Sands v. Kawasaki Motors Corp. U.S.A.

Filing 91

ORDER granting in part and denying in part 60 Motion in Limine; denying 61 Motion for Summary Judgment; granting in part and denying in part 62 Motion in Limine; denying 63 Motion for Hearing; denying 72 Motion to Strike. Signed by Chief Judge William T. Moore on 9/30/09. (wwp)

RT

IN THE UNITED STATES DISTRICT COURT FO THE SOUTHERN DISTRICT OF GEORGIA 2119 SEP 30 AM 9:23 STATESORO DIVISION MEGAN SANDS, Plaintiff,

V.
KAWASAKI MOTORS CORPORATION U.S.A. and KAWASAKI HEAVY INDUSTRIES, LTD., Defendants.

CASE NO. CV608-009

ORD ER Before the Court are Defendants' Motion in [jimine to Exclude Testimony of Dr. Edward Karnes (Doc. 60), Motion in Limine to Exclude Testimony of Michael Burleson and Motion for Summary Judgment (Doc. 61). 62), fendants'

Motion to Exclude Testimony of Dr. Edward Karnes is GRANTED IN PART and DENIED IN PART. Dr. Karnes may concerning any specific alternative design. Motion to Exclude Testimony of Mr. Michael testify fendants' leson is may not

GRANTED IN PART and DENIED IN PART. Mr. Burle

testify as to the feasibility of an engine cut-off switch

or fixed handles as alternative designs Motion for Summary Judgment is DENIED.' BACKGROUND

Defendants'

In May 2006, Plaintiff Megan Sands was visting the Bahamas. (Doc. 61 at 2.) Plaintiff and a f4end, Ms.

Lauren Pinder, traveled along the shoreline using a personal watercraft ("PWC") designed by Defendant Ms. Pinder sat at the controls and operated the (Id.) , while

Plaintiff sat directly behind her at the rea4 of the watercraft. (Id.) After dismounting the PWC and visiting

with friends, the pair climbed back on the vehile, with Ms. Pinder behind the controls and P1aintif as a passenger. (Id.) On this occasion, Plaintiff fell off the

back of the PWC after Ms. Finder engaged the throttle. (Id.)
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Because riding on the PWC required straddling the

After careful consideration, Defendants' Mction for Hearing (Doc. 63) is DENIED. Also, Plaintiff ha filed a Motion to Strike Defendants' Motion for Summary Judgment. (Doc. 72.) In her Motion, Plaintiff argues that Defendants' Motion for Summary Judgment should be stricken because they failed to comply with Southern District of Georgia Local Rule 56, which required Defendants to submit a separate statement containing material facts tht are not in issue. However, the Magistrate Judge ganted as unopposed Defendants' Motion for Leave to File Separate Statement of Material Facts in Support of Mction for Therefore, Defenaants are Summary Judgment. (Doc. 85.) now in compliance with Local Rule 56. Accordingly, Plaintiff's Motion is DENIED. 2

seat, Plaintiff's legs were open when she enered the

water.

(Id.) Plaintiff was wearing a bikini bathing suit

from at the time. (Id.) Unfortunately, expelled water from the vehicle's jet nozzle, which leaves the PWC at a

high

rate

of speed, was forcibly injected into her vagina aid rectum, causing significant injuries. (Id.) As a result of the accident, Plaintiff filed this action, asserting strict liability and negligene claims based on failure to warn and defective design.2 Doc. 49.)

With respect to the failure to warn claim, Plaintiff alleges that Defendants failed to include adequato warnings about the dangers to PWC passengers and failed toplace the warnings in a location easily noticeable by PWC pssengers. (Id. ¶ j 26-35.) With regard to the defective desgn claim, Plaintiff alleges that the PWC could have been safer if it

In her Amended Complaint, Plaintiff labels two claims "design and manufacturing defect." (Doc. 49 t 3, 8.) However, Plaintiff's Amended Complaint only alleges facts supporting a claim for defective design. (Id. ¶J 17-25, 42-52.) Therefore, the Court assumes that, despite the label, Plaintiff is bringing only a claim for defective design. 3

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included a seatback, an engine cut-off switch, or f ixed handles. 3(Id. ¶$ 17-25.) Plaintiff has engaged Dr. Edward Karnes as a human factors expert to testify concerning Plaintiff's allure to warn claim and Mr. Michael Burlson as a PWC engineer to testify concerning Plaintiff's defective desi (Doc. 58.) Defendant has filed Motions to claim. lude the

testimony of each expert.

