Galoski v. Stanley Black & Decker, Inc.

Filing 114

Memorandum Opinion and Order granting defendant's Motion to exclude the Testimony of Dr. Roger Goldberg (Related Doc # 99 ). Defendant's motion for summary judgment is also granted (Related Doc # 100 ). Judgment is hereby entered in favor of Defendant, and this case is dismissed with prejudice. Judge Donald C. Nugent 5/24/17(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEBORAH GALOSKI,

)
)
Plaintiff,
)
)
v.
)
)
STANLEY BLACK & DECKER, INC., et al., )
)
Defendants.
)
)
)

CASE NO. 1:14 CV 553

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION
AND ORDER

The matter is currently before the Court on Defendant, Applica Consumer Products,
Inc.’s (“Applica”) Motion to Exclude the Testimony of Dr. Roger Gold (ECF #99), and Motion
for Summary Judgment (ECF # 100). Plaintiff filed Briefs in Opposition to both motions, and
Defendant filed Replies in support of its motions. (ECF #103, 106, 105, 107). The issues are
now fully briefed and ripe for disposition. Applica contends that the testimony of Dr. Gold, the
expert proffered by Plaintiff to provide opinion evidence on the efficacy of ultrasonic pest
repellers in general, is not grounded in any reliable methodology and does not address the
efficacy of the actual product at issue in this case. Therefore, it seeks to have his testimony
excluded. If Dr. Gold’s testimony is excluded, Applica argues that the case should be dismissed
because Plaintiff has produced no other evidence that could support her contention that Applica’s
ultrasonic pest repellers do not and cannot perform as warranted on the product packaging.
Plaintiff claims that Dr. Gold is an expert in the area of entomology and has conducted,

supervised, and reviewed a multitude of studies relating to the general efficacy of ultrasonic and
other types of pest controls on repelling certain insects, and rodents. Further, Plaintiff argues that
even if Dr. Gold’s testimony is excluded, she has provided other evidence, by way of her own
testimony and other customer complaints, that the Applica pest repeller did not perform as
warranted.

I. Motion to Exclude Expert Testimony
A. Standard
The admission of expert testimony is governed by Fed. R. Evid. 702 and 703. Federal
Rule 702 states:
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. This rule is to be broadly interpreted. Mannino v. Int’l Mfg. Co., F.2d 846,
849 (6th Cir. 1981). “Faced with a proffer of expert scientific testimony, then, the trial judge
must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify
to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in

-2-

issue. This entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 592-93 (1993).

The Court considers the following factors when determining

reliability: “(1) whether the theory or technique has been tested and subjected to peer review and
publication, (2) whether the potential rate of error is known, and (3) its general acceptance.’”
Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002).
Pursuant to Fed. R. Evid. 703, “[a]n expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally observed.” The facts and data upon
which the expert’s opinion is based need not necessarily be admissible on their own. Fed. R.
Evid. 703.

“Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions,

including those that are not based on firsthand knowledge or observation. Presumably, this
relaxation of the usual requirement of firsthand knowledge -- a rule which represents ‘a “most
pervasive manifestation” of the common law insistence upon “the most reliable sources of
information,”’-- is premised on an assumption that the expert's opinion will have a reliable basis
in the knowledge and experience of his discipline.” Daubert, 509 U.S. at 592 (citations omitted).
Plaintiffs bear the burden of showing by a preponderance of the evidence that the experts'
testimony is admissible. Daubert, 509 U.S. at 579 & n.10.
B. Analysis
Dr. Gold has opined that ultrasonic devices “would not,” “cannot and do not,” and “will

-3-

not be effective to” drive out pests, and that they “actually can attract cockroaches due to the heat
generated by the electric commercial devices.” (ECF #99-1, PageID 1809-10).

He has also

stated his opinion that the studies Defendant relied on to determine efficacy of its product are not
scientifically sound. Dr. Gold is unquestionably an accomplished entomologist, and has
extensive experience in various aspects of the pest control industry. There is also no question
that he has formed strong opinions as to the potential efficacy of ultrasonic pest repellers, in that
he appears to firmly believe that they, as a class of devices, are not and cannot be effective in
“driving out” pests of any kind. Unfortunately for the Plaintiff, however, there has been no
evidence presented in this case that provides a well-grounded scientific basis to elevate his
opinion on this particular question to the level of reliability required for expert testimony.
“Although qualified as an expert in one area of expertise, [an expert witness] may be precluded
from offering opinions beyond that area of expertise, or that are not founded on a reliable
methodology.” Wellman v. Norfolk & W. Ry. Co., 98 F. Supp. 2d 919, 924 (S.D. Ohio 2000).
1. Product’s Ability to Drive Out Pests
Dr. Gold’s opinion on the products ability to drive out pests does not appear to be
scientifically valid and his reasoning and methodology cannot be properly applied to the facts at
issue in this case. In coming to his opinion, Dr. Gold testified that he has never tested ultrasonic
pest repellers sold by Applica. (ECF #99-2, PageID 1859, 1871, 1889, 1891-92). Although he
did work on studies of various types of electronic pest repellers from 1982 through 2005 or 2006,
(ECF #99-2 PageID 1861), not all of the studied devices were ultrasonic, and none of them were

