Hickerson v. Yamaha Motor Corporation USA

Filing 104

ORDER and OPIONION granting in part and denying in part 71 Motion in Limine Signed by Honorable J Michelle Childs on 7/29/16.(alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON DIVISION
Deborah Meek Hickerson,
Plaintiff,
v.
Yamaha Motor Corp., U.S.A., and Yamaha
Motor Co., Ltd.,
Defendants.

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Civil Action No. 8:13-cv-02311-JMC

ORDER AND OPINION

This matter is before the court on the Motion in Limine of Defendants Yamaha Motor
Corp., U.S.A. and Yamaha Motor Co., Ltd. (collectively, “Defendants”) seeking to exclude the
expert testimony of Plaintiff Deborah Hickerson (“Plaintiff”). (ECF No. 71-1.) Plaintiff opposes
Defendants’ Motion in Limine. (ECF No 83.) For the reasons explained below, the court
GRANTS IN PART and DENIES IN PART Defendants’ Motion in Limine (ECF No. 71-1.)
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

This action is before the court based on Plaintiff’s personal injury product liability claim
against Defendants. (ECF No. 19.) Plaintiff alleges Defendants’ liability under theories of (1)
strict liability, (2) negligence, and (3) breach of warranty for incidents occurring on June 30, 2012
where Plaintiff was severely injured as a result of falling off of a personal watercraft that
Defendants designed, manufactured, and distributed. (Id. at 2–8.)
The specific personal watercraft Plaintiff was riding when she sustained her injuries was a
Yamaha VXS WaveRunner jet ski. Plaintiff appears to rely on the expert testimony of Dr. Anand
Kasbekar to support her claims that a) the WaveRunner seat should have included a strap for a
passenger to hold on to; b) the WaveRunner seat should have had more sculpting; and c) the

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warnings on the WaveRunner should have been located on the passenger seat. (ECF No. 19 at 3–
4.)
Plaintiff notes that the “reasonable alternative design” on which it relies—specifically, the
more sculpted seat of the Yamaha “Cruiser” jet ski—is a design Defendants themselves “designed,
patented, and assembled.” (ECF No. 83 at 2.) Plaintiff seeks to admit Dr. Kasbekar’s testimony
regarding his examination and testing of the design as well as his proposal of that design as one
that would have prevented Plaintiff’s injuries. (Id.) Plaintiff also argues for the admissibility of
Dr. Kasbekar’s opinions on the WaveRunner’s alleged inadequate warning system. (Id. at 6–7,
10–12.)
Defendants challenge Dr. Kasbekar’s expert testimony on both grounds in its Motion in
Limine. (See generally ECF No. 71-1.) The court consider Defendants’ arguments below.
II.

LEGAL STANDARD

Under Fed. R. Evid. 401, evidence is relevant if (1) “it has a tendency to make a fact more
or less probable than it would be without the evidence” and (2) “the fact is of consequence in
determining the action.” Irrelevant evidence may not be admitted as evidence. Fed. R. Evid. 402.
Relevant evidence may be excluded where “its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
The admissibility of expert witness testimony is specifically governed by Fed. R. Evid.
702, which provides that an expert may offer their opinion 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.

