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Kough v. Wing Enterprises, Inc.

United States District Court, E.D. Tennessee, Knoxville Division

January 8, 2015

WING ENTERPRISES, INC., et al., Defendants.


H. BRUCE GUYTON, Magistrate Judge.

This case is before the undersigned pursuant to 28 U.S.C. ยง 636, the Rules of this Court, and Standing Order 13-02.

On December 15, 2014, counsel for the parties appeared before the undersigned to address Defendant's Motion for Daubert Hearing to Strike and Disallow Testimony of Plaintiffs' Disclosed Expert, Tyler Kress and to Strike Plaintiffs' Rule 26 Disclosure of Expert Witness and any Reports or Opinions Expressed by Tyler Kress [Doc. 28]. The Court finds that this motion is now ripe for adjudication, [see Docs. 29, 39], and for the reasons stated herein, it will be GRANTED IN PART and DENIED IN PART.

The Court will first address two initial matters raised by the parties: (1) the timeliness of the Plaintiffs' expert disclosure and (2) the filing of the Defendant's memorandum in support. In regard to the timeliness of the Plaintiffs' disclosure of Tyler Kress, Ph.D., the Court finds that the Plaintiffs' failure to timely disclose the testimony was harmless under the circumstances, and the Court will not exclude Dr. Kress from testifying based upon this error. In regard to the Plaintiffs' allegation that the Defendant failed to re-docket their memorandum as a filing, rather than a proposed, filing, the Court finds that this error is equally harmless.

In addition, the Court finds that the Plaintiffs' response to the Defendant's motion and memorandum was itself untimely, see E.D. Tenn. L.R. 7.1. The Court finds that this error was also harmless, and the Court will not exclude Dr. Kress's testimony on this basis. Having addressed the preliminary matters and procedural objections, the Court turns to the substantive arguments raised pursuant to Rule 702 of the Federal Rules of Civil Procedure and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).


Plaintiffs allege that, in approximately June 2004, Plaintiff Ray Kough purchased a Little Giant Ladder, produced by Defendant Wing Enterprises, and since that time, Mr. Kough has used the ladder in a manner expected of a reasonable consumer. [Doc. 55 at 2]. Plaintiffs allege that, on May 11, 2011, Mr. Kough was using the ladder in the extended position to take measurements to repair storm damage of a second story window on his home. The ladder allegedly failed, causing Mr. Kough to fall to a concrete surface and suffer severe and permanent injuries. [Id.].

Defendant denies any liability and takes the position that Mr. Kough's accident was the result of Mr. Kough failing to follow the manufacturer's safety and operation instruction manual and his failure to exercise reasonable and due care for his own safety. [See Docs. 38, 55]. Defendant maintains that the accident occurred due to Mr. Kough's own negligence and not from any defect in the ladder. [Doc. 55 at 4].


Defendant moves the Court to exclude Dr. Kress from offering expert testimony in this case pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rule 702 of the Federal Rules of Civil Procedure. [Docs. 28, 29-1]. Defendant argues that Dr. Kress is not qualified by knowledge, skill, experience, training, or education to offer expert testimony in this case. Defendant contends that Dr. Kress's testimony includes ipse dixit opinions, including his opinion that the rivets on the left hinge of the ladder failed due to fatigue from "cyclical stress, " which caused the fall. Defendant maintains that Dr. Kress is not qualified to opine regarding such metallurgical issues and has not provided any reliable evidence to support that opinion. Defendant argues that Dr. Kress has based his testimony and opinions on his own speculative assertions which are not supported by tests, peer review, evidence of reliability, or other scientific data.

Plaintiffs respond that Dr. Kress's education in engineering generally qualifies him to offer testimony regarding metallurgical issues. Plaintiffs concede that Dr. Kress is not a licensed, professional engineer, nor is he a metallurgist. His training and experience is in the field of "human factors." Plaintiffs argue that his education and experience "touch[] nearly [every] facet of engineering, " and Plaintiffs note that Dr. Kress was exposed to metallurgical science through a class he took as an undergraduate in 1986. [Doc. 39 at 5]. Plaintiffs maintain that Dr. Kress used the same metallurgical test, optical fractographic analysis, as was used by Defendant's expert, which they contend demonstrates the general acceptance of the method. Plaintiffs also argue that Dr. Kress is qualified, by his background in human factors analysis, to offer opinions as to whether "Mr. Kough [] used the ladder in a manner consistent with a reasonable user." [Id.].


In Plaintiffs' disclosures, Dr. Kress proposed to offer testimony that the responsibilities of a prudent manufacturer include complying with the following axioms:

1. In so far as possible, foreseeable hazards will be reduced to acceptable levels through the design process.
2. Hazards that cannot be "designed away" will be appropriately guarded against.
3. The production process will have appropriate manufacturing facilities and have QA/QC methods to assure that the product meets the design specifications.
4. Products will be tested to validate their safety status. Improvements will be made through design iteration.
5. Users will have appropriate manuals, training, qualification, and necessary warnings so that they understand the hazards and are knowledgeable users.
6. The actual use experience will be monitored and feedback obtained to permit possible improvements in safety, design, production, warnings, and manuals.

[Doc. 18 at 3]. Dr. Kress proposed to opine that the Defendant "failed in one [or] more of the above axioms, specifically with respect to design, manufacturing, and/or adequate warnings/hazards communications." [Id.]. Dr. Kress proposed to further testify:

The failure of the subject ladder was due to a design and/or manufacturing defect and it did not break as a result of Mr. Kough falling on it. The failure is not something that an ordinary consumer or user would identify, nor even anticipate. Defects can include inappropriate riveting (e.g. too hard, too deep), stress risers, design, and/or manufacturing processes causing inadequate strength and/or wear characteristics at the hinge mechanism and/or lock tab assemblies, etc. The failure of the subject ladder's center area was due to a tension-based mechanism consistent with Mr. Kough's explanation of the incident in which he did not fall on the broken ladder. Yet during reasonably foreseeable and normal loading conditions the ladder broke due to inadequate design and/or manufacturing.

[Doc. 18 at 4].

At the hearing before the undersigned, Plaintiffs represented that Dr. Kress, who has never designed a ladder, would not offer any alternative designs or manufacturing processes. [Doc. 53 at 11]. Instead, Plaintiffs focused upon the metallurgical testimony, which was not included in Plaintiffs' disclosures but was later added at his deposition. He stated that he determined the metal composition of the ladder through "familiarity with ladder [] construction, " and that he used a "magnet test" on the metal. [Doc. 53 at 50]. He conceded that he did not know the actual metallurgical composition of the ladder, or the rivets in question, "because it can vary sometimes within the suppliers and aluminum, " but he generally described it as "aluminum primarily with steel, also." [Id. at 50-51]. He added that he also looked up the patent on this ladder. [Id. at 50]. Dr. Kress could ...

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