Kim v. Crocs, Inc.

Filing 376

ORDER: 1) GRANTING IN PART AND DENYING IN PART DEFENDANT CROCS INC.'S MOTION TO EXCLUDE PLAINTIFFS' EXPERT MILLER ENGINEERING INC. 299 AND 2) DENYING PLAINTIFFS' MOTION TO EXCLUDE CERTAIN OPINIONS OF ANTHONY HAYTER. 295 . Signed by JUDGE JILL A. OTAKE on 12/7/2018. (afc) WRITTEN ORDER follows hearing held 11/16/2018. Minutes of hearing: ECF 373 .

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 16-00460 JAO-KJM

)
FLORA KIM, individually and as
Guardian Ad Litem for W.K., DAVID)
)
KANG,
)
)
Plaintiffs,
)
vs.
)
)
CROCS, INC., ET AL.
)
)
Defendants.
)
)
)
)
)

ORDER: 1) GRANTING IN PART AND
DENYING IN PART DEFENDANT
CROCS INC.’S MOTION TO EXCLUDE
PLAINTIFFS’ EXPERT MILLER
ENGINEERING INC. AND
2) DENYING PLAINTIFFS’ MOTION
TO EXCLUDE CERTAIN OPINIONS
OF ANTHONY HAYTER

ORDER: 1) GRANTING IN PART AND DENYING IN PART DEFENDANT
CROCS INC.’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT MILLER
ENGINEERING INC. AND 2) DENYING PLAINTIFFS’ MOTION TO
EXCLUDE CERTAIN OPINIONS OF ANTHONY HAYTER
INTRODUCTION
This products liability action arises out of an accident at the Hilton Hawaiian
Village where W.K.’s shoe became entrapped in an escalator. The parties have
filed multiple motions to exclude expert opinions and testimony, two of which are
addressed herein. For the reasons articulated below, the Court: 1) GRANTS IN
PART AND DENIES IN PART Defendant Crocs Inc.’s (“Defendant”) Motion to
Exclude Plaintiffs’ Expert Miller Engineering Inc. and 2) DENIES Plaintiffs Flora

1

Kim and David Kang’s (collectively “Plaintiffs”) Motion to Exclude Certain
Opinions of Anthony Hayter.
LEGAL STANDARD1
Rule 702 of the Federal Rules of Evidence (“FRE”) governs the
admissibility of expert evidence.2 Clausen v. M/V New Carissa, 339 F.3d 1049,
1055 (9th Cir. 2003). FRE 702 allows the admission of expert testimony when
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It is unclear why counsel extensively (and near exclusively) rely on out-of-circuit
appellate and district court opinions, when no shortage of Ninth Circuit law exists.
Pro hac vice counsel should take greater care to familiarize themselves with the
applicable law in this district for both substantive and procedural issues. The
parties are also reminded to acknowledge the sources they reference. In their
Opposition to Defendant’s Motion, Plaintiffs copied the legal standard from City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043-44 (9th Cir. 2014), without
attributing it to that case. Doc. No. 339 at 7-8.
2

FRE 702 provides:
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.
2

scientific, technical, or other specialized knowledge will help the trier of fact
understand the evidence or determine a fact in issue. Fed. R. Evid. 702; United
States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001), amended by 246 F.3d 1150
(9th Cir. 2001) (To be admissible, “expert testimony must . . . address an issue
beyond the common knowledge of the average layman”).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court, focusing on the admissibility of scientific expert testimony, found
that such testimony is admissible only if it is both relevant and reliable. Id. at 589.
“Expert opinion testimony is relevant if the knowledge underlying it has a valid
connection to the pertinent inquiry. And it is reliable if the knowledge underlying
it has a reliable basis in the knowledge and experience of the relevant discipline.”
Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010); Daubert, 509 U.S. at 591
(“Expert testimony which does not relate to any issue in the case is not relevant
and, ergo, non-helpful.”). The court must make “a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically
valid and . . . whether that reasoning or methodology properly can be applied to the
facts in issue.” Daubert, 509 U.S. 592-93. The presiding judge’s role (or
gatekeeping function) in ensuring the reliability and relevancy of expert testimony
extends to all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 146
(1999).

3

Daubert outlined nonexclusive factors—“(1) whether the theory can be and
has been tested, (2) whether the theory has been peer reviewed and published, (3)
what the theory’s known or potential error rate is, and (4) whether the theory
enjoys general acceptance in the applicable scientific community”— that may bear
on the determination regarding the reliability of a particular scientific theory or
technique. Murray v. S. Route Mar. SA, 870 F.3d 915, 922 (9th Cir. 2017) (citing
Daubert, 509 U.S. at 593-94).
The test of reliability is flexible and Daubert’s list of specific factors
neither necessarily nor exclusively applies to all experts or in every
case.[] The list of factors was meant to be helpful, not definitive,[]
and the trial court has discretion to decide how to test an expert’s
reliability as well as whether the testimony is reliable,[] based on the
particular circumstances of the particular case.
Primiano, 598 F.3d at 564 (citations omitted) (internal quotations omitted).
District courts have broad latitude in determining reliability and deciding how to
determine reliability. Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998,
1017 (9th Cir. 2004). “A district court may permissibly choose not to examine
factors that are not ‘reasonable measures of reliability in a particular case.’”
Murray, 870 F.3d at 922.
The Daubert inquiry focuses on the reliability of “principles and
methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at
595; Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)
(“Daubert II”). The district court’s function is to “screen the jury from unreliable
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nonsense opinions, but not exclude opinions merely because they are
impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960,
969 (9th Cir. 2013). It “is not tasked with deciding whether the expert is right or
wrong, just whether his testimony has substance such that it would be helpful to a
jury.” Id. at 969-70; Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir.
1998) (identifying second Daubert requirement that an expert’s opinions assist the
trier of fact).
“The requirement that the opinion testimony ‘assist the trier of fact’ ‘goes

