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Romero v. S. Schwab Co., Inc.

United States District Court, S.D. California

November 16, 2017

JESUS ROMERO, a Minor, by and through his Guardian ad Litem, MERIDA RAMOS, Plaintiffs,


          Hon. Gonzalo P. Curiel, United States District Judge

         Before the Court are Plaintiff's fully briefed motion to exclude the expert testimony of Dr. David Howitt, (Dkt. Nos. 152, 172, 178), and Defendants'[1] fully briefed motions to exclude the expert testimonies of Dr. Michel Brones, (Dkt. Nos. 147, 165, 175), Dr. David Hall, (Dkt. Nos. 148, 168, 176), Dr. David Xu, (Dkt. Nos. 149, 167, 177), and Andrew Ellison, (Dkt. Nos. 156, 164179).

         After a review of the briefs, supporting documentation and the applicable law, the Court issues the following tentative ruling in advance of Friday's hearing and GRANTS in part and DENIES in part Plaintiff's motion to exclude the expert testimony of Dr. David Howitt. The Court GRANTS in part and DENIES in part Defendants' motion to exclude the expert testimonies of Dr. David Hall, and Dr. Michel Brones. The Court further DENIES Defendants' motion to exclude the expert testimonies of Dr. David Xu, and Andrew Ellison.


         On January 30, 2005, Plaintiff Jesus Romero and his family were planning an outing to Rosarito, Mexico. Jesus, who was seven years old, and his younger brother, Marcos, who was six years old, were dressed and ready, and went next door to a neighbor's house to use a lighter. Both were sitting down and while Jesus held a flower or green weed, Marcos lit the flower or weed with the lighter. Jesus testified that he let go of the flower or weed because his fingers got hot and the lit flower or weed landed on his shirt near his stomach. Jesus told his brother to go get help so Marcos ran into the house and their father came out, ripped the shirt off, dropped it to the concrete and stepped on it to extinguish the flames. Jesus suffered second and third degree burns covering about 25% of his body. (Dkt. No. 128, Am. PTO at 5[3].)

         On the day of the incident, Jesus was wearing a boy's short-sleeved Ralph Lauren red-and-white gingham button-down dress shirt (“Shirt”). Jesus' mother Merida, only bought 100% cotton clothing for her family and would not have purchased the Shirt if it had not been labeled 100% cotton.

         Jesus alleges that 1) Defendants manufactured the shirt; and 2) although the Shirt was labeled 100% cotton, it was not; instead, it was composed of a “highly flammable, dangerous, and unlawful blend” of 90% cotton, 5% rayon, and 5% nylon causing Jesus more severe burns than he would have suffered if the shirt had been 100% cotton. Plaintiff alleges causes of action for strict product liability for manufacturing defect; negligence; breach of warranty; and negligent misrepresentation against Defendants. (Dkt. No. 17, FAC; Dkt. No. 128, Am. PTO.) Defendants contend that they did not manufacture the Shirt, the Shirt was labeled correctly and made out of 100% cotton, and they are not liable for Jesus' injuries.


         A. Daubert Legal Standard

         The trial judge must act as the gatekeeper for expert testimony by carefully applying Federal Rule of Evidence (“Rule”) 702 to ensure specialized and technical evidence is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589 & n.7 (1993); accord Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (Daubert imposed a special “gatekeeping obligation” on trial judges).

         Under Rule 702, a witness, “qualified as an expert by knowledge, skill, experience, training, or education, may testify” . . . 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 proponent of the evidence bears the burden of proving the expert's testimony satisfies Rule 702. Lust By & Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996).

         In applying Rule 702, the Ninth Circuit “contemplates a broad conception of expert qualifications.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004) (quoting Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (citing Daubert, 509 596).

         On the other hand, the district court must act as a gatekeeper to exclude “junk science.” Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (“Under Daubert, the trial court must act as a “gatekeeper” to exclude junk science that does not meet Federal Rule of Evidence 702's reliability standards by making a preliminary determination that the expert's testimony is reliable.”).

         Under Daubert, scientific evidence must be both reliable and relevant. Daubert, 509 U.S. at 590-91. Scientific evidence is reliable “if the principles and methodology used by an expert are grounded in the methods of science.” Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003). The focus of the district court's analysis “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595. “[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“Daubert II”). Second, the proposed expert testimony must be “relevant to the task at hand, ” meaning that it “logically advances a material aspect of the proposing party's case.” Daubert, 509 U.S. at 597.

         As one Ninth Circuit court simply stated, the test is “whether or not the reasoning is scientific and will assist the jury. If it satisfies these two requirements, then it is a matter for the finder of fact to decide what weight to accord the expert's testimony.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998). “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.'” Id. (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).

         As an initial matter, the Court notes that both parties use many of the same arguments to challenge each other's expert testimonies. Many of the parties' arguments challenge how the recognized methodology in the industry was used by each expert and his interpretation. These disputes challenge the conclusions of the experts, and not the reliability of the expert's testing method. As one recent Ninth Circuit court noted, “[w]here, as here, the experts' opinions are not the “junk science” Rule 702 was meant to exclude . . . the interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system-‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof'- to ‘attack[ ] shaky but admissible evidence . . . .'” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1237 (9th Cir. 2017) (internal citations omitted).

