Opinion
1:19CV2612
03-24-2022
DIANE M. PORTER, et al., Plaintiffs, v. CUYAHOGA COUNTY, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 26 AND 35]
BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE.
Pending is Plaintiffs Diane M. Porter and Joey R. Porter's Motion in Limine to Exclude All Testimony of Defense Expert Douglas Morr, P.E. or, in the Alternative, Exclude His Testimony of Certain Opinions That are Inadmissible Under Fed. R. Evid. 702 and Ohio Substantive Law (ECF No. 26). For the reasons set forth in Section II below, the motion is denied.
Also pending is Plaintiffs Diane M. Porter and Joey R. Porter's Motion to Strike the Affidavit of Douglas Morr, P.E. and Exhibits A-1 and A-2 Annexed Thereto (ECF No. 35). For the reasons set forth in Section III below, the motion is denied.
I. Background
On February 13, 2017, Ms. Porter was a business invitee or licensee of the property known as the Virgil E. Brown Building located on Superior Avenue in Cleveland, Ohio. She was an occupant and rider with her co-worker, Gary Evans, of Elevator #5 when the two doors closed on Ms. Porter as she entered the elevator. Mr. Evans was unable to open the doors electronically with the control panel of the elevator car. He subsequently pulled the doors open enough so Ms. Porter could remove herself from between the doors and stumble the rest of the way into the elevator. The incident allegedly caused Ms. Porter to sustain injuries to her right shoulder, right elbow, chest, right hip, right knee, and bruising on both her chest and back. Ms. Porter remains under medical care for her injuries. Defendant Schindler Elevator Corporation has the exclusive and continuous repair, maintenance, and upgrade equipment contracts with Cuyahoga County for the elevator. According to Defendant, the elevator was tested by a City of Cleveland Inspector and certified to be put into service just days before the incident. Plaintiff Ohio Bureau of Workers' Compensation made certain payments to Ms. Porter for medical treatment and/or lost wages and claims a right of reimbursement/subrogation from Ms. Porter. Joey R. Porter, Ms. Porter's husband, also brings a claim for loss of consortium.
Douglas Morr, P.E. performed an incident reconstruction investigation almost four years after the incident, and was able to ascertain the condition of Elevator #5 to his satisfaction. He subsequently submitted an Expert Report (ECF No. 25-1) that bases his opinions on investigations and reports that took place shortly before and shortly after the incident. Thereafter, Morr was deposed by counsel for the Porters. See Deposition of Douglas Morr, P.E. (ECF No. 25). One of the peer-reviewed articles cited in both Morr's deposition and report, Lacerte, M., et al. (2002) “Medicolegal causal analysis, ” Physical Medicine Rehabilitation Clinics of North America, 13 (371-408), defines how the scientific method should be utilized by biomechanical engineers in causal analysis. Morr utilized the Lacerte and Forcier 6-step system for applying the scientific method in formulating his conclusion that, based upon the evidence, analysis, validation, and weighing of facts, the mechanism of force required to cause Ms. Porter's reported injuries were not present during the incident. See ECF No. 25-1 at PageID #: 651. Thus, a subsequent trauma cannot be ruled out. See ECF No. 25 at PageID #: 549:21-550:3.
II. ECF No. 26
The Porters move the Court for an Order excluding from trial all testimony of Morr, a biomechanical engineer expert witness identified by Defendant. In the alternative, the Porters move the Court to exclude from the trial testimony of Morr certain opinions that are individually inadmissible under Fed. R. Evid. 702 and Ohio substantive law.
A.
The Federal Rules of Evidence, and specifically Rule 702, “assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Rule 702 governs the admissibility of expert testimony and codifies the Supreme Court's holdings in Daubert and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Expert testimony is admissible only if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. The proponent of the expert testimony has the burden of establishing by a preponderance of the evidence that the proposed testimony satisfies those standards. See Fed.R.Evid. 702 advisory committee's note (2000); Daubert, 509 U.S. at 592 n.10. Expert testimony is not admissible “is the exception rather than the rule.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 530 (6th Cir. 2008) (quoting Fed. R. Evid. 702 advisory committee's note (2000)).
While not a “definitive checklist or test, ” the following factors frequently bear on the analysis of whether an expert's testimony is the product of reliable principles and methods:
(1) whether a theory or technique . . . can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429-30 (6th Cir. 2007) (ellipses in original; internal quotation marks and citations omitted). In addition, the Sixth Circuit often analyzes another factor relating to the admissibility of expert testimony, the “Prepared-Solely-for-Litigation Factor.” Id. at 434; see also Hayes v. MTD Prods., Inc., 518 F.Supp.2d 898, 900-01 (W.D. Ky. 2007). Under this factor, the Sixth Circuit “has recognized for some time that expert testimony prepared solely for purposes of litigation, as opposed to testimony flowing naturally from an expert's line of scientific research or technical work, should be viewed with some caution.” Johnson, 484 F.3d at 434; see also Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 408 (6th Cir. 2006) (finding “[w]e have been suspicious of methodologies created for the purpose of litigation.”).
