United States District Court, N.D. Alabama, Southern Division
MICHAEL J. VIGNEULLE, as Personal Representative for the Estate of Andrew Michael Vigneulle, Plaintiff,
TAHSIN INDUSTRIAL CORPORATION USA, Defendant.
DAVID PROCTO, UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion for
Summary Judgment (Doc. # 35), Defendant's Motion in
Limine to Exclude, or in the Alternative, Limit the
Testimony of Plaintiff's Expert, John Nigel Ellis (Doc. #
37), Defendant's Motion in Limine to Exclude, or
in the Alternative, Limit the Testimony of Plaintiff's
Expert, Norman Wood, Jr., M.D. (Doc. # 39), Defendant's
Motion to Strike the Affidavit of Expert J. Nigel Ellis (Doc.
# 47), and Defendant's Motion to Strike the Affidavit of
Expert Dr. Norman E. Wood, Jr. (Doc. # 49). The motions are
fully briefed and under submission. (See Docs. # 36,
38, 40, 43-46, 48, 50-56).
products liability case arises from a hunting accident in
which Andrew (“Drew”) Michael Vigneulle died.
While hunting in a tree stand, Drew Vigneulle wore a Tahsin
Model #2013C-W harness (“2013C-W Harness”), which
was manufactured by Defendant. Drew fell from the tree stand
and died before rescuers could remove him from the tree. A
medical examiner determined that Drew died from positional
asphyxia. Beyond those basic facts, much about what
tragically occurred remains unclear.
Motions to Exclude Plaintiff's Experts
asks the court to exclude the testimony of both of
Plaintiff's experts. John Nigel Ellis is a registered
professional safety engineer and currently the president of
Dynamic Scientific Controls, a consulting firm that
specializes in fall hazard issues. (See Doc. # 44-1
at 3). Ellis opines that Defendant's safety harness was
defectively designed because it lacked an attached
dual-footed suspension relief device, a release mechanism for
loosening the chest strap, and a self-lowering device
attached to the harness. (See Doc. # 44-2 at 7). Dr.
Norman Wood, Jr., is a physician, certified tree stand safety
instructor, and safety harness designer. (See Doc. #
43-1 at 1). Wood opines that the safety harness was
defectively designed because it lacked an attached
dual-footed suspension relief device or a device allowing the
wearer to lower himself (or herself) to the ground. (See
Id. at 14-15). Wood also opines that the 2013C-W Harness
worn by Drew constricted his chest, which decreased blood
circulation to his heart, lungs, and brain and caused his
death from positional asphyxia. (See Id. at 7-8).
The court addresses Defendant's arguments for excluding
the expert opinions, in turn.
this is a diversity action governed by Alabama substantive
law, the court applies federal law to decide whether an
expert's testimony is admissible. Hendrix ex rel.
G.P. v. Evenflo Co., 609 F.3d 1183, 1193 (11th Cir.
2010). The admissibility of expert testimony is governed by
Federal Rule of Evidence 702, along with the Supreme
Court's Daubert decision and its progeny. Rule
702 provides for the admission of expert testimony when
“scientific, technical, or other specialized knowledge
will help the trier of fact.” In Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
the Supreme Court held that scientific expert testimony is
admissible only if the proffered testimony is both relevant
and reliable. Id. at 597. “[A] district court
judge is to act as a ‘gatekeeper' for expert
testimony, only admitting such testimony after receiving
satisfactory evidence of its reliability.” Dhillon
v. Crown Controls Corp., 269 F.3d 865, 869 (7th
Cir. 2001). See also United States v. Majors, 196
F.3d 1206, 1215 (11th Cir. 1999). Rule 702 provides that:
witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Accordingly, under Rule 702, “this
[c]ourt has an obligation to screen expert testimony to
ensure it stems from a reliable methodology, sufficient
factual basis, and reliable application of the methodology to
the facts.” Whatley v. Merit Distribution
Servs., 166 F.Supp.2d 1350, 1353 (S.D. Ala. 2001).
the inquiry is “a flexible one, ” the focus
“must be solely on principles and methodology, not on
the conclusions that they generate.” Daubert,
509 U.S. at 594-95. See also McDowell v.
Brown, 392 F.3d 1283, 1298 (11th Cir. 2004) (recognizing
a trial judge “should meticulously focus on the
expert's principles and methodology, and not on the
conclusions that they generate”). “But
conclusions and methodology are not entirely distinct from
one a nother”; neither Daubert, nor Federal
Rule of Evidence 702, requires a trial judge “to admit
opinion evidence that is connected to existing data only by
the ipse dixit of the expert.” Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 146 (1997).
