Mariscal v. Graco, Inc.

Filing 92

ORDER by Judge Thelton E. Henderson Granting in Part and Denying in Part 59 Motion in Limine and 60 Motion in Limine. (tehlc2, COURT STAFF) (Filed on 8/27/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSHUA MARISCAL,
Plaintiff,

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v.
GRACO, INC.,

Case No. 13-cv-02548-TEH
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS IN
LIMINE

Defendant.

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Due to the parties’ failure to follow the procedures set forth in the Pretrial Order,

United States District Court
Northern District of California

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the Court decided at the July 21, 2014 Pretrial Conference to allow the parties to file

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challenges to certain revised documents that complied with the requirements of the Pretrial

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Order no later than July 25, 2014, with objections due no later than July 30, 2014. July 22,

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2014 Pretrial Conference Minutes (Docket No. 63).

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On July 15, 2014, Plaintiff and Defendant filed motions in limine. Neither party,

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however, filed a timely written opposition to these motions. See Sept. 10, 2013 Pretrial

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Order at 6 (Docket No. 32) (requiring motions in limine to be filed no later than 21

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calendar days before the scheduled trial date, here July 15, 2014, and any written

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opposition to such motions to be filed no later than 14 calendar days before the trial date,

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here July 22, 2014). Plaintiff did not file any opposition, while Defendant filed an

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opposition to Plaintiff’s motion in limine on August 1, 2014 – ten days after the Pretrial

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Order’s deadline. Defendant did not explain or otherwise attempt to justify the late filing.

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As a result, it would be within the Court’s discretion to refuse to consider this untimely

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document and grant all motions in limine as unopposed.

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However, because the original trial date of August 5, 2014 has been rescheduled for

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January 27, 2015, the prejudice posed to the parties by counsels’ failure to meet the filing

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deadlines for these motions is significantly reduced. For this reason, the Court has decided

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to rule on the merits of the submitted motions. Nonetheless, the Court expresses its

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continued dissatisfaction and great concern with the parties’ inability to meet the

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established deadlines of this pre-trial process. The Court is quickly reaching the extent of

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its willingness to forgive these recurring infractions. Parties are hereby on notice that any

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additional non-compliance with the Court’s deadlines or other orders shall result in the

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imposition of monetary sanctions.

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After carefully considering the parties’ written motions in limine, and construing

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the other evidentiary objections as motions in limine in the interest of streamlining this

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process, the Court rules as follows:

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Stipulated Evidence

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Northern District of California

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The parties, by and through their counsel, have agreed to stipulate that the parties,

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their attorneys, and witnesses will not attempt to introduce into evidence or mention on the

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record or in the presence of the jury:

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1. Any recall or retrofit by Graco for unrelated products.
2. Information, statements, comments or suggestion that the
injury had anything to do with Mr. Mariscal’s marital
situation with Corey Mariscal.
3. Testimony by Mr. Mariscal about his future loss of
eyesight.
4. Insurance coverage for Graco.
5. Health insurance coverage for Mr. Mariscal’s injuries.
6. Past medical expenses in excess of the $78,500 in Kaiser’s
medical lien.
7. Testimony by Dr. Schwartz beyond what is expressed in his
written expert witness report, including future loss of
eyesight other than potentially from glaucoma.

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July 11, 2014 Joint Pretrial Conference Statement at 5 (Docket No. 54). Thus, this
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evidence is hereby EXCLUDED from trial.
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Defendant’s Motion in Limine No. 1
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Defendant’s Motion in Limine No. 1 seeks to exclude Plaintiff from introducing
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any evidence or testimony related to his claim for lost wages or diminished earning
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capacity because he failed to provide a “computation of each category of damages” during
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discovery, as required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii).1 See Def.’s

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Mot. at 1 (Docket No. 59). This motion is GRANTED.

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Rule 26(a)(1)(A)(iii) requires plaintiffs to provide a “computation of each category

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of damages,” as well as the “documents or other evidentiary material, unless privileged or

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protected from disclosure, on which each computation is based . . .” Here, Plaintiff failed

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to provide any computation of lost wages or diminished earning capacity. In response to

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interrogatories specifically asking for such information, Plaintiff responded that the

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amount of damages would be “according to proof at trial.” July 15, 2014 Pattee Decl., Ex.

