Opinion
Civil Action No. 99-2351-CM
April 4, 2001
MEMORANDUM AND ORDER
The minor plaintiff, Nora McHenry, was injured when she came into contact with a treadmill manufactured by defendant, ICON Health Fitness, Inc., and sold by Sears, Roebuck and Co. to the minor plaintiff's grandfather. The minor was injured while her mother was trying out her grandfather's treadmill. The complaint alleges that the minor plaintiff's fingers were severely injured when they were drawn by the conveyor portion of the treadmill into the gap between the moving conveyor and the stationary body of the machine. Plaintiffs filed this diversity action alleging design defect and warning defect pursuant to the Kansas Product Liability Act, Kan. Stat. Ann. § 60-3301 et seq. (1994).
This matter is now before the court on defendant's motions in limine (Docs. 63, 65) and motion to supplement evidence offered at the Daubert hearing (Doc. 97). On August 14, 2000 defendant filed a motion in limine (Doc. 63). Highly summarized, the motion sought to preclude (1) evidence regarding other incidents not substantially similar to those at issue, (2) evidence regarding incidents occurring after the sale of the treadmill at issue in this case, and (3) evidence not previously identified to the defendant. Concurrently, the defendant filed a second motion in limine (Doc. 65) seeking to exclude opinion testimony from plaintiff's experts pursuant to Fed.R.Evid. 702 and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Both motions in limine were briefed and the motion seeking to exclude expert testimony was set for a hearing.
On March 27, 2001, the court held a Daubert hearing regarding the exclusion of plaintiffs' experts' testimony. At the hearing, the defendant presented photographic evidence which the court considered, and the court took the motion under advisement. Subsequently, defendant made a motion to supplement the record with the evidence presented at the Daubert hearing (Doc. 97). The court has considered the parties' briefs, the oral arguments and all evidence presented. The motions are now ready for ruling.
Motion in Limine (Doc. 63)
In its motion in limine, defendant seeks to preclude introduction of three categories of evidence relating to the treadmill and the claims of injury involved in this case. The court will address each category separately.
Other prior claims, accidents and lawsuits involving treadmills manufactured by ICON or other manufacturers that are not substantially similar to the claims and treadmill at issue in this case
Defendant argues that such evidence is not admissible unless substantially similar to the claims, treadmill, or incidents in this case. In their response to defendant's motion, plaintiffs argue that evidence of prior claims, accidents and lawsuits involving ICON treadmills are admissible to show notice of the defects alleged. Each parties' argument correctly states the law. Plaintiffs, however, argue that it is not appropriate to decide the issue now because defendant has not shown specific facts to establish that any particular evidence is irrelevant. The court agrees.
The defendants do not assert what evidence is at issue in their motion. No date, facts or circumstances are presented about the evidence sought to be excluded. No comparison is made between potential evidence and the facts and circumstances of this case from which the court could determine whether the potential evidence is "substantially similar" or whether the evidence might be admissible for some other reason. Defendant's motion is premature as to this evidence. As the facts develop at trial the defendant may object to evidence presented or sought to be presented and the court will make its ruling at that time.
Other claims, accidents, lawsuits and other notices of injury occurring after the sale of the treadmill involved in this case in December 1996
Plaintiffs argue that the Tenth Circuit, in Oja v. Howmedica, 111 F.3d 782 (10th Cir. 1997), recognized a post-sale duty to warn, and therefore, such evidence is admissible to show notice of defect and failure to warn subsequent to the sale of the treadmill at issue. Defendant, citing Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 759, 861 P.2d 1299, 1313 (1993), claims that Kansas law requires a post-sale duty to warn of defects unforeseeable at the point of sale, only if the defect presents a life-threatening hazard.
Defendant correctly states the controlling law. The case cited by plaintiffs states the law of Colorado with regard to the duty to warn of a defect and cannot be applied in this diversity suit under Kansas law. Furthermore, Kansas law is clear that a post-sale duty to warn arises only where the defect presents a life-threatening hazard. Id. Therefore, plaintiffs may not present evidence regarding other claims, accidents, lawsuits and other notices of injury occurring after the sale of the treadmill involved in this case to show notice of a defect in the treadmill at issue. However, the court notes that such evidence may be admissible under the Kansas Product Liability Act to impeach a witness who denies the feasibility of an alternative design. Id. (discussing Kan. Stat. Ann. § 60-3307(b)).
