Commins v. Genie Indus., Inc.

SAMANTHA D. (ROWELL) COMMINS, Individually and as Next Friend,Natural Parent and Legal Guardian of N.C. and E.C., Minor Children,and as Personal Representative and Ancillary Administratrix ofthe Estate of SAMUEL JACK COMMINS, Deceased PLAINTIFF v. GENIE INDUSTRIES, INC. DEFENDANT

CIVIL ACTION NO. 3:16-CV-00608-GNS-RSE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

March 11, 2020

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the plethora of motions filed by Plaintiff and Defendant. Defendant has filed: (1) a motion for summary judgment on Plaintiff's substantive claims (DN 164); (2) motions to exclude four of Plaintiff's expert witnesses (DN 157, 160, 161, 162); (3) two motions to exceed page limits (DN 159, 166); and (4) a motion for partial summary judgment on punitive damages (DN 167). Plaintiff has filed: (1) a motion to partially strike the testimony of two of Defendant's expert witnesses (DN 169); (2) a motion to exceed the page limit (DN 182); (3) a motion for leave to seal (DN 183); and (4) a motion for leave to file a sur-reply and to supplement (DN 197). The motions are ripe for adjudication. For the reasons that follow: the parties' motions to exceed the page limit (DN 159, 166, 182) and Plaintiff's motion for leave to seal (DN 183) are GRANTED; Defendant's motion for summary judgment (DN 164) is GRANTED IN PART and DENIED IN PART; Defendant's motion for partial summary judgment (DN 167), all parties' motions to exclude each other's expert witnesses (DNs 157, 160, 161, 162, 169), and Plaintiff's motion for leave to file a sur-reply (DN 197) are DENIED.

I. BACKGROUND

In August 2014, Samuel Jack Commins ("Decedent") was hired as an electrician helper by Kellogg Brown & Root ("KBR"). (Def.'s Mot. Summ. J. 13, DN 164; Pl.'s Resp. Def.'s Mot. Summ. J. 4, DN 180). On the night of September 25, 2015, Decedent was working with fellow employee David Sanchez ("Sanchez") installing supports and conduit beams at a facility using a Model S-85 boom lift ("S-85) manufactured by Defendant Genie Industries, Inc. ("Genie") to reach high places in the facility. (Def.'s Mot. Summ. J. 3, 13; Pl.'s Resp. Def.'s Mot. Summ. J. 5; Berry Dep. 180:3-4, Aug. 15, 2018, DN 164-2).

Shortly after midnight, Sanchez left the worksite to work on another project. (Sanchez Dep. 124:10-19, 126:15-20, Aug. 29, 2018, DN 165-15). When Sanchez returned less than 30 minutes later, he found Decedent mortally wounded in the basket of the S-85, approximately 23 feet in the air pinned between the control panel of the basket and an overhanging beam. (Sanchez Dep. 128:8-9, 134:18-23, 136:10-22).

On September 22, 2016, Plaintiff brought this products liability action against various defendants including Genie. (Compl. ¶ 8, DN 1). Plaintiff asserts products liability claims based on strict liability, gross negligence, and negligence against Genie. (Am. Compl. ¶¶ 34-58, DN 68).

On July 7, 2019, Genie filed several motions: (1) a motion for summary judgment; (2) motions to exclude four of Plaintiff's expert witnesses; (3) two motions to exceed page limits; and (4) a motion for partial summary judgment on punitive damages. (Def.'s Mot. Summ. J. 41, DN 164; Def.'s Mot. Exclude Test. 33, DN 157 [hereinafter Def.'s Mot. Exclude Smith]; Def.'s Mot. Exclude Test. 25, DN 160 [hereinafter Def.'s Mot. Exclude Rasnic]; Def.'s Mot. Exclude Test. 16, DN 161 [hereinafter Def.'s Mot. Exclude Razer]; Def.'s Mot. Exclude Test. 10, DN 162 [hereinafter Def.'s Mot. Exclude Brady]; Def.'s Mot. Exceed Page Limit 2, DN 159; Def.'s Mot. Exceed Page Limit 2, DN 166; Def.'s Mot. Partial Summ. J. 25, DN 167). On that same day,Plaintiff moved to partially strike Genie's expert opinions. (Pl.'s Mot. Strike 22, DN 169). On September 17, Plaintiff moved to exceed the page limit and to seal her responses to Genie's motions for summary judgment. (Pl.'s Mot. Exceed Page Limit 4, DN 182; Pl.'s Mot. Seal 3, DN 183). Lastly, Plaintiff moved for leave to file a sur-reply and to supplement an expert witness' qualifications for this Court's consideration on Genie's motion to exclude the expert. (Pl.'s Mot. Leave File Sur-Reply & Suppl. 7, DN 197).

