This is a strict products liability and negligence case against Adams, the manufacturer of a plastic Adirondack chair that failed and rendered Ronald Scanlan a quadriplegic.
The Defendant filed motions to exclude opinions of three of the Plaintiff’s expert witnesses: Russell Dunn, Clifford Tribus and Joellen Gill. The Plaintiff filed a motion to exclude opinions of the Defendant‘s expert witness, Dr. David Jones.
Economics Expert Witness
David DeHaven Jones has over 40 years of experience in Economics and Forensic Economics. He earned his BA from the College of Wooster in 1966, and his MA and Ph.D. from Indiana University in 1968 and 1975, respectively.
Among other roles, Jones served as a Professor of Economics at the University of St. Thomas and as the Director of Policy Analysis at the Minnesota Department of Economic Development. He has authored numerous publications, including “A Note on Life Expectancy and Mortality Adjustment,” Journal of Legal Economics.
Russell Franklin Dunn is a Ph.D. chemical engineer, who has spent his career working in plastics manufacturing and teaching plastics engineering and safety at Vanderbilt University.
Clifford Boehe Tribus is a fellowship-trained, board-certified spine surgeon. He is a graduate of Johns Hopkins Medical School. His fellowship training was in spine surgery. He has been a professor of neurosurgery and orthopedics at the University of Wisconsin Medical School for over 30 years.
Joellen Gill attended Georgia Tech and Wright State Universities for her undergraduate work, earning a BS in human factors engineering in 1979. Her nearly four-decade career includes 15 years in aerospace and national defense industries as a human factors engineer specializing in safety and risk management.
Gill started part time at ACS in 1994 after completing a master’s degree in engineering, accepted a full-time position in 2005, then, after obtaining certification as a Human Factors Professional, was lead engineer on her first case just a year later. She is also a licensed tribometrist and a Certified Safety Professional.
The Plaintiff sought to exclude Jones’ testimony regarding the “mortality adjustment” and “worklife adjustment” applied to reduce the Plaintiff’s future damages.
Jones’s worklife adjustment to the Plaintiff’s future earning capacity is improper under Wisconsin law. To calculate the Plaintiff’s lost future earning capacity, the finder of fact must determine how many years the Plaintiff is expected to work and then assess the Plaintiff’s earning capacity for those years. For example, it would not make sense for the jury to determine that the Plaintiff could have worked until age 65, but then to reduce his earning capacity based on the likelihood that he would not be working at age 65. Jones’ “potential earnings loss” table reduced the Plaintiff’s potential earnings in each year based on a probability that the Plaintiff would not be working.
That necessarily underestimated the Plaintiff’s future earnings in the years that the jury decided the Plaintiff likely would be working. The Court granted the Plaintiff’s motion to exclude evidence of Jones’ worklife expectancy opinions as irrelevant and confusing to the jury.
The Court also excluded Jones’ “mortality adjustment” opinions for similar reasons. To support an award of future health care expenses under Wisconsin law, (1) there must be expert testimony of permanent injuries, requiring future medical treatment and the incurring of future medical expenses; and (2) an expert must establish the cost of such medical expenses.
Russell Dunn
The Defendant contended that Dunn’s opinions are not reliable because he relied solely on testing that ATS performed on the chair. This argument has no merit; an expert is entitled to base his opinion on reports or data generated by another.
The Defendant next argued that Dunn’s opinions related to risk management lacked sufficient scientific and factual foundation because he relied on two documents when forming these opinions and excluded consideration of the Defendant’s quality assurance standard operating procedures.
At trial, the Defendant will have the opportunity to cross-examine Dunn regarding the documents he did or did not consider when forming these opinions.
Next, the Defendant argued that Dunn’s alternative design proposals are not supported by sufficient facts or data or are not the product of reliable principles and methods. However, the Court found that Dunn’s report was sufficient to place the Defendant on notice that the Plaintiff may argue that the addition of antioxidants to the chair’s polymer is a safer alternative design.
The Defendant argued that Dunn’s opinions on the root cause of the chair’s failure are not reliable because he failed to consider the Plaintiff’s intoxication at the time of the accident. The fact that an alternative explanation or contributing cause existed did not make Dunn’s opinion unreliable.
The Defendant argued that Dunn’s opinions related to the Defendant not meeting the outdoor furniture industry’s standard of care were not supported by sufficient facts or data. Dunn was entitled to rely on the representative’s sworn testimony to conclude that the Defendant did not test for oxidative degradation. Therefore, the Court cannot conclude Dunn was wrong in relying on the information the Defendant produced in discovery.
Clifford Tribus
The Defendant argued that the Court should exclude the Plaintiff’s expert Clifford Tribus because he was not timely disclosed as a principal expert and was improperly designated as a rebuttal expert.
Tribus’ report rebuts the Defendant’s biomechanical expert’s conclusion that the severity of the injury indicates the Plaintiff must have been in motion when the injury occurred. Tribus was properly designated as a rebuttal expert.
The Defendant also argued that Tribus’ opinions are not based on sufficient facts or data and are unreliable. Tribus testified that he relied on the Plaintiff’s CT scan and MRI imaging to determine that a low velocity fall could have caused the Plaintiff’s injuries; he did not review any scholarly publications or perform additional research. This is despite the fact Tribus wrote in his report that he had reviewed literature regarding Diffuse Idiopathic Skeletal Hyperostosis (DISH).
Moreover, Tribus’ repeated statements that he formed his opinion based on a “generic approach” to DISH injuries does not explain the “methodologies and principles” underlying his opinion in this specific case. Further, though Tribus stated in his opinion that “the literature demonstrates” that DISH patients could suffer severe consequences from slow falls, his testimony reveals that he could not identify any piece of “literature” upon which he relied to form this opinion. That calls into question the reliability of his conclusions. The Court cannot determine if the “literature” on which Tribus relied is sufficient because Tribus does not identify that literature.
Joellen Gill
The Defendant contended that Gill is not qualified as a chair designer and cannot opine about the chair’s design.
Gill never opined about how the Defendant could remedy the alleged hazards of the chair by changing the physical design of the chair. Gill did opine about possible warnings that the Defendant could have used to reduce the risk inherent in the design, using her knowledge of human behavior. But the presence or absence of a warning label has nothing to do with the physical design of the chair. Gill did not opine on chair design, so whether she is qualified to opine on chair design is irrelevant. Because the Defendant provided no other basis for exclusion, the Court denied the Defendant’s motion to exclude with regard to these opinions.
The Defendant also argued that Gill did not consider any facts outside of the Plaintiff’s counsel’s version of events.
Gill’s opinion is that the Plaintiff’s decision to sit on the chair arm was foreseeable human behavior. Gill elaborated in her deposition that her “opinions are focused on were the actions that were engaged in by this person who was injured, were they consistent with foreseeable human behavior. And, in this case, somebody sitting on the arm of a chair to facilitate a conversation is—it was certainly foreseeable behavior.”
The Plaintiff’s state of mind or motivations—that is, why he chose to sit on the chair arm—are not encompassed in Gill’s opinion about whether the decision to sit on the arm of a chair is foreseeable human behavior. So the Plaintiff’s decision-making process and whether that decision-making process was impaired by his intoxication are not relevant to Gill’s opinion that his actions were consistent with the foreseeable behavior of an outdoor chair user.
Held
The Court granted the Plaintiff’s motion to exclude portions of Dr. David Jones’ opinions.
The Court denied the Defendant’s motion to exclude portions of Dr. Russell Dunn’s opinions.
The Court granted the Defendant’s motion to exclude Dr. Clifford Tribus’ opinions.
