Opinion
Case No. 1:00-CV-383.
December 7, 2001
MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO BAR TESTIMONY OF PLAINTIFF'S EXPERT
Trial is set to commence in this products liability action on December 11, 2001. Now before the Court is the motion of defendants Home Depot, Inc., and Keller Ladder, Inc., to bar the testimony of plaintiff's engineering expert, Charles P. Reynolds. Defendants contend Reynolds' opinions lack sufficient reliability to be admissible under Fed.R.Evid. 702.
I
Rule 702 governs the admission of expert witness testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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.
Defendants do not dispute that Reynolds, a licensed professional engineer, is qualified by education and experience, to testify as an engineering expert. Rather, they contend the opinions he would offer are not based on sufficient facts or data and are not the product of valid application of reliable principles and methods to such sufficient facts or data.
Defendants' motion requires the Court to exercise its "gatekeeping" function to ensure that expert scientific testimony is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) ; Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 250 (6th Cir. 2001). The Sixth Circuit recently explained this function as follows:
In assessing the relevance and reliability of proffered expert testimony, the district court must determine:
whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether the reasoning or methodology properly can be applied to the facts in issue.Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. "`[S]cientific knowledge' establishes the standard of evidentiary reliability," id. at 590, 113 S.Ct. 2786, and to be considered appropriately scientific, the expert need not testify to what is "`known' to a certainty" but must only state "an inference or assertion . . . derived by the scientific method." Id. Testimony meets this threshold when "an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice in the relevant field." Kumho Tire co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Experts are permitted a wide latitude in their opinions, including those not based on firsthand knowledge, so long as "the expert's opinion [has] a reliable basis in the knowledge and experience of the discipline." Daubert, 509 U.S. at 592, 113 S.Ct. 2786. The court explained that relevance of proposed scientific testimony is established through Rule 702's "`helpfulness' standard" which "requires a valid scientific connection to the pertinent inquiry as a precondition for admissibility." Id. at 591-92, 113 S.Ct. 2786. In the end, Rule 702 embodies a flexible approach and its "overarching subject is the scientific validity . . of the principles that underlie the proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. Jahn v. Equine Services, PSC, 233 F.3d 382, 388 (6th Cir. 2000). Further, it is the proponent of the expert testimony that must establish its admissibility by a preponderance of the evidence. Nelson, 243 F.3d at 251.
In his opposition to defendants' motion and in his trial brief, plaintiff Richard M. Shanks asserts that Reynolds' testimony will be offered in support of his claim that defendants, by their sale of a defectively designed 8-foot aluminum stepladder, breached the implied warranty that the ladder, whose collapse resulted in plaintiff's injuries, was reasonably fit for its foreseeable and intended uses.
Under Michigan law, plaintiff's defective design claim implicates a risk-utility balancing analysis. See Prentis v. Yale Mfg. Co., 421 Mich. 670, 691 (1984); Reeves v. Cincinnati, Inc., 176 Mich. App. 181, 187-88 (1989). The elements of this analysis are defined as follows:
To summarize, a prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product.Reeves, 176 Mich. App. at 187-88. See also Hollister v. Dayton Hudson Corp., 201 F.3d 731, 738 (6th Cir. 2000).
Plaintiff recognizes that the subject ladder complied with governing industry safety standards and that this fact gives rise under Michigan law to a rebuttable presumption that defendants are not liable. See M.C.L. § 600.2946(4). Thus, Reynolds' opinions are offered to rebut this presumption by showing that plaintiff's injuries were caused by the defective design of the ladder and that the industry safety standards are inadequate.
II
Plaintiff first proffers Reynolds' opinion that, assuming plaintiff's fall occurred as described by eye-witness Kenneth Lafey, the buckling of the front side rail of the ladder was caused by the defective design of the rail. In his words, "I don't think the design is adequate to meet the requirements of the intended use of this ladder." Reynolds Dep. pp. 42-43. Further, he stated: "Well, I believe the defect in the design is that the side rails are not designed adequately to prevent the buckling." . . . . . "They're too thin." Id. pp. 58-59. That is, even though the ladder had a work load capacity rating of 225 pounds, Reynolds concluded "the ladder is not capable of sustaining a 225-pound load being used on a regular basis or even, you know, more than once because of the way it was, theoretically, tested." Id. at 51.
Although Reynolds had examined the subject ladder and taken measurements prior to his deposition, he admitted he had not conducted any tests or run any calculations to determine the load-bearing capacity of the ladder and he does not anticipate doing so prior to trial. Id. at 42. His opinion is based on previously done calculations: "I've done it for so many ladders, and they all seem to come out the same way." Id.
Defendants contend Reynolds' opinions are not based on scientific scrutiny of facts or data, but are based on speculative application of the doctrine of "res ipsa loquitur cloaked with an engineering degree." Plaintiff responds that Reynolds' reliance on Kenneth Lafey's recollection of the accident constitutes an adequate factual basis for his opinions.
