Kim v. Crocs, Inc.

Filing 439

ORDER GRANTING IN PART AND DENYING IN PART: (1) GRANTING IN PART AND DENYING IN PART DEFENDANT/ THIRD-PARTY DEFENDANT/CROSS-CLAIMANT/ CROSS-CLAIM DEFENDANT OTIS ELEVATOR COMPANY'S MOTION TO PRECLUDE TESTIMONY OF JOHN W. KOSHAK A ND STRIKE REPORT OF ELEVATOR SAFETY SOLUTIONS, INC.; AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT/THIRD-PARTY DEFENDANT/CROSS-CLAIMANT/ CROSS-CLAIM DEFENDANT OTIS ELEVATOR COMPANY'S MOTION TO PRECLUDE TESTIMONY OF JOSEPH L. STABLER AND STRIKE REPORT OF STABLER ASSOCIATES, INC. 308 , 309 - Signed by JUDGE JILL A. OTAKE on 2/25/2019. (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FLORA KIM, individually and as
Guardian Ad Litem for W.K., and
DAVID KANG,
Plaintiffs,
vs.
CROCS, INC., ET AL.
Defendants.

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CIVIL NO. 16-00460 JAO-KJM
ORDER GRANTING IN PART AND
DENYING IN PART: (1) GRANTING
IN PART AND DENYING IN PART
DEFENDANT/ THIRD-PARTY
DEFENDANT/CROSS-CLAIMANT/
CROSS-CLAIM DEFENDANT OTIS
ELEVATOR COMPANY’S MOTION
TO PRECLUDE TESTIMONY OF JOHN
W. KOSHAK AND STRIKE REPORT
OF ELEVATOR SAFETY SOLUTIONS,
INC.; AND (2) GRANTING IN PART
AND DENYING IN PART
DEFENDANT/THIRD-PARTY
DEFENDANT/CROSS-CLAIMANT/
CROSS-CLAIM DEFENDANT OTIS
ELEVATOR COMPANY’S MOTION
TO PRECLUDE TESTIMONY OF
JOSEPH L. STABLER AND STRIKE
REPORT OF STABLER ASSOCIATES,
INC.

ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT/THIRD-PARTY DEFENDANT/CROSS-CLAIMANT/
CROSS-CLAIM DEFENDANT OTIS ELEVATOR COMPANY’S
MOTION TO PRECLUDE TESTIMONY OF JOHN W. KOSHAK AND
STRIKE REPORT OF ELEVATOR SAFETY SOLUTIONS, INC.; AND
(2) GRANTING IN PART AND DENYING IN PART DEFENDANT/
THIRD-PARTY DEFENDANT/ CROSS-CLAIMANT/ CROSS-CLAIM
DEFENDANT OTIS ELEVATOR COMPANY’S MOTION TO
PRECLUDE TESTIMONY OF JOSEPH L. STABLER AND STRIKE
REPORT OF STABLER ASSOCIATES, INC.

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. Defendant/ThirdParty Defendant/Cross-Claimant/Cross-Claim Defendant Otis Elevator Company
(“Otis”) seeks to exclude the expert opinions and testimony of John Koshak,
Plaintiffs Flora Kim and David Kang’s (collectively “Plaintiffs”) expert, and
Joseph Stabler, Defendant Crocs, Inc.’s (“Defendant”) expert. For the reasons
articulated below, the Court GRANTS IN PART AND DENIES IN PART Otis’
Motions.
LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence (“FRE”) governs the
admissibility of expert evidence.1 Clausen v. M/V New Carissa, 339 F.3d 1049,

1

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;

(continued . . .)
2

1055 (9th Cir. 2003). FRE 702 allows the admission of expert testimony when
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

(. . . continued)
(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.

3

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 Court’s 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).
A. Reliability
Daubert outlined the following nonexclusive factors that may bear on the
determination regarding the reliability of a particular scientific theory or technique:
“(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.” 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
4

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
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).
B. Relevance
“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). The
district court “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.”
Alaska Rent-A-Car, 738 F.3d 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). Experts who satisfy FRE 702 “may

5

testify and the jury decides how much weight to give that testimony.” Primiano,
598 F.3d at 565.
DISCUSSION
A.

Otis’ Motion to Preclude Testimony of John W. Koshak and Strike
Report of Elevator Safety Solutions
Otis seeks an order striking Elevator Safety Solutions, LLC’s March 2, 2018

report and precluding Mr. Koshak, its principal, from testifying. Alternatively,
Otis requests that portions of the report relating to Mr. Koshak’s February 18, 2018
site inspection be excluded, and that Mr. Koshak be precluded from testifying
about the same.
Plaintiffs allege that Otis negligently breached its duty to safely operate and
maintain the escalator involved in the incident. Mr. Koshak opined that “[t]he lack
of maintenance and inspections and the resulting condition of the escalator was
more likely than not a cause of W.K.’s foot becoming entrapped in the escalator.”
Mot., Ex. A at 36, ¶ 10 (opinion no. 10). He explained that a side-of-step
entrapment occurred in this case and that “[t]he gap between the moving step, in
combination with the stationary skirt’s friction, are the two primary mechanisms
that cause or contribute to this type of entrapment.” Id. at 3-4, ¶ B4.
Otis seeks exclusion of Mr. Koshak’s report and testimony on the following
grounds: (1) the condition of the subject escalator during his February 2018 site
inspection is not relevant to the condition of the escalator in 2014, which renders
6

