Lutes et al v. Kawasaki Motors Corp U.S.A. et al

Filing 216

RULING denying 186 Motion to Preclude/Limit the Testimony of Plaintiffs' Experts to Matters Identified in Their Reports. Signed by Judge Holly B. Fitzsimmons on 3/25/2015. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARLY LUTES, KEVIN LUTES, AND :
S.L., PPA KEVIN AND CARLY
:
LUTES
:
:
v.
:
:
KAWASAKI MOTORS CORP., USA
:
AND KAWASAKI MOTORS
:
MANUFACTURING CORP.
:

CIV. NO. 3:10CV1549 (WWE)

RULING ON DEFENDANTS’ MOTION TO PRECLUDE/LIMIT THE TESTIMONY OF
PLAINTIFFS’ EXPERTS TO MATTERS IDENTIFIED
IN THEIR REPORTS [DOC. #186]
Plaintiffs Carly and Kevin Lutes bring this products
liability action against defendants Kawasaki Motors Corporation,
USA (KMC), and Kawasaki Motors Manufacturing Corporation (KMM).
It arises out of personal injuries plaintiffs sustained from an
accident involving a Jet Ski manufactured by KMM and marketed
and distributed by KMC. Pending before the Court is defendants‟
motion to limit the testimony of plaintiffs‟ experts to matters
identified in their reports. [Doc. #186]. Plaintiffs‟ oppose
defendants‟ motion [Doc. #195], to which defendants filed a
reply [Doc. #199].

Upon careful consideration, defendants‟

motion to preclude is DENIED, as set forth below.
I.

Background
The claims in this action arise from the use of a “recessed

hook”1 on plaintiffs‟ Jet Ski. Specifically, plaintiffs Carly and

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The parties dispute the proper term for the device in question.
Plaintiffs refer to the subject device as a “cleat.” The owner‟s
manual for the Jet Ski at issue refers to the device as a “recessed
hook”, while the Kawasaki parts system refers to it as a “cargo hook.”
For purposes of this ruling, the subject device will interchangeably
be referred to as a “recessed hook” and “cleat”, depending on the

Kevin Lutes were using their Jet Ski to tow an unmanned inner
tube, which was attached by rope to the Jet Ski‟s recessed and
tow hooks.

Plaintiff Carly Lutes was holding the excess rope

when the recessed hook allegedly broke away from the Jet Ski,
causing the tow rope to constrict around her arm, pulling her
off the Jet Ski, and severing her left hand from her arm.
Plaintiffs allege, inter alia, that the subject Jet Ski was
defectively designed by using the recessed hook.
In support of their claims, on December 2, 2011, plaintiffs
disclosed four liability experts, Christopher Barry, Michael
Kalsher, Michael Sampsel and Thomas Eagar. The initial round of
plaintiff‟s expert depositions has been completed. Defendants
argue that these experts have offered testimony on matters not
identified in their reports. Specifically, defendants seek to
preclude plaintiffs‟ experts from referring to (if not mentioned
in their reports) warranty claims, replacement parts rates,
“other incidents”, other standards, and other testing.
II.

