Feuerstein et al v. Home Depot U.S.A. Incorporated et al

Filing 141

ORDER granting in part and denying in part 84 Motion in Limine; granting in part and denying in part 86 Motion in Limine; denying 124 Motion in Limine; denying as moot 126 Motion in Limine. See PDF document for court's reasoning. Signed by Judge John W Sedwick on 6/6/14.(JWS)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 Burt Feuerstein and Janet Shalwitz, ) ) Plaintiffs, ) ) vs. ) ) The Home Depot, U.S.A., Inc., ) Gorilla Ladder Company, Tricam ) Industries, Inc., Trex Company, Inc., ) and A.B.C. Corp., ) ) Defendants. ) ) ) 2:12-cv-01062 JWS ORDER AND OPINION [Re: Motions at Dockets 84, 86 124, and 126] 18 19 20 I. MOTIONS PRESENTED At docket 84, Defendants The Home Depot, U.S.A., Inc. (“Home Depot”) and 21 Tricam Industries, Inc. (“Tricam”; collectively “Ladder Defendants”) filed a motion in 22 limine seeking to exclude the testimony of Herbert Weller (“Weller”), expert witness for 23 Plaintiffs Burt Feuerstein (“Feuerstein”) and Janet Shalwitz (collectively “Plaintiffs”). 24 The memorandum and documents in support are at docket 85. Ladder Defendants 25 filed a second motion in limine at docket 86 seeking to exclude the testimony of 26 Plaintiffs’ second expert witness, Jay Preston (“Preston”). The memorandum in support 27 and supporting documents are at docket 87. Plaintiffs’ filed oppositions at dockets 95 28 -1- 1 and 96. Ladder Defendants filed replies at dockets 106 and 107. Oral argument was 2 requested, but would not be of additional assistance to the court. 3 At docket 124, Defendant Trex Company, Inc. (“Trex”) filed a motion in limine to 4 exclude the testimony of Preston, challenging Preston’s opinions about the Trex 5 decking. Plaintiffs’ response is at docket 129.1 No reply was filed. At docket 126, Trex 6 filed a motion in limine to exclude Weller’s testimony, challenging his opinions related to 7 Trex decking. Plaintiffs’ response is at docket 128. No reply was filed. 8 9 II. BACKGROUND Plaintiffs filed suit against Ladder Defendants, Trex, and other entities on 10 May 21, 2012. Jurisdiction is based on 28 U.S.C. § 1332. Feuerstein was injured on 11 May 8, 2011, when his ladder, a Tricam AL-22-2 (“AL-22"), slipped out underneath him. 12 The AL-22 is an articulating ladder manufactured by Tricam and sold by Home Depot. 13 An articulating ladder is a three-part ladder, with an inner assembly and two flared outer 14 assemblies. The inner assembly is hinged to permit the ladder to be used as an A- 15 frame or a straight ladder. The outer assemblies can be positioned on various rungs of 16 the inner assembly to make the ladder longer or shorter, or they can be removed to 17 form part of a scaffold. Feuerstein was using the ladder in its straight configuration on 18 the day of the accident. He had the ladder set up on his deck so that he could reach 19 the overhanging roof. Feuerstein’s decking is manufactured by Trex, which was also 20 sold by Home Depot. 21 Plaintiffs plead claims under Arizona law for strict liability, breach of an implied 22 warranty, negligence, failure to warn, punitive damages, and Janet Shalwitz’s loss of 23 consortium, as well as a claim for violation of the Magnuson-Moss Warranty Act. 24 According to Plaintiffs, Feuerstein was using the AL-22 in accordance with applicable 25 instructions at the time of his accident. The gravamen of all Plaintiffs’ claims are that 26 27 28 1 The caption in docket 129 indicates that it relates to Trex’s motion to exclude Weller’s testimony, but upon review of the document it is clear that docket 129 addresses Preston’s testimony Thus, the court presumes the caption was an error. -2- 1 the ladder slipped out underneath him due to a defective design of the ladder’s feet and 2 a defective design of the surface of the Trex decking. Plaintiffs retained Preston and 3 Weller to investigate the accident. Preston considered the AL-22's set up on the day of 4 the accident and performed tests related to Trex decking. Weller considered the AL- 5 22's set up on the day of the accident and performed tests related to the ladder’s ability 6 to slip on the Trex decking. 7 III. DISCUSSION 8 The court has broad discretion when ruling on motions in limine.2 Ladder 9 Defendants and Trex request that the court exclude Plaintiffs’ two experts pursuant to 10 Rule 702 of the Federal Rules of Evidence. Rule 702 permits opinion testimony by an 11 expert as long as the witness is qualified and the witness’s opinion is relevant and 12 reliable.3 “[A] district court’s inquiry into admissibility is a flexible one.”4 The purpose of 13 the district court’s inquiry is “to screen the jury from unreliable nonsense opinions” and 14 not to “exclude opinions merely because they are impeachable.”5 The district court 15 functions as a “gatekeeper, not a fact finder.”6 16 Under Rule 702, a witness may be “qualified as an expert by knowledge, skill, 17 experience, training, or education.”7 “Expert opinion testimony is relevant if the 18 knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable 19 20 21 22 2 See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980) (“A district court is vested with broad discretion to make . . . evidentiary rulings conducive to the conduct of a fair and orderly trial.”). 