Jackson v. E-Z-Go Div. of Textron, Inc.

• Decision Date: 23 July 2018
• Docket Number: CIVIL ACTION NO. 3:12-CV-00154-TBR
• Citation: 326 F.Supp.3d 375
• Parties: Lora Madonna JACKSON, et al., Plaintiffs v. E-Z-GO DIVISION OF TEXTRON, INC., et al., Defendants
• Court: U.S. District Court — Western District of Kentucky

326 F.Supp.3d 375

Lora Madonna JACKSON, et al., Plaintiffs

v.E-Z-GO DIVISION OF TEXTRON, INC., et al., Defendants

CIVIL ACTION NO. 3:12-CV-00154-TBR

United States District Court, W.D. Kentucky, Louisville Division.

Signed July 23, 2018

Nicole A. Bush, Oldfather Law Firm, Louisville, KY, Richard V. Evans, Kentucky Attorney General, Frankfort, KY, Ann B. Oldfather, Oldfather Law Firm, Louisville, KY, Robert Sean Deskins, Oldfather Law Firm, Louisville, KY, P. Kevin Ford, Ford Law Office, Louisville, KY, for Plaintiffs.

Elizabeth A. Deener, Larry C. Deener, Landrum & Shouse, LLP, Lexington, KY, for Defendants.

Keith P. O'Neill, Louisville, KY, pro se.

Dianne O'Neill, Louisville, KY, pro se.

MEMORANDUM OPINION AND ORDER

Thomas B. Russell, Senior Judge United States District CourtCurrently pending before the Court are four motions by Plaintiffs and three motions by Defendant to exclude testimony of various witnesses pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). [DN 130; DN 131; DN 132; DN 133; DN 134; DN 135; DN 136.] All motions have been responded to and replied to. Fully briefed, these matters are now ripe for adjudication. For the reasons explained in detail below, Defendant E-Z-GO's Motion to Exclude Opinion Testimony of Andrew Lawyer II is GRANTED IN PART AND DENIED IN PART ; its Motion to Exclude Proposed Opinion Testimony of William Kitzes is GRANTED IN PART AND DENIED IN PART ; and its Motion to Exclude Opinion Testimony of Kristopher Seluga is GRANTED IN PART AND DENIED IN PART .

Plaintiffs' Motion to Exclude Testimony of Richard L. Stern is DENIED ; their Motion to Exclude David J. Bizzak, H. Frank Entwisle, and Graeme F. Fowler is GRANTED IN PART AND DENIED IN PART ; their Motion to Exclude Testimony About the Law by Fact Witnesses & Textron's Expert Witnesses is GRANTED ; and their Motion to Exclude Nathan T. Dorris is GRANTED IN PART AND DENIED IN PART .

BACKGROUND

This lawsuit arises out of a rollover accident involving an electric personnel carrier vehicle that led to the tragic death of one of the passengers, fifteen year-old Jordan Kori Jackson, on July 25, 2010 in Grayson County, Kentucky. [See DN 1-2 (Complaint).] The personnel carrier vehicle (the "Vehicle") was a 1993 E-Z-GO PC-4X manufactured and sold by Defendant E-Z-GO ("Defendant" or "E-Z-GO").¹ Jordan Jackson was a passenger in the front right seat of the Vehicle. Three other teenage passengers were also present: Molly Kyle, who was driving, Andrew O'Neill, whose parents owned the Vehicle, and Samantha Compton. Both Andrew O'Neill and Samantha Compton were sitting in the back of the Vehicle at the time of the incident.

Lora Madonna Jackson, Jordan's mother and the administratrix of her estate, and Carmine T. Jackson, administratrix of the estate of Charles T. Jackson Jr., Jordan's father, brought the instant lawsuit against Defendant E-Z-GO Division of Textron, Inc. Herein, Plaintiffs allege that the Vehicle's design was defective, that E-Z-GO failed to provide adequate warnings regarding its safe operation, and that E-Z-GO breached express and implied warranties. [See DN 1-2 at 4–7.] Plaintiffs also bring negligence and gross negligence claims against Keith and Dianna O'Neill, Andrew O'Neill's parents, alleging that the O'Neills wrongly allowed their then-underage son and others to operate the Vehicle on the day of the incident. [DN 1-2 at 7–8.]

This matter is scheduled for a jury trial beginning on August 1, 2018. Presently, both parties make motions to exclude the testimony of several witnesses expected to testify at trial.

STANDARD

When a party challenges an opponent's expert witness, this Court must assume "a gatekeeping role" to ensure the relevance and reliability of the expert's testimony. Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; see also Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert to nonscientific expert testimony). Federal Rule of Evidence 702 guides the Court through this inquiry. The plain language of Rule 702 says, first, that an expert must be qualified to testify on account of his "knowledge, skill, experience, training, or education." Fed. R. Evid. 702 ; see also Bradley v. Ameristep, Inc. , 800 F.3d 205, 208 (6th Cir. 2015). The Court does "not consider 'the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.' " Burgett v. Troy-Bilt LLC , 579 Fed.Appx. 372, 376 (6th Cir. 2014) (quoting Berry v. City of Detroit , 25 F.3d 1342, 1351 (6th Cir. 1994) ). A qualified expert may then testify so long as his opinions will aid the factfinder and are reliable, meaning the opinions are based on sufficient data, reliable methods, and the facts of the case. Fed. R. Evid. 702(a)–(d) ; see also Clark v. W & M Kraft, Inc. , 476 Fed.Appx. 612, 616 (6th Cir. 2012) ; Adler v. Elk Glenn, LLC , 986 F.Supp.2d 851, 854 (E.D. Ky. 2013).

