Moore v. Lowe's Companies, Inc. et al

Filing 99

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers granting Defendants' Motion for Summary Judgment (DN 85 ) and Defendants' Motion for Partial Summary Judgment (DN 86 ). (Lowe's Companies, Inc.; L.G. Sourcing, Inc.; and Lowe's Home Centers, LLC terminated.) The Defendants' Motion to Exclude Plaintiff's Experts (DN 87 ) is granted in part and denied in part. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13-CV-00005-GNS-HBB
DAVID ALEXANDER MOORE

PLAINTIFF

V.
LOWE’S COMPANIES, INC.;
L.G. SOURCING, INC.;
REXON INDUSTRIAL CORP.;
POWER TOOLS SPECIALISTS, INC.; and
LOWE’S HOME CENTERS, LLC

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment (DN 85),
Motion for Partial Summary Judgment (DN 86), and Motion to Exclude Plaintiff’s Experts (DN
87). The motions have been fully briefed by the parties and are ripe for adjudication. For the
reasons outlined below, the Motion for Summary Judgment and Motion for Partial Summary
Judgment are GRANTED, and the Motion in Limine is GRANTED IN PART and DENIED
IN PART.
I.

SUMMARY OF FACTS AND CLAIMS

On January 22, 2012, Plaintiff David Alexander Moore (“Moore”) suffered severe
injuries while operating a Task Force brand table saw, Model No. BT2500W, Item No. 229647,
which was purchased from Defendants in 2008. (Compl. ¶ 9, DN 1; Moore Dep. 68:16-69:18,
Nov. 3, 2014, DN 87-5). Prior to the accident, Moore had removed the guard from the table
because he believed the anti-kickback feature of the table saw impeded the feeding of wood into
the saw. (Moore Dep. 74:5-75:19). While Moore was ripping a board at a 45-degree angle, the
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board kicked back causing his left hand to come into contact with the spinning blade. (Moore
Dep. 122:18-126:7). As a result of the accident, Moore’s left index finger was amputated at the
first knuckle from the palm side, and his middle finger was cut on the side and top. (Moore Dep.
130:1-13).
Moore filed this lawsuit against Defendants alleging claims of strict product liability,
negligence, and breach of implied warranty of merchantability. (Compl. ¶¶ 21-31). Plaintiff has
retained Kerry Mehler (“Mehler”) and Darry Robert Holt (“Holt”) to testify as expert witnesses
in this matter.
II.

JURISDICTION

This Court has original jurisdiction of “all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, as is between . . . citizens of
different States . . . .” 28 U.S.C. § 1332(a)(1). The parties in this action are diverse, and the
amount in controversy exceeds the jurisdictional limit of the Court. (Compl. ¶¶ 1-2, 4-6, 8).
III.
A.

DISCUSSION

Motion for Summary Judgment and Motion for Partial Summary Judgment

Defendants Lowe’s Home Centers, LLC; L.G. Sourcing, Inc.; and Lowe’s Companies,
Inc. have moved to dismiss all of Plaintiff’s claims asserted against them due to Kentucky’s
middleman statute, KRS 411.340. (Defs.’ Mot. for Summ. J. 1, DN 85). In addition, Defendants
seek summary judgment on the claim of a breach of implied warranty of merchantability claim
due to the expiration of the applicable statute of limitations, KRS 355.2-725(1). (Defs.’ Mot. for
Partial Summ. J. 1, DN 86). Both of those motions are unopposed. (Pl.’s Resp. to Mot. for
Summ. J. 1, DN 96; Pl.’s Resp. to Mot. for Partial Summ. J. 1, DN 95). Accordingly, both

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motions will be granted, and the only remaining claims in this matter are being asserted against
Rexon Industrial Corp. and Power Tools Specialists, Inc. (hereinafter “Defendants”).
B.