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B at Int. No. 9 (Docket No. 59-3). Plaintiff also failed to produce documents in response
to Defendant’s request for documents showing income in the five years prior to this

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Northern District of California

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litigation. Pattee Decl., ¶¶ 5-6 (Docket No. 59-1). The time for discovery has since

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concluded.

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Under Rule 37(c)(1), “exclusion of evidence not disclosed is appropriate unless the

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failure to disclose was substantially justified or harmless.” Hoffman v. Constr. Protection

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Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008). Further, district courts have broad

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discretion to preclude the presentation of evidence not disclosed in discovery. Id. at 1180.

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To this effect, the court in Estate of Gonzalez v. Hickman held that even if the plaintiffs

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had timely disclosed that they would seek lost earnings at trial, the plaintiffs’ failure to

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disclose a computation of lost earning potential was alone sufficiently prejudicial to

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warrant exclusion because it denied defendants the opportunity to adequately conduct

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discovery. No. ED CV 05-00660 MMM, 2007 WL 3237635, at *5 (C.D. Cal. June 28,

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2007). See also In re Gorilla Companies, LLC, 454 B.R. 115, 120 (D. Ariz. Mar. 11,

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2011).
Here, Plaintiff has failed to provide any computation of lost income or diminished

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earning capacity in response to multiple discovery requests. The failure to disclose this

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evidence has denied Defendant the opportunity to adequately conduct discovery and

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All references to “Rule” or “Rules” hereinafter refer to the Federal Rules of Civil
Procedure, unless otherwise stated.
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prepare a defense on this claim. See Estate of Gonzalez, 2007 WL 3237635 at *5 (holding

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this to be sufficiently prejudicial). Moreover, without such evidence, Plaintiff can rely

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only on speculation to prove lost wages or diminished earning capacity. Because

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speculation cannot provide a reasonable basis for the computation of damages, the Court

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concludes that Plaintiff may no longer seek lost wages/diminished earning capacity in this

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case. See In re Gorilla Companies, LLC, 454 B.R. at 120 (finding general and conclusory

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evidence insufficient to provide a reasonable basis for computation of damages).

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The Court therefore GRANTS Defendant’s motion to exclude any evidence or
testimony at trial related to Plaintiff’s claim for lost wages or diminished earning capacity.

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United States District Court
Northern District of California

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Defendant’s Motion in Limine No. 2

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Defendant’s Motion in Limine No. 2 seeks to exclude from trial any evidence or

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testimony offered by Plaintiff’s expert witness, David Rondinone, other than information

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and opinions contained in Plaintiff’s Rule 26(a)(2)(B) expert disclosure dated March 25,

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2014. See Def.’s Mot. at 11 (Docket No. 59). Defendant seeks, in essence, confirmation

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of the extent of the Court’s prior exclusion of Mr. Rondinone’s untimely and improper

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supplemental expert opinions under Rule 37(c)(1). See June 26, 2014 Summary Judgment

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Order at 5-10 (Docket No. 49) (excluding evidence at summary judgment). In accordance

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with the Court’s ruling on summary judgment, this motion is GRANTED.

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Therefore, at trial, Mr. Rondinone may present the information and expert opinions

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properly disclosed in his March 25, 2014 Rule 26 expert disclosure, which include the

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following:

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(1) [The] Graco Sprayer was capable of generating 3000 psi
pressure;
(2) The method of pressure relief only functions when
mechanism [sic] is not clogged. The instructions offer two
methods to relieve pressure - turning the valve to “prime” and
triggering the gun. The instructions also foresee an event when
these actions do not relieve the pressure. They state “If you
suspect the spray tip or hose is clogged or that pressure has not
been relieved after following the steps above, VERY
SLOWLY loosen tip guard retaining nut or hose end coupling
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to relieve pressure gradually, then loosen completely.”
However, the design of the sprayer is such that if it is clogged,
there is no method of notifying the user that it is still under
pressure, and thus the user may not be aware that the system is
under pressure.

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(3) The mechanisms for pressure relief (the gun and the prime
valve) can get clogged if paint is left to dry in system, and
Graco had foreseen that paint may be left in system and create
clogs.

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(4) There is no mechanism to notify the operator that the
system is under pressure.

