Yeargain v. Summit Tree Stands et al

Filing 49

MEMORANDUM AND ORDER re: MOTION to Exclude filed by Defendant Summit Treestands, LLC motion is GRANTED. IT IS FURTHER ORDERED that, in the interest of justice, plaintiff will be granted ten (10) days in which to request an additional thirty (30) days to remedy the deficiency in Mr. Johansons testimony. Signed by Magistrate Judge Lewis M. Blanton on 10/13/11. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

GALEN YEARGAIN,
Plaintiff,
vs.
SUMMIT TREE STANDS, L.L.C.,
and OUTDOOR HUNTING SUPPLIES,
INC., d/b/a Outdoors Experience,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 1:09CV00170 LMB

MEMORANDUM AND ORDER
Presently pending before the court is Defendant Summit Treestands, LLC’s Motion to Bar
the Testimony and Opinions of Plaintiff’s Expert Norman Johanson. (Doc. No. 29). Plaintiff has filed
a Response. (Doc. No. 41). Defendants have filed a Reply. (Doc. No. 43).
Background
This product liability action arises out of personal injuries sustained by Plaintiff Galen
Yeargain when he fell from a tree during a hunting trip on November 4, 2008. Plaintiff claims that
he fell due to a manufacturing defect in a Summit Titan Treestand (“Titan”) manufactured by
Defendant Summit Treestands, LLC (“Summit”). The Titan consists of a seat frame and foot
platform that each connect to a tree by retention cables with cable stops at each end that are seated
inside cable brackets on either side of the seat frame and foot platform. QuickDraw cable springs
lock each cable into place when the user pulls the cable toward the back of the bracket after threading
the cable and cable stop through keyhole slots in the brackets.
Plaintiff has designated Norman Johanson to serve as an expert witness in this case. Mr.
Johanson prepared a report, in which he concludes that plaintiff’s fall was caused by a manufacturing
defect in the Titan treestand. The main fault Mr. Johanson finds with the Titan treestand at issue is

the improper installation of an incorrect rivet, which, in his opinion, resulted in a bracket failure
causing the safety cable to be released from the tree.
Defendant Summit seeks to exclude from evidence all testimony and opinions of Mr.
Johanson. Defendant first argues that Mr. Johanson’s opinions should be barred because Mr.
Johanson is insufficiently qualified to serve as an expert in this case. Defendant next contends that
Mr. Johanson’s opinions are based upon insufficient facts and data and are not the products of reliable
principles and methods. Finally, defendant argues that Mr. Johanson has not applied principles and
methods reliably to the facts of this case.
Neither party has requested that the court conduct an evidentiary hearing, and the court finds
that a hearing is not necessary in order to rule on defendant’s motion. The facts upon which the court
must make its determination have been adequately presented to the court in the parties’ pleadings and
accompanying exhibits.
Legal Framework
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 which
provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the case.
It has been said that Rule 702 is one of admissibility rather than exclusion. Lauzon v. Senco
Prods., Inc., 270 F.3d 681 (8th Cir. 2001) (citing Arcoren v. United States, 929 F.2d 1235, 1239 (8th
Cir. 1991)).
Additionally, Rule 703 clarifies the permissible bases of opinion testimony by experts.
Rule 703 provides:
2

