The opinion of the court was delivered by: SARAH VANCE, District Judge
Before the Court are the following motions:
1. Motion in limine of plaintiffs, John and Cynthia Scordill,
to exclude defense expert testimony and video demonstrations.
2. Plaintiff's motion to amend the pre-trial order.
3. Plaintiff's objection to certain defense exhibits.
4. Omnibus motion in limine of defendant, Louisville Ladder Group, LLC.
5. Defendant's motion to preclude plaintiff from referring to certain
6. Defendant's motion to exclude evidence regarding the RIDGID recall.
7. Defendant's objections to exhibits identified by plaintiffs in the
pre-trial order and in plaintiffs' bench book.
The Court addresses each of the parties' motions below.
John Scordill is a welder. He purchased two stepladders at a Home Depot
in 1997 or 1998. Both ladders were Davidson Model 592-61 stepladders,
ladders that stand six feet tall and that are made of fiberglass rails
and aluminum steps. The ladders were manufactured in 1996 by Louisville
Ladder at a manufacturing facility in Monterrey, Mexico. While working on
a job in Orleans Parish on February 16, 2002, Scordill placed one of the
stepladders the incident or subject ladder alongside a
wall, He asserts that he climbed up to the second rung of the ladder and
turned around so that his back was to the ladder. He then reached up with
his right hand to weld an I beam to metal plates that had been
installed the day before. He leaned his left elbow against the wall to
steady himself, his left hand grabbing his right wrist to support the
welding gun in his right hand. Scordill avers that the ladder then
buckled beneath him. Scordill fell and sustained numerous injuries.
Plaintiff's sued defendant Louisville Ladder in state court and alleged
claims of unreasonably dangerous manufacturing, unreasonably dangerous
design, and failure to adequately warn.
Plaintiff's assert that the ladder failed along its left front
rail, just below the first rung of the ladder.*fn1 Defendant removed the
case to this Court. The Court granted defendant's motion for partial
summary judgment and dismissed with prejudice plaintiffs' inadequate
warning and design defect claims but denied defendant's motion for
summary judgment on plaintiffs' manufacturing defect claim. The Court
also denied the defendant's motion to exclude the report and testimony of
plaintiffs' expert witness, Greg Garic. The parties have filed several
motions in limine and objections to the other party's exhibits,
and the Court addresses each motion in turn below.
II. Plaintiff's Motion To Exclude Defense Expert Testimony and
Plaintiff's now move to exclude the testimony of defendant's expert
witnesses, Dr. Charles Manning, Michael Van Bree, and John Tickle, as
well as two demonstration videos.
A. Defense Expert Testimony
Plaintiff's seek to exclude the report and testimony of defendants'
experts Dr. Manning, Van Bree, and Tickle. Dr. Manning, a registered
Professional Engineer, prepared an expert
report in this case in which he concludes that the subject ladder
was well manufactured and that Scordill's position on and misuse
of the ladder caused his accident. Van Bree is Louisville Ladder's
Product Safety Officer/Engineer. Tickle is the president of Strongwell,
the company that produced the fiberglass for the rails of the subject
ladder. Strongwell tested coupons of the fiberglass from the rails of the
The Federal Rules of Evidence govern plaintiffs' motion. See Mathis
v. Exxon Corporation, 302 F.3d 448
, 459 (5th Cir. 2002).
