This case arises from a boating accident at Lake Powell on July 29, 2018. Plaintiff, while aboard a Moomba Mondo ski boat purchased from Rocky Mountain Boat Company (ROMOBOCO), was injured when a carabiner (the Subject Carabiner) suddenly failed and struck her in the head. Plaintiff survived, but she allegedly suffers from permanent disabilities due to the accident. Unfortunately for all parties, shortly after the accident, the rope and carabiner at issue were disposed of by another passenger on the boat.
On July 20, 2020, Plaintiff filed suit against ROMOBOCO, the seller of the Moomba, and later amended the complaint to add two companies believed to be involved in the manufacturing and/or distribution of the Subject Carabiner, Attwood Corporation and Land ‘N’ Sea Distributing, Inc.
Attwood and LNS filed a motion to strike Plaintiff’s expert, Dr. Adam Aleksander, contending his product identification opinion is unreliable.
Aleksander concluded that the carabiner clip that struck Plaintiff (the “Subject Carabiner Clip”) is “one and the same product” as an anchor line and rope product sold by Defendant Attwood Corporation (the “Attwood 11723-7”) and that “there are no significant differences between” the Attwood 11723-7 product and the “device in the incident injury.”
Mechanical Engineering Expert Witness
Adam Aleksander holds Mechanical Engineering degrees from San Jose State University (B.S.) and the University of Colorado (M.E), and an Industrial Engineering degree from Texas A&M University (Ph.D.).
He is experienced in investigation techniques, reconstruction, photogrammetry, and reconstruction of incidents that involve property loss, injuries and fatalities. Aleksander’s PhD training is in Human Factors Engineering and Safety Engineering.
Aleksander was not in a Position to Differentiate between the Defendant’s Product and its Competitors
Aleksander came to his product identification opinion based on a comparison of a photograph of the Attwood 11723-7 and a photograph taken by the National Park Service (“NPS”) of the the Subject Carabiner Clip. However, he also identified key differences between the Subject Carabiner and the Attwood 11723-7.
His opinion is not that he thinks the Subject Carabiner is the Attwood product to the exclusion of other products. Similar products made by other manufacturers constitutes an obvious alternative explanation. While it is not necessary to rule out every possible alternative, it is necessary to account for obvious alternatives. In his deposition, Aleksander testified that he did not compare any other product with the NPS photographs.
The Court, therefore, finds that Aleksander’s opinion is not based on sufficient facts, because he failed to consider any alternative product that could have been the Subject Carabiner.
Aleksander did not use a Physical Exemplar of the Attwood 11723-7 to Reach his Conclusions
Attwood and LNS argued that Aleksander’s opinions are not based on a reliable application of his methodology to the facts, because he did not use a physical exemplar of the Attwood 11723-7 to reach his conclusions. Instead, he digitally inverted the photograph of the Attwood 11723-7 to match the orientation of NPS photograph.
The reliability of the application of this methodology is questionable; however, the Court need not address it because, as explained above, the failure to compare the photograph to other potential products makes the product identification opinion unreliable.
Finally, all disclosures under Rule 26 have to be in writing, signed, and served. However, the Court did not consider the supplemental report because it is not related to Aleksander’s product identification opinion.
Held
The Court granted Attwood and LNS’ motion to strike Plaintiff’s expert, Dr. Adam Aleksander.
Key Takeaway:
Aleksander failed to consider any alternative product that could have been the Subject Carabiner. Similar products made by other manufacturers constitutes an obvious alternative explanation. While it is not necessary to rule out every possible alternative, it is necessary to account for obvious alternatives. In his deposition, Aleksander testified that he did not compare any other product with the NPS photographs.
This case stems from a tire blowout that occurred while Plaintiff Kenneth Harris was at work driving his employer’s truck, which was outfitted with tires manufactured by Defendant Michelin North America. That tire blowout caused Harris’s truck to flip multiple times, resulting in injuries to his “neck, back, hip, arm, elbow, and head.”
Causation is a central issue. The parties disagree about what—and who—caused the blowout. Harris contended that the blowout was caused by a manufacturing defect attributable to MNA.
To support his theory, Harris relies on expected testimony from expert Brian Darr, who in his report presented three possible theories to explain the tire blowout: (1) the “Trapped Air” theory, positing that the blowout was caused by air trapped between the belts of the tire, which could only be caused by a manufacturing defect (2) the “Open Inner Liner Splice” theory, positing that an open inner-liner splice caused the blowout, and that the tire must have left the manufacturing facility with the open splice and (3) the “Thin Inner Liner” theory, positing that the tire’s inner liner was too thin when it left the manufacturing facility, which caused Harris’s accident. MNA argued that Brian Darr’s proposed testimony did not satisfy Daubert and Federal Rule of Evidence 702.
MNA also filed a Motion for Summary Judgment, which argued Harris has failed to point to sufficient evidence, expert or otherwise, “to create a fact issue regarding any claim asserted against MNA.”
Mechanical Engineering Expert Witness
Brian Darr has over 25 years of extensive experience with tires including failure analysis, design, development, manufacturing, quality investigation, race tire preparation, and testing of tires at numerous testing facilities. He worked in a tire manufacturing facility as a plant technical engineer where he investigated quality related issues, and in a Research & Development (R & D) center where he designed, developed, tested, and analyzed tires. Darr has visited numerous tire production plants such as Goodyear, Bridgestone, Michelin, and Continental tire.
Darr is a graduate of The Ohio State University with a Bachelor of Science Degree in Mechanical Engineering.
The Court held a hearing on April 30, 2024, where Darr testified regarding his three theories. At that hearing, Harris withdrew Darr’s Thin Inner Liner theory (theory number three), and the Court ordered supplemental briefing on Darr’s remaining Trapped Air and Open Inner Liner theories. The parties filed their supplemental briefs and Darr submitted a supplemental report. However, in response to Harris’s supplemental filings, MNA filed its Objection and Motion to Strike Darr’s Second Report, arguing that Darr had impermissibly updated his sources and expert theories.
Finally, on June 26, 2024, the Court held a hearing regarding Darr’s testimony and the status of the case, which all parties attended through counsel. All currently pending motions have been thoroughly briefed and discussed; they are ripe for adjudication. The central motion at this juncture is MNA’s Motion to Exclude Brian Darr under Daubert and Rule of Evidence 702, because MNA’s Motion for Summary Judgment rests on an argument regarding Harris’s expert evidence.
The Parties’ Motions to File Supplemental Briefs are Granted, and Defendant’s Motion to Exclude the Expert Testimony of Brian Darr is Granted in Part and Denied in Part
Defendant MNA’s Motion to Strike is granted as to Darr’s Open Inner Liner Splice theory because Plaintiff Harris has failed to establish this theory’s reliability
The Court held that the Open Inner Liner Splice theory fails the fourth Daubert factor—general acceptance within the relevant scientific community. This is because Darr failed to sufficiently consider or rule out that a prior impact, rather than a manufacturing defect, might have caused the opening in the tire’s inner liner over time.
Darr invoked the process of elimination to reach his conclusion that a manufacturing defect caused the open inner-liner splice. Thus, because he “determined that the open inner liner splice was not as a result of impact or over deflection,” “a manufacturing defect [w]as the only possible explanation for why there was an open inner liner splice.” But there is a problem with Darr’s premise that excludes an impact as a possible cause of the splice.
Here, there is evidence of a prior impact, specifically a “V” shaped area on the tire carcass. Darr summarily discounted this as evidence of a possible impact because the “V” shaped area “is not consistent with real-world impact testing results so as to be considered evidence of an actual impact that could cause an inner liner splice to open.” The real-world impact test Darr cited to support this conclusion, however, is a single impact-analysis study at odds with the consensus of experts within the tire industry.
Darr, in other words, ruled out and failed to otherwise consider an impact as a possible cause of the open inner-liner splice based on this lone eight-tire study that runs against the expert consensus.
Darr’s Trapped Air theory, on the other hand, fares better for Harris because Darr sufficiently explained the basis for the theory
Darr cited the existence of trapped air in the subject vehicle’s companion tires, compared the “trapped air in the subject tires to peer reviewed documents containing images of trapped air,” and examined the structure and wear patterns of the tires to conclude that the subject tire contained trapped air. The Court found this analysis sufficiently reliable.
Defendant MNA’s Motion for Summary Judgment and Motion to Strike the Declaration and Second Supplemental Report of Brian Darr are Moot
Because MNA’s motion for summary judgment invokes the asserted insufficiency of Harris’ expert evidence, the Motion was effectively declared moot in light of this order. The Court cannot parse the motion to determine which portions of it remain at issue. The Court, however, allowed MNA to file an amended motion within thirty (30) days of the date of this order, if desired. Likewise, Defendant MNA’s objection to post hearing evidence and motion to strike declaration and second supplemental report of Brian Darr were also declared moot. As discussed at the June 26 hearing, the Court held that MNA may redepose Darr for up to three hours via videoconference regarding any of Darr’s Trapped Air Theory sources or conclusions that MNA feels were improperly used in Darr’s supplemental report.
Held
The Court granted in part and denied in part the Defendant MNA’s motion to exclude the testimony of Brian Darr.
Key Takeaways:
Darr should’ve considered that a potential impact might cause the open inner-liner splice over time, or he should have further explained why an impact could not the type of blow out seen here. Instead, he dismissed a potential impact as a possible cause based on a lone study at odds with the industry-expert consensus. The Court held that his failure to further engage with a potential impact as a possible cause required, at a minimum, more discussion.