Legal Standard
A testifying expert‟s Rule 26 report must contain a

complete statement of “all opinions the witness will express”
and the “basis and reasons for them,” as well as the “facts or
data” the expert considered in forming the opinions. Fed. R.
Civ. P. 26(a)(2)(B)(i)-(ii). “The purpose of the expert
disclosure rules is to avoid surprise or trial by ambush.”
Harkabi v. SanDisk Corp., No. 08 Civ. 8203(WHP), 2012 WL
2574717, at *3 (S.D.N.Y. June 20, 2012)(citation and internal
experts‟ use of the terms in their respective reports.
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quotation marks omitted). “An expert‟s trial testimony may be
precluded based on nondisclosure only when it „expound[s] a
wholly new and complex approach designed to fill a significant
and logical gap in the first [expert] report.‟” Id. (quoting
Cedar Petrochems., Inc. v. Dongbu Hannong Chem. Co., 769 F.
Supp. 2d 269, 279 (S.D.N.Y. 2011) (brackets in original)). To
that end, a court may permit challenged expert evidence so long
as it is “within the bounds of the initial expert report.”
Harkabi, 2012 WL 2574717, at *3 (citation and internal quotation
marks omitted). However, courts in this Circuit have held that,
“an expert can offer „evidentiary detail‟ at trial for opinions
expressed in the expert‟s report.” Harkabi, 2012 WL 2574717, at
*3 (compiling cases). Accordingly,
[S]ection 26(a)(2)(B) does not limit an expert‟s
testimony simply to reading his report… The rule
contemplates that the expert will supplement,
elaborate upon, explain and subject himself to crossexamination upon his report. The purpose of an
expert‟s report is not to replicate every word that
the expert might say on the stand, but to convey the
substance of the expert‟s opinion… so that the
opponent will be ready to rebut, cross-examine, and to
offer a competing expert.
Id. at *4 (internal citations and quotation marks omitted;
brackets altered).
Moreover, even if there is not strict compliance with the
disclosure requirements of Rule 26, “imposing the sanction of
precluding expert testimony is not required” and “is a matter
committed to the district court‟s discretion.” Id. Preclusion of
evidence is a “drastic remedy” and precluding expert testimony,
even where there has not been strict compliance with Rule 26,
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“may at times tend to frustrate the Federal Rules‟ overarching
objective of doing substantial justice to litigants.” Harkabi,
2012 WL 2574717, at *4 (citations omitted).
III. Discussion
A. Christopher Barry’s Report
Christopher Barry, P.E., is a naval architect, whose report
is dated November 29, 2011. [Doc. #186-1, Ex. C]. He opines on
the “failed cleat.” Following a summary of his qualifications,
previous testimony, and compensation, he lists the “data or
information considered” in forming his expert opinion. [Id.].
Among the data and information considered are various standards
and technical information, photographs of the broken cleat and
cleat tests, International Organization of Standardization ISO
13590, and books on design, among others. [Doc. #186-1, Ex. C].
Mr. Barry then goes on to discuss his analysis of the strength
of the cleat, engineering analysis of safety, engineering out
the hazard, warnings, labels and manual, and stowage of slack
line. [Id.]. Mr. Barry concludes,
The 2008 Kawasaki FT-1500 Jet SkiTM is defective in that it
does not meet the average (or even the expert) consumer‟s
expectations for safety and is unreasonably dangerous: Very
specifically, the cleat failed at a load well below
established standards, and this unexpected failure,
combined with no means to secure the remaining line,
exposed the rider to an unreasonable, severe danger. This
danger was not foreseeable by the owner or operator as they
had no information or warning about the limited physical
capacity of the cleat, but was readily foreseeable by the
manufacturer who did have this information or had the
capability to determine it.
Kawasaki had numerous different opportunities to prevent
the hazards that produced this accident including simple
instructions in the manual. Some of them would be much less
expensive than even the fitting they used on the craft, and
one comprised not putting the fitting on at all.
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These defects related directly to the accident and the
resulting injury to Carly Lutes.

[Doc. #186-1, Ex. C, 8]. Defendants seek an order precluding Mr.
Barry from “testifying on replacement parts/rates, warranty
claims (warranty logs), deposition transcripts, and ISO 15084.”
[Doc. #186, 8]. Plaintiffs respond that prior to Mr. Barry‟s
deposition, defense counsel was provided with a CD containing
Mr. Barry‟s file contents, which included defendants‟ responses
to discovery encompassing replacements parts and “Summary of
Case” binders, which included additional defense discovery
responses, various standards including ISO 15084, warranty
claims, and the reports/disclosures of plaintiff‟s liability
experts, among others.
After a careful review of Mr. Barry‟s report, the Court, in
its sound discretion, will not preclude his testimony concerning
“replacement parts/rates, warranty claims (warranty logs),
deposition transcripts, and ISO 15084.” Even if these topics
fall outside the bounds of Mr. Barry‟s initial expert report,
the Court does not see the prejudice suffered by defendants in
light of their having had the opportunity to depose Mr. Barry on
these very topics. Moreover, plaintiffs recently disclosed their
“supplemental and rebuttal expert” witnesses, which include Mr.
Barry. [Doc. #213].2 Defendants have until March 30, 2015 to
complete Mr. Barry‟s deposition, at which time defendants may
further inquire into the areas which they seek precluded. [Doc.
#210]. Further, the Court notes District Court Judge Warren
2

The disclosures also include Mr. Sampsel, and Drs. Kalsher and Eager as
rebuttal experts.
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Eginton‟s preference of determining matters on their merits such
to afford “substantial justice to litigants.” Therefore,
defendants‟ motion as to Mr. Barry is DENIED.
B. Michael Sampsel’s Report
Michael Sampsel, also a naval architect, submitted an
expert report dated November 30, 2011. [Doc. #186-1, Ex. E]. In
his “discussion,” Mr. Sampsel undertakes an analysis of
applicable facts and other information including, for example,
the number of replacement cleats sold and KMC‟s responses to
plaintiff‟s interrogatories relating to the Coast Guard‟s design
requirements. [Id.]. Following this discussion, Mr. Sampsel
concludes, “The 2008 Kawasaki STX-15 Jet Ski side cleats are
defectively designed in that they do not have sufficient
strength to function as a universal attachment point as their
appearance would suggest. Additionally, there is no convenient
place to stow the tube or excess towline aboard the watercraft.”
[Doc. #186-1, Ex. E, 6].