Rule 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, if (1) the testimony is
based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied the
principles and methods reliably to the facts of
FED. R. EID. 702. This rule applies not only to testimony based on
scientific knowledge, but also to testimony of engineers and other
experts that is based on technical or specialized knowledge. See
Kumho Tire Co. v. Carmichael, 526 U.S. 137
, 141 (1999). The rule
requires the trial court to act as a "gatekeeper," ensuring that any
scientific or technical expert testimony is not only relevant, but also
reliable. See Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
In Daubert, the Supreme Court identified factors that bear on
the issue of reliability of expert testimony, which include: "(1) whether
the expert's theory can be or has been tested; (2) whether the theory has
been subject to peer review and publication; (3) the known or potential
rate of error of a technique or theory when applied; (4) the existence
and maintenance of standards and controls; and (5) the degree to which
the technique or theory has been generally accepted in the scientific
community." Moore v. Ashland Chem. Inc., 151 F.3d 269, 275 (5th
Cir. 1998) (citing Daubert, 509 U.S. at 593-95)); see also
Mathis, 302 F.3d at 460, A Rule 702 inquiry into the reliability of
expert testimony is a flexible and necessarily fact specific
inquiry., See Seatrax, Inc. v. Sonbeck Intl., Inc.,
200 F.3d 358, 372 (5th Cir. 2000). The above list of factors "neither
necessarily nor exclusively applies to all experts in every case." Kumho
Tire, 526 U.S. at 141. Defendants, as the party offering the expert,
bear the burden of proving by a preponderance of the evidence that the
proffered testimony is reliable. See Mathis, 302 F.3d at 459-60.
In addition to the requirement of reliability, the evidence presented
by the expert must satisfy the standard of relevancy. See Kumho
Tire, 526 U.S. at 152 (stating that the purpose of
Daubert's "gatekeeping" requirement is to ensure the reliability and
relevancy of expert testimony). The expert's testimony should "assist the
trier of fact to understand the evidence or to determine a fact in
issue. . . . Rule 702's `helpfulness' standard requires a valid
scientific connection to the pertinent inquiry as a precondition to
admissibility." Daubert, 509 U.S. at 591-92 (internal quotations
The Court notes that its role as a gatekeeper does not replace the
traditional adversary system and the place of the jury within the system.
See Daubert, 509 U.S. at 596. As the Daubert Court noted,
"[v]igorous cross examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Id. (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
The Fifth Circuit has added that, in determining the admissibility of
expert testimony, a district court must defer to "`the jury's role as the
proper arbiter of disputes between conflicting opinions. As a general
rule, questions relating to the bases and sources of an expert's opinion
affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury's consideration.'"
United States v. 14.38 Acres of Land, More or Less Sit. in Leflore
County, Miss., 80 F.3d 1074, 1077 (5th Cir.
1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420,
422 (5th Cir. 1987)).
To prepare his expert report in this case, Dr. Manning examined the
incident ladder. He reviewed and analyzed design drawings of the incident
ladder, and he also analyzed the test results of fiberglass samples
removed from the incident ladder. Dr. Manning attended the depositions of
both Scordill and plaintiff's expert Greg Garic and later reviewed the
deposition testimony of Scordill and Charles Untz, who witnessed the
accident, and Garic's written report. Dr. Manning also examined the
second ladder the exemplar ladder that Scordill purchased
in 1997 or 1998 along with the incident ladder. Dr. Manning conducted a
variety of American National Standards Institute ("ANSI") tests on a new
ladder of the same model as the subject ladder. The tests included the
ANSI 8.5.1 Compression Test, the ANSI 8.5.2 Side Rail Bending Test, the
ANSI 8.5.4 Step to Side Rail Shear Strength Test,
and the ANSI 8.5.11 Rail Cantilever Bending Test. He also altered the new
ladder that he tested to simulate the alleged manufacturing defects
identified by plaintiffs' expert Garic in an effort to disprove Garic's
theories. For example, Dr. Manning states that he modified the left rail
of his test ladder to simulate rivet placement severely
out of specification and then measured the stresses on the ladder.
In his expert report, Manning concludes that the subject ladder was well
designed and well manufactured.*fn2 Furthermore, Dr. Manning opines that
the subject ladder was capable of carrying Scordill's load and that the
accident was caused by his misuse and poor positioning on the ladder at
the time of the accident.*fn3 Dr. Manning concludes that the damage to
the ladder did not cause the accident but rather occurred during the
Plaintiff's do not contest Dr. Manning's qualifications as an expert.