23 3 24 4 25 Fed. R. Evid. 702. City of Pomona v. SQM N. Am. Corp., Nos. 12-55147, 12-55193, 2014 WL 1724505, at *3 (9th Cir. May 2, 2014). 26 5 Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). 27 6 Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (internal quotations omitted). 28 7 Fed. R. Evid. 702. -3- 1 if the knowledge underlying it has a reliable basis in the knowledge and experience of 2 the relevant discipline.”8 The district court’s task in screening a scientific opinion for 3 reliability was addressed in Daubert v. Merrell Dow Pharmaceuticals, Inc.9 and its 4 progeny. “The court must assess the expert’s reasoning or methodology, using 5 appropriate criteria such as testability, publication in peer-reviewed literature, known or 6 potential error rate, and general acceptance.”10 However, these factors are “not 7 definitive, and the trial court has discretion to decide how to test an expert’s reliability as 8 well as whether the testimony is reliable, based on the particular circumstances of the 9 particular case.”11 When non-scientific testimony is at issue, the “Daubert factors (peer 10 review, publication, potential error rate, etc.) simply are not applicable . . . .”12 The 11 reliability of such non-scientific testimony depends more “on the knowledge and 12 experience of the expert, rather than the methodology or theory behind it.”13 13 “It is the proponent of the expert who has the burden of proving admissibility.”14 14 Admissibility must be established by preponderance of the evidence.15 The party 15 presenting the expert has the burden to show that the expert’s findings are based on 16 “sound science” and that the expert’s methodology is capable of independent 17 validation.16 18 19 20 8 Primiano, 598 F.3d at 565 (internal quotations omitted). 9 509 U.S. 579 (1993). 21 10 Pomona, 2014 WL 1724505, at *3. 22 11 Primiano, 598 F.3d at 564 (internal quotations omitted). 23 12 24 Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004) (quoting United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2005)). 13 Id. (quoting Hankey, 299 F.3d at 1069) (emphasis in original). 26 14 Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 27 15 Daubert, 509 U.S. at 592 n. 10. 28 16 Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995). 25 -4- 1 A. Expert testimony of Herbert Weller 2 Ladder Defendants assert that Plaintiffs’ expert, Herbert Weller, is not qualified 3 to give expert opinions about Feuerstein’s accident. They argue that Weller does not 4 have the necessary experience, training, knowledge, or education in ladder design, 5 particularly articulating ladder design, or ladder accident reconstruction. They argue 6 that Weller’s qualifications are based only on self study and nominal safety certifications 7 and memberships. 8 9 Upon review of Weller’s affidavit and curriculum vitae, the court concludes that Weller is qualified to testify about ladder safety in general. In addition to his experience 10 using ladders in his prior profession as a professional painter, Weller has taken an 11 Occupational Safety and Health Administration (“OSHA”) stairways and ladder safety 12 course and a self-study correspondence course through the American Society of Safety 13 Engineers. He has been certified as a safety specialist through the World Safety 14 Organization. He has been asked to provide input in a few ladder safety studies and 15 has participated in at least one workshop involving ladder safety standards. Based on 16 these qualifications, the court concludes that he possesses more knowledge in ladder 17 safety than a layperson and can testify as an expert in general ladder safety. 