Any testimony or inquiry regarding treadmills not previously identified by plaintiffs' expert(s) or photographs of treadmills not previously produced by plaintiffs and for which there is no previous foundation from plaintiffs' expert(s).
Once again, defendant makes a general statement of law that evidence that is irrelevant, lacking in foundation, unduly prejudicial or presents an unfair surprise should not be admitted. The court agrees with plaintiffs that defendant's motion is premature. Defendant's motion correctly states the general rule as to admissible evidence. However, defendant does not identify any potential evidence or any existing facts and circumstances under which the court should exclude such evidence at this time.
If at trial plaintiffs seek to produce evidence which was not timely revealed to defendant, the defendant may object-stating its reasons. At that time, pursuant to the Federal Rules of Evidence, the court will decide the admissibility of the evidence to which defendant objects. In particular, the court will consider Fed.R.Evid. 403, Fed.R.Civ.P. 26 and the orders of the court entered in this case-especially the pretrial order. The court will not allow a "trial by ambush." The court will carefully scrutinize any evidence which is disclosed close to the trial date to determine whether such evidence should be excluded because of unfair surprise or unfair prejudice to the defendant.
Motions Regarding Exclusion of Expert Testimony (Docs. 65 97)
The court finds that the opinion testimony of plaintiffs' experts shall be admitted at the trial of this case. The proffered testimony will assist the trier of fact, the witnesses are qualified as experts by knowledge, skill, experience, training or education, the opinions are based upon sufficient facts or data, and are the product of reliable principles and methods, and the principles and methods are reliably applied by the witnesses to the facts of the case.
Standard for Admission of Expert Opinion Testimony
Federal Rule of Evidence 702 allows expert testimony, by opinion or otherwise, if the witness is qualified as an expert and his specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The court has a "gatekeeping" obligation to determine the admissibility of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert, 509 U.S. 579). Expert testimony is admissible only if it is both relevant and reliable. Id.
Rule 702 was amended in December 2000 in response to Daubert and its progeny, including Kumho Tire. Fed.R.Evid. 702, advisory committee notes (Dec. 1, 2000). The Rule now admits expert opinion testimony "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702 (Dec. 1, 2000). The focus is on principles and methodology, not conclusions generated. Id. However, when an expert reaches conclusions "that other experts in the field would not reach, the trial court may fairly suspect that the principles and methods have not been faithfully applied." Id. (advisory committee notes) (emphasis added) (citing Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996)). Therefore, the court must look at principles and methods and how they have been applied to the facts of the case. Id.
Reliability analysis applies to all aspects of the expert's testimony, including the facts underlying the opinion, the methodology, and the link between the facts and the conclusion drawn. See Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999). Consequently, the court must make a practical, flexible analysis of the reliability of the testimony considering relevant factors in the circumstances of the case. See, e.g., Kumho Tire, 526 U.S. at 149-52; Heller, 167 F.3d at 155. The court has discretion how to approach the task of making reliability findings. Kumho Tire, 526 U.S. at 152; Goebel v. Denver and Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000); United States v. Velarde, 214 F.3d 1204, 1208-09 (10th Cir. 2000). It is essential, however, to make a determination on the record sufficient to allow a reviewing court to determine whether the trial court properly applied the relevant law. Goebel, 215 F.3d at 1087-88; Velarde, 214 F.3d at 1209.
In making its reliability determination, the court may use the Daubert factors: (1) has the theory or technique been tested (or can it be); (2) has it been subject to peer review and publication; (3) is there a known or potential high rate of error and are there standards controlling the technique's operation, and; (4) is the theory or technique generally accepted within the relevant community. Kumho Tire, 526 U.S. at 149. However, those factors are not exclusive, and may not apply in many cases. In determining whether the expert's specialized knowledge will assist the jurors, the court will "`scrutinize' whether the `principles and methods' employed by an expert `have been properly applied to the facts of the case.'" Id. at 157 (quoting Advisory Committee's Note on Proposed Fed. Rule Evid. 702, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure and Evidence: Request for Comment 126 (1998)). "[N]othing . . . requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Id. (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
An expert may offer an opinion even if it "embraces an ultimate issue to be determined by the trier of fact." Fed.R.Evid. 704. Even after Daubert, rejection of expert testimony has been the exception rather than the rule. Fed.R.Evid. 702 (Dec. 1, 2000) (advisory committee notes) "Vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (quoting Daubert, 509 U.S. at 595). Nonetheless, an expert may not simply tell the jury what result it should reach. United States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993). Often, such expert testimony is excluded on the grounds of stating a legal conclusion, usurping the function of the jury in deciding facts, or interfering with the judge in instructing on the law. All of these rationale define evidence which is not helpful to the jury. Id. at 188-89. Such expert testimony does not assist the jury to understand the evidence or determine a fact in issue. Fed.R.Evid. 702.
