United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION AND ORDER
Elizabeth K Dillon United States District Judge.
products liability case, plaintiff Kevin Wilhelm alleges that
he was injured when he fell from about twenty-five feet up in
a tree while installing a tree step. He alleges that he had
fully installed the tree step into the tree but that a defect
in the step caused it to break into two pieces while he was
standing on it. Specifically, he asserts that the tree step
broke because of the location and size of an inclusion in its
steel material. Defendants, who manufactured and distributed
the subject tree step, do not dispute that the tree step
broke or that there was an inclusion in it. They argue,
however, that the tree step would not have broken if it had
been fully installed, pointing to the testimony of their own
experts on this point. They also contend that Wilhelm should
not have been using the step at all due to his various health
conditions and that he was either contributorily negligent or
misused the product when he failed to install the tree step
fully and failed to utilize his safety harness at all times
in order to stay attached to the tree- instead, he detached
it from the tree moments before falling.
motions are addressed in this opinion, all of which were
briefed and argued before the court: defendants' motion
for summary judgment, Wilhelm's motion for partial
summary judgment as to a number of affirmative defenses, and
eight motions seeking to exclude some of the other side's
experts on various grounds. Because the expert motions affect
the evidence available to the parties for summary judgment,
the court addresses those first. The court's rulings are
summarized at the end of this memorandum opinion and set
forth in the conclusion as an order.
The Subject Tree Step
tree step at issue in this lawsuit is a product bearing the
brand name of Ameristep Corp.-a 2011 Ameristep Grizzly model
104. It was manufactured by defendant Primal Vantage Company,
Inc., and was purchased by Wilhelm at a Dick's Sporting
Goods store. According to Wilhelm, he had purchased or owned
between 500 and 1, 000 Grizzly model 104 tree steps at the
time of the accident. (Wilhelm Dep. 97, Dkt. No. 196-1.)
tree step looks like a metal pipe that has been formed into a
Z4ike shape, and it is supposed to be made of 10B21 steel.
The user installs the step by screwing the threaded end of
the step into a tree until the vertical leg is nearly pushing
on the tree. The other end has a slight bend to it. Once
installed, the user steps on the tree step, and others, in
order to reach a tree stand. As noted, the parties agree that
there was an inclusion in the steel material from which the
tree step was formed. The inclusion was located about
two-thirds of the way down the threaded portion of the step
(from the step end to the tip end), and the subject tree step
broke at the place where the inclusion was located. Plaintiff
asserts that the inclusion was a manufacturing defect that
weakened the step and allowed it to break, while defendants
assert that it was not a defect.
day of the accident, Wilhelm was installing the subject tree
step and about 24 other tree steps, all of which would be
used at a later date to install a treestand. (Wilhelm Dep.
102.) According to his testimony, Wilhelm was using his
Hunter Safety System full body safety harness and
lineman's belt while he was installing the tree steps. He
owned a secondary tree strap, which could also attach to his
harness, but did not have it with him up in the tree. At the
time of his fall, he had installed about 20 tree steps by
hand already. (Wilhelm Dep. 102, 109-10, 114-16, 120.)
was approximately 25 feet up in the tree when he approached a
"Y" in the tree. At that point, he unhooked his
lineman's belt to ascend above the "Y" in the
tree. As noted, he did not have the tree strap (which
attaches to the back of the safety harness) with him up in
the tree, and he did not intend to use it that day. Wilhelm
explained in his deposition that he believed it was safer to
not use the secondary tree strap, and so he chose instead to
maintain three points of contact (two feet and a hand or two
hands and a foot) while transitioning the" Y" until
he could reconnect his lineman's belt. (Wilhelm Dep.
118-222, 126-27, 135.)
after disconnecting the lineman's belt-and before he
could reconnect it-he fell. According to Wilhelm, he had both
hands on steps above him, he had his right foot planted on
the subject tree step, and then he moved his left foot to
climb up to the next step, shifting his weight to his right
foot as he did so. Although he recalled making contact with
his left leg on the next tree step, it was at that time that
the subject tree step broke and caused him to fall.
(WilhelmDep. 126, 128-33, 135.)
regard to the use of the safety harness, Wilhelm admitted
that, if he had connected the secondary tree strap from the
rear of his full body safety harness to the tree before
disconnecting the lineman's belt, he would not have
fallen to the ground when the tree step broke. But he
testified that he would not have been able to maintain three
points of contact while connecting that secondary strap
because it would have required both hands to connect. He also
testified that he believed that he still would have been
injured, even if he had not fallen to the ground.