         B. Plaintiff's Motion to Exclude Expert Testimony of Dr. David G. Howitt[4]

         David G. Howitt, Ph.D. (“Dr. Howitt”) is Defendants' designated expert to testify about the materials and fibers in the Shirt; the methodology for identifying and distinguishing fabrics; the ignition, flammability and combustion of various fabrics; and the flammability standards for garments. (Dkt. No. 128, Am. PTO at 16.)

         Plaintiff moves to exclude Dr. Howitt's testimony that “(i) the Subject Shirt is 100 percent cotton, (ii) the Subject Shirt's fabric content had no impact on the severity of Jesus's burns, (iii) the Subject Shirt's weight (areal density) was above the threshold requiring flammability testing under the 1953 Flammable Fabrics Act (“FFA”), 15 U.S.C. § 1191, et seq., and (iv) the Subject Shirt is virtually indistinguishable from exemplar shirts manufactured by Ralph Lauren Corporation.” (Dkt. No. 152 at 8.)

         Plaintiff claims that Dr. Howitt is not qualified as an expert in fiber identification and textile burning behavior because he lacks superior knowledge, training or experience and only has a general background in materials. For example, Plaintiff asserts that Dr. Howitt's opinions are unreliable because his experience is limited to a range of non-clothing items, such as automobile upholstery, house fires, furniture fires, and spontaneous ignition of adulterated rags and admits no experience in evaluating rayon, never researched burning behavior of cotton/rayon, cotton/nylon or cotton/nylon/rayon blends and his research into post- ignition melting, shrinking, and charring behavior of textile is limited to this case. Moreover, Plaintiff argues that Dr. Howitt's conclusions are complete with false assumptions rather than scientifically valid principles. In opposition, Defendant argues that Dr. Howitt is qualified as an expert on the opinions that Plaintiff is challenging.

         Rule 702 requires that an expert possess “knowledge, skill, experience, training, or education” sufficient to “assist” the trier of fact, which is “satisfied where expert testimony advances the trier of fact's understanding to any degree.” Abarca v. Franklin Cnty. Water Dist., 761 F.Supp.2d 1007, 1029-30 (E.D. Cal. 2011) (citations omitted). “The threshold for qualification is low for purposes of admissibility; minimal foundation of knowledge, skill, and experience suffices.” PixArt Imaging, Inc. v. Avago Tech. Gen. IP (Singapore) Pte. Ltd., No. C 10-00544 JW, 2011 WL 5417090, at *4 (N.D. Cal. Oct. 27, 2011) (citing Hangarter, 373 F.3d at 1015-16) (25 years working in the insurance industry in general provided “minimal foundation of knowledge, skill, and experience” to qualify as expert in practices and norms of insurance companies in the context of a bad faith claim). “A witness can qualify as an expert through practical experience in a particular field, not just through academic training.” Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1429 (9th Cir. 1991).

         “Rule 702 is broadly phrased and intended to embrace more than a narrow definition of qualified expert, ” Thomas, 42 F.3d at 1269, and “[g]aps in an expert witness's qualifications or knowledge generally go to the weight of the witness's testimony, not its admissibility, ” Abarca, 761 F.Supp.2d at 1028 (quoting Robinson v. GEICO General Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006)) (internal quotation marks omitted). An expert's lack of specialization affects the weight of his or her testimony and not its admissibility. In re Silicone Gel Breast Implants Prods. Liab. Litig., 318 F.Supp.2d 879, 889 (C.D. Cal. 2004) (citing Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)); see also Hangarter, 373 F.3d at 1015-16 (finding the district court did not abuse its discretion in permitting expert witness with general qualifications in insurance field to testify specifically about bad faith claims); United States v. Garcia 7 F.3d 885, 889 (9th Cir. 1993) (“lack of particularized expertise goes to the weight accorded her testimony, not to the admissibility of her opinion as an expert.”).

         Dr. Howitt has a Ph.D. in the Science of Materials and Engineering from the University of California at Berkeley, and a B.A. in Metallurgy from Oxford University, and is a Professor Emeritus of the Science of Materials at the University of California at Davis. (Dkt. No. 172-1, Howitt Decl. ¶ 2.) He specializes in the characterization and behavior of materials with specialized expertise in ignition and combustion of materials. Id. For the past thirty (30) years, Dr. Howitt has taught classes on the characterization of materials with techniques such as “optical microscopy (including polarized light microscopy ‘PLM' and phase-contrast microscopy ‘PCM'); electron microscopy (including scanning electron microscopy (‘SEM') transmission electron microscopy (‘TEM') and scanning transmission electron microscopy (‘STEM'); spectroscopy and chromatography (including Fourier-transform infrared spectroscopy (‘FTIR'), mass spectrometry (‘MS') gas chromatography (‘GCMS') and X-ray microanalysis (including energy dispersive x-ray spectroscopy (‘EDS'), wavelength dispersive x-ray spectroscopy (‘WDS') and x-ray powder diffraction (‘XRD').” (Id. ¶ 3.) He is also past Chairman of the Steering Committee of National Center for Electron Microscopy, a U.S. Department of Energy National Laboratory operated by the University of California. (Id. ¶ 4.) He was also the founder of the fully-credentialed Forensic Science Graduate Program at U.C. Davis and established the Advanced Materials Characterization and Testing facility. (Id.) He has published numerous journal articles, professional papers and books over the past forty (40) years. (Dkt. No. 172-3, Howitt Decl., Ex. B.) Lastly, he has been deposed and testified in court as a forensic materials expert on more than 120 occasions. (Dkt. No. 172-1, Howitt Decl. ¶ 4.)

