Fagundez v. Louisville Ladder, Inc.

Filing 156

ORDER denying in part 88 Motion in Limine; denying in part 97 Motion in Limine. Signed by Magistrate Judge John J. O'Sullivan on 1/26/2012. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23131-CIV-LENARD/O’SULLIVAN
RAUL FAGUNDEZ,
Plaintiff,
v.
LOUISVILLE LADDER, INC.,
Defendant.
__________________________/
OMNIBUS ORDER
THIS MATTER came before the Court on the Plaintiff’s Motion in Limine to Exclude
Opinion Testimony of George Krauss, Sc.D., P.E. and Memorandum of Law in Support (DE#
88, 5/26/11); and the Plaintiff’s Motion in Limine to Exclude Opinion Testimony of Thomas E.
Bayer, P.E., Thomas J. Schmitt, P.E., and Spencer Gross, P.E. and Memorandum of Law (DE#
97, 6/3/11). The parties filed their respective responses and replies and the motions are ripe
for disposition. These matters were referred to the undersigned by the Honorable Joan A.
Lenard. (DE# 135, 10/24/11) Having carefully reviewed the applicable filings and law, for the
reasons stated below, it is
ORDERED AND ADJUDGED that
1. The Plaintiff’s Motion in Limine to Exclude Opinion Testimony of George Krauss,
Sc.D., P.E. and Memorandum of Law in Support (DE# 88, 5/26/11) is DENIED except to
exclude opinion testimony regarding the teacher/student relationship between the plaintiff’s and
the defendant’s experts.
2. The Plaintiff’s Motion in Limine to Exclude Opinion Testimony of Thomas E. Bayer,
P.E., Thomas J. Schmitt, P.E., and Spencer Gross, P.E. and Memorandum of Law (DE# 97,
6/3/11) is DENIED except to exclude opinion testimony regarding the credibility of witnesses to

the accident and to recommend that an appropriate jury instruction should be given to the jury
regarding the inapplicability of ANSI and OSHA standards in the strict liability claim.
ANALYSIS
“The real purpose of a motion in limine is to give the trial judge notice of the movant’s
position so as to avoid the introduction of damaging evidence which may irretrievably affect
fairness of the trial. A court has the power to exclude evidence in limine only when evidence is
clearly inadmissible on all potential grounds.” Stewart v. Hooters of America, Inc., No. 8:04-CV40-T-17-MAP, 2007 WL 1752843, *1 (M.D. Fla. 2007) (citing Luce v. United States, 469 U.S.
38, 41 (1984)). District courts have broad discretion in deciding to admit or exclude expert
testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997).
I.

Opinion Testimony of George Krauss, Sc. D., P.E.
The plaintiff seeks to exclude the testimony of George Krauss, a metallurgical

consultant hired by the defendant as a rebuttal expert. The plaintiff’s expert, John
Schwartzberg, was a student of Dr. Krauss. The plaintiff contends that Dr. Krauss’ opinions
should be excluded because they are not relevant under Fed. R. Evid. 403. Even if relevant,
the plaintiff argues that Krauss’ report and testimony will not assist the trier of fact to determine
a fact in issue. The plaintiff maintains that his testimony “would be of little probative value” or
potentially “a waste of time.” The plaintiff does not argue that Dr. Krauss is not qualified to
testify competently regarding the matters in his report. Dr. Krauss should be permitted to testify
regarding the deficiencies in John Schwartzberg’s report and testimony. Testimony regarding
the teacher/student relationship between the experts should be excluded. See, e.g.
Defendants’ Response at 3 (DE# 91, 6/2/11) (“Dr. Krauss is dismayed that his former student’s
report ‘does not even assess what the rivet’s intended function might be, that is, the loads or
forces the rivets are expected to see during ladder usage.’”) (quoting Dr. Krauss’ Report DE#

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86-4, at 3).
II.

Opinion Testimony of Thomas E. Bayer, P.E., Thomas J. Schmitt, P.E., and
Spencer Gross, P.E.
The plaintiff seeks to exclude the testimony of the defendants’ experts on the grounds

that the randomly selected exemplar ladder was manufactured in March 2001 and contained
modifications that did not exist in the accident ladder that was manufactured in October 2000.
The plaintiff contends that defendants did not conduct any post-production test on any of the
approximately 16,000 ladders that were manufactured in the same way as the accident ladder.
Effective cross-examination should address the purported deficiency in the defendants’ experts’
testimony. See Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345
(11th Cir. 2003) (“The identification of such flaws in generally reliable scientific evidence is
precisely the role of cross-examination”) (citing Daubert, 509 U.S. at 596). “‘In most cases,
objections to the inadequacies of a study are more appropriately considered an objection going
to the weight of the evidence rather than its admissibility.’” Id. (quoting Hemmings v. Tidyman’s
Inc., 1174, 1188 (9th Cir. 2002)).
“[T]he issue of manufacturer compliance with industry standards is generally considered
to be irrelevant in a strict liability case.” Rexrode v. American Laundry Press Co., 674 F.2d 826,
831 (6th Cir. 1982). The subject action includes a count for negligence against the
manufacturer. Testimony regarding ANSI and OSHA compliance is admissible regarding the
negligence claim with an appropriate limiting jury instruction as to its irrelevance for the strict
liability claim. See Evans v. Dugger, 908 F.2d 801, 805-06 (11th Cir. 1990) (discussing industry
standards in relation to duty of care owed prisoners within the control of prison officials).
“[A] witness’s credibility is ‘not appropriate subject matter for expert testimony.’”
Richman v. Sheahan, 415 F. Supp. 2d 929, 942 (N.D. Ill. 2006)(quoting United States v. Welch,
368 F.3d 970, 975 (7th Cir. 2004)). The plaintiff’s motion in limine should be granted to exclude

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expert testimony regarding the credibility of the plaintiff or other witnesses.
CONCLUSION
Based on the foregoing reasons, the Plaintiff’s Motion in Limine to Exclude Opinion
Testimony of George Krauss, Sc.D., P.E. and Memorandum of Law in Support (DE# 88,
5/26/11) is DENIED except to exclude opinion testimony regarding the teacher/student
relationship between the plaintiff’s and the defendant’s experts; and the Plaintiff’s Motion in
Limine to Exclude Opinion Testimony of Thomas E. Bayer, P.E., Thomas J. Schmitt, P.E., and
Spencer Gross, P.E. and Memorandum of Law (DE# 97, 6/3/11) is DENIED except to exclude
opinion testimony regarding the credibility of witnesses to the accident and to recommend that
an appropriate jury instruction should be given to the jury regarding the inapplicability of ANSI
and OSHA standards in the strict liability claim.
DONE AND ORDERED, in Chambers, at Miami, Florida this 26th day of
January, 2012.

JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record

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