Filbert v. Joseph T. Ryerson & Son, Inc.

Filing 77

MEMORANDUM AND ORDER 71 IT IS HEREBY ORDERED thatDefendants Daubert Motion in Limine Regarding Edward Karnes (ECF No. 71) is DENIED. IT IS FURTHER ORDERED that Plaintiffs request for oral argument on DefendantsDaubert Motion in Limine Regarding Edward Karnes (ECF No. 71) is DENIED as moot. Signed by Honorable Jean C. Hamilton on 6/13/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RYAN FILBERT,
Plaintiff(s),
vs.
JOSEPH T. RYERSON & SON, INC.,
Defendant(s).

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Case No. 4:10CV1189 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Daubert Motion in Limine Regarding Edward
Karnes, filed March 21, 2012. (“Motion in Limine,” ECF No. 71). The motion is fully briefed and
ready for disposition.
BACKGROUND
On August 23, 2008, Plaintiff was injured at the Lyon Sheet Metal Works (“Lyon”) factory
while operating a Wysong Slip Power Roller machine (“Power Roller”). (Third Amended Complaint
(“Complaint”), ECF No. 63, ¶¶ 4, 11). At the time of the accident, Plaintiff was employed as a
laborer and sheet metal worker by Lyon. (Id., ¶ 10). The control panel for the Power Roller
contained three buttons: the top button was black and had a sign with the word “forward” mounted
above it, the center button was black and had a sign with the word “reverse” mounted above it, and
the bottom button was red and had a sign with the word “stop” mounted above it. (Motion in
Limine, ¶ 13). Plaintiff was holding a piece of metal in the Power Roller with his left hand and
attempted to press the “forward” button on the machine with his right hand. (Complaint, ¶ 12).
Plaintiff inadvertently pressed the “reverse” button, causing Plaintiff’s left hand to enter the Power

Roller’s rollers. (Id.). The Power Roller crushed Plaintiff’s hand, requiring the amputation of
portions of Plaintiff’s hand. (Id.).
Lyon had purchased the Power Roller from Defendant in 1968. (Motion in Limine, ¶ 2).
Defendant was engaged in the business of selling metal-forming machinery and metalworking
equipment. (Complaint, ¶ 3).
Plaintiff filed his First Amended Petition against Defendant on January 11, 2010, in the Circuit
Court of the City of St. Louis, State of Missouri. Defendant removed this action to this Court on July
6, 2010. Plaintiff filed his three-count Third Amended Complaint on January 13, 2012. Count I
alleges strict liability for failure to warn, Count II alleges strict liability for design defect, and Count
III alleges breach of the implied warranty of merchantability. According to Plaintiff, the Power Roller
was improperly manufactured and designed in that it was not equipped with proper machine operation
controls adequately allowing workers to operate the machine. (Id., ¶ 14).
In support of his claims, Plaintiff seeks to introduce the testimony of expert witness Edward
Karnes, Ph.D. If permitted, Karnes will testify that the Power Roller “was defective from a human
factors design standpoint in failing to provide design accommodations that would prevent inadvertent
and unintentional control activation.” (Motion in Limine, ¶ 21, citing Ex. 9, Rule 26 report for
Edward Karnes). If permitted, Karnes will also testify as to ways that the control configuration could
be redesigned to reduce the likelihood of an error in activating a control button. In their Motion in
Limine, Defendant maintains all of Karnes’s opinions are inadmissible under both the Federal Rules
of Evidence and the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).

