On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.
In support of their defense, Defendants planned to use expert witnesses. On the origin of the fire, Defendants offered Todd Soong. On the potential electrical causes of the fire, Defendants offered Arash Hajjim. Lastly, on fire dynamics, patterns, and potential causes of the fire, Defendants offered Carlos Fernandez-Pello. Together, the experts purport to establish that the cause of the fire remains undeterminable. Plaintiffs sought the exclusion of three defense experts.
Plaintiffs have also produced Roy Deppa as an expert on the topic of Consumer Product Safety Commission (CPSC) regulations and procedures for the purpose of establishing that Defendants failed to timely report dangerous defects in their dehumidifiers. Defendants sought the exclusion of Deppa.
Fire Investigation Expert Witness
James Todd Soong is a certified fire investigator (CFI) by the International Association of Arson Investigators (IAAI) and a certified fire and explosion investigator (CFEI) by the National Association of Fire Investigators (NAFI). He has in excess of 10 years of experience.
Dr. Carlos A. Fernandez-Pello is a Distinguished Professor of the Graduate School in Mechanical Engineering, at the University of California, Berkeley, USA. His work involves applying fire thermodynamics and combustion principles to analyze various aspects of fire and combustion processes, ranging from laboratory-scale solid fuel combustion to wildland fire dynamics.
Roy W. Deppa has over 40 years of experience in product safety, including 27 years in various positions at the Consumer Product Safety Commission. This experience gave him extensive knowledge of the agency’s regulations, processes, and procedures, as well as industry standards.
He is a registered Professional Engineer licensed in the State of Maryland.
Defendants retained Soong to determine the origin of the fire and its potential causes. Plaintiffs argued that Soong’s opinions must be excluded because they are based on incomplete and inaccurate information and they are not the product of reliable principles and methods.
A. Soong’s opinions on the origin and cause of the fire are admissible
Soong followed the methods prescribed by NFPA 921 in determining that the fire originated in the home’s utility room and that the cause of the fire could not be definitively determined. He performed an inspection of the building, observing fire damage levels and patterns.
Plaintiffs argued that Soong’s opinions are unreliable because he did not conduct his own testing; he uses “ambiguous words such as ‘possible,’ ‘may,’ and ‘can’”; and he developed his opinions with cherry-picked facts and confirmation bias.
However, the Court found that Soong’s method of determining the origin and potential causes of the fire—relying on observations of physical evidence, scientific principles, experience, and the opinions of Defendants’ other expert witnesses—is consistent with NFPA 921 and sufficient to satisfy Rule 702.
NFPA 921 advises that investigators should seek assistance when they “lack expertise to properly attribute meaning to a piece of data” and should utilize the “special talents or training” of other individuals in the fields of “electrical, heating and air conditioning, and other engineering fields” when needed. And NFPA 921 specifically instructs investigators to utilize words like “probable” and “possible” to denote the appropriate level of certainty.
B. Soong’s opinion relating to spoliation is inadmissible
Plaintiffs also argued that “Soong improperly claimed spoliation of evidence” under NFPA 921, which defines spoliation as “loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation.”
The Court found that Soong is not qualified to opine on whether anything he observed was a result of “spoliation” or some other cause.
II. Arash Hajjam
Plaintiffs argued that Hajjam’s opinions must be excluded because he failed to follow the methodology outlined in NFPA 921.
However, Hajjam followed NFPA 921’s prescribed method for fire cause determination. His report relied on two joint site examinations, two lab inspections, the expert reports of the other fire investigation experts proffered in this case, and several other photographs and documents, including NFPA 921.
Based on his observations of the scene and analysis of the artifacts, Hajjam identified three potential causes of the fire—the dehumidifier, the branch circuit wiring in the ceiling, and a nearby light fixture—and examined each in a laboratory. Hajjam then evaluated each potential cause and ultimately concluded that “given the extensive damage and the presence of missing artifacts, multiple potential ignition sources remain, preventing a definitive conclusion regarding the exact ignition source of the fire.” The Court found that Plaintiffs’ arguments regarding the sufficiency of Hajjam’s testing and his alleged consideration of improper evidence are insufficient, in this case, to undermine the admissibility of his testimony.
III. Carlos Fernandez-Pello
Defendants offered Fernandez-Pello to discuss “potential causes and contributing factors to the fire and the possibility of the subject Dehumidifier and other potential ignition sources causing the fire.” Specifically, he was expected to provide testimony that the cause of the fire is indeterminate as per NFPA 921.
Fernandez-Pello’s opinions followed NFPA 921’s prescribed method for fire cause determination. Moreover, Fernandez-Pello discussed the fire patterns surrounding the dehumidifier, the results of the dehumidifier tests, and generated computer simulations.
Plaintiffs argued that Fernandez-Pello’s opinions should be excluded because (1) he failed to consider the presence of additional fuel loads in the vicinity of the dehumidifier; and (2) he failed to conduct testing regarding internal arcing in the dehumidifier. Those arguments fail. Although Fernandez-Pello initially testified that he was not aware of several plastic buckets near the dehumidifier, he later submitted errata indicating that he had reviewed photographs of the buckets, “concluded that the buckets didn’t burn, only melted,” and “thus, there was no need to investigate the issue anymore.”
