McCulloch v. Tahsin Industrial Corp., USA
Filing
77
MEMORANDUM OPINION. Signed by Judge Elizabeth K. Dillon on September 27, 2022. (ca)
Case 6:20-cv-00035-EKD-RSB Document 77 Filed 09/27/22 Page 1 of 30 Pageid#: 4157
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
CODY MCCULLOCH,
Plaintiff,
v.
TAHSIN INDUSTRIAL CORP., USA,
Defendant.
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Civil Action No. 6:20-cv-00035
By: Elizabeth K. Dillon
United States District Judge
MEMORANDUM OPINION
Cody McCulloch was installing a treestand used for hunting when the support cables failed
and he fell twenty feet to the ground, suffering serious and permanent injuries. McCulloch is suing
the manufacturer of the treestand, Tahsin Industrial Corp., for breach of the implied warranty of
merchantability, arguing that the design was unreasonably dangerous and that the warnings were
inadequate. Tahsin moves for summary judgment and to exclude plaintiff’s expert witness,
Charles Powell. (Dkt. Nos. 49, 50.) McCulloch moves to exclude Tahsin’s expert witnesses
George Saunders, Lorne Smith, and Kimberly Kushner. 1 (Dkt. No. 54.)
For the reasons stated below, Tahsin’s motion for summary judgment will be granted in part
and denied in part; Tahsin’s motion to exclude Powell will be denied; and McCulloch’s motion to
exclude expert testimony will be denied.
I. BACKGROUND
A. Treestand and Accident
The subject treestand is an Ameristep Hang-On Treestand, model WMHO-201, that was
manufactured in 2013, seven years before the subject accident, with a rated weight capacity of 300
1
McCulloch also moved to exclude testimony from Barbara Byers (Dkt. No. 54), but in response, Tahsin
states that it did not designate Byers as a testifying expert witness. The court will dismiss McCulloch’s motion to
exclude Byers as moot.
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pounds. (Instruction and Safety Manual, Ex. B, Dkt. No. 61-1.) This is a standard hang-on
treestand (also known as fixed position), which is a particular style of treestand that is affixed to the
tree at height through the use of straps. Hunters gain entrance to these stands through the use of
climbing aids such as stick ladders and tree steps, which are sold separately. The seat platform is
secured to the seat support frame by two steel support cable assemblies. The product is used for
hunting which allows the hunter to sit at an elevated position in a tree above and closer to the game
they are hunting.
On October 3, 2019, plaintiff had installed the subject treestand on a tree for a future hunt
with his son (where he had previously installed another hang-on treestand and stick ladders) and
was standing on the foot platform preparing to descend. He claims that the steel support cables that
attach the foot platform to the frame separated causing him to fall to the ground. (McCulloch Dep.
104–05, 110, 113–14, Ex. G, Dkt. No. 61-3.) He was not connected to the tree with a safety
harness or climbing lineman’s belt, contrary to the warnings and instructions. (Id. at 48.)
B. Design and Testing
Tahsin began manufacturing treestands in 2001. Because the hunter uses the treestand in an
elevated position, Tahsin provided an entire hunting system, which included not only the hang-on
treestand, but also a full body safety harness that attached around the hunter and connected to the
tree in the event of a fall, as well as written warnings and instructions and a safety video. (See
Instruction and Safety Manual; Instructions and Warnings for Safety Harness, Ex. C, Dkt. No. 61-2;
Safety DVD, Ex. D, Dkt. No. 63-3.)
The subject treestand was designed and manufactured to comply with applicable
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TSM/ATSM standards. (Testing Documents, Ex. E, Dkt. No. 62-1.) It was tested by an
independent third-party laboratory and found to be in full compliance with all applicable treestand
industry TMS/ASTM standards. The third-party laboratory confirmed that the treestand, including
the cables, was more than strong enough for a loaded capacity of 300 pounds. (Testing
Documents.) The subject treestand was also tested in-house for quality control and found to be in
full compliance with applicable TMS/ASTM standards as well as all design specifications for this
product before this model was introduced to market. (Def.’s Third Supp. Answers to Interr. No. 8,
Ex. F, Dkt. No. 62-2.) The cable assemblies are designed to carry significantly greater capacity
over that of the expected load during normal use. (Affidavit of G. Saunders ¶ 25, Ex. I, Dkt. No.
64-4.) This was confirmed by the testing by plaintiff’s expert, which demonstrated an ultimate
strength of 1,606 pounds, which is five times the maximum expected static load at the maximum
user weight of 300 pounds, with a safety factor of nine. (Id. ¶¶ 24–25.)
The steel wire cables used on the subject treestand are zinc-plated (electro-galvanized),
which were certified by the cable supplier and constituted an appropriate manner in which to guard
against corrosion in applications such as treestands. (Affidavit of M. Vogler ¶¶ 10–11, Ex. H, Dkt.
No. 62-4.) The cable assemblies are covered with a black exterior polymer sleeve over the
majority of their length as well as heat shrink tubing to cover the crimped end connector and copper
terminal regions of the cable assemblies.
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Both the material and design of the subject steel cables have not changed since the cables’ initial
design in 2005, other than extending the plastic coating to the ends of both sides of the steel cables
where the cables connect to the treestand foot platform and support frame. The manufacturer
continues to use the same cable system today, and approximately 1.8 million of these steel cables
are currently on the market utilizing the same cable supplier, cable components and materials,
manufacturing process and design.
The galvanized zinc coating used on the steel cables acts as an anti-corrosive treatment to
protect the underlying steel from exposure to the elements, such as moisture and oxygen. (Vogler
Aff. ¶ 11.) The ends of the steel cables are lopped and crimped with a copper tube to provide eyeloops to attach it to the platform. The use of a copper crimp is a widely used method in the steel
wire industry. The material and overall configuration of the subject treestand and cables has been
used over the last two decades. Every major manufacturer of hang-on treestands, similar to the one
at issue in this case, uses a similarly configured product. (Saunders Aff. ¶ 25.)
