Paul v. Henri Line Machine Tools Inc.

Filing 104

ORDER re 95 Order on Motion to Strike, 97 Appeal of Magistrate Judge Decision, filed by Sandra D. Paul, 98 Appeal of Magistrate Judge Decision, filed by Sandra D. Paul, 94 Order on Motion for Order. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SANDRA D. PAUL,
Plaintiff,
v.
Case No. 10-10832
Honorable Julian Abele Cook, Jr.

HENRI-LINÉ MACHINE TOOLS, INC.,
Defendant.

ORDER
This is a product liability action in which the Plaintiff, Sandra D. Paul, acting in her official
capacity as the personal representative of the deceased estate of Jay Curtis Paul1, alleges that a
milling machine that had been manufactured by the Defendant, Henri-Liné Machine Tools, Inc., was
defective in its design and, in turn, ultimately caused the death of her husband during his usage of the
machine.

In essence, this case goes back to July 30, 2008 when the Plaintiff’s husband,

while operating one of the Defendant’s overhead gantry milling machines (“milling machine”), left
his operator’s booth and subsequently became entangled in its vertical cutting tool which ultimately
caused him to incur fatal wounds to his head and shoulder. This lawsuit followed on March 1, 2010.
Thereafter,
the Plaintiff filed a motion which was designed to exclude the testimony of the Defendant’s expert

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During the course of this order, the Court has interchanged the name of the Plaintiff’s
deceased husband (Jay Curtis Paul) and “the Deceased” only for the purpose of writing style.
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witness, Jack Auflick. The Defendant filed a “counter” motion in an effort to strike the Plaintiff’s
rebuttal expert, Douglas Nix. Both motions were referred to a magistrate judge for her written
evaluation of the merits, if any, of the parties’ specific requests.
On August 24, 2012, the magistrate judge submitted a report, in which she recommended that
the Court (1) deny the Plaintiff’s application for relief, and (2) grant the Defendant’s motion to strike
the testimony of expert witness, Lance Nix. Objections by the Plaintiff followed.
I.
The subject of this litigation is a large, complex milling machine with computerized
numeric controls that is designed to cut machine metal. The operation of this milling machine is
controlled by personnel who perform their work assignments from a platform. However, these
operators - at various times during their work day - are obliged to leave the platform and perform
assigned tasks on the bed of the milling machine while the tool is in operation, such as removing
metal chips that had been created by the cutting tool.
While preparing its defense to the Plaintiff’s allegations in the complaint, the Defendant
hired Jack Auflick to perform a human reliability analysis in effort to determine the probability
that an accident, such as the one which was experienced by the Deceased, could occur.
Thereafter, Auflick, following his (1) examination of the milling machine and accident work site,
(2) interviews of witnesses, and (3) review of the employer’s common practices, concluded that
the death of Jay Curtis Paul was caused by human error.
In his first expert report, dated September 1, 2011, Auflick utilized a type of human
reliability analysis known as the “Accident Sequence Evaluation Procedure,” in an effort to
calculate the probability of a fatal accident during the use of this milling machine. According to

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Auflick, he initially determined that the ratio of fatal injuries to the number of hours of operator
exposure equaled less than one in one hundred million. To complete this probability evaluation,
he determined that this ratio must be multiplied by a human error probability, which he
determined to be 0.03. On the basis of this analysis, Auflick concluded that the milling machine
did not require any additional safeguards.
During a post-evaluation deposition, Auflick opined that the death of Jay Curtis Paul was
not caused by an error in the programming of the milling machine. When questioned about his
selection of 0.03 as the value for the human error probability during his deposition, Auflick
asserted that this numerical figure was a conservative estimate that did not take into account the
experience of the Deceased as an operator of the milling machines.
Approximately, two months after the completion of this deposition, the Defendant filed a
motion for the entry of a summary judgment which included a supplemental report by Auflick
(dated December 1, 2011) wherein he expanded some of the answers that he had given in his
deposition in the following manner: First, instead of using the “Accident Sequence Evaluation
Procedure” to determine the human error probability, Auflick used another method (i.e., the
Human Error Assessment and Reduction Technique) to evaluate Jay Curtis Paul’s level of
experience in operating a milling machine. He explained that this method had been adopted by
him in order to verify that the figure of 0.03 in his original report was a conservative estimate.
Second, Auflick estimated that the likelihood that the accident was caused by a programming
error committed by an operator with the Deceased’s level of experience was less than the chance
of being struck by lightning.
Several weeks later, the Plaintiff filed a motion seeking to exclude Auflick’s more recent

