United States District Court, E.D. Louisiana
February 17, 2004.
JOHN SCORDILL III, CYNTHIA SCORDILL, VERSUS LOUISVILLE LADDER GROUP, LLC
The opinion of the court was delivered by: SARAH VANCE, District Judge
ORDER AND REASONS
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)).
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
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.
ii. Michael Van Bree
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
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
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.
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
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 video
6. ARAI testing photographs
7. ARAI test ladders
8. ESI demonstrative videos
9. Demonstration with Garic and the exemplar ladder
10. Plaintiff's petition from the Chalmous Smith case
11. Report of Bobby Roberts regarding Scordill
12. Charity Hospital records
13. Plaintiff's' income tax returns
14. Significance of alleged manufacturing defect ? Flange weight
15. Underwriters Laboratories Inc. certification report, January 1997
The Court addresses these objections in turn.
A. ANSI testing results; Results of Strongwell testing of
fiberglass; ARAI testing video; ARAI testing photographs;
ARAI test ladders
This evidence relates to the testing performed by Dr. Manning and
Strongwell. For the reasons stated supra, the Court overrules plaintiffs'
B. ESI demonstrative videos; Demonstration with Garic and the
For the reasons stated above and orally on the record on July 2, 2003,
the Court excludes this evidence.
C. Sales history for subject model ladder
Defendant does not indicate how this information is relevant to the
issues in this case, and the Court is unable to discern
any relevance. The Court therefore excludes this evidence.
D. Video of fiberglass manufacturing process at Strongwell
In this case, plaintiffs argue that there is a manufacturing defect in
the fiberglass of the incident ladder. The Court finds that a video that
shows the fiberglass manufacturing process is relevant to the issue of
whether there was a defect in the manufacturing of the fiberglass. The
Court overrules plaintiffs' objection to this evidence.
E. Plaintiff's petition from Chalmous Smith
Plaintiff filed a lawsuit against Chalmous Smith and other defendants
in 1984 as a result of a motor vehicle accident. In the petition,
Scordill alleged that he suffered injuries that ? included a broken
arm; numerous contusions and abrasions; injury to his spine, particularly
in the cervical and lumbar region; and head injuries. Scordill also
alleged that "since the date of the accident, he has been unable to work,
probably for the rest of his life." Defendant seeks to admit this
petition as evidence that plaintiff has complained of permanent
disability before, yet he was able to return to work. Defendant also
offers it to show plaintiff had pre-existing neck injuries.
The Court finds that evidence of a 20-year old complaint of permanent
disability is of minimal probative value. As noted, plaintiff's
allegation was made in 1984, which is almost 20 years
ago. There are numerous intervening factors that could explain why
plaintiff alleged that he was "probably" disabled permanently in 1984 but
later was able to earn a living. This evidence invites a time ?
consuming exploration of whether the plaintiff's allegation in the
previous lawsuit was reasonable in light of the circumstances at the time
and into the nature of the changes in his physical condition over the
next 20 years. The Court excludes the evidence under Rule 403, because
"[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by . . . considerations of undue delay[.]" FED.
R. EVID. 403.
Defendant also argues that the allegations of injuries to Scordill's
neck are relevant to his alleged injuries in this case, particularly the
neck injuries that he alleges resulted from a later fall in his welding
shop. Since the Court excludes evidence related to plaintiff's later
fall, evidence of his earlier allegations of a neck injury are not
relevant to the issues in this case.
As a result, the Court sustains plaintiffs' objection to the petition
from the Chalmous Smith case.
F. Report of Bobby Roberts regarding Scordill
Defendant seeks to introduce the report of a Bobby Roberts, a
Vocational Evaluation Specialist, that Roberts prepared in
1986. The report indicates that Scordill had difficulty with higher
level motor coordination skills and spatial perception as a result of a
closed head injury that he suffered in 1984. Defendant argues that this
evidence is relevant to whether plaintiff's physical condition "affected
his ability to properly use the subject ladder." Plaintiff's physical
condition is irrelevant to whether the manner in which he actually used
the ladder was reasonably anticipated. Moreover, Robert's conclusions in
the report and the report itself are hearsay. The report is excluded.
G. Charity Hospital records
Defendants seeks to admit plaintiff's medical records from Charity
Hospital from 1992 to 1997. Defendant argues that the records are
relevant to plaintiff's pre-existing physical problems. Defendant has not
demonstrated which of these records relate to the type of injuries at
issue here. The Court reserves ruling on this objection until the
documents are offered at trial.
