Opinion
No. 8:99CV29
March 19, 2001
MEMORANDUM AND ORDER
Before the court is defendant Louisville Ladder Group's ("Louisville Ladder") Daubert motion to preclude the testimony of John Morse (Filing No. 74). Both Louisville and John Fitzpatrick ("Fitzpatrick") have submitted briefs. After a review of the record, the parties' briefs, the indexes of evidence, and the applicable law, and after oral argument, this court concludes that Louisville's motion is denied.
BACKGROUND
On or about February 13, 1995, Fitzpatrick suffered disabling injuries when he fell off a stepladder at his place of employment, Kellogg Co. in Omaha, Nebraska. At the time of his injuries, Fitzpatrick was using an eight-foot fiberglass Type I FS2008 stepladder manufactured by Louisville ("FS2008 ladder").
On January 29, 1999, Fitpatrick filed a complaint alleging that Louisville defectively designed their FS2008 ladder. In support of this allegation, Fitzpatrick plans to offer testimony of Dr. John Morse. Dr. Morse is expected to offer testimony that the FS2008 ladder manufactured by Louisville is defective because it racks excessively.
Racking occurs when the rear legs of a ladder become displaced resulting in one leg being positioned on a different elevated plane than the other three legs. The American National Standards Institute ("ANSI") has developed standards to address the effects of a racking ladder on user safety. According to Dr. Morse's testimony, ANSI proposes the following method to evaluate the degree a ladder racks:
[T]he stepladder is unfolded and the spreader bars are locked in place. The front feet of the ladder are blocked so that they cannot twist or move sideways. 100 pounds of weight is distributed on the bottom step. Then the rear legs of the ladder are raised about 3 inches in the air. Then the ladder is suspended by the rear of the top cap. Then a 4-pound force is applied horizontally to one rear leg of the ladder and that — that direction is parallel to the front feet of the ladder. Then the — then that 4-pound force is relaxed and then that determines — then the location of that foot is marked and that determines the starting point of the zero measurement. Then a 6-pound force is applied again to the bottom of the same rear leg and, again, it's pulled in a direction parallel to the front feet of the ladder and a measurement is made of how far the — that rear rail displaces with the 6-pound force from the zero point.
Filing No. 76, Ex. B at 38. ANSI recommends 14.7 inches or less of deflection of the rear legs of an eight-foot fiberglass step-ladder. The following are pertinent excerpts from the Rationales for ANSE A-14 Ladder Test
Requirements:
Stability of the user/ladder is generally regarded by ladder experts as a major cause of step-ladder accidents . . . .
To cope with this situation in the past, ANSI standards and the ladder industry have used the front, side, and rear stability tests, as well as the caution label advising to the climber not to use the top cap as a step, as a means of addressing the problem. Apparently, these approaches have not been completely successful. The tests presented here are a revision of the stability tests, with the addition of a new test to evaluate the racking of the structure. . . .
A common criticism of some step-ladders has been their walking or racking characteristics. A degree of racking is essential in step-ladders to allow for minor height irregularities in the base and support surface. However, excessive racking is not considered desirable.
Plaintiff's Brief in Opposition (Plaintiff's Brief) at 2. It is not disputed that the ladder in question complies with the ANSI standard. In fact, according to Dr. Morse, the FS2008 ladder deflects 7.67 inches. The dispute is over the standard itself. In Dr. Morse's opinion the standard does not adequately protect the user of the ladder from injury due to excessive racking. Dr. Morse believes that the ANSI standard is inadequate because it allows a degree of racking that is too high for a ladder to safely resist stresses that occur on an everyday basis. Further, in Dr. Morse's opinion, Louisville cannot rely on the ANSI racking test to certify that its ladder is safe. Finally, as applied to the specific facts of this case, it is Dr. Morse's opinion that "when Fitzpatrick ascended the ladder on the second occasion he applied unequal force to the side rails [which] resulted in the ladder becoming in a racked state and as he ascended the ladder to the fourth step he made a slight movement to the southwest towards the tipping plane, resulting in the ladder moving beneath his feet, causing him to lose his balance, resulting in falling and sustaining serious injury." Plaintiff's Brief at 13.
DISCUSSION
In light of Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993), and Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167 (1999), this court must screen proffered expert testimony for relevance and reliability. A reliable opinion must be based on scientific methodology, not subjective belief or unsupported speculation. United States v. Rouse, 100 F.3d 560, 567 (8th Cir. 1996). Furthermore, the expert's opinion must assist the trier of fact in understanding a fact in issue. Id. Finally, the Daubert analysis is applicable to engineering principles regarding "alternative designs in products liability cases." Peitzmeier v. Hennessy Industries, Inc., 97 F.3d 293, 297 (8th Cir. 1995).
