United States District Court, N.D. California
ORDER GRANTING DEFENDANT MCNEILUS TRUCK &
MANUFACTURING, INC.'S MOTION FOR SUMMARY JUDGMENT Re:
Dkt. No. 58
William H. Orrick United States District Judge
Lassalle, Emily Anne Lassalle, and Madeline Elizabeth
Lassalle (minor) and Grace Caroline Lassalle (minor) by and
through their Guardian ad Litem (collectively
“plaintiffs”), the widow and children of decedent
Anthony Lassalle, contend that a vehicle manufactured by
defendants McNeilus Truck and Manufacturing, Inc.
(“McNeilus”), and Autocar, LLC
(“Autocar”), caused Mr. Lassalle's death.
They allege claims for negligence, strict liability, and
failure to warn in this products liability action. Remaining
defendant McNeilus now moves to exclude the testimony of two
expert witnesses as well as for summary judgment on all
claims.For the reasons set forth below, I DENY the
motion to exclude Dr. Sackrin's causation opinion and I
GRANT the motion to exclude Dr. Anderson's report and
testimony. But because there is no genuine issue of material
fact concerning causation, I GRANT the motion for summary
judgment in favor of defendant McNeilus.
Lassalle was an employee of Waste Management, Inc.
(“WM”), where he used a rear end loader truck
manufactured by defendant McNeilus to collect bulk
residential curbside waste. Complaint (“Compl.”)
¶ 10. While collecting waste on September 17, 2013, he
suffered a stroke and died.
only person at the scene, Yemane Abraham, another WM
employee, heard the decedent say, “[S]omething in my
arm, something in my face, ” and saw him fall to the
ground. Haley Decl. Ex. 7 (Abraham Dep.), at 39:2 (Dkt. No.
66-1). Decedent was taken to Highland Hospital, where he was
placed under the care of Highland Hospital emergency
department physician Dr. Steven Sackrin. Haley Decl. Ex. 2
(Sackrin Dep.), at 8:20-24, 24:10-17. He passed away the next
day. MSJ McNulty Decl. Ex. 14 (Decedent's Death
Certificate). The certificate of death lists the cause of
death as “Brain Death, Large Left Middle Anterior
Cerebral Artery Stroke” and “Hypercoagulable
September 16, 2015, plaintiffs brought a products liability
action alleging negligence, strict liability, and failure to
warn (strict liability/negligence) against McNeilus and
Autocar. Compl. ¶ 1. Plaintiffs believe decedent was
exposed to poison and toxins when he activated the hopper
blade of the truck, that the blade crushed some boxes and
cans, causing toxic material to spray and strike
Decedent's face, and that decedent's death was due to
the defendants' fault in designing and/or manufacturing
the WM truck and failure to warn. Allman Mot. McNulty Decl.
Ex. 2 (Pl. Jennifer Lassalle's Responses to
Interrogatories), at 2 (Dkt. No. 56-1); Compl. ¶¶s
10-12. Yemane Abraham did not see any such spray. MSJ McNulty
Decl. Ex. 4 (Abraham Dep.), at 59:15-19 (Dkt. No. 58-1).
moves for summary judgment, or in the alternative, partial
summary judgment, for lack of genuine issue of material fact
concerning causation. It concurrently filed two motions in
limine to exclude the causation opinion of treating physician
Dr. Sackrin as well as the report and testimony of expert
witness Dr. Scott T. Anderson.
MOTION IN LIMINE NO. 1 TO EXCLUDE DR. SACKRIN'S CAUSATION
Goodman v. Staples The Office Superstore, LLC, a
treating physician who has not been retained as an expert
witness and has not submitted an expert report may not
testify concerning opinions formed after the course of
treatment. 644 F.3d 817, 826 (9th Cir. 2011);
Kauffman-Stachowiak v. Omni Hotels Mgmt. Corp., No.
15-cv-05186-WHO, 2016 WL 4269504, at *7 (N.D. Cal. Aug. 15,
2016). McNeilus moves to exclude the post-treatment opinions
regarding causation of the treating physician, Dr. Sackrin.