primarily to relevance.’” Primiano, 598 F.3d at 564 (citation omitted). The
relevancy, or “fit,” requirement, demands that “proposed expert testimony is
‘relevant to the task at hand,’ . . . i.e., that it logically advances a material aspect of
the proposing party’s case.” Daubert II, 43 F.3d at 1315 (citation omitted).
Experts who satisfy FRE 702 “may testify and the jury decides how much weight
to give that testimony.” Primiano, 598 F.3d at 565.
DISCUSSION
A.

Defendant’s Motion to Exclude Expert Miller Engineering Inc.
Defendant moves to exclude all opinions rendered by Miller Engineering,

Inc. (“MEI”) because they are unreliable, irrelevant, and cannot assist the trier of
fact. Defendant identifies the following deficiencies: 1) the opinions are based on
self-selected unique testing methods that are not scientifically reliable,

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independently tested or peer-reviewed; 2) MEI did not perform or supervise the
actual tests; 3) the opinions are unsupported by the data; 4) MEI made no effort to
connect their work product to the actual facts of the case; 5) MEI’s ultimate
causation opinion does not follow from their test results and is merely its ipse dixit;
and 6) there are no relevant opinions in support of Plaintiffs’ failure to warn claim.
Plaintiffs retained MEI to determine 1) “whether a defect in the Crocband
rendered it dangerous for its intended or reasonably foreseeable use”; 2) “whether
that defect was a cause of W.K.’s injuries”; and 3) “to what extent the warnings
provided by Crocs, if any, provided adequate instructions for safe use and warned
of the dangers of escalator entrapment.” Doc. No. 283-2 at 1. The MEI report3
was prepared by Dr. James Miller and Bradley Cook, both of whom Plaintiffs have
designated as expert witnesses. Among other things, the report summarizes five
tests—shoe material and configuration characterization; shoe sole material
compression testing; whole-shoe compression testing; coefficient of friction
testing; and hardness testing—and their results. Id. at 17-24.

3

Although the report was filed under seal in connection with Defendant’s Motion
for Summary Judgment, the Court discusses its contents to the same extent as the
parties, and as necessary to address this Motion in this publicly available Order. In
the future, the parties will be expected to submit all relevant exhibits with the
corresponding motions. The Court will not consider exhibits attached to other
filings or arguments incorporated by reference.
6

1. Request to Strike Mr. Cook’s and Dr. Elizabeth Buc’s Declarations
The Court preliminarily addresses Defendant’s request to strike Mr. Cook’s
and Dr. Elizabeth Buc’s declarations pursuant to FRCP 37(c)(1). Defendant claims
that these declarations constitute an improper attempt to supplement MEI’s
opinions. The Court disagrees.
Federal Rule of Civil Procedure (“FRCP”) 26(a)(2)(A) only requires
disclosure of the identities of witnesses who may be used at trial to present
evidence under FRE 702, 703, or 705.4 Fed. R. Civ. P. 26(a)(2)(A) (emphasis
added). Such witnesses must provide a written report. Fed. R. Civ. P. 26(a)(2)(B).
FRCP 37(c)(1) sanctions pertain solely to witnesses identified under FRCP 26(a).
Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e),5 the party is not allowed to use that . . .

4

Defendant misstates FRCP 26(a)(2)’s requirement. Reply at 4 (FRCP 26(a)(2)
“requires the parties to disclose the identities of each expert and, for retained
experts, disclose the expert’s opinions”). FRCP 26(a)(2) draws no distinction
between experts and retained experts. Defendant also misapprehends FRCP
26(a)(2) to apply to any expert witness, despite its clear limitation to experts who
will be used to present evidence at trial. Heading number 2 in the Reply states:
“Buc’s Affidavit Should Be Excluded As Entirely New Testimony Offered by a
Witness Previously Disclosed as Non-Testifying.” Id. at 7. Statements in a
declaration do not constitute expert testimony presented at trial.
5

FRCP 26(e) addresses supplementation of experts “whose report[s] must
be disclosed under rule 26(a)(2)(B).” Fed. R. Civ. P. 26(e)(2).

