This case arises from a boating accident at Lake Powell on July 29, 2018. Plaintiff, while aboard a Moomba Mondo ski boat purchased from Rocky Mountain Boat Company (ROMOBOCO), was injured when a carabiner (the Subject Carabiner) suddenly failed and struck her in the head. Plaintiff survived, but she allegedly suffers from permanent disabilities due to the accident. Unfortunately for all parties, shortly after the accident, the rope and carabiner at issue were disposed of by another passenger on the boat.
On July 20, 2020, Plaintiff filed suit against ROMOBOCO, the seller of the Moomba, and later amended the complaint to add two companies believed to be involved in the manufacturing and/or distribution of the Subject Carabiner, Attwood Corporation and Land ‘N’ Sea Distributing, Inc.
Attwood and LNS filed a motion to strike Plaintiff’s expert, Dr. Adam Aleksander, contending his product identification opinion is unreliable.
Aleksander concluded that the carabiner clip that struck Plaintiff (the “Subject Carabiner Clip”) is “one and the same product” as an anchor line and rope product sold by Defendant Attwood Corporation (the “Attwood 11723-7”) and that “there are no significant differences between” the Attwood 11723-7 product and the “device in the incident injury.”
Mechanical Engineering Expert Witness
Adam Aleksander holds Mechanical Engineering degrees from San Jose State University (B.S.) and the University of Colorado (M.E), and an Industrial Engineering degree from Texas A&M University (Ph.D.).
He is experienced in investigation techniques, reconstruction, photogrammetry, and reconstruction of incidents that involve property loss, injuries and fatalities. Aleksander’s PhD training is in Human Factors Engineering and Safety Engineering.
Discussion by the Court
Aleksander was not in a Position to Differentiate between the Defendant’s Product and its Competitors
Aleksander came to his product identification opinion based on a comparison of a photograph of the Attwood 11723-7 and a photograph taken by the National Park Service (“NPS”) of the the Subject Carabiner Clip. However, he also identified key differences between the Subject Carabiner and the Attwood 11723-7.
His opinion is not that he thinks the Subject Carabiner is the Attwood product to the exclusion of other products. Similar products made by other manufacturers constitutes an obvious alternative explanation. While it is not necessary to rule out every possible alternative, it is necessary to account for obvious alternatives. In his deposition, Aleksander testified that he did not compare any other product with the NPS photographs.
The Court, therefore, finds that Aleksander’s opinion is not based on sufficient facts, because he failed to consider any alternative product that could have been the Subject Carabiner.
Aleksander did not use a Physical Exemplar of the Attwood 11723-7 to Reach his Conclusions
Attwood and LNS argued that Aleksander’s opinions are not based on a reliable application of his methodology to the facts, because he did not use a physical exemplar of the Attwood 11723-7 to reach his conclusions. Instead, he digitally inverted the photograph of the Attwood 11723-7 to match the orientation of NPS photograph.
The reliability of the application of this methodology is questionable; however, the Court need not address it because, as explained above, the failure to compare the photograph to other potential products makes the product identification opinion unreliable.
Finally, all disclosures under Rule 26 have to be in writing, signed, and served. However, the Court did not consider the supplemental report because it is not related to Aleksander’s product identification opinion.
Held
The Court granted Attwood and LNS’ motion to strike Plaintiff’s expert, Dr. Adam Aleksander.
Key Takeaway:
Aleksander failed to consider any alternative product that could have been the Subject Carabiner. Similar products made by other manufacturers constitutes an obvious alternative explanation. While it is not necessary to rule out every possible alternative, it is necessary to account for obvious alternatives. In his deposition, Aleksander testified that he did not compare any other product with the NPS photographs.
Case Details:
| Case Caption: | Marandola V. Pueblo Suzuki, Inc. Et Al |
| Docket Number: | 1:20cv2113 |
| Court: | United States District Court, Colorado |
| Order Date: | September 26, 2024 |
Leave a Reply