Specifically, he testified that he believed he could have
"taken a sustained blow to the head" and suffered
what he called "suspension injuries." He also
admitted that if he had kept the lineman's belt
connected, but not used the safety harness, he would not have
fallen to the ground. But he testified that he could not have
"transitioned the Y" without removing the
lineman's belt. (WilhelmDep. 120-28, 134-35.)
have a different version of how the accident occurred. First
of all, they point to certain physical evidence to support
their assertion that Wilhelm did not fully insert the tree
step. This includes evidence that wood fibers and scratched
surface paint were found only around a portion of the
threaded portion of the tree step up to the inclusion, rather
than the entire length of the threaded portion-as one would
expect had the tree step been fully installed. (Defs.'
Resp. to PL's Mot. Partial Summ. J. 3, Dkt. No. 134, at
They also point out that Wilhelm testified he would normally
not have placed two steps next to each other where he did,
but he did so in order to stand on them to transition the
"Y." (Id.) From this, they argue that he
was using the subject tree step in a "temporary
location," and they rely on all of these facts and
expert witness testimony to assert that he likely did not
perform a full installation of the subject tree step.
also claim that their experts' testing "is
consistent with Plaintiff falling after disconnecting] his
lineman's belt and grabbing the subject tree step to
attempt to recover from a fall." (Defs.' Mem. Supp.
Mot. Summ. J. 5, Dkt. No. 130, at 10.) In addition to their
experts' testing, they point to EMS records where Wilhelm
reported that he "fell 25 feet putting up [a] treestand,
[and] thinks he ripped his right shoulder trying to catch
self. . . ." (Id. (quoting Medical Record,
Defs.' Ex. 11).) They claim that their testing shows that
a "dynamic" force must have acted upon the tree
step to break it; Wilhelm's simply stepping on it could
not have caused the break. (Id.) Their theory of the
accident, therefore, appears to be that he did not fully
install the step, that something else caused him to slip or
fall, and that, as he was falling, he grabbed at the tree
step and it broke. (Id. at 14-15, Dkt. No. 130, at
19-20) (quoting defense expert Vogler's conclusion that
"for the subject tree step to fracture at the location
of the inclusion would require both improper installation and
a rapidly applied dynamic load").)
has claimed that certain injuries resulted from the accident,
including a closed head injury that caused a traumatic brain
injury, a Lisfranc fracture to his right foot, injuries to
his right shoulder, and the exacerbation of some pre-existing
injuries, including back problems. But neither causation nor
the extent of his medical injuries are at issue with any of
the motions addressed herein, and so the court does not
address them further.
Claims and Defenses
most recent complaint, plaintiff asserted a negligent design
defect claim and a negligent manufacturing defect claim, as
well as a breach of warranty claim. At the summary judgment
stage, he made clear he was no longer pursuing a design
defect claim. Then, at the pretrial conference held November
29, 2018, he informed the court that he would no longer be
pursuing a negligence claim at all. The dismissal of that
claim renders certain defenses inapplicable under Virginia
law, as the court discusses below.
briefing focused on three affirmative defenses-contributory
negligence, misuse, and assumption of the risk. At the hearing,
defense counsel began discussing "misuse" as a
separate defense, but later clarified that the failure to
install the step properly was part of the contributory
negligence defense, not a separate "misuse"
defense. Defense counsel also indicated that defendants were
not pursuing other affirmative defenses. At the conclusion of
the hearing, therefore, the court understood that defendants
were pursuing only two affirmative defenses: assumption of
the risk and contributory negligence.
in a post-hearing supplemental filing-albeit one that was not
authorized by the court-defendants attempted to
"clarify" statements that counsel made on the
record. (Dkt. No. 203). In contrast to counsel's
representations at the summary judgment hearing, defendants
now state that they are maintaining both a "misuse"
defense and a "failure to mitigate" defense.
According to the filing, the misuse defense is based on the
same actions by Wilhelm that defendants assert were
negligent: using the tree step at all given his medical
conditions, failing to fully install the tree step into the
tree, and failing to properly use his lineman's belt and
secondary tree strap to remain connected to the tree. The
failure to mitigate defense, similarly, is premised on
Wilhelm's failure to properly use his safety harness.