Eleventh Circuit applies a three-part approach to
Expert testimony may be admitted into evidence if: (1) the
expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which
the expert reaches his conclusions is sufficiently reliable
as determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to
determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d
548, 562 (11th Cir. 1998) (footnote omitted). The
expert's proponent must prove each of these elements by a
preponderance of the evidence. Rink v. Cheminova,
Inc., 400 F.3d 1286, 1292 (11th Cir. 2005). And, while
“the proponent of the testimony does not have the
burden of proving that it is scientifically correct, ”
he must establish “by a preponderance of the evidence
[that] it is reliable.” Allison v. McGhan
Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999)
(citing In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 744 (3d Cir. 1994)). The court's analysis of a
proffered expert's qualifications is “not
stringent”; that is, so long as a proffered witness is
“minimally qualified, ” a defendant's
challenge to specific deficiencies in his or her experience
goes “to credibility and weight, not
admissibility.” Hendrix v. Evenflo Co., 255
F.R.D. 568, 585 (N.D. Fla. 2009) (quoting Kannankeril v.
Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir.
1997)), aff'd, 609 F.3d 1183 (11th Cir. 2010).
in determining reliability under Rule 702, courts look to
non-exclusive factors set forth in Daubert:
(1) whether the expert's methodology has been tested or
is capable of being tested;
(2) whether the theory or technique used by the expert has
been subjected to peer review and publication;
(3) whether there is a known or potential error rate of the
(4) whether the technique has been generally accepted in
the relevant scientific community.
United Fire & Cas. Co. v. Whirlpool Corp., 704
F.3d 1338, 1341 (11th Cir. 2013) (citing Daubert,
509 U.S. at 593-94). See also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 151 (1999)
(“[Daubert's] list of factors was meant to
be helpful, not definitive.”). Under Daubert,
“no single factor is necessarily dispositive of the
reliability of a particular expert's testimony.”
Fed.R.Evid. 702 advisory committee's note to 2000
amendments (citations omitted). The notes to Rule 702 make
clear that “[n]othing in [Rule 702] is intended to
suggest that experience alone -- or experience in conjunction
with other knowledge, skill, training or education -- may not
provide a sufficient foundation for expert testimony.”
Id. The Rule “expressly contemplates that an
expert may be qualified on the basis of experience. In
certain fields, experience is the predominant, if not sole,
basis for a great deal of reliable expert testimony.”
Id. But, “[a]s gatekeeper for the expert
evidence presented to the jury, the judge ‘must do a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue.'” Chapman v.
Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306
(11th Cir. 2014) (quoting Kilpatrick v. Breg, Inc.,
613 F.3d 1329, 1335 (11th Cir. 2010)).
notes to Rule 702 provide an additional list of factors that
the court may use to determine the reliability of expert
testimony. These factors are:
(1) Whether the expert is proposing to testify about matters
growing naturally and directly out of research he has
conducted independent of the litigation, or whether he has
developed his opinion expressly for purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an
accepted premise to an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious
(4) Whether the expert is being as careful as he would be in
his regular professional work outside his paid litigation
(5) Whether the field of expertise claimed by the expert is
known to reach reliable results for the type of opinion the
expert would give.
Bryant v. BGHA, Inc., 9 F.Supp.3d 1374, 1386 (M.D.
Ga. 2014) (paraphrasing Fed.R.Evid. 702 advisory
committee's note to 2000 amendments).
Eleventh Circuit has recognized that the relevance of
evidence is judged by a liberal standard. Boca Raton
Cmty. Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d
1227, 1232 (11th Cir. 2009) (quoting Daubert, 509
U.S. at 587). Nevertheless, expert testimony should be
excluded as irrelevant if it has no “valid scientific
connection to the pertinent inquiry.” Id.