Defendant MNA contended that the trapped air theory did not meet the requisite standard because the subject tire was missing a steel band, trapped air could develop over time, and the published literature contradicted Darr’s theories. The Court held that these arguments did not carry the day because Darr’s report pointed to evidence sufficient to credit his trapped air theory at that stage.
This matter arises from the tragic death of James Lemaster, a technician employed by Orbis Corporation at the company’s manufacturing plant in Georgetown, Kentucky. Lemaster’s job duties involved fitting industrial molds for filling and pressing to produce various made-to-order plastic hardware. On August 12, 2021, Lemaster was operating a hoist crane to lift and move a large mold encased within a mold fixture. The crane was hooked onto the mold fixture with a swivel hoist ring manufactured by Defendant American Drill Bushing (“ADB”). While the mold and mold fixture were suspended twenty feet above ground, ADB’s swivel hoist ring failed causing the mold and fixture to fall. Lemaster was struck by the falling mold and fixture, and he was killed on impact.
Plaintiff filed the instant lawsuit on behalf of Lemaster’s estate and alleged that the fatality was the result of negligence on the part of ADB and/or Defendant Strohwig Industries, Inc. (“Strohwig”).
Strohwig filed a motion to exclude certain testimony by Plaintiff’s expert Paul Sweeney, a mechanical engineer, with regard to Sweeney’s statements alleging that Strohwig and American Bushing were aware of why the lifting bracket failed but are intentionally not disclosing that information.
Mechanical Engineering Expert Witness
Paul Sweeney is a registered professional mechanical engineer in the State of Connecticut with decades of experience in the field of cranes and rigging.
Sweeney began his career in 1984 by graduating #1 in his class at the GDEB Career Development Program which places engineers in the shipyard as supervisors after intensive training. Sweeney has held several positions at GDEB. As Ship Superintendent he managed the construction of missile compartments on Trident submarines. In 1990 Sweeney was promoted to the position of Supervisor of Crane Engineering where he held technical oversight for the safety, repair, maintenance, modification, overhaul, inspection, quality control, testing, and certification of Electric Boat’s cranes and nuclear lifting and handling equipment.
The Court held that Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals. Plaintiff did not offer Sweeney as an expert on those topics. Nor did he profess to be such an expert. He is a mechanical engineer. Accordingly, the Court will grant the motion to exclude any testimony from Sweeney that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.
Strohwig also objected to a statement in which Sweeney seemed to indicate that the Strohwig lifting bracket may have caused the swivel hoist ring to fail. However, Plaintiff conceded that there is no evidence in the record to support Sweeney’s statement that the lifting bracket may have caused the swivel hoist ring to fail. Accordingly, the Court prohibited this testimony.
In its motion to exclude Sweeney, Strohwig also moved the Court to strike Sweeney’s report from the record, largely because of the accusations that Strohwig and American Bushing knew of the cause of the accident and have withheld that information. While Plaintiff did not object, the Court denied this portion of the motion.
Held
The Court granted in part and denied in part Strohwig’s motion to exclude Paul Sweeney’s testimony.
Key Takeaway:
Since Sweeney is not an expert on what the representatives of either American Drill or Strohwig know about the accident or on the credibility of individuals, the Court rejected any testimony by Sweeney that indicated that either Defendant knew why the lifting bracket fell and was intentionally withholding that information.
This matter concerns a maritime personal injury. On May 19, 2023, Bunting filed this case against Odyssea, alleging claims for Jones Act negligence, unseaworthiness, and negligence under general maritime law and state law, and seeking damages for injuries to his back, legs, knees, and feet.
Facts
In March 2018, Odyssea hired Bunting to work as a vessel captain. Bunting worked on vessels for 30 years and was a licensed captain for 20 of those years. In May 2021, Odyssea assigned Bunting to the M/V Odyssea Titan (“Odyssea Titan”), a 225-foot offshore supply vessel that is inspected and properly documented by the United States Coast Guard.
On April 20, 2022, the Odyssea Titan departed from Fourchon, Louisiana, to conduct cargo operations at drilling platforms in the Gulf of Mexico. During the voyage, Bunting and the first mate, Robert Weiss, alternated 12-hour watches, with Bunting being on duty from noon to midnight. Around 9:00 a.m., on May 25, 2022, Bunting was off duty and sleeping when he was awakened upon being bounced up and down in his bunk as the vessel was conducting cargo operations. Bunting went to the bridge to investigate why the vessel was “slamming” so heavily. He discovered that Weiss, at the direction of the platform’s crane operator, had positioned the vessel so that its stern was facing directly into the waves.
Bunting retained G. Fred Liebkemann, IV as his liability expert. Liebkemann, a licensed mechanical engineer, holds a bachelor’s of science degree in mechanical engineering from the University of Miami (1986), and completed one-and-a-half years of post-graduate study in mechanical engineering at Louisiana State University.
Odyssea filed a motion to exclude or limit Liebkemann’s proposed testimony from trial because his opinions did not relate to his area of expertise – mechanical engineering – but rather addressed vessel design and operations, topics about which he is unqualified to render expert opinions.
Mechanical Engineering Expert Witness
G. Fred Liebkemann, IV, a licensed mechanical engineer, holds a bachelor’s of science degree in mechanical engineering from the University of Miami (1986), and completed one-anda-half years of post-graduate study in mechanical engineering at Louisiana State University. He also has a certificate of achievement in automobile accident reconstruction.
He has designed several pieces of equipment, including cranes and other material handling equipment, oilfield equipment and structures, and certain kinds of vessels and marine components.
In his April 8, 2024 report, Liebkemann discussed the facts of the incident that he gleaned from Bunting’s deposition, specifically, that Bunting was thrown into the air while he slept because the vessel was slamming when floating high in the water with its stern facing the waves. Then, citing a study from 1970, Liebkemann explained the concept of vessel slamming, stating that it occurs when a vessel is lightly loaded and positioned with its stern facing rough waves.
Liebkemann ends his report by stating six opinions:
On account of its design, the Odyssea Titan experiences slamming when lightly loaded while station keeping in moderate following seas.
The role of the vessel when attending the customer’s platform involves station keeping per the customer’s requirements. These requirements often place constraints on both the position and the heading of the vessel.
The ability of the vessel’s master to correct the slamming issue by adding seawater ballast aft of the vessel’s center of gravity is curtailed by the reservation of all suitably sized and located tanks for cargo. Unwritten rules enforced by the owner’s office staff effectively prevent the use of cargo tanks for seawater ballast.
The conflict between the role of the vessel and the capabilities of the vessel is not addressed [in] the portions of the SMS document shared to date. The Operations Manual for the Odyssea Titan has not been provided to date.
Standing instructions to avoid headings that induce severe slamming of the stern while station keeping would have prevented the incident.
Captain Bunting was off duty and asleep in his bunk when he was injured. No action of his contributed to his injury.
Liebkemann is not a naval architect or marine engineer
Odyssea also contended that Liebkemann is unqualified to render the opinions set forth in his report because he is not a naval architect or marine engineer and the Court has never accepted him as an expert in either of those fields. With respect to Liebkemann’s specific opinions, Odyssea argued that Liebkemann parroted Bunting’s testimony; Liebkemann’s commentary on bottom slamming and his opinion regarding the vessel’s design fell within the expertise of a naval architect, not a mechanical engineer; and Liebkemann improperly relied on an outdated and inapposite study to support his statements. Also, Odyssea urged the Court to exclude Liebkemann’s calculations on draft and weight because they are incomplete and, thus, misleading and confusing. As to Liebkemann’s remining five opinions, Odyseea argued that they relate to vessel operations, a topic on which Liebkemann is unqualified to render opinions as he has no experience in that area.
Bunting indicated that, at a client’s request, Liebkemann once took over a project for a certified marine architect. As to Liebkemann’s remaining five opinions, Bunting argued that Liebkemann’s experience as a crane operator qualified him to opine on vessel operations.
The Court held that Liebkemann cannot offer any of his proposed opinions regarding the cause or effect of vessel slamming or any potential remedy. The Court considered his opinions as untethered from his actual area of expertise, mechanical engineering. He has no education or experience in overall vessel design, nor did he perform any calculations demonstrating the forces at work on the Odyssea Titan at the time of the incident.
Although he may have some experience in crane operations, this case is about the operation and handling of a vessel, not a crane.
Liebkemann’s last opinion is a legal conclusion
Liebkemann’s last opinion – viz., that Bunting did not contribute to his injury – is a legal conclusion and did not fall within the province of an expert. As a whole, the Court concluded that Liebkemann will bring no more to the jury than will be available through Bunting’s testimony and lawyer argument.
Held
The Court granted Odyssea’s motion to exclude or limit Liebkemann’s proposed testimony from trial because his opinions failed to satisfy the requirements of Rule 702.
Key Takeaway:
Rule 702 also requires that an expert be properly qualified. Generally, if there is some reasonable indication of qualifications, the district court may admit the expert’s testimony, and then the expert’s qualifications become an issue for the trier of fact. A witness qualified as an expert is not strictly confined to his area or practice but may testify regarding related applications; a lack of specialization goes to the weight, not the admissibility of the opinion. While nobody challenged Liebkemann’s qualifications as a mechanical engineer, his report and deposition demonstrate that he is not qualified to render his proposed expert opinions because those opinions concern principles of naval architecture, marine engineering, and vessel operations or, more precisely, ship handling or vessel maneuvering.
