United States District Court, D. Nebraska
JULIE KEASCHALL, Personal Representative of the Estate of Kurtis Keaschall, deceased, and DAWSON PUBLIC POWER DISTRICT, Plaintiffs,
ALTEC INDUSTRIES, INC., and OSBORNE INDUSTRIES, INC., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
a products liability action, which currently is scheduled to
be tried to a jury commencing on August 28, 2017. Motions in
limine to exclude expert testimony and motions for summary
judgment have been filed by both sides (Filing Nos. 101, 105,
107, 110, 114). For the reasons discussed below, all motions
will be denied.
decedent, Kurtis Keaschall, suffered fatal injuries while
working as lineman for Dawson Public Power District on June
6, 2012. At the time of the accident, Keaschall was
in the process of unbolting a transformer from near the top
of a utility pole. He was operating an articulated boom
mounted on a truck from an insulated bucket that was attached
to the end of the boom. The bucket, which was made of
fiberglass, broke off from the boom and fell to the ground,
along with Keaschall. The bucket was manufactured by Osborne
Industries, Inc., and supplied to Altec Industries, Inc.,
which assembled and sold the boom truck to Dawson. Osborne
and Altec are both named as Defendants.
general, it is Plaintiff's contention that the bucket was
defectively designed and manufactured and suffered
catastrophic failure after seven years in service simply
because it could no longer support Keaschall's body
weight. Defendants, on the other hand, contend the bucket
failed because of an external force, such as being pushed
against the utility pole; they dispute that the bucket would
have landed where it did had there not been an external force
applied. Defendants also claim Keaschall would have avoided
serious injury if, as instructed, he had attached a safety
lanyard to a D-ring that was located on a portion of the
bucket that remain attached to the boom.
“move this Court for an Order in limine excluding from
trial the opinion testimony and report of Plaintiff's
designated expert[s], John Eihusen, P.E., ” (Filing No.
101) and “William Coleman, P.E., M.S.” (Filing
No. 107). As to each expert, “Defendants state that
[his] testimony is inadmissible under Federal Rule of
Evidence 702 and the principles outlined in Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) and
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119
S.Ct. 1167, 1179 (1999) because it goes beyond the scope of
his qualifications and does not meet the test of reliability
and relevance” (Filing Nos. 101, 107). Defendants also
cite Federal Rule of Evidence 403 (Id.).
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. “The standards in Rule 702 are
flexible.” Kozlov v. Associated Wholesale Grocers,
Inc., 818 F.3d 380, 394 (8th Cir. 2016). “Rule 702
stresses ‘scientific validity-and thus the evidentiary
relevance and reliability-of the principles that underlie a
proposed submission.'” Id. (quoting
Daubert, 509 U.S. at 594-95).
“‘[P]rinciples and methodology, not . . . the
conclusions that they generate' should be the focus of
the analysis.” Id. (quoting Daubert,
509 U.S. at 595). “The main purpose of
Daubertexclusion is to prevent juries from being swayed by
dubious scientific testimony.” Russell v. Whirlpool
Corp., 702 F.3d 450, 456 (8th Cir. 2012) (quoting In
re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604,
613 (8th Cir. 2011)).
Circuit “cases are legion that, correctly, under
Daubert, call for the liberal admission of expert testimony.
See, e.g., United States v. Finch, 630 F.3d 1057,
1062 (8th Cir.2011) (holding that we resolve doubts about the
usefulness of expert testimony in favor of admissibility);
Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100
(8th Cir.2006) (holding that expert testimony should be
admitted if it ‘advances the trier of fact's
understanding to any degree' (quotation omitted));
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th
Cir.2001) (Rule 702 ‘clearly is one of admissibility
rather than exclusion' (internal quotation omitted));
Wood v. Minn. Mining & Mfg. Co., 112 F.3d 306,
309 (8th Cir.1997) (holding that exclusion of expert's
opinion is proper ‘only if it is so fundamentally
unsupported that it can offer no assistance to the jury.'
(internal quotation omitted)).” Johnson v. Mead
Johnson & Co., LLC, 754 F.3d 557, 562 (8th Cir.