The Court denied the the Defendant’s motion to exclude Joellen Gill’s opinions.
Key Takeaway
The expert must explain how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.
Plaintiff, a manufacturer of materials (e.g., nylon), contracted with Defendant to provide railcar switching services at Plaintiff’s Pensacola plant. On November 24, 2023, Defendant misidentified a railcar containing resin and delivered it to the phenol unloading area at Plaintiff’s plant.
The resin railcar was unloaded into Plaintiff’s phenol holding tank, and Plaintiff alleged that the resin then contaminated the reactor unit that normally draws phenol from the tank. Plaintiff further claimed that contamination permanently damaged the reactor’s catalyst and resulted in an extended shutdown of certain plant operations.
Defendant designated expert Bruce Williams to opine on the procedures that resulted in the phenol contamination and the subsequent damage to the reactor’s catalyst.
As to the contamination, Williams concluded it was caused by Plaintiff’s employees falsely claiming the resin railcar contained phenol and that it was on the approved unloading list. He also noted that Plaintiff should have been aware that resin had been unloaded into the tank based on the tank’s level data. Williams concluded that the damage to the catalyst was caused by Plaintiff overfeeding liquid into the reactor, not the resin contamination.
Plaintiff sought to exclude portions of Williams’ testimony as premised on unsupported statements and unreliable inputs.
Chemical Engineering Expert Witness
Bruce C. Williams has over 46 years of experience working for Dow Chemical, Novus International, and Covestro AG where he has designed, constructed, and operated chemical plants across a variety of technologies and countries.
A. Williams’ opinion on the length of time the pump operated should not be excluded
A key part of the Parties’ dispute involves whether Plaintiff should have been aware that resin had been unloaded into the phenol tank. Plaintiff contended that its operators “experienced unloading issues,” and required additional confirmation that resin was unloaded.
Williams opined that the Plaintiff should have realized resin had been unloaded from the railcar into the phenol tank because, he claimed, the unloading pump ran for over an hour, moving at least some resin into the phenol tank.
As demonstrated in his report and discussed during his deposition, Williams arrived at the conclusion that the pump operated for this amount of time by considering the operators’ statements in light of the pump’s technical features. He explained that although the meter indicating whether material was flowing through the pump may have shown there was no flow, the fact the pump continued to operate without triggering the automatic shutoff—which occurs when there is no flow, low flow, or high flow—demonstrated flow and that resin was being unloaded from the railcar. He further argued that no indicators of no flow, low flow, or high flow were present, and a reasonable operator would have recognized that material was flowing.
Analysis
Plaintiff made two arguments for exclusion of Williams’ opinion that the pump ran for over an hour. First, Plaintiff argued that the expert opinion should be excluded as not helpful to the jury because the jury can apply common sense and simple logic to determine whether the pump ran for an hour. Second, Plaintiff contended that any opinions based on the pump running for an hour must be excluded as not based on sufficient facts or data or as otherwise unreliable.
The Court found that the opinion is helpful to the jury because the Parties dispute how long the pump ran and Williams, who has technical knowledge of the pumps and unloading process, bases his opinion on statements by the witnesses. Technical knowledge of the pumps and how they operate is outside the realm of experience of a common juror and Williams’ technical explanation regarding the pump operation could assist the jury in determining whose version of events is correct.
Application of his technical knowledge to the operators’ statements is a reliable approach, particularly considering Plaintiff did not challenge Williams’ knowledge itself.
B. Williams’ opinion on the phenol tank levels should not be excluded
Williams also opined that Plaintiff should have been aware resin had been unloaded into the phenol tank based on the tank’s level data. The phenol tank is an active tank, meaning phenol is often being simultaneously added to the tank from railcars and removed from it into the reactor.
Using the level data itself, as well as the rates of change in the data occurring during the unloading of the railcar, Williams purports to have calculated accurate estimates of the amount of unloaded resin. According to Williams, if the Plaintiff had done the same, it would have noticed that during the unloading attempts, the rate at which the tank level dropped decreased, indicating that material was being pumped into the tank from the railcar, rather than solely being pulled from the tank into the reactor. Williams based his calculations on historical data provided by the Plaintiff and the one hour unloading period he previously determined.
Analysis
Plaintiff made three arguments for why Williams’ calculations are unreliable. First, the calculations assumed pump ran for one hour, as discussed above. Second, Williams used an estimated phenol flow rate (that is, how fast the phenol is being pumped into or out of the tank). Third, Williams did not account for the range of error, which Plaintiff claims is between plus/minus 0.5 to 1.0 percent, of the instrument that measures the level of the tank.
The Court will allow Williams to opine on how long the pump ran. Plaintiff has not explained why Williams’ use of an estimated flow rate, based on the historical data provided by Plaintiff, is unreliable.
Similarly, Williams’ claims failed to account for the tank level instrument’s tolerance because he did not know “the manufacturer and the model number.” Plaintiff failed to explain how this lack of information would make the calculations unreliable as opposed to inaccurate, particularly because the point of Williams’ opinion is not that he has precisely calculated the amount of resin, but that Ascend failed to “use readily available phenol storage tank level data to evaluate whether material had been off-load.”
C. Williams’ opinion on the cause of the catalyst damage based on his misreading of Plaintiff’s chart should be excluded
Williams offered the opinion that the damage to the catalyst was not caused by contamination from the resin, but rather from overfeeding phenol from the saturator into the reactor. His opinion was based on his reading of a graph displaying the saturator levels.
Plaintiff argued that Williams’ interpretation of the graph was facially incorrect. Specifically, Plaintiff claimed that Williams confused the “saturator level” and “output for feed control valve” trend lines, when forming the opinion that the saturator level was over 100 percent at certain times. In short, Williams was looking at and commenting on the wrong line in the graph.
Williams admitted his mistake during his deposition. Defendant did not deny that Williams erred in reading the graph but argued that corroborating evidence supported the causation opinion regarding the carryover theory of catalyst damage.
The Court can confirm Williams’ mistake by examining his report. Any opinion based on his reading of the graph must be excluded as unreliable and potentially confusing to the jury. Williams’ opinion derived from the incorrect reading of the graph are excluded, but those opinions that have some other basis of support are not.
D. Williams’ opinion on how the resin would have reacted in the phenol tank should not be excluded
Williams opined that the resin would have been soluble in the phenol which was already inside Plaintiff’s storage tank, and that it would have reacted in the storage tank rather than causing the damage to the catalyst.
He bases his opinion on an email from the resin manufacturer discussing the resin’s reactivity. The email purports to contain an opinion from the resin manufacturer’s Quality Manager, that based on the tank temperature, the resin would have reacted with the phenol in the tank and produced water.
There is no evidence that a statement from a chemical’s manufacturer about its properties is not the sort of information on which a chemical engineer would rely in these circumstances. Williams, an experienced chemical engineer, incorporated the information from the resin manufacture in his discussion.
Held
The Court granted in part and denied in part Plaintiff’s motion to exclude certain testimony of Bruce C. Williams.
Key Takeaways:
Reliable expert testimony often involves estimation and reasonable inferences from a sometimes incomplete record. Further, a few scattered errors in an expert report are not necessarily grounds for exclusion.
A lack of particularization or reliance on estimates goes to weight of the conclusion, not reliability of the methodology.
Please refer to the blog previously published about this case:
Ascend’s claims arise from Rescar’s misidentification and delivery of a railcar containing resin to Ascend’s phenol unloading area at Ascend’s manufacturing facility located near Pensacola, Florida.
Ascend Performance Materials Operations LLC designated Aaron Imrie as a retained expert to opine on the misdelivery of the railcar and the impact of the mistake on Plaintiff’s equipment and plant operation. However, Defendant Rescar Companies filed a motion to strike Imrie from testifying.