The Court excluded Liebkemann’s testimony from trial due to his lack of qualifications in the fields of naval architecture, marine engineering, and vessel operations, and because it is not more likely than not that his specialized knowledge will assist the trier of fact.
Plaintiff Nathan Cottrill (“Plaintiff” or “Cottrill”) filed a lawsuit against Defendant Tricam Industries, Inc. (“Defendant” or “Tricam”), alleging product liability and breach of implied warranty.
Nathan Cottrill, a Best Buy Geek Squad employee, went to a client’s house on December 22, 2019, to mount two Sonos 5 speakers in an indoor basketball court. To carry out the installation, Cottrill utilized a ladder manufactured by the Defendant, a GLMPX-26 articulating ladder (“accident ladder”). After successfully ascending and descending the accident ladder twice, Cottrill proceeded to climb it for a third time, standing about 11 to 12 feet off the ground. Unexpectedly, he fell to the ground. According to Cottrill, the accident ladder was bent near a rivet point.
Cottrill stated that Mechanical Engineering Expert Witness, Kurt Whitling had identified the manufacturing defect that caused his fall.
Whitling authored an expert report on October 19, 2021, following his inspection of the accident ladder on September 15, 2021, twenty-two months after the incident. Whitling’s findings indicated that the failure seemed to have originated at a rivet hole on the left side of the ladder, proceeding almost entirely through the U channel. Additionally, he noted that the rivet hole was oblong in shape, and the oblong portion extended beyond a section of the U channel that measured 1/16” thick, into an edge that was 1/8” thick.
Tricam filed a motion to exclude Whitling’s opinions, along with a motion for summary judgment.
Tricam also filed a motion to exclude opinions contained in Kurt Whitling’s second and third Reports. Oral argument was held on October 19, 2023, during which Plaintiff withdrew Whitling’s second and third reports. The Court, therefore, denied as moot Defendant’s motion to exclude opinions contained in Kurt Whitling’s second and third Reports.
Mechanical Engineering Expert Witness
Kurtis G. Whitling is a mechanical engineer with experience in forensic engineering, and product design. Whitling has work experience in a wide range of fields and prides himself in applying sound engineering principles in every investigation.
Discussion by the Court
In addition to inspecting the ladder, Whitling stated that he reviewed the manual for the Gorilla Model GLMPX-13-17-22-26 and the technical specifications for that ladder from the Gorilla Ladder website.
Finally, Whitling articulated the following conclusions “to a reasonable degree of engineering certainty” based on his inspection and review:
At the time of the accident, Cottrill’s weight was much less than the ladder’s rated capacity of 375 pounds.
Cottrill properly set up the ladder as an extension ladder at the time of the accident.
Gorilla Ladders modified the hole in the left U channel portion of the ladder in order to install a rivet for the cross brace piece due to some unknown manufacturing issue. By modifying the U channel, the hole protruded into the thicker portion of the U channel. This significantly weakened the U channel and caused a large stress concentration in that area. Gorilla Ladders’ modification to the U Channel caused the failure of the ladder.
When Cottrill attempted to climb the ladder, the weakened U channel cracked, then twisted. The failure threw Cottrill from the ladder and caused the injuries.
Motion to Exclude the Opinions in the Whitling Report
Tricam asserted the following arguments in support of its motion to exclude the opinions in the Whitling Report: (1) the report did not comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)B); (2) the report provided insufficient evidence to show that Whitling was qualified to offer his opinions; and (3) the opinions in the report were not based on a reliable methodology.
Should Mechanical Engineering Expert Witness’ Report be Excluded Under Rule 26(a)(2)(B)
Tricam argued first that the Court should exclude Whitling Report from evidence because it did not set forth Whitling’s “experience or purported qualifications” and did not attach “a CV, rate sheet, or testimony list” as required under Federal Rule of Civil Procedure 26(a)(2)(B). In response, Cottrill explained that he had received both the Whitling Report and a separate document containing Whitling’s CV and testimony list in August 2021, but that his counsel had inadvertently failed to forward the document containing the CV and testimony list to Tricam when he served the Whitling Report. Here, the Court found that Cottrill had met his burden to show that his failure to timely disclose Whitling’s CV, rate sheet, and list of prior testimony was a harmless violation of Rule 26(a)(2)(B).
Whether Mechanical Engineering Expert Witness is Qualified to Offer His Expert Opinion
Tricam argued that Whitling lacked the necessary qualifications because “there is no evidence that he has ever designed, tested, manufactured or assessed ladders for purposes of defect or causation.”
In opposition, Cottrill noted that Whitling was a mechanical engineer and a registered professional engineer in Ohio. He explained that “the cause at issue here is two pieces of aluminum which were fastened by a steel rivet and that failed and pulled apart,” and asserted that this was an issue any engineer would be qualified to assess. As to specific experience relevant to Whitling’s opinions, Cottrill highlighted Whitling’s past work at a defense-oriented engineering firm and his asserted expertise in testing and analysis, origin and cause, and critical fastening – bolted joint failure analysis. The Court found the evidence sufficient to demonstrate that Whitling was qualified to offer an opinion as to whether a manufacturing defect was evident from a ladder with an elongated rivet hole.
Whether Mechanical Engineering Expert Witness Used a Reliable Methodology
Tricam argued that visual inspection was insufficient to support Whitling’s opinions, including his opinion that Tricam “modified the hole in the left U channel portion of the ladder . . . due to some unknown manufacturing issue.” As to this opinion, Tricam noted that Whitling did not, for example, compare the accident ladder to an exemplar or design drawings to confirm what “unknown manufacturing issue” spurred the contemplated modification to the hole. As to Whitling’s additional opinion that a modification to the rivet hole “significantly weakened the U channel and caused a large stress concentration in that area,” Tricam further argued that Whitling did not perform calculations to determine the stress concentration or assess the increased amount of stress caused by the modification.
The Court concluded that there was too great an analytical gap between Whitling’s stated findings and observations and his ultimate conclusions as to causation. His testimony was based on visual observations without calculations or testing and lacked comparison to design drawings or other ladders to explain and support his conclusions.
The Court granted the motion for summary judgment that Tricam filed before dismissing Cottrill’s complaint.
Held
The Court excluded the testimony of Mechanical Engineering Expert Witness Kurt Whitling for being unreliable. Then, the Court dismissed Cottrill’s complaint.
Key Takeaways:
Importance of Evidence Support: Tricam emphasized the necessity for comprehensive evidence supporting expert opinions. The Court deemed visual inspection alone insufficient to validate Whitling’s conclusions.
Analytical Gap Concerns: Tricam raised concerns about the analytical gap between Whitling’s observations and his ultimate conclusions regarding causation. The Court emphasized the need for a clearer connection between the evidence presented and the conclusions drawn.
Exemplars and Design Comparisons: Tricam highlighted the absence of comparisons between the accident ladder and exemplars or design drawings to confirm assertions regarding manufacturing issues. This suggests that thorough comparative analysis can strengthen expert opinions.
The case involved the Plaintiff, Anthony Cladd who fell and suffered injuries while using a shower stall at a truck stop owned by the Defendant, TA Operating, LLC. The Plaintiff asserted that the fall and injuries were a result of the shower stall being unsafe, and claimed that the Defendant breached a duty of care owed to him. The Plaintiff pursued legal action against the Defendant, alleging premises liability.
The Plaintiff claimed that the reason for his fall was the presence of standing water in the shower during use, stating that “The shower has a lot of standing water and was draining very slowly.” The Plaintiff alleged negligence on the part of the Defendant, asserting that they failed to maintain the shower drain, leading to a significant backup and slip hazard. Additionally, the Plaintiff accused the Defendant of failing to provide an anti-slip surface in the shower, neglecting to inspect the shower for unreasonably dangerous conditions, and not warning the Plaintiff about such conditions. The Plaintiff further claimed that the Defendant failed to correct the hazardous conditions, lacked adequate staff to inspect the shower, insufficiently trained their staff for identifying dangerous conditions, and did not adhere to its own corporate policies or have sufficient policies in place.
On June 6, 2022, the Court issued its Case Management and Scheduling Order, which set a deadline for the Plaintiff to disclose any retained experts and their reports by February 6, 2023. However, on February 17, 2023, the Plaintiff, having failed to comply with the deadline, filed a Motion for Extension of Time to disclose their experts. Subsequently, on February 24, 2023, the Court granted the Plaintiff’s motion, extending the expert disclosure deadlines by 45 days, with the new deadline set for April 10, 2023. On the specified date, April 10, 2023, the Plaintiff disclosed two retained expert witnesses, namely David Collette and Georges El-Bahri. The Plaintiff’s expert disclosures indicated that a copy of El-Bahri’s written report was being prepared and would be provided upon receipt. However, even three months after the initially expected date for producing El-Bahri’s report, the Plaintiff had not supplied any expert report for El-Bahri. The Defendant’s counsel made efforts to obtain the report by sending correspondences to the Plaintiff’s counsel. Despite these requests, no expert report was provided and the discovery was ultimately closed.
