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Hickerson v. Yamaha Motor Corp. U.S.A.

United States District Court, D. South Carolina

December 16, 2016

Deborah Meek Hickerson, Plaintiff,
v.
Yamaha Motor Corporation, U.S.A., and Yamaha Motor Co., Ltd., Defendants.

          ORDER AND OPINION

         This matter is before the court on Plaintiff Deborah Meek Hickerson's (“Plaintiff”) Fed.R.Civ.P. 59(e) motion to alter or amend the court's previous order granting summary judgment to Defendants Yamaha Motor Corporation, U.S.A., and Yamaha Motor Co., Ltd. (“Defendants”). (ECF No. 110.) The motion has been fully briefed (see id.; ECF Nos. 112, 114, 120), and, for the reasons below, the court DENIES the motion.

         I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         A. Underlying facts

         This is a products liability case involving Yamaha VXS WaveRunner personal watercrafts (“PWCs”), which are designed and manufactured by Defendants. On or about June 30, 2012, Plaintiff attended a gathering with friends at Lake Hartwell in South Carolina, where individuals were riding the PWCs as part of the activities. Later that day, Plaintiff decided to ride one of the PWCs, which contained an orange, black, and white warning label located below the handlebars in front of the PWC's operator. The warning stated, in part:

WEAR PROTECTIVE CLOTHING: SEVERE INTERNAL INJURIES CAN OCCUR IF WATER IS FORCED INTO BODY CAVITIES AS A RESULT OF FALLING INTO WATER OR BEING NEAR JET THRUST NOZZLE.
NORMAL SWIMWEAR DOES NOT ADEQUATELY PROTECT AGAINST FORCEFUL WATER ENTRY INTO RECTUM OR VAGINA. ALL RIDERS MUST WEAR A WET SUIT BOTTOM OR CLOTHING THAT PROVIDES EQUIVALENT PROTECTION (SEE OWNER'S MANUAL).

(ECF No. 70-5 at 3.) Beside that specific warning was an image of a person with clothing labeled as a “wet suit bottom.” (Id.)

         Toward the rear of the PWC was a second warning, which stated:

WARNING: SEVERE INTERNAL INJURIES CAN OCCUR IF WATER IS FORCED INTO BODY CAVITIES AS A RESULT OF BEING NEAR JET THRUST NOZZLE. WEAR A WETSUIT BOTTOM OR CLOTHING THAT PROVIDES EQUIVALENT PROTECTION. DO NOT BOARD PWC IF OPERATOR IS APPLYING THROTTLE.

(Id.)

         Plaintiff, wearing a bikini, proceeded to ride the PWC as the rearmost passenger along with three other individuals without having read any of these warnings. (See generally ECF No. 70-2 at 4.) After Plaintiff was seated on the PWC, the driver accelerated, causing Plaintiff to fall off the back of the PWC and into the jet stream. The jet stream, which was propelling the PWC, caused serious injuries to Plaintiff's anus, rectum, perineum, and vagina. (See ECF No. 19.)

         Alleging that the PWC included inadequate warnings and was defectively designed, Plaintiff filed suit against Defendants alleging claims of strict liability and negligence as well as a claim for breach of warranty. (See generally id.)

         B. Order granting in part motion in limine to exclude expert testimony

         After discovery, Defendants filed a motion in limine to exclude the testimony of Plaintiff's expert witness, Dr. Anand Kasbekar (ECF No. 71), which, on July 29, 2016, the court granted in part and denied in part (ECF No. 104). Because disposition of a good portion of the instant motion depends upon a correct understanding of the court's prior order deciding the motion in limine, a summary of that order is set forth here. Regarding warning labels, the court understood Plaintiff to anticipate that Dr. Kasbekar would present two lines of testimony. First, Dr. Kasbekar would testify that the warnings on the PWC at issue in this case were inadequate because they should “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.” (ECF No. 104 at 5 (citing ECF No. 71-7 at 55).) Dr. Kasbekar, the court noted, had summarized his opinion in his report as follows:

“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.”

(Id. (quoting ECF No. 71-12 at 2).) Second, in addition to “opini[ng] on the inadequacy of the [PWC]'s warning, ” Dr. Kasbekar would also testify regarding “his proposal for an alternative warning system in this case.” (Id. at 8.)

         Defendants argued that Dr. Kasbekar's testimony regarding such opinions should be excluded for two reasons-because Dr. Kasbekar is not qualified to offer warnings opinions and because his warnings opinions were unreliable under Daubert.[1] (Id. at 4 (citing ECF No. 71-1 at 7-10, 15-24).) The court disagreed with Defendants' first argument, concluding that the evidence Defendants pointed to was “not enough to exclude Dr. Kasbekar's warnings opinion testimony on the grounds that he is not qualified” and that, “[i]nsofar as Dr. Kasbekar['s] 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.” (Id. at 6-7.)