Such inconsistency in Fernandez-Pello’s testimony on different occasions may be relevant to his credibility as a witness, but it does not undermine its admissibility altogether. And given Fernandez-Pello’s position that the dehumidifier could not have been the cause of the fire, regardless of how it ignited, the fact that he did not do additional testing to determine whether there was internal arcing did not undermine the credibility of his opinion.
IV. Roy Deppa
Defendants argued that Deppa’s testimony should be excluded because (1) Deppa is unqualified, as a professional engineer, to opine on the interpretation of federal regulations or Defendants’ state of mind; (2) his opinions concerning the process by which companies issue recalls and Defendants’ state of mind lack scientific methodology; (3) his opinions improperly relate only to punitive damages; and (4) his opinions, even if admissible, are barred under Federal Rule of Evidence 403, as his “interpretation of federal regulations and Defendants’ obligations under them would run the risk of creating a danger of overriding the Court’s jury instructions on the same” and his opinions concerning the severity of Defendants’ failure to recall risked interfering with the jury’s duty to evaluate liability.
Analysis
As an initial matter, the Court found that Deppa’s proposed testimony relating to Defendants’ state of mind is improper. Moreover, Deppa may not offer his opinion about whether Defendants’ conduct violated applicable regulations because the the law is clear that expert witnesses may not opine as to whether a party violated a given regulation.
The Court also shared Defendants’ concern that Deppa’s report included qualitative characterizations of Defendants’ conduct unconnected to any specific industry standard, and that such characterizations invade the province of the jury, who will be tasked with determining if Defendants’ conduct “showed complete indifference to or conscious disregard for the safety of others.”
In spite of that, the Court concluded that Deppa, based on his professional experience, is qualified and permitted to testify about (1) the industry standards relating to CPSC recalls, including references to relevant regulations, so long as he does not opine on whether Defendants’ conduct actually violated any regulations; and (2) Defendants’ conduct in response to the product defect that Plaintiffs allege is at the heart of this case, including the effects of those actions on the availability of the defective product.
Held
The Court denied Plaintiffs’ motions to exclude the testimony of Arash Hajjam and Carlos Fernandez-Pello.
The Court granted in part Plaintiffs’ motion to exclude the testimony of Todd Song.
The Court granted in part Defendants’ motion to exclude the testimony of Roy Deppa.
Key Takeaway
Expert testimony on “the intent, motives, or states of mind of corporations, regulatory agencies and others have no basis in any relevant body of knowledge or expertise.” Thus, Deppa may not opine on what Defendants, or individuals employed by Defendants, thought or about their motivations.
Please refer to the blogs previously published about this case:
Puerto Rico Telephone Company (“Plaintiff” or “Claro”) brought this suit against the Municipality of Aguada, Hon. Christian Cortés-Feliciano, in his capacity as Mayor of the Municipality of Aguada, and Wesley Vega, in his capacity as Planning Director of the Municipality of Aguada (“Defendants” or “the Municipality”), for alleged violations of Federal Telecommunications Act of 1996 (“TCA”) based on Defendants’ denial of an application to install fiber optic cables and poles in the Municipality of Aguada in Puerto Rico.
Ricardo Matos-Acosta concentrated his practice in the following areas: electrical engineering, design, optimization, and planning of radio frequency (“RF”) wireless networks for voice, data, video and internet.
He completed a Master’s in Electrical Engineering at the Polytechnic University of Puerto Rico.
Initially, the Defendants argued that Eng. Matos-Acosta’s report did not have any citation to “relevant scientific authorities that validate or otherwise support the methodology being employed” in the report, thus alleging a violation of Federal Rule of Evidence 702. Specifically, Matos-Acosta was hired to conduct an analysis of the current wireless service coverage in the Municipality of Aguada around a site that Claro identifies as “AGD1622,” where there is an existing tower.
Furthermore, the purpose of his report was to identify the existence of a coverage gap and the alternatives to addressing it. In his defense, Matos-Acosta stated in his sworn affidavit accompanying the report that he utilized his twenty-nine years of experience in electrical engineering, design, optimization, and planning of radio frequency (“RF”) wireless networks, in particular, his work experience in wireless systems for Claro since 1995, in preparing said report.
Analysis
To begin with, Eng. Matos-Acosta collected data from Claro’s Element and Network Management Server (the “ENM Server”) during a one-week period in October of 2023 to assess the RF wireless coverage and user experience in Aguada’s Río Grande sector. Moreover, Eng. Matos-Acosta explains each industry term used or relied on in his report. Finally, he provided numerous maps which demonstrated that signal levels in the subject area failed to meet Claro’s service-level standards, thereby supporting his opinion that said levels are insufficient to serve their customers in the area.
Upon review, a reading of his report makes clear that he gathered data, conducted various tests, and evaluated the findings using his experience in the telecommunications industry to determine whether a coverage gap exists and what options are available to address said gap. In contrast, the Municipality has not provided any testimony or expert opinion to rebut Claro’s showing that a significant gap in coverage exists. Most significantly, the Court held that the Municipality’s Daubert challenge did not point to specific parts of the report that were insufficient or articulate what about Eng. Matos-Acosta’s methodology is not in conformance with widely accepted industry methodologies, practices, and parameters. Instead, it attacks it broadly as unsupported by citations.
Held
The Court denied the Defendants’ Daubert motion to exclude Plaintiff’s expert Ricardo Matos-Acosta.