The Defendant filed a Daubert Motion to Preclude the testimony and opinions of Plaintiff’s Expert, David Collette, a Motion to Strike Plaintiff’s Expert Witness Georges El-Bahri as he failed to furnish an expert report within the stipulated timeframe, and a Motion for summary judgment.
Collette admitted during deposition that he was not qualified to provide expert opinions on the coefficient of friction of the shower floor with standing water, and he did not conduct any testing under such conditions. The Defendant argued that Collette’s opinions were speculative, with questionable relevance to the trial issues. The methodology employed by Collette was deemed unscientific and unreliable, and the Defendant contended that his testimony would not assist the jury but instead lead to confusion.
Mechanical Engineering Expert Witness
David Collette holds a Bachelor of Science in Mechanical Engineering from the University of Manitoba, Canada and further pursued his education by earning a Masters of Business Administration from the University of Chicago. With an academic background in both engineering and business, Collette possesses over 18 years of extensive experience. Throughout his career, he has demonstrated expertise in developing, commercializing, analyzing, and troubleshooting walkway solutions, encompassing various aspects such as chemistry, tools, mats (walk-off, bath), cleaning processes, coatings, treatments, and flooring material selection. Currently serving as the President of Substratum Group, Collette leads the development of proprietary products and services aimed at supporting Walkway Management programs. His role involves providing customers with comprehensive solutions related to the selection, testing, care, and maintenance of walkways (e.g., floors, sidewalks, ramps, stairways) and bathing surfaces (e.g., tubs, showers).
Orthopedic Surgery Expert Witness
Dr. Georges F. El-Bahri, a Doctor of Osteopathic Medicine, earned his degree from Nova Southeastern University College of Osteopathic Medicine. He holds a Bachelor of Science in Biomedical Science from the University of South Florida. El-Bahri pursued postgraduate education and training, completing an Orthopedic Sports Medicine Fellowship at Andrews Research and Education Foundation, and an Orthopedic Surgery Residency at Largo Medical Center. His expertise extends to sports medicine injuries, particularly those of the knee and shoulder, with a focus on arthroscopic procedures, total joint replacements, and general orthopedic care. El-Bahri holds various positions, including Certified Life Care Planner at Life Care Plan MD, Extremity Surgeon at Interventional Pain Specialists, Extremity Surgeon at Spine Centers of America, Orthopedic Surgeon at Ortho One Jacksonville, and Orthopedic Specialist at Concentra-Occupational Health. He also maintains his private practice at Bahri Orthopedics and Sports Medicine Clinic.
Discussion by the Court
The Defendant requested the Court to exclude David Collette’s entire testimony, contending that he lacked qualification, utilized invalid methodology, and his testimony would not assist the trier of fact. The Court observed that an expert’s qualification is determined by factors such as knowledge, skill, experience, training, or education, according to Federal Rule of Evidence 702. An expert is not automatically deemed unqualified if their experience doesn’t perfectly align with the matter at hand. The qualification assessment should consider the expert’s credentials in relation to the subject matter of the proposed testimony. If an expert is minimally qualified, objections to their expertise should be treated as matters of credibility and weight, rather than admissibility.
Collette holds a Bachelor of Science degree in Mechanical Engineering and served as a voting member on the technical committee for American National Standards Institute (ANSI)/National Floor Safety Institute(NFSI) B101.4 Test Method for Measuring the Wet Barefoot Condition of Surfaces, focusing on developing a barefoot standard for various surfaces such as bathtubs, shower enclosures, pool decks, and walkways in 2019. With over 14 years of experience in developing, launching, and auditing walkway and bathing surface safety programs. Collette does not possess a PhD in engineering. However, a preponderance of evidence indicated his qualification to testify on the coefficient of friction of the shower stall floor, its slipperiness, and relevant industry standards.
In the case of Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011), it was established that a qualified expert utilizing reliable testing methodology has the authority to testify about the safety of a Defendant’s flooring choice, determined by the surface’s coefficient of friction. Typically, coefficient of friction evidence is presented by an expert witness who also addresses industry standards and assesses whether the surface complies with them. Furthermore, according to Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015), a delay in testing the area where an accident occurred does not undermine the reliability of coefficient testing if the site has not materially changed since the incident. The case emphasized that weaknesses in the factual basis of an expert’s opinion are subject to challenges in terms of credibility and weight through cross-examination and the presentation of contrary evidence.
Collette conducted coefficient of friction tests using an American Slip Meter 925 tribometer and the ANSI A326.3 standard test method for measuring dynamic coefficient of friction (DCOF) of hard surface flooring materials. He asserted that the test method employed was the standard test used by manufacturers, interior designers, and architects for testing bathing surface floors. Collette performed the coefficient of friction test on the shower stall floor under somewhat different conditions than were present during the accident: it was over two years later, and there was no significant standing water present for his test. Additionally, he tested three samples of the shower stall floor instead of the entire surface. The Defendant could raise these considerations, but they pertain to the weight and credibility of the evidence, not its admissibility. Collette utilized an established methodology, the ANSI A326.3 standard test method, to assess the coefficient of friction of the surface. A preponderance of the evidence suggested that his testimony was grounded in a reliable methodology.
In Sorrels, it was established that expert testimony concerning the coefficient of friction (COF) of a flooring surface could be beneficial to a jury in a slip and fall case. The Court emphasized that challenging such evidence should be done through vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of truth, as outlined in the Daubert case.
Collette’s testimony closely parallels the testimony presented in Sorrels, proving beneficial to the jury in the slip and fall context. The preponderance of the evidence suggested that Collette’s testimony would aid the trier of fact by applying his expertise and remained relevant to the case. The Daubert standard was deemed satisfied for all three prongs, and as a result, Collette’s testimony was not barred.
To establish a premises liability claim, the Plaintiff must demonstrate the elements of a negligence claim and prove that the Defendant had possession or control of the premises and notice of the hazardous condition. This includes showing: (1) the Defendant owed a duty, (2) there was a breach of that duty, (3) a causal link between the breach and the Plaintiff’s injury, (4) the Plaintiff suffered damages due to that injury, (5) the Defendant had possession or control of the premises, and (6) the Defendant had actual or constructive notice of the dangerous conditions leading to the injury.
Considering the evidence favorably for the non-moving party, a material fact dispute exists regarding whether the shower stall floor posed a hidden danger. Collette, the Plaintiff’s expert witness, asserted in his written report that the wet dynamic coefficient of friction for the shower stall floor fell below industry standards for public showers and floors meant to be walked upon when wet. This condition, akin to the level-changing steps in Echevarria and Hilliard, could be perceived as more slippery than reasonably expected, potentially adding a hidden danger. A jury could reasonably find that such conditions create liability for premises owners, as invitees may not anticipate these dangers.
The Defendant argued that Collette’s opinions were irrelevant and unsupported. However, in considering the evidence favorably for the non-moving party, Collette’s report and opinions were deemed relevant as they made it more likely that the shower stall floor had hidden danger, being more slippery than reasonably expected. Consequently, the Court determined that summary judgment was not appropriate for this matter.
According to Federal Rule of Civil Procedure 26(a)(2)(B), expert witness disclosures must be accompanied by a signed report if the expert is “retained or specially employed” for testimony. These disclosures must adhere to Court-ordered deadlines, as outlined in Federal Rule of Civil Procedure 26(a)(2)(D). Failure to make such disclosures could result in the expert being barred from presenting evidence at trial, unless the failure is deemed “substantially justified or harmless,” pursuant to Federal Rule of Civil Procedure 37(c)(1).
In this case, the Case Management and Scheduling Order stipulated a deadline for the Plaintiff’s disclosure of expert reports as February 6, 2023 . The Defendant emphasized that the Plaintiff did not disclose a report from Georges El-Bahri by that date. The Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike. The Court decided that Defendant’s Motion to Strike may be treated as unopposed. Consequently, it was deemed appropriate to strike El-Bahri as an expert witness for the Plaintiff.
Held
The Court also denied the Defendant’s Daubert Motion seeking to preclude the testimony and opinions of Plaintiff’s Expert, David Collette. Furthermore, the Court granted the Defendant’s Motion to Strike Plaintiff’s Expert Witness, Georges El-Bahri. The Court also denied the Defendant’s Motion for Summary Judgment.
The Court issued a ruling on January 08, 2024 to terminate all pending motions and administratively close the case pending further order of the Court. The parties were directed to file a joint stipulated form of final order or judgment or move the Court upon good cause to reopen the case on or before March 04, 2024.
Key Takeaways
The Plaintiff, who suffered injuries in a truck stop shower stall, relied on the expert opinions of David Collette to establish the hazardous conditions of the shower floor. The Defendant contested the admissibility of Collette’s testimony, asserting that he lacked qualifications and used unreliable methodology. The Court, however, found that Collette, with his engineering background and extensive experience, met the qualifications for offering expert opinions on the coefficient of friction of the shower floor. The Court emphasized that objections to an expert’s expertise should be matters of credibility and weight, rather than admissibility. Collette’s use of established testing methodology and his relevance to industry standards strengthened the admissibility of his testimony. The Court also highlighted the significance of expert testimony in premises liability cases, acknowledging its potential to assist the jury in understanding complex issues such as the slipperiness of flooring surfaces. The Plaintiff’s expert Georges El-Bahri faced challenges to the timeliness of expert disclosures because the Plaintiff failed to provide good cause for the untimely disclosure and did not respond to the Defendant’s Motion to Strike, therefore barring the expert. Here, the Court underscored the importance of adhering to procedural rules for expert witness disclosures and the potential consequences, such as being barred from presenting evidence at trial.