(Dkt. No. 203 at 3-4.) Defendants claim that his injuries
would not have been as severe if he had slipped while
connected to the tree.
light of the fact that the only claim plaintiff will be
pursuing at trial is his breach of warranty claim, the court
concludes that both contributory negligence and assumption of
the risk are no longer applicable in this case. Wood v.
Bass Bro Shops, 462 S.E.2d 101, 103 (Va. 1995).
Defendants have cited no authority to the
contrary. Thus, the court's analysis on summary
judgment will be limited to defendants' assertions of
misuse and failure to mitigate.
Motions to Exclude Experts
noted, there are eight motions in which the parties seek to
exclude part or all of the testimony and/or reports of an
opposing expert. The court first addresses defendants'
motions and then turns to Wilhelm's. The court notes at
the outset, though, that it denies without prejudice all of
the motions to the extent that they argue that certain
evidence should be excluded as cumulative. Whether or not
certain evidence is cumulative depends on the presentation of
evidence at the trial. In the absence of more information
about which witnesses are being called when, what questions
they are being asked, or what their precise testimony is, the
court will not exclude evidence on the basis that it is
cumulative prior to trial. The parties are free to raise that
objection at trial with regard to any evidence, including the
evidence discussed in this opinion.
as to all of the parties' experts, the court notes that
experts will not be permitted to testify as to opinions not
previously and properly disclosed. Likewise, where an expert
testified that he had no opinion about a specific subject, he
may not offer any opinions on that subject.
regard to the remaining grounds for the motions to exclude or
strike, they are based either on an alleged lack of
qualifications of a given expert or on assertions that the
testimony is inadmissible under Federal Rule of Evidence 702
and the standards established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court
discusses briefly the standards governing each of these
potential bases for exclusion of expert testimony.
the qualifications of a proposed expert, a witness may
qualify as an expert on the basis of "knowledge, skill,
experience, training, or education." Fed.R.Evid. 702.
Additionally, the expertise must relate to the areas in which
the expert is expressing opinions. See Thomas J. Kline
Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir.
1989). Exclusion should only occur where all bases for
expertise are lacking with regard to the issue for which the
opinion is offered, and a proffered expert "need not be
precisely informed about all details of the issues raised in
order to offer an opinion." Kopf v. Skyrm, 993
F.2d 374, 377 (4th Cir. 1993) (citing Thomas J. Kline,
Inc., 878 F.2d at 799).
while the test for exclusion may be a "strict one,"
Kopf, 993 F.2d at 377, some type of relevant
expertise is nonetheless required. For example, where
experience is one of the bases for a witness's expertise,
the witness must "explain how [his] experience leads to
the conclusion reached, why [his] experience is a sufficient
basis for the opinion, and how [his] experience is reliably
applied to the facts." Radiance Found., Inc. v.
Nat'l Ass'n for the Advancement of Colored
People, 27 F.Supp.3d 671, 674 (E.D. Va. 2013) (citations
omitted). Additionally, a witness's expertise must be
tailored, to some degree, to the specific opinions offered
and the particular facts in the case; general expertise or
knowledge on a broad topic or general field may be
insufficient, depending on the facts of a case. Shreve v.
Sears, Roebuck & Co., 166 F.Supp.2d 378, 391-92 (D.
Md. 2001) ("The fact that a proposed witness is an
expert in one area, does not ipso facto qualify him
to testify as an expert in all related areas.") (citing
Oglesby v. General Motors Corp., 190 F.3d 244, 247
(4th Cir. 1999)). In Oglesby, for example, the court
held that the testimony of a well-qualified mechanical
engineer was properly excluded where he had no specialized
experience or expertise in evaluating either automobile
manufacturing processes or the strength of plastic automobile
component parts, and he failed to test or analyze the
relevant part. 190 F.3d at 250-51.
regard to Daubert exclusion, the trial judge must
act as a gatekeeper to ensure that any testimony concerning
scientific, technical, or other specialized knowledge offered
in support of a party's claim is "not only relevant,
but reliable." 509 U.S. at 589; Kuhmo Tire Co. v.
Carmichael, 526 U.S. 137, 147 (1999) (quoting same). The
proponent of the testimony must establish its admissibility,
although it need not prove its expert's theory is
correct. Cooper v. Smith & Nephew, Inc., 259
F.3d 194, 199 (4th Cir. 2001); Maryland Cas. Co. v.
Therm-O-Disc, Inc., 137 F.3d 780, 783 (4th Cir. 1998).