I. Qualifications
Concerning Dr. John Morse's qualifications as an expert, the court notes the following facts. Dr. Morse received his Ph. D. in mechanical engineering from Louisiana State in 1988 following a bachelor's degree in mechanical engineering from John Brown University in 1984. Beginning in 1998 and ending in 1995, Dr. Morse taught engineering at the University of South Carolina. Specifically, Dr. Morse taught Senior Design, Thermal Systems and Physics. Dr. Morse is a licensed professional engineer in South Carolina, North Carolina, and New York. As for publications discussing a range of engineering principles, Dr. Morse has twenty referenced journal and conference paper topics and sixty non-referenced conference presentation papers. Plaintiff's Brief at 9.
Federal Rule Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
Dr. Morse has experience in ladder design and ladder safety. Dr. Morse presented a report to the American Society of Agricultural Engineers and the Canadian Society of Agricultural Engineers on the problems associated with ladder slide-out. Further, Dr. Morse designed a ladder that conforms to the alternative design he advocates. There is a provisional patent on the design. Finally, Dr. Morse has been involved in ladder accident reconstruction investigations since 1996.
For the reasons stated above, this court concludes that Dr. Morse has sufficient knowledge through training, education and experience to be considered qualified to offer an expert opinion regarding ladder design and safety.
II. Daubert Factors
Although the Court has found Dr. Morse is qualified as an expert on the topic of ladder design, the court also must evaluate the reliability of the methodology that Dr. Morse employed to formulate his opinions. When assessing reliability, the court should consider factors including whether the proposed expert's theory, methodology or technique (1) can be and has been tested, (2) has been subjected to peer review, (3) has a known or potential rate of error, and (4) has been generally accepted by the scientific community. Jaurequi v. Carter Manufacturing Co., Inc., 173 F.3d 1076, 1082 (8th Cir. 1999). This list of factors is not exclusive. Id. Further, "[n]ot every guidepost outlined in Daubert will necessarily apply to expert testimony based on engineering principles and practical experience . . . ." Id.
Louisville argues that the methodology used by Dr. Morse to develop his opinions have not been subjected to peer review nor any form of scientific scrutiny and that his methodology is arbitrary.
Testing
Dr. Morse's expert report initially focuses on the fallibility of the ANSI tests and the inadequacy of its standards. Filing No. 76, Ex. A. Dr. Morse asserts that the inadequacy exists because ANSI uses a zero point for measuring ladder racking. Id. In discussing the faulty standard, Dr. Morse notes that racking is allowed because ladders are routinely used on uneven surfaces. The ANSI test is conducted on an even surface. In order to support his conclusions, Dr. Morse puts the standard through a series of tests.
The methodology behind Dr. Morse's testing of the ANSI standard and specific ladder models have been tested extensively by his employer, Ryan Engineering, and supervised by Dr. Morse. In his draft expert witness report, Dr. Morse discusses the technique used to test the degree a ladder racks in relation to the ANSI standards. Id. Initially, Dr. Morse performs the ANSI tests discussed above on the subject matter. Following the standard tests, Dr. Morse alters certain factors applying general engineering principles. These tests are the basis for Dr. Morse's theory that the ANSI test is inadequate. All the ladders tested passed the ANSI standard, including a dismantled ladder.
Concerning the actual testing of the FS2008 Ladder, Dr. Morse first performed the ANSI test on a comparable FS2008 ladder. The standard ANSI test put the ladder in the 7.67 range of racking. Filing No. 76 Ex. E. After testing a Louisville FS2008 ladder with the ANSI standard, Dr. Morse put a 1-1/15/32 block under one of the rear legs while it was in the racking position. With the block inserted, three legs of the ladder where touching the concrete while the other rested firmly on the block. Dr. Morse made a comparison of his findings with more stable ladders, the W3785 and Leifheit. Under the ANSI test the W3785 racked about 4.5 inches and the Leifheit 1 inch. Each ladder only sustained a 13/16 inch block. The relevance of these tests are two-fold. 1) to show the warning label on the FS2008 ladder that reads "use on a firm surface" does not conform to the ANSI standard, Filing No. 76, Ex. B at 4 1-3, and 2) that in excess of one and one-half inch in height is evidence that the racking of the FS2008 ladder is excessive and the use of the ladder is unsafe. Specifically, when the ladder is racked too much to accommodate an the uneven surface, it becomes easy to tip over.
Factual Basis of Dr. Morse's Reports
Louisville argues that Dr. Morse's testimony should be excluded because Dr. Morse submitted his draft report prior to visiting the site of the accident. In support of this argument, Louisville cites to United Phosphorous Limited v. Midland Fumigant, Inc., 173 F.R.D. 675 (D. Kan. 1997). In Midland, the court found that the expert's lack of information about the case made it difficult for him to testify about the matters at issue. 173 F.R.D. at 688. In the present case, Dr. Morse's accident reconstruction analysis involved a review of the accident site, testing of comparable ladders, interviewing Mr. Fitzpatrick, and interviewing several witnesses.
