Copelan v. Techtronics Industries Co., Ltd. et al
Filing
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ORDER granting Defendants' 28 Motion to Preclude Testimony of Dr. Gass; denying Defendants' 29 Motion to Preclude Testimony of Darry Robert Holt; denying Defendants' 30 Motion to Preclude Testimony of Kelly Mehler. Signed by Judge Cynthia Bashant on 4/24/2015. (jah)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHARLES COPELAN,
Plaintiff,
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Case No. 12-cv-01285-BAS(MDD)
v.
TECHTRONICS INDUSTRIES,
CO., LTD., ET AL.
Defendants.
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ORDER:
(1) GRANTING DEFENDANTS’
MOTION TO PRECLUDE
TESTIMONY OF DR. GASS
(ECF NO. 28);
(2) DENYING DEFENDANTS’
MOTION TO PRECLUDE
TESTIMONY OF DARRY
ROBERT HOLT (ECF NO.
29); AND
(3) DENYING DEFENDANTS’
MOTION TO PRECLUDE
TESTIMONY OF KELLY
MEHLER (ECF NO. 30)
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Pending before the Court are motions filed by defendants One World
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Technologies, Inc. and Home Depot U.S.A., Inc. (collectively “Defendants”) to
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preclude the testimony of Plaintiff’s non-retained expert Dr. Stephen F. Gass, and
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retained experts Darry Robert Holt and Kelly Mehler. (ECF Nos. 28, 29, 30.)
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Plaintiff filed oppositions to the motions. The Court held a hearing on the motions
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on April 21, 2015.
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For the reasons set forth below, the Court (1) GRANTS Defendants’ motion
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to preclude the testimony of Dr. Stephen Gass (ECF No. 28); (2) DENIES
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Defendants’ motion to preclude the testimony of Darry Robert Holt (ECF No. 29);
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and (3) DENIES Defendants’ motion to preclude the testimony of Kelly Mehler
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(ECF No. 30).
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I.
BACKGROUND
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On November 7, 2011, Charles Copelan (“Copelan”) commenced this
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personal injury action in San Diego County Superior Court. On January 25, 2012,
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Copelan filed an amended complaint in San Diego Superior Court alleging, among
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other things, negligence and strict liability for design defects. The action was
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removed to federal court on May 25, 2012. (ECF No. 1.)
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This action stems from an incident that occurred on December 21, 2009,
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when Copelan used a Ryobi Portable Table Saw Model BTS16 (“Ryobi Saw”) to
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cut a piece of bamboo flooring. (ECF No. 28 at 2.) The Ryobi Saw failed to
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function, causing injury to Copelan’s left, non-dominant hand. (Id.; ECF No. 1.)
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The Ryobi Saw is a small, benchtop saw designed, manufactured, and sold
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by Defendants. (Id.) It weighs less than 60 lbs. and sells for less than $200. (Id.)
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The Ryobi Saw purchased by Copelan came equipped with a splitter/mounted
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guard consisting of three pieces – a splitter (a piece of metal sitting behind the
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blade), a hood guard which is attached to the splitter, and anti-kickback pawls
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which are also attached to the splitter. (Id.) The supplied blade guard had been
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removed at some point prior to Copelan’s accident. (Id. at 2-3; ECF No. 34 at 9.)
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Copelan alleges the Ryobi Saw that caused his injuries was defective.
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Central to Plaintiff’s case is the contention that the Ryobi Saw was defectively
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designed because it did not include a flesh detection braking technology referred to
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as “SawStop,” which was invented by Dr. Stephen Gass. (ECF No. 28 at 3; ECF
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No. 28-2 at 12; ECF No. 34 at 11.) SawStop “is a contact detection system that
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works by recognizing differences between the electrical properties of wood and a
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person. The system generates an electrical signal onto the blade, and then monitors
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that signal for changes caused by contact with a person’s body. When the system
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detects contact with a person’s body it releases a block of aluminum or plastic into
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the teeth of the saw blade to stop the blade from spinning.” (ECF No. 28 at 3; see
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also ECF No. 28-2 at 13, ¶¶ 3-6.)
