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Eisenbise v. Crown Equipment Corporation

United States District Court, S.D. California

May 15, 2017



          Hon. Anthony J. Battaglia United States District Judge

         Presently before the Court are Defendant Crown Equipment Corporation's (“Crown”) three motions to exclude Plaintiffs Nathan Eisenbise's (“Nathan”) and Jeniffer Eisenbise's (collectively, “Plaintiffs”) experts, (Doc. Nos. 59, 61, 62), as well as Crown's motion for summary judgment, (Doc. Nos. 63, 65). Plaintiffs oppose all four motions. (Doc. Nos. 69-71, 81.) A hearing on the motions to exclude was held on May 11, 2017. As set forth below, the Court DENIES Crown's motions to exclude Smith and Vanderpol and GRANTS Crown's motion to exclude Dr. Freeman.

         At the hearing, the parties discussion also addressed issues key to Crown's summary judgment motion. Having considered those arguments, as well as those contained in the parties' moving papers, and pursuant to Local Civil Rule 7.1.d.1, the Court finds the matter suitable for decision without further oral argument. Accordingly, the Court hereby VACATES the hearing currently set for June 15, 2017, at 2:00 p.m. in Courtroom 4A. The Court DENIES Crown's motion for summary judgment.


         The facts giving rise to this lawsuit are simple and largely undisputed. Crown designs and manufactures lift trucks or forklifts. (Doc. No. 65-3 at 4; Doc. No. 81-6 at 3.)[1]The forklift at issue in this case is a Crown RC5535-30 (“RC5500”). (Doc. No. 63-1 at 5; Doc. No. 81 at 7.) The RC5500 is a side-standing operator, counterbalanced forklift designed for use “in congested areas full of products, equipment and pedestrians around any corner.” (Doc. No. 65-3 at 5; Doc. No. 81-2 at 2; Doc. No. 81-6 at 4-5.)

         The RC5500 has four wheels that are arranged like the wheels on a tricycle. Two “drive” wheels are located on opposite sides at one end of the forklift next to the forks. (Doc. No. 81-3 at 2.) Two tandem “steer” wheels, attached to each other on a single steering unit, are off-centered on the other end of the forklift. (Id.) The RC5500 weighs approximately 8500 pounds unloaded and can carry approximately 3000 pounds. (Doc. No. 81-6 at 15-16.) There is approximately 4000 pounds of downward force on the steer wheels. (Id. at 14.)

         The RC5500 is the third design in Crown's RC forklift series, immediately succeeding the RC3000. (Id. at 31.) Both the RC5500 and RC3000 have a steel wraparound skirt around the base of the forklift. (Doc. No. 65-3 at 5; Doc. No. 65-4 at 2; Doc. No. 81-3 at 1.) There is approximately four inches of clearance between the bottom of the skirt and the ground. (Doc. No. 81-3 at 5.) The RC3000's skirt wraps all the way around the forklift, in contrast to the RC5500's skirt, which has a half-moon shaped opening around the steer wheels (“steer wheel opening” or “opening”). (Doc. No. 65-4 at 2; Doc. No. 81-3 at 1-7, 11.) The opening is approximately 11 inches tall by 11.5 inches wide. (Doc. No. 81-3 at 5-6.)

         The RC5500 is designed so that it may be operated in both a “forks first” and “forks trailing” direction. (Doc. No. 81-4 at 2-3; Doc. No. 81-5 at 2.) When operated forks first, the RC5500 travels in the direction of its forks. (See id.) When operated forks trailing, the RC5500 travels in the direction opposite of its forks, thus traveling with the forks behind the lift. (See id.) Significant to this case, when the RC5500 is traveling in the forks trailing direction, the steer wheel opening and steer wheels are at the leading edge of the RC5500. (See Doc. No. 81-3 at 2-7.)

         On February 14, 2013, Nathan worked as a receiving manager at Costco Wholesale Warehouse located in La Mesa, California. (Doc. No. 65-1 at 10-11.) That day, a coworker, Gabriel Manrique (“Manrique”), was using an RC5500 to deliver pallets of televisions from the warehouse to a Federal Express truck parked at the bottom of a loading ramp. (Doc. No. 65-7 at 15-19.) Nathan stood to the right of the warehouse's rollup door while Manrique loaded the first pallet, took it to the FedEx truck, and returned to load the second pallet. (Doc. No. 65-1 at 20; Doc. No. 81-17 at 6.) After Manrique loaded the second pallet and drove it out of the warehouse and down the loading ramp, Nathan walked partway down the ramp to count pallets of recyclables stacked along one side of the ramp. (Doc. No. 65-1 at 29-30.) Nathan watched Manrique load a second pallet of televisions on the truck before Nathan turned his attention to counting the pallets of recyclables. (Id. at 30.)