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(5) Following the instructions can present the operator with
hazardous conditions - (e.g. undoing a threaded joint when the
system is under pressure with paint debris mixed with water). .
..

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Summary Judgment Order at 7-8 (emphasis in Order) (Docket No. 49) (citing First Expert

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Opinion at 2:21-3:11 (Docket No. 41-7)).

United States District Court
Northern District of California

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Mr. Rondinone may not testify regarding any opinions stated in his May 22, 2014

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Declaration that were not previously disclosed in his March 25, 2014 Rule 26 expert

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disclosure. Compare Docket No. 42-1 with Docket No. 41-7. These excluded opinions

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include:

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4. In my professional opinion the airless paint sprayer in
question was defectively designed because, although
acknowledging that their design for relieving pressure might
not actually work to relieve pressure, Graco did nothing more
to design or incorporate into the design a devise [sic], such as a
gauge or digital readout that would tell the user that in fact the
pressure had not been relieved when the steps to relieve
pressure were followed.
5. That other models of Graco airless sprayers currently on the
market have pressure level digital readouts which clearly
advise the user that the sprayer is still pressurized and the level
of pressure. Graco, if they had chosen to do so, could have
easily incorporated this into their design of the sprayer in
question.
6. In my opinion, if Graco’s design had incorporated such a
device, this accident would not have occurred because Mr.
Mariscal would have been alerted to the fact that the sprayer
was still pressurized.
7. It is my opinion that the warnings, both on the sprayer and
contained in the operations manual are inadequate and with
specific regard to warning of the need of protective equipment,
i.e., safety glasses when “Relieving Pressure” as described on
page 9 of the manual such a warning is nonexistent. In
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Northern District of California

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addition, the “hang tag” identified as Exhibit 2 to Mr. Rivord’s
declaration was not on the sprayer in question and even if it
had been it does not warn of the risk of pressure not being
relieved nor does it refer to the need to wear “Personal
Protective Equipment.” If Graco believed that eye protection
was needed when performing the steps to relieve pressure it
should have included that warning on page 9 of the manual as
they did on other pages of the manual such as page 10.
8. In my opinion had adequate warnings been included in the
operations manual this accident may or likely would not have
occurred because Mr. Mariscal who, according to his
deposition, was in the habit of wearing safety glasses, would
have done so in this case.
9. In my opinion the warnings attached to Mr. Rivord’s
declaration are inadequate and do not warn at all about the
hazards of high pressure as it relates to the facts of this
accident. If fact, said warnings say nothing whatsoever about
wearing personal protective equipment. Finally, Graco’s
“Quick Start-Up Guide” is totally inadequate and does not in
any way warn of the need to wear “Personal Protective
Equipment.”

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Summary Judgment Order at 8-9 (Docket No. 49) (citing Second Expert Opinion, ¶¶ 4-9

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(Docket No. 42-1)). Thus, Mr. Rondinone: (1) may testify that there is no mechanism to

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notify the user that the sprayer is under pressure, but may not opine that “the airless paint

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sprayer in question was defectively designed” because of a failure to incorporate a pressure

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gauge or digital readout, and that such a design been incorporated, the accident would not

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have occurred; (2) may not testify that other models of Graco airless sprayers currently on

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the market have pressure level digital readouts that advise the user that the sprayer is still

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pressurized and the level of pressure; and (3) may not offer expert opinions as to the

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inadequacy of Graco’s warnings.

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Plaintiff’s Motion in Limine No. 1
Plaintiff’s Motion in Limine No. 1 seeks to exclude evidence of Defendant’s

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compliance with any trade industry standard or customs with respect to the design of
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Defendant’s airless paint sprayer because such evidence of reasonable care is irrelevant to
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the question of strict liability. See July 15, 2014 Pl.’s Mot. at 1 (Docket No. 60). While
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Defendant failed to timely oppose this motion in limine, the Court GRANTS IN PART and
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DENIES IN PART Plaintiff’s motion on the merits.
Evidence of compliance with industry customs or standards is inadmissible in strict

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product liability cases predicated on a consumer expectations theory of liability. Buell-

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Wilson v. Ford Motor Co., 141 Cal. App. 4th 525, 545 (2006), rev’d on other grounds, 550

