GONZALO P. CURIEL, District Judge.
Before the Court are Plaintiff's fully briefed motion to exclude the expert testimony of Dr. David Howitt, (Dkt. Nos. 152, 172, 178), and Defendants'
Based on the reasoning below, the Court GRANTS in part and DENIES in part Plaintiff's motion to exclude the expert testimony of Dr. David Howitt. The Court GRANTS in part and DENIES in part Defendants' motions to exclude the expert testimonies of Dr. David Hall, Dr. Michel Brones, and Paul Schwartzman. The Court further DENIES Defendants' motions to exclude the expert testimonies of Dr. David Xu and Andrew Ellison.
On January 30, 2005, Plaintiff Jesus Romero and his family were planning an outing to Rosarito, Mexico. Jesus, who was seven years old, and his younger brother, Marcos, who was six years old, were dressed and ready, and went next door to a neighbor's house to use a lighter. Both were sitting down and while Jesus held a flower or green weed, Marcos lit the flower or weed with the lighter. Jesus testified that he let go of the flower or weed because his fingers got hot and the lit flower or weed landed on his shirt near his stomach. Jesus told his brother to go get help so Marcos ran into the house and their father came out, ripped the shirt off, dropped it to the concrete and stepped on it to extinguish the flames. Jesus suffered second and third degree burns covering about 25% of his body. (Dkt. No. 128, Am. PTO at 5
On the day of the incident, Jesus was wearing a boy's short-sleeved Ralph Lauren red-and-white gingham button-down dress shirt ("Shirt"). Jesus' mother Merida, only bought 100% cotton clothing for her family and would not have purchased the Shirt if it had not been labeled 100% cotton.
Jesus alleges that 1) Defendants manufactured the Shirt; and 2) although the Shirt was labeled 100% cotton, it was not; instead, it was composed of a "highly flammable, dangerous, and unlawful blend" of 90% cotton, 5% rayon, and 5% nylon causing Jesus more severe burns than he would have suffered if the Shirt had been 100% cotton. Plaintiff alleges causes of action for strict product liability for manufacturing defect; negligence; breach of warranty; and negligent misrepresentation against Defendants. (Dkt. No. 17, FAC; Dkt. No. 128, Am. PTO.) Defendants contend that they did not manufacture the Shirt, it was labeled correctly and made out of 100% cotton, and they are not liable for Jesus' injuries.
The trial judge must act as the gatekeeper for expert testimony by carefully applying Federal Rule of Evidence ("Rule") 702 to ensure specialized and technical evidence is "not only relevant, but reliable."
Under Rule 702, a witness, "qualified as an expert by knowledge, skill, experience, training, or education, may testify" . . . 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. The proponent of the evidence bears the burden of proving the expert's testimony satisfies Rule 702.
In applying Rule 702, the Ninth Circuit "contemplates a broad conception of expert qualifications."
On the other hand, the district court must act as a gatekeeper to exclude "junk science."
Under
As one Ninth Circuit court simply stated, the test is "whether or not the reasoning is scientific and will assist the jury. If it satisfies these two requirements, then it is a matter for the finder of fact to decide what weight to accord the expert's testimony."
As an initial matter, the Court notes that both parties use many of the same arguments to challenge each other's expert testimonies. Many of the parties' arguments challenge how the recognized methodology in the industry was used by each expert and his interpretation. These disputes challenge the conclusions of the experts, and not the reliability of the expert's testing method. As one recent Ninth Circuit court noted, "[w]here, as here, the experts' opinions are not the "junk science" Rule 702 was meant to exclude . . . the interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system—`[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof'— to `attack[ ] shaky but admissible evidence. . . .'"
David G. Howitt, Ph.D. ("Dr. Howitt") is Defendants' designated expert to testify about the materials and fibers in the Shirt; the methodology for identifying and distinguishing fabrics; the ignition, flammability and combustion of various fabrics; and the flammability standards for garments. (Dkt. No. 128, Am. PTO at 16.)
Plaintiff moves to exclude Dr. Howitt's testimony that "(i) the Subject Shirt is 100 percent cotton, (ii) the Subject Shirt's fabric content had no impact on the severity of Jesus's burns, (iii) the Subject Shirt's weight (areal density) was above the threshold requiring flammability testing under the 1953 Flammable Fabrics Act ("FFA"), 15 U.S.C. § 1191, et seq., and (iv) the Subject Shirt is virtually indistinguishable from exemplar shirts manufactured by Ralph Lauren Corporation." (Dkt. No. 152 at 8.)
Plaintiff claims that Dr. Howitt is not qualified as an expert in fiber identification and textile burning behavior because he lacks superior knowledge, training or experience and only has a general background in materials. For example, Plaintiff asserts that Dr. Howitt's opinions are unreliable because his experience is limited to a range of non-clothing items, such as automobile upholstery, house fires, furniture fires, and spontaneous ignition of adulterated rags and admits no experience in evaluating rayon, never researched burning behavior of cotton/rayon, cotton/nylon or cotton/nylon/rayon blends and his research into post-ignition melting, shrinking, and charring behavior of textile is limited to this case. Moreover, Plaintiff argues that Dr. Howitt's conclusions are complete with false assumptions rather than scientifically valid principles. In opposition, Defendant argues that Dr. Howitt is qualified as an expert on the opinions that Plaintiff is challenging.
