I. Introduction

This is a personal injury action brought by Plaintiff Juan Dominguez and his wife Juana Dominguez against machine manufacturer Excel Manufacturing Co. ("Excel") relating to injuries sustained by Plaintiff during his use of a "horizontal baler" machine in the course of his employment. Defendant has filed a motion to preclude the testimony of Plaintiffs' only proposed industry standards expert, Kenneth Smith, pursuant to Federal Rules of Evidence 401, 702, 703 and Daubert. Excel has also filed a motion for summary judgment or summary adjudication on the basis that, if Mr. Smith's expert testimony is excluded, Plaintiffs cannot establish any of their three claims for relief against Excel. For the following reasons, Excel's motion to exclude is GRANTED IN PART and DENIED IN PART, and the motion for summary judgment or summary adjudication is GRANTED IN PART and DENIED IN PART.

II. Background

On April 25, 2008, Mr. Dominguez was using a baler manufactured by Defendant in the course of his employment for Pleasant Paper Recycling Company. Compl. ¶ 14-15. The baler in question was purchased by Harry Luan, owner of Pleasant Paper Recycling, in 1999. Mr. Dominguez was conducting adjustments to a load of aluminum cans inside the baler in order to unblock the feed chamber. Id. ¶ 15. During the course of unblocking the feed chamber, Mr. Dominguez's leg was caught in the bale cycle and crushed. Id. ¶ 16. Mr. Dominguez spent over three months in the hospital recovering and incurred significant medical costs associated with his injuries. Id. at ¶ 18. Mr. Dominguez admittedly left the baler in "automatic" mode, as opposed to "manual" mode, when he climbed into the baler to clear the jam, though he knew it was dangerous to do so. Flynn Decl. In Support of Motion to Bifurcate, Ex. E (Dominguez Depo.) at 70, 85. Defendant contends that the baler in question satisfied all relevant guidelines and standards and was delivered to the employer with all warning labels legible and intact. Plaintiffs disagree. The baler is no longer in Pleasant Paper's possession, and the parties and their experts have been unable to inspect the machine in connection with this litigation, because Mr. Luan shipped the baler to China following the incident.

Plaintiffs filed their complaint against Excel for strict product liability, negligence, and loss of consortium on August 7, 2009. On May 28, 2010, Plaintiffs disclosed Kenneth Smith of Engineering Systems, Inc. as their sole industry standards expert, and produced an initial two-and-a-half page report by him containing four preliminary opinions. See Flynn Decl. Ex. C. On July 23, 2010, following the disclosure of Defendant's industry standards expert and accompanying report, Plaintiffs produced a "supplemental" report by Mr. Smith. See id. Ex. H. For the supplemental report, Mr. Smith reviewed additional documents and evidence but came to essentially the same four conclusions as those drawn in his preliminary report. Specifically, he concludes that: (1) Excel knew that injuries such as Plaintiff's were reasonably foreseeable and therefore it had an obligation to take reasonable actions to preclude such occurrences, including barriers, sensors, interlocks, light barriers, and such devices that would discourage or prevent personnel access, and would interrupt power to the machine should the barriers be passed; (2) based on the number of similar accidents in OSHA records, the occurrence was frequent enough and the consequences severe enough that Excel should have taken additional precautions; (3) design of the baler was in violation of Cal-OSHA § 4353 which requires barriers to prevent employee access to baler mechanisms and the material processing areas; and (4) the absence of stop devices present near the in-feed area of the machine was a defective shortfall of the machine, because such devices are within the state of the art to have had installed at the construction of the machine and such devices are required on other equipment operator entanglement is a reasonably expected occurrence. Id.

In the "Discussion" section of his report, as opposed to the "Conclusions" section, Mr. Smith also states that "Mr. Dominguez had to rely on warning, instructions and labels on the machine, which were not legible or were absent." Id. at 3.C. However, he provides no background or evidence for this statement. Additionally, in attempting to refute Defendant's expert's conclusion that signage on the machine was adequate, Mr. Smith states that "there is no basis to conclude whether the missing signage was due to improper maintenance, due to the use of inadequate signage materials by Excel, or a manufacturing defect where critical signage was not installed by Excel. In any case, Mr. Beyer's conclusion regarding the signage and on-product warnings seems unwarranted and inappropriate." Id. at 5.K. For this statement, Mr. Smith relies on the deposition of a OSHA inspector that a critical warning sign was not present as well as Pleasant Paper Company's subsequent order of additional signage following the accident. Mr. Smith's report is not signed under penalty of perjury, but it was reviewed by another consultant/engineer at Engineering Systems, Inc. Id.