H. Plaintiffs' income tax returns
Defendant seeks to admit plaintiffs' tax returns as relevant to
plaintiffs' claims for past and future wages. Plaintiff's contend that
their tax returns are irrelevant to this issue. Plaintiff's argue that
their lost wages claims relate only to the
four ? month period during which Scordill was unable to work
due to the accident and the two to three month period during which he has
been unable to work due to surgery performed in January 2004. Plaintiff's
assert that they will present unimpeached testimony from contractors who
would have hired Scordill to perform welding work during the four months
he was unable to work. The Court finds, however, that the tax return
information on the amount Scordill earned in the years immediately
preceding his accident is relevant to the issue of what wages Scordill
could have earned during the relevant time periods. This information will
assist the jury in determining a reasonable estimate of Scordill's lost
earnings. The Court therefore overrules plaintiff's objection to this
I. Significance of alleged manufacturing defect ? Flange
Defendant indicates that it does not intend to admit this document as
an exhibit at trial unless the plaintiffs reassert their argument that
there is a defect in the flange height on the ladder's rail. The Court
therefore reserves ruling on this issue until it arises at trial.
J. Underwriters Laboratories, Inc. certification report,
Defendant argues that this report is relevant because it documents the
testing of the design of the incident ladder. The
Court notes that the report is hearsay, and it is irrelevant because
the design of the incident ladder is no longer an issue in this case. The
Court therefore excludes this evidence.
V. Defendant's Omnibus Motion in Limine
Defendant moves to exclude:
1. Any alleged alternative warnings found on a Werner ladder
2. Evidence of alternative designs, namely a protective boot
3. Prejudicial references to the fact that ladder was manufactured in
4. Any assertions that the subject ladder deteriorated or degraded over
5. Evidence related to Louisville Ladder's quality control procedures
6. Evidence of prior claims or lawsuits
7. Evidence related to Scordill's post ? accident injuries
A. Any alleged alternative warnings found on a Werner ladder;
Evidence of alternative designs, namely a protective boot
Defendant contends that these exhibits are irrelevant in light of the
Court's order that dismissed plaintiffs' inadequate warning and design
defect claims. In plaintiffs' opposition to defendant's objections to
their exhibits, plaintiffs assert that they will comply with the Court's
order and not seek to introduce these exhibits except possibly for
impeachment. These exhibits
are inadmissible in the plaintiffs' case in chief and the Court
reserves ruling on their possible use for impeachment.
B. Prejudicial references to the fact that ladder was
manufactured in Mexico
The parties stipulated to the place of manufacture of the incident
ladder, and they intend to submit the stipulation as evidence. Plaintiff
counsel asserts that he does not intend to refer to the place of
manufacture in a prejudicial manner. The Court will address any
objections to allegedly prejudicial references if they arise at trial.
C. Any assertions that the subject ladder deteriorated or
degraded over time
Defendant argues that the Court should preclude any assertion by the
plaintiffs that the subject ladder deteriorated or degraded over time
because plaintiffs have no evidence to support such an assertion. The
Court denies defendant's motion. The Court will not foreclose plaintiff
from making the common sense assertion that a ladder used for four or
five years is different from a new ladder.
D. Evidence related to Louisville Ladder's quality control
Defendant contends that Louisville Ladder's quality control procedures
are irrelevant to the issue of whether a manufacturing defect caused
Scordill's accident. Plaintiff's argue that they
intend to introduce the evidence to counter any assertions by the
defendant's witnesses that Louisville Ladder went to great lengths to
ensure that the ladder was adequately manufactured and that its quality
control procedures met or exceeded industry standards and practices. The
Court reserves its ruling on this issue until trial to determine if such
evidence is relevant based on the evidence presented by defendant.
E. Evidence of prior claims or lawsuits
The Court addresses this issue in connection with defendant's motion to
preclude plaintiff from referring to certain cases, infra.
F. Evidence related to Scordill's post ? accident
Under the Louisiana Products Liability Act, plaintiffs must prove that
the a characteristic of the manufacturer's product rendered it
unreasonably dangerous and "proximately caused" plaintiffs' injuries.
See La. R.S. 9:2800.54(A); Wheat v. Pfizer, Inc.,
31 F.3d 340
, 342 (5th Cir. 1994). Scordill must prove that the product
defect was "the most probable cause" of his injuries. Id.
