Cusack v. Bendpak, Inc. et al

Filing 120

MEMORANDUM DECISION AND ORDER - The Court HEREBY ORDERS: 1. Cusacks Motions in Limine (Dkt. 92 ) are GRANTED in PART and DENIED in PART as outlined above. 2. BendPaks Motions in Limine (Dkt. 94 ) are GRANTED in PART and DENIED in PART as outlined a bove. 3. BendPaks Motion for Reconsider Re: Secondary Safety Bracket (Dkt. 99 ) is DENIED. 4. BendPaks Motion for Reconsider Re: Joshua Yanes (Dkt. 100 ) is DENIED. 5. Cusacks Motion to Strike (Dkt. 111 ) is GRANTED. BendPaks Amended Answer (Dkt. 95 ) is stricken from the record. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
COREY CUSACK, individually,
Case No. 4:17-cv-00003-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
BENDPAK, INC., a foreign corporation,
Defendant.

I. INTRODUCTION
Pending before the Court are numerous Motions filed by the parties in preparation
for trial. Both parties filed Motions in Limine seeking to preclude certain evidence and
testimony from trial. Dkts. 92, 94. Additionally, BendPak has filed two Motions to
Reconsider (Dkts. 99, 100) and Cusack has filed a Motion to Strike (Dkt. 111). Having
reviewed the record and briefs, the Court finds that the facts and legal arguments are
adequately presented. Accordingly, in the interest of avoiding further delay, and because
the Court finds that the decisional process would not be significantly aided by oral
argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ.
R. 7.1(d)(2)(ii). For the reasons outlined below, the Court will GRANT in PART and
DENY in PART both sides’ Motions in Limine, DENY BendPak’s Motions for
Reconsideration, and GRANT Cusack’s Motion to Strike.

MEMORANDUM DECISION AND ORDER - 1

II. DISCUSSION
A. Motions in Limine
1. Legal Standard
“Motions in limine are well-established devices that streamline trials and settle
evidentiary disputes in advance, so that trials are not interrupted mid-course for the
consideration of lengthy and complex evidentiary issues.” Miller v. Lemhi Cty., No. 4:15CV-00156-DCN, 2018 WL 1144970, at *1 (D. Idaho Mar. 2, 2018) (citing United States
v. Tokash, 282 F.3d 962, 968 (7th Cir. 2002)). “The term ‘in limine’ means ‘at the
outset.’ A motion in limine is a procedural mechanism to limit in advance testimony or
evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.
2009) (quoting Black’s Law Dictionary 803 (8th ed. 2004)).
Because “[a]n in limine order precluding the admission of evidence or testimony is
an evidentiary ruling,” United States v. Komisaruk, 885 F.2d 490, 493 (9th Cir. 1989)
(citation omitted) “a district court has discretion in ruling on a motion in limine.” United
States v. Ravel, 930 F.2d 721, 726 (9th Cir. 1991). Further, in limine rulings are
preliminary and, therefore, “are not binding on the trial judge [who] may always change
his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3
(2000).

MEMORANDUM DECISION AND ORDER - 2

2. Analysis
i. Cusack’s Motions in Limine1
1. Opinion testimony by defense witnesses that the rolling
jack that fell on Corey was not defective.
GRANTED. This argument requires an expert opinion as it deals with scientific,
technical, and specialized knowledge. BendPak asserts that Jeff Kritzer, its 30(b)(6)
deponent, can testify as to these issues, however BendPak has not disclosed him as an
expert under Federal Rule of Evidence 702. The Court will limit both sides to expert
witnesses properly disclosed under Rule 702 and fact witnesses whose testimony
complies with Rule 602 and Rule 701.
2. Testimony, evidence, or argument by defense witnesses
suggesting Corey touched, moved, or tried to move the
rolling jack that fell onto his foot.
GRANTED to the extent that factual testimony must be based on personal
knowledge and comply with Rule 602 and expert testimony must have been properly
disclosed and comply with Rule702.

1

For brevity, and due to time constraints, the Court will not reiterate each sides’ arguments, but
will simply rule on each motion with brief reasoning, analysis, and/or parameters. Additionally,
the Court’s rulings on these motions are interlocutory. If the “door is opened” at trial for any
particular item, the Court will reconsider that topic.
MEMORANDUM DECISION AND ORDER - 3

3. Testimony, evidence, or argument that BendPak was the
industry leader or that the rolling jack that fell on Corey
exceeded industry standards.
GRANTED. The only witness remaining that could testify to these issues is
BendPak’s 30(b)(6) deponent, Jeff Kritzer. However, as noted above, BendPak has only
listed Kritzer as a fact witness. Accordingly, Kritzer can testify consistent with his
personnel knowledge, but nothing more.2 Any other testimony must strictly comply with
Rules 602, 701, and 702.
4. Testimony, evidence, or argument that, before Corey
purchased the rolling jack, BendPak conducted testing to
determine the potential for the rolling jack to fall from the
four-post lift.
DENIED. To the extent that there are individuals (fact witnesses) who have
personal knowledge of testing, or expert witnesses who have been properly disclosed, the
Court will allow in testimony on this topic. Cusack will have a chance to cross-examine
any witness as to the scope and applicability of any testing.
5. Testimony, evidence, or argument regarding Corey's
marriage counseling.
GRANTED. BendPak has stipulated to not introduce evidence on this topic.

