Valente et al v. Oak Leaf Outdoors, Inc. et al

Filing 27

OPINION & ORDER denying deft's 19 Motion to exclude pltf's expert, Norman Johanson. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PATRICK VALENTE and
LAURA VALENTE,

Case No. 14-12892

Plaintiff,

Honorable Nancy G. Edmunds

v.
OAK LEAF OUTDOORS, INC.,
Defendant.
/
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE
PLAINTIFFS' EXPERT, NORMAN JOHANSON [19]
This products liability case comes before the Court on Defendant Oak Leaf Outdoors,
Inc.'s motion to exclude Plaintiffs' expert, Norman Johanson (ECF No. 19.) Plaintiffs Patrick
and Laura Valente ("Plaintiffs") commenced this action alleging that Plaintiff Patrick Valente
("Plaintiff") was injured when using a product designed, manufactured, distributed and/or
sold by Defendant Oak Leaf Outdoors, Inc. (Am. Compl. ¶ 6.) The Court heard argument
on both this matter and Defendant's motion for summary judgment on July 8, 2015.
Plaintiffs’ Complaint alleges “negligence in the design and sale” of the Lone Wolf
Climbing Stick. Defendant claims that Plaintiffs’ expert, a mechanical engineer, Norman
Johanson, must be excluded pursuant to Federal Rule of Evidence 702 as not qualified to
testify regarding climbing sticks and Johanson’s testimony must be excluded because his
opinions are unreliable and irrelevant under the standards set forth by the Supreme Court
in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny.
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I.

Facts
Plaintiff, Patrick Valente, used a Lone Wolf Climbing Stick while hunting. (Defs.’ Mot.

Exclude at 10.) “A climbing stick is a product that hunters use to ascend/descend trees to
reach their hunting treestand so that they may hunt from an elevated position.” (Id.) The
Climbing Stick consists of “a three foot long tubular metal upright member with three
equally spaced articulated handgrips/steps.” (Id.)
On the day of the accident, Valente installed the climbing stick on a tree. He then
used the device to move up and down the tree as he prepared a hunting treestand. (Defs.’
Mot. Exclude at 10.) On his last descent, after partially descending the climbing stick,
Valente became separated from the climbing stick. His left hand ring finger caught on the
climbing stick steps and resulted in the dismemberment of Valente’s left hand ring finger.
(Id.)
Plaintiffs retained Johanson, a mechanical engineer, with experience in product
design, manufacturing, and product safety to testify as an expert witness on their behalf.
(Pl’s Resp. at 5.) Plaintiffs seek admission of Johanson’s testimony to explain to the jurors
how the climbing stick’s design caused the injury and how a safer design could have been
implemented. (Id.)
II.

Analysis: Admissibility of Expert Testimony
A. Standard of Review
“Rule 702 of the Federal Rules of Evidence provides the touchstone for expert

testimony.” United States v. Cunningham, 679 F.3d 355, 378 (6th Cir. 2012). Courts
considering expert testimony examine admissibility within the context of Federal Rule of

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Evidence 702.
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 the case.
Fed. R. Evid. 702. This rule amended in 2000 reflects the Supreme Court’s decision in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the many
subsequent cases applying Daubert, including Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999).
Under Rule 702, “expert witnesses must be qualified to testify to a matter relevant to
the case, and a proffering party can qualify their expert with reference to his ‘knowledge,
skill, experience, training or education.’” Surles ex rel. Johnson v. Greyhound Lines, Inc.,
474 F.3d 288, 293 (6th Cir. 2007) (quoting Fed. R. Evid. 702).
“Qualifying an expert by knowledge, skill, experience, training or education
is only the first hurdle to clear under Rule 702. An expert’s proposed
testimony must meet two additional requirements to be admissible: it must
be (1) relevant, meaning that the testimony will help the trier of fact to
understand the evidence or to determine a fact in issue, and (2) reliable.”