(citing Brown v. Parker-Hannifin Corp., 919 F.2d 308
, 311 and
n.9, 312 (5th Cir. 1990)). Plaintiff's seek to introduce evidence of
injuries sustained by Scordill when he fell in his workshop months after
he fell off the incident ladder. Plaintiff's contend that these injuries
are causally related to
the fall off the ladder because Scordill injured his arm in the
first fall, and he injured himself later because his injured arm could
not support him in his second fall in his workshop.
As this Court noted in Traina v. Nationsbank of Texas, 2001 WL
1041773 (E.D.La.), the Louisiana Products Liability Act "was not intended
to eliminate Louisiana's duty ? risk approach to proximate
causation." Id. at *7 (citing J. Kennedy, A Primer on the
Louisiana Products Liability Act, 49 La. L.Rev. 565, 583 n.88
(1989)). Under the duty ? risk analysis, plaintiff must prove: "(1)
the conduct in question was the cause ? in ? fact of the
resulting harm; (2) defendant owed a duty of care to plaintiff; (3) the
requisite duty was breached by the defendant; (4) the risk of harm was
within the scope of protection afforded by the duty breached." Stroik
v. Ponsetti, 699 So.2d 1072, 1077 (La. 1997). Duty is a question of
law for the Court. See id. Here, there is no connection between
the plaintiff's use of the incident ladder and the injuries sustained in
his second fall. Plaintiff does not even argue that his use of
defendant's ladder caused him to fall a second time. Rather, he asserts
that the first fall from the ladder weakened his arm, and he was
therefore unable to catch himself in his second fall. Whatever caused his
second fall is the immediate cause of his injuries. Under the duty
? risk analysis, the Court finds that the imposition of a duty
on defendant is inappropriate when the second accident was
unrelated to the plaintiff's use of the defendant's product. Further, no
medical witness has ever linked the claimed neck injuries to the second
fall. Scordill did not see his physician, Dr. Charles Krieger, until four
weeks after he fell in his workshop.*fn6 Although plaintiff claims that
he sustained neck injuries in the second fall, Dr. Krieger testified that
Scordill's neck had a bulging disc caused by "wear and tear and
trauma."*fn7 Dr. Krieger could not identify what trauma caused
Scordill's disc bulge.*fn8 Further, Dr. Krieger testified that he
treated Scordill in 2000 for neck problems related to a neck injury that
he sustained in the 1990's,*fn9 and that plaintiff's condition could
have existed even before plaintiff fell from the incident ladder.*fn10
Thus, there is an absence of medical evidence linking the neck injury to
the second fall. For the foregoing
reasons, the Court excludes evidence of injuries that Scordill
sustained as a result of his subsequent fall in his workshop.
VI. Defendant's Motion to Preclude Plaintiff from Referring to
In this motion, defendant moves to preclude plaintiff from referring to
two specific cases: Springer v. Emerson Electric Co., 1995 WL
546937 (Ohio App. 8th Dist.), and Four Corners Helicopters, Inc. v.
Turbomeca, S.A., 979 F.2d 1434
(10th Cir. 1992). In defendant's
opposition to plaintiffs' motion to amend the pre-trial order and in its
omnibus motion in limine, defendant also objects to plaintiffs'
exhibit that contains records and proceedings from other ladder accident
cases in which Louisville Ladder (or a related entity) was a
A. Four Corners Helicopters, Inc. v. Turbomeca,
In Four Corners, the Tenth Circuit upheld a district court's exclusion
of a video of an experiment performed by defendant's expert, Dr. Manning.
The district court excluded the video because it determined that the
conditions present in Dr. Manning's experiment were not substantially
similar to those present at the time of the accident at issue in the
Defendant argues that it is improper for plaintiffs to use the
exclusion of Dr. Manning's videoed experiment in the Four Corners case
for impeachment. The Court finds this objection meritless. Use of the
previous exclusion of an expert's testimony is permissible to impeach the
credibility and credentials of the expert. The Court therefore denies
defendant's motion to preclude plaintiff from referring to the Four
B. Cases Involving Ladder Accidents
Plaintiff's contend that these cases are relevant because they involved
an accident similar to the one in this case. The proponent of evidence of
other accidents or occurrences must establish "that the facts and
circumstances of other accidents or occurrences are `closely similar' to
the facts and circumstances at issue." Johnson v. Ford Motor
Co., 988 F.2d 573, 579 (5th Cir. 1993) (citing McGonigal v.