his opinions unreliable and irrelevant; (2) the step-to-skirt gap measurements in
Figure 19 (2018 step gap measurements) in his report and Exhibit 5A (annotations
to Figure 19) to his deposition contain errors and are unreliable; (3) Mr. Koshak’s
opinions regarding the escalator skirt panel are unreliable because they are
premised on assumptions and speculation about the condition of the skirt panel at
the time of the incident; and (4) Mr. Koshak’s opinions regarding causation rely on
speculation and cherry-picked facts. The Court addresses each in turn.
1. The Condition of the Subject Escalator at the Time of the Incident is not
Logically Connected to the Condition Observed at the February 2018 Site
Inspection
Otis argues that Mr. Koshak’s opinions are irrelevant and poisoned because
they are based on fundamentally unreliable and flawed data and are based on the
assumption that the noncompliance and conditions he observed during his 2018
site inspection would have existed in 2014, when the incident occurred. In
particular, Otis focuses on the lack of a logical connection between the escalator’s
observed condition in 2018 and its condition in 2014 with respect to the step-toskirt gap measurements and the damaged skirt panel.
Plaintiffs counter that Mr. Koshak’s opinions are not solely or even
primarily based on his site inspection; they are based on maintenance records from
the relevant period, the step-skirt performance index test the day after the
entrapment, and deposition testimony from Otis’ corporate representative and Dr.

7

Kim. Plaintiffs submit that because Mr. Koshak’s observations are consistent with
the information and records available from the relevant time period, they are
logically connected.
“Expert testimony is admissible which connects conditions existing later to
those existing earlier provided the connection is concluded logically. Whether this
logical basis has been established is within the discretion of the trial judge and the
weaknesses in the underpinnings of the expert’s opinion go to its weight rather
than its admissibility.” Jones v. Otis Elevator Co., 861 F.2d 655, 662-63 (11th Cir.
1988) (citing Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1138 (3rd Cir.
1983)). When a logical basis exists for an expert’s opinion, credibility and weight
are determined by the jury, not the trial judge. Breidor, 722 F.2d at 1138-39.
a. Noncompliance
It is Otis’ position that Mr. Koshak’s opinions about noncompliance are not
relevant because he has failed to establish that the noncompliance he purportedly
observed in 2018 was present in 2014. The Court agrees that the requisite logical
connection is lacking. Although Mr. Koshak reviewed maintenance records, the
most recent records he reviewed were from March 2, 2015, nearly three years prior
to his site inspection, and after the date of the incident. Mot., Ex. A at 19.
Plaintiffs argue that Mr. Koshak’s observations about gap size were consistent with
the maintenance records from the relevant time period showing that Otis failed to

8

routinely measure the step-to-skirt gap size and perform a step-skirt index
performance test. However, in the portion of deposition testimony cited by
Plaintiffs, Mr. Koshak admitted that he lacked knowledge of the actual condition
but posited: “it is representative that if a company leaves it like this today, they
likely left it like that in the past.”2 Opp’n, Ex. C at 69:24-70:6. When asked about
the purpose of Figure 19,3 Mr. Koshak replied:
An illustration of whether this escalator had compliance issues and
utilizing that information to make some assumptions of, if it’s not
compliant now, could I assume, based on what I’m seeing, that it
wasn’t compliant then. How sure could I put that probability within a
reasonable degree of certainty. . . . But this tells me, overall, that there
are problems, that this escalator exceeds the deltas and exceeds the
widths, the width of the gap. And then, critically, do they exceed that
in an area that was adjacent to, near the incident, and that’s what all
that tells me.
Mot., Ex. F at 67:17-68:8. Mr. Koshak has offered nothing more than his
assumption to support this proposition. Hence, there is an absence of evidence
reflecting that the condition of the subject escalator in 2018 was connected to its
condition at the time of the incident. To this point, the Court finds Jones v. Otis
Elevator Co., 861 F.2d 655 (11th Cir. 1988), instructive.
In Jones, the plaintiff alleged that an elevator she was riding failed to stop on
the ground floor and hit the bottom of the elevator shaft, bouncing several times.
2

This is consistent with his testimony at the Daubert hearing.

3

Figure 19’s deficiencies will be discussed below.

9

861 F.2d at 657. The Eleventh Circuit upheld the district court’s admission of
expert testimony that elevator conditions existing in 1987 also existed in 1984
because the expert “had over 30 years of experience as an elevator engineer and
was extremely familiar with the operation and appearance of [the] elevator
stopping device” and “[h]is conclusion that the box had not been serviced in years
or maybe never was within his range of knowledge as an elevator expert.” Id. at
663. The expert drew his opinions about the similarity in conditions over time
from “his position that had a qualified person inspected the settings, this person
would have corrected the deficiency” and his observation that “due to a heavy
layer of dust and dirt which had accumulated on the cover over the setting devices,
it appeared no one had removed the covering to check the settings in two to three
years.”4 Id. at 662.

