Morejon v. Louisville Ladder, Inc.

Filing 39

ORDER granting in part and denying in part 27 Motion to Exclude Opinion Testimony of Oren Masory. Signed by Magistrate Judge John J. O'Sullivan on 3/27/2018. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-22558-CIV-O'SULLIVAN
[CONSENT]
JORGE MOREJON,
Plaintiff,
v.

LOUISVILLE LADDER, INC.,
Defendant.

ORDER
THIS MATTER is before the Court on the Defendant's Motion to Exclude Opinion
Testimony of Oren Masory and Incorporated Memorandum of Law (DE# 27, 2/15/18).

BACKGROUND
On-"October 29, 2015, the plaintiff fell while using a ladder manufactured by
Louisville Ladder, Inc. (hereinafter "defendant"). The Amended Complaint alleges the
following causes of action against the defendant: strict liability (Count I) and strict
liability (negligence) (Count II). Amended Complaint (DE# 1-3). On March 1, 2018, the
Court granted partial summary judgment in favor of the defendant on the failure to warn
claim in Count II. See Order (DE# 30, 3/1/18).
On February 15, 2018, the defendant filed the instant motion seeking to exclude
or limit the testimony of the plaintiff's liability expert, Oren Masory, Ph.D. See
Defendant's Motion to Exclude Opinion Testimony of Oren Masory and Incorporated
Memorandum of Law (DE# 27, 2/15/18) (hereinafter "Motion"). The plaintiff filed his
response on March 12, 2018. See Plaintiff's Response in Opposition to Defendant's

Motion to Strike Plaintiff's Expert (DE# 33, 3/12/18) (hereinafter "Response"). The
defendant filed its reply on March 19, 2018. See Defendant's Reply to Plaintiff's
Response in Opposition to Motion to Exclude Opinion Testimony of Oren Masory (DE#
36, 3/19/18) (hereinafter "Reply").
This matter is ripe for adjudication.
STANDARD OF REVIEW
Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993) and Rule
702 of the Federal Rules of Evidence, the Court serves as a gatekeeper to the
admission of scientific evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326
F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert, 509 U.S. 579, 589 (1993) and
Mccorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v.
Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005). To determine the admissibility of
expert testimony under Rule 702, the Court must undertake the following three-part
inquiry:
(1) [T]he expert is qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry
mandated by Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise, to
understand evidence or to determine a fact in issue.
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems ..
Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation
omitted). The Eleventh Circuit cautioned that although some overlap among the
inquiries regarding expert qualifications, reliability and helpfulness exist, "these are
distinct concepts that courts and litigants must take care not to conflate." kl at 1341.

2
7

To determine reliability, the court considers:
(1) whether the expert's theory can be and has been tested; (2) whether
the theory has been subjected tb peer review and publication; (3) the
·known and potential rate of error of the particular scientific technique; and
(4) whether the technique is generally accepted in the scientific
community.

kl (citing Mccorvey, 298 F.3d at 1256 (citing Daubert, 509 U.S. at 593-94)). '"A district
court's gatekeeper role 'is not intended to supplant the adversary system or the role of
the jury.'" kl (citing Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quoting Allison v.
McGhan, 184 F.3d 1300, 1311 (11th Cir. 1999)). "Quite the contrary, '[v]igorous cross- ·
examination, presentation of contrary evidence, and careful instruction on the burden of
proof are the traditional and appropriate means of attacking shaky but admissible
evidence.'" kl (quoting Daubert, 509 U.S. at 596).
"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-CV-40-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).
ANALYSIS

The defendant seeks to limit or exclude the testimony of the plaintiff's liability

3

expert, Oren Masory, Ph.D., on the following grounds:
Dr. Masory is not qualified to offer opinions regarding an alleged defect
with the subject ladder, and Dr. Masory's opinions are conclusory,
unsubstantiated ipse dixit, and lack the requisite reliability to satisfy the
requirements of Federal Rule of Evidence 702 and the requirements
espoused by the United States Supreme Court in Daubert v. Merrill
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny.
Motion at 2.
1.

