United States District Court, D. Hawaii
FLORA KIM, individually and as Guardian Ad Litem for W.K., DAVID KANG, Plaintiffs,
CROCS, INC., ET AL. Defendants.
ORDER: 1) GRANTING IN PART AND DENYING IN PART
DEFENDANT CROCS INC.'S MOTION TO EXCLUDE PLAINTIFFS'
EXPERT MILLER ENGINEERING INC. AND 2) DENYING PLAINTIFFS'
MOTION TO EXCLUDE CERTAIN OPINIONS OF ANTHONY HAYTER
A. OTAKE UNITED STATES DISTRICT JUDGE.
products liability action arises out of an accident at the
Hilton Hawaiian Village where W.K.'s shoe became
entrapped in an escalator. The parties have filed multiple
motions to exclude expert opinions and testimony, two of
which are addressed herein. For the reasons articulated
below, the Court: 1) GRANTS IN PART AND DENIES IN PART
Defendant Crocs Inc.'s (“Defendant”) Motion
to Exclude Plaintiffs' Expert Miller Engineering Inc. and
2) DENIES Plaintiffs Flora Kim and David Kang's
(collectively “Plaintiffs”) Motion to Exclude
Certain Opinions of Anthony Hayter.
702 of the Federal Rules of Evidence (“FRE”)
governs the admissibility of expert evidence. Clausen v.
M/V New Carissa, 339 F.3d 1049, 1055 (9th Cir. 2003).
FRE 702 allows the admission of expert testimony when
scientific, technical, or other specialized knowledge will
help the trier of fact understand the evidence or determine a
fact in issue. Fed.R.Evid. 702; United States v.
Vallejo, 237 F.3d 1008, 1019 (9th Cir. 2001),
amended by 246 F.3d 1150 (9th Cir. 2001) (To be
admissible, “expert testimony must . . . address an
issue beyond the common knowledge of the average
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), the Supreme Court, focusing on the
admissibility of scientific expert testimony, found that such
testimony is admissible only if it is both relevant and
reliable. Id. at 589. “Expert opinion
testimony is relevant if the knowledge underlying it has a
valid connection to the pertinent inquiry. And it is reliable
if the knowledge underlying it has a reliable basis in the
knowledge and experience of the relevant discipline.”
Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010);
Daubert, 509 U.S. at 591 (“Expert testimony
which does not relate to any issue in the case is not
relevant and, ergo, non-helpful.”). The court must make
“a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and . . . whether that reasoning or methodology properly can
be applied to the facts in issue.” Daubert,
509 U.S. 592-93. The presiding judge's role (or
gatekeeping function) in ensuring the reliability and
relevancy of expert testimony extends to all expert
testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 146 (1999).
outlined nonexclusive factors-“(1) whether the theory
can be and has been tested, (2) whether the theory has been
peer reviewed and published, (3) what the theory's known
or potential error rate is, and (4) whether the theory enjoys
general acceptance in the applicable scientific
community”- that may bear on the determination
regarding the reliability of a particular scientific theory
or technique. Murray v. S. Route Mar. SA, 870 F.3d
915, 922 (9th Cir. 2017) (citing Daubert, 509 U.S.
The test of reliability is flexible and
Daubert's list of specific factors neither
necessarily nor exclusively applies to all experts or in
every case. The list of factors was meant to be helpful,
not definitive,  and the trial court has discretion to
decide how to test an expert's reliability as well as
whether the testimony is reliable,  based on the particular
circumstances of the particular case.
Primiano, 598 F.3d at 564 (citations omitted)
(internal quotations omitted).
courts have broad latitude in determining reliability and
deciding how to determine reliability. Hangarter v.
Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017
(9th Cir. 2004). “A district court may permissibly
choose not to examine factors that are not ‘reasonable
measures of reliability in a particular case.'”
Murray, 870 F.3d at 922.