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On March 27, 2015, the Court granted United States Trustee Richard
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Kipperman’s motion to substitute into this case as the plaintiff. Therefore, the
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action is currently being pursued by Mr. Kipperman (hereinafter referred to as
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“Plaintiff”).
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On January 10, 2014, Copelan served his Federal Rule of Civil Procedure
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26(a)(2) disclosures designating Robert Holt and Kelly Mehler as retained experts,
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and Dr. Stephen Gass as a non-retained expert. (See ECF No. 28-2 at 22-25.)
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Defendants now move to preclude the testimony of Plaintiff’s experts. (ECF Nos.
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28, 29, 30.)
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II.
LEGAL STANDARD
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Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
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testimony. Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir.
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2014). Rule 702 provides that a witness “qualified as an expert by knowledge, skill,
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experience, training, or education may testify in the form of an opinion or otherwise
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if”:
(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;
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(b)
the testimony is based on sufficient facts or data;
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(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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Fed. R. Evid. 702. Under Rule 702, expert testimony must be both relevant and
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reliable. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 462 (9th Cir.
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2014). Relevancy simply requires that “[t]he evidence . . . logically advance a
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material aspect of the party’s case.” Cooper v. Brown, 510 F.3d 870, 942 (9th Cir.
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2007). Reliability requires that an expert’s testimony “have a reliable basis in the
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knowledge and experience of his discipline.” Estate of Barabin, 740 F.3d at 462
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(quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999)).
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The courts are not concerned with the “correctness of the expert’s
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conclusions but the soundness of his [or her] methodology.”
Primiano v. Cook,
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598 F.3d 558, 564 (9th Cir. 2010) (quoting Daubert v. Merrell Dow
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Pharmaceuticals, Inc., 43 F. 3d 1311, 1318 (9th Cir. 1995)); see also Ellis v. Costco
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Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (A court is not required “to
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admit or to exclude evidence based on its persuasiveness;” but rather “to admit or
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exclude evidence based on its scientific reliability and relevance.”). “For scientific
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opinion, the court must assess the reasoning or methodology, using as appropriate
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such criteria as testability, publication in peer reviewed literature, and general
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acceptance, but the inquiry is a flexible one.” Primiano, 598 F.3d at 564. “Shaky
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but admissible evidence is to be attacked by cross examination, contrary evidence,
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and attention to the burden of proof, not exclusion.” Id.; see also Daubert v.
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Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 595-96 (1993).
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The duty falls upon the district court to act “in a gatekeeping role, to assess
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whether the reasoning or methodology underlying the testimony is valid and
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whether that reasoning or methodology properly can be applied to the facts in
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issue.” Ollier, 768 F.3d at 860 (quoting Daubert, 509 U.S. at 592-93) (internal
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quotation marks omitted); see also Ellis, 657 F.3d at 982 (“[T]he trial court must act
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as a “gatekeeper” to exclude junk science that does not meet Federal Rule of
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Evidence 702’s reliability standards by making a preliminary determination that the
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expert’s testimony is reliable.”). The party seeking to offer the testimony bears the
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burden of establishing its admissibility. In re ConAgra Foods, Inc., 302 F.R.D.
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537, 549 (C.D. Cal. 2014) (citations omitted).
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III.
DISCUSSION
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A.
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Defendants seek to preclude the expert testimony of Plaintiff’s non-retained
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expert, Dr. Stephen Gass. (ECF No. 28.) At the hearing on Defendants’ motions,
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Plaintiff’s counsel represented that, at this point in time, Plaintiff does not expect
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Dr. Gass will testify at trial in this matter. (See also ECF No. 63.) Because the
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issue is presently moot, the Court GRANTS Defendants’ motion to preclude the
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testimony of Dr. Gass. However, the Court’s ruling does not preclude the parties
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Dr. Stephen Gass
from raising the issue again if Plaintiff later decides to call Dr. Gass.
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B.