7

witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.”).
Dr. Buc is not a testifying witness, therefore, FRCP 26(a) does not govern
the disclosure of her identity or other information, and FRCP 37(c) does not
provide a basis to strike her declaration.
Although Mr. Cook is a testifying expert who provided a report, neither does
FRCP 37(c)(1) support the striking of his declaration. The Court finds that Mr.
Cook’s declaration does not constitute improper supplementation and Defendant’s
attempt to characterize it as such is without merit. Interestingly, Defendant seeks
relief under FRCP 37(c)(1), yet its arguments and non-controlling legal authority
on pages 5-7 of the Reply concern sham affidavits, an entirely distinct concept that
arises in the summary judgment context.6
Even if the issue were properly before the Court, Defendant’s examples
demonstrate that it has fabricated contradictions and misrepresented the content of
the exhibits referenced. For example, Defendant argues that “Cook testified in his
deposition that the client asked MEI to add additional Crocs’ models, and only
after the Crocband tests did not yield desired results.” Reply at 7. The cited
portion of Mr. Cook’s deposition says nothing of the sort.
6

The sham affidavit rule prevents a party from creating “an issue of fact by an
affidavit contradicting his prior deposition testimony.” Yeager v. Bowlin, 693 F.3d
1076, 1080 (9th Cir. 2012) (quoting Van Asdale v. Int'l Game Tech., 577 F.3d 989,
998 (9th Cir. 2009)) (internal quotation omitted).
8

Q:

But also without the Crocband around the exterior?

A:

Correct, without the Crocband exterior, correct.

Q:

Why was that important to your testing?

A:

Really wanted to just evaluate that as a variable. I didn’t want
to have results for the Crocband and then not be able to know if
the band itself was responsible for those results or interacted or
interplayed in some way. Likewise for the holes and the
perforations, to see if that affected any of the results.

Q:

And what did you find in that respect?

A:

I believe in general, without looking at the specific results, that
the Crocband did have a different coefficient of friction slightly
and it did have a slightly different hardness.

Reply, Ex. H at 53:15-54:3. Thus, not only is Defendant’s reliance on the sham
affidavit rule misplaced, its arguments and examples would not entitle it to relief.
For these reasons, the Court DENIES Defendant’s request to strike Mr.
Cook’s and Dr. Buc’s declarations.
2. First Daubert Prong – MEI’s Opinions are Reliable
Defendant argues that MEI’s opinions are unreliable because MEI did not
conduct any of the five tests at its facility, using its equipment, or under its
supervision. Plaintiffs explain that all testing was performed by or under MEI’s
supervision and it worked with several consulting experts to perform some of the
underlying testing and to gather data which MEI analyzed and evaluated in
forming its opinions.

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In seeking exclusion on the basis of unreliability, Defendant attempts to
impose non-existent standards. Defendant deems unreliable MEI’s opinions
because Mr. Cook failed to perform, review, and understand the tests discussed in
MEI’s report. Daubert does not require that testing occur at an expert’s lab, or that
all testing be supervised by the expert. Therefore, to the extent this Motion is
premised on those arguments, it is DENIED.
FRE 703 expressly authorizes experts to “base an opinion on facts or data in
the case that the expert has been made aware of or personally observed.” Fed. R.
Evid. 703. The facts or data upon which an expert forms an opinion on a particular
subject need not be admissible “[i]f experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on the subject.” Id.
“[A]n expert is permitted wide latitude to offer opinions, including those that are
not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592;
Monsanto Co. v. David, 516 F.3d 1009, 1015 (Fed. Cir. 2008) (citing Sweet v.
United States, 687 F.2d 246, 249 (8th Cir. 1982); Data Line Corp. v. Micro Techs.,
Inc., 813 F.2d 1196, 1200-01 (Fed. Cir. 1987)) (finding that experts are not
required to obtain the bases for their opinions from personal perception).
Here, Mr. Cook stated in his deposition that engineers, including him,
routinely rely on material scientists such as Dr. Buc to provide data about material
composition. Opp’n, Ex. A at ¶¶ 5, 7-8. He also explained that measuring

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compressibility and elongation are standard and acceptable engineering tests; he
has performed coefficient of friction testing on approximately 50 occasions; and
surface hardness is a standard engineering test that he is qualified to perform and
evaluate. Id. at ¶¶ 9-10, 12-13, 16. The Court finds that the tests conducted in this
case would be reasonably relied upon by experts, and MEI’s opinions shall not be
excluded merely because MEI did not personally conduct the tests. Monsato, 516
F.3d at 1015 (“[N]umerous courts have held that reliance on scientific test results
prepared by others may constitute the type of evidence that is reasonably relied
upon by experts for purposes of Rule of Evidence 703.”).
Defendant further contends that MEI’s testing utilized unique, modified
methods, and was not conducted in accordance with ASTM standards. Although
Defendant cites Daubert’s “can be (and has been) tested” factor, it relies on a lack
of peer review and independent studies as dispositive of unreliability. In
particular, Defendant argues that Plaintiffs cannot establish that the two studies
relied upon by MEI—the Arthur Little Study (“Little study”) and Japan’s National
Institute of Technology and Evaluation Report (“NITE report”)—satisfy FRE 702,
703, and 902. Again, Defendant endeavors to impose requirements that do not
exist. It claims that Plaintiffs must show that the Little study and NITE report are
admissible on their own. Yet the case relied upon for this proposition contains no

