American Family Mutual Insurance Company et al v. Techtronic Industries North America, Inc. et al
MEMORANDUM AND ORDER sustaining 61 Motion to Exclude Testimony of Dr. Nathan Dorris; sustaining 65 Motion to Exclude Testimony of Michael Wogalter, Ph.D. Signed by District Judge Kathryn H. Vratil on 05/27/14. (ag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMERICAN FAMILY MUTUAL INSURANCE
COMPANY, as subrogee of Robert and Mandy
Harris, et al.,
TECHTRONIC INDUSTRIES NORTH
AMERICA, INC., et al.,
MEMORANDUM AND ORDER
American Family Mutual Insurance Company, Robert Harris and Mandy Harris bring suit
against Techtronic Industries North America, Inc., OWT Industries, Inc. and Techtronic Industries
Factory Outlets, Inc., asserting that a defective gasoline-powered pressure washer caused a fire on
August 22, 2010. Specifically, under the Kansas Product Liability Act (“KPLA”), K.S.A. § 60-3301
et seq., plaintiffs claim that at the time defendants manufactured, distributed and sold a Power Stroke
Pressure Washer, it was unreasonably dangerous due to inadequate warnings.1 The case is set for
trial on June 16, 2014. This matter comes before the Court on Plaintiffs’ Motion To Exclude The
Testimony Of Dr. Nathan Dorris And Memorandum In Support Thereof (“Plaintiffs’ Motion”)
(Doc. #61) and Defendants’ Motion To Strike Plaintiffs’ Expert Michael Wogalter, Ph.D.
(Doc. #65), both filed October 25, 2013. For reasons stated below, the Court sustains both motions.
Plaintiffs also claim that the product was unreasonably dangerous due to design
and/or manufacturing defects but the Court has entered partial summary judgment in favor of
defendants on those claims. See Memorandum And Order (Doc. #108) filed May 16, 2014.
Federal Rule of Evidence 702 provides as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
Fed. R. Evid. 702.
Under Fed. R. Evid. 702, the Court has a gate-keeping obligation to determine the
admissibility of all expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)
(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). Expert testimony is admissible
only if it is both relevant and reliable. Id. The touchstone of the Court’s inquiry is whether the
testimony helps the factfinder understand evidence or determine a fact in issue. BioCore, Inc. v.
Khosrowshahi, 183 F.R.D. 695, 699 (D. Kan. 1998). Courts have broad discretion in deciding
whether to admit expert testimony, but should resolve doubts in favor of admissibility. Id.; Kieffer
v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996); see Fed. R. Evid. 702 advisory
committee’s note; Daubert, 509 U.S. at 588-89.
The Court must determine at the outset whether an expert will testify to scientific, technical
or other specialized knowledge that will help the trier of fact understand or determine a fact in issue.
Daubert, 509 U.S. at 592-93; see Fed. R. Evid. 104(a), 702. This requires a preliminary assessment
whether the reasoning or methodology underlying the testimony is valid and whether the expert can
properly apply it to the facts in issue. Daubert, 509 U.S. at 592-93; see Fed. R. Evid. 104(a), 702.
The purpose of this inquiry is always “to make certain that an expert, whether basing testimony upon
professional studies or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152.
It is therefore important that the expert’s opinion be testable, i.e. capable of being challenged in
some objective sense, and not just a subjective opinion that cannot reasonably be assessed for
reliability. Fed. R. Evid. 702 advisory committee’s note; see Kumho Tire, 526 U.S. at 149-53;
Daubert, 509 U.S. at 590.
An expert may offer an opinion even if it “embraces an ultimate issue to be determined by
the trier of fact.” Fed. R. Evid. 704. But an expert may not simply tell the jury what result it should
reach. United States v. Simpson, 7 F.3d 186, 188 (10th Cir. 1993). An expert witness’s personal
belief as to the weight of evidence would invade the province of the jury. Lawrence v. Raymond
Corp., No. 3:09 CV 1067, 2011 WL 3418324, at *4 (N.D. Ohio Aug. 4, 2011); Oxford Gene Tech.