Motion to Supplement Daubert Hearing Evidence (Doc. 97)
At the Daubert hearing, the defendant marked a number of photographs as "Defendant's Exhibit 1" and provided the exhibit to the court for consideration during the hearing. Defendant did not move for admission of the exhibit, and at the completion of the hearing the court returned the exhibit to defendant. Defendant now asks that the exhibit be admitted into evidence for purposes of the Daubert hearing held on March 27, 2001.
Plaintiff has not had an opportunity to respond to defendant's motion. However, at the hearing the court considered the exhibit without objection by plaintiff and the court has reviewed the exhibit in its consideration of the issue of admissibility of expert opinion. Therefore, in the interests of justice defendant's motion is granted.
Kansas Substantive Law of Product Liability
Federal law governs the admissibility of the expert opinion testimony at issue, but that issue is guided in part by substantive state law. Kinser v. Gehl Co., 184 F.3d 1259, 1272 (10th Cir. 1999) (abrogated on other grounds by Weisgram v. Marley Co., 528 U.S. 440, 452 n. 8, 453-56 (2000)). Therefore, it is appropriate to consider certain principles of Kansas law of product liability. To establish a prima facie product liability case under Kansas law, the plaintiff must produce evidence to establish three elements: "(1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left the defendant's control." Jenkins v. Amchem Prods., Inc., 256 Kan. 602, 630, 886 P.2d 869, 886 (1994). There are three possible types of defects which may be alleged in products liability cases: "design defects," manufacturing defects," and "warning defects." Id. Here plaintiffs have alleged design defect and warning defect.
[I]n Kansas, whether a design defect in a product exists is determined using the consumer expectations test. A plaintiff must show that the product is both in a defective condition and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics. Evidence of a reasonable alternative design may be introduced but is not required. The fact that a hazard is open and obvious or has been warned against are factors to be considered in analyzing whether a product is defective or unreasonably dangerous. The ultimate determination remains whether the product is defective and dangerous beyond a reasonable consumer's expectations.
Delaney v. Deere and Co., 268 Kan. 769, 792-93, 999 P.2d 930, 946 (2000) (internal quotation marks omitted, emphasis added).
Any requirement that plaintiff produce a reasonable alternative design is precluded, in part, by the fact that "the cost of processing a case will make it economically impossible to produce a reasonable alternative design in a small products liability case." Id. at 791-92, 999 P.2d at 946 (quoting Vandall, State Judges Should Reject the Reasonable Alternative Design Standard of the Restatement (Third), Products Liability, Section 2(b), 8 Kan. J.L. Pub. Pol'y 62, 63 (1998)).
If a plaintiff proposes an alternative design or an alternative warning, however, he may not merely rest on the expert's proposal. Plaintiff must show that the alternative design or warning is feasible, adequate and effective. Meyerhoff v. Michelin Tire Corp., 852 F. Supp. 933, 947 (D.Kan. 1994) (citing Garst v. Gen. Motors Corp., 207 Kan. 2, 20, 484 P.2d 47, 61 (1971)).
Discussion
Defendant does not argue that plaintiffs' experts are not qualified by knowledge, skill, experience, training, or education, or that the testimony of plaintiffs' experts will not assist the trier of fact-other than to the extent that the testimony is irrelevant or that the methods and procedures used are unreliable. Furthermore, defendant does not assert that plaintiff's experts do not have sufficient facts or data upon which to base their opinions except to the extent that it argues that the experts did not make surveys, propose reasonably safe alternative designs or warnings and did not use reliable procedures or methods to arrive at their opinions.