Rule 702 requires that an expert possess "knowledge, skill, experience, training, or education" sufficient to "assist" the trier of fact, which is "satisfied where expert testimony advances the trier of fact's understanding to any degree."
"Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert,"
Dr. Howitt has a Ph.D. in the Science of Materials and Engineering from the University of California at Berkeley, and a B.A. in Metallurgy from Oxford University, and is a Professor Emeritus of the Science of Materials at the University of California at Davis. (Dkt. No. 172-1, Howitt Decl. ¶ 2.) He specializes in the characterization and behavior of materials with specialized expertise in ignition and combustion of materials.
Dr. Howitt's over thirty years of experience in the field of materials science, and specialization in ignition and combustion of materials provides a "minimal foundation of knowledge, skill, and experience" to qualify as an expert in fiber identification and textile burning behavior.
Plaintiff also argues that Dr. Howitt's opinions demonstrate a misunderstanding of scientific principles relating to fiber identification by relying on incorrect assumptions and ignoring accepted protocols and recognized standards for fiber sampling. Plaintiff does not dispute that the tests used by Dr. Howitt are used by experts in fiber identification. (Dkt. No. 152 at 12 (Plaintiff acknowledges that the tests used by Dr. Howitt are "markers an expert in fiber identification might look to").) Instead, Plaintiff challenges Dr. Howitt's use of the methodologies to reach his conclusion which goes to the weight of the evidence and not admissibility.
Similarly, Plaintiff challenges Dr. Howitt's opinion concerning the areal density (weight) of the Shirt because he failed to adhere to the accepted standards of measurement such as failing to properly condition the sample by removing excessive moisture. Dr. Howitt responds that Plaintiff is mistaken in his argument, cites to published literature, and disputes Plaintiff's arguments concerning the acceptable standards. Plaintiff's arguments challenge how Dr. Howitt performed a particular methodology which goes to the weight of Dr. Howitt's testimony and not its admissibility.
Next, Plaintiff contends that Dr. Howitt blindly accepted the conclusions of three laboratories that conducted testing of the Shirt while having no knowledge of the methods used to obtain the results. He argues that Dr. Howitt's bare reliance on the reputation, expertise and judgment of three scientists to conduct fiber identification without any information to assess the trustworthiness and reliability is insufficient. Dr. Howitt responds that he has extensive experience and indisputable credentials in the optical, FTIR and other analytical techniques used by the three independent laboratories. (Dkt. No. 172-1, Howitt Decl. ¶ 18.)
Under Rule 703, an expert may base an opinion on "facts or data in the case that the expert has been made aware of or personally observed." Fed. R. Evid. 703. Rule 703 allows, otherwise inadmissible evidence, to be admissible if the expert opinion is based on "facts or data" that "experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject" as long as the probative value outweighs their prejudicial effect. Fed. R. Evid. 703.
Rule 703 allows an expert to disclose hearsay only for the limited purpose of explaining the basis of his opinion and not for the truth of the underlying matter.
Plaintiff argues that Dr. Howitt was not familiar with the methods and reasons underlying the three independent laboratories' conclusions, and merely acted as a mouthpiece of a scientist in a different specialty. Defendants disagree.
After Dr. Howitt conducted his own SEM and optical microscopic analysis, he had the swatch of the Shirt examined by three leading, independent national laboratories to assess its composition. (Dkt. No. 172-1, Howitt Decl. ¶¶ 14-17.) Forensic Analytical Laboratories ("FAL") is an independent laboratory used by law enforcement agencies and defendants in criminal cases. (
At his deposition, Dr. Howitt testified that he was present for some but not all the testing conducted by FAL. (Dkt. No. 216-2, Howitt Depo. at 227:25-228:8.) He was present when they did the FTIR, some microscopy, some polarized light, some regular microscopy, and some microscopy with a KEYENCE microscope. (
The swatch sample was also sent to Gaston College Textile Technology Center ("Gaston College") to test the fabric using infrared microscopy techniques. (
It was noted at the deposition that there were two reports generated by Gaston College; one dated October 25, 2016 and the second one dated December 13, 2016. (Dkt. No. 216-2, Howitt Depo. at 265:10-16.) Dr. Howitt explained that because Gaston College did not initially evaluate the fabric longitudinally, which he thought was important, he directed them to conduct that test. (
While Dr. Howitt was not present of the testing, he was involved in the process as he had communications with Berryhill, questioned her, and directed further testing to be done. Dr. Howitt was familiar with the methods and reasons underlying Gaston College's conclusions. Even if he was not familiar with the underlying test, as an expert, Dr Howitt is allowed to rely on otherwise inadmissible hearsay as a basis to explain his conclusions.
