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Construction
10 min read
Areas of Expertise :
Traffic Engineering, Accident Reconstruction, Pedestrian, Highway Design And Construction, Civil Engineering
Published Date:
Last Modified Date:
Jurisdiction:
Federal. First Circuit
In Lawes v. CSA Architects & Engineers LLP, 963 F.3d 72 (1st Cir. 2020), the U.S. Court of Appeals for the First Circuit reviewed negligence litigation stemming from a pedestrian collision near the Bahía Urbana construction project in San Juan, Puerto Rico. Grandvill Lawes was struck by a vehicle while crossing Fernández Juncos Avenue on October 22, 2011, and sustained injuries that left him quadriplegic.
The dispute concerned pedestrian access, temporary traffic controls, roadway barriers, lighting, and the project's Management of Traffic (MOT) Plan. The proceedings also focused on traffic engineering testimony from Ralph Aronberg, including his reliance on the Manual on Uniform Traffic Control Devices (MUTCD), deficiencies in his written expert disclosures, and whether his opinions satisfied the admissibility requirements of Federal Rule of Evidence 702.
Grandvill Lawes, a merchant mariner visiting San Juan, left his ship with shipmate Carlos Gordon to have dinner in Old San Juan. While walking along the southern sidewalk near the Bahía Urbana construction area, the two encountered a temporary concrete barrier that partially blocked the sidewalk. Rather than return to the permanent crosswalk, they crossed Fernández Juncos Avenue and Calle Del Tren outside the crosswalk and continued along the northern sidewalk.
After dark, Lawes and Gordon began returning toward the piers and again attempted a midblock crossing. Lawes crossed Calle Del Tren and reached the yellow divider on Fernández Juncos, leaving two eastbound lanes between him and the southern sidewalk. When the traffic signal changed, vehicles approached from both directions and Lawes remained on the divider. He was then struck head-on by a westbound Toyota 4Runner driven by Rafaela Riviere-Andino, causing injuries that left him quadriplegic.
Lawes filed a negligence action under Article 1802 of the Puerto Rico Civil Code against public and private entities connected with the Bahía Urbana project. The defendants included Q.B. Construction S.E., Constructora Santiago II, Corp., the Puerto Rico Ports Authority, the Municipality of San Juan, and insurance carriers. His allegations concerned conditions within the construction-affected area and the responsibilities of the entities involved with the project.
Q.B. later asserted third-party claims against Riviere-Andino and her insurer. On November 26, 2013, Q.B. and Riviere-Andino jointly filed a third-party complaint against CSA Architects and Engineers LLP, which designed the project's MOT Plan, as well as Miguel A. Bonilla, Inc., the Puerto Rico Electric Power Authority, and related insurers. Lawes amended his complaint in 2015 to add CSA as a direct defendant.
Plaintiff traffic engineer Ralph Aronberg submitted a three-page preliminary report addressing pedestrian safety and traffic-control conditions near the collision site. His analysis referenced the MUTCD, including its 2003 and 2009 editions, and considered materials such as the police accident report, photographs, site observations, construction information, and lighting records.
That preliminary document remained Aronberg's only written expert report. During later discovery, he reviewed additional evidence and expanded or modified portions of his analysis, creating a dispute over whether Lawes had satisfied the written disclosure and supplementation requirements governing retained experts.
During his second deposition, Aronberg discussed information he had reviewed after preparing his preliminary report. The additional material included CSA traffic engineer Murray Yates's report, other expert materials, deposition testimony, project records, requests for information, meeting minutes, and observations from a nighttime return to the accident location.
Aronberg acknowledged that some opinions had changed, while others had been expanded or explained in greater detail. His deposition covered CSA's MOT design, pedestrian routing, the midblock barrier, sidewalk closure, temporary pedestrian accommodations, and other traffic-control conditions. Although Aronberg considered the testimony supplemental to his report, Lawes did not serve a revised or supplemental written expert report.
Trial began on March 7, 2016. On April 19, the district court began a Daubert hearing to determine whether Aronberg's traffic engineering opinions could be presented to the jury. The proceeding continued for twelve actual hearing days and concluded on May 16.