Key Takeaway:
Ricardo Matos-Acosta provided numerous maps which demonstrated that signal levels in the subject area failed to meet Claro’s service-level standards to support his opinion that said levels are insufficient to serve their customers in the area. Thus, a reading of his report makes clear that he gathered data, conducted various tests, and evaluated the findings using his experience in the telecommunications industry to determine whether a coverage gap existed and what options were available to address said gap.
Case Details:
Case Caption:
Puerto Rico Telephone Company V. Municipality Of Aguada Et Al
Raytheon Company (“Raytheon” or “Plaintiff”) is a large, international military and defense contractor holding several prime contracts with the United States Government. At their Fairdale location Raytheon maintains, stores, and services multiple mobile charging stations and storage locations for lithium-ion battery boxes (“LBBs”). The LBB’s were designed and manufactured by Saft but owned by the government pursuant to military contracts. Each LBB was stored within specially designed trailers commonly referred to as vaults.
Several of these prime contracts relate to the military’s ITAS/MITAS weapons system. The ITAS/MITAS weapon system is powered by large lithium-ion battery boxes (“LBBs”), several hundred of which were maintained, serviced, and stored at Raytheon’s facility in Louisville, Kentucky. The LBBs were stored in a series of containers known as LBB Vaults, which were supposedly explosion-proof.
On April 15, 2020, several of the LBBs inside LLB Vault #2 failed. Ahtna agreed to provide qualified sustainment services and other necessary support to Raytheon, which included management and oversight of Vault #2. No steps were taken by Raytheon to immediately remediate the hazard. The failed LBBs eventually ignited, leading to multiple fires on May 13 and May 14, 2020. The fires purportedly caused damage to Raytheon’s property. In this action, Raytheon seeks to hold the Ahtna Defendants and several of ASTS’ employees responsible for the damages allegedly stemming from this fire. The predicate for Raytheon’s claim is that the Ahtna Defendants breached the terms and conditions of an alleged contract between the parties pursuant to which the Ahtna Defendants were to supply field engineers and other support staffing to assist Raytheon in servicing the ITAS/MITAS weapons system.
Motion to Exclude
Doctor Tal Nagourney (“Dr. Nagourney”) is Ahtna’s expert witness in LBB design. In his opinion Nagourney discusses the LBB failures that occurred in April 2020, and how that incident relates to the fires in May 2020.
Tal Nagourney is an electrical engineer specializing in fire investigation and failure analysis of consumer electronics, appliances, batteries, USB devices, and semiconductor devices. He conducts scientific investigations to guide critical decisions.
His expertise is built on a foundation of research and experimental design from his doctoral studies in micro-electro-mechanical systems. As a forensic electrical engineer, he leverages this experience to lead an effective investigation, identify the root cause, and present the findings clearly to any audience.
In the field, Nagourney thoroughly documents the scene and ensures critical evidence is collected. In the laboratory, he performs meticulous testing to identify issues with design, manufacturing, and usage. Moreover, his experience with failures lends itself to design review, and he helps his clients avoid product failures that elude typical safety standard testing.
i. Legal Conclusions and Admissibility of Opinion Evidence
In his report, Nagourney stated (1) that “[t]he fire in Vault 2 on May 13, 2020 would not have occurred if LBBs 528 and 941 had not experienced exothermic failures one month prior on April 15, 2020” and (2) that “the LBB that ignited the May 13, 2020 fire was one of 14 compromised by the initial exothermic failures of LBBs 528 and 941. Had it not been compromised, the fire would not have occurred.”
The Court held that Nagourney’s contested opinions do not qualify as legal conclusions. The opinions do not touch on an ultimate issue of this claim, which is whether the LBBs were defectively designed such that they were the primary cause of the May event. Instead, they merely reflect the expert’s belief that the April and May fires in the Vault #2 were connected, not that Saft was responsible for either fire. Basically, his opinion does not define any legal standard or apply the facts of this case to any legal standard. And Nagourney’s opinion lacks any specialized legal language at issue, but instead, uses more scientific phrasing and conclusions such as, “would not have occurred” or “compromised.”
ii. Rule 702 Reliability Analysis
Saft argues that under Fed. R. Evid. 702’s “nonexclusive checklist for trial courts to consult in evaluating the reliability of expert testimony,” Nagourney’s testimony was unreliable, speculative, and inadmissible. Saft specifically alleged that the opinions were, (1) not tested, (2) not subjected to peer review and publication, (3) has an unknown error rate and unknown community acceptance rate, and (4) are unhelpful to the trier of fact.
a. Lack of testing
To begin with, Nagourney is a cause of accident expert. He conducted engineering analysis and a fire and explosion investigation using techniques found in NFPA 921, “Guide for Fire and Explosion Investigations.” Moreover, in making his own report Nagourney relied upon 84 different documents in some form. This included numerous incident and failure reports produced by Saft, Ahtna and Raytheon, videos and pictures of the April and May events, and reports and analysis about general hazards concerning LBBs. In fact, Nagourney was unable to perform independent testing of the LBB’s as they are government property and requests to conduct an examination were repeatedly denied by the other parties.
The Court held that since Nagourney was not only prevented from conducting independent testing of the LLBs but given the source and availability of data and information used by Nagourney in developing his opinion, independent testing is not needed.
b.Peer Review and Error Rate
Because Nagourney’s report is a cause of accident report which does not generally require independent testing, arguments regarding the lack of peer review or known error rates are irrelevant in determining whether the opinion meets the reliability requirement for purposes of admissibility.