4

One of the primary inquiries when there is a gap in time between an incident and
inspection is whether there was a change in the condition of the subject premises.
See, e.g., Peterson v. Young Men’s Christian Ass’n of Greater New Orleans, No.
CIV. A. 91-2278, 1992 WL 161072, at *1 (E.D. La. June 18, 1992) (“As aforesaid,
most of the report focuses on the physical layout of the building and the procedures
employed by the YMCA which have not been changed by the vacancy of the
building and these factors alone are sufficient to enable the expert to reach a
reasonably accurate conclusion and, thus, his report is relevant.”); Bailey v. Stanley
Access Techs., Inc., No. 3:14-CV-72-SA-JMV, 2015 WL 6828921, at *10 (N.D.
Miss. Nov. 6, 2015) (“[W]hile the mere passage of time may not render Panish’s
testimony irrelevant, changes in the condition of the doors in the time between the
alleged incident and the inspection does. . . . Panish’s opinion that the subject
door’s sensor was maladjusted eighteen months after the incident is not relevant,
and may tend to mislead the jury because, ‘it’s what was happening at the time of
(continued . . .)
10

By contrast, Mr. Koshak has not offered any evidence establishing that the
subject escalator did not undergo any changes in the period between the incident
and his site inspection. Instead, the record reflects that an estimated 250,000
people ride the subject escalator annually. Mot., Ex. C at 59:10-17. This means
that in the period between the incident and the site inspection, approximately
875,000 passengers rode the subject escalator.
Moreover, Mr. Koshak testified that the escalator was susceptible to daily
changes to its condition. Reply, Ex. A at 53:4-6 (“Only thing that’s fair to say,
absent being there the day of the incident, any day that passes, the condition of the
escalator would have changed.”). He even acknowledged that the passage of time
between the incident and his site inspection was significant. Id. at 53:5-8 (“In the
length time that this one – between the incident and my visit, that’s a long, long
time.”). Indeed, this was the reason he declined to perform step-skirt performance
index testing. Id. at 52:11-16 (testifying that he did not conduct index testing on

( . . . continued)
the accident that counts.’”); cf. LeBoeuf v. K-Mart Corp., 888 F.2d 330, 333 (5th
Cir. 1989) (affirming the district court’s exclusion of evidence obtained by
investigators concerning the condition of K-Mart floors two years after an accident
on the bases that it lacked probative value due to the remoteness in time; that a
subsequent condition was not relevant; and that even if relevant, the prejudicial
effect would outweigh the probative value).

11

his site visit because he did not think it would be relevant to the condition of the
escalator at the time of the incident two years after the fact).
The foregoing demonstrates that Mr. Koshak has failed to show that the subject
escalator’s condition in 2018 is reflective of its condition at the time of the
incident.
Even where relevant, opinions and/or testimony are “admissible only if the
expert knows of facts which enable him to express a reasonably accurate
conclusion as opposed to conjecture or speculation.” Jones, 861 F.2d at 662;
Moussouris v. Microsoft Corp., 311 F. Supp. 3d 1223, 1244 (W.D. Wash. 2018)
(citation omitted) (“Relevant expert testimony is admissible only if an expert
knows of facts which enable him to express a reasonably accurate conclusion.”).
In the present case, there is too great an analytical gap between the subject
escalator’s condition observed during the 2018 site inspection and the opinion that
its condition at the time of the incident was more likely than not a cause of W.K.’s
foot becoming entrapped. Consequently, the Court finds that Mr. Koshak lacked
the requisite facts to enable him to express a reasonably accurate conclusion
regarding the specific condition of the subject escalator at the time of the incident.

12

b. Damaged Skirt Panel
Otis similarly contends that Mr. Koshak’s opinion that the damaged skirt
panel on the right side of step 23 was the cause of W.K.’s entrapment5 is irrelevant
because he has not connected his 2018 observations to the condition of the subject
escalator at the time of the incident. As explained above, Mr. Koshak has not
shown a logical connection between the condition of the subject escalator in 2014
and 2018. He has not established that the subject escalator did not undergo
changes between the incident and his site inspection, and he in fact acknowledged
that he does not know whether step 23 was in the same condition in 2014. Reply,
Ex. A at 184:11-14 (“Q: But I think you already testified, you don’t know whether,
on September 10th, 2014, step 23, this area we see in figure 20, had this same
condition; right? A: Obviously not.”). At the Daubert hearing, Mr. Koshak
confirmed that he could not determine when the damage he observed on step 23
occurred. Doc. No. 408 at 26:24-27:2.
These concessions notwithstanding, Plaintiffs posit that the subject
escalator’s 2018 condition is logically connected to its 2014 condition because Mr.
Koshak’s opinion is based on: Dr. Kim’s deposition testimony that W.K.’s foot
became entrapped approximately one-fifth of the way down the escalator; Otis’
step-skirt performance index test conducted the day after the incident, which
5

Reply, Ex. A at 182:16-183:23.