(quoting Daubert, 509 U.S. at 591-92). In a
situation where one expert's testimony is relevant based
on underlying testimony from another expert, and the other
expert's testimony is excluded, the court may also
exclude the testimony from the otherwise qualified expert as
irrelevant. For example, in Rink, the Eleventh
Circuit affirmed the exclusion of expert testimony from
toxicologists and treating physicians as irrelevant because
the district court had excluded “foundational”
expert testimony from a chemical engineer that was necessary
to show that the product used was defective. 400 F.3d at
a Daubert hearing is necessary is a decision
committed to the trial court's sound discretion. Cook
v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1113
(11th Cir. 2005). “Daubert hearings are not
required, but may be helpful in complicated cases involving
multiple expert witnesses.” Id. (internal
Admissibility of Ellis's Expert Opinions
challenges the proffered expert testimony of John Nigel
Ellis. After careful review, and for the reasons addressed
below, the court sustains that challenge with regard to all
three design opinions presented in Ellis's
Ellis is Qualified to Provide Expert Testimony About the
Design of Safety Harnesses
motion in limine, Defendant argues that Ellis is
unqualified to provide expert testimony about safety
harnesses used in tree stands because he is not a mechanical
engineer or an accident reconstructionist. (See Doc.
# 38 at 12-14). The court disagrees and finds Ellis to be a
has demonstrated that Ellis is qualified to offer expert
testimony about fall prevention and safety harnesses. Ellis
is a certified safety professional, a registered professional
safety engineer, and a fellow and member of the American
Society of Safety Engineers. (Doc. # 44-1 at 3). He has been
the president a consulting firm that specializes in fall
hazards for more than thirty years. (Id. at 6).
Ellis served for a total of twenty-six years as the president
and chief executive officer of a safety equipment
manufacturer who produced fall protection products, including
harnesses. (Id.; Doc. # 44-2 at 2). Finally, Ellis
has been involved in committees of the American National
Standards Institute that assess and develop industrial
standards on fall arrest systems, along with a committee of
the American Society for Testing and Materials that
establishes standards for hunting tree stands. (Doc. # 44-1
at 3-5). Defendant objects to Ellis's qualifications
because he is not a mechanical engineer or accident
reconstructionist, but the court finds that Ellis has
substantial knowledge, experience, and training that allows
him to competently testify about whether Defendant's
safety harness was defectively designed. See
Bryant, 9 F.Supp.3d at 1388-89 (finding a mechanical
engineer who had worked in safety engineering and human
factors to be qualified to opine on the design of a tree
stand ladder, even though the defendant argued that the
engineer lacked experience with ladder stands).
Ellis's Opinions About the Chest Straps of the 2013C-W
Harness are Sufficiently Reliable, Based on
the Rule 56 Record, but His Opinions about Other Features of
the 2013C-W Harness are Not Sufficiently Reliable
argues that Ellis's design opinions should be excluded
because he conducted a demonstration test without using all
of the components of Defendant's safety harness. (Doc. #
38 at 17). Defendant also insists that Ellis's
demonstration is speculative because he did not use the
suspension relief device included with the harness.
(Id.). Moreover, Defendant claims that Ellis's
identified defects are speculative because he has never
consulted for a tree stand harness manufacturer, he has
admitted that the harness met industry standards, he has not
examined the harness used by Drew or the test site, and he
has not addressed alterations made by Drew to the packaged
harness. (Id. at 6-8). The court finds that
Ellis's expert opinions are reliable in some aspects, but
affidavit, Ellis avers that he reached his conclusions after
considering the following information and data: (1) his
personal experience in the harness industry, (2) his
inspection of an exemplar harness, (3) his personal testing
of the exemplar harness, (4) his review of testimony and
photographs concerning Drew's positioning at the scene,
and (5) his testing of the release force of the neck
gaiter. (Doc. # 44-2 at 4). Ellis tested the
exemplar harness to determine whether the chest straps could
constrict a wearer's neck. (Doc. # 36-7 at 28). Ellis
affixed the rope attached to the harness to the support of a
basketball hoop. (Id. at 29). To suspend himself, he
stepped off of a ladder. (Id. at 40). He tightened
the shoulder straps so that they fit his body. (Id.
at 38). But, he loosened the leg straps of the harness so
that they were not snug against his body. (Id. at
58). Ellis has explained that he wore loose leg straps
because he believed that Drew's leg straps either slipped
or were attached loosely during the incident, and it
“was conceivable by the manufacturer that that's
how they might be worn.” (Id. at 35, 58).
careful review, the court is satisfied that Ellis's
testing methodology is sufficiently reliable for admitting
his expert testimony regarding the chest straps. As an
initial matter, Defendant wholly fails to specify which
Daubert factors weigh against admission of
Ellis's testimony. (See Doc. # 38 at 14-17)
(providing a comprehensive, defense-oriented review of
Daubert and its progeny without applying the four
factors therein to Ellis's testing). And, the Rule 56
record indicates that Ellis's experiential methodology is
generally accepted within the relevant engineering community,
as it is essentially similar to the methodology employed by
Defendant's expert, George Saunders, Jr. (See
Doc. # 36-13 at 13-17) (discussing exemplar harness testing
conducted by Saunders). See also Reid v. BMW of N.