Plaintiff Patricia Medellin filed a lawsuit to recover damages for severe injuries she suffered when she fell while using Defendant’s Little Giant Velocity Ladder, a multi-use ladder with adjustable features. The ladder could be configured into various climbing systems, including an extension ladder. Medellin asserted that the “Rock Locks” (version 2.1), which were the locking mechanisms on either side of the ladder used to secure the extension sections at the user’s chosen height, failed to function properly. This alleged failure resulted in the Rock Locks not securing the ladder in its extended position, leading to Medellin’s fall from height.
On November 29, 2019, Patricia Medellin and her fifteen-year-old grandson, Benjamin Jones, were hanging Christmas lights along the roof of Medellin’s home. They unfolded the ladder and extended it until hearing the Rock Locks “click” into place, indicating proper security. At some point after Medellin climbed the ladder, she heard clicking sounds as the top of the ladder retracted downward, and the bottom of the ladder slid away from the house. Benjamin Jones also heard clicking sounds and observed the ladder telescoping down. Medellin fell with the ladder, landing face-down on it. As a result, Medellin alleged she sustained multiple bodily injuries.
Medellin alleged that the Defendant had “defectively designed and manufactured” her ladder and “provided improper warnings and instructions.” According to Medellin’s expert witness, Stanley A. Kiska, the Rock Locks could be inadvertently set in a “false lock” condition, where “the extended section of the ladder is able to remain in place and may appear to be locked to the user, but, in fact, it is not properly and completely secured.” When in this false lock condition, the ladder gives the illusion of being securely locked, though it is not. The ladder, when in a false-locked condition, would retract (i.e. shorten) under the user’s weight during a climb, resulting in both the ladder and the user falling.
The Defendant moved to exclude Stanley Kiska’s testimony and sought summary judgment. The case had been referred to the Magistrate Judge Peter Bray in accordance with 28 U.S.C. § 636(b)(1). The Judge Peter Bray gave his recommendation after reviewing the motions, the responses, and relevant legal provisions.
Mechanical Engineering Expert Witness
Stanley A. Kiska, a licensed professional engineer holding a Bachelor of Science degree in Mechanical Engineering, has a comprehensive background in ladder-related matters. With a 16-year tenure as a Product Engineer/Senior Product Engineer at the Werner Ladder Company, he garnered extensive expertise in ladder design, development, testing, manufacturing, and quality control. Currently, Kiska serves as an independent engineering consultant for Integra Engineering, PC, specializing in forensic engineering and investigating hundreds of ladder and scaffolding accidents. He has applied forensic engineering principles to develop opinions, write reports, and provide expert witness testimony in depositions and trials, representing both Defendants and Plaintiffs. With over 35 years of experience, his qualifications underscore his proficiency and authority in the field.
Discussion by the Court
Stanley Kiska’s opinion was that Medellin’s ladder could be placed in a false locked condition on the ground, set into position for use, and partially climbed without revealing the false locked condition to the user. He reached this opinion after reviewing deposition testimony from Medellin and Jones, examining photographs and videos of Medellin’s ladder, and inspecting both the ladder itself and the site of Medellin’s accident. Additionally, Kiska studied reports and video demonstrations of testing conducted by another of Medellin’s experts, Peter J. Poczynok, P.E., in a separate federal case (Davis v. Little Giant Ladder Sys., LLC, 2:19-cv-00780-SPC-NPM (M.D. Fla.)). Kiska also consulted with Poczynok during the process.
The Davis lawsuit involved the identical ladder model, the same version of Rock Locks, and the same false lock claim as the present case. Poczynok’s testing and reports in Davis, which were attached to Poczynok’s declaration in this case demonstrated that ladders with Rock Locks version 2.1 could be set in the false lock condition and positioned for use while still falsely locked. Additionally, Poczynok illustrated that the false lock could disengage after a user’s weight was applied to the ladder’s rungs. In his declaration for this case, Poczynok stated that, during his work on the Davis case, he “was able to place the locks in a false lock condition when he set up the ladder on the ground, then raised it into position.” He further mentioned that he had “on numerous occasions placed the locks in a false lock condition, on the ground, on the same model ladder that was involved in Medellin’s incident, including Medellin’s ladder, and had been able to set the ladders into a raised and upright position with the false lock intact.” Kiska reviewed and incorporated Poczynok’s testing and opinions into his analysis of Medellin’s accident.
While the Defendant raised multiple complaints about how Kiska relied on Poczynok’s testing, it’s noteworthy that the Defendant did not move to exclude Poczynok’s opinions. Poczynok had been designated as an expert witness in the case and was permitted to testify at trial, specifically about his opinion that the ladder could be placed into a false lock condition on the ground and then raised into position without disturbing that condition. The Defendant clarified that it strategically chose to “utilize Poczynok’s testing videos to highlight elements absent from Medellin’s accident”. Additionally, the Defendant did not object to Kiska relying on Poczynok’s testing. The objection was solely directed at Kiska’s opinions that Medellin was able to (1) set her ladder into a ‘false lock’ condition on the ground and (2) raise it into position without disturbing the condition.
Kiska based the objected-to opinion on various sources of information and his extensive professional engineering experience in the field. He drew upon Poczynok’s testing, conducted his own inspection of the ladder, and considered the eyewitness testimony of both Medellin and her grandson. The Defendant failed to present any valid reason for asserting that Kiska’s reliance on these information sources was improper. It was entirely appropriate for Kiska to rely on Poczynok’s opinions, as the Federal Rules of Evidence allow experts to base their opinions on the opinions of other experts, according to the Advisory Committee’s Notes to the 2000 Amendments of Fed. R. Evid. 702.
The Defendant heavily criticized Poczynok’s testing methodology and opinions but framed these complaints as arguments against Kiska’s reliance on Poczynok’s opinions, rather than directly moving to exclude Poczynek as an expert. The Defendant argued, in the context of seeking to exclude Kiska’s opinions, that Kiska could not rely on Poczynok’s opinions because there was “no established protocol or general acceptance of such testing.” However, the Defendant made a strategic choice not to challenge Poczynok as an expert and expressed the intention to cross-examine Poczynok at trial as part of its defense. Therefore, any attempt by the Defendant to challenge Poczynok’s opinions under the guise of objecting to Kiska’s reliance on those opinions was not presented before the Court at this juncture.
The Defendant contended that Kiska was obligated to validate or replicate Poczynok’s testing before relying on it, a requirement the Court found no awareness of. Contrary to the argument, as discussed in the preceding paragraph, Kiska was only required to ensure that the other experts he relied on were reliable. Poczynok’s reports were deemed to meet this standard, being detailed, inclusive of photos, describing his testing, and outlining his methodology. Kiska thoroughly reviewed these materials and integrated them into his analysis.
The Defendant argued that Poczynok’s testing could not be reliably applied to the context of Medellin’s accident due to several reasons: (1) the pitch of Medellin’s roof was more distinct than the roof on which Poczynok conducted his testing; (2) in four of Poczynok’s ten tests, the ladder was extended well beyond the roofline, making those tests inapplicable to Medellin’s accident, a point conceded by Kiska; (3) of the remaining six applicable tests, only two showed the ladder contracting and losing contact with the roof, resulting in the climber falling; (4) in the two tests where the climber fell, the ladder did not slide straight back, as in Medellin’s case, but instead rotated out from under the climber due to the roof’s pitch; and (5) none of the ten tests replicated the “clicking” sound described by Medellin and Jones.
The Court was not convinced that the distinctions between Poczynok’s tests and Medellin’s accident rendered the tests inadmissible. Even if Poczynok’s tests were not intended to precisely recreate Medellin’s accident, the Court emphasized that recreations must only be “substantially similar” to provide a fair comparison, as outlined in United States v. Norris, 217 F.3d 262, 270 (5th Cir. 2000). The Court found that the conditions of Poczynok’s testing were substantially similar to those of Medellin’s fall. Poczynok used the same model ladder as Medellin (equipped with Rock Locks 2.1), configured it as an extension ladder, and positioned it against a pitched roof above the driveway. The Court also highlighted that Kiska critically evaluated Poczynok’s tests and disregarded those he deemed inapplicable to Medellin’s accident. The distinctions raised by the Defendant were not significant enough to render Poczynok’s tests an unfair comparison to Medellin’s accident. The Court noted that any disparities between Medellin’s accident and Poczynok’s testing could be demonstrated through cross-examination.
The Defendant argued that Kiska’s opinions on design defect should be excluded, contending they were unreliable and irrelevant. Specifically, the Defendant asserted that Kiska failed to provide evidence or testing to demonstrate that his alternative design would have prevented Medellin’s accident.
In design defect claims, the Plaintiff is required to present a safer alternative design that “would have prevented or significantly reduced the risk of the Plaintiff’s personal injury without substantially impairing the product’s utility”. While the alternative design must be tested before a jury can conclude it would prevent or reduce the risk of injury, it’s not mandatory for the Plaintiff to build and test a prototype. Testing “can be as simple as applying math and physics to establish the viability of a design,” as clarified in Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 407 (5th Cir. 2016).
