Moreno v. Specialized Bicycle Components, Inc.
| Decision Date | 17 August 2021 |
| Docket Number | Civil Action 19-cv-01750-MEH |
| Parties | VICTOR MORENO, Plaintiff, v. SPECIALIZED BICYCLE COMPONENTS, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
Before the Court is Defendant's Motion for Summary Judgment (ECF 81) and Motion for Leave to File a First Amended Answer (ECF 93). The Motions are fully briefed, and the Court finds that oral argument would not materially assist in their adjudication. For the reasons that follow, the summary judgment motion is denied and the motion to amend is granted.
Plaintiff alleges that he was biking in Red Rocks Park while wearing Defendant's helmet. He crashed at a bend in the road and collided into a railing. He attributes his resulting head injuries to the helmet, which he contends did not perform as it should have. He seeks to hold Defendant liable for his injuries on the theory that the helmet's design was defective. He expresses that theory of wrongdoing through various product liability, tort, and breach of warranty causes of action.
Plaintiff does not assert a separate claim of defective manufacture[1] or inadequate warnings or instructions.
Dave Debus has worked for Defendant as its Director of Product Creation, Helmets, since February 2020 (and thus after the helmet's manufacture and Plaintiff's injury). Mr. Debus' duties in that role “include managing helmet projects through design and into manufacturing, managing the design/development team in the United States and China, and responsibility for delivery of helmet products to the market.” ECF 81-3 at ¶ 1. Defendant uses his declaration to describe the helmet's physical characteristics and its certification process. Mr. Debus relies on his employment experience and records review for his testimony.
Plaintiff objects to the declaration because Defendant did not disclose Mr. Debus as a witness. Defendant explains that it is using Mr. Debus as its new “Person Most Qualified” witness in the place of Clinton Mattacola who no longer is an employee. Plaintiff deposed Mr. Mattacola on January 16, 2020, and Plaintiff does not contend that Mr. Debus' testimony is inconsistent with Mr. Mattacola's. Even if Defendant should have disclosed Mr. Debus sooner, the Court sees no reason to preclude the use of his declaration for summary judgment purposes. Defendant explains how Mr. Debus is competent about the subject of his declaration in compliance with Fed.R.Civ.P. 56(c)(4), and Plaintiff raises no argument for why it otherwise would be inadmissible as evidence at trial to support a Fed.R.Civ.P. 56(c)(1) objection.
On the present arguments, the Court sees no basis to exclude Mr. Debus' declaration from consideration.
Plaintiff's two primary expert witnesses are Christopher Yakacki, Ph.D., and Lillian Chatham, MSME. A dispute concerning them relevant to the summary judgment ruling involves new affidavits that Plaintiff produced for the first time in his Response. At ECF 90-3 is Dr. Yakacki's affidavit, and at ECF 90-6 is Ms. Chatham's affidavit. Both were signed on May 27, 2021, the day before Plaintiff filed his Response. Defendant complains that both affidavits add to the record new opinions and claims not previously expressed. “Plaintiff's experts opine for the very first time that the Max helmet did not comply with all CPSC and Snell Memorial Foundation standards, ” and otherwise “bolster prior opinions and testimony that [Defendant] attacked in the motion.” ECF 97 at 3.
Defendant complains that Dr. Yakacki tries to correct and bolster deposition testimony in which he admitted that he did not conduct a test to calculate the amount of force needed to displace Plaintiff's helmet either as currently designed or with the proposed alternative design. Defendant objects to Ms. Chatham's attempt to address her lack of testing or underlying scientific analyses or data to support her opinion that the helmet, had it stayed on Plaintiff's head, would have prevented the head injury. Defendant also challenges Ms. Chatham's opinion that the helmet suffers from a manufacturing defect not only because she asserts it for the first time in the disputed affidavit but because it lacks the support of reliable scientific methods or principles required by Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., 509 U.S. 579, 593-94 (1993).