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In determining whether expert witness testimony is admissible, the court evaluates whether it is
relevant and reliable. Daubert v. Merrell Dow. Pharms., Inc., 509 U.S. 579, 589 (1993). In making
an assessment of relevance and reliability, courts, acting as a “gatekeeper” in determining the
admissibility of expert testimony, may consider a number of factors, including: (1) whether a
theory or technique can and has been tested; (2) whether a theory or technique has been subjected
to peer review and publication; (3) the known or potential rate of error, in conjunction with the
existence and maintenance of standards controlling the technique’s operation; and (4) whether
there is “general acceptance” of the theory or technique within the relevant scientific community.
Id. at 589, 592–595. But Daubert’s list of factors is “meant to be helpful, not definitive” and “do
not all necessarily apply even in every instance in which the reliability of scientific testimony is
challenged.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999). The Court of
Appeals for the Fourth Circuit has further stated that “the touchstone of admissibility is whether
the testimony will assist the trier of fact.” Wehling v. Sandoz Pharm. Corp., 162 F.3d 1158, 1998
WL 546097, at *3 (4th Cir. 1998) (table decision).
The Court of Appeals for the Fourth Circuit also identifies two guiding principles for
courts’ decisions on the admissibility of expert witness testimony. Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 261 (4th Cir. 1999). First, “court[s] should be mindful that Rule 702 was
intended to liberalize the introduction of relevant expert evidence” and second “court[s] must
recognize that due to the difficulty of evaluating their testimony, expert witnesses have the
potential to be both powerful and quite misleading.” Id. Regardless, “the proponent of the [expert]
testimony must establish its admissibility by a preponderance of proof.” Cooper v. Smith &
Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).

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III.

ANALYSIS

A. Warning Opinions
1. Parties’ Arguments
Defendants generally argue that Dr. Kaskebar’s expert testimony as to his warnings
opinions should be excluded because he is unqualified to issue a warnings opinions and because
those warnings opinions are unreliable. (See ECF No. 71-1 at 7–10, 15–24.) Defendants
specifically point to Dr. Kaskbekar’s own testimony regarding his lack of expertise, his reliance
on other expert opinions for his testimony, and the fact that Dr. Kaskbekar’s proposed alternative
warnings system “lacks any scientific data.” (See id.) Defendants also argue that the fact that
those opinions do not take into account this case’s facts render them irrelevant and unhelpful to
the jury. (Id. at 25–26.)
In response, Plaintiff contends that Dr. Kasbekar “has training, and has taken classes,
educating himself on warnings related to safe product design and failure analysis and prevention.”
(ECF No. 83 at 6–7.) Plaintiff further states that Dr. Kasbekar has developed opinions in other
cases with warning issues and has consulted with companies on warning-related issues. (Id. at 7.)
Plaintiff maintains that Dr. Kasbekar’s warning opinions are reliable and relevant because he
appropriately consulted another expert and “is free to use his knowledge and training on warnings
and rely on [that] consultation . . . in forming his opinions.” (Id. at 10–11.) Plaintiff asserts that
it is not just a witness “who refers to himself as a ‘warnings expert’” that “can testify to warning
related opinions” as that is not “legal standard for admission of his testimony.” (Id. at 11.)
2. Court’s Review
Plaintiff anticipates Dr. Kasbekar’s opinions on the alleged inadequacy of the jet ski
warnings as these: 1) the warnings are not directed to at-risk passengers and do not communicate

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the specific risks for passengers, 2) they do not provide a shorter warning about orifice injuries
that is located near the at-risk passenger for more visibility, and 3) that “under engineering design
principles of the safety hierarchy, designing out dangers, when feasible, is required if the
alternative design would have prevented th[e] injury.” (ECF No. 83 at 12.) These opinions,
presumably, are related to Dr. Kasbekar’s deposition testimony that the warnings need to be
shorter, moved to the rear part of the jet ski seat, and should include a graphic with the rider
wearing wet suit bottoms of a different color. (See ECF No. 71-7 at 55.) Dr. Kasbekar himself
summarizes his opinion in his report as this: “To the extent the Defendants rely upon the use of
warnings /education to inform users and in particular passengers of the danger of . . . foreseeable
injuries and explain or instruct users on how to reduce or minimize such injury by clothing,
operation, and passenger action, the warnings and instructions used by the defendants are
inadequate and insufficient given the potential for extremely serious injuries.” (ECF No. 71-12 at
2.)
In support of their arguments for excluding Dr. Kasbekar’s expert opinion testimony,
Defendants explain:
[Dr. Kasbekar] has no degree or certification regarding warnings or human factors.
He has never authored an article on warnings. . . . [H]e agrees that his expertise “in
human factors[ 1] is limited,” and he “would not throw [himself] out there as a
human factors expert.” He believes that the development of warnings necessitates
a “team approach,” requiring experts in areas such as Psychology and English. . . .
. Dr. Kasbekar “would not go to a company and say, hey, let me rework your
warning and let’s stick it on a product.” [H]e cannot recall drafting a mock up or
proposed warning in any other case; this is his first attempt. Indeed, he admits that
warnings expertise is not included on his C.V., because “I wouldn’t go out and say
I’m a warnings expert.”

