Opinion
Civil Action No: 98-3060 Section: "R"(5).
April 14, 2000.
ORDER AND REASONS
Defendant, Dalloz Safety, Inc., moves the Court in limine to preclude the testimony of plaintiff's expert, Dr. Mehdy Sabbaghian, and Hercules Offshore Corp.'s expert, Dr. John Jacobus. Dalloz asserts that the testimony of these experts fails to meet the standards set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). For the following reasons, Dalloz's motion in limine with respect to Dr. Sabbaghian is GRANTED, and Dalloz's mbtion in limine with respect to Dr. Jacobus is DENIED.
I. BACKGROUND
This products liability case arises out of injuries sustained by plaintiff, Otis Raymond Nugent, on May 27, 1997 when he fell from an offshore drilling rig while working as a roustabout for Hercules. At the time of the accident, he was wearing a safety lanyard manufactured by Dalloz. Plaintiff alleges that the Model 216 WLS Miller "Manyard" totally failed at less than one-fifth of its rated capacity, causing him to fall seventy feet into the Gulf of Mexico. As a result of his injuries, plaintiff is permanently disabled from returning to work offshore.
Plaintiff originally filed suit against Hercules for negligence under the Jones Act and general maritime law. Upon discovering the identity of the lanyard manufacturer, both plaintiff and Hercules filed claims against Dalloz. Plaintiff and Hercules assert that the lanyard manufactured by Dalloz was defective in construction, composition, and design. (See First Amend. Compl. ¶ V; Hercules Cross-Claim ¶ III.) They further allege that Dalloz failed to provide adequate warnings and that it breached express warranties. (See id.)
On September 22, 1999, this Court granted plaintiff's motion to dismiss his claims against Hercules with prejudice. In the dismissal order, plaintiff and Hercules reserved their rights to pursue claims against Dalloz. All three parties have retained experts to analyze why the safety lanyard failed at the time of plaintiff's accident. These experts conducted joint inspections and testing of the lanyard on August 26, 1999 and January 25, 2000. Dalloz now moves to exclude plaintiff's expert, Dr. Mehdy Sabbaghian, and Hercules's expert, Dr. John Jacobus, on the grounds that they are not qualified to render opinions regarding the manufacture and/or sewing of a lanyard.
II. DISCUSSION
A. Legal Standard
The district court has considerable discretion to admit or exclude expert testimony under Rule 702 and will be reviewed on appeal only for abuse of that discretion. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 515 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000) (citations omitted). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. See Daubert, 509 U.S. at 587, 113 S.Ct. at 2794. The rule permits an axpert witness "qualified . . . by knowledge, skill, experience, training, or education" to testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. In Daubert, the Supreme Court held that Rule 702 requires the district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. at 2795. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony). The Court's gatekeeping function thus involves a two-part inquiry into reliability and relevance.
First, the court must determine whether the proffered expert testimony is reliable. The party offering the expert testimony bears the burden of establishing its reliability by a preponderance of the evidence. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998) (citing In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994)). The reliability inquiry requires the Court to assess whether the reasoning or methodology underlying the expert's testimony is valid. See Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. The aim is to prevent expert testimony based merely on subjective belief or unsupported speculation. See id. at 590, 113 S.Ct. at 2795.
Daubert identified a number of factors useful in analyzing the reliability of an expert's testimony, including testing, peer review and publication, evaluation of known rates of error, and general acceptance within the relevant scientific community. See id. at 592-94, 113 S.Ct. at 2796-97. In Kumho Tire, the Supreme Court emphasized that the test of reliability is "flexible," and that Daubert's list of specific factors does not necessarily, nor exclusively, apply to all experts in every case. 526 U.S. 137, 119 S.Ct. at 1175. See also Seatrax, 200 F.3d at 372 (reliability is fact-specific inquiry and application of Daubert factors depends on "nature of the issue at hand, the witness's particular expertise, and the subject of the testimony"). Nevertheless, in the vast majority of cases, the district court should first consider the Daubert factors before addressing whether other factors are relevant to the particular case. See Black v. Food Lion, Inc., 171 F.3d 308, 311-12 (5th Cir. 1999) See also Watkins v. Telsmith, 121 F.3d 984, 991 (5th Cir. 1997) (regardless of basis of expert's opinion, Daubert's non-exclusive factors are relevant to initial reliability assessment). The overarching goal "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176.
