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Moore v. BPS Direct, LLC

United States District Court, D. South Carolina, Charleston Division

July 8, 2019

Gene Victor Moore, Plaintiff,
v.
BPS Direct, LLC, Bass Pro, LLC, Global Manufacturing Company, LLC, G.M.C., LLC, and Mainstream Holdings, Inc., Defendants.

          ORDER AND OPINION

          Richard Mark Gergel, United States District Court Judge

         This matter is before the Court on six motions to exclude experts: Defendants' Motion to Exclude or Limit the Testimony of Jahan Rasty (Dkt. No. 78), Defendants' Motion to Exclude or Limit the Testimony of Stuart Michael Statler (Dkt. No. 79), Defendants' Motion to Exclude or Limit the Testimony of Jo Anna Vander Kolk (Dkt. No. 80), Defendants' Motion to Exclude or Limit the Testimony of Dr. Oliver G. Wood, Jr. (Dkt. No. 81), Plaintiffs Motion to Exclude or Limit the Testimony of Lome Smith, Jr. (Dkt. No. 73) and Plaintiffs Motion to Exclude or Limit the Testimony of George M. Saunders (Dkt. No. 84). For the reasons set forth below, the Court grants in part and denies in part the motions.

         I. Background

         This is a products liability case arising out an injury sustained by Plaintiff Gene Victor Moore allegedly from the use of an API Crusader Climbing Treestand ("Crusader Treestand") manufactured by Defendants Mainstream Holdings, Inc. and Global Manufacturing Company, LLC and sold by Defendants BPS Direct, LLC and Bass Pro, LLC. (Dkt. No. 53.) The Parties filed cross-motions for summary judgment. (Dkt. Nos. 76, 77, 82.) In conjunction with the summary judgment briefing, the Parties have filed these six Daubert motions to exclude or limit the testimony of the Parties' experts. Each one has been fully briefed, with the opposing Party responding to the motion.

         II. Legal Standard

         Under Rules 104(a) and 702 of the Federal Rules of Evidence, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Thus, even if a witness is "qualified as an expert by knowledge, skill, experience, training or education," the trial court must ensure that (1) "the testimony is the product of reliable principles and methods," that (2) "the expert has reliably applied the principles and methods to the facts of the case," and (3) that the "testimony is based on sufficient facts or data." Fed.R.Evid. 702(b) - (d). "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid," Daubert, 509 U.S. at 592 - 93, and whether the expert has "faithfully appl[ied] the methodology to facts," Roche v. Lincoln Prop. Co., 175 Fed.Appx. 597, 602 (4th Cir. 2006).

         Factors to be considered include "whether a theory or technique...can be (and has been) tested," "whether the theory or technique has been subjected to peer review and publication," the "known or potential rate of error," the "existence and maintenance of standards controlling the technique's operation," and whether the theory or technique has garnered "general acceptance." Daubert, 509 U.S. at 593 - 94. However, these factors are neither definitive nor exhaustive, United States v. Fultz, 591 Fed.Appx. 226, 227 (4th Cir. 2015), cert, denied, 135 S.Ct. 2370 (2015), and "merely illustrate[] the types of factors that will bear on the inquiry." United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). This is especially true as the Daubert standard applies to non-scientific expert testimony as well. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

         III. Discussion

         A. Defendants' Motion to Exclude Jahan Rasty (Dkt. No. 78)

         Defendants BPS Direct, LLC, Bass Pro, LLC, Global Manufacturing Company, LLC, G.M.C., LLC, and Mainstream Holdings, Inc. (collectively "Defendants") move to exclude, or in the alternative limit, the testimony of Jahan Rasty, Ph.D., P.E., Plaintiffs mechanical engineering expert. (Dkt. No. 78.) Defendants first argue that Dr. Rasty is not qualified to offer expert testimony as a mechanical engineer as he has no experience with the design and manufacture of treestands. (Dkt. No. 78-1 at 26.) Next, Defendants argue that Dr. Rasty's testing of the Crusader Treestand is unreliable as it was speculative and based on an "approximation." (Id. at 30 - 31.) Finally, Defendants also seek to preclude testimony on a variety of topics in which Dr. Rasty allegedly has no expert knowledge. (Id. at 19 - 20.) Plaintiff opposes the motion. (Dkt. No. 89.)