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Human factors is essentially the study of “the interrelationship between human behavior or
capabilities and the surrounding environment.” Douglas R. Richmond, Human Factors in
Personal Injury Litigation, 46 Ark. L. Rev. 333, 335 (1993).
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(ECF No. 71-1 at 16–17 (citations omitted).)
This court finds, however, that these reasons, taken together, are not enough to exclude Dr.
Kasbekar’s warnings opinion testimony on the grounds that he is not qualified. See, e.g, Pineda
v. Ford Motor Co., 520 F.3d 237, 244–45 (3d Cir. 2008) (reversing the district court’s decision
that the expert was not qualified to testify as to inadequate warnings for a products liability claim
based on his own statement that he did not “offer himself as a warnings expert”).
According his C.V., Dr. Kasbekar has his Ph.D. in Mechanical Engineering and Material
Sciences from Duke University and specializes in those fields “with an emphasis on accident
investigation, failure analysis, safe product design, computer simulation and 3D-visualization.”
(ECF No. 66-3 at 1.) Dr. Kasbekar has worked in the areas of “forensic engineering, materials
characterization, product liability, and failure analysis” as part of his consultation work with
Research Engineers, Inc. since 1987. (Id.) He also has “applied his computer expertise to the
areas of accident reconstruction, failure analysis, safe product design, and human factors studies,”
(id.), and additionally has relevant experience and/or post graduate training in “defect and failure
analysis of automotive components.” (Id. at 2.) Dr. Kasbekar also has taught mechanical
engineering at the Duke University School of Engineering since 1995. (Id. at 1.)
This court believes these credentials qualify Dr. Kasbekar to develop and issue the type of
warnings opinion he does in this particular case. The fact that Dr. Kasbekar is not a “human
factors” or “warnings” expert does not mean that there is no “specialized knowledge” he can
provide to inform Plaintiff’s allegations that the jet ski warnings were inadequate. See Holbrook
v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) (“[I]t is an abuse of discretion to exclude
testimony simply because the trial court does not deem the proposed expert to be the best qualified
or because the proposed expert does not have the specialization that the court considers most

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appropriate.”). As to Defendants’ specific arguments, Dr. Kasbekar also testified: “I have training
and expertise with regard to the need for warnings, the basic ingredients of a warning, the purpose
of the warnings, hazard analysis. . . . With regard to ANSI[ 2] standards, the components of a
warning, the need for warnings, where warnings come into the engineering design process I think
I do have expertise in that area.” (ECF No. 83-12 at 5.) And while Dr. Kasbekar “would not go
to a company and say, hey, let me rework your warning and let’s stick it on a product,” he also
states the following: “I may go to the company and say . . . you need to do your risk analysis. Here
are the hazards associated with it. Here are the severity of the hazards. This justifies a warning, the
warning needs to have these ingredients. Here are some suggestions.” (ECF No. 71-7 at 8.)
Finally, litigation experience does not, alone, qualify one as an expert, but courts do
consider it as a weighing factor in determining the qualifications of an individual to provide expert
testimony on warning opinions. See, e.g., St. Pierre v. Maingot, 2003 WL 25689900, at *3 (E.D.
La. 2003) (denying the motion in limine of the defendant, Yamaha Motor Corporation, to exclude
the expert testimony and specifically noting that the expert has “given deposition testimony in at
least 151 cases in the past five years, and has been accepted and testified at trial more than 41 times
in that same period, including several cases involving Yamaha Wave Runners”). Here, Dr.
Kasbekar stated in his deposition testimony that he has testified “several dozen” times with regard
to warnings opinions. (ECR No 71-1 at 6.)
Insofar as Dr. Kasbekar expert testimony would consist of the conclusions he makes in his
report, the court finds that he is qualified to issue those opinions in the form of expert testimony.
The court then proceeds to Fed. R. Evid. 702’s remaining requirements that the testimony
be “based on sufficient facts or data,” be “the product of reliable principles and methods,” and that