Prior to 2013, the cables on at least some of Tahsin’s hang-on stands were uncovered,
allowing the user to visibly see the cable. (Deposition of Alyssa Debiak 56, 80, Ex. T, Dkt. No.
58-7.) Starting in 2013, defendant implemented a design change, which consisted of a shrink wrap
rubber coating that went around the cable system. Plaintiff maintains that the rubber coating went
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around the entire cable system. (Debiak Dep. 56; Report of George Saunders 75, Ex. AA, Dkt. No.
58-14.) Tahsin contends that the coating was not added to the entire cable, just the ends of the
cable as the middle part had always been coated. (Def.’s Third Supp. Answers to Interr. No. 19.)
The failed cable assemblies were constructed using a copper ferrule to crimp the tag end of
the wire rope. (Ex. W, Dkt. No. 59-9; Report of Charles Powell 4, Ex. N, Dkt. No. 58-1.) Copper
is a material that is more cathodic than either zinc or iron in the galvanic material series and will
result in the accelerated corrosion of both wire rope elements when these materials are placed in
contact with each other in the presence of an electrolyte like environmental water. (Powell Report
4–5; Deposition of Michelle Vogler 44–45, Ex. Q, Dkt. No. 58-4.) The accelerated corrosion and
fracture point for both of the subject wire cables occurred adjacent to the copper ferrule where the
wire rope diameter was doubled. (Powell Dep. 5.) Defendant performed no testing before making
the 2013 design change with regard to the rubber coating’s effect after being exposed to the
environment. (Powell Report 7; Debiak Dep. 63–64.)
Defendant discontinued manufacturing treestands in 2013. Primal Vantage took over
defendant’s clients and sold 357,932 hang-on treestands with the same overall steel cable design as
the subject treestand from 2013–19. (Def.’s Answer to Pl.’s Second Interr. No. 24, Ex. V, Dkt. No.
64-7.) That equals 715,864 individual cables, but defendant sold only 764 replacement cables from
2013–19. (Ex. U, Dkt. No. 60-5.)
Defendant had knowledge of the cables on its treestand breaking in certain instances. (See
Ex. U.) Defendant knew that treestand users sometimes do not properly wear their safety harness.
(Deposition of LJ Smith 26, 27, Ex. S, Dkt. No. 58-6.) Defendant also knew that treestand users
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sometimes do not read or follow the instruction manual. (Id. at 27.)
C. Warnings
The subject treestand was provided with written warnings and instructions, as well as the
warning label affixed directly to the treestand, that provided the user with pertinent information
related to the safe and proper use of the product. (Instruction and Safety Manual.) One of the first
warnings indicates “Always Wear a Safety Harness with this Product.” The written warnings
included detailed instructions. 2 Under the “Proper Care and Maintenance” section, additional
2
“Warning Every year serious injury and even death occurs from hunting related falls. To ensure your
safety, please COMPLETELY read and follow this safety manual and ALL warning labels BEFORE assembling,
installing or utilizing this product.
Please read the following instruction manual and warnings labels completely before utilizing this product.
Failure to understand and execute the instructions and warnings may result in serious injury or death . . . .
ALWAYS read and understand all warnings and instructions. Watch the enclosed DVD in it’s entirety before
doing anything with this product including assembly, installation etc. before each use of this product. Failure to read
and understand all warnings and instructions and DVD material may result in serious injury or death.
ALWAYS inspect the tree stand and the Fall Arrest System (FAS) (Harness) for signs of wear or damage
BEFORE each use. Also inspect to ensure that nuts and bolts are secure. Pay special attention to the harness and
straps, guaranteeing that nothing has been frayed or severed. Destory all products that cannot be repaired by the
manufacturer. Contact a Customer Service Representative for replacement parts. The Fall Arrest System MUST be
discarded and replaced after a fall has occurred.
ALWAYS keep instructions (written and video) in a safe place and review before each use. It is the
responsibility of the treestand owner to furnish the complete instructions to anyone who borrows or purchases the
treestand from you.
NEVER use this treestandfor any use other than hunting. Our treestands are designed for hunters to wear a
Full Body Harness. If you are not completely comfortable and confident with your ability to safely install, ascent, hunt
and descend using a Full Body Harness and this treestand, DO NOT PROCEED.
DO NOT leave your treestand outside since weather or animals may cause damage. Tree growth can also
cause stress and damage straps and buckles. It must be stored inside when not in use.
ALWAYS wear a Fall Arrest System (FAS) (Harness) consisting of a full body safety harness with lineman’s
belt after leaving the ground. A TMA Certified Full Body Harness with lineman’s belt must always be connected to
yourself and the tree during ascending, hunting and descending. The use of a lineman’s belt is REQUIRED AT ALL
TIMES during ascending, hunting and descending the tree stand. When using a lineman’s belt to ascend the tree, the
full body harness MUST be attached to the tree before stepping onto the tree stand. The length of the harness tether
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warnings and instructions are provided:
o
o
o
Inspect for defects (damage, rot, corrosion, cracks, freezing,
excessive heat, etc.) before every use is required.
We
recommend
replacing
the
hardware/cables/nuts/bolts/clips on your treestand every
two (2) years or sooner if inspection finds it necessary. Use
only Primal Vantage approved replacement straps and parts.
Use of any other straps or parts, will be viewed as a
modification of the product . . . . Failure to follow these
instructions may result in serious injury or death.
DO NOT overtighten the hardware. DO NOT use a socket
wrench. This can lead to structural damage and may
negatively affect the performance of your stand. Failure to
follow these instructions may result in serious injury or death.
(Instruction and Safety Manual 4 (highlighting emphasis added).) The two-year cable replacement
instruction was added in 2013 for all of Tahsin’s hang-on treestands. The two-year replacement
instruction was added to ensure that the cables were safer for use by the consumer regardless of
exposure during those two years. (Debiak Dep. 65–66.)