2

The mere fact that he was identified as a Rule 30(b)(6) deponent for purposes of discovery does
not mean he can testify at trial about matters within the “corporate” knowledge but outside his
personal knowledge.
MEMORANDUM DECISION AND ORDER - 4

6. Testimony, evidence, or argument regarding settlements
or settlement negotiations between Corey and any of the
named defendants.
GRANTED. However, there will be no double recovery in this case. Therefore, if
a verdict is entered awarding damages to Cusack, BendPak will be allowed to conduct
post-verdict discovery for collateral sources.
7. Testimony, evidence, or argument suggesting Corey was
harmed by the product beyond its useful safe life.
GRANTED. BendPak has stipulated to not introduce evidence on this topic.
8. Testimony, evidence, or argument suggesting Corey failed
to inspect the rolling jack for a defective condition.
GRANTED in PART, DENIED in PART. In the broad sense of the word
“defect” Cusack is correct: the law does not require him to show that he inspected the
product for a defective condition. Furthermore, there is no evidence that prior to the
accident, Cusack was aware of the allegedly defective condition, i.e. that the Rolling Jack
could fall. However, Cusack readily admits that he personally did not inspect the Rolling
Jack to ensure it was secure before the Subaru was driven onto the lift and hoisted for
work.
Accordingly, the Court will not allow testimony that Cusack failed to inspect for a
“defect” generally, but will allow testimony, evidence, and argument that Cusack did not
inspect the Rolling Jack prior to it being hoisted in the air.

MEMORANDUM DECISION AND ORDER - 5

9. Testimony, evidence, or argument suggesting a
nonclaimant failed to inspect for defects or to observe an
obvious defective condition of the rolling jack.
GRANTED. As noted in the Court’s discussion regarding Yanes’ testimony on
this topic, see infra Section B(2)(ii), this proposition is too speculative to present to a
jury. Nobody can identify this individual’s identity, let alone his behavior. All fact
witnesses are limited to their personal knowledge of events and all expert witnesses are
limited to their properly disclosed opinions.
10. Testimony, evidence, or argument suggesting a
nonclaimant product user knew the rolling jack was
defective but voluntarily and unreasonably used or stored
the rolling jack.
GRANTED. As noted above, there is no way to know what the “phantom driver”
(the unknown employee who drove the Subaru onto the lift and raised it off the ground)
knew, or did not know; did, or did not do. The Court will allow testimony that nobody
knows what this person did,3 but not evidence speculating as to this person’s actual
behavior or knowledge.
11. Testimony, evidence, or argument suggesting that Corey
or another product user misused the rolling jack.
GRANTED in PART, DENIED in PART. The Court will not preclude
testimony or evidence of misuse to the extent that BendPak wishes to introduce evidence

3

In other words, consistent with Cusack’s prior testimony, BendPak can ask questions about the
phantom driver and if Cusack knows whether he inspected the jack before raising the lift etc., but
cannot speculatively impute knowledge or behavior to this individual.
MEMORANDUM DECISION AND ORDER - 6

that Cusack did not follow a manual or guideline—i.e. that Cusack’s behavior in raising
the lift, or, in not lowering the lift to the ground for inspection, was a “misuse” of the
product. The Court will, however, preclude any evidence that Cusack (or any unknown
employee) was misusing the product in general as there is no evidence to support this
fact.
12. Testimony, evidence, or argument suggesting that Corey
was injured by a defective condition that would have been
obvious.
GRANTED in PART, DENIED in PART. The impetus for this entire lawsuit is
the fact that while working, Cusack noticed the Rolling Jack was out of alignment and
went to correct the problem. There is no evidence, however, that prior to that moment
Cusack was on notice that the Rolling Jack could fall. While it may have been “obvious”
that Cusack should not have tried to address the problem while the lift was raised with a
car on it, it was not obvious that there was a defective condition. In other words, the
Rolling Jack being off the lift, in itself, was not a defective condition; regardless of how
obvious it was.
The Court will not allow testimony that any defective condition was obvious—
after all BendPak alleges there is no defect—but will allow testimony that dealing with a
dangerous condition involving large equipment was—as Cusack himself states—
“obviously” a delicate situation.

MEMORANDUM DECISION AND ORDER - 7

13. Testimony, evidence, or argument suggesting that Corey
was injured by an altered or modified product.
GRANTED in PART, DENIED in PART. This conclusion requires an expert
opinion. Neither party has identified an expert opinion along these lines. Accordingly, no
testimony or evidence will be presented that Cusack was injured by alterations or
modifications. However, the fact that Cusack altered or modified the Rolling Jack before
the accident is a relevant fact already in evidence that can be presented at trial. The Court
does not see how Cusack’s post-accident modifications are relevant. Under Federal Rule
of Evidence 407 these modifications are most likely subsequent remedial measures and
cannot be used by, or against, either party to prove negligent conduct.
ii. BendPak’s Motions in Limine
1. To preclude evidence of “dicta” regarding telescoping
arms and/or stop bolts as design defects and/or the
proximate cause of the alleged injuries.
DENIED. The Court noted in its prior Decision (Dkt. 89, at 14) that Cusack’s
assertion that these were expert opinions was slightly overstated because Kimbrough’s
fundamental opinion is that the Rolling Jack was defective because it could fall. The
explanation for this conclusion includes the telescoping arms and stop bolts (for a preaccident defect theory) and the secondary safety bracket (for a failure to warn of post
manufacturing discovered defect theory). Importantly, the Court did not preclude this
information or testimony, but merely noted that it was not itself an expert opinion, but
rather supporting evidence for the overall proposition.

