Ski Safety Expert Witness is Not Qualified to Opine on the Ultimate Mechanism of Injury
Posted on January 30, 2025 by Expert Witness Profiler
This case involves a ski collision that occurred on March 19, 2023, involving Plaintiff, Tasha Barber and Defendant, Christine Mack that occurred at Aspen Highlands Ski Resort. The Plaintiff alleged that the Defendant was skiing uphill of her and had the primary duty to avoid colliding with the Plaintiff.
As a result, the Plaintiff sought damages for her injuries from the crash. The Defendant denied the allegations and, as part of her defense, retained Jonathan Delk as an expert. In his expert report, Delk included a section titled “Conclusion and Opinions” in which he reached a variety of factual conclusions and offers his opinions. At the end of that section, Delk offered three opinions:
1. Barber was responsible for avoiding the collision based on her being the uphill skier.
2. Barber was neither prepared nor aware enough to begin skiing, nor does she acknowledge that her being in motion (“coasting”) as skiing, which it is. These real facts and perspectives shared by Tasha Barber prove that Tasha was not sufficiently in control or aware of her surroundings to have avoided a collision.
3. Barber’s choice of actions to avoid the collision (shouting, leaning back, twisting) were ultimately the cause of her skis coming into contact with Christine Mack’s. Tasha Barber’s movements were the ultimate mechanism of her injury.
The Plaintiff challenged the admissibility of these opinions, characterizing them as paid advocacy masquerading as expert testimony.
Ski Safety Expert Witness
Jonathan Delk is an experienced trainer and risk manager with 15 years of ski, snowboard, and cycling coaching and training experience. From 2004 – 2019 he was employed in various roles in the ski industry including instructor,
guide, coach, trainer, manager, and director of snowsports.
During his tenure in the ski industry, he created and administered safety trainings for instructors and resort staff related to the Skier’s Responsibility Code and the Colorado Skier’s Safety Act. While his primary work has shifted fields, he remains active in the ski industry both as an instructor and member of PSIA-AASI, the governing body of instructor certifications in the United States for which he was also employed during his career as an examiner.
Discussion by the Court
According to Delk’s report, he considered deposition transcripts, documents from this case, the Colorado Ski Safety Act of 1979, the NSAA Skier’s Responsibility Code, and a video of the incident.
First Opinion
The Court held that the justification for Delk’s first opinion, for example, began by noting that the Colorado Ski Safety Act put the primary duty to avoid collision “on the person skiing downhill” as to “any person or objects below him.”
That is fine as far is it goes. But the main conclusion he employed in the opinion — that the Plaintiff was the uphill skier — is largely rooted in his estimation of the paths of travel of the various individuals involved. And it is unclear what methodology Delk employed in crafting that estimation. He provided terrain photographs and stated conclusions, but their provenance is a mystery: there is no analysis, measurements, information about the grade of the land, or any concrete methodology supporting the conclusions.
The Defendant protested, arguing that Delk applied specialized terrain knowledge to plot probable paths and project the parties’ trajectories. That is not what his report showed. Instead, Delk presented two maps with path lines drawn on them without explanation as to why those paths would be any more reliable than a casual skier’s guess. That will not do. It did nothing to “explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
Accordingly, the Court found Delk’s opinion—that Tasha Barber was responsible for avoiding the collision because she was the uphill skier—to be unreliable.
Second Opinion
The Court held that Delk’s opinion on the mental state of the Plaintiff appeared detached from any cognizable methodology. Indeed, he provided no clear path as to how he arrived at his conclusion. His statement that coasting is skiing — while potentially true — appeared to be pure ipse dixit on the face of the report. Accordingly, the Court concluded that the Defendant has not satisfied her burden of showing that the opinion is reliable.
Third Opinion
The Plaintiff characterized Delk’s opinions as irrelevant, devoid of legal support, prejudicial, and invading the province of the jury. The Court ultimately found that they were not supported by Delk’s qualifications or methodology.
It should be noted that Delk is experienced in ski instructor training and, through the Professional Ski Instructors of America and American Association of Snowboard Instructors, he is a certified instructor. While that background clearly made him knowledgeable about the general responsibilities of skiers, such as those enumerated in the Skier’s Responsibility Code and the Colorado Skier’s Safety Act, general qualifications alone did not end the analysis.
The Court held that the second sentence of Delk’s third enumerated opinion did not relate to Delk’s experience or training. To opine about the ultimate mechanism of injury is a medical conclusion, and neither Delk nor the Defendant contended that Delk had any medical training, education, or experience that would allow him to render an expert opinion on injury causation. And given that it is the Defendant who “bears the burden of establishing that the expert is qualified” to render his opinions, that alone defeated the propriety of this section of the opinion.
The Defendant demurred. That sentence, she insisted, simply weighed in on liability, not injury. That is not what it says. The first sentence is the one that opines on the cause of the collision; the second plainly adds a gloss regarding the cause of the Plaintiff’s injury. Delk has no qualifications permitting such a gloss. Accordingly, the Court excluded Delk’s opinion regarding the cause of the Plaintiff’s injuries.
The first sentence of the opinion fared no better for a different reason: it lacked reliability. Delk did not explain his methodology for reaching this opinion.
Held
The Court granted the Plaintiff’s motion to strike the opinions of Jonathan Delk.
Key Takeaway:
The Court held that Delk’s opinions incorporate little by way of reliable expertise. His first opinion is rendered not to illustrate the impropriety of skiing uphill — which could be a valid subject for expert testimony — but instead to opine that the Plaintiff was skiing uphill, grounded, apparently, in an “assum[ption].” Delk’s second opinion, rather than educating the jury as to how one would be prepared to ski, simply casts aspersions on the plaintiff’s preparedness level. His third appears to have “no application of knowledge, experience, or expertise to the conclusion” he “reaches about proximate cause.”
While a jury can consider opposing testimonies, when one of them comes from a purported expert, it must still be grounded in reliable experience or methodology to “help the trier of fact to understand the evidence or to determine a fact in issue.”
The Court held that Delk’s opinion was based almost entirely on his selection of facts, without apparent application of reliable principle or experience that grounds his selectivity or that would aid a jury. It therefore failed to “reveal how the experience led to the expert’s conclusion,” let alone “how the experience was reliably applied.”
Case Details:
| Case Caption: | Barber V. Mack |
| Docket Number: | 1:24cv260 |
| Court: | United States District Court for the District of Colorado |
| Order Date: | January 27, 2025 |