Lastly, he sent the swatch to McCrone Associates, Inc. ("McCrone") with instructions to identify the fiber content. (Dkt. No. 172-1, Howitt Decl ¶ 17.) Dr. Howitt testified that that since he was unable to get into the lab in Pleasanton to analyze the fabric using wave length dispersive spectroscopy, a senior person at that lab recommended McCrone. (Dkt. No. 216-2, Howitt Depo. at 276:20-277:6.) So he asked McCrone to conduct the test. (
McCrone used microscopic, SEM and energy-dispersive x-ray spectrometry. (Dkt. No. 172-1, Howitt Decl ¶ 17.) According to McCrone, SEM and EDS analysis confirmed the 100% cotton finding. (
Contrary to Plaintiff's argument that the reliance on McCrone's report is not permissible because he had no knowledge about the beam current, length of exposure, specimen height, and the dead time of the particular detector for Exhibit 6, (
Here, contrary to Plaintiff's argument, Dr. Howitt is not acting as a mouthpiece for these independent laboratory testing in a different specialty. He has specialty knowledge and expertise in the testing methods used by these laboratories. (Dkt. No. 172-1, Howitt Decl. ¶ 3.) Dr. Howitt's deposition reveals that he is intimately familiar with the techniques used by these three laboratories. He directed them to conduct the testing and was in communication with them during the testing. McCrone is the leading laboratory that "wrote the book" on fiber analysis.
Dr. Howitt may use the testing performed by the three laboratories as data to support his independent conclusion that the Shirt is 100% cotton. He testified that his opinion is based on his own testing of the Shirt, his extensive background in materials science, and taking the facts and data from these three independent laboratories, to explain and/or confirm his conclusion. (
Moreover, it is not disputed that experts in the field of fiber identification would reasonably rely on the facts or data of the three laboratories in forming an opinion. The laboratories conducted fiber identification tests recognized and relied upon by experts in the field, including those performed by Plaintiff's experts.
Based on the above, the Court DENIES Plaintiff's motion to exclude the testimony of Dr. Howitt based on his qualifications and the testing he performed.
However, the Court GRANTS Plaintiff's motion to exclude a limited portion of his testimony. Plaintiff argues that Dr. Howitt should be precluded from asserting that the exemplar shirts he purchased were almost identical to the Shirt and were manufactured by Ralph Lauren Corporation ("RLC") as the exemplar shirts were not manufactured by RLC. Defendants do not oppose or address this issue in their response.
Dr. Howitt obtained 8-10 Ralph Lauren brand gingham shirts on eBay to compare their characteristic construction to the Shirt. He concluded that two of the exemplar shirts he purchased were nearly identical to the Shirt, (Dkt. No. 152-5, Weitz Decl., Ex. 14, Howitt Depo.at 16:4-18:3), and subsequently concluded that two exemplar shirts, although labeled with different serial numbers, were manufactured by Ralph Lauren Corporation. (
The two matching exemplar shirts were labeled RN0103446/CA16190 and RN 19672. Plaintiff's search of the RN and CA numbers in the Federal Trade Commission's online database revealed that two exemplar shirts were manufactured by RL Childrenswear LLC, and Oxford Industries, who was the predecessor licensee to Schwab Defendants, and not by RLC. (Dkt. No. 152-2, Szeto Decl. ¶¶ 2, 4.) However, one of the other exemplar shirts, labeled RN 41381, was manufactured by Ralph Lauren Corporation. (
It is not clear from the cited deposition testimony of Dr. Howitt whether the two matching exemplar shirts he references are RN0103446/CA 16190 and RN 19672, which were manufactured by RL Childrenswear LLC and Oxford Industries, or whether one of the matching exemplar shirts also includes RN 41381, a shirt manufactured by RLC. As such, the Court GRANTS in part Plaintiff's motion to exclude Dr. Howitt from asserting that all, except one exemplar shirt, RN 41381, were manufactured by RLC.
In sum, the Court GRANTS in part and DENIES in part Plaintiff's motion to exclude Dr. Howitt's testimony.
Dr. David Hall, Ph.D., P.E., F.T.I., F.S.D.C., is Plaintiff's designated expert on fiber and textiles and is expected to testify regarding the fiber content of the Shirt, flammability characteristics and burning behavior of clothing and fibers. (Dkt. No. 128 at 16.)
Defendants move to exclude Dr. Hall's testimony that "(1) the Shirt's fabric "was made from a blend of no more than 90% cotton, at least 4-5% nylon and at least 5-6% rayon"; (2) the subject shirt was comprised of fabric that was constructed of core-spun, low-quality immature cotton; (3) the rayon and nylon were intentionally added as a component part of each yarn to strengthen the lower cost, lower-quality cotton, increasing the profits of the manufacturer; and (4) plaintiff's injuries "would have been much less severe if he had been wearing a 100% cotton shirt." (Dkt. No. 168-3, Weitz Decl., Ex. 2, Hall Decl. ¶¶ 6, 7, 15.) Plaintiff argues that Dr. Hall should not be excluded because he has over sixty years of practical, academic and industry experience in fiber identification and in flammability characteristics and burning behavior of textiles and fibers.