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U.S. 931 (2007). Because strict liability actions under this theory do not involve the

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question of whether the defendant exercised reasonable care, evidence of industry practice

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or custom is irrelevant. Id.; see also Foglio v. W. Auto Supply, 56 Cal. App. 3d 470, 477

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(1976) (same). This evidence is therefore inadmissible and irrelevant to whether

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Defendant’s paint sprayer was defectively designed such that it failed to perform as the

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United States District Court
Northern District of California

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ordinary consumer would expect.
However, Defendant is correct that more recent authority has established that

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evidence of compliance with industry customs or standards is relevant under the risk-

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benefit test of a design defect claim and may be taken into account “as part of the design

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defect balancing process.” August 1, 2014 Def’s Opp’n to Pl’s Mot. in Limine No. 1

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(Docket No. 87); see Howard v. Omni Hotels Management Corp., 203 Cal. App. 4th, 425-

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26 (2012) (“When the plaintiff alleges strict product liability/design defect, any evidence

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of compliance with industry standards, while not a complete defense, is not ‘irrelevant,’

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but instead properly should be taken into account through expert testimony as part of the

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design defect balancing process.”).

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Additionally, compliance with industry customs or standards is relevant to

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Plaintiff’s negligent failure to warn claim, which also survived summary judgment. See

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June 26, 2014 Order on Summary Judgment Mot. at 22-23 (Docket No. 49). A negligent

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failure to warn claim “requires a plaintiff to prove that a manufacturer or distributor did

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not warn of a particular risk for reasons which fell below the acceptable standard of care,

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i.e., what a reasonably prudent manufacturer would have known and warned about.”

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Anderson v. Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 1002 (1991). Consequently,

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custom or practice may be probative of reasonableness in a negligence action. Grimshaw

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v. Ford Motor Co., 119 Cal. App. 3d 757, 803 (1981).
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Because compliance with industry customs or standards is admissible as it relates to

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the application of the risk-benefit test for Plaintiff’s design defect claim, as well as

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Plaintiff’s claim of negligent failure to warn, Plaintiff’s proper recourse is a limiting

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instruction to the jury and not complete exclusion. Cal. Evid. Code § 355 (“When evidence

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is admissible as to one party or for one purpose and is inadmissible as to another party or

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for another purpose, the court upon request shall restrict the evidence to its proper scope

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and instruct the jury accordingly.”). See also Daggett v. Atchison, T. & S. F. Ry. Co., 48

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Cal. 2d 655, 665 (1957) (“if evidence is admissible for any purpose it must be received,

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even though it may be highly improper for another purpose. In jury trials, however, the
other party is entitled to an instruction limiting the purpose for which the evidence may be

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considered.”).

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Accordingly, Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.

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While Plaintiff is not entitled to a blanket exclusion of evidence relating to industry

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standards or customs, Defendant may not use any of this evidence with respect to the

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consumer expectation theory of strict liability design defect. Defendant may, however,

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rely on this evidence with respect to Plaintiff’s negligent failure to warn claim and the

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application of the risk-benefit test to Plaintiff’s strict liability design defect claim. To this

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effect, Plaintiff may seek at trial a limiting instruction restricting Defendant’s use of this

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evidence in accordance with the Court’s ruling.

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Defendant’s Objection to Plaintiff’s Trial Exhibits

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Defendant objects to the introduction of Plaintiff’s Exhibits 1, 2, 4 (which are

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excerpted pages from the Graco Operations Manual), and Exhibit 11 (which is a single

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page containing product unit costs and margins for various models of Graco sprayers). See

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July 30, 2014 Def’s Objections to Pl’s Trial Ex. (Docket No. 79). Defendant argues that

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introduction of these excerpted documents without the context of the entire document

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would “give[] the jury a false impression.” Federal Rule of Evidence 106 provides that

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“[i]f a party introduces all or part of a writing or recorded statement, an adverse party may
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require the introduction, at that time, of any other part – or any other writing or recorded

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statement – that in fairness ought to be considered at the same time.” Here, to avoid the

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risk of confusion or prejudice, fairness requires that Plaintiff provide the appropriate

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context of these documents if introduced during trial. However, without access to these

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documents in their entirety, the Court cannot rule on Defendant’s objections. In light of

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Federal Rule of Evidence 106, the Court advises the parties to meet and confer to

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determine whether they can come to an agreement about the appropriate extent of the

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evidence necessary to provide adequate context. If the parties cannot reach agreement,

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Defendant may provide the complete documents to the Court and renew its objection prior

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to the introduction of these exhibits at trial.