There are a number of factors typically considered to resolve questions concerning the reliability (and admissibility) of expert testimony, but no list is exhaustive. See Daubert , 509 U.S. at 593–94, 113 S.Ct. 2786 ; see also Newell Rubbermaid, Inc. v. Raymond Corp. , 676 F.3d 521, 527 (6th Cir. 2012) ; Powell v. Tosh , 942 F.Supp.2d 678, 686–88 (W.D. Ky. 2013). Such factors may include "(1) whether the theory or method in question 'can be (and has been tested)'; (2) whether it 'has been subjected to peer review and publication'; (3) whether it has a 'known or potential rate of error'; and (4) whether the theory or technique enjoys 'general acceptance' in the 'relevant scientific community.' " Sierra Enterprises Inc. v. SWO & ISM, LLC , 264 F.Supp.3d 826, 834 (W.D. Ky. 2017) (quoting Daubert , 509 U.S. at 593–94, 113 S.Ct. 2786 ).

Where a party challenges the testimony of a proffered expert for insufficient "factual basis, data, principles, methods, or their application ... the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [his or her] discipline." Kumho Tire , 526 U.S. at 149, 119 S.Ct. 1167 (quoting Daubert , 509 U.S. at 592, 113 S.Ct. 2786 ). Although a Daubert hearing is not a prerequisite, the court must ensure that the disputed testimony is both relevant and reliable. See Clay v. Ford Motor Co. 215 F.3d 663, 667 (6th Cir. 2000). In any case, the Court has considerable leeway over where to draw the line. Tamraz v. Lincoln Elec. Co. , 620 F.3d 665, 671–72 (6th Cir. 2010) ("[W]here one person sees speculation, we acknowledge, another may see knowledge, which is why the district court enjoys broad discretion over where to draw the line." (citing Gen. Elec. Co. v. Joiner , 522 U.S. 136, 139, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ) ). The proponent of the expert testimony must establish its admissibility by a preponderance of the evidence. Sigler v. Am. Honda Motor Co. , 532 F.3d 469, 478 (6th Cir. 2008).

DISCUSSION

Neither party has been shy about filing Daubert and numerous other motions in this matter. This case has been ongoing for several years, and much of the delay can be attributed to hotly contested discovery issues. However, counsel for both parties have been strong advocates for their clients and, despite differences of opinion, counsel have been professional and served their clients well. The Court is confident that this degree of professionalism will carry forward during the trial of this matter.

There are currently seven Daubert motions pending before the Court. The Court will address each in turn.

1. Defendant's Motion to Exclude Opinion Testimony of Andrew Lawyer II

Defendant first moves to exclude the testimony of Plaintiffs' expert Andrew Lawyer II, who, according to his Curriculum Vitae, is a "[c]onsulting engineer specializing in accident reconstruction and safety analysis in electrical design safety and failure analysis, fire cause and origin, and vehicular traffic accidents. He has been qualified as an expert in trial litigation in Florida, Louisiana and Mississippi." [DN 112-2 at 2 (Lawyer Curriculum Vitae).] Lawyer is registered professional engineer in Florida and Alabama. [Id. ] He is a certified fire and explosion investigator, a certified crash data retrieval operator, and a certified accident reconstructionist. [Id. ] Since 1999, Lawyer has run his own reconstruction services company. [Id. ] Before doing so, he worked as an engineer for the Florida Department of Transportation and before that, for Benedict Engineering Company in Tallahassee, FL. [Id. ] Lawyer testified that, at Benedict Engineering, "we did everything from research and development to classical engineering design to forensic accident reconstruction, and safety consulting." [DN 130-7 at 5 (Lawyer Deposition).] Lawyer is also a member of the American Society of Safety Engineers, the Institute of Electrical and Electronic Engineers, the National Society of Professional Engineers, and the Society of Automotive Engineers, to name a few. [DN 112-2 at 1–2.]

In preparation for his testimony, Lawyer reviewed numerous documents and information, including, for example, police reports from the incident, U.S. Patents, photographs taken at the scene of the accident, E-Z-GO Textron operation manuals and laboratory engineering tests, Engineering Design Specifications and Drawings, an article containing an interview with a former E-Z-GO engineer, National Highway Traffic Safety Administration statistics, deposition testimony, discovery responses, and the expert disclosures of other expert witnesses expected to testify in the case. [DN 119-1 at 2–4 (Lawyer Supplemental Report).]

In his Supplemental Expert Report, Lawyer offers six main opinions which he explains in greater detail in his Report:

1. There were available electronic technologies, in the form of dynamic braking/plug braking

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