(Docs. 60, 62.) With respect to

Dr. Karnes, Defendants argue his testimony Ohould be excluded because he is not qualified to testify that the appropriate remedy is a design modification. (Doc. l 62 at 810.) With respect to Mr. Burleson, Defendants a0sert that his testimony concerning various reasonable alternative designs to the PWC should be excluded because t been adequately tested. (Doc. 60 at 8-19.) Plaintiff objects to the exclusion of eit expert. have not

Regarding Dr. Karnes, Plaintiff contends that he testified

3 In their Motion for Summary Judgment, Defendants argue that they are entitled to summary judgment on the negligence claims if they are awarded summary j dgment on the strict liability claims. Because the court has determined that Defendants are not entitled tb summary judgment on the strict liability claims, Defendants' Motion for Summary Judgment with respect to the negligence claims is DENIED. 4

only as to the need to modify the design base on the general ineffectiveness of PWC warning labels, n t on how the PWC should be redesigned. (Doc. 71 at 8.) ddressing

Mr. Burleson, Plaintiff argues that his tes^imony is reliable because he conducted several tests of the proposed seatback designs. (Doc. 70 at 5-7.)

In conjunction with the Motions to Exclude, efendants filed a Motion for Summary Judgment. In thei Motion,

Defendants argue that Plaintiff has failed t provide evidence concerning her failure to warn claim because her own expert admitted that the warnings were adequa e. (Doc. 61 at 7-9.) Also, Defendants contend that Plaint ff cannot prove her claim for defective design if the Cour excludes the testimony of Mr. Burleson. (Doc. 61 at 11- 7.) That

is, Defendants' Motion for Summary Judgment on the defective design claim relies on this Court gr nting the Motion to Exclude. ANALYSIS I. Motions to Exclude The admission of expert testimony is controlled by Federal Rule of Evidence 702:

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If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or of education, may testify thereto in the form an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case. "As the Supreme Court made abundantly clear inj Daubert, Rule 702 compels district courts to perform the critical gatekeeping function concerning the admissibility of expert scientific evidence." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (internal quotation mitted) The Eleventh Circuit Court of Appeals has explained that district courts fulfill that function by engaging in a three part inquiry, considering whether (1) the expert is qualified to testify competently regarding the matters he intendsto address; (2) the methodology by which the expert reaches his conclusions is sufficiently relible as to be determined by the sort of inqtiiry mandated in Daubert; and (3) the testilinony assists the trier of fact, through the application of scientific . . . expertise, to understand the evidence or to determine a fact issue. Id. While there will often be some overlap betw en these concepts of qualification, reliability, and he1fulness, they are distinct concepts that courts should be careful not to conflate. Quiet Tech. DC-8, Inc v. Hurel-Dubois

UK, Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).

burden

of establishing that these requirements are met sts with the proponent of the expert testimony, and not t1 Daubert challenger. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002) A. Dr. Karnes Lified to likely to oc. 62 at lified to

Defendants contend that Dr. Karnes is give his opinion that, because passengers are follow warnings, a safer design is warranted.4 7.) Plaintiff admits that Dr. Karnes is not

testify concerning any particular alternative deign, but argues that Dr. Karnes is qualified to testify as to the need for an alternative design based on the ineffctiveness of warnings to prevent this type of incident. 8.) The Court concludes that Dr. Karnes maytestify concerning the need for design modification in light of the ineffectiveness of PWC warnings. Here, Dr. Karnes's general opinion that design modifications are more effective than warning labels is not so far out-side his area of expertise to render his testimony unreliable. That is, it relies on his expertise regarding warn.ngs, not (Dc. 71 at

Defendants do not challenge Dr. Karnes's qualifications as an expert on warning labels.

designs. However, Dr. Karnes must limit his tesimony to only the need for an alternative design. He may not propose any specific design modification, which would be beyond his qualifications. Accordingly, Defendants' Motion to Exclude Dr. Karnes's testimony is GRANTED INPART and DENIED IN PART. B. Mr. Burleson