The court examined both the adequacy of Lawes's disclosures under Federal Rule of Civil Procedure 26 and the reliability of Aronberg's opinions under Federal Rule of Evidence 702. His proposed testimony addressed pedestrian accommodations, roadway configuration, temporary traffic controls, lighting, the midblock barrier, the MOT Plan, and his application of MUTCD provisions to the construction-area conditions.
On June 23, 2016, the district court excluded Aronberg from testifying. The ruling addressed Lawes's incomplete disclosures under Rule 26, the preclusion provisions of Rule 37(c)(1), and the reliability and factual basis of Aronberg's opinions under Rule 702.
The court found that the opinions lacked sufficient supporting data, questioned the reliability of Aronberg's methodology, and concluded that he had not reliably applied traffic engineering principles and methods to the facts of the case. Because Aronberg was Lawes's only retained expert, the court directed Lawes to state whether he intended to continue presenting his case without that testimony.
Lawes proceeded without Aronberg and rested his case on July 6, 2016. Q.B. and CSA then moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).
On September 7, the district court granted the motions. It concluded that, without Aronberg's testimony, Lawes lacked evidence necessary to establish the standard of care applicable to the temporary MOT design. Judgment was entered before the case was submitted to the jury.
Lawes appealed to the First Circuit on October 10, 2016. He challenged the exclusion of Aronberg under the federal disclosure and evidentiary rules and the judgment entered after the expert testimony was removed from the case.
The appeal required the court to separately consider the consequences of deficient expert disclosures and the admissibility of Aronberg's underlying methodology. It also required review of whether complete exclusion was an appropriate Rule 37(c)(1) response given the information CSA had already obtained through discovery and depositions.
During the appellate proceedings, Lawes reached a partial settlement and voluntarily dismissed the remaining appellees other than CSA. On April 19, 2017, the First Circuit granted his unopposed motion to dismiss those parties from the appeal.
CSA remained as the sole appellee when the court considered the expert-disclosure, Rule 702, and resulting judgment questions.
The First Circuit reversed the rulings excluding Aronberg under the federal expert-disclosure rules and Rule 702, vacated the judgment, and remanded the litigation. Lawes did not dispute that his written disclosures failed to comply fully with Rule 26, and the appellate court did not treat Aronberg's deposition testimony as a substitute for the required written report or formal supplementation.
The court instead considered the information CSA had obtained through extensive discovery when evaluating surprise, prejudice, and the appropriateness of complete preclusion under Rule 37(c)(1). It concluded that the record did not show sufficient surprise or prejudice to justify preventing Aronberg from testifying altogether.
The First Circuit separately examined Aronberg's methodology under Rule 702. It found that he had gathered factual material concerning the accident conditions and applied traffic engineering principles, the MUTCD, and other technical materials in forming his opinions. Several weaknesses identified by the district court went to the weight of the testimony and could be tested through cross-examination and competing expert evidence.
The appellate court therefore vacated the judgment entered after Aronberg's exclusion and remanded the case to the District of Puerto Rico. It did not decide the merits of the district court's Rule 50(a) ruling.
Court:
United States Court of Appeals for the First Circuit
Case Name:
Lawes v. CSA Architects & Engineers LLP
Transportation And Traffic Engineering
Pedestrian Accidents
Road Design
Highway Construction
Highway Lighting
Signs and Markings
Accident Investigation and Reconstruction
Transportation Safety
In Lawes v. CSA Architects & Engineers LLP, 963 F.3d 72 (1st Cir. 2020), the U.S. Court of Appeals for the First Circuit reviewed negligence litigation stemming from a pedestrian collision near the Bahía Urbana construction project in San Juan, Puerto Rico. Grandvill Lawes was struck by a vehicle while crossing Fernández Juncos Avenue on October 22, 2011, and sustained injuries that left him quadriplegic.
The dispute concerned pedestrian access, temporary traffic controls, roadway barriers, lighting, and the project's Management of Traffic (MOT) Plan. The proceedings also focused on traffic engineering testimony from Ralph Aronberg, including his reliance on the Manual on Uniform Traffic Control Devices (MUTCD), deficiencies in his written expert disclosures, and whether his opinions satisfied the admissibility requirements of Federal Rule of Evidence 702.