         After Nathan finished counting the pallets on that side of the ramp, he pivoted to his right (toward the bottom of the ramp where the truck was) to count the pallets on the other side of the ramp. (Id. at 31.) At that point, Nathan became aware of the RC5500 Manrique operated when the forklift came into contact with him. (Id. at 32; Doc. No. 81-10 at 6.) Nathan was knocked to the ground. (Doc. No. 81-10 at 6.) While traveling in the forks trailing direction up the ramp, Manrique looked back toward the FedEx driver (away from his direction of travel) in response to the driver saying something to him. (Doc. No. 65-7 at 20.) When Manrique turned to look in the direction of travel, Nathan was “already there.” (Id. at 20.) Manrique stopped the RC5500; unfortunately, the forklift's steer wheels came to a stop on top of Nathan's right foot. (Doc. No. 81-10 at 6; Doc. No. 81-17 at 12.)

         Nathan's injuries were significant: his right foot was almost flattened, the bones were crushed, his toes were dislocated and crushed, and the tissues were damaged. (Doc. No. 81-11 at 3; Doc. No. 81-12 at 1.) Despite multiple surgeries, Nathan suffered from chronic pain and constant sores on his right foot. (Doc. No. 81-10 at 10-13.) Ultimately, Nathan underwent a below-the-knee amputation. (Id. at 14.) Nathan still suffers from hip and back pain. (Id. at 14-15.)

         Plaintiffs instituted this action on February 6, 2015, in San Diego Superior Court. (Doc. No. 1 ¶ 1.) In the operative complaint, Nathan alleges two causes of action for design defect, one asserting strict liability and the other negligence. (Doc. No. 21 ¶¶ 18-41.) Plaintiffs assert the steer wheel opening is a design defect that proximately caused Nathan's injuries. (Id. ¶¶ 21-23, 35.) Jeniffer also brings a claim for loss of consortium. (Id. ¶¶ 42- 46.) Crown removed the action to this Court on April 30, 2015. (Doc. No. 1.) On February 24, 2017, Crown filed the instant motions to exclude Plaintiffs' expert witnesses and for summary judgment. (Doc. Nos. 59, 61-63, 65.) All matters have been fully briefed. A hearing was held on May 11, 2017, and this order follows.


         I. Motions to Exclude Expert Testimony

         Crown seeks to exclude three of Plaintiffs' expert witnesses, Fred Smith (“Smith”), Eugene Vanderpol II (“Vanderpol”), and Dr. Michael Freeman (“Dr. Freeman”). (Doc. Nos. 59, 61, 62.) Plaintiffs designated Smith to opine on the reasonableness of care Crown used in designing the RC5500 and the existence of feasible safer alternative designs, (Doc. No. 59-6 at 6), Vanderpol to opine on the biomechanical cause of Nathan's injury and the efficacy of alternative designs, (Doc. No. 62-3 at 2, 5), and Dr. Freeman to opine on the likelihood of Nathan's injury had the RC5500 been designed differently and to provide epidemiologic characteristics of forklift-related injuries generally, (Doc. No. 61-8 at 4).

         A. Legal Standard

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. Pursuant to 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.

Id. “The party offering the expert bears the burden of establishing that Rule 702 is satisfied.” Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. 02 CV 2258 JM (AJB), 2007 WL 935703, at *4 (S.D. Cal. Mar. 7, 2007).

         Prior to admitting expert testimony, the trial court must make “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.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). The trial court acts as a “gatekeeper” by making a preliminary determination of whether the expert's proposed testimony is not only relevant but reliable. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014). This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevance prong). Daubert, 509 U.S. at 592-93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).

         A district court has broad latitude in deciding how to measure reliability and in making the ultimate reliability determination. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). In essence, the Court must determine whether the expert's work product amounts to “good science.” Daubert, 509 U.S. at 593. In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Id. at 593-94. As later confirmed in Kumho Tire, “Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” 526 U.S. at 141-42.

         Under the relevance or “fit” prong, the testimony must be “‘relevant to the task at hand, ' i.e., that it logically advances a material aspect of the proposing party's case.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) (quoting Daubert, 509 U.S. at 597). Relevance requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230. In general, the Daubert analysis focuses on the principles and methodology underlying an expert's testimony, not on the expert's ultimate conclusions. Daubert, 509 U.S. at 595. However, the Supreme Court has cautioned that “conclusions and methodology are not entirely distinct from one another.” Gen. Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, “[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id.

         B. Fred Smith

         Crown attacks Smith's qualifications only to the extent it asserts that Smith is not qualified to opine on the reasonableness of Crown's design process. (Doc. No. 59-1 at 21- 23.) Specifically, Crown contends that Smith is not qualified to opine of the reasonableness of the design process that resulted in the RC5500 because Smith has no knowledge of what lift truck drivers analyze and evaluate during the process, has never been employed by a company that designs or manufactures lift trucks, and has never designed any component part of a lift truck. (Id. at 22.)[2]

         Having reviewed Smith's curriculum vitae and deposition testimony, the Court finds that Smith's ample education and experience in mechanical engineering render him qualified to offer an opinion on the reasonableness of Crown's design process. Smith is a registered professional mechanical engineer in California, Nevada, and Alabama, and a registered professional structural engineer in Utah. (Doc. No. 59-6 at 6, 52.) He has over thirty years of mechanical design experience, during which he has designed numerous types of equipment, including material handling equipment, trucking equipment, trailers, aerial lifts, refuse equipment, and tarping systems. (Id. at 7, 52.)