         Dr. Howitt's over thirty years of experience in the field of materials science, and specialization in ignition and combustion of materials provides a “minimal foundation of knowledge, skill, and experience” to qualify as an expert in fiber identification and textile burning behavior. See Hangarter, 373 F.3d at 1015-16. Moreover, he taught courses in the characterization of materials using techniques that are also used to identify fibers such as PLM, SEM, and FTIR. (See Dkt. No. 148, Ds' Mot. To Exclude Dr. Hall at 7 (“Fiber identification can be measured by various methods, including Scanning Electron Microscopy (SEM), Optical Microscopy, Polarized Light Microscopy (‘PLM'), Infrared Spectroscopy, Fourier Transform Infrared Spectroscopy (‘FTIR'), and Attenuated Total reflectance (‘ATR').”) Any challenges to Dr. Howitt's qualification based on his lack of specialization can be made at trial. See In re Silicone Gel Breast Implants Prods. Liab. Litig., 318 F.Supp.2d at 889. Accordingly, Plaintiff's argument challenging Dr. Howitt's qualifications is without merit.

         Plaintiff also argues that Dr. Howitt's opinions demonstrate a misunderstanding of scientific principles relating to fiber identification by relying on incorrect assumptions and ignoring accepted protocols and recognized standards for fiber sampling. Plaintiff does not dispute that the tests used by Dr. Howitt are used by experts in fiber identification. (Dkt. No. 152 at 12 (plaintiff acknowledges that the tests used by Dr. Howitt are “markers an expert in fiber identification might look to”).) Instead, Plaintiff challenges Dr. Howitt's use of the methodologies to reach his conclusion which goes to the weight of the evidence and not admissibility. See Kennedy, 161 F.3d at 1231 (“Disputes as to . . . faults in his use of [a particular] methodology . . . go to the weight, not the admissibility, of his testimony.”); Shimozono v. May Dept. Stores Co., No. 00-04261 WJR, 2002 WL 3437390, at *8 (C.D. Cal. Nov. 20, 2002) (citation omitted) (arguments that an expert relied on unfounded assumptions in forming his opinion go to the weight, not the admissibility, of expert testimony).

         Similarly, Plaintiff challenges Dr. Howitt's opinion concerning the areal density (weight) of the Shirt because he failed to adhere to the accepted standards of measurement such as failing to properly condition the sample by removing excessive moisture. Dr. Howitt responds that Plaintiff is mistaken in his argument, citing published literature, and disputing Plaintiff's arguments concerning the acceptable standards. Plaintiff's arguments challenge how Dr. Howitt performed a particular methodology which goes to the weight of Dr. Howitt's testimony and not its admissibility. See id.

         Next, Plaintiff contends that Dr. Howitt blindly accepted the conclusion of others while having no knowledge of the methods used to obtain the results. He argues that Dr. Howitt's bare reliance on the reputation, expertise and judgment of three scientists to conduct fiber identification without any information to assess the trustworthiness and reliability is insufficient. After conducting his own SEM and optical microscopic analysis of the swatch, Dr. Howitt had it examined by three leading, independent national laboratories to determine its composition by using different methods of fiber identification. (Dkt. No. 172-1, Howitt Decl. ¶¶ 14-17.) Dr. Howitt responds that he has extensive experience and indisputable credentials in the optical, FTIR and other analytical techniques used by the three independent laboratories. (Id. ¶ 18.)

         Under Rule 703, an expert may base an opinion on facts or data “perceived by or made known to the expert at or before the hearing.” Fed.R.Evid. 703. Rule 703 allows, otherwise inadmissible evidence, to be admissible if the expert opinion is based on “facts or data” that is “of a type reasonably relied upon by experts in the particular field in forming opinions.” Fed.R.Evid. 703.[5] “[A]n expert may rely on data that she did not personally collect, ” and “need not have conducted her own tests.” Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94-95 (2d Cir. 2000). “[N]umerous courts have held that reliance on scientific test results prepared by others may constitute the type of evidence that is reasonably relied upon by experts for purposes of Rule of Evidence 703.” Monsanto Co. v. David, 516 F.3d 1009, 1015 (Fed. Cir. 2008). Rule 703 “merely relaxes, for experts, the requirement that witnesses have personal knowledge of the matter to which they testify.” Claar v. Burlington Northern R. Co., 29 F.3d 499, 501 (9th ...

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