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probability testimony because it had failed to meet the requirements of Federal Rule of Evidence
702, as supplemented by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Shortly thereafter, the Defendant filed a response which included an affidavit by Auflick, who
provided the Court with a more detailed explanation of his calculations, along with the identities
of multiple publications which ostensibly supported his contention that the methodology - now
challenged by the Plaintiff - is commonly accepted in the scientific community.
In June 2012, four months after the submission of Auflick’s affidavit, the Plaintiff
proffered a second supplemental expert disclosure which consisted of a rebuttal report from its
expert witness, Douglas Nix. Soon thereafter, the Defendant filed a motion to strike Nix as an
expert witness. On August 8, 2012, the magistrate judge, to whom these two motions that had
been referred for her evaluation, denied the Plaintiff’s motion which sought to obtain the
exclusion of Auflick’s expert testimony:
Having reviewed and considered all of the briefs and supporting documents submitted
in this matter, and having further considered the oral arguments of counsel, the Court
finds that the methodologies relied upon by Dr. Auflick in his expert and
supplemental expert reports are relevant and reliable. The Court is not persuaded that
Dr. Auflick’s theories amount to junk science or that Dr. Auflick’s testimony should
be excluded from trial.
The magistrate judge also granted the Defendant’s motion to strike Douglas Nix as an expert
witness because, in her opinion, the submission of his name was untimely, holding that (1) the
Plaintiff had not proffered a good cause for failing to satisfy the filing deadline, as established
by Rule 26(a)(2), and (2) the Plaintiff had not proven that she was unable to anticipate the need
for Nix’s rebuttal testimony pursuant to E.D. LR 16.2(b)(8). The magistrate judge explained her
reasoning as follows:
Federal Rule of Civil Procedure 26(a)(2)(D)(ii) requires that evidence “intended
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solely to contradict or rebut evidence on the same subject matter identified by
another party under Rule 26(a)(2)(B) or (C))” must be disclosed within 30 days
after the other party’s disclosure. Fed. R. Civ. P. 26(a)(2)(D)(ii). Defendant’s
expert disclosures were due September 2, 2011 and neither party has indicated that
Defendant’s disclosures were delayed. Additionally, Eastern District of Michigan
Local Rule 16.2(b)(8) states that “[o]nly listed witnesses will be permitted to
testify at trial, except for rebuttal witnesses whose testimony could not be
reasonably anticipated before trial, or except for good cause shown.” The Court
finds that Plaintiff has failed to show good cause or demonstrate that she could not
anticipate the need for expert testimony to rebut the testimony of Dr. Auflick.
Although the Plaintiff expressed her objections to these rulings, the Court notes that the
standard of review regarding the decisions of a magistrate judge on non-dispositive motions is
one of clear error. With recognition that a motion to exclude expert testimony is a non-dispositive
motion, 28 U.S.C. § 636(b)(1)(A); E.D. Mich. LR 7.1(e), a district court may reconsider a
magistrate’s non-dispositive order only if it is shown to be clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). A “decision is clearly erroneous if although there
is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Laethem Equipment Co. v. Deere & Co., 261
F.R.D. 127, 135 (E.D. Mich. 2009) (internal quotation marks omitted) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, the Plaintiff’s objection will be
overruled.
III.
The Court will now address the Plaintiff’s motion to strike Auflick’s probability
testimony, wherein she, in her original motion, asked the Court to exclude his supplemental
report, affidavit, and that portion of his original report wherein he concluded that the likelihood of
this accident occurring was less than one in one hundred million because they were tendered in
violation of Fed. R. Evid. 702 and the Rule 26 disclosure schedule.
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The Plaintiff’s first objection relates to the magistrate judge’s determination that Auflick’s
probability opinions had met the minimum standards of admissibility established by Fed. R. Evid.
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, it is
her contention that “Auflick’s ‘probability’ testimony is mathematical mumbo-jumbo, using
undisclosed, unverified data, employing unsuitable methods, and based on unwarranted and
arbitrary assumptions. It is exactly the type of baseless, misleading expert testimony that Daubert
demands be excluded from trial.” The Defendant disagrees, contending that (1) Auflick’s
probability analysis is generally accepted in the scientific community and (2) cross-examination –
rather than exclusion – is the appropriate means of addressing the Plaintiff’s disagreements with
Auflick’s opinions.
The admissibility of expert testimony is governed by the Federal Rules of Evidence,
which provide 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 skill,
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.
The Supreme Court elaborated upon the requirements of this Rule in Daubert in the
following manner. “[U]nder the Rules the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. The Daubert Court
listed four factors that courts may consider: whether the challenged theory or technique (1) can be
and has been tested, (2) has been subjected to peer review or publication, (3) is subject to a
known or potential error rate, and (4) is generally accepted by the scientific community. Id. at
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593-94. “Widespread acceptance can be an important factor in ruling particular evidence
admissible,” id. at 594, but “[g]eneral acceptance is not a necessary precondition to the
admissibility of scientific evidence,” id. at 597 (internal quotation marks omitted). The Supreme
Court emphasized that the required inquiry is flexible and courts may consider other factors as
well. Id. at 594. “Thus, under Fed.R.Evid. 702's codification of Daubert, the general rule of
liberal admission of proper evidence is retained.” United States v. Nacchio, 555 F.3d 1234, 1280
(10th Cir. 2009).
A review of the official record supports the Defendant’s position when it argued that the
magistrate judge did not commit clear error when she determined that the human reliability
analysis in general is a reliable and relevant scientific methodology. To support the adoption of
Auflick’s report, the Defendant has proffered a series of publications, all of which facially
validated the utilization of human reliability analysis. See, e.g., Def. Resp., ECF No. 41, Ex. 28 at
218 (“The study of human reliability has been extensively studied in different fields.” (citations
omitted)); id., ECF No. 41, Ex. 10 at 392 (determining that human error assessment and reduction
technique is useful “in determining how to cost-effectively reduce human-error factor); id. Ex.
ECF No. 41, Ex. 29 at 30-31 (applying human reliability analysis to marine oil and gas industry).
Although the Plaintiff submitted a counter article, Pl. Mot., ECF No. 34, Ex. 5, which cast doubt
on the validity of the human reliability analysis, the magistrate judge, after reviewing this
publication, concluded that it provided her with an insufficient basis upon which to exclude the
challenged testimony. Notwithstanding, the Plaintiff asserts that the human reliability analysis
methods are best used for complex mechanical systems, as opposed to an analysis of a single
machine. However, it should be noted that the Plaintiff has not produced evidence which