Moreover, analysis of publication, peer review, error rate, and acceptance are all tied to testing. Since this Court has found that testing is not required, or particularly significant, in this case, Nagourney’s testimony is sufficiently reliable without peer review or known error rate. Therefore, those factors are inapplicable here.
c. Helpfulness to the Trier of Fact
Saft agued that Nagourney’s opinion “will not assist the trier of fact to understand the evidence or determine a fact in issue” for all the reasons previously alleged.
Nagourney’s qualifications as an expert witness are not challenged. Therefore, Nagourney’s report and opinions are based on his examination of provided facts and evidence and rely upon his technical and specialized knowledge of LBB’s to opine as to the cause of the May fires. Under Fed. R. Evid. 702 this is helpful to the trier of fact in determining whether Saft had manufactured or designed defective LBBs, key fact at issue regarding whether Ahtna could indemnify Saft for damages arising from the May event. Moreover, the Court has already examined Daubert factors that Saft cumulatively alleges here and finds that they do not make Nagourney’s opinion unreliable. The Court concluded that Nagourney’s opinions are helpful to the trier of fact.
Vouching for Another Expert
Saft alleged that the testimony in Nagourney’s supplemental report is inadmissible under Fed. R. Evid. 703 as it’s use of engineer Keith Thobe’s report is merely “vouching for the truth of what another expert told him.”
However, Federal Rule of Evidence 702 and 703 make clear that experts can rely on the data of others in certain circumstances. The drafters of the Federal Rules of Evidence “specifically contemplated that experts would rely on others with specialized knowledge.’” In conclusion, the Court held that Nagourney’s usage of data from an engineer in his own supplemental report is nothing more than the use of data from a source with specialized knowledge, a practice contemplated and permitted by the Federal Rules of Evidence.
Held
The Court denied Saft’s motion to exclude the testimony of Tal Nagourney.
Key Takeaways:
Firstly, Nagourney’s opinions do not touch on an ultimate issue of this claim, which is whether the LBBs were defectively designed such that they were the primary cause of the May event.
Secondly, Nagourney was unable to perform independent testing of the LBB’s as they are government property and requests to conduct an examination were repeatedly denied by the other parties.
Thirdly, Nagourney’s report and opinions are based on his examination of provided facts and evidence and rely upon his technical and specialized knowledge of LBB’s to opine as to the cause of the May fires.
Fourthly, Nagourney’s usage of data from an engineer in his own supplemental report is nothing more than the use of data from a source with specialized knowledge, a practice contemplated and permitted by the Federal Rules of Evidence.
Case Details:
Case Caption:
Raytheon Company V. Ahtna Support And Training Services, Llc Et Al
This case involves a lawsuit filed by Donald F. Greene and Nicole F. Greene (“Plaintiffs”) against Ledvance LLC (“Defendant”) regarding injuries Donald Greene sustained when a fluorescent light bulb he was changing allegedly exploded. The incident occurred on June 11, 2020 at Donald Greene’s workplace.
According to the allegations, On June 11, 2020, Donald Greene, employed as a site manager for Waste Connections, was in the process of changing a fluorescent light bulb located on a wall in the garage of his workplace when the light bulb suddenly and abruptly exploded without warning. Donald Greene sustained severe injuries, primarily to his left arm. He was taken by ambulance to the hospital where his left bicep wound was treated and closed surgically. He later underwent two additional surgeries on his left bicep performed by orthopedic surgeon Joshua P. Moss, who continued treating Donald Greene’s injuries.
Plaintiffs brought suit against Defendant, the alleged designer, manufacturer, seller and distributor of the subject fluorescent light bulb, under the Tennessee Product Liability Acts. Plaintiffs alleged that because a fluorescent light bulb does not normally “violently explode” during normal handling, Defendant was also liable under the common law doctrine of res ipsa loquitur, contending that the nature of the incident itself implies negligence.
In the course of expert disclosures, Plaintiffs identified Moss as the treating physician for Plaintiff Greene. Moss intended to testify on causation, medical necessity, and details of Greene’s treatment, along with the impact of the injury on Greene’s physical abilities. His opinions emphasized that on June 11, 2020, Greene suffered a serious injury to his left arm when a fluorescent light bulb exploded during a change, causing immediate tissue disruption and bleeding in the left biceps area. Moss, drawing on his experience as an orthopedic surgeon for military personnel, asserted that the traumatic laceration of tissue in Greene’s left arm resulted from a force comparable to that experienced by military personnel injured by explosive ordnance of fragmentation devices. This distinction was crucial, indicating a highly violent force, as opposed to the type of injury that would typically result from a simple fall onto the bulb.
The Defendant sought to exclude specific testimony from Moss, specifically objecting to any opinions related to the fluorescent lamp at issue and the manner in which broken glass from the lamp might have caused Greene’s injury. The motion specifically aimed at precluding Moss from asserting that Greene’s injury resulted from an explosion or, based on his military experience, that the traumatic laceration was due to a highly violent force comparable to injuries sustained by soldiers exposed to explosive ordnance or fragmentation devices.