Chemical Engineering Expert Witness
Aaron Imrie is a chemical engineer with over 30 years of technical and commercial experience working or consulting for petroleum and chemical processing businesses.
A. Imrie is qualified to opine on railcar switching or unloading
Defendant argued that Imrie’s testimony on railcar switching and unloading must be limited because, although otherwise credentialed, his “oral deposition testimony confirms he is unqualified to opine on railcar switching or unloading.”
Imrie has extensive experience designing and maintaining operating procedures and systems for chemical plants that utilize railcars to deliver raw materials, like the facility and system at issue in this case. Imrie’s knowledge and general experience working in this industry, specifically assisting with operating procedures and production flow at similar plants, qualifies him to testify as an expert, even though he has not unloaded or switched a railcar himself.
B. Imrie is qualified to give the limited opinions regarding YardMaster contained in his report
Defendant makes the same argument with respect to Imrie’s testimony regarding YardMaster, a computer program—that Imrie is unqualified because he has never personally used YardMaster. However, the Court rejected this argument for the same reasons identified above. Imrie’s discussion of YardMaster in his report is limited to (1) a belief that the Parties previously agreed to implement it at the railyard in question and (2) the intent behind the agreement to implement the electronic system was to improve on the existing handwritten method of tracking railcars.
Imrie has not offered any opinions regarding how YardMaster functions within the computer program itself. Moreover, Imrie’s experience qualifies him to testify about the opinions regarding YardMaster that are identified in his report.
Held
The Court denied Defendant’s motion to strike the testimony of Aaron Imrie.
Key Takeaway
An expert’s qualifications do not need to be as granularly specific as Defendant proposes. Rule 702 allows an expert to be qualified by means of knowledge, skill, experience, training or education. A lack of personal experience does not disqualify expert so long as there is another basis for his qualification.
Case Details:
Case Caption:
Ascend Performance Materials Operations LLC V. Rescar Companies
On March 12, 2019, a fire broke out at a Forest River manufacturing facility. American Home Assurance Company, a subrogee of Forest River, says a lithium-ion battery from a Makita power drill is to blame. American sued both Makita Corporation of America and Makita U.S.A., Inc. under Indiana’s Product Liability Act. The two companies (called Makita today for short) sought to exclude testimony from two of American’s opinion witnesses, Michael Eskra and Fred Hackett, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Chemical Engineering Expert Witness
Michael Eskra has more than 43 years of experience in the battery industry. He earned a bachelor of science in chemical process engineering at the University of Wisconsin and later a master’s in engineering management at the Milwaukee School of Engineering. Early in his career, he worked as a process engineer in battery manufacturing plants, a manager of advanced battery engineering, and then a program manager.
He later ran a research and development company that developed batteries. Since 1996, he has owned Eskra Technical Products, Inc., which develops battery products and conducts battery failure investigations. He has published over 300 papers and articles. He is a member of various professional organizations, including the American Institute of Chemical Engineers, the National Association of Fire Investigators, the International Association of Arson Investigators, and the National Association of Subrogation Professionals. Makita focuses its attack on his methodology rather than cogently questions his credentials, so the court turns to his method.
Fred Hackett was a firefighter from 1977-1978 and then from 1982-1998. He was a lead arson investigator and documentation officer for the Pike Township Fire Department. For about eleven years before his retirement in 1998, he conducted technical investigations of commercial and residential fires and gas explosions. For five overlapping years during this time, he also was a fire and explosion investigator for Wolf Technical Services, Inc. In 1995, he became president of Midwest Forensics—a position he still holds today.
In both 2003 and 2008, he was certified as a fire and explosion investigator through the National Association of Fire Investigators. He has attended numerous conferences on fire investigations for the better part of 40 years, as well as served as an instructor at times, including on CT imaging and analysis for the past 15 years and state certifications for firefighters studying fire origin and cause for the past 34 years. He has received fire and arson training over the years too.
Michael Eskra is American’s proposed battery expert. He presents two opinions: that the fire at Forest River was most probably caused by a Makita power tool battery’s failure, and that the poor design of its battery management system caused its failure when its cell became unstable under normal intended use. He views the damage to this cell to be inconsistent with fire attack, and instead consistent with internal damage and thus a source of the fire.
Eskra inspected battery cells from the Forest River site to determine whether a battery cell caused the fire. He started his work in July 2019 (about four months after the fire). During the July 2019 inspection, Eskra worked with Fred Hackett (the insurer’s area of origin witness) to review about 80 cell artifacts.
Rounded ends are indicative of a fire attack as opposed to a fire’s cause
As one feature, he looked for “bulbous ends, so if it had bulbous ends, he set them aside.” When pressed to quantify the degree of bulbous or rounded ends (at the cell’s negative end), Eskra admitted he could not do so, nor had he performed any testing to quantify whether a cell was “rounded enough.” At the time he prepared his report and testified in deposition, he had not authored any peer-reviewed articles on this theory of rounded ends being indicative of a fire attack as opposed to a fire’s cause.
Eskra has never tested the elongation of the cell’s crimp
Eskra looked for longitudinal stretching or elongation of the cell’s crimp. He explained that, when gas gets generated during heating over time, the crimp softens and elongates. In this event, according to him, it “tends to be more that it was a slow heating process, a longer heating process, so it would be heat-attacked.” Even this feature he struggled to specify, merely saying external heat “tends to move it a little bit”—but even then “almost all cells will vary” and even “in causal cells it may move” too. To date, he has never measured this elongation to know how much or tested this feature to confirm his theory; and, at the time of his report, he had not published his theory for peer review.
Eskra admitted that he had not performed any testing to validate his theory of the jellyroll being pushed to the negative or vented ends
Eskra says cells with bulbous negative ends or elongated crimps should then be evaluated by x-ray. He selected 20 cells for further analysis. Fred Hackett completed the x-rays at a different location, and Eskra thereafter observed the films through Skype. Eskra never obtained the x-rays and never preserved them.
In his method, Eskra looked for differences in the active material or “jellyroll” within the cylinder of the battery. The jellyroll is the core of the battery cell—”layers of cathode, separator and anode [are] wrapped together to form a spirally-wound ‘jellyroll’.” His report offers exemplar x-rays (not from this case) of his focus at this step—in particular, he looks for large gaseous pockets at the negative ends that will eliminate the cells as causal; and, contrastingly, the jellyroll remains pushed toward the negative and positive ends that will identify potential causal candidates.
Eskra admitted that he had not performed any testing to validate his theory of the jellyroll being pushed to the negative or vented ends .
Eskra reexamined rounding and elongation, and the venting of pressure inside the cell that contributed to these features
Nothing seems to memorialize Eskra’s selection process at this stage, but he narrowed the number of candidates from 20 cells to four (two cylindrical cell pairs) using his method.
Of curiosity to him, each of the cell pairs had one cell that had a rounded negative end and elongated crimp, which to him exhibited signs of external heating, whereas the paired cell did not. He ordered CT scans of the two cell pairs (someone else conducted them), and he received the scans (and preserved these).
At this stage, he reexamined rounding and elongation, and the venting of pressure inside the cell that contributed to these features.
Eskra concluded that the damage to the cell was internal in nature and should be considered as a probable source of ignition of the fire
Eskra acted as a sort of tracker or hunter. He examined the cell to determine whether it showed signs of venting at multiple points and, if so, which one occurred first.
Eskra started by finding the venting point, then beginning at the opposite end worked his way through the axial plane moving longitudinally to look for intact jellyroll.
