Plaintiff Amcor Flexibles North America, Inc. (Amcor) brought this action against Defendant Reynolds Packaging, LLC (Reynolds), asserting claims for negligence, indemnification, and breach of warranty arising out of Amcor’s purchase from Reynolds of allegedly defective zippered, food-storage pouches.
Reynolds sued the Third-Party Defendant Reynolds Presto Products, Inc. (Presto), the manufacturer of the zipper component used in the pouches, for breach of implied warranty.
Reynolds offered the opinion of Matthew Furrer in support of its contention that Presto’s zippers were defective.
Mechanical Engineering Expert Witness
Matthew J. Furrer is the owner and a primary consulting engineer at Krenz Engineering. He holds a bachelor’s degree and master’s degree from the Mechanical Engineering department at the University of Wisconsin – Madison.
Amcor manufactures flexible packaging materials, many of which are used to package food products. Tru Fru, one of Amcor’s customers, ordered zippered, food-storage pouches for its chocolate-covered frozen and/or freeze-dried fruit products. Amcor subcontracted with Reynolds to produce the pouches from the film Amcor provided, and Reynolds purchased the plastic zippers that made the pouches resealable from Presto. Reynolds incorporated the zippers into the pouches and then shipped the finished product to co-packers to be filled with Tru Fru product. During the packaging process, a fuzz-like plastic contaminant known as “angel hair” was found in some of the packages.
Furrer, a mechanical engineer, did not dispute the finding of the joint investigation that the zipper guide originally on the Hudson-Sharp machine was a cause of the angel hair in the finished Tru Fru product. In fact, Furrer did not analyze the zipper guide and made no attempt to determine whether the machine caused the problem. Nor did Furrer dispute that once the Hudson-Sharp zipper guide was modified, no further angel hair contamination was noted. Instead, Furrer’s opinion was that there could have been another cause of the angel hair contamination, namely, that the zippers provided by Presto were defective in that they had angel hair accumulations at the time the zipper material was delivered to Reynolds and before it was incorporated into the pouches.
Analysis
Regardless of whether Furrer is qualified by his education, training, or experience, the Court is satisfied that Reynolds has failed to establish by a preponderance of the evidence that his methodology is reliable or that the proffered testimony is relevant.
To begin with, Furrer’s methodology involved conducting a test that had little resemblance to the actual operation of the machines used to produce the pouches, and the test was conducted on zipper material that had previously been rejected by Reynolds as nonconforming because of the presence of strings.
It is undisputed that this rejected material was not used to produce the pouches that were delivered to Tru Fru’s co-packagers and were later found to contain the angel hair contaminant. This is not a test that could produce a reliable answer to the question of whether the zipper material actually used to produce the Tru Fru pouches was defective.
Held
The Court granted Presto’s motion to exclude the expert opinion of Matthew Furrer.
Key Takeaway
Furrer is unable to offer more than speculation as to whether the zipper material actually utilized in the Tru Fru pouches was defective. In other words, his opinion that it could have been defective is insufficient to assist the factfinder. It is therefore irrelevant and thus inadmissible.
Case Details:
Case Caption:
Amcor Flexibles North America Inc V. Reynolds Packaging LLC
Plaintiff Bailey Aldrich slipped and fell from a single step landing at a United States post office, injuring her foot. Aldrich testified that as a result of her fall, all of her weight landed on her right foot, and she broke three bones in the top of her right foot close to her ankle. She then landed on her bottom and was in immense pain. Aldrich believed that the condition that caused her fall was created by trucks running into the back of the landing.
Plaintiff’s liability expert, William Marletta, testified that the inspections performed by the United States Postal Service were deficient and that “anybody inspecting this should have been able to pick up that there were problems.” He added that there are issues that are not found or cited in inspections that could still be considered dangerous or defective conditions.
Defendant challenged Marletta’s opinions on several bases: that they (1) form inadmissible legal conclusions; (2) are not based on reliable principles and methods; and (3) are based on facts not in the record that are speculative and do not assist the trier of fact.
Safety Expert Witness
William Marletta is an internationally recognized safety professional with many professional honors including an “Award of Merit” from The American Society of Testing and Materials (ASTM) for his contributions to the development of standards, and was a world recipient of the American Society of Safety Engineers (ASSE) Safety Professional of The Year.
Marletta’s Opinions Form Inadmissible Legal Conclusions In Part
In one of his opinions, Marletta claimed that Defendant was “negligent in failing to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings in accordance with The New York City Building Code, as well as good and accepted safe practice.”
The Court held that the word “negligent” impermissibly embraced a legal conclusion. However, the Court accepted Plaintiff’s suggested revision of the opinion to: “the owner(s) of the property and its agent (“Defendants”) failed to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings.”