18 The court recognizes that Ladder Defendants have raised legitimate questions 19 as to the depth and quality of Weller’s experience in ladder safety standards and ladder 20 testing. Indeed, while Weller’s affidavit states that he has “determined the causation of 21 hundreds of injuries sustained by members of the public,”17 he does not inform the court 22 as to how many of these investigations involved ladder accidents. He purports to be 23 fully versed on the applicable ladder standards—the American National Standards 24 Institute (“ANSI”) safety standards for ladders—but does not specify the number of 25 safety tests he has conducted. Moreover, he does not cite to a single case where he 26 was allowed to testify at trial as an expert in ladder accident reconstruction and safety 27 28 17 Doc. 95-3 at ¶ 9. -5- 1 standards. While these deficiencies have given the court pause, they reflect more on 2 the weight a fact-finder should give his testimony, rather than admissibility. Thus, at 3 this juncture, the court concludes that Weller is at least minimally qualified to discuss 4 the ladder accident at issue here. 5 However, the court concludes that Weller is not qualified to offer opinions about 6 the deficiencies in the labels and warnings related to the products in this case. 7 Plaintiffs, who have the burden to prove admissibility, provide no evidence that Weller 8 has had any training or education related to ladder warnings or instructions. Weller’s 9 declaration, however, suggests that he has experience in designing ladder warnings 10 and labels. Specifically, he states that he designed a ladder safety manual that is used 11 by Wal-Mart, and in support he refers to an exhibit that he attached to his declaration. 12 The exhibit, however, is only a questionnaire that Wal-Mart returned to Weller after he 13 mailed it to Wal-Mart regarding his “proposed feasibility study on the issue of ladder 14 safety.” He does not provide the manual or any other evidence to demonstrate that he 15 was involved in writing a ladder safety manual that Wal-Mart uses. Weller also claims 16 that he designed a ladder label, referred to as “Marking #5,” which is the label that 17 describes an acceptable method for approximating a safe ladder angle. Ladder 18 Defendants’ expert rebuts this claim: 19 20 21 22 [Weller] claims that he designed the label describing the procedure for setting the ladder at the proper angle. This is incorrect. The label was first published in the 1990 version of ANSI A14.2, long before [Weller] had any involvement with ANSI A14. The label is based upon the “fireman’s rule,” which is the method by which firemen have set their ladders. This rule goes back at least 50 years. . . . At no time has [Weller] had any input into the [ANSI A14] Labeling Task Force.18 23 Plaintiffs do not refute the defense expert’s statement and do not provide evidence to 24 show that Weller has been involved in the creation of any ladder warnings. Based on 25 Plaintiffs’ failure to meet their burden regarding Weller’s experience with product labels 26 and warnings, the court concludes that Weller is not qualified to provide expert 27 28 18 Doc. 85-7 at p. 9. -6- 1 testimony regarding effective ladder warnings or the deficiencies of the warnings related 2 to the products at issue in this case. 3 Ladder Defendants also argues that even if Weller is qualified to testify regarding 4 general ladder safety and ladder accidents, his opinions regarding the cause of 5 Feuerstein’s accident should be excluded because they are not reliable. Weller’s report 6 offers a variety of opinions related to Feuerstein’s ladder accident, such as the 7 appropriateness of the height, angle, and set up of the ladder at the time of the 8 accident. These opinions are in the realm of his general ladder knowledge and 9 expertise and are based on Feuerstein’s testimony about how he set up the ladder on 10 11 the day of the accident.19 Weller’s report also discusses tests he designed and ran to ascertain whether 12 the ladder improperly slipped out underneath Feuerstein. Ladder Defendants assert 13 that Weller’s technique to test his theory and the results derived therefrom are not 14 reliable, and any opinion derived from such tests should be excluded. Weller’s slip 15 tests are scientific in nature in that they were conducted to determine the amount of 16 force required to cause the accident ladder to slip on Trex decking. The court therefore 17 will consider the applicable Daubert factors. The applicable factors include whether the 18 technique Weller used is generally accepted as the proper method for measuring a 19 ladder’s resistance to slippage and whether the techniques he applied can be recreated 20 and retested. 