Rather, they contest the reliability and relevancy of his testimony and
argue that Dr. Manning's opinion is based on events that did not occur
and on speculation. Plaintiff's argue that Dr. Manning ignored the facts
of the case in coming to his conclusion; specifically, they criticize his
failure to account for the twisting motion of the ladder as it fell and
its resulting position on the floor. Plaintiff's also criticize the
modifications Dr. Manning made to the ladder during his testing as
manipulations that are inconsistent with the facts of the
case. Plaintiff's also find fault with Dr. Manning's use of a new,
non worn exemplar ladder, instead of the incident ladder, in his
testing. Finally, they fault Dr. Manning's testing procedures and argue
that his opinions are not relevant or reliable because they are based on
ANSI Standards and ANSI tests that are applicable to a new ladder.
Plaintiff's complain that the ANSI tests performed by Dr. Manning are
misleading and inapplicable to a ladder that has been in use or "in
To determine whether an expert's testimony is sufficiently reliable,
the Court first considers whether the Daubert factors noted
above are appropriate and then considers whether other factors are
relevant to the case at hand. See Black v. Food Lion, Inc.,
171 F.3d 308, 311-12 (5th Cir. 1999); see also Watkins v. Telsmith,
121 F.3d 984, 991 (5th Cir. 1997) (regardless of basis of expert's
opinion, Daubert's non exclusive factors are relevant to
initial reliability assessment). Dr. Manning's conclusions are based on
ANSI standard tests and stress testing of the ladder with simulated
defects. The ANSI standard "prescribes rules governing the safe
construction, design, testing, care and use of portable reinforced
plastic ladders."*fn5 Therefore, to the extent that Dr. Manning used
tests, his methodology has been tested. See Moore, 151
F.3d at 275 (citing Daubert, 509 U.S. at 593-95)).
With respect to the second factor, whether the theory has been subject
to peer review and publication, the Court notes that Dr. Manning's
opinion is based on the very specific facts of this case and does not
lend itself to peer review. Dr. Manning has not generated a study that is
subject to repetition but instead has applied generally accepted
engineering principles and concepts utilized in stress analysis to the
facts of this accident. As a result, the Court concludes that the second
Daubert factor does not apply. The Court also finds that the
third Daubert factor is inapplicable, because it involves the
known or potential rate of error of the technique utilized by the expert.
In this case, Dr. Manning did not develop a particular scientific
procedure to reach his conclusions. With respect to the fourth factor,
the Court notes that this factor applies to the extent that Dr. Manning
utilized the industry accepted, ANSI standard tests. These tests
are standardized, and there is no suggestion that Dr. Manning failed to
follow the standard testing procedures. Further, the fourth factor is
inapplicable to the extent that Dr. Manning designed tests that are
specific to this case. Although the plaintiffs dispute the applicability
of Dr. Manning's tests, the applicability of the tests to the issues in
this case is the proper subject for cross examination. The
fifth standard, the degree to which the technique or theory has been
generally accepted in the scientific community, is applicable to the
extent that Dr. Manning's analysis applied generally accepted engineering
principles and utilized the ANSI standard, in addition to his own
training and experience in the fields of engineering and accident
reconstruction, to the factual situation specific to this case.