Qualificatjon
The defendant argues that Dr. Masory is not qualified to render opinions

regarding the ladder's alleged design defect 1 because Dr. Masory: (1) "has no
experience with ladders, in particular, extension ladders;" (2) "has never designed a
ladder or a component part for a ladder;" (3) "has never taken any course(s) regarding
ladder safety" and (4) "has never used an extension ladder to access a roof." Motion at
9-10.
The plaintiff responds that "Dr. Masory holds a bachelor's degree in mechanical
engineering, a master's degree in mechanical engineering and a Ph.D. in mechanical
engineering" which "is the 'branch of engineering concerned primarily with the industrial
application of mechanics and with the production of tools, machinery, and their
products."' Response at 3 (quoting https://www.merriam-webster.com).
Rule 702 permits a person to qualify as an expert based upon knowledge, skill,
experience, training, or education. United States v. Frazier, 387 F.3d 1244, 1260-61
1

The defendant also argues that Dr. Masory is not qualified to render.opinions
with respect to allegedly inadequate warning labels. That issue was mooted on March
1, 2018, when the Court granted partial summary judgment in favor of the defendant
on the failure to warn claim in Count II. See Order (DE# 30, 3/1/18). Therefore, the
Court will not further address the defendant's arguments with respect to warning labels.

4

(11th Cir. 2004) (en bane). "Determining whether a witness is qualified to testify as an
expert 'requires the trial court to examine the credentials of the proposed expert in light
of the subject matter of the proposed testimony."' Clena Inv .. Inc. v. XL Specialty Ins.
Co., 280 F.R.D. 653, 660 (S.D. Fla. 2012) (quoting Jack v. Glaxo Wellcome. Inc., 239
F. Supp. 2d 1308, 1314-16 (N.D. Ga. 2002)). The qualification "inquiry is not stringent,
and so long as the expert is minimally qualified, objections to the level of the expert's
expertise [go] to credibility and weight, not admissibility." Clena Inv .. Inc., 280 F.R.D. at
660 (citing Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp.
2d 1321, 1325 (S.D. Fla. 2009) (citations and internal quotation marks omitted;
alteration in original)). The Court finds that Dr. Masory is qualified to render opinions
with respect to the subject ladder. Any perceived weaknesses in Dr. Masory's
background and experience can be addressed during cross-examination.

2.

Reliability
The defendant also argues that "[t]he methodology used by Dr. Masory to

formulate his opinions is not relfable." Motion at 11. The defendant notes that "Dr.
Masory did not perform any testing, computer modeling, simulations, animations, or
accident reconstruction to reach or support his opinions in this matter." kl
Reliability is different than believability or persuasiveness, which remains an
issue for the trier of fact. Rink v. Cheminova. Inc., 400 F.3d 1286, 1293 n. 7 (11th Cir.
2005). To evaluate the reliability of an expert opinion, courts consider, to the extent
practicable: (1) whether the expert's theory can be and has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) the known or potential

5

rate of error of the particular scientific technique and (4) whether the technique is
generally accepted in the scientific community. These factors are illustrative, not
exhaustive; not all of them will apply in every case, and in some cases o_ther factors will
be equally important in evaluating the reliability of proffered expert opinion. Frazier, 387
F.3d at 1261-62.
The defendant notes that Dr. Masory opines "that the subject ladder 'slipped'
because Plaintiff had to shift his center of gravity outside of the ladder's rails in order to
access the roof' and that this opinion is based on a test wherein Dr. Masory hung a 25
pound weight from a rung of the ladder even though the plaintiff weighs approximately
200 pounds. Motion at 4, 11. Dr. Masory has filed an affidavit in response to the instant
motion wherein he explains why a 200 pound weight is not necessary: "The test I was
performing in that instant concerns the lateral coefficient of friction between the ladder
and the roof. The coefficient of friction is independent of the load. As far as the physics
are concerned, there is no need to apply a weight of 200 lbs." Affidavit of Oren Masory
(DE# 32-2

at~

8, 3/12/18). To the extent the defendant wishes to demonstrate that Dr.

Masory's opinion may be deficient because he used the wrong weight, the defendant is
free to vigorously cross-examine Dr. Masory at trial. "Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible. evidence."
Daubert, 509 U.S. at 596.
The defendant also challenges the reliability of Dr. Masory's methodology
because Dr. Masory did not take into account "three critical factors:" the lateral force
exerted by the plaintiff when he descended the ladder, the placement of the ladder

6

against the roof and the angle which the- plaintiff approached the ladder. Motion at 11.
The defendant cites to Dr. Masory's deposition testimony wherein he explained why the
plaintiff was able to climb the ladder two prior times without falling:
Q. Explain to me what the difference was between the two times he was
able to successfully climb up and down the ladder in the same exact
location as where the accident happened, and then was able to climb up
in the same exact location, disembark the ladder, get on the roof, get back
on the ladder, and climb down.