Despite the fact that these are the only four "Conclusions" contained in his report, Plaintiff's opposition to Excel's motions broadly claims that Mr. Smith will "opine about the relevant safety standards, regulatory implementation of safety standard [sic], practical implementation of articulated safety standards, i.e., `guarding by location,' `work area,' `working level,' `point of operation guard,' `minimum loading height' labeling and substantial factor causation." Opp. at 11.

III. Excel's Objections to Plaintiffs' Evidence

Excel objects to the Declaration of Julio Ramos and the exhibits attached thereto on multiple bases. 1. Exhibit A: U.S. Patent No. 7,493,854 (Jam Detection and Safety Device for Jamming Machinery). Excel argues that this document is hearsay, lacks foundation, and is irrelevant because the patent was issued in 2009 and the baler in question was manufactured in 1999. This evidence is irrelevant to the issues currently before the Court and the Court has not considered it in connection with these motions. Therefore, this objection is MOOT.

2. Exhibit B: Pleasant Paper Invoices. Excel argues that these documents are hearsay, lack foundation, and are irrelevant because they do not relate to the subject baler. This evidence is irrelevant to the issues currently before the Court and the Court has not considered it in connection with these motions. Therefore, this objection is MOOT.

3. Exhibit C: Complaint Against Excel in Northern District of Illinois. Excel argues that this document is hearsay, lacks foundation, and is irrelevant because it involves a different baler than the one at issue here. While this evidence could be relevant to Excel's notice and a related failure to warn claim if the machine in question was sufficiently similar, the evidence is irrelevant to the issues currently before the Court and the Court has not considered it in connection with these motions. Therefore, this objection is MOOT.

4. Exhibit D: Cal-OSHA Photographs. This exhibit consists of one "thumbnail" sheet of 15 very small photographs, and three larger photographs of a baler. Excel argues that these documents are hearsay and lack foundation because there is no affidavit by a custodian of records or anyone qualified to testify that the documents are what Plaintiffs purport them to be. At oral argument, the Court questioned Excel about whether it has a legitimate basis to dispute that the photographs are what Plaintiffs say they are, and Excel argued that it has no basis for knowing where the photos came from because they were not produced for the deposition of Cal-OSHA's representative or in response to the subpoena to Cal-OSHA. Plaintiffs' counsel stated that he obtained the photographs from Cal-OSHA when he personally went there and examined papers. In light of the parties' disagreement over the authenticity of the photographs, during oral argument the Court Ordered a limited re-deposition of Cal-OSHA to authenticate the photos, to take place as soon as possible.

Plaintiff subsequently filed a letter with the Court requesting that it be excused from deposing a Cal-OSHA representative to authenticate the photographs based on documentation indicating that at least three of the photographs were previously provided to counsel for Excel by Cal-OSHA. See Dkt. #70. Excel has filed a responsive letter stating that it never saw the thumbnail sheet prior to Mr. Smith's deposition, but did receive the three photos of the baler directly from Cal-OSHA. However, Excel argues that the cover letter from Cal-OSHA attaching the photographs did not state who took them, where they were taken, or what they depict and they were not produced in response to a subpoena and not verified during a previous Cal-OSHA deposition. Therefore Excel stands by its objections to all of the photographs.

Based on the parties' arguments, both at oral argument and in their subsequent letters, the Court Orders Plaintiff to either conduct a further deposition of OSHA or obtain a written declaration from an appropriate custodian of records authenticating and laying a foundation for the photographs. When the photos are authenticated and their foundation established, the objection will be overruled. For purposes of this Order, however, and in an abundance of caution, the Court has not considered the photographs.

5. Exhibit E: Decal Order. Excel argues that this document is hearsay, lacks foundation, and is irrelevant because the complaint does not contain a cause of action for failure to warn. This evidence is irrelevant to the issues currently before the Court and the Court has not considered it in connection with these motions. Therefore, this objection is OVERRULED. Additionally, the Court notes that this evidence may be inadmissible as a subsequent remedial measure under Rule 407.