Kiska provided the opinion that the Rock Locks 2.1 were defective in design due to the aluminum barrel pins pivoting into place and the locks lacking contrasting color to signal incomplete insertion of the barrel pins. His alternative design suggested the use of steel barrel pins that move linearly/perpendicularly into place and are colored red. The Defendant contended that Kiska had not tested the proposed design, thus lacking evidence that it would have prevented or significantly reduced the risk of Medellin’s injury.
Kiska tested the alternative design by applying engineering principles and analyzing the functionality of the current and proposed designs as a professional engineer. In support of the steel barrel pin with perpendicular movement, Kiska compared the coefficient of friction between an aluminum barrel pin and a steel barrel pin. He pointed out that “aluminum barrel pins are undesirable because of the higher coefficient of friction that exists between sliding parts (aluminum on aluminum vs. aluminum on steel), which can adversely affect proper locking”. Kiska determined that the friction coefficient of the aluminum-to-aluminum interface would be approximately twice as great as aluminum-to-steel, making it more difficult for the locking pins to engage properly and, therefore, more likely to ‘falsely lock.’
Kiska had also proposed using barrel pins that approach the rung holes perpendicularly, similar to those utilized in version 3.0 of Defendant’s Rock Locks. Although Kiska did not take measurements of a ladder equipped with Rock Locks 3.0, he testified that the perpendicular design is “more forgiving all things being equal” and “more favorable in terms of properly engaging and not hanging up on the inner section swage and false locking”. Kiska explained that, based on the design’s operation, the angled or arcing approach of the ladder’s barrel pins necessitates a “more exacting alignment between the sections” to get the barrel pins to properly engage beyond a false lock. The Court concluded that Kiska should be permitted to testify about his proposed alternative design, and any weaknesses in his analysis could be addressed through cross-examination.
Regarding the red coloring on the barrel pin, the Defendant argued that Kiska did not test the proposed design, wasn’t a human factors expert, and did not cite any study, testing, or modeling to demonstrate that a colored barrel pin would reduce the risk of injury. However, Kiska, being an expert in the field, was familiar with the use of coloration for safety purposes. He expressed the opinion that “many manufacturers use creative coloring (particularly the color red) as a means to draw attention to locking components as a means to communicate to users that a safety problem may exist”. Kiska’s report included side-by-side photographs illustrating the visual differences in the ladder’s design and the alternative design. He noted that when the colored pin is completely inserted, the red color would not be visible to the user, indicating that the lock is properly engaged. Kiska also referred to one of Defendant’s prior ladder designs that used colored locks to signal improper engagement of the locking mechanism. The Court acknowledged the weaknesses pointed out by the Defendant but deemed the arguments insufficient to completely exclude Kiska as an expert. Any weaknesses could be addressed by the Defendant through cross-examination to present them to the jury.
The Defendant argued that Kiska’s opinions on manufacturing defects were irrelevant because Kiska had not demonstrated that: (1) the identified manufacturing defects existed when Medellin’s ladder left the manufacturer; and (2) the manufacturing defects caused Medellin’s accident.
In a manufacturing defect claim, the Plaintiff was required to prove, among other things, that a product was defective when it left the manufacturer and that the defect was a producing cause of the Plaintiff’s injuries.
Kiska’s report had identified two manufacturing defects: (1) the hardness of the ladder’s feet exceeded the product specification’s upper tolerance limit; and (2) the width of the ladder’s outer section assembly exceeded the product specification’s upper tolerance limit. The Defendant argued that Kiska had not demonstrated that Medellin’s ladder was defective when it left the manufacturer.
Kiska’s report stated that “Inspection of the subject ladder shows that it was not manufactured to specification”, and Medellin’s deposition testimony, which Kiska reviewed, tended to demonstrate that the ladder’s condition remained unchanged between its manufacturing and Medellin’s accident. For instance, Medellin mentioned purchasing her ladder in November 2017 and using it only twice before her accident occurred: once in 2017 and once in 2018. She stored the ladder in her garage in its most compact configuration—fully retracted on both sides and folded in half. No one else used the ladder, and it had not been used after Medellin’s accident. Kiska inspected Medellin’s ladder and found it to be in generally good condition. The Defendant did not challenge Medellin’s testimony regarding her storage or use of the ladder or provide evidence that the ladder’s condition changed between its manufacture and Medellin’s accident or between Medellin’s accident and Kiska’s inspection. Whether the identified manufacturing defects existed when the ladder left the factory was deemed a question for the jury.
Regarding the causal connection between the manufacturing defects and Medellin’s accident, Kiska explained that the hardness of the ladder’s feet exceeded the product specifications, and harder material provides less slip resistance. He opined that “The likelihood of bottom slip out of a ladder is greater when its feet are composed of a harder material. This was the case with Medellin’s ladder”. Kiska reviewed the ladder’s specifications, which required slip-resistant feet “with a ‘Shore A durometer of 80+1-2.’” Thus, the maximum durometer reading would be 82 Shore A, but Medellin’s ladder’s left foot measured 91-92 Shore A, while the right foot measured 92-93 Shore A. Kiska stated that the feet on Medellin’s ladder would not be expected to provide as much resistance to slipping out as feet within the proper specifications. Thus, Kiska tied the out-of-specification hardness of the ladder’s feet to its propensity to slide out from under the user.
Kiska had also determined that the outer assembly of Medellin’s ladder exceeded the product specification’s upper tolerance limit. He explained that the specification drawing set the ladder’s outer assembly width at 15.00 inches, +0.00/-0.06, meaning the width should not exceed 15.00 inches under any circumstances. Kiska measured Medellin’s ladder at various points and found that both extension sections exhibited widths greater than allowed by the manufacturing drawings. This increased clearance could allow for greater misalignment of the two sections and their mating parts. Kiska explained that while some clearance is necessary for sections to slide freely, excessive clearance increases the inner section’s ability to shift relative to the outer section, adversely affecting the alignment of the locking pins and exacerbating the ability of the pins to be directed into their respective rung holes.
Kiska had connected his measurements indicating the ladder was out of specification to the ladder’s tendency to become falsely locked. Consequently, Defendant’s motion to exclude Kiska as an expert was denied.
Defendant sought summary judgment, reiterating the same arguments presented in the motion to exclude Kiska’s opinions. Defendant contended that Medellin did not establish causation, failed to propose a safer alternative design, and could not link the manufacturing defects to her accident. The Court, having found Kiska’s opinions admissible, suggested that if Defendant contested the degree of slip resistance in Medellin’s ladder, it could address that issue during Kiska’s cross-examination. The Court recommended that the Defendant’s Motion for Summary Judgment be denied.
Therefore, Judge Peter Bray denied Defendant’s Motion to Exclude the Opinions of Stanley Kiska and also recommended the denial of Defendant’s Motion for Summary Judgment. The parties were granted fourteen days from the service of the Memorandum and Recommendation to submit written objections. Failure to file timely objections would result in the preclusion of appellate review for factual findings or legal conclusions, except for plain error.
On January 2, 2024, the Defendant filed four objections. Initially, the Defendant contested Judge Bray’s denial of their challenge to Kiska’s opinions regarding the “false lock” condition of the Plaintiff’s ladder. Subsequently, the Defendant objected to Judge Bray’s determination that Kiska’s opinions on design defects should be allowed as evidence. Additionally, the Defendant raised an objection to Judge Bray’s conclusion that Kiska’s opinions on manufacturing defects should be admitted. Finally, the Defendant opposed Judge Bray’s recommendation to deny their Motion for Summary Judgment.
Upon thorough de novo consideration of the objected portions of the Magistrate Judge’s Report and Recommendation (M&R) and a review of the remaining proposed findings, conclusions, and recommendations for plain error, the Court found no errors. Consequently, the Court accepted the M&R and adopted it as the opinion of the Court. The Defendant’s arguments were deemed insufficient to warrant reversal, as they were fully examined and failed to demonstrate a compelling reason for a different outcome.
Held
The Court rendered the following decisions:
Judge Bray’s Magistrate Judge’s Report and Recommendation (M&R) was fully accepted and adopted as the holding of the Court.
The Defendant’s Motion to Exclude the Opinions of Stanley Kiska is denied.
The Defendants’ Motion for Summary Judgment is also denied.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Stanley Kiska’s expert opinion regarding the “false lock” condition of Medellin’s ladder was accepted by the Court, asserting that the ladder could be falsely locked on the ground, raised into position for use, and partially climbed without the user detecting the false lock. Kiska based this conclusion on a comprehensive review of deposition testimonies, photographs, videos, ladder inspections, and testing conducted by another expert, Peter J. Poczynok, in a related case. Despite the Defendant’s objections to Kiska relying on Poczynok’s testing methodology, the Court noted that the Defendant strategically chose not to challenge Poczynok as an expert witness during the case and did not object to Kiska’s reliance on Poczynok’s testing.
Furthermore, the Defendant’s objections to the validity of Poczynok’s testing for comparison purposes were overruled by the Court, which deemed Poczynok’s testing substantially similar, with any disparities to be addressed during cross-examination. The Court also allowed Kiska to testify about design defects and propose an alternative design, emphasizing that testing could be as simple as applying math and physics. The Defendant’s objections to Kiska’s reliance on Poczynok’s testing for design defects were considered insufficient, and the Court permitted Kiska to present his expert opinions.