MEMORANDUM DECISION AND ORDER - 8

2. To preclude evidence of BendPak’s labels, warnings,
instructions, and manuals as evidence of a design defect or
knowledge of a defect.
GRANTED in PART, DENIED in PART. As the Court has already noted,
putting warnings on a product is good business practice—and wise consumer
protection—not indications of known problems or defects. The Court will preclude any
evidence of the original warnings and labels if introduced as evidence of a design defect.4
However, Idaho Code section 6-1406(1) specifically outlines that changes in
warnings or labels can be admissible under a duty to warn theory. The Court will
therefore not exclude evidence or testimony of subsequent modifications to warnings or
labels.
3. To preclude any evidence of BendPak’s other lawsuits,
injuries, or knowledge the rolling jack could fall.
GRANTED in PART, DENIED in PART. From a timing standpoint, anything
that happened before Cusack’s accident could be relevant as it goes to the theory that
BendPak was on notice of possible defects but failed to warn Cusack and others. The
Court finds it difficult, however, to accept that anything that occurred after Cusack’s
accident is relevant in this case.
Finally, unless an expert can testify that the rolling jack models are substantially
similar, the Court will only allow examples where the RJ-7 model was at issue. In short,

4

Presumably BendPak will introduce these warnings and labels for other purposes.

MEMORANDUM DECISION AND ORDER - 9

the Court will hold a hearing outside the presence of the jury to determine which lawsuits
or injuries, if any, either party will be allowed to introduce at trial.5
4. To preclude evidence and statements regarding additional
warnings.
GRANTED. Cusack has stated that he does not intend to introduce testimony as
to any action Cusack would have taken differently had he known about the secondary
safety bracket or additional warnings. Likewise, BendPak will not be able to introduce
evidence on this topic, as it would be pure speculation.
5. To preclude undisclosed and speculative evidence.
DENIED. This evidence—specifically Kimbrough’s three opinions —has been
properly disclosed.6 The Court has already found Kimbrough qualified to testify.
Therefore he can render opinions based upon his experience and expertise. BendPak will
have adequate opportunity to cross examine this witness as to each opinion.
B. Motions to Reconsider
1. Legal Standard
As this Court has previously noted, “neither the Federal Rules of Civil Procedure
nor the Local Rules provide for a motion to reconsider.” Hathaway v. Idaho Pac. Corp.,
No. 4:15-CV-00086-DCN, 2018 WL 3797498, at *2 (D. Idaho Aug. 8, 2018) (citing

5

BendPak notes in its response to Cusack’s first Motion in Limine that its 30(b)(6) Deponent,
Jeff Kritzer, is prepared to testify concerning “injuries, accidents, litigation and/or complaints, if
any, related to the BendPak products allegedly at issue.”

6

This does appear to be a renewed Daubert motion against Kimbrough.

MEMORANDUM DECISION AND ORDER - 10

Magnus Pac. Corp. v. Advanced Explosives Demolition, Inc., No. 2:13-CV-0060-EJLCWD, 2014 WL 3533622, at *1 (D. Idaho July 15, 2014)). Nevertheless, if a party moves
for reconsideration prior to a trial taking place, the appropriate avenues for
reconsideration are Rules 59(e) or 60(b). See, School Dist. No. 1J, Multnomah County,
OR v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993).
Here, BendPak asserts that it is seeking relief under Rule 60(b); however, BendPak
cites the standard for Rule 59(e) in its briefing.
Under Rule 59(e), reconsideration is appropriate if the district court (1) is
presented with newly discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust; or (3) if there is an intervening change in controlling law.
Id. at 1263.
Under Rule 60(b) reconsideration is only appropriate upon a showing of (1)
mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a
void judgment; (5) a satisfied or discharged judgment; (6) extraordinary circumstances
which would justify relief. Id. at 1264.
Regardless of which rule the Court utilizes, both are an “extraordinary remedy, to
be used sparingly in the interests of finality and conservation of judicial resources.” Kona
Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Furthermore, the
grant or denial of a motion for reconsideration is a matter within the district court’s
discretion, id. at 883, and “should not be granted, absent highly unusual circumstances.”
Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).

MEMORANDUM DECISION AND ORDER - 11

2. Analysis
i. Exclusion of Safety Bracket
In its first Motion to Reconsider (Dkt. 99), BendPak asks this Court to revisit its
April 12, 2018, Decision. Dkt. 58. Specifically, BendPak seeks reconsideration of the
Court’s ruling regarding the admissibility of a secondary safety bracket. A brief summary
is appropriate.
On November 30, 2017, BendPak filed a Motion in Limine (Dkt. 29) seeking to
preclude evidence of remedial measures under Rule 403 and Rule 407 of the Federal
Rules of Evidence. The facts of the case show that BendPak added a secondary safety
bracket to the RJ-7 Rolling Jack after Cusack purchased one, but before his accident.
Cusack sought to introduce this as evidence of subsequent remedial measures. The Court
ultimately determined that, pursuant to Idaho Code section 6-1406(1), “Cusack will not
be allowed to introduce evidence of BendPak’s adding of the secondary safety bracket for
purposes of negligence, defect etc., but will be able to introduce it under a ‘failure to
warn’ theory.” Dkt. 58, at 9. Thus, the Court ruled that Cusack could introduce evidence
of the secondary safety bracket, but only in a limited way.
The Court reiterated this in its Daubert Decision (Dkt. 89) and specifically noted
that the “parties must be extremely careful how they introduce evidence of the secondary
safety bracket” at trial. Dkt. 89, n.2. The Court will not regurgitate the substance of that
Decision here, but notes that after analyzing the testimony of the respective experts, it
further limited the ways in which evidence of the secondary safety bracket could be