Defendants’ Motion to Exclude Plaintiff’s Experts

Defendants move to exclude Mehler’s testimony in part and Holt’s testimony in its
entirety. (Defs.’ Mem. in Supp. of Mot. in Lim. 12-29, DN 87-1). Federal Rule of Evidence 702
permits the use of technical or specialized knowledge where it will assist the trier of fact to
determine a fact in issue. As a prerequisite, the evidence must meet the following criteria:
(a)
the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b)
the testimony is based on sufficient facts or data;
(c)
the testimony is the product of reliable principles and methods; and
(d)
the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 702(a)-(d).

See also Fed. R. Evid. 702, Advisory Comm. Note to 2000

Amendment (“[N]o single factor is necessarily dispositive of the reliability of a particular
expert’s testimony.”).
Under this rule, the trial judge is the gatekeeper to ensure that expert testimony satisfies
the requirements of reliability and relevance. See Mike’s Train House, Inc. v. Lionel, L.L.C., 472
F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)). As
the Sixth Circuit has further noted:
Parsing the language of the Rule, it is evident that a proposed expert's opinion is
admissible, at the discretion of the trial court, if the opinion satisfies *529 three
requirements. First, the witness must be qualified by “knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. Second, the testimony
must be relevant, meaning that it “will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Id. Third, the testimony must be
reliable.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008) (citing Fed. R. Evid.
702).
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1.

Holt

Defendants seek to exclude Holt’s testimony on the basis that his opinions are unreliable
and do not qualify as valid expert opinions.1 (Defs.’ Mem. in Supp. of Mot. in Lim. 13-29).
They also argue that Holt’s opinions are not trustworthy or based upon “the type and kind of
information relied upon by other experts in Mr. Holt’s field.” (Defs.’ Mem. in Supp. of Mot. in
Lim. 21).
a.

Qualifications

Holt earned a bachelor’s of science degree in mechanical engineering from Purdue
University in 1963, and a law degree from Suffolk University Law School in 1969. (Holt Decl.
Ex. 1, at 1, DN 94-2). He is a registered professional engineer and licensed to practice law in
Massachusetts. (Holt Decl. Ex. 1, at 1). Holt has held a variety of positions in the engineering
field since the early 1970s and by his count, he has “approximately 40 [years’] experience as a
consulting engineer evaluating the safety design and condition of hundreds of machines and
products of all types, including table saws.” (Holt Decl. Ex. 1, at 1; Holt Decl. ¶ 3, DN 94-1;
Holt Expert Report 1, DN 87-13). Holt also estimates that he has “spent 4,000 hours over the
past eleven (11) years investigating and testing SawStop saws and investigating the subject and
other table saws, both by inspecting the saws themselves and by reviewing design and other
documents.”

(Holt Supplemental Report 1, DN 87-9).

Holt has “practical experience in

carpentry and with woodworking tools, including table saws, having built or supervised personal
house additions and house construction.” (Holt Decl. ¶ 3). He has also been an expert in other
cases involving table saws. (Holt Decl. ¶ 3).

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Defendants do not challenge the relevance of Holt’s testimony.
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In evaluating Holt’s qualifications, the Court should consider his “full range of practical
experience as well as academic or technical training when determining whether that expert is
qualified to render an opinion in a given area.” Smith v. Ford Motor Co., 215 F.3d 713, 717 (7th
Cir. 2000). Holt’s education and experience outlined above are sufficient to qualify him to
render expert testimony regarding the issues in this case.
In challenging Holt’s qualifications, Defendants argue that Holt is a hired gun. (Defs.’
Mem. in Supp. of Mot. to Exclude Testimony 14). While a court must “ensure that it is dealing
with an expert, not just a hired gun,” this Court believes that Plaintiff has demonstrated that Holt
has pertinent educational and professional experience, particularly his experience investigating
issues concerning table saw safety. See Tyus v. Urban Search Mgmt., 102 F.3d 256, 263 (7th
Cir. 1996). The motion will be denied as to Holt’s qualifications.
b.