Venting would not inform whether a cell caused the fire, but inform the locations where he needed to examine. With a causal cell, chaos within the jellyroll will have occurred before the gas pressure vents, including melting or cutting or additional shorting.
Using the first CT scan, Eskra determined that this cell pair was damaged by external events based on his examination of rounding, elongation, and jellyroll analysis. Using the second CT scan, he determined that one cell—what he describes as the lower or bowed cell—was fire-attacked because of “a large gas bubble appearing in the lower left longitudinal section.” For the other top cell, he found no evidence of the “same distortion or gas generation and shoving of the jellyroll materials.”
Eskra thus focused more heavily on this top cell of the second pair. He used a longitudinal image of this cell to say the negative end of the cell appeared “fairly normal” and the spacing between the jellyroll and the can at the negative end was “slightly tighter” than a healthy cell. Without having x-rayed all the other cells, he then offered a prediction—that this would be the “opposite of what would be seen on all the other cells if they were all x-rayed.” In short, he eliminated all the other cells as causal because they showed signs of physical rounding and venting.
Eskra’s theory has not been generally accepted in the relevant scientific community
The Court held that Eskra has never tested his theory—not once—though it could be tested. Indeed, he has had decades to do so. His theory has never been published. His theory has not been generally accepted in the relevant scientific community, much less accepted by peer review at this point.
American has the burden to demonstrate its proposed expert’s reliability. At first, American says Eskra employed a methodology similar to that described in C. Mikolajczak, A Scientific Methodology for Investigation of a Lithium Ion Battery Failure, a 2007 paper by Exponent Failure Analysis Associates, a reputable firm well-known to the court. Eskra agreed his method has never been peer-reviewed, though he too equated his method to that of Exponent. The Court held that it turned out to be a poor defense of Eskra’s method because he deviated in material ways from it. His method marginally overlaps the Exponent method at best. Exponent mentions the importance of x-rays and CT scans certainly, but it speaks little of negative end rounding, crimp elongation, or the particular jellyroll dynamics that Eskra offers to support his causation theory, and Exponent directs rather key investigative steps that Eskra just skipped.
Eskra offers only subjective judgments throughout his opinion
Without a tested or generally accepted model, the Court held that Eskra cannot offer an objective criterion for an elongated crimp either, calling a “a little bit” of movement enough to classify a cell “fire-attacked” and eliminate it from consideration as a cause. But this elongated crimp also proves troublingly variable and subject to his mere say-so for interpretation, for he concedes that “almost all cells will vary” and even “in causal cells it may move” too. He can’t offer a measurement, much less even a “specific description” of how much rounding would typically demonstrate a fire-attacked cell versus a causal cell.
American, as the proponent of this opinion, never once explains why such subjective imprecise criteria—which may show one thing or indeed the opposite thing—can reliably support his winnowing of 80 candidate cells to only 20 cells for x-ray analysis.
Eskra’s method gets worse at the x-ray stage because he preserved none of his work. He claims to have examined images of 20 selected cells, but he cannot produce any x-rays. Of course, he reviewed these images through Skype with another fire investigator, but no one else seems to have retained any x-rays either.
Even giving Eskra the benefit of the doubt that x-ray analysis through Skype could qualify as such a close examination of a cell’s internal features (e.g., gas pockets, jellyroll movement, and the like), he offers nothing but his say-so today about what could be seen back then. He never videotaped the down-selection process; he created no notes or other documentation from his review of x-rays; his report replicated no x-ray images; and no one preserved the x-ray images.
Eskra’s experience without a reliable, testable methodology is not sufficient
Eskra winnowed 80 cells down to 4 cells (two 2-cell pairs, with only one cell of each pair of real interest to him). So by this point, 95 percent of his process occurred under unreliable circumstances—untested or unverifiable as it was. Exponent’s method may offer something testable and repeatable, whereas Eskra’s method did no such thing. He may be experienced, and he may have done better in other cases, but “experience without [a] reliable, testable methodology is not sufficient.”
Exponent explains the critical steps of recovering physical evidence, reconstructing that evidence, and then examining that evidence in a way that preserves the chain of custody for further analysis. Indeed, the scientific method anticipates that an expert will similarly document her work, and then preserve it for others to review or replicate should that prove necessary.
Eskra deviated from the Exponent method in a critical way when he concluded that the lack of external damage to this cell and the good condition of the jellyroll at the negative end made this cell the probable cause of the fire, albeit by saying this would be “the opposite of what would be seen on all the other cells if [they] were all x-rayed.”
Exponent says, to determine the cause of a battery failure, “it is generally necessary to open a damaged battery pack, extract and examine the remains of the cells, the battery protection printed circuit board(s) (PCBs), and any fuses or thermal cut-off devices.”
To say Eskra “primarily employed the same methodology” or “completed virtually all steps” as Exponent are bold overstatements
Exponent recommended gathering information about the battery cells, which “can generally be collected from the end user’s description of the background of the device and the events of the incident, as well as from the incident site.”
Eskra collected no information from Forest River about the use of these battery cells. He didn’t know their state of charge. He didn’t know where the batteries had been found, or whether they were even in the area of the fire’s origin.
Exponent recommended “thoroughly document[ing] the condition of the [battery] system upon receipt, both for establishing the chain-of-custody and to provide clues as to the root cause of the incident,” including “damage patterns such as soot deposits, regions of charring, and evidence of melting” . The Court held that Eskra failed to do this—he never photographed each cell he visually examined or took notes that would show his observations of individual cells. They reflect a fundamental failure to conform his method to the one he says he tried to use.
Fred Hackett
Fred Hackett is American’s proposed fire origin expert. He opined that the fire originated within Forest River’s tool crib—more particularly, at or near the southeast end of the tool crib, following the failure of a lithium-ion battery.
Hackett was retained to determine the fire’s origin and cause on March 13, 2019—the day after the fire. He and his associate completed an initial “scene size-up” on March 14 and 15. On March 14, Hackett interviewed the plant manager (David Whisler). At some point, he also interviewed the tool crib manager (Lanny Kistler). Hackett collected information from the Elkhart Fire Department, which responded to the fire.
In preparation for his opinion, Hackett considered a great deal of information. He reviewed the deposition of Larry Shaffer who first saw the fire, overview photographs of the building, a video taken inside the building during the fire, physical damage to a desk located in the tool crib, and burn patterns on a filing cabinet.
Hackett’s opinion contravenes the NFPA 921
Makita advanced several arguments to exclude Hackett’s opinion. First, the company says his opinion contravenes the National Fire Protection Association Guide for Fire and Explosion Investigations (commonly called NFPA 921). NFPA 921 is “a comprehensive, peer-reviewed, and detailed guide for fire investigation, and [courts] have held that its methodology is reliable for purposes of Rule 702.”
NFPA 921 identifies traditional sources of information to use in determining a fire’s origin—witness statements, electronic data, burn patterns, fire dynamics, and (under the latest 2017 edition) arc mapping, though the extent of melting here prevented every investigator from arc mapping.
The Court found that Hackett relied on burn patterns on the filing cabinet directly west of the desk that showed directional fire traveling from east to west. Moreover, Hackett relied on multiple sources of information to reach his opinion, in accordance with NFPA 921. He also explained how these sources led to his conclusion.
There also seems to be a disconnect between the parties as to whether Hackett reviewed the deposition testimony of six eyewitnesses to the fire in preparing his report or sometime afterwards.
Makita argued that Hackett’s billing records identify a different date for reviewing these depositions (a month after issuing his report). Hackett testified to the clerical error in his bill. Because Hackett offered a logical explanation for the billing error, the Court held that it is a credibility question—one of weight, not admissibility.