MEMORANDUM DECISION AND ORDER - 12

introduced at trial. The Court gave very specific examples of how it could—and could
not—be used in support of any theory. In short, the secondary safety bracket cannot be
used to support a design defect theory, but can be used to support a failure to warn of
discovered post-manufacturing defects claim.
Cusack premises his failure to warn argument on the idea that BendPak learned of
a defect after the RJ-7 was manufactured but failed to alert existing customers to this
discovered defect. Cusack offers the secondary safety bracket in support. Under Idaho
Code section 6-1406(1), this is completely appropriate.7
By way of the instant Motion, BendPak does not take issue with the Court’s
original analysis, or even the specifics of how experts can use evidence of the secondary
safety bracket, but harkens back to Federal Rule of Evidence 403 and asserts that the
probative value of the evidence of the secondary safety bracket is substantially
outweighed by the prejudice to BendPak.
Federal Rule of Evidence 403 states:
The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.
The Court addressed this issue in its original decision as follows:
Because the Court will only allow Cusack to proffer this evidence in support
of his theory that BendPak failed to properly warn customers, prejudice or
confusion will not result. BendPak will have an opportunity to put forth its

7

See the Court’s analysis of Idaho Code section 6-1406(1) in its prior decisions. Dkt. 58, at 7-8;
Dkt. 89, at 16.

MEMORANDUM DECISION AND ORDER - 13

theory and testimony that the secondary safety bracket was innovation for
further safety and to appease a favored customer, but not the result of any
dangerous flaw or defect that would have required notice or warnings to
customers regarding past products.
Dkt. 58, at 9-10.
Based, in part, on the Court’s prior ruling regarding one of Cusack’s
experts and how he can utilize evidence of the secondary safety bracket in his
testimony, BendPak now asserts that the secondary safety bracket is essentially
irrelevant. Specifically, it claims: “Plaintiff’s expert, Dr. Scott Kimbrough, opined
the discovered ‘defect’ is the possibility of rolling jack falling off its rail. Thus,
BendPak has allegedly violated a post-manufacturing duty to warn the rolling
jacks could fall. Therefore, the secondary safety bracket is not necessary for
Plaintiff’s post-manufacture failure to warn claim.” Dkt. 99-1, at 3.8
However, the Court previously ruled that this is exactly how evidence of the
secondary safety bracket could be used. In essence, Cusack’s theory is that after
manufacturing and production, BendPak discovered that the Rolling Jack could come off
the rails and fall (BendPak does not believe there is a “falling” design defect based upon
the telescoping arms or stop bolts). Based upon this discovery, BendPak developed a

8

BendPak frequently conflates the two “defect” theories raised by Cusack. In reality, there really
is only one defect claim: Strict Liability – Design Defect. The design defect—as alleged by
Cusack—is that the Rolling Jack could fall. Cusack supports this proposition with the fact that
the telescoping arms and stop bolts failed to prevent the jack from falling off the rails. A
completely separate claim is Cusack’s “Strict Liability – Failure to Warn” claim. It is in support
of this claim that Cusack wishes to introduce evidence of the secondary safety bracket.
MEMORANDUM DECISION AND ORDER - 14

secondary safety bracket and including this bracket on newer models. Cusack’s
contention, however, is that BendPak did not warn existing customers of the defect or
provide the secondary safety bracket—which prevents the Rolling Jack from falling off
the rails. Thus, the evidence is still extremely relevant, and has probative value.
Second, BendPak argues that regardless of how this evidence is introduced, even
with the Court’s previous rulings, evidence of the secondary safety bracket—if
introduced—will “imply to a jury the existence of a design defect at time of manufacture,
which this Court has expressly forbidden for that very purpose,” and that the “jury’s
immediate knee-jerk reaction [will be] that the BendPak Car Lift or Rolling Jack’s design
upon entry into the stream of commerce was defective.” Dkt. 99-1, at 3.
The Court does not deny that it takes some thought to understand the distinction,
as outlined in footnote seven, between the “design defect” argument and the “discovered
defect – failure to warn” argument. However, the attorneys can articulate this difference
to a jury, and, as the Court noted in its original decision on this issue, BendPak will have
ample opportunity to rebuff this “implication” and clarify that there was no design defect
(in their opinion) and that even the introduction of the secondary safety bracket after
manufacturing was not done to fix a dangerous or defective product, but instead served as
an innovative upgrade.
The Court is concerned—as it has been all along—that there is some overlap in
how this evidence might be presented (and understood). To that end, the Court has been
very specific (in this Decision and elsewhere) in its directions on how the parties are to

MEMORANDUM DECISION AND ORDER - 15

introduce and use the secondary safety bracket. However, these concerns do not
“substantially outweigh” the probative value that this evidence provides. The Court has
analyzed this topic in depth and finds that Cusack can introduce evidence of the
secondary safety bracket as outlined in this decision and its prior decision. See Dkt. 89, at
14-17.
Accordingly, the Court will not alter its previous holding, nor preclude this
evidence entirely from trial. BendPak’s Motion for Reconsideration regarding the
admissibility of the secondary safety bracket is DENIED.
ii. Joshua Yanes
BendPak’s second Motion for Reconsideration (Dkt. 100), asks the Court to revisit
its findings that one of BendPak’s experts, Joshua Yanes, was not sufficiently qualified to
testify regarding his opinions; and that many of his opinions were speculative or
irrelevant.
In its prior decision, the Court found that Yanes had not established how his area
of expertise (dealing with various non-vehicle lifts) encompasses the technology at issue
in this case (vehicle rolling jacks). By way of the instant motion, BendPak seeks to
explain the relevant similarities and differences. Additionally, although Yanes originally
provided eight conclusions or opinions, BendPak only seeks the Court’s reconsideration
as to three of them: specifically, conclusions 2, 4, and 8. In the event the Court does not
reconsider Yanes as an expert, BendPak requests that he be permitted to testify as a fact
witness as he was one of only a handful of individuals who observed and inspected

