Landis et al v. Jarden Corporation et al
Filing
735
ORDER granting in part and denying in part 457 and 483 DAUBERT MOTIONS REGARDING WILLIAM KITZES. Signed by Chief Judge John Preston Bailey on 1/16/14. (njz)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
KIMBERLY LANDIS and ALVA NELSON,
as parents and guardians of A.N., a minor,
Plaintiffs,
v.
Civil Action No. 2:11-CV-101
(BAILEY)
HEARTHMARK, LLC, d/b/a Jarden Home
Brands, WAL-MART STORES, INC.,
C.K.S. PACKAGING, INC., PACKAGING
SERVICE COMPANY, INC., and
STULL TECHNOLOGIES, INC.,
Defendants/Third Party Plaintiffs,
v.
KIMBERLY LANDIS and ALVA NELSON,
in their individual capacities,
Third Party Defendants.
ORDER DENYING IN PART AND GRANTING IN PART
DAUBERT MOTIONS REGARDING WILLIAM KITZES
Pending before this Court are defendant Hearthmark, LLC and Wal-Mart Stores,
Inc.’s Motion to Exclude the Testimony of Plaintiffs’ Expert William Kitzes [Doc. 457] and
C.K.S. Packaging, Inc.’s Motion to Exclude the Opinions and Testimony of William Kitzes
[Doc. 483]. The Motions have been fully briefed and are ripe for decision.
In the above Motions, the parties seek to exclude the testimony of the plaintiffs’
expert, William Kitzes, under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
The admissibility of expert opinion testimony is governed by Federal Rule of
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Evidence 702, which provides:
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.
The rules applicable to determining whether expert testimony should be admitted
are set forth in Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999):
Expert testimony is admissible under Rule 702, then, if it concerns (1)
scientific, technical, or other specialized knowledge that (2) will aid the jury
or other trier of fact to understand or resolve a fact at issue. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). The first prong of this
inquiry necessitates an examination of whether the reasoning or methodology
underlying the expert's proffered opinion is reliable - that is, whether it is
supported by adequate validation to render it trustworthy. See id. at 590 &
n. 9. The second prong of the inquiry requires an analysis of whether the
opinion is relevant to the facts at issue. See id. at 591-92. Thus, an expert's
testimony is admissible under Rule 702 if it “rests on a reliable foundation
and is relevant.” Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
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(internal quotation marks omitted).
A district court considering the admissibility of expert testimony
exercises a gate keeping function to assess whether the proffered evidence
is sufficiently reliable and relevant. See id. at 1174. The inquiry to be
undertaken by the district court is “a flexible one” focusing on the “principles
and methodology” employed by the expert, not on the conclusions reached.
Daubert, 509 U.S. at 594-95. In making its initial determination of whether
proffered testimony is sufficiently reliable, the court has broad latitude to
consider whatever factors bearing on validity that the court finds to be useful;
the particular factors will depend upon the unique circumstances of the
expert testimony involved. See Kumho Tire Co., 119 S.Ct. at 1175-76
(footnote omitted). The court, however, should be conscious of two guiding,
and sometimes competing, principles. On the one hand, the court should be
mindful that Rule 702 was intended to liberalize the introduction of relevant
expert evidence. See Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th
Cir. 1996). And, the court need not determine that the expert testimony a
litigant seeks to offer into evidence is irrefutable or certainly correct. See id.
As with all other admissible evidence, expert testimony is subject to being
tested by “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. On
the other hand, the court must recognize that due to the difficulty of
evaluating their testimony, expert witnesses have the potential to “be both
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powerful and quite misleading.” Id. at 595 (internal quotation marks omitted).
And, given the potential persuasiveness of expert testimony, proffered
evidence that has a greater potential to mislead than to enlighten should be
excluded. See United States v. Dorsey, 45 F.3d 809, 815-16 (4th Cir.
1995).
178 F.3d at 260-61.
The first issue which must be addressed is whether Mr. Kitzes is “qualified as an
expert by knowledge, skill, experience, training, or education” to render the opinions which
he has proffered. “Under Rule 702, to be ‘qualified’ as an expert, a witness must have
‘knowledge, skill, experience, training, or education’ in the subject area in which he intends
to testify. Fed.R.Evid. 702. An expert's qualification depends on ‘the nature of the opinion
he offers.’ See Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984).”
Foster v. Legal Sea Foods, Inc., 2008 WL 2945561 (D. Md. July 25, 2008).