Reliability

Defendants also argue that Holt’s testimony should be excluded because his opinions and
methodology are unreliable under Fed. R. Evid. 702 and 703. Defendants assert that Holt should
be precluding from testifying that “it was technically feasible to incorporate flesh technology
into the subject saw by 2007.” (Defs.’ Mem. in Supp. of Mot. in Lim. 14). In addition, they
maintain that Holt is unqualified to testify on the issue of economic feasibility and that his
opinions fail under both rules. (Defs.’ Mem. in Supp. of Mot. in Lim. 14-15).
“Rule 702 directs courts to focus on the reliability of expert testimony, rather than the
‘credibility and accuracy’ of that testimony.” Superior Prod. P’ship v. Gordon Auto Body Parts
Co., 784 F.3d 311, 323 (6th Cir. 2015) (quoting In re Scrap Metal Antitrust Litig., 527 F.3d at
529). In relevant part, Rule 703 states:
An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed. If experts in the particular field
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would reasonably rely on those kinds of facts or data in forming an opinion on the
subject, they need not be admissible for the opinion to be admitted.
Fed. R. Evid. 703.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993), the
Supreme Court identified a non-exhaustive list of factors a trial court may consider in evaluating
an expert’s proposed testimony. These factors include:
(1) whether a theory or technique can be or has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) whether the
technique has a known or potential rate of error; and (4) whether the theory or
technique enjoys “general acceptance” within a “relevant scientific community.”
Brooks v. Caterpillar Glob. Mining Am., LLC, No. 4:14-CV-00022-JMH, 2016 WL 276126, at
*2 (W.D. Ky. Jan. 21, 2016) (quoting Daubert, 509 U.S. at 592-94).
In general “[e]xperts are permitted a wide latitude in their opinions, including those not
based on firsthand knowledge, so long as ‘the expert’s opinion [has] a reliable basis in the
knowledge and experience of the discipline.’” Jahn v. Equine Servs., PSC, 233 F.3d 382, 388
(6th Cir. 2000) (second alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592 (1993)). “[A] trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable.” Dilts v.
United Grp. Servs., LLC, 500 F. App’x 440, 445 (6th Cir. 2012) (internal quotation marks
omitted) (alteration in original) (quoting Kumho Tire, 526 U.S. at 152). As the Sixth Circuit has
noted, “mere ‘weaknesses in the factual basis of an expert witness’ opinion . . . bear on the
weight of the evidence rather than on its admissibility.’” McLean v. 988011 Ont., Ltd., 224 F.3d
797, 800-01 (6th Cir. 2000) (citation omitted).

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In this case, Plaintiff has retained Holt to testify regarding the existence of feasible
alternative designs to the Task Force table saw at issue here. As this Court has noted regarding
Kentucky law in defective design cases:
In specifically addressing a design defect case, the Kentucky Supreme Court has
stated:
A plaintiff in Kentucky can bring a defective design claim under
either a theory of negligence or strict liability. The foundation of
both theories is that the product is ‘unreasonably dangerous.’ . . .
So under either theory, it is the legal duty of a manufacturer to use
reasonable care to protect against foreseeable dangers. In a design
defect case courts use some form of risk-utility analysis to assess
the decisions made by manufacturers with respect to the design of
their products.
Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003). The risk-utility
analysis balances the available alternative designs with the risk of the chosen
design. Relevant factors in this analysis include the usefulness of the product, the
probability it will cause injury and “the manufacturer’s ability to eliminate the
unsafe character of the product without impairing its usefulness or making it too
expensive to maintain its utility.” Kentucky law states that all products liability
actions, “regardless of whether the case involves failure to adequately warn,
defective design or other products liability theories, [require proof that] the
product is defective.” In sum, in order to prove a defective design, Plaintiff must
show that the design is unreasonably dangerous under a risk-utility analysis.
Hopkins v. Ford Motor Co., No. 1:07-CV-00068, 2011 WL 5525454, at *2 (W.D. Ky. Nov. 14,
2011) (internal citations omitted).2
In support of their motion, Defendants attack the methodology Holt used in formulating
his opinions and argue:

