Jenks et al v. New Hampshire Motor Speedway, Inc. et al
Filing
150
ORDER denying 117 Motion in Limine to Preclude Vigilante's testimony. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually
and as G/N/F of Roderick Jenks
v.
Civil No. 09-cv-205-JD
Opinion No. 2012 DNH 039
New Hampshire Motor Speedway, et al.
v.
Textron Financial, Inc. and A.B.L., Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron.
Textron brought cross
claims against the Speedway and Thompson for contribution and
indemnification.
Textron moves to limit the testimony of Jenks’s
expert witness, William Vigilante.
Thompson object to the motion.
Jenks, the Speedway, and
Background
Roderick Jenks worked at the New Hampshire Motor Speedway on
July 16, 2006, as part of a program in which the Speedway donates
money to a charity in exchange for work done by individuals who
volunteer to participate.
Jenks, along with several others, was
assigned to provide security in the track infield.
After
receiving their assignments, Jenks walked with a fellow worker,
Marc MacAlpine, toward their assigned area.
Breann Thompson, a Speedway employee, drove by Jenks and
MacAlpine in a golf car.
ride, and she agreed.
MacAlpine asked Thompson to give them a
MacAlpine got into the passenger seat next
to Thompson, and Jenks rode on the back of the car in an area for
carrying golf bags.
When Thompson swerved, Jenks fell off the
car, hit his head, and was seriously injured.
The golf car driven by Thompson was an E-Z-GO model that was
manufactured by Textron.
A.B.L.. Inc. leased the golf car, along
with many others, to the Speedway for the racing event.
Jenks brought negligence claims against the Speedway and
Thompson and product liability claims against Textron.
Textron
brought cross claims against the Speedway and Thompson for
contribution and indemnification.
2
Discussion
Textron seeks to preclude the opinion and testimony of
Jenks’s expert, Dr. William Vigilante, on the ground that they
are not based on reliable methods and principles as required
under Federal Rule of Evidence 702.
Textron also contends that
Vigilante’s opinions are speculative and invade the province of
the jury.
The Speedway, Thompson, and Jenks object to Textron’s
motion and contend that Vigilante’s opinions are admissible.
“The touchstone for the admission of expert testimony in
federal court litigation is Federal Rule of Evidence 702.”
v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007).
Crowe
Under that rule,
[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.
As the structure of the rule suggests, before
the factfinder in a case can consider testimony over an adverse
party’s objection, the court serves as a gatekeeper, “ensuring
that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.”
3
Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
Although the proponent of an expert witness bears the burden
of proving the admissibility of his opinion, see Daubert, 509
U.S. at 592, the burden is not especially onerous, because “Rule
702 has been interpreted liberally in favor of the admission of
expert testimony,” Levin v. Dalva Bros., Inc., 459 F.3d 68, 78
(1st Cir. 2006).
Thus, so long as “an expert’s scientific
testimony rests upon ‘good grounds, based on what is known,’”
Rule 702 does “not require that [the proponent] carry the burden
of proving to the judge that the expert’s assessment of the
situation is correct.”
Ruiz-Troche v. Pepsi Cola of P.R.
Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (quoting Daubert,
509 U.S. at 590).
A.
Reliability
Textron contends that Vigilante’s opinions are unreliable in
three ways: I) he employed a flawed methodology when forming his
opinion concerning the inadequacy of the golf car’s warnings; ii)
he did not “perform scientific testing” on his proposed alternate
warning; and iii) his proposed alternate warning was not
subjected to peer review and has not been implemented by other
golf car manufacturers.
4
Expert opinion is admissible under Rule 702 if, among other
things, “the testimony is the product of reliable principles and
methods.”
Factors that may be considered in determining whether
an expert witness’s opinion is based on reliable principles and
methods include “(1) whether the theory or technique can be and
has been tested; (2) whether the technique has been subject to
peer review and publication; (3) the technique’s known or
potential rate of error; and (4) the level of the theory or
technique’s acceptance within the relevant discipline.”
Milward
v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 14 (1st Cir.
2011) (internal quotation marks and citation omitted).
These
factors “do not function as a definitive checklist or test, but
form the basis for a flexible inquiry into the overall
reliability of a proffered expert’s methodology.”
Ruiz-Troche,
161 F.3d at 81 (internal quotation marks and citation omitted);
see also Zachar v. Lee, 363 F.3d 70, 76 (1st Cir. 2004).
The
purpose of the inquiry is to ensure that expert testimony is
based on scientific knowledge “rather than guesswork.”
Ruiz-
Troche, 161 F.3d at 81.
1.
Inadequacy of Existing Warnings
Textron contends that Vigilante’s opinions concerning the
inadequacy of the warning on its golf cars is unreliable because
5
Vigilante failed to take measurements of the golf car, speak
directly to witnesses, or do any “objective testing” of the
warnings.
Vigilante explained in his expert report and during his
deposition testimony that he reviewed and relied upon various
deposition transcripts, including those of eye witnesses to the
accident and one of the engineers of Textron’s E-Z-GO division,
which designed and manufactured the model golf car at issue in
this case.