Grandvill Lawes, a merchant mariner visiting San Juan, left his ship with shipmate Carlos Gordon to have dinner in Old San Juan. While walking along the southern sidewalk near the Bahía Urbana construction area, the two encountered a temporary concrete barrier that partially blocked the sidewalk. Rather than return to the permanent crosswalk, they crossed Fernández Juncos Avenue and Calle Del Tren outside the crosswalk and continued along the northern sidewalk.
After dark, Lawes and Gordon began returning toward the piers and again attempted a midblock crossing. Lawes crossed Calle Del Tren and reached the yellow divider on Fernández Juncos, leaving two eastbound lanes between him and the southern sidewalk. When the traffic signal changed, vehicles approached from both directions and Lawes remained on the divider. He was then struck head-on by a westbound Toyota 4Runner driven by Rafaela Riviere-Andino, causing injuries that left him quadriplegic.
Lawes filed a negligence action under Article 1802 of the Puerto Rico Civil Code against public and private entities connected with the Bahía Urbana project. The defendants included Q.B. Construction S.E., Constructora Santiago II, Corp., the Puerto Rico Ports Authority, the Municipality of San Juan, and insurance carriers. His allegations concerned conditions within the construction-affected area and the responsibilities of the entities involved with the project.
Q.B. later asserted third-party claims against Riviere-Andino and her insurer. On November 26, 2013, Q.B. and Riviere-Andino jointly filed a third-party complaint against CSA Architects and Engineers LLP, which designed the project's MOT Plan, as well as Miguel A. Bonilla, Inc., the Puerto Rico Electric Power Authority, and related insurers. Lawes amended his complaint in 2015 to add CSA as a direct defendant.
Plaintiff traffic engineer Ralph Aronberg submitted a three-page preliminary report addressing pedestrian safety and traffic-control conditions near the collision site. His analysis referenced the MUTCD, including its 2003 and 2009 editions, and considered materials such as the police accident report, photographs, site observations, construction information, and lighting records.
That preliminary document remained Aronberg's only written expert report. During later discovery, he reviewed additional evidence and expanded or modified portions of his analysis, creating a dispute over whether Lawes had satisfied the written disclosure and supplementation requirements governing retained experts.
During his second deposition, Aronberg discussed information he had reviewed after preparing his preliminary report. The additional material included CSA traffic engineer Murray Yates's report, other expert materials, deposition testimony, project records, requests for information, meeting minutes, and observations from a nighttime return to the accident location.
Aronberg acknowledged that some opinions had changed, while others had been expanded or explained in greater detail. His deposition covered CSA's MOT design, pedestrian routing, the midblock barrier, sidewalk closure, temporary pedestrian accommodations, and other traffic-control conditions. Although Aronberg considered the testimony supplemental to his report, Lawes did not serve a revised or supplemental written expert report.
Trial began on March 7, 2016. On April 19, the district court began a Daubert hearing to determine whether Aronberg's traffic engineering opinions could be presented to the jury. The proceeding continued for twelve actual hearing days and concluded on May 16.
The court examined both the adequacy of Lawes's disclosures under Federal Rule of Civil Procedure 26 and the reliability of Aronberg's opinions under Federal Rule of Evidence 702. His proposed testimony addressed pedestrian accommodations, roadway configuration, temporary traffic controls, lighting, the midblock barrier, the MOT Plan, and his application of MUTCD provisions to the construction-area conditions.
On June 23, 2016, the district court excluded Aronberg from testifying. The ruling addressed Lawes's incomplete disclosures under Rule 26, the preclusion provisions of Rule 37(c)(1), and the reliability and factual basis of Aronberg's opinions under Rule 702.
The court found that the opinions lacked sufficient supporting data, questioned the reliability of Aronberg's methodology, and concluded that he had not reliably applied traffic engineering principles and methods to the facts of the case. Because Aronberg was Lawes's only retained expert, the court directed Lawes to state whether he intended to continue presenting his case without that testimony.
Lawes proceeded without Aronberg and rested his case on July 6, 2016. Q.B. and CSA then moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).
On September 7, the district court granted the motions. It concluded that, without Aronberg's testimony, Lawes lacked evidence necessary to establish the standard of care applicable to the temporary MOT design. Judgment was entered before the case was submitted to the jury.
Lawes appealed to the First Circuit on October 10, 2016. He challenged the exclusion of Aronberg under the federal disclosure and evidentiary rules and the judgment entered after the expert testimony was removed from the case.