Second, the Court must determine whether the expert's reasoning or methodology "fits" the facts of the case and whether it will thereby assist the trier of fact to understand the evidence, in other words, whether it is relevant. See Daubert, 509 U.S. at 591, 113 S.Ct. at 2795-96; FED. R. EVID. 702. The Federal Rules of Evidence define "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401.
Before analyzing the reliability and relevance of the two experts here, the Court notes that its gatekeeping function does not replace the traditional adversary system and the role of the jury within that system. See Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. As the Supreme Court noted in Daubert, "[v]igorous 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. The Fifth Circuit has added that, in determining the admissibility of expert testimony, the district court must defer to "the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres of Land, More or Less Sit. in Leflore Cty., State of Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)). Thus, a witness qualified as an expert in a products liability action "is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight." Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (collecting cases). See also Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1996) (permitting mechanical engineer who had never designed a press brake to testify as to safety of brake design).
B. Application
1. Dr. John Jacobus
Dalloz argues that the Court should exclude the testimony of Hercules's proposed expert, John Jacobus, Ph.D., because he is unqualified to render opinions concerning the manufacture or sewing of the safety lanyard. Dr. Jacobus opines that the principal modes by which the nylon lanyard could have failed include environmental or chemical degradation, misuse, poor manufacturing, and unintentional or intentional acts such as cutting. ( See Hercules Opp'n Mot. Lim. Jacobus, Ex. 3, Jacobus Dep., at 32; Ex. 4(A), Jacobus Report dated Feb. 3, 2000, at 8.) He ultimately excludes environmental or chemical degradation and misuse as causes and concludes that the lanyard failed in tension as opposed to being intentionally or unintentionally cut. ( See id. Ex. 4(A), Jacobus Report, at 11-12.) In his expert report, Dr. Jacobus reaches the following individual conclusions:
1. The lanyard failed at the stitch lines at the attachment end.
2. The lanyard failed to exhibit its shock-absorbing feature.
3. The lanyard does not reveal signs of unusual wear.
4. The lanyard does not reveal signs of chemical degradation.
5. The lanyard does not reveal signs of mechanical misuse.
6. The unemployed warning flag indicates that the lanyard was not subjected to a prior fall.
7. Since the inner core of the lanyard is intact, the lanyard failed to deploy at the manufacturer's specifications.
8. The stitching pattern on the failed end of the lanyard is irregular.
9. The failure of the majority of stitches in the lanyard occurred in tension; they were not cut.
10. The failed lanyard did not meet minimal OSHA or ANSI standards.
( Id. at 10-12.) Dr. Jacobus does not challenge the lanyard's design or the accompanying warnings. ( See id. Ex. 3, Jacobus Dep., at 149.)
The Court first examines Dr. Jacobus's qualifications and the reliability of his proffered testimony. Dr. Jacobus's curriculum vitae indicates that he has a bachelor's degree in chemistry from Southwestern at Memphis and a doctorate in organic chemistry from the University of Tennessee. ( See id. Ex. 4(B).) He has twenty years of teaching and research experience in chemistry and served as the Chairman of the Tulane University Department of Chemistry from 1979 to 1982. (See id.) Dr. Jacobus also has twenty-five years of professional experience, including failure analysis and consulting. (See id.) His primary areas of consultation expertise include products liability and stress analysis of polymers. ( See id.; Ex. 5, Jacobus Dep., at 144.) At his deposition, Dr. Jacobus explained that "[f]ailure of polymers is stress analysis" and that nylon, the material comprising the safety lanyard at issue, is a polymer. (See id.) Dr. Jacobus stated that he taught polymer chemistry for a number of years and that "[o]ne of the major areas of polymer chemistry is polymer failure by a variety of different mechanisms." (Id.) He has also conducted failure analysis of nylon rope in six previous cases. ( See id. at 135-36.) Dr. Jacobus averred that his prior experience examining fibers in nylon ropes that failed under tension, as opposed to being cut, has given him a good understanding of the difference between these two types of failure and assisted him in reaching his opinions in this case. ( See id. at 137.)
Dalloz argues that the Court should preclude Dr. Jacobus from testifying at trial because he is not qualified to give an opinion concerning the manufacture of a lanyard. Dalloz premises this argument on the following facts: (1) Dr. Jacobus is admittedly not an expert in sewing; (2) he is not an engineer; (3) he has never worked nor consulted for a lanyard manufacturer; and (4) he has never been qualified as an expert in the manufacture of a safety lanyard. The Court finds that none of these factors justifies precluding Dr. Jacobus's expert testimony in this case. Dr. Jacobus's resume and experience reveal that he is qualified to testify regarding the failure of nylon. That Dr. Jacobus does not have specialized experience in the manufacture of a safety lanyard affects the weight of his opinion regarding the lanyard's failure, not its admissibility.