21 22 23 19 24 25 26 27 28 Feuerstein stated in his deposition that he believes the ladder was about two or three rungs above the roofline at the time of the accident and that he used the appropriate method for setting the ladder angle on the day of the accident. Doc. 85-4 at pp. 8, 9 (Feuerstein’s deposition pp. 18, 23-24). Ladder Defendants argue that these are disputed facts and Weller cannot base his opinions on Feuerstein’s testimony. They rely primarily on photographs that Feuerstein had taken after the accident. Feuerstein disputes the significance of these photos, asserting that they were not meant to represent the exact placement and angle of the ladder at the time of the accident but were merely meant to be an approximation of where the ladder was set up at the time of the accident. Doc. 85-4 at p. 8 (Feuerstein’s deposition pp. 18-20). -7- 1 Weller admits that he modified the generally accepted slip test set forth in the 2 applicable safety standard—ANSI A 14.2—when he tested how the ladder performs on 3 Trex decking. Modification of the generally accepted test is not necessarily problematic 4 given that the generally accepted test requires tests on plywood, not Trex decking, but 5 Weller does not set forth sufficient evidence to show that all of his modifications and his 6 specific test design are standard in ladder accident investigation. While Weller states 7 that his investigative methods are generally approved and peer reviewed by the 8 Consumer Product Safety Commission (“CPSC”) and OSHA, Ladder Defendants’ 9 expert states that his “review of the CPSC and OSHA investigative manuals does not 10 indicate that they are peer reviewed . . . [and] [t]he investigation done by [Weller] is not 11 found in either of these guides.”20 Plaintiffs, who have the burden to demonstrate 12 admissibility, do not provide evidence in support of Weller’s contention that his 13 investigative methods and his test modifications are generally acceptable and in 14 accordance with the accident investigation protocol set forth by CPSC and OSHA. 15 More importantly, while Weller recorded his investigation and methodology so 16 that it could be subjected to review, his results cannot be independently verified given 17 significant errors that call into question the soundness of his methodology.21 Ladder 18 Defendants’ expert points out that Weller failed to measure the exact angle at which the 19 ladder was placed during his tests; did not have the scale vertical when he weighed the 20 test weights; did not hang the scale by its hook as designed but rather held the scale by 21 its body; held the gauge incorrectly during his force measurements; and improperly 22 applied the pullout force at the bottom of the ladder by pulling not just horizontally as 23 required by the accepted testing standard but also upward. These errors mean that the 24 weight on the ladder during Weller’s tests and the force he applied are actually 25 26 20 27 21 28 Doc. 85-7 at p. 9. Weller recorded his investigation and the video was submitted into the record as Exhibit C-16 to Plaintiffs’ opposition (doc. 95-3, doc. 98). It is also submitted into the record at doc. 100-4 at p. 58 (Weller’s declaration, Exhibit 16). -8- 1 unknown, and therefore, the results are not accurate and cannot be verified through 2 retesting. 3 Plaintiffs fail to put forth any evidence to counter Ladder Defendants’ expert or 4 otherwise argue why these errors do not fundamentally affect the results. Plaintiffs 5 argue instead that these issues should go to weight and not admissibility. Indeed, an 6 imperfect execution of a otherwise solid and accepted methodology is sufficient to pass 7 muster under Daubert.22 That is, minor errors in reasoning or execution should not 8 render an expert’s testimony inadmissible.23 But here, the court concludes that Weller’s 9 methodology has not been proven to be generally accepted, and the errors are 10 significant enough to make his entire analysis unreliable. Therefore, the court 11 concludes that any opinions Weller formed on the basis of his tests are inadmissible. 12 Trex also asks the court to exclude Weller’s testimony as it relates to Trex 13 decking. Although Weller was not designated as an expert in slip resistance, Trex 14 notes that Weller’s report contains one opinion regarding Trex decking. In his report, 15 Weller concludes that Trex decking has a manufacturing defect because it has no 16 warning labels regarding the use of a ladder on its surface. Given that the court has 17 concluded Weller is not qualified to testify regarding labels and warnings, his testimony 18 about the type of warning that should come with Trex decking is therefore inadmissible. 19 Furthermore, the court has already determined, in relation to the Ladder Defendants’ 20 motion, that any opinion Weller formed based on his slip tests is inadmissible given the 21 reliability problems noted above. 22 B. Expert testimony of Jay Preston 23 Ladder Defendants assert that Plaintiffs’ other expert, Jay Preston, is not 24 qualified to give expert testimony about Feuerstein’s ladder accident. They argue that 25 he does not have the necessary experience, skill, training, knowledge, or education in 26 27 22 Pomona, 2014 WL 1724505, at * 7. 