MEMORANDUM DECISION AND ORDER - 16

Corey’s Auto Works in October 2017. Finally, BendPak asserts that Yanes took photos
during this visit and that it (BendPak) will need him as a foundational witness for the
admittance of these photos—unless, of course, Cusack stipulates to their admission.
BendPak contends that while Yanes does not specifically state he is an expert in
car lifts, lifts in general operate in the same fashion—using hydraulics and scissor legs to
lift or lower the platform—and therefore Yanes’s testimony falls within the “reasonable
confines” of his expertise. Yanes’s self-purported areas of specialization include “fork
lift, boom lift, [and] scissor lift accident analysis.” Dkt. 87-2, at 2. As the Court noted in
its prior decision, while it is true that the functionality of these various devices might be
similar, they have “different specifications and purposes.” Dkt. 89, at 5. A boom lift is
typically used to hoist a person into the air; a fork lift is typically used to move pallets or
heavy objects; and a scissor lift can be used to hoist people or objects. In sum, none of
these devices deal with automobiles.
Importantly, the Court’s concern regarding Yanes’s qualifications was only half
the problem. The other issue is the substance of Yanes’s conclusions.
Conclusion 2: It is likely that the grooved rollers for the jack were off
track while the lift was previously on the ground and possibly before the
Subaru was driven on the lift runways.
The Court previously ruled that this conclusion was speculative as Yanes could
not point to any “tests, measurements, or other research he conducted . . . that would aid
the jury in understanding when, and how, the RJ-7 jack came off the tracks.” Dkt. 89, at

MEMORANDUM DECISION AND ORDER - 17

6. In the current motion, BendPak lists eight observations, or sources of information, in
support of its conclusion that Yanes’ opinion is based upon verifiable data.
Most of these eight observations stem from Cusack’s own statements regarding
the fact that (1) he did not verify the position of the jack while it was on the ground, (2)
he does not think the Subaru that was driven onto the lift could have hit the Rolling Jacks,
and (3) he ultimately does not know how the jack fell off. Admittedly, one inference from
this information is that the rollers were off track while the lift was still on the ground.
However, as will be discussed below, because the unknown employee and his behavior is
a complete unknown, it is just as easy to speculate that the rollers came off track long
before the lift was on the ground (for the Subaru) or that they came off track later, but for
an entirely different reason—such as physical touching or jostling by another employee at
an undetermined time or ultimately even from the lift vibrating when Cusack moved the
front rolling jack. In sum, although Yanes’s conclusion is not wholly without support, it
is still subjective and speculative. This lack of foundation, coupled with Yanes’s lack of
expertise as to vehicle rolling jacks weighs against presenting this conclusion and
testimony to a jury.
The Court notes, however, that each of these observations can be introduced via
their original source—Cusack—during cross-examination, or from any other expert under
a “is it possible” line of questioning. Cusack has been aware from the beginning that this
was a theory purported by BendPak—that the Rolling Jacks were off the rails from the
start. Cusack readily admits that he does not know what caused the rollers to come off the

MEMORANDUM DECISION AND ORDER - 18

track. BendPak’s suggested theory is appropriate. However, allowing an expert to take
the stand and say to a jury that it is “likely” and “possibl[e]” that X was the situation with
nothing more than the negative inference—i.e. that because nobody knows, it must be
X—or a lack of evidence in general—i.e. that because nothing else suggests otherwise, it
must be X—is not in line with the standards enunciated in Daubert.
Conclusion 4: The unknown employee failed to follow the manual and
decal instructions of checking to make sure the jack was positioned
correctly on the runway rail assembly before raising the lift.
As the Court noted in its original decision, this conclusion is speculation based
upon unknown factors. Dkt. 89, at 8. Because there is no way to know the identity of the
unknown employee there is no way to ascertain whether he followed, or failed to follow,
any manuals. The conclusion here, as before, starts at the end and returns to the
beginning. The assumption is because the Rolling Jack fell, it must have been off the
tracks. BendPak asserts (or assumes) that the jack came off the tracks while the jack was
still on the ground. Therefore, the assumed conclusion is that the unknown employee
failed to check the jack while it was still on the ground.
As the Court noted previously, even had the employee done all that was required
of him, the Rolling Jack could have come off track for a completely unrelated reason.
Furthermore, like Yanes’s above conclusion, the Court is not implying that this claim is
“wildly improbable,” but cannot in good faith allow an expert—someone who the jury
expects to have detailed knowledge, sound evidence, and reasonable conclusions—to
speculate as to the unknown behavior of an unknown person.

MEMORANDUM DECISION AND ORDER - 19

Conclusion 8: Review of the domestic market showed that competing
rolling bridge jacks designs did not include any devices to prevent
vertical displacement.
Finally, BendPak argues that Yanes’s conclusion regarding the domestic market is
relevant to its “State of the Art” defense. As will be outlined below, that defense has not
been properly plead. That aside, the Court has ruled that this material is more of an
“industry standards” argument, which the Court has already stated faces limited
disagreement from Cusack. The Court views this “opinion” as more of a fact, rather than
an expert conclusion.9
As noted above regarding Cusack’s Motion in Limine #3, Jeff Kritzer can testify
that BendPak is the only company to his knowledge that produces a product to prevent
vertical displacement, but he cannot say that this means BendPak exceeds any industry
standards or is the industry leader. He can say that BendPak has not violated any industry
standards—after all Cusack himself acknowledges this—but beyond that, any opinion
regarding standards is pure speculation. This fact—that BendPak is the only company
that makes a device to prevent vertical displacement—does not require an expert opinion
and, as the Court explained in its prior Decision, “will come to light during trial through
other witnesses and testimony.” Dkt. 89, at 11.