Cunningham, 679 F.3d at 379-380 (internal quotations omitted). “In Daubert, the United
States Supreme Court held that Rule 702 requires district courts to ensure that expert
testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’” Meemic
Ins. Co., v. Hewlett-Packard Co., 717 F. Supp. 2d 752, 761 (E.D. Mich. 2010)(Edmunds,
J.)(quoting Daubert, 509 U.S. at 597). Thus the court must evaluate not only the expert’s
qualifications but must additionally determine that the expert’s testimony meets the two

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Daubert requirements: (1) relevance and (2) reliability.
“In making these dual determinations, the district court acts in the role of ‘gatekeeper’
and must 'evaluat[e] the relevance and reliability of proffered expert testimony with
heightened care.'” Cunningham, 679 F.3d at 380 (citing Surles, 474 F.3d at 295). “In
Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to
exclude unreliable expert testimony, and the Court in Kumho clarified that this gatekeeper
function applies to all expert testimony, not just testimony based in science.” Advis. Comm.
Notes to Fed. R. Evid. 702. “As ‘gatekeeper,’ the trial judge is imbued with discretion in
determining whether or not a proposed expert’s testimony is admissible, based on whether
it is both relevant and reliable.” Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426,
429 (6th Cir. 2007). Thus, Rule 702 “imposes a ‘gatekeeping’ duty on district courts [to]
exclude unreliable and irrelevant evidence.” Meemic Ins., 717 F. Supp. 2d at 761; see e.g.,
Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). “Courts take
a flexible approach to deciding Rule 702 motions and have broad discretion in determining
whether to admit or exclude expert testimony.” United States v. H&R Block, Inc., 831 F.
Supp. 2d 27, 30 (D.D.C. 2011)(quotations omitted); see also Kumho Tire Co., 526 U.S. at
152-53 (noting that the trial judge has "broad latitude" in determining whether an expert’s
testimony is reliable).
B. Plaintiffs' Expert Norman Johanson
Defendant has moved to exclude the expert testimony of Mr. Norman Johanson,
Plaintiffs’ expert witness. Defendant argues Johanson is (1) not qualified to provide expert
testimony in this case because he lacks the background, experience, and training
necessary to render opinions concerning climbing sticks and (2) because Johanson’s
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opinions fail the two requirements of the Daubert case, that the testimony be reliable and
relevant. (Defs.’ Mot. Exclude at 9.)
As discussed in more detail below, Johanson meets the necessary qualification to be
considered an expert. Additionally, Johanson’s testimony meets the criteria for admissibility
under the Daubert standard of both relevance and reliability. While Johanson’s testimony
is limited in its quality, “[v]igorous 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.” Daubert, 509 U.S. at 596.
1. Johanson’s Qualifications are Sufficient
Defendant argues that Johanson has insufficient expertise on, “background about or
experience with climbing sticks used by a hunter to ascend a tree.” (Defs.’ Mot. Exclude
at 14.) “Although this requirement has always been treated liberally, as the Sixth
Circuit...observed in Pride v. BIC Corporation, 218 F.3d 566 (6th Cir. 2000), that liberal
interpretation of this requirement does not mean that a witness is an expert simply because
he claims to be.” Berry v. Crown Equip. Corp., 108 F. Supp. 2d 743, 749 (E.D. Mich.
2000)(internal quotations omitted). Defendant thus claims Johanson lacks the necessary
“knowledge, skill, experience, training, or education” to qualify as an expert of climbing
sticks as required in Fed. R. Evid. 702.
Defendant is incorrect in asserting Johanson must have experience with climbing
sticks specifically in order to qualify as an expert. “When making a preliminary finding
regarding an expert’s qualifications...the court is to examine not the qualifications of a
witness in the abstract, but whether those qualifications provide a foundation for a witness
to answer a specific question.” Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 303
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(6th Cir. 1997)(abrogated on other grounds by Morales v. American Honda Motor Co., Inc.,
151 F.3d 500 (6th Cir. 1998))(internal quotations deleted).
Defendant does not dispute Johanson is qualified to testify regarding ladders, hunting
equipment and product safety as he has done in the past. His professional experience
includes more than thirty-five years of work in manufacturing and product design and
seventeen years investigating product safety issues. (Pl’s Resp. at 8, Ex. B, Johanson
Resume.) Johanson has testified as an expert regarding hunting equipment in deposition
six times and evaluated ladder designs as an expert from a safety standpoint at least
twelve times. (Id. at 5.)
Johanson’s lack of expertise in the specialized area of climbing sticks does not limit
the admissibility of his testimony. See Surles, 474 F.3d at 294 (upholding district court's
determination that although the expert’s experience was not specific to a particular industry,
his background and experience would help the jury make sense of the evidence. “It is of
little consequence to questions of admissibility that [the expert] lacked expertise in the very
specialized area of commercial bus line threat assessment”); see also First Tenn. Bank
Nat’l Ass’n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001) (noting the expert’s unfamiliarity
with some specific aspects of the subject at hand “merely affected the weight and credibility
of [the] testimony, not its admissibility”); Smith v. BMW N. Am., Inc., 308 F.3d 913, 919
(8th Cir. 2002) (overturning the district court for excluding testimony of an expert witness
qualified in a general field merely because that witness lacked expertise more specialized
and more directly related to the issue at hand). Effective cross-examination will provide
ample opportunity for Defendant to clarify that Johanson’s testimony is not based on his
experience with climbing sticks specifically but only on his other qualifying expertise.
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Defendant argues that Johanson’s expert testimony regarding tree stands was
excluded by another court in a different case.1 The previous exclusion, however, did not
relate to Johanson’s qualifications as an expert, but rather to the specific testimony he
offered in a particular case. (Defs.’ Mot. Exclude at 12-13; Reply at 2.) That court’s
exclusion of Johanson’s testimony was based on the particular facts of an unrelated
complaint and is not relevant to this Court’s analysis of Johanson’s qualification.2
Thus despite Johanson’s limited knowledge of climbing sticks, his education in
mechanical engineering, his extended experience with manufacturing, product design, and
product safety, and his previous experience offering expert testimony related to hunting
equipment and ladders are collectively sufficient qualifications. Johanson is fit to offer
expert testimony regarding the climbing stick.
2. Johanson’s Opinions are Reliable and Admissible
“Once the proposed expert has crossed the foundational threshold of establishing his
personal background qualifications as an expert, he must then provide further foundational
testimony as to the validity and reliability of his theories.” Berry, 108 F. Supp. 2d at 749

