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Reinard v. Crown Equipment Corp.

United States District Court, N.D. Iowa, Eastern Division

July 5, 2018

DUSTIN REINARD, Individually and as injured Parent of B.R. and K.R., and MISTY REINARD, Plaintiffs,
v.
CROWN EQUIPMENT CORP., Defendant.

          OPINION AND ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE FILED UNDER SEAL

          MARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         II. LEGAL ANALYSIS ........................................................................ 3

         A. Crown's Motions In Limine ...................................................... 3

1. Testimony of Jason R. Kerrigan, Ph.D. . .............................. 3
2. Other litigation or prior settlements ..................................... 5
3. Improper arguments of counsel ......................................... 7
4. Other matters ................................................................ 9

         B. The Reinards' Motions In Limine ............................................. 12

1. General trial conduct evidentiary issues ............................. 12
a. Undisputed issues ................................................ 12
b. Reprimands of Dustin Reinard ................................ 12
c. “Gratuitous” evidence about Crown ......................... 13
d. “Hearsay documents” ........................................... 14
e. Prior medical treatment evidence ............................. 14
2. Case-specific evidentiary issues ........................................ 15
a. Findings from Target's investigation ......................... 15
b. Blaming a non-party ............................................ 16
c. “State of the art” defense ...................................... 16
d. Assumption of the risk .......................................... 18
e. Military standards for stand-up forklifts ..................... 20
f. “Misuse” of the forklift ......................................... 21
g. The BRC/SEA videos ............................................ 23
h. Testimony about the relationship between doors and accidents .............................................. 24
i. Evidence relating to OSHA standards ....................... 25
j. Doing what other manufacturers do ......................... 27
k. NIOSH evidence and independent rejection of doors by NIOSH and OSHA ................................... 28
l. “Hearsay” from Crown's consultants ........................ 28
m. Evidence of design awards ..................................... 29
n. Crown's “primary concern” is safety ........................ 30
o. ATD testing shows catastrophic injuries will result ................................................................ 31
p. ANSI/ASME standards ......................................... 31
q. Injury statistics ................................................... 33

         C. Proposed Limiting Instructions ................................................ 34

         III. CONCLUSION ............................................................................ 34

         I. INTRODUCTION

         This case arises from a collision at a Target warehouse between a forklift operated by Dustin Reinard and a steel pole. Mr. Reinard suffered serious injuries to his left leg resulting in its amputation. Mr. Reinard and his wife, Misty Reinard, brought various products liability and breach of warranty claims against Crown Equipment Corporation, the manufacturer and seller of the forklift. However, the Reinards have submitted jury instructions only on a design defect claim. The Reinards seek compensatory damages for Mr. Reinard's injury, loss of spousal consortium, and loss of parental consortium, as well as punitive damages. Crown asserts Mr. Reinard's comparative fault for the forklift accident. This matter is currently set for a jury trial to begin on July 16, 2018. On June 11, 2018, in anticipation of trial, the Reinards and Crown filed Motions In Limine, which are now before me.

         II. LEGAL ANALYSIS

         A. Crown's Motions In Limine

         In a combined filing, Crown has filed four Motions In Limine. The Reinards resist some, but not all, of these Motions. I will consider them in turn.

         1. Testimony of Jason R. Kerrigan, Ph.D.

         In its Motion In Limine #1, Crown seeks exclusion of the testimony of one of the Reinards' experts, Jason R. Kerrigan, Ph.D. This is one of the most contentious of the evidentiary issues now before me. Indeed, it is the only one of Crown's Motions In Limine for which Crown filed a supporting brief.

         Crown asserts that Dr. Kerrigan will offer opinions on the following three matters: (1) injury potential testing for stand-up rider forklifts using anthropomorphic test devices (ATDs, better known as crash test dummies); (2) the potential ability of stand-up forklift operators to mitigate or avoid injury during off-dock and tipover events; and (3) whether stand-up rider forklift operators should remain in the operator compartment during off-dock and tipover events.[1] Crown contends that these opinions should be excluded, because they are unreliable, where Dr. Kerrigan has conducted no testing or other investigation to support his opinion that an operator should remain in the operator compartment in the event of a tipover or off-dock event; Dr. Kerrigan seemed to acknowledge the uncertainty surrounding this opinion, by qualifying his testimony and admitting the lack of concrete support for it; Dr. Kerrigan's opinion is not generally accepted by relevant engineering and scientific communities; and, as such, Dr. Kerrigan's opinion is nothing more than ipse dixit.