Plaintiff's contend that Dr. Manning's testimony is irrelevant because
he failed to consider the twisting motion described by the plaintiff. The
Court finds that this failure does not render Dr. Manning's testimony
irrelevant. Rather, the jury can consider Dr. Manning's failure to
account for the twisting described by plaintiff when it determines what
weight to give Dr. Manning's testimony. See 14.38 Acres of Land,
80 F.3d at 1077; see also Hynes v. Energy West, 211 F.3d 1193,
1205 (10th Cir. 2000) (upholding district court's admission of expert
testimony when primary dispute regarded the application of reliable
scientific principles to the facts of the case, which the court
considered "largely a matter of cross examination and
impeachment"). Likewise, plaintiffs' argument that Dr. Manning's
testimony is irrelevant because the ladder that he used was not the
subject ladder is also misplaced. Dr. Manning could not test
the subject ladder due to the damage it sustained in the accident,
and plaintiffs will not permit the defendant to test the second ladder
purchased around the same time as the subject ladder. Dr. Manning's tests
were performed on a ladder of the same make and model. Plaintiff's
contention that the ANSI tests performed by Dr. Manning are designed for
new and not used ladders can be raised through vigorous cross
examination. Further, the Court notes that plaintiff alleges that the
subject ladder suffered from the alleged manufacturing defect at the time
that it was manufactured, so that the ability of a new ladder with the
same defect, albeit simulated, to withstand stress is not irrelevant. The
Court finds that the ladder Dr. Manning tested is sufficiently similar to
the subject ladder and therefore his testimony may assist the jury to
determine a fact in issue. Again, the jury can consider that Dr.
Manning's tests were performed on a new ladder when it determines what
weight to afford his opinions.
The Court finds Dr. Manning's testimony sufficiently relevant and
reliable to reach the jury. As a result, the Court denies plaintiffs'
motion to exclude Dr. Manning's testimony.
Van Bree is a mechanical engineer and employee of the defendant,
Louisville ladder. In formulating his opinion, Van
Bree inspected the subject ladder and reviewed the materials in
this case, including, inter alia, Dr. Manning's testing and report. He
concluded that the damage to the ladder was caused by Scordill's fall and
could not have occurred during normal use of the ladder. He also opines
that Scordill's positioning on the ladder before his fall was unsafe,
affected the stability of the ladder, and increased the likelihood of an
The plaintiffs do not seriously question Van Bree's qualifications and
expertise in the design and manufacture of ladders. Nor do they question
the reliability of his methodology. Indeed, plaintiffs liken his
methodology and conclusions based on the application of general
engineering principles to the relevant facts in this case to those of
their own expert Garic. Plaintiff's contend, however, that, like Dr.
Manning, Van Bree fails to consider plaintiffs' assertion that the ladder
twisted as it fell and landed parallel to the wall. Just as the Court
found that this factor did not disqualify Dr. Manning, the Court
concludes that it does not disqualify Van Bree.
Plaintiff's also argue that Van Bree's testimony should be excluded
because he is an employee of the defendant and not an independent expert.
The Court finds this argument unpersuasive. Such allegations of bias do
not render his opinion irrelevant.
Instead, bias is an appropriate topic for cross
examination, and the jury may consider any bias when it weighs his
opinion against the rest of the evidence in this case.
The Court finds Van Bree's testimony sufficiently relevant and reliable
to reach the jury. As a result, the Court denies plaintiffs' motion to
exclude Van Bree's testimony in its entirety. The Court notes, however,
that Van Bree's testimony about the alleged manufacturing defects and
whether they weakened the ladder in this case is cumulative of Dr.
Manning's and John Tickle's testimony. Under Rule 403, the Court may
exclude relevant evidence when its probative value is outweighed by
considerations of the "needless presentation of cumulative evidence."
FED. R. EVID. 403; see also Aetna Cas. & Sur. Co. v. Guynes,
713 F.2d 1187, 1193 (5th Cir. 1983) (noting that "[i]t is well within the
discretion of a district court to limit the number of expert witnesses
who testify at trial"). The Court therefore limits Van Bree's testimony
to issues that do not overlap with the testimony of defendant's other
Tickle is an industrial engineer and President of Strongwell
Corporation, the manufacturer of the green fiberglass rails of the
subject ladder. Tickle examined and performed tests on two samples of the
fiberglass from the subject ladder, one coupon
from each of the incident ladder's left and right rails. He
reviewed photographs of the subject ladder, Scordill's deposition, and
relevant standards governing the manufacture and testing of fiberglass
ladder rail. Further, Strongwell performed a variety of strength,
modulus, flexural, and tensile tests on the fiberglass samples. Tickle
concluded that the subject ladder fiberglass exceeded ANSI specifications
and minimum performance requirements. He opined that the fiberglass did
not fracture or crack during normal ladder use.