Defendants argue that Mr. Durleson's testimony should be excluded because his opinion concerning Oeatbacks, engine cut-off switches, or fixed handles as teasonable alternative designs is unreliable. (Doc. 601 at 11.) Specifically, Defendants contend that neither Mr. Burleson nor the engineering community adequately tested his proposed designs. (Id.) Also, Defendants note the lack of peer reviewed literature and Mr. Burleson's lack of publications regarding seatbacks on PWC5. () In

response, Plaintiff asserts that Mr. Burleson performed adequate testing of his proposed seatback. 6.) When a court considers the reliability of a prticular expert's opinion, it considers, to the extent possible, (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 rate of error of (Doc. 70 at 5

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the particular scientific technique, and (4) whether the technique is generally accepted in the scientific community. Quiet Tech., 326 F.3d at 1341 (citing McCorvey, 298 F.3d at 1256) . These factors "do not constitute a Kumho -- Tiro Co. v.

'definitive checklist or test.' "

Carmichael, 526 U.S. 137, 150 (1999) (quoting D .ubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993)). Rather, the applicability of these factors "dep nds upon the particular circumstances of the particular case at issue." Id. After reviewing Mr. Burleson's report (Doc. 58) and deposition testimony (Doc. 68), the Court conc1iides that Mr. Burleson's opinions were adequately tested to meet the reliability prong of Rule 702. In his report, Mr. Burleson States that he "tested passenger seatbacks or various personal watercraft." (Doc. 58, Burleson Repor at 9.) Also, Mr. Burleson testified during his deposition as to the level of testing he performed regarding a seatback design. (Doc. 64 at 131:8 to 136:14.) Mr.i Burleson concluded that, based on his testing, a seatb4ck could provide "both comfort and safety without sacrificing utility of the product or creating dangerous hazards." (Doc. 58, Burleson Rpt. at 9.) In light of this : testing,
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the Court is unable to say that Mr. Burleson's testimony regarding a fixed seatback is unreliable While Defendants note the lack of peer
I

reviewed

literature and Mr. Burlesori's lack of publicatins, they fail to offer any substantive argument tht these deficiencies make his testimony unreliable. Rgardless, these deficiencies are not so great as to afect the reliability of Mr. Burleson's testimony. As the court in Kumho Tire noted, not all the factors mentioned in Daubert are pertinent when assessing the reliability of ar expert's testimony. Kumho Tire, 526 U.S. at 151 ("It might not be surprising in a particular case, for example, tha a claim made by a scientific witness has never been the subject of peer review, for the particular application at kssue may never previously have interested any sci ntist.")

Therefore, this Court concludes that the absenceof peer reviewed literature and publications by Mr. Burleson do not render his testimony unreliable. Accordingly, Defendant's Motion to Exclude is DENIED with respect to Mr. urleson's testimony regarding the seatback.

Defendants' arguments that Mr. Burleson's teting was either insufficient or conducted under dissimilar conditions are unavailing. Both these arguments address the creditability of the testimony, not its admissibility. See Quiet Tech., 326 F.3d at 1341.

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Plaintiff failed to respond to Defendants' assertions that Mr. Burleson's testimony concerning the engine cut-off switch and fixed handles was unreliable. P aintiff's failure to respond indicates that she has no oppdsition to this portion of Defendants' Motion. See S.D. G. LR 7.5 ("Failure to respond [to a motion] within the applicable time period shall indicate that there is no opposition to a motion."). Accordingly, Defendants' Motion to Exclude is GRANTED with respect to Mr. Burleson's testimony regarding these two designs. II. Motion for Summary Judgment Summary judgment shall be rendered "if the leadings, depositions, answers to interrogatories, and admi j ssions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The "purpose of summary 4dgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need fortrial.' Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 587 (1986) (citing Fed. R. Civ. P. 56 advisory

committee notes) . Summary judgment is appropriatE when the

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nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." (1986). Celotex Corp. v. Catrett, 477 U.S. 317, 322 The substantive law governing th action

determines whether an element is essential. DeLorig Egup Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989) As the Supreme Court explained: [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and the with together file, on admissions affidavits, if any, which it be1ives demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d

604, 608 (11th Cir. 1991) . The Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the illonmovant. Matsushita, 475 U.S. at 587-88. However, the nonmoving

party "must do more than simply show that there is some

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metaphysical doubt as to the material facts." Id. at 586. A mere "scintilla" of evidence, or simply conclusory allegations, will not suffice. See, e.g., Tidwell v.

