Expert Witness Profiler

Tag: Design

  • Accident Reconstruction Expert’s Testimony on Design Defects Excluded

    Accident Reconstruction Expert’s Testimony on Design Defects Excluded

    This case arises from a single, momentary sideswipe on Interstate 95 in which the rightfront tire of the U-Haul truck driven by Corey Hayes-Goode contacted the left-rear corner of Rigoberto Lagunas-Antunez’s GMC van.

     U-Haul filed certain motions challenging the testimony of Plaintiffs’ experts, Ruston Hunt, Daniel Wolfe, Steven Kean and Brooks Rugemer.

    The Court dismissed Plaintiffs’ claims against U-Haul that were brought under a design defect theory (the “design defect claims”), but denied the motion as to Plaintiffs’ claims against U-Haul under a failure-to-warn theory, as well as to the Estate of Rigoberto’s wrongful death claim against U-Haul. All of Plaintiffs’ claims against Defendant Hayes-Goode remained.

    Human Factors Expert Witness

    Ruston M. Hunt holds a B.S. and M.S. in Industrial Engineering and a Ph.D. in Mechanical Engineering from the University of Illinois, where he also taught and conducted applied research on human error and electro-mechanical systems. With over 40 years of experience in human factors engineering, he has led extensive research and development projects for major government
    agencies and Fortune 500 companies, focusing on operator support systems and human-system interfaces. Hunt has served as a faculty member and administrator at leading institutions, where he taught and developed programs in human factors and systems engineering.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Ruston Hunt’s expert testimony.

    Accident Reconstruction Expert Witnesses

    Daniel M. Wolfe has a Bachelor of Science Degree in Engineering and a Doctor of Philosophy degree in Electrical and Electrical and Computer Engineering.

    He is a member of the Society of Automotive Engineers, the National Association of Accident Reconstruction Experts, and the Optical Society of America. He is certified by the Society of Automotive Engineers to access and interpret Heavy Vehicle Event Data Recorders in commercial vehicles and is certified as a BOSCH Crash Data Retrieval technician.

    Discover more cases with Daniel Wolfe as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Steven T. Kean has over 25 years of experience in traffic crash investigation and reconstruction, including more than 1,000 crash investigations. He has served as an Accident Reconstruction Team member since 2001 and as Team Leader since 2008, and he holds full accreditation as a Traffic Accident Reconstructionist from ACTAR.

    Kean’s extensive specialized training—spanning advanced crash reconstruction, event data recorder analysis, heavy vehicle investigations, and human factors—demonstrates his comprehensive expertise in evaluating vehicle dynamics and driver behavior. He has been qualified and testified as an expert in multiple state courts, taught advanced crash reconstruction courses to law enforcement and legal professionals, and is an active member of leading professional organizations, including the National Association of Professional Accident Reconstruction Specialists and the Society of Automotive Engineers.

    Get the full story on challenges to Steven Kean’s expert opinions and testimony with an in-depth Challenge Study.

    Trucking Expert Witness

    Brooks Rugemer has over 30 years of experience in trucking safety, driver training, risk management, and accident investigation, including 12 years as a tractor-trailer operator with 1.4 million accident-free miles. He has hired and trained over 5,000 CDL drivers and is intimately familiar with FMCSRs, OSHA regulations, and accepted transportation safety practices.

    Want to know more about the challenges Brooks Rugemer has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Motion to Exclude Expert Ruston Hunt

    U-Haul provided that Hunt opined as to the location of the van relative to the Subject Truck at the time of the accident, that the Subject Truck was defective and unreasonably dangerous due to lacking certain technologies, and that U-Haul allegedly failed to provide adequate warnings and training to inexperienced renters.

    On review of Hunt’s voluminous report, these opinions primarily involve (1) the Subject Truck being unreasonably dangerous and defective because “insufficient warnings and instructions were provided to renters” and because “it lacked a blind spot detection and warning system,” (2) the dangers of failing to “explicitly train” renters on the proper adjustment of the Subject Truck’s side view mirrors; and (3) the accident-prevention effect that blind-spot detection technologies “likely” would have had in this case, had they been installed on the Subject Truck.

    Because Plaintiffs’ design defect claims are no longer viable, Hunt’s opinions that the Subject Truck was defective and unreasonably dangerous due to an alleged design defect are not relevant.