Robert Darry Holt
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Defendants seek to preclude the expert testimony of Robert Darry Holt on the
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grounds Mr. Holt’s “proposed testimony is speculative, irrelevant, and unreliable
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given the particular facts of this case.” (ECF No. 29 at 1.) Specifically, Defendants
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seek to preclude the expert testimony of Mr. Holt for the following reasons:
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First, Defendants contend Mr. Holt’s opinion that the Ryobi Saw “is unsafe
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because it lacks a riving knife independent of the guard” should be excluded
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because Mr. Holt “can only speculate that the lack of an independent riving knife
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played any role in [Copelan’s] accident.”
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testimony on this point is not likely to assist the jury. (Id.)
(Id. at 4.)
Therefore, Mr. Holt’s
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Second, Defendants contend Mr. Holt’s opinion the Ryobi Saw is defective
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because the included guard is not user-friendly is irrelevant because “it is
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undisputed that the supplied guard had been removed prior to [Copelan] using the
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saw” and Mr. Holt “concedes that the supplied blade guard could have been used
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for the work he was performing.” (Id. at 5.)1
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Plaintiff disputes the characterization of this proposed testimony,
which is set forth at ECF No. 29-2 at 10. (See ECF No. 34 at 9-10.) Plaintiff
contends Mr. Holt will opine that the absence of the guard was a product of the
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Third, Defendants contend Mr. Holt’s testimony that the injury to Copelan,
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more probably than not, would have been less severe using a saw with SawStop
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technology than the injuries Copelan actually sustained, lacks foundation and is
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pure speculation because “the testimony regarding the circumstances of [Copelan’s]
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accident is ‘imperfect’” and Mr. Holt does not know the angle or speed Copelan’s
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hand approached the blade at the time of his accident. (Id. at 6.) Because Mr. Holt
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lacks this information, Defendants contend his testimony on the topic is irrelevant.
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Lastly, Defendants contend Mr. Holt is not qualified to opine that the Ryobi
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Saw is defective for lack of adequate warnings, and moreover, “there is no evidence
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the lack of any warnings caused or contributed to [Copelan’s] accident.” (Id. at 6-
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7.)
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As an initial matter, during the hearing on this matter, Plaintiff’s counsel
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confirmed Mr. Holt will not be testifying regarding warnings or the economic
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feasibility of incorporating SawStop (or any other flesh detection technology) on
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the Ryobi Saw at issue. (See ECF No. 34 at 12.) Mr. Holt is therefore precluded
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from testifying on these matters.
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The parties do not dispute that Mr. Holt is qualified “by knowledge, skill,
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experience, training, or education” to opine on the remaining issues, and the Court
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agrees. Mr. Holt is a “mechanical engineer and a licensed professional engineer
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with approximately ten years[’] experience in industry in a variety of production,
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maintenance and manufacturing and process development engineering positions,
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and approximately 39 years[’] experience as a consulting engineer evaluating the
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safety design and condition of hundreds of machines and products of all types,
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including table saws.” (See ECF No. 29-2 at 8.) In the course of his work, Mr.
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Holt has tested and examined all kinds of table saws and is familiar with the Ryobi
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Saw. (ECF Nos. 34 at 2; 34-3 at 6.) In addition, Mr. Holt has developed a
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defective design. (Id. at 9.)
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mechanism for incorporating a riving knife onto a standard table saw and has run
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tests on saws equipped with SawStop technology and analyzed SawStop prototypes
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to gauge the technology’s efficacy. (Id.; ECF No. 34-3 at 6) Moreover, other
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courts have found Mr. Holt qualified “to opine regarding the mechanics of the
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[Ryobi Saw’s] blade-guarding system and the risk-hazard analysis that is a standard
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feature of the product design process.” (Id. at 2-3; ECF No. 34-3 at 7.)
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Rather than disputing Mr. Holt’s qualifications, Defendants dispute whether
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Mr. Holt’s opinions are relevant and reliable. Based on the papers submitted,
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arguments heard on the motions, and offers of proof, the Court finds Mr. Holt’s
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proposed testimony on the issues raised by Defendants to be relevant to this case.