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indicates that these now-challenged techniques must be used exclusively with complex
mechanical systems. On the other hand, the Defendant has supplied at least one publication which
indicates that the human reliability analysis methods may be applied to a single activity. Def.
Resp., ECF No. 41, Ex. 32 at 32 (“[m]anagers can use the human reliability analysis methods] to
study small-scale as well as large-scale enterprises. For example, a
[human reliability analysis method] can be performed on a single activity, such as a loading
procedure.”).
Similarly, the Plaintiff has not produced any reliable evidence upon which this Court can,
or should, conclude that the magistrate judge committed clear error when she determined that the
Accident Sequence Evaluation Procedure and the Human Error Assessment and Reduction
Technique, in particular, are valid methodologies. The Plaintiff claims that the application of the
Accident Sequence Evaluation Procedure is (1) limited to complex industries and (2) grossly
unreliable. Pl. Objection 6-9, ECF No. 97. Defendant, however, indicated that Auflick’s work in
the nuclear industry applied the Accident Sequence Evaluation Procedure specifically to the
analysis of milling machines. Defendant also noted that the Accident Sequence Evaluation
Procedure, as a rule, tends to produce conservative estimates and that Auflick adopted
conservative assumptions; therefore, any uncertainty will weigh in Plaintiff’s favor. It also
appears well-documented that Human Error Assessment and Reduction Technique may be
applied across multiple fields. See, e.g., Def. Resp., ECF No. 41, Ex. 27 at 91 (Human Error
Assessment and Reduction Technique was “designed for application across a range of domains,
although . . . it’s [sic] developer . . . was working almost exclusively in the nuclear industry at the
time. The date on which [it] was based did not rely exclusively on human performance data