6. Exhibits F, G, H: Cal-OSHA Citations. Excel contends that these documents are hearsay and lack foundation because there is no affidavit by a custodian of records or anyone qualified to testify that the documents are what Plaintiffs purport them to be. Excel also argues that evidence of Cal-OSHA citations is inadmissible under California Labor Code § 6304.5, which provides in pertinent part:

Neither the issuance of, or failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action, except as between an employee and his or her own employer. Sections 452 and 669 of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute, ordinance, or regulation. The testimony of employees of the division shall not be admissible as expert opinion or with respect to the application of occupational safety and health standards. It is the intent of the Legislature that the amendments to this section enacted in the 1999-2000 Regular Session shall not abrogate the holding in Brock v. State of California (1978) 81 Cal.App.3d 752.

Generally, the Federal Rules of Evidence govern admissibility of documents in this Court, so this California statute is not dispositive. Still, the citations themselves issued pursuant to California law, so it would seem anomolous to allow citations issued pursuant to a California statute to be used as evidence in federal court when they would not be admissible in state court. Here, the motions at issue can be resolved without consideration of this evidence, so the Court has not considered it in connection with these motions. Therefore, this objection is MOOT.

The Court notes that the Ninth Circuit has held that OSHA directives can be considered for purposes of establishing the standard of care required by the manufacturer in the design and manufacture of its product, but did not speak to the admissibility of citations. See Robertson v. Burlington Northern R.R. Co., 32 F.3d 408, 410-11 (9th Cir. 1994) (OSHA standards may be admitted in a FELA case as some evidence of the applicable standard of care, but violation of OSHA is not negligence per se); see also Elsner v. Uveges, 34 Cal. 4th 915, 926 (2005) ("plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party"); Busby v. Tom's Sierra Co., 2002 WL 31888923, *5 (2002) (evidence of issuance of a Cal-OSHA citation is not admissible, but reference to violations of safety precautions is admissible);Mulvey v. Royal Truck Body, 2002 WL 31501309, *3 (2002) (Cal-OSHA safety orders admissible). Based on this caselaw, going forward in this case the underlying Cal-OSHA standards may be relevant to the standard of care to be applied for the state law claims.

7. Exhibit J: Plaintiff's Expert Report. Excel argues that this report is hearsay and there is no declaration or statement by the author attesting to its authenticity or truth. This is true for both Plaintiffs' and Excel's expert reports, and both parties are Ordered to provide reports in which the experts attest to the truth of the matters asserted therein. Excel's other challenges to Mr. Smith's report are addressed in connection with the Court's analysis of Excel's motion to exclude Mr. Smith's testimony.

8. Exhibits L and M: Excerpts of Deposition of Mr. Smith. These exhibits appear to be portions of the transcript of Mr. Smith's deposition, but no deposition cover sheet indicating the name of the deponent and the action or reporter certification were included in Plaintiff's original submission. The documents as they were originally filed were unauthenticated and could not be considered. See Orr v. Bank of America, NT SA, 285 F.3d 764, 774 (9th Cir. 2002) ("A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the reporter's certification that the deposition is a true record of the testimony of the deponent."). At oral argument, the Court allowed Plaintiffs until October 29, 2010 to cure this deficiency and Plaintiff has cured the deficiency. See Supp. Ramos Decl. Ex. A. The objection is therefore OVERRULED.

IV. Motion to Exclude Expert Testimony

Excel seeks to exclude all of Mr. Smith's testimony on grounds that: (1) he lacks knowledge, skill, expertise, training and education in the area of design of commercial horizontal recycling balers; (2) he lacks sufficient facts and data upon which to base his opinions; and (3) he fails to utilize accepted methodology to test his concepts for safer alternative designs.

A. Legal Standard

The trial court acts as a "gatekeeper" to the admission of expert scientific testimony under Rule 702. Daubert, 509 U.S. at 579-580. The court must conduct a preliminary assessment to "ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable." Id. at 589. This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevancy prong). Id. at 592-93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998). Excel's motion focuses on the reliability prong of this test.

Reliable testimony must be grounded in the methods and procedures of science and signify something beyond "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. InDaubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94. The Supreme Court emphasized the "flexible" nature of this inquiry. Id. at 594. As later confirmed in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999): "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 141-42. In addition to the Daubert factors, the Ninth Circuit has noted that a "very significant fact to be considered is whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes for testifying."Daubert II, 43 F.3d at 1317. If the evidence is not based upon independent research, the court must determine whether there exists any "other objective, verifiable evidence that the testimony is based on `scientifically valid principles." Id. at 1317-18. Generally, peer review meets this requirement, yet it may also be met by:

precisely [explaining] how [the experts] went about reaching their conclusions and point[ing] to some objective source-a learned treatise, the policy statement of a professional association, a published article in a reputable scientific journal or the like-to show that they have followed the scientific method, as it practiced by (at least) a recognized minority of scientists in their field.

