This case arises from an accident involving a Robinson R44 II helicopter, registration N442VB (“Helicopter”), that occurred on the evening of December 30, 2021, in Levy County, Florida. The Helicopter was being flown at night by the owner-pilot, Ronald Hicks (“Pilot Hicks”), from a local friend’s residence to his private property. At the time of the accident, Pilot Hicks had less than ten hours of night flight experience in helicopters and was not certified under Instrument Flight Rules (“IFR”). Mr. Hicks, Shelly Kate Hicks, and their two children sustained fatal injuries.
Defendants filed a Daubert motion to limit the opinion of Plaintiffs’ metallurgical expert Mark B. Hood.
Metallurgical EngineeringExpert Witness
Mark Bruce Hood is a professional engineer in the field of metallurgical engineering. Over his career, Hood has analyzed hundreds of failures, including metallic failures.
Defendant’s motion did not dispute Hood’s qualification to “render opinions on materials issues more generally.” It instead took issue with the reliability of one of Hood’s opinions—that the “collapse” of an “unidentified organic contaminant” caused a “critical loss of clamp-up force” and, ultimately, the helicopter engine’s failure. Specifically, Defendant argued that Hood failed to test this theory or provide peer reviewed literature supporting it.
Hood explained why this is the case here. He opined that that any debris that was between the gear and the crankshaft was “most likely lost during the original disassembly.” And he testified that, due in part to the lack of available evidence, certain testing was not possible, and certain testing techniques might not detect contaminants.
Though Hood’s failure to test his contamination theory is not determinative, this Court is not absolved of its gatekeeping function. While a close call, this Court found that Hood met the Daubert standard. Hood’s report explained why, based on a variety of evidence, he concluded that the helicopter’s engine was not under power when the helicopter crashed. He explained that one possible cause of a loss of torque in service is the failure to remove debris and foreign substances from the crankshaft.
Therefore, the Court is satisfied that Hood has demonstrated that his opinion is reliable.
Held
The Court denied Defendant’s Daubert motion to limit the opinion of Plaintiffs’ metallurgical expert Mark Hood.
Key Takeaway
To the extent an expert relies “solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”
In other words, “proposed expert testimony must be supported by appropriate validation—i.e., good grounds, based on what is known.” The Court cannot simply “take the expert’s word for it.”
Please refer to the blogs previously published about this case:
This is a products liability action involving a Callaway Rogue X 5 Iron golf club with a True Temper XP95 shaft that fractured. Plaintiff alleged that the shaft cut his finger and broke his index-finger bone on his right hand. It is undisputed that True Sports manufactured the shaft of the Five Iron.
Crosson, Plaintiff’s engineering expert, testified that based on various markings on the Five Iron, he believed it had been swung multiple times prior to its fracture. True Sports and Callaway filed Daubert motions seeking to exclude various parts of Crosson’s expert testimony.
Callaway identified Lemberg as an expert engineer, and Lemberg found no evidence of a design or manufacturing defect having caused or contributed to the fracture of the Five Iron. Plaintiff filed a motion in limine to exclude parts of Lemberg’s expert testimony.
Metallurgical Engineering Expert Witnesses
Joseph P. Crosson holds both a Bachelor of Science and Master of Science in metallurgical engineering and has been conducting root cause failure analysis investigations for several decades.
Joseph Aaron Lemberg is a licensed metallurgical engineer specializing in failure analysis, fracture mechanics, metallurgy, and materials science engineering with a particular emphasis on understanding the fracture behavior of materials.
A. True Sports and Callaway’s Motions to Exclude Crosson’s Testimony
True Sports filed a motion to exclude Crosson’s testimony that the fracture occurred during a normal golf swing and was not the result of misuse or abuse, arguing his opinion is unreliable and irrelevant. Callaway filed a motion to exclude Crosson’s opinion that he would not expect a golf club to fracture during a normal golf swing because Crosson is not qualified to render opinions about a club’s expected performance, and his opinion is a backdoor attempt to bring in a “res ipsa” opinion that is both unreliable and irrelevant. Plaintiff opposed both motions, arguing Crosson is qualified to speak on both matters and his analysis was based on reliable processes and methodologies.