1

Defendant argues that Plaintiffs' expert has been stricken as an expert in one
case based on his testing methods being invalid and unreliable in that case. (Def.'s Mot.
To Exclude 11-12.) Defendant argues that this is contrary to Johanson's sworn
testimony in the current case, when he was asked questions about whether he was ever
disqualified, whether his testimony was ever excluded or whether he was ever "unable
to testify, stricken." (Johanson Dep. 140-41.) In the context of the exchange at the
deposition, it is not clear that Johanson was untruthful in his testimony and the Court will
not use this as a basis to strike the expert.
2

Yeargain v. Summit Tree Stands, LLC, 09-cv-00170 (E.D. Mo. 2012). The
Missouri district court held the testing Johanson performed to support his expert
testimony of a design defect in a treestand failed to follow the specifications of the
subject tree stand. Due to this failure to follow the treestand’s specifications, Johanson’s
testimony was ruled unreliable and likely to confuse a jury.
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(emphasis added). The standard of evidentiary reliability "requires a valid connection to
the pertinent inquiry" of the expert’s testimony. Daubert, 509 U.S. at 590 and 592.
“[W]here such testimony’s factual basis, data, principles, methods, or their application are
called sufficiently into question...the trial judge must determine whether the testimony has
a reliable basis in the knowledge and experience of [the relevant] discipline.” Kumho Tire
Co., 526 U.S. at 149 (internal quotations omitted). Here, Defendant calls into question the
validity of Johanson’s opinions and thus the Court, as gatekeeper, must review the
reliability of Johanson’s testimony to the court.
The Court, applying Daubert, is to consider the basis of an expert’s opinion by
evaluating (1) whether the "technique or theory can be or has been tested"; (2) whether it
has been subjected to peer review and publication; (3) its known or potential error rate; (4)
"the existence and maintenance of standards and controls"; and (5) "whether the technique
or theory has been generally accepted in the scientific community." Advis. Comm. Notes
to Fed. R. Evid. 702. These criteria, originally created for evaluating scientific expert
testimony are neither exclusive nor dispositive and should be reasonably modified to apply
to other expert testimony and the particular facts of a particular case. Kumho Tire Co. , 526
U.S. at 141-42, 150-51.
In Bielskis v. Louisville Ladder, Inc., 663 F.3d 887 (7th Cir. 2011), a worker fell from
a scaffold injuring himself. He sought to recover damages from the scaffold manufacturer
for his injuries on the basis of a design defect in the scaffold. The district court excluded
the worker’s expert’s testimony as unreliable and the circuit court upheld this decision. The
circuit court held the district court was within its discretion to conclude the expert’s
testimony was unreliable, not simply shaky. See Bielskis, 663 F.3d at 894. The expert
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relied on “basic engineering intelligence” and “solid engineering principles that any other
engineer would use” as the basis for his testimony. See id. He did not however perform
testing to support his conclusions. After examining the broken scaffold the expert formed
his conclusions but did not take any measurements or quantify the tensile strength or yield
of strength of the broken caster stem of the scaffold. Additionally the expert submitted
nothing demonstrating any consensus in the engineering community for his conclusions.
See id. at 895. “Nor is it possible to assess the known or potential rate of error behind [the
expert’s] methodology because he used no particular methodology to reach his
conclusions.” Id. The Bielskis expert proposed an alternative design that was similarly
untested. The suggested design was also unused in the marketplace. Nor did his
suggestions meet with any recommendations or requirements for any industry-wide
standards for climbing equipment.
Conversely, the Sixth Circuit has under similar circumstances to those in Bielskis
overturned a district court’s decision holding an expert’s testimony unreliable. In Palatka
v. Savage Arms, Inc., 535 F. App’x. 448 (6th Cir. 2013), the plaintiff sued a firearms
manufacturer for a flaw in the muzzleloading rifle design which allowed the rifle to explode
in the plaintiff’s hand severing two fingers. The plaintiff sought to recover damages from
the firearms manufacturer for his injuries on the basis of design and manufacturing defects
in the rifle. The district court excluded the expert testimony of two plaintiff experts,
including a mechanical engineer, for being irrelevant and unreliable.
The circuit court overturned the district court decision to exclude both experts. One
expert, a professor of mechanical engineering at Michigan State University offered his
opinion that the design of the firearm was defective because a hole located at the top9

