United States District Court, D. Oregon
Jodie Anne Phillips Polich, LAW OFFICES OF JODIE ANNE PHILLIPS POLICH, Richard J. Sullivan, SULLIVAN & SULLIVAN, LLP, Of Attorneys for Plaintiff.
Walter H. Sweek, COSGRAVE VERGEER KESTER LLP, Jeffrey R. Williams and P. Mark Mahoney, SCHIFF HARDIN LLP, Of Attorneys for Defendants.
OPINION AND ORDER ON PRETRIAL MOTIONS AND OBJECTIONS
MICHAEL H. SIMON, District Judge.
Plaintiff, Kristofer Edwards, asserts two claims against Defendants. Plaintiff's first claim is for strict products liability; his second claim is for negligence. Plaintiff asserts these claims against three related defendants: Techtronic Industries North America, Inc.; One World Technologies, Inc.; and Ryobi Technologies, Inc. Defendants designed, manufactured, and sold a 2011 model year Ryobi brand portable bench-top table saw, also known as an RTS20 (the "Ryobi Saw").
Plaintiff alleges that the Ryobi Saw was defectively designed by Defendants because it did not incorporate flesh-detection type technology. Flesh-detection technology for use in table saws was invented by Dr. Stephen F. Gass, who is the founder and President of SawStop, LLC ("SawStop"). According to Plaintiff, Defendants' alleged design defect in their Ryobi Saw caused Plaintiff to sustain injuries on August 15, 2011, when his left hand contacted the rotating saw blade. Defendants contend that the saw was safely designed and that it was Plaintiff's failure to follow the operating instructions for the Ryobi Saw, and not any defect in the design of the saw, that was the cause of Plaintiff's injuries.
The parties have filed numerous pretrial motions and objections. The Court held a pretrial conference on May 26, 2015. A nine-day jury trial is scheduled to begin on June 29, 2015.
I. Time Limitations on Witness Testimony (Live and Video)
The parties requested a nine-day jury trial. If jury selection and opening statements take a full day and final instructions, closing arguments and jury deliberations take a full day (and the Court reserves a second day for continued deliberations), this leaves approximately six full days for trial testimony in order to complete the trial in nine days. During a typical civil jury trial, the Court generally receives approximately 5.5 hours of trial testimony per day. Six days multiplied by 5.5 hours per day results in 33 hours. Thus, each side is allotted half of that total, or 16.5 hours, for all direct, cross, re-direct, and re-cross examinations (measured "chess clock style"), which results in approximately three days of trial testimony per side. After discussing this issue with counsel during the pretrial conference held on May 26, 2015, the Court considers this amount of time to be reasonable. See Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) ("Trial courts have broad authority to impose reasonable time limits. Such limits are useful to prevent undue delay, waste of time, or needless presentation of cumulative evidence. While trial courts have discretion to expedite the completion of trials, they must not adhere so rigidly to time limits as to sacrifice justice in the name of efficiency.") (internal quotation marks and citations omitted).
II. Plaintiff's Itemized Statement of Special Damages
The Court has reviewed Plaintiff's Itemized List of Special Damages, seeking $97, 438.20 in past medical expenses and $6, 720 in past lost wages. Dkt. 52. Plaintiff calculates his claim for lost wages based on $14 per hour multiplied by 40 hours per week multiplied by 12 weeks. Id. Defendants object to Plaintiff's claim for lost wages, arguing that during both a recorded interview and a deposition, Plaintiff explained that he was not consistently working 40 hours per week during the months preceding his accident. Dkt. 63. Defendants did not move for partial summary judgment. The Court OVERRULES Defendants' objection. At trial, Plaintiff may present his evidence of lost wages, to be tested at trial.
III. Motions in Limine
A. Defendants' Motions in Limine
Defendants move in limine for an Order precluding: (1) testimony of Plaintiff's "non-retained" expert Dr. Stephen F. Gass; (2) testimony of Plaintiff's retained expert Darry Robert Holt; (3) evidence relating to or derived from data and reports of the National Electronic Injury Surveillance System; (4) evidence of reports of "finger saves"; (5) evidence that Underwriters Laboratories ("UL") may be considering a proposed revision of UL 987 (Seventh Edition) that would mandate the use of flesh-detection technology on all table saws; and (6) evidence of "subsequent" design changes made or anticipated to be made by third parties or Defendants. Dkt. 60. Plaintiff opposes Defendants' motions in limine, except as noted below. Dkt. 79.
1. Dr. Stephen F. Gass
In Plaintiff's Expert Witness List (Dkt. 50), Plaintiff listed Dr. Stephen F. Gass as the second of Plaintiff's two expert witnesses on liability issues. Dr. Gass is the founder and President of SawStop and invented flesh-detection technology for table saws. Defendants move in limine to exclude the testimony of Dr. Gass primarily on the grounds that he is a "non-retained" expert, under Fed.R.Civ.P. 26(a)(2)(C), who has refused to serve as an expert witness for Plaintiff in this case and who has not yet produced all of the documents Defendants have requested "pertaining to the development of a benchtop table saw that incorporates SawStop technology, " notwithstanding the issuance of a subpoena by Defendants on Dr. Gass and his companies.