1.Crosson’s Opinion that the Fracture Occurred During a Normal Golf Swing
True Sports contended that Crosson’s testimony stating the fracture occurred during a normal golf swing and was not the result of misuse or abuse is both unreliable and irrelevant because it is a speculative conclusion not based on any scientific analysis and therefore does not assist the trier of fact.
The Court found Crosson’s testimony that the fracture occurred during a normal golf swing is sufficiently reliable. He represented that in examining the Five Iron, he relied on his experience and visual and photographic examinations of the Five Iron, a metallographic analysis, Vickers microhardness testing, and a compositional analysis.
In assessing the causal nature of the Five Iron’s condition, Crosson relied on its physical appearance, personal experience, and the angles of the abrasions and transferred materials. Specifically, Crosson testified that the perpendicular angles of the markings on the Five Iron suggested they were incurred during a normal swing, and the nature of the deformity in the shaft was consistent with a single event overstress fracture. Because Crosson relied on his experience in root cause analysis, the angular nature of the abrasions, and other deformities on the Five Iron to form his opinion that the club fractured during a normal swing, the Court held that his opinion is sufficiently reliable and assists the trier of fact.
2. Crosson’s Opinion that He Would Not Expect a Golf Club to Fracture During a Normal Golf Swing
Callaway argued Crosson’s opinion that he would not expect a properly designed and manufactured golf club to fracture during a normal golf swing should be excluded.
While Crosson admittedly is not an expert in golf club design or manufacturing, his area of expertise includes evaluating and conducting root cause failure analyses of metallic components. As such, the Court held that his expertise in metal component failures makes him sufficiently qualified to offer an expert opinion as to the expected performance and durability of a metal shaft on a golf club.
Callaway also argued that, even if Crosson is qualified, his res ipsa-flavored opinion should be excluded because he points to no data, tests, or measurements in reaching the conclusion that a non-defective club would not fracture during a normal swing, and, as such, this opinion is unreliable.
Plaintiff again relied on Crosson’s extensive visual examination of the abrasions and strike marks to argue this opinion is sufficiently reliable. However, Plaintiff failed to explain how a visual examination of this specific Five Iron informs his expectations about golf club performance generally. Moreover, Crosson admitted he could not render an opinion as to the Five Iron’s design or golf club design generally, nor did he calculate the Five Iron’s load bearing capacity or know the industry standard load bearing capacity.
Callaway further argued this opinion should be excluded because it requires “a large analytical leap” and therefore did not satisfy Daubert‘s “fit” test. The Court held that this conclusion, seemingly based solely on Crosson’s experience as a recreational golfer, did not assist the trier of fact or offer anything other than the type of speculation that is more appropriate for Plaintiff’s closing argument.
B. Plaintiff’s Motion to Exclude Lemberg’s Testimony
Lemberg opined that misuse, mishandling, or abuse of the subject club cannot be ruled out as a cause of the shaft fracture.
Lemberg relied on largely the same scientific methodologies as Plaintiff’s expert, Crosson, which the Court found herein to be sufficiently reliable. And Lemberg’s opinion, based on scientific examinations and analyses, assisted the trier of fact by explaining how various features of the Five Iron – such as the unknown red material, dirt, scuff marks, misalignments, and the shaft’s deformity – are consistent with misuse or abuse.
Lemberg’s second opinion with which Plaintiff takes issue stated: “My examination of available shaft remnants did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft.” Plaintiff argued that this opinion is unreliable because it contradicted Lemberg’s statement in his deposition that the Five Iron’s misalignment and deformity could have been introduced during the manufacturing and design processes.