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American National Standards Institute
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the expert “reliably appl[y] the principles and methods to the facts of the case.” As Defendants
correctly note, courts have concluded that “the same reliability requirements that apply to
alternative design apply to alternative warnings.” Bourelle v. Crown Equip. Corp., 220 F.3d 532,
538 (7th Cir. 2000). Because the Daubert factors apply to expert testimony regarding alternative
design, the court evaluates the warnings opinion testimony under that same standard.
To inform both his opinion on the inadequacy of the product’s warning and his proposal
for an alternative warning system in this case, (see ECF No. 76-8), Dr. Kasbekar stated that he
reviewed the product’s warning and placement and consulted with Dr. Mike Maddox, who holds
a Ph.D. in industrial engineering. (ECF No. 71-7 at 48–49 (“[W]e together as a team went back
and forth and came up with a seat label.”).) Dr. Kasbekar also apparently relied on the affidavit
of a Dr. Edward Karnes that contained opinion information on the inadequacy of a PWC warning
in a separate products liability case. (See ECF No. 71-7 at 13–16.)
Defendants mainly contend that because Dr. Kasbekar’s proposed warning system has not
been tested and that he cites no studies to support his opinion, his testimony lacks scientific data.
(ECF No. 71-1 at 23–24.) It is not evident that a warnings experts’ testing of a proposed alternative
warning system is a brightline requirement for a court to deem the opinion reliable under Daubert.
See, e.g., Thomas v. Bombardier Recreational Prods, Inc., 2010 WL 4188308, at *6 (M.D. Fla.
2010) (citations omitted) (concluding that under appellate precedent, the parties were “incorrect in
arguing that an expert cannot be allowed to testify without testing [the expert opinions of warnings
placement on a personal watercaft]” and further stating that “[a]n expert may testify to an opinion
which is based on experience, training, or education, and not upon the scientific method, if the
Court finds the opinion sufficiently reliable”); Jaurequi v. John Deere Co., 971 F. Supp. 416, 428–
29 (E.D. Mo. 1997) (concluding, under review for summary judgment, that the expert opinion met

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Daubert’s reliability requirements despite the expert’s statement that “he had done no testing as to
whether any of his suggested warnings would have changed the plaintiff’s behavior or prevented
the accident”). Nonetheless, as Defendants demonstrate, other courts have emphasized whether
an expert’s proposed warning system has been tested, among other factors, for their purposes of
determining reliability. (See ECF No. 71-1 at 22 (citing relevant cases).)
As Defendants rightly point out, however, not only has Dr. Kasbekar not tested his
proposed alternative warning system, but also he provides no specific relevant research or
studies—in neither his deposition testimony or his report—on which he relies to inform his
proposed warnings system or his opinion that the warnings are “inadequate and insufficient.” (ECF
No. 71-12 at 2.) For example, he specifically acknowledges, himself, that he cites no “authoritative
piece of research” that would indicate that warnings on the seat would be read more than warnings
on the craft itself. (ECF No. 71-7 at 49.) Moreover, Dr. Kasbekar stated in his deposition
testimony that 1) he does not feel “qualified to author a warning from start to finish that would be
ready to be placed on a product;” 2) he has never authored any articles on warnings; and 3) he
knows of no other PWC manufacturer that has a warning on the seat like he proposes. (Id. at 3,
6.)
Plaintiff’s response that Dr. Kasbekar relies on “years of experience,” “classes and
education,” and “knowledge” to develop his proposed warning system opinion, (ECF No. 83 at
10–11), do not overcome what this court deems as deficiencies under Daubert’s standard for
reliability for him to be able to opine to a jury the opinion he proffers in his report or, as he states
in his deposition testimony, that “[t]he warning that we’re proposing be put on the seat would have