The written warnings and instructions also provided the following attachment instruction to
be completed before the user leaves the ground:
STEP 1: While wearing your safety harness, connect your climbing belt
to the tree following manufacturer’s instructions. Climb to the desired
height using your climbing aid. Once you have reached the desired
height, hoist your treestand into position.
STEP 6: When moving from your climbing aid to your Hang-On Tree
Stand, step down from the aid to the stand as showing in Fig. 6.
Cautiously put your weight on the stand’s platform. The additional
strap must be minimized at all times. It should be adjusted so that it is above the head with no slack in the sitting
position and you should have the minimum amount of slack possible when climbing. You MUST stay connected at all
times after leaving the ground while using climbing aids, hang-ons and climbing tree stands. Single safety belts and
chest harnesses are no longer allowed and should NEVER be used. If you are not weating a Full Body Harness
properly attached to the tree, that is protecting you from a fall, DO NOT leave the ground. Failure to wear your Full
Body Harness may result in serious injury or death. Falls can occur at anytime after leaving the ground.” (Instruction
and Safety Manual (emphases in original).)
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weight will crate tension on the tree attachment strap and cables.
In addition, the warning label affixed to the subject treestand provided additional warnings
and instructions regarding the importance of remaining secure to the tree at all times, stepping down
on the platform from the climbing aid, inspecting the product before each use for wear or damage:
Plaintiff was provided instructions and warnings with his after-market safety harness that he
used when hunting. Specifically, the Tree Spider Harness instructions reinforced the importance of
using a safety harness and on how to properly remain connected to the tree when installing and
using a hang-on treestand, noting that “if you will be using a non-Climbing (fixed or hang-on)
treestand: The use of a lineman’s style climbing belt is required when ascending, descending and
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installing a hang-on treestand.” (Safety Harness Instruction 4, Ex. J, Dkt. No. 51-10.) It provided
instruction on how to use the lineman’s belt with illustrations. (Id.)
D. Plaintiff’s Use of the Subject Treestand
Plaintiff is a life-long hunter and explained that he has owned approximately 60–70
commercial treestands over the years. (McCulloch Dep. 35, Ex. G, Dkt. No. 61-3.) He admitted
that in the last ten years, treestands he purchased always came with full body safety harnesses and
safety DVDs. He recalled that he had watched the safety DVD for treestand use and recalled there
being specific instructions related to how to properly use a safety harness and how to use a safety
harness with a hang-on treestand. Plaintiff did not specifically recall receiving the warnings and
instructions for the subject treestand, which was purchased by his uncle. However, he testified that
had he received the written warnings and instructions, he would not have read them in their entirety
and “may have breezed through them” instead. (Id. at 32, 71–72.) Plaintiff recalled the warning
label being affixed to the treestand—specifically noting that it stuck out to him, but he never
reviewed the contents of the warning label. (Id. at 73.) Contrary to the warnings and instructions,
plaintiff admitted that he may have removed the warning label because of the reflection on it or the
weather took it off. (Id. at 73–74.)
Even though plaintiff admitted to not having read or reviewed the warnings and instructions
for the subject treestand, he agreed that it is a good idea to follow the manufacturer’s warnings and
instructions on how to safely use the product and it is important to follow assembly and installation
instructions provided. He admitted that it is important to follow the manufacturer’s instructions on
how to properly care for and maintain a product and how to utilize the safety equipment with a
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product like a treestand. He further acknowledged the importance of following any replacement
part schedule provided by a manufacturer. He would try and follow the manufacturer’s warnings
and instructions because not doing so would increase the likelihood of an accident. (McCulloch
Dep. 52–53.)
Plaintiff further admitted that had he been aware of the instruction to replace the steel cables
every two years, he would have complied and replaced them. He further acknowledged that based
on the treestand being manufactured in 2013, he should have replaced the cables about four times
before his accident occurred.
Plaintiff’s uncle, William Ayers, purchased the subject treestand at Walmart, but he could
not recall its year of purchase. (Ayers Dep. 23–24, Ex. K, Dkt. No. 51-11.) Plaintiff
acknowledged he cannot dispute that the subject treestand was manufactured in 2013 and would
have been purchased that same year. (McCulloch Dep. 132.) At the time of purchase, Ayers
bought two identical treestands, keeping one for himself and giving the other to plaintiff. Ayers
did not recall giving plaintiff the written warnings and instruction that were in the box with the
subject treestand. Ayers had already taken the treestand out of the box when he gave it to plaintiff.
Plaintiff admitted there were no missing parts for the stand.
Plaintiff testified that the subject treestand had already been installed in a tree the first time
he saw it. He never saw any of the instructions that came with the treestand. He never asked
Ayers to see the instructions because he had seen a lot of treestands over the years and did not need
to review specific instructions.
In its first hunting season, the subject treestand remained installed on the tree from
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September to January or February. He removed the treestand after the first season, and then he
took it to different farms. Plaintiff used the subject treestand about ten times a season each year
until the day of the accident, for a total of around 70 uses.
Plaintiff knew the importance of properly maintaining and inspecting his treestand and its
components, including the cables and steel exposed to outdoor elements. He knew not to leave his
hunting equipment out exposed to the elements for long periods of time. He understood that the
steel and strap material of treestands will start to deteriorate and corrode over time if left exposed to
environmental elements. Even knowing this, plaintiff admitted that his standard procedure was to
install his hang-on treestand at the beginning of the hunting season and leave it on the tree until the
season ended around January or February. Plaintiff called the subject stand his “travelling stand”
that he would move around to different spots.