Finally, even under Daubert, the Court must still weigh the balancing factors of Fed.R.Evid. 403. Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ." Daubert, 509 U.S. at 595.

B. Analysis

1. Mr. Smith's Background and Experience

In support of its motion to exclude, Excel first challenges Mr. Smith's background qualifications to testify as to any aspect of the baler in question. It argues that he is not a licensed engineer in California, does not have degrees or certifications in the area of "human factors," has no training or education regarding the design or operation of a commercial horizontal baler, has given no expert testimony nor been qualified as an expert on the topic of commercial horizontal balers, has never given any presentations or written articles concerning the subject matter of this case, and has never been qualified as an expert in California. See Motion at 11; see also Flynn Decl. Ex. D (Smith Depo.) at 5, 31, 33-34, 37, 51-53, 103.

Plaintiff does not dispute these contentions about Mr. Smith's background, but points out that Mr. Smith has "over 30 years of experience in designing mechanical systems, including refuse compaction systems similar to the type at issue in this case." Opp. at 1. Plaintiff argues that Mr. Smith is licensed as an engineer in Wisconsin and Illinois, has experience investigating industrial accidents and has testified in depositions and at trial involving such accidents. He received a Bachelor of Science in Naval Architecture from the Naval Academy in 1973 and a Master of Science in Engineering (Naval Architecture and Marine Engineering) from the University of Michigan in 1974. Flynn Decl. Ex. C. According to Plaintiffs, Mr. Smith "has also testified regarding State of California regulatory interplay with Naval Industrial Rules and Regulations. He has personally designed compaction type prototypes for naval application, including waste process studies to determine the processes and human factors involved in the use of such equipment." Opp. at 1; see also Ramos Decl. Ex. M (Smith Depo.) at 174-176 (discussing his participation in ensuring Navy's compliance with Cal-OSHA regulations); Flynn Ex. H (Smith report) (citing his experience as Deputy Director of the U.S. Navy's Shipboard Environmental Engineering directorate where "devices similar to balers were acquired and tested in the process of developing similar equipment designed specifically for shipboard applications" including a plastics waste compactor).

Based on the information provided by Plaintiff, it is somewhat unclear how relevant Mr. Smith's education and experience are to the topic at hand. From his resume, it appears that he has significant education and experience on various marine engineering topics, but it is not entirely clear to what extent this expertise translates to other machinery such as commercial balers and their associated safety standards. Further, since Mr. Smith is not a California engineer and has never served as an expert in California, his qualifications to opine about Cal-OSHA standards are not obvious, though he states that he has experience with these standards. On the other hand, Mr. Smith is an engineer licensed in two states and has some relevant education and experience relating to industrial equipment accidents including wood chippers, conveyors and process equipment that involved personal injury and entrapment. See Flynn Decl. Ex. H (Smith Report). Accordingly, the Court will not disqualify Mr. Smith from giving any opinion based solely on the fact that his education and experience is not focused specifically on commercial horizontal balers such as the one at issue in this case, though this may impact the weight ultimately given to his opinions.

2. Facts and Data Relied on By Mr. Smith

In Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1222 (9th Cir. 1995), the Ninth Circuit affirmed summary judgment in favor of a defendant where neither party's expert had access to an allegedly defective circuit breaker and therefore could not express a reliable opinion based on specific facts. The court found that "[a] jury should not be asked to evaluate the credibility of experts concerning the defectiveness of a circuit breaker and its container when it left the hands of [the manufacturer], which the experts have neither seen nor can see, and which was manufactured more than two decades ago." Id. Excel relies on this case to argue that all of Mr. Smith's testimony should similarly be rejected. However, Triton can be partially distinguished on the basis that it appears to have been primarily a manufacturing defect case, though design defect was also alleged. In a case such as Triton, the experts' access to the allegedly defectively manufactured circuit breaker would be essential to forming an opinion on the existence of a manufacturing defect, in that the issue turns on whether that particular breaker was defective at the time it left the manufacturer's possession.

