Thibodeaux v. Wellmate, No. 2:2012cv01375 - Document 165 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting 95 Motion to Strike Testimony of Dr. Michael Wogalter. IT IS FURTHER ORDERED that, for the reasons stated herein, Pentairs human factors expert Stephen Young is prohibited from testifying as an expert in this matter. Signed by Judge Susie Morgan on 5/22/2016. (bwn)
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Thibodeaux v. Wellmate Doc. 165 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEL C. TH IBOD EAU X, Plain tiff CIVIL ACTION VERSU S N O. 12 -13 75 W ELLMATE, ET AL. D e fe n d an ts SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is Defendant’s m otion in lim ine to strike the proposed testim on y of Michael Wogalter. 1 For the reasons set forth below, the m otion is GRAN TED . BACKGROU N D Plaintiff J oel C. Thibodeaux (“Thibodeaux”) brings claim s against Defendant Pentair Water Treatm ent OH Com pany (“Pentair”) under the Louisiana Products Liability Act (“LPLA”). 2 Thibodeaux was injured after the bladder in a water pressure tank, m anufactured by Pentair, ruptured on a platform operated by Chevron USA In c., Thibodeaux’s em ployer and the plaintiff-in-intervention. 3 Thibodeaux alleges, am ong other theories, that the tank “is unreasonably dangerous because an adequate warning about the product has not been provided.”4 On February 5, 20 16, Pentair filed a m otion in lim ine with respect to the proposed testim ony of Michael Wogalter, Ph.D. 5 Thibodeaux offers Wogalter, a professor of 1 R. Doc. 95. LA. R EV. STAT. §§ 9:280 0 .51– .60 . 3 R. Doc. 93-20 at 5; R. Doc. 10 1 at 10 ; R. Doc. 10 2-1 at 8 . 4 R. Doc. 77 at 2. 5 R. Doc. 95. 2 1 Dockets.Justia.com psychology at North Carolina State University, as a hum an factors expert. 6 Thibodeaux filed an opposition to Pentair’s m otion in lim ine on February 23, 20 16. 7 STAN D ARD OF LAW Rule 70 2 of the Federal Rules of Eviden ce governs the adm issibility of expert witness testim ony: A witness who is qualified as an expert by knowledge, skill, experience, training, or education m ay testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the eviden ce or to determ ine a fact in issue; (b) the testim ony is based on sufficient facts or data; (c) the testim ony is the product of reliable principles and m ethods; and (d) the expert has reliably applied the principles and m ethods to the facts of the case. 8 The United States Suprem e Court’s decision in Daubert v. Merrell Dow Pharm aceuticals, Inc., 9 provides the analytical fram ework for determ ining whether expert testim ony is adm issible under Rule 70 2. Under Daubert, courts, as “gatekeepers,” are tasked with m aking a prelim inary assessm ent of whether expert testim ony is both relevant and reliable. 10 The party offering the expert opin ion m ust show by a preponderance of the eviden ce that the expert’s testim ony is reliable and relevant. 11 The reliability of expert testim ony “is determ ined by assessing whether the reasoning or m ethodology underlying the testim ony is scientifically valid.”12 In Daubert, the Suprem e Court enum erated several non-exclusive factors that courts m ay consider in 6 R. Doc. 10 2-15. R. Doc. 99. 8 F ED . R. E VID . 70 2. 9 50 9 U.S. 579 (1993). 10 See Pipitone v. Biom atrix, Inc., 288 F.3d 239, 243– 44 (citing Daubert, 50 9 U.S. at 592– 93). 11 Mathis v. Exxon Corp., 30 2 F.3d 448, 459– 60 (5th Cir. 20 0 2). 12 Knight v. Kirby Inland Marine Inc., 48 2 F.3d 347, 352 (5th Cir. 20 0 7). See also Burleson v. Texas Dep’t of Crim inal Justice, 393 F.3d 577, 584 (5th Cir. 20 0 4); Bocanegra v. Vicm ar Servs., Inc., 320 F.3d 581, 584– 85 (5th Cir. 20 0 3). 