On May 26, 2023, the Plaintiffs revealed Thomas Kelly as their expert in the case. Kelly, a licensed electrical engineer employed by the Warrant Group, Inc. since 2017, specialized in consulting on property damage and injuries related to electrical equipment.
As part of his investigation, Kelly conducted three key activities: (1) examined the clothing worn by Plaintiff Greene on the day of the incident, (2) scrutinized lamps retrieved from adjacent fixtures at the facility, and (3) conducted a meeting with Plaintiff Greene to inspect, document, and photograph the light fixture and facility in question. In addition to these on-site activities, Kelly also reviewed various documents, including Plaintiff Greene’s deposition transcript, the emergency medical services and police reports from June 11, 2020, an invoice from Lloyd’s Electrical Service dated December 31, 2013, Safety Data Sheets for Sylvania fluorescent light bulbs, and photographs taken at the scene of the incident.
In his analysis, 1) The lamp’s power was cut off via the circuit breaker panel before the lamp-changing process, disconnecting the energy source for the fixture. The incident was not a result of an electrical failure in the building’s electrical system.
2) The light fixture in question contained a single electronic ballast, with no battery backup or stored energy. Power to the fixture had been deactivated by opening the related circuit breaker before the process began. Plaintiff Greene showed no observable burn marks on his hands, indicating no contact with an energized source. The light fixture was returned to service after replacing the lamps post-incident, and the issue was not caused by an electrical failure in the fixture.
3) Fluorescent lamps are constructed with thin glass tubing, coated with phosphorus on the inside. Glass end caps, tungsten filaments, and mercury vapor are components added during the assembly process, with stress accumulating during these steps. A defect in any component, influenced by these stresses, can act as a trigger. Kelly’s analysis concludes that the failure of the lamp resulted from a defect in the fluorescent lamp assembly, to a reasonable degree of engineering certainty.
On May 26, 2023, the same day Plaintiffs revealed Kelly as their expert, Defendant initiated a motion for summary judgment. In support of this motion, Defendant submitted declarations from its experts: David W. Powell, a mechanical engineer, and Erick H. Knox, Ph.D., P.E., a biomedical engineer. Additionally, Defendant filed a declaration from its corporate representative, Danielle Sohl. In response, Plaintiffs submitted Kelly’s Declaration:
It clarifies discrepancies in Plaintiff Greene’s initial description of the lamp removal process. He reaffirms his opinions on the lamp failure despite the correction in the direction of movement. Kelly discusses the ladder’s specifications, noting that the fly section’s load-bearing capacity is contingent on the entire assembly supporting the rated weight. He addresses marks on the walls, attributing them to various tools and parts rather than the ladder. Refuting Defendant’s hypothesis on the ladder’s position during the incident, Kelly highlights inconsistencies with the broken cover plate and plastic piece. He mentions challenges in evaluating debris due to safety concerns during the pandemic, emphasizing Greene’s account and post-incident photographs as primary evidence. Kelly references NFPA 921, asserting that while the lay term “explosion” was used, the circumstances don’t align with the standard’s definition. He applied NFPA 921 guidelines considering witness statements and photographic evidence. Regarding the SDS for the lamp, Kelly contends that the lack of warnings left Greene unaware of the hazard’s severity, leading to Defendant’s failure in providing adequate warnings.
Defendant filed two motions seeking to exclude certain expert testimony from Plaintiffs’ expert Thomas Kelly, an electrical engineer, as well as a motion to strike Kelly’s subsequent declaration.
Electrical Engineering Expert Witness
Thomas J. Kelly has substantial educational background including a Bachelor of Science in Electrical Engineering and a Master of Science in Electrical Engineering from Florida Atlantic University. He further completed Master of Business Administration from Winthrop University. He investigates the cause and scope of damage for fire, explosion, and property loss incidents. He is certified as a Fire and Explosion Investigator. He is employed with The Warren Group, Inc., as a senior consulting engineer
Orthopedic Surgery Expert Witness
Dr. Joshua P. Moss has an educational background consisting of a Bachelor of Science from the University of Notre Dame and a Doctor of Medicine from Vanderbilt University School of Medicine. His residency was in Orthopaedic Surgery at the University of North Carolina, Chapel Hill School of Medicine. He then completed a fellowship in Mary S. Stern Hand Surgery at the University of Cincinnati. Moss is board certified by the American Board of Orthopaedic Surgery . His specialties include orthopedics and hand surgery. He began his practice at University Orthopaedic Surgeons in 2016.
Discussions by the Court
The Defendant put forth several grounds in support of its motion to exclude specific aspects of Moss’s testimony. Firstly, the Defendant contended that Moss lacked sufficient knowledge concerning fluorescent light bulbs, emphasizing his absence of experiments to determine whether Greene’s injury could have resulted from impaling an arm on the broken end of a fluorescent lamp. Additionally, the Defendant asserted that Moss lacked experience in designing or manufacturing fluorescent light bulbs. Citing Moss’s deposition testimony, the Defendant argued that he conceded the existence of a viable alternative cause for Plaintiff Greene’s injury. Ultimately, the Defendant sought the Court’s intervention to exclude these opinions from Moss as unreliable.