[PLAINTIFF'S COUNSEL]: Form.

A. The answer is like this. You can step downstairs 50 times and end up
in the 51st time you might trip, and nobody made any changes in the
stairs. So it might happen that Mr. Morejon, you know, approached the
ladder with, you know, maybe slightly different angle. Maybe he was
stepping on a different place on the rung. The -- maybe, you know, there
were a few variations in the way he did it last time and the new time and
this might cause it. It doesn't mean that somebody really moved the
ladder. The whole process of stepping from the roof down is not really
accurate. Nobody tells you how to do this. So one time he was hitting [the]
edge of the rung and one time the other edge of the rung, one time in this
particular angle, this is another angle. This is [a] variation that might cause
this ladder to tip.
[DEFENDANT'S COUNSEL]:
Q. That's all speculation on your part. You don't know, do you?

A. Nobody knows.
Deposition of Oren Masory (DE# 27-1 at 16). The defendant cites to this testimony as
evidence that Dr. Masory's failure to account for these factors renders his methodology
unreliable. Motion at 11-12. Again, to the extent the defendant wishes to demonstrate
that Dr. Masory's opinion may be deficient because he should have taken additional
factors into account, the defendant is

fr~e

to vigorously cross-examine Dr. Masory on

that subject at trial.

7

The defendant also argues that Dr. Masory's opinion that the subject ladder is
"unsafe" is not relevant because the ladder's safety is not the correct legal standard.
Rather, the "[p]laintiff must prove that the product, here, a ladder, is 'defective or
created an unreasonably dangerous

condition."'~

at 12. (quoting Benetiz v. Synthes,

Inc., 199 F. Supp.2d 1339, 1343 (M.D. Fla. 2002). The plaintiff did not address this
argument. Accordingly, Dr. Masory will be prohibited from testifying that the subject
ladder is unsafe as opposed to defective and/or unreasonably dangerous. 2
The defendant further argues that Dr. Masory should be prohibited from arguing
that a walk-through device at the top of the ladder would have prevented the plaintiff's
fall because "Dr. Masory has no experience with the walk-through device, and never
performed any sort of testing or risk-hazard analysis with regard to said device." See
Motion at 12. The defendant also notes that "[b]y [Dr. Masory's] own admission, even
with a walk-through device on the ladder, lateral forces could still cause it to slip on its
side."

~The

plaintiff does not specifically address this argument in his response.

Accordingly, Dr. Masory will not be permitted to opine that a walk-through device at the
top of the ladder would have prevented the plaintiff's fall.
3.

Usefulness
Finally, the defendant states that Dr. Masory's opinions are not useful because

2

The Court notes that Dr. Masory relies on the correct legal standard when he
opines in his affidavit that "[t]he ladder is defective (and unreasonably dangerous)
because there is no, way to get on or off the ladder to a roof without exerting lateral (that.
is sideway) forces which cause a sufficient moment of instability." Affidavit of Oren
Masory (DE# 32-2 at~ 5, 3/12/18) (emphasis added). Nonetheless, to the extent Dr.
Masory also seeks to opine that the subject ladder is unsafe, that testimony will be
excluded.

8

they "are based on a flawed methodology, assumptions, and they are conclusory in
nature." Motion at 13.
The third requirement for admissibility is that the expert testimony must assist the
trier of fact. "[E]xpert testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person .... Proffered expert testimony generally will
not help the trier of fact when it offers nothing more than what lawyers for the parties
can argue in closing arguments." Frazier, 387 F.3d at 1262-63. The Court finds that Dr.
Masory's testimony will assist the jury because it is beyond the purview of the average
juror.
CONCLUSION

Based on the foregoing, it is
ORDERED AND ADJUDGED that the Defendant's Motion to Exclude Opinion
Testimony of Oren Masory and Incorporated Memorandum of Law (DE# 27, 2/15/18) is
GRANTED in part and DENIED in part. Dr. Masory's opinion is excluded to the extent

he wishes to opine that the ladder is unsafe as opposed to the ladder being defective
and/or unreasonably dangerous. Dr. Masory is also not permitted to testify that a walkthrough device at the top of the ladder would have prevented the plaintiff's fall.

7

DONE AND ORDERED in Chambers, Miami, Florida, this )2018.

Copies to:
All Counsel of Record

9

day of March,