B.
The Porters argue that Morr's testimony should be excluded from trial because the methodology underlying his opinions is unreliable and his opinions on “mechanical engineering causation” far exceed his area of expertise in the field of biomechanics. The Porters cite Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299 (6th Cir 1997), abrogated on other grounds by Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500 (6th Cir. 1998), in support of their argument. In Smelser, the Court of Appeals reversed a district court's decision to allow a biomechanical expert to testify regarding the specific cause of Plaintiff's injuries. Id. At 302. The Sixth Circuit held:
We conclude that the trial court erred when it allowed Smelser's expert, Ronald Huston, to offer his opinion that a defective shoulder belt in the company pick-up truck, and not the rear-end collision, caused Smelser's back injuries and aggravated his neck injuries. The court did not adequately assess the reliability of the methodology underlying Dr. Huston's opinions both as to defect and causation and also failed to recognize that Dr. Huston's opinion as to the cause of Smelser's specific injuries went beyond his expertise in biomechanics. Accordingly, it failed to adequately perform its gatekeeping functions as recently defined by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . . .Id. at 301. “An expert opinion that is based on scientifically valid principles will satisfy Fed. R. Evid. 702; an expert's subjective belief or unsupported speculation will not.” Id. at 303 (citation omitted).
According to the Porters, the methodology of Morr as a biomechanics expert is unreliable because it consists of unsupported speculation which cannot be tested. The Porters discuss four component parts of their argument that Morr's methodology lacks reliability. First, a four-year delay and inadequate investigation of the February 13, 2017 elevator door closing incident. Second, the lack of credible data supporting Morr's ultimate opinions and calculations that the force exerted onto Ms. Porter when the doors closed on her was in compliance with State elevator code providing that the force of the doors closing should exert no more than 30 pounds of pressure. Third, Morr's methodology lacks scientific validity and is not subject to testing. Finally, the lack of any peer reviewed literature supporting Morr's methodology and calculations of the forces exerted on Ms. Porter when the elevator doors actually closed on her. This includes his conclusion that the forces on the closing elevator doors were less than the forces involved in lying down or getting out of bed. See ECF No. 25 at PageID #: 581-83; ECF No. 25-1 at PageID #: 668.
Next, the Porters contend that Morr's opinions on “mechanical engineering causation” exceed the boundaries and areas of his expertise as a biomechanical engineer. The Porters then cite Smelser for the premise that an expertise in biomechanics does not qualify the expert to testify about the cause of Ms. Porter's specific injuries. See 105 F.3d at 305. However, in Laski v. Bellwood, No. 99-1063, 2000 WL 712502 (6th Cir. May 25, 2000), the Sixth Circuit held that biomechanical experts cannot be excluded simply because they are not qualified as medical experts. Id. at *4. Morr does not opine in his report (ECF No. 25-1), nor does he intend to opine at trial, about a specific cause of Plaintiff's alleged injuries.
In Laski, the Court of Appeals recognized the defendants' biomechanical expert “was qualified to give general opinions about causation, [but] he was not qualified to give medical opinions.” Id. at *3 (emphasis in original). The court noted there was one portion of the expert's testimony on causation that “arguably violate[d] the rule in Smelser, ” but ultimately affirmed the district court's decision to allow the testimony. Id. at *4. In reaching that decision, the Sixth Circuit explained in Laski that “[t]he testimony in Smelser was highly [fact] specific; the expert in that case stated that the failure of the shoulder belt webbing to properly lock led directly to the injuries, and that those injuries were exacerbated by the rear impact on the vehicle.” Id. at *3 (citing Smelser, 105 F.3d at 304.) The Court of Appeals then explained that cases after Smelser had a “more liberal construction of the rules concerning admission of expert witnesses and their ability to testify regarding matters which might not fall within their particular specialty.” Id. at *4. In addition, in its previous ruling on the first appeal in Laski v. Bellwood, No. 96-2188, 1997 WL 764416 (6th Cir. Nov. 26, 1997), the Sixth Circuit had allowed the plaintiff to present evidence of causation from medical experts who were not biomechanical experts and thus “it would seem unjust and ironic to now hold that the defendant cannot produce experts who testify as to causation even though they are only biomechanical and not medical experts.” Laski, 2000 WL 712502, at *4.
The Laski court cited to Morales, in which the Sixth Circuit affirmed a district court's decision to allow an expert to testify on accident reconstruction, engineering, and child psychology “despite the fact that [the expert] ha[d] no background in any of these areas.” 151 F.3d at 516.