The court notes that neither expert was produced for testimony at the Daubert hearing. Nonetheless, the court has read the deposition testimony of each expert in deciding the issues presented. After reviewing the record, reading the materials presented, and hearing the parties' arguments, the court finds that the witnesses are qualified as experts, and have sufficient facts and data upon which to base their opinions. Moreover, the court finds (1) that Dr. Blundell's testimony will assist the trier of fact to understand the issues at trial relating to guarding of machines and in-running nip points, and (2) Dr. Purswell's testimony will assist the trier of fact to understand matters relating to the efficacy of warnings on equipment.
Defendant's most vigorous arguments relate to its claim that the plaintiffs' experts opinions are not the product of reliable principles and methods. Therefore, the task remains for the court to determine whether the experts' opinions are the product of reliable principles and methods and whether the witnesses have applied the principles and methods reliably to the facts of the case.
Dr. Blundell
Defendant claims that Dr. Blundell's opinion is not the product of reliable principles and methods because his opinion does not satisfy the four Daubert factors and because he did not prototype and test his proposed alternative design for a guard with a gap no more than one thirty-second of an inch with a tolerance of 0.005 of an inch at the in-running nip point. Therefore, defendant asserts Dr. Blundell did not follow the accepted method for designing such a piece of equipment and cannot establish that his proposal is feasible. Plaintiffs respond that application of the Daubert factors are not always required and Kansas law does not require the plaintiffs to produce an alternative design proposal.
Although plaintiffs did not cite to any authority for their statement of Kansas law, plaintiffs' assertion is correct-plaintiffs are not required to produce evidence of a reasonable alternative design. Delaney, 268 Kan. at 793, 999 P.2d at 946. Because plaintiffs are not required to produce such evidence, they are not required to produce surveys, tests and evaluations supporting such evidence. Dr. Blundell admits he has not made such evaluations. To the extent that Dr. Blundell may be arguing that defendant could have designed the treadmill at issue with a gap of one thirty-second of an inch between the belt and the end cap, such an argument is an alternative design proposal. Plaintiffs will not be allowed to present such an argument in their case-in-chief because they have not used principles and methods of the engineering field sufficient to establish that such an alternative design proposal is feasible, adequate, and effective.
However, the court understands Dr. Blundell's opinion to be that the treadmill at issue is defective because it contains an in-running nip-point that is unguarded-in particular it lacks a barrier guard. Such opinion, if admitted, constitutes evidence of a design defect, an element the plaintiffs must prove under Kansas law. Defendant's argument, however, addresses the methods required for design, testing and evaluation of an alternative design, not the methods and principles used by Dr. Blundell. Because plaintiffs do not propose an alternative design, the principles and methods asserted by defendants are not those required to be used by plaintiffs' expert. Dr. Blundell used the method of reviewing the facts of the incident at issue as supplied by the plaintiffs, examining the treadmill at issue and evaluating all of the circumstances presented in light of his knowledge, education, skill, and experience and engineering principles regarding in-running nip-points in flexible conveyor systems and guarding of machinery. From this procedure, Dr. Blundell formed his opinion. The court finds that the principles and methods used by Dr. Blundell meet the requirements of Daubert.
The principles and methods used have been tested. The engineering principles upon which Dr. Blundell relied have been tested. Many of the principles have been placed in engineering standards after rigorous testing. The fact that there is an industrial standard for conveyor systems but no standard for treadmills does not preclude a legitimate extrapolation based upon the expert's analysis of the environment in which the treadmill is to be used and upon the expert's personal knowledge and experience with the principles involved. The method comprised of evaluation of relevant facts and circumstances and application of relevant principles to those facts based upon the expert's knowledge, education, skill, and experience has been tested numerous times in many fields of endeavor, including engineering and law.
The theory and techniques used by Dr. Blundell have been subjected to peer review and publication. Dr. Blundell himself published a book on machine guarding in 1983. Industrial standards have been published for conveyor systems. Although the plaintiffs' experts' depositions do not reveal what the potential rate of error is when using the methodology used, the court finds that factor is not controlling in this situation because the methodology of applying engineering principles to the facts and circumstances of a particular case based upon the knowledge, education, skill and experience of an engineering expert has been widely used in product liability suits for many years. Courts are aware there is potential for error based upon inaccurate application of the principles by the expert. Potential error is properly revealed by rigorous cross-examination of the expert, presentation of contrary evidence and argument to the fact-finder.