2014). “Further, district courts are admonished not to
weigh or assess the correctness of competing expert
opinions.” Id. (citing Kuhn v. Wyeth, 686 F.3d
618, 624 (8th Cir. 2012)). “As long as the expert's
scientific testimony rests upon ‘good grounds, based on
what is known' it should be tested by the adversary
process with competing expert testimony and
cross-examination, rather than excluded by the court at the
outset. Id. (quoting Daubert, 509 U.S. at
590, 596).The court's “gatekeeper” role
should not invade the province of the jury, whose job it is
to decide issues of credibility and to determine the weight
that should be accorded evidence. See United States v.
Vesey, 338 F.3d 913, 917 (8th Cir. 2003).
assessing whether expert testimony is based on scientific
knowledge, trial courts may consider various factors
including: (1) whether the expert's technique can be
tested, (2) whether the technique has been subjected to peer
review and publication, (3) whether there is a known or
potential rate of error, and (4) whether the technique is
generally accepted within the relevant scientific community.
These same factors may also be relevant in assessing the
admissibility of an expert's testimony on the basis of
technical, or other specialized knowledge. ” United
States v. Merrell, 842 F.3d 577, 582 (8th Cir. 2016)
(internal quotation marks and citation omitted).
“Daubert's progeny provides additional factors such
as: whether the expertise was developed for litigation or
naturally flowed from the expert's research; whether the
proposed expert ruled out other alternative explanations; and
whether the proposed expert sufficiently connected the
proposed testimony with the facts of the case.”
Lauzon v. Senco Prod., Inc., 270 F.3d 681, 687 (8th
evidentiary inquiry is meant to be flexible and fact
specific, and a court should use, adapt, or reject
Daubertfactors as the particular case demands.”
Russell, 702 F.3d at 456-57 (quoting Unrein v.
Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005)).
“There is no single requirement for admissibility as
long as the proffer indicates that the expert evidence is
reliable and relevant.” Id. (quoting
Unrein, 394 F.3d at 1011).
Eihusen has been a registered Professional Engineer in
Nebraska since approximately 1982. He received his Bachelor
of Science in Mechanical Engineering in 1981 and his Masters
of Science in Mechanical Engineering in 1998. Both degrees
were obtained from the University of Nebraska, Lincoln.
Eihusen began working for Brunswick Defense in 1983, where he
specialized in product design and stress analysis of advanced
composite structures. At Brunswick Eihusen served as the lead
design engineer on fuel tanks for the F-18 Super Hornet
fighter aircraft. He also worked on failure and stress
analysis of composite components for the NASA space shuttle
fleet. After working as a design and development engineer for
three companies between 1988 and 1994, Eihusen began working
for Lincoln Composites, which later became General Dynamics
and is now Hexagon Composites. Eihusen has worked
twenty-three years for Hexagon as a designer and analyst on
advanced composite structures. Eihusen has examined thousands
of failed composite parts in the regular scope of his job.
Eihusen estimates that he has personally reviewed and
visually inspected hundreds of composite failure tests in his
career. He is an accredited ANSI composite expert and has
published multiple scholarly articles on composite materials.
The material involved in the bucket at issue in this case is
a composite laminate.
report prepared on September 26, 2015, Eihusen expressed the
following opinions regarding the bucket:
1) A delamination flaw (or structural defect) was created at
the time of manufacture at the “A” Location (see
2) The defect was near or adjacent to the top of the
pre-formed insert used to form the right side vertical rib of
3) Secondary machining operations transforming the raw molded
part described in ALTEC drawing 704-00065 to the external
profile on drawing 704-00350 caused external edge defects or
in-plane delamination at the 18 inch rib to rib cut opening.
The defects could have been facilitated by physical damage of
the cutting tool or by exposing existing internal defects to
4) The internal delaminations and external machining damage
was facilitated by dry fiber from incomplete resin flow and
wet out of the reinforcement mat at the time of molding.
5) The incomplete resin flow resulted from improper
reinforcement layup and mold closure as identified by Osborne
on the units Aerial Platform Inspection Report.
6) The external flaws caused by the machining operation grew
in service extending the delamination surface between plies
and reducing the structural capacity of the laminate as it
was used in-service until it reached the failure load
7) At time of the failure the compromised composite resolving
Mr. Keaschall's body weight into vertical rib failed in
shear at or near the vertical rib insert which triggered ...