Gearhart Industries, Inc., 851 F.2d 774, 778 (5th Cir. 1988);
Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070,
1082-83 (5th Cir. 1986)). The Johnson case involved a car accident, and
the Fifth Circuit compared the model, year, and precise mechanical defect
alleged in that case to the facts of the other accidents to determine if
there was substantial similarity. See Johnson, 988 F.2d at
579-580. Even if the plaintiffs establish substantial similarity of
circumstances between the other accidents or occurrences and this
case, the Court retains broad discretion to exclude such evidence
under Rule 403. The Court addresses each case in turn to determine if the
circumstances of the case are similar to this case.
i. Springer v. Emerson Electric Co.
In the Springer case, plaintiff Lloyd Springer fell off of an
8-foot Louisville Ladder fiberglass stepladder, model FS1508.
Springer, 1995 WL 546937. Springer was standing on the fourth or
fifth step when the ladder tipped. He fell and landed several feet away
from the ladder. Eyewitnesses indicated that he never came into contact
with the ladder as he fell. After the accident, the fiberglass rails were
bent inwards below the first ? step on both sides of the front of
the ladder. Plaintiff asserted that the rails lacked the necessary
compression strength, and as a result, they buckled when the ladder
tipped. Plaintiff's expert opined that the design was defective and the
ladder should have included a warning that fiberglass ladders are easier
to tip and that the rails may buckle if the ladder is tipped.
The Court notes that there are several, significant similarities
between the Springer case and this case. The Springer
case involved a fiberglass stepladder of similar height
to the incident ladder.*fn12 Springer alleged that the ladder
buckled beneath him while he was using it. After the fall, the front
rails of the Springer ladder were bent inwards below the first
step, and thus the ladder exhibited damage similar to that suffered by
the incident ladder in this case. Springer challenged the amount of
fiberglass contained in the rails, claimed that the rails were designed
too thinly, and also challenged the ladder's warnings. Here, plaintiffs
allege that the incident ladder contains manufacturing defects: the
misplaced rivet and cracked fiberglass. Thus, both the Springer
case and this case allege defects in the fiberglass used to manufacture
the respective ladders.
The defendant points out that the Springer case involved a
different model and size stepladder, but the Court finds that these minor
differences do not alter its conclusion that the Springer case
is closely similar to the case at hand. Defendant also argues that the
ladders in the Springer case and this case were manufactured in
different plants and by different companies that were unrelated at the
time of manufacture. The plaintiffs in each case alleged defects in the
fiberglass, however, and the fiberglass used to construct the ladders was
manufactured by the
same company.*fn13 In light of the material similarities in the
facts and circumstances of the Springer case and the case at
hand, the Court finds that the two cases are substantially similar and
denies defendant's motion to preclude plaintiffs from utilizing the case
as a substantially similar accident.
ii. McGuire v. Davidson
The facts and circumstances of the McGuire case are too
dissimilar to the current case to warrant admission. Plaintiff Michael
McGuire fell from a 6-foot wooden stepladder, not a fiberglass ladder
like the incident ladder. Plaintiff alleged that the ladder's wood was
brash or brittle due to high temperature drying, and the brash wood
caused the accident. Plaintiff also alleged that the ladder suffered from
a design defect. The Court finds these circumstances too different from
this case and grants defendant's motion to preclude plaintiffs from
utilizing the case as a substantially similar accident.
iii. Gately v. Wal-Mart, et al.
The Gately case involved a 7-foot, Davidson model 592 fiberglass
stepladder. Plaintiff alleged that she proceeded up
the ladder when the ladder unexpectedly fell over because the
support legs were unequal in length. The parties settled the
Gately case before it went to trial. Although the two cases
involve the same model stepladder, the circumstances of the accident and
the alleged defects are dissimilar. More importantly, the allegations of
the plaintiff in Gately constitute mere hearsay. The Court therefore
excludes any reference by the plaintiffs to this case as a similar
iv. Eversole v. Emerson Electric
The Eversole materials include what appears to be a list of other
incidents that involve ladder failures that was utilized in the
Eversole case. Plaintiff's fail to identify any specific
information for any of these cases. Based on the information before it,
the Court concludes that plaintiffs have failed to establish that these
cases or the Eversole case are substantially similar to this case, and
the Court excludes any reference by the plaintiffs to these cases as
v. Other bases for admissibility
Plaintiff's contend that the evidence of these other accidents is
admissible under Federal Rules of Evidence 401, 403, 404(B), as
impeachment evidence, and as statements by party opponents. As described
above, except in the Springer case, the Court finds that the
other accidents are not relevant to the
issue of whether the incident ladder contained a manufacturing
defect that proximately caused plaintiffs' injuries because they are not
substantially similar to the accident and alleged defect in this case.