Indeed, "[vigorous cross examination, presentation of
contrary evidence and careful instruction on the burden of
proof are traditional and appropriate means of attacking
shaky but admissible evidence." Daubert, 509
U.S. at 596. Nonetheless, "[t]he main purpose of
Daubert exclusion is to protect juries from being
swayed by dubious scientific testimony." Nease v.
FordMotor Co., 848 F.3d 219, 2131 (4th Cir. 2017)
Fourth Circuit has explained the Daubert standard as
a "two-step gatekeeping function" required of trial
courts. First, the trial court must ask whether proffered
scientific evidence is valid and reliable. United States
v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000). The
second question is whether the evidence will help the trier
of fact, which is generally a question of relevance, or
"fit": assuming the evidence is reliable, will it
"assist the trier of fact to understand or determine a
fact in issue." Maryland Cas. Co., 137 F.3d at
784 (quoting Daubert, 509 U.S. at 592.
the inquiry is a flexible one, several factors may bear on
the determination of admissibility of scientific or other
(1) whether a theory or technique can be or has been tested;
(2) whether it has been subjected to peer review and
publication; (3) whether a technique has a high known or
potential rate of error and whether there are standards
controlling its operation; and (4) whether the theory or
technique enjoys general acceptance within a relevant
Daubert, 509 U.S. at 594. In short, the requirement
is designed to ensure that the expert witness "employs
in the courtroom the same level of intellectual vigor that
characterizes the practice of an expert in the relevant
field." Kuhmo Tire Co., 526 U.S. at 152.
Moreover, "nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by
the ipse dixit of the expert." Id. at
157 (quoting General Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997)).
Defendants' motion to exclude plaintiffs metallurgist R.
Craig Jerner, Ph.D.
move to exclude plaintiffs proffered expert R. Craig Jerner,
a metallurgist. Jerner, who along with defense expert Vogler
conducted joint destructive testing of the subject tree step,
passed away unexpectedly after he had prepared his report and
had been deposed. Thereafter, plaintiff retained Dr. Baron as
a substitute metallurgist expert.
argue that Jerner's opinions should be excluded as
hearsay and because they are otherwise inadmissible expert
testimony. Defendants focus largely on their contention that
expert witness reports are inadmissible hearsay and that the
report cannot come in through other experts. In response,
Wilhelm notes the importance of Jerner to his case, and he
also notes that Jerner's report was relied upon by other
experts (and would typically be relied upon by those experts
in their fields) and thus that his report and his opinions
should be admissible. Wilhelm also argues that Jerner's
testimony is not all cumulative with Dr. Baron's despite
defendants' arguments to the contrary. Lastly, Wilhelm
argues that Jerner's deposition testimony is admissible
under Federal Rule of Civil Procedure 32(a)(4)(A).
hearing, defendants did not dispute the admissibility of
Jerner's deposition testimony, nor could they, as it is
clearly allowed under Rule 32(a)(4)(A): "A party may use
for any purpose the deposition of a witness, whether or not a
party, if the court finds that the witness is dead." Of
course, the testimony generally is subject to objections on
the same grounds as if Jerner were testifying. Fed.R.Civ.P.
32(b). On that issue, defendants objected on the grounds that
Jerner's testimony was cumulative to Baron's. As
noted above, the court will not address that prior to hearing
the evidence at trial.
Wilhelm argued in his written briefing that Dr. Jerner's
report itself is admissible, counsel's argument at the
hearing left it unclear to the court as to whether Wilhelm
still seeks to introduce Dr. Jerner's report itself. To
the extent Wilhelm is so arguing, he may assert appropriate
grounds for the admissibility of the report at trial.
extent Wilhelm's other experts rely on Dr. Jerner's
report, however, and to the extent such reliance is
consistent with the practice in these experts' respective
fields, the court concludes that it is appropriate to allow a
discussion of his findings or opinions through those other
experts. Fed.R.Evid. 703 (permitting expert opinion to be
based on inadmissible evidence if it is "of a type
reasonably relied upon by experts in the particular field in
forming opinions of inferences upon the subject");
see Bouygues Telecom, S.A. v. Tekelec, 472 F.Supp.2d
722, 728 (E.D. N.C. 2007) (discussing Rule 703 and explaining
that while an expert cannot be "the mouthpiece" for
another expert, he is entitled to rely on data provided by
another where that data would be relied upon by experts in
the relevant area). This is particularly true in this case,
given that Dr. Jerner was the only expert of Wilhelm's
who had the opportunity to observe and record observations
from the destructive testing of the subject tree step. Thus,
to the extent Dr. Baron or other experts are relying on data
or other supported opinions from Dr. Jerner's report (and
can testify that doing so is generally accepted in their
respective fields), the court will not exclude the testimony
simply because is it based on or incorporates portions of Dr.