The Court must next examine the reliability of the methodology Dr. Jacobus used to analyze how the lanyard failed. Dr. Jacobus initially inspected, photographed, and documented noteworthy features of the lanyard on April 8, 1999. Dr. Jacobus, Dr. Sabbaghian and Dalloz's expert. Dr. Robert Clark, all participated in joint inspections and destructive testing of the lanyard on August 26, 1999 and January 25, 2000. Dr. Jacobus took the lead in developing the test protocol and the August 26th inspection was conducted at the offices of his consulting firm in Kingwood, Texas. That protocol consisted of visual inspection, measurements, documentation, and microscopic examination. ( See id. Ex. 4(A), Jacobus Report, at 4.) The experts also cut a number of stitches at the intact end of the lanyard in order to examine its underlying surface. (See id.) On January 25, 2000, the experts conducted additional destructive testing of the lanyard. This included photographing the lanyard, cutting the failed end, and examining the cut section with optical and scanning electron microscopy and scanning electron microscope/energy dispersive x-ray (SEM-EDX) analysis. The experts then removed nine stitches from the cut section and conducted SEM-EDX and infrared spectra (FT-IR) analysis of these threads. Dr. Jacobus testified at his deposition that he has done this type of SEM-EDX analysis in other cases and has published on the subject. ( See id. Ex. 3, Jacobus Dep., at 169.) These tests allowed Dr. Jacobus to determine the presence of chemical elements on the lanyard and its threads.
Further, Dr. Jacobus tested a new, exemplar lanyard of the same model that failed. ( See id. Ex. 4(A), at 6-7.) He intentionally cut one fiber from that lanyard, while placing another — giber under tension to failure. These fibers were photographed by an electron microscope. Similar testing was conducted on samples of 415 nylon thread and monofilament nylon. From this comparative analysis of the exemplars and the failed threads, Dr. Jacobus concluded that the fibers that failed under tension exhibited the same features found in the failed stitches of the lanyard at issue and characteristic of failure of nylon under tension generally. Finally, Dr. Jacobus inspected the oil rig on which the accident occurred and reviewed the applicable OSHA and ANSI standards. ( See id. at 2, 4-5.)
Dalloz criticizes Dr. Jacobus's work in this case on the grounds that he has not conducted a product survey, accident reconstruction, calculations regarding the forces necessary to break the threads in the lanyard, or testing to show the effect of stitching too close to the edge of the lanyard with regard to the belt's strength. First, Dalloz has not explained why a product survey would be helpful here, particularly in light of Dr. Jacobus's conclusion that a manufacturing, not a design, defect caused the lanyard to fail. Second, Dr. Jacobus inspected the scene of the accident and conducted testing on an exemplar lanyard to reach his conclusions. Finally, Dalloz's critique of Dr. Jacobus's failure to test the tensile strength of the stitches is without merit. In his report, Dr. Jacobus stated that such testing could not be done here due to the insufficient lengths of the stitches. ( See id. at 8.)
After reviewing the record, the Court finds that Dr. Jacobus's methodology and testing of the lanyard are sufficiently reliable to meet the first Daubert factor. Dr. Jacobus's use of SEM-EDX analysis has been subjected to peer review and publication. Further, there is no evidence that Dr. Jacobus's theories are radical, untested, or not generally accepted in the chemistry community. Dr. Jacobus's expert testimony therefore meets Daubert's reliability prong.
With regard to Daubert's second prong, the Court finds that Dr. Jacobus's testimony is relevant. The failure of a safety lanyard requires technical expertise beyond the common knowledge and experience of the average juror. Dalloz argues that the jury would derive no benefit from Dr. Jacobus's testimony because he cannot affirmatively establish, more probably than not, that a particular manufacturing defect caused the lanyard to fail. In support, Dalloz relies on Brown v. Parker-Hannifin, in which the Fifth Circuit affirmed the exclusion of an electrical engineer's expert testimony in a products liability case on the grounds that it was speculative and of no assistance to the trier of fact. 919 F.2d 308, 312 (5th Cir. 1990). Dalloz's reliance on Brown is misguided. There, the proffered expert developed two possible theories to why a quick release coupling failed. See id. at 311. However, the expert never examined the side of the coupling that failed and did not know other pertinent facts about the product. See id. at 311-12. Accordingly, the court noted that he had not, and could not, rule out a number of other theories that explained the product's failure equally well. See id. at 312. Here, by contrast, Dr. Jacobus has opined that the lanyard failed because the stitches lacked the requisite tensile strength. He identified the principal modes of nylon failure and has systematically examined and tested the lanyard to exclude possible causes, including environmental and chemical degradation, misuse, and unintentional or intentional cutting. Dr. Jacobus testified that it was more probable than not that the lanyard had an unacceptable pattern of stitching and that it had stitching too close to the edge. ( See Hercules Opp'n Mot. Lim. Jacobus, Ex. 3, Jacobus Dep., at 270-71.) Although he could not state which of these factors was the cause of the failure of the lanyard, he testified that both factors contributed to it. ( See id. at 271-72.) The Court therefore finds Brown's analysis inapplicable to this case.