For additional support of this assertion, Louisville draws the court's attention to the draft expert report, pages 15-17. Filing No. 76, Ex. A. These pages make general conclusions about the FS2008 ladder manufactured by Louisville. Therefore, it was not necessary for Dr. Morse to visit the site prior to providing his general opinions about the FS2008 ladder. Moreover, Dr. Morse did possess a substantial amount of facts about the events giving rise to the accident and the ladder to form a valid opinion. Prior to forming the opinions in the draft report, Dr. Morse talked with Mr. Fitzpatrick on the phone and viewed pictures of the ladder. Defendant's Brief in Support ("Defendant's Brief) at 14. Further, Dr. Morse conducted testing on comparable ladders and looked over his prior research data on ladder racking. Finally, following the draft report, Dr. Morse physically examined the ladder from which Mr. Fitzpatrick fell, the accident site, and interviewed witnesses. Filing No. 76, Ex. B at 60.
Next, Louisville notes that "Morse had to reject certain testimony of the plaintiff to justify his theory blaming the ladder." Defendant's Brief at 15. The referenced exerts from the deposition of Dr. Morse, relate to Mr. Fitzpatrick's statements that he walked up the ladder one time prior to the accident. Dr. Morse's testimony in the deposition is that most likely Mr. Fitzpatrick was unaware of the change in how he ascended the ladder, specifically, that a shift in weight from one step to another or side to side would not ordinarily be detected by someone. Therefore, Dr. Morse had sufficient knowledge of the facts before he formed his initial and updated opinions in the present case.
Actual Design
An additional factor considered by the Eighth Circuit is the expert's ability to produce for trial a product that comports to the alternative design urged by the expert. For example, in Peitzmeier, the court rejected the testimony of the expert Milner noting that Milner had never designed, built or tested a design meeting his theory. 97 F.3d at 296; see also Jaurequi, 173 F.3d at 1083 (the court noted that the expert had not tested or designed the alternative warning device he was advocating nor had any other company utilized such a device); Dancy v. Hyster Co., 127 F.3d 649, 651 (8th Cir. 1997) (the court noted that the expert's testimony that the alternative design was possible was not enough to support his theory).
Contrary to the facts presented in the above cases, Dr. Morse can name specific ladders, including his own, that conform to his proposed alternative designs. These are not hypothetical designs that are economically unsound. One design consists of the replacement of the open C-section rails with closed sections. Dr. Morse notes that several ladders with this construction rack less and are generally firm and safe for the user. Filing No. 76, Ex. A. An additional design replaces the spreader bars with a horizontal membrane. Ryan Engineering, through Dr. Morse, has designed a ladder composed of a horizontal membrane. Finally, Dr. Morse notes that Werner and several other manufacturers produce a ladder that consists of a similar platform as that in the Ryan design. The design provides racking resistance.
Peer Review
Although not specific to the problems associated with the racking of ladders, Dr. Morse proposed alternative ladder design theories to the American Society of Agricultural Engineers and the Canadian Society of Agricultural Engineers. Prior to delivering his presentation to the society, Dr. Morse submitted an abstract of his paper. The abstract was accepted and he was afforded the opportunity to present his theories to the societies membership. Filing No. 76, Ex. B at 21.
Acceptance By Scientific Community
Dr. Morse did not set forth evidence that his theories are accepted by others in the scientific community but the facts suggests that some acceptance exists. For example, other ladders are manufactured utilizing the design alterations suggested. It is therefore evident that other manufactures accept Dr. Morse's theories that it is economical to provide safer ladders that rack substantially less then the FS2008 ladder. Additionally, ANSI recognizes that excessive racking is a prominent cause of ladder accidents. The rationale to the ANSI standards includes a revision to the then existing tests. Apparently, ANSI has found it necessary to revise its own testing procedures over time due to the injuries caused by the excessive racking of ladders.
Independent Research
Finally, in evaluating whether an expert opinion would assist the trier of fact, an additional factor is whether the expert proposes to testify about matters growing naturally and directly out of independent research or study, as opposed to opinions developed expressly for the purpose of testifying in litigation. "The former provides important, objective proof that the research comports with the dictates of good science." Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 303 (6th Cir. 1996), cert. denied, 118 S.Ct. 67 (1997), citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (on remand), 43 F.3d 1311, 1316-17 (9th. Cir. 1995). The record indicates that Dr. Morse has performed research independent of this cause of action.
Dr. Morse has testified in at least three products liability cases dealing with ladder design prior to the present case. Furthermore, as noted above, Dr. Morse has performed testing and designs outside the present case, such as his presentation to the American Society of Agricultural Engineers and the Canadian Society of Agricultural Engineers and his own ladder design. Although the presentation was not specific to the problems associated with ladder racking, it addressed ladder safety and design. Therefore, Dr. Morse has conducted ladder testing and design outside the confines of this litigation.
In conclusion, Dr. Morse is qualified to testify and the methodology behind his theories is reliable. Accordingly, Louisville's Daubert motion in limine to exclude John S. Morse from testifying (Filing No. 74) is denied. However, the denial of Filing No. 74 does not mean that the testimony in question will be admitted without further consideration of its relevance and admissibility in the course of trial.