Mann v. Mobile Media Enterprises

Filing 105

ORDER denying 84 Motion to Exclude; denying 87 Motion in Limine. The motions are denied without prejudice to reassertion and/or evidentiary objections at the time of trial. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA C H R IS T O P H E R S. MANN, ) ) P l a i n t i f f, ) ) vs. ) ) M O B IL E MEDIA ENTERPRISES LLC, ) ) D efe n d a n t. )

8 :0 7 C V 4 7 9 M E M O R A N D U M AND ORDER

T h is matter is before the court pursuant to 28 U.S.C. § 636 and the consent of the p a r tie s on the following motions: D o c . 84 D e f en d a n t's Motion to Exclude Plaintiff's Expert's Testimony, and related filin g s 85 (Brief) 86 (Evidence Index), 94 (Plaintiff's Brief in Opposition), 9 5 (Plaintiff's Evidence Index), and 101 (Reply Brief) P la in tif f 's Motion in Limine to Exclude the Testimony and Opinions of D e f en d a n t's Expert, Jeremy Cummings, and related filings 88 (Brief), 89 ( E v id e n c e Index), 97 (Defendant's Response Brief), 98 (Defendants' E v id e n c e Index), and 102 (Reply Brief)

D o c . 87

F o r the reasons discussed below, both motions will be denied without prejudice to reassertion a n d /o r evidentiary objections at the time of trial. BACKGROUND O n June 16, 2006, the defendant ("Mobile Media") hosted a tent at the NCAA College W o rld Series for the purpose of marketing Cingular Wireless products. The tent included a "Hi Striker" or "Test Your Strength" game ("Game"), which required the participant to

s w in g at and strike a plate with a mallet which, upon impact, caused an object to elevate up a tower toward a bell. If the bell rang, the participant would win a prize. Plaintiff was injured while playing the Game. When he swung the mallet and struck th e plate, the rubberized end of the mallet immediately bounced off the plate, propelled b a c k w a rd s through the air, and struck plaintiff in the face, causing injuries to his face, eye a n d nose. In his Second Amended Complaint, plaintiff has asserted claims for negligence, n e g lig e n t ly supplying a chattel, and premises liability. Summarized, the defendant

a f f irm ativ e ly alleges that any dangers associated with playing the Game are generally known a n d recognized by ordinary persons in the general public; plaintiff assumed the risk of injury; p l a in t if f was negligent or contributorily negligent; plaintiff failed to mitigate his damages; a n d Mobile Media met all applicable standards of care. D IS C U S S IO N U n d e r Rule 401 of the Federal Rules of Evidence, "'Relevant evidence' means e v id e n c e having any tendency to make the existence of any fact that is of consequence to the d e te rm in a tio n of the action more probable or less probable than it would be without the e v id e n c e." Rule 702 permits the admission of expert opinion testimony "if scientific, te c h n ic a l, or other specialized knowledge will assist the trier of fact to understand the e v id e n c e or to determine a fact in issue." Fed. R. Evid. 702.

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D istric t courts must ensure that all scientific testimony is both reliable a n d relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 580 (1 9 9 3 ); Fed. R. Evid. 702. The inquiry as to the reliability and relevance of the te stim o n y is a flexible one designed to "make certain that an expert, whether b a s in g testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the p r a c tic e of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 5 2 6 U.S. 137, 152 (1999). Expert testimony is inadmissible if it is speculative, u n s u p p o rte d by sufficient facts, or contrary to the facts of the case. Concord B o a t Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000). T o satisfy the reliability requirement, the proponent of the expert testim o n y must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his c o n c lu s io n s is scientifically valid. Daubert, 509 U.S. at 589-90. To show that th e expert testimony is relevant, the proponent must show that the reasoning o r methodology in question is applied properly to the facts in issue. Id. at 5 9 1 -9 3 . Courts should resolve doubts regarding the usefulness of an expert's te s tim o n y in favor of admissibility. Clark v. Heidrick, 150 F.3d 912, 915 (8th C ir . 1998); see also Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1 9 9 1 ) (noting that Rule 702 "is one of admissibility rather than exclusion"). H o w e v e r, a court should not admit opinion evidence that "is connected to e x is tin g data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner, 5 2 2 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). When the a n a lytic a l gap between the data and proffered opinion is too great, the opinion m u s t be excluded. Id. M a r m o v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757-58 (8th Cir. 2006) (parallel citations o m itte d ). A. A p p l ic a b le Law

In ruling on the parties' motions, the court must consider the proposed expert te stim o n y in the context of the claims and defenses actually raised in the pleadings. Since th e court exercises diversity jurisdiction in this matter, see 28 U.S.C. § 1332, the court will

