White v. Deere & Company et al

Filing 216

ORDER. Defendants' Motion to Exclude the Testimony of Thomas Berry 104 is granted in part and denied in part as set forth in the attached order. By Judge Philip A. Brimmer on 2/8/16.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02173-PAB-NYW
MIRIAM WHITE,
Plaintiff,
v.
DEERE & COMPANY,
JOHN DEERE LIMITED, and
JOHN DOES 1-5,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on defendants’ Motion to Exclude the Testimony
of Thomas Berry [Docket No. 104].
I. BACKGROUND
This is a products liability action that arises out of an accident that occurred on
August 17, 2011 while plaintiff Miriam White was operating her Deere Model 4600
compact utility tractor and Model 460 loader. Ms. W hite claims that she suffered facial
injuries and traumatic brain injury as a result of a hay bale falling onto her while
operating the tractor. Docket No. 104 at 1-2. Ms. W hite alleges that her tractor had
design defects that created an unreasonable risk of injury from falling hay bales and
that her injuries resulted from these defects. Docket No. 150 at 2-3.
Ms. White has designated Thomas Berry as an engineering expert to support her
product liability claims. See Docket No. 104 at 2; Docket No. 81-1 at 4. Mr. Berry

opines that the tractor’s design violated industry standards and should have been
designed differently. Docket No. 104 at 2; Docket No. 81-1 at 14, 17-20. Mr. Berry
opines that Dr. Robert Cargill’s accident reconstruction theory is incorrect in his May 21,
2015 report and provides two accident reconstruction theories in his unsigned, unsworn
July 13, 2015 declaration. Docket No. 93-3 at 1; Docket No. 119-1 at 11.
II. FEDERAL RULE OF EVIDENCE 702
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a)
the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence 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.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court m ust “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After determining whether the expert is qualified, the specific proffered opinions must
be assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
Rule 702 imposes on the district court a “gatekeeper function to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.’”

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United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To perform that
function, the Court must “assess the reasoning and methodology underlying the
expert’s opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93). Where an expert relies on experience, the expert
“must explain how that experience leads to the conclusion reaches, why that
experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts.” United States v. Medina-Copete, 757 F.3d 1092, 1104 (10th Cir.
2014) (quoting Fed. R. Evid. 702, advisory committee notes).
Although it is not always a straightforward exercise to disaggregate an expert’s
method and conclusion, when the conclusion simply does not follow from the data, a
district court is free to determine that an impermissible analytical gap exists between
premises and conclusion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In
examining an expert’s method, however, the inquiry should not be aimed at the
“exhaustive search for cosmic understanding but for the particularized resolution of
legal disputes.” Daubert, 509 U.S. at 597. It is the specific relationship between an
expert’s method, the proffered conclusions, and the particular factual circumstances of
the dispute that renders testimony both reliable and relevant.
In addition to the expert having appropriate qualifications and methods, the
proponent of the expert’s opinions must demonstrate that the process by which the
expert derived his or her opinions is reliable. United States v. Crabbe, 556 F. Supp. 2d

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1217, 1220 (D. Colo. 2008). W hen assessing reliability, “the court may consider
several nondispositive factors: (1) whether the proffered theory can and has been
tested; (2) whether the theory has been subject to peer review; (3) the known or
potential rate of error; and (4) the general acceptance of a methodology in the relevant
scientific community.” 103 Investors I, 470 F.3d at 990 (citing Daubert, 509 U.S. at
593-94). These considerations are not exhaustive. Rather, “the trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Id.
While plaintiff, as the proponent of the challenged testimony has the burden of
establishing admissibility, the proffer is tested against the standard of reliability, not
correctness; she need only prove that “the witness has sufficient expertise to choose
and apply a methodology, that the methodology applied was reliable, that sufficient
facts and data as required by the methodology were used and that the methodology
was otherwise reliably applied.” Crabbe, 556 F. Supp. 2d at 1221.
In sum, assuming an objection is properly made, expert testimony must be
excluded if the expert is unqualified to render an opinion of the type proffered, if the
opinion is unreliable, if the opinion will not assist the trier of fact, or if the opinion is
irrelevant to a material issue in the case.
III. ANALYSIS

