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Vigneulle v. Tahsin Industrial Corporation USA

United States District Court, N.D. Alabama, Southern Division

March 27, 2018

MICHAEL J. VIGNEULLE, as Personal Representative for the Estate of Andrew Michael Vigneulle, Plaintiff,



         This 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).

         This products liability case arises from a hunting accident in which Andrew (“Drew”) Michael Vigneulle died. While hunting in a tree stand, Drew Vigneulle[1] 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.

         I. Motions to Exclude Plaintiff's Experts

         Defendant 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.

         A. Background Law

         Although 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:

         A 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 methods; 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).

         Although 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[2] of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         The Eleventh Circuit applies a three-part approach to Daubert motions:

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).

         To aid 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 methodology; and

(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)).

         The 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 alternative explanations;
(4) Whether the expert is being as careful as he would be in his regular professional work outside his paid litigation consulting; [and]
(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).

         The 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 1294.

         Whether 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 quotations omitted).

         B. Admissibility of Ellis's Expert Opinions

         Defendant 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 testimony.[3]

         1. Ellis is Qualified to Provide Expert Testimony About the Design of Safety Harnesses

         In its 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 qualified expert.

         Plaintiff 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.[4] 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).

         2. 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

         Defendant 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 not others.

         In his 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.[5] (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).

         After 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.

         Ellis's 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 of fact.

         However, 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 ...

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