2

To prove a claim of defective design under Kentucky law, a plaintiff must present proof of a
feasible alternative design. See Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004).
In other jurisdictions, however, the feasibility requirement is bifurcated into technological
feasibility and economic feasibility. See, e.g., Edwards v. Techtronic Indus. N. Am., Inc., No.
3:13-cv-01362-SI, 2015 WL 3616558, at *4 (D. Or. June 9, 2015). Many of the cases cited by
the parties relating to these witnesses are from other jurisdictions that impose this two-pronged
requirement for feasibility. The Court, however, has been unable to find any Kentucky case law
following that approach.
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Mr. Holt has testified that he has not inspected or examined the Table Saw owned
by Mr. Moore in this case. As Mr. Holt has not seen or examined the Table Saw,
he also failed to take any photographs. He has not talked with Mr. Moore about
the problem that occurred on the date of the accident and has no intention of
doing so.
(Defs.’ Mem. in Supp. of Mot. in Lim. 13 (internal citations omitted) (citation omitted)). Based
upon the Court’s review of Holt’s Expert Report and Supplemental Report, Holt has adequately
articulated the methods he used in formulating his opinions that table saw in question has design
defects. Holt has opined that one of the problems with this table saw—like many others in the
industry—is that the safety guards interfere with the visibility of the user, encouraging users to
remove the guards. (Holt Expert Report 8).
The Court disagrees with Defendants’ characterization of Holt’s testimony with respect
to the formulation of his opinions. In his deposition, Holt testified that he had a conference call
with Plaintiff and others on April 30, 2014, to find out what occurred on the date of the accident.
(Holt Dep. 34:14-39:18). Defendants’ characterization is further undermined by Holt’s expert
report, in which he identified the preparatory work upon which he formulated his opinions,
consisting of:
1.
2.
3.
4.
5.

6.

7.

Discussions with Mr. Moore on April 30, 2014.
[His] inspections of Rexon saw models similar to the subject saw on
August 20, 2009 and October 28, 2011.
Photographs of the subject table saw.
Review of the operating manual and parts list for the subject model saw.
Examination and testing of a Bosch 4100 table saw equipped with a
modular guard assembly in conformance with UL 987, 2007 on August
22, 2007, and examination of other manufacturers’ modular guard
assemblies since 2007 including Ryobi; Rigid, Skil, Delta, Dewalt, and
Makita.
Visits to the SawStop, LLP facilities in Oregon on July 6, 2004,
November 1 & 2, 2005, May 9, 2008, and June 21, 2012 to observe a table
saw equipped with SawStop’s recent innovative safety device, and
discussions with Messrs. Stephen Gass and David Fanning of SawStop.
Testing and evaluation on May 25, 2005 and June 25 & 26, 2008 of a
contractor’s model table saw prototype equipped with SawStop’s
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8.
9.
10.
11.
12.
13.
14.

innovative safety device provided to the writer, and testing and evaluation
of a 2008 SawStop cabinet model table saw on June 25 & 26, 2008, and
August 11 & 12, 2008.
Discovery documents and deposition transcripts with Exhibits as listed in
Appendix 3.
Collection of PTI Documents from 9/21/00 thru 1/14/09 assembled by
Boies, Schiller & Flexner LLP from documents produced in various table
saw actions.
Engineering Handbook Standards and Treatises as listed in Appendix 4.
Documents produced by defendants in this action and by other defendants
in other table saw actions.
[His] inspection at SawStop on June 21, 2012 of SawStop’s bench top
table saw prototype equipped with SawStop’s flesh[-]detection and
reaction technology as found on their larger saws produced since 2004.
[His] inspection of a PTI J.V. patterned bench top table saw prototype
equipped with flesh[-]detection and reaction technology on June 22, 2012.
[His] attendance at, and participation in, an inspection and testing of a
SawStop contractors saw with a proposed finger surrogate at UL’s
facilities in Northbrook, Illinois on March 25, 2014.