In addition, the Court addressed the Defendant’s objections to Kiska’s opinions on manufacturing defects, specifically challenging the lack of evidence demonstrating that the defects existed when Medellin’s ladder left the manufacturer and that they caused the accident. The Court found Kiska’s measurements and analysis adequate to present a question for the jury on these issues.
Overall, the Court deemed Kiska’s expert opinions admissible, rejecting the Defendant’s objections as lacking merit and providing a comprehensive analysis of the expert’s methodologies and conclusions in the case.
Case Caption: Medellin v. Wing Enters., Inc.
Docket Number: 4:21cv3582
Court: United States District Court, Texas Southern
The Plaintiffs—Michael Johnson, Charles Cunningham, Jerry Bailey, Eric Woodward, Michael Darbonne, Michael McCullough, Christopher Harrington, Demon Benjamin, and Pamela Green—filed a lawsuit against Packaging Corporation of America (“PCA”), Boise Packaging & Newsprint, LLC (“BPN”), Boise, Inc. (“Boise”), and Rick Butterfield after a tragic explosion at PCA’s DeRidder, Louisiana paper mill on February 8, 2017. During the mill’s annual shutdown for maintenance, inspections, and upgrades, a foul condensate tank (“FCT”) exploded, causing injuries to individuals employed by Elite Specialty Welding, LLC and Top Deck, Inc., the contracting companies involved in the maintenance work.
The Plaintiffs asserted that the Defendants were fully aware that the foul condensate tank (“FCT”) posed a significant risk of causing severe and life-threatening injuries. In an attempt to invoke the intentional act exception to worker’s compensation immunity, the Plaintiffs argued that the Defendants were conscious of the high probability of the incident at the mill, given their prior knowledge of hazards linked to flammable emissions from tanks used in mill operations.
They further alleged that the Defendants knowingly disregarded established rules, regulations, and safety norms by directing work in close proximity to tanks containing these known dangers, which could serve as sources of ignition. The Plaintiffs contended that the Defendants should be held accountable for the outcomes of their actions, asserting that all the necessary elements for an explosion—fuel, ignition source, and oxygen—were present at the time of the incident. The Plaintiffs attributed the knowledge of these elements to the Defendants based on statements made by the Defendants’ employees. They argued that since the Defendants were aware of the flammable gases in the foul condensate tank, anticipated oxygen entry, and knew about welding activities above the tank, they effectively understood that an explosion was unavoidable.
The Defendants requested a summary judgment on all of the Plaintiffs’ claims. On July 27, 2021, the Court granted the Defendants’ motion regarding the intentional act exception. The Court concluded that the Plaintiffs failed to demonstrate a genuine issue of material fact concerning whether the Defendants “intended” the explosion to happen as outlined in the exception. The Court specified that the evidence presented by the Plaintiffs in support of the summary judgment only indicated that the Defendants were aware that fuel, oxygen, and an ignition source would be in close proximity. However, the Plaintiffs did not establish that the Defendants were “substantially certain” that the explosion would take place.
The Plaintiffs put forth Eric Van Iderstine as a liability expert to provide testimony during the trial based on his “engineering investigation” of the explosion in question. The Defendants objected to this, contending that Van Iderstine’s opinions and testimony regarding the Defendants’ alleged knowledge and state of mind wouldn’t assist the fact-finder in comprehending the evidence or establishing a pertinent fact, as mandated by Federal Rule of Evidence 702. Consequently, the Defendants sought to have Van Iderstine’s testimony excluded.
Mechanical Engineering Expert Witness
Eric Van Iderstine is a Consulting Mechanical Engineer and Director of Mechanical Engineering at McSwain Engineering located in Pensacola, Florida. He earned a Bachelor of Science in Mechanical Engineering from Mississippi State University, where he graduated with honors. Van Iderstine is currently a registered Professional Engineer in the states of Florida and Alabama. Van Iderstine has testified in state and federal courts, having been qualified as a Mechanical Engineer in the areas of failure analysis and mechanical engineering design.
Discussion by the Court
Van Iderstine’s expert report and deposition centered on his assessments regarding the Defendants’ supposed awareness and mindset concerning the potential for an explosion at the Mill. His report stated that, drawing from previous similar incidents, the conditions leading to the DeRidder explosion were familiar within the industry and would likely have been within the Defendants’ knowledge. Van Iderstine concluded that there existed a substantial certainty that an incident of this nature would occur and that the Defendants would have been aware of this heightened risk.
He expressed the belief that the Defendants neglected this risk when they made the decision not to empty the contents of the foul condensate tank (“FCT”)—specifically, to drain, flush, and open the vessel—before undertaking hot work.
The Court determined that Van Iderstine lacked the qualifications—pertaining to knowledge, skill, experience, training, or education—to provide testimony regarding the Defendants’ knowledge or state of mind.
The Plaintiff conceded that, concerning opinions related to the Defendants’ actual subjective knowledge and state of mind, the motion became moot. The Plaintiffs decided not to present these opinions during the trial. However, they urged the Court to reject the motion concerning other opinions expressed by Van Iderstine, as referenced in the Defendants’ motion. The Plaintiffs argued that regardless of the admissibility of expert opinions regarding a party’s subjective knowledge, the law allows an expert to utilize training and experience to assist the jury in assessing a party’s knowledge based on evidence of what someone in the party’s position would likely have known. Therefore, the Plaintiffs asserted that these opinions should be admissible.
The Court rejected the nuanced attempt at distinction, deeming it unconvincing. It concluded that Van Iderstine lacked specialized knowledge or experience within the pulp and paper industry. Consequently, the Court ruled that Van Iderstine would not be allowed to provide opinion testimony regarding what a reasonable owner or operator of a pulp and paper mill should have known based on industry knowledge.
The Court dismissed the Plaintiff’s argument stating that inquiries about the basis and sources of an expert’s opinion pertain to the weight given to that opinion rather than its admissibility. Recent revisions to FRE 702 and the official comments clarified that this understanding of the Court’s inquiry under Daubert and FRE 702 was inaccurate. The rule change aimed to guide district courts to specifically conduct the gatekeeping examination outlined in Daubert and focus on determining admissibility and refrain from bypassing the admissibility determination in favor of a question of weight to be decided by a fact finder.
The Committee Notes highlighted that some courts had previously regarded the sufficiency of an expert’s basis and the application of their methodology as matters of weight rather than admissibility. However, the Notes pointed out that such rulings were viewed as an incorrect application of Rules 702 and 104(a).
The Court’s ruling barred Van Iderstine from providing opinions regarding what the Defendants knew. Additionally, he was not permitted to offer opinions on what a prudent owner or operator should have known based on industry knowledge. The Court deemed that the jury was fully capable of connecting the dots between industry knowledge and best practices to the conditions leading to the alleged explosion. Van Iderstine’s proposed opinion about what the Defendants should have known was considered excessive and intruded into the jury’s province to determine if the Defendants adhered to a reasonable standard of care.
Held
The Court granted the Defendants Motion in Limine to Exclude the Opinions and Testimony of Plaintiffs’ Expert Eric Van Iderstine Regarding Defendants’ Knowledge and State of Mind.
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 this case, the importance of expert testimony was highlighted through a series of key determinations by the Court. Firstly, the Court emphasized the critical nature of an expert’s qualifications. Specifically, the Court assessed the expertise of Van Iderstine, ultimately finding that his lack of specialized knowledge in the industry impacted the admissibility of his opinions. Secondly, the limitations concerning expert testimony on a party’s subjective knowledge or state of mind were underscored; such opinions might be restricted or considered moot in Court proceedings. Moreover, the Court outlined the boundaries for experts, emphasizing that opinions extending beyond their specialized knowledge could face exclusion or limitations, especially if they encroached upon the jury’s decision-making domain. Recent revisions to the Federal Rules of Evidence (FRE 702) clarified the distinction between the admissibility and weight of expert opinions, prompting courts to focus on admissibility rather than solely evaluating the weight of such opinions. Additionally, the Court’s gatekeeping role in determining the admissibility of expert testimony, primarily focusing on an expert’s basis and methodology as per Daubert principles, was highlighted. Lastly, the jury’s role in connecting industry knowledge, best practices, and the circumstances leading to an incident was emphasized. Expert opinions should aid in understanding complex matters without infringing upon the jury’s responsibility in determining reasonable standards of care.
This case was between Larada Sciences (the Plaintiff) and Pediatric Hair Solutions (PHS – the Defendant) in the United States District Court for the District of Utah. Larada manufactures devices that use heated air to treat head lice and licenses the devices to head lice treatment clinics. In 2015, Larada and PHS entered into license agreements allowing PHS to use Larada devices at PHS clinics. In 2017, the parties disagreed about payments and Larada terminated the agreements, then sued PHS for trademark infringement and other claims.
During the litigation, Larada designated two experts – Jon Beck to testify about the design, technical and engineering challenges faced by Larada in developing the devices, and Matt Germane to testify about the value of Larada’s alleged trade secrets. PHS named James Rice, an engineer, as a rebuttal expert to estimate the cost to develop Larada’s alleged trade secrets. Rice prepared a report with extensive time and cost estimates for the alleged trade secrets.
Larada moved to exclude Rice’s testimony, arguing his methods were unreliable. At his deposition, Rice testified his estimates were based on personal experience but he did not explain how his experience led to the conclusions he derived. Rice’s deposition testimony brought to light various inconsistencies in his report especially with regard to the time estimates. He acknowledged a wild variation in estimates was likely but was not able to come up with a reliable explanation as to why.