In contrast, in a primarily defective design case such as this one, access to the particular item at issue is less important if the expert has knowledge about and/or access to those items and their safety features more generally. Mr. Smith has examined other documents and evidence in forming his conclusions, and his opinions will not be entirely disregarded as unreliable on the basis of his investigation, though this may also impact the weight ultimately given to his opinions.

3. Opinions Regarding Alternative Design Proposals

Q: Are you aware of any commercial recycling horizontal balers that have a pull cable in the compaction area?

A: I think I just said I hadn't seen them on a baler. I have seen them on other equipment with a similar hazard, but not a baler.

. . .

Q: Have you yourself ever designed any type of E-stop inside the compaction chamber of a horizontal commercial baler?

A: You keep adding enough adjectives and the answer will be no. An E-stop in the accessible part of something, again, I participated in a design review where one of the fallouts was you need something like that here, let's go back and put it in.

Q: Okay. But not inside a baler, the dimensions or that operated the same way that the baler involved in this —

A: I said you add enough adjectives and we will get to a "no." But the same principles and the same kind of machines, yes.

Therefore, Excel's effort to entirely downplay Mr. Smith's knowledge or experience relating to safety features for machinery similar to the baler in question should be rejected, though it is true that he does not have practical experience with the baler in question and this is significant for the reasons discussed below.

Excel relies on Kinser v. Gehl Co., 184 F.3d 1259, 1271 (10th Cir. 1999), abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440 (2000), for the position that testing of alternative design proposals is critical to the reliability of an expert's testimony on the subject, and since Mr. Smith has not personally tested his proposed design changes they are unreliable. InKinser, the Tenth Circuit concluded that two experts' testimony regarding proposed design solutions for a baler should have been excluded under a Daubert analysis, where both acknowledged that "there is a well-recognized methodology which engineers in the field of product design must follow before recommending a design for a particular piece of equipment," but admitted that their proposed changes were mere concepts and they had neither developed designs or tested their feasability. Id. at 1271-72. The Tenth Circuit noted that hands-on testing is not an "absolute prerequisite" to admissibility, and an expert might establish reliability through review of scientific data generated by others, but in the case before it no evidence of a review of scientific data of others had been provided. However, the court found the lower court's error in admitting the evidence to be harmless, because some of the expert's recommendations had been demonstrated feasible and were in use on similar baler machinery prior to production of the baler in question, and this evidence was relevant to the underlying state law design defect claim. Id.

Similarly, in Wagner v. Hesston Corp., 450 F.3d 756 (8th Cir. 2006), the Eighth Circuit affirmed a lower court's decision to exclude expert testimony regarding proposed safety features of a baler as unreliable where the proposals were subjected to minimal testing, there was slim evidence of peer review, there was no evidence showing general acceptance in the industry for the proposed safety guards on balers such as the one at issue, all of the proposals were developed in connection with litigation, and a baler with the proposed safety features was not shown to work as well as without. Id. at 758-59. The court rejected the plaintiff's argument that he need not establish that a safer alternative design existed to avoid summary judgment, noting that he chose to rely on a design defect theory that required this showing and therefore without the expert testimony summary judgment was appropriate.

Plaintiff does not address any of these arguments or caselaw, and has not explained what evidence or documents Mr. Smith relied on in forming his opinions about his alternative design proposals, whether he has personally tested similar concepts on similar machines, whether his theories have been subject to peer review, whether his theories are generally accepted in the relevant scientific community, and whether or not they were developed in connection with this litigation. His deposition indicates that he is knowledgeable about other technologies similar to balers, but not specifically balers. His report does not specify what scientific data he relied on in forming his conclusions on this topic, or what other technology uses similar safety features and how these other products are similar or different from the baler in question. See Flynn Decl. Ex. H. At oral argument, Plaintiff attempted to argue that Cal-OSHA standards are themselves "alternative design theories," but the Court rejects this argument because Plaintiff provided no authority for it. Plaintiff also argued that the baler cases discussed above should not be considered because they are out-of-circuit cases, but although they are not binding their reasoning is persuasive, especially in light of the absence of any contrary Ninth Circuit authority. Without more evidence, and under the reasoning of Kinser and Wagner, Mr. Smith's alternative design proposals are not sufficiently reliable to be admitted as part of his expert testimony. Therefore, Excel's motion to exclude his opinions relating to alternative design proposals is GRANTED.