Am., 430 F.Supp.2d 1365, 1370 (N.D.Ga. 2006) (“In
a products liability case, a technical field like engineering
often relies on more idiosyncratic methods of design and
testing. Therefore, it is more common that engineering
experts state that their opinions are not based upon any
scientific method but on general experience and knowledge
after a review of the evidence.”) (citations omitted).
Although it appears that Ellis's experiential methodology
is not peer reviewed and has no known error rate, see
United Fire & Cas. Co., 704 F.3d at 1341, these
factors are not applicable to all forms of expert testing.
See Kumho Tire, 526 U.S. at 150.
opinion that the chest strap of the 2013C-W Harness can
strangle a hunter in certain circumstances is not an
unjustifiable extrapolation from an accepted premise in the
case. His opinions are based on his extensive engineering
background and experience, together with his personal
observations of the operation of the 2013C-W Harness and the
photographs showing Drew's body position while suspended
from the tree. In other words, Ellis used a reliable method
to work “backward” from what was known --
i.e., that Mark Bray observed the harness's
chest strap against Drew's neck -- to whether it could
have occurred. Cf. Rockhill-Anderson v. Deere &
Co., 994 F.Supp.2d 1224, 1240 (M.D. Ala. 2014)
(admitting reconstruction evidence based on facts and data
considered by an accident reconstructionist). Moreover, Ellis
clearly understands and accounts for Defendant's
alternative explanation for the neck abrasions observed by
Dunton. (See Doc. # 44-2 at 4) (explaining that
Defendant's theory that the neck gaiter strangled Drew is
unsupported because he could have released the gaiter with
less than 50 pounds of force). (See also Doc. # 36-7
at 100) (stating that the harness could not have transferred
force through the gaiter to Drew's neck). Ellis has
acknowledged Defendant's argument that Plaintiff misused
the harness by not tightening the leg straps, but has averred
that such a violation of the instructions was
“conceivable” to a manufacturer. (Doc. # 36-7 at
58). Additionally, it appears that Ellis was as careful in
his testing of the 2013C-W Harness as he would be in his
regular professional work. For these reasons, the court
concludes that Ellis's opinions regarding the chest
straps are sufficiently reliable to be evaluated by the trier
the court concludes that Ellis offers no reliable testing or
methodology to support his opinions that the unattached
suspension relief device and lack of a self-lowering device
are design defects in the 2013C-W Harness. Ellis has not
discussed any testing of the suspension relief device in his
expert affidavit. (See generally Doc. # 44-2).
Moreover, the following testimony from Ellis's deposition
demonstrates his limited personal knowledge about suspension
relief devices and that he defers to Wood's opinions on
the suspension relief device provided:
Q. Would you agree with me that if a user does have a
suspension relief device, even with the one loop, when a user
places their full weight on that loop and stands up, that the
pressure is relieved from not only the leg that's
standing in the loop, but also the other leg?
A. No. We will find out from the expert in this case, Mr.
Wood, but I think both legs have got to be accommodated.
Q. Sir, have you ever stood in a one-looped suspension relief
device while hanging from a tree stand to see if it relieves
pressure from both legs?
A. All I know is having left the manufacturing business in
1996, they have been adopted in both industries, construction
and also hunting.
Q. But would it surprise you, Dr. Ellis, if you put a
suspension relief device around a tree, you're hanging
from a harness, you put one foot in that loop and you stand
up with that one foot, that pressure is relieved from both
legs and blood begins flowing into both legs?
A. I'm not a medical expert in this area. Mr. Wood,
I'm sure, will opine in this area.
So I would think that the majority of devices on the market
are a single loop, which you get both feet into and then you
can rock back and forth to get the blood moving again.
That's probably the best design, if one accepts this
device as a viable tool in rescue or self-rescue. . . .
Q. So to answer my question, have you ever in your life stood
in a suspension relief device with one foot stood up while
hanging from a harness and see[n] if it ...