Vigneulle v. Tahsin Indus. Corp.

MICHAEL J. VIGNEULLE, as Personal Representative for the Estate of Andrew Michael Vigneulle, Plaintiff, v. TAHSIN INDUSTRIAL CORPORATION USA, Defendant.

Case No.: 2:15-cv-02268-RDP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 27, 2018

MEMORANDUM OPINION

This case is before the court on Defendant's Motion for Summary Judgment (Doc. # 35), Defendant's Motion in Limine to Exclude, or in the Alternative, Limit the Testimony of Plaintiff's Expert, John Nigel Ellis (Doc. # 37), Defendant's Motion in Limine to Exclude, or in the Alternative, Limit the Testimony of Plaintiff's Expert, Norman Wood, Jr., M.D. (Doc. # 39), Defendant's Motion to Strike the Affidavit of Expert J. Nigel Ellis (Doc. # 47), and Defendant's Motion to Strike the Affidavit of Expert Dr. Norman E. Wood, Jr. (Doc. # 49). The motions are fully briefed and under submission. (See Docs. # 36, 38, 40, 43-46, 48, 50-56).

This products liability case arises from a hunting accident in which Andrew ("Drew") Michael Vigneulle died. While hunting in a tree stand, Drew Vigneulle¹ wore a Tahsin Model #2013C-W harness ("2013C-W Harness"), which was manufactured by Defendant. Drew fell from the tree stand and died before rescuers could remove him from the tree. A medicalexaminer determined that Drew died from positional asphyxia. Beyond those basic facts, much about what tragically occurred remains unclear.

I. Motions to Exclude Plaintiff's Experts

Defendant asks the court to exclude the testimony of both of Plaintiff's experts. John Nigel Ellis is a registered professional safety engineer and currently the president of Dynamic Scientific Controls, a consulting firm that specializes in fall hazard issues. (See Doc. # 44-1 at 3). Ellis opines that Defendant's safety harness was defectively designed because it lacked an attached dual-footed suspension relief device, a release mechanism for loosening the chest strap, and a self-lowering device attached to the harness. (See Doc. # 44-2 at 7). Dr. Norman Wood, Jr., is a physician, certified tree stand safety instructor, and safety harness designer. (See Doc. # 43-1 at 1). Wood opines that the safety harness was defectively designed because it lacked an attached dual-footed suspension relief device or a device allowing the wearer to lower himself (or herself) to the ground. (See id. at 14-15). Wood also opines that the 2013C-W Harness worn by Drew constricted his chest, which decreased blood circulation to his heart, lungs, and brain and caused his death from positional asphyxia. (See id. at 7-8). The court addresses Defendant's arguments for excluding the expert opinions, in turn.

A. Background Law

Although this is a diversity action governed by Alabama substantive law, the court applies federal law to decide whether an expert's testimony is admissible. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1193 (11th Cir. 2010). The admissibility of expert testimony is governed by Federal Rule of Evidence 702, along with the Supreme Court's Daubert decision and its progeny. Rule 702 provides for the admission of expert testimony when "scientific, technical, or other specialized knowledge will help the trier of fact." In Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court held that scientific expert testimony is admissible only if the proffered testimony is both relevant and reliable. Id. at 597. "[A] district court judge is to act as a 'gatekeeper' for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability." Dhillon v. Crown Controls Corp., 269 F.3d 865, 869 (7th Cir. 2001). See also United States v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999). Rule 702 provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(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. Accordingly, under Rule 702, "this [c]ourt has an obligation to screen expert testimony to ensure it stems from a reliable methodology, sufficient factual basis, and reliable application of the methodology to the facts." Whatley v. Merit Distribution Servs., 166 F. Supp. 2d 1350, 1353 (S.D. Ala. 2001).

Although the inquiry is "a flexible one," the focus "must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 594-95. See also McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (recognizing a trial judge "should meticulously focus on the expert's principles and methodology, and not on the conclusions that they generate"). "But conclusions and methodology are not entirely distinct from one another"; neither Daubert, nor Federal Rule of Evidence 702, requires a trial judge "to admit opinionevidence that is connected to existing data only by the ipse dixit² of the expert." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

The Eleventh Circuit applies a three-part approach to Daubert motions:

Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote omitted). The expert's proponent must prove each of these elements by a preponderance of the evidence. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). And, while "the proponent of the testimony does not have the burden of proving that it is scientifically correct," he must establish "by a preponderance of the evidence [that] it is reliable." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)). The court's analysis of a proffered expert's qualifications is "not stringent"; that is, so long as a proffered witness is "minimally qualified," a defendant's challenge to specific deficiencies in his or her experience goes "to credibility and weight, not admissibility." Hendrix v. Evenflo Co., 255 F.R.D. 568, 585 (N.D. Fla. 2009) (quoting Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997)), aff'd, 609 F.3d 1183 (11th Cir. 2010).

To aid in determining reliability under Rule 702, courts look to non-exclusive factors set forth in Daubert:

(1) whether the expert's methodology has been tested or is capable of being tested; (2) whether the theory or technique used by the expert has been subjected to peer review and publication; (3) whether there is a known or potential error rate of the methodology; and (4) whether the technique has been generally accepted in the relevant scientific community.

United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013) (citing Daubert, 509 U.S. at 593-94). See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999) ("[Daubert's] list of factors was meant to be helpful, not definitive."). Under Daubert, "no single factor is necessarily dispositive of the reliability of a particular expert's testimony." Fed. R. Evid. 702 advisory committee's note to 2000 amendments (citations omitted). The notes to Rule 702 make clear that "[n]othing in [Rule 702] is intended to suggest that experience alone -- or experience in conjunction with other knowledge, skill, training or education -- may not provide a sufficient foundation for expert testimony." Id. The Rule "expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony." Id. But, "[a]s gatekeeper for the expert evidence presented to the jury, the judge 'must do a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'" Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir. 2014) (quoting Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010)).

The notes to Rule 702 provide an additional list of factors that the court may use to determine the reliability of expert testimony. These factors are:

(1) Whether the expert is proposing to testify about matters growing naturally and directly out of research he has conducted independent of the litigation, or whether he has developed his opinion expressly for purposes of testifying;(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(3) Whether the expert has adequately accounted for obvious alternative explanations;

(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; [and]

(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1386 (M.D. Ga. 2014) (paraphrasing Fed. R. Evid. 702 advisory committee's note to 2000 amendments).

The Eleventh Circuit has recognized that the relevance of evidence is judged by a liberal standard. Boca Raton Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (quoting Daubert, 509 U.S. at 587). Nevertheless, expert testimony should be...