The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be admitted. Facts or data that are
otherwise inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative value in assisting
the jury to evaluate the expert's opinion substantially outweighs their prejudicial
effect.
Rule 704 clarifies when expert opinion testimony on the ultimate matter at issue is
admissible:
(a) Except as provided in subdivision (b), testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that “[p]roposed testimony
must be supported by appropriate validation - i.e. ‘good grounds,’ based on what is known.” 509
U.S. at 590, 113 S. Ct. at 2795. The court also established that a trial judge is to perform a
“gatekeeping” role to ensure that all scientific testimony or evidence admitted is both reliable and
relevant. See Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1298 (8th Cir. 1997). In Daubert, the
Supreme Court established the following four factors to be considered: (1) whether the reasoning or
methodology can be and has been tested, (2) whether the reasoning or methodology has been
subjected to peer review, (3) whether the reasoning or methodology has a known or potential rate
of error, and (4) whether the reasoning or methodology has been generally accepted by the scientific
community. See id. (citing Daubert, 509 U.S. at 593-594, 113 S.Ct. at 2796-2797). “The Daubert
Court stressed that ‘many factors will bear on the inquiry, and we do not presume to set out a
definitive checklist or test.’” Id. (quoting Daubert, 509 U.S. at 593, 113 S.Ct. at 2796). “It is clear

3

that the Court did not intend for a trial judge to automatically exclude relevant evidence if one of
these conditions was not fully satisfied.” Id.
Daubert further recognized that the standards delineated in its opinion applied only to the
admissibility of the evidence; the weight to be accorded to such testimony was still a matter for the
jury. The Daubert criteria is properly applied “not only to ‘scientific’ knowledge but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). The Supreme Court
held in Daubert that “[t]he focus (of its inquiry into the reliability of expert scientific testimony), of
course, must be solely on principles and methodology, not on the conclusions they generate.”
Daubert, 509 U.S. at 595, 113 S.Ct. at 2797. Rather, “ 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.” Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.
The proponent of expert testimony bears the burden of proving by a preponderance of the
evidence that the testimony is admissible. Daubert, 509 U.S. at 592, 113 S.Ct. at 2796; Lauzon v.
Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). Expert testimony is admissible if it will
assist the trier of fact and if “(1) the testimony is based on sufficient facts or data, (2) the testimony
is the product of reliable principles and methods and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2796-97.

Discussion of Daubert Factors
A.

Qualifications of Mr. Johanson
Defendant first argues that Mr. Johanson is not sufficiently qualified to offer expert testimony

in this case. Defendant states that Mr. Johanson has a background in small household appliances,

4

cookware, ink jet printing equipment, heaters, and semiconductors, but not in treestands or similar
hunting equipment. Defendant points out that Mr. Johanson has never held a professional engineering
license, has never obtained any certifications specific to treestand manufacture or design, has never
bought a treestand or similar product for his own use, has never previously evaluated a cable retention
mechanism such as the one involved in this case, and has never previously encountered a situation
similar to the one involved in this case where a hunter disconnected both his safety harness and
treestand cable while climbing a tree. In addition, defendant argues that Mr. Johanson has never
authored any professional literature that has to do with hunting, hunting equipment, or treestands,
other than reports he has prepared for litigation. Defendant contends that plaintiff cannot rely on Mr.
Johanson’s engineering experience alone as independent verification for the soundness of his theory.

Plaintiff argues that Mr. Johanson’s formal education, training, and experience qualify him to
render an opinion in this case regarding the quality assurance program or protocol of Defendant
Summit and the incorrect installation of a rivet that caused a safety bracket to fail.
A witness may be qualified as an expert by virtue of knowledge, skill, experience, training or
education. See Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990). “The threshold question
of whether a witness is competent as an expert is solely for the trial judge, and, as the text of Rule
702 suggests, the central issue is whether the expert’s testimony will assist the trier of fact.” Id.
“Doubts about whether an expert’s testimony will be useful should generally be resolved in favor of
admissibility.” Id. (quoting Larabee v. MM&L International Corp., 896 F.2d 1112, 1116 (8th Cir.
1990)). A trial court should ordinarily “exclude an expert opinion only if it is so fundamentally
unsupported that it cannot help the factfinder.” Id. (quoting Hurst v. United States, 882 F.2d 566,
570 (8th Cir. 1988)). “Once the trial court has determined that a witness is competent to testify as