Hackett’s reliance on the first observer in helping to pinpoint the fire’s origin was inappropriate
As such, this motion devolves into whether Hackett afforded a particular eyewitness too much weight or not enough weight, and such points are designed for crossexamination rather than a pretrial attack on his method. To this point, under NFPA 921, a fire investigator in the field may evaluate the quality of the information shared by an eyewitness, assessing with common sense the person’s knowledge and any potential bias.
In addition, Hackett relied on testimony from Larry Shaffer—the first person to see the fire. Shaffer said he saw the fire at or near the southeast corner of the tool crib, what he described as a fire about one foot tall and two feet wide. He saw the fire nowhere else. Cannisters began exploding, and he exclaimed the fire’s presence to his fellow employees. Hackett also relied on statements made by David Whisler (the plant manager) during an interview with the Elkhart Fire Department’s investigator and a few days later to Hackett’s associate that the fire appeared near the door of the tool crib. Hackett additionally used screenshots of a video taken by an unnamed eyewitness in the early stages of the fire.
Makita marshals testimony from the other eyewitnesses, but each seem to have seen the fire later in time and in a different location. The Court held that it cannot be said on this record, much less under the NFPA 921 method, that Hackett’s reliance on the first observer in helping to pinpoint the fire’s origin was inappropriate, or that his reliance on early statements from the plant manager soon after the event rather than years later in deposition was inappropriate.
Makita largely argued that Hackett chose his data poorly.
Hackett incorrectly assumed the tool crib was constructed of a porous metal cage material
The Court’s review of other information offered by Makita illustrates that the company’s concern focuses on Hackett’s selection of and weight placed on data, not that his opinion is bereft of a legitimate industry-recognized methodology or factual footing.
In another area, Makita simply has its facts wrong. The company argues that Hackett incorrectly assumed the tool crib was constructed of a porous metal cage material, suggesting he did this so he could claim, in some “tortured effort,” that the fire witnesses saw outside the tool crib was actually inside the crib. The company represents that Hackett was forced to admit that the tool crib’s walls were solid. These are gross misstatements of Hackett’s testimony, and the Court will not entertain them.
Hackett’s opinion was reached based on an expectation bias and later reinforced by a confirmation bias framed with cherry-picked facts
Makita next argued that Hackett’s opinion was reached based on an expectation bias and later reinforced by a confirmation bias framed with cherry-picked facts. This is an argument that Makita may offer the jury if the company thinks it compelling. Makita offered no evidence on this record that Hackett fell prey to an early expectation bias—a preconceived idea of the fire’s origin—or a confirmation bias—merely selecting data to confirm this idea.
Hackett used a negative corpus method, which has long been abandoned by the fire science community
Makita also complained that Hackett used a negative corpus method, which has long been abandoned by the fire science community. The Court held that although Hackett used a process of elimination in reaching his conclusion, he had supporting evidence for eliminating certain potential ignition sources.
Hackett developed nine hypotheses as to possible ignition sources. For eight, all save a hypothesis that lithium-ion batteries started the fire, he ruled them out as ignition sources and explained why, including by relying on witness testimony and the examination of artifacts.
Hackett has the expertise, factual analysis, and industry-recognized method to explain why he eliminated certain potential causes of the fire; whether the jury will credit these explanations or find them flimsy, only the jury can say. The Court held that it is still is a far cry from saying a lithium-ion battery caused the fire.
Hackett confessesed he has no expertise in batteries, and no expertise in distinguishing batteries that have caused a fire from those that have been attacked by one. He repeatedly admitted he must defer to Eskra as to causation.
Hackett proposes merely to parrot Eskra
The Court held that Hackett isn’t merely relying on another expert’s opinion, but proposing to repeat it—worse yet without a factual understanding of the circumstances, any supporting testing or analysis, or a credentialed basis for offering the opinion. This makes his opinion unreliable.
Moreover, the record is devoid of any experience Hackett has developed with fires originating from lithium-ion battery failures or the dynamics of such fires (much less a Makita-designed cell or comparable tool manufacturer), and that burden rests on American.
American suggests that Hackett adds independent research to Eskra’s findings, but American cites only two YouTube videos—both of lithium-ion powered scooters, with no information about the circumstances of those fires or the design of those lithium-ion batteries.
Hackett lacks pertinent expertise
Hackett may say a smoldering fire was unlikely the cause and that a “rapid-ignition sequence of events” makes more sense, but he cannot say this fire originated from a lithium-ion battery. He also may say this fire appears to have been violent, explosive, and immediate in nature (and explain why based on this fire’s dynamics and site or witness evidence), but again he cannot say this fire originated from a lithium-ion battery.
The Court held that not only does he lack pertinent expertise, but he has not done the testing or even examined the battery cells to validate this opinion.
To sum it up, the Court held that Hackett’s opinion would not aid the jury to decide an issue of consequence—a question of fit and would instead invite the jury to speculate that because a lithium-ion battery can cause a fire that it must have done so here.
The Court held that Hackett can offer his opinion about the fire’s area of origin and its related dynamics, as well as explain why certain potential sources of ignition should be eliminated, but he cannot speak to the ultimate cause of the fire.
Held
The Court granted the motion to exclude American’s expert Michael Eskra’s opinions.
The Court granted in part and denied in part the motion to exclude American’s expert Fred Hackett’s opinions.
Key Takeaway:
Application of the Amended Rule 702
A witness may testify in the form of an expert opinion when (1) the witness is “qualified as an expert by knowledge, skill, expertise, training, or education;” (2) the testimony is “based on sufficient facts or data;” (3) the testimony is “the product of reliable principles and methods;” and (4) the opinion “reflects a reliable application of the principles and methods to the facts of the case” in such a way that the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue.” The proponent of expert testimony must establish its admissibility by a preponderance of the evidence.
In other words, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.
American has the burden to demonstrate its proposed expert’s reliability. However, American has failed to discharge its burden. For instance, when American said Eskra employed a methodology similar to that described in a 2007 paper by Exponent Failure Analysis Associates, it turned out to be a poor defense of Eskra’s method because he deviated in material ways from it.
Moreover, American suggests that Hackett adds independent research to Eskra’s findings, but American cites only two YouTube videos—both of lithium-ion powered scooters, with no information about the circumstances of those fires or the design of those lithium-ion batteries. One could hardly call seconds of two YouTube videos independent or sufficient evidence to render a causation opinion, given Hackett’s ready admissions that he is not the person with expertise to ask.
Case Details:
Case Caption:
American Home Assurance Company V. Makita Corporation Et Al
This case involves a dispute concerning the contamination of the drinking water in Hoosick Falls, New York by perfluorooctanoic acid, a chemical commonly referred to as PFOA. Following multiple settlement agreements with certain Defendants, DuPont is the only remaining Defendant. Plaintiffs alleged that DuPont is liable for producing the PFOA that ultimately contaminated the water supply in Hoosick Falls. To bolster those allegations, Plaintiffs retained Dr. Michael Hickner to testify about the harms surrounding PFOA and DuPont’s knowledge thereof.
DuPont sought to preclude Hickner from offering the following opinions:
(1) The Barr Processor Mass Balance Study released in 2005 definitively demonstrated that PFOA was not destroyed during AFD processing and that IR heated ovens released into the air . . . PFOA vapor during processing;
(2) DuPont was aware since the 1980s that when AFD was heated to temperatures above 150 [degrees Celsius] APFO in the AFD would sublime to form PFOA vapors;
(3) DuPont was aware at least since the mid-1990s that PFOA was stable at 250 [degrees Celsius] and had a half-life of 31.5 minutes when heated to 300 [degrees Celsius];
(4) DuPont was aware since the 1970s that [released] PFOA . . . would not reach 300 [degrees Celsius] for more than a few minutes; and
(5) DuPont recognized in the 1980s that PFOA released from heating AFD could contaminate drinking water and began a program to capture and recycle PFOA released from its fine powder dryers using scrubbers and other technologies.