Plaintiff knew that it was important to inspect the treestand before each use. He knew to
inspect the steel components for rust and would look at any exposed metal on the cables for
“excessive corrosion.” Based on his experience with many treestands, he knew that there are times
when you need to make the decision to remove a treestand from service or replace parts because it
is no longer safe to use based on decay and corrosion. He further noted that if there were any signs
of damage to the steel frame or support cables, he would not use it. Ayers and plaintiff would
always complete treestand inspections together, but plaintiff acknowledged that he never replaced
any cables on his treestands. Instead, he would just get rid of them if there was any kind of wear.
The only maintenance plaintiff performed on the subject treestand was replacing bushings
on the bottom vertical support bar because they were squeaking. He replaced these bushings the
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morning before the accident occurred. He also wrapped his seat cushion in waterproof tape
because it had been “chewed up” (deteriorated). There were no other replacements or maintenance
to the stand since 2013. Other than the squeaking bushings, there were no operational problems
with the subject treestand. Prior to his accident, plaintiff was aware that the cables for the other
treestand he purchased at the same time as the subject treestand had broken. 3
Plaintiff would have replaced the cables if he knew it was required. If he had seen a
warning on the stand in any place, telling the user to replace the cables every two years, he would
have done so. (McCulloch Dep. 140, 155–56.)
E. Plaintiff’s Accident
On the day of his accident, plaintiff was not hunting, he was hanging the subject treestand
before hunting season. Even though he appreciated the risk of falling when installing a hang-on
treestand, he was not wearing his safety harness. Plaintiff already had another hang-on treestand
and the climbing sticks installed in the tree adjacent to where the subject treestand was being
installed. He installed the climbing sticks and Millennium hang-on treestand sometime in the very
beginning of September or the last week of August. Plaintiff was installing the subject treestand on
the same tree, so he could hunt from the subject treestand while his son hunted from the Millennium
stand.
The morning of the accident, plaintiff inspected the stand and that is when he noticed that
the bushings were squeaking so he decided to replace them with the help of his friend John Carroll.
3
It is unclear whether plaintiff knew that the other stand was the same model as the one he was using.
(Ayers Dep. 35 (“[H]e was aware that the cable broke on a stand that I had, but I do not know that he was aware that it
was the Ameristep stand and I don’t think I ever told him. I just told him I had a cable break on a tree stand.”).)
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He also taped up the seat that morning. Plaintiff climbed up using his climbing sticks, and then
Carroll hooked up the subject treestand to a haul line while plaintiff was sitting in the Millennium
stand. Plaintiff was sitting in the Millennium stand while he installed the subject treestand. In this
process, plaintiff would always install a screw and stud from which to hang the stand and then
install the black affixed strap that was attached by the manufacturer around the tree and cinch it
tight. He would then add an extra strap at the top and an extra strap at the bottom. The way it was
installed, the subject stand would have been installed about one to two feet below the seat platform
of the Millennium stand, requiring him to step down about 12 inches to the Millennium stand.
Plaintiff stepped down onto the platform of the subject stand and felt it settle a bit into the
tree. He screwed in the bow hanger that was in his pocket. He reached down and grabbed the seat
of the subject stand and was getting ready to climb back over to the Millennium stand when the
cables broke. Both of his feet were on the foot platform with both of his hands on the seat. He
recalled stepping back with one foot and being in the process of stepping back with his other foot
and that is when he heard a “pow” or “popping” sound and the cables broke. (McCulloch Dep.
110, 113–14.)
The subject treestand was removed from the tree by Ayers around the last week of October,
the same month as the accident. Ayers climbed up the tree and was unable to loosen the ratchet
straps as they were too tight, so he cut the straps securing the stand to the tree allowing the stand to
fall to the ground. 4
4
The parties dispute whether the treestand was then stored in Ayers’ temperature-controlled shop or whether
it was stored outside Ayers’ shop against the wall, exposed to the elements. (See McCulloch Dep. 90, 94; Ayers Dep.
44–45.)
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When plaintiff fell, the top portion of both cables on the treestand failed and separated under
the rubber coating due to corrosion damage. (Powell Report 4; Deposition of George Saunders 30,
Ex. O, Dkt. No. 60-2.) Defendant admits that the cables separated due to excessive corrosion, but
he disputes whether the coating was covering the cables where they separated on the day of the
accident. (Debiak Dep. 62, 64 (noting the possibility that the coating had been compromised due
to long-term environmental exposure).) Moisture was trapped underneath the plastic coating added
to the cable assemblies in 2013, and while in direct contact with the zinc galvanized steel and
copper ferrule, severely accelerated the corrosion process. (Saunders Dep. 85–87; Powell Report
4–5.)
II. ANALYSIS
A. Summary Judgment Standards
Summary judgment should be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that
“might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass,
242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the non-moving
party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248–49.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. Celotex, 477 U.S. at 323. Once the moving party makes this showing, however, the
opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other
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means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(c), 56(e). All inferences must be viewed in a light most favorable to the
non-moving party, but the nonmovant “cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985).
B. Products Liability Claims
In Virginia, a plaintiff can bring a products liability claim under a negligence theory or an
implied warranty theory. Jeld-Wen v. Gamble, 501 S.E.2d 393, 396 (Va. 1998). Under either
theory, plaintiff must establish three elements: (1) the product contained a defect which rendered it
unreasonably dangerous for ordinary or foreseeable use; (2) the defect existed when it left the
defendant’s hands; and (3) the defect actually caused the plaintiff’s injury. Benedict v. Hankook
Co. Ltd., 295 F. Supp. 3d 632, 637 (E.D. Va. 2018). Under an implied warranty theory, plaintiff
has the burden of proving (1) that the goods were unreasonably dangerous either for the use to
which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that
the unreasonably dangerous condition existed when the goods left the defendant’s hands. Logan v.
Montgomery Ward & Co., 219 S.E.2d 685, 687 (Va. 1975). Plaintiff has sued under the implied
warranty of merchantability theory.