Dr. Hall was a Professor of Textile Engineering and Material Engineering at Auburn University until his retirement in 1995. (Dkt. No. 168-3, Weitz Decl., Ex. 2, Hall Decl. ¶ 2.) He taught undergraduate and graduate level classes in all areas of "Textile Chemistry including, Preparation Dyeing and Finishing, Textile Sizing, Chemical Testing Methods, Natural and Man Made Fibers as well as laundry practices for consumer textiles." (
Defendants argue that Dr. Hall's fiber identification based on SEM is inherently unreliable since he is not a SEM expert and relied on SEM images produced from testing performed by a colleague. Plaintiff responds that while Dr. Hall is not a SEM operator, he is an expert in analyzing information obtained from a SEM. (Dkt. No. 168-2, Weitz Decl., Ex. 1, Hall Depo. at 27:13-23
Under Rule 703, an expert may rely on tests not performed by him if "experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject." Fed. R. Evid. 703. Defendants acknowledge that SEM is one method used to identify fiber and SEM is, in fact, a method that experts in the field of fiber identification rely on in forming an opinion. Defendants' argument is without merit as Dr. Hall can rely on the SEM testing performed by Dr. Miller since it is a test reasonably relied on by experts in the field of fiber identification.
Defendants next contend that "Dr. Hall's testimony regarding his fiber identification analysis should be excluded for the following reasons: (1) Dr. Hall's analysis was limited to only looking at the fiber's cross-sections through SEM and not examining the fibers longitudinally; (2) Dr. Hall improperly conducted the SEM procedure and his opinion that the fabric was `core spun' is not supported; and (3) Dr. Hall failed to comply with his own procedure of following his SEM analysis with other confirmatory tests, such as `wet chemistry' testing." (Dkt. No. 148 at 11-12.) These arguments concern alleged faults in using a methodology and go to the weight of Dr. Hall's testimony and not to admissibility.
Moreover, Defendants challenge Dr. Hall's burn testing by placing exemplar shirts on a mannequin and setting them on fire with a lighter as lacking scientific value. First, they assert that Dr. Hall is not a flammability expert and he seeks to testify concerning the flammability characteristics of the Shirt. Next, Defendants contend that the testing is inherently unreliable because the Shirt should have been conditioned on the mannequin the way it was conditioned on Plaintiff at the time it caught fire and the shirt should have been lit the same way Plaintiff's shirt was lit on fire. Plaintiff dispute Defendants' criticisms of Dr. Hall's mannequin burn demonstration.
Dr. Hall obtained an exemplar red-and-white Ralph Lauren brand short-sleeved, boys' gingham shirts, labeled 100% cotton from a department store. The shirt consisted of a blend of cotton, nylon and rayon although the exact percentage composition was not known. (Dkt. No. 168-1, Weitz Decl., Ex. 1, Dr. Hall Depo. at 319:16-23.) Dr. Hall placed the shirts on a mannequin in an indoor burn facility and ignited the bottom corner of the fabric to demonstrate how clothing fires progress in real-world conditions.
The Court finds that Plaintiff has failed to demonstrate that the burn testing is relevant or reliable as to whether Plaintiff's alleged blended shirt burned differently than a 100% cotton shirt. Dr. Hall does not know the percentage blend of the exemplar shirts. His deposition transcript that has been provided to the Court is missing the pages where Dr. Hall testified that the exemplar shirts were made from a blend of cotton, nylon and rayon although they were labeled 100% cotton. The parties have not provided Dr. Hall's conclusions concerning the burn testing. In addition, it does not appear there was a comparison with burning a 100% cotton shirt. Dr. Hall's testing lacks sufficient information to establish comparators that are reliable and will assist the jury. Moreover, any probative value of the test is outweighed by the likelihood of confusing the issues at trial and producing unfair prejudice. Based on the state of the record, the Court excludes Dr. Hall's testimony on burn testing on the mannequins.
Furthermore, Defendants argue that Dr. Hall should be precluded from opining or speculating on their purported reasons for using certain materials. Dr. Hall testified that the addition of rayon and nylon would have been the result of a conscious decision by the manufacturer to reduce overall production costs. Because much of the cotton in the Shirt was immature, making it weaker than higher quality cotton, use of rayon and nylon strengthened the low-quality cotton yarn. (Dkt. No., Dr. Hall Decl. ¶ 15.) Plaintiff responds that Dr. Hall is a textile engineer with extensive experience developing new fibers, textiles, finishes, and manufacturing processes. While he has not conducted the exact cost savings from the addition of rayon and nylon, his experiences provide sufficient information for him to reliably opine on the manufacturer's motives for yarn design. Plaintiff argues it would help the jury determine liability if it can understand why and how nylon and rayon would be blended with cotton. While Dr. Hall has extensive background, experience, and knowledge in the textile industry, including the cotton, nylon and rayon industries, the Court concludes that Defendants' motive for blending nylon and rayon with cotton is marginally relevant on the issue of liability. Defendants' motive for blending does not show whether the Shirt was 100% cotton or how it affected flammability. What little probative value that it possesses to prove liability is outweighed by confusion of the issues. This evidence will be excluded at the trial on liability and damages. The Court will DEFER ruling on the motion to exclude this evidence at a punitive damages trial, in the event there is a jury finding of liability.
Accordingly, the Court GRANTS in part and DENIES in part Defendants' motion to exclude the testimony of Dr. Hall.
Dr. David Xu, Ph.D., P.E. is Plaintiff's designated expert in materials and is expected to testify regarding fiber content, flammability characteristics and burning behavior of the Shirt, clothing, and fibers. (Dkt. No. 128 at 16.)
