Evans v. Home Depot U.S.A., Inc. et al

Filing 93

ORDER denying DEFENDANT'S 58 65 MOTIONS TO EXCLUDE EXPERT TESTIMONY OF DR. DAVID BIZZAK. Signed by District Judge Irene M. Keeley on 11/26/2013. (kd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EDWARD L. EVANS, JR.,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:12CV167
(Judge Keeley)

HOME DEPOT U.S.A., INC., et al.
Defendants.
ORDER DENYING DEFENDANT’S MOTIONS TO EXCLUDE EXPERT
TESTIMONY OF DR. DAVID BIZZAK [Dkt. Nos. 58 & 65]
Pending before the Court is defendant’s, Home Depot U.S.A.,
Inc. (“Home Depot”), motions to exclude the expert testimony of Dr.
David Bizzak (“Bizzak”). (Dkt. Nos. 58 & 65).1

For the reasons

that follow, the Court DENIES Home Depot’s motions.
I.
This case arises out of injuries allegedly sustained by the
plaintiff, Edward L. Evans (“Evans”), while shopping at Home Depot
in Bridgeport, Harrison County, West Virginia, on October 3, 2010.
Plaintiff alleges that, while at the Home Depot store, he began
loading OSB boards onto a materials handling cart (“cart”) with the
assistance

of

then-Home

Depot

associate

David

“Kyle”

Simons

(“Simons”). Either during or after the loading, the OSB boards fell
off the cart and onto Evans injuring him. The cause of the accident

1

Home Depot has filed two identical motions to exclude the
expert testimony of Dr. David Bizzak in this case. (Dkt. Nos. 58 &
65).

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
is the main issue in dispute in the case. Evans has retained Bizzak
to provide expert testimony on this matter.
II.
Under Federal Rule of Evidence 7022, a court should admit
expert testimony if it is both reliable and aids the jury in
understanding the evidence.

It is the burden of the proponent of

the

establish

expert

testimony

to

preponderance of the evidence.

its

admissibility

by

a

Higinbotham v. KCS Int’l, Inc., 85

Fed. Appx. 911 (4th Cir. 2004).
To determine reliability, a court should evaluate the expert’s
methodology, not his conclusion. TFWS v. Schaefer, 325 F.3d 234,
240 (4th

Cir. 2003).

It is incumbent on the trial judge “faced

with a proffer of expert scientific testimony [to] conduct ‘a
preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the facts
in issue.”’ Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th

2

FRE 702 provides: “If scientific, technical or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form or an opinion or otherwise, if (1) the
testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and(3) the witness has
applied the principles and methods reliably to the facts of the case.”

2

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
Cir.

2001).

testimony

The

court’s

evaluation

of

the

proposed

expert

“is always a flexible one, and the court’s conclusion

necessarily amount[s] to an exercise of broad discretion guided by
the overarching criteria of relevance and reliability.” “A reliable
expert opinion must be based on scientific technical or other
specialized
inferences

knowledge
must

be

and

not

derived

on

using

belief

or

scientific

speculation,
or

other

and

valid

methods.” Oglesby v. General Motors Corp., 190 F.3d 244, 250 (4th
Cir. 1999).
In general, the reliability of an expert is assessed using the
following non-exclusive factors:
1) whether the expert’s theory can be or has been tested;
2) whether the theory has withstood peer review and
publication;
3) whether there is a known or potential rate of error;
4) whether standards exist for the application of the
theory; and
5) whether the theory has been generally accepted by the
relevant scientific community.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).

3

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
The Supreme Court has moved away from blind adherence to the
five factors set forth in Daubert, instead requiring that the
“particular circumstances” of the “particular case” at issue be
identified to determine if the case requires scientific expertise
or more personal knowledge and / or experience; to determine what,
if

any,

Daubert

factors

are

applicable

in

the

process

of

determining the reliability of an expert’s opinion. Kumho Tire Co.
v. Carmichael, 526 U.S. 137 (1999).
III.
Home Depot seeks to exclude the proposed expert testimony of
Bizzak.

Bizzak has a PhD in Mechanical Engineering and extensive

experience in accident reconstruction and mechanical failures. He
was retained by Evans to review physical evidence, assess the
statements of witnesses, and to examine the cart involved in the
incident in order to opine as to the proximate cause of the
accident.

