 U.S. Dist. LEXIS 154040


    The plaintiff filed a lawsuit after her daughter, who was friends with the defendant’s daughter, injured herself while driving the defendant’s ATV with permission. The plaintiff’s daughter was riding the ATV down a hill and into a curve when it veered off-road, plunged 50 feet, and ended up in a creek bed. The ATV in question was treated as an asset of the defendant’s construction business. The defendant had also deducted maintenance expenses for the ATV on his tax returns, however, actual maintenance had been infrequent. The plaintiff alleged the ATV’s brake became stuck and caused the accident. The plaintiff retained an ATV expert to support their case. In response, the defendant filed a motion to strike the expert’s testimony.

    The ATV Expert Witness

    The ATV expert witness was a former Kentucky State Trooper and was trained as an advanced reconstruction expert. He had previously served as an expert witness in numerous state and federal court cases, including ATV cases. The ATV expert was expected to testify that the cord on the left-hand brake, used to trigger the rear brake, was jammed and challenging to pull.

    The defendant argued that the expert had never directly worked in the ATV industry and that he had no formal training in servicing or restoration of ATVs. The defendant further asserted that the expert was not a specialist in building ATVs and had never taken any ATV specific classes. In reply, the plaintiff argued that the expert was well-versed in the design and handling of ATVs and had over 30 years of experience in ATV operations. Additionally, the expert had visited the scene of the accident, inspected the ATV, and directly tested the brakes alongside a professional Honda technician who co-signed his expert report.


    The court noted that it was not clear whether the defendant was attempting to strike the ATV expert’s testimony on the basis that he was allegedly not qualified by training or by experience to provide an expert opinion. The court decided it would perform its gatekeeping function via a Daubert hearing.

    The court also reflected that the true point of contention was that the expert’s testimony supposedly contradicted other evidence in the record. In this vein, the defendant argued that the victim’s testimony contradicts the expert’s report. The victim testified she had gone to apply the left rear and right front hand brakes, and that the brakes had not operated at all. The victim also testified she had not had issues with the brakes on that ATV prior. The defendant asserted they also had not experienced issues with this ATV before.

    To this point, the court noted the defendant’s interpretation failed to acknowledge that there was some background evidence of the ATV brakes squeaking and getting stuck in the past. Nevertheless, the court stated that “federal practice is that a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him,” citing Lee v. Smith & Wesson Corp. But the court concluded that the defendants had not proven that the ATV expert’s testimony was based on inadmissible facts. The defendant had also failed to prove that the expert’s testimony in any way contradicted his review of the scene and the ATV in question.


    The court denied the defendant’s motion to strike the ATV expert’s testimony.