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within the nuclear domain . . . .”) (internal citation omitted); id., ECF No. 41, Ex. 34 (applying
Human Error Assessment and Reduction Technique to fatigue risk assessments of aircraft
maintenance tasks); id., ECF No. 41, Ex. 29 (applying Human Error Assessment and Reduction
Technique in the context of railroad yard issues).
On the other hand, the Human Error Assessment and Reduction Technique, as a
methodology, has its limitations. See, e.g., id., ECF No. 41, Ex. 32 at 36 (“[v]arious aspects of
Human Error Assessment and Reduction Technique are highly subjective, with the results being
very sensitive to the analyst’s assumptions. The same problem, using identical data and models,
may generate widely varying answers when analyzed by different experts, or by the same expert
at different times.”). However, these limitations are insufficient bases upon which to establish that
the admission of Auflick’s testimony was clear error. Cf. id. (“Despite these limitations, [the
application of Human Error Assessment and Reduction Technique] is an extremely valuable tool
for identifying and evaluating ways to reduce human errors.”). If she desires, the Plaintiff may
contest at trial the assumptions used by Auflick in his calculations. See Daubert, 509 U.S. at 596
(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.”).
In addition to contesting the relevance of Auflick’s methodologies in general, the Plaintiff
objects to the admission of Auflick’s specific calculation that the likelihood of this accident
occurring is less than one in one hundred million, claiming that the equation is nonsensical. The
Court does not agree, in that the Defendant has explained the reasoning behind his calculation in
the report, in its brief, and during Auflick’s deposition. The figure constitutes a ratio of the

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number of fatal injuries on an overhead gantry milling machine divided by the total number of
hours of operator exposure. Thus, the Court concludes that (1) the decision by the magistrate
judge to admit this testimony was not clear error, and (2) the Plaintiff will be entitled to express
her objections to specific assumptions used in the calculations by the Defendant during the trial.
The Plaintiff’s second objection relates to Auflick’s supplemental report and affidavit
which, in her opinion, were not timely filed. (“Auflick’s December supplemental report and
February affidavit are improper revisions and expansions of his original expert report, filed
outside the time limit for Defendant’s expert disclosures, and not included in any 26(a)(2)(B)
supplemental disclosures.”) The magistrate judge’s order did not address the issue of timeliness.
For the reasons stated below, the Court holds that the issue of the timeliness of Auflick’s
supplemental report has been waived.
Significantly, the Plaintiff’s original motion to exclude Auflick’s testimony only
challenged the substance of the report - but not its timing. Although the Plaintiff received the
supplemental report several months prior to filing her motion, she failed to raise the issue of
timeliness until her reply brief. A reply is not the proper place to raise an argument for the first
time. See, e.g., Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (issues raised for
first time in reply brief are waived); Martinez v. Comm’r of Social Sec., No. 09-13700, 2011 WL
1233479, at *2 n.1 (E.D. Mich. Mar. 30, 2011) (“[T]he new arguments that [the plaintiff] raised
for the first time in the reply brief were correctly disregarded by the magistrate judge.”).
Inasmuch as the timing of Auflick’s December 2011 report was first raised in the reply brief, the
Court will consider it to have been waived.
Auflick’s affidavit, on the other hand, was first proffered in the Defendant’s response to