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such requirement. See In re James Wilson Associates, 965 F.2d 160, 172-73 (7th
Cir. 1992).7
Defendant posits that the Little study does not provide a foundation for
MEI’s methodology and the NITE report is inadmissible for lack of authentication
under FRE 902 and relevance pursuant to FRE 702, and also lacks reliability.
These arguments are without merit. Defendant cites Geshke v. Crocs, Inc., 889 F.
Supp. 2d 253, 262 (D. Mass. 2012), aff'd, 740 F.3d 74 (1st Cir. 2014), to support
its request to reject the NITE report and exclude MEI opinions referring to or
relying upon the same. Geshke is distinguishable because it concerned the
admissibility of the NITE report itself on summary judgment. The Geshke court
found the NITE report to be inadmissible because it had not been properly

7

In fact, the court stated:
An expert is of course permitted to testify to an opinion formed on the
basis of information that is handed to rather than developed by him—
information of which he lacks first-hand knowledge and which might
not be admissible in evidence no matter by whom presented. Fed. R.
Evid. 703. And in explaining his opinion an expert witness normally
is allowed to explain the facts underlying it, even if they would not be
independently admissible. But the judge must make sure that the
expert isn’t being used as a vehicle for circumventing the rules of
evidence. Gong v. Hirsch, 913 F.2d 1269, 1272-73 (7th Cir.1990).
The fact that inadmissible evidence is the (permissible) premise of the
expert’s opinion does not make that evidence admissible for other
purposes, purposes independent of the opinion.

Id.

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authenticated and there was an absence of “expert testimony reliably relating the
contents of the . . . report and its conclusions to the circumstances of N.K.’s
accident.” Id. at 262-63. Geshke does not provide a basis to reject the NITE report
as admissible evidence, nor exclude MEI’s related opinions.
As already discussed, facts or data need not be admissible for the expert
opinion to be admissible “[i]f experts in the particular field would reasonably rely
on those kinds of facts or data in forming an opinion on the subject.” Fed. R. Evid.
703. Even when “facts or data would otherwise be inadmissible, the proponent of
the opinion may disclose them to the jury . . . if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial effect.” Id.
In the present case, Defendant has not addressed Daubert’s testability factor.
Scientific reliability can be found where the methodology “can be or has been
tested.” City of Pomona, 750 F.3d at 1046 (quoting Cooper v. Brown, 510 F.3d
870, 880-81 (9th Cir. 2007)). The relevant inquiry “is whether an expert’s
methodology can be ‘challenged in some objective sense, or whether it is instead
simply a subjective, conclusory approach that cannot reasonably be assessed for
reliability.’” Id. (quoting Fed. R. Evid. 702 Advisory Committee’s Note to 2000
Amendments). “Testability ‘assures the opponent of proffered evidence the
possibility of meaningful cross-examination (should he or someone else undertake
the testing).’” Id. (quoting United States v. Mitchell, 365 F.3d 215, 238 (3d Cir.

13

2004)). The primary requirement under the testability factor is that “[s]omeone
else using the same data and methods . . . be able to replicate the result[s].” Id. at
1047 (alterations in original). Plaintiffs represent that MEI provided sufficient
information to enable a third-party to replicate the testing.
As for challenges to adherence to ASTM standards, said standards were
followed and/or any modifications were made in accordance with the standards.
Even if this were not the case, adherence to protocol is typically an issue for the
jury. Id. The Ninth Circuit takes a “more measured approach to an expert’s
adherence to methodological protocol [that] is consistent with the spirit of Daubert
and the Federal Rules of Evidence: there is a strong emphasis on the role of the
fact finder in assessing and weighing the evidence.” Id. at 1048. Accordingly, to
the extent that Defendant objects to MEI’s testing as unique and/or modified, the
Court DENIES the Motion. The Court finds that the testing satisfies FRE 702.
Defendant also argues that MEI’s opinions are unreliable because of the
significant bias caused by MEI’s self-selection of the tested Crocs shoes.
Defendant engages in speculation regarding MEI’s bases for the sampling of shoes
selected for the various tests. The record contradicts Defendant’s theories about
the allegedly biased shoe sampling. First, MEI selected multiple Crocs shoes for
testing, and those selected in addition to the Crocband (which W.K. was wearing
during the incident) were the most commonly available Crocs at the time. The

14

Crocs that MEI elected not to test were comprised of different materials and/or
MEI could not obtain a sufficient quantity for testing. Contrary to Defendant’s
speculation, the evidence does not establish that the purchase of additional Crocs
models later in the testing process was driven by earlier test results.
Second, the mere fact that MEI did not include a flip-flop does not render
the opinions unreliable. Neither does the fact that all samples were not tested in
every test. These issues are more appropriately addressed through crossexamination and/or the presentation of contrary evidence. Daubert, 509 U.S. at
596.
3. Second Daubert Prong – MEI’s Opinions are Relevant
Defendant submits that MEI’s opinions do not satisfy Daubert’s relevance
prong in the following respects: 1) MEI’s conclusions do not accurately reflect the
results of the tests performed and therefore do not satisfy the “fit” requirement;
2) MEI’s “more likely than not” causation opinion is nothing more than ipse dixit;
and 3) MEI did not apply its opinions to the facts of this case.
a.