In his report, Vigilante provides measurements of the
golf car, both in terms of the golf car itself and the warning
decal attached to the dashboard, and discusses how those
measurements factor into his opinion.
Textron does not explain
how Vigilante’s failure to speak directly to witnesses or
personally examine the golf car involved in the incident
undermines his methodology, especially when he was able to obtain
the necessary information through other sources.
Textron also challenges Vigilante’s opinion on the adequacy
of its warnings because he testified that he used “heuristic
testing” in reaching his opinion.
Textron equates heuristic
testing to Vigilante’s “subjective evaluation of the warning’s
effectiveness” and the equivalent of an opinion of “‘it is
because I say so.’”
6
Although the parties dispute the merits of “heuristic
testing,” the court need not determine the term’s proper
definition or whether it alone is a reliable methodology for
expert testimony.
Vigilante’s analysis of Textron’s warning is
based on more than his subjective evaluation.
In reaching his
opinion that the golf car’s warnings were inadequate, Vigilante
considered established standards and guidelines for product
warnings, as well as warnings and human factors literature and
his own extensive experience and training in human factors
analysis.
Specifically, Vigilante determined that Textron’s
warnings did not meet the American National Standards Institute
(“ANSI”) guidelines for “product safety signs and labels” and was
inconsistent with criteria set forth in various articles and
literature on adequate product warnings.
Such opinions go beyond
the mere “ipse dixit of the expert,” and are sufficiently
reliable to survive a Daubert challenge.1
1
Notably, the cases cited by Textron in support of its
“subjective analysis” argument are defective design cases, in
which the proposed experts criticize the design of the product at
issue without explaining the reasoning or calculations behind
their conclusions. The analyses in these cases are not
applicable here.
7
2.
Testing of Proposed Warning
Textron also challenges the reliability of Vigilante’s
opinions because he did not submit his proposed alternate warning
to scientific testing.
Vigilante concedes that he did not test the alternate
warning he proposed for Textron’s golf cars.
But whether
Vigilante tested his proposed warning is not the appropriate
inquiry under Daubert.
Instead, the proper question is whether
the methodology applied by Vigilante has been adequately tested
and accepted within the scientific community, not whether his
result has been evaluated in the field.
See Daubert, 509 U.S. at
593-94.
Vigilante drafted the proposed warning in accordance with
ANSI standards in conjunction with his review of warnings
literature and guidelines.
He conducted numerous hours of
testing and research on the components and characteristics of his
proposed warning, including usability testing, a methodology that
Textron does not appear to challenge.
Therefore, Vigilante’s
methodology in drafting his proposed warning has been accepted
within his field. The lack of scientific testing on his proposed
warning does not render his opinion inadmissible.
Textron also challenges Vigilante’s proposed warning
because, Textron argues, Vigilante “is not clear where on the
8
back of the vehicle his warning should be placed.”
Vigilante,
however, offered an opinion as to the approximate placement and
size of his proposed alternate warning, and stated that Textron
could determine the exact specifications if it determined that
modifications would be more appropriate.
Textron’s
dissatisfaction with those opinions is not appropriately
addressed at this stage.
See Milward, 639 F.3d at 22 (“the
correctness of the expert’s conclusions . . . are factual matters
to be determined by the trier of fact”) (internal quotation marks
and citations omitted).
3.
Peer Review and Implementation by Other Manufacturers
Textron also challenges the reliability of Vigilante’s
opinions because his opinions have not been subjected to peer
review or publication and no other golf car manufacturer has
implemented his proposed alternative warning.
The Speedway and Thompson contend that Vigilante’s proposed
warning was peer reviewed by Harry Ehrlich, Vigilante’s coworker.
For purposes of a Daubert inquiry, however, the relevant
peer review group cannot be a member of Vigilante’s own
workplace.
See, e.g., Ahlberg v. Chrysler Corp., 481 F.3d 630,
635 (8th Cir. 2007).
Regardless, the proper inquiry is not
whether Vigilante’s proposed warning itself has been peer
9
reviewed, but whether Vigilante’s technique or theory has been
subjected to peer review and publication.
See, e.g., Milward,
639 F.3d at 14.
As discussed above, Vigilante’s proposed warning is based on
standards promulgated by the ANSI, an independent organization
that oversees the development of safety guidelines which “are
widely-accepted throughout the United States and internationally
as an authoritative source for safety compliance.”
Nat’l Sur.
Corp. v. India Tea and Spices, Inc., 2012 WL 113608, at *2 n.1
(D. Mass. Jan. 12, 2012); see also Pratico v. Portland Terminal
Co., 783 F.2d 255, 261 (1st Cir. 1985).
Therefore, his
conclusions are based on material that meets the “peer review or
publication” prong of Daubert.2
Regardless, even if Vigilante’s
opinion was not based on such material, peer review is not “a
sine qua non of admissibility.”