7 2 evaluating the reliability of expert testim ony. 13 “These factors are (1) whether the expert’s theory can or has been tested, (2) whether the theory has been subject to peer review an d publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and m aintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific com m unity.”14 The Suprem e Court has cautioned that the reliability analysis m ust rem ain flexible: the Daubert factors “m ay or m ay not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testim ony.”15 Thus, “not every Daubert factor will be applicable in every situation . . . and a court has discretion to consider other factors it deem s relevant.”16 The district court is offered broad latitude in m aking expert testim ony determ in ations. 17 As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight of the eviden ce rather than its adm issibility and should be left for the finder of fact. 18 “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the adm issibility of the expert opinion.”19 Thus, “[v]igorous crossexam ination, presentation of contrary evidence, an d careful instruction on the burden of proof are the traditional and appropriate m eans of attacking shaky but adm issible eviden ce.”20 The Court is not con cerned with whether the opin ion is correct but whether 13 Daubert, 50 9 U.S. at 592– 96. Bocanegra, 320 F.3d at 58 4– 85 (citin g Daubert, 50 9 U.S. at 593– 94). 15 Kum ho Tire Co., Ltd. v. Carm ichael, 526 U.S. 137, 150 (1999). 16 Guy v . Crow n Equip. Corp., 394 F.3d 320 , 326 (5th Cir. 20 0 4). 17 See, e.g., Kum ho Tire, 526 U.S. at 151– 53. 18 See Prim rose Operating Co. v. N at’l Am . Ins. Co., 38 2 F.3d 546, 562 (5th Cir. 20 0 4). 19 Rosiere v. W ood Tow ing, LLC, No. 0 7-1265, 20 0 9 WL 982659, at *1 (E.D. La. Apr. 8, 20 0 9) (citing United States v. 14.38 Acres of Land, 80 F.3d 10 74, 10 77 (5th Cir. 1996)) (em phasis added); W olfe v. McN eil-PPC, Inc., No. 0 7-348, 20 11 WL 167380 5, at *6 (E.D. Pa. May 4, 20 11). 20 Pipitone, 288 F.3d at 250 (quoting Daubert, 50 9 U.S. at 596) (internal quotation m arks om itted). 14 3 the preponderance of the evidence establishes that the opin ion is reliable. 21 “It is the role of the adversarial system , not the court, to highlight weak eviden ce.”22 If the court concludes that a “‘jury could adeptly assess [the] situation using only their com m on experience and knowledge,’ there is no need for a full Daubert analysis”23 because the testim ony would not “help the trier of fact to understand the evidence or to determ ine a fact in issue.”24 “On the other hand, if the Court concludes that expert testim ony would be helpful to assist the trier of fact, then Daubert’s im pact m ust be considered.”25 AN ALYSIS In Wogalter’s report, Wogalter renders an opinion on the adequacy of the warnings and instructions associated with the Wellm ate 12 tank and concludes that the product’s warning system is defective. 26 Wogalter bases his conclusion on three factors: salience of the warning, com prehension of the warning’s content, and users’ beliefs regarding the safety of the product. 27 The Court finds that the m atters on which Wogalter offers opinions are within the com m on understanding of the average juror and that Wogalter’s opinions do not satisfy the requirem ent of Rule 70 2(a) that an expert’s knowledge “help the trier fact to 21 See Johnson v. Arkem a, In c., 685 F.3d 452, 459 (5th Cir. 20 12). Prim rose, 38 2 F.3d at 562. 23 In re FEMA Trailer Form aldehy de Products Liab. Litig., No. MDL 0 7-1873, 20 0 9 WL 2169224, at *3 (E.D. La. J uly 15, 20 0 9) (quoting Peters v. Five Star M arine Serv., 898 F.2d 448 , 450 (5th Cir. 1990 )). 24 F ED . R. E VID . 70 2(a). 25 FEMA, 20 0 9 WL 2169224, at *3. 26 R. Doc. 10 2-12 at 4. Curiously, Wogalter identifies only one warn in g, the warnin g on the drain assem bly pipe, that Pentair m ay have placed on the tan k. R. Doc. 10 2-12 at 8 – 10 . The parties agree, however, that Wellm ate 12 tanks m anufactured from 20 0 3 until late 20 0 8 featured a data and warning label on the tan k’s exterior. See R. Doc. 93-1 at ¶ 14; R. Doc. 10 1-2 at ¶ 14. Wogalter does not consider or address the data and warnin g label in his report. See R. Doc. 10 2-12. 27 R. Doc. 10 2-12 at 11– 12. 