MEI’s Opinions “Fit” the Issues in This Case

Under the “fit,” or relevancy, requirement, expert testimony must be relevant
to the task at hand and must assist the trier of fact. Defendant’s arguments suggest
that it misunderstands the “fit” requirement. Whether or not sufficient facts and
data exist to support MEI’s conclusions is not salient to the “fit” requirement.

15

Instead, relevance looks at the “fit” between expert testimony and an issue in the
case. Daubert II, 43 F.3d at 1320. Disregarding Defendant’s flawed
characterization of MEI’s testing,8 the Court finds that MEI’s opinions are
relevant.
In this action, Plaintiffs allege that Defendant was on notice that children
wearing Croslite shoes suffered severe injuries when the shoe became trapped in
small spaces on escalators; Defendant continued to manufacture, market, advertise,
distribute, and sell its Croslite shoes for children without issuing any further public
warnings or safety advisories except for small hang labels attached to some
products; Defendant negligently and improperly designed and manufactured the
footwear purchased for W.K.; Defendant had a duty to warn purchasers of the
potential danger associated with using its footwear on escalators; Defendant’s
failure to adequately warn Plaintiffs of the potential danger of using Crocs on
escalators directly and proximately caused injuries and damages; and Defendant
breached its implied warranty of merchantability. Doc. No. 45 at ¶¶ 29, 31, 34, 3637, 39. MEI’s opinions clearly relate to and address Plaintiffs’ claims and would
assist the trier of fact.

8

For example, Defendant continues to insist that MEI did not test the Crocs
Classic Clog, when the evidence establishes otherwise.
16

b.

MEI’s Opinions Are Not Ipse Dixit

Defendant seeks to exclude MEI’s opinion that the Crocband properties
were “more likely than not” a cause of W.K.’s entrapment on the basis that it is
nothing more than ipse dixit. When there is “too great an analytic gap between the
data and the opinion proffered,” district courts are not required under either
Daubert or the Federal Rules of Evidence “to admit opinion evidence that is
connected to the existing data only by the ipse dixit of the expert.” Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997). According to Defendant, MEI’s conclusions
are deficient because they are not supported by statistical or mathematical analysis
or evidence that the incident would not have happened if other children’s shoes
were worn at the time. MEI’s area of expertise is engineering. An impermissible
analytic gap is not created merely because MEI’s opinions are not statistically
and/or mathematically quantified. As with most of Defendant’s arguments, it is
evident that Defendant disagrees with MEI’s opinions, but that alone cannot serve
as a basis for exclusion. Defendant’s challenges bear on weight, not admissibility,
and are more properly the subject of cross-examination.
c.

MEI Applied its Opinions to the Facts of This Case

Defendant asserts that MEI failed to reliably apply its principles and
methods to the facts of the case. However, MEI in fact applied its opinions to the
circumstances of this case, even if not to the escalator at Hilton Hawaiian Village.

17

The testing involved the type of shoe worn by W.K. and concerned its propensity
to become entrapped in escalators. The Court therefore finds that MEI’s opinions
are relevant.
4. Dr. Miller’s Opinions Regarding the Failure to Warn are Relevant
Defendant lastly challenges MEI’s opinions regarding warnings. It wishes
to exclude: Dr. Miller’s opinions that are derived from Mr. Cook’s conclusions to
the extent those opinions are inadmissible; opinion no. 4, which speaks to an issue
of law; and Dr. Miller’s opinions that do not pertain to Crocs shoes. In light of the
Court’s determination that Mr. Cook’s opinions are admissible, Dr. Miller’s
opinions will not be excluded for relying on those opinions. The Court also
declines to exclude Dr. Miller’s opinions simply because he testified that the
language on the recommended warning label did not need to specifically reference
Crocs. His opinions are nevertheless relevant and pertain to the claims in this case.
The Court agrees, however, that opinion no. 4 should be excluded to the
extent MEI has rendered a legal opinion. Opinion no. 4 states that “Crocs had a
duty to provide adequate instructions for safe use and a duty to warn of the dangers
inherent in using Crocs in an intended or reasonably foreseeable manner.” Doc.
No. 283-2 at 29. Whether a duty is owed is a question of law. Kealoha v. E.I. du
Pont de Nemours & Co., 82 F.3d 894, 899 (9th Cir. 1996). Expert opinions are not
objectionable merely because they embrace an ultimate issue. Fed. R. Evid 704(a).

18

That said, expert witnesses cannot offer opinions as to their legal conclusions, i.e.,
opinions on ultimate issues of law. Hangarter, 373 F.3d at 1016.
At the hearing, Plaintiffs’ counsel clarified that MEI did not intend to
suggest a legal duty and offered to ensure that MEI does not offer it as a legal duty.
Inasmuch as MEI has offered a legal conclusion, as drafted, opinion no. 4 must be
excluded and any related testimony precluded. The Motion is therefore
GRANTED as to opinion no. 4. If MEI is able to present this opinion as
something other than a legal duty, it might be admissible, depending on the
circumstances under which it is offered.
Based on the foregoing, the Court finds that MEI’s opinions are relevant and
reliable, with the exception of opinion no. 4. Thus, the Motion is GRANTED IN
PART AND DENIED IN PART.
B.