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Northern District of California

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Defendant’s Objection to Plaintiff’s Designation of Deposition Testimony

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Defendant objects to a number of Plaintiff’s deposition designations for

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presentation to the jury; these designations are drawn from Douglas Rivord’s March 19,

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2014 and July 14, 2014 depositions. See July 30, 2014 Def’s Objections (Docket No. 82).

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Without access to the full transcripts of these depositions, the Court cannot rule on

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Defendant’s objections. In light of Federal Rule of Evidence 106, the Court advises the

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parties to meet and confer to determine whether they can come to an agreement about the

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appropriate scope of designation to provide adequate context. If the parties cannot reach

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agreement, Defendant may provide the complete deposition transcripts to the Court and

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renew its objection prior to the introduction of the Rivord deposition excerpts at trial.

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Plaintiff’s Objection to Testimony of Graco’s “Corporate Representative”

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Plaintiff objects to the proposed testimony of Graco’s “corporate representative” –

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Angela Redland Speakens – on the basis that Graco failed to disclose her either as a

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potential witness or expert witness until July 25, 2014 in Defendant’s list of trial witnesses.

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July 29, 2014 Pl’s Objections to Def’s Corp. Rep. (Docket No. 78). While Defendant

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informed the Court on August 27, 2014 that it no longer intends to use Ms. Speakens at
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trial, the Court nonetheless rules on this motion to ensure that her testimony is excluded.
Ms. Speakens’ proposed testimony runs afoul of the Court’s Order for Pretrial

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Preparation, which explicitly required Graco to disclose the identity of its expert witnesses

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no later than April 3, 2014, and gave fair and unequivocal notice that “[f]ailure to comply

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with these deadlines will prevent a witness from testifying as an expert.” Sept. 10, 2013

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Order for Pretrial Preparation at 3 (Docket No. 32). Graco acknowledges the expert nature

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of Ms. Speaken’s proposed testimony by noting that not only will she “provide rebuttal

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testimony in response to Plaintiff’s expert witness,” but also that her proposed testimony

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includes many of the same topics to be covered by Graco’s Product Safety and Compliance
Manager, expert witness Douglas Rivord. Compare July 25, 2014 Def.’s List of Trial

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Northern District of California

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Witnesses, ¶ 1 (Rivord) with ¶ 3 (Speakens) (Docket No. 72).

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Additionally, given that the scope of her proposed testimony extends beyond

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“impeachment” only, Graco’s failure to identify Ms. Speakens as an individual likely to

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have discoverable information as required by Rule 26(a)(1)(A)(i) violates Rule 37(c)(1).

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In light of this late introduction of a new expert witness, and given that Plaintiff did

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not have an opportunity to depose her before the close of discovery, allowing her

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testimony at trial would prejudice Plaintiff. Thus, her testimony is properly excludable

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under Rule 37 as well. See Fed. R. Civ. P. 37(c)(1) (providing for exclusion of such

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information unless the failure to disclose was “substantially justified or is harmless”).

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Thus, the Court EXCLUDES Ms. Speakens from testifying at trial.

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Plaintiff’s Objection to Expert Testimony of Adam Feia

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Plaintiff challenges the anticipated testimony of Defendant’s expert, Adam Feia.

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Mr. Feia is a Senior Health and Safety Specialist for Graco and is expected to testify that

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“proper eye protection would have protected Mr. Mariscal’s eyes from injury given the

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type of release of air and liquid pressure that the Graco sprayer produces.” July 25, 2014

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Def’s List of Trial Witnesses at 2 (Docket No. 72); see also May 12, 2014 Expert Report

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of Adam Feia (Docket No. 41-6).
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Plaintiff seeks to exclude Mr. Feia’s expert testimony on the grounds that Mr. Feia

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is unqualified to opine on consumer safety, his opinion does not relate to a fact in issue,

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and an application of the Daubert factors mandates exclusion of his testimony. July 23,