Defendants move to exclude Dr. Xu's testimony that the "results of Scanning Electron Microscopy ("SEM") and Fourier transform infrared spectroscopy ("FTIR") tests each showed the Subject Shirt was composed of approximately ~90% cotton, 4-5% nylon, and 5-6% rayon." (Dkt. No. 167-4, Xu Decl. ¶ 3.)
First, Defendants argue that Dr. Xu is not qualified to opine on fiber identification and on flammability. As to fiber identification, Defendants describe Dr. Xu's experience with fiber identification as having taken a course in college that discussed fiber identification which was about half an hour to an hour long; he has been retained as an expert in four to five cases relating to fiber identification of apparel; he conducted two research projects for Plaintiff's former attorney; he visited Dr. Hall twice; and he visited a textile plant in Alabama and two plants in Guatemala. Plaintiff argues that Dr. Xu's background as a Professional Engineer in addition to his efforts of gaining expertise in the field of textiles and fibers qualify him to testify on fiber identification. Specifically, Dr. Xu spent three days in Alabama learning fiber identification from Dr. David Hall, (separately from this case), explored yarn manufacturing facilities in the U.S. and abroad, (separately from the case), and learned from other fiber identification experts and engineers, (separately from this case). (Dkt. No. 167-10, Weitz Decl., Ex. 9, Xu Depo. at 77:1-19; Dkt. No. 167-11, Weitz Decl., Ex. 10, Xu Depo. at 306:4-24; 307:7-22; 348:11-349:10.) At the cotton plant in Alabama, Dr. Xu talked to the plant manager for an hour or two about the process for manufacturing cotton yarns from start to finish. (
As to textile flammability, Defendants argue that Dr. Xu testified that while he talked a bit about flammability characteristics, he admits he is not the flammability expert and would not offer extensive amount of testimony on it. (Dkt. No. 149-2, Blackwell Decl., Ex. B., Dr. Xu Depo. at 212:8-13.) Based solely on these statements that Dr. Xu admitted he is not an expert in flammability expert, Defendants move to exclude his testimony. Plaintiff rebuts Defendants' argument that while he is not a fire science expert, he understands fire science and has some knowledge of burns since he has worked on many scalding cases involving hot water. (Dkt. No. 167-11, Weitz Decl., Ex. 10, Dr. Xu Depo. at 323:17-324:4.) Moreover, building upon his qualifications as a professional engineer and a doctor of materials engineering, he worked with Dr. Marcelo Hirschler, who was an expert witness for Macy's and Ralph Lauren in this case, and discussed her and Dr. Zicherman's published research in the areas of textile flammability. His specialized knowledge comes from his "understanding of fire science, literature review, Dr. Hall's textbook, and discussions with Drs. Hall, Hirschler, and Zicherman." (Dkt. No. 167 at 8.)
Rule 702 requires that an expert have specialized "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. "A witness can qualify as an expert through practical experience in a particular field, not just through academic training."
21 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Federal Rule of Evidence § 6264.1 (2d ed. 1997). Here, Dr. Xu, through self-study and independent research, has the education and experience of an expert as defined under Rule 702. Moreover, as noted above, any gaps in a witness' qualifications or knowledge or lack of specialization go to the weight of his testimony and not admissibility.
Dr. Xu, Ph.D., P.E., has a Bachelor of Science, Master of Science and Ph.D. in Material Science and Engineering From U.C. Berkeley. (Dkt. No. 167-4, Weitz Decl., Ex. 4, Dr. Xu's CV.) He is a Professional Engineer in chemical, materials, and mechanical engineering, with expertise in compositional analysis, electron microscopy, failure analysis, polymers, chemical properties, structures and bonding. (
Next, Defendants contend that Dr. Xu's opinion are not reliable and based on questionable methodology. Essentially, Defendants raise numerous issues and faults with Dr. Xu's methodology. (Dkt. No. 149 at 17-23.) As discussed above, any faults in the methodology employed go to the weight and not admissibility of the testimony.
Michel Brones, M.D. is Plaintiff's designated expert on plastic and reconstructive surgery and will testify concerning the nature and extent of Plaintiff's burn injuries, the reasonableness and necessity of his medical treatment to date, future treatment and Plaintiff's prognosis. (Dkt. No. 128 at 16.)
Defendants move to exclude testimony of Dr. Brones that "(1) Plaintiff's burns were of the depth and pattern that to him indicate the textile material plaintiff was wearing was a mixture of cotton and another material . . .; (2) the type of burns plaintiff sustained as to the depth, location and uniformity are not consistent with 100% cotton fabric and are much more consistent with a mixed-blend fabric . . .; and (3) blended fabric shirts cause uniform burns because the textile materials stick to the body, as opposed to burning quickly and disintegrating. . . ." (Dkt. No. 147 at 7-8.) "Dr. Brones also testified the blend of Plaintiff's shirt caused 60-65% more damage than a 100% cotton shirt would have caused." (
First, Defendants seek exclusion of Dr. Brones' testimony concerning fiber identification and flammability as he is not qualified to testify about materials identification or the flammability characteristics of the Shirt. They claim his knowledge of treating burn victims does not qualify him as a fiber identification or flammability expert. Plaintiff opposes arguing Dr. Brones is well qualified to opine on the characteristics of the Shirt based on his knowledge and experience of having treated thousands of burn victims.