Virginia has adopted the reasonably safe/unreasonably dangerous standard as a broad-based
definition of product defect. A product is “unreasonably dangerous” if it is “defective in assembly
or manufacture, unreasonably dangerous in design, or unaccompanied by adequate warnings
concerning its hazardous properties.” Morgen Indus., Inc. v. Vauan, 471 S.E.2d 489, 492 (Va.
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1996). The issue of whether a product is unreasonably dangerous is a question of fact. Id. (citing
Singleton v. Int’l Harvester Co., 685 F.2d 112, 115 (4th Cir. 1981)).
“Virginia products liability law encompasses a risk-utility analysis in negligent design
cases.” Blevins v. New Holland North Am., Inc., 128 F. Supp. 2d 952, 959–60 (W.D. Va. 2001).
The Fourth Circuit has instructed that the concept of unreasonable dangerousness is essentially the
same whether liability is asserted on grounds of negligence or warranty. See Dreisonstok v.
Volkswagenwerk, A.G., 489 F.2d 1066, 1068 (4th Cir. 1974) (applying Virginia law). “Liability for
negligent design thus is imposed only when an unreasonable danger is created and whether or not
this has occurred should be determined by general negligence principles, which involved a
balancing of the likelihood of harm, and the gravity of harm if it happens against the burden of the
precautions which would be effective to avoid the harm.” Id. at 1071. While Virginia law
requires manufacturers to make reasonably safe products, it does not require them to adopt the
safest conceivable design. Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th Cir. 1997);
Slone v. Gen. Motors Corp., 457 S.E.2d 51, 54 (Va. 1995) (“[A] manufacturer is not required to
supply an accident-proof product.”).
The available liability defenses to a breach of warranty theory are unforeseeable misuse and
open and obvious defect. Wood v. Bass Pro Shops, Inc., 462 S.E.2d 101, 103 (Va. 1995). “[T]he
rules of implied warranty apply only when the article is being operated or used in the manner
intended for it. A manufacturer cannot be held to foresee an unanticipated or unpredictable misuse
of the article it manufactures or sells.” Layne-Atlantic Co. v. Koppers Co., 201 S.E.2d 609, 614
(Va. 1974).
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1. Unreasonably dangerous
Tahsin argues that McCulloch has no evidence of a design defect. Tahsin maintains that the
design of the subject treestand has adequate strength and durability; it met and exceeded all industry
standards applicable to treestands; and it was tested and found to be in compliance with industry
standards by a third-party testing laboratory.
McCulloch’s expert witness, Charles Powell, provides evidence of an unreasonably
dangerous design defect. Powell explains that the ferrule used to crimp the end of the cable, after it
wraps around the bolt, was made of copper. (Powell Report 4–5.) 5 Powell states that the cable
system experienced accelerated corrision in the same spot on both cables because copper is cathodic
to the galvanized steel material of the cables. When dissimilar metals contact an electrolyte, such
as rainwater, corrosion can occur very fast. Powell writes:
Copper is a material that is more cathodic than either zinc or iron in the
galvanic material series and will result in the accelerated corrosion of
both wire rope elements when these materials are placed in contact with
each other in the presence of an electrolyte like environmental water.
Copper wire rope ferrules should only be used with stainless steel wire
ropes so as to prevent the possibility of accelerated galvanic corrosion
attack to the wire rope. The accelerated corrosion and fracture point
for both of the subject wire cables occurred adjacent to the copper
ferrule where the wire rope diameter was double. The cable assembly
could only fail at this position, instead of a single diameter location, if
severely weakened by corrosion.
(Id.) The external polymer coating on the wire rope and heat shrink tubing on the end fittings did
not allow the user to evaluate the condition of the cable to see whether there was severe corrosion.
(Id. at 6.) Defendant’s expert, George Saunders, stated in his deposition that what likely caused the
5
For the reasons stated below, Powell’s report is admissible expert testimony.
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accelerated corrosion was water trapped between the two ferrules under the black coating.
(Saunders Dep. 85–87.)
Thus, there is an issue of fact about whether the subject treestand had an unreasonably
dangerous design defect.
2. Misuse of the product
Defendant argues that plaintiff misused the product in several ways: (1) leaving the treestand
unattended in a tree for extended periods of time; (2) failing to properly maintain the product by not
replacing the cable assemblies as directed and using components that were degraded and
compromised; (3) failing to inspect the treestand for signs of degradation and corrosion; and (4) not
using a full body harness to remain connected to the tree when he was in the treestand at an elevated
position.
Again, however, there are issues of fact as to whether any of these alleged misuses were
unforeseeable, unanticipated, or unpredictable. See Wood, 462 S.E.2d at 103; Layne-Atlantic Co.,
201 S.E.2d at 614. For example, there is evidence in the record that it is not uncommon in the
hunting world for hunters to not wear a harness while using a treestand. (Deposition of Lorne
Smith 26–27, Ex. S, Dkt. No. 58-6.) Smith, who is defendant’s hunting expert, testified that none
of the 70 to 75 treestand accident cases for which he has provided expert testimony involved a
plaintiff that was properly wearing a safety harness. (Id. at 26.)
Q.
So it is fair to say then that sometimes tree stand users
don’t properly wear their safety harness?
A.
Yes, there are times that they do not properly wear their
safety harness, yes.
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Q.
You think it’s fair to say that sometimes users of tree
stands fail to wear their harness at all?
A.
There are times that they choose not to wear their
harness, yes. That’s their choice.
(Id. at 27.) For his own part, plaintiff, an experienced, life-long hunter, testified that he generally
wears his safety harness when hunting from an elevated position. (McCulloch Dep. 42.) The
cable failure occurred while plaintiff was installing the treestand to the tree, and he was not wearing
the harness because of how difficult it is to wear a harness while attaching the tree stand to a tree.
That hunters, such as plaintiff, regularly use treestands without a harness would allow a jury to find
that this was a predictable misuse.