         Dr. Rasty is clearly qualified as a mechanical engineering expert to opine on the Crusader Treestand and the effects of a hole created during the welding in the manufacturing process. Dr. Rasty is a tenured professor at Texas Tech University, is the program director of the Forensic Engineering Accident Investigation at Texas Tech, and holds a Ph.D. in mechanical engineering. (Dkt. No. 89-7.) He further has served as a forensic engineer for over thirty years. (Id.) Dr. Rasty's qualifications to provide similar testimony in products liability cases has been recognized by other courts. See Garcia v. Wheelabrator Grp., Inc., No. 3:10-CV-1253-P, 2011 WL 13232701, at *2 (N.D. Tex. Nov. 3, 2011); Ashford v. City of Galveston, No. CIV.A. G-03-038, 2005 WL 5994181, at *1 (S.D. Tex. Nov. 9, 2005). Further, Dr. Rasty does not need experience consulting on the exact treestand at issue here to be qualified as an expert. See Wheeler v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) ("In a products liability action, an expert witness is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight.") (collecting cases); Wilhelm v. Ameristep Corp., No. 7:15-CV-00362, 2018 WL 6272911, at *9 (W.D. Va. Nov. 30, 2018) (declining to exclude mechanical engineer testifying regarding a treestand regardless of his lack of experience with treestands generally). Regardless, as acknowledged by Defendants, Dr. Rasty has previously reviewed and consulted on between six and twelve treestand cases, and therefore does have relevant experience about the product at issue. (Dkt. Nos. 78-1 at 12; 78-12 at 4; 89 at 10.)

         Defendants next argue Dr. Rasty's opinion regarding the effects of a welding hole created during the manufacturing process and the reason for the Treestand's failure are speculative and based on an "approximation," and therefore not reliable under Rule 702 or Daubert. To begin with, Defendants spend much of their motion arguing that their engineering experts, including Dr. George Saunders who is also subject to a Daubert motion, opine that Dr. Rasty came to incorrect conclusions and used incorrect methods. Dr. Rasty, unsurprisingly, opines in a detailed rebuttal report that Dr. Saunders came to incorrect conclusions and used incorrect methods. (Dkt. No. 89-5.) The Court will not weigh the evidence, and instead these disagreements may be addressed through testimony and cross-examination.

         Defendants next argue that Dr. Rasty's opinions regarding the effect of a hole created during the welding is speculative since he testified that his tests were an "approximation." However, while Dr. Rasty testified that his tests did not determine the "magnitude-wise" amount of energy necessary for the Crusader Treestand to fail with "a hundred percent accuracy," he explained that the test was a "comapri[son]" that was able to determine whether "the existence of a hole is a detriment" and reduces the amount of energy necessary for the Crusader Treestand to fail. (Dkt. No. 78-12 at 32.) Certainly, the level of precision is an acceptable topic for cross-examination, but the test was not an unreliable approximation. Further, as opposed to in Oglesby v. Gen. Motors Corp., 190 F.3d 244 (4th Cir. 1999), a case cited by Defendants, Dr. Rasty did not opine that his explanation of the failure was not "no more likely than other available possibilities...." Id. at 251. Instead, Dr. Rasty was able to testify with a reasonable degree of scientific certainty that it was "[m]ore likely than not" that the hole "intensified the stresses due to the weight of Mr. Moore, and that is what caused the failure." (Dkt. No. 78-12 at 8.) Dr. Rasty is therefore both qualified to offer opinions regarding the Treestand and his opinions regarding the manufacturing defects and the effects of the hole created during the welding process are sufficiently reliable to be admissible under Daubert and Rule 702. The matters raised by the Defendants may be used during cross-examination, but Dr. Rasty's opinions regarding the manufacturing and design of the Crusader Treestand, and the reason for the Treestand's failure, are admissible.