Appended to the report is a list of 30

documents reviewed by Mr. Sampsel in forming his opinion.
Defendants seek an order precluding Mr. Sampsel from
“testifying on replacement parts/rates, warranty claims
(warranty logs), articles[,] standards[,] deposition
transcripts, and the expert reports of Eagar and Simon
Bellemare.” [Doc. #186, 8]. Plaintiffs respond that Mr. Sampsel
explicitly addresses warranty and replacement part information
in his report. They also contend that prior to Mr. Sampsel‟s
deposition, his file contents were emailed to defense counsel,
which included defendants‟ responses to discovery encompassing
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replacements parts, Mr. Sampsel‟s notes concerning other
expert‟s depositions and warranty log inquiries.
After a careful review of Mr. Sampsel‟s report, the Court,
in its sound discretion, will not preclude his testimony
concerning “replacement parts/rates, warranty claims (warranty
logs), articles[,] standards[,] deposition transcripts, and the
expert reports of Eagar and Simon Bellmare,” for the reasons
stated with respect to Mr. Barry‟s report. The Court further
notes that Mr. Sampsel‟s report explicitly discusses warranty
replacements, warranty claims, and usage data concerning
replacement rates. Accordingly, testimony concerning replacement
parts/rates, warranty claims (warranty logs), appears to fall
“within the bounds of [Mr. Sampsel‟s] initial expert report,”
Harkabi, 2012 WL 2574717, at *3, and therefore should not be
precluded. Therefore, defendants‟ motion as to Mr. Sampsel is
DENIED.
C. Michael Kalsher Report
Dr. Michael Kalsher, Ph.D., is a psychologist, whose report
is dated December 1, 2011. [Doc. #186-1, Ex. D]. Dr. Kalsher
begins his report by listing the materials he considered in
forming his opinion, including photos of the subject Jet Ski and
its manual; various Kawasaki documents, including their
responses to plaintiffs‟ first set of interrogatories; various
standards; previous accidents; and the expert reports of Mr.
Barry and Simon Bellemare. [Id.]. Dr. Kalsher notes that per
plaintiffs‟ request, he focused attention “on the human factors
issues (sic) in this case, and in particular on the adequacy of
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the system of warnings for informing end users about the hazards
of using the recessed cleats for purposes other than those
intended by the manufacturer, including towing water tubes, with
or without riders.” [Id. at 2]. Following over four pages of
findings, Dr. Kalsher concludes that,
It is my opinion to a reasonable degree of professional
probability that the warnings and instructions provided
with the subject Jet Ski were defective as they relate to
the need to inform users about the dangers of using the
recessed hooks for towing. These materials fail to meet
well-established human factors guidelines for designing and
testing warning systems, in particular the guidelines
promulgated by the American Boat & Yacht council (2002) and
ANSI Z535 (1991; 1998; 2002; 2007), both of which were
available at the time the subject Jet Ski was manufactured
and sold. The hazard stemming from the use of the recessed
hooks for towing manned or unmanned tubes was known or
should have been known, to the manufacturer and this
information should have been made available to end users.
Had an appropriate warning been present in the defendant‟s
system of warnings for the subject Jet Ski, it is more
likely than not that the incident that caused Carly Lutes‟
injuries would not have happened.

[Doc. #186-1, Ex. D, 7].
Defendants seek an order precluding Dr. Kalsher from
“testifying on replacement parts/rates, warranty claims
(warranty logs), post-sale warnings, deposition transcripts and
other material and topics (e.g., articles, other literature,
doctrines, internet searches/sites, alleged submarining of the
tube and its effect on steering, any ABYC standards and other
standards and cost of compliance).” [Doc. #186, 8]. Plaintiffs
respond, “[a]s with the other of Plaintiffs‟ liability experts,
defense counsel was provided with a list of materials provided
to Dr. Kalsher prior to his deposition, defense counsel was
provided with any documents in Dr. Kalsher‟s file that the
defense did not already have, and they were notified that Dr.
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Kalsher had been provided with copies of the „Summary of Case‟
binders.” [Doc. #195, 9]. Plaintiffs further note portions of
Dr. Kalsher‟s deposition testimony in which he testified that
the materials he received to date were sufficient for him to
come to the conclusions in his report, but that he preferred
additional information, including more detailed information on
the warranty claims. [Id. at 9-10]. He also testified concerning
the importance of the warranty claims and replacement parts data
to his opinions. [Id. at 10].
After a careful review of Dr. Kalsher‟s report, the Court,
in its sound discretion, will not preclude his testimony
concerning “replacement parts/rates, warranty claims (warranty
logs), post-sale warnings, deposition transcripts and other
material and topics,” for the same reasons stated with respect
to Mr. Barry‟s report. Moreover, the Court is not convinced that
the testimony that defendants seek to preclude “expounds a
wholly new and complex approach designed to fill a significant
and logical gap in the first [expert] report.” Harkabi, 2012 WL
2574717, at *3 (quoting Cedar Petrochems, 769 F. Supp. 2d at 279
(brackets in original)). Therefore, defendants‟ motion as to Dr.
Kalsher is DENIED.
D. Thomas Eager’s Report
Thomas Eagar is a metallurgist, whose report is dated
November 28, 2011. [Doc. #186-1, Ex. A]. Mr. Eagar also lists
the documents he reviewed as part of his investigation,
including photographs, Kawasaki brochures and documents,
laboratory testing, warranty log inquiry, and defendants‟
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answers and responses to plaintiffs‟ first set of
interrogatories and requests for production. [Id.].