Regarding the cable assemblies, Tahsin cites the Instruction Manual’s directive to replace
the cables every two years. Plaintiff has provided evidence that replacement assemblies are rarely
ordered. From 2013 to 2019, roughly 357,932 of the same model of the subject treestand were
sold, which equals 715,864 cables (two for every treestand). (Def.’s Answer to Pl.’s Second Set of
Interr. No. 24, Ex. V, Dkt. No. 58-9.) During the same time period, defendant sold only 764
“replacement cables” to its customers. (Spreadsheet of Cable Sales, Ex. U, Dkt. No. 60-5.)
Therefore, a jury could find that not replacing the cable assemblies was also predictable.
3. Proximate cause
The proximate cause of an event is “that act or omission which, in natural and continuing
sequence, unbroken by an efficient intervening cause, produces the event, and without which the
event would not have occurred.” Kellerman v. McDonough, 684 S.E.2d 786, 793 (Va. 2009). “It
is not essential . . for the plaintiff to show that an act, claimed to have been the proximate cause of a
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certain result, was the only cause. It is sufficient if it be established that the defendant’s act
produced or set in motion other agencies, which in turn produced or contributed to the final result.”
Von Roy v. Whitescarver, 89 S.E.2d 346, 352 (Va. 1955). “There may be more than one proximate
cause of an event.” Atkinson v. Scheer, 508 S.E.2d 68, 71 (Va. 1998). A tortfeasor is responsible
“for all the consequences that may ensue in the ordinary course of events, even though such
consequences are immediately and directly brought about by an intervening cause, if such
intervening cause was set in motion by the original wrongdoer.” Jefferson Hospital v. Van Lear,
41 S.E.2d 441, 444 (Va. 1947). In order for an intervening cause to relieve a tortfeasor of liability,
it must be the sole cause of the injury without the defendant’s negligence contributing in the
slightest degree. Atkinson, 508 S.E.2d at 72.
Tahsin frames its argument about plaintiff’s alleged misuses of the treestand—improper
maintenance and storage, improper use, failure to inspect, and failure to replace the cable
assemblies— in terms of proximate cause. In other words, defendant argues that these alleged
misuses were the proximate cause of plaintiff’s injuries, not the design defect. But a jury could
find that the cables failing and breaking, due to a design defect, “produced the event” that is the
subject of this lawsuit. Kellerman, 684 S.E.2d at 793. A jury might find that plaintiff’s misuses
are intervening causes but not the sole causes of plaintiff’s accident. Atkinson, 508 S.E.2d at 72
(intervening cause must be the sole cause to relieve tortfeasor of liability). There are disputes of
fact, and these disputes about proximate cause preclude the entry of summary judgment in favor of
Tahsin.
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4. Mitigation
Tahsin argues that plaintiff failed to mitigate his damages because he did not properly use
the full body safety harness. Mitigation is a limiting principle on damages due to injury. It cannot
be used to escape liability in the first instance. “Unlike most affirmative defenses, mitigation of
damages is not a defense that, if proven, constitutes an absolute bar to the plaintiff’s claim.
Instead, a defense of mitigation recognizes that a plaintiff’s conduct following the defendant’s
negligence ‘may be a reason for reducing damages,’ but it does not necessarily bar all recovery.”
Monahan v. Obici Med. Mgmt. Srvs., Inc., 628 S.E.2d 330, 337 (Va. 2006) (emphasis added).
Mitigation is an issue of fact for the jury.
5. Assumption of Risk
Tahsin argues that plaintiff assumed the risk of injury when he knowingly put his weight on
the platform of the treestand without remaining connected to the tree with a safety harness.
However, assumption of risk is not available as a defense to a claim for breach of the implied
warranty of merchantability. See Wood, 462 S.E.2d at 103.
6. Failure to warn
Plaintiff argues that Tahsin failed to properly warn users of the design defect. “A
manufacturer is not an insurer of its product’s safety, and a manufacturer has a duty to warn only if
it knows or has reason to know that its product is dangerous.” Owens-Corning Fiberlas Corp. v.
Watson, 413 S.E.2d 630, 634 (Va. 1992). In a failure to warn case, the plaintiff must prove that the
manufacturer (1) knows or has reason to know that the product is or is likely to be dangerous for the
use for which it is supplied, (2) has no reason to believe that those for whose use the product is
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supplied will realize its dangerous condition, and (3) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts which make it likely to be dangerous. Funkhouser
v. Ford Motor Co., 736 S.E.2d 309, 313 (Va. 2013).
Plaintiff admits that he did not read the warnings that came with the treestand. Specifically,
plaintiff did not recall receiving written warnings and instructions, and, even if he did, he would not
have read them. Also, plaintiff recalled the warning label affixed to the treestand, but he never
reviewed the contents of the label; in fact, he may have removed the label due to its reflection. A
plaintiff in a failure to warn case is required to prove that the failure to warn was the proximate
cause of his injury. See Singleton, 685 F.2d at 116–17 (explaining that the “lack of adequate
warning . . . must be shown by a preponderance of the evidence to be a proximate cause of the
accident”); Berger v. Ford Motor Co., 95 F. App’x 520, 522 (4th Cir. 2004) (affirming dismissal
where “plaintiffs could not establish the causation element of their failure-to-warn claim, namely,
that the absence or inadequacy of a warning was a proximate cause of the injury”) (citing Singleton,
685 F.2d at 116–17); Ford Motor Co. v. Boomer, 736 S.E.2d 724, 733–34 (Va. 2013) (discussing
requirement that failure to warn be the proximate cause of plaintiff’s injury); Featherall v. Fireston
Tire & Rubber Co., 252 S.E.2d 358, 369 (Va. 1979) (finding that plaintiff established a prima facie
case of negligent failure to warn where the failure to warn “constituted negligence which
proximately caused the explosion and plaintiff’s injuries”). Plaintiff cannot make this showing
given his admission that he did not read and would not read any warnings. Thus, Tahsin is entitled
to summary judgment to the extent plaintiff asserts liability based upon plaintiff’s failure to warn.6
6 Because of this ruling, and expert testimony regarding any failure to warn will also be excluded.
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***
For all of these reasons, defendant’s motion for summary judgment will be granted in part
regarding plaintiff’s failure to warn but denied in part in all other respects.