Daubert inquiry focuses on the reliability of
“principles and methodology, not on the conclusions
that they generate.” Daubert, 509 U.S. at 595;
Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311,
1318 (9th Cir. 1995) (“Daubert II”). The
district court's function is to “screen the jury
from unreliable nonsense opinions, but not exclude opinions
merely because they are impeachable.” Alaska
Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d
960, 969 (9th Cir. 2013). It “is not tasked with
deciding whether the expert is right or wrong, just whether
his testimony has substance such that it would be helpful to
a jury.” Id. at 969-70; Kennedy v.
Collagen Corp., 161 F.3d 1226, 1230 (9th Cir. 1998)
(identifying second Daubert requirement that an
expert's opinions assist the trier of fact).
requirement that the opinion testimony ‘assist the
trier of fact' ‘goes primarily to
relevance.'” Primiano, 598 F.3d at 564
(citation omitted). The relevancy, or “fit, ”
requirement, demands that “proposed expert testimony is
‘relevant to the task at hand,' . . . i.e., that it
logically advances a material aspect of the proposing
party's case.” Daubert II, 43 F.3d at 1315
(citation omitted). Experts who satisfy FRE 702 “may
testify and the jury decides how much weight to give that
testimony.” Primiano, 598 F.3d at 565.
Defendant's Motion to Exclude Expert Miller
moves to exclude all opinions rendered by Miller Engineering,
Inc. (“MEI”) because they are unreliable,
irrelevant, and cannot assist the trier of fact. Defendant
identifies the following deficiencies: 1) the opinions are
based on self-selected unique testing methods that are not
scientifically reliable, independently tested or
peer-reviewed; 2) MEI did not perform or supervise the actual
tests; 3) the opinions are unsupported by the data; 4) MEI
made no effort to connect their work product to the actual
facts of the case; 5) MEI's ultimate causation opinion
does not follow from their test results and is merely its
ipse dixit; and 6) there are no relevant opinions in
support of Plaintiffs' failure to warn claim.
retained MEI to determine 1) “whether a defect in the
Crocband rendered it dangerous for its intended or reasonably
foreseeable use”; 2) “whether that defect was a
cause of W.K.'s injuries”; and 3) “to what
extent the warnings provided by Crocs, if any, provided
adequate instructions for safe use and warned of the dangers
of escalator entrapment.” Doc. No. 283-2 at 1. The MEI
reportwas prepared by Dr. James Miller and
Bradley Cook, both of whom Plaintiffs have designated as
expert witnesses. Among other things, the report summarizes
five tests-shoe material and configuration characterization;
shoe sole material compression testing; whole-shoe
compression testing; coefficient of friction testing; and
hardness testing-and their results. Id. at 17-24.
Request to Strike Mr. Cook's and Dr. Elizabeth
Court preliminarily addresses Defendant's request to
strike Mr. Cook's and Dr. Elizabeth Buc's
declarations pursuant to FRCP 37(c)(1). Defendant claims that
these declarations constitute an improper attempt to
supplement MEI's opinions. The Court disagrees.
Rule of Civil Procedure (“FRCP”) 26(a)(2)(A) only
requires disclosure of the identities of witnesses who
may be used at trial to present evidence under FRE 702,
703, or 705. Fed.R.Civ.P. 26(a)(2)(A) (emphasis added).
Such witnesses must provide a written report. Fed.R.Civ.P.
26(a)(2)(B). FRCP 37(c)(1) sanctions pertain solely to
witnesses identified under FRCP 26(a). Fed.R.Civ.P. 37(c)(1)
(“If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e),  the party is not
allowed to use that . . .witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.”).
is not a testifying witness, therefore, FRCP 26(a) does not
govern the disclosure of her identity or other information,
and FRCP 37(c) does not provide a basis to strike her
Mr. Cook is a testifying expert who provided a report,
neither does FRCP 37(c)(1) support the striking of his
declaration. The Court finds that Mr. Cook's declaration
does not constitute improper supplementation and
Defendant's attempt to characterize it as such is without
merit. Interestingly, Defendant seeks relief under FRCP
37(c)(1), yet its arguments and non-controlling legal
authority on pages 5-7 of the Reply concern sham affidavits,
an entirely distinct concept that arises in the summary
the issue were properly before the Court, Defendant's
examples demonstrate that it has fabricated contradictions
and misrepresented the content of the exhibits referenced.