Finally, the fourth Daubert factor, whether the technique has been generally accepted in the proper scientific community, weighs in favor of admissibility of the experts' opinions. This court applies the Federal Rules of Evidence, but notes that in this diversity case applying the substantive law of Kansas, the "general acceptance" test is given greater weight in the court's analysis. In Daubert the Supreme Court held that the Federal Rules of Evidence displaced the "general acceptance" test for the admissibility of scientific evidence first expressed in Frye v. United States, 293 F. 1013, 1014 (1923). Daubert, 509 U.S. at 589, 597. However, the Court concluded that "general acceptance" still has a place in the court's gatekeeping function as the fourth suggested factor in reliability analysis. Id. at 594. In the Kansas courts, the Frye "general acceptance" test is still the standard for admissibility of scientific testimony. State v. Haddock, 257 Kan. 964, 984, 897 P.2d 152, 166 (1995). Because (1) the methodology of applying engineering principles to the facts and circumstances of a particular case based upon the knowledge, education, skill and experience of an engineering expert has been widely used in Kansas product liability suits for many years, (2) because Kansas law does not require the plaintiff to present evidence of an alternative design, and (3) because the engineering community frequently utilizes such a technique, the court finds that Dr. Blundell's principles and methods meet the fourth Daubert factor.
In determining whether Dr. Blundell has applied the principles and methods reliably to the facts of this case, the court is guided in large part by its analysis above. The court is mindful that mere speculation by an expert is not admissible. Although the expert did not testify at the Daubert hearing, from reviewing the deposition testimony, the expert's report and the other materials presented by the parties, the court finds that the witness is an expert in evaluating conveyor machinery and the principles of guarding to conveyors and machines in general. The evidence indicates that Dr. Blundell considered the facts relevant to the issues presented and reliably applied the principles and methods to those facts. Whether there are relevant facts which were not available or considered by the expert goes to the weight to be accorded the testimony and may be disclosed by cross-examination and argued to the jury.
Dr. Purswell
Defendant argues that Dr. Purswell's testimony should not be admitted because the expert has not proposed alternative warning language, provided any alternative language used by other treadmill manufacturers, or presented evidence that such a warning is feasible, adequate or effective, although Kansas law requires such a showing. Even if the opinion evidence of a warning defect were not precluded by application of Kansas substantive law, in defendant's view, the evidence is irrelevant because the owners of the treadmill read the warnings at issue and plaintiffs were aware of the potential hazard without warnings. Finally, defendant argues that the testimony should be excluded as misleading and confusing to the jury because the opinions are so unsubstantiated that the jury may misunderstand the value and the basis for the testimony. Plaintiffs repeat their argument that the Daubert factors need not be applied in every case, and, moreover, an alternate proposed warning is not required because in this case plaintiffs assert that any warning would be defective because the hazard cannot be adequately warned against and guarding is the only way to protect against the hazard involved.
As a preliminary matter, the court notes that the Kansas Supreme Court's opinion in Delaney regarding design defects and the requirement to produce evidence of an alternative design can be readily applied to warning defects and the requirement to produce evidence of an alternative warning. Furthermore, application of the principles asserted by defendant would preclude a plaintiff from ever arguing, as plaintiffs do here, that any warning would be a defective warning. Therefore, the court finds the analysis in Delaney applicable to the circumstances of this case and further finds that the plaintiff is not required to present evidence of an alternative warning in this case. However, because plaintiffs have not suggested any alternative warning, and have not done any testing and evaluation with regard to such a warning, the court holds that plaintiffs will not be permitted to present evidence in their case-in-chief at trial of potential alternative warnings.
The court is unpersuaded by defendant's argument that warning testimony is irrelevant because the owners of the treadmill had read the warnings and the plaintiffs were already aware of the hazard presented. Whether the plaintiffs were aware of the specific hazard presented and the extent of plaintiffs' knowledge are questions for the trier of fact in the first instance. Furthermore, the fact that the owner had read the warning is irrelevant to the determination whether the plaintiffs had read the warning or whether the manufacturer owed a duty to the plaintiffs independent of its duty to the owner of the treadmill. The court finds that Dr. Purswell's opinion testimony will be helpful to the trier of fact in deciding these issues.