Marletta concluded that the loading dock “became a means of egress when [Plaintiff] was instructed to enter the accident area.” Marletta opined that there were “dangerous slopes that forward pitched the curb as a ramp.” Whether the loading dock was a means of egress and whether it was a ramp are questions of law to be decided by the Court because these are both legal terms used in the Building Code. Accordingly, the Court excluded these opinions.
Marletta interpreted various codes and statutes, including iterations of the Building Code and American Disabilities Act. Defendant argued that the applicability and interpretation of various codes and statutes are matters of law for the Court to decide.
The Court held that Marletta’s opinions provide information on standards and deviations from them. He cites code and statute violations as part of his overall analysis regarding Defendant’s alleged failure to maintain the step. Defendant has not identified any viable basis to exclude these opinions.
Whether the opinions are applicable to the instant matter, however, depends on if the Court determines that the loading dock is a means of egress and the landing is a ramp, which the Court lacks sufficient information to do at this juncture.
Marletta’s Opinions Are Based on Sufficient Facts
Marletta relied on the following materials when forming his expert opinions: (1) photographs of the accident area; (2) inspection and maintenance problem reports; (3) Plaintiff’s deposition testimony; (4) depositions from Post Office employees; (5) various other litigation materials provided to him by Plaintiff’s counsel; and (6) an onsite inspection on November 15, 2022.
Lack of Visual Cues
Marletta concluded that a lack of visual cues was the proximate cause of Plaintiff’s accident. Defendant claimed that Marletta’s opinion should not be persuasive, because, for example, Plaintiff was not looking down at the time of the accident. The Court refrained from excluding this opinion because Defendant had not pointed to any reason why the materials Marletta relied upon were insufficient.
When Marletta concluded that the “excessive height of the single-step riser was a proximate cause” of Plaintiff’s injury, the Court held that Defendant’s criticisms go to the weight, not the admissibility, of the proffered testimony.
Untested Conjecture
Defendant took issue with Marletta’s statement that the landing was a “smooth, hard surface” and that when a “smooth, hard surface is combined with water or a foreign substance left laying on its surface, conditions are ripe for a slip and fall accident.” Defendant argued that Marletta’s testimony that “it would not surprise [him]” if there were water or a foreign substance on the landing is “untested conjecture.” Marletta cannot testify as to unsupported beliefs about whether there was water or a foreign surface on the landing. But the Court, at this juncture, will not exclude the opinion that when a smooth, hard surface is combined with water or a foreign substance, conditions are ripe for an accident.
Location of the Accident
When Defendant pressed for exclusion because Marletta was unable to identify with certainty the location of the accident, the Court held that Marletta identified generally where Plaintiff’s accident occurred; it is not entirely uncertain where Plaintiff fell. The Court, as finder of fact at trial, will determine how much weight to assign to the fact that Marletta determined the average roughness of the landing.
Similarly, Marletta noted that the “loading dock and curb had worn metal, excessive slopes, garbage and filth, an excessive riser, and more.” Although Defendant argued that there is no evidence that these conditions existed or contributed to the accident, the Court will determine what weight, if any, to assign this opinion at trial.
Marletta’s statements are not connected to the facts of the case
Marletta opined that conditions “contrary to our expectation” can contribute to a slip and fall. He concluded that the “normal cone of vision of the pedestrian” makes hazards on walking surfaces difficult to distinguish. Marletta also concluded that surface changes are “difficult to distinguish due to the to view perspective of the pedestrian.” The Court held that Defendant’s conclusory arguments that Marletta’s statements are not connected to the facts of the case fail to establish that these opinions were not based upon reliable data and methodology or will not assist the Court as the finder of fact.
The Court also saw no reason to exclude Marletta’s opinion that that “these departures from codes, rules, regulations and good and accepted safe practice were the proximate cause(s) of the accident.”
Defendant’s Other Arguments to Exclude Marletta’s Expert Testimony Are Unavailing
Marletta opined that “there was a failure to adequately train employees in safe practices that prohibited pedestrians from entering into dangerous areas.” Defendant’s only argument was that this testimony did not raise any material issue of fact, which the Court held was not a basis to exclude the testimony.
Defendant also quibbles with Marletta’s statement that additional warning signs should have been posted in the area of the accident. Defendant argued that the landing was painted in yellow, therefore providing a warning and that Plaintiff was aware of the step. The Court, once again, held that Defendant did not point to any basis to exclude this opinion.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude William Marletta’s testimony.
Key Takeaways:
Any gaps or inconsistencies in Marletta’s report go to the weight of the evidence, not its admissibility, as Marletta’s report is based on sufficient facts and data.
When an expert offers an opinion relevant to applying a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.
