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Kim v. Crocs, Inc.

United States District Court, D. Hawaii

December 7, 2018

FLORA KIM, individually and as Guardian Ad Litem for W.K., DAVID KANG, Plaintiffs,
v.
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

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         This 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.

         LEGAL STANDARD [1]

         Rule 702 of the Federal Rules of Evidence (“FRE”) governs the admissibility of expert evidence.[2] 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 layman”).

         In 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).

         Daubert 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. at 593-94).

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).

         District 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.

         The 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).

         “The 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.

         DISCUSSION

         A. Defendant's Motion to Exclude Expert Miller Engineering Inc.

         Defendant 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.

         Plaintiffs 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 report[3]was 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.

         1. Request to Strike Mr. Cook's and Dr. Elizabeth Buc's Declarations

         The 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.

         Federal 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.[4] 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), [5] 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.”).

         Dr. Buc 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 declaration.

         Although 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 judgment context.[6]

         Even if 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 the sort.

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 hardness.

         Reply, 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.

         For these reasons, the Court DENIES Defendant's request to strike Mr. Cook's and Dr. Buc's declarations.

         2. First Daubert Prong - MEI's Opinions are Reliable

         Defendant 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.

         In 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.

         FRE 703 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 perception).

         Here, 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 703.”).

         Defendant 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 ...


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