The plaintiffs do not question the Tickle's qualifications, nor do they
question the reliability of his methodology. Rather, plaintiffs argue
that, like Manning and Van Bree, Tickle fails to recognize Scordill's
assertion that the ladder twisted as it fell and landed parallel to the
wall. Again, the Court concludes that Tickle's testimony is not
inadmissible on this ground. Plaintiff's also argue that Tickle's opinion
is irrelevant because the samples of fiberglass that he tested did not
come from the point of failure. The Court finds, however, that the
fiberglass that Strongwell tested came from the subject ladder and is
sufficiently similar to the fiberglass on the lower portion of the ladder
rail for the testing thereon to be probative in this case. Any questions
raised by the plaintiff as to the varying tensions on the ladder should
affect the weight that the jury
gives to the testimony rather than its admissibility. See 14.38
Acres of Land, 80 F.3d at 1077.
The Court finds Tickle's testimony sufficiently relevant and reliable
to reach the jury. As a result, the Court denies plaintiffs' motion to
exclude Tickle's testimony in its entirety. Just as the Court limits Van
Bree's testimony, the Court limits Tickle's testimony to topics that do
not overlap with the testimony of defendant's other expert witnesses.
Plaintiff seeks to exclude two video demonstrations. The first video
was created by Engineering Systems, Inc. (ESI) and contains two
demonstrations: one with a cartoon "stick man" falling off of a ladder
and one with a live actor standing on a step ladder that tips over
followed by a dummy falling on a partially propped up ladder. The Court
excluded the "stick man" video demonstration for reasons stated orally on
the record on July 2, 2003. The second video is an excerpt of Garic's
deposition, in which defendant's attorney jumped up and down on the steps
of the exemplar ladder.
The district court has broad discretion to admit evidence of
experimental tests. See Williams v. Briggs Co., 62 F.3d 703,
707-08 (5th Cir. 1995); Barnes v. General Motors Corp.,
547 F.2d 275, 277 (5th Cir. 1977). The standard by which the Court
determines the admissibility of experimental evidence depends upon
whether it is being offered to reenact the accident or to demonstrate
general scientific principles. See Wallace v. General Motors
Corp., 1997 WL 269498, at *1 (E.D.La.) (citing McKnight v.
Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1993));
Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993).
Experimental evidence falls on a spectrum with "the foundational standard
for its admissibility . . . determined by whether the evidence is closer
to simulating the accident or to demonstrating abstract scientific
principles." See McKnight, 36 F.3d at 1402 (citing Fusco v.
General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993)). The
conditions of experimental tests do not have to be identical to the case
at hand but should be "nearly the same in substantial particulars as to
afford a fair comparison in respect to the particular issue to which the
test is directed." Barnes, 547 F.2d at 277. The purpose behind
the substantially similar requirement is to avoid the risk of misleading
members of the jury who may attach exaggerated significance to the
evidence. See id. If an experiment recreates conditions similar
to the accident but does not intend to replicate it, the Court will
"balance the probative value of the evidence against the potential for
misunderstanding by the jury" and "take steps to minimize the misleading
Wallace, 1997 WL 269498, at *1.
i. The ESI Video Demonstration
The plaintiffs claim that the video should be excluded because, as a
video re-enactment, it lacks substantial similarity to the accident in
question and therefore is misleading. In the demonstration, the live
actor is on the fifth step of the ladder, not the second step as occurred
in the accident. After the live actor tips the ladder over, the dummy
falls on a ladder raised on the top end with a brace or line. The
plaintiffs allege that the upward force of the propped up ladder worked
against the downward force of the falling dummy to cause the damage seen
in the video, and therefore the demonstration is not representative of
the actual accident in this case. Plaintiff's also contend that, in the
video, the ladder falls on its side with no twisting motion, while Mr.