         Significantly, the three-step risk assessment on which Smith opines is not unique to forklifts. (Doc. No. 69-2 ¶ 4.) This assessment consists of the following: “1) understand the intended use of a truck and identify hazards that could result from that use; 2) if a hazard or danger is identified, assess what can be done [to] create a design that removes or guards against the hazard; [and 3)] if you can't safeguard against the risk, warn about it through instructions for use, training, and warnings.” (Id. ¶ 8; see Doc. No. 69-5 at 31-34.) Because this risk assessment process is not specific to forklift design, and because it is a process with which Smith (as a mechanical engineer and certified safety professional) is intimately familiar, the Court finds he is qualified to offer the proffered opinion. In short, “[t]he fact that [Smith] is not an expert specifically in [forklift design] does not, in view of his other [engineering] experience, disqualify him . . . .” Casey v. Ohio Med. Prods., 877 F.Supp. 1380, 1383 (N.D. Cal. 1995); see Ramirez v. ITW Food Equip. Grp., LLC, --- F. App'x ---, 2017 WL 1229739, at *4 (9th Cir. 2017) (“The district court excluded Bennett's opinions because he lacked familiarity with the grinder ‘in its intended, pristine condition' and had no ‘experience with commercial food equipment.' But the ‘lack of particularized expertise goes to the weight accorded [an expert's] testimony, not to the admissibility of her opinion as an expert.'” (quoting United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993))).

         Smith proposes three alternative designs to the RC5500 that he contends would have prevented Nathan's injury. The first design involves attaching a cover plate to the guard skirt with three bolts (“cover plate”). (Doc. No. 59-6 at 29.) The end result is that when the cover plate is attached, the guard skirt wraps around the RC5500 in its entirety, much like the RC3000's skirt. The second design involves attaching a two-inch steel or rubber bumper guard to the skirt (“bumper”). (Id. at 32.) The third design involves attaching a moveable guard to the steer wheel support (“moveable guard”). (Id. at 35.)

         Crown seeks to exclude Smith's testimony as to these designs. Specifically, Crown asserts that Smith's opinion as to the cover plate and bumper is unreliable because he failed to test the designs. (Doc. No. 59-1 at 16-18.) While Smith tested the moveable guard, Crown contends the testing conducted is unreliable and irrelevant. (Id. at 18-21.) As explained in the following paragraphs, the Court finds these objections each go to the weight rather than the admissibility of Smith's testimony. See Kennedy, 161 F.3d at 1230- 31 (“Disputes as to the strength of [an expert's] credentials, faults in his use of [a particular] methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony.” (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)) (alterations in original)).

         Crown's first objection contends that Smith's failure to create and test the cover plate and bumper are fatal to the evidence's admissibility. (Doc. No. 59-1 at 16-17.) With respect to the cover plate, Smith created a plate that is thinner in design than the one he posits as an alternative design. (Doc. No. 59-6 at 30-31.) He then took photographs of a boot similar to the one Nathan wore and placed it next to the RC5500 at various angles, including the angle Nathan's foot was in when it contacted the steer wheels. (Id. at 31.) With respect to the bumper, Smith taped a bumper made of foam to the RC5500 and placed the boot next to it at various angles. (Id. at 32-34.)

         To the extent Crown takes issue with Smith's demonstrations of the cover plate and bumper, such criticism goes to how much weight the jury will ultimately give to Smith's testimony and whether the testimony satisfies Plaintiffs' prima facie burden of proof. The decisions in Ramirez v. Hobart Corp., No. CV-12-10023-AJB (AGRx), 2015 WL 10939541 (C.D. Cal. Feb. 18, 2015), and Ramirez v. ITW Food Equipment Group, LLC, 2017 WL 1229739, are instructive. In this products liability case involving a meat grinder, the district court granted the defendant's motions to exclude the plaintiff's expert witnesses, an electrical engineer and mechanical engineer. Ramirez, 2015 WL 10939541, at *1, *5-14. The mechanical engineer, Ned Wolfe, opined that the grinder was defective in design for lacking a clamp lock that would have prevented anyone from opening the lid until electrical current in the unit was off. Id. at *12. The district court excluded this opinion, finding Wolfe's opinion to be “unreliable because Wolfe has not sufficiently designed or tested the proposed alternative design[.]” Id. The court also faulted Wolfe for “not subject[ing] the proposed design to peer review [and] not demonstrat[ing] that the proposed design has gained general acceptance in the scientific community.” Id.

         A panel of the Ninth Circuit reversed the district court on all counts, concluding that excluding Wolfe-and the ...

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