         Proceeding to the other requirements for the admission of expert testimony, the court agreed with Defendants' second argument-that Dr. Keskebar's warnings opinion testimony should be excluded as unreliable. (Id. at 7-10.) Defendants rightly observed that Dr. Kasbekar did not test his proposed warning system and that he cited no studies to support his opinions, and they argued for application of a brightline rule excluding opinion testimony in such circumstances. (See ECF No. 71-1 at 23-24.) The court rejected a brightline approach, concluding, instead, that the absence of testing is one important factor, among others, in determining the reliability of expert testimony on a proposed warning system. (ECF No. 104 at 8-9 (citing Thomas v. Bombardier Recreational Prods., Inc., 2010 WL 4188308, at *6 (M.D. Fla. 2010); Jaurequi v. John Deere Co., 971 F.Supp. 416, 428-29 (E.D. Mo. 1997)).) Nonetheless, taking this factor into account, the court determined that Dr. Kasbekar's opinion testimony was not reliable under Daubert. Although the court noted that “[t]o inform both his opinion on the inadequacy of the [PWC]'s warning and his proposal for an alternative warning system, ” Kasbekar relied on work by Dr. Mike Maddox and Dr. Edward Karnes (id. at 8), this was not enough. In reaching its conclusion, the court explained that

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 nor his report-on which he relies to inform his proposed warnings system or his opinion that the warnings are inadequate and insufficient. 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. 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.
Plaintiff's response that Dr. Kasbekar relies on years of experience, classes and education, and knowledge to develop his proposed warning system opinion, does 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 . . . .

(Id. at 9-10 (internal citations and quotation marks omitted).)

         Although, in much of this analysis, the court applied its reasoning to both lines of Dr. Kasbekar's anticipated testimony-i.e., his opinion that the PWC's warnings were inadequate and his opinion regarding his proposed warning system-the order did not specifically exclude testimony from Dr. Kasbekar that the PWC's warnings were inadequate. Instead, the court “conclude[d] 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.'” (Id. at 10 (quoting Fed.R.Evid. 702).) Thus, although it is clear that the court's order excluded Dr. Kasbekar's opinion testimony as to his proposed warning system, it is not clear that it excluded his opinion testimony as to the inadequacy of the PWC's warning. (See Id. at 10 (granting motion “with respect to Dr. Kasbekar's proposed warnings system opinion”); id. at 17 (“Specifically, Dr. Kasbekar's testimony as to the proposed warnings opinion will be excluded.”).)[2]

         C. Order granting motion for summary judgment

         On the same day they filed their motion in limine, Defendants also filed a motion for summary judgment (ECF No. 70.), which the court later granted by an August 16, 2016 order (ECF No. 106). The court's order granting Defendants' summary judgment motion is the subject of Plaintiff's instant Rule 59(e) motion to alter or amend.

         1. Inadequate warnings claims

         The court began its analysis by addressing Plaintiff's negligence and strict liability claims based on the PWC's allegedly inadequate warnings and concluded that Plaintiff had failed to adduce sufficient evidence to support such claims. (Id. at 4-10.) The court reached this conclusion for two reasons.

         First, the court concluded that Plaintiff had failed to adduce sufficient evidence that the warnings were inadequate. (Id. at 5-9.) Under South Carolina law, “‘[g]enerally, the question of the adequacy of the warning is one of fact for the jury as long as evidence has been presented that the warning was inadequate.'” Brewer v. Myrtle Beach Farms Co., Inc., No. 2005-UP-508, 2005 WL 7084354, at *3 (S.C. Ct. App. Aug. 30, 2005). The court noted that, “[b]ecause the adequacy of warnings in products liability cases tend to implicate the study of human factors and other industry standards, . . . expert testimony is perhaps the most appropriate form of evidence to support Plaintiff's claims since those areas are generally beyond the common knowledge of a jury.” (ECF No. 106 at 6 (citing Fed.R.Evid. 702(a); Watson v. Ford Motor Co., 699 S.E.2d 169, 175 (S.C. 2010); Babb v. Lee Cnty. Landfill SC, LLC, 747 S.E.2d 468, 481 (S.C. 2013)).) The court also noted that Plaintiff's primary evidence in support of inadequacy had been Dr. Kasbekar's expert opinion testimony regarding the PWC's warnings, as he had summarized in his report. (Id. at 6.) Recognizing that its previous order excluded Dr. Kasbekar's testimony as to his proposed warning system, the court determined that this would also result in exclusion of his testimony as to the adequacy of the PWC's warnings:

While this court determined that Dr. Kasbekar was qualified as an expert to issue []his opinion, it concluded that his proposed warnings system-which he developed ostensibly to ground his expert opinion that the product's warnings were inadequate and insufficient-should be excluded due to its unreliability under the standards of Fed.R.Evid. 702.
Again, it was Dr. Kasbekar's expert opinion that Plaintiff offered as evidence to support her inadequate warnings allegations. Because this court deemed Dr. Kasbekar's warnings opinion unreliable and therefore excluded it as evidence, this court is now hard-pressed to discern a “genuine dispute as to any material fact” for Plaintiff to show in order to ...

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