Mr. Kitzes was employed with the Consumer Product Safety Commission from 1975
through 1981. After he left the CPSC, Kitzes formed Consumer Safety Associates whose
primary business is testifying on behalf of personal injury plaintiffs. Kitzes has a bachelor’s
degree in history and political science from the University of Wisconsin and a law degree
from American University, although he never has practiced as an attorney.
Kitzes is not an engineer or a chemist. He has no degree or certification in any field
of science, fire inspection or cause and origin investigation. He has no scientific expertise
or training and admits he is unqualified to offer opinions on the chemical properties of
substances or engineering issues.
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On the other hand, William Kitzes is a Board Certified Product Safety Manager and
Hazard Control Manager and has been a member of the Human Factors and Ergonomics
Society since 1983. He holds an Executive Certificate in Safety Management from the
American Society of Safety Engineers and a Certificate in Risk Communication from the
Harvard School of Public Health. For the past 30 years, he has provided product safety
management services to attorneys, corporations and government organizations.
After leaving the CPSC, Mr. Kitzes served as Vice President and General Manager
of The Institute for Safety Analysis in Rockville, Maryland for two years. From 1993-2007,
he served as the Chairman of the Florida Consumer’s Counsel. He now runs the company,
Consumer Safety Associates, and serves as an expert consultant in product safety for
litigants and manufacturers.
He has published numerous articles on safety management and consumer product
safety and has lectured across the country on the same topics. Mr. Kitzes has testified in
120 trials over the past 30 years, 24 of which were in federal court. Mr. Kitzes has testified
numerous times concerning the FHSA and related warnings, precautionary statements, and
principal hazards.
In his Report, Mr. Kitzes proffers a series of opinions purporting to address the
chemical properties and hazards of Diamond Gel as well as stating legal conclusions:
1.
Jarden Home Brands (Jarden) [Hearthmark] and Packaging Services
Company, Inc. failed to act as a reasonably prudent manufacturer and distributor to
adequately protect consumers from the known catastrophic risks of injury associated with
the foreseeable use of the Jarden/Diamond Brand Fire Starter Gel.
2.
Jarden and Packaging Services Company, Inc. failed to perform an adequate
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risk assessment integrating product hazards, the environment and foreseeable consumer
use to substantially reduce or eliminate injuries.
3.
Jarden and WalMart failed to adequately warn users of the dangers
associated with the foreseeable use or misuse associated with the Diamond Fire Starter
Gel.
4.
Jarden and WalMart failed to comply with the requirements of the Federal
Hazardous Substances Act (FHSA) and the Consumer Product Safety Commission (CPSC)
regulations at 16 CFR 1500. The Diamond Fire Starter Gel fails to bear a label which
adequately and conspicuously states the affirmative hazards and precautionary measures
that are intended to provide consumers with the information needed to protect themselves.
The Diamond Fire Starter Gel meets the definition of a misbranded hazardous substance
under the FHSA and regulations.
5.
Based on the failure to comply with the FHSA regulations at 16 CFR 1500
cited above, and the information available to Jarden, Packaging Services Company, Inc.
and WalMart that the Fire Starter Gel contained a defect which “could create” a substantial
product hazard, Jarden failed to report such information to the CPSC under Section 15(b)
of the Consumer Product Safety Act (CPSA) [15 USC 2064(b)] and the regulations at 16
CFR 1115.
6.
Section 23 of the CPSA [15 USC 2072] provides that persons injured by
reason of a violation of any rule or order issued by the Commission can maintain a private
cause of action for damage. Injury to [A.N.] due to Jarden’s failure to label the Diamond
Natural Fire Starter Gel in compliance with the CPSC regulations at 16 CFR 1500 cited
above can fall within such rule or order issued by the Commission.
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7.
The label of the Jarden Diamond Brand Fire Starter Gel is defective and
creates an unreasonably dangerous condition under foreseeable conditions of use. With
knowledge of the dangers outlined in their own documents, the removal of the sodium
which makes the flame “nearly invisible” and the failure to adequately warn users of the
potential for flashback and catastrophic injury, Jarden acted with a clear and conscious
disregard for the safety of consumers.
In Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995), the Court first
reviewed the basic holdings of Daubert, and then stressed that Daubert has not imposed
a “rigid test or checklist” of factors:
In offering these guidelines, the court emphasized that it was not formulating
a rigid test or checklist, relying instead on the ability of federal judges to
properly determine admissibility. In conclusion, the Court held that the
Federal Rules of Evidence, especially Rule 702, assign to the trial judge the
task of ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.