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a p p ly the substantive law of the forum. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 4 8 7 , 496 (1941); Winthrop Resources Corp. v. Stanley Works, 259 F.3d 901, 904 (8th Cir. 2 0 0 1 ). For personal injury claims, Nebraska follows the Restatement (Second) of Conflict o f Laws § 146 (1971). Heinze v. Heinze, 274 Neb. 595, 599-600, 742 N.W.2d 465, 469 (2 0 0 7 ); Malena v. Marriott Int'l, Inc., 651 N.W.2d 850, 856 (Neb. 2002). Under Restatement § 146, "the local law of the state where the injury occurred determines the rights and lia b i litie s of the parties, unless, with respect to the particular issue, some other state has a m o r e significant relationship ... to the occurrence and the parties...." Malena, 651 N.W.2d a t 856. In this case, the accident occurred in Omaha, Nebraska and any relationship between th e parties is centered in Nebraska; therefore, Nebraska law controls the rights and liabilities o f the parties to this action. B. O r d in a r y Negligence; Duty of Care

U n d e r Nebraska law, "[o]rdinary negligence is defined as the doing of something that a reasonably careful person would not do under similar circumstances, or the failing to do s o m e th in g that a reasonably careful person would do under similar circumstances." Wilke v . Woodhouse Ford, Inc., 278 Neb. 800, 811, 774 N.W.2d 370, 379 (2009). To prevail on a claim for ordinary negligence, the plaintiff must prove (1) there was a legal duty on the part o f the defendant to protect the plaintiff from injury, (2) the defendant failed to discharge that -4-

d u t y, and (3) damage to the plaintiff proximately caused by the defendant's failure to d is c h a rg e that duty. See id. at 811, 774 N.W. 2d at 379. In negligence cases, a duty may be defined as an obligation, to which the law w ill give recognition and effect, to conform to a particular standard of conduct to w a rd another. When determining whether a legal duty exists, a court employs a risk-utility test concerning (1) the magnitude of the risk, (2) the relationship o f the parties, (3) the nature of the attendant risk, (4) the opportunity and a b ility to exercise care, (5) the foreseeability of the harm, and (6) the policy in te re s t in the proposed solution. Id. at 811, 774 N.W.2d at 380. The factual allegations of the Second Amended Complaint demonstrate that the p la in tif f was injured while using a device or chattel owned, controlled or operated by the d e f e n d a n t on a premises controlled by the defendant. 1. C h a t te ls ; Duty to Warn

U n d e r Nebraska law, "a supplier has a common-law duty to warn expected users that a chattel may be dangerous," as described in § 388 of the Restatement (Second) of Torts: O n e who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the c h a tte l with the consent of the other or to be endangered by its probable use, f o r physical harm caused by the use of the chattel in the manner for which and b y a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be d a n g e ro u s for the use for which it is supplied, and (b ) has no reason to believe that those for whose use the chattel is s u p p lie d will realize its dangerous condition, and

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(c ) fails to exercise reasonable care to inform them of its dangerous c o n d i tio n or of the facts which make it likely to be dangerous. E r ic k so n v. U-Haul Intern., Inc., 274 Neb. 236, 242-43, 738 N.W.2d 453, 460 (2007) (qu o tin g Restatement (Second) of Torts § 388 at 300-01 (1965)). 2. D u ty Owed to Lawful Entrants on Premises

U n d e r Nebraska law, a "lawful visitor [who] claims that he or she was injured by a c o n d itio n on the owner or occupier's premises" may hold the owner or occupier liable if he o r she can prove the following: (1) the owner or occupier either created the condition, knew of the condition, o r by the exercise of reasonable care would have discovered the condition; (2) th e owner or occupier should have realized the condition involved an u n re a so n a b le risk of harm to the lawful visitor; (3) the owner or occupier sh o u ld have expected that a lawful visitor such as the plaintiff either (a) would n o t discover or realize the danger or (b) would fail to protect himself or herself a g a in st the danger; (4) the owner or occupier failed to use reasonable care to p r o te c t the lawful visitor against the danger; and (5) the condition was a p ro x im a te cause of damage to the lawful visitor. Aguallo v. City of Scottsbluff, 267 Neb. 801, 807, 678 N.W.2d 82, 89 (2004). The factors re le v a n t to"reasonable care" include (1) the foreseeability or possibility of harm; (2) the purpose for which the e n tra n t entered the premises; (3) the time, manner, and circumstances under w h ich the entrant entered the premises; (4) the use to which the premises are p u t or are expected to be put; (5) the reasonableness of the inspection, repair, o r warning; (6) the opportunity and ease of repair or correction or giving of the w a rn in g ; and (7) the burden on the land occupier and/or community in terms o f inconvenience or cost in providing adequate protection.

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H e in s v. Webster County, 250 Neb. 750, 761, 552 N.W.2d 51, 57 (1996); accord, Aguallo v . City of Scottsbluff, 267 Neb. at 807, 678 N.W.2d at 89. B. P la in t iff's Allegations of Negligence

In the Second Amended Complaint, plaintiff alleges the defendant was negligent in th e following particulars: · · · · · · · · · s e le c tin g , furnishing and offering the Hi Striker game, f a ilin g to provide a verbal or written warning of the risk of physical injury, f a ilin g to provide verbal or written warning of the risk the mallet would bounce o f f the strike plate, se lec tin g and providing an unsuitable mallet, f a ilin g to warn plaintiff that the game was unsuitable for use by an adult, n e g lig e n tly constructing, installing and/or maintaining the game, fa ilin g to follow instructions supplied by the manufacturer, a ssig n ing unqualified employees to construct, install, maintain and/or operate the g a m e , and n e g lig e n tly designing, constructing and/or manufacturing the game.