    B. Motion to Exclude Expert Daniel Wolfe

    Wolfe testified as to the Subject Truck’s alleged design defects and alternative technologies that allegedly could have prevented the instant accident.

    As the proposed design-engineering expert, Wolfe’s testimony is relevant only with regard to the now-dismissed design defect claims. Therefore, pursuant to Federal Rule of Evidence 401, the Court granted U-Haul’s motion to exclude the testimony of expert Wolfe.

    C. Motion to Exclude Expert Steven Kean

    U-Haul took issue with two specific opinions proffered by Kean in his deposition: Plaintiffs’ van was in the Subject Truck’s blind spot prior to the accident, and the van was traveling faster than the Subject Truck at impact.

    According to Plaintiffs, Kean’s testimony will “offer critical insight that will help the jury understand the sequence of events and the physical evidence underlying this collision.”

    Because the Court can foresee the potential relevance of an accident reconstructionist’s testimony to Plaintiffs’ remaining claims, the Court denied without prejudice U-Haul’s motion to exclude the testimony of expert Steven Kean at this juncture, subject to a Daubert hearing at the appropriate time in the proceedings to ascertain the reliability of his proffered testimony.

    D. Motion to Exclude Expert Brooks Rugemer

    U-Haul provided that Rugemer’s testimony concerned the countermeasures that U-Haul should have taken in order to prevent the instant accident, such as giving additional training and safety information to inexperienced drivers of rental trucks.

    According to Plaintiffs, Rugemer will “explain to the jury how commercial transportation companies manage blind spot and mirror adjustment risks, what reasonable industry practices exist to mitigate foreseeable lane-change collisions, and how U-Haul’s rental procedures fell short of those well-established standards.”

    Because the Court can foresee the potential relevance of a commercial safety expert’s testimony to Plaintiffs’ remaining claims, the Court denied without prejudice U-Haul’s motion to exclude the testimony of expert Brooks Rugemer at this juncture, subject to a Daubert hearing at the appropriate time in the proceedings to ascertain the reliability of his proffered testimony.

    Held

    • The Court granted U-Haul’s motions to exclude the testimony of Ruston Hunt and Daniel Wolfe.
    • The Court denied without prejudice U-Haul’s motions to exclude the testimony of Steven Kean and Brooks Rugemer.

    Key Takeaway

    Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

    Case Details:

    Case Caption: Lagunas-Antunez V. Hayes-Goode
    Docket Number: 2:24cv416
    Court Name: United States District Court, Virginia Eastern
    Order Date: February 26, 2026
  • Product Design Expert Was Allowed to Opine on Athletic Bags

    Product Design Expert Was Allowed to Opine on Athletic Bags

    Rebel, a cheerleading apparel brand based in Texas, sells, among other products, a backpack called the “Rebel Dream Bag.” Plaintiff holds a trademark in the Dream Bag’s “two-dimensional hourglass shaped enclosed curved figure double outline design, with an outlined straight rectangular shaped top line and an outlined curved three-fourth rectangular shaped line underneath, both inside the curved figure outline design,” as pictured.

    Jim Lundberg, under the business name CheerStix, operated an interactive internet store which sells cheerleading apparel, including cheerleading backpacks. In August 2021, Lundberg engaged designer Fernando Robert to develop a cheerleading backpack. Lundberg sent Robert examples of his desired design, including images of the Rebel Dream Bag and Nfinity Bag. Lundberg said he wanted his “own version” of a bag, though Robert noted that his mock-up possessed many similarities to the Rebel bag.

    After Defendant’s bag—the “It Bag” or “CS Athletic Bag”—entered the market, Rebel sued Lundberg for trademark infringement.

    Defendant filed a Daubert motion to exclude the expert report of Rob Wallace, who opined, based upon survey evidence, that the Dream Bag has acquired secondary meaning. Plaintiff separately moved to exclude the expert report of Hrag Nassanian, who opined upon the functionality of the Dream Bag’s trade dress.

    Branding Expert Witness

    Rob Wallace has extensive experience in brand identity strategy and design as the former managing partner of Wallace Church, Inc., one of the most recognized and accomplished brand identity strategy and design consultancies.

    Want to know more about the challenges Rob Wallace has faced? Get the full details with our Challenge Study report.

