This case involves claims raised by Plaintiffs Kyle and Annaleah Justice against Defendants Bestway USA and Rural King Holdings, Inc. under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.
Plaintiffs raised five claims against Bestway USA: Count I – Strict Liability Design Defect; Count II – Strict Liability Failure to Warn; Count III – Negligence (under theories of both negligent design and negligent failure to warn); Count IV – Breach of Express Warranty; and Count V – Breach of Implied Warranty.
Kyle and Annaleah Justice filed a motion to exclude Fred Semke, Defendant Bestway (USA), Inc.’s retained engineering expert.
Structural Engineering Expert Witness
Fred Semke is President of Semke Forensic and was hired by Bestway USA to “render professional opinions regarding the pool.” Semke has a bachelor’s degree in mechanical engineering and a master’s degree in engineering mechanics. He is a Registered Professional Engineer in Missouri, Illinois, Arkansas, Kentucky, Kansas, Oklahoma, Iowa, Alabama, and Idaho. He also has fourteen (14) years of experience as a structural engineer.
Discussion by the Court
Semke’s report stated that he plans to testify to the following:
- During the Warren County Sheriff’s evaluation of the subject pool, the top of the support band was measured at 14.5 inches from the ground . . . with the overall height of the pool being 51.5 inches . . . . As such, the distance between the top of the pool and the top of the support band was 37 inches.
- Kyle Justice testified [E.M.J.] “…couldn’t climb up into that tree house… because the ladder rungs were too tall.” The ladder rungs were measured by Semke and found to be 25 inches from the base of the ladder . . . . Furthermore, Mary Flake, E.M.J’s grandmother, relayed to Semke during the inspection of the premises that [E.M.J.] was unable to climb onto the family’s 34-inch high trampoline . . . without assistance.
- Considering the aforementioned statements made by Justice and Flake, in conjunction with the measured heights, it was inconsistent with [E.M.J.] using the pool support band as a stepping location to pull herself into the pool.
- The design of the subject pool was not unique; rather, it was consistent with other polyvinyl chloride pools. The subject pool, and similar pools, require the support band near the bottom of the pool to resist the hydrostatic pressure at the base of the wall. In addition, the band also serves as a support for the vertical posts of the pool frame.
- Based on the indicated analysis, the pool did not contain design or manufacturing deficiencies.
Plaintiffs’ Position
Plaintiffs argued that Semke’s testimony should be excluded because (1) he is not qualified to provide opinions regarding pool engineering; (2) Opinions 1, 2, and 3 are mere statements of fact or simple inference that do not require expert testimony; (3) Opinion 4 is not based on sufficient facts or data; and (4) Opinion 5 is a legal opinion. They separately argued that several opinions Semke testified to during his deposition were not disclosed in his expert report and should therefore be excluded. Plaintiffs challenged Semke’s qualifications to testify regarding pool design. Specifically, Plaintiffs argued that Semke lacked experience or training specifically related to biomechanical engineering, human factors analysis, and above-ground pool design.
Analysis
Semke is Qualified to Express Opinions Regarding the Pool’s Design
Semke, an experienced engineer with degrees in mechanical engineering and engineering mechanics, is qualified to testify in the field of engineering. This includes testimony regarding the engineering implications of the pool’s design and the function of the pool’s nylon support strap. The Court held that Semke is not required to have further specialization in aquatic engineering to offer these opinions; it is sufficient that he has expertise in engineering and structural design.
Despite not having specific experience in evaluating pool designs or in designing pools, Semke can offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.
Opinions 1, 2, and 3
Plaintiffs argued that Semke’s Opinions 1, 2, and 3 should be excluded because they are statements of fact and not expert opinions. Plaintiffs contended that Semke’s statements about the height of the pool wall, the nylon strap, and the distance between them are facts that the jury does not need expert testimony to understand.
The Court held that the simple math and the previous testimony of Kyle Justice and Mary Flake are mere statements of fact that can be established without reliance on opinion evidence. To be clear, Semke will be permitted to testify regarding the measurements his firm took at the Flake residence and to explain the process he used to arrive at some of his conclusions, but the jury does not need his assistance to determine the difference between 51.5” and 14.5”.