Ltd. v. Mergen Ltd., 345 F. Supp.2d 431, 435 (D. Del. 2004). Expert opinions that address matters
which are equally within the competence of the factfinder to understand and decide are not helpful
to the factfinder and therefore inadmissible. McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1273
(6th Cir. 1988) (citing Fed. R. Evid. 701, 702); see Thompson v. State Farm Fire & Cas. Co., 34
F.3d 932, 941 (10th Cir. 1994).
The Court’s gate-keeping function is not meant to supplant “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof . . . [as] the
traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S.
at 596 (citation omitted). The proponents of expert testimony bear the burden of establishing
admissibility under Rule 702. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 970 n.4
(10th Cir. 2001).
As noted, plaintiffs claim that the Power Stroke was unreasonably dangerous due to
inadequate warnings. Both plaintiffs and defendants have retained battling “human factors” experts
to testify regarding whether the Power Stroke warning systems were adequate.2 Each side seeks to
exclude the other’s expert in this regard.
Michael Wogalter, Ph.D.
Plaintiffs have retained Michael Wogalter, Ph.D., to testify that the warning systems
associated with the Power Stroke are defective. See Wogalter Report, Exhibit A to Memorandum
In Support Of Defendants’ Motion To Strike Plaintiffs’ Expert Michael Wogalter, Ph. D.
(“Defendants’ Memorandum”) (Doc. #66) filed October 25, 2013. Specifically, Wogalter opines
that (1) the format of the on-product warnings is inadequate due to the placement and relatively
small size of the text; and (2) the operator manual is inadequate because it does not describe the
connection between fire and explosion hazards and the shutdown and storage procedure. Id. at 12.
Defendants urge the Court to exclude Wogalter’s opinions because they are unreliable and would
Human factors analysis, also known as ergonomics, involves the study of the
interrelationship between human behavior or capabilities and the surrounding environment. See
Snoznik v. Jeld-Wen, Inc., Case No. 1:09cv42, 2010 WL 1924483, at *19 (W.D.N.C. May 12, 2010)
(quoting Douglas R. Richmond, Human Factors in Personal Injury Litigation, 46 Ark. L. Rev. 333,
335 (1993)). Human factors experts generally study or evaluate factors such as (1) the effects of
fatigue, drug, alcohol or other physical principles on humans; (b) human necessities that manifest
reactions to stimuli; (c) events that result from product warnings; (d) purposes for which hazardous
warnings are needed; (e) potential reactions caused by machinery control functions; and (f) expected
behavioral responses caused by the existence or lack of devices. Id. (citation omitted).
not aid the jury.3 Defendants’ Memorandum (Doc. #66) at 2. Specifically, defendants assert that
Wogalter’s opinions are unreliable because he has not seen the Power Stroke machine, he did not
read the entire operator manual and he did not conduct scientific experiments or analysis regarding
the Power Stroke warning system. Id. at 9-10. Defendants also assert that Wogalter’s opinions are
unnecessary because they fall within the normal comprehension and understanding of the average
juror. Id. at 5.
Under Kansas law, whether a warning is adequate depends upon whether it is reasonable
under the circumstances. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 975 (10th
Cir. 2001). To be adequate, a warning must be comprehensible to the average user and convey to
the mind of a user a fair indication of the nature and extent of the danger. Wheeler v. John Deere
Co., 862 F. 2d 1404, 1413 (10th Cir. 1988). The determination whether a warning is adequate is a
question of fact. See Graham v. Wyeth Labs., Div. of Am. Home Prod. Corp., 666 F. Supp. 1483,
1499 (D. Kan. 1987).
