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February 17, 2004.


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 cases.

  6. Defendant's motion to exclude evidence regarding the RIDGID recall. Page 2

  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.

 I. Background

  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. Page 3 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 Video Demonstrations
  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 Page 4 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 subject ladder.

  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 the case.
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 Page 5 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 Page 6 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 omitted).

  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. Page 7 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)).

  I. Dr. Charles Manning

  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 Page 8 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 accident.*fn4

  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 Page 9 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 service."

  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 ANSI standard Page 10 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 Page 11 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 Page 12 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.

  ii. Michael Van Bree

  Van Bree is a mechanical engineer and employee of the defendant, Louisville ladder. In formulating his opinion, Van Page 13 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 accident.

  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. Page 14 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 expert witnesses.

  iii. John Tickle

  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 Page 15 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 Page 16 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.

  B. Demonstration Videos

  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 Page 17 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 effects." Page 18 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 Page 19 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 Page 20 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. Page 21 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 ...

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