In his deposition, Lemberg consistently stated that his inspection of the Five Iron showed it met True Sports’ specifications and he found nothing wrong with its material properties, nor did he find any metallurgical defects. He later was able to review the inspection processes in place and confirmed that if the deformity was introduced during manufacturing, it would have been caught during inspection, rendering him able to narrow the window of time in which it could have been introduced.
Held
The Court denied True Sports’ motion to exclude the testimony of Joseph Crosson.
The Court granted Callaway’s motion to exclude Crosson’s opinion that a properly designed and manufactured golf club should not break during the normal course of use.
The Court denied Plaintiff’s motion in limine to exclude the opinions of Joseph Lemberg.
Key Takeaway:
While directly contradicting opinions could raise concern, the Court agreed with Callaway that Plaintiff’s reiteration of Lemberg’s opinions is not wholly accurate. The Court found Lemberg’s opinion that his examination did not reveal any evidence of shaft design or manufacturing defects that could be partially or wholly responsible for the fracture of the shaft sufficiently reliable.
This is a products liability case involving an articulating (i.e., multi-position) ladder manufactured by Little Giant Ladder Systems, LLC. On November 10, 2021, Jason Adams fell from a Little Giant ladder and suffered injuries. Adams asserted that he was using the ladder in the usual and ordinary manner when the rung on which he stood separated from the rest of the ladder. He testified that he inspects all ladders, he never dropped the subject ladder, and the subject ladder never fell from anything.
Defendant moved to exclude the testimony of Plaintiffs’ expert, David Kassekert, P.E., on the grounds that he is unqualified and his opinions are unreliable. Kassekert intended to testify that a rung on the Plaintiff’s ladder failed when it separated from the side of the ladder because the welded connection did not penetrate the metal of the rung to which it was being welded, which resulted in a fatigue crack in the rung material.
Plaintiffs moved to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright, P.E., because her testimony does not comport with the facts of this case. Wright examined the subject ladder and performed destructive testing. Plaintiffs did not contest that she is a qualified expert who used reliable scientific methods. Instead, they challenge how she applied her analysis to the facts of the case. Wright intended to testify that the failure of the ladder at issue in this case was the result of a high loading event which overstressed the ladder aluminum, resulting in the detachment of the rung from the side of the ladder.
Mechanical Engineering Expert Witness
David Kassekert specializes in automotive and transportation accident reconstruction and product liability issues, including accidents involving various types of industrial equipment. He has provided technical consultations, investigations, research, analysis, reports and testimony in nearly 1000 cases in more than 18 years of forensic engineering work. Kassekert has been admitted as an expert in courts in seven states, six Federal Districts, 18 Pennsylvania Counties, and the OSHA Administrative Court system. He has testified for both the Plaintiff and Defense over 250 times.
Ellen Wright is a Senior Consultant with ESi and a licensed professional engineer in Metallurgical and Materials Engineering. Wright specializes in failure analysis and prevention, fractography, and characterization of materials. Wright has experience with many modes of failure and forms of material degradation, such as fatigue, fracture, corrosion, wear, creep, distortion, and weld failures. She has conducted investigations involving a diverse array of products across many industries, such as manufacturing, transportation (aviation and aerospace, rail, maritime, and automotive), power generation, chemical processing, medical device, and construction.
The Court held that Kassekert’s opinion in this case is based entirely on “visual examination and photography.” Physical testing is not always required. Basically, Kassekert is not qualified to offer an opinion based on a visual inspection of the ladder because Kassekert has not offered any prior experience in comparing welds, failed or not, and much of his experience with welds is in an amateur context.
Kassekert’s mechanical engineering education and work experience as a professional engineer do not qualify him to comment on every kind of engineering. In his deposition, Kassekert acknowledged that metallurgical engineering was a distinct discipline from his own. Although Kassekert has specialized experience in mechanical engineering, particularly in the automotive industry, he does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld. The Court need not reach the reliability of Kassekert’s methods because he is not qualified based on knowledge, skill, experience, training, or education.