5

an expert, challenges to the expert’s skill or knowledge go to the weight to be accorded the expert
testimony rather than to its admissibility.” Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47 F.3d 277,
283 (8th Cir. 1995) (quoting Fox, 906 F.2d at 1256). “The question of the expert’s credibility and
the weight to be accorded to the expert testimony are ultimately for the trier of fact to determine.”
Fox, 906 F.2d at 1256.
The court finds that Mr. Johanson, a mechanical engineer, is qualified to proffer his opinion
as to the quality assurance program or protocol of Defendant Summit and the alleged manufacturing
defect of a rivet. Mr. Johanson’s curriculum vitae (“C.V.”) reveals a lengthy career in the field of
mechanical engineering, particularly in the area of product design and manufacturing. (Doc. No. 411). Mr. Johanson is a certified manufacturing engineer in the field of product engineering for
manufacturing. (Id.). Mr. Johanson is affiliated with numerous professional organizations, including
societies for mechanical engineers, safety engineers, manufacturing engineers, and for those engaged
in materials and metals research. (Id.). Since 1995, Mr. Johanson has worked in the field of litigation
at Robson Forensic, where his work has consisted of product analysis. (Id.).
Defendant takes issue with the fact that Mr. Johanson does not have a background in
treestands or similar hunting equipment, has never obtained any certifications specific to treestand
manufacture or design, has never previously evaluated a cable retention mechanism such as the one
involved in this case, and has never previously encountered a situation similar to the one involved in
this case where a hunter disconnected both his safety harness and treestand cable while climbing a
tree. With regard to certification specific to treestand manufacture or design, Mr. Johanson
acknowledged that he did not have such certification but testified that he was not aware of any such
certification programs. (Doc. No. 41-3 at p. 14). Mr. Johanson stated that, although he had never
previously evaluated a cable retention mechanism such as the one involved in this case, he was not

6

aware of any other manufacturers other than Defendant Summit that used the same type of cable
retention mechanism as the one involved in this case. (Id. at p. 2). Mr. Johanson further testified that
has designed fastening components through his experience designing various products, including small
appliances. (Id. at 29).
While Mr. Johanson does not have prior experience in treestand manufacture or design, Mr.
Johanson testified that, in the course of his employment with Robson Forensic he has performed
“design work in regard to altering the configurations of specific features in treestands.” (Id. at 22).
Mr. Johanson testified that product safety and accident prevention are the basis for the work he has
done in designing and manufacturing products. (Id.). Mr. Johanson indicated that his experience in
product analysis has included analyzing treestand malfunctions and that he handles three to four
treestand cases in an average year. (Id. at 18-22). Mr. Johanson testified that he keeps an ongoing
file regarding Consumer Product Safety Commission documents pertaining to treestand injuries. (Id.
at 5-7). In addition, Mr. Johanson testified that he is a deer hunter who has used deer stands,
including Summit treestands; and that he completed a hunter safety course in Maine fifteen years ago.
(Id. at 7-20).
In sum, Mr. Johanson’s education and extensive experience in product design and
manufacturing qualify him to testify as an expert in the subject areas of the report. Mr. Johanson has
experience designing fastening components and is thus qualified to provide an opinion regarding the
proper design and installation of a rivet. Mr. Johanson is similarly qualified to provide an opinion
regarding the quality assurance program or protocol of Defendant Summit. Any “challenges to [Mr.
Johanson’s] skill or knowledge go to the weight to be accorded the expert testimony rather than to
its admissibility.” Sylla-Sawdon, 47 F.3d at 283.

7

B.