Plaintiffs responded by asserting that Moss’s anticipated testimony was well within the scope of his expertise. They emphasized his background as an orthopedic surgeon for military personnel and his direct involvement in treating Plaintiff Greene. Plaintiffs argued that Moss’s opinions, rooted in his relevant experience, were reliable. While acknowledging that Moss is not an expert on light bulbs, Plaintiffs contended that the Defendant failed to provide a valid basis for excluding his opinions. They further asserted that the Defendant misrepresented Moss’s deposition testimony and contended that the challenges to his opinions were more appropriately addressed through cross-examination during the legal proceedings.
The Defendant, in its reply, maintained that Moss should not be permitted to present causation opinions during the trial. The Defendant argued that Moss had not personally conducted any testing to determine if Plaintiff Greene’s injuries could have resulted from an allegedly exploding fluorescent lamp. The Defendant emphasized that Moss had not undertaken any investigation into the accident beyond examining Plaintiff Greene’s wounds. Additionally, the Defendant highlighted Moss’s lack of experience in the manufacturing of fluorescent light bulbs. Based on these points, the Defendant asserted that excluding Moss’s causation opinion was justified.
During the hearing, the Defendant clarified its stance, indicating that it did not contest Moss’s opinions regarding the similarity of Plaintiff Greene’s injury to battlefield injuries or the assertion that the injuries resulted from glass. The Defendant also expressed lesser concern about Moss’s testimony characterizing the injuries as consistent with a “highly violative force.” However, the Defendant argued that Moss should be prevented from asserting that Plaintiff Greene’s injury specifically resulted from an exploding or imploding light bulb. In response, the Plaintiffs contended that the challenges raised by the Defendant pertained more to the weight of Moss’s opinions rather than their admissibility.
Citing relevant cases such as In re Aredia & Zometa Prods. Liab. Litig., 754 F. Supp. 2d 934, 937 (M.D. Tenn. 2010), there is a fundamental distinction between a treating physician’s ability to diagnose a medical condition based on clinical experience and their capacity to offer an opinion on the causation of the patient’s injuries. The case emphasizes that while a treating physician can provide a diagnosis, their opinions on the source or causation of the diagnosed condition may be restricted. It underscores the principle that a treating physician, without an expert report, is not allowed to go beyond information acquired during the treatment to offer opinions on the causation of injuries.
Plaintiffs argued that Moss had experience treating individuals with injuries related to glass. However, Moss admitted that, apart from installing them in his garage, he lacked familiarity with fluorescent light bulbs and did not consider himself an expert on them. Federal Rule of Evidence 702 was referenced to underscore the requirement that expert testimony should be based on an accepted body of learning or experience in the expert’s field. Moreover, Moss, aside from relying on Plaintiff Greene’s account, had not conducted an independent investigation into the accident to verify that the light bulb had indeed exploded.
Additionally, Moss acknowledged an inability to rule out alternative causes for Plaintiff’s injuries. Citing the case, Wilson v. Taser Int’l, Inc., 303 F. App’x 708 (11th Cir. 2008), where a treating physician’s testimony attributing an injury to a taser gun was deemed unreliable, the Court concluded that Moss was not permitted to provide opinions concerning the fluorescent lamp in question or how broken glass from that lamp may have caused injury to the Plaintiff.
During the Daubert hearing on November 16, 2023, Kelly provided testimony about his professional background, detailing his fifteen years in facilities management with formal training on equipment such as ladders and fire extinguishers. In his current role, he specializes in fire, shock, and electrical investigations. Kelly asserted that the incident resulted from the fluorescent light bulb imploding and expelling glass material. He clarified the distinction between “implosion” and “explosion” based on NFPA definitions, highlighting that an implosion, as observed in this case, may be colloquially perceived as an explosion. To reach his conclusions, Kelly examined the building’s use, assessed the electrical circuit and wiring, disassembled the light fixture, and met with Plaintiff Greene to understand his perspective. Confirming the functionality of the fixture and finding no defects, Kelly ruled out electrical failure. He utilized his knowledge and experience to hypothesize, evaluate potential causes, and ultimately concluded that a manufacturing defect in the light bulb caused the incident.
During the testimony, Kelly affirmed his familiarity with the light bulb in question, citing his experience using and purchasing it during his tenure as a facilities manager. He also acquired knowledge of the bulb’s manufacturing process from a documentary. Kelly supported his opinion that the incident was not caused by improper handling by referencing Plaintiff Greene’s demonstration and noting the absence of trauma to Greene’s hands.
Kelly clarified that his opinions in the Declaration were responsive to the declarations of Defendant’s experts supporting the summary judgment motion. Regarding paragraph 6 of his Declaration, Kelly explained his interpretation of ladder weight limits based on his experience and training. The opinions in paragraph 8 stemmed from his review of photographs and professional experience, where he observed no scuff marks on the floor, indicating the ladder did not slide down the wall.
In his Declaration, Kelly mentioned concerns about bloodborne pathogens and pandemic-related cleanup. During testimony, he emphasized his knowledge of injuries involving bleeding, his multiple bloodborne pathogens training sessions, and his participation in a medical emergency response team with a previous employer.
During the Daubert hearing, Kelly testified to his extensive experience in facilities management, emphasizing his training in ladders, fire safety, and electrical investigations. He explained his conclusion that the incident resulted from the fluorescent light bulb imploding and ejecting glass, clarifying the technical definition of “explosion” and detailing his examination of the building’s usage, electrical circuit, and the light fixture’s components.
