LEONARD T. STRAND, United States Magistrate Judge.
TABLE OF CONTENTS
INTRODUCTION ...................................................................956
PROCEDURAL HISTORY .............................................................956
RELEVANT FACTS .................................................................957
ANALYSIS .......................................................................959
I. The Motion To Exclude Dr. Brusso's Opinions ..........................959
A. The Daubert Analysis .............................................959
B. Admissibility of Dr. Brusso's Opinions ...........................960
II. The Motion for Summary Judgment ......................................961
CONCLUSION .....................................................................963
This case is before me on two motions filed by the defendant: (a) a motion to exclude the opinions of plaintiffs' liability expert (Doc. No. 21) and (b) a motion for summary judgment (Doc. No. 22). Both motions are resisted and have been thoroughly briefed. I heard oral arguments on July 24, 2013. David Taylor appeared for the plaintiffs and Kevin Reynolds appeared for the defendant. The motions are fully submitted.
Plaintiffs Jason Martin and Amber Martin filed this action in the Iowa District Court for Cerro Gordo County on February 2, 2012. In their petition, they allege that defendant Apex Tool Group, LLC (Apex), manufactures, distributes and sells the GearWrench brand of pry bars. They further allege that Martin
Apex removed the case to this court on March 15, 2012, invoking the court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. Apex later filed an answer in which it denies liability and asserts various affirmative defenses including comparative fault, the impact of certain alleged contractual provisions and a state of the art defense.
The parties then consented to trial, disposition and judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The case was assigned to me by
These facts are not in dispute for purposes of Apex's pending motions:
As indicated in opinion no. 4, while examining the pry bar Dr. Brusso found a flaw in the alloy steel at the location of the fracture. He determined that the flaw was about 0.11 inches in length and had a depth of 0.014 to 0.027 inches. He states that 0.027 inches is approximately ten percent of the bar's thickness at the area of the fracture and that "this is a very large defect for this product size." Dr. Brusso also states that the fracture originated at the location of the flaw, although there was an initiation point on the opposite side of the bar, as well. He indicates that the two points of origination failed within milliseconds of each other, with one area failing immediately upon the failure occurring at the other location.
Dr. Brusso did not perform any calculations or engineering analysis to determine what effect, if any, the flaw had on the strength of the pry bar. Doc. No. 21-3 (Brusso deposition) at 54. Nor did he perform any engineering analysis to determine the magnitude of the forces that were on the pry bar at the time it fractured. Id. at 51.
Dr. Wandling is critical of Dr. Brusso's opinions, especially on the issue of causation. Dr. Wandling will testify that he has conducted testing which shows that the small flaw in the pry bar reduced its strength by only an insignificant amount and that this reduction in strength could not have caused the bar to fail. He also will testify that he has conducted testing with an exemplar pry bar after removing even more material than the amount that was missing from the pry bar at issue. According to that testing, even that altered pry bar met all applicable industry standards.
Dr. Wandling states that based on his testing, the pry bar's failure mode if excessive force is applied in the correct, downward manner is the shearing of the indexing gear teeth. In other words, he will testify that if Martin was using the bar in the proper manner, but then simply applied too much force, the bar would not have fractured as it did. Instead, the gear teeth would have sheared. By contrast, if too much force is applied in the improper, perpendicular (sideways) manner, the pry bar will fail at the location of the fracture in this case. It is Dr. Wandling's opinion that the pry bar failed because Martin misused it by applying an improper side load.
Dr. Wandling agrees with Dr. Brusso that the initiation point of the failure was at the preexisting flaw. Indeed, he testified that "this whole fracture initiated with the preexisting crack, and as soon as that preexisting crack fracture started at that point, the fracture started on [the other]
Apex's motion was initially directed at four of Dr. Brusso's opinions:
Doc. No. 21-1 at 5. However, plaintiffs have withdrawn their design-defect related claims. As such, the last two opinions are moot and only the first two remain at issue.
Federal Rule of Evidence 702 provides that expert testimony should be admitted if (a) it is based on sufficient facts, (b) it "is the product of reliable principles and methods," and (c) "the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).
Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir.2003) [internal citations to Daubert omitted].
The "gatekeeper" role requires the trial court to "separate[ ] expert opinion evidence based on `good grounds' from subjective speculation that masquerades as scientific knowledge." Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989 (8th Cir.2001). Although a trial court has substantial latitude to determine whether offered expert testimony is reliable, it is important to note that Rule 702 reflects a liberalized approach to the admissibility of expert testimony. See United States v. Reed & Sons P'ship, 280 F.3d 1212, 1215
United States v. Vesey, 338 F.3d 913, 917 (8th Cir.2003).
Apex does not challenge Dr. Brusso's qualifications as a metallurgist. That is, Apex does not contend that he is incapable of providing admissible opinions concerning the cause of the pry bar's failure in this case. Instead, Apex contends that the opinions Dr. Brusso has provided are inadmissible because they are unreliable. They are unreliable, according to Apex, because they are not based on any engineering analyses or mathematical calculations.
Plaintiffs disagree, contending that Dr. Brusso conducted a thorough analysis of the failed pry bar, including a visual examination, examination under a scanning electron microscope, hardness testing, chemical analysis and metallographic examination. While I have no doubt that Dr. Brusso undertook these tasks, the fact that a long list of tests and examinations occurred does not automatically render all subsequent opinions admissible. Instead, I must consider the stated grounds for each opinion.
Dr. Brusso's first opinion, that the small flaw in the metal was a manufacturing defect, is based on his findings (a) that the flaw was present prior to final heat treatment and assembly and (b) was not intended by the manufacturer. Neither finding is in serious dispute. All experts appear to agree that the flaw was present at the conclusion of the manufacturing process (i.e., it did not occur later due to an event beyond Apex's control). No one contends that the flaw was an intended feature of the pry bar's design. While Apex challenges use of the word "defect" because there is allegedly no evidence that the flaw significantly affected the pry bar's strength or function, Dr. Brusso calculated the depth of the flaw to be approximately ten percent of the overall width of the bar. Dr. Brusso certainly can be cross-examined as to his use of the word "defect," but I cannot find that his opinion that the flaw was a manufacturing defect is so unreliable as to require exclusion under the Daubert standards.
Dr. Brusso's second opinion is a closer call. He intends to testify to an opinion that the flaw "is the cause of the present failure." However, the reasons he has offered in support of this opinion are not entirely clear. As best as I can tell,
As noted above, Dr. Brusso did not conduct testing to determine the impact of the flaw on the pry bar's strength. In other words, he conducted no engineering analysis or calculations to show that the bar would not have fractured but for the flaw. Apex contends that this omission is fatal to Dr. Brusso's opinion. It notes, by contrast, that Dr. Wandling has undertaken an engineering analysis to demonstrate that the flaw had such a minimal impact on the bar's strength that it could not have caused the fracture.
In response, plaintiffs point out that an expert's opinions need not rely only on laboratory-quality findings that can be replicated by other experts. The Supreme Court has stated that "no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience." Kumho, 526 U.S. at 156, 119 S.Ct. 1167. The ultimate question is "whether this particular expert [has] sufficient specialized knowledge to assist the jurors `in deciding the particular issues in the case.'" Id. (quoting 4 J. McLaughlin, Weinstein's Federal Evidence ¶ 702.05[1], p. 702-33 (2d ed.1998)).
Here, Dr. Brusso's credentials are not in doubt. Nor is there any evidence that his various tests and analyses are not regularly conducted or accepted in the field of metallurgy. Moreover, it was through his testing and examination that he discovered both (a) the presence of a pre-existing flaw in the alloy steel and (b) the fact that the fracture initiated at that location. These conclusions have been confirmed by Apex's experts. In short, this is not a case in which an expert simply eyeballed a product and announced an opinion supported by nothing but his or her impressive credentials. Dr. Brusso used recognized methods to make findings about this pry bar that the other experts have confirmed. I find that his testimony is relevant and is likely to aid the jury.