C. Expert Testimony
Federal Rule of Evidence 702 and the standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern admissibility of expert testimony. 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.
Before considering whether a proffered expert’s testimony is reliable, the court first
determines whether the witness qualifies as an expert. A witness may qualify as an expert on the
basis of “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. The expertise
must relate to the areas in which the expert is expressing opinions. See Thomas J. Kline, Inc. v.
Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989). Exclusion should occur only where all bases for
expertise are lacking with regard to the issue for which the opinion is offered, and a proffered expert
“need not be precisely informed about all details of the issues raised in order to offer an opinion.”
Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting Thomas J. Kline, Inc., 878 F.2d at 799).
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While the test for exclusion may be a “strict one,” Kopf, 993 F.2d at 377, some type of
relevant expertise is nonetheless required. For example, where experience is one of the bases for a
witness’s expertise, the witness must “explain how [his] experience leads to the conclusion reached,
why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably
applied to the facts.” Radiance Found., Inc. v. Nat’l Ass’n for the Advancement of Colored People,
27 F. Supp. 3d 671, 674 (E.D. Va. 2013) (alteration in original) (citations omitted). Additionally, a
witness’s expertise must be tailored, to some degree, to the specific opinions offered and the
particular facts in the case; general expertise or knowledge on a broad topic or general field may be
insufficient, depending on the facts of a case. Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d
378, 391–92 (D. Md. 2001) (“The fact that a proposed witness is an expert in one area, does not
ipso facto qualify him to testify as an expert in all related areas.”) (citing Oglesby v. Gen. Motors
Corp., 190 F.3d 244, 247 (4th Cir. 1999)).
After ensuring that an individual qualifies as an expert, this court has an obligation under
Daubert to act as a gatekeeper and ensure that any testimony concerning scientific, technical, or
other specialized knowledge offered in support of a party’s claim is “not only relevant, but reliable.”
509 U.S. at 589; Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting same). The
proponent of the testimony must establish its admissibility, although it need not prove its expert’s
theory is correct. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); Md. Cas.
Co. v. Therm–O–Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998). First, the trial court must ask
whether proffered scientific evidence is valid and reliable. United States v. Barnette, 211 F.3d 803,
815 (4th Cir. 2000). Second, the court asks whether the evidence will help the trier of fact, which
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is generally a question of relevance, or “fit.” The court must ask if, assuming the evidence is
reliable, it will “assist the trier of fact to understand or determine a fact in issue.” Md. Cas. Co.,
137 F.3d at 783 (quoting Daubert, 509 U.S. at 592).
The court’s role in limiting expert testimony is important: “due to the difficulty of
evaluating their testimony, expert witnesses have the potential to be both powerful and quite
misleading.” Cooper, 259 F.3d at 199 (citations omitted). Indeed, “given the potential
persuasiveness of expert testimony, proffered evidence that has a greater potential to mislead than to
enlighten should be excluded.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999). Trial judges have “considerable leeway” in excluding evidence, and are required to ensure
that “expert testimony must be based on sufficient facts or data, and the expert must arrive at his
opinions by properly applying reliable principles and methods to the facts.” Hickerson v. Yamaha
Motor Corp., 882 F.3d 476, 480 (4th Cir. 2018). The court is not required to determine that “the
proffered expert testimony is irrefutable or certainly correct” because as “with all other admissible
evidence, expert testimony is subject to testing by vigorous cross-examination, sentation of contrary
evidence, and careful instruction on the burden of proof.” United States v. Moreland, 437 F.3d
424, 431 (4th Cir. 2006).
1. Plaintiff’s expert Charles Powell
Powell opines that the galvanized carbon steel wire rope support assemblies on the subject
treestand are defective in material design. Both cable assemblies fractured and separated as a result
of corrosion damage and microscopic wire fractures created during the normal expected outdoor use
of the subject treestand. The cable fractures released the support on the treestand foot platform and
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directly caused McCulloch’s fall and severe injury. The subject treestand was unreasonably
dangerous for its ordinary use and for other reasonably foreseeable purposes. This unreasonably
dangerous material defect existed when it left defendant’s hands. (Powell Report 4.)
Powell notes that the subject failed assemblies were constructed using a copper ferrule as a
terminal to crimp the tage end of the wire rope. Copper is a material that is more cathodic than
either zinc or iron in the galvanic material series and will result on the accelerated corrosion of both
wire rope elements when these materials are placed in contact with each other in the presence of an
electrolyte like environmental water. The accelerated corrosion and fracture point for both of the
subject wire cables occurred adjacent to the copper ferrule where the wire rope diameter was
doubled.
As manufactured, with external polymer coating on the wire rope and heat shrink tubing on
the end fittings, there is no possibility that a consumer can evaluate a new or used treestand support
cable to determine its ability to hold up a person safely in a treestand. There are no warnings on
how to inspect cables, what determines a damaged cable, or any mandate that the cables must be
replaced after two years or the treestand cannot be used.
Defendant argues that Powell does not have the necessary background in the design of a
treestand steel cable assembly. He is a mechanical engineer, but has no expertise in the use of
treestands or the treestand industry. Powell did not provide any analysis or opinions regarding a
safer alternative design and admitted that the subject design using zinc coating is common and
proper for the application. And Powell ignores the evidence of extensive misuse and exposure to
the outdoor elements.
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Powell is a registered professional engineer with 50 years of experience in engineering
failure analysis of products and structures and in accident investigation. Powell has an engineering
degree in metallurgical engineering, and he is trained as a physical metallurgical engineer.