Upon careful review, the Court finds that Wollack’s proposed testimony will not aid the jury
in determining the facts and understanding the evidence in this case. The Power Stroke operator
manual and on-product warnings were written for average consumers, i.e. individuals similar to
those who will sit on the jury. See, e.g., Wilson v. Thompson/Ctr. Arms Co., No. 05-6493, 2007 WL
4727640, at *1 (E.D. La. Nov. 1, 2007). Thus, the jurors will be fully capable to assess plaintiffs’
claims that the on-product warnings and operator manual do not adequately convey a fair indication
of the nature and extent of the danger, i.e. that storing a hot pressure washer can ignite nearby
combustible materials. See id. Because the issues are within the realm of common understanding
Defendants do not challenge Wogalter’s qualifications to testify as a human factors
and knowledge of the average juror, the Court will exclude Wogalter’s proposed expert testimony.4
See, e.g., Snoznik, 2010 WL 1924483, at *19 (to be admissible human factors expert testimony must
provide more than common sense observations to jury); Calvit v. Procter & Gamble Mfg. Co., 207
F. Supp.2d 527, 529 (M.D. La. 2002) (excluding human factors expert testimony regarding adequacy
of warning); see also Simon v. Simon, 260 Kan. 731, 740, 924 P.2d 1255, 1262 (Kan. 1996) (human
factors expert testimony which simply evaluates commonplace situations and occurrences within
comprehension and understanding of average juror not admissible).
Dr. Nathan Dorris
Defendants have retained Dr. Nathan Dorris to testify that the warning systems associated
with the Power Stroke are reasonable and adequate. See Dorris Report, Exhibit A to Plaintiffs’
Motion (Doc. #61). Specifically, Dorris opines that (1) the Power Stroke warnings are reasonable
and appropriate; and (2) the fire hazard posed by the Power Stroke is obvious based on common life
experience. Id. at 4-8. Plaintiffs urge the Court to exclude Dorris’s testimony because (1) his
opinion regarding reasonableness constitutes a legal conclusion; (2) his opinion regarding the
obvious nature of the hazard will not assist the trier of fact.5 Plaintiffs’ Motion (Doc. #61) at 3-8.
In light of this finding, the Court does not address whether Wogalter’s opinions are
Plaintiffs do not challenge Dorris’s qualifications to testify as a human factors expert.
According to plaintiffs, Dorris opines that different warnings would not have changed the
behavior of Harris and such opinion is unreliable. See Plaintiffs’ Motion (Doc. #61) at 2, 7-8.
Defendants respond that plaintiffs have misread the Dorris report and that Dorris proposes only to
testify as to the principles of human factors science as they apply to Harris’s testimony. See
Memorandum In Opposition To Plaintiffs’ Motion To Exclude Testimony Of Dr. Nathan Dorris
(Doc. #70) filed November 8, 2013 at 14-15. In their reply, plaintiffs do not address defendants’
response to this argument. See Plaintiffs’ Reply Brief In Support Of Their Motion To Exclude The
Testimony Of Dr. Nathan Dorris (Doc. #78) November 26, 2013. The Court need not address the
Similar to Wogalter’s opinions, the Court finds that Dorris’ opinions will not aid the jury in
determining the facts and understanding the evidence in this case. As discussed, the Power Stroke
operator manual and on-product warnings were written for consumers similar to individuals who
will sit on the jury. Thus, the jurors will be fully capable to assess whether the Power Stroke
warnings are adequate, i.e. whether they reasonably convey to the average user a fair indication of
the nature and extent of the danger. Because the fact issues are within the realm of common
understanding and knowledge of the average juror, the Court will exclude Dorris’ testimony.6 See,
e.g., Snoznik, 2010 WL 1924483, at *19; Wilson, 2007 WL 4727640, at *1; Calvit, 207 F. Supp.2d
at 529; see also Simon, 260 Kan. at 740, 924 P.2d at 1262.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion To Exclude The Testimony Of
Dr. Nathan Dorris And Memorandum In Support Thereof (Doc. #61) filed October 25, 2013 be and
hereby is SUSTAINED.
IT IS FURTHER ORDERED that Defendants’ Motion To Strike Plaintiffs’ Expert Michael
Wogalter, Ph.D. (Doc. #65) filed October 25, 2013 be and hereby is SUSTAINED.
Dated this 27th day of May, 2014 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge
argument because it decides that Dorris’ proposed testimony will not aid the jury.
In light of this finding, the Court does not address whether Wogalter’s opinions are
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