Plaintiffs’ Motion to Exclude Certain Opinions of Dr. Anthony Hayter
Plaintiffs ask the Court to exclude certain opinions and testimony of Dr.

Anthony Hayter, one of Defendant’s expert witnesses, on the grounds that the
subject opinions fall outside the scope of his area of expertise as a mathematician
and statistician and are based on false assumptions. Dr. Hayter’s report, which
contains the opinions that are the subject of this Motion, responds to the MEI
report.

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1. Scope of Expertise
Plaintiffs request that the Court exclude opinion nos. 3, 6, 8, and 9 offered
by Dr. Hayter. Plaintiffs argue that because these opinions fall outside the scope of
Dr. Hayter’s expertise, they are improper and unreliable. In particular, Plaintiffs
challenge Dr. Hayter’s lack of experience with the testing conducted by MEI and
his corresponding lack of qualifications to offer opinions about the test results.
Although Plaintiffs do not refute Dr. Hayter’s qualifications as a statistician, they
emphasize that Dr. Hayter is not an engineer, he does not have an engineering
degree, and he lacks certifications in the engineering trade. The exclusion of
expert testimony should be reserved for instances of irrelevant or unreliable
testimony, as “[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.” Daubert, 509 U.S. at 596.
After careful consideration of the record and the parties’ submissions, the
Court DENIES Plaintiffs’ request to exclude Dr. Hayter’s opinion nos. 3, 6, 8 and
9. The Court addresses each challenged opinion in turn.
a. Opinion No. 3
Plaintiffs submit that Dr. Hayter exceeds the scope of statistical evaluation
of MEI’s test results by opining “that no real-world conclusions about escalatory
entrapment can be drawn from the engineering testing—an opinion that

20

necessarily requires an understanding of the actual tests performed and the
significance of the resulting data.” Reply at 4-5. Defendant describes opinion
no. 3 as addressing the flaws in MEI’s conclusions from a mathematical/statistical
standpoint. Opinion no. 3 states:
3. The testing and analysis performed by JMM9 consisted only of
shoe tests performed in a laboratory, without any reference to or
involvement with any kind of escalator. No connections were made
by JMM, and in fact it is not possible to make any connections based
on the data JMM obtained, to how real world foot entrapment risks on
an escalator relate to the combination of shoes worn and the
conditions and characteristics of the escalators.
Mot., Ex. B at 19.
Based on its review of opinion no. 3, the Court finds that Plaintiffs overstate
the conclusion reached by Dr. Hayter. In support of opinion no. 3, Dr. Hayter
explained that MEI’s “testing, analysis, and conclusions are based upon the
unjustified and undiscussed assumption that any comparisons that they make
between the different shoe types that they considered in their laboratory tests, will
actually result in different risks of foot entrapment that will be manifested for all
types of escalator conditions.” Id. at 20. The crux of opinion no. 3 is that MEI
failed to conduct real world testing. At his deposition, Mr. Cook conceded that he
considered “just the shoe portion of those variables so for a given escalator at any
given moment which shoes are more or less likely to be entrapped.” Id. Dr.

9

Dr. Hayter refers to MEI as JMM.
21

Hayter’s observations about perceived shortcomings with the testing were not
founded upon engineering principles. Rather, they were premised on the lack of
real world testing on escalators and on Mr. Cook’s admission that escalator
conditions were not accounted for, and Dr. Hayter’s opinion is within the scope of
his expertise. Consequently, the Motion is DENIED to the extent it seeks
exclusion of opinion no. 3 and related testimony.
b. Opinion No. 6
Plaintiffs contend that Dr. Hayter’s lack of qualification to perform the
testing conducted by MEI renders him unqualified to testify about the significance
of data from engineering testing. Defendant counters that Dr. Hayter merely called
into question MEI’s attempt to fit their conclusion to the data obtained
notwithstanding an absence of real world testing. Opinion no. 6 states, in pertinent
part:10

10

Plaintiffs’ challenge is limited to the first sentence of opinion no. 6. The
remainder of opinion no. 6 states:
In addition, JMM did not present any real world data of foot
entrapments of children’s shoes on escalators in order to substantiate
and validate their claims that Crocs children’s shoes have an increased
risk of foot entrapment on an escalator relative to other types of
children’s shoes that they selected for testing. In fact, there is no
database available to properly assess the risk of foot entrapment on an
escalator for Crocs children’s shoes relative to any other type of
children’s shoes.

