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Wilhelm v. Evolved Ingenuity, LLC

United States District Court, W.D. Virginia, Roanoke Division

November 30, 2018

KEVIN WILHELM, Plaintiff,
v.
AMERISTEP CORP., et al.[1] Defendants.

          MEMORANDUM OPINION AND ORDER

          Elizabeth K Dillon United States District Judge.

         In this 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.

         Ten 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.

         I. BACKGROUND[2]

         A. The Subject Tree Step

         The 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.)

         The 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.

         B. The Accident

         On the 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.)

         Wilhelm 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.)

         Moments 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.)

         With 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.)

         Defendants 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 3.)[3] 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. (See id.)

         They 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").)

         Wilhelm 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.

         C. Claims and Defenses

         In his 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.

         Defendants' briefing focused on three affirmative defenses-contributory negligence, misuse, and assumption of the risk.[4] 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.

         Then, 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.

         In 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.[5] Thus, the court's analysis on summary judgment will be limited to defendants' assertions of misuse and failure to mitigate.

         II. DISCUSSION

         A. Motions to Exclude Experts

         As 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.

         Additionally, 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.

         With 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.

         As to 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).

         But 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.

         With 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) (citation omitted).

         The 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.

         Although the inquiry is a flexible one, several factors may bear on the determination of admissibility of scientific or other expert evidence:

(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 scientific community.

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)).

         1. Defendants' motion to exclude plaintiffs metallurgist R. Craig Jerner, Ph.D.

         Defendants 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.

         Defendants 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).

         At the 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.

         Although 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.

         To the 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. Jerner's report.

         2. Defendants' motion in limine to exclude or limit Robert West, Jr., Ph.D.

         Dr. 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.

         According 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 testimony.

         Defendants 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 real-world testing.

         Defendants' 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.)

         Dr. 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.)

         In 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.

         Defendants 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 opinions.

         The 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.

         At the 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.[6] 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 modeling.

         In 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.

         This 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.

         Similarly, 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.

         In 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.[7]

         In sum, 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 Daube ...


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