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Defendants’ motion seeks to “exclude Mr. Berry’s opinions in their entirety,”
Docket No. 104 at 9, which is a sign that defendants did not review the Court’s Practice
Standards before filing the instant motion. Practice Standard III.G concerns motions to
exclude expert testimony. See Practice Standards (Civil Cases), Judge Philip A.
Brimmer, § III.G. It requires that a Rule 702 motion “shall identify with specificity each
opinion the moving party seeks to exclude” (emphasis in original). As the court
explained in Crabbe, “the Rule 702 determination [is] more opinion-centric than expertcentric.” 556 F. Supp. 2d at 1221.
Therefore, the initial question is whether defendants’ motion should be stricken
for failure to comply with the Practice Standard. The purpose of the Practice Standard
is to focus the analysis on specific opinions. Defendants’ motion summarizes Mr.
Berry’s reports as providing three opinions. Docket No. 104 at 2. This is imprecise
because defendants do not challenge the opinions as they appear in Mr. Berry’s
reports, but instead challenge–with scarce citations–Mr. Berry’s opinions as they are
summarized in defendants’ motion. Accordingly, the Court will focus narrowly on
whether Mr. Berry may offer opinions on the three specific matters identified in
defendants’ motion, namely, (1) that the Deere Model 4600 compact utility tractor and
Model 460 loader violated particular industry standards; (2) that the Deere Model 4600
compact utility tractor and Model 460 loader should have been designed differently; and
(3) that the hay bale fell back over the pallet fork, and not to the left side of the pallet
fork as proposed by defendants’ expert, Dr. Cargill. Docket No. 104 at 7.
Plaintiff does not substantively address defendants’ arguments in her response,

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and instead focuses almost exclusively on attacking the opinions of defendants’ expert,
Dr. Cargill. See Docket No. 119. 1 To support plaintiff’s position regarding the
applicability of the contested industry standards, plaintiff attaches an unsigned
declaration of Mr. Berry, dated July 13, 2015. Docket No. 119-1. Defendants argue
that the Court should ignore this declaration because it is unsworn in violation of 18
U.S.C. § 1746 and is also unsigned. Docket No. 131 at 2. In support of their § 1746
argument, defendants cite cases ruling on summary judgment motions. See, e.g.,
Massari v. Potter, No. 04-cv-02306-EWN-MJW, 2006 WL 318658, at *5 n. 9 (D. Colo.
Feb. 9, 2006); Leathers v. Leathers, 2013 WL 1873275, at *3 (D. Kan. May 3, 2013).
Defendants, however, do not argue that plaintiff was required to file a declaration or
other form of sworn testimony from Mr. Berry in opposition to defendants’ motion to
exclude him. Thus, defendants’ § 1746 argument is inapplicable to these
circumstances. However, Mr. Berry’s declaration is also unsigned. Fed. R. Civ.
P. 26(a)(2)(B) requires that the disclosure of an expert trial witness must be
accompanied by a signed written report. Mr. Berry has submitted two signed written
reports that are attached to his unsigned declaration. See Docket Nos. 119-3 and 1194. Arguably, Rule 26(a)(2)(B) does not apply to an expert report filed in opposition to a
Rule 702 motion to exclude testimony. There is a reason, nevertheless, for an expert
witness to sign a report. His or her signature evidences the expert’s adoption of the
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In her response, plaintiff asserts that Mr. Berry only references industry
standards as best practices and does not opine that the Deere Model 4600 com pact
utility tractor and Model 460 loader violated industry standards, while Mr. Berry’s report
clearly contains a “Violation of Standards” section that states: “W ith the design of the
model 4600 tractor and 460 loader John Deere violated several standards of the
ASABE, ANSI and ASAE. . . .” See Docket No. 119 at 2; Docket No. 81-1 at 14.
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facts and opinions stated therein. A signature also reflects that the report is not simply
a draft of a report or a report that the proponent’s attorneys put together, but for which
they did not have time to obtain a signature. The context of Mr. Berry’s declaration is
significant as well. The defendants’ motion to exclude Mr. Berry’s testimony pursuant to
Rule 702 requires a pretrial ruling. This is not a situation where an alleged disclosure
violation may be cured at trial by having the expert testify under oath. Finally, plaintiff
made no attempt in the nearly seven months since the declaration was prepared to
supplement the record with a signed declaration. Thus, while the Court considers the
signed Berry reports attached to the declaration, the Court will not consider the
declaration itself.
A. Violation of Industry Standards
Defendants argue that Mr. Berry applies four inapplicable standards to the Model
4600 tractor and Model 460 loader: (1) SAEJ333a; (2) ASAE S583; (3) ASAE S355.3
paragraph 3.1; and (4) ANSI/ASAE S493. Docket No. 104 at 4. Def endants state that
Mr. Berry’s application of irrelevant standards renders unreliable his opinion that the
Model 4600 tractor and Model 460 loader violated the aforementioned industry
standards. Id. at 3.
Defendants attach Kirk Ney’s expert report in which he opines that the
aforementioned standards are inapplicable. Docket No. 104-1 at 12-14. Mr. Ney
asserts that SAEJ333a is inapplicable because it was cancelled as a standard in 1978,
twenty-two years before the Model 4600 tractor was manufactured. Id at 13. Mr. Ney
states that ASAE S583 is inapplicable because it was published in 2005–three years