13

showed a large deviation in that area; and observations about the damage
indicating that it was a defect that had existed for some time. The information
relied upon by Plaintiffs as establishing a logical connection is unpersuasive.
First, the record reflects that Mr. Koshak disregarded Dr. Kim’s testimony
and altered it to fit his opinion. Dr. Kim testified that entrapment occurred
pretty high up on the escalator, so probably just within, like, a
couple of seconds after we stepped on the escalator, because the
accident occurred or stated to happen when we were – it’s a pretty
long escalator. It happened pretty high up, so I don’t know where this
step is from, like, the beginning to the end.
Reply, Ex. C at 167:1-6 (emphasis added). When questioned whether her
recollection was that the entrapment happened somewhere up at the top, she
responded: “yes, definitely within the first fifth of the way down, the first – I mean
it was pretty quick after we got on.” Id. at 167:12-16 (emphasis added). Mr.
Koshak interpreted this testimony to establish that entrapment occurred within the
top half of the subject escalator.
So now you have 34 steps. 23 is in the – just about a third – I didn’t
do the math –which is kind of where that hump is. It’s within a third
of – a third of the way – two-thirds of the way, one-third from the top,
and then you have Flora Kim’s testimony. She scientifically says it
was in the first fifth. I don’t know that anybody measures in life in
fifths, but maybe she does. But clearly it was in the upper half, I
would say. And my experience is, people say almost anything when
they’re under that kind of stress and their recollections can be biased,
but, clearly, I think in the upper half would be a fair estimation.

14

Id., Ex. A at 182:16-183:3. While the Court of course agrees that the top one-fifth
of the escalator falls within the top half of the escalator, Mr. Koshak appears to
have inaccurately extrapolated from Dr. Kim’s testimony that entrapment occurred
anywhere within the upper half of the escalator, when she unequivocally stated that
entrapment occurred within the top one-fifth of the escalator and likely within a
couple of seconds of stepping onto the escalator.
Second, the step-skirt performance index test results were discredited by Mr.
Koshak himself. He expressly opined that
Otis did not perform the Step/Skirt Performance Index Test correctly
after entrapment. First, the test results demonstrate that the test was
not set up correctly as the loaded gap cannot physically be a negative
number. Second, the four tests show index results of 0.130, 0.051,
0.161, and 0.056. These numbers are impossible for a brand new,
perfectly adjusted escalator. It is absolutely impossible to get these
results on a RBC escalator manufactured in 1969.
Mot., Ex. A at 36 ¶ 8. Within the “Step/Skirt Performance Index Test After
Incident” section in his report, he stated that the
IMD-1 was incorrectly set up . . . This test graphs a physical
impossibility; therefore, the tests are invalid. Also this result is not
just from one of the four tests, it is in all four tests. This eliminates
this test to determine what the Index was contemporarily with the
incident.
Id. at 31, ¶ F8 (emphasis added). He further explained that because certain
recorded values (caused by the faulty setup) were an impossibility, “this indicates
with more emphasis that the testing was flawed.” Id. at 34, ¶ F11. It is unclear

15

how test results that Mr. Koshak rejected could be relied upon to show a logical
connection between the subject escalator’s 2014 and 2018 conditions. Notably,
Mr. Koshak elected not to conduct a skirt-step performance index test during his
site inspection, which left him without comparative data. In view of his refutation
of the efficacy of Otis’ testing, his selective acceptance of the testing reflecting a
deviation in the upper third of the escalator renders his opinion about the skirt
panel unreliable. E.E.O.C. v. Freeman, 778 F.3d 463, 469-70 (4th Cir. 2015)
(“‘Cherry-picking’ data is essentially the converse of omitting it: just as omitting
data might distort the result by overlooking unfavorable data, cherry-picking data
produces a misleadingly favorable result by looking only to ‘good’ outcomes.”); In
re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 524 F. Supp. 2d
1166, 1176 (N.D. Cal. 2007) (finding inadmissible an expert’s opinion that
“cherry-picked observational studies [] support[ing] his conclusion and rejecting or
ignoring the great weight of the evidence that contradicts his conclusion” because
it did “not reflect scientific knowledge, [wa]s not derived by the scientific method,
and [wa]s not ‘good science’”).
At the Daubert hearing, Mr. Koshak clarified that he could rely on the data
in Figure 266 of his report because although the test was not set up properly, the
resulting 2.9 mm measurement was proportionately accurate. Doc. No. 408 at
6

Figure 26 shows the loaded gap data. Mot., Ex. A at 34.

16

44:9-11. Mr. Koshak explained that Figure 26 reflects a peak at approximately 2/3
up the escalator (or 1/3 from the top of the escalator), id. at 38:6-10, representing
the gap between the side of a step and the skirt. Id. at 26:3-20. When queried by
Otis’ counsel about the directionality of the test (bottom to top versus top to
bottom), however, Mr. Koshak testified that while he believed the test was
performed from bottom to top,7 he could not verify that fact. Id. at 45:16-46:6.
Even accepting that Mr. Koshak reasonably relied on the test results from Figure
26, such data alone is insufficient to draw a logical connection between the
incident and the site inspection for the reasons already stated.
Third, Mr. Koshak’s observations alone do not create the requisite logical
connection where, as here, he has not shown that the escalator did not undergo
changes between the incident and his site inspection. Without any assurance that
the subject escalator’s 2018 condition is sufficiently similar to its 2014 condition,
the Court must exclude opinions that are based on the purportedly similar
conditions between the incident and the site inspection. Accordingly, the Court
excludes Mr. Koshak’s opinions regarding noncompliance, the step-to-skirt gap
measurements, and the damaged skirt panel to the extent the opinions rest on the
presumption that the escalator’s 2018 condition reflects its condition at the time of
Mr. Koshak stated that he believes he knows this from Otis’ inspector’s
deposition. Said deposition was not submitted in connection with this Motion.
7