    Product Design Expert Witness

    Hrag Nassanian worked for over 20 years as a product designer and developer of bags, including backpacks, duffel bags, gym sacks, shoulder bags, luggage, roller bags, totes, and messenger bags. Nassanian built the product line of basketball bags at Nike and led the company’s global bag product design and development for several kinds of athletic bags. Nassanian previously taught a college course on principles of bag design and currently consults on product design and development.

    Get the full story on challenges to Hrag Nassanian’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Rob Wallace

    Plaintiff retained Rob Wallace to testify regarding whether the Rebel Dream Bag’s trade dress has acquired secondary meaning among the consuming public. Wallace’s survey included a population of respondents who purchased cheerleading backpacks within the last twelve months and planned to do so again in the next twelve months.

    Defendant argued that the Court should exclude Wallace’s expert testimony and expert report based upon the survey’s use of an unreliable methodology.

    1. Universe

    Lundberg argued that the survey consisted of an underinclusive universe, as it excluded those consumers who have not purchased cheerleading equipment in the last 12 months but plan to do so in the next 12 months.

    However, Lundberg has not shown that excluded consumers from the survey universe represent a “sizeable portion” of the market. Consequently, Lundberg’s criticisms related to the sampling universe go to the weight of the evidence, not the survey’s admissibility.

    2. Whether Survey Questions Were Clear, Precise, and Nonleading

    Here, Defendant contended that the following question was flawed: “From the design of this product, do you believe that this backpack comes from one source/ manufacturer or is it a generic design that is used by many different backpack manufacturers?”

    A critique of whether the survey question focused on the correct issue did not affect admissibility, but rather, “goes to how much weight the Court should give the survey results.” Accordingly, Lundberg’s argument regarding this survey question goes to the survey’s weight, not admissibility.

    Defendant additionally argued that the lack of a survey pre-test warrants exclusion. On the contrary, pre-tests “are not required” and do not justify the exclusion of that expert’s testimony.

    Therefore, the Court held that Wallace Survey’s lack of a pre-test did not render the survey inadmissible.

    3. Other Concerns

    Defendant argued that the Wallace Survey warrants exclusion, in part, because it lacked a sufficient control group. Because courts have admitted surveys with no control group at all, criticisms of the Wallace survey’s control group here go to its weight, not admissibility.

    Likewise, the failure to remove Rebel’s star-shaped “R” design logo goes to the weight of the survey, not admissibility. Since the images of the Rebel Dream Bag presented to Wallace Survey respondents included this indicium of origin, Lundberg argued the Wallace Survey “simply measures how many respondents recognize the backpack as coming from one company because it contains a brand logo on it.”

    The presence of source-identifying indicia, however, does not necessarily make a survey inadmissible. Here, the star “R” logo appeared only on Rebel’s backpack, not on Lundberg’s. As a result, there exists little risk of respondents mistaking the Rebel and Lundberg backpacks as deriving from the same source on the basis of the logo.

    In summary, for the reasons described above, the Court found the Wallace survey admissible.

    Hrag Nassanian

    Nassanian opined on the functionality of the Rebel Dream Bag design, evaluating the functionality of the bag’s individual components and the overall bag in the context of its use generally and its unique role in cheerleading.

    Nassanian concluded that Rebel Dream Bag’s trade dress overall remains functional, as do the following components on the bag: contrasting color zipper pocket outlines; front pocket style and placement; side mesh and placement; auxiliary side pocket style and placement; glitter fabric; interior-fabric monogramming patterns; shoe compartment style and placement; and clip placement.

    Rebel argued that Nassanian’s lack of knowledge regarding cheerleading renders him ineligible to opine on the Dream Bag, designed for cheerleaders. While Nassanian’s report touches upon the bag’s use in cheerleading, his opinion also encompasses manufacturing details, design choices common to bags generally, and non-cheerleading-specific use of the bag. These opinions derive from Nassanian’s uncontested expertise in bag product design and development, which does not require specific cheerleading knowledge or expertise.

    Methodology

    Rebel argued that Nassanian’s methodology remains unreliable because he only evaluated the backpack’s functionality based upon its components, not in totality; Nassanian failed to consider alternative designs; and Nassanian only looked at the backpack and cheerleading in preparation for this lawsuit.

    Rebel’s challenges lacked merit. First, Nassanian stated that he did evaluate the backpack’s functionality in totality, as well as the bag’s individual components, and the report confirms his assertion. Likewise, Nassanian’s report clearly included consideration of alternative designs, including a lack of contrasting colored zippers, a different radius for front pocket styles, and alternative locations for a side mesh pocket. Nassanian also considered other backpack designs. Finally, the fact that Nassanian’s testimony was expressly developed for the purpose of testifying is not unusual; that is undoubtedly the case for most, if not all, retained expert witnesses.

