Bettencourt v. Sharkninja Operating, LLC

• Court: District Court, N.D. California
• Decided: June 25, 2024
• Docket: 3:22-cv-09091
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JESICA ANN BETTENCOURT, Case No. 22-cv-09091-CRB

9 Plaintiff,

ORDER GRANTING IN PART AND 10 v. DENYING IN PART MOTION TO EXCLUDE OPINIONS OF DEREK 11 SHARKNINJA OPERATING LLC., KING 12 Defendant.

13 Plaintiff Jessica Ann Bettencourt suffered hand lacerations when the blade assembly 14 fell out of a blender manufactured by Defendant SharkNinja Operating, LLC 15 (“SharkNinja”). Plaintiff sued SharkNinja, alleging strict and negligent products liability 16 due to SharkNinja’s failure to provide a locking mechanism for the blade assembly. Am. 17 Compl. (dkt. 12). SharkNinja moves to exclude the testimony of Plaintiff’s expert. Mot. 18 (dkt. 44). As explained below, the Court DENIES the motion with respect to Opinion Nos. 19 1 and 2 and GRANTS the motion with respect to Opinion Nos. 3, 4, and 5. 20 I. BACKGROUND 21 A. Factual History 22 SharkNinja designs and manufactures Ninja BL610 blenders (“Blender”). Am. 23 Compl. ¶ 8. The Blender consists of three components: (1) a motor base; (2) a pitcher; and 24 (3) a stacked blade assembly. Id. ¶ 17. The blade assembly, which runs the length of the 25 pitcher, does not lock into place and is not otherwise secured when the lid is off or 26 unlocked. Id. ¶¶ 17–19. It looks like this: 27 ! 2 Ft 7 3 >. Pe - 5s] b

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11 || Mot. at 6, 10.! SharkNinja provides warnings about the loose, sharp blades in the product 12 || packaging, Owner’s Guide, and “Inspiration Guide,” and on the lid of the Blender. Kaiser 13 || Decl. Exs. C (packaging) (dkt. 44-4), D (“Owner’s Guide”) (dkt. 44-5), E (“Inspiration |] Guide”) (akt. 44-6), F (warning) (dkt. 44-7), 2 15 The blender can only be operated when the lid is locked onto the pitcher. Kaiser a 16 || Decl. Ex. B (‘Rimkus Report’) (dkt. 44-3) at 8; Owner’s Guide at 10. There are two ways 2 17 || by which users can pour blended contents out of the blender. The first is by pouring the s 18 || contents out through the lid’s “pour spout.” Owner’s Guide at 11. It looks like this: 19 20 21 22 23 24 25 26 27 This order cites to Defendant’s Motion to Exclude by referencing the efiling page number 2g || and not the internal page number. The page numbers of other court documents are the internal page number unless otherwise indicated.

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7 Rimkus Report at 20. The second is by removing the lid, removing the stacked blade, and 8 then pouring the contents out of the open pitcher, as illustrated here: 9 10 AS 11 Te That tae □ its ae 13 1) rt «14 Ss

— IS Id. The owner’s manual explains that to remove the lid, users should “Press the release

16 button on the lid, pull the handle up to a 90 degree angle, then lift [the] lid off the pitcher.”

Owner’s Guide at 11.

z 18 Plaintiff used the Blender to make a smoothie. Kaiser Decl. Ex. H (“PI.’s Dep. Vol. 19 IT’) (dkt. 44-9) at 24:18-19. After blending the ingredients, Plaintiff tilted the pitcher to 20 pour the smoothie into a cup. Id. at 28:10—12. Plaintiff does not remember whether the lid 21 was locked, but remembers that she did not remove the lid. Id. at 28:13—15, 32:22—25— 22 33:1. According to SharkNinja’s expert, the lid cannot fall off of the pitcher if it 1s 23 properly locked. Rimkus Report at 16. The lid fell off, the blade fell out of the pitcher, 24 and Plaintiff's hand was cut. Pl.’s Dep. Vol. II at 29:2—9. 25 B. Procedural History 26 Plaintiff filed suit, claiming strict and negligent products liability. See generally 27 Compl. (dkt. 1). Plaintiff amended her complaint, still claiming strict and negligent 28

