Walsh v. LG Chem Am.
| Decision Date | 13 September 2021 |
| Docket Number | CV-18-01545-PHX-SPL |
| Parties | Christopher Walsh, Plaintiff, v. LG Chem America, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Plaintiff's Motion to Exclude Some Opinions of Defendant's Design Defect Expert, Richard Marzola. (Doc. 102). The Motion has been fully briefed and is ready for review.[1] (Docs. 102, 122, 123). Plaintiff seeks to exclude three specific parts of expert Richard Marzola's report (“Marzola Report”) and one part of Mr. Marzola's deposition. (Doc. 102 at 3, 11). The Motion will be denied in part and granted in part, as set forth below.
This is a products liability case involving two batteries from a vaping device. (Doc. 30 at 2). Plaintiff purchased the vaping device and batteries from Defendant retail smoke shop Oueis Gas, Inc. on October 28, 2015. (Doc. 30 at 2). On November 18, 2016, Plaintiff alleges those same batteries reacted with a set of keys in his right pocket and exploded, causing serious burns. (Doc. 30 at 2). Plaintiff filed a complaint against Defendant on May 22, 2018, with four counts: (1) negligent design; (2) negligent failure to warn; (3) strict liability/design defect; and (4) strict liability/information defect. (Doc. 30 at 3-4).
Following the incident, Plaintiff negligently failed to preserve the batteries and keys as evidence. (Doc. 131 at 5). As a result Defendant moved for an adverse instruction based on Plaintiff's spoliation of evidence, which this Court granted. (Doc. 131 at 6).
In preparing its case, Defendant consulted Richard Marzola, a senior electrical engineer for SEA, Ltd., as a design defect expert. (Doc. 102-2 at 6). Marzola was asked “to review file materials and determine the cause of the incident and if the battery cell was defective.” (Doc. 102-2 at 6). On July 5, 2020, Marzola issued his report and drew several conclusions, three of which are the subject of this Motion. On June 15, 2021, Marzola was deposed by both parties. Plaintiff seeks to exclude one portion of the deposition.
Federal Rule of Evidence (“FRE”) 702 permits parties to file motions to exclude to ensure relevance and reliability of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999). Courts have a “gatekeeping” function when it comes to expert testimony. Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (Apr. 27, 2010). “When an expert meets the threshold established by Rule 702 as explained in Daubert, the expert may testify and the jury decides how much weight to give that testimony.” Id. When the expert does not meet the threshold, the Court may prevent her from providing testimony. See Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) ().
“Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.” Fed.R.Evid. 401. Reliability is determined separately. “The trial court must first assess whether the testimony is valid and whether the reasoning or methodology can properly be applied to the facts in issue.” Puente v. City of Phx., No. CV-18-02778-PHX-JJT, 2021 WL 1186611, at *1 (D. Ariz. Mar. 30, 2021) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993)). “The focus . . . must be solely on [the expert's] principles and methodology, not on the conclusions that they generate.” Id. (citing Daubert, 509 U.S. at 594).
In the Motion, Plaintiff seeks to exclude three of Marzola's conclusions in the report. Plaintiff also seeks to exclude Marzola's statement made during his deposition. Each will be discussed in turn.
Marzola's report concludes that any confirmation of the manufacturer of the incident cells is “pure speculation” without physical examination of the cells. (Doc. 102-2 at 6, 20). It also concludes that “it is of the opinion of [this report]” that without examination of the cells “this precludes anyone from determining the manufacturer . . . and the cause of the thermal runaway event.” (Doc. 102-2 at 7, 27). Plaintiff argues these conclusions should be excluded because they “opine on how much weight jurors should assign to certain pieces of fact evidence.” (Doc. 102 at 3). Plaintiff also argues for exclusion under the Daubert standard. (Doc. 102 at 4-5). Finally, Plaintiff argues that the conclusions improperly “diminish the credibility” of fact witnesses Plaintiff Walsh and Lindsay Niziolek (Walsh's former girlfriend). (Doc. 102 at 5).