17

the incident. Opinion no. 5—“Otis failed to ensure the skirt panels were smooth
and free from cavities and indentions that would initiate entrapment”— is affected
by this ruling; therefore, it and any related discussions, evidence, and/or testimony
are excluded. Notably, Mr. Koshak conceded that opinion no. 5 relied on his site
inspection. Id. at 5:19-6:5.
The Court finds that opinion nos. 1-4 and 6-88 do not rely upon and are not
tainted by the site inspection. Thus, given Mr. Koshak’s qualifications and
expertise in escalator maintenance, which Otis does not challenge, these opinions
are reliable and relevant. As a result, any discussions, evidence, and/or testimony
concerning maintenance based on Mr. Koshak’s review of documents and other
materials will be permitted.
2. Step-to-Skirt Gap Measurements in Figure 19 in Mr. Koshak’s Report
and Exhibit 5A to His Deposition
Otis also argues that because Mr. Koshak’s opinions are based on inaccurate
step-to-skirt gap measurements, they lack a reliable factual basis, and warrant
exclusion of his opinions. Plaintiffs counter that all but four measurements were
correctly listed in Mr. Koshak’s report, and that he provided corrections at his
deposition, which were then included in his rebuttal report.

8

Otis also challenges opinion nos. 9 and 10. The Court will later address these
opinions.

18

The errors contained in Figure 19 and Exhibit 5A, coupled with Mr.
Koshak’s inability to rehabilitate these exhibits and/or his prior testimony, further
support the Court’s determination that opinions related to the site inspection must
be excluded.
Mr. Koshak took gap measurements of the subject escalator utilizing three
methods: notes by Plaintiffs’ counsel Eric Seitz based on measurements stated by
Mr. Koshak at the site inspection; videotape; and photographs taken by Mr.
Koshak as he measured each step. There is no dispute that Figure 19 is rife with
errors. Plaintiffs’ counsel conceded that it was flawed, and during his deposition
and at the Daubert hearing, Mr. Koshak admitted that Figure 19 contained
numerous errors. Mot., Ex. F at 83:10-84:5; Doc. No. 408 at 18:24-19:1; 21:2-9.
Although Exhibit 5A to Mr. Koshak’s deposition corrected errors in Figure 19,
Exhibit 5A9 still contained multiple errors. Reply at 4-7.
For example, there were inconsistencies between the Exhibit 5A data and the
data sources. Additionally, the photographs taken by Mr. Koshak, upon which he
relied, were not sequentially numbered because several images were taken in burst
mode on his iPhone. He was consequently unable to correlate certain photographs
to a specific step. Mot., Ex. F at 135:2-19; 137:6-24. Mr. Koshak also failed to
9

Exhibit 5A is an annotation of Figure 19. Mot., Ex. F at 129: 9-12. Exhibit 5A
and Figure 1 in Mr. Koshak’s May 18, 2018 rebuttal report contain the same data.

19

document step numbers as he took photographs, instead electing to employ an
after-the-fact identification method. Id. at 136:19-137:5. This caused him to
attribute the same photograph to different steps, which undermines the accuracy of
the step identified in any given photograph.10 Id., Ex. 6 to Ex. F; Mem. in Supp. of
Mot. at 18 (Table 2).
The deficiencies do not end there. Mr. Koshak’s testimony about his
reliance on the various sources of data shifted during the course of his deposition.
Initially, he testified that Mr. Seitz’s notes, as opposed to Figure 19, contained the
correct values, and that his opinions were based on those actual measurements. Id.,
Ex. F at 83:4-9. After creating Exhibit 5A during his deposition, he stated that “the
numbers are actually directly taken with, apparently, four errors, from the video
and/or photographic evidence of the actual measurements of the tool in the side-ofstep.” Id. at 129:15-18. He could not explain the discrepancy between the
photographs and Mr. Seitz’s notes and characterized the photographs as “fact” and
agreed that the video is the best record of capturing what he called out for each
step measurement. Id. at 132:9-24.

10

At the Daubert hearing, Mr. Koshak testified that he had recently reviewed the
photographs more carefully, including the metadata and time stamps, and now has
greater certainty about step numbers accurately corresponding to photographs. He
acknowledged that no such confirmation was made in his report, rebuttal report, or
deposition, but asserted that his opinions would not differ. Doc. No. 408 at 24:5-9;
24:19-25:4.

