SCORDILL v. LOUISVILLE LADDER GROUP

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 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 video

6. ARAI testing photographs

  7. ARAI test ladders Page 22

  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' objections.

 

B. ESI demonstrative videos; Demonstration with Garic and the exemplar ladder

  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 Page 23 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 case

  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 Page 24 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 Page 25 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 Page 26 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 evidence.

 

I. Significance of alleged manufacturing defect ? Flange weight

  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, January 1997

  Defendant argues that this report is relevant because it documents the testing of the design of the incident ladder. The Page 27 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 Mexico

  4. Any assertions that the subject ladder deteriorated or degraded over time

  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 Page 28 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 procedures

   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 Page 29 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 injuries

   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 Page 30 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 Page 31 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 Page 32 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 Certain Cases

   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 defendant.*fn11

  

A. Four Corners Helicopters, Inc. v. Turbomeca, S.A.

   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 case. Page 33 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 Corners case.

   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 Page 34 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 Page 35 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 Page 36 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 Page 37 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 accident.

   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 similar accidents.

   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 Page 38 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 Page 39 impeachment.

  

VII. Defendant's Motion to Exclude Evidence Regarding the RIDGID Recall

   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. Page 40

  

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 for Defendant

   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 Page 41 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 Documents

   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 stipulation.

   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 Page 42 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 website.

  

F. Other Exhibits Identified in the Plaintiff's Pre-Trial Order

   Defendant fails to identify a specific exhibit that it seeks to exclude. The Court therefore overrules this objection.

  IX. Conclusion

   For the foregoing reasons, the Court rules on each of the parties' motions as indicated above.