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had a greater impact than the existing warnings on the jet ski.” 3 (ECF No. 71-7 at 49.) This court
concludes that Dr. Kasbekar’s proposed warning system opinion is not “based upon sufficient facts
or data” and is not “the product of reliable principles and methods” under Fed. R. Evid. 702.4 See,
e.g., Thierfelder v. Virco, Inc., 502 F. Supp. 2d 1025, 1032 (W.D. Mo. 2007) (concluding that the
expert opinion testimony was reliable under Daubert because he had “drafted multiple warnings
about the danger posed by furniture himself in his 30 years of experience as a design and safety
engineer”).
This court therefore grants Defendants’ Motion in Limine with respect to Dr. Kasbekar’s
proposed warnings system opinion. 5
B. Design Defect Opinions
1. Parties’ Arguments
Like its arguments regarding the warnings opinion, Defendants challenge the qualifications
of Dr. Kasbekar as to his expert testimony on the design defect opinions. Defendants argue that
the opinions should be excluded because having an engineering degree does not necessarily
“qualify [Dr. Kasbekar] to testify on the design and functioning of any and all products.” (ECF
No. 71-1 at 26–27.)

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Indeed, Dr. Kasbekar also followed that proposed opinion up with this: “Quite frankly, I think
the jury can look at what’s there and will propose for themselves and make the decision on their
own.” (ECF No. 71-7 at 9.)
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Given the court’s ruling on Dr. Kasbekar’s proposed warning system opinion, the court finds it
unnecessary to address Defendants’ argument of Dr. Kasbekar’s inadequate “regurgitate[ion]” of
other experts to form his proposed warnings system opinion, (see ECF No. 71-1 at 19), and their
argument that Dr. Kasbekar’s proposed warning system opinion would be “of no assistance to the
jury.” (Id. at 25–26.)
5
In her Amended Complaint, Plaintiff argues that the warnings Defendants provided for its product
were “in violation of ANSI standards.” (See generally ECF No. 19.) The court makes no
admissibility findings at this time as to any potential expert testimony from Dr. Kasbekar on ANSI
standards, generally.
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Defendants further argue that the design defect opinions are inadmissible because the
underlying “methodology and bases” for the opinions are unreliable. Defendants specifically point
to the fact that 1) the videotaped water testing in Florida (utilizing the Cruiser seat and a seat strap)
Dr. Kasbekar relies on for his opinion fails to take into account the specific facts at issue in this
case, (Id. at 28–31) and 2) the computer simulation (testing the Cruiser seat design) Dr. Kasbekar
relies on to reach his design defect opinions “does not reliably recreate the accident at issue and is
not relevant or helpful to the trier of fact.” (Id. at 32.) Lastly, Defendants contend that if this court
deems either of his warning or his defective design opinions inadmissible, then all of the opinions
must be excluded because, according to Defendants, Dr. Kasbekar claims that the “implementation
of one of his proposed changes without the others would not make the craft reasonably safe.” (Id.
at 35.)
Plaintiff responds that the Florida water-testing is reliable because Dr. Kasbekar
“duplicated the exact tests that Yamaha ran” on its Cruiser seat on the same jet ski model (the
WaveRunner) in dispute here. (ECF No. 83 at 8.) Plaintiff further states that the testing conditions
were “substantially similar” to those circumstances of the actual accident. (Id.) As to the computer
simulation testing, Plaintiff explains that the simulation was to test the Cruiser seat’s back
bolstering by “isolating [its] geometry” and further maintains that the Dr. Kasbekar can
authenticate the simulation testing for admissibility purposes. (Id. at 8–9.)
2.