center of the barrel "unnecessarily increase[d] the stress on the barrel during firing, leading
to failure." Id. at 454. The expert “opined that the dangers associated with the gun could
be reduced, and the gun made safer, by eliminating the unthreaded depth of the hole.” Id.
Despite the fact that the expert relied only on his engineering intelligence and engineering
principles for his testimony, and performed no independent testing of the rifle to support his
conclusions, the Sixth Circuit Court held the testimony to be admissible. The court stated
“his skill, education, and training in mechanical engineering render him competent to offer
opinions on a variety of mechanical topics, and we will not require [the expert] to have a
specialized knowledge of firearms to offer opinions here.” Id. at 455. The circuit court
determined the expert’s opinion would aid the jury in determining if there was a design
defect.
Further the circuit court determined the expert’s failure to test his proposed alternative
design and the lack of knowledge concerning the amount of pressure generated in the
barrel during firing were not sufficient reason to exclude his testimony. These insufficiencies
in the expert’s testimony do not weigh on the testimony’s admissibility. Id. at 455. “His
opinion bears none of the ‘red flag’ that we have held may justify exclusion, such as:
“reliance on anecdotal evidence, improper extrapolation, failure to consider other possible
causes, lack of testing, and subjectivity.” Id. at 456 (citing Newell Rubbermaid, Inc. v.
Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012)). The Sixth Circuit Court held the
expert’s testimony admissible and relied on cross-examination to highlight the testimony’s
shortcomings and allow the jury to determine the weight the testimony should be given. Id.

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at 456.3
Here, Johanson’s testimony is similar to the expert’s testimony in Palatka. Johanson,
a mechanical engineer, reviewed deposition testimony from the Plaintiff, emergency first
responders and from Defendant’s president. (Pl’s Resp. at 5.)

Additionally, Johanson

examined exhibits produced by Plaintiff and Defendant including photographs of the
product, reviewed incident reports from the Consumer Product Safety Commission
regarding other tree stands, applied standards promulgated by ANSI, partially modified a
climbing stick for comparison purposes and generated an expert opinion report. (Pl’s Resp.
at 6, Ex. F; Def.'s Reply at 3.) Finally Johanson performed a series of unscientific tests4
on a single section of the climbing stick in order to form his opinion about the product’s
safety when used in a real life hunting setting.
Like Palatka, much of Johanson’s expert opinions are based on his mechanical
engineering intelligence and general engineering principles rather then specific scientific
testing.

Johanson, using his general knowledge in product safety and mechanical

engineering, is critical of the tread and shape of the climbing stick steps. Johanson even
partially modified an example climbing stick to demonstrate his suggested changes. His

3

Defendant cites Cook v. American S.S. Co., 53 F.3d 733 (6th Cir. 1995)
(abrogation recognized by Morales v. American Honda Motor Co., Inc., 151 F.3d 500
(6th Cir. 1998) (rejecting an expert’s opinion based solely upon visual examination of a
cord that failed thus causing the plaintiff’s injury); Pomella v. Regency Coach Lines,
Ltd., 899 F. Supp. 335 (E.D. Mich 1995)(rejecting the “eyeballing” approach of a
passenger’s expert testimony regarding an automobile accident based on a friction
coefficient that was found in a text book). Each holding was based on particular facts of
the case.
4

A. “I tested very empirically, not scientifically. I can do a scientific test, but I
have not done it at this point.” (Doc.18, at 46.) He also tested his tread and
modifications by trying three different boots on the steps.
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modifications are incomplete but they included adjustments to the treads of the climbing
stick allegedly providing positive gripping.