Mot., Ex. B at 30.
22

6. JMM only presented a theoretical analysis of the foot entrapment
risks on escalators of Crocs children’s shoes compared with the other
types of children’s shoes that they selected for testing, but they did not
carry out any foot entrapment tests on escalators.
Id. at 30.
A plain reading of this portion of opinion no. 6 reveals that Dr. Hayter did
not opine about the meaning of test results. Instead, he identified a perceived
deficiency with MEI’s analysis of foot entrapment risks: the absence of real life
foot entrapment tests. Citing Mr. Cook’s deposition, Dr. Hayter expounded that
MEI’s theoretical analysis of foot entrapment risks of Crocs children’s shoes
compared with other types of children’s shoes were based upon laboratory
experiments that MEI performed, not foot entrapment tests on escalators. Id. Mr.
Cook conceded that MEI did not recreate the escalator scenario at Hilton Hawaiian
Village. Id. Dr. Hayter simply highlighted the absence of certain testing—it is
undisputed that MEI did not perform tests on actual escalators—and how that
affected MEI’s analysis; therefore the Court finds that Plaintiffs have not
established that the portion of opinion no. 6 at issue falls outside the scope of Dr.
Hayter’s area of expertise. Accordingly, the Court declines to exclude the
challenged portion of opinion no. 6 or preclude testimony regarding the same.
c. Opinion No. 8
Plaintiffs request exclusion of a portion of opinion no. 8 based on Dr.
Hayter’s purported lack of expertise with respect to coefficient of friction testing
23

and evaluation.11 In particular, Plaintiffs challenge Dr. Hayter’s evaluation of
coefficient of friction results and his comparison of these results with other studies,
such as the Arthur D. Little study relied upon by MEI. Defendant explains that Dr.
Hayter merely referenced the Little study and compared it to MEI’s data results
from the coefficient of friction testing; that is, Dr. Hayter evaluated data, not the
underlying testing. The Court agrees.
Opinion no. 8 provides, in pertinent part:12

11

Plaintiffs argued:
Dr. Hayter is not qualified to testify that Miller Engineering’s
coefficient of friction testing results do not provide any evidence that
Crocs Kids Crocband shoes have a higher risk of foot entrapment on
escalators than the other children’s shoes since he is not an engineer,
has never performed coefficient of friction testing, and has never
testified about the results of such testing before this case.

Mem. in Supp. of Mot. at 12-13. Footnote 24 appears at the end of this sentence in
the main body of the memorandum. However, there is no footnote 24 in the footer
of the memorandum.
12

As with opinion no. 6, Plaintiffs only challenges the first sentence of opinion
no. 8. For context, the remainder of opinion no. 8 states:
In addition, JMM did not conduct coefficient of friction tests on all of
the shoes that they had selected for testing, and there was confusion
and inaccuracies in the transmission of the coefficient of friction data
from Avomeen Analytical Services to JMM, which undermines both
the integrity of the data set and any conclusions that can be drawn
from the data set.
Mot., Ex. B at 39.
24

8. JMM’s coefficient of friction testing results do not provide any
evidence that Crocs Kids Crocband shoes have a higher risk of foot
entrapment on escalators than the other children’s shoes that they
selected for testing.
Id. at 39. Dr. Hayter began his analysis by referencing the Little study for the
following propositions: 1) “[T]he initiation of entrapment of a test wedge is
strongly related to the coefficient of friction,” id., and 2) “[W]hen the coefficient of
friction between the skirt panel and the test object is approximately 0.6, initiation
occurred in every case.” Id. Given this information, Dr. Hayter explained that the
Little study identified “a threshold level of 0.6 for the coefficient of friction for
foot entrapments.” Id. at 40. Compiling coefficient of friction results from the
MEI report, Dr. Hayter noted that four of six shoes tested had coefficient of
friction side values larger than the Crocs Kids Crocband shoes (the shoe selected
by MEI as most representative of the shoes worn by W.K. at the time of the
incident) and one shoe had a coefficient of friction sole value similar to the Crocs
Kids Crocband shoes. Id. at 42-44. Dr. Hayter consequently opined that the
coefficient of friction test results did not provide evidence that Crocs Kids
Crocband shoes have a higher risk of foot entrapment on escalators as compared to
other children’s shoes that MEI tested.
Contrary to Plaintiffs’ contentions, Dr. Hayter did not opine about the
validity of the coefficient of friction testing, nor the conclusions reached. He
merely observed that the test result data did not support the conclusion that Crocs
25

Kids Crocband shoes have a higher risk of foot entrapment than other children’s
shoes because other shoes had similar or higher coefficient of friction side and sole
values. Therefore, the challenged portion of opinion no. 8 will not be excluded and
Dr. Hayter will not be precluded from testifying as to opinion no. 8.
d. Opinion No. 9
Plaintiffs reiterate that Dr. Hayter is unqualified to opine about how the
testing relates to overall entrapment potential. Defendant characterizes Dr.
Hayter’s opinion as an “analysis of the reliability of the data collected from MEI’s
testing and the analytical gap between that data and MEI’s conclusions.” Opp’n
at 10.
Opinion no. 9 states:
9. JMM’s other testing results (in addition to their coefficient of
friction testing results) do not provide any clear indication of their
claimed increased risk of foot entrapments on escalators for Crocs
Kids Crocband shoes relative to the other children’s shoes that JMM
selected for testing.
Mot., Ex. B at 45. To support this opinion, Dr. Hayter cited multiple tests
identified in MEI’s report—shoe material and configuration characterization, shoe
sole material compression testing, whole-shoe compression testing, and hardness
testing—and highlighted deficiencies with the data from each of the tests relative
to the conclusions offered by MEI. Id. at 45-48. For example, with respect to shoe
material and configuration characterization, “bulk composition” results (EVA sole