Chemical Engineering Expert Witness
Michael Hickner has a Ph.D. in chemical engineering and is a researcher and professor in materials engineering and materials sciences. At the time he completed his report, he was a professor of Materials Science and Engineering at Penn State University. In 2023, he became an endowed professor in the Department of Chemical Engineering at Michigan State University. Since 1998, he has conducted research regarding polymers and has worked with fluoropolymers such as those contained in AFD, which are the focus of this case Hickner has taught classes in chemistry, polymers, and materials science.
DuPont first sought to exclude Hickner’s opinion that the Barr Study definitively demonstrated that PFOA was not destroyed during AFD processing but instead was released into the air. DuPont does so on the basis that Hickner “offer[ed] nothing more than an interpretive narration of documents” to arrive at his conclusion.”
In formulating his opinion, Hickner summarized the findings of the Barr Processor Mass Balance Study “performed in response to EPA’s concerns about PFOA in the environment.” He stated that the “study demonstrated that 39-54% of [chemicals were] released through the air to the environment as PFOA through the [infrared] oven process.” He goes on to state a number of statistics detailed in the Barr Study. Hickner uses these statistics and other chemical data to support his ultimate finding that the Barr Study demonstrates that PFOA was released into the air rather than destroyed during processing.
DuPont takes issue with this method, arguing that the ultimate opinion is a “factual narrative based on nothing more than a review of documents and testimony.” The Court believed that the Barr Study summarized by Hickner is sixty-seven pages of highly technical and scientific data regarding AFD processing, infrared ovens, PFOA vapor release, and other scientific data. In other words, Hickner’s testimony would “streamline the presentation of that data to the jury, saving the jury time and avoiding unnecessary confusion.”
Opinions ## 2-5
Opinions two through five all concern what DuPont was “aware” of and “recognized” and when. Black’s Law Dictionary defines to “become aware of” as to have “specific knowledge of something.” The Court held that Hickner’s opinions all concern what DuPont knew and when. To allow such testimony would be to wrongly supplant the role of the jury. This is especially true because Hickner has no expertise in the field of corporate governance from which he could offer opinions about how knowledge held by some individuals in a corporation could be imputed to the corporation itself.
The Court added that Hickner may offer testimony on the scientific data supporting his ultimate conclusions provided he does not opine on DuPont’s knowledge.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude expert testimony from Dr. Michael Hickner. Hickner’s testimony was limited to his opinion on the Barr Study, the general science behind chemical processing and PFOA, and what information was available about that science to individuals associated with DuPont.
Key Takeaway:
If expert testimony is permitted to aid a jury in understanding business practices, the Court is comfortable finding that expert testimony would aid the jury here where the scientific data at issue is dense, complex, and difficult to understand without specialized knowledge.
Case Details:
Case Caption:
Baker Et Al V. Saint-Gobain Performance Plastics Corp. Et Al
This case arose from a fire at the vacant home of Richard F. Vetter and Bryan Miner (collectively, “Plaintiffs”) on March 9, 2021. The Plaintiffs were renovating their home and had applied Varathane Classic Wood Stain, manufactured by Defendant Rust-Oleum Corporation, to their wood floors. After applying the stain, they left the applicators saturated in the product at the home. A fire then occurred, which Plaintiffs alleged was caused by the spontaneous combustion of the applicators soaked with Varathane. In response, the Defendant, for the purpose of the pending motions, does not contest the Plaintiffs’ claim that the rags caught fire spontaneously.
Following the incident, the Burlington County Fire Marshal conducted an investigation and concluded that the probable ignition sequence involved the spontaneous combustion of stain-soaked rags and rollers, leading to the ignition of available combustible material in the area and resulting in a self-sustaining fire. All wood stains, including Varathane, are composed of drying oils, semi-drying oils, and drying agents to properly cure the product. These substances undergo oxidation while they cure, or dry, releasing heat. The presence of drying agents accelerates oxidation. If the heat generated during this process is unable to escape, there exists a potential risk of spontaneous combustion.
The Varathane wood stain label featured a warning about the risk of spontaneous combustion, along with instructions on how to prevent such incidents. The front of the product label included a prominent warning stating that the liquid and vapor are combustible, with potential harm if swallowed. The back panel contained a specific caution outlined in red, emphasizing the danger of spontaneous combustion for items like rags and steel wool if improperly discarded. The warning instructed users to place such materials in a sealed, water-filled, metal container immediately after use. Additionally, disposal guidelines were provided, advising users to dispose of contaminated absorbent, container, and unused contents in compliance with local, state, and federal regulations.
As a result of the fire incident, the Plaintiffs initiated legal action by asserting claims against the Defendant. These claims included strict liability, negligence, and breach of implied warranty. The basis for all these claims was the alleged failure to provide adequate warnings and a design defect related to spontaneous combustion. More specifically, the Plaintiffs contended that the Varathane label did not contain sufficient warning regarding the risk of spontaneous combustion. Furthermore, they argued that Varathane should have been designed to eliminate any potential risk of spontaneous combustion.
The Plaintiffs enlisted the services of engineering expert Jennifer Morningstar, who authored reports examining the involvement of Varathane in the fire that occurred at the Plaintiffs’ home in March 2021. Morningstar underwent a deposition on January 10, 2023.
In her report, Morningstar provided an explanation of the spontaneous combustion process and the role of drying oils and agents in that process. She specifically discussed the drying oils present in the Defendant’s wood stain product. Morningstar’s opinion highlighted the hazard of spontaneous combustion in oil-based wood stains due to the curing reaction of the drying oils. She recommended eliminating this hazard by excluding drying oils and agents from the product. Morningstar pointed out that wood stains, including those sold by the Defendant, could use water as a carrying medium for pigment instead of oil, categorizing them as waterborne, water-based, or acrylic. According to her, stains in this category, lacking drying oils and agents, did not pose the hazard of spontaneous combustion associated with their use.
In formulating her opinion, Morningstar relied on a report from the National Fire Protection Association and several studies discussing waterborne coating wood stains, among other documents. Her ultimate opinion, as outlined in her report, asserted that Rust-Oleum’s Varathane Classic Penetrating Wood Stain was defectively designed because a reasonably safer design, in the form of a waterborne substitute product, existed. Morningstar contended that this alternative product would have prevented harm without substantially impairing the reasonably anticipated or intended function of Varathane. She emphasized the clear safety benefits of altering the design, outweighing any potential disadvantages associated with the proposed alternative design, including any diminished usefulness. This opinion was reiterated in her rebuttal report, where she explained that the presence of water in waterborne wood stains is what eliminates the spontaneous combustion hazard from these substances.
Defendant moved for summary judgment, arguing the claims were preempted by federal law and that its warnings were adequate. Defendant also moved to preclude testimony from Plaintiffs’ expert Jennifer Morningstar. Plaintiffs cross-moved for partial summary judgment on the affirmative defenses.
Chemical Engineering Expert Witness
Jennifer Morningstar, a professional engineer licensed in 2017 and Certified Fire and Explosion Investigator. She is President and Senior Consulting Engineer of Warren Forensics, where she performs specialized consulting related to property loss and unintentional injuries resulting from industrial accidents, fire, and explosions. Morningstar has an undergraduate degree in chemical engineering from Virginia Polytechnic Institute and State University, as well as a Masters of Business Administration from the University of South Carolina. As an expert witness, Morningstar has been deposed several times in litigation matters. She also has experience, as a chemical engineer, working on the production of chemical products involving polymer and polymerization, though not specifically involving wood stains. She also has general experience with drying oils and additives.