1 products liability. See Am. Compl. ¶¶ 32–42. Plaintiff also submitted an expert report 2 from Derek King in support of her defective design claim. See Kaiser Decl. Ex. K (“King 3 Report”) (dkt. 44-12). SharkNinja filed a motion for summary judgment and a motion to 4 exclude Mr. King’s testimony. MSJ (dkt. 45)2; Mot. In its motion for summary judgment, 5 SharkNinja contends, among other things, that Plaintiff’s claims fail because she can 6 neither satisfy the prima facie requirements for defective design nor present evidence of 7 causation without admissible expert testimony. MSJ at 7–8.3 8 C. Derek King’s Testimony 9 Plaintiff’s expert, Derek King, holds an M.S. in Electrical Engineering from Ohio 10 University and a B.S. in Mechanical Engineering from University of California, Berkeley. 11 King Report at 3. He has worked as an engineer for Berkeley Engineering and Research 12 (“BEAR”) since 2009 in the areas of failure analysis, design, and risk assessment of 13 consumer and industrial equipment, including consumer blenders. Id. 14 Currently, the Blender’s blade assembly is only secured to the pitcher when the lid 15 is locked. See id. at 5. As an alternative design, Mr. King proposes a “simple snap or 16 locking mechanism” to hold the blade assembly in place when the lid is off or unlocked, to 17 prevent lacerations from falling blades. Id. at 6. He provides the KitchenAid 3.5 Cup 18 Food Chopper (“KitchenAid Chopper”) as an example. Id. at 8. Both products are used to 19 pulverize food and have a detaching blade assembly that slides over a fixture in the pitcher. 20 Id. They look like this: 21 22 23 24 25 26 2 The Court addresses the summary judgment motion in a separate order. 27 3 This order cites to Defendant’s summary judgment brief by referencing the efiling page 1

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5 17 || Rimkus Report at 30 (SharkNinja product on the left, KitchenAid product on the right).

18 At the end of his report, Mr. King provides five opinions, all of which SharkNinja 19 || seeks to exclude in the present motion: 20 (1) the design of the Blender is defective because the blade assembly can 21 “unintentionally separate” from the pitcher and there are safer alternative 22 designs available; 23 (2) the warnings in connection with this product and the prior recalls of the 24 BL660—a different SharkNinja product with a similarly unsecured blade 25 assembly— show that SharkNinja was aware of the hazard from loose 26 blades; 27 28