Factual Basis
Defendant argues that, even if Mr. Johanson were sufficiently qualified to offer expert opinion

in this case, the theory he propounds is not based upon sufficient facts or data. Specifically,
defendant contends that Mr. Johanson never spoke with plaintiff, never reviewed plaintiff’s discovery
responses, never read plaintiff’s or any other witnesses’ depositions, and never went to the accident
scene. Defendant argues that Mr. Johanson does not know which side of the Titan’s seat platform
cable plaintiff released and did no testing and has no information regarding how or if plaintiff
connected the Titan’s seat platform cable when moving his seat platform around the tree branch.
Defendant claims that Mr. Johanson also has no information regarding the purported foreseeability
of a situation similar to the one involved in this case or the purported propensity of hunters to move
around branches when using a treestand. Finally, defendant argues that Mr. Johanson lacks sufficient
facts or data to support his criticism of Summit’s quality control plan.
An expert must have a reasonable factual basis for his testimony. See Fed. R. Evid. 702, 703;
Daubert, 509 U.S. at 589, 113 S.Ct. at 2795 . Under Eighth Circuit law, however, “‘[a]s a general
rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the
admissibility, and it is up to the opposing party to examine the factual basis for the opinion in crossexamination.’” Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir.
2005), quoting Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002). The expert’s opinion
thus should be excluded only when it is, “so fundamentally unreliable that it can offer no assistance
to the jury.” Harrington v. Sumbeam Products, Inc., 2009 WL 701994 at * 4 (E.D. Mo. Mar. 13,
2009).
Prior to reaching his conclusions, Mr. Johanson reviewed numerous materials, as stated in his
December 27, 2010 Report. (Doc. No. 41-2 p. 2). These materials include: plaintiff’s Complaint;

8

Defendant Summit’s Answer; photographs of the site and treestand; Summit’s 2008 Instruction
Booklet; the subject Titan treestand; and the Quality Assurance Program or Protocol provided by
Summit that pertained to the design and manufacture of the subject treestand. (Doc. No. 41-2 p. 2;
Doc. No. 41-3 p. 104). These documents provided the basis for Mr. Johanson’s conclusions. For
example, in his report, Mr. Johanson discussed Summit’s Quality Assurance Program and engineering
drawings and noted that no testing or visual examination was done of treestand cable retention
mechanisms. (Doc. No. 41-2 p. 7-8). Mr. Johanson examined the subject treestand, focusing on the
cable retention mechanism, and observed that the cable spring of the seat platform was not securely
riveted to the treestand cable retention bracket. (Id. at p. 8). Mr. Johanson then examined and
measured the cable spring-to-cable retention bracket rivet and the cable retention bracket hole size
and compared the measurements to Summit’s specifications set forth in engineering drawings. (Id.
at 8-10). The court finds that Mr. Johanson cited sufficient facts and data to support his conclusions
regarding the alleged manufacturing defects and deficient quality control procedures.
Defendant argues that, because Mr. Johanson did not speak with plaintiff or review his
deposition, Mr. Johanson does not know how plaintiff connected the treestand seat platform cable
when moving his seat platform around the branch he encountered while climbing, and does not know
which side of the treestand seat platform cable plaintiff removed before he fell. With regard to these
allegations, Mr. Johanson testified in his deposition that he believed he had an understanding of what
happened and that the evidence he reviewed revealed the alleged defect. (Doc. No. 41-3 p. 86). The
arguments raised by plaintiff affect the weight, rather than the admissibility of Mr. Johanson’s
testimony. As such, the court declines to exclude Mr. Johanson’s testimony on this basis.

9

C.

Reliability of Methods and Application of Facts to Case
Defendant next argues that Mr. Johanson’s testimony and opinions are not the product of