Federal Rule of Evidence 702 requires that a testifying expert be "qualified as an expert by knowledge, skill, experience, training, or education." Fed. R. Evid. 702. "[T]he use of the disjunctive indicates that a witness may be qualified as an expert on any one of the five listed grounds."
Dr. Brones is a board-certified plastic and reconstructive surgeon who specializes in burn injuries. (Dkt. No. 165-2, Sizemore Decl., Ex. 1, Brones Depo. at 24:18-24;
Dr. Brones' experience and training in treating thousands of textile burn injuries and his learned ability to distinguish burn patterns based on the materials the patients were wearing provide more than a minimal foundation that make him qualified to testify about the composition of the fabric worn by Plaintiff based on the burn patterns on his body. Any issues Defendants have with Dr. Brones' qualifications can be challenged through cross examination.
Second, Defendants argue that Dr. Brones' opinions concerning fiber analysis and identification are unreliable because he made his conclusion based on a highly pixelated and blurry photograph taken over 12 years ago on the date of the incident. (Dkt. No. 147-5, Blackwell Decl., Ex. C.) Defendants' retained dermatologist expert, Dr. Edward Ross, testified that that he would question whether one can tell from an ICU burn picture the exact fiber type. (Dkt. No. 147-6, Blackwell Decl., Ex. E, Ross Depo. at 67:10-68:25.) Plaintiff responds that Defendants mischaracterize Dr. Brones' methodology as he did not rely solely on the photograph but also relied on Plaintiff's medical records, and Dr. Brones' training, education and experience as a burn surgeon. Moreover, he challenges Dr. Ross' opinion as he is a dermatologist and lacks the same training and experience as Dr. Brones. Defendants' argument concerning faults in Dr. Brones' methodology raise questions that address the weight, not admissibility of his testimony.
Next, Defendants argue that Dr. Brones' opinion that the uniformity of the burn pattern could only occur if the shirt was a cotton blend, and not 100% cotton is unreliable because he failed to consider alternatives to his opinion. Plaintiff contends that Dr. Brones discounted obvious alternatives and explained the foundation of his opinions and why other conceivable causes were excludable. (Dkt. No. 165-2, Sizemore Decl., Ex. 1, Brones Depo. at 66:10-68:11.) Moreover, he argues that the existence of causes goes to the weight, not admissibility of the opinion.
Generally, "an expert need not rule out every potential cause in order to satisfy
The Court concludes that Dr. Brones is qualified to testify and his experience, knowledge, education concerning regarding burn injuries and materials are beyond the common knowledge of the average layman and would assist the trier of fact in determining the type of fabric Plaintiff was wearing on the day of the incident. However, based on the record, the Court finds that Dr. Brones' opinion that the blend of the Shirt caused 60-65% more damage is speculative and unsupported by any reliable methodology.
The Court GRANTS in part and DENIES in part Defendants' motion to exclude the expert testimony of Dr. Brones.
Plaintiff's designated forensic engineer, Andrew Ellison, P.E., is expected to testify about flammability characteristics and burning behavior of textiles and fabrics. (Dkt. No. 128 at 16.)
Defendants seek to exclude Mr. Ellison's testimony on human burn injuries on the basis that he is not qualified since he has no training, education or experience in the field of human burn injuries. Responding, Plaintiff argues that Mr. Ellison is qualified to testify on human burn injuries based on his extensive experience in the field of human skin burns resulting from thermal heat transfer involving a textile medium. Mr. Ellison is being offered to testify concerning the field of forensic engineering as it "relates to textiles and fabrics, the thermal transfer characteristics of those materials when exposed to fire, and the impact on human skin as a result of that thermal transfer", (Dkt. No. 164 at 6), and not as a medical expert to opine on Plaintiff's burn injuries.
Ellison graduated from Worcester Polytechnic Institute with a Bachelor of Science degree in Mechanical Engineering and a Master of Science degree in Fire Protection Engineering. (Dkt. No. 156-2, Irving Decl., Ex. 2, Ellison Decl. ¶ 3.) He is a licensed professional engineer, trained and experienced in performing fire origin and cause investigations, and is a Certified Fire and Explosion Investigator. (Dkt. No. 164-3, Sizemore Decl., Ex. 2.) He worked with the U.S. Navy performing research and testing on uniforms, protective clothing and equipment of war fighters, and the majority of his work focused on flammability and thermal protective personal protective clothing. (Dkt. No. 156-3, Irving Decl., Ex. 2, Ellison Decl. ¶ 4.) He also continued developing test methods for fabrics and garments under fire assault. (
Defendants assert that Mr. Ellison has never specifically published on the subject of burn injuries or the relationship between clothing and burn injures; has no formal education on burn injuries, has never been retained as an expert on burn injuries and has no firsthand experience in treating burn injuries.
