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Patenaude v. Dick's Sporting Goods, Inc.

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

October 18, 2019

Hunter J. Patenaude, Plaintiff,
Dick's Sporting Goods, Inc., and Shock Doctor, Inc., Defendants.



         This matter is before the Court on Defendants' Motion to Exclude Plaintiffs Expert John Lloyd, Ph.D., CPE (Dkt. No. 43). For the reasons set forth below, the Court denies the motion.

         I. Background

         This is a products liability case arising out an injury sustained by Plaintiff Hunter Patenaude when using a CORE Bioflex athletic cup manufactured by Defendant Shock Doctor, Inc. and sold by Defendant Dick's Sporting Goods, Inc. (Dkt. No. 1-1.) In brief, Plaintiff alleges that while wearing the Bioflex cup while playing lacrosse, Plaintiff was struck by a lacrosse ball on the bottom left side of the cup. (Dkt. No. 43-1 at 23.) Ultimately, it was determined that Plaintiff had a fractured left testicle, which was removed. (Dkt. No. 43-2.) Plaintiff brings products liability claims for strict liability, negligence and breach of warranty. (Dkt. No. 1-1.)

         Defendants filed a motion for summary judgment. (Dkt. Nos. 53.) In conjunction with the summary judgment briefing, Defendants also moved to exclude Plaintiffs expert John Lloyd, Ph.D, CPE ("Dr. Lloyd"). (Dkt. No. 43.) Defendants argue generally that Dr. Lloyd's opinions are unreliable as his testing inaccurately approximated real-world conditions, failed to make a causal connection between his testing and Plaintiffs injury, and did not apply the "risk utility test" applied by South Carolina to products liability cases. (Id.) Plaintiff opposes the motion, and Defendants filed a reply. (Dkt. Nos. 62, 64.)

         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

         Defendants do not dispute Dr. Lloyd's qualifications and it is clear from the Court's review that Dr. Lloyd is qualified to issue an opinion regarding the performance of the Bioflex cup, and other athletic cups, and assess whether they provide adequate protection from injury. (Dkt. No. 43-7.) Dr. Lloyd holds a Ph.D in ergonomics and biomechanics, has various relevant certifications and has worked in the field of ergonomics, biomechanics, human factors analysis and accident reconstruction for over thirty years. (Dkt. Nos. 43-7 at 15 - 16.) Dr. Lloyd is therefore clearly qualified to offer his opinions here. As Dr. Lloyd is qualified, the Court assess the content and reliability of his opinions.

         Here, Dr. Lloyd assessed six different models of athletic cups.[1] (Dkt. No. 43-7 at 5.) For each athletic cup, Dr. Lloyd attached the cup to a male mannequin. (Id. at 6.) Eight feet away, Dr. Lloyd set up a BATA-2 baseball pitching machine, and shot baseballs at 70 miles per hour at the athletic cup. (Id. at 5 - 6.) Dr. Lloyd also set up a high-speed camera to capture the impacts. (Id.) Dr. Lloyd noted he used baseballs as the pitching machine would not accommodate lacrosse balls, though he noted that baseballs are identical in weight to lacrosse balls. (Id.) Dr. Lloyd stated he used 70 miles per hour based on an article noting that the speed is the average shooting speed of a high-school lacrosse player. (Id. at 6.) Each athletic cup was tested five times unless the cup "failed" during testing. (Id.) For each model of athletic cup, the report contains a variety of pictures of the cup, and then includes pictures of the impacts of the baseballs, with Dr. Lloyd noting whether there was "deformation." (Id. at 7.) Notably, the CORE Bioflex cup at issue here compressed significantly when struck by a baseball. (Id.) Other athletic cups, such as the Shock Doctor Titan, Nutshellz Level 2 Armor and Martin athletic cup did not noticeably deform or have major damage to the cup. (Id. at 8 - 9, 12.) For the cups that did not deform or showed minimal damage, Dr. Lloyd concluded that they would "protect[] the male genitalia from injury." (Id.) Therefore, based on these tests, Dr. Lloyd concluded to a "reasonable degree of scientific certainty" that the CORE Bioflex cup provided inadequate protection from injury from a "moderate speed ball," and had Defendant Shock Doctor evaluated the CORE Bioflex cup in this manner it would have learned the product "provides inadequate protection against injury to the male genitalia" and that the CORE Bioflex cup should have been designed to "similar specifications" as other athletic cups which did not deform, including their own stainless-steel Titan cup. (Id. at 13.)

         Defendants fault Dr. Lloyd for failing to include the "quantifiable information" regarding each athletic cup (eg, length, width, height), yet while this might be relevant information for cross-examination, it is not necessary where Dr. Lloyd's report assessed, as described in his report and as is clear from reviewing the report, "performance of the various protective cups upon impact from a 70 mph baseball[.]" (Dkt. No. 43-7 at 6.)

         Next, Defendants assert a variety of issues with the set-up of the testing. Namely, Defendants argue that Dr. Lloyd should not have used a baseball, that 70 miles per hour was an incorrect speed to use, that the baseballs struck the athletic cups in the center rather than on the side, that the report fails to include information regarding the mannequin, and that the athletic cups were affixed by an elastic band rather than in compression shorts. (Dkt. No. 43 at 10 - 12.) Defendants cite to no case-law to support these grounds for exclusion, and instead rely almost entirely on the report of their own expert, Dr, Scotty G. Piland, Ph.D, a seven-page report without independent testing, that Dr. Lloyd set up his tests incorrectly and came to incorrect conclusions. (Id.; Dkt. No. 64 at 4 - 9.) The Court will not weigh the evidence between two sparring experts, and instead these disagreements may be addressed through testimony and cross-examination and must be resolved by a fact-finder, not the Court on summary judgment.[2] More fundamentally, each of these arguments goes to the factual basis of the report, namely, whether the testing was structured in such a way to reasonably assess the athletic cup at issue here, and it is well settled that the factual basis for an expert opinion generally goes to weight, not admissibility. Synergetics, Inc. v. Hurst, 477 F.3d 949, 955 (8th Cir. 2007) ("As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.") (citations omitted). Defendants can address the use of baseballs, the mannequin, the direction of the ball and the way the athletic cups were attached on cross-examination, yet none of these arguments render Dr. Lloyd's opinion unreliable so as to be inadmissible.

         Defendants next argue that Dr. Lloyd failed to draw a "causal connection" between his testing and the injury suffered by Plaintiff. (Dkt. No. 43 at 12.) Defendants seemingly expand this argument in their Reply, noting that Dr. Lloyd did not "quantify anything that was actually happening to the.. .mannequin" and therefore did not conduct a "biomechanical analysis" to assess the "causal claim." (Dkt. No. 64 at 2 - 4.) Again, Defendants have identified no cases indicating that quantification is required in order for a human factors or ergonomic expert to testify regarding causation, and instead his report contains close-up photographs of the CORE Bioflex athletic cup significantly compressing when struck by a baseball. (Dkt. No. 43-7.) Indeed, contrary to Defendants' position, Dr. Lloyd does opine regarding a causal connection, relying on the clear photographs to conclude that the compression "would result in transfer of the impact energy to the male genitalia, with injury-producing consequences." (Id. at 8.) These photographs and Dr. Lloyd's ...

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