-4-

manufactured by Applica. (ECF #99-2, PageID 1861-62, 1892-93). Further, prior to 1984, none
of the testing involved sweep technology, which is claimed to be utilized in the Applica product,
and Dr. Gold testified that he did not provide any reports based on his testing of ultrasonic
devices after 1984. (ECF #99-2, PageID 1882, 1893; ECF #105, PageID 2081).
Dr. Gold testified that he did not do the research related to the current case; he did not
design any experiments to test the product in this case; and that his opinion in this case was based
on a review of “the summaries of the data” from studies that were not derived from the Applica
product. (ECF #99-2, PageID 1872, 1881 ). Some of the testing he relied on involved products
that were not even ultrasonic devices, and none of the testing appears to have included a
controlled test in a situation that allowed the pests an escape from the effects of the device. (ECF
#99-2, PageID 1882-83, 1886).
Dr. Gold recognized during his deposition that each manufacturer’s device is a little bit
different; that each has different features or attributes relating to the frequency, decibels, pulsing
or sweeping of the sound; and, that these differences could affect the efficacy of the products.
(ECF #99-2, PageID 1862, 1885, 1888). He could not recall which of these attributes was
present, or at what level, in the devices he tested, and did not know which of the features or
attributes were contained in the Applica product. (ECF #99-2, PageID 1862-63, 1889-91). He
also admitted that although he thought the Applica decibels and frequency were “not unlike other
things that we had closely examined,” they were not “identically the same.” (ECF #99-2, PageID
1865). The devices that were tested in the studies he relied on had a different frequency peak

-5-

kilohertz range than did the Applica (Black and Decker) product. (ECF #99-2, PageID 1902).
Even where an expert has based his opinion on scientific studies, his opinion may not be
admissible if those studies do not ‘fit’ the facts of the case. See, Pride v. BIC Corp., 218 F.3d
566, 577 (6th Cir. 2000). In addition, Dr. Gold admitted that many of the studies that he and
others relied on when concluding ultrasonic devices did not “drive out” pests did not have a
control, and others had no replications. Dr. Gold testified that in the absence of a control, or in
the absence of replications, the data from a test was not scientifically reliable. (ECF #99-2,
PageID 1903). Expert testimony is not admissible if it is not scientifically reliable.
Dr. Gold also testified that when he conducted tests on a product that used sweep
technology similar to that employed by the Applica product, the testing showed that cockroaches
did, in fact, respond to the ultrasound emitted by the device. It appeared, in fact, that they moved
away from the device. (ECF #99-2, PageID 1882, 1883). Although Dr. Gold contends that this
does not prove that the device was a deterrent, it certainly does not prove that it had no deterrent
effect. In a differently designed test performed by Dr. Gold, cubes containing the roaches and
testing devices were equipped with pitfall traps. In this test, the roaches again showed significant
additional movement when exposed to the device, and there was a “significant increase in the
rate of cockroach catch in the [pitfall traps of the ] cubes with an active ultrasound device.”
(ECF #99-2, PageID 1883). Dr. Gold interpreted this as proof that ultrasound increased activity
amongst the roaches but did not conclude that it deterred them or drove them away. He testified
that this was because “they stayed- [t]he same number of roaches were there in the beginning and

-6-

the end.” (ECF #99-2, PageID 1884;see also PageID 1888). However, based on the design of the
test, as explained by Dr. Gold, it appears there was no way for them to escape the cube. Entering
the pitfall trap was the closest option to exiting that was possible under the design of the
experiment.1
Dr. Gold has completed a significant amount of research and testing on electronic pest
control devices and their effect on specific pests. However, he has provided no information that
would explain how his studies relate to the efficacy of the Applica product at issue in this case or
its effects on the wide variety of pests that it claims to deter. Dr. Gold affirmatively stated that
he has no data to show that “the Applica pest repellers that were branded as Black & Decker
ultrasonic pest repellers. . . do not perform their intended function.” (ECF #99-2, PageID 1907).
There is no evidence to suggest that any of the experiments he conducted or reviewed showed
with a reasonable degree of scientific certainty that a device with the Applica products
specifications did not or could not deter the pests listed on the product’s label.
2. Product’s Potential to Attract Pests
Further, Dr. Gold’s opinion that the Applica products could potentially attract pests rather
than repel them, is based on his understanding that the Applica products contained a nightlight or