         Dr. Rasty, however, does offer opinions on which he is unqualified. First, Dr. Rasty opines that, had Plaintiff been wearing a harness at the time of the incident, he may have become suspended for an extended period of time and suffered "suspension trauma which can lead to death in as little as 30 minutes." (Dkt. No. 89-2 at 30.) Dr. Rasty is not a medical doctor and there is no indication he has any medical training, nor does he have any other expertise in "suspension related injuries." Dr. Rasty further acknowledged he is not an expert in suspension trauma or safety harness application. (Dkt. No. 78-12 at 7.) Dr. Rasty's is therefore precluded from testifying regarding Plaintiffs use of the safety harness and potential for injury, as discussed in Section 8.14 of his report.

         Dr. Rasty's opinions regarding the applicability of OSHA standards and the sufficiency of certain warning labels on the Treestand also must be excluded. Regarding the OSHA labels, there is no indication that Dr. Rasty has any experience with OSHA safety standards or their application or otherwise any legal experience permitting him to opine on their applicability. Further, the opinions are unreliable. Notably, Dr. Rasty relies on 29 C.F.R. § 1917.118, the OSHA standard for fixed ladders, to opine that the Treestand here should have had a factor of safety of 4. (Dkt. No. 89-2 at 25.) However, the OSHA regulation is clear that "[f]ixed ladder means a ladder, including individual rung ladders, permanently attached to a structure, building or piece of equipmen[, ]" which clearly does not apply to a movable treestand. 29 C.F.R. § 1917.118(b)(2). Dr. Rasty's reliance on 29 CFR § 1926, regulations for scaffolding, is deficient for the same reasons. Therefore, Dr. Rasty's opinion in Section 8.10 on OSHA regulations and their relevance here are excluded.[1] (Dkt. No. 89-2 at 29.)

         Finally, Dr. Rasty is not qualified to offer the opinions regarding the sufficiency of warnings contained in Section 5 of his rebuttal report. (Dkt. No. 89-5.) Dr. Rasty is a mechanical engineer, and while his CV demonstrates that he has extensive knowledge of engineering and structural analysis, including analyzing the cause of device failures, there is no indication he has any qualifications regarding the adequacy of warnings on equipment. (Dkt. No. 89-7.) See Briley v. Wal-Mart Stores, Inc., No. 2:15-CV-439, 2018 WL 276368, at *8 (S.D. Tex. Jan. 3, 2018) (excluding Dr. Rasty's testimony regarding reasonableness of safety policies because nothing "in Dr. Rasty's experience or training.. .would qualify him as an expert on these issues: his specialized knowledge relates to mechanical engineering, not retail safety."); Sittig v. Louisville Ladder Grp. LLC, 136 F.Supp.2d 610, 616 (W.D. La. 2001) (excluding engineers who would have, in part, testified regarding "inadequate warnings" because "neither has written warnings for ladders or conducted any research or inquiries into the area of ladder warnings."). Therefore, Dr. Rasty's opinion in Section 5 of his rebuttal report regarding the adequacy of warnings is also excluded.

         B. Defendants' Motion to Exclude Stuart M. Statler (Dkt. No. 79)

         Defendants move to exclude, or in the alternative limit, the testimony of Stuart Michael Statler, Plaintiffs expert regarding best practices for manufacturers and retailers of consumer products. (Dkt. No. 79.) While Defendants generally seek to exclude Statler from testifying regarding the "design and manufacture" of the Crusader Treestand (Dkt. No. 79-1 at 2), Statler does not seek to offer opinions specifically on these topics. Instead, Statler offers three overall opinions in his report: first, that Defendant Global did not follow best manufacturing and marketing practices to discover and prevent risks from the Crusader Treestand, relying on a handbook published by the Consumer Product Safety Commission ("CPSC"); second, that Defendant Global should have known about the risk from the Crusader Treestand based on a prior incident that was reported to the CPSC and Defendant Global involving a nearly identical treestand from a different manufacturer, and; third, that Defendants failed to take appropriate action in accordance with their own internal policies and federal regulations after knowledge of the prior failure. (Dkt. No. ...


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