Court’s Review
Dr. Kasbekar’s design defect testimony essentially is that a Cruiser seat (as opposed to the

standard seat) and a seat strap were reasonable alternative designs to mitigate or exclude Plaintiff’s
injuries. (See ECF Nos. 83 at 2; 71-12 at 1–2.) To reach his opinion, Dr. Kasbekar relied on
testing, which consisted of 1) a computer simulation intended to highlight the differences between

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the standard seat and the Cruise seat and 2) a water testing, in which both the standard seat and the
Cruiser seat along with a strap were tested to demonstrate the effects of those modifications on
rearward movement. (ECF No. 71-1 at 28–29.)
The court first observes that, contrary to Defendants’ assertions otherwise, (see ECF No.
83 at 6), Dr. Kasbekar is qualified to provide expert testimony as to his design defect opinions for
the same reasons this court already discussed supra Part III.A.2 with respect to the warnings
opinions. Defendants’ arguments that Plaintiff has no professional training in the personal
watercraft industry and that his C.V. indicates no significant experience in boating or design, (see
ECF No. 71-1 at 27), are not enough to overcome his qualifications as an expert engineer with
extensive professional and academic experience to issue the design defect opinions he reaches in
this case.
Having determined that Dr. Kasbekar is qualified to provide expert testimony as to his
design defective opinions in this matter, the court next turns to the reliability of the water testing
and computer simulations on which his opinions rest.
a. Water Testing
Under Daubert’s guidance, the court finds unavailing Defendants’ arguments that Dr.
Kasbekar’s design defect testimony should be excluded because the water testing’s conditions
were so “dissimilar from and irrelevant to the facts at issue.” (ECF No. 71-1 at 30.)
The Court of Appeals for the Fourth Circuit has stated that expert testimony should be
excluded if it relies on product tests under “such different circumstances” that the results are
“largely irrelevant.” Chase v. Gen. Motors Corp., 856 F.2d 17, at 20–22 (4th Cir. 1998). But this
court does not find “such different circumstances” here with regard to Dr. Kasbekar’s water testing
that warrant exclusion of his design defect testimony based on those tests.

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Of course, no testing circumstances will perfectly mirror those of the specific factual
circumstances of a given case. Moreover, testing conditions do not have to be so in order to be
deemed reliable and relevant. See U.S. v. Russell, 971 F.2d 1098, 1106 (4th Cir. 1992) (observing
that for the purposes of admitting evidence of experiments made out of court, “simulated
conditions . . . need only be ‘substantially similar’; they need not be ‘identical’”); Tunnell v. Ford
Motor Co., 330 F. Supp. 2d 731, 746 (W.D. Va. 2004) (evaluating the expert testimony in the
products liability context and stating that “[p]erfect identity between experimental and actual
conditions is not required”).
The differences between the water testing conditions and the facts of this case 6 that
Defendants highlight are not so significant that testimony based on the tests altogether should be
excluded for irrelevance. As Plaintiff notes: 1) “the testing utilized the exact PWC the Plaintiff
was injured on, 2) “the testing was done on the water, not on land simulating water-like
conditions,” 3) “the test subject was seated at the rear of the craft,” and 4) “ the testing was done
during the initial acceleration of the craft.” (ECF No. 83 at 8.) The court deems these similarities
between the water tests and the factual circumstances of this case “substantially similar” and
therefore able to withstand Defendants’ arguments that Dr. Kasbekar’s testimony based on the
tests should be excluded for unreliability and irrelevance under Rule 702 of the Federal Rules of
Evidence. Russell, 971 F.2d at 1106. To the extent that Defendants find any differences between