28 23 Id. -9- 1 ladder design, particularly articulating ladder design, to opine about the ladder’s defects 2 or the causation of Feuerstein’s ladder fall. The court disagrees. Preston’s declaration 3 and curriculum vitae demonstrate that he is a qualified ladder safety specialist with 4 experience in ladder accident reconstruction. He has a degree in safety from the 5 University of Southern California, and his course work involved an emphasis on 6 products liability analysis and prevention. He has investigated hundreds of ladder 7 accidents. He is licenced by the state of California as a Registered Professional Safety 8 Engineer and teaches courses in safety engineering and ladder safety at the University 9 of Southern California. Given this education and experience, Preston is qualified to 10 give expert testimony regarding the safe and proper use of ladders. He may testify as 11 to the proper set up of a ladder and any problems he observed with Feuerstein’s AL-22. 12 He can testify as to what he observed when he set up Feuerstein’s ladder and discuss 13 how a ladder accident can occur when a ladder “walks” due to the fact that all of the 14 ladder’s feet are not solidly on the ground. Such an opinion is based on Preston’s 15 knowledge and expertise in ladder safety. 16 Trex does not dispute Preston’s qualifications to provide expert testimony on the 17 relevant issues. Trex instead argues that Preston’s expert opinions about the safety 18 and slip resistence of Trex decking are based on unreliable data. To gather his data 19 about the slip resistance of Feuerstein’s Trex decking, Preston used an English XL 20 Variable Incidence Tribometer (“VIT”). The VIT “measures . . . Slip Resistance factor 21 when the test surface is lubricated and static coefficient of friction . . . when the surface 22 is dry.”24 Trex does not dispute that the VIT is generally used to test slip resistance of a 23 material. Trex does not set forth evidence to show that Preston’s use of the VIT was 24 improper or deviated from the accepted protocols. Indeed, Trex does not dispute that 25 Preston is a certified VIT operator and that he was trained to use the device by its 26 inventor. Trex generally questions why Preston used a paper towel to wipe the surface 27 28 24 Doc. 124-1 at p. 7. -10- 1 of the deck before testing, stating that it is not part of the testing method and that it 2 could have contaminated the surface of the decking, but it does not cite to any expert 3 evidence or testing manuals to support this claim. In response, Plaintiffs filed a copy of 4 the VIT’s user guide which instructs a user to wipe the VIT’s test foot with a paper 5 towel, which suggests paper towels will not affect the results. 6 Plaintiffs have met their burden to prove the admissibility of Preston’s testimony 7 regarding Trex decking. The VIT Preston used to form his opinions about the slip 8 resistence of Trex decking is generally accepted as the proper device to use for slip 9 resistance testing. Trex does not provide any evidence to show that Preston made 10 significant errors or modifications that call into question the soundness of Preston’s 11 methodology. Moreover, given that Preston has the requisite training and knowledge 12 regarding how to use the VIT, the court has no reason to question his methodology. 13 Any concern about the variability of Preston’s results and how Preston interpreted those 14 results is a question of weight and not admissibility.25 15 IV. CONCLUSION 16 Based on the foregoing discussion, Ladder Defendants’ motions in limine at 17 dockets 84 and 86 are DENIED IN PART AND GRANTED IN PART as follows: 18 1) Weller is qualified as in expert in general ladder safety and his testimony 19 regarding Feuerstein’s use of the AL-22 on the day of the accident and any safety 20 problems he observed about the AL-22 is admissible. However, testimony about his 21 slip tests and the opinions derived from such tests are inadmissible. 22 2) Weller is not qualified as an expert in ladder labels and warnings. His 23 opinions regarding the labels and warnings associated with the products in this case 24 are inadmissible. 25 26 27 25 28 See Primiano, 598 F.3d at 564-65 (the focus of a Daubert examination “is not the correctness of the expert’s conclusions but the soundness of his methodology”). -11- 1 3) Preston is qualified as in expert in general ladder safety, and his testimony 2 regarding Feuerstein’s use of the ladder on the day of the accident and any safety 3 problems he observed about the ladder is admissible. 4 Trex’s motion in limine to exclude the testimony of Jay Preston at docket 124 is 5 DENIED, and its motion at docket 126 to exclude the testimony of Herbert Weller is 6 DENIED AS MOOT given the court’s ruling on the Ladder Defendants’ motion at 7 docket 84. 8 DATED this 6th day of June 2014. 9 10 11 /s/ JOHN W. SEDWICK SENIOR UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?