Kelly affirmed his familiarity with the specific light bulb through prior usage and purchases, as well as viewing a documentary on its manufacturing process. He defended his opinions in response to Defendant’s expert declarations, providing context for his interpretations. On cross-examination, Kelly acknowledged his lack of expertise as a ladder specialist or accident reconstructionist but defended his hypothesis about the light bulb’s spontaneous failure due to a manufacturing defect.
Kelly admitted to not having investigated the manufacturing process, quality control, or conducting specific tests on exemplar bulbs. He highlighted his reliance on Plaintiff Greene’s account and dismissed alternative causes, emphasizing his inability to test the actual subject light bulb. The defense questioned his analysis of marks on the wall and ladder placement, challenging the adequacy of his investigation. Kelly defended his lack of testing, citing unavailability of the subject light bulb and reliance on Plaintiff Greene’s account.
In re-direct examination, Kelly maintained that something caused the light bulb to implode, stressing factors like temperature changes. He admitted to the absence of testing records due to the closure of the manufacturing plant. Kelly clarified that his failure-to-warn opinion was a facilities manager’s perspective, not an engineering standpoint, responding to Powell’s description of implosion in his testimony.
Defendant seeks to exclude Kelly’s testimony, contending it lacks relevance and is based on insufficient facts or unreliable methodology under Rule 702 and Daubert. Defendant moves to strike Kelly’s opinions expressed in his Declaration, claiming they are untimely under the Scheduling Order and inadmissible. Plaintiffs argue that Kelly is qualified, and his opinions are based on thorough review, utilizing a valid process of elimination. Plaintiffs assert that Sohl’s deposition undermines Powell’s theory. Defendant’s reply insists on Kelly’s failure to identify a product defect, lack of proper testing, and presents new opinions beyond his expertise. The debate also touches on the timeliness of Kelly’s Declaration and the potential for a supplemental deposition.
The Court emphasized the flexibility of the Daubert test, acknowledging various factors in assessing reliability. The burden of proving admissibility lies with the party offering the expert. In this case, the Court determined that Kelly’s opinion on the cause of the incident lacked reliability, leading to its inadmissibility. The Court also questioned Kelly’s qualifications regarding warnings and considered his opinion on the cleanup process as speculative.
The Court, in assessing Kelly’s qualification to opine on Plaintiff Greene’s handling of the light bulb, found the opinion lacked reliability due to insufficient facts and data. Kelly’s reliance on Plaintiff Greene’s reenactment, without proper testing or verification of key aspects, raised concerns about the accuracy of the conclusion. The Court highlighted discrepancies in the reenactment, such as the ladder type used, rung spacing, and the attempt to change the bulb using the ladder’s top fly section. Additionally, Kelly’s speculative opinions on wall marks, scuff marks, electrical conduct, and debris investigation were deemed unreliable and unsupported. The Court referenced the analytical gap between data and opinion, emphasizing the need for a valid scientific basis.
The Court contested Kelly’s qualifications to assert a manufacturing defect in the light bulb assembly, challenging his expertise as a licensed professional engineer and facilities manager. Despite his background, the Court found Kelly lacked the necessary qualifications to testify on a manufacturing defect in a fluorescent light bulb. His limited familiarity, derived from watching a video, and the absence of experience in designing or manufacturing such bulbs were deemed insufficient. Moreover, the Court critiqued Kelly’s methodology, citing the Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir. 2000) case and emphasizing the failure to conduct reliable laboratory testing to validate his hypotheses. Kelly’s reliance on Plaintiff’s statements without proper testing and failure to verify key aspects rendered his opinion on manufacturing defects inadmissible.
The Court contested Kelly’s qualifications to opine on warnings, as Plaintiffs failed to establish his expertise in the field relevant to warnings. While Plaintiffs argued Kelly’s experience as a facilities manager and familiarity with Occupational Safety and Health Administration (“OSHA”) standards rendered him capable, the Court found this insufficient, emphasizing the absence of qualifications in the adequacy of warnings based on Kelly’s curriculum vitae. Therefore, the Court deemed Kelly unqualified to offer an opinion on warnings. Additionally, the Court addressed Kelly’s opinion about the cleanup process, finding it speculative and inadmissible due to the lack of factual foundation for his statement about the disposal of debris.
Rule 26(a)(2) of the Federal Rules of Civil Procedure governs expert disclosures, requiring parties to disclose witnesses and provide a written report for retained experts. The Scheduling Order sets deadlines for expert disclosures and permits rebuttal opinions within 30 days after the other party’s disclosure. Rule 26(a)(2)(D)(ii) defines rebuttal evidence as intended to contradict or rebut evidence on the same subject matter. Plaintiffs, in this case, disclosed expert opinions within the specified deadlines, and Defendant contested certain opinions in Kelly’s Declaration as untimely. Defendant challenged four opinions in Kelly’s Declaration: “(1) certain black marks on the wall are as likely to be from other sources from the ladder [Plaintiff] Greene was using, (2) a plastic piece on the floor does not match the missing portion of an electrical outlet cover, (3) certain NFPA guidelines do not apply to this case, and (4) [Defendant] failed to warn that if broken, a fluorescent lamp can implode, dispersing glass fragments.” The Court ruled against striking most opinions but found one regarding failure to warn untimely, excluding it under Rule 37.