Thus the evidence is inadmissible under Rule 401. Under Rule 404(b),
"[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident [.]" Rule 404(b) requires
similarity between the proffered evidence and the acts at issue or the
other acts are irrelevant. See United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978). Further, statements by a party opponent
must be relevant to be admissible. The Court finds no support for
plaintiffs' argument that the evidence is admissible under Rule 404(b)
or as statements by a party opponent.
Plaintiff's also argue that the evidence is admissible to impeach the
defendant's witnesses, because they expect witnesses to testify that the
defendant's ladders never fail under normal use. Nothing in this opinion
is intended to preclude use of the evidence to impeach defendant
witnesses. Except for the Springer case, this evidence is
inadmissible, except possibly for
VII. Defendant's Motion to Exclude Evidence Regarding the RIDGID
In 1999, Louisville Ladder cooperated with the United States Consumer
Product Safety Commission and recalled approximately 10,700 of its RIDGID
brand stepladders because some of the ladders had steps that were too
short and were improperly attached to the ladder. Defendant seeks to
exclude any reference to this recall. The recall involved a different
brand stepladder than the incident ladder in this case. The identified
defect is completely different from the nature of the defect alleged in
this case. Defendant asserts that the recalled RIDGID ladders were
manufactured in Louisville, Kentucky in 1999. In light of these
differences, the Court finds that evidence of this recall has minimal
probative value with respect to the issues in this case. The prejudicial
impact of such evidence, on the other hand, is significant. Accordingly,
the Court excludes this evidence under Rule 403. As with the evidence
related to other accidents, the Court reserves ruling on the use of this
evidence for impeachment purposes.
VIII. Defendant's Objections to Exhibits Identified by Plaintiff
in the Pre-trial Order and in Plaintiff's Bench Book
Defendant seeks to exclude the following exhibits:
1. Tape 1 of Scordill's video deposition
2. Photograph of red Louisville Ladder
3. Photographs of warning label on Werner ladder
4. Documents produced by Stress Engineering/Greg Garic
5. St. Paul Insurance Co. policy for defendant
6. Defendants' answers and responses to both sets of plaintiff's
interrogatories and requests for production of documents
7. Stipulation regarding identity of manufacturer
8. Louisville Ladder's website advertisement
9. Louisville Ladder's website information on "da boot"
10. Other exhibits identified in the plaintiff's pre-trial order
The Court addresses these objections below.
A. Tape 1 of Scordill's Video Deposition; Documents Produced
by Stress Engineering/Greg Garic; St. Paul Insurance Co. Policy
Plaintiff's indicate that they do not intend to introduce these
exhibits unless evidence or testimony submitted by the defendant renders
them relevant and admissible. The Court will therefore address any
objections to these exhibits in the context
of the evidence presented at trial.
B. Photograph of Red Louisville Ladder; Photographs of Warning
Label on Werner Ladder; Louisville Ladder's Website Information
on "Da Boot"
These exhibits related to plaintiffs' design defect and inadequate
warning claims, and the Court dealt with evidence on these issues above.
C. Defendants' Answers and Responses to Both Sets of
Plaintiff's Interrogatories and Requests for Production of
The Court reserves ruling on these exhibits until it can assess their
relevance in light of the evidence presented at trial.
D. Stipulation Regarding Identity of Manufacturer
The parties stipulated that Louisville Ladder will be treated as the
manufacturer of the incident ladder in this case. Defendant admits that
the stipulation should be read to the jury and provides no basis for its
argument that the Court should not admit the written stipulation into
evidence. The Court finds that the written stipulation is not inherently
prejudicial and denies defendant's motion with respect to this
E. Louisville Ladder's Website Advertisement
Defendant argues that this information is irrelevant and prejudicial.
The website information that the plaintiffs identify includes a
description of the Quality Features of
Fiberglass Stepladders and a press release on the RIDGID recall. The
Court excluded the RIDGID recall information above. The Court finds that
the general information regarding fiberglass is relevant and the
prejudicial impact of such information does not outweigh its probative
value. The Court therefore denies defendant's motion with respect to the
general information on fiberglass stepladders from Louisville Ladder's
F. Other Exhibits Identified in the Plaintiff's Pre-Trial
Defendant fails to identify a specific exhibit that it seeks to
exclude. The Court therefore overrules this objection.
For the foregoing reasons, the Court rules on each of the parties'
motions as indicated above.