In arguing that Marzola's conclusions improperly instruct jurors on the weight of evidence, Plaintiff cites to Dietz v. Waller, 141 Ariz. 107, 685 P.2d 744 (1984). In Dietz, a boat broke apart and the owner sued the maker of the boat under strict liability. Id. at 109, 685 P.2d at 746. The issue was whether the plaintiff's circumstantial evidence at trial was sufficient to submit the case to the jury. Id. at 108, 685 P.2d at 745. The Arizona Supreme Court held that plaintiffs “must be permitted to rely upon circumstantial evidence alone in strict liability cases, because it is unrealistic to expect them to otherwise be able to prove that a particular product was sold in a defective condition.” Id. at 110, 685 P.2d at 747.
Plaintiff's argument is that Marzola's conclusions-that any manufacturer confirmation or cause determination is “pure speculation” absent physical inspection- violate the Dietz standard by “instruct[ing] the jury” to disregard Plaintiff's circumstantial evidence. (Doc. 102 at 4). This is a mischaracterization of Dietz. As Dietz relates to this case, it stands only for the proposition that plaintiffs be permitted to rely on circumstantial evidence alone in strict liability cases. Here, the admission of Marzola's conclusions does not prevent Plaintiff from relying on circumstantial evidence. His conclusions do not require or instruct the jury to disregard the circumstantial evidence. And while his conclusions may contradict the conclusions Plaintiff wishes to be drawn from the circumstantial evidence, this is not equivalent to preventing Plaintiff from relying on circumstantial evidence altogether, which is all that Dietz prohibits. The jury will hear the evidence of both sides-Plaintiff's circumstantial evidence and the conclusions of Marzola's report-and will be free to weigh the evidence on its own. This Court holds that Marzola's conclusions cannot be said to instruct the jury on the weight of evidence.
Next, Plaintiff appears to make a Daubert argument for exclusion, though it is unclear just how Marzola's conclusions violate FRE 702 or the Daubert standard. FRE 702 allows an expert witness to testify “in the form of an opinion or otherwise if (1) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact issue, (2) the testimony is based on sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. Meanwhile, Daubert provides factors for trial courts to use in assessing the reliability of expert testimony. Daubert, 509 U.S. at 593-94.
Plaintiff's Motion does not meaningfully address how either of the above conclusions violate FRE 702 or the Daubert standard. It does not argue that Marzola lacks scientific, technical, or other specialized knowledge to help the jury understand the evidence.[2] Absent argument otherwise, Marzola's education, experience, certifications, and professional background raise no concerns as to his qualifications. (See Doc. 102-2 at 29-30). And his testimony stands to help the jury understand the evidence by explaining how the batteries would have been analyzed and by providing other potential causes of thermal runaway, aside from only manufacturing defects.
Plaintiff also does not dispute that Marzola's conclusions were based on sufficient facts or data, or that they were the product of reliable principles and methods. The report includes a long list of material that Marzola reviewed prior to its preparation. (Doc. 102-2 at 9-10). This included the surveillance footage and Plaintiff's own deposition testimony. Id. The report then details the facts of the incident, provides basic background information on battery cells, and explains “what typical investigative analysis would have been conducted . . . if the battery cells had been retained.” (Doc. 102-2 at 11-22). Absent argument otherwise, the conclusions appear to have been based on sufficient facts and data, and the product of reliable principles and methods.
Finally, Plaintiff gives no argument that Marzola's conclusion was not the result of reliable application of the report's principles and methods to the facts of this case. It is difficult to see how Plaintiff could even make that argument, given that Marzola's conclusions are merely that one cannot determine the manufacturer of the incident cells or the cause of thermal runaway without physical inspection of the incident cells.
Insofar as Plaintiff makes a Daubert argument, Plaintiff cites to State Farm Fire & Casualty Co. v. Holland, No CA2007-08-025, 2008 WL 4058094 (Ohio Ct. App. Sept. 2, 2008), another case in which Marzola was an expert. In that case, the court excluded...
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