    Though Nassanian had not previously worked with competitive cheerleading, he nonetheless possesses extensive experience with bag design and development, and with specialty athletic bags in particular.

    The the Court found that Nassanian’s methodology met the minimum requirements under Daubert.

    Held

    • The Court denied Defendant’s Daubert motion to exclude the expert report of Rob Wallace.
    • The Court denied Plaintiff’s motion to exclude to the testimony of Hrag Nassanian.

    Key Takeaway

    Nassanian’s methodology extensively considered his observations of the Rebel Dream Bag and other athletic bags, and Nassanian’s extensive experience and knowledge within the field of bag design and development. This methodology creates no issues for reliability under Daubert.

    An expert might draw a conclusion from a set of observations based on extensive and specialized experience.

    Case Details:

    Case Caption: Rebel Athletic Inc. V. Lundberg
    Docket Number: 1:22cv3330
    Court Name: United States District Court, Illinois Northern
    Order Date: February 11, 2026
  • Expert Testimony Curtailed in Defective Conveyor Case

    Expert Testimony Curtailed in Defective Conveyor Case

    In July 2022, while working at Tyoga Container Company’s facility, William Borden stepped onto a mesh belt conveyor manufactured by Mainline Conveyor System, Inc. The conveyor unexpectedly activated and threw him off, causing severe lacerations to his left knee and lower leg. Borden claimed that the conveyor was defective and unreasonably dangerous.

    In August 2023, Borden filed a strict liability lawsuit against Mainline in the Pennsylvania Court of Common Pleas of Tioga County. The following month, Mainline removed the case to federal court on diversity grounds.

    Borden sought to exclude testimony from Mainline’s engineering expert, George J. Wharton; evidence suggesting product misuse or highly reckless conduct; evidence of assumption of risk; and evidence of his prior DUI conviction.

    Safety Engineering Expert Witness

    George J. Wharton is a professional engineer with multiple certifications, including C.F.E.I., C.V.F.I., and C.F.P.S., and holds both B.S. and M.S. degrees in mechanical engineering. Wharton serves as an expert in engineering, safety engineering, and personal injury matters.

    His work includes evaluating mechanical system design, workplace safety procedures, and incident causation. Wharton has also authored expert reports responding to opposing experts’ claims and opining on industry practices based on decades of engineering experience.

    Get the full story on challenges to George J. Wharton’s expert opinions and testimony with an in-depth Challenge Study.  

    Discussion by the Court

    Contract Interpretation

    Wharton’s opinion that Tyoga was “required” to assume safety responsibilities under its contract with Mainline crossed into legal interpretation. Since his conclusion relied on contract language rather than engineering practices, the court deemed it inadmissible.

    Design vs. Knowledge

    Wharton did not offer an opinion on Mainline’s subjective knowledge. Instead, he responded to the opposing expert’s foreseeability claim by analyzing the design differences between conveyors. This design-focused rebuttal was found admissible.

    Speculation on Plaintiff’s Behavior

    Wharton asserted that a warning decal wouldn’t have influenced Borden’s decision to cross the conveyor. This opinion was based on speculation about Borden’s mindset and was therefore excluded as outside the scope of expert testimony.

    Alarm System Commentary

    Wharton’s critique of an audio-visual alarm system addressed practical feasibility—highlighting how excessive alarms could lead to desensitization or muting. Grounded in engineering experience, this testimony was allowed.

    Post-Accident Procedures

    The Court excluded any opinion referencing Tyoga’s post-accident policies, including a sign in Wharton’s report, under the parties’ pretrial agreement.

    Held

    The Court granted in part and denied in part Plaintiff Borden’s motion to exclude the testimony of Defendant Mainline’s expert witness, George J. Wharton.

    Key Takeaway:

    An engineering expert may testify about industry practices, product design, and the feasibility of safety features, but cannot interpret contractual obligations or speculate on a party’s mental state or motivations. Courts will exclude expert opinions that cross into legal conclusions or subjective speculation.