4. Opinion Regarding Compliance With Cal-OSHA Standard

5. Other Opinions Not Contained In Mr. Smith's Report

With respect to a "failure to warn" theory, at oral argument Plaintiff argued that Mr. Smith's opinion on this topic should be allowed because photographs of the baler taken by Cal-OSHA indicate that the warnings on the machine were illegible, and Mr. Smith stated in his report that the labels were not legible or were absent. Mr. Smith did not mention a failure to warn in the "Conclusions" section of his report, but his report briefly references a failure to warn in the "Discussion" section by stating that: "Mr. Dominguez had to rely on warning, instructions and labels on the machine, which were not legible or were absent." Report at 3.C. His report provides no background or evidence for this statement, and it is not contained in the "Conclusions" section of his report. Also in his report, in attempting to refute Defendant's expert's conclusion that signage on the machine was adequate, Mr. Smith states that "there is no basis to conclude whether the missing signage was due to improper maintenance, due to the use of inadequate signage materials by Excel, or a manufacturing defect where critical signage was not installed by Excel. In any case, Mr. Beyer's conclusion regarding the signage and on-product warnings seems unwarranted and inappropriate." Report at 5.K. For this statement Mr. Smith apparently relied on the deposition of a Cal-OSHA inspector that a critical warning sign was not present, Pleasant Paper Company's subsequent order of additional signage following the accident, and perhaps some photographs of the baler in question.

Excel counters that Mr. Smith's failure to warn theory should be rejected because Plaintiff's complaint does not contain a failure to warn claim and the there is no basis for Mr. Smith's failure to warn opinion because, even if the Court were to consider the photographs of the baler apparently taken by Cal-OSHA, they were taken when the machine was nine years old and it is not the manufacturer's duty to monitor all of its machines to ensure that labels are being properly maintained by the user. Given that Defendant's expert report was prepared before Mr. Smith' supplemental report and addressed the adequacy of the signage, Mr. Smith's opinions on failure to warn should not be excluded as not adequately or timely disclosed. Excel obviously had notice that this might be a theory in the case and had its expert opine on this topic. However, Excel's point that there is no evidence of what signage was on the baler at the time it was sold, because even if the Court were to consider the only direct evidence purportedly relating to the condition of the baler (the Cal-OSHA photographs) it merely shows the machine as it looked nine years after it left Excel's control, is persuasive.

Further, neither side has really focused on a failure to warn theory, likely because neither of their experts has actually seen the baler in question to determine the adequacy of the signage so their opinions are not based on scientific examination. Instead, Excel's expert's opinion that the signage was adequate is based on examination of an "exemplar" baler, but there is no indication of whether that baler is of the same model, built at the same time for the same region, and other pertinent factors. Mr. Smith relies on the testimony of a third party and the photographs apparently taken by OSHA.

In the failure to warn context, these facts can be analogized to Triton Energy Corp. v. Square D Co., 68 F.3d 1216 (9th Cir. 1995), a case discussed above. In Triton, neither expert had access to an allegedly defective circuit breaker, the only evidence they had to form their opinions was a photograph of the breaker taken by the fire department and testing done on a different breaker in the same panel, and there was no evidence as to whether the breaker had been damaged in the more than twenty year period since it left the manufacturer's plant. Id. at 1219-20. Thus, the Ninth Circuit affirmed summary judgment for the defendant, finding that Plaintiff could not meet its burden of proof that the circuit breaker was defective because its expert opinion, and the inferences to be drawn from it, were "not of sufficient quantum or quality to create genuine issues of material fact." Similarly here, without the baler at issue or any evidence of its condition at the time it left Excel's control, there is no basis on which either expert can formulate a reliable opinion about Excel's failure to warn. Indeed, Mr. Smith acknowledged as much in his report when he stated that "there is no basis to conclude whether the missing signage was due to improper maintenance, due to the use of inadequate signage materials by Excel, or a manufacturing defect where critical signage was not installed by Excel." Accordingly, Plaintiff has not adequately established the reliability of Mr. Smith's opinions relating to Excel's alleged failure to warn and Excel's motion is GRANTED as to this opinion.

V. Excel's Motion for Summary Judgment or Summary Adjudication

In connection with its motion to exclude the testimony of Plaintiff's proposed industry standards expert, Excel moves for summary judgment or summary adjudication of Plaintiffs' claims on the basis that Plaintiff cannot establish a design defect without Mr. Smith's testimony. Excel also moves for summary adjudication of Plaintiff's punitive damages claim.