The appeal required the court to separately consider the consequences of deficient expert disclosures and the admissibility of Aronberg's underlying methodology. It also required review of whether complete exclusion was an appropriate Rule 37(c)(1) response given the information CSA had already obtained through discovery and depositions.
During the appellate proceedings, Lawes reached a partial settlement and voluntarily dismissed the remaining appellees other than CSA. On April 19, 2017, the First Circuit granted his unopposed motion to dismiss those parties from the appeal.
CSA remained as the sole appellee when the court considered the expert-disclosure, Rule 702, and resulting judgment questions.
The First Circuit reversed the rulings excluding Aronberg under the federal expert-disclosure rules and Rule 702, vacated the judgment, and remanded the litigation. Lawes did not dispute that his written disclosures failed to comply fully with Rule 26, and the appellate court did not treat Aronberg's deposition testimony as a substitute for the required written report or formal supplementation.
The court instead considered the information CSA had obtained through extensive discovery when evaluating surprise, prejudice, and the appropriateness of complete preclusion under Rule 37(c)(1). It concluded that the record did not show sufficient surprise or prejudice to justify preventing Aronberg from testifying altogether.
The First Circuit separately examined Aronberg's methodology under Rule 702. It found that he had gathered factual material concerning the accident conditions and applied traffic engineering principles, the MUTCD, and other technical materials in forming his opinions. Several weaknesses identified by the district court went to the weight of the testimony and could be tested through cross-examination and competing expert evidence.
The appellate court therefore vacated the judgment entered after Aronberg's exclusion and remanded the case to the District of Puerto Rico. It did not decide the merits of the district court's Rule 50(a) ruling.
Traffic Engineering Expert Witnesses: Ralph Aronberg (Plaintiff), Murray Yates (CSA), and Fred Hanscom (Q.B.)
Ralph Aronberg evaluated pedestrian safety, roadway configuration, temporary traffic controls, lighting, the MOT Plan, and MUTCD provisions for Lawes. Murray Yates addressed CSA's traffic-control design and the roles of other project participants in implementation and monitoring, while Fred Hanscom evaluated pedestrian crossing behavior, signage, illumination, the barrier, traffic-control responsibilities, and MUTCD-related subjects for Q.B.
Accident Reconstruction Expert Witnesses: Iván Baigés Valentín and Steven Schorr (Riviere-Andino)
Iván Baigés Valentín performed accident reconstruction work involving site measurements, visibility and lighting conditions, vehicle speed, reaction time, and a reconstruction diagram. Steven Schorr was also retained by Riviere-Andino as an accident reconstruction expert, although the reported appellate record provides less detail concerning the substance of his opinions.
MUTCD Standards and Temporary Pedestrian Traffic Control
The MUTCD provided part of the technical framework used to evaluate pedestrian movement through the construction-affected area. Because the MOT Plan incorporated the MUTCD by reference, Aronberg considered its temporary traffic-control provisions when analyzing pedestrian guidance, barriers, routing, and other conditions around the project.
The dispute was not limited to whether a particular MUTCD provision existed. The parties also disagreed over how the standards applied to the conditions encountered by Lawes and how responsibility should be allocated between the entity that designed the traffic-control plan and those responsible for field implementation.
MOT Design and Field Implementation
CSA designed the MOT Plan governing vehicular and pedestrian traffic around the Bahía Urbana construction work, while Q.B. was responsible for implementing that design. This distinction became part of the negligence analysis because the alleged conditions at the site could potentially stem from the design itself, the way the plan was implemented, or subsequent monitoring and maintenance.
Expert testimony therefore addressed both the content of the MOT Plan and the physical conditions that existed near the collision location. The evidence included pedestrian routing, sidewalk access, barriers, lighting, signs, roadway configuration, and the operation of temporary traffic-control measures.
Rule 26 Disclosure and Rule 37 Preclusion Are Separate Questions
Federal Rule of Civil Procedure 26 requires a retained expert's written report to state the opinions the witness expects to offer and the basis and reasons for those opinions, along with other required information. Lawes did not dispute on appeal that Aronberg's written disclosures were deficient.