22 4 understand the eviden ce or determ ine a fact in issue.”28 For exam ple, with respect to salience, Wogalter states in his report: A warning m ust be noticed first and then exam ined. . . . Because the label was to be located on a pipe assem bly at the bottom of the Wellm ate tank, it was not positioned in the central visual field of the operator. While the operator m ay decide to get down on his/ her knees to exam ine the label, given the print size and when com bined with foreseeable weather-related degradation, it would be even m ore difficult to read. . . . I consider it to be a defective warning because of both placem ent and legibility affecting and attention[,] attraction[,] and m aintenan ce. 29 With respect to com prehension, Wogalter states, “It is well known from previous research within the hum an factors literature . . . that explicit warnings are better at inform ing product users about the hazard, consequences and the instructions than non-explicit or general warnings.”30 With respect to beliefs, Wogalter explains, “Beliefs are clusters of attitudes and m em ories that can be shaped from previous experiences. . . . [I]t was critical that the warnings be very well designed to overcom e inappropriate/ inaccurate beliefs about the safety of a product.”31 Based on his consideration of salience, com prehension, and beliefs, Wogalter concludes the Wellm ate 12 tank’s warning system is defective, determ ining that “[t]he on-product warning label should have been prom inently displayed an d included m essage text with explicit inform ation about the hazard, how to avoid the hazard, and the consequences of failing to com ply.”32 These m atters, however, are not technical, specialized, or outside the understanding of the average juror. Indeed, “[t]he adequacy of the warning is a factual issue which the jury can handle without expert help from either side.”33 Accordingly, the Court finds that Wogalter’s testim ony would not 28 F ED. R. E VID. 70 2. Id. at 10 – 11. 30 Id. at 11. 31 Id. at 12. 32 Id. at 13. 33 Calvit v. Procter & Gam ble Mfg. Co., 20 7 F. Supp. 2d 527, 529 (M.D. La. 20 0 2). 29 5 assist the jury, and there is no need for a full Daubert analysis. 34 Wogalter “seem s to play the role of an ‘uber-juror’ rather than as an expert, offering opinions that invade the province of the jury.”35 The Court will not allow any expert to testify regarding his or her perception of the adequacy of the warnings, 36 as the jurors will have the sam e appreciation for the warnings. 37 In addition, “conflicting expert opinions [regarding the warning system ’s adequacy] will not assist, indeed, they are m ore likely to confuse, the jury.”38 Accordingly, Pentair’s m otion in lim ine to exclude the proposed testim ony of Wolgalter will be granted, and the Court sua sponte rules that no hum an factors expert m ay testify in this case and no expert m ay provide testim ony regarding his or her perception of the adequacy of the tank’s warnings. 39 CON CLU SION IT IS ORD ERED that Pentair’s m otion in lim ine to strike the proposed testim ony of Michael Wogalter is GRAN TED . IT IS FU RTH ER ORD ERED that, for the reasons stated above, Pentair’s hum an factors expert Stephen Young is prohibited from testifying as an expert in this m atter. 40 N e w Orle a n s , Lo u is ian a, th is 2 2 n d d ay o f May, 2 0 16 . ___________ _______ _ _______ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 34 FEMA, 20 0 9 WL 2169224, at *3. Id. 36 Pentair also offers a hum an factors expert, Stephen Young, Ph.D., who would testify about the adequacy of the tank’s warn ings and instructions. See R. Doc. 114-3 at 4. 37 See W ilson v. Thom pson/ Center Arm s Co., 20 0 7 WL 768 80 92, at *1 (E.D. La. 20 0 7). 38 Calvit, 20 7 F. Supp. 2d at 529. 39 See FEMA, 20 0 9 WL 2169224, at *4; W ilson, 20 0 7 WL 768 80 92, at *1; Calvit, 20 7 F. Supp. 2d at 529. 40 Young would also testify about the adequacy of the tank’s warnin gs and instructions. See R. Doc. 114-3 at 4. 35 6
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