Dr. Jacobus's testimony is both reliable and relevant under Daubert, and he may therefore testify as an expert witness for Hercules at trial.
2. Dr. Mehdy Sabbaghian
Dalloz also moves in limine to preclude the testimony of plaintiff's proposed expert, Mehdy Sabbaghian, Ph.D. If permitted to testify at trial, Dr. Sabbaghian would opine that (1) the lanyard was defective in manufacture; and (2) the majority of the stitches failed in tension due to excessive tension at the time of manufacture or at a later time due to "creep elongation" or due to overstitching. He also notes that the stitch pattern did not meet the manufacturer's specifications and some of the stitches did not go through the core material, and he states that the instruction for inspection and warning on the lanyard was deficient. ( See Pl.'s Opp'n Mot. Lim. Sabbaghian Ex. 1, Sabbaghian Dep., at 97-98; Ex. 2, Sabbaghian Report dated Feb. 3, 2000.)
Plaintiff has not established by a preponderance of the evidence that Dr. Sabbaghian's testimony is sufficiently reliable. Dr. Sabbaghian's written opinion does not identify the methodology he used to reach his conclusions, and neither his report nor his deposition shows how he brought mechanical engineering expertise to bear in reaching his conclusions. Indeed, plaintiff submitted no affidavit from Dr. Sabbaghian in opposition to this motion. Dr. Sabbaghian's 157-page, single-spaced, small print deposition, which was taken by defense counsel, is impenetrable, despite the Court's sustained efforts to plow through it. Judging from the deposition, it is hard to imagine how his testimony would be "helpful" to the jury.
Dr. Sabbaghian testified that he based his opinion on plaintiff's depositions, the manufacturer's manuals, photographs, and post accident examination of the lanyard. ( See Pl.'s Opp'n Mot. Lim. Sabbaghian Ex. 1, Sabbaghian Dep., at 32.) The record does not reveal how he used mechanical engineering expertise to connect these materials to his conclusions. Further, Dr. Sabbaghian opines that the majority of stitches failed in tension for two possible reasons — excessive tension or overstitching. At his deposition, Dr. Sabbaghian conceded that he could not determine that either of these occurred from what he saw of the lanyard. ( See id. at 129-30.) Dr. Sabbaghian testified that he could not tell from the photographs that the threads removed during the joint testing were overtensioned, nor could he find evidence of creep elongation in the failed threads without having' an exact thread from the time of manufacture to compare the differences in elongation. ( See id. at 115-17.) As to the theory that the threads failed from being cut by a needle due to overstitching, Dr. Sabbaghian testified that he found no evidence from his examination of the lanyard, or any of the removed threads, of any instance where overstitching by a needle cut a thread. ( See id. at 104, 130.) In fact, Dr. Sabbaghian conceded that overstitching can actually strengthen a stitch. ( See id. at 128.) In light of Dr. Sabbaghian's inability to say that his theory of how the majority of the stitches failed more probably than not occurred, his further observation that the stitch pattern did not comply with the manufacturer's specifications cannot save his opinion from exclusion. Finally, his statement that the instructions on the lanyard were insufficient is totally conclusory.
For all of the foregoing reasons, the Court GRANTS Dalloz's motion in limine to exclude Dr. Sabbaghian from testifying at trial regarding the alleged manufacturing defects of the safety lanyard.
III. CONCLUSION
For the reasons stated above, the Court DENIES Dalloz's motion in limine to preclude the testimony of Hercules's expert, Dr. John Jacobus, and GRANTS Dalloz's motion in limine to preclude the testimony of plaintiff's expert, Dr. Mehdy Sabbaghian.
New Orleans, Louisiana, this 14th day of April, 2000.