66 F.3d at 1384 (internal citation and quotation omitted).
In Harris v. Norfolk Southern Ry. Co., 2013 WL 1136644, *3 (S.D. W.Va. March
18, 2013), Judge Goodwin stated that “As stated in Westberry, ‘The inquiry to be
undertaken by the district court is “a flexible one” focusing on the “principles and
methodology” employed by the expert, not on the conclusions reached.’ Westberry, 178
F.3d at 261 (quoting Daubert, 509 U.S. at 594-95).”
Judge Goodwin added, “I ‘need not determine that the proffered expert testimony
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is irrefutable or certainly correct’ - ‘[a]s with all other admissible evidence, expert testimony
is subject to testing by “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.”’ United States v. Moreland, 437 F.3d 424,
431 (4th Cir. 2006) (quoting Daubert, 509 U.S. at 596 (alteration in original); see also Md.
Cas. Co. [v. Therm-O-Disc, Inc.], 137 F.3d at 783 (noting that ‘[a]ll Daubert demands is
that the trial judge make a “preliminary assessment” of whether the proffered testimony is
both reliable ... and helpful’).” Id.
This Court has carefully reviewed the 535 pages of materials submitted in
connection with these Motions and finds that the Motion should be sustained as to several
areas. In so doing, this Court’s concerns with Mr. Kitzes’ proposed testimony echo those
of Judge Gaughan in S.S. v. Leatt Corp., 2013 WL 3714142, *18 (N.D. Ohio July 15,
2013):
Upon review of Kitzes's report, however, the Court agrees with Leatt that
Kitzes's opinion testimony is excludable under Daubert and Fed.R.Evid. 702.
Even acknowledging that Kitzes has expertise in the field of “product safety
management” and that such expertise is or could be relevant to some issue
or issues raised in the case, there is insufficient information and analysis in
Kitzes's report to conclude that Kitzes employed a “reliable” methodology in
reaching his “conclusions” such that his opinions are admissible.
The
“opinions” Kitzes purports to provide, set forth above, are not cogent (or
cogently linked to the issues raised in the case) and are not supported by any
discernible rationale or methodology.
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Kitzes, for example, does not
substantively analyze any specific purported conduct (or omission) of Leatt
or explain how Leatt's conduct fell short of any safety management principle.
Rather, Kitzes merely makes conclusory statements in his opinions that are
devoid of any discernible analysis or methodology and states facts that the
jury does not need his help or expertise to determine. Plaintiffs' arguments
in support of Kitzes's proposed testimony are unpersuasive.
Defendant's motion to exclude the proposed expert testimony of Kitzes
is granted. The Court finds that Kitzes's proposed testimony fails to meet the
requirements of Fed.R.Evid. 702 and Daubert.
2013 WL 3714142, at *18. See also Clark v. Shores, 201 W.Va. 636, 639, 499 S.E.2d
858, 861 (1997) (“Mr. Kitzes’ affidavit, at best, is conclusory and lacks any relevant
analysis.”).
With regard to Mr. Kitzes’ first opinion (that the Movants failed to act as a reasonably
prudent manufacturer and distributor), several courts have prohibited this testimony. See
Leatt, supra; Flock v. Scripto-Tokai Corp., 2001 WL 36390120 (S.D. Tex. September 28,
2001) (“Kitzes may not proffer testimony stating a legal conclusion, e.g., using language
specifically
stating
that
any
party
‘failed
to
act
as
a
reasonably
prudent
manufacturer/distributor,’ that the Aim ‘N Flame lighter at issue was ‘unreasonably
dangerous,’ that any party ‘acted with a conscious indifference and reckless disregard,’ and
similar legal terminology.” citing United States v. Wood, 207 F.3d 1222, 1235-36 (10th Cir.
2000); Sowell v. United States, 198 F.3d 169, 171-72 (5th Cir. 1999); Askanase v. Fatjo,
130 F.3d 657, 672-73 (5th Cir . 1997); Torres v. County of Oakland, 758 F.2d 147, 150-
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51 (6th Cir. 1985); Owen v. Kerr-McGee Corp., 698 F.2d 236, 239-40 (5th Cir. 1983);
Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 685-86 (8th Cir. 1981)); Landrin
v. MGA Entertainment, Inc., 2006 WL 5249735, *10 n. 4 (S.D. Fla. January 5, 2006).
