United States District Court, E.D. Virginia, Richmond Division
ANDREA SARDIS, as Administrator of the Estate of EVANGELOS SARDIS, Deceased, Plaintiff,
OVERHEAD DOOR CORPORATION, Defendant.
A. GIBNEY, JR. JUDGE
matter comes before the Court on a number of pending motions
in this case. The plaintiff and the defendant, Overhead Door
Corporation, have moved to exclude experts and specific
testimony. (Dk. Nos. 28, 30, 39, 41, 45, 47, 48, 50, 52.)
Overhead Door has also moved for summary judgment. (Dk. No.
43.) The Court held hearings on the motions on November 20,
2018, and December 7, 2018, and will now address each motion
Door designs and manufactures garage doors. Its commercial
garage doors roll around a shaft at the top of the doorway
behind a metal hood. Because Overhead Door manufactures the
hoods in separate sections, it ships sections of the hoods to
distributors in cardboard crates,  which it also designs and
manufactures. Overhead Door ships up to three hood sections
per crate, resulting in a maximum weight of approximately 300
pounds per crate.
December, 2014, Overhead Door changed its crate design to a
triple-wall cardboard body with wooden endcaps. The endcaps
have one horizontal and two vertical boards, forming a
"U" shape. Five smaller horizontal boards, or
"slats," connect the two vertical boards. The
endcaps have a gap between the first and second slat, which
creates a handhold.
worked for the Overhead Door distributor Washington Overhead
Door ("WOD"). In June, 2016, Sardis and his
supervisor, Keith Lawrence, were working at a jobsite when
two other WOD employees arrived with a hood in their flatbed
truck. Sardis and Lawrence received instructions to transfer
the hood to the metal roof rack on Lawrence's truck so
that the men could take it to another site for installation.
Sardis, Lawrence, and the two employees moved the crate from
the flatbed truck to Lawrence's roof rack. Sardis and
Lawrence then drove the crate to the installation site.
installation site, Sardis and Lawrence tried to remove the
hoods from the truck separately. Because they could not
remove the hoods without damaging them, Lawrence called for a
forklift. Two other WOD employees arrived with the forklift.
Lawrence and another employee struggled to operate the
forklift, and the crate tipped toward the truck cab each time
they tried to move it. Sardis then climbed onto an extension
ladder on top of the truck. Sardis pulled on the handhold of
the crate, and the slat came off the wooden endcap. He then
fell off the truck and hit the asphalt with the back of his
head. Sardis died fourteen days later in the hospital.
plaintiff has sued Overhead Door, alleging (1) wrongful death
- negligence; (2) wrongful death - design defect; (3) breach
of implied warranty; and (4) failure to warn. The plaintiff and
Overhead Door have moved to exclude experts and specific
testimony. Overhead Door has also moved for summary judgment.
Rule of Evidence 702 governs the admissibility of expert
testimony. A witness who qualifies as an expert may provide
opinion testimony only if "the expert's
'specialized knowledge will help the trier of fact to
understand the evidence or to determine a basic fact in
issue;' and the testimony is 'based on sufficient
facts or data;' 'is the product of reliable
principles and methods;' and 'the expert has reliably
applied the principles and methods to the facts of the
case.'" Carter v. United States, No.
4:13-cv-112, 2014 WL 3895751, at *3 (E.D. Va. 2014) (quoting
Fed.R.Evid. 702). District courts act as
"gatekeeper[s]" to ensure that proffered testimony
is reliable, relevant, and will assist the trier of fact.
Daubert v. Merrell Dow Pharm., 509 U.S. 579,
sets forth a two-prong test for admissible expert testimony:
"(1) the expert testimony must consist of
'scientific knowledge'-that is, the testimony must be
supported by appropriate validation; and (2) the evidence or
testimony must 'assist the trier of fact to understand
the evidence or to determine a fact in issue.'"
Carter, 2014 WL 3895751, at *3 (quoting United
States v. Dorsey, 45 F.3d 809, 813 (4th Cir. 1995)).
"The proponent of the expert testimony bears the burden
of proving that both prongs are met by a preponderance of the
the first Daubert prong, courts consider the
reasoning and methodology of the testimony. 509 U.S. at
592-93. The expert must base his testimony on specialized
knowledge, rather than mere belief or speculation.
Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th
Cir. 1999). District courts have "considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable."
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999). Daubert sets forth the following factors to
assist courts in determining reliability:
(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
Cooper v. Smith & Nephew, Inc., 259 F.3d 194,
199 (citing Daubert, 509 U.S. at 592-94).
the second Daubert prong, courts determine whether
the expert's reasoning is "relevant to the task at
hand." 509 U.S. at 597. "Rule 702 makes
inadmissible expert testimony as to a matter which obviously
is within the common knowledge of jurors because such
testimony, almost by definition, can be of no
assistance." Scott v. Sears, Roebuck & Co.,
789 F.2d 1052, 1055 (4th Cir. 1986).
Michael S. Wosalter. Ph.D.
plaintiff retained Michael S. Wogalter, Ph.D., to testify
that (1) the gap between the first and second slats on the
crate creates a handhold; (2) Overhead Door should have
provided warnings and instructions about how to use the
handhold; and (3) Overhead Door failed to conduct the
appropriate testing or analysis to identify defects in the
crates. The parties have stipulated that the gap is a
handhold, so the Court will exclude that portion of
however, may testify that Overhead Door should have provided
warnings and instructions about how to use the handhold and
that Overhead Door did not conduct the appropriate testing or
analysis to identify defects in the crates. Overhead Door
raises legitimate concerns as to some of Wogalter's
opinions, but those concerns "are properly reserved for
cross-examination, and do not justify the wholesale exclusion
of [Wogalter's] testimony." United States v.
Aman, 748 F.Supp.2d 531, 536 (E.D. Va. 2010); see
also, e.g., Tomsk v. Real Flame Co., No. 9:15-cv-78,
2016 WL 9558957, at *7 (E.D. Tex. Dec. 21, 2016) (finding
Wogalter's testimony relevant and reliable in a dispute
regarding the sufficiency of a warning label). Accordingly,
the Court will grant in part and deny in part the motion to
RichardS. Epstein. M.D.
plaintiff retained Richard S. Epstein, M.D., a psychiatrist,
to provide testimony regarding (1) the plaintiffs mental
health injuries and damages and (2) the plaintiffs future
mental health care needs. Courts typically classify such an
expert as a "grief expert." Courts have "wide
discretion" to decide on a case-by-case basis whether a
grief expert's testimony "is unique and
non-cumulative," and would "assist the trier of
fact in [its] determination." Carter, 2014 WL
3895751, at *4.
case, the plaintiff cannot call a doctor to explain the grief
that she and her son suffer, how long they will need to
recover, and the amount of counseling they will need. These
matters "can be left to turn mainly upon the good sense
and deliberate judgment of the trier," id, so
calling Epstein as an expert is simply an attempt to put a
patina of science over something that everyone understands.
Accordingly, the Court will grant Overhead Door's motion
to exclude Epstein and evidence regarding the plaintiffs
future medical care.
Sher Paul Simh. PkD.
Door objects to the plaintiffs packaging design expert, Sher
Paul Singh, Ph.D., primarily disputing Singh's conclusion
that the crate was unreasonably dangerous because it did not
comply with the industry standard of ASTM
D6039. Overhead Door says that Singh failed to
test the crate before his analysis, so his opinion has no
reliable scientific basis. "[A] lack of testing,"
however, "affects the weight of the evidence," not
its admissibility. Bilenky v. Ryobi Ltd., No.
2:13cv345, 2014 WL 7530365, at *4 (E.D. Va. Dec. 5, 2014).
Overhead Door may properly attack Singh's conclusions
"by [v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of
proof." Pugh v. Louisville Ladder, Inc., 361
Fed.Appx. 448, 452 (4th Cir. 2010).
however, cannot testify that Overhead Door "failed to
communicate to users that the openings were not meant to be
used as hand holes." (Dk. No. 46-3, at 2.) As explained
above, the parties agree that the handhold is a handhold. The
Court, therefore, will grant in part and deny in part the
motion to exclude Singh.
Marshall S. White. Ph.D.
Door retained Marshall S. White, Ph.D., to testify regarding
the cause of the handhold's failure. The plaintiff
attacks the reliability of White's testimony as
unreliable and based on speculation because White never
tested his theories. Although White's opinions involve
some level of estimation, this goes, at best, to the weight
of his testimony, not its ...