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2014 Letter Brief (Docket No. 65). Conversely, Defendant opposes the exclusion on the

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basis that Mr. Feia’s training and experience in employee health and safety qualifies him to

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offer an expert opinion on the role protective eyewear plays in preventing an injury caused

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by particulate or pressure. July 30, 2014 Def’s Letter Brief (Docket No. 84). Defendant

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further contends that Plaintiff’s objections to Mr. Feia’s testimony should go to the weight

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of his testimony, and not its admissibility. Finally, Defendant argues that the Daubert
factors are largely inapplicable in this case because Mr. Feia’s opinion does not implicate

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Northern District of California

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any novel, experimental, or new testing or scientific methodology.

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The district court holds a “gatekeeping” role with respect to the admission of expert

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testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). In

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determining such admissibility, Federal Rule of Evidence 702 allows a witness that is

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“qualified as an expert by knowledge, skill, experience, training, or education” to offer

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opinion or other testimony only if:

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(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; (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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In applying these factors, it is a proper exercise of the Court’s discretion to exclude witness
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testimony that is based on “unsupported assumptions and unsound extrapolation.”
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McGlinchy v. Shell Chem Co., 845 F.2d 802, 807 (9th Cir. 1988).
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The Court’s application of Rule 702 to the proposed testimony of Mr. Feia reveals
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that he is insufficiently qualified to testify as an expert in this case. While Mr. Feia
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adequately possesses “knowledge, skill, experience, training, [and] education” in the area
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of workplace safety, he holds none of these qualifications in the area of consumer safety,
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which is the matter at issue in this case. See July 23, 2014 Letter Brief, Ex. A at 15 (Feia

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Dep.) (Docket No. 65) (confirming that Mr. Feia has no background in consumer safety).

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While Defendant claims that “the Plaintiff’s role as a consumer versus an employee in an

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industrial setting is irrelevant” because “human eyeballs are alike,” Mr. Feia’s deposition

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reveals that his expert opinion is based upon a series of assumptions that are only

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reasonable within an environment involving individuals highly experienced with

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workplace safety, and therefore does not reflect the circumstances of this case. See id. at

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27-29, 47 (explaining that Mr. Feia’s understanding of the term “protective eyewear” as it

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relates to his testimony is defined as ANSI-rated, properly fitting, OSHA-compliant
glasses - but that he has no basis for believing that an ordinary consumer would share this

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understanding). Because the fact in dispute relative to Mr. Feia’s testimony is whether an

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ordinary consumer such as Plaintiff would be spared injury through the use of ‘protective

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eyewear,’ Mr. Feia’s testimony is unlikely to help a trier of fact understand the evidence or

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determine a fact in issue, as required by Rule 702(a).

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Mr. Feia’s proffered testimony similarly falls short of the remaining subparts of

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Rule 702, as his opinion is not based on the reliable application of reliable principles and

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methods to sufficient facts or data. See Fed. R. Evid. 702(b)-(d). The absence of any

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substantial factual basis for Mr. Feia’s testimony is immediately dispositive. Mr. Feia

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admits that he does not know, among other things: the level of protection provided by

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various brands of safety glasses, id. at 16; the extent of protection provided by OSHA-

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compliant safety glasses, id. at 29; the level of pressure involved in Plaintiff’s incident,

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id.at 23; the actual mode or specific cause of Plaintiff’s injury, id. at 25-26; or what type of

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injuries Plaintiff would have incurred, if any, had he been wearing OSHA-compliant safety

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glasses, id. at 45. Instead, his opinion is based solely upon his personal experience with

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workplace safety in an industrial environment. Id. at 33, 46. Based on this lack of

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sufficient facts or data, and the Court’s resulting conclusion that Mr. Feia’s testimony is

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based upon “unsupported assumptions and unsound extrapolations,” the Court is

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convinced that Mr. Feia is unqualified to testify as an expert in this case. See McGlinchy,
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845 F.2d at 807. Therefore, Plaintiff’s motion to exclude Mr. Feia’s expert testimony is

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GRANTED.

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IT IS SO ORDERED.

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Dated: 8/27/2014

_____________________________________
THELTON E. HENDERSON
United States District Judge

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United States District Court
Northern District of California

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