Defendant regards the new affidavits as impermissible supplementation. An expert witness shall produce a final, comprehensive written report that is “a complete statement of all opinions the witness will express” and contains all supporting bases and reasoning. Fed.R.Civ.P. 26(2)(B)(i). Supplementation is permitted, Fed.R.Civ.P. 26(e)(1), and indeed is required if “the information initially provided is incomplete or incorrect, ” Henderson v. Nat'l R.R. Passenger Corp., 412 Fed.Appx. 74, 80 (10th Cir. 2011). Otherwise, supplementation is limited to “the narrow purpose [of] correcting inaccuracies or adding information that was not available at the time of the initial report.” S.E.C. v. Nacchio, No. 05-cv-00480-MSK-CBS, 2008 WL 4587240, at *3, n.3 (D. Colo. Oct. 15, 2008).
Because Defendant raises the objection in its Reply, the Court does not have Plaintiff's position on the matter. Nevertheless, the record is clear that the expert witnesses wrote the affidavits after the conclusion of discovery, after Defendant had written its summary judgment motion, and indeed for the purpose of addressing the arguments Defendant raised therein. Nor does Plaintiff explain in his Response his reliance on them and how he may do so.
For present purposes, the Court does not decide whether the expert witnesses are using the new affidavits simply to explain and clarify previously stated opinions in some permissible way. Instead, the Court excludes from consideration the new affidavits to simplify the summary judgment analysis. The Court will look only to their reports and deposition testimony that predate the summary judgment motion.
Dispositive to this lawsuit is whether the helmet came off Plaintiff's head before impact and the parts designed to prevent it from doing so. The parties disagree on how to refer to certain aspects of the helmet. Dr. Yakacki defines the helmet's “retention system” as “a complete assembly (i.e., a system of components) that secures the helmet in a stable position to the wearer's head.” ECF 90-3 at 34. The most basic components are the straps that come down from the helmet past the wearer's ears and the strap that connects them under the wearer's chin which is closed by a buckle. Defendant refers to the subject helmet's retention system in equivalent terms. ECF 81 at ¶ 5.
A helmet also may have an “occipital stabilizer” which is at the helmet's rear and sits behind the wearer's head. Dr. Yakacki defines it as “a component that adjusts circumferentially around the head and makes contact with the occipital bone.” ECF 90-3 at 34. It may incorporate some device such as a headband or knob that adjusts the fit. The subject helmet had an occipital stabilizer component which Defendant describes as “a plastic circumferential ring which is adjusted by a dial at the rear of the head to help ensure proper fit, ” and indeed, Defendant refers to it as the helmet's “fit system.” ECF 81 at ¶ 5. Plaintiff disagrees that the occipital stabilizer “fit system” is separate and apart from the helmet's “retention system.” Rather, Plaintiff argues that the occipital stabilizer should be considered as an additional component of the retention system. ECF 90 at ¶ 5.
Because the parties dispute how to refer to the occipital stabilizer (whether as the helmet's fit system or retention system) and because that dispute is material to the lawsuit, the Court will discuss that particular component in a neutral way. For purposes of the below discussion, the Court will avoid using the term “fit system” as a way to refer to the occipital stabilizer unless otherwise appropriate for the discussion. Where the Court refers to the helmet's “retention system, ” it does so without implying whether the occipital stabilizer is or should be part of it.
1. On June 19, 2017, Plaintiff was riding his bicycle through Red Rocks Canyon in Jefferson County. ECF 81-5 at 9.
2. Plaintiff had never been through this area before. He was traveling downhill and attempting to negotiate a hairpin turn in the road. He lost control and fell, or was thrown, from his bicycle. ECF 81-5 at 10-19.
3. The parties dispute the details about how the accident happened with regard to his speed and path of travel as well as the exact location where Plaintiff came off his bicycle. ECF 90 at 3, ¶ 3; ECF 97 at 5, ¶ 3. However, the parties do not dispute that ultimately Plaintiff's head struck a wooden guardrail support post, causing injury. ECF 81-5 at 10-19.
4. At the time of the accident, Plaintiff was wearing Defendant's “Max” model helmet, which he had bought sometime in 2016. ECF 1 at ¶¶ 14-16.
5. The Max model helmet has a thermoplastic exterior shell and a liner made from polystyrene bead foam (sometimes called “EPS”). There is “a plastic circumferential ring that is adjusted by a dial at the rear of the head to help ensure proper fit” [which Defendant refers to as “the fit system” and is consistent with Dr Yakacki's definition of an occipital stabilizer]. There are nylon webbing strips anchored to the helmet at four locations, and there is a nylon strap with a plastic buckle assembly that can be adjusted according to the wearer's head...
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