1

This experiment was not actually designed to test whether the ultrasound device deterred
or drove out pests. Rather, the claim made the product being tested was that the device
could kill pests. This was the premise being testing and may account for why no escape
route was integrated into the experiment’s design. However, it still precludes any ability to
test the device’s ability to drive out pests, if the pests are not provided a way out in the
testing design.
-7-

an extra electrical outlet. He admits, however, that he does not know whether the product used
by Ms. Galoski had either of these features. He also admits that he has no idea whether the
inclusion of these features changed the electrical specifications of this product. (ECF #99-2,
PageID 1875). He acknowledges that many pests are deterred by, rather than attracted to light
(ECF #99-2, PageID 1876); that he did not test the amount of light given off by the Applica
product, even though the amount of light would affect any test results (ECF #99-2, PageID
1877); that he did not test whether spiders were attracted to the Applica product’s light (Id.); that
tests showing some insects are attracted to light were performed under different conditions than
exist here (Id.); and, that there are no studies that he has reviewed or conducted that would
suggest that the presence of an additional electrical outlet would attract insects (Id.).
In the end, Dr. Gold admitted that he could not testify with a reasonable degree of
scientific certainty that any pets will be attracted to the ultrasonic pest repellers manufactured by
Applica. (ECF #99-2, PageID 1877). Because he has no scientific basis to make such a
statement, his opinion that the product could actually attract pests is inadmissible as expert
testimony in this case.
3. Adequacy of Defendant’s Testing
Dr. Gold has put forth other opinions, which, as explained by his deposition testimony,
boil down to the belief that Defendant has not shown substantial scientific support for its position
that electronic pest control devices are effective against general pest populations. (ECF #99-1,
PageID 1808-09). He testified that his starting point in any case is “basically to assume that

-8-

something doesn’t work until it can be proven that it does.” (ECF #99-2, PageID 1871). In a
civil case, however, the burden of proof of effectiveness is not on the Defendant. The Plaintiff
must prove by a preponderance of the evidence that the product is not effective as warranted. It
is not enough to say that there are defects testing and analysis Defendant relied on to support a
finding of efficacy; Plaintiff must affirmatively show that the product does not conform to the
warranty. See, Steigerwald v. BHH, LCC, 2016 WL 6962593, at *5 (N.D. Ohio, Nov. 29, 2016).
Rather than opine on the failings of the manufacturer’s scientific process, Plaintiff, must provide
substantiated scientific studies that affirmatively show that this Applica product, or at least a
product with the same specifications and features does not and cannot work. This she has not
done.
Plaintiff has not met her burden of showing, by a preponderance of the evidence, that Dr.
Gold has a scientifically valid opinion on the efficacy of the Applica device that would assist the
trier of fact. Although he may have expertise in certain areas of entomology and has some
experience studying various modes of pest control, his inference that these studies apply to all
ultrasonic devices without exception is not based on the scientific method (ECF #99-2, PageID
1871), was not developed employing the same intellectual rigor that characterizes the practice in
his field; and, is not based on “good grounds” within the methods of and procedures of science as
required by Daubert. See, Daubert, 509 U.S. at 590; Kumho Tire Co., Ltd. V. Carmichael, 526
U.S. 137, 152 (1999); Newell v. Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir.
2012); John v. Equine Services, 233 F.3d 382, 389 (6th Cir. 2000); In re Paoli R.R. Yard PCB

-9-

Litig., 35 F.3d 717, 744 (3rd Cir. 1994). His opinions on this matter do not qualify as expert
testimony and they are, therefore, excluded.
II. Motion for Summary Judgment
A. Standard
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” FED. R. CIV. P. 56(c). The burden of showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions
of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any,’ which it believes demonstrates the absence of a
genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is
“material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine”
requires consideration of the applicable evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d

-10-

937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence
presented is “merely colorable” and not “significantly probative,” the court may decide the legal
issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most
civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id.
at 252.
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The non-moving party may not simply rely on its pleadings, but must “produce evidence
that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t of
Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. Id.
In sum, proper summary judgment analysis entails “the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there are any genuine factual issues