For example, Defendant argues that “Cook testified in
his deposition that the client asked MEI to add
additional Crocs' models, and only after the Crocband
tests did not yield desired results.” Reply at 7. The
cited portion of Mr. Cook's deposition says nothing of
Q: But also without the Crocband around the exterior?
A: Correct, without the Crocband exterior, correct.
Q: Why was that important to your testing?
A: Really wanted to just evaluate that as a variable. I
didn't want to have results for the Crocband and then not
be able to know if the band itself was responsible for those
results or interacted or interplayed in some way. Likewise
for the holes and the perforations, to see if that affected
any of the results.
Q: And what did you find in that respect?
A: I believe in general, without looking at the specific
results, that the Crocband did have a different coefficient
of friction slightly and it did have a slightly different
Ex. H at 53:15-54:3. Thus, not only is Defendant's
reliance on the sham affidavit rule misplaced, its arguments
and examples would not entitle it to relief.
these reasons, the Court DENIES Defendant's request to
strike Mr. Cook's and Dr. Buc's declarations.
First Daubert Prong - MEI's Opinions are
argues that MEI's opinions are unreliable because MEI did
not conduct any of the five tests at its facility, using its
equipment, or under its supervision. Plaintiffs explain that
all testing was performed by or under MEI's supervision
and it worked with several consulting experts to perform some
of the underlying testing and to gather data which MEI
analyzed and evaluated in forming its opinions.
seeking exclusion on the basis of unreliability, Defendant
attempts to impose non-existent standards. Defendant deems
unreliable MEI's opinions because Mr. Cook failed to
perform, review, and understand the tests discussed in
MEI's report. Daubert does not require that
testing occur at an expert's lab, or that all testing be
supervised by the expert. Therefore, to the extent this
Motion is premised on those arguments, it is DENIED.
expressly authorizes experts to “base an opinion on
facts or data in the case that the expert has been made aware
of or personally observed.” Fed.R.Evid. 703. The facts
or data upon which an expert forms an opinion on a particular
subject need not be admissible “[i]f experts in the
particular field would reasonably rely on those kinds of
facts or data in forming an opinion on the subject.”
Id. “[A]n expert is permitted wide latitude to
offer opinions, including those that are not based on
firsthand knowledge or observation.” Daubert,
509 U.S. at 592; Monsanto Co. v. David, 516 F.3d
1009, 1015 (Fed. Cir. 2008) (citing Sweet v. United
States, 687 F.2d 246, 249 (8th Cir. 1982); Data Line
Corp. v. Micro Techs., Inc., 813 F.2d 1196, 1200-01
(Fed. Cir. 1987)) (finding that experts are not required to
obtain the bases for their opinions from personal
Mr. Cook stated in his deposition that engineers, including
him, routinely rely on material scientists such as Dr. Buc to
provide data about material composition. Opp'n, Ex. A at
¶¶ 5, 7-8. He also explained that measuring
compressibility and elongation are standard and acceptable
engineering tests; he has performed coefficient of friction
testing on approximately 50 occasions; and surface hardness
is a standard engineering test that he is qualified to
perform and evaluate. Id. at ¶¶ 9-10,
12-13, 16. The Court finds that the tests conducted in this
case would be reasonably relied upon by experts, and
MEI's opinions shall not be excluded merely because MEI
did not personally conduct the tests. Monsato, 516
F.3d at 1015 (“[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
further contends that MEI's testing utilized unique,
modified methods, and was not conducted in accordance with
ASTM standards. Although Defendant cites
Daubert's “can be (and has been)
tested” factor, it relies on a lack of peer review and
independent studies as dispositive of unreliability. In
particular, Defendant argues that Plaintiffs cannot establish
that the two studies relied upon by MEI-the Arthur Little
Study (“Little study”) and Japan's National
Institute of Technology and Evaluation Report (“NITE
report”)-satisfy FRE 702, 703, and 902. Again,
Defendant endeavors to impose requirements that do not exist.
It claims that Plaintiffs must show that the Little study and