    Case Details:

    Case Caption: Borden v. Mainline Conveyor Sys., Inc
    Docket Number: 4:23cv01486
    Court Name: United States District Court for the Middle District of Pennsylvania
    Order Date: July 21, 2025
  • Structural Engineering Expert Witness’ Testimony Admitted Despite His Lack of Specific Experience in Designing Pools

    Structural Engineering Expert Witness’ Testimony Admitted Despite His Lack of Specific Experience in Designing Pools

    This case involves claims raised by Plaintiffs Kyle and Annaleah Justice against Defendants Bestway USA and Rural King Holdings, Inc. under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.

    Plaintiffs raised five claims against Bestway USA: Count I – Strict Liability Design Defect; Count II – Strict Liability Failure to Warn; Count III – Negligence (under theories of both negligent design and negligent failure to warn); Count IV – Breach of Express Warranty; and Count V – Breach of Implied Warranty.

    Kyle and Annaleah Justice filed a motion to exclude Fred Semke, Defendant Bestway (USA), Inc.’s retained engineering expert.

    Structural Engineering Expert Witness

    Fred Semke is President of Semke Forensic and was hired by Bestway USA to “render professional opinions regarding the pool.” Semke has a bachelor’s degree in mechanical engineering and a master’s degree in engineering mechanics. He is a Registered Professional Engineer in Missouri, Illinois, Arkansas, Kentucky, Kansas, Oklahoma, Iowa, Alabama, and Idaho. He also has fourteen (14) years of experience as a structural engineer.

    Get the full story on challenges to Fred Semke’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    Semke’s report stated that he plans to testify to the following:

    1. During the Warren County Sheriff’s evaluation of the subject pool, the top of the support band was measured at 14.5 inches from the ground . . . with the overall height of the pool being 51.5 inches . . . . As such, the distance between the top of the pool and the top of the support band was 37 inches.
    2. Kyle Justice testified [E.M.J.] “…couldn’t climb up into that tree house… because the ladder rungs were too tall.” The ladder rungs were measured by Semke and found to be 25 inches from the base of the ladder . . . . Furthermore, Mary Flake, E.M.J’s grandmother, relayed to Semke during the inspection of the premises that [E.M.J.] was unable to climb onto the family’s 34-inch high trampoline . . . without assistance.
    3.  Considering the aforementioned statements made by Justice and Flake, in conjunction with the measured heights, it was inconsistent with [E.M.J.] using the pool support band as a stepping location to pull herself into the pool.
    4.  The design of the subject pool was not unique; rather, it was consistent with other polyvinyl chloride pools. The subject pool, and similar pools, require the support band near the bottom of the pool to resist the hydrostatic pressure at the base of the wall. In addition, the band also serves as a support for the vertical posts of the pool frame.
    5.  Based on the indicated analysis, the pool did not contain design or manufacturing deficiencies.

    Plaintiffs’ Position

    Plaintiffs argued that Semke’s testimony should be excluded because (1) he is not qualified to provide opinions regarding pool engineering; (2) Opinions 1, 2, and 3 are mere statements of fact or simple inference that do not require expert testimony; (3) Opinion 4 is not based on sufficient facts or data; and (4) Opinion 5 is a legal opinion. They separately argued that several opinions Semke testified to during his deposition were not disclosed in his expert report and should therefore be excluded. Plaintiffs challenged Semke’s qualifications to testify regarding pool design. Specifically, Plaintiffs argued that Semke lacked experience or training specifically related to biomechanical engineering, human factors analysis, and above-ground pool design.

    Analysis

    Semke is Qualified to Express Opinions Regarding the Pool’s Design

    Semke, an experienced engineer with degrees in mechanical engineering and engineering mechanics, is qualified to testify in the field of engineering. This includes testimony regarding the engineering implications of the pool’s design and the function of the pool’s nylon support strap. The Court held that Semke is not required to have further specialization in aquatic engineering to offer these opinions; it is sufficient that he has expertise in engineering and structural design.

    Despite not having specific experience in evaluating pool designs or in designing pools, Semke can offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.

    Opinions 1, 2, and 3

    Plaintiffs argued that Semke’s Opinions 1, 2, and 3 should be excluded because they are statements of fact and not expert opinions. Plaintiffs contended that Semke’s statements about the height of the pool wall, the nylon strap, and the distance between them are facts that the jury does not need expert testimony to understand.