Plaintiff misconceives the nature of his burden. The focus of this Court's inquiry must be on principles and methodology. Daubert, 509 U.S. at 594-95. Based on the present record, it is impossible to determine whether Reynolds' design defect opinions are the product of (1) reliable principles and methods and (2) the reliable application of those principles and methods to the facts of this case. In his deposition testimony, Reynolds alludes casually to prior calculations performed in connection with other ladders. He provides no information, however, on the specific types of ladders tested, the nature of the tests, the failure rates, and whether the calculations or testing techniques have been subject to peer review and acceptance in the field. There is thus no basis for the Court, as gatekeeper, to assess the reliability of the research and methods employed by Reynolds; no basis for concluding that Reynolds, in reaching his opinions, employed "the same level of intellectual rigor that characterizes the practice in the relevant field." See Kumho, 526 U.S. at 152. Plaintiff has therefore failed to carry his burden of establishing the admissibility of Reynolds' design defect opinions by a preponderance of the evidence.
III
Plaintiff also proffers Reynolds' opinions concerning the adequacy of prevailing industry safety standards and the availability of an alternative design. Reynolds' criticism of the ANSI (American National Standards Institute) safety standards, with which the subject stepladder complied, is not clearly set forth in his deposition testimony. Reynolds' testimony relies in part, however, on an article authored by him in 1998, "Forensic Engineering Review of Safety Standards for Portable Metal Ladders." The paper is premised on observations that there are thousands of serious ladder accidents each year in the United States; that the most common cause of falls from portable metal ladders is the buckling failure of one of the side rails; and that most of the ladders that failed met applicable safety specifications. The paper offers no information on the correlation of side rail failure and misuse of the ladder (i.e., use of the ladder in a manner not consistent with applicable specifications and warnings). Rather, the paper implies that the ANSI standards, derived from static load testing, instead of more realistic dynamic load testing — result in duty ratings and load capacity ratings that are misleading in light of the actual uses that consumers make of ladders. The paper recommends that ANSI standards be derived from dynamic load testing, which would more accurately account for the actual loading imposed on a ladder under normally expected usage. To enhance safety, the paper recommends that only "extra heavy duty" (load capacity 300 lbs.) ladders be approved for industrial and commercial applications, and that only "extra heavy duty" and "heavy duty" (load capacity 250 lbs.) ladders be approved for household use.
The ladder from which plaintiff Shanks fell had a duty rating of "medium duty" and load capacity rating of 225 pounds. It appears to be undisputed that plaintiff weighed approximately 225 pounds at the time of the fall. In reliance on his article, Reynolds concluded in his deposition that the design defect which caused plaintiff's injury could have been avoided by doubling the thickness of the ladder side rails or, in other words, by using an "extra heavy duty" ladder. That such an alternative design was and is feasible and available is not in dispute.
Again, there is no question about the relevance of Reynolds' opinion testimony. His critique of the ANSI standards is relevant to plaintiff's rebuttal of the nonliability presumption arising from the ladder's compliance with ANSI standards. His conclusion that use of an extra heavy duty ladder would have minimized the foreseeable risk of side rail buckling is also relevant to establishment of plaintiff's prima facie case of a design defect.
The question posed by defendants' motion is whether these opinions are derived from application of reliable scientific or technical methods and principles.
Viewing Reynolds' deposition testimony with reference to his 1998 article on portable ladder safety standards demonstrates that his critique of ANSI standards proceeds at least in part from application of facially reliable principles of physics and mechanical engineering. Further, Reynolds' opinion that use of an extra heavy duty ladder, with double-thick side rails, would have minimized the foreseeable risk of side rail buckling inherent in the medium duty ladder plaintiff fell from is plausibly derived from scientific principles discussed in his paper. In these two respects, then, Reynolds' opinion testimony is shown to be facially reliable. Yet, again, the Court is not entirely satisfied that the record has been sufficiently developed to enable a finding that the admissibility of such opinions has been established by a preponderance of the evidence.
In Daubert, the Supreme Court has suggested a non-exclusive list of factors to consider when determining whether proposed scientific expert testimony is sufficiently reliable. Such factors include: (1) "whether a theory or technique . . . . can be and has been tested;" (2) "whether the theory or technique has been subjected to peer review or publication;" (3) "the known or potential rate of error;" and (4) "general acceptance." Daubert, 509 U.S. at 593-94. See also First Tennessee Bank Nat'l Ass'n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001). The Court acknowledges that this listing of factors is neither definitive nor exhaustive. Kumho, 526 U.S. at 141; Nelson, 243 F.3d at 251. It does, however, provide a helpful analytical framework for assessing reliability. First Tennessee Bank, 268 F.3d at 334-35.
The record presently before the Court offers little assistance in evaluating those Daubert factors. The record is devoid of information, for instance, regarding the extent to which Reynolds' critique of the ANSI standards has been tested, subjected to peer review, or accepted in the field. Thus, while plaintiff has made a sufficient showing of the facial reliability of Reynolds' opinions concerning the ANSI standards and alternative design to withstand defendants' present challenge, it remains for plaintiff to satisfactorily establish a foundation of reliability before Reynolds' opinion testimony will be admitted at trial. See Jahn, 233 F.3d at 393 (Daubert determination should not be made unless the record is adequate to the task). The Court's instant denial of defendants' motion in this respect is, therefore, without prejudice to their right to renew the objection during trial.
IV
In accordance with the foregoing analysis, defendants' motion to bar the testimony of plaintiff's expert witness is GRANTED in part and DENIED in part. Charles P. Reynolds' opinions going to the defective design of the ladder from which plaintiff fell are not admissible. Defendants' motion to bar Reynolds' opinion testimony concerning the adequacy of ANSI safety standards and alternative ladder design, however, is DENIED without prejudice.
IT IS SO ORDERED.