Scordill's testimony indicates that the ladder twisted and did not fall
straight over on its side.
Defendant argues that the demonstration is not intended to be a
re-enactment of the accident but instead demonstrates the physical damage
that a ladder can sustain as a result of such a fall. It argues that the
video shows that the damage on the incident ladder could have been caused
by Mr. Scordill's fall and not by a manufacturing defect.
The Court concludes that the video demonstration is likely
to confuse and mislead the jury and its prejudicial effect
substantially outweighs its probative value. The Court therefore excludes
the demonstration under Federal Rule of Evidence 403. First, the
demonstration shows an individual falling from a ladder, which is what
plaintiffs allege occurred in this case. Defendant contends that Scordill
caused the inward bending and damage to the lower ends of the ladder
rails when he fell on the ladder and argues that the video of a person
falling off a ladder supports its argument. In light of the analogous
situations, the jury could easily be misled into believing that the video
is a re-enactment of the accident and consequently attach exaggerated
significance to the evidence. Also, the portrayal of the person falling
off the ladder as a dummy is inherently prejudicial to the plaintiff.
Further, the general scientific principles allegedly demonstrated by the
video must be relevant to this case. In the demonstration, the ladder is
propped up and stationary at the time the dummy impacts the ladder,
unlike Scordill's accident. Also, the dummy is dropped from a position
that is higher than the height from which Scordill fell when he fell off
the second rung of the ladder. The significant differences between the
video demonstration and the facts of this case decrease its probative
value in this case. Moreover, the general scientific principles that
defendant asserts that this
video demonstrates can easily be explained by defendant's experts
without the aid of this prejudicial demonstration.
ii. The Garic Deposition Video
The second demonstration video is an excerpt of the deposition of
plaintiff's expert Greg Garic, in which defendant's attorney jumped up
and down on the steps of the exemplar ladder. The deposition is not
offered for what Garic had to say, but to show what defense counsel did.
Under Federal Rule of Civil Procedure 32, deposition testimony may be
used for "any . . . purpose permitted by the Federal Rules of Evidence."
The video of the defense attorney's actions amounts to making the
attorney the witness. An attorney may not act as a witness in this
manner, and the admission of the deposition for such a purpose is not a
permissible use under the Federal Rules of Evidence. Garic will testify
at trial, and the defendant is free to cross examine him on the
issues covered in the deposition.
III. Plaintiff's Motion to Amend the Pre-Trial Order
Plaintiff moves to amend the pre-trial order to add as an identified
exhibit four color photographs of Scordill's welding shop in his
backyard. Plaintiff's fail to establish a valid reason why these
photographs were not identified in the initial pre-trial order.
Plaintiff's contend that the photographs are relevant to show how
Scordill makes a living as a welder.
Plaintiff's also argue that Scordill's fall in his welding shop
approximately six months after the ladder accident was a result of the
injuries sustained in the ladder accident, and the pictures show the site
of Scordill's subsequent fall. The Court finds that these photographs are
unnecessary for the plaintiffs to establish the nature of Scordill's
work. Further, the Court grants defendant's motion to exclude references
to Scordill's subsequent fall in his workshop infra, and the
Court's ruling renders any pictures of the site of the fall irrelevant.
Introduction of these marginally relevant photographs would only unduly
prolong the trial and therefore the Court excludes them under Rule 403
IV. Plaintiff's Objection to Certain Defense Exhibits
Plaintiff objects to the following defense exhibits:
1. ANSI testing results for Model 592-60 and 61 6-foot stepladder
2. Results of Strongwell testing of fiberglass
3. Sales history for subject model ladder
4. Video of fiberglass manufacturing process at Strongwell
5. Accident Reconstruction Analysis, Inc. ("ARAI") testing ...