Mr. Ellison has extensive education, experience and knowledge in the area he is expected to testify which is the field of forensic engineering as it "relates to textiles and fabrics, the thermal transfer characteristics of those materials when exposed to fire, and the impact on human skin as a result of that thermal transfer." (
Plaintiff's designated psychology expert, Paul Schwartzman, M.S., D.A.P.A., L.M.H.C., is a licensed mental health counselor. He intends to offer expert testimony on "child fire play" and the "emotional journey" of a burn victim, and Plaintiff's injuries. (Dkt. No. 128 at 16.)
Defendants seek to exclude Mr. Schwartzman's testimony on "child fire play" as not scientific, technical or other specialized knowledge, and exclude the "emotional journey" testimony as not previously disclosed and not based on sufficient facts or data. Plaintiff argues that Mr. Schwartzman's opinions are relevant and based on specialized knowledge and sufficient facts or data.
First, Defendants argue that Plaintiff failed to disclose Mr. Schwartzman's proposed expert opinion on "emotional journey" prior to his deposition. The expert witness disclosure states that he would be an expert in "child fire play and fire setting" and Plaintiff did not provide any notice or supplemental notice before his deposition that he would be testifying on Plaintiff's "emotional journey" from his burn injury in 2005 to the present. They also argue that Plaintiff never provided a report summarizing his expert opinions.
In response, Plaintiff argues that he sufficiently disclosed that he would testify concerning the emotional journey of burn victims as the disclosures were broadly written and integrally related to his "child fire play" testimony. However, if the Court concludes that the subject matter was not disclosed, any failure to disclose was harmless and did not prejudice Defendants.
First, it is to be noted that at defense counsel's suggestion, the parties agreed to waive the expert report disclosure requirement under Rule 26(a)(2)(b) as of March 3, 2016. (Dkt. No. 163-4, Sizemore Decl., Ex. 3 at 2-4.) Therefore, Defendants' argument Plaintiff did not provide an expert report is disingenuous. Plaintiffs' expert witness disclosures, disclosed on March 22, 2016, provided:
(Dkt. No. 163-3, Sizemore Decl., Ex. 2 at 4-5.)
The disclosure does not list the topic of "emotional journey", and Plaintiff's argument that there was a disclosure of emotional journey because there is overlap between child fire play and a burn victim's emotional journey is not persuasive. It is not disputed that Plaintiff did not provide a supplemental disclosure. Moreover, at Mr. Schwartzman's deposition, he indicated that Plaintiff's emotional journey was his primary purpose as an expert, indicating that he knew all along that he was to opine on Plaintiff's emotional journey, a topic that was not disclosed. (
However, at the hearing, Plaintiff argued that the subject of emotional journey was also being offered as rebuttal to Mr. Kalish's testimony of Plaintiff's claimed injury. Dr. Kalish was disclosed as a rebuttal expert, on April 26, 2016, to testify regarding child fire play and fire setting as well as opinions on causation and claimed injuries. (Dkt. No. 60.) Therefore, to the extent that the topic of emotional journey is raised by Dr. Kalish on Plaintiff's claimed injuries, Mr. Schwartzman may testify, on rebuttal, concerning Plaintiff's emotional journey.
Defendants also contend that the "emotional journey" testimony is not based on any "sufficient facts or data" because Mr. Schwartzman did not review Plaintiff's medical records but relied almost entirely on Plaintiff's uncorroborated recollection of events from his childhood and adolescence during that period. Defendants note that Mr. Schwartzman only spent about seven to nine hours reviewing materials to prepare his testimony. (Dkt. No. 150-3, Irving Decl., Ex. B, Schwartzman Depo. at 23:23-24:1.) He solely reviewed Plaintiff's deposition, Plaintiff's father's deposition, and read a few technical depositions but could not recall the authors. (
Mr. Schwartzman has a Bachelor of Art degree in Psychology and a Master of Science degree in Counseling from the University of Rochester. (Dkt. No. 163-2, Sizemore Decl., Ex. 1, Schwartzman CV.) His opinion is based on 35 years of experience counseling children and families, participating on boards and in organizations formed to support burn victims, and authoring numerous articles and handbooks about juvenile fire setting and prevention of such behaviors. (Id.) He also facilitated a support group for burn survivors and their families. (Dkt. No. 163-6, Schwartzman Decl. ¶ 4.) Half of his professional practice is comprised of counseling burn victims. (Dkt. No. 163-5, Sizemore Decl., Ex. 4, Schwartzman Depo. at 30:6-9.)
The Court concludes that the underlying data and basis of Mr. Schwartzman's opinion are sufficient to form an opinion.
The Court concludes that the emotional journey testimony during Plaintiff's case-in-chief should be excluded for Plaintiff's failure to disclose under Rule 26(a)(2)(C). However, to the extent that Dr. Kalish testifies and opens the door on the issue of emotional journey, Mr. Schwartzman may, on rebuttal, testify concerning Plaintiff's emotional journey.