9

Now, if the Court were to allow evidence that BendPak exceeded industry standards, an expert
would be necessary; however, the Court has already determined that such a conclusion is not
supported by the singular fact that no other companies have a secondary safety bracket. That
difference is not necessarily indicative of better performance or exceeding any relevant
standards, but is just that: a fact. BendPak has a secondary safety bracket; other companies do
not.
MEMORANDUM DECISION AND ORDER - 20

In conclusion, the Court’s prior decision stands. Although BendPak’s explanations
as to Yanes’s qualifications has been helpful, it does not alleviate all the Court’s
concerns. However, even assuming, arguendo, that Yanes was qualified to testify, the
three conclusions BendPak asks the Court to reconsider suffer from their own flaws. The
first two are based on speculation and the third will come out via other testimony.
BendPak’s Motion for Reconsideration of the Court’s order excluded Joshua
Yanes from trial is DENIED.
Additionally, the Court will not allow Yanes to testify as a fact witness either.
First, BendPak has not disclosed him as a fact witness, and doing so now would be
prejudicial. Second, the Court is concerned that because Yanes’s engagement with this
case was in the capacity of an expert witness, his expert testimony might spill into his
fact testimony. It appears that his fact testimony would be based upon the physical set up
and conditions of Cusack’s shop in November 2017. There are others who can testify to
these facts.
Finally, it appears that Cusack has stipulated to the admission of many of the
photographs BendPak seeks to admit at trial that Yanes took during his visit to Cusack’s
shop. If there are photos that Cusack will not stipulate to, the Court will allow BendPak
to call Yanes for the sole purpose of laying foundation for the photographs at issue.
C. Motion to Strike
Under FRCP 12(f), “[t]he court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.” See also Falash v.

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Inspire Acads., Inc., No. 1:14-CV-00223-REB, 2015 WL 4656505, at *1 (D. Idaho Aug.
6, 2015).
Here, Cusack does not seek to strike only certain portions of BendPak’s Answer
(such as affirmative defenses)—although that is arguably the impetus for this Motion—
but rather, Cusack asks the Court to strike BendPak’s Answer in its entirety as untimely.
Again, some background is helpful.
On December 8, 2017, Cusack filed a Motion to Amend Complaint. Dkt. 32. In his
Motion, Cusack sought to add a claim for punitive damages and to remove all Defendants
except BendPak from the case caption and factual allegations of the Complaint. The
Court determined that Cusack had not met his burden regarding punitive damages and
denied that part of his Motion.10 Dkt. 58, at 14. The Court granted the other portion of
Cusack’s Motion and allowed him to remove all Defendants, except BendPak, from the
case caption and contents of the Complaint. Id. Cusack timely filed an Amended
Complaint on April 26, 2018. Dkt. 60. On August 27, 2018, BendPak filed what amounts
to an Amended Answer to Cusack’s Amended Complaint, asserting numerous affirmative
defenses,11 which BendPak had not alleged prior to that time. Dkt. 95. Cusack now
moves to strike this Answer.

10

The Court noted, however, that Cusack could renew the motion during trial, if appropriate.
Dkt. 58, at 14.

11

Among other things. There are, in fact, other edits throughout the Amended Answer, however,
the affirmative defense are what Cusack takes greatest issue with.

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For its part, BendPak alerts the Court to the fact that following Cusack’s filing of
his Amended Complaint, it filed a Motion to Dismiss (Dkt. 66) thus tolling the time it had
to answer until the Court ruled upon that Motion. This is a correct assertion; however,
BendPak even missed that deadline. The Court ruled upon BendPak’s Motion to Dismiss
on August 7, 2018. BendPak’s answer would then have been due on or before August 21,
2018. BendPak explains that there was a communication and calculation error between
Counsel and staff regarding when the Answer was due. BendPak asserts that it was not
aware of its error until Cusack filed the instant Motion to Strike.
As a threshold matter, Federal Rule of Civil Procedure 15 outlines that an Answer
must be filed within 21 days of the filing of any Complaint or Amended Complaint.
Second, if a party fails to meet the 21-day requirement, it can only amend with the
opposing party’s consent or with leave of the Court. BendPak did not ask Cusack or the
Court for permission to amend its Answer; however, that is understandable given
BendPak’s explanations that it did not believe its Amended Answer was untimely. As
part of its response to the instant Motion, BendPak now seeks permission of the Court to
file its Amended Answer.
Similarly, Cusack correctly notes that pursuant to Idaho Local Rule 15.1, the party
seeking amendment must submit a redlined version of the document they seek to amend.
Although BendPak did not originally do this, in response to the instant Motion, BendPak
has complied.