The separate question was whether those deficiencies justified excluding the expert entirely under Rule 37(c)(1). The First Circuit considered what CSA had learned through Aronberg's depositions and other discovery when evaluating surprise and prejudice, even though the deposition testimony did not replace the missing written supplementation required by Rule 26.
Rule 702 Admissibility Focused on Methodology, Not Disclosure Compliance
The Rule 702 analysis addressed a different question: whether Aronberg's opinions rested on sufficient facts or data and whether he reliably applied traffic engineering principles and methods. The First Circuit concluded that Aronberg's site investigation, review of accident and project materials, and application of the MUTCD and other traffic engineering sources provided an admissible methodological foundation.
The court distinguished weaknesses that may affect the persuasiveness of an expert's opinion from defects that require exclusion. Questions about particular assumptions, factual disagreements, or competing interpretations could be tested before the jury through cross-examination and opposing expert testimony.
By the time the case reached the First Circuit, the central appellate dispute concerned two separate rulings that had removed Lawes's traffic engineering evidence from the case: preclusion for deficient disclosures and exclusion under Rule 702. The appellate court agreed that the written expert disclosures were incomplete but concluded that the discovery record did not support barring Aronberg from testifying altogether. It also found that his investigation and traffic engineering methodology satisfied the threshold for admissibility.
The First Circuit vacated the judgment that followed Aronberg's exclusion and returned the litigation to the District of Puerto Rico. Because the appellate court did not resolve the merits of the Rule 50(a) judgment, the remand restored the case for further proceedings rather than deciding the underlying negligence claims.
What happened in Lawes v. CSA Architects and Engineers?
Grandvill Lawes was struck by a vehicle while making a midblock crossing near the Bahía Urbana construction project in San Juan, Puerto Rico. His negligence claims involved pedestrian conditions, temporary traffic controls, and the responsibilities of entities connected with the construction project.
Who served as the plaintiff's traffic engineering expert?
Ralph Aronberg served as Lawes's traffic engineering expert. He evaluated pedestrian routing, roadway configuration, temporary traffic controls, lighting, the MOT Plan, and MUTCD provisions.
Why was Ralph Aronberg initially excluded from testifying?
The district court found deficiencies in Lawes's Rule 26 expert disclosures and imposed preclusion under Rule 37(c)(1). It also concluded that Aronberg's opinions did not satisfy Rule 702 because of concerns about their factual basis, methodology, and application.
What did the First Circuit rule in 2020?
The First Circuit reversed the rulings excluding Aronberg, vacated the resulting judgment, and remanded the litigation. It concluded that total preclusion was not justified on the record and that Aronberg's traffic engineering methodology met the threshold for admissibility under Rule 702.
How did the MUTCD relate to the litigation?
The MUTCD was incorporated by reference into the project's MOT Plan and provided standards addressing temporary traffic control and pedestrian accommodations. Aronberg relied on those provisions when evaluating the design and conditions surrounding the construction area.
Traffic Engineering Expert Witnesses: Ralph Aronberg (Plaintiff), Murray Yates (CSA), and Fred Hanscom (Q.B.)
Ralph Aronberg evaluated pedestrian safety, roadway configuration, temporary traffic controls, lighting, the MOT Plan, and MUTCD provisions for Lawes. Murray Yates addressed CSA's traffic-control design and the roles of other project participants in implementation and monitoring, while Fred Hanscom evaluated pedestrian crossing behavior, signage, illumination, the barrier, traffic-control responsibilities, and MUTCD-related subjects for Q.B.
Accident Reconstruction Expert Witnesses: Iván Baigés Valentín and Steven Schorr (Riviere-Andino)
Iván Baigés Valentín performed accident reconstruction work involving site measurements, visibility and lighting conditions, vehicle speed, reaction time, and a reconstruction diagram. Steven Schorr was also retained by Riviere-Andino as an accident reconstruction expert, although the reported appellate record provides less detail concerning the substance of his opinions.
MUTCD Standards and Temporary Pedestrian Traffic Control
The MUTCD provided part of the technical framework used to evaluate pedestrian movement through the construction-affected area. Because the MOT Plan incorporated the MUTCD by reference, Aronberg considered its temporary traffic-control provisions when analyzing pedestrian guidance, barriers, routing, and other conditions around the project.