Ellen Wright
The parties agreed that Wright is a qualified expert in the area of metallurgical engineering who used reliable scientific methods. Plaintiffs sought to exclude her testimony because her opinion—that there was a sudden high loading event which overstressed the ladder aluminum—was not supported by the factual record. They emphasized that Adams testified he used the ladder in an ordinary manner.
Plaintiffs focused on the final prong of Rule 702 of the Federal Rules of Evidence: “(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Plaintiffs point to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case.”
Adams pointed to other courts’ descriptions of 702(d) as requiring the opinion “fit” the facts of the case. The Court held that Plaintiffs misunderstand this case. The issue of “fit” concerns whether the expert opinion as applied to the facts of the case is scientifically valid. Put differently, Wright’s analysis of failure in aluminum material would not fit the facts of this case if the subject ladder was made of plastic. Plaintiffs’ 702(d) argument misses the mark.
Adams also argued that they are not required to exclude alternative causes for the malfunction of the ladder. Indeed, West Virginia law “does not require a Plaintiff, to succeed at the summary judgment stage, to conclusively eliminate all possible contributing causes other than a defect for an accident. This does not mean that the Court must exclude evidence of another possible cause for an accident because it conflicts with Plaintiffs’ theory of the case.
Held
The Court granted Defendants’ motion to exclude the testimony of the Plaintiff’s expert,David Kassekert.
The Court denied Plaintiffs’ motion to exclude the testimony of the Defendant’s expert, Dr. Ellen Wright.
Key Takeaways:
Kassekert does not have experience in metallurgical science sufficient to assist jurors in deciding whether the ladder collapsed due to an insufficient weld.
Wright’s analysis of failure in aluminum material was supported by the factual record.
Case Details:
Case Caption:
Adams Et Al V. Little Giant Ladder Systems, Llc
Docket Number:
3:22cv460
Court:
United States District Court, West Virginia Southern
On March 24, 2021, BPS initiated legal action against Inashco, accusing it of having breached a non-disclosure agreement (NDA) (Claim 1), misappropriation of trade secrets (Claim 2), and unjust enrichment (Claim 3). The first claim alleged that Inashco violated the NDA by using BPS’ confidential information. Similarly, Claim 2 asserted that Inashco had used BPS’ trade secrets without authorization.
BPS was a manufacturer of bulk processing and recycling equipment, with a notable recycling equipment system called the RecoverMax Fines Process. This system allowed for the recovery of minute metal pieces from incinerator bottom ash and auto shredder residue, including valuable metals like copper, silver, and gold and other precious metals that could have been reused in other applications.
Inashco, the North American branch of a Netherlands company, had processed incinerator bottom ash from power stations to recover low-grade metals to be further processed to separate the metals from the waste components. In July 2016, Inashco had become interested in BPS’ RecoverMax process, and had initiated discussions about a Mutual Non-Disclosure Agreement (NDA) to continue business discussions and the testing process. On August 2, 2016, Inashco’s president, John Joyner, signed the NDA with BPS, wherein the definition of Confidential Information included, “proprietary information concerning the components, construction, and processes of BPS’ RecoverMax technology used for crushing the mineral components of a non-ferrous metal concentrate as derived from municipal solid waste ash by means of [Inashco’s] process.”
After reviewing the internal structure of the RecoverMax machine, Inashco questioned its similarities to technology manufactured by Palla Mill. BPS had clarified the distinctions, emphasizing the RecoverMax system’s focus on recovering metals from friable materials, i.e., glass, rock, and other minerals.