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The proposed testimony logically advances material aspects of Plaintiff’s case. See
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Cooper, 510 F.3d at 942; Fed. R. Evid. 702(a). In addition, the Court finds Plaintiff
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has demonstrated Mr. Holt’s testimony is based on sufficient facts or data, is the
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product of reliable principles and methods, and Mr. Holt has reliably applied his
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principles and methods to the facts of this case. See Fed. R. Evid. 702(b)-(d).
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To the extent Defendants disagree with Mr. Holt’s conclusions or factual
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assumptions, Defendants may properly attack Mr. Holt’s testimony by cross
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examination and contrary evidence. See Primiano, 598 F.3d at 564; Daubert, 509
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U.S. at 595-96. Whether Mr. Holt’s conclusions or factual assumptions should be
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accepted are issues bearing on the weight of his testimony, rather than on its
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admissibility. See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n. 5 (9th Cir.
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1987) (“The weakness in the underpinnings of [expert] opinions may be developed
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upon cross-examination,” as “such weakness goes to the weight and credibility of
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the testimony” as opposed to its admissibility. (citations omitted)); In re Toyota
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Motor Corp. Hybrid Brake Mktg., Sales Practices and Prods. Liab. Litig., No.,
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MDL 10-02172, 2012 WL 4904412, at *3 (C.D. Cal. Sept. 20, 2012) (finding
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whether an expert’s reasonable assumptions are true and whether his opinions
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should be accepted are issues going to the weight of his testimony and report and
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not to their admissibility); McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th
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Cir. 2000) (“[An] expert’s conclusions regarding causation must have a basis in
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established fact and cannot be premised on mere suppositions. An expert’s opinion,
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where based on assumed facts, must find some support for those assumptions in the
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record. However, mere weaknesses in the factual basis of an expert witness’
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opinion bear on the weight of the evidence rather than on its admissibility.”
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(internal citations, quotation marks, and alternations omitted)).
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For the foregoing reasons, Defendants’ motion to preclude Mr. Holt’s
testimony (ECF No. 29) is DENIED.
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C.
Kelly Mehler
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Defendants seek to preclude the expert testimony of Kelly Mehler on the
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grounds Mr. Mehler is not qualified to offer expert opinions that would assist the
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jury. (ECF No. 30 at 1.) Specifically, Defendants argue Mr. Mehler is not an
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engineering or design expert and therefore he cannot opine that the Ryobi Saw is
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defectively designed because “(1) the blade guard is insufficient to protect the user,
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(2) the rip fence is defective, and (3) the [Ryobi Saw] does not include flesh-
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detection technology.” (See id. at 2; see also ECF No. 33-7 at ¶ 6.) Defendants
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further argue Mr. Mehler’s proposed testimony is unreliable because it is not
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supported by any accepted engineering methodology. (Id.)
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At the hearing on Defendants’ motions, Plaintiff stated Mr. Mehler will not
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be testifying regarding flesh detection technology and withdrew Mr. Mehler’s
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proposed testimony on that issue. (See also ECF No. 33 at 8.) Mr. Mehler is
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therefore precluded from testifying regarding any flesh detection technology,
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including SawStop.
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Concerning Mr. Mehler’s qualifications, Defendants argue Mr. Mehler is
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nothing more than a talented woodworker and user of the table saws, and therefore
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is not qualified to testify about the design of the blade guard and the rip fence. The
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Court disagrees. Mr. Mehler majored in Industrial Arts Education at Berea College
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and founded a custom furniture shop in 1978, where he designed and made
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furniture for individuals until 2004. (ECF No. 33-7 at ¶ 2.) Between 1995 and
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2007, Mr. Mehler spent an increasing amount of time teaching and writing about
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woodworking, primarily table saw safety. (Id.) He has taught table saw workshops
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for employees and staff of Black & Decker and Delta, as well as taught numerous
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table saw safety seminars at trade shows and schools, and for manufacturers,
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schools, guilds, and staff members of woodworking publications. (Id. at ¶¶ 2-4.) In
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his safety demonstrations, Mr. Mehler focuses on kickback and blade guarding.