Defendant contends that Kelly is introducing new information in his analysis, which could have been considered earlier. Plaintiffs argue that Kelly’s opinions are valid rebuttals to Knox, responding to inconsistencies in Plaintiff Greene’s account of certain black marks on the wall and a plastic piece on the floor highlighted by Knox. The Court deems Kelly’s opinions on these matters as appropriate rebuttal testimony and rejects the motion to strike them.
Defendant claims that Kelly’s statement in his declaration about the lamp failure not fitting the NFPA 921 standard is an attempt to alter his previous deposition testimony. Plaintiffs argue that their response to Defendant’s summary judgment motion required Kelly to review and address new information provided by the Defendant. The Court determines that Kelly’s statement is not an effort to change his deposition testimony, and as a result, declines to strike it.
The Court determines that regardless of whether Kelly’s opinion introduces a new theory of liability, it is not a proper rebuttal opinion. Defendant’s experts did not provide opinions on warnings, as acknowledged by Kelly during the Daubert hearing. Since failure to warn is alleged in the Amended Complaint and Kelly disclosed in his initial disclosure that the light bulb exploded, the Court concludes that Plaintiffs should have initially disclosed an opinion from an expert with the requisite qualifications regarding warnings. As they disclosed Kelly’s new opinions that he is not qualified to render, the Court finds that these opinions are not genuine rebuttal evidence and may be excluded.
The Court cites Rule 37(c)(1) of the Federal Rules of Civil Procedure, stating that if a party fails to provide required information or identify a witness as per Rule 26(a), they cannot use that information or witness unless the failure was substantially justified or harmless. The burden to show substantial justification or harmlessness lies with the potentially sanctioned party. The Court references the Sixth Circuit’s five factors for assessing whether a party’s omitted or late disclosure is “substantially justified” or “harmless,” including the surprise to the opposing party, the ability to cure the surprise, the extent of trial disruption, the importance of the evidence, and the nondisclosing party’s explanation for the failure to disclose the evidence. The Court refers to Howe v. City of Akron, 801 F.3d 718, 747-48 (6th Cir. 2015) for these factors.
The Court concludes that a majority of the factors favor the exclusion of Kelly’s opinions. Despite the Plaintiffs’ assertion that the Defendant cannot be surprised because Kelly’s original report allowed for supplementation with additional opinions, the Court emphasizes that such allowance does not permit the introduction of entirely new opinions in violation of the Scheduling Order. It notes that the Defendant lacks the ability to cure the surprise, even with the Plaintiffs’ offer to provide Kelly for a second deposition, as the Defendant would need to potentially retain its own warnings expert and prepare a rebuttal report. The Court underscores that there will be no trial disruption, but the discovery deadline has already expired. The Court also deems the importance of the evidence as favoring exclusion, pointing out that Kelly is not qualified under Rule 702 and Daubert to render the opinion on warnings. Finally, in terms of explanation, the Court rejects the Plaintiffs’ argument that Kelly’s opinion is a rebuttal, determining that it is not, and notes that the Plaintiffs were aware of the Defendant’s intention to submit evidence related to glass tube dispersion. The Court concludes that the Howe factors lean towards excluding Kelly’s opinions on warnings.
Held
The Court ultimately granted Defendant’s motion to exclude the testimony of Thomas J. Kelly in its entirety. The Court also granted in part and denied in part Defendant’s motion to strike the declaration of Thomas J. Kelly. The Court granted the Defendant’s motion to exclude specific testimony from Plaintiff’s expert witness, Joshua Moss.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case involved an injury allegedly caused by an exploding fluorescent light bulb. The Plaintiff disclosed his treating orthopedic surgeon, Joshua Moss, as an expert witness to testify about the cause of the injury, the details of treatment provided, the impact on the Plaintiff’s abilities, and the reasonableness of medical expenses. However, the Court granted the Defendant’s motion to exclude certain aspects of Moss’s proposed testimony.
Specifically, the Court found that while Moss could testify to his diagnosis and treatment of the Plaintiff’s injuries, he lacked sufficient knowledge and investigation to reliably opine on the cause of the injuries being an exploding light bulb. Moss admitted he was not an expert on fluorescent bulbs, did not investigate the accident scene, and could not rule out alternative causes. Thus, the key takeaways are that treating physicians can testify to diagnosis/treatment but cannot reliably testify to causation without proper expertise in the injury mechanism at issue and investigation excluding alternative causes. Lacking such foundation, the Court will exclude unreliable causation opinions even from an otherwise qualified expert.
The Court also excluded all opinions from Plaintiffs’ proffered electrical engineering expert Thomas Kelly after finding him generally unqualified and his methodology unreliable. Specifically, Kelly lacked specific qualifications and expertise to opine on alleged manufacturing defects in fluorescent light bulbs or the adequacy of product warnings. His opinions were also not grounded in sufficient facts, data, or testing to validate his hypotheses. He failed to properly test or investigate alternative theories. This reliability gap proved fatal to the admissibility of his causation opinions.
The case shows that practical experience alone may not qualify someone to provide expert opinions if that experience does not directly correlate to the specific issues in the case. It also demonstrates that while an expert can rely on a hypothesis and process of elimination, testing and factual data are still required to establish opinions as reliable and admissible. Failing to follow reliable principles and methods consistent with the facts renders expert testimony unreliable and subject to exclusion no matter the expert’s qualifications. Parties must vet experts thoroughly regarding qualifications and methodology before disclosure.