reliable principles and methods and are not the result of reliable application to the facts of this case.
Defendant makes the following arguments: (1) although Mr. Johanson found in his report that
plaintiff used the Titan “in the manner intended by Summit,” the undisputed facts of this case reveal
otherwise; (2) Mr. Johanson used information from the Consumer Product Safety Commission
(“CPSC”) and the National Electronic Injury Surveillance System (“NEISS”) to support his opinion
that what plaintiff did was foreseeable by Summit even though Mr. Johanson does not know how or
what information is collected by the CPSC and NEISS or whether the accident reports given to the
CPSC were valid; (3) Mr. Johanson’s opinion that the loose condition of the rivet existed at the time
of manufacture is not reliable; (4) Mr. Johanson failed to account for alternative causes of the
accident; and (5) the limited testing Mr. Johanson did conduct was highly flawed.
Although defendant has set forth many arguments in support of its claim that Mr. Johanson’s
are unreliable and were unreliably applied to the facts of this case, defendant focuses its argument on
its fifth claim. In fact, this is the only claim discussed in defendant’s Reply. (Doc. No. 43). The
undersigned finds that defendant’s first four arguments are more properly directed to the weight to
be accorded Mr. Johanson’s opinions rather than to the question of admissibility. As such, these
arguments will not be discussed, and the court will proceed to defendant’s fifth claim.
As previously stated, defendant argues that the limited testing Mr. Johanson conducted was
highly flawed. Defendant notes that, to demonstrate how the rivet was allegedly improperly driven,
Mr. Johanson drilled holes in a piece of aluminum and drove rivets into the holes using a rivet gun.
Defendant points out that Mr. Johanson did not measure the width of the aluminum to compare it to
the width of a mated QuickDraw cable spring (he believes the width was one-eighth of an inch);

10

drilled holes 0.200" and 0.250" in diameter rather than what he believed to be the hole diameter on
the Titan (0.140"); and drove rivets 0.187" in diameter rather than 0.125" in diameter as on the Titan.
(Doc. No. 29-3 p. 197-203). Defendant alleges that Mr. Johanson was trying to manufacture a result
by conducting tests in which the diameter of the rivets and the diameter of the rivet holes were large
enough to demonstrate what could not be demonstrated using exemplar rivets.
The Eighth Circuit has held as follows with regard to experimental tests in product liability
cases:
The admissibility of evidence of experimental tests rests largely in the discretion of the trial
judge and [its] decision will not be overturned absent a clear showing of an abuse of
discret io n.
A
court
may
properly
admit
experimental evidence if the tests were conducted under conditions substantially similar to
the actual conditions. Admissibility, however, does not depend on perfect identity between
actual and experimental conditions.
McKnight v. Johnson Controls, 36 F.3d 1396, 1401 (8th Cir. 1994) (quoting Champeau v. Fruehauf
Corp., 814 F.2d 1271, 1278 (8th Cir. 1987). Testing, if performed, must be appropriate in the
circumstances and must actually prove what the experts claim it proves. See Presley v. Lakewood
Engineering and Manufac. Co., 553 F.3d 638, 646 (8th Cir. 2009); Fireman’s Fund Ins. Co. v. Canon
U.S.A., Inc., 394 F.3d 1054, 1058-59 (8th Cir. 2005). However, “[w]here the experimental tests do
not purport to recreate the accident, but instead the experiments are used to demonstrate only general
scientific principles, the requirement of substantially similar circumstances no longer applies.”
McKnight, 36 F.3d at 1401.
In this case, the specifications Mr. Johanson used for his testing did not match the
specifications of the components of the subject treestand. Specifically, the piece of aluminum Mr.
Johanson used for his tests was a different width than that of a mated QuickDraw cable spring, the
holes Mr. Johanson drilled for the test rivets were significantly larger in diameter than the holes on
the subject treestand, and the test rivets were much wider in diameter than those used on the subject
11

treestand.