20

Mr. Koshak has admitted that “a significant part of [his] opinions rely on the
noncompliance nature as illustrated in [Figure] 19,” Mot., Ex. F at 68:15-18, and
he did not change his opinions in the rebuttal report;11 therefore, the
aforementioned errors and inconsistencies render his opinions unreliable. At the
initial hearing, Plaintiffs’ counsel attempted to explain away Mr. Koshak’s
testimony by offering her interpretation of the true intention of his statement and
arguing that his opinions are not primarily founded on the site inspection. Doc.
No. 378 at 107:2-108:20. During the Daubert hearing, Mr. Koshak claimed that he
meant that he substantially relied on the corroboration provided by Figure 19 and
that in fact, his report was largely complete before he ever conducted the site
inspection. Doc. No. 408 at 19:11-20.
Even accepting as true the purported distinction between relying on Figure
19 and corroborating already-existing opinions with Figure 19, and later Exhibit
5A, it is unclear how sound and reliable opinions could be corroborated by data
that Mr. Koshak himself admits had a high rate of error. Accordingly, opinions
founded upon or corroborated by the step-to-skirt gap measurement data are
11

In the rebuttal report, Mr. Koshak noted that his corrected Figure 19 was shown
in Figure 2. Opp’n, Ex. D at 8. This appears to be a typographical error because
Figure 1 contains the corrections to Figure 19. Id. at 9. Figure 2 is an image of
gap instructions from IMM 30.3 (Excerpts). Id. at 10. The only substantial change
identified by Mr. Koshak was that “the Sum of Gaps created another Code
violation at Step 7.” Id. However, Figure 1 did not change the opinions he offered
in his original report.

21

excluded because they are unreliable. This again affects opinion no. 5, and opinion
no. 10, as explained below.
3. Mr. Koshak’s Causation Opinions
Otis’ final argument is that Mr. Koshak’s causation opinions must be
excluded because they rely on unreliable and cherry-picked data. The causation
opinions at issue are as follows:
9 – Otis’s failure to properly maintain, inspect, adjust, and repair the
escalator failed to conform to the reasonable standard of care in
the industry.
10 –The lack of maintenance and inspections and the resulting
condition of the escalator was more likely than not a cause of
W.K.’s foot becoming entrapped in the escalator.
Id., Ex. A at 36. The Court has excluded conclusions founded upon
noncompliance, the step-to-skirt gap measurement data, and the damaged skirt
panel to the extent they connect observations from the 2018 site inspection to the
condition of the subject escalator at the time of the incident. Arguably, the
exclusion of the foregoing substantially, if not entirely, undercuts Mr. Koshak’s
causation opinion no. 10. Causation opinion no. 10 is therefore excluded.
By contrast, causation opinion no. 9 can stand without the excluded
information based on Mr. Koshak’s experience and knowledge of escalator
maintenance and repair, along with his review of maintenance and other records.
Thus, any questions about the weight of this opinion should be resolved by a jury.

22

In accordance with the above analysis, the Court GRANTS IN PART AND
DENIES IN PART Otis’ Motion to Preclude Testimony of John W. Koshak and
Strike Report of Elevator Safety Solutions.
B.

Otis’ Motion to Preclude Testimony of Joseph L. Stabler and Strike
Report of Stabler Associates, Inc.
Otis moves to strike Stabler Associates, Inc.’s April 27, 2018 report and

preclude Mr. Stabler, its principal, from testifying. In the alternative, Otis requests
that the Court strike portions of the report relating to Mr. Koshak’s February 18,
2018 site inspection and preclude corresponding testimony. Defendant disputes
Otis’ assertion that Mr. Stabler’s opinions rely significantly on Mr. Koshak’s
observations. According to Defendant, Mr. Stabler’s opinions are derived from his
experience; facts and evidence from the case; and applicable industry codes and
standards.
Mr. Stabler opined, to a reasonable degree of escalator safety and
mechanical safety, that a number of causes contributed to W.K.’s entrapment.
Mot., Ex. B at 38 ¶ 11.1. During the course of forming his opinions and preparing
his report, Mr. Stabler reviewed 41 documents provided to him, as well as codes,
standards, literature, and documents from his personal files. Id. at 1-4 In lieu of
conducting a site inspection, Mr. Stabler referenced details and observations from
Mr. Koshak’s site inspection:

23

That Plaintiff’s expert, John Koshak physically inspected the subject
escalator on site on February 18, 2018 and measured the step-skirt gap
and observed the operation and condition of the escalator, Mr. Koshak
also photographed and videotaped the escalator, and observed that the
skirts of the escalator were wet with a friction reducing lubricant; that
there were striations on the skirt indicative of a scraping contact with
moving steps; that some escalator steps were touching the skirt(s) with
no gap; that skirt panel moved (or deflected) with 30 lbf applied
against it; and that a skirt panel was damaged on the same side as
W.K.’s entrapment. Mr. Koshak also noted abrasions and striations
on the skirt panels consistent with sliding step contact due to
misalignment or lateral step shift, and then examined numerous
escalator steps for lateral shifting along the incline, and noted a 1/8 in
variance in the step/skirt gap, which in some cases, caused the steps to
make contact with the adjacent skirt panel. He further concluded that
the clearance (gap) between steps and skirts did not conform to
manufacturer’s specifications of 1/16”, and that the skirt panels had
not been lubricated. Attached hereto below are two photographs
taken by Mr. Koshak which present the condition of the escalator
along with his corrected step/skirt measurements, as previously
mentioned.
Id. at 32, ¶ 5.1.
1. Mr. Stabler Relied on Information From Mr. Koshak’s 2018 Site
Inspection
Otis argues that Mr. Stabler’s opinions must be excluded because they rely
on Mr. Koshak’s 2018 site inspection;12 namely, his step-to-skirt gap
measurements and observations regarding the damaged skirt panel. Otis