MEMORANDUM DECISION AND ORDER - 23

Although BendPak’s Motion was technically six days late, the Court is more
concerned with the fact that at the time BendPak filed its Amended Answer, trial was
only four weeks away, and discovery had been closed for over eight months.
In other words, the Court is not as concerned with the timeline looking back, but
the timing moving forward, particularly in light of the substance of BendPak’s Amended
Answer. Introducing new theories and defenses at this late stage is prejudicial to Cusack.
There is inadequate time to prepare for these positions and the opportunity to depose
people on these topics or develop expert opinions on the same has long since passed.
The Court notes that, technically speaking, Cusack did make some minor additions
to his Complaint beyond just removing all Defendant (except BendPak) as originally
requested. These additions and clarifications went to the topic of the secondary safety
bracket which the Court had addressed—in the same decision containing its ruling on the
motion to amend—and how that piece of evidence could be used. Thus, an argument
could be made that BendPak should have a chance to respond to those limited additions
that expounded upon the secondary safety bracket. BendPak does not make this
argument, but even if it did it would be unavailing because none of the new additions in
its Amended Answer deal with the secondary safety bracket. Thus, it does not appear that
the additions that Cusack made—and that could have been the incentive for an Amended
Answer—were of concern to BendPak. Rather, it appears that this is a true Amended
Answer.

MEMORANDUM DECISION AND ORDER - 24

BendPak asserts that the six affirmative defenses it added in its Amended Answer
are not truly new, but that it has been pursuing these theories since the beginning of the
case. The Court is not as convinced.
In support of its Motion, BendPak cites to an Idaho Supreme Court case, wherein
that Court determined that “a party does not waive an affirmative defense for failing to
raise it in the initial answer, so long as it is raised before trial and the opposing party has
time to respond in briefing and oral argument.” Patterson v. State Dept. of Health &
Welfare, 256 P.3d 718, 724 (Idaho 2011). It is crucial to note that Patterson—and the
case the Patterson Court relied upon for this proposition—was at the summary judgment
stage. The Patterson Court determined that because the opposing party had an
opportunity to respond to the new defense brought up in the Motion for Summary
Judgment there was no prejudice and the defense was not waived.
BendPak makes the loose connection from Patterson to the present case and
asserts that because Cusack “had an opportunity” to respond all along the way—through
briefing and oral argument—he has suffered no prejudice. The Court cannot accept this
proposition.
First, as the Court outlines in detail below, BendPak has not met its burden to
show that these topics were brought up previously. Second, to be frank, even if BendPak
had discussed these topics previously, Cusack was unaware that these were affirmative
defenses BendPak was planning to raise. The arguments and facts raised previously
might have fallen into the category of one of the defenses now asserted, but Cusack was

MEMORANDUM DECISION AND ORDER - 25

not preparing his case in that manner. By way of this Amended Answer, BendPak has
essentially put official titles on all of its various arguments.
The Court does not have time—nor the obligation—to look though the entire
record to find a fact cited or argument presented that could be interpreted as one of the
purported “legal theories” BendPak now raises as an affirmative defense. However, even
using BendPak’s citations, there are still gaps in the record.
BendPak puts forth six affirmative defenses in its Amended Answer not
previously raised: (1) unavoidably unsafe products; (2) spoliation of evidence; (3)
alteration; (4) misuse; (5) assumed risk; and (6) state of the art. The Court will discuss
each in turn.
1. Unavoidably unsafe product
BendPak claims that it has been arguing its “unavoidably unsafe products” defense
since the beginning and points to its opposition to Cusack’s Motion to Amend Complaint
(Dkt. 39; specifically, page 12) and its response to an interrogatory about misuse as
examples. The connection here is tenuous, at best.
First, page twelve of the referenced brief deals exclusively with caution decals and
warning labels and BendPak’s position that Cusack ignored these. Additionally, it should
be noted that this whole discussion was not really in an affirmative defense setting, but in
response to Cusack’s motion to add a claim for punitive damages; which the Court
ultimately rejected. Second, the interrogatory goes more towards misuse, and, like the
brief just cited, covers BendPak’s position that Cusack ignored warnings and that it was

MEMORANDUM DECISION AND ORDER - 26

unwise to try to move the 350 pound jack while in the hoisted position. While this is
arguably a little closer—the idea that the object is heavy and standing under it could be
dangerous or that warnings indicate danger—it does not necessarily mean the product is
“unavoidably safe.” There are lots of objects that are heavy, but that does not make them
unavoidably safe. Also, as anyone who has bought anything of value knows, the included
instructions, cautions, policies, warnings, and the like are extensive. This too is not
indicative of an unavoidably unsafe product. The Court does not find support for this
theory in the record.
2. Spoliation of evidence
BendPak lumps spoliation of evidence and alteration of the product into one
sentence asserting support exists for both in its Motion opposing Cusack’s Motion for
Summary Judgment (Dkt. 40) as well as excerpts from Cusack’s testimony. While there
may be support for alteration of the product—as will be discussed below—Dkt. 40 is
completely void of any reference to spoliation of evidence. Furthermore, BendPak’s
references to Cusack’s testimony are far from enlightening. In essence, Cusack states that
he does not know what happened to the jacks after the incident—who moved them, put
them back together, or took pictures of them. This is a far cry from spoliation of
evidence. The Court will not indulge this theory further as spoliation of evidence is an
entire body of law with specific requirements and elements. Suffice it to say, none of
those requisite elements are met here. The Court does not find support in the record for
this theory.

