United States District Court, S.D. California
JESUS ROMERO, a Minor, by and through his Guardian ad Litem, MERIDA RAMOS, Plaintiffs,
S. SCHWAB COMPANY, INC.; RL CHILDRENSWEAR COMPANY, LLC; SYLVIA COMPANY, LLC; CUNY ASSOCIATES, LLC; AND LM SERVICES LLC. Defendants.
ORDER: 1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO EXCLUDE EXPERT TESTIMONY OF DR.
DAVID HOWITT, [DKT. NO. 152]; 2) GRANTING IN
PART AND DENYING IN PART DEFENDANTS' MOTION TO EXCLUDE
EXPERT TESTIMONIES OF DR. DAVID HALL, [DKT. NO. 148], AND DR.
MICHEL BRONES, [DKT. NO. 147]; 3) DENYING
DEFENDANTS' MOTION TO EXCLUDE EXPERT TESTIMONIES OF DR.
DAVID XU, AND ANDREW ELLISON, [DKT. NOS. 149, 156.]
Gonzalo P. Curiel, United States District Judge
the Court are Plaintiff's fully briefed motion to exclude
the expert testimony of Dr. David Howitt, (Dkt. Nos. 152,
172, 178), and Defendants' 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).
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.
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
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%
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
Daubert Legal Standard
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
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.
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 U.S.at 596).
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.”).
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.
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)).
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).
Plaintiff's Motion to Exclude Expert Testimony of Dr.
David G. Howitt
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
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.)
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.
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).
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.”).
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.)
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.
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).
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.
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.)
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.
“[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 ...