(D o c. 41, Second Amended Complaint at ¶ 13). C. O p in io n s of Plaintiff's Expert, Anastasios D. Tsoumanis, Ph.D.

D r. Tsoumanis obtained his M.S. in biomedical engineering from Northwestern U n iv e r s it y in 2002. He obtained his Ph.D. in biomedical engineering from the Illinois In s titu te of Technology in 2007. Dr. Tsoumanis' report states that his firm was retained by th e plaintiff to inspect the Hi-Striker Game and to determine what caused this incident. He re v iew e d certain deposition testimony and medical records. He and his associates physically

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in s p e c te d the device and the sledgehammers used. The shorter hammer had a 20-inch-long h a n d le and a rubber cylindrical striker, 4 inches in diameter. The longer hammer had a 30in c h -lo n g hammer and a rubber striker that was 5 inches in diameter. They ran a series of tests, videotaped, with each of the hammers. Dr. Tsoumanis re p o rte d that they were able to replicate the conditions under which the plaintiff's accident o c c u rre d . When using the short hammer, the volunteer (who was wearing a football helmet to avoid injury) had to lean in close to the strike pad, "and that subsequently caused bounceb a c k of the hammer and strike to the face of the volunteer." (Doc. 86-2 at p. 7/23). While u s in g the short hammer, the volunteer's swinging motion tended to be with both hands d ire c tly in front of the body in order to generate enough force to ring the bell. While using th e longer hammer, the swinging motion was over the shoulder and then in front of the body tow ard s the striking pad. When using the long handled sledgehammer, it was not necessary to lean close to the strike pad in order to achieve sufficient force to ring the bell. They used P r e ss u re x film to measure the pressure exerted on the strike pad. Dr. Tsoumanis concluded th a t "the force applied on Mr. Mann's face was sufficient to cause the injuries sustained." (D o c . 86-2 at p. 4/23, ¶ 8). Blood stains on the equipment suggested that the plaintiff had leaned forward and hit th e front end of the strike pad with the short handled sledgehammer, which made the hammer b o u n c e back directly toward plaintiff's face. Dr. Tsoumanis concluded that "usage of the

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lo n g e r sledge hammer would have not caused this incident as the body and face of Mr. Mann w o u ld have been further away from the strike pad area." (Doc. 86-2 at p. 11/23). D. O p in io n s of Defendant's Expert, Jeremy R. Cummings, Ph.D.

D e f e n d a n t's expert, Dr. Jeremy R. Cummings, obtained a Ph.D. in biomedical E n g in e e rin g in 2001 from the University of North Carolina. His report (Doc. 89-1) indicates th a t he was retained to perform a biomechanical assessment of the accident. Dr. Cummings' asse ssm en t is based on a "video analysis" of the tests conducted and data compiled by Dr. T s o u m a n is on September 21, 2009. Dr. Cummings was not present at the testing on S e p te m b e r 21, 2009 and did not inspect the machine himself. B a s ic a lly, Dr. Cummings' report expresses disagreement with Dr. Tsounamis' m e th o d o lo g y and conclusions. After reviewing the video and data, together with certain d e p o s i t io n testimony and the plaintiff's medical records, Dr. Cummings provided his own c o n c lu s io n s , which appear to be no less speculative than those of Dr. Tsounamis. He esse n tially accuses Dr. Tsounamis of enhancing or even falsifying the data, opining that Dr. T s o u n a m is ' volunteers used "active muscle recruitment" to pull the mallet towards the tester's f a ce "in excess of the force due to gravity, which would not be a fair or accurate attempt at th e game." (Doc. 89-1 at ¶ 10). E. C o n c lu s io n

A s the defendant notes in its brief (Doc. 97 at p. 4/15), this game, or "striking m a c h in e " has existed for over 100 years. See also, e.g., Wodnik v. Luna Park Amusement -9-

C o ., 69 Wash. 638, 125 P. 941 (1912). It is uncontroverted in this case that the plaintiff s e le c te d the shorter mallet, hit the strike plate, and was injured when the hammer bounced b a c k and hit him in the face. Based on my review of the issues actually raised in the parties' pleadings, the identity o f the parties, the applicable standard(s) of care, and the two expert witnesses' reports, I am str o n g ly inclined to exclude the opinions of both expert witnesses at trial. Dr. Tsounamis m ig h t be able to provide relevant admissible testimony, as a fact witness, based on his p h ys ic a l inspection of the Game. Other than that, it does not appear to the court that either e x p e rt opinion would "assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. That said, the Eighth Circuit has held that "[c]ourts should re s o lv e doubts regarding the usefulness of an expert's testimony in favor of admissibility." M a r m o v. Tyson Fresh Meats, Inc., 457 F.3d at 758. For this reason only, both motions in lim in e will be denied without prejudice to reassertion and/or evidentiary objections at the tim e of trial. I T IS SO ORDERED. D A T E D May 12, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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