Discussions by the Court
The Defendant filed a motion to preclude Morningstar from offering testimony, asserting that she lacked the qualifications to provide opinions on oil-based or water-based wood stains. The motion contended that Morningstar’s testimony was not grounded in reliable methodologies.
The admissibility of expert witness testimony in this case was governed by Federal Rule of Evidence 702 and the Daubert standard, which outlines three factors: the expert’s qualifications, the reliability of their methodology, and whether the testimony is pertinent to the matters at issue in the case. Citing, In re Paoli R.R. Yard PCB Litig. (In Re Paoli I), 35 F.3d 717, 741-43 (3d Cir. 1994), the Third Circuit emphasized the preference for admitting evidence sure to be of potential assistance to the trier of fact, but maintained the obligation to ensure reliability. Rule 702 was recently amended to require a demonstration from the proponent that the proffered testimony is more likely than not to meet admissibility requirements.
The Defendant contested the qualifications and reliability of Morningstar, focusing on the first two factors in the Daubert analysis. The Court, henceforth, limited its analysis to these aspects. Regarding Morningstar’s qualifications, the Defendant argued that she was not qualified to express opinions on oil-based wood stains. In contrast, the Plaintiffs asserted that Morningstar, being a chemical engineer, was well-qualified to provide opinions on various aspects, including the spontaneous combustion phenomenon, the composition of the Defendant’s product, its chemical propensity for hazards, a review of spontaneous combustion events related to such products, and the feasibility of an alternative, safer design for wood finishes. The Court sided with the Plaintiffs, agreeing with Morningstar’s qualifications in this context.
The Court, in evaluating the qualifications for an expert, emphasized a liberal approach, acknowledging that a broad range of knowledge, skills, and training could qualify an individual. The Third Circuit had previously expressed satisfaction with generalized qualifications. The Court deemed it an abuse of discretion to exclude testimony merely based on the expert not being considered the best qualified or lacking specific specialization. Despite the Defendant’s argument that Morningstar lacked a postgraduate degree and specific experience with wood stains, the Court did not narrowly interpret the requisite experience for qualifying as an expert in this case.
Morningstar possessed a chemical engineering degree, held a professional engineering license, and was certified as a fire and explosion investigator. With a background and experience that included serving as an expert witness in other lawsuits, she had specifically provided expertise in two cases concerning the involvement of wood stains in house fires. Given her qualifications and expertise, the Court determined that Morningstar was certainly qualified to express opinions on topics such as the process of spontaneous combustion, the role of drying agents in that process, the presence of drying agents in wood stains, and the existence of alternative products in the market. The Court held that these subjects fell within the scope of her background as a chemical engineer and fire and explosion investigator.
The Court noted that the strengths and weaknesses of an expert’s qualifications are typically considered in evaluating the weight of their testimony rather than its admissibility, citing Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996). Morningstar’s opinion in this case included the assertion that there was already an alternative product available on the market. The Court concluded that in Morningstar’s case, no such issues concerning the practicality of the recommended safety features and their familiarity with the relevant safety standards were present, as she opined that the water-based wood stain, already on the market, served as a viable alternative to the oil-based wood stain.
In assessing the reliability of Morningstar’s opinion, the Court applied the standard that when an expert testifies to scientific knowledge, their opinions must be grounded in scientific methods rather than subjective belief or unsupported speculation. The expert should have sound grounds for their belief. The Court considered the following factors to determine the reliability of expert opinions. These factors include whether the method involves a testable hypothesis, has undergone peer review, has a known or potential rate of error, maintains standards, is generally accepted, relates to established reliable methods, reflects the qualifications of the expert, and has non-judicial applications.
Courts possess considerable discretion in determining the reliability of expert opinions, as highlighted in Betterbox Commc’ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 329 (3d Cir. 2002). In cases involving defective design, the Court typically considers various factors to assess reliability. These factors include federal design and performance standards, standards established by independent organizations, relevant literature, evidence of industry practice, product design and accident history, illustrative charts and diagrams, data from scientific testing, the feasibility of suggested modifications, and the risk-utility of such modifications.
The Plaintiffs contended that certain considerations in assessing reliability have limited relevance in this case. Morningstar’s opinion asserted that an existing product on the market was comparable to and safer than Varathane, without proposing new modifications. Therefore, factors such as the feasibility of suggested modifications and the risk-utility of those suggested modifications were deemed not particularly useful in this context.
The Defendant’s representation of Morningstar’s overall opinion is deemed inaccurate by the Court. Morningstar opined that Varathane’s risks could be mitigated with the existence of a safer design. While she did not explicitly mention the Consumer Product Safety Commission (CPSC) or its lack of cautionary labels for spontaneous combustion risk, the Court did not consider this omission as detrimental to the reliability of her opinion. Morningstar’s focus was not on mandating label identification of spontaneous combustion risk for Varathane. Instead, she asserted that the risk was reduced in water-based wood stains, an existing market product. Morningstar relied on the Safety Hierarchy, a standard she considered universally known, to support her opinion that the risk presented by oil-based wood stains could be eliminated. Additionally, she referred to literature, fire incident reports, and data to discuss the frequency of fires involving oil-based wood stains. Morningstar also delved into the distinctions in product design and substances between oil- and water-based wood stains.
The absence of any testing conducted by Morningstar does not automatically cast doubt on the reliability of her opinion, according to the Court, citing In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d. 14, 76-77 (D.D.C. 2017), that rejected similar arguments, the Court stated that challenges related to the absence of certain analyses do not qualify as Daubert arguments, as they do not inherently question the reliability of the work performed by the expert. Overall, the Plaintiffs successfully demonstrated that it was more likely than not that Morningstar’s testimony met the admissibility requirements under Rule 702. The Court expressed confidence in the ability of the Defendant’s counsel to conduct vigorous cross-examination, present contrary evidence, and provide careful instructions on the burden of proof, allowing a jury to determine the weight afforded to Morningstar’s opinion. However, the Court agreed that Morningstar could not testify to the defective design of the product as it constituted an impermissible legal conclusion at the time of trial.
The Defendant filed a motion for summary judgment, asserting that State Farm-which it argues to be the real party in interest—having twice previously litigated this issue unsuccessfully, is now collaterally estopped from contesting the preemption of its warnings claim by the Federal Hazardous Substances Act (FHSA), that Plaintiffs’ claim is preempted by the FHSA, and that the Varathane label provides sufficient warning under the FHSA. Additionally, the Defendant argued that the Plaintiffs lacked necessary expert testimony to support their design defect claim, and even if Morningstar’s testimony was admitted, it would not satisfy the burden to establish a design defect. In response, the Plaintiffs filed a cross-motion for summary judgment on their failure-to-warn claim, contending that the FHSA does not preempt their claims. The Court determined that summary judgment was appropriate for Plaintiffs’ failure-to-warn claim but denied summary judgment for Plaintiffs’ defective design claim.
The Defendant asserted that the Plaintiffs’ failure-to-warn claim is both expressly and impliedly preempted by the Federal Hazardous Substances Act (FHSA). In response, the Plaintiffs filed a cross-motion seeking summary judgment on any affirmative defense asserting preemption or limitation by the FHSA. The Court aligned with the Defendant’s position, in line with the consensus of many other federal Courts, and concluded that the Plaintiffs’ claim was preempted by the FHSA.