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(Id. at ¶ 5.) In 2004, Mr. Mehler opened a woodworking school in Kentucky, in
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which he incorporates table saw safety in his classes. (Id. at ¶¶ 2-3.)
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Mr. Mehler has also written magazine articles on various aspects of table
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saws, including articles on kickbacks, blade covers, and table saw safety issues, and
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authored books and produced videos on table saws. (Id. at ¶ 3; see also ECF No.
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30-2 at 17-18.) In addition, beginning in 2001, Mr. Mehler served on the ad-hoc
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working group at Underwriters Laboratory and the Standards Technical Panel for
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improving blade guarding on table saws, and consulted with Black and Decker
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Company on the development of the Dewalt 744 and 746 table saws. (Id. at ¶ 3.)
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Mr. Mehler is very familiar with nearly all table saws manufactured in the United
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States, as well as European-manufactured models sold in this country, and has
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served as a consultant in dozens of table saw personal injury lawsuits. (Id.; see also
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ECF No. 30-2 at 19-21.)
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Rule 702 provides that a witness may be “qualified as an expert by
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knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. While Mr.
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Mehler does not have a safety design or engineering degree, based on the foregoing,
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the Court finds his knowledge, skill, experience, and training qualify him as an
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expert to testify to the following: (1) the blade guard was of defective design and
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therefore insufficient to protect the user; and (2) the rip fence is defective, as it does
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not consistently lock parallel to the saw blade, increasing the likelihood of a
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dangerous kickback event. (See ECF No. 33-7 at 4, ¶ 6; ECF No. 30-2 at 8.)
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Defendants also argue Mr. Mehler’s proposed testimony is unreliable
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because it is not supported by any accepted engineering methodology. (ECF No.
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30 at 7-8.)2 Mr. Mehler explains the basis for his opinions in his report. (See ECF
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No. 30-2 at 9-14.) His opinions are based on a reconstruction and review of the
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facts of this case, and his extensive use and study of table saws with the Ryobi Saw
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guard design, interaction with users, and long history and experience in the
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industry.
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sufficiently reliable under Rule 702. Mr. Mehler’s proposed testimony has “a
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reliable basis in the knowledge and experience of his discipline.” See Estate of
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Barabin, 740 F.3d at 462; see also United States v. Hankey, 203 F. 3d 1160, 1169
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(9th Cir. 2000) (citing Kumho Tire Co., Ltd., 526 U.S. at 150) (“The Daubert
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factors (peer review, publication, potential error rate, etc.) simply are not applicable
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to this kind of testimony . . . whose reliability depends heavily on the knowledge
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and experience of the expert, rather than the methodology or theory behind it.”) As
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previously noted, whether an expert’s conclusions or factual assumptions should be
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accepted are issues that bear on the weight of the testimony, rather than on its
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admissibility, and may be attacked by cross examination and contrary evidence.
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See Primiano, 598 F.3d at 564; Daubert, 509 U.S. at 595-96; Bergen, 816 F.2d at
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1352 n. 5.
(Id.; see also ECF No. 33-8 at 8-9.)
The Court finds this basis
For the foregoing reasons, Defendants’ motion to preclude Mr. Mehler’s
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testimony (ECF No. 30) is DENIED.
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At the hearing on the motions, Defendants stated they do not object to
Mr. Mehler being offered to explain to the jury how a table saw works and the basic
safety features of table saws.
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IV.
CONCLUSION & ORDER
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Based on the foregoing, the Court (1) GRANTS Defendants’ motion to
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preclude the testimony of Dr. Gass (ECF No. 28); (2) DENIES Defendants’ motion
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to preclude the testimony of Mr. Holt (ECF No. 29); and (3) DENIES Defendants’
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motion to preclude the testimony of Mr. Mehler (ECF No. 30).
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IT IS SO ORDERED.
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DATED: April 24, 2015
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