(Holt Expert Report 2). By his supplemental report, Holt also outlined his investigation of fleshdetection technology. (Holt Supplemental Expert Report 2-4). Additionally, Holt’s expert
opinions appear to be tailored to this particular table saw and design issues associated with this
saw and similar designs.
In determining the feasibility of incorporating flesh-detection technology into table saws,
Holt stated that he did the following:
On May 21-24, 2015, I personally inspected and analyzed a production model
SawStop jobsite saw and compared its component parts to four other popular
consumer table saws: (1) the Ryobi RTS10G model saw; (2) the Dewalt 744 Type
2 table saw; (3) the Bosch 4100-09; and (4) the Ridgid R4513 (collectively, the
“comparison saws.”). I examined and photographed the internal components to
compare their functional design principles.
This analysis confirms that
incorporating flesh detection into a bench top saw is not difficult, does not
fundamentally change the nature, form, or function of the saw, and has been
feasible since 2002.

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(Holt Decl. ¶ 208). Holt noted that all of the studied table saws use the same basic design. Holt
Decl. ¶ 209). Addressing the modifications that would be required to implement flesh-detection
technology into similar table saws, Holt explained:
211. First, in order to accommodate a flesh detection system like
SawStop on a bench top saw, the hollow plastic bases need to have larger, usable
hollow cavities, primarily an increase in height of 3”-5” and an increase in both
the other two dimensions (side to side and fore and aft) at full height. From a
manufacturing perspective, this would require some additional resin, an
insignificant cost that would add negligible weight to the saw. Further, such an
increase of the central hollow cavities would not increase the overall footprints of
the saws, just the usable space in the cavities. In other words, this change would
not significantly impact the form of a bench top saw, and it has certainly been
feasible to make this change to a bench top saw since 2002.
212. Second, in addition to increasing usable cavity volume, the
components and fasteners used to attach the brake to the mounting plate and the
mounting plate to the underside of the table as well as to the arbor will have to be
strong enough to withstand the braking and dropping forces. Selection of the
components’ material and size can be made by performing a stress analysis, an
engineering tool utilized in the design of any product. This was something that
could have easily been done in 2002. Visual comparison of these components on
the SawStop saw to those on the other models suggests that it was not a major
obstacle to strengthen the SawStop jobsite saw to accommodate flesh detection.
The analysis should also determine if there is an imbalance in moments [sic]
which would tend to tip over the saw during braking and, if so, adjustments can
easily be made to the weight distribution and base dimension, design steps similar
to adding a counterweight and stabilizer. Again, this is something engineers
routinely do and could have easily been done in 2002.
(Holt Decl. ¶¶ 211-212). Based upon Holt’s education, experience, and study of table saw
designs and flesh-detection technology, his opinions possess a sufficiently reliable basis.
Likewise, Defendants argue that Holt’s opinions regarding the implementation of the
flesh-detection technology are ipse dixit of Dr. Stephen F. Gass, the inventor of the technology.
(Defs.’ Mem. in Supp. of Mot. in Lim. 16). As the Supreme Court has noted:
[N]othing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing data only by the ipse
dixit of the expert. A court may conclude that there is simply too great an
analytical gap between the data and opinion offered.