Similarly, no expertise is necessary for the jury to understand the lay testimony of Kyle Justice and Mary Flake. The jury itself can make its own inferences regarding whether E.M.J. was able to scale the pool wall based on testimony regarding its height and her known climbing abilities. Semke’s opinion testimony that the theory that E.M.J. accessed the pool by standing on the nylon support strap is inconsistent with her family’s testimony about her climbing abilities is simply an inference that the jury can arrive it through its own knowledge and experience.
Opinion 4
Plaintiffs averred that Opinion 4—specifically that the pool’s design was not unique—is not based on sufficient facts or data because Semke testified that he has not evaluated any other pool designs. Plaintiffs argued that Semke’s lack of experience with pool engineering prevents him from forming a conclusion about the pool’s design or how it compares to the design of other pools.
The Court held that Semke will be permitted to testify regarding the purpose of the pool’s nylon support strap in its design. Semke testified at deposition that the pool’s nylon support strap is a “structural item” used to ensure the structural integrity of the pool’s walls, which are pushed outward by the weight of the water in the pool when the pool is filled. He will also be permitted to testify regarding the effect the pressure on the structure would have on the potential gap between the nylon support strap and the pool’s exterior wall, and therefore its utility as a foothold. The Court noted that Semke arrived at these conclusions using his engineering expertise.
However, Semke will be precluded from testifying that the design of the pool was “not unique” and “was consistent with other polyvinyl chloride pools.” By his own admission, Semke was not asked to evaluate any other pool designs and he did not do so.
Opinion 5
Plaintiffs represented that Opinion 5 is merely a legal conclusion and therefore should be excluded. Though Plaintiffs recognized that the opinion does not specifically state that the pool design was not “defective,” they argued that the opinion that the pool “did not contain design or manufacturing deficiencies” is a thinly veiled attempt to provide a legal conclusion regarding the pool’s alleged design defect.
The Court held that Semke is qualified to testify regarding the pool’s design, and his testimony here regarding the lack of deficiencies in the pool’s design does not present a legal conclusion. Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much.
Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. Despite what Plaintiffs claim, this opinion does not require Semke to have evaluated the designs of other pools because this opinion pertains only to the pool at issue in this case, and Plaintiffs can certainly cross-examine him in this regard. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design. This is permissible expert testimony that will help the jury to determine whether the pool had a design defect, and the Court will deny Plaintiffs’ attempt to exclude this opinion.
Opinions Not Disclosed in Semke’s Expert Report
Plaintiffs also opposed the admission of several opinions Semke only expressed during his deposition testimony and were not included in his expert report. These include Semke’s opinions that: (1) E.M.J. was not adequately supervised at the time of her drowning; (2) E.M.J. could have used a bucket to enter the pool; (3) E.M.J. could have used the pool ladder to enter the pool; (4) E.M.J. could have climbed the pool’s support poles to enter the pool. Plaintiffs argued that because these opinions were only raised at deposition and were not shared in Semke’s expert report, as required by Federal Rule of Civil Procedure 26, they are inadmissible.
The Court noted that Bestway USA has made no attempt to supplement Semke’s report to include these opinions as required by Fed. R. Civ. P. 26(a)(2)(E) and 26(e)(2), and therefore the opinions have not been disclosed as required by Rule 26(a)(2)(B)(i).
Inasmuch as Semke’s report contains no information regarding these opinions, Plaintiffs and the Court have been unable to fully assess how Semke arrived at those opinions and on what data he bases such opinions. Semke’s report includes no analysis of other ways that E.M.J. could have entered the pool, and he provides no reasonable engineering basis for any opinions regarding alternative methods. Because these opinions were not properly disclosed and because Bestway USA has not shown by a preponderance of the evidence that Semke arrived at them through the reliable application of an engineering methodology to the facts and data in this case, the Court excluded these opinions to the extent that Bestway USA attempts to elicit them on direct examination of Semke.
Held
The Court granted in part and denied in part the Plaintiff’s motion to exclude Fred Semke.
Key Takeaways:
- Despite not having specific experience in evaluating pool designs or in designing pools, Semke was allowed to offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.
- Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much. Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design.
Please refer to the blog previously published about this case:
Mechanical Engineering Expert Witness’ Testimony Could Mislead the Jury as to Defendant’s duties
Case Details:
| Case Caption: | Kyle Justice Et Al V. Safeway (Usa), Inc. Et Al |
| Docket Number: | 4:22cv50 |
| Court: | United States District Court, Missouri Eastern |
| Order Date: | November 21, 2024 |
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