Moreover, the court disagrees with defendant's argument that the testimony is so unsubstantiated as to mislead and confuse the jury. Defendant appears to argue that the principles are so nebulous and unquantifiable that without alternative warning language and hard survey data, the jury will be asked to decide based only upon the ipse dixit of the expert. The court notes that Dr. Purswell is an expert in the field of ergonomics and that many, perhaps most, laymen find the subject to be nebulous and confusing. Perhaps that demonstrates the necessity of expert testimony.
Dr. Purswell based his opinions upon standards in the field, articles he and others in the field have published, material produced by the Consumer Products Safety Commission, and upon his knowledge, education, skill and experience as an ergonomist and engineer. Proper examination and cross-examination supported by other evidence relating to the area at issue should prevent or clarify any confusion about the issues related to this field and should also show the jury the appropriate weight and credit to be given this expert's opinion. Pursuant to Fed.R.Evid. 403, the court does not find that the probative value of Dr. Purswell's testimony is substantially outweighed by the danger that the testimony will confuse or mislead the jury.
The court finds that the opinion testimony of Dr. Purswell is based upon the same methods as those used by Dr. Blundell and upon principles of ergonomics and engineering similar to those discussed above. Much of the court's analysis with regard to admissibility of Dr. Blundell's testimony applies with equal force to Dr. Purswell's opinion testimony and will not be repeated here. Furthermore, the court finds, based upon the relevant Daubert factors, that the principles and methods used by Dr. Purswell are reliable for the same reasons discussed in the court's analysis with regard to the principles and methods used by Dr. Blundell. Moreover, Dr. Purswell's testimony is based upon principles of engineering and ergonomics such as the Consumer Products Safety Commission material, national standards, and principles learned in the expert's education, experience and application of his skill. Therefore, Dr. Purswell shall be allowed to testify as discussed herein as to his opinions regarding the efficacy of warnings in general, and with regard to the hazards presented by this treadmill in particular.
In his deposition, Dr. Purswell testified that users frequently disregard warnings placed upon machinery in circumstances similar to those present here. He testified that users frequently do not read warnings or instruction manuals before they use a piece of equipment for the first time to try the equipment out, as alleged in this case. Further, he testified that the user of the treadmill in this case was not aware that her child was on the floor behind her while she operated the treadmill, and that children were not usually present when the treadmill owner had operated the treadmill previously. Consequently, he testified to his opinion that no warning is adequate to communicate the precise hazards present in the circumstances of this case.
Although defendant has reached a different conclusion, and although it may be difficult for the plaintiffs to present their case without evidence of an alternative warning, the court finds that the expert has applied the principles and methods reliably to the facts of this case, and the testimony shall, therefore, be admitted in this case.
Conclusion
The court has considered defendant's motions (1) in limine (Doc. 63), (2) to supplement evidence presented at Daubert hearing (Doc. 97), and (3) to exclude expert opinion testimony (Doc. 65). The court finds that defendant's requests to preclude evidence concerning "other prior claims, accidents and lawsuits involving treadmills manufactured by ICON or other manufacturers that are not substantially similar to the claims and treadmill at issue in this case," and "any testimony or inquiry regarding treadmills not previously identified by plaintiffs' expert(s) or photographs of treadmills not previously produced by plaintiffs and for which there is no previous foundation from plaintiffs' expert(s)" is premature. Therefore, defendants' motion (Doc. 63) is denied to that extent. However, the court grants the motion to the extent that plaintiffs may not present evidence regarding other claims, accidents, lawsuits and other notices of injury occurring after the sale of the treadmill involved in this case to show notice of a defect in the treadmill at issue.
In the interests of justice, defendant's motion to supplement (Doc. 97) is granted and such evidence has been considered in the decision of defendant's motion to exclude expert opinion testimony. Defendant's motion to exclude expert opinion testimony is granted to the extent that plaintiffs shall not be allowed to present evidence in their case-in-chief at trial of (1) an alternative proposed design, or (2) an alternative proposed warning. Defendant's motion to exclude is denied in all other respects.
Orders
IT IS THEREFORE ORDERED that defendant's motion in limine (Doc. 63) is granted in part and denied in part as discussed herein.
IT IS FURTHER ORDERED that defendant's motion to supplement (Doc. 97) is granted in the interests of justice.
IT IS FURTHER ORDERED that defendant's motion to exclude expert opinion testimony (Doc. 65) is granted in part and denied in part as discussed herein.