1 (3) SharkNinja’s Design Failure Modes and Effects Analysis (“DFMEA”)4 of 2 the Blender did not address the hazard from loose blades falling out of the 3 pitcher; 4 (4) if SharkNinja’s DFMEA had addressed the hazard from loose blades falling 5 out of the pitcher, then SharkNinja would have implemented a locking 6 mechanism; and 7 (5) Plaintiff’s injury was likely caused by “the pitcher being tipped over without 8 the lid,” and a locking mechanism would have likely prevented the injury. 9 King Report at 15. 10 Mr. King’s expert report appears to be based largely on a prior one submitted by his 11 colleagues at BEAR in the Welch v. SharkNinja Operating LLC case. See No. 12 21CV00123, 2021 WL 6332889 (S.D. Tex. May 24, 2021) (alleging that the loose blade 13 assembly of a different SharkNinja product caused severe hand lacerations when the user 14 accidentally knocked the product off the counter while packing); Kaiser Decl. Ex. I 15 (“Welch Report”) (dkt. 44-10). In some parts of his report in this case, Mr. King 16 accurately recites the facts of this case. See King Report at 3 (“[Plaintiff] suffered a severe 17 hand laceration as a result of the stacked blade assembly separating from the blender cup 18 when she was pouring the smoothie out into a separate cup to drink from”). Mr. King also 19 provides photos of the correct SharkNinja product that injured Plaintiff, not the product at 20 issue in the Welch Report. See id. at 5–8; Welch Report at 5. However, in other parts of 21 his report in this case, Mr. King provides inconsistent facts that appear to be copied from 22 the Welch Report: 23 King Report in this case Welch Report 24 “Ms. Bettencourt was using the subject “Mr. Welch […] accidentally tipped over 25 Ninja BL610 Professional Blender that the subject Ninja BL6850 Kitchen System 26 4 A DFMEA is a method of risk assessment customarily used in the design phase of 27 consumer products to identify and eliminate product failures. See King Report at 9. A 1 was on her kitchen counter and the that was on his kitchen counter and the 2 stacked blade dislodged when she reached stacked blade dislodged when he reached 3 for it.” King Report at 4. for [. . .] it.” Welch Report at 5. 4 “When the pitcher was knocked over, the “When the product was knocked over, the 5 blade assembly slid off the spline shaft blade assembly slid off the spline shaft, 6 and out of the pitcher, and Ms. out of the bowl and Mr. Welsh was 7 Bettencourt was lacerated attempting to lacerated attempting to catch the bowl.” 8 catch the pitcher.” King Report at 5. Welch Report at 6. 9 “The risk of accidental tip-overs is “The risk of accidental tip-overs is 10 similar[.]” King Report at 10. similar[.]” Welch Report at 8. 11 SharkNinja now moves to exclude Mr. King’s testimony as irrelevant and 12 unreliable, in part because of the inconsistencies in the King Report that appear to be 13 copied from the Welch Report. See Mot. 14 II. LEGAL STANDARD 15 Under Rule 702 of the Federal Rules of Evidence, an expert qualified by 16 “knowledge, skill, experience, training, or education” may testify in the form of an opinion 17 if it is more likely than not that: 18 (a) the expert’s scientific, technical, or other specialized knowledge will help the 19 trier of fact; 20 (b) the testimony is based on sufficient facts or data; 21 (c) the testimony is the product of reliable principles and methods; and 22 (d) the expert has reliably applied the principles and methods to the facts of the 23 case. 24 Expert testimony is admissible if it is (1) relevant; and (2) reliable. Daubert v. 25 Merril Dow Pharms., Inc., 509 U.S. 579, 589 (1993). Trial courts are to act as 26 gatekeepers, ensuring that an expert “employs in the courtroom the same level of 27 intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho 1 opinion is a flexible inquiry: “whether Daubert’s specific factors are, or are not, reasonable 2 measures of reliability in a particular case is a matter that the law grants the trial judge 3 broad latitude to determine.” Id. at 153. The general rule is that “[s]haky but admissible 4 evidence is to be attacked by cross-examination, contrary evidence, and attention to the 5 burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) 6 (citing Daubert, 509 U.S. at 596). 7 Experts whose methodology is otherwise reliable should not be excluded because 8 the facts they rely upon are in dispute unless those factual assumptions are “indisputably 9 wrong.” In re MyFord Touch Consumer Litig., 291 F. Supp. 3d 936, 967 (N.D. Cal. 2018) 10 (quoting Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996)); see also Fed. 11 R. Evid. 702, Adv. Comm. Notes (2000) (explaining that “experts sometimes reach 12 different conclusions” when facts are in dispute). The purpose of cross-examination is to 13 “negate the facts or factual assumptions underlying an expert’s opinion.” In re MyFord 14 Touch, 291 F. Supp. 3d at 967. 15 III. DISCUSSION 16 The Court concludes that (A) Mr. King is qualified to provide testimony critiquing 17 the design of the blender; and (B) the opinions in his report vary in their reliability and 18 relevance. 19 A. QUALIFICATIONS 20 SharkNinja does not challenge Mr. King’s qualifications. See Mot. Mr. King holds 21 a bachelor’s degree and a master’s degree in engineering and has ample experience in the 22 failure analysis, design, and risk assessment of blenders. See King Report at 3. Therefore, 23 Mr. King is qualified by “knowledge, skill, experience, training, or education” to provide 24 testimony critiquing the design of the Blender. See Fed. R. Evid. 702. 25 B. RELEVANCE AND RELIABILITY 26 SharkNinja seeks to exclude Mr. King’s testimony for the following reasons: 27 A. Opinion No. 1, stating that the Blender’s design is defective because it can 1 B. Opinion No. 1, stating that there are alternative designs, is irrelevant and 2 unreliable. Id. at 7–8. 3 C. Opinion No. 2, stating that the warnings evince SharkNinja’s knowledge of 4 the hazard, is irrelevant. Id. at 8. 