Carter Prods., 135 F.3d 1422, 1425 (11th Ci . 1998) Nevertheless, where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the Court should refuse to grant summary judgment." Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989) A. Failure to Warn Ba field v.

Defendants argue that Plaintiff has f iled to establish a material issue of fact with rspect to Plaintiff's failure to warn claim because her on expert concedes that Defendants' warnings were adequate. 6 (Doc. 61 at 8-9.) During his deposition, Dr. Karnes testified as follows: Q: From your standpoint the warning in this case was adequate? A: As far as I'm concerned, it was adequate. I wouldn't be in a position of saying the wariing, per se, is inadequate, that's correct. (Doc. 66 at 24:10-14.) In addition, Dr. Karnes testified

that his criticism would not render the existingwarnings The Parties agree that this case is governed by federal (Doc. 61 at 4; Doc. 75 at 6.) maritime law. 13
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inadequate. (Id. at 59:10-18.) However, Dr. Ka nes also stated that "[t]he warning fail[ed] to emphasize the fact that falling off to the rear is especially danger Ius for a person, especially females riding as a passenger." (Id. at 69:7-11.) In addition, Dr. Karnes opined that the inclusion of this information in a warning would e useful. (Id. at 69:15-22.) After reviewing Dr. Karnes's deposition test i mony, the Court concludes that Defendants' Motion for Summary Judgment must be denied because an issue remains as to the adequacy of Defendants' warning. It does appear that, at various points in the deposition, Dr. Karnes conceded the adequacy of the warning. However, Dr. Ka 7nes also testified as to the ineffectiveness of the wanings on several occasions. While this may make Dr. Karnes a very ineffective witness, it does not preclude a ury from finding that Defendants failed to warn Plaintif of both the extent of the danger and the severity of a y injury. See Quiet Tech., 326 F.3d at 1341 ("[I]t is not t e role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence.") herefore, Defendants are not entitled to summary judgtnent with respect to Plaintiff's failure to warn claim.

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B.

Defective Design

Defendants argue that they are entitled t^ summary judgment on Plaintiff's defective design clain because Plaintiff failed to provide admissible eviden e of a reasonable alternative design. (Doc. 61 at 9-10.) To establish a claim for defective design, Plaintiff must establish that "the foreseeable risks of harm posed by the product could have been reduced or avoided by they adoption of a reasonable alternative design." Restatement (Third)

of Torts: Products Liability § 2(b) (1998). DOfendants' argument, however, was premised on this Court l, granting their Motion to Exclude with respect to Mr. Burleson. Because the Court has denied Defendants' Motion to Exclude, Plaintiff has presented admissible evidence of a easonable alternative design. Accordingly, Defendants' M^Otion for

Summary Judgment is DENIED. CONCLUSION Defendants' Motion to Exclude Testimony of tr. Edward Karnes is GRANTED IN PART and DENIED IN PART. Dr. Karnes

7 The Court rejects Plaintiff's argument that, in the absence of a federal case directly on point, Geo^gia state law should apply to her design defect claim. S e Furness Withy (Chartering), Inc., Pan. v. World Energy Sys. Assocs., Inc., 772 F.2d 802, 807 n.5 (11th Cir. 1085) ("The district court properly looked to the Restatement [of Torts] for guidance in resolving the issues raised by this maritime case."). 15

may not testify concerning any specific alternative design. Defendants' Motion to Exclude Testimony of Mr. Michael Burleson is GRANTED IN PART and DENIED IN PA T. Burleson may not testify as to the feasibility of Mr. engine

cut-off switch or fixed handles as alternative designs. Defendants' Motion for Summary Judgment is DENIED. SO ORDERED this 7day of September, 2009.

WILLIAM T. MOORE, JR., e51EF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

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