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the Plaintiff’s motion. Therefore, the Plaintiff’s reply brief was the first opportunity to contest its
timing. Hence, the issue regarding its admissibility is properly before the Court. However, the
Defendant contends that the affidavit is not a Rule 26 disclosure at all, but rather a “clarification
of Plaintiff’s misstatements about his analysis” that “set[s] forth his analysis and provid[es] a
number of authoritative articles supporting the use of the methods utilized by Auflick.”
The Court agrees that the inclusion of these articles which facially support the validity of
Auflick’s methodology does not convert his affidavit into an untimely Rule 26 disclosure. Those
sources were not offered to support the substance of Auflick’s opinion that the probability of the
fatal accident is exceedingly small. Cf. Fed. R. Civ. P. 26(a)(2)(B) (requiring submission of facts,
data, and exhibits supporting opinions to which witness will testify). Rather, they support the
proposition that the methodology used to reach Auflick’s conclusion is generally accepted by the
scientific community. The Plaintiff does not cite any legal authority for her assertion that Rule 26
requires the submission of such articles prior to a Daubert challenge.
On the other hand, the calculations contained within Paragraph 16 of the affidavit, which
determined that “the likelihood of a human error resulting in death in the use of the [milling
machine],” implicate the substance of Auflick’s opinion. The Plaintiff argues that “[Auflick’s]
opinions and the bases for them have changed,” and therefore “[his] affidavit is in effect a new,
out of time Rule 26 disclosure, presenting new opinions and new bases for the opinions.” The
Defendant adopts a differing point of view by asserting that the affidavit “is not a supplemental
report but an explanation of the methodology relied upon in reaching Auflick’s opinions.” The
Court agrees with the Plaintiff and will strike Paragraph 16 from the affidavit.
Fed. R. Civ. P. 26(a)(2)(B) requires an expert to include in his initial report not only a

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statement of the witness’ opinions but also “the basis and reasons for them” and “the facts or data
considered by the witness in forming them.” In this case, the basis for Auflick’s opinion regarding
the probability of this accident consists of the assumptions and calculations within his original
report.2 Paragraph 16 of Auflick’s affidavit, however, describes a mathematical process that bears
no resemblance to anything included in his original report. Not only does the affidavit use error
probabilities derived from the Human Error Assessment and Reduction Technique as opposed to
the Accident Sequence Evaluation Procedure, but the initial probability calculation is also
different.3 Therefore, the Court fails to understand to what extent, if any, the affidavit serves as an
explanation of the methodology applied by Auflick in his original report. For the purpose of
clarity, and because his affidavit appears to explain a process other than that which was submitted
by Auflick in his original report, the Court will strike Paragraph 16 of the affidavit from further
consideration.
B.
The Court will now address the Plaintiff’s objections to the magistrate judge’s decision to