(Johanson Dep. at 47.)

Other partial

modifications included beveling or slanting the sharp points and edges of the foot grips in
order to minimize the likelihood of jewelry being caught on the pointed end of the step.
(Johanson Dep. at 99-103.) Additionally, Johanson demonstrated such modifications by
making similar partial adjustments to his own exemplar climbing stick. Like Palatka,
Johanson’s suggested modifications are untested (except by himself) and are
recommended based on his knowledge and experience with mechanical engineering,
product design, manufacturing and product safety.
Johanson testified that the deviation of the climbing stick from the American National
Standard Institute A 14.2-1990 for Ladders, Portable Metal, Safety Requirements,
Articulated Ladders caused Plaintiff’s injury. While Defendant argues these standards do
not apply to portable climbing sticks, Johanson provides knowledgeable testimony about
the manner in which the climbing sticks deviate from these standards. (Pl.’s Resp. Ex. C,
Johanson Dep. 100-01, 106-07.) It must be noted, however, that Johanson did not measure
the radius on the existing steps, nor on his alternative design. (Johanson Dep. 103, 107.)
Defendant further claims the opinion testimony offered by Johanson is
unsupported and speculative, ipse dixit.

“[T]he Court should focus on the expert’s

methodology rather than the expert’s conclusions, but the conclusions must be connected
to the existing data by more than the ipse dixit of the expert.” Meemic, 717 F. Supp. 2d at
762. While Johanson, a mechanical engineer, is providing expert testimony regarding the
specific mechanical function of a product, and such technical expert opinion lends itself to
data driven testing and analysis, Johanson’s testimony, like the expert testimony in Palatka,
12

is limited to his opinions and conclusions and offers no scientific data in his assertions. As
the court determined in Palatka, an expert’s testimony based on their expertise and
knowledge is admissible and thus is not just the ipse dixit of the expert. Moreover, “the
case law after Daubert shows that the rejection of expert testimony is the exception rather
than the rule. Daubert did not work a ‘seachange over federal evidence law,’ and ‘the trial
court’s role as gatekeeper is not intended to serve as a replacement for the adversary
system.’” Advis. Comm. Notes to Fed. R. Evid. 702 (citing United States v. 14.38 Acres
of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996)).
Although Johanson’s testimony is largely opinion based, in keeping with Palatka
Johanson’s testimony is reliable and admissible. Johanson's testimony has been
considered in Defendant's accompanying motion for summary judgment. Had Plaintiffs'
design defect claim survived summary judgment, Defendant would have had every
opportunity to demonstrate the weakness of Johanson’s testimony through cross
examination and the jury would have determined its value.

3. Johanson’s testimony is relevant and will assist the trier of fact in
understanding the evidence or determining a material fact in question.
In addition to requiring all expert testimony be reliable, Daubert further requires any
testimony also be relevant. Daubert, 509 U.S. at 579. “Expert testimony is relevant only
when it will assist the trier of fact in understanding the evidence or determining a material
fact in question.” Meemic, 717 F. Supp. 2d at 766 (citing Daubert, 509 U.S. at 592-93).
Johanson’s opinions will aid the jury in determining whether the climbing stick has a
design defect. His ability to speak to the design of the climbing stick from a product safety
13

perspective, the stick’s specifications in comparison to ANSI standards, his proposed
modifications and other models on the market, are all tools the jury may weigh in evaluating
the design. Johanson must limit his opinions to those based on professional experience
since he performed no scientific experimentation.5 Nonetheless Johanson’s opinions,
based on his specialized expert knowledge will be beneficial to the jury in their
determination of liability.
III.

Conclusion
For the above stated reasons, Defendant’s motion to exclude Plaintiffs’ expert is

DENIED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge

Dated: July 23, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record
on July 23, 2015, by electronic and/or ordinary mail.

s/Carol J. Bethel
Case Manager

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Johanson testified he is not going to offer any testimony on whether or not
Plaintiff was hunting safely, he has no criticism about the metal used for the product, he
is not offering any human factors testimony, he has no opinions pertaining to the
warnings in this case, and he is not offering an opinion on manufacturing defects.
(Johanson Dep. 50-52, 105, 126-27)
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