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Wells v. Kawasaki Motors Corp.

United States District Court, D. Utah

November 6, 2019

NICOLE WELLS, Plaintiff,
v.
KAWASAKI MOTORS CORP., U.S.A., a Delaware corporation, KAWASAKI HEAVY INDUSTRIES, LTD., a Japanese corporation, and H20 ZONE, LLC, an Arizona limited liability company, Defendants.

         MEMORANDUM DECISION AND ORDER:GRANTING [210] DEFENDANTS KAWASAKI MOTORS CORP., U.S.A. AND KAWASAKI HEAVY INDUSTRIES, LTD.'S MOTION TO EXCLUDE THE PROPOSED TESTIMONY OF PLAINTIFF'S EXPERT WITNESS, JOELLEN GILL; ANDGRANTING [221] DEFENDANTS KAWASAKI MOTORS CORP., U.S.A. AND KAWASAKI HEAVY INDUSTRIES, LTD.'S MOTION TO EXCLUDE THE PROPOSED TESTIMONY OF PLAINTIFFS' EXPERT, ANAND KASBEKAR

          David Nuffer United States District Judge

         Defendants Kawasaki Motors Corp., U.S.A. (“KMC”) and Kawasaki Heavy Industries, Ltd. (“KHI”) (collectively the “Kawasaki Defendants”) move to exclude the proposed testimony of Plaintiff Nicole Wells' (“Plaintiff”) expert witnesses Joellen Gill (the “Motion to Exclude Gill”)[1] and Anand Kasbekar (“Motion to Exclude Kasbekar”).[2] Plaintiff has designated Joellen Gill (“Gill”) as an expert to support Plaintiff's failure to warn claims that are part of Plaintiff's strict products liability and negligence causes of action against the Kawasaki Defendants.[3]Plaintiff has designated Anand Kasbekar (“Kasbekar”) as an expert to support her design defect claims included in her strict products liability and negligence causes of action.[4] The requested exclusion of these experts is central to the Kawasaki Defendants' contemporaneously filed Motion for Summary Judgment.[5]

         Plaintiff responded to these motions[6] and the Kawasaki Defendants replied in support.[7]Because Gill cannot be considered qualified and because her testimony is unreliable under Fed.R.Evid. 702, the Motion to Exclude Gill is GRANTED. Because Kasbekar's testimony is unreliable, the Motion to Exclude Kasbekar is also GRANTED.

         BACKGROUND

         Plaintiff alleges that she suffered an orifice injury during a trip to Lake Powell in 2015 when she fell off the back of a personal watercraft (“PWC”) manufactured by the Kawasaki Defendants.[8] Plaintiff maintains her injury is attributable to defects in the PWC. She brings strict products liability and negligence causes of action against the Kawasaki Defendants.[9] The defects in the PWC that Plaintiff specifically alleges are (a) inadequate warnings on the PWC and (b) that the design of the PWC's seat permitted riders to fall backwards as Plaintiff did.[10]

         Plaintiff designated Gill as a “human factors” expert and proposes that Gill testify to the ineffectiveness of the warning labels that were placed on the PWC[11]. Gill intends to offer the opinion that the Kawasaki Defendants “should have known that its warnings and instructions were ‘defective' and ‘likely to be ineffective'” because

a. Many riders would not see or read the Owner's Manual and Operating Instructions;
b. Users would not “find” and “choose to read” the on-product label that warns of the subject hazard because of its location, its “lengthiness/excessive verbiage, ” and because it contains information “that is in contradiction to what is commonly observed and so forth”-leading to Gill's conclusion that the label “would not likely motivate users to wear protective clothing;” and
c. The on-product label warning that “All riders must wear a wet suit bottom or clothing that provides equivalent protection. See Owner's Manual” is “ambiguous” as to the meaning of “equivalent protection.[12]

         Plaintiff designated Kasbekar to offer the expert opinion that the subject PWC is defective and not reasonably safe because it lacked a more sculpted seat that, according to Kasbekar, would have been safer because it would have minimized a rider's rearward sliding when the PWC accelerated.[13]

         The Kawasaki Defendants seek the exclusion of Gill and Kasbekar's proposed testimony under Fed.R.Evid. 702. Specifically, the Kawasaki Defendants argue that Gill lacks qualifications to be considered an expert under that rule of evidence and that her proposed testimony is unreliable.[14] As to Kasbekar, the Kawasaki Defendants argue that exclusion is appropriate because his proposed testimony is also unreliable.[15]

         DISCUSSION

         Federal Rule of Evidence 702 imposes on district courts a gatekeeping function regarding the admissibility of expert opinions.[16] The decision to permit or exclude proposed expert witness testimony hinges on a two-step analysis.[17] First, the district court must determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or education' to render an opinion.”[18] Second, the court “must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony.”[19]

         In the face of a 702 challenge, the party that designated the expert must demonstrate that the expert is reliable and that the proposed testimony is relevant.[20] In determining whether a proposed expert is reliable, a district court is to consider the following nonexclusive factors:

(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community.[21]

         Although these factors are not exhaustive or definitive, the focus of a reliability analysis under 702 “should not be upon the precise conclusions reached by the expert, but on the methodology employed in reaching those conclusions.”[22] “Any step that renders the [expert's] analysis unreliable ... renders the expert's testimony inadmissible.”[23] After applying these standards to the proposed expert testimony of Gill and Kasebekar, it is appropriate to exclude them from testifying at trial.

         Joellen Gill lacks the requisite qualifications and her proposed testimony is unreliable under Fed.R.Evid. 702.

         Under the first step of a 702 analysis of proposed expert testimony, an expert is considered qualified to testify if the expert has “sufficient specialized knowledge to assist the jurors in deciding the particular issues in the case.”[24] Experts who “possess[] knowledge as to a general field” but “lack specific knowledge do[] not necessarily assist the jury.”[25] The United States Court of Appeals for the Tenth Circuit has determined that when a proffered expert has not conducted research or published in the area on which they have been designated to opine, it is appropriate to exclude that expert as unqualified under Rule 702.[26]

         Here, Gill admits that she has not published articles in her designated field of human factors engineering[27] But what is more concerning is that her opinion-that users would not find and read the “ambiguous” warning label on the subject PWC-was not supported by any testing, such as conducting a survey of PWC users.[28] Gill's opinion is based on her general knowledge of the effectiveness or ineffectiveness of warning labels but she lacks specific knowledge as to the effectiveness of PWC warning labels or as to the effectiveness of this label for PWC users. This knowledge could have been obtained by a survey. These ...


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