A. Legal Standard

A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id.

If the moving party meets its initial burden, the opposing party "may not rely merely on allegations or denials in its own pleading;" rather, it must set forth "specific facts showing a genuine issue for trial." See Fed.R.Civ.P. 56(e)(2); Anderson, 477 U.S. at 250. "Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment." Soremekun v. Thrifty Payless, Inc. 509 F.3d 978, 984 (9th Cir. 2007); see also Nelson v. Pima Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment"). If the nonmoving party fails to show that there is a genuine issue for trial, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.

B. Analysis

1. Strict Product Liability

[A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product's design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.

If the product's design embodies "excessive preventable danger," or, in other words, the "risk of danger inherent in the challenged design outweighs the benefits," the product may be defective under the risk-benefit test. Hansen v. Sunnyside Prods., Inc., 55 Cal.App.4th 1497, 1512 (1997). "`Excessive' preventable danger logically includes consideration of [] warnings to determine the likelihood that harm will occur." Id. The Barker Court stated:

Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product's design under the "risk-benefit" standard — e.g., the feasibility and cost of alternative designs — are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.

Without directly addressing the risk-benefit test or any evidence relating to either party's position, Excel again relies on Triton Energy Corp., 68 F.3d at 1221. Excel points out that inTriton the court refused to consider expert testimony about an allegedly defective circuit breaker because neither side's expert had access to the breaker in question and therefore could not express a reliable opinion based on scientific facts. Without this testimony, the court found that the plaintiff would not be able to meet its initial burden at trial and granted summary judgment. Id.

Here, for purposes of this motion and viewing the facts in the light most favorable to Plaintiffs, the Court will assume that Plaintiffs have raised a triable issue of fact as to a prima facie showing that Mr. Dominguez's injuries were proximately caused by the baler's design, as opposed to his own negligence or the fault of his employer. Thus, the burden shifts to Excel show that, on balance, the benefits of its challenged design outweigh the risk of danger inherent in such design. Excel has attached a report of its expert Roman Beyer, who opines that the product was not defectively designed. See Flynn Decl. Ex. E. Plaintiff has not challenged this evidence. In contrast, as discussed above, Plaintiffs have not adequately established any basis for allowing Mr. Smith to testify regarding alternative design or failure to warn that might raise a triable issue of fact as to strict product liability. Summary adjudication of the design defect claim is GRANTED.

2. Negligence

The duty of a manufacturer with respect to the design of products placed on the market is defined in the Restatement Second of Torts, section 398: `A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.' Thus, the manufacturer must use reasonable care "to so design his product as to make it not accident-proof, but safe for the use for which it was (sic) intended." (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 258, 22 Cal.Rptr. 737, 744, quoting from 76 A.L.R.2d 91, 94.) What is `reasonable care,' of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.

Excel argues that Plaintiffs' negligence claim fails because Mr. Smith's testimony regarding alternative designs for safety features should be excluded. However, Plaintiffs' opposition correctly points out that Excel's motion does not address the state of the art at the time the baler was manufactured, or any other testimony or documentary evidence, including Mr. Smith's testimony about Excel's alleged non-compliance with Cal-OSHA standards. Plaintiffs argue that OSHA directives can be considered for purposes of establishing the standard of care required by Excel in the design and manufacture of the baler. See Robertson v. Burlington Northern R.R. Co., 32 F.3d 408, 410-11 (9th Cir. 1994) (OSHA standards may be admitted in a FELA case as some evidence of the applicable standard of care, but violation of OSHA is not negligence per se); Elsner v. Uveges, 34 Cal. 4th 915, 926 (2005) ("plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party"); Busby v. Tom's Sierra Co., 2002 WL 31888923, *5 (2002) (evidence of issuance of a Cal-OSHA citation is not admissible, but reference to violations of safety precautions is admissible); Mulvey v. Royal Truck Body, 2002 WL 31501309, *3 (2002) (no error to admit Cal-OSHA safety orders, as opposed to citations).

Excel's reply does not refute these citations, or otherwise explain why Mr. Smith's testimony regarding Excel's alleged failure to comply with applicable regulations is not some evidence that, coupled with other evidence, could show that it fell below the standard of care and that this cause Plaintiff's injuries. Therefore summary adjudication of the negligence claim is DENIED.

3. Loss of Consortium

4. Punitive Damages

IT IS SO ORDERED.