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after the Model 4600 tractor and Model 460 loader were sold to plaintiff. Id. Mr. Ney
contends that ASAE S355.3 paragraph 3.1 is the incorrect standard version, and that
the correct version is ASAE S355.2, with which the Model 4600 tractor and Model 460
loader are in full compliance. Id. Mr. Ney asserts that ANSI/ASAE S493 does not
apply to the Falling Object Protective System (“FOPS”) on a tractor or to loads coming
off of a loader, and that ANSI/ASAE S493 applies to “g uarding against things such as
moving traction elements, revolving engine components, nip points, outside faces of
pulleys, sheaves, sprockets and gears as well as rotating shafts, universal joints, and
other revolving parts with projections such as exposed bolts, keys, pins or set screws.”
Id. at 14.
Plaintiff does not dispute or address any of these arguments in her response.
However, Mr. Berry does briefly address Mr. Ney’s critiques in his May 21, 2015 report.
Regarding SAE J333a, Mr. Berry states that “the SAE standards are ones ref erenced
and incorporated by OSHA into their regulations with respect to ROPS 2 and falling
object protection. The standards are still applicable with respect to designing ROPS
and FOPS for industrial and agricultural tractors.” Docket No. 93-3 at 3. Mr. Berry does
not dispute Mr. Ney’s assertion that SAE J333a was cancelled in 1978, but appears to
argue that cancelled standards are relevant to a manufacturer’s design decisions. Id.
Whether or not a cancelled standard factors into a manufacturer’s design process, the
Court does not find that a manufacturer violates an industry standard if that standard is
no longer in effect. Regarding ANSI/ASAE S493, Mr. Berry states that Mr. Ney is

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Rollover Protection Structure.
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incorrect that ANSI/ASAE S493 does not apply because a FOPS is a guard and the
guarding referenced by this standard would apply to a FOPS. Docket No. 93-3 at 4. In
a declaration attached to the instant motion, Mr. Ney provides tables from ANSI/ASAE
S493 showing the type of guarding contemplated by this standard. Docket No. 104-1 at
14. The Court notes that the cited tables discuss the size of limbs, specifically, finger
tips, fingers, hands, and arms, the size of apertures, and the safety distance to hazards.
Id. at 14-15. In light of these tables provided by Mr. Ney, ANSI/ASAE S493 does not
appear to the Court to relate to protection f rom falling objects, as argued by Mr. Berry,
and seems to support Mr. Ney’s position regarding its applicability to guarding the
operator from a hazard at a known distance from the operator. Mr. Berry’s May 21,
2015 report does not address Mr. Ney’s arguments regarding ASAE S583 or ASAE
S355.3 paragraph 3.1. Mr. Berry’s April 16, 2015 expert report states that ASAE S583
was published in 2005, which supports Mr. Ney’s argument that it does not apply
because it was published after the Model 4600 tractor and Model 460 loader were sold
to plaintiff. Docket No. 81-1 at 14. Mr. Berry’s April 16, 2015 expert report asserts
ASAE S355.3 paragraph 3.1 as the correct standard, but nothing in the record rebuts
Mr. Ney’s challenge to its applicability. Plaintiff bears the burden of establishing the
admissibility of her expert’s opinions. See Crabbe, 556 F. Supp. 2d at 1221.
An expert’s failure to take into account the relevant industry standards weighs
against the reliability of that expert’s opinion. See Heer v. Costco Wholesale Corp., 589
F. App’x 854, 862 (10th Cir. 2014) (unpublished). The Court considers Mr. Ney’s
arguments persuasive. The Court finds that plaintiff has not carried her burden of
showing the reliability of Mr. Berry’s opinion regarding whether the tractor and loader
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violated certain industry standards. Accordingly, Mr. Berry may not testify that the
Model 4600 Tractor and Model 460 Loader violated SAEJ333a, ASAE S583, ASAE
S355.3 paragraph 3.1, and ANSI/ASAE S493.
B. Alternative Designs
Defendants challenge two of Mr. Berry’s opinions regarding alternative designs:
(1) the Model 4600 tractor should have had other safety devices, in particular, a selfleveling device to maintain a level position of the pallet fork tine attachment and a fourpost FOPS; and (2) the Model 4600 tractor should not hav e been designed such that,
when the loader is at a maximum height, the pallet fork tines could be rotated fully
rearward. Docket No. 104 at 6.
Defendants argue that these opinions do not fit this case because they are not
tied to the facts of this accident. Id. Defendants assert that there are two undisputed
facts that are inconsistent with Mr. Berry’s opinion–that the pallet fork tines were level,
not rotated rearward, at the time of the accident, and that the pallet forks were raised to
eight feet, not the loader’s maximum height of nine feet, four inches. Id. Based on
these facts and the opinion of their expert, Dr. Cargill, defendants argue that the hay
bale could not have fallen backwards onto Ms. White.
In its January 28, 2016 order denying defendants’ motion for summary judgment,
the Court found genuine disputes of material facts surrounding the circumstances of
this accident. See Docket No. 178 at 11. For instance, Tim Dinkel, who saw the tractor
shortly after the accident, said that the pallet fork tines were at a 45-degree angle,
Docket No. 108-10 at 4 (Dinkel Depo., at 68:7-14), which is inconsistent with Ms.

