Dunkin et al v Dorel Industries, Inc. et al

Filing 64

ORDER denying 37 Motion To Exclude Expert William Kitzes. Signed by Judge John W. Sedwick on 3/21/12. (GMM, CHAMBERS STAFF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ALASKA

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SHAUN M DUNKIN, et al.,

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Plaintiffs,
vs.
DOREL ASIA SRL & WAL-MART
STORES, INC.,

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Defendants.
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5:10-cv-00004 JWS
ORDER AND OPINION
[Re: Motion at Docket 37]

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I. MOTION PRESENTED

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At docket 37, defendants Dorel Asia SRL (“Dorel”) and Wal-Mart Store, Inc.

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(“Wal-Mart”; collectively “defendants”) move in limine to exclude the testimony of

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plaintiffs’ expert, William Kitzes (“Kitzes”). Plaintiffs Shaun & Sharlee Dunkin

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(“plaintiffs”) oppose the motion at docket 45. Defendants’ reply is at docket 58. Oral

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argument was not requested and would not assist the court.

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II. BACKGROUND
This lawsuit arises out of injuries suffered by plaintiffs’ child and allegedly caused

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by a defective toddler bed. The bed was imported by Dorel and sold at Wal-Mart.

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Plaintiffs have offered Kitzes’ testimony to describe common methods of safety
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management amongst manufacturers, to describe what information safety managers

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use to evaluate risks and whether warnings or instructions on products are necessary,

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and to opine as to whether Dorel followed the described methods and provided

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adequate warning or instruction.

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III. DISCUSSION
Defendants’ overarching argument is that Kitzes’ testimony is not reliable and
therefore would not be helpful to the jury. Federal Rule of Evidence 702 provides that

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[a] witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.

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Defendants argue first that Kitzes has no training in the design of toddler beds.

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Kitzes is a “Board Certified Product Safety Manager and Hazard Control Manager.”1 He

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worked at the United States Consumer Product Safety Commission (“CPSC”) for

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several years. He has been hired by several companies as a consultant on product

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safety issues, including recalls and warnings. Kitzes has also published several articles

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in the product safety field and has testified as an expert over one hundred times.

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Defendants generally accept that Kitzes “has safety analysis training which he applies

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to almost every product.”2 Kitzes lack of specific training in toddler bed design and

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manufacture does not discount his expertise in product safety.

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Defendants maintain that Kitzes’ opinion is irrelevant because his report refers

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only to Dorel Industries, Inc., an entity that has been dismissed from this case.

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However, Kitzes stated that his opinions apply to Dorel insofar as it was “involved in the

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design, manufacture, and importation of the toddler bed.”3

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Doc. 46 at 1.
Doc. 37 at 8.
Doc. 46 at 1.

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Defendants argue that Kitzes improperly relies on an inadmissible settlement

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agreement between Graco Children’s Products, Inc. (“Graco”) and the CPSC. That

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agreement involved a toddler bed that resembled the bed at issue in the case at bar.4

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The admissibility of the settlement agreement is the subject of a different motion in

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limine and will be determined in connection with that motion. For purposes of this

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motion, it is sufficient that even if a basis of an expert’s opinion is inadmissible, the

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expert’s opinion may still be admitted.5

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Defendants maintain that Kitzes did not independently vet the data underlying the
Graco settlement agreement, which pertained to incidents occurring between 1995 and

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2004. Plaintiffs respond that defendants have not offered any reason to suspect that

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the data underlying the settlement agreement was not trustworthy. Because the

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Federal Rules of Evidence permit an expert to base an opinion on facts or data that the

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expert has been “made aware of,”6 a failure to independently vet the data underlying the

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Graco settlement agreement is inconsequential.

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Defendants argue that Kitzes has ignored more recent data which pertains to

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incidents taking place between 2005 and 2010.7 Defendants emphasize that the CPSC

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declined to modify the guardrail slat dimension standard in light of that data. Kitzes

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stated at his deposition that he did not reference that data because plaintiff’s child was

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injured in 2008 and therefore that data was not available to Dorel.8 Ultimately, Kitzes’

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decision not to incorporate the incident data from 2005 to 2010 into his report does not

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render his opinion unreliable. Defendants’ argument assumes that compliance with a

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Doc. 37-11 at 15.
See Fed. R. Evid. 703.
Id.

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See 76 Fed. Reg. 22019, 22020 (Apr. 20, 2011).

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Doc. 45-3 at 14 (“So as far as notice [to Dorel] is concerned, that information really isn’t
relevant.”).

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standard–whether voluntary or mandatory–is a complete defense to liability. However,

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with respect to plaintiffs’ strict liability claim, compliance with the standard might be

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evidence that the toddler bed was not defectively designed, but it would not be

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conclusive. With respect to plaintiffs’ negligence claim, compliance with the prevailing

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design standard might be evidence that Dorel did not breach the applicable standard of

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care when designing the toddler bed, but again, it would not be conclusive. As plaintiffs

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point out, 15 U.S.C. § 2074 provides explicitly that “[c]ompliance with consumer product

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safety rules or other rules or orders under this chapter shall not relieve any person from

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liability at common law or under State statutory law to any other person.”9

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For the same reasons, defendants’ arguments that Kitzes’ report does not

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mention ASTM F 1821 and 16 C.F.R. § 1217.2(c)(2)(ii) or testing of the subject toddler

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bed undertaken by the Consumer Testing Laboratories are not persuasive.

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Defendants argue that Kitzes’ opinion is unreliable because 1) he does not know

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what happened to handwritten notes he kept while preparing his report, and 2) portions

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of his report are identical to previous reports he has prepared. Neither the content of

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Kitzes’ notes nor identical application of Kitzes’ methodology render his opinion or report

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unreliable. Kitzes testified at his deposition that his notes were organizational in

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character10 and that he does not “look back at them.”11 Although under some

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circumstances a boilerplate report could reflect poorly on an expert’s reliability, here,

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defendants point only to the portion of Kitzes’ report discussing his methodology and the

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portion setting out the five bases for Kitzes’ conclusion that Dorel did not adequately

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address safety. A verbatim summary of Kitzes’ methodology–which is presumably

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static–does not reflect on the reliability of an opinion drawn from application of that

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methodology. Similarly, the reliability of Kitzes’ opinion is not discounted by the fact that

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15 U.S.C. § 2074(a).
Doc. 45-3 at 6–7.
Id. at 7.

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application of his methodology yielded the same conclusions under different

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circumstances.

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IV. CONCLUSION

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For the reasons above, defendants motion in limine at docket 37 to exclude

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Kitzes’ testimony is DENIED.
DATED this 21st day of March 2012.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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