Therefore, Powell is qualified to provide design and failure analysis specific to the steel cable
assembly. While Powell is not an expert in the use of tree stands or the tree stand industry, Powell
does not attempt to extend his opinion to hunting safety issues not within his purview.
The court rejects defendant’s argument that Powell’s opinions are speculation and
conjecture. Powell followed reliable engineering principles to conclude that the subject treestand
was defective in design. Defendant emphasizes plaintiff’s alleged misuse of the product, but as
discussed above, there are issues of fact that the defects in manufacturing, not plaintiff’s use, was
the cause of plaintiff’s injury. Powell’s testimony meets the Daubert guideposts of reliability and
helpfulness to the trier of fact.
2. Defendant’s expert George Saunders
Defendant retained George Saunders to offer opinions as a mechanical engineer/tree stand
accident reconstruction/tree stand warnings expert. (Def.’s Expert Disclosures, Dkt. No. 55-1.)
Plaintiff argues that Saunders is not qualified to give metallurgical testimony and his metallurgical
opinions lack sufficient foundation and reliability. Saunders stated in his deposition that copper is
not an accelerator of corrosion, contrary to the testimony of plaintiff’s expert Powell and contrary to
the testimony of defendant’s retained metallurgist, Michelle Vogler. (Vogler Dep. 44–46.)
Saunders cites a Department of Defense “Detailed Specification Sheet.” When asked about the
DOD spec sheet, Saunders states that the U.S. military uses copper fittings on galvanized steel wire
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rope for military aircrafts. Saunders could not provide any support or context for his reliance on
the DOD specifications sheet.
The court finds that Saunders’ opinions are based on his education, background, and
experience as a mechanical engineer. While Saunders is not a metallurgist, part of his education in
mechanical engineering involved insight into metallurgy, and there is overlap between the two
disciplines. (Saunders Aff. ¶ 5, Ex. BB, Dkt. No. 64-8.) To the extent that Saunders’ opinion is
inconsistent with metallurgical principles, that would be appropriate fodder for cross-examination.
Plaintiff’s motion to exclude Saunders’ testimony will be denied.
3. Defendants’ expert Lorne Smith, Jr.
Defendant disclosed Lorne Smith as an expert in safety/tree stand accident
reconstruction/safety harness. Smith has experience as a tree stand hunter and safety instructor.
He has investigated and reconstructed approximately five hundred treestand hunting accidents over
the last forty years. (Smith Aff. ¶ 11, Ex. DD, Dkt. No. 61-10.)
Smith reports multiple mistakes made by plaintiff that show a habit of him not following
warnings and instructions. Plaintiff argues that this testimony lacks foundation and is prejudicial
because Smith does not know about plaintiff’s habits and has never witnessed him using a tree
stand. Smith’s opinion is based on plaintiff’s testimony as well has his investigation of the
accident scene. Smith’s testimony about plaintiff’s alleged misuses of the treestand, including not
wearing his full body safety harness, not using his climbing belt, not placing the stand in a correct
location, and improper set up of stick ladders, are relevant to foreseeable misuse. Smith’s opinions
are based on hunter safety, hunting product industry practices and knowledge, hunting safety issues,
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treestand investigation, and treestand accident reconstruction. Smith’s specialized knowledge will
assist the trier of fact, and his opinions on misuse are reliable and relevant. Therefore, Smith’s
testimony will not be excluded.
4. Defendant’s expert Kimberly Kushner
Kimberly Kushner was designated as a certified nurse life care planner disability care
management expert. Kushner is a Certified Registered Nurse Practitioner, a Registered Nurse, and
a Certified Nurse Life Care Planner who has worked in various clinical settings including inpatient
and outpatient medical clinics, critical unit/trauma units, and medical/surgical units. (Kushner Aff.
¶ 5, Ex. FF, Dkt. No. 61-12.) Kushner has prepared several hundred life care plans and analyzed
several hundred life care plans for individuals of various ages and for various injuries, including
spinal court injuries, for over eleven years in the field of life care planning.
Plaintiff argues that Kushner’s opinions are unreliable because she did not consult with a
medical doctor prior to preparing her life care report. Plaintiff also notes that Kushner never
worked in a facility that specialized in spinal cord injury care. These topics are relevant inquiries
for cross-examination. No one disputes that Kushner is qualified to opine on plaintiff’s life care
plan.
Plaintiff asserts that Kushner is “way out of her lane” when she “substitutes her opinions
about the necessity of future medical care” for those of Dr. Suzanne Groah, who consulted for
plaintiff’s life care plan. (Dkt. No. 55 at 25.) Kushner is a life care planner who is qualified to
opine on plaintiff’s life care plan. According to Kushner, the objective of a life care plan is to
include services that are necessary to prevent complications, decrease in function, and further
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injury. (Kushner Aff. ¶ 15.) Kushner’s opinion is that many of the surgical interventions
suggested by Dr. Groah are speculative and, at this point, cannot be considered necessary
treatments. (Id. ¶ 17.) At this time, it appears that this opinion is admissible, subject of course to
cross-examination, so it will not be excluded. Depending upon the evidence, plaintiff may renew
his motion at trial regarding this opinion.
Finally, plaintiff argues that Kushner did not produce her research materials. Defendant
responds that this was due to an oversight by defense counsel and the materials have now been
provided. As the court discussed at the hearing, the parties may agree to depose Kushner again
before trial if necessary.
For these reasons, the court will deny McCulloch’s motion to exclude Kushner’s testimony.
III. CONCLUSION
For the reasons stated in the foregoing opinion, the court will grant defendant’s motion for
summary judgment to the extent plaintiff relies upon a failure to warn, but will deny the motion in
all other respects. The court will also deny the motions to exclude expert testimony. The court
will issue an appropriate order.
Entered: September 27, 2022.
/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge
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