    The Court held that the simple math and the previous testimony of Kyle Justice and Mary Flake are mere statements of fact that can be established without reliance on opinion evidence. To be clear, Semke will be permitted to testify regarding the measurements his firm took at the Flake residence and to explain the process he used to arrive at some of his conclusions, but the jury does not need his assistance to determine the difference between 51.5” and 14.5”.

    Similarly, no expertise is necessary for the jury to understand the lay testimony of Kyle Justice and Mary Flake. The jury itself can make its own inferences regarding whether E.M.J. was able to scale the pool wall based on testimony regarding its height and her known climbing abilities. Semke’s opinion testimony that the theory that E.M.J. accessed the pool by standing on the nylon support strap is inconsistent with her family’s testimony about her climbing abilities is simply an inference that the jury can arrive it through its own knowledge and experience.

    Opinion 4

    Plaintiffs averred that Opinion 4—specifically that the pool’s design was not unique—is not based on sufficient facts or data because Semke testified that he has not evaluated any other pool designs. Plaintiffs argued that Semke’s lack of experience with pool engineering prevents him from forming a conclusion about the pool’s design or how it compares to the design of other pools.

    The Court held that Semke will be permitted to testify regarding the purpose of the pool’s nylon support strap in its design. Semke testified at deposition that the pool’s nylon support strap is a “structural item” used to ensure the structural integrity of the pool’s walls, which are pushed outward by the weight of the water in the pool when the pool is filled. He will also be permitted to testify regarding the effect the pressure on the structure would have on the potential gap between the nylon support strap and the pool’s exterior wall, and therefore its utility as a foothold. The Court noted that Semke arrived at these conclusions using his engineering expertise.

    However, Semke will be precluded from testifying that the design of the pool was “not unique” and “was consistent with other polyvinyl chloride pools.” By his own admission, Semke was not asked to evaluate any other pool designs and he did not do so.

    Opinion 5

    Plaintiffs represented that Opinion 5 is merely a legal conclusion and therefore should be excluded. Though Plaintiffs recognized that the opinion does not specifically state that the pool design was not “defective,” they argued that the opinion that the pool “did not contain design or manufacturing deficiencies” is a thinly veiled attempt to provide a legal conclusion regarding the pool’s alleged design defect.

    The Court held that Semke is qualified to testify regarding the pool’s design, and his testimony here regarding the lack of deficiencies in the pool’s design does not present a legal conclusion. Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much.

    Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. Despite what Plaintiffs claim, this opinion does not require Semke to have evaluated the designs of other pools because this opinion pertains only to the pool at issue in this case, and Plaintiffs can certainly cross-examine him in this regard. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design. This is permissible expert testimony that will help the jury to determine whether the pool had a design defect, and the Court will deny Plaintiffs’ attempt to exclude this opinion.

    Opinions Not Disclosed in Semke’s Expert Report

    Plaintiffs also opposed the admission of several opinions Semke only expressed during his deposition testimony and were not included in his expert report. These include Semke’s opinions that: (1) E.M.J. was not adequately supervised at the time of her drowning; (2) E.M.J. could have used a bucket to enter the pool; (3) E.M.J. could have used the pool ladder to enter the pool; (4) E.M.J. could have climbed the pool’s support poles to enter the pool. Plaintiffs argued that because these opinions were only raised at deposition and were not shared in Semke’s expert report, as required by Federal Rule of Civil Procedure 26, they are inadmissible.

    The Court noted that Bestway USA has made no attempt to supplement Semke’s report to include these opinions as required by Fed. R. Civ. P. 26(a)(2)(E) and 26(e)(2), and therefore the opinions have not been disclosed as required by Rule 26(a)(2)(B)(i).

    Inasmuch as Semke’s report contains no information regarding these opinions, Plaintiffs and the Court have been unable to fully assess how Semke arrived at those opinions and on what data he bases such opinions. Semke’s report includes no analysis of other ways that E.M.J. could have entered the pool, and he provides no reasonable engineering basis for any opinions regarding alternative methods. Because these opinions were not properly disclosed and because Bestway USA has not shown by a preponderance of the evidence that Semke arrived at them through the reliable application of an engineering methodology to the facts and data in this case, the Court excluded these opinions to the extent that Bestway USA attempts to elicit them on direct examination of Semke.

    Held

    The Court granted in part and denied in part the Plaintiff’s motion to exclude Fred Semke.