Defendants' motion in limine to exclude or limit Robert
West, Jr., Ph.D.
West is a mechanical engineer and professor at Virginia Tech
who testified at length at the hearing. His opinions are
based almost entirely on a specific methodology that he used
to reach his opinions: finite element analysis. Specifically,
he developed a computer model using certain measurements and
known information and then ran the model with a number of
different scenarios (by using different variables and
combinations of variables). From this, the model predicted
the circumstances under which the subject tree step might
break. Perhaps Dr. West's most important opinion is that,
due to the inclusion and other characteristics of the metal
tree step, the tree, and the possible forces acting upon
them, it is possible that the tree step could have broken in
the location of the inclusion-which is where it did
break-even if Wilhelm had fully installed it. Notably, this
is an opinion that is directly contradicted by
defendants' expert, George Saunders.
to Dr. West's report and his testimony at the hearing,
finite element analysis is an accepted methodology in the
field of mechanical engineering and it is a particularly
appropriate approach to a failure problem with a number of
unknown variables, such as the problem here. Dr. West
explained the methodology in some detail during his
raised no real challenge to the use of that method itself,
other than to argue that it was not "real-world
testing" and that their own experts
"proved"-using what they call real-world
testing-that the step could not have broken unless it was
only partially installed and a dynamic load acted upon it.
Based on Dr. West's testimony and the failure of
defendants to present information calling into question the
appropriateness of the methodology itself, the court finds
that the methodology is a generally accepted methodology for
addressing the specific problem here and does not find that
it should be excluded on the grounds that it is not
second challenge to Dr. West's opinions is that his
results are based on incorrect data and assumptions.
Specifically, while not challenging the specific formulas
used in his model, they quote their own expert in saying that
the results are only as good as the data plugged into Dr.
West's formula, and here, that equates to "garbage
in = garbage out." (Defs.' Mem. Supp. Mot. Summ. J.
13, Dkt. No. 130, at 18.) The most notable of these was
defendants' assertion that the model created by Dr. West
used an incorrect measurement of the diameter of the fracture
location. (Id. at 13-14, Dkt. No. 130, at 18-19.)
West insisted, however, that he and Dr. Dowling, a co-author
of several expert reports, both independently measured the
surface using precise instruments, and he insisted that the
diameter used in their model was accurate. When questioned
about this at the hearing, Dr. West offered some
possibilities as to why the measurement might appear
different than what is shown in the two pictures upon which
defendants rely heavily. As to one of the pictures, he noted
that his model used the measurement of 7.65 as the
load-bearing portion of the fractal surface, what he called
the diameter of the thread root. He explained that his
analysis used the thread root diameter as opposed to the
fracture surface diameter "[b]ecause that is the section
of the material that is carrying the load." (Tr. of Dr.
West testimony from Daubert hearing 61, Dkt. No.
225.) Put differently, the fracture surface includes a
portion of the tree step that is not carrying the load. And
he explained that, "[a]s the structure starts to fail
... it will go in what requires the less expense of
energy." (Id. at 62.) With regard to the second
picture, Dr. West essentially explained that he believed the
picture was taken on an angle and he noted that the picture
made it difficult to determine whether a certain area was
part of the thread root. (Id. at 58.)
short, he has offered explanations for the differences
between the data he used and the pictures relied upon by
defendants, and those explanations are not based merely on
his say-so. He also notes that Saunders, defendants'
expert, also measured the root diameter of the thread as 7.65
mm. While defendants are free to pursue vigorous
cross-examination on this topic, the court cannot say that
the analysis is so flawed as to be unreliable and
inadmissible, based on the supposed discrepancies.
also take issue with what they deemed Dr. West's
"inability" to identify the loads and stresses that
are placed at various locations along the tree step. But Dr.