Plaintiffs oppose this motion and contend that Dr.
Sackrin's opinions regarding causation were formed during
the course of treatment.
medical records as well as Dr. Sackrin's deposition
testimony are unclear concerning when he changed his opinion
about causation. At his deposition, Dr. Sackrin testified
that he believed the cause of death to be attributable to a
“stressful event.” MSJ McNulty Decl. Ex. 10
(Sackrin Dep.), at 47:5-9. At the time of death, however, Dr.
Sackrin indicated that a hypercoagulable disorder was the
cause. See Sackrin Mot. McNulty Decl. Ex. 2
(Decedent's Medical Records), at 119 (“One wonders
if he had a major thrombosis in the left internal carotid
artery . . . . We were very concerned and suspicious the
patient had a hypercoagulable disorder. . . . We will follow
up on the hypercoagulable lab test studies.”) (Dkt. No.
59-1). Indeed, he listed “hypercoagulable
disorder” as one of the causes of death on the death
certificate. MSJ McNulty Decl. Ex. 14. But as plaintiffs and
Dr. Sackrin noted, Dr. Sackrin ordered hypercoagulable lab
test studies over the course of his treatment to confirm his
“suspicio[n].” Sackrin Opp. at 3 (Dkt. No. 67);
Sackrin Mot. McNulty Decl. Ex. 2, at 119. It is plausible
that the results of these studies contradicted his suspicion,
and led Dr. Sackrin to change his mind as to the cause of
death upon receipt.
record, McNeilus has not pointed to sufficient evidence in
support of its assertion that Dr. Sackrin changed his opinion
“long after the termination of his stint as treating
physician.” Sackrin Mot. at 5 (Dkt. No. 59). Dr.
Sackrin's opinions regarding causation could have been
formed within the scope of his treatment of the decedent. I
DENY McNeilus's motion to exclude Dr. Sackrin's
opinions regarding causation.
MOTION IN LIMINE NO. 2 TO EXCLUDE DR. ANDERSON'S REPORT
also moves to exclude the testimony and report of Dr. Scott
T. Anderson, who opines that the decedent's triggering
cause of death was some type of toxic exposure. See
Anderson Mot. McNulty Decl. Ex. 2 (Anderson Report), at 39-40
(Dkt. No. 60-1). Dr. Anderson is a Qualified Medical
Examiner. He was asked to determine whether the
decedent's death was workplace related in connection with
the decedent's Workers' Compensation case.
Id. He did not treat the decedent. Anderson Mot.
McNulty Decl. Ex. 1 (Anderson Dep.), at 11:12-22. Although
plaintiffs have not specifically designated him as an expert
witness, because he was not a treating physician and
therefore does not have personal knowledge of the matters to
which his opinion relates, see Fed. R. Evid. 602, I
will treat Dr. Anderson as an expert witness subject to Rule
702 and the Daubert standard.
Rule of Evidence 702 allows a qualified expert to testify
“in the form of an opinion or otherwise” where:
(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. To be admissible under Rule 702, expert
testimony must be both relevant and reliable. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).
the reliability requirement, the expert testimony must
“ha[ve] a reliable basis in the knowledge and
experience of the relevant discipline. Primiano v.
Cook, 598 F.3d 558, 565 (9th Cir. 2010). To ensure
reliability, the court must “assess the [expert's]
reasoning or methodology, using as appropriate such criteria
as testability, publication in peer reviewed literature, and
general acceptance.” Id. at 564. These factors
are “helpful, not definitive, ” and a court has
discretion to decide how to test reliability “based on
the particular circumstances of the particular case.”
Id. (internal quotation marks and footnotes
omitted). “When evaluating specialized or technical
expert opinion testimony, the relevant reliability concerns
may focus upon personal knowledge or experience.”
United States v. Sandoval-Mendoza, 472 F.3d 645, 655
(9th Cir. ...