Defendants argue that Mr. Schwartzman's opinion on "child fire play" is not relevant and will not assist the trier of fact. Specifically, they argue that the testimony that seven and eight year old children are curious about fire and experiment with fire, is common knowledge and does not require "scientific, technical or specialized knowledge." Defendants do not dispute the statement that some children experiment with fire and they are not claiming Jesus and Marcos intended to cause harm or damage when they used the lighter to light a plant. Therefore, his testimony regarding "child fire play" is not relevant. Plaintiff responds that Mr. Schwartzman's opinions are relevant to highly disputed facts including notice to Defendants as the corporate entity responsible for placing the product on the market and goes to whether the risk of harm was foreseeable. Plaintiff argues that Defendants knew or should have known of the likelihood that a child wearing the product would engage in fire play behavior and suffer injury as a result. Moreover, "child fire play" is relevant to Defendants' claims of negligent supervision against Plaintiff's parents as Plaintiff seeks to introduce Mr. Schwartzman's opinion on "child fire play" to demonstrate there were no negligent lapses in parental supervision.
Expert testimony is admissible under Rule 702 if the "subject matter at issue is beyond the common knowledge of the average layman. . . ."
Next, Defendants assert that child fire play is not relevant. At the hearing, Plaintiff argued that child fire play is relevant on the issue of foreseeability and whether Defendants had notice. A review of the proposed jury instruction shows that foreseeability is an element of the standard of care for negligence and also raised as an element of Defendants' affirmative defense of product misuse or modification. (Dkt. No. 212, Proposed Jury Instruction Nos. 1221, 1245.) Therefore, the Court concludes that child fire play is relevant to the ultimate issues in this case.
In sum, the Court DENIES Defendants' motion to exclude the testimony of Mr. Schwartzman on the topic of "child fire play" and GRANTS in part Defendants' motion to exclude the testimony of Mr. Schwartzman during Plaintiff's case in chief, but subject to being raised as rebuttal evidence to Dr. Kalish's testimony.
In Defendants' motions, they contend that the testimonies of Dr. Hall, Dr. Xu, Dr. Brones and Mr. Ellison are duplicative and cumulative, a waste of the jury's and the Court's time. According to Defendants, Dr. Xu and Dr. Hall have been retained to testify about fiber identification and flammability. Mr. Ellison was retained to opine as to flammability and human burn injuries and Dr. Brones, a plastic surgeon, will testify about materials identification and flammability characteristics of fabrics. All will opine that the Shirt was made from blended fabrics and consequently, more flammable than 100% cotton. They also argue their testimonies would be unduly prejudicial because the jury may lend more credibility to the expert's opinion if multiple experts testify similarly.
In response, Plaintiff argues that each expert witness will offer opinions based on facts and data customarily relied upon in his own specialized field of discipline. According to Plaintiff, the experts contribute specialized knowledge from unique scientific perspective that, taken together, will ensure the jury's decision is based on a thorough understanding of these complex and multi-faceted issues. For example, Dr. Xu's testimony about materials engineering principles will assist the jury in understanding how fibers can be identified by molecular structure and address the results of his optical microscopy study of the Shirt as well as his use of the FTIR method while Dr. Hall will address fiber identification by morphology and discuss his SEM testing. Dr. Brones' opinion is narrow and offered "only for the purpose of explaining the nature and extent of Plaintiff's injuries and his opinions regarding Plaintiff's subsequent treatment." (Dkt. No. 165 at 9.) Lastly, Dr. Ellison does not identify the fiber blend but offers a fire scientist's perspective on how the blend of nylon, cotton and rayon increases the severity of the injuries compared to a 100% cotton.
Even if an expert is qualified under Rule 702, a court has broad discretion to exclude the testimony under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. Fed. R. Evid. 403;
In this case, Dr. Brones will be testifying concerning Plaintiff's injuries and opinions about Plaintiff's future treatments. His testimony concerning the general statement that the Shirt was made of blended materials may overlap but is not needlessly cumulative. Mr. Ellison will be testifying about flammability and burning behavior of different textiles and human burn injuries which are distinct from the topics of the other experts. While Dr. Xu and Dr. Hall reached the same conclusion that the Shirt contained 90% cotton, 4-5% nylon and 5-6% rayon, their methodologies and analyses in determining the fiber content of the Shirt differ. Interestingly, despite Defendants' argument concerning cumulative evidence, the Court notes that Defendants' expert, Dr. Howitt, will be relying on the testing performed by three different laboratories to determine the Shirt's composition using different methods of fiber identification. Moreover, since both parties will be relying on testing of the Shirt's composition by different methods, the Court concludes that Defendants' argument the they will be unduly prejudiced is without merit. The Court DENIES without prejudice Defendants' motion to exclude the testimonies of Dr. Hall, Dr. Xu, Dr. Brones and Mr. Ellison as cumulative. Defendants may object at trial on any available ground under the Federal Rules of Evidence.
Plaintiff filed objections to the declaration of Dr. David Howitt. (Dkt. No. 178-14.) The objections mirror the arguments raised in the
Based on the reasoning above, the Court GRANTS in part and DENIES in part Plaintiff's motion to exclude the expert testimony of Dr. David Howitt. The Court also GRANTS in part and DENIES in part Defendants' motions to exclude the expert testimonies of Dr. David Hall, Dr. Michel Brones, and Mr. Schwartzman. The Court further DENIES Defendants' motions to exclude the expert testimonies of Dr. David Xu and Andrew Ellison.
IT IS SO ORDERED.
Fed. R. Evid. 703.