The report

notes that he was requested to “study the strength of the
recessed hook and determine the cause of the failure.” [Id.].
After listing his observations in eight numbered paragraphs, Mr.
Eager concluded that,
[T]he hook which broke causing the two rope tension to be
transferred to Mrs. Lutes[‟] arm was due to use of a cast
aluminum hook which had insufficient strength and
ductility. This hook had the dimensions, and the surface
finish appearance to suggest that it was a hook of
sufficient strength to tow an empty inflatable raft. If it
had been made of stainless steel or a wrought aluminum
alloy of greater ductility, it would have supported
approximately one ton of force which is more than would
reasonably be expected from towing an empty tube. If the
hook had not broken, the force of towing would not have
been transferred to Ms. Lutes‟ arm and she would not have
been injured.
The measured strength of these hooks was similar to the
strength which these hooks would have had if they had been
made of plastic. However, these hooks were not made of
plastic and were electroplated to appear as a durable metal
hook. As a general rule, metals have ten times the strength
of plastics. If this hook had looked like plastic, it is
less likely that anyone would use it to secure a tow line.
The Caution referred to above did not caution that the
metallic hooks to which the Lutes‟ tow rope was attached
was merely cosmetic and did not have sufficient strength to
tow even empty tubes. The failed hook had the appearance of
a strong durable point of attachment when in fact it was
nothing more than a cosmetic ornament. This design defect
was compounded by the Caution label that warns and
instructs about some attachment points but fails to comment
on the hook that broke. Kawasaki failed to note that the
hook that failed was ornamental and could not be trusted
even for minor tasks. In essence, the incident hook was
unsafe and was not fit for its foreseeable use. Its
appearance gave a false sense of a secure attachment point,
when in fact it was not. In this sense it was unreasonably
dangerous.

[Doc. #186-1, Ex. A].
Defendants seek to preclude Dr. Eager from “testifying on
replacement parts/rates and warranty claims (logs).” [Doc. #186,
8]. Plaintiffs respond that Dr. Eager‟s report indicates that he
10

reviewed defendants‟ discovery responses and warranty logs as of
that time, and that he specifically referred to the replacement
part data Kawasaki had produced as of that time. [Doc. #195,
10].
Again, after a careful review of Dr. Eager‟s report, the
Court, in its sound discretion, will not preclude his testimony
concerning “replacement parts/rates, warranty claims (warranty
logs),” for the same reasons stated with respect to Mr. Barry‟s
report. Moreover, as plaintiffs‟ correctly note, Dr. Eager‟s
report specifically notes his review of a “Warranty Log Inquiry”
and defendants‟ responses to certain discovery requests, which
encompassed warranty claims. [Doc. #186-1, 3]. One of his
observations further notes that, “In Kawasaki‟s Answers it was
indicated that 1339 replacement hooks had been sold since August
2006.” [Id. at 5]. Accordingly, similar to Mr. Sampsel‟s
testimony, Dr. Eager‟s testimony concerning replacement
parts/rates, and warranty claims (warranty logs) appears to fall
“within the bounds of [his] initial expert report,” Harkabi,
2012 WL 2574717, at *3, and therefore should not be precluded.
Therefore, defendants‟ motion as to Dr. Eager is DENIED.
IV.

Conclusion
Accordingly, for the reasons stated above, defendants‟

motion to limit the testimony of plaintiffs‟ experts to matters
identified in their reports [Doc. #186] is DENIED.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
11

636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.

SO ORDERED at Bridgeport this 25th day of March 2015.
___/s/____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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