Pitman v. Ameristep Corporation et al

Filing 61

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that Defendants' Motion in Limine to Exclude, or in the Alternative, Limit the Testimony of Plaintiff's Expert, Christopher Ferrone [ECF No. 34 ] is DENIED. Signed by District Judge E. Richard Webber on 9/23/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

DENNIS D. PITMAN ,
Plaintiff,
vs.
AMERISTEP CORPORATION, et al.,
Defendants.

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Case No. 2:14CV00085 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion in Limine to Exclude, or in
the Alternative, Limit the Testimony of Plaintiff’s Expert, Christopher Ferrone [ECF No. 34].
I.

BACKGROUND
On August 8, 2014, Plaintiff Dennis Pitman (“Plaintiff”) filed a petition in the Circuit

Court of Montgomery County, Missouri, asserting two counts against Defendant Ameristep
Corporation (“Ameristep”) for negligence and strict liability, two counts against Defendant WalMart Stores, Incorporated (“Wal-Mart”) for negligence failure to warn and strict liability. ECF
No. 5. Plaintiff’s petition alleged Plaintiff was injured when the ratchet straps securing his tree
stand to a tree broke causing him to fall and injure his arm. Defendants Ameristep and Wal-Mart
removed the matter to this Court. ECF No. 1. On June 8, 2016, Plaintiff filed an Amended
Petition adding two counts against Defendant Tahsin Industrial Corp. U.S.A. (“Tahsin”) for
negligence and strict liability. ECF No. 32. On July 22, 2016, Wal-Mart was dismissed from this
action. Defendants Ameristep and Tahsin (“Defendants”) filed this Motion in Limine to Exclude,

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or in the Alternative, Limit the Testimony of Plaintiff’s Expert, Christopher Ferrone. ECF No.
34.
II.

STANDARD
Rule 702 mandates a policy of liberal admissibility, and expert testimony is permitted if it

will assist the trier of fact in understanding the evidence or to determine a fact in issue. Fed. R.
Evid. 702; Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). To be admitted under
Rule 702, proposed expert testimony must meet three prerequisites: 1) any evidence based on
scientific, technical or other specialized knowledge must be useful to the fact finder in
determining a fact in issue; 2) the proposed witness must be qualified to assist the fact finder;
and 3) the proposed evidence must be reliable or trustworthy in an evidentiary sense. Id.;
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993).1
A district court’s goal in assessing expert testimony is to ensure that “all scientific
testimony is both reliable and relevant.” Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir.
2010) (quoting Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)). The
reliability requirement means “the party offering the expert testimony must show by a
preponderance of the evidence both that the expert is qualified to render the opinion and that the
methodology underlying his conclusions is scientifically valid,” while the relevance requirement
demands “the proponent must show that the expert’s reasoning or methodology was applied
properly to the facts at issue.” Id. (internal quotations and citations omitted).
Rule 702’s requirements notwithstanding, “[c]ourts should resolve doubts regarding the
usefulness of an expert’s testimony in favor of admissibility.” Marmo, 457 F.3d at 758. This is

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The analysis provided in Daubert applies to all experts, not just scientific experts. Kuhmo Tire Co. v. Carmichael,
526 U.S. 137 (1999).
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because the Rule “only requires that an expert possess ‘knowledge, skill, experience, training, or
education’ sufficient to ‘assist’ the trier of fact, which is ‘satisfied where expert testimony
advances the trier of fact’s understanding to any degree.’” Robinson v. GEICO Gen. Ins. Co.,
447 F.3d 1096, 1100 (8th Cir. 2006) (internal citation omitted). As such, “[g]aps in an expert
witness’s qualifications or knowledge generally go to the weight of the witness’s testimony, not
its admissibility.” Id. at 1100-01.
III.

DISCUSSION
Defendants ask the Court to exclude or limit the testimony of Plaintiff’s expert,

Christopher Ferrone. Defendants assert Mr. Ferrone has no background in the design of tree
stands or the ratchet straps used with tree stands and his opinions are inadmissible because they
are based on speculation, ignore testimony and evidence, and are not based on reliable tests. The
Court heard oral argument from the parties and testimony from Mr. Ferrone on August 31, 2016,
regarding this Motion.
Mr. Ferrone has extensive experience in in analyzing products and determining what to
do to make products safe. He has designed his own products. He testified he applied the safety
hierarchy and used the same methodology in testing and analyzing the straps in this matter as he
has when testing and analyzing other products. He is not an expert in polymers, but it is not
necessary for him to be because his opinions do not focus on the changing the material of the
strap. In the past, he has done testing on other types of straps for use with cranes and tie downs,
all of which had tensile failures similar to the straps in this matter.
Mr. Ferrone also testified he analyzes warnings and efficacies on a regular basis. He has
developed warnings for two different products and has continuously evaluated warnings

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throughout his career. He looks at the standards for warnings and applies them to the case at
issue. He also used his past education, experience, and training and applied them.
The Court is satisfied Mr. Ferrone is sufficiently qualified to testify as an expert in this
matter. Defendants’ concerns about his qualifications and lack of experience with tree stand
straps and polymers may be addressed on cross-examination. Defendants’ arguments regarding
the reliability of Mr. Ferrone’s testing are also appropriate for cross-examination rather than
exclusion. Mr. Ferrone testified his testing did not meet the tensile testing standards for webbing
material produced by the American Society of Testing Materials, but nothing in his testimony
caused the Court to believe his testing was unreliable so as to require its exclusion from trial.
The Court will limit the scope of Mr. Ferrone’s testimony. Because he does not have
experience in polymers, he will not be permitted to testify regarding why the strap material is
insufficient. His testimony should be limited to the testing he conducted, the safety hierarchy,
and the sufficiency of the warnings provided with the straps.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion in Limine to Exclude, or in the
Alternative, Limit the Testimony of Plaintiff’s Expert, Christopher Ferrone [ECF No. 34] is
DENIED.
So Ordered this 23rd Day of September, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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