West offered opinions regarding the likelihood of failure
based on a number of different variables, and those were
contained in his reports. The court finds these are adequate,
under his theory and testing, to allow the jury to hear his
court also is not concerned that Dr. West did not test the
precise metal from the subject tree step or the exact limb of
the tree into which it was inserted. Instead, Dr. West
utilized values he obtained through testing or data from
others with experience, and he used a range of values in his
report based on the information provided to him. Thus, the
court does not find that there was a failure to adequately
recreate the conditions that existed. As discussed below,
Wilhelm directs similar criticisms at Saunders's testing,
arguing that his exemplars could not have perfectly recreated
the circumstances that existed. But the finite element
analysis was a reasonable-and scientifically valid-approach
to trying to recreate those values.
hearing, defendants' counsel also maintained the argument
that Dr. West's lack of experience with the product and
"not knowing how it work[s]" rendered him
unqualified to offer his opinions. Defendants made a similar
argument in their motion to exclude the testimony and
opinions of Dr. Baron. They effectively argue that the
experts' lack of experience in analyzing a tree step (or
related or similar products) render them unqualified to offer
opinions here. The two cases that the parties focused on for
purposes of this issue were Pugh v. Louisville Ladder,
Inc., 361 Fed.Appx. 448 (4th Cir. 2010), and Sittig
v. Louisville Ladder Group, LLC, 136 F.Supp.2d 610 (W.D.
La. 2001), both of which involved ladders. The plaintiff in
Pugh alleged that he was injured after the ladder he
was standing on buckled and caused him to fall. He asserted
that the ladder had a manufacturing defect consisting of
microscopic cracks, while defendant argued that the cracks
were created from plaintiff s body falling onto the ladder.
The Fourth Circuit held that the district court did not abuse
its discretion in allowing expert testimony from two
mechanical engineers in that case, and it specifically
rejected defendants' argument that the experts'
conclusions were unreliable because they failed to perform a
number of tests and types of analysis, including computer
Sittig, on which defendants rely, the district court
excluded the testimony of two experts after finding that they
lacked sufficient experience with the ladder at issue.
Defendants' reliance on Sittig is misplaced.
There, a district court did not allow proffered experts-with
Ph.D.s in mechanical engineering and biomechanical
engineering, respectively-to testify in the field of
"ladder design." The court noted that they had not
worked for ladder manufacturers, had no experience or
specific scholarship related to ladder design, ladder safety,
or ladder warnings, had not conducted any research or
inquires into the area of ladder warnings, and lacked basic
knowledge about the different types of ladders (Type I, II,
or III) and which type was involved in the case. 136
F.Supp.2d at 618-19. Thus, despite their impressive academic
credentials, the court found they had no expertise that
"fit" the case.
case, however, is not Sittig. First of all, and
critically, Sittig involved a design defect claim
while this case involves a manufacturing defect claim. For a
design defect claim, it makes sense that an expert opining on
an improper design of a product must know a lot about the
product itself and its various designs in order to offer an
opinion about whether a particular design was flawed or not.
But the experts here are not being asked to evaluate the
design of the tree step. Dr. West, a mechanical engineer, is
testifying about the circumstances under which the tree step
might break, based on a model that takes into account its
properties, the properties of the type of tree into which it
was inserted, the possible variables of where Wilhelm may
have stepped and placed his weight, and other factors that
could lead to failure. He also took into account the specific
shape, design, and material of the tree step, and thus his
analysis is based on the specific product at issue. Moreover,
finite element analysis is a type of analysis that he is
undoubtedly qualified to perform, regardless of any specific
knowledge or experience with tree steps specifically. So,
even if Sittig were binding on this court, it does
not support exclusion here.
Dr. Baron, a metallurgist familiar with steel and various
types of steel generally, is offering opinions about a defect
in a type of steel that is similar in properties to many
other types of steel that he has studied in depth. As he
testified, there is nothing unique about this particular type
of steel: it falls within a specific group or class of steel
that all share certain properties. He is not offering an
opinion that requires an in-depth understanding of tree step
design, nor any opinion that takes issue with the type of
steel used versus some other type, which might suggest a need
for specific experience with 10B21 steel.
short, the court concludes that neither Dr. West nor Dr.
Baron should be disqualified from offering their respective
opinions due to a lack of experience with tree steps
generally. Defendants' arguments to the contrary simply
draw the requisite "field of expertise" too
narrowly. Instead, under the facts of this case, specific
experience with a tree step is not required.
the court concludes that all of the matters raised by
defendants in an attempt to exclude Dr. West's opinions
may provide fertile ground for cross-examination, but the
court cannot say that the report or opinions of Dr. West are
unreliable such that the court could exclude them under