Keaschall v. Altec Industries, Inc.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This is 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.

         I. Background

         Plaintiff's decedent, Kurtis Keaschall, suffered fatal injuries while working as lineman for Dawson Public Power District on June 6, 2012.^[1] 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.

         In 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.

         II. Defendants' Motions

         Defendants “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.).

         A. Rule 702

         “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. “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).^[2] “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)).

         Eight 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).

         “When 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 Cir. 2001).

         “This 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).

         1. John Eihusen

         John 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.

         In a 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 Figure 6).

2) The defect was near or adjacent to the top of the pre-formed insert used to form the right side vertical rib of section 2.

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 the environment.

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 condition.

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 ...