Plaintiff provides no explanation as to why Mr. Johanson did not use the same

specifications as the subject treestand in his testing. Rather, plaintiff argues in his Response that the
testing conducted by Mr. Johanson is capable of being repeated. Plaintiff also contends generally that
Mr. Johanson’s testing was “based on scientific principles, measurements and established outcomes,
not speculation.” (Doc. No. 41 p. 12).
Notably, plaintiff does not argue in his Response that the purpose of Mr. Johanson’s testing
was to demonstrate only general scientific principles. Plaintiff has, however, attached a new Affidavit
of Mr. Johanson, in which he states that his “examples of riveted connections...were not intended to
replicate the defectively riveted Summit treestand spring-to-bracket connection that released the
Summit retention cable at the time of [plaintiff’s] fall and injury.” (Doc. No. 41-7 p. 4). Mr.
Johanson does not indicate the intended purpose of his testing or why he could not have used the
same specifications as the subject treestand. If Mr. Johanson intended merely to demonstrate general
scientific principles, he did not set out those principles. In fact, in his deposition, Mr. Johanson stated
that the purpose of his testing was to compare his work to “what [he] observed on the incident
treestand.” (Doc. No. 29-3 p. 198). Further, the argument set forth in plaintiff’s Response tends to
support the finding that Mr. Johanson was attempting to replicate the subject treestand. Plaintiff
argues Mr. Johanson “made conclusions based on not only his observations, but his testing as well.”
(Doc. No. 41). As such, the purpose of Mr. Johanson’s testing was not to merely demonstrate
general scientific principles but rather, was to replicate the subject treestand.
The subject treestand and the testing performed were not, however, substantially similar. In
his report, Mr. Johanson expressed the opinion that the rivet hole diameter of the subject treestand
“significantly exceeds the allowable range for use with the Summit specified MARSON SSB4-3 rivet.
The allowable hole size range for this rivet is 0.129" to 0.133".” (Doc. No. 41-2 p. 9). The diameter

12

of the rivet hole of the subject treestand was 0.140", a difference of 0.007" to 0.011" larger than the
ideal hole diameter. (Id.). Yet the rivet holes Mr. Johanson drilled for testing were 0.200" and
0.250" in diameter, much larger than the holes in the subject treestand. The rivets Mr. Johanson
drove were 0.187" in diameter, rather than 0.125" in diameter as on the subject treestand. When
driving 0.187" rivets into the 0.200" holes (a difference of 0.013"), the rivets expanded and filled the
holes, with no looseness. (Doc. No. 29-3 p. 197-201). Mr. Johanson was only able to create and
demonstrate a “loose” rivet when driving the 0.187" rivets into the 0.250" holes, a difference of
0.063", compared to the difference of 0.015" between the rivet and the rivet hole of the subject
treestand.

(Id.).

The difference between the test rivet and the rivet hole was, therefore,

approximately 4.2 times greater than the difference between the rivet and the rivet hole of the subject
treestand. (Id.).
The undersigned finds that the testing performed by Mr. Johanson was inaccurate. To
perform accurate and reliable testing, Mr. Johanson should have simply used the specifications of the
subject treestand. Instead, Mr. Johanson did not measure the width of the aluminum to compare it
to the width of a mated QuickDraw cable spring, drilled holes much larger than the hole diameter of
the subject treestand, and drove rivets that were much larger in diameter than the rivets of the subject
treestand. Mr. Johanson performed this testing to support his central theory that plaintiff’s injury was
caused by a manufacturing defect in the subject treestand. Plaintiff acknowledges in his Response
that Mr. Johanson’s conclusions were “based on not only his observations, but his testing as well.”
(Doc. No. 41). Mr. Johanson’s testimony and opinions, therefore, are not reliable and would only
confuse a jury. Plaintiff has failed to satisfy his burden to demonstrate by a preponderance of the
evidence that the testimony is admissible. Daubert, 509 U.S. at 592, 113 S.Ct. at 2796 . Thus,

13

Defendant Summit’s Motion to Bar the Testimony and Opinions of Plaintiff’s Expert Norman
Johanson will be granted.
Accordingly,

IT IS HEREBY ORDERED Defendant Summit Treestands, LLC’s Motion to Bar the
Testimony and Opinions of Plaintiff’s Expert Norman Johanson (Doc. No. 29) be and it is granted.
IT IS FURTHER ORDERED that, in the interest of justice, plaintiff will be granted ten (10)
days in which to request an additional thirty (30) days to remedy the deficiency in Mr. Johanson’s
testimony.

Dated this 13th

day of October, 2011.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

14