Shortly after installation, Inashco raised concerns about the performance of the RecoverMax system and its hourly tonnage capacity. BPS attempted to address these issues but Inashco put BPS on notice that it was in breach of the RecoverMax Purchase Agreement. While the communication between BPS and Inashco regarding the purported breach was ongoing, Inashco had reached out to one of BPS’ suppliers to obtain a quote for a dust control system for the facility in Lancaster, Pennsylvania. On January 25, 2019, Inashco presented BPS with a proposed Mutual Release and Termination Agreement, initiating negotiations for the termination of the RecoverMax Agreement. During these negotiations, Inashco imported a Palla Mill system to the United States on August 25, 2019. One month later, on September 25, 2019, BPS and Inashco executed a Mutual Release and Termination Agreement. The Mutual Release and Termination Agreement explicitly stipulated that the previous NDA between Inashco and BPS would persist beyond the termination of the RecoverMax Agreement and would remain in effect until August 3, 2031, unless both parties mutually terminated it in writing before that date.
On December 20, 2020, Inashco imported a second Palla Mill system to the United States. It was implied that Inashco utilized information and technology acquired from BPS via the exchange of information governed by the NDA to achieve comparable outcomes to the RecoverMax system by importing the Palla Mill systems and incorporating additional components from the same vendors used by BPS.
In July 2022, Inashco enlisted the services of Dr. Jerome P. Downey, Ph.D., P.E., as an expert in the “design, development, and operation of material processing equipment.” Downey had been deposed by BPS. During his testimony, Downey revealed that Inashco’s attorneys had aided him in drafting his report. He had approximated that seventy-five percent of the 117-page report had been composed in his own words, emphasizing that any technical aspects had been directly from him.
On August 25, 2023, BPS submitted a Motion to Strike and Exclude Downey’s Expert Report and Testimony. BPS had contended that the Court should invalidate Downey’s expert report and testimony for two primary reasons. Firstly, Downey had opined about ultimate legal conclusions, specifically stating what information is confidential and had constituted a trade secret. Secondly, Downey had not personally drafted the entire content of his expert report.
Inashco had filed an Opposition, disputing BPS’ mischaracterization of the substance of Downey’s report and asserting that the law had permitted counsel to assist an expert in drafting the report.
Metallurgical Engineering Expert Witness
Jerome P. Downey earned his Ph.D. in Metallurgical and Materials Engineering at Colorado School of Mines and his B.S. and M.S. degrees in Metallurgical Engineering at Montana Tech. He is currently the Goldcorp Professor of Extractive Metallurgy at Montana Tech, where he also serves as the campus Director of the Montana University System Materials Science Ph.D. program. He is also the Chief Executive and General Manager at J. P. Downey & Associates, P.L.L.C. Downey has over 25 years of experience managing research and development projects in the chemical, metallurgical, and materials industries.
Discussions by the Court
BPS contended that Downey’s testimony consisted of “impermissible legal conclusions,” when he opined that (1) BPS failed to meet the legal requirements for trade secrets or confidentiality protection; (2) Inashco did not misappropriate BPS’ trade secrets; and (3) Inashco did not violate the NDA.
In response, Inashco argued that Courts usually permitted experts to testify as to whether the information was generally known or readily ascertainable and whether it was entitled to trade secret protection.
Federal Rule of Evidence 704, as of the relevant time, did not prohibit an expert’s opinion from embracing an ultimate issue, as stated in Fed. R. Evid. 704(a). However, it clarified that the issue embraced by the expert must be a factual one, as was cited in Berry v. City of Detroit, 25 F.3d 1342. The Sixth Circuit, emphasized the subtle but crucial distinction between opining on the ultimate question of liability (deemed impermissible) and stating opinions that offer information for the jury to draw inferences about the ultimate issue (considered permissible). Downey could opine as to the factors underlying whether certain information constitutes a trade secret. However, he would be restricted from directly opining on whether that information is, in fact, a trade secret.
Therefore, the Court granted BPS’ Motion to Strike and Exclude Downey’s Expert Report and Testimony, specifying that it would not take into account the portions of Downey’s report and deposition testimony that presented legal conclusions.