26

and body) were provided for the Crocs Kids Classic Clog and the Crocs Fun Lab
Justice League Lights Clog even though those shoes were not tested for material.
Id. at 45-46. The shoe sole material compression testing resulted in findings that
five of the shoes tested, including two Crocs, had relatively low compressive
stiffness and density, and were similar to one another, which caused Dr. Hayter to
opine that the “data does not provide any clear indication of [MEI’s] claimed
increased risk of foot entrapments on escalators for Crocs Kids Crocband shoes”
compared to other shoes tested. Id. at 47.
Dr. Hayter questioned the information provided by the data from whole-shoe
compression testing; namely, its lack of “clear indication of [MEI’s] claimed
increased risk of foot entrapments on escalators for Crocs Kids Crocband shoes
relative to the other children’s shoes that [MEI] selected for testing.” Id. at 47-48.
According to MEI’s report, the Crocs Kids Crocband shoe required less pressure
than the other shoes at 18 mm nominal compression, similar pressure to another
shoe at 15 mm nominal compression, and similar pressure to five other shoes at
10 mm nominal compression. Dr. Hayter found that MEI did not indicate how
these test results provided accurate and relevant information about comparative
practical foot entrapment risks on escalators between Crocs Kids Crocband shoes
and the other shoes within the testing sample. Id. at 47. Dr. Hayter similarly
concluded that MEI did not indicate how the hardness testing data provided

27

accurate information about comparative practical foot entrapment risks on
escalators. Id. at 48.
As the foregoing demonstrates, Dr. Hayter examined the various test results
and identified the lack of association between the data and MEI’s conclusion that
there exists a higher foot entrapment risk on escalators for Crocs Kids Crocband
shoes. He did not challenge the testing itself. For these reasons, the Court
DENIES the Motion to the extent it seeks exclusion of opinion no. 9 and
preclusion of corresponding testimony.
2. False Assumption
Plaintiffs additionally argue that opinion no. 2 must be excluded because it is
based on a false assumption and is therefore unreliable. Plaintiffs accuse Dr.
Hayter of stringing together partial answers from Mr. Cook’s deposition to opine
that MEI’s testing is biased given its decision not to test two pairs of Crocs
children’s shoes due to their perceived hardness. Plaintiffs claim that Mr. Cook’s
deposition testimony, even the cherry-picked portions cited by Dr. Hayter,
confirms that the decision not to test the shoes had nothing to do with perceived
hardness. Defendant responds that multiple factors influenced the decision not to
test the Crocs Swiftwater Boot, including tactile assessment.
Opinion no. 2 states:
2.
JMM’s testing results of Croc children’s shoes are biased
because they decided not to test two pairs of Crocs children’s shoes
28

due to their perceived hardness. This biased selection of Crocs
children’s shoes for testing implies that the JMM testing results
cannot be generalized to all types of Crocs children’s shoes.
Moreover, the elimination from testing of these two pairs of Crocs
children’s shoes reveals JMM’s intention, prior to testing, that they
only wanted to test “soft” Crocs children’s shoes, and it raises
questions about confirmation bias in their test results, and the overall
objectivity and impartiality of their complete analysis.
Id. at 16. Plaintiffs mischaracterize Mr. Cook’s deposition testimony. Mr. Cook
in fact testified that the decision not to test the Crocs Swiftwater Boots was partly
attributable to the composition of the sole, which he described as “hard compared
to the Croslite.” Mot., Ex. A at 36:5-10; 16-19. When asked whether his decision
not to test the boots was based solely on his tactile assessment of the boots, Mr.
Cook responded that the boots were multi-material, there were issues with
obtaining the product, and the boots looked and felt different. Id. at 36:25-37:21.
Mr. Cook’s deposition testimony clearly established that his tactile evaluation of
the boots—that they were harder and stiffer than the Croslite material—factored
into the decision not to test them. Therefore, Dr. Hayter has not made any false
assumptions and opinion no. 2 will not be excluded, nor any testimony related
thereto.
Based on the foregoing, the Court DENIES Plaintiffs’ Motion to Exclude
Certain Opinions of Anthony Hayter.

29

CONCLUSION
For the reasons stated herein, the Court GRANTS IN PART AND DENIES
IN PART Defendant Crocs Inc.’s Motion to Exclude Plaintiffs’ Expert Miller
Engineering Inc., filed June 22, 2018 (Doc. No. 299), and DENIES Plaintiffs’
Motion to Exclude Certain Opinions of Anthony Hayter, filed June 20, 2018 (Doc.
No. 295).
IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, December 7, 2018.

Civil No. 16-00460 JAO-KJM; Kim, et al. v. Crocs, Inc., et al.; ORDER: 1) GRANTING IN PART AND
DENYING IN PART DEFENDANT CROCS INC.’S MOTION TO EXCLUDE PLAINTIFFS’ EXPERT
MILLER ENGINEERING INC. AND 2) DENYING PLAINTIFFS’ MOTION TO EXCLUDE
CERTAIN OPINIONS OF ANTHONY HAYTER

30