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Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (citing Turpin v. Merrell Dow Pharm., Inc.,
959 F.2d 1349, 1360 (6th Cir. 1992)). The Court, however, disagrees with this characterization.
Based upon review of Holt’s testimony and reports, the Court finds that Holt is qualified to
testify as to the feasibility of the SawStop technology as it relates to Plaintiff’s product liability
claim. See also Wood v. Robert Bosch Tool Corp., No. 4:13CV01888 TCM, 2015 WL 5638040,
at *13 (E.D. Mo. Sept. 24, 2015) (finding that Holt was qualified to testify as to whether it was
feasible to incorporate the flesh-detection technology into a Skil Model 3305 table saw). Along
with Holt’s education and experience in mechanical engineering, he has reviewed and tested
saws using the flesh-detection technology as well as table saws that lack the technology. The
Court finds that Holt is qualified to testify regarding the feasibility of such technology.
To the extent that there is any gap in Holt’s qualifications or knowledge, that issue goes
to the weight, not the admissibility of his opinions. See Faughn v. Upright, Inc., No. 5:03-CV000237-TBR, 2007 WL 854259, at *4 (W.D. Ky. Mar. 15, 2007) (quoting Robinson v. GEICO
Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006)). As one court has noted:
At all times when scrutinizing the reliability and relevance of expert testimony, a
court must remain mindful of the delicate balance between its role as a gatekeeper
and the jury’s role as the ultimate factfinder. A [trial] court’s “gatekeeper role . . .
is not intended to supplant the adversary system or the role of the jury.”
“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are traditional and appropriate means of
attacking shaky but admissible evidence.” A court may not “evaluate the
credibility of opposing experts or the “persuasiveness of competing scientific
studies”; instead, its duty is limited to “ensur[ing] that the fact-finder weighs only
sound and reliable evidence.” In close cases involving testimony of debatable
reliability, this Court chooses to err in favor of admitting the testimony and
allowing opposing counsel to draw out any weaknesses through crossexamination.
Bowers v. Norfolk S. Corp., 537 F. Supp. 2d 1343, 1351-52 (M.D. Ga. 2007) (internal citations
omitted) (second alteration in original). See also Michaels v. Mr. Heater, Inc., 411 F. Supp. 2d

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992, 998 (W.D. Wis. 2006) (noting that any flaws in the expert witness’s procedures are issues of
credibility, not qualification); Talmage v. Harris, 354 F. Supp. 2d 860, 868 (W.D. Wis. 2005)
(“Although defendants’ attacks on Kleinheinz’s assumptions and computations appear to have
merit, such arguments go to the weight and credibility of Kleinheinz’s opinions, not their
admissibility.”).

Thus, Defendants may attack Holt’s opinions through vigorous cross-

examination at trial.
For these reasons, Holt’s opinions are sufficient reliable to survive Defendants’ motion.
Accordingly, the Court will deny the motion.
2.

Mehler

With respect to Mehler, Defendants request that the Court exclude his testimony on the
limited topics of SawStop or flesh-detection technology. (Defs.’ Mem. in Supp. of Mot. in Lim.
12). While Plaintiff discussed Mehler’s credentials in his response, he did not specifically
address whether Mehler’s testimony should be limited on those issues. 3 (Pl.’s Resp. to Mot. in
Lim. 35-37). As a result, Plaintiff has waived any argument that he could have raised in
opposing the motion to exclude Mehler’s testimony on this limited basis. See Houchins v.
Jefferson Cty. Bd. of Educ., No. 3:10-CV-147, 2013 WL 811723, at *3 (E.D. Tenn. Mar. 5,
2013) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Thus, the Court will
grant the motion and exclude any expert opinions by Mehler on the limited areas of SawStop and
flesh-detection technology.

3

Defendants indicate the parties have stipulated to this limitation on Mehler’s testimony and cite
to Exhibit H. (Defs.’ Mem. in Supp. of Mot. in Lim. 12). The Court has not been able to locate
any stipulation in that exhibit.
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IV.

CONCLUSION

For the reasons outlined above, IT IS HEREBY ORDERED as follows:
1.

Defendants' Motion for Summary Judgment (DN 85) and Defendants' Motion for

Partial Summary Judgment (DN 86) is GRANTED; and
2.

Defendants’ Motion to Exclude Plaintiff’s Experts (DN 87) is GRANTED IN

PART and DENIED IN PART.

Greg N. Stivers, Judge
United States District Court
March 25, 2016

cc:

counsel of record

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