Finally, the Porters maintain the trial testimony offered by Morr regarding any opinions of causation that are based upon possibility and not probability should be excluded from evidence under Fed. R. Evid. 702 and Ohio substantive law. They cite the discovery deposition testimony of Morr on cross-examination that is not contained in his expert report. Morr's testimony regarding the possibility that daily occurrences in Plaintiff's life could have caused her injuries was provided in response to the questions of counsel for the Porters, which if made in a trial setting would certainly open the door to a response. See ECF No. 25 at PageID #: 546:23-547:19, 549:8-17, 556:20-25, 557:11-21. In Ohio, “[t]he admissibility of expert testimony that an event is the proximate cause is contingent upon the expression of an opinion by the expert with respect to the causative event in terms of probability.” Stinson v. England, 69 Ohio St.3d 451, at syllabus para. 1(1994). Morr, however, does not opine that any event proximately caused Ms. Porter's diagnosed injuries. Rather, his actual testimony is that the mechanisms required to cause Plaintiff's diagnosed injuries were not present in the February 13, 2017 elevator door closing incident, but there are activities in Plaintiff's daily living that exceed the force of the elevator doors closing which do have the mechanisms necessary to cause Plaintiff's diagnosed injuries.
The Porters argue that Morr's acceptance that the elevator doors acted upon Ms. Porter with no more than 30 pounds of force causes the expert's opinion to be unreliable. The Court, however, finds to the contrary that Morr's testimony is reliable under Fed. R. Evid. 104(a). The scientific or technical theory, which is the basis for the expert's opinion, is indeed “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702(a). Morr freely admits that in his calculations he is relying upon the findings of another defense expert, Jon B. Halpern, P.E., that the elevator doors closed with no more than 30 pounds of force, along with the City of Cleveland's record that did not flag the doors for closing with more than 30 pounds of pressure. Morr himself has no evidence of whether the doors closed with a certain amount of force and so has relied upon other documents in reaching his conclusions.
The Court also finds that the relevancy requirement is met. It determines, under Rule 104(a), that Morr's opinion “will help the trier of fact to understand the evidence or to determine a fact in issue.” Rule 702(a). Counsel for the Porters will have an opportunity during trial to cross-examine Morr on his qualifications to testify in the areas in question and the Court will instruct the jury on how they are to determine the proper weight and credibility to be awarded, if any. See Morales, 151 F.3d at 516. As a result, the jury will be “free to give [Morr's] testimony as much credence as it [feels] the testimony [deserves]. . . .” Id. The Porters will also be able to present contrary evidence. Therefore, the Porters' Motion in Limine (ECF No. 26) is denied.
III. ECF No. 35
The Porters also move the Court for an Order striking the Affidavit of Douglas Morr, P.E. (ECF No. 27-1) and Exhibits A-1 (ECF No. 27-2) and A-2 (ECF No. 27-3) annexed thereto, as well as the arguments in Defendant's Brief in Opposition (ECF No. 27) referencing them.According to the Porters, the submission of the Affidavit and its attachments is an untimely attempt to circumvent the prior Order (ECF No. 23) so as to amend his expert report. They argue Morr's Affidavit seeks to: (1) expand upon the opinions expressed in his report; (2) further elaborate upon his deposition testimony; and (3) submit additional literature references to support the reliability of his methodology. ECF No. 27-2 is the 5-page report of Jon B. Halpern, P.E. On the day before ECF No. 35 was filed, the Porter's filed Halpern's Expert Report. See ECF No. 33-2. Halpern's report was authenticated during his deposition and is now part of the record. See Deposition of Jon B. Halpern, P.E. (ECF No. 33) at PageID #: 1276:2-18. ECF No. 27-3 is a 2-page document entitled “Notice of Violation of Building and Housing Ordinances” issued by the City of Cleveland on June 20, 2017.
The Porters did not file a permissive reply memorandum in support of ECF No. 35. See LR 7.1(e).
The Court subsequently granted the parties' Joint Motion (ECF No. 24) and extended the cutoff date to conduct discovery depositions of expert witnesses on damages. See Non-document Order dated March 4, 2021.
The Porters are correct in declaring that the Affidavit was submitted only in direct response to their Motion in Limine (ECF No. 26). See ECF No. 35 at PageID #: 1514. Morr's Affidavit does not include new opinions, but rather was utilized to oppose the Porters' arguments that referenced Morr's discovery deposition testimony. The Porters cannot fail to solicit information during a discovery deposition that supports Morr's scientific methodology of applying biomechanical principals, and then use that lack of information to establish a deficiency to exclude the expert's conclusions and opinions. Morr only answered the questions he was asked by counsel for the Porters on cross-examination. More importantly, Morr has not yet had an opportunity to provide direct testimony about his methodology and research background. His direct trial testimony will undoubtedly include the information provided in the Affidavit, which supports his qualifications as an expert in biomechanical engineering under Daubert. Moreover, the opportunity for counsel for the Porters to examine Morr regarding his Daubert qualifications has not passed, since they will still have another chance when Morr provides his direct trial testimony. Therefore, the Porters' Motion to Strike (ECF No. 35) is denied.
IV. Conclusion
Accordingly, The Porters' Motion in Limine (ECF No. 26) is denied.
The Porters' Motion to Strike (ECF No. 35) is denied.
IT IS SO ORDERED.