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The Defendant has repeatedly stated that the content of Auflick’s supplemental report is
not necessary to support his original opinion. The supplemental report was submitted to (1)
demonstrate that the probability determination within the original submission is more
conservative than the actual probability and (2) address the Plaintiff’s questions regarding the
possibility of programming error.
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For example, the Court notes that the original probability calculation takes into account
that “the operator has to be on the bed near the cutting head 5% of the time to perform required
tasks (i.e. once per hour for three minutes).” This factor was omitted in the affidavit’s
calculations. In addition, assumptions regarding the number and age of machines, the number
and length of shifts, and the utilization rate have all been changed in the affidavit. The original
report expressly limited its discussion of probability to two specific errors; namely, “the failure
to recognize the open and obvious hazard” and “the voluntary and intentional placing of the
operator at the point of operation.” The affidavit does not appear to limit itself to a discussion of
any particular errors.
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grant the Defendant’s motion to strike Douglas Nix as an expert witness in this case. In support
of its argument, the Plaintiff maintains that the failure of the magistrate judge to find a good cause
for the late filing is a faulty conclusion, because she had no notice that a rebuttal expert would be
necessary until Defendant submitted Auflick’s supplemental report in December 2011.
Additionally, the Plaintiff argues that the thirty day limit imposed by Fed. R. Civ. P.
26(a)(2)(D)(ii)4 has not yet begun to run because the Defendant never submitted the December
and February reports as Rule 26(a) disclosures. These arguments lack merit, and the Court will
adopt the report by the magistrate judge over the Plaintiff’s objections.
The magistrate judge correctly concluded that Auflick’s original report provided sufficient
notice to the Plaintiff regarding the need for a rebuttal expert witness. There is nothing in the
record which suggests that the Plaintiff’s decision to enlist the aid of Nix was triggered by the
Defendant’s filing of Auflick’s supplemental report. Rather the decision appears to have been
motivated by a disagreement with Auflick’s original calculation that the probability of the
accident was less than one in one hundred million.
Throughout his report, Nix disputes Auflick’s findings, as well as the methodologies that
were used by him, in both his original report and supplemental reports. For example, in his
summary, Nix applied each of his conclusions regarding the errors in Auflick’s methodology
equally to both reports. Inasmuch as there was no distinction made between the methodologies in
the two reports, the Plaintiff’s contention that she realized the need for a rebuttal expert only after

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Fed. R. Civ. P. 26(a)(2)(D)(ii) states that without a court order, expert disclosures must
be made “if the evidence is intended solely to contradict or rebut evidence on the same subject
matter identified by another party under Rule 26(a)(2)(B) or (c), within 30 days after the other
party’s disclosure.”
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receiving the second report is not convincing. There is other evidence which supports the
Defendant’s argument that Auflick’s original report provided the Plaintiff with sufficient notice.
First, the report from Nix specifically refutes the probability calculation in Auflick’s original
report. But perhaps most telling was the statement made by Plaintiff’s counsel at the motions
hearing, insisting that “I want Mr. Nix to come up after Dr. Auflick testifies and give [sic] his one
in a hundred million number to say, well, that guy is doing it wrong, ladies and gentlemen of the
jury, and here’s why I think that.” Mot. Hr’g Tr. 43, Aug. 8, 2012, ECF No. 99. As the
supplemental report does not purport to modify the final probability of one in one hundred million
estimate, any deficiency in this calculation that the Plaintiff wishes to challenge would have been
apparent from the original report. Thus, it was not clear error for the magistrate judge to have
concluded that the original report provided the Plaintiff with sufficient notice regarding the need
for a rebuttal witness.
Finally, the Plaintiff has not presented the Court with any legal authority to support her
argument that Rule 26 disclosures must be expressly labeled as such. Therefore, her argument that
the thirty day limit imposed by Fed. R. Civ. P. 26(a)(2)(D)(ii) has not begun to run is without
merit.
IV.
For the reasons that have been outlined above, the Court will (1) grant in part and deny in
part the Plaintiff’s motion to exclude the probability testimony of expert witness Jack Auflick
(ECF No. 34) and (2) grant the Defendant’s motion to strike the testimony of expert witness
Lance Nix (ECF No. 83).

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IT IS SO ORDERED.

Date: December 20, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on December 20, 2012.
s/ Kay Doaks
Case Manager

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