    Key Takeaways:

    • Despite not having specific experience in evaluating pool designs or in designing pools, Semke was allowed to offer his engineering knowledge and experience to help the jury understand the engineering concepts underlying the pool’s design.
    • Semke does not propose to apply the law to the facts of this case in arriving at his conclusion. Plaintiffs themselves admit as much. Rather, his opinion that the pool contains no design deficiencies is an engineering opinion stemming from his analysis of the pool’s design. He is not attempting to tell the jury what legal conclusion to reach but is instead stating that there are no specific engineering issues inherent in the pool’s design.

    Please refer to the blog previously published about this case:

    Mechanical Engineering Expert Witness’ Testimony Could Mislead the Jury as to Defendant’s duties

    Case Details:

    Case Caption: Kyle Justice Et Al V. Safeway (Usa), Inc. Et Al
    Docket Number: 4:22cv50
    Court: United States District Court, Missouri Eastern
    Order Date: November 21, 2024
  • Intellectual Property Expert Witness’ Testimony Excluded Because it Would Not Assist the Jury on the Issue of Functionality

    Intellectual Property Expert Witness’ Testimony Excluded Because it Would Not Assist the Jury on the Issue of Functionality

    Plaintiff, Southwestern Manufacturing, LLC alleged that it owned the “MULTI WEDGE” trademark in connection with a stylized wedge tool primarily used in the industrial and automotive industries (the “MULTI WEDGE Product”). Plaintiff alleged that it used the mark in commerce since May 2003 and received federal registration of the mark (the “MULTI WEDGE Mark”) on January 17, 2017.

    Defendant Wilmar LLC (“Wilmar”) requested the right to sell a “private label” version of the MULTI WEDGE Product. In response, Plaintiff supplied Wilmar with information about and samples of the MULTI WEDGE Product. Plaintiff filed a trademark infringement suit after it learned that Defendants Wilmar and Advance Auto Parts (“Advance”) used the MULTI WEDGE Mark and MULTI WEDGE Dress by selling their own versions of the MULTI WEDGE Product.

    Defendants sought to preclude Plaintiff’s expert witness, Edwin A. Sisson, from testifying or presenting evidence at trial. 

    Intellectual Property Expert Witness

    Edwin A. Sisson is an intellectual property attorney and focuses his practice on trademarks, trade dress, patents, copyrights, and trade secrets. Prior to becoming an attorney, Sisson received an undergraduate degree in Chemical Engineering from the University of Nebraska in Chemical Engineering and worked in various roles for The Goodyear Tire and Rubber Company, Shell Chemical Company, and M&G Chemicals.

    Gain a comprehensive understanding of Edwin Sisson’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    Plaintiff offered Sisson as a rebuttal expert on the issue of whether the MULTI WEDGE Dress “is a legally non-functional tool design.”

    Defendants argued that Sisson’s opinion and testimony should be excluded because he (1) lacked the requisite qualifications; (2) offered impermissible legal conclusions; and (3) provided testimony that is highly prejudicial. 

    Here, the Sisson Report impermissibly offered legal conclusions regarding the functionality of the MULTI WEDGE Dress. In concluding that “[t]he Duckbill Design is not legally functional,” Sisson improperly opined on the law. For example, the Sisson Report provided that “a design cannot be registered if it is functional.” Sisson also critiqued Defendants’ expert opinion as being “not consistent with the law.”

    The Court held that the materials relied upon by Sisson were also telling. The Sisson Report primarily relied on legal decisions, the Ninth Circuit’s model jury instructions, various textbooks and materials published by the U.S. Patent and Trademark Office, and third-party websites.

    In the Court’s view, the bulk of the Sisson Report “instructed the jury on the law, or how to apply the law to the facts of the case.” The Court held that the Sisson Report read like a legal brief. Section E illustrated this point by setting forth the four Disc Golf factors courts used to determine functionality and using each factor as a sub-header.

    Held

    The Court denied Defendants’ Daubert motion to preclude Plaintiff’s expert witness, Edwin A. Sisson.

    Key Takeaways:

    Rule 702 requires that expert testimony “help the trier of fact to understand the evidence or to determine a fact in issue.” Consistent with Rule 704(a), the Ninth Circuit has repeatedly affirmed that an expert witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.

    Case Details:

    Case Caption: Southwestern Mfg. Llc V. Wilmar Llc Et Al
    Docket Number: 2:22cv8541
    Court: United States District Court, California Central
    Order Date: July 16, 2024