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White’s testimony that she kept the pallet fork tines level. In light of the factual disputes
as to how the hay bale fell and injured Ms. White, the Court cannot conclude that Mr.
Berry’s opinions relate to an accident that did not occur. Moreov er, defendants do not
address whether the alternative designs proposed by Mr. Berry would have prevented
Ms. White’s injuries. Accordingly, the Court finds that Mr. Berry’s alternative design
opinions fit this case sufficiently to avoid their preclusion.
C. Accident Reconstruction
Defendants argue that Mr. Berry should not be permitted to offer an accident
reconstruction opinion because no such opinion appears in his April 16, 2015 ex pert
report and that he only opines on how the accident occurred in his rebuttal of Dr.
Cargill’s accident reconstruction. Docket No. 104 at 8. Def endants further argue that
Mr. Berry does not provide any analysis to support his accident reconstruction opinion.
Docket No. 104 at 8. Plaintiff does not address these arguments in her response. See
Docket No. 119.
Mr. Berry does not provide an accident reconstruction opinion in his April 16,
2015 expert report. A party’s failure to comply with the disclosure requirements of Fed.
R. Civ. P. 26(a) subjects it to the sanctions identified in Fed. R. Civ. P. 37(c)(1).
Pursuant to Rule 37(c)(1), “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence. . . at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). (emphasis added). Defendants, however, do not
mention Rule 26(a) or claim that Mr. Berry’s alternative causation theories should be
excluded for some reason other than a Rule 702 violation. As a result, the Court does
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not consider whether there was a disclosure violation.
In his unsigned July 13, 2015 declaration, Mr. Berry provides two theories for
how the accident occurred, but does not offer any analysis to support his opinions. 3
Docket No. 119-1 at 11. As noted above, the Court will not consider this unsigned
declaration. However, even if the Court did consider Mr. Berry’s alternative causation
theories as stated in the declaration, it is inadmissible under Rule 702. “Nothing in
either Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert.”
Joiner, 522 U.S. at 146; Goebel v. Denver and Rio Grande Western R.R. Co., 346 F.3d
987, 1003 (10th Cir. 2003) (“[O]nce the trial court was alerted to the potential gap in [the
expert’s] chain of reasoning, it should not have admitted the expert’s opinion into
evidence unless the record before the court–other than a bald ipse dixit from the
expert–filled that gap”) (internal citation omitted). Because Mr. Berry does not offer an
explanation to support his alternative accident reconstruction theories, under Rule 702
they are not admissible.
IV. CONCLUSION
For the foregoing reasons it is
ORDERED that defendants’ Motion to Exclude the Testimony of Thomas Berry
[Docket No. 104] is GRANTED in part and DENIED in part. Pursuant to Rule 702, Mr.
Berry may not testify that the Deere Model 4600 tractor and 460 loader v iolated

3

Plaintiff attaches the same declaration to two responses, the summary
judgment response and the response to the instant motion. Docket No. 119-1; Docket
No. 123-9.
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SAEJ333a, ASAE S583, ASAE S355.3 parag raph 3.1, and ANSI/ASAE S493, and he
may not, other than criticizing Dr. Cargill’s opinion as disclosed, offer an opinion on
what caused the hay bale to fall on Ms. White based on Ms. White’s description of the
incident.

DATED February 8, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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