United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge
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.
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.
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).
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).
Defendants' Motion to Exclude Jahan Rasty (Dkt. No.
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.)
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.)
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
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.
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.
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. (Dkt. No. 89-2 at
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
Defendants' Motion to Exclude Stuart M. Statler (Dkt. No.
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. ...