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Defendants note the following differences that they argue warrant the exclusion of Dr. Kasbekar’s
design defect testimony based on his water testing: 1) that the actual accident involved “four riders
with a combined weight of 450 pounds,” and the water testing utilized “two male riders with a
combined weight of 325 pounds,” 2) that all of Dr. Kasbekar’s water tests showed rider ejection
from the craft when acceleration was over .4 Gs despite his acknowledgment that “the acceleration
capability of the craft with four riders would be less than .3 Gs,” and 3) that “the riders in the
water testing are shown with their feet underneath them, with their legs prepared to push back in
the videotapes showing rearward ejection, but their feet and legs forward in the videotapes
featuring the Cruiser seat and seat strap, where they were able to hold on.” (ECF No. 71-1 at 30.)
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the testing conditions and the factual circumstances important for challenging Dr. Kasbekar’s
opinions on reasonable alternative designs, Defendants can highlight those differences for a jury.
See id. (affirming a district court’s admission of expert testimony and concluding that “[t]he
significance of . . . differences” between the testing conditions informing the testimony and the
actual conditions “clearly was a question of weight for the jury, not a question of admissibility for
the [district] court”).
b. Computer Simulation
The court also finds Dr. Kasbekar’s computer simulations, which partly forms the basis
of Dr. Kasbekar’s opinions, reliable under the Daubert factors.
As a threshold matter, the court observes that the Fourth Circuit has previously declined
to adopt a “rigid standard for the admissibility of computer animated videotape simulations.”
Strock v. S. Farm Bureau Cas. Ins. Co., 998 F.2d 1010, 1010 (4th Cir. 1993) (table decision).
Further, it has held that “trial judges [] are in the best position to consider the relevancy of offered
evidence and to weigh its probative value against its potential prejudicial effect.” Id. (citing Reed
v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1199 (4th Cir. 1982).
Because “computer simulations are treated as a form of scientific evidence, offered for a
substantive, rather than demonstrative purpose,” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534,
560 (D. Md. 2007) (citations omitted), courts have required simulations to be authenticated. Id.
The United States District Court of Maryland has stated that “use of an expert witness to
authenticate a computer simulation likely will also involve Federal Rules of Evidence 702 and
703.” Id. Defendants cite to at least one other court that has considered the following in evaluating
whether an expert can provide a foundation for the admissibility of a simulation:
(1) the qualifications of the expert who prepared the simulation; (2) the capability
and reliability of the computer hardware and software used; (3) the calculations
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and processing of data were done on the basis of principles meeting the standards
for scientific evidence under [Fed. R. Evid.] 702; (4) the data used to make the
calculations were reliable, relevant, complete, and properly inputted; and (5) the
process produced an accurate result. Simulations which are not properly
authenticated are excluded.
Bullock v. Daimler Trucks N. Am., LLC, 819 F. Supp. 2d 1172, 1175 (D. Colo. 2011) (quoting 5
Federal Evidence § 9:26 (3d ed. 2010).)
Dr. Kasbekar stated in his deposition testimony that he consulted with Altair Engineering
Group (“Altair”) and relied on its programming assistance to complete his simulations. (ECF No.
71-7 at 20.) Defendants argue that Plaintiff cannot authenticate Altair’s computer simulation
because he cannot “offer[] up Altair’s work product as his own” and did not “create[] the
simulation at Altair.” (ECF No. 71-1 at 33.) Defendants also suggest that Dr. Kasbekar is not in
a position to testify on the capability and reliability of the hardware and software Altair used. (Id.)
Plaintiff counters that Dr. Kasbekar can authenticate the simulation because Dr. Kasbekar
“developed the inputs by modeling the seat characteristics” in the simulation; he “chose a validated
test dummy, and disclosed the inputs to the defense”; he “reviewed the results for accuracy of the
model;” and he is “familiar with and used accepted software.” (ECF No. 83 at 10.) After
reviewing the record, this court agrees with Plaintiff and concludes that Dr. Kasbekar is in a
reasonable position to authenticate the computer simulations as an expert witness given his
extensive involvement in the simulation design. (See ECF No. 71-7 at 20–21.)
Regarding the admissibility of simulations as to reliability, as Plaintiff notes, courts have
recognized that “analyzing computer simulations under Daubert” requires “ask[ing] whether the
simulation has been tested, subjected to peer review, has a known error rate, and has general
acceptance in the scientific community.” In re Yamaha Motor Corp. Rhino ATV Prods. Liab.
Litig., 816 F. Supp. 2d 442, 460–61 (W.D. Ky. 2011) (citations omitted). Courts have also