Defendant misapprehends Otis’ argument as challenging the fact that Mr.
Stabler did not attend the site inspection or inspect the escalator. Otis in fact takes
issue with Mr. Stabler’s reliance on a flawed inspection that does not accurately
reflect the condition of the escalator at the time of the incident.
12

24

specifically takes issue with opinion nos. 11.2, 11.5, 11.7, 11.7,13 and 11.8. Mem.
in Supp. of Mot. at 16-17. Additionally, Otis identifies the following sections from
Mr. Stabler’s report as having incorporated observations from Mr. Koshak’s site
inspection: 1.14; the discussion on page 31 concerning skirt panel damage; 5.1;
Exhibit 5A to Mr. Koshak’s deposition; and a photograph of the damaged skirt
panel. Id. at 4-5.
Defendant counters that Mr. Stabler did not use the 2018 inspection to opine
about the actual condition of the escalator at the time of the incident and that his
opinions are proper because the 2018 site inspection was utilized in conjunction
with his extensive industry experience and understanding of the evidence in this
litigation. At the Daubert hearing, Mr. Stabler testified that Mr. Koshak’s site
inspection merely bolstered his opinions. Doc. No. 408 at 55:6-56:3; 57:6-9. Mr.
Stabler proffered that the site inspection increased his certainty of his opinion only
to the extent it confirmed Otis’ pattern and practice of negligence. Id. at 56:1057:9.
With respect to step-to-skirt entrapments, Mr. Stabler testified at his
deposition that
[i]t’s a fundamental component of the wear and the other aspects
identified in Arthur D. Little’s report, and well-known throughout the
industry for years and years.
13

There are two separate opinions identified as 11.7.

25

It’s also a function of performing the Step/Skirt Performance
Index Test, which was not performed in this case prior to the incident.
That information would have provided all the relevant and specific
facts about – had it been done properly, would have provided that
relevant information consistent with Mr. Koshak’s testing.14
Reply, Ex. A at 75:10-21. Mr. Stabler’s causation opinion was based on the
damaged skirt panel and the lack of lubrication.
a. Damaged Skirt Panel
When asked at his deposition whether the escalator’s condition observed by
Mr. Koshak in 2018 is the same as the condition on September 10, 2014, Mr.
Stabler responded:
A.
With 100 specificity and degree of certainty, no; however, if
you look at the facts and the evidence in the case and that Dr. Kim and
W.K. entered the subject escalator and descended to approximately
one-fifth of the way down, and you look at Mr. Koshak’s report which
identifies a specific number of steps, I believe 23 of the exposed 35,
as to where the damaged skirt panel was, then yes, I believe I can say
with a higher degree of certainty that that more than likely caused or
contributed to this particular incident.
The other facts are that Otis does not and has not categorically,
for years, lubricated or applied a friction-reducing agent to their skirt
panels, even though they know in 1983 and 1984 they had developed
the guardian skirt panel, which was an extruded aluminum panel with
an anodized surface that would facilitate a friction-reducing agent, if
you will, in the field.

14

Mr. Stabler noted that the test performed by Otis after the incident was
conducted improperly and as a result, the data is incorrect. Reply, Ex. A at 75:2224.

26

Q.
So is it your opinion that that damaged portion of the skirt
panel that Mr. Koshak photographed and that I believe you have also
included in your report, on page 33, that’s the damage to which you
were referring?
A.
Yes, that’s part of it, but it’s also in conjunction with the
striations that I mentioned in my report. I then alluded to and will
testify to here today, those striations can only come from the steps
abrading against the skirt panels. And again, as I testified previously,
that’s due to misalignment of the step and/or improper step chain
tensioning and/or cumulative wear on the escalator, all of which is
foreseeable and preventable under proper preventative maintenance.
Q.

So looking at this photo you have on page 33 of your report --

A.

Yes.

Q.
-- is it your opinion that the condition of this skirt panel we see
on this photo on page 33, this photograph taken in 2018, is the same
condition as it was in 2014?
A.
As I said, I can’t say with 100 percent certainly, but these types
of wear occur over time. So if you look at the leading edge of the
skirt panel on the downward slope, it’s actually pulled and rippled.
That’s a clear indication that abrasion has occurred over time,
sometimes so substantive that it causes the metal to peel back.
To say with 100 percent certainty that’s exactly the condition at
the time, I cannot. But to say that it was causally related – because as
you wear the metal – and that skirt panel is basically just a piece of
stainless steel that’s clad to either a wooden member or a metallic
member to hold it in place.
As it wears it develops a knife-like edge, such that if you were
to take any component, a shoe, a leather shoe, or even a heavier boot,
it could actually potentially grab it, and then as an end result cause the
peeling to further involve an engulfment of the step and the skirt
and/or the subject footwear.
Reply, Ex. A at 75:25;76:4-22.
27