Dr. Gass's counsel previously informed the parties and the Court that Dr. Gass will not be an expert witness for the Plaintiff and if subpoenaed will challenge any such subpoena. Plaintiff served a subpoena on Dr. Gass, and Dr. Gass moved to quash Plaintiff's subpoena. Dkt. 92. On June 8, 2015, the Court granted Dr. Gass's motion to quash. Dkt. 96. Defendants' first motion in limine, therefore, is DENIED AS MOOT.
2. Darry Robert Holt
Plaintiff listed Darry Robert Holt on Plaintiff's Expert Witness List as a retained expert, under Fed. R. Civ. 26(a)(2)(B), on liability issues. Dkt. 50. Mr. Holt received his B.S. degree in mechanical science and also a law degree. Defendants move in limine to exclude the testimony of Mr. Holt primarily on the grounds that Mr. Holt's "proposed testimony is speculative, irrelevant, and unreliable." Dkt. 60. Defendants argue that Mr. Holt is not a design engineer and has insufficient technical qualifications. Defendants also challenge Mr. Holt's proposed testimony that incorporating flesh-detection technology is economically feasible on the grounds that Mr. Holt has insufficient economic expertise. Plaintiff responds that Mr. Holt is a mechanical engineer who has more than 35 years of experience investigating accidents and evaluating the safety of thousands of different products, including table saws. Dkt. 79. Plaintiff adds that Mr. Holt has spent more than 4, 000 hours during the past ten years investigating and testing flesh-detection technology and its use in table saws and that he has testified on these issues in five previous federal court trials.
In support of Plaintiff's response to Defendants' motions in limine, Plaintiff filed a declaration from Mr. Holt dated May 12, 2015. Dkt. 81. Defendants object to that declaration "as an untimely and improper attempt to introduce new expert opinions on the eve of trial." Dkt. 84. Defendants assert that Mr. Holt's declaration adds "new opinions that were neither included in his expert report nor disclosed during defendants' August 14, 2014 deposition of Mr. Holt." Id. Defendants add that they "are now unable to depose and cross-examine Mr. Holt regarding these new opinions before trial." Id. Trial, however, is not set to begin until June 29, 2015. The Court will receive Mr. Holt's new declaration, and, as stated by the Court as the pretrial conference held on May 26, 2015, Defendants have leave to take an additional deposition of Mr. Holt limited to the new issues raised in his declaration.
Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is admissible if: (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014); Fed.R.Evid. 702.
"Under Daubert  and its progeny, including Daubert II,  a district court's inquiry into admissibility is a flexible one." City of Pomona, 750 F.3d at 1043 (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In evaluating proffered expert testimony, the trial court is "a gatekeeper, not a fact finder." Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (citation and quotation marks omitted). "[T]he trial court must assure that the expert testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at 564 (internal quotation marks omitted). "Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline." Id. at 565 (citation and quotation marks omitted). "Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion." Id. at 564 (citation omitted). The judge must "screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable." City of Pomona, 750 F.3d at 1043 (citing Alaska Rent-A-Car, 738 F.3d at 969). In short, "[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury." Id. at 969-70.
Furthermore, the test of reliability is a flexible one. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (en banc). The court must assess an expert's reasoning or methodology, using as appropriate criteria such as testability, publication in peer-reviewed literature, known or potential error rate, and general acceptance. Id. But these factors are "meant to be helpful, not definitive, and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on the particular circumstances of the particular case." Primiano, 598 F.3d at 564 (citations and quotation marks omitted). The test "is not the correctness of the expert's conclusions but the soundness of his methodology, " and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony. Primiano, 598 F.3d at 564-65. Challenges that go to the weight of the evidence are within the province of a fact finder, not a trial court judge. City of Pomona, 750 F.3d at 1044. "A district court should not make credibility determinations that are reserved for the jury." Id.
The Court is satisfied that Mr. Holt is qualified to opine that flesh-detection technology, like the SawStop technology, is effective at preventing injuries and that, had it been incorporated into the "Ryobi Saw" at issue in this case, Plaintiff's injuries would have been reduced. Feasibility, however, has two aspects: technological and economic. Specifically, Mr. Holt is qualified to opine that incorporating flesh-detection technology into the Ryobi Saw at issue was technologically feasible. To this extent, Defendant's motion in limine regarding Mr. Holt is DENIED IN PART.
Mr. Holt, however, may not be qualified to offer an opinion regarding the economic feasibility of incorporating flesh-detection technology. He does not appear to have specific experience or training in economics, accounting, business, or finance and does not appear to have performed an economic or accounting analysis. Accordingly, his testimony regarding economic feasibility is tentatively excluded, although Mr. Holt may discuss relevant contextual facts, to the extent that such testimony is based on otherwise admissible evidence and is helpful to the jury. The Court will DEFER any more specific rulings on this issue until Mr. Holt's testimony at trial. To this extent, Defendant's motion in limine regarding Mr. Holt is GRANTED IN PART. If Plaintiff desires to present the Court with further qualifications of Mr. Holt concerning his ability to testify as an expert regarding economic feasibility, Plaintiff has leave to do so.
Defendants move in limine to exclude evidence of reports and data compiled from the National Electronic Injury Surveillance System ("NEISS") for use by the Consumer Product Safety Commission ("CPSC"). Defendants argue that these reports include multiple levels of hearsay, are not relevant, and that any probative value is substantially outweighed by their prejudicial effect. Defendants ...