15

recognized that the Daubert factors do not apply to computer simulations as they normally would
to standard expert testimony. Livingston v. Isuzu Motors, Ltd., 910 F. Supp. 1473 (D. Mont. 1995).
Defendants argue that the simulation should be excluded as unreliable because Dr.
Kasbekar instructed Altair to “model the seats as ‘rigid objects” and to input a “friction coefficient”
that does not “reflect a human sitting on an actual seat.” (ECF No. 71-1 at 32.) Defendants also
challenge the discrepancies between the “horizontal forces” Altair applied in the simulation and
those Dr. Kasbekar applied in the water testing. (Id.)
Defendants’ arguments fail. Here, Dr. Kasbekar explains that he modeled the seat as more
rigid, with less coefficient of friction, and without real human interaction to isolate the geometry
of the seat as a factor, which apparently was the intended relevant purpose of the simulation. (ECF
No. 71-7 at 29–31.) Moreover, as Plaintiff mentions, Dr. Kasbekar seems to have relied on
respectable models and methods in designing the simulation. (Id. at 25.). As far as the “horizontal
forces” Defendants criticize, the court first fails to understand why, as Defendants seem to suggest,
simulation conditions necessarily have to match the water testing conditions in order for the
simulation to be reliable. Regardless, Dr. Kasbekar provides a reasonable explanation for the
discrepancies between the simulation and the testing. (Id. at 36–38.) Plaintiff concludes that “[a]t
these acceleration levels [ Dr. Kasbekar applied], and with the geometry isolated, the testing aids
the jury in determining if the bolster contoured on the back of the seat assists and prevents a rear
passenger from coming off the back during initial accerleration [sic].” (ECF No. 83 at 9.) Given
the apparent purpose of the simulation and reasonable methods applied to achieve that purpose,
the court finds no reason to disagree with Plaintiff and concludes that the simulation is reliable.
Finally, the court rejects Defendants’ catchall argument that the inadmissibility of one of
Dr. Kasbekar’s opinions requires all of his opinions to be excluded. (See ECF No. 71-1 at 33–34.)

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In support of their argument, Defendants point to a few sentences of Dr. Kasbekar’s deposition
testimony to argue that his conclusion is that “the implementation of one of [his] proposed changes
without the others would not make the craft reasonably safe.” (Id. at 34). Dr. Kasbekar’s report,
(see ECF No. 71-12), does not appear to explicitly conclude that the “warnings and design opinions
are dependent upon each other.” (ECF No. 71-1 at 15.) Moreover, though Dr. Kasbekar suggests
that he “look[ed] at the entire design” in formulating his opinions about alternative warnings and
designs, (see ECF No. 71-1), it is not apparent to this court how deeming the proposed warning
system opinion unreliable necessarily renders the design opinions unreliable—Dr. Kasbekar’s
opinions on these two issues did not involve the same “facts or data” or “principles and methods.”
Fed. R. Evid. 702. And it does not seem reasonable to conclude from Dr. Kasbekar’s testimony
that he believes it is only his combination of alternative warnings and designs that would have
made the personal watercraft reasonably safe.
IV. CONCLUSION
Based on the aforementioned reasons, the court hereby GRANTS IN PART and DENIES
IN PART Defendants’ Motion in Limine to Exclude Plaintiff’s Expert Opinions (ECF No. 71-1).
Specifically, Dr. Kasbekar’s testimony as to the proposed warnings opinion will be excluded.

IT IS SO ORDERED.

United States District Judge
July 29, 2016
Columbia, South Carolina

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