Ruiz-Troche, 161 F.3d at 84
(internal quotation marks and citation omitted); see also
2
Textron argues in the alternative that Vigilante’s opinion
should be precluded because he did not rely on peer reviewed
literature regarding the effectiveness of warnings on golf cars
specifically. This argument is based on an overly restrictive
reading of Daubert, especially because Vigilante testified that
he did not believe any such literature existed. Under Textron’s
interpretation of the standard, no expert, including its own,
could employ a sufficiently reliable methodology in this case
because of the lack of peer reviewed literature on golf car
warnings.
10
Granfield v. CSX Transp., Inc., 597 F.3d 474, 486 (1st Cir.
2010).
In addition, Vigilante was not required to compare the
language of his proposed warning to those provided by other
manufacturers in order to render a reliable opinion.
Assuming
that no other golf car manufacturer has adopted a similar warning
to that proposed by Vigilante, which is disputed, this deficiency
is not fatal to the admissibility of Vigilante’s opinion.
See,
e.g., Pineda v. Ford Motor Co., 520 F.3d 237, 248-49 (3rd Cir.
2008) (expert “did not have to compare the language of [the
warnings on the defendant’s product] with the language provided
by other manufacturers in order to render a reliable opinion that
[the defendant’s product] failed to provide adequate instructions
or warnings”).
In sum, Textron’s various challenges to the reliability of
Vigilante’s opinion are better characterized as challenges to
Vigilante’s conclusions.
But “[i]t is the expert’s methodology,
as opposed to his conclusions, which ‘remains the central focus
of a Daubert inquiry.’”
Ruiz-Troche, 161 F.3d at 81.
“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; see also Fed. R. Evid. 702 advisory
11
committee note (2000) (“the rejection of expert testimony [on the
basis of unreliability] is the exception rather than the rule”).
Vigilante’s opinions are the product of a sufficiently reliable
methodology to be admissible.
B.
Speculative Nature of Opinions
Textron also argues that the court should preclude Vigilante
from testifying because “his opinions are completely speculative
and invade the province of the jury.”
In support, Textron cites
various cases where the court precluded the opinions of human
factors experts, and contends that Vigilante’s opinions in this
case address common sense matters that should be left exclusively
to the jury.
“‘The court, in its role as gatekeeper, must exclude expert
testimony . . . which invades the province of the jury to find
Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
facts.’”
1356, 1364 (Fed Cir. 2008).
A statement of the obvious which is
within the ken of a lay jury is not the proper subject of expert
testimony.
See United States v. Zajanckauskas, 441 F.3d 32, 39
(1st Cir. 2006) (“Expert testimony does not assist where the
[trier of fact] has no need for an opinion because it easily can
be derived from common sense, common experience, the [trier of
fact’s] own perceptions, or simple logic.”) (internal quotation
12
marks and citations omitted); United States v. Fosher, 590 F.2d
381, 383 n.1 (1st Cir. 1979).
Textron contends that Vigilante’s testimony is speculative
but argues primarily that human factors experts do not provide
opinions that go beyond common sense.
Courts frequently admit
the testimony of human factors experts when they testify about
matters not within the common knowledge of the jury.
See
Mihailovich v. Laatsch, 359 F.3d 892, 919 (7th Cir. 2004)
(“[human factors analysis] is a recognized analytical approach
that is applied in a variety of contexts and may yield legitimate
insights as to the hazards that particular products and
situations . . . may pose in light of predictable human
behavioral patterns”); Smith v. Ingersoll-Rand Co., 214 F.3d
1235, 1243-44 (10th Cir. 2000); Scott v. Sears, Roebuck & Co.,
789 F.2d 1052, 1055 (4th Cir. 1986); Marzoll v. Marine Harvest
US, Inc., 2009 WL 4456321, at *9 (D. Me. Nov. 29, 2009); Nna v.
Am. Standard, Inc., 630 F. Supp. 2d 115, 138 (D. Mass. 2009).
Moreover, New Hampshire law encourages the use of experts in
failure to warn claims.
See Beaudette v. Louisville Ladder,
Inc., 462 F.3d 22, 27 (1st Cir. 2006) (“We find it clear that,
under New Hampshire law, expert testimony is required for the
Beaudette’s failure to warn claim.”); see also Lemay v. Burnett,
139 N.H. 633, 635-36 (1995).
13
It is undisputed that Vigilante is an expert in human
factors and ergonomics.
His testimony concerns the adequacy of
the warnings on the golf car and whether Jenks’s riding on the
back of the golf car and subsequent injury were foreseeable to
Textron in light of available information at that time.
The
theories and methods upon which he relies are recognized in his
field, and his knowledge of warnings and their proper design may
be helpful to the jury.
In addition, Textron’s expert offers
similar opinions, concluding that “additional [warnings] would
likely have had no effect on the behavior of Mr. Jenks” and
“there is simply no evidence of a defect in the warnings provided
with the Textron golf car.”
Therefore, Vigilante’s opinions
sufficiently address matters outside “simple logic” and are
admissible.
Conclusion
For the foregoing reasons, Textron’s motion in limine to
preclude Vigilante’s testimony (document no. 117) is denied.
Textron remains free, however, to raise appropriate objections to
14
Vigilante’s testimony at trial to the extent the trial context
would support such objections.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 8, 2012
cc:
R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire
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