-11-

that properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson, 477 U.S. at 250.
B. Analysis
Plaintiff, Deborah Galoski brought this suit on behalf of herself and others similarly situated
to recover damages arising from the purchase of an allegedly defective product. She alleges breach
of express warranty, claiming that these devices do not, and cannot, repel pests under any
circumstances, “no matter where they are placed or how they are used.” (ECF #59 at 19). She
claims that this product “provides no benefits whatsoever even when operating as it is designed to.”
(ECF #59 at 2).
To establish a claim for breach of express warranty under Ohio law, the plaintiff must prove
the following elements: (1) the item in question was subject to a warranty; (2) the item did not
conform to the warranty; (3) the seller was given a reasonable opportunity to cure any defects; and
(4) the seller failed to cure the defects within a reasonable period of time or after a reasonable
number of attempts. Temple v. Fleetwood Enters, Inc., 133 F. App’x 254, 268 (6th Cir. 2005).
Defendant does not dispute that the packaging of the device at issue created an express warranty.
Rather, they allege that Plaintiff has failed to present any admissible evidence that could show that
the product failed to conform to this warranty.
Plaintiff has alleged that the product failed to conform to the warranty due to a design defect.
She has claimed, since the inception of this litigation, that the product, as designed, is not capable
of performing its function, under any circumstances. For the same reasons that Ohio law requires

-12-

expert testimony to prove a design defect in certain products liability cases, expert testimony is
required in this case to show that the Applica ultrasonic pest repeller is universally incapable of
repelling pests as warranted on their packaging. When the “inquiry pertains to a highly technical
question of science or art or to a particular professional or mechanical skill.” a plaintiff must present
expert testimony in order to meet his or burden of proof. Jones v. Hawkes Hosp. Of Mt. Carmel, 175
Ohio St. 503, 196 n.E.2d 592, paragraph one of the syllabus. (1964); see also, Stacey v. CarnegieIllinois Steel Corp., 156 Ohio St. 205, 201, 101 N.E.2d 897 (1951). Expert testimony is especially
required “when the subject matter involves a question of scientific inquiry which is not within the
knowledge of the lay witnesses or members of the jury.” Adkins v. Yamaha Motor Corp., U.S.A.,
17 N.E.3d 654, 661 (Ohio App. Ct. 2014); see also, McGrath v. General Motors Corp., 26 Fed.
Appx. 506, 511 (6th Cir. 2002); Mohney v. USA Hockey, Inc., 300 F.Supp.2d 556, 577 (N.D. Ohio
2004); Steigerwald at *9. The question of whether the technology contained in Applica’s ultrasonic
pest repeller actually has a repellant effect on the insects, arachnids, and mammals listed on the
product packaging is a highly technical question of science which is not within the knowledge of lay
witnesses or the jury. Therefore, because Plaintiff’s expert did not present any opinion testimony
that was sufficiently supported by reliable scientifically based knowledge, she has no evidence to
show that the product, as designed, is incapable of repelling pests as warranted on the product
packaging.
Plaintiff contends that even without expert testimony, she has presented sufficient evidence
of a breach of warranty to withstand summary judgment. She cites to customer complaints, her own

-13-

testimony, the FTC warnings to other manufacturers, and Defendant’s own testing information.
Even if expert testimony were not required, customer complaints, and the testimony of Ms. Galoski,
herself, are insufficient as a matter of law to show that these products are incapable of performing
as warranted, under any circumstances, due to their design. The fact that two individuals did not
obtain the expected results, and complained to the company is not sufficient evidence of a overriding
design defect in the product. This is especially true where the parties agree that there is evidence
that almost a million Applica devices were sold over the class period. (ECF #55 at 4, Ex. A: Provolo
Dep. Ex. 2). Ms. Galoski’s allegations that she saw a single dead mouse and some spiders following
use of the product is also not evidence of a product wide design defect. Further, as set forth in more
detail above, the FTC warning and the alleged inconsistency in the Defendant’s testing results are
not sufficient evidence that the product did not and could not work under any circumstances. There
is no evidence to show that the FTC warnings were aimed at the Applica product, or even at a
product with the same features and specifications. Further, there is no scientific evidence to show
that the allegedly conflicting results within Defendant’s studies were due to a design failure in the
product. Thus, there is insufficient evidence upon which a jury could find that Plaintiff has met her
burden of proving, by a preponderance of the evidence, that the Applica ultrasonic pest repeller is
incapable of repelling pests as warranted in their packaging claims.

-14-

III. Conclusion
For the reasons set forth above, Defendant’s Motion to Exclude the Testimony of Dr. Roger
Goldberg (ECF #99) is GRANTED.

Defendant’s Motion for Summary Judgment is also

GRANTED. (ECF #100). Judgment is hereby entered in favor of Defendant, and this case is
dismissed with prejudice. IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED: May 24, 2017

-15-