Held
The Court granted in part and denied in part Rust-Oleum’s motion to preclude Plaintiff’s Expert Jennifer Morningstar’s testimony. The Court granted in part and denied in part Rust-Oleum’s motion for summary judgment, granting judgment on the failure-to-warn claim but denied summary judgment as to Plaintiffs’ defective design claim. The Court denied Plaintiffs’ cross-motion for partial summary judgment. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In a legal case involving a fire allegedly caused by a wood stain product, the admissibility of expert testimony played a crucial role. The Court, guided by Federal Rule of Evidence 702 and the Daubert standard, assessed the qualifications and reliability of the engineering expert, Jennifer Morningstar. Despite the Defendant’s challenges to Morningstar’s qualifications, emphasizing her lack of postgraduate degree and specific experience with wood stains, the Court adopted a liberal approach in evaluating qualifications. Morningstar’s chemical engineering degree, professional engineering license, certification as a fire and explosion investigator, and prior experience as an expert witness in similar cases were deemed sufficient. The Court emphasized that the strengths and weaknesses of an expert’s qualifications are factors for weighing testimony, not excluding it.
Regarding the reliability of Morningstar’s opinion, the Court applied factors such as testability, peer review, error rate, standards, general acceptance, relationship to established methods, expert qualifications, and non-judicial uses. Morningstar’s reliance on existing market products as alternatives and her focus on eliminating risks rather than proposing modifications influenced the Court’s assessment. The Court acknowledged Morningstar’s use of established standards like the Safety Hierarchy and her reference to literature, fire incident reports, and data in forming her opinions. The absence of testing conducted by Morningstar was not deemed a decisive factor against reliability.
Ultimately, the Court found that Morningstar’s testimony met the admissibility requirements under Rule 702. The Court expressed confidence in the adversarial process, emphasizing the role of vigorous cross-examination, presentation of contrary evidence, and careful jury instructions in assessing the weight of Morningstar’s opinions. However, the Court ruled that Morningstar could not testify to the defective design of the product as it constituted an impermissible legal conclusion.
Trinseo Europe GmbH filed a lawsuit against several Defendants, including Stephen Harper, Steve Harper Consulting, Inc., Polycarbonate Consulting Services, Inc., Kellogg Brown & Root, LLC (KBR), William Davis, and Polycarbonate Resins Consulting, LLC. The lawsuit alleged that these parties had unlawfully obtained Trinseo’s trade secrets and confidential information associated with polycarbonate manufacturing. Polycarbonate is a thermoplastic used in various specialized commercial and consumer products like automobile components, specific eyeglass lenses, and medical devices.
Trinseo accused KBR of knowingly utilizing these trade secrets and confidential data to develop a “PCMax licensing package.” This package was then sold by KBR to Chinese companies, enabling them to establish competing polycarbonate manufacturing plants in China. In response to the lawsuit, Defendants appointed Michael Kratochwill as their expert on polycarbonate markets, specifically focusing on Trinseo’s position within those markets. Kratochwill presented a 59-page expert report and provided testimony through deposition.
Trinseo, in its request to the Court, sought the exclusion of specific opinions and testimony offered by Michael Kratochwill. Trinseo alleged that Kratochwill’s opinions and testimony amounted to impermissible repetition of research reports in which he had no involvement in preparing.
Chemical Engineering Expert Witness
Michael Kratochwill possesses substantial expertise in advising clients on various areas including screening for acquisition and investment opportunities, financial transactions, and commercial development related to new products and technologies. His professional portfolio includes significant involvement in expert witness and testimony work, particularly in appraisals, valuations, and the dynamics of industry and technology. With over 45 years of experience in the industry, Kratochwill brings a wealth of knowledge and practical understanding to his engagements. He has been a member of the AIChE since 1970 and the SPE since 1979. Michael holds a Bachelor of Science in Chemical Engineering from Drexel University, US, and a Master of Business Administration from Widener University, US.
Discussion by the Court
Trinseo contended that Michael Kratochwill’s approach primarily involved repeating and amalgamating the work of others. Employed by “IHS Markit,” a company known for producing subscription-based products for the chemical industry, Kratochwill’s expert report consisted basically of a series of citations to numerous IHS Markit subscription reports and a synthesis of those reports. Trinseo argued that Kratochwill’s reliance on subscription reports he hadn’t contributed to was unjustified, especially considering his lack of independent expertise specifically in the realm of polycarbonate. Despite being designated as an expert in polycarbonate markets, Kratochwill admitted that his familiarity with these markets wasn’t distinctively tailored to this sector but was more aligned with his broader experience in analyzing various markets.
The Court found that Kratochwill was not qualified by training or expertise to discuss the technical aspects of PC technology, its design, or its operation.
As for Kratochwill’s opinions lacking reliability on account of his virtually exclusive reliance on various studies and industry reports, Defendant responded by pointing out that the Federal Rules of Evidence permit an expert to base their opinion on factors outside of their own firsthand knowledge or observation. As per Federal Rules of Evidence 703, the expert is allowed to rely on certain kinds of hearsay. Nevertheless, while an expert may rely on reliable studies and reports, he is not permitted to be a mere vehicle to bring this hearsay in front of the jury. This applies not only to direct testimony based upon personal knowledge and experience on the topic at issue, but also to efforts to synthesize a number of facts or analysis from other sources into an expert opinion.
The Court outlined the purpose of expert reports, emphasizing the need for these reports to present the expert’s opinions and the foundation for those opinions. Acknowledging that expert reports qualify as hearsay, the Court stated its refusal to admit the reports without unanimous agreement among the parties.
Recognizing the extensive historical context involved in the PC business spanning decades, the Court highlighted the challenge for any expert to comprehensively cover the entire industry history. It noted that experts often rely on pre-existing facts or data predating their involvement or on insights from predecessors in the industry, provided such reliance aligns with the norms of the field.
However, the Court drew a clear line, disallowing experts from merely regurgitating opinions formulated by others. It emphasized that such individuals would not qualify as experts but rather as conduits for others’ opinions. The Court denied the motion to exclude with such parameters in mind. The ruling, though, did not prevent the Plaintiff from objecting should the witness attempt to solely repeat others’ opinions. The Court suggested that challenging such a witness would be more effectively done through opposing evidence and a robust cross-examination.
Michael Kratochwill was barred from providing testimony regarding the technical facets of PC technology, encompassing its manufacturing and design aspects. However, he was permitted to testify about PC markets, under the condition that his testimony adhered to Rule 703. The Court explicitly stated that he could not simply repeat the opinions of others during his testimony.
Held
The Court granted in part and denied in part Plaintiff, Trinseo Europe GmbH’s motion to exclude certain opinions and testimony of Defendants, Stephen Harper and Polycarbonate Consulting, Inc.’s expert Michael Kratochwill.
Key Takeaways
The Court barred Michael Kratochwill from providing any expert testimony on the technical aspects of polycarbonate (PC) technology and manufacturing because he lacked the necessary training, expertise, and firsthand knowledge to opine on how PC is designed or operated.
However, Kratochwill was allowed to testify as an expert on polycarbonate markets and industry trends. But his testimony must comply with Federal Rule of Evidence 703 – he cannot simply parrot or regurgitate opinions and analysis performed entirely by others. The Court was clear that experts must present their own independent opinions and reasoning.
While experts may rely on outside studies, reports, and data to inform their opinions, as is common practice, they cannot serve merely as a vehicle to bring otherwise inadmissible hearsay before a jury. Synthesizing others’ research into an expert opinion is also insufficient. The Court emphasized experts must contribute original analysis and judgment.