MEMORANDUM DECISION AND ORDER - 27

3. Alteration of product
As noted above, BendPak relies upon its opposition brief to Cusack’s Motion for
Partial Summary Judgment (Dkt. 40-1) to find support for the idea that Cusack has been
on notice of this theory all along. In his Motion for Summary Judgement (Dkt. 37),
Cusack asked the Court to rule as a matter of law that contributory negligence was not an
affirmative defense available to BendPak.
In its brief in opposition, BendPak discusses at length the alterations (and misuses)
it believes Cusack made and argues that there are disputed facts that preclude the Court
from ruling in Cusack’s favor. In his reply, Cusack conceded that there were material
facts at issue and that contributory negligence was most likely an available defense.
At oral argument on the motion, this issue took a slightly different turn and
focused on whether contributory negligence could be imputed to Cusack vis-à-vis an
unknown party—the “phantom” driver. Ultimately the Court decided that only Cusack
and BendPak could be found liable in this action and any contributory negligence—on
Cusack’s part or any of his employees—would be attributed to Cusack.
Of any of the new defenses, “alteration” finds the most support in the record.
However, each time alteration was discussed at length it was in support of another theory
(contributory negligence) or was simply factual—the answer to an interrogatory as to
whether Cusack installed, modified, or altered the product.
In sum, the Court does find support in the record—generally speaking—for this
theory; however, nothing makes it clear that alteration was an affirmative defense

MEMORANDUM DECISION AND ORDER - 28

BendPak planned on raising rather than just a supporting argument. Furthermore, while
Cusack may have had an opportunity to respond, this circumstance is different from that
standard outlined in Patterson because Cusack did not actually know this was an
affirmative defense.12
The Court must make clear, however, that just because it is not allowing BendPak
to assert the affirmative defense of alteration—or misuse—these facts and arguments can
still be presented. BendPak properly disclosed this as evidence in support of contributory
negligence and Cusack has been aware of that—in that context—all along. BendPak has
stated from the outset that it believes Cusack’s installation, alterations, and/or misuse
contributed to the accident. This material is all proper argument, just not as an 11th hour
affirmative defense.
4. Misuse
The analysis here is similar to the above. BendPak did discuss misuse in Dkt. 40,
but that was all in support of its contributory negligence defense, not a standalone
defense. Cusack never had a chance to respond. BendPak also discussed misuse in the
interrogatory cited for its unavoidably unsafe products argument.

12

Again, it is important to note the difference between Patterson and the instant case. In
Patterson, the moving party raised an affirmative defense in support of summary judgment and
the other side was then able to respond in briefing and at oral argument. Here, this is not
summary judgment, nor was the defense raised as an actual affirmative defense at a point when
the briefing and oral argument were focused on that specific topic thus giving Cusack a
meaningful chance to respond. Here, BendPak raises these defenses much later and tries to
“relate back” to former arguments and evidence in the record for support.

MEMORANDUM DECISION AND ORDER - 29

As above, this material can be presented as argument consistent with the manner
in which it has been presented thus far in the case, but not as a new affirmative defense.
5. Assumed risk
BendPak does not provide support for this theory. The Court will not scour the
record for applicable arguments as the same analysis applies: Cusack did not have notice
that this was an affirmative defense, nor does he have time now to address the issue with
trial only ten days away.
6. State of the art
Finally, BendPak asserts that it has sufficiently plead its state of the art defense
throughout motion practice and discovery, namely when it discussed industry standards.
BendPak asserts that the Court and Cusack have even recognized, and agreed,with these
arguments. BendPak is correct. However, both the Court—and presumably Cusack—
were not thinking of BendPak’s arguments regarding industry standards as the impetus
for a state of the art affirmative defense.
Each of BendPak’s citations relate to its “industry standards” argument. The Court
has limited this topic as it relates to experts—frankly, the only person who might be able
to testify on this topic is Jeff Kritzer and even then, he can only testify that BendPak has
something that others don’t; not necessarily that this means it exceeds industry standards.
In short, whatever limited material there is on this topic will come out through the
appropriate means at trial, but this cannot be presented as a full-blow affirmative defense.

MEMORANDUM DECISION AND ORDER - 30

To summarize, the Court is mildly concerned that BendPak’s Amended Answer
was untimely. The Court is slightly more concerned that the amendments did not go to
items amended in Cusack’s Complaint.13 The Court is most concerned with the fact that
at this stage Cusack does not have time to adequately prepare for six new defenses.
Furthermore, BendPak’s caselaw supporting its position that these are not new
(but have been preserved) is not applicable. First, the present case is at the trial stage, not
summary judgment, and although Cusack had time to address the general subject matter
at issue, he has not actually had time to respond to these facts and arguments as
affirmative defenses. Second, even reviewing the material supplied by BendPak in
support of its argument that these theories have been plead all along, the Court can only
truly find support for two of the theories—alteration and misuse—both of which will
naturally come out during trial.
For all of these reasons, the Court GRANTS Cusack’s Motion to Strike.
V. ORDER
The Court HEREBY ORDERS:
1.

Cusack’s Motions in Limine (Dkt. 92) are GRANTED in PART and
DENIED in PART as outlined above.

2.

BendPak’s Motions in Limine (Dkt. 94) are GRANTED in PART and
DENIED in PART as outlined above.

13

In other words, BendPak was not necessarily responding to anything in that document, but
rather took the opportunity to file an Amended Answer.

MEMORANDUM DECISION AND ORDER - 31

3.

BendPak’s Motion for Reconsider Re: Secondary Safety Bracket (Dkt. 99)
is DENIED.

4.

BendPak’s Motion for Reconsider Re: Joshua Yanes (Dkt. 100) is
DENIED.

5.

Cusack’s Motion to Strike (Dkt. 111) is GRANTED. BendPak’s Amended
Answer (Dkt. 95) is stricken from the record.

DATED: September 13, 2018
_________________________
David C. Nye
U.S. District Court Judge

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