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DISCUSSION
Under Eighth Circuit law, “[d]ecisions concerning the admission of expert testimony lie within
the broad discretion of the trial court.” Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir.
2003) (internal quotations and citation omitted). As a preliminary matter, “‘[t]he proponent of the
expert testimony must prove its admissibility by a preponderance of the evidence.’” Sappington v.
Skyjack Inc., 446 F.Supp.2d 1059, 1061 (W.D. Mo. 2006) (quoting Lauzon v. Senco Prods., Inc.,
270 F.3d 681, 686 (8th Cir. 2001)). The starting point for analyzing expert testimony is Federal Rule
of Evidence 702, which provides in relevant part as follows:
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.
Id.
Pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., the seminal case regarding expert
opinion testimony, “district courts are to perform a ‘gatekeeping’ function and insure that proffered
expert testimony is both relevant and reliable.” Dancy v. Hyster Co., 127 F.3d 649, 652 (8th Cir.
1997) (citations omitted), cert. denied, 523 U.S. 1004 (1998); see also Daubert, 509 U.S. at 592-93.
Daubert provides a number of nonexclusive factors a court can apply in performing
this role: 1) whether the theory or technique can be (and has been) tested; 2) whether
the theory or technique has been subjected to peer review and publication; 3) the
known or potential rate of error; and 4) whether the theory has been generally
accepted....Daubert’s progeny provides additional factors such as: whether the
expertise was developed for litigation or naturally flowed from the expert’s research;
whether the proposed expert ruled out other alternative explanations; and whether the
proposed expert sufficiently connected the proposed testimony with the facts of the
case.
Sappington, 446 F.Supp.2d at 1062 (quoting Lauzon, 270 F.3d at 686-87 (internal quotations and
citations omitted)).

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As stated above, if permitted, Karnes would testify that the control panel of the Power Roller
was unreasonably dangerous because it was improperly designed. Defendant maintains that Karnes’s
expert opinion is inadmissible, as Karnes’s testimony constitutes common knowledge and lacks
sufficient factual and scientific support. Defendant repeatedly emphasizes that Karnes testified during
his deposition that determining what constitutes an “unreasonable danger” is “strictly a judgment
call.” (See Defendant’s Reply Memorandum of Law to Plaintiff’s Response to Defendant’s Daubert
Motion in Limine Regarding Edward Karnes (“Defendant’s Reply”), ECF No. 74, p. 1, citing Exhibit
Karnes-1, p. 22, lines 13-22).
Under Eighth Circuit law, “‘[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 cross-examination.’” 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) (citation omitted)). 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. Sunbeam
Products, Inc., No. 4:07-CV-1957, 2009 WL 701994 at *4 (E.D. Mo. Mar. 13, 2009) (internal
quotations and citation omitted).
Upon consideration, the Court will allow Karnes to offer his opinion regarding the design of
the control panel. As an initial matter, the Court finds that many expert opinions offered by expert
witnesses in federal litigation necessarily constitute “judgment calls” based on the facts of a particular
case and the expert’s specialized area of knowledge. Plaintiff has established the methodology behind
Karnes’s opinion by citation to publications relied on by Karnes and teaching materials Karnes uses
in a college-level class (see ECF Nos. 73-2, 73-9, 73-11, and 73-12). Karnes applied this
methodology to the facts of this case by reviewing the allegations in the Complaint, an investigative

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report, photographs taken of the Power Roller, and documents produced by Lyon, and by engaging
in two telephone conversations with Plaintiff. (Plaintiff’s Response in Opposition to Defendant’s
Motion in Limine Regarding Edward Karnes (“Plaintiffs’ Response”), ECF No. 73, p. 12). The Court
finds the conclusions set forth in Karnes’s preliminary report and deposition are sufficiently reliable
to assist the jury’s determination of a disputed issue, and Defendant’s assertions concerning flaws in
Karnes’s methodology or underlying assumptions “are proper subjects for [Plaintiff’s] own expert
testimony and for thorough cross-examination before the trier of fact.” Harrington, 2009 WL 701994
at *4; see also Lauzon, 270 F.3d at 695 (“It is far better where, in the mind of the district court, there
exists a close case on relevancy of the expert testimony in light of the plaintiff’s testimony to allow
the expert opinion....”). Defendant’s Daubert Motion in Limine Regarding Edward Karnes will
therefore be denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Daubert Motion in Limine Regarding Edward
Karnes (ECF No. 71) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s request for oral argument on Defendant’s
Daubert Motion in Limine Regarding Edward Karnes (ECF No. 71) is DENIED as moot.

Dated this 13th day of June, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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