With respect to the second opinion (that the Movants failed to perform an adequate
risk assessment), Kitzes merely makes the conclusory statement that Movants’ risk
assessment was “inadequate” without in any manner indicating why or how. He does not
even address Movants’ risk assessment. Kitzes does not cite any industry standards or
identify any tests that he contends Hearthmark should have, but failed to, perform. At his
deposition, Kitzes admitted that he had not even reviewed Hearthmark’s product safety
plan and could not say that the defendants’ safety “protocol was necessarily bad.” (Kitzes
Dep. at 44, 100.).
He acknowledged that before selling the product, Hearthmark investigated whether
there had been incidents with similar products, investigated the industry standards
governing the use of alcohol-based fire starters, took steps to ensure the product was
optimal for the characteristics of wood and pellet stoves and obtained independent testing.
When asked for support for this opinion at his deposition, Kitzes was unable to identify even
a single test that was not performed but should have been. (Id. at 99 (“I do not think that
I know of other testing, maybe somebody else does, that they needed to do to understand
the hazards in the product.”); see also id. at 101-02 (“A. I’m not the guy to ask how to do
those tests because it’s outside my area, but those tests need to be done. Q. Can you tell
me what tests those are? A. No.”)).
With respect to the third opinion (that Movants failed to adequately warn), Kitzes
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does not claim that the labeling for Diamond Gel was inadequate to alert consumers to
product hazards because, for example, of unclear or inconspicuous language. He certainly
does not claim that the label failed to warn consumers effectively that the product and its
vapors were flammable, could irritate the skin or eyes, and that it should be kept away from
children. Kitzes instead opines that Diamond Gel presents an “explosion” and “flashback”
risk if applied to embers or a fire with respect to which Moving Defendants should have
warned. (Kitzes Rept. at 30).
Determining what hazards a consumer product presents involves scientific and
technical analyses a “warnings” expert, such as Kitzes claims to be, is unqualified to make.
Kitzes does not rely upon any opinions proffered by plaintiffs’ other experts to bridge the
gap between his lack of expertise and his conclusions about the risks which should have
been identified on the label. (Kitzes Rept. at 31-32 (“Materials Reviewed”)).
With respect to Opinions 4, 5 and 6, dealing with the provisions and requirements
of the Federal Hazardous Substances Act and the Consumer Product Safety Act, such
opinions will be excluded. Payne v. A.O. Smith Corp., 627 F.Supp. 226, 228 (S.D. Ohio
1985); Landrin, supra at *10.
With respect to Mr. Kitzes’ final opinion (that the label created an “unreasonably
dangerous condition” and that the Movants acted with a “clear and conscious disregard for
the safety of consumers”), the same is excluded. Flock v. Scripto-Tokai Corp., 2001 WL
36390120 (S.D. Tex. September 28, 2001) (“Kitzes may not proffer testimony stating a
legal conclusion, e.g., using language specifically stating that any party ‘failed to act as a
reasonably prudent manufacturer/distributor,’ that the Aim ‘N Flame lighter at issue was
11
‘unreasonably dangerous,’ that any party ‘acted with a conscious indifference and reckless
disregard,’ and similar legal terminology.” citing United States v. Wood, 207 F.3d 1222,
1235-36 (10th Cir. 2000); Sowell v. United States, 198 F.3d 169, 171-72 (5th Cir. 1999);
Askanase v. Fatjo, 130 F.3d 657, 672-73 (5th Cir . 1997); Torres v. County of Oakland,
758 F.2d 147, 150-51 (6th Cir. 1985); Owen v. Kerr-McGee Corp., 698 F.2d 236, 239-40
(5th Cir. 1983); Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 685-86 (8th Cir.
1981)); In re Yamaha Motor Corp. Rhino ATV Products Liability Litigation, 816
F.Supp.2d 442, 459-60 (W.D. Ky. 2011).
In summation, all of the opinions reflected in Mr. Kitzes report are excluded. Mr.
Kitzes may, however, “explain to the jury what a risk assessment is and describe to them
the steps a manufacturer would take to perform the risk assessment of a consumer
product, but he may not comment on the conclusions reached by defendant in conducting
its safety analysis. Nor may he testify as to a causal connection between defendant's
safety assessment and plaintiffs' injuries.” Kent v. Robert Bosch Tool Corp., 2009 WL
5492128, *2 (D. Mass. January 23, 2009).
Accordingly, defendant Hearthmark, LLC and Wal-Mart Stores, Inc.’s Motion to
Exclude the Testimony of Plaintiffs’ Expert William Kitzes [Doc. 457] and C.K.S. Packaging,
Inc.’s Motion to Exclude the Opinions and Testimony of William Kitzes [Doc. 483] are
GRANTED IN PART and DENIED IN PART.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
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DATED: January 16, 2014.
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