This does not mean that his causation opinion is unassailable. Indeed, and as suggested above, I believe it is vulnerable to valid challenges. However, I hold that the causation opinion is, at worst, within the "shaky but admissible" category referenced by the Eighth Circuit. See Vesey, 338 F.3d at 917. Apex's remedy is not exclusion, but instead cross-examination, the presentation of contrary evidence and careful instruction on the burden of proof. Id. As such, its motion to exclude Dr. Brusso's opinions is
Apex's motion for summary judgment is based on two propositions: (a) plaintiffs' claims fail as a matter of law if they do not have admissible expert opinion evidence on the issue of causation and (b) plaintiffs have no such evidence. Because I have denied Apex's motion to exclude Dr. Brusso's opinion, the summary judgment motion must also be denied. However, I will briefly address the motion for summary judgment to explain why Apex would not
As noted above, Martin's testimony suggests that he was using the pry bar in the proper and intended manner when it failed. For purposes of Apex's motion for summary judgment, I must accept this testimony as true.
Iowa courts have long recognized that expert opinion testimony is not always required in a products liability case. In 1973, the Iowa Supreme Court noted that proof of a product defect is "usually established by circumstantial evidence." Kleve v. Gen. Motors Corp., 210 N.W.2d 568, 571 (Iowa 1973). Eight years later, the Iowa Court of Appeals expanded on the issue as follows:
Wernimont v. Int'l Harvester Corp., 309 N.W.2d 137, 141 (Iowa Ct.App.1981). The court ultimately held that the plaintiff's design defect claim failed due to the lack of evidence that the design of the product (a truck tractor) caused unreasonable risk to the operator. Id. at 142.
In Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992), overruled on other grounds by Jahn v. Hyundai Motor Co., 773 N.W.2d 550 (Iowa 2009),
The ability to prove a product defect without expert testimony is recognized in Section 3 of the Restatement (Third) of Torts: Product Liability, which is entitled "Circumstantial Evidence Supporting Inference of Product Defect." It states:
Restatement (Third) of Torts: Prod. Liab., § 3 (1998). While the Iowa Supreme Court has not yet had occasion to consider adopting Section 3, it adopted Sections 1 and 2 in Wright v. Brooke Group, Ltd., 652 N.W.2d 159, 169 (Iowa 2002). And, as noted above, in 2009 the Court overruled its own precedent in favor of the enhanced injury principles set forth in Section 16. Section 3 is not in sharp contrast to existing Iowa law. I predict the Iowa Supreme Court, if asked, would adopt that section.
Whether analyzed under Section 3 or Iowa precedent, the issue is the same. If the jury accepts Martin's testimony and finds that he was using the pry bar properly, is expert opinion testimony necessary to support a finding that the bar's failure was caused by a manufacturing defect? I believe not. There is sufficient circumstantial evidence in this record to allow for such a finding without expert testimony. First, and consistent with Section 3, reasonable jurors could find that a fracture during use is the kind of incident that "ordinarily occurs as the result of a product defect." A pry bar is not a complex, high-tech product. Based on the record before me, there appear to be only two reasons why it would fracture during use: (a) defect or (b) improper use. Clearly, there is a disputed issue of material fact as to whether Martin was using the bar properly. If the jury finds that he was, it may reasonably conclude that the failure was caused by a defect.
Second, as plaintiffs point out, the retailer replaced the failed pry bar pursuant to a lifetime warranty, indicating that the bar "failed integrity test." Apex then reimbursed the retailer for the replacement bar. I agree with Apex that this evidence may reflect customer service concerns rather than an admission that the product was defective. At the summary judgment stage, however, I must view this evidence most favorably to the plaintiffs. Evidence of the return, and of Apex's reimbursement of the retailer, is circumstantial evidence supporting plaintiffs' claim that the pry bar at issue was defective.
In short, even if I were to exclude Dr. Brusso's causation opinion, the lack of expert opinion evidence would not compel entry of summary judgment in Apex's favor. When the record is viewed in a light most favorable to plaintiffs, there is sufficient circumstantial evidence to support their claim that the accident at issue was caused by a manufacturing defect. Apex's motion for summary judgment is
Apex's motion to exclude the opinions of plaintiffs' liability expert (Doc. No. 21) and motion for summary judgment (Doc. No. 22) are both