The dispute was not limited to whether a particular MUTCD provision existed. The parties also disagreed over how the standards applied to the conditions encountered by Lawes and how responsibility should be allocated between the entity that designed the traffic-control plan and those responsible for field implementation.
MOT Design and Field Implementation
CSA designed the MOT Plan governing vehicular and pedestrian traffic around the Bahía Urbana construction work, while Q.B. was responsible for implementing that design. This distinction became part of the negligence analysis because the alleged conditions at the site could potentially stem from the design itself, the way the plan was implemented, or subsequent monitoring and maintenance.
Expert testimony therefore addressed both the content of the MOT Plan and the physical conditions that existed near the collision location. The evidence included pedestrian routing, sidewalk access, barriers, lighting, signs, roadway configuration, and the operation of temporary traffic-control measures.
Rule 26 Disclosure and Rule 37 Preclusion Are Separate Questions
Federal Rule of Civil Procedure 26 requires a retained expert's written report to state the opinions the witness expects to offer and the basis and reasons for those opinions, along with other required information. Lawes did not dispute on appeal that Aronberg's written disclosures were deficient.
The separate question was whether those deficiencies justified excluding the expert entirely under Rule 37(c)(1). The First Circuit considered what CSA had learned through Aronberg's depositions and other discovery when evaluating surprise and prejudice, even though the deposition testimony did not replace the missing written supplementation required by Rule 26.
Rule 702 Admissibility Focused on Methodology, Not Disclosure Compliance
The Rule 702 analysis addressed a different question: whether Aronberg's opinions rested on sufficient facts or data and whether he reliably applied traffic engineering principles and methods. The First Circuit concluded that Aronberg's site investigation, review of accident and project materials, and application of the MUTCD and other traffic engineering sources provided an admissible methodological foundation.
The court distinguished weaknesses that may affect the persuasiveness of an expert's opinion from defects that require exclusion. Questions about particular assumptions, factual disagreements, or competing interpretations could be tested before the jury through cross-examination and opposing expert testimony.
By the time the case reached the First Circuit, the central appellate dispute concerned two separate rulings that had removed Lawes's traffic engineering evidence from the case: preclusion for deficient disclosures and exclusion under Rule 702. The appellate court agreed that the written expert disclosures were incomplete but concluded that the discovery record did not support barring Aronberg from testifying altogether. It also found that his investigation and traffic engineering methodology satisfied the threshold for admissibility.
The First Circuit vacated the judgment that followed Aronberg's exclusion and returned the litigation to the District of Puerto Rico. Because the appellate court did not resolve the merits of the Rule 50(a) judgment, the remand restored the case for further proceedings rather than deciding the underlying negligence claims.
What happened in Lawes v. CSA Architects and Engineers?
Grandvill Lawes was struck by a vehicle while making a midblock crossing near the Bahía Urbana construction project in San Juan, Puerto Rico. His negligence claims involved pedestrian conditions, temporary traffic controls, and the responsibilities of entities connected with the construction project.
Who served as the plaintiff's traffic engineering expert?
Ralph Aronberg served as Lawes's traffic engineering expert. He evaluated pedestrian routing, roadway configuration, temporary traffic controls, lighting, the MOT Plan, and MUTCD provisions.
Why was Ralph Aronberg initially excluded from testifying?
The district court found deficiencies in Lawes's Rule 26 expert disclosures and imposed preclusion under Rule 37(c)(1). It also concluded that Aronberg's opinions did not satisfy Rule 702 because of concerns about their factual basis, methodology, and application.
What did the First Circuit rule in 2020?
The First Circuit reversed the rulings excluding Aronberg, vacated the resulting judgment, and remanded the litigation. It concluded that total preclusion was not justified on the record and that Aronberg's traffic engineering methodology met the threshold for admissibility under Rule 702.
How did the MUTCD relate to the litigation?
The MUTCD was incorporated by reference into the project's MOT Plan and provided standards addressing temporary traffic control and pedestrian accommodations. Aronberg relied on those provisions when evaluating the design and conditions surrounding the construction area.
Transportation And Traffic Engineering
Pedestrian Accidents
Road Design
Highway Construction
Highway Lighting
Signs and Markings
Accident Investigation and Reconstruction
Transportation Safety
Geotechnical Engineering, +4
Construction
Industrial Hygiene, +7
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