II. JURISDICTION

The Court possesses diversity jurisdiction over this matter as the Plaintiff is a resident of Alabama, Genie is a Washington corporation doing business in Kentucky, and the amount-in-controversy as pleaded exceeds $75,000, in this wrongful death suit. See 28 U.S.C. § 1332(a)(1); (Am. Compl. ¶¶ 2-5, 8).

III. DISCUSSION

A. Defendant's Motions to Exclude Expert Testimony/Plaintiff's Motion to Strike

Plaintiff's main contention in this products liability case is that the S-85 manufactured by Genie was defectively designed. In support of this assertion, Plaintiff claims that the S-85 should have been equipped with an "anti-entrapment device"—i.e., some kind of physical barrier or alert system to prevent an operator working in the basket of the lift from becoming pinned between the basket and an obstruction. (Pls.' Mot. Summ. J. 2). Before addressing Genie's summary judgment motions asserting in part that the S-85 was not defectively designed, the Court must determine whether the challenged expert testimony will be admissible at trial. Genie seeks to exclude four of Plaintiff's expert witnesses—Kevin Smith, Russ Rasnic, Steven Brady, and Chester Razer. Plaintiff correspondingly moves to partially strike the testimony of two of Genie's expert witnesses.

"Admissibility in federal court, including the admissibility of expert testimony, is determined by federal standards even when a case such as this one is tried in diversity." Guthrie v. Ball, No. 1:11-cv-333-SKL, 2014 WL 11581410, at *3 (E.D. Tenn. Oct. 10, 2014) (citing Legg v. Chopra, 286 F.3d 286, 290 (6th Cir. 2002)). Fed. R. Evid. 702 permits testimony relating to technical or specialized knowledge where it will assist the trier of fact to determine a fact in issue. As a prerequisite, such evidence must meet the following criteria:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702(a)-(d); see also Fed. R. Evid. 702, Advisory Comm. Note to 2000 Amendment ("[N]o single factor is necessarily dispositive of the reliability of a particular expert's testimony.").

Under this rule, the trial judge is the gatekeeper to ensure that expert testimony satisfies the requirements of reliability and relevance. Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)). As the Sixth Circuit has further noted:

Parsing the language of [Fed. R. Evid. 702], it is evident that a proposed expert's opinion is admissible, at the discretion of the trial court, if the opinion satisfies three requirements. First, the witness must be qualified by "knowledge, skill, experience, training, or education." Second, the testimony must be relevant, meaning that it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Third, the testimony must be reliable.

In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528-29 (6th Cir. 2008) (citations omitted). "Experts are permitted wide latitude in their opinions, including those not based on firsthand knowledge, so long as 'the expert's opinion [has] a reliable basis in the knowledge and experienceof the discipline.'" Jahn v. Equine Servs., PSC, 233 F.3d 382, 388 (6th Cir. 2000) (second alteration in original) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)).

The Court's role is to examine "not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question." Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997) (internal quotation marks omitted) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)). "Rule 702 directs courts to focus on the reliability of expert testimony, rather than the 'credibility and accuracy' of that testimony." Superior Prod. P'ship v. Gordon Auto Body Parts Co., 784 F.3d 311, 323 (6th Cir. 2015) (quoting Scrap Metal, 527 F.3d at 529). "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." Fed. R. Evid. 703.

In Daubert, the U.S. Supreme Court identified a non-exhaustive list of factors a trial court may consider in evaluating an expert's proposed testimony. Daubert, 509 U.S. at 592. These factors include: "(1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the technique has a known or potential rate of error; and (4) whether the theory or technique enjoys 'general acceptance' within a 'relevant scientific community.'" Brooks v. Caterpillar Glob. Mining Am., LLC, No. 4:14-CV-00022-JMH, 2016 WL 276126, at *2 (W.D. Ky. Jan. 21, 2016) (quoting Daubert, 509 U.S. at 592-94). "[T]he Daubert factors do not constitute a 'definitive checklist or test,' but may be tailored to the facts of a particular case. . . . Daubert factors 'are not dispositive in every case' and should be applied only 'where they are reasonable measures of the reliability of expert testimony.'" Scrap Metal, 527 F.3d at 529 (internal citation omitted) (citation omitted).

"It is the proponent of the testimony that must establish its admissibility by a preponderance of proof." Nelson v. Tenn. Gas Pipeline Co., 243 F.3d...