         The Reinards contend that Dr. Kerrigan's testimony is important, because it will demonstrate the “fraud” in Crown's claim that catastrophic injuries are predicted by the ATD testing that has been done in this field. Specifically, they argue that Dr. Kerrigan will help the jury understand that the ATD studies do not predict human injuries, but only the potential for injuries, and that an ATD does not mimic what a human would do for self-preservation in tipover or off-dock events. They also argue that Dr. Kerrigan's testimony is important to show that there is really no scientific support for the argument against safety doors. They contend that Dr. Kerrigan is well-qualified to offer such opinions on the basis of his training and experience and his review of ATD testing and forklift accidents, such that he can demonstrate that what Crown relies on is junk science.

         As was the case with Crown's prior challenges to two of the Reinards' other experts, Crown's Motion In Limine #1 to exclude the testimony of Dr. Kerrigan, pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993), is denied. Contrary to Crown's arguments, Dr. Kerrigan's opinions are based on more than ipse dixit. See American Auto. Ins. Co. v. Omega Flex, Inc., 783 F.3d 720, 725 (8th Cir. 2015) (“‘[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.'” (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). Rather, after reviewing the Reinards' extensive response to the motion to exclude the testimony of Dr. Kerrigan, my preliminary assessment is that Dr. Kerrigan is qualified to state the proffered opinions, the reasoning and methodology underlying the challenged opinions are scientifically valid, and his reasoning and methodology can be applied to the facts in issue. See Daubert, 509 U.S. at 592-93 (first step in the court's “gatekeeper” function under Rule 702); Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012) (products liability case explaining the “gatekeeping function”). I am also convinced that Dr. Kerrigan's testimony is relevant and will aid the trier of fact. Daubert, 509 U.S. at 592 (second step in the analysis). I simply do not accept Crown's premise that an expert can only demonstrate the flaws in other experts' opinions if he has engaged in testing of some alternative.

         In short, this is yet another case in which “‘[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.'” Kuhn, 686 F.3d at 625 (quoting Daubert, 509 U.S. at 596). Crown's challenges indicate the bases for attempting to impeach Dr. Kerrigan, but not grounds for excluding his opinions altogether. Furthermore, I reject Crown's contention, in their objection to Dr. Kerrigan's testimony in the parties' Proposed Final Pretrial Order, that Dr. Kerrigan's testimony is not proper rebuttal testimony. To the contrary, in my view, Dr. Kerrigan's testimony will only be admissible as rebuttal testimony, if Crown offers evidence of ATD testing in its case-in-chief.

         2. Other litigation or prior settlements

         In its Motion In Limine #2, Crown contends that the Reinards should be precluded from referring to or using evidence from other lawsuits brought against Crown or other manufacturers of stand-up forklifts, because such evidence is immaterial and more prejudicial than probative, within the meaning of Rules 402 and 403 of the Federal Rules of Evidence. The Reinards agree that they will not offer verdicts or settlements in prior cases or read testimony of victims of other events into the record. They argue, however, that evidence of other similar incidents and the testimony from trials relating to substantially similar events should not be excluded, because it is relevant to show the defective nature of the forklift; notice to Crown of the defects; the ordinary use of the forklifts; Mr. Reinard was not careless; the expertise of their experts, if they have previously testified, and the bias of Crown's experts, if they have previously testified; Crown's knowing conduct in the face of accidents, as a basis for punishment of Crown; and the ineffectiveness of Crown's warnings.

         I agree with the Reinards that, at least as a general category of evidence, this evidence is relevant and not more prejudicial than probative, because it does go to issues in this case and, if properly presented and limited, with proper instructions, is not unduly prejudicial. As the Eighth Circuit Court of Appeals has explained,

[Other similar instances (OSI)] evidence “may be relevant to prove the defendant's notice of defects, the defendant's ability to correct known defects, the magnitude of the danger, the product's lack of safety for intended uses, or causation.” Lovett ex rel. Lovett v. Union Pac. R.R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000); see Fed. R. Evid. 401 (evidence must be relevant). “Evidence of prior accidents is admissible only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar.” Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1332 (8th Cir. 1985). An OSI need not “occur in precisely the same manner in order to qualify as being substantially similar.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 554 (D.C. Cir. 1993).

Adams v. Toyota Motor Corp., 867 F.3d 903, 911 (8th Cir. 2017), as corrected (Aug. 14, 2017) (footnote omitted). Thus, Crown's Motion In Limine #2 is denied, but withoutprejudice to challenges to specific ...


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