BPS also asserted that Downey’s report, was not entirely drafted by him and contained substantial portions which matched with Inashco’s interrogatory responses, violating Federal Rule of Civil Procedure 26. Inashco countered, asserting that the law allowed the counsel to aid an expert in drafting the report and that it was acceptable to incorporate discovery responses into an expert report.
Federal Rule of Civil Procedure 26 stipulates that expert witness disclosures must be accompanied by a written report, which must be prepared and signed by the witness. Even though the rule prohibits counsel from preparing the report on behalf of the witness, it allows counsel to assist the witness, with the assistance typically limited to ensuring compliance with Rule 26’s requirements. Counsel may participate in the fine-tuning of an expert report to ensure Rule 26(a)(2)(B) compliance, but they are not permitted to create the expert’s opinion entirely and then have the expert sign it. The key question in determining the appropriateness of counsel’s participation is whether it exceeds the bounds of legitimate assistance to the point of negating the possibility that the expert genuinely prepared their own report.
For the following reasons, the Court concluded that Downey’s expert report should not be entirely stricken.
Firstly, Downey’s deposition testimony didn’t indicate that Inashco’s counsel had entirely fabricated the report or crossed the limits of legitimate assistance. When questioned about the report’s content in his own words, Downey specified that a substantial portion of the report was his own work, particularly any technical aspects. He estimated about “seventy-five” percent was his own work, stating that the portions he did not write primarily consisted of legal standards and italicized trade secret portion of the report. As to the italicized trade secret portion of the report, Downey mentioned that Inashco’s counsel took his opinions almost verbatim and put them in there. However, Downey clarified in the deposition that his signing of the report signified his thorough review to ensure factual accuracy and consistency with his rendered opinions. He admitted his discomfort with certain legal terminologies, indicating that this was where Inashco’s counsel provided assistance.
No evidence suggested that the report did not accurately reflect Downey’s views. Inashco’s counsel’s assistance amounted to, at most, twenty-five percent of the report, signifying that Downey had personally drafted a significant portion of the report as a whole.
Secondly, BPS’ argument to strike Downey’s report on account of significant portions matching with Inashco’s discovery responses failed to persuade the Court. Downey testified that his responses or evaluations of the interrogatories were included in his report. Downey also added that he considered “Inashco’s Third Supplemental Response to BPS’ Interrogatory No. 13” before drafting his expert report. Therefore, it logically follows that portions of Downey’s expert report would align with Inashco’s discovery responses.
BPS asserted that Inashco had formulated its initial and first supplemental responses to BPS’ interrogatories before it retained Downey. These discovery responses were then carried forward into the Third Supplemental Discovery Responses, which BPS claims were directly copied into Downey’s report. According to BPS, this sequence indicated that Downey could not have participated in drafting those discovery responses.
However, the Court observed that since those responses were carried forward, Downey would have reviewed those prior responses while assisting Inashco with the third supplemental responses. Downey’s testimony also affirmed that he had thoroughly reviewed everything in the report to ensure factual accuracy and consistency with his opinions. Consequently, the fact that portions of Inashco’s discovery responses appear in Downey’s report was thus insufficient evidence to indicate that Inashco’s counsel had entirely fabricated the report in violation of Rule 26(a)(2)(B).
Held
The Court has granted in part and denied in part BPS’ Motion to Strike and Exclude the Expert Report and Testimony of Inashco’ expert Jerome P. Downey. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
1) An expert cannot opine on ultimate legal conclusions, such as whether certain information constitutes a trade secret. However, the expert can testify to the underlying factors and analysis that may lead the jury towards that legal conclusion.
2) Counsel may assist an expert in drafting the report to ensure compliance with Rule 26, but cannot prepare the substantive opinions themselves.
3) Mere overlap between an expert report and discovery responses does not warrant striking the report, as long as the expert reviewed the responses and adopted them as his own opinions.
4) The Court struck the legal conclusions in Downey’s report, but denied striking the report entirely. The Court found Downey’s testimony showed the report reflected his actual views, even if counsel helped draft portions.
