Parker-Reed v. Primal Vantage Co.
| Decision Date | 30 March 2021 |
| Docket Number | Case No. 2:19-cv-1745 |
| Parties | Angela Parker-Reed, Plaintiff, v. Primal Vantage Company, Inc., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
Angela Parker-Reed ("Plaintiff") brings this personal injury action against Defendant, Primal Vantage Company, Inc. ("Defendant"). Defendant moves for summary judgment, ECF No. 33, and to exclude Plaintiff's expert, ECF No. 34. Plaintiff moves for leave to file a sur-reply. ECF No. 39.
Plaintiff's Motion, ECF No. 39, is DENIED; the Court is capable of assessing the arguments made in the Reply brief without the assistance of a Sur-Reply. The Court has considered the remaining motions and the briefing thereon. For the following reasons, Defendant's Motion to Exclude, ECF No. 34, is DENIED, and Defendant's Motion for Summary Judgement, ECF No. 33, is GRANTED IN PART and DENIED IN PART.
Plaintiff suffered an injury after falling from a "stick ladder" manufactured by Defendant. Ex. H at 110-13, ECF No. 33-9. Defendant's stick ladder provides access to tree stands used during hunting. Ex. A at 2, ECF No. 33-2.
Upon purchase, the stick ladder must be assembled. Id. at 6-7, ECF No. 33-2. The product includes multiple parts with crimped tubing at the end of each side to allow the parts to be fitted together vertically. Id. at 7, ECF No. 33-2. Each part of the stick ladder is then strapped to the chosen tree using deliberately placed buckle straps provided by Defendant upon purchase of the product. Id. at 8, ECF No. 33-2. The installation instructions state that users should "[s]ecure [each] section to the tree before climbing" onto it. Id. The instructions also advise that the chosen "tree should . . . have a diameter between 9 and 18 inches." Id. at 5, ECF No. 33-2. Finally, multiple warnings are included, urging individuals to always use a safety harness attached to the tree with a lineman's belt to secure the user to the tree while using the product:
Id. at 10, ECF No. 33-2. The requisite safety harness and lineman's belt are not included in Defendant's product but are included with the purchase of one of Defendant's tree stands. Ex. M at 80-83, ECF No. 35-4. Plaintiff had assembled stick ladders similar to Defendant's in the past. Ex. H at 38-42, ECF No. 33-9. Additionally, Plaintiff owned a safety harness at the time of the accident and had previously used it. Id. at 60-64, ECF No. 33-9.
On the day of the accident, Plaintiff was not wearing a safety harness while she was installing the stick ladder. Id. at 60, ECF No. 33-9. Plaintiff also replaced Defendant's buckle straps with rachet straps. Id. at 46-48, ECF No. 33-9. According to Plaintiff, as she was reaching to pull a ratchet strap around the tree to secure a portion of the stick ladder to the tree, the top portion of the stick ladder was not strong enough to hold her and thus bent under her weight at the stick ladder's joint causing her to fall. Id. at 109-110, ECF No. 33-9; Resp. 9-11, ECF No. 35. Plaintiff claims that this was due to a design defect in the crimped tubing of Defendant's stick ladder. Id. According to Plaintiff's expert, Mr. Munsell, if the tubing were a different shape and the brackets securing the stick ladder to the tree were closer together, the accident would not have occurred. Ex. M at 58-59, ECF No. 35-4; Ex. L at 69-70, ECF No. 35-3. Mr. Munsell opined that in its current design, the joint is so weak that even a slight shift of weight to an off-center point on an unattached portion of the stick ladder will cause the stick ladder's joint to bend. Ex. L at 23-25, ECF No. 35-3.
Defendant alleges that Plaintiff's fall and subsequent injury were caused by her failure to follow the applicable safety instructions. Plaintiff asserts that her fall was the result of both a defective design and inadequate warnings. Plaintiff seeks to offer expert testimony by Mr. Munsell to support her claims. Defendant has moved to exclude Mr. Munsell's proposed testimony under Federal Rule of Evidence 702.
Mr. Munsell is a mechanical engineer with multiple degrees. Resp. 1, ECF No. 35-2. He has a bachelor's degree in mechanical engineering; a master's degree in the history of science, technology, and medicine; and is currently pursuing a Ph.D. Id. He is licensed in the state of Oklahoma as a professional engineer. He has conducted research into safe design principles, specializes in "failure analysis of mechanical systems," and has investigated issues related to the failures of hunting stands and climbing devices. Id. His writing has been published by the American Society of Mechanical Engineers, and he reviews other articles for the same organization. Id.
In his report, Mr. Munsell discussed relevant literature, Plaintiff's accident, and the subject stick ladder. Rep. 3-4, ECF No. 35-2. He represents that he conducted a series of tests on a stick ladder identical to the one Plaintiff used. Id. at 4. During these tests, he measured the amount of force exerted on the stick ladder during assembly. Id. at 5-6. He provides a detailed discussion of his findings, opinions, and conclusions. Id. at 6-9.
The admissibility of expert witness testimony is governed by Federal Rules of Evidence 702 and 703. Rule 702 provides:
Fed. R. Evid. 702. This rule reflects the well-established judicial precedent that district courts must act as "gatekeepers" in determining the admissibility of such testimony. Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007) (). "[T]he gatekeeping inquiry must be tied to the facts of a particular case, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. at 430 (internal quotation marks and citation omitted).
Although "not a definitive checklist or test," some factors that may bear on the third part of the Rule 702 analysis are:
(1) whether a theory or technique . . . can be (and has been) tested; (2) whether the theory has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community.
Id. at 429-30 (internal quotation marks and citations omitted). Moreover, "expert testimony prepared solely for purposes of litigation, as opposed to testimony flowing naturally from an expert's line of scientific research or technical work, should be viewed with some caution." Id. at 434.
Additionally, Federal Rule of Evidence 703 permits an expert to "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. Moreover, "[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted." Id.
The proponent of expert testimony must establish its admissibility by a preponderance of proof. Nelson v. Tenn. Gas Pipeline, Co., 243 F.3d 244, 251 (6th Cir. 2001) (citing Daubert, 509 U.S. at 592 n.10). Whether to admit expert testimony is within the district court's discretion. Johnson, 484 F.3d at 429 (citation omitted).
Defendant puts forth several different arguments in favor of excluding Mr. Munsell's testimony. Some of these arguments, like those involving the factual issues around what happened during the accident, are inapplicable to a motion in limine. Defendant does appropriately assert two broad attacks on Mr. Munsell's opinions. First, it contends that Mr. Munsell is unqualified as an expert. Second, Defendant maintains that Mr. Munsell used unreliable testing to reach his conclusions.
As an initial matter, both parties agree that Mr. Munsell does not have an opinion regarding whether there was a manufacturing defect. Consequently, Mr.Munsell shall not be permitted to testify at trial on the topic of manufacturing defect.1
Defendant argues that Mr. Munsell is unqualified for several reasons. First, Defendant points out that Mr. Munsell is neither a human factors expert nor a metallurgist. Next, Defendant contends that Mr. Munsell is unqualified because he lacks experience with tree stands and stick ladders. Finally, Defendant argues that Mr. Munsell is unqualified to give opinions on adequate warnings because he has never designed warning labels. These arguments are unpersuasive.
"To qualify as an expert under Rule 702, a witness must first establish his expertise by reference to 'knowledge, skill, experience, training, or education.'" Pride v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000) (quoting Fed. R. Evid. 702). This requirement, however, "has always been treated liberally." Id. (citation omitted). The issue "is not the...
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