Although Mr. Stabler opined that the damaged skirt panel contributed to the
entrapment, he clarified that the exact condition did not exist in 2014:
Q:
. . . . Based on the observations of Mr. Koshak of this skirt
panel that we’ve been discussing, in 2018, you are not saying that it
had this exact same condition in 2014, are you?
A.: No, sir. I’m saying, but fundamentally the components that
would cause of contribute to that were in existence. They were likely
in their infancy, based on abrasion and the absence of adjustment and
continual abrasion and wear, and ultimately produced a condition like
this that’s been photographed.
The other concern and opinion that I have is that, had Otis been
doing their job in accordance with the Step/Skirt Performance Index,
this would have been identifiable and, in accordance with the adopted
code and enforced code, should have been repaired.
Opp’n, Ex. 2 at 80:11-81:1. Ultimately, Mr. Stabler testified that as to the
damaged skirt panel, he can say with approximately 85% certainty “that there was
a disconnect between the skirt panel abutment and alignment, which caused or
contributed to the subject incident.” Reply, Ex. A at 169:23-170:1.
b. Step-to-Skirt Gap Measurements in Figure 19/Exhibit 5A to Mr.
Koshak’s Deposition
Mr. Stabler incorporated Exhibit 5A to Mr. Koshak’s deposition into his
report. Mot., Ex. B at 34. Mr. Stabler explained at the Daubert hearing that he
relied on Mr. Koshak’s step-to-skirt gap measurement data only insofar as those
measurements collectively exceeded the measurements allowed by code. Doc. No.

28

408 at 52:22-53:9. However, he conceded that his opinion nos. 11.4 and 11.515
relied at least in part on Exhibit 5A, with all documents and materials serving as
bases for his opinions. Id. at 53:13-54:15. As explained above, even with
corrections, Exhibit 5A contained numerous errors.
The Court already concluded that the subject escalator’s condition in 2018 is
not reflective of its condition at the time of the incident, and that the requisite
logical connection is lacking. This resulted in the exclusion of Mr. Koshak’s
opinions, discussions, evidence, and/or testimony regarding noncompliance, the
step-to-skirt gap measurements, and the damaged skirt panel to the extent the
opinions rested on the presumption that the escalator’s 2018 condition reflects its
condition at the time of the incident. The Court also excluded as unreliable
opinions founded upon or corroborated by the step-to-skirt measurement data in
Figure 19 and Exhibit 5A due to the high rates of error therein. Given this
backdrop, Mr. Stabler’s opinions premised on conditions observed at the site
inspection must correspondingly be excluded.
Mr. Stabler has conceded that opinion nos. 11.4 and 11.5 relied in part on
Exhibit 5A. Insofar as the step-to-skirt measurement data is unreliable and does

15

Mr. Stabler also represented to the Court that he could have rendered this
opinion without the site inspection findings because he “described the conditions
that were apparent at the time of the incident and were photographed and present
evidence of the step/skirt abrasion.” Doc. No. 408 at 55:6-15.

29

not reflect the escalator’s condition at the time of the incident, these opinions and
all related discussions, evidence, and/or testimony must be excluded. The
remainder of Mr. Stabler’s opinions do not appear to rely on Mr. Koshak’s
observations from the site inspection. Mr. Stabler’s report, the record presented
with the Motion, and his Daubert hearing testimony indicate that the remaining
opinions were formed independent of the site inspection and are based on
document review, as well as Mr. Stabler’s expertise in escalator maintenance.
Therefore, Mr. Stabler’s remaining opinions will not be excluded, nor related
discussions, evidence, and/or testimony.
For the reasons stated above, the Court GRANTS IN PART AND DENIES
IN PART Otis’ Motion to Preclude Testimony of Joseph L. Stabler and Strike
Report of Stabler Associates, Inc.
CONCLUSION
In accordance with the foregoing, the Court GRANTS IN PART AND
DENIES IN PART Otis’ (1) Motion to Preclude Testimony of John W. Koshak
and Strike Report of Elevator Safety Solutions and (2) Motion to Preclude
Testimony of Joseph L. Stabler and Strike Report of Stabler Associates, Inc.

30

IT IS SO ORDERED.
DATED:

Honolulu, Hawai‘i, February 25, 2019.

CIVIL NO. 16-00460 JAO-KJM; KIM V. CROCS; ORDER: (1) GRANTING IN PART AND DENYING
IN PART DEFENDANT/THIRD-PARTY DEFENDANT/CROSS-CLAIMANT/CROSS-CLAIM
DEFENDANT OTIS ELEVATOR COMPANY’S MOTION TO PRECLUDE TESTIMONY OF JOHN
W. KOSHAK AND STRIKE REPORT OF ELEVATOR SAFETY SOLUTIONS, INC.; AND (2)
GRANTING IN PART AND DENYING IN PART DEFENDANT/THIRD-PARTY DEFENDANT/
CROSS-CLAIMANT/CROSS-CLAIM DEFENDANT OTIS ELEVATOR COMPANY’S MOTION TO
PRECLUDE TESTIMONY OF JOSEPH L. STABLER AND STRIKE REPORT OF STABLER
ASSOCIATES, INC.

31