(Dkt. No. 63 at 7).

Bizzak’s report contains a description of the accident, a
discussion explaining that the cart involved in the incident was
produced by Home Depot, and an analysis of testimony provided by
Home Depot employees related to the inspection and maintenance of
the cart and training on how it should be operated.

4

Finally,

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
Bizzak provides various conclusions, to a reasonable degree of
engineering

certainty,

regarding

the

accident.

The

relevant

conclusions are:
•

Overturning of the load of OSB sheets on a sheet
material cart occurred as a result of a force
applied to the load by Mr. Kyle David Simons, a
Home Depot employee who was assisting Mr. Evans at
the time of the accident;

•

One cannot exclude the possibility that the
condition of the material cart was a causal factor
in the accident, since it cannot be established
that the subject cart was preserved;

•

No means exists to uniquely identify the material
cart that was involved in the accident and
available testimony and photographs suggest that
the subject cart was not preserved; and

•

The negligence of Home Depot–through the actions of
Mr. Simons and/or of proper maintenance of the
material cart–was the proximate cause of the
accident.

(Dkt. No. 67 at 6-7).
IV.
Home Depot first moves to exclude Bizzak’s opinion related to
inspection,

maintenance,

training,

and

surveillance

footage,

asserting it is all a recitation of fact evidence that does not
necessitate an expert opinion. (Dkt. No. 58 at 6). However, Evans
has agreed to not question Bizzak on these issues. (Dkt. No. 63 at

5

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
9).

Thus, Home Depot’s motion to exclude Bizzak’s testimony on

this basis is now moot.
Secondly, Home Depot seeks to exclude Bizzak’s opinion that
Simons’ force caused the OSB boards to slide off the cart, inas
much as it is unreliable, speculative, and unhelpful to the jury.
(Dkt. No. 58 at 4).

In support of its contention, Home Depot

argues that Dr. Bizzak’s opinions on causation are not based on
specific technical or engineering theories and contain conclusions
that could be drawn independently by the jury. (Dkt. No 58 at 5-6).
Bizzak’s conclusions on causation, however, were formulated
within a reasonable degree of engineering certainty and based upon
the knowledge he has gained through the years he has spent working
as

a

mechanical

engineer,

his

extensive

education,

and

his

experience in accident reconstruction and mechanical failures.
Additionally, in preparing his report for this case, he reviewed
physical evidence, analyzed statements of witnesses, and examined
the cart purportedly involved in the accident.

As such, Bizzak is

able to provide specialized knowledge that will assist the jury in
both understanding how the cart generally operates and functions
and also determining the proximate cause of the accident.

6

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
Bizzak has assessed the cart from an engineering perspective
as to design components, size, function, movement rotation, load
bearing, wheel base, balance, and operation.

Further, he has

analyzed applicable peer reviewed theories and principles of the
mechanism of injury and accident reconstruction in formulating his
conclusions on the proximate cause of the accident.3

His opinions

are far beyond those of a lay person and will therefore enable the
jury to better understand how the collapse at issue occurred.
Thus, based on a review of Bizzak’s reports, the Court
concludes that he is a witness qualified as an expert by knowledge,
experience, training, and education and may therefore testify in
this case. As such, the testimony Bizzak has to offer as to the
proximate cause of the accident is based on “scientific, technical,
or other specialized knowledge” that “will assist the trier of fact
to understand the evidence or to determine a fact in issue.”

The

Court further concludes that 1) Bizzak’s proffered testimony is
based upon sufficient facts or data, (2) is the product of reliable
principles and methods, and that (3) Bizzak has applied the

3

The plaintiff, with permission of Home Depot, has provided
the Court with a supplemental report which provides additional
support for Bizzak’s findings. (Dkt. No. 64).
7

EVANS V. HOME DEPOT, ET AL.

1:12CV167

ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE
EXPERT TESTIMONY OF DR. DAVID BIZZAK
principles and methods reliably to the facts of this case. Oglesby
v. General Motors Corp., supra.
V.
Thus, for the reasons stated, the Court DENIES Home Depot’s
motions to exclude the expert testimony of Dr. David Bizzak. (Dkt
Nos. 58 & 65).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: November 26, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

8