Mechanical Engineering Expert Witness
Dr. James G. Rice has over 35 years of experience in mechanical engineering and computational methods. He holds a Ph.D. in Mechanical Engineering from Virginia Polytechnic Institute and State University (1978), an M.S. in Mechanical Engineering from Virginia Polytechnic Institute and State University (1973), and a B.S. in Mechanical Engineering from Old Dominion University (1972). His areas of expertise include computational methods, heat transfer, thermodynamics, fluid dynamics, combustion, solid mechanics, mechanical design, and CAE/CAD software. Rice has extensive experience as an expert witness in patent litigation involving issues in mechanical engineering. Rice currently serves as the President of MechExpert.
Discussions by the Court
The Court began by explaining the legal standard for evaluating expert testimony under Rule 702 of the Federal Rules of Evidence. The Court stated it must act as a “gatekeeper” to ensure expert testimony is relevant and reliable. Evaluating expert testimony typically involves two steps – assessing if the expert is qualified based on knowledge, skill, experience, training or education, and assessing if the expert’s opinion is reliable by examining the reasoning and methodology. The party offering the expert bears the burden to show the testimony is based on reliable principles reliably applied to the facts.
The Court is not required to admit opinion evidence connected to existing data only by the ipse dixit of the expert especially if there is simply too great an analytical gap between the data and the opinion proffered.
First, Rice examined Larada’s “proprietary program for the microprocessor algorithm.” He estimated that it would take one to two engineers with minimal experience a combined forty hours to develop a microprocessor algorithm, and he concluded that this trade secret had a value of $5,000. However, during his deposition, Rice provided an estimate that totaled 160-180 hours, a difference of at least 120 hours.
Second, Rice assessed the “method, process, and design that Larada had developed and applied for effectively fast thermal control response in a high-discharge heated air device.” He estimated it would take two or three engineers with minimal experience 240 hours combined to develop this program, resulting in a value of $30,000. In his report, Rice estimated it would take 240 hours to develop this method, but during his deposition, he testified that it would take at most ninety hours to complete two out of the three necessary tasks, and he was noncommittal about the third task, stating it depended on its difficulty.
Third, Rice analyzed “Larada’s specified selection and method of utilization for blower-related components as applied for the purpose of precise volumetric delivery and flow control.” He estimated that two engineers with minimal experience would need 320 hours combined to create this program, resulting in a $40,000 value. He further explained the tasks involved in assembling and testing necessary components and developing the required software program.
Fourth, Rice concluded that it would take two engineers with minimal experience eighty hours combined “to identify a suitable blower/heater with the required output, noise, and electrical characteristics.” He assigned a value of $10,000 to this alleged trade secret, and he confirmed this estimate during his deposition.
Fifth, Rice estimated that it would take an engineer with minimal experience twenty hours “to identify a hose with the required flexibility, diameter, and length for its intended purpose,” resulting in a $2,500 value. Rice confirmed this time estimate during his deposition.
Finally, Rice explained that it would take a more experienced engineer 80 hours to design the multi-nozzle tip and 70 hours to test it in a trial and error process, totaling 150 hours and resulting in a value of $37,500.
Rice replied that his personal experience informed the method he applied to estimate how long each project would take when asked about the same.
Turning to this case, the Court addressed Larada’s argument that Rice’s method for valuing alleged trade secrets was unreliable. The Court skipped assessing Rice’s qualifications and focused only on the reliability of his methodology. The Court explained Rice testified his method was based on personal experience. An expert can rely solely on experience, but must explain how the experience leads to the conclusions and is reliably applied to the facts.
The Court provided two primary reasons why PHS did not show Rice’s experience-based opinion was reliable. First, Rice did not explain how his experience informed his specific opinions. He did not identify comparable projects or explain why his experience provided a reliable estimate. The Court could not simply take his word for it. Second, Rice’s deposition testimony was inconsistent with his report, suggesting he did not reliably apply his experience. For one alleged trade secret, his deposition estimate was 120 hours higher than his report. For another, he gave a concrete estimate in his report but was noncommittal when deposed.
The Court rejected PHS’ argument that inconsistencies only went to credibility and could be addressed on cross-examination. The Court must make an initial reliability determination before the jury weighs credibility. Here, the Court could not conclude Rice’s opinions were sufficiently reliable. The Court acknowledged Rice’s qualifications, but this was not enough absent an explanation of how his experience led to his conclusions. There was too great an analytical gap between the data and opinions.
Held
The Court found PHS did not meet its burden to show Rice’s opinions about the value of the alleged trade secrets were reliable. Thus, the opinions were excluded and Larada’s motion to exclude was granted. 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 illustrates several important points about expert witness testimony under Rule 702 of the Federal Rules of Evidence. First, the Court serves a gatekeeping function to ensure expert opinions are relevant and reliable before going to the jury. Second, when an expert relies solely on experience, they must thoroughly explain how their experience leads to their conclusions in the case. It is not enough to merely cite qualifications without connecting the dots. Third, consistency matters. Deposition testimony that conflicts with the expert report may indicate unreliable application of experience. Fourth, not all defects disqualify an expert. But here the inconsistencies were significant enough to find a lack of reliability. Fifth, the proponent of the expert bears the burden to prove admissibility. The Court does not have to take the expert’s word for it. And finally, there may be too great an analytical gap between the data and opinions offered, warranting exclusion. The takeaway is that qualification alone does not suffice – methodology matters when applying experience to reach opinions.
Plaintiff Hussein Al Qari was employed as a Steward’s Assistant aboard Defendant American Steamship Company’s vessel, the M/V H. Lee White. Plaintiff alleges that on November 5, 2020, he was climbing a flight of stairs from one level of the vessel to another, while carrying a box containing six jars of coffee grounds. He had one hand on the handrail and the other hand on the box. The box started to slip, and Plaintiff let go of the handrail to try to catch the box, lost his balance, and fell. Plaintiff claims he was seriously injured as a result of falling down the stairs.
On March 24, 2021, Plaintiff filed this lawsuit against Defendant based on his November 5, 2020, fall and injuries, asserting claims for (1) Jones Act Negligence, 46 U.S.C. § 30101, et seq. (2) Unseaworthiness under the general maritime law of the United States, and (3) Intentional/Negligent Failure to Provide Maintenance and Cure under general maritime law.
Facts of the case
In support of his claims, Plaintiff produced the expert report of Captain Daniel Franklin, a Licensed Master of Unlimited Tonnage on the Great Lakes and a Federal Seaway Pilot in District 2, and then supplemented with this expert — Dr. John Samuel Morse, Ph.D., P.E., a mechanical engineer with experience in teaching, research, and industrial applications, primarily in Occupational Safety and Health Administration (OSHA) cases.
Morse opined that Plaintiff removed his left hand from the handrail because the cardboard tray of coffee cans was slipping from his right hand and subsequently fell on the ships [sic] ladder when he lost his balance. Morse alleged that American Steamship Company violated the standard of care by ignoring the potentially dangerous condition since this incident could have been avoided if Morse had been equipped with an alternative means of carrying the cardboard tray of coffee cans, such as a backpack or supplied with an alternative means of moving the items to the main deck, such as a lifting system including a bucket and rope or mailbag and rope.
Defendant demanded exclusion of the testimony of Plaintiff’s expert Dr. John Samuel Morse.
Discussion by the Court
Morse cited four OSHA regulations pertaining to “Walking-Working Surfaces” generally. More specifically, these regulations pertain to ladders, stairways , and fall protection such as each ships [sic] ladder being equipped with handrails on both sides which applies regardless of how narrow the ships [sic] ladder is, or if one side or both is enclosed and each ship stairs and alternating treat type stairs being equipped with handrails on both sides. Morse added that it was the employer’s duty to ensure that no employee carried any object or load that could cause the employee to lose balance and fall while climbing up or down the ladder and that this regulation should be followed for loads carried on stairways.
Defendant’s motion to exclude the testimony of Morse rested primarily on the fact that OSHA regulations did not apply to U.S. Coast Guard inspected vessels, like the M/V H. Lee White which even the Plaintiff did not dispute but contended nevertheless that most of Morse’s opinions did not reference OSHA at all and were based on his remarkable experience of investigating over 575 ladder and climbing equipment accidents.
Defendant argued that Morse’s opinions were based on irrelevant OSHA regulations which if admitted would cause a significant risk of unfair prejudice and mislead the jury.
The Court agreed with the Defendant and held that OSHA regulations referenced by Dr. Morse were irrelevant to the claims and defenses in this case and confirmed their inadmissibility as non-binding evidence of the standard of care.
The Court also noted that any expert testimony Dr. Morse could provide regarding the physical structure or condition of the stairway was not at issue considering Plaintiff himself conceded in this case that there was nothing wrong with the stairway at the time of his accident.
Held
The Court declared the testimony of Plaintiff’s expert John Samuel Morse inadmissible since it was premised on irrelevant regulations. The outcome of the case is yet to be decided since the issues involved in this case still remain unresolved.
Key Takeaways:
1. Relevancy of Regulations: Before admitting the testimony of an expert, it is imperative for the Court to assess if the regulations based on which the expert is testifying have any significant bearing on the issues involved in this case. In this case, Morse based his testimony on OSHA regulations which did not apply to U.S. Coast Guard inspected vessels and hence his testimony was found likely to confuse the jury.