5 D. Opinion Nos. 3 and 4, stating that SharkNinja failed to address the known 6 hazard of loose blades in its DFMEA analysis and that, if it had, it would 7 have implemented a locking mechanism, are unreliable. Id. at 9. 8 E. Opinion No. 5, stating that the lack of a locking mechanism likely caused 9 Plaintiff’s injury, is unreliable. Id. at 9. 10 Based on Daubert and Rule 702, the Court admits Opinion Nos. 1 and 2, and 11 excludes Opinion Nos. 3, 4, and 5. See Daubert, 509 U.S. at 589. 12 1. The Blade Assembly can “Unintentionally Separate” 13 SharkNinja argues that Opinion No. 1 is: 14 a. Irrelevant and unreliable because Mr. King copied facts from the Welch 15 Report. Mot. at 7. 16 b. Irrelevant and unreliable because Mr. King neither identified a scenario 17 where the blade assembly can “unintentionally separate” if the lid is properly 18 locked, nor analyzed the Blender with the lid on. Id.; Reply (dkt. 49) at 3. 19 As explained below, Mr. King’s opinion that the blade assembly can 20 “unintentionally separate” is admissible because it is relevant and reliable. See King 21 Report at 15 ¶ 1; Daubert, 509 U.S. at 589. 22 a. Copying from the Welch Report 23 i. Relevance 24 SharkNinja argues that Mr. King’s opinion is irrelevant because it is based on “a 25 completely different incident” that is “irrelevant” to Plaintiff’s case. Mot. at 17. Plaintiff 26 argues that Mr. King’s expert report is relevant because “the physics, methodology, and 27 mechanism of injury” are the same as Welch. Opp’n (dkt. 47) at 4. According to the 1 SharkNinja product when it separated from the pitcher when the product was knocked off 2 the counter. See Welch Report at 5. Although Plaintiff here was “intentionally” using the 3 Blender to make a smoothie instead of “unintentionally” knocking it off the counter, the 4 scenario in the Welch Report is not so dissimilar that Mr. King’ testimony is unhelpful to a 5 jury in this case. See Fed. R. Evid. 702(a). Moreover, the propriety of Mr. King’s basing 6 his report on (or copying from) the Welch Report is an appropriate topic for cross- 7 examination. See Primiano, 598 F.3d at 564. 8 ii. Reliability 9 Expert testimony may not be excluded “on the ground that the court believes one 10 version of the facts and not the other.” Fed. R. Evid. 702, Adv. Comm. Notes (2000). 11 SharkNinja contends that Mr. King’s opinion is unreliable because he has an incorrect 12 understanding of the facts of this case based on a “materially different incident, product, 13 and circumstances.” Mot. at 16. On the other hand, Plaintiff characterizes Mr. King’s 14 occasional inclusion of facts particular to the Welch Report in his report for this case as 15 “an editing typo.” Opp’n at 3. Given that Mr. King both correctly and incorrectly 16 describes Plaintiff’s incident in his report, as explained in Section I.C supra, it is 17 ambiguous whether Mr. King made an error or misunderstands the facts of Plaintiff’s case. 18 Therefore, counsel should address the factual errors in the King Report through cross- 19 examination. See In re MyFord Touch, 291 F. Supp. 3d at 967. 20 b. Properly Locked Lid 21 i. Relevance 22 Next, SharkNinja argues that Mr. King’s opinion that the blade assembly can 23 unintentionally separate is irrelevant because Mr. King fails to identify a scenario where 24 the blade assembly would detach if the lid was properly locked. Mot. at 14–15. Plaintiff 25 does not remember unlocking the lid but does not deny doing so. See Pl.’s Dep. Vol. II at 26 32:22–25–33:1. SharkNinja’s expert asserts that the Blender’s lid cannot fall off unless the 27 user did not properly lock the lid. Rimkus Report at 16. It is undisputed that the lid fell 1 suggests that the Plaintiff unlocked the lid before attempting to pour the smoothie. See id.; 2 Rimkus Report at 16. Therefore, Mr. King’s analysis of how the blade assembly behaves 3 without a properly locked lid is likely to be helpful to a jury. See Fed. R. Evid. 702(a). 4 SharkNinja further asserts that Mr. King’s opinion is irrelevant because he only 5 tests the product “with the lid removed.” Mot. at 15; see King Report at 5. Plaintiff 6 poured the smoothie with the lid on. See Pl.’s Dep. Vol. II at 28:5–15. It is unclear 7 whether Mr. King’s analysis of the Blender with the lid removed has “any tendency to 8 make the existence of any fact that is of consequence” to the determination of this case 9 more or less probable because Plaintiff’s Blender appears to have been on but not locked. 10 See King Report at 5; Pl.’s Dep. Vol. II at 28:5–15; Daubert, 509 U.S. at 587. The Ninth 11 Circuit holds that “[s]haky” evidence should be cross examined but not excluded. 12 Primiano, 598 F.3d at 564. Therefore, Mr. King’s analysis of the Blender with the lid off 13 is an issue for cross examination. See id.; King Report at 5; Pl.’s Dep. Vol. II at 28:5–15; 14 Rimkus Report at 16. 15 ii. Reliability 16 SharkNinja argues that Mr. King’s characterization of Plaintiff’s incident as 17 “unintentional separation” is unfounded because the blade assembly is expected to fall off 18 when the pitcher is tilted without a lid. Mot. at 15. Evidence is reliable if it is grounded in 19 “science’s methods and procedures” and based on “known facts or [. . .] ideas inferred 20 from such facts or accepted as true on good grounds.” Daubert, 509 U.S. at 580. Although 21 separation of the blade assembly when the lid of the pitcher is unlocked would not be 22 “unintentional” to the manufacturer, Mr. King appears to mean that this scenario might 23 well be “unintentional” to the user because the blade assembly can “easily separate” from 24 the pitcher. See King Report at 3, 15 ¶ 1. Mr. King’s word choice does not render his 25 testimony unreliable. See id.; Daubert, 509 U.S. at 580. 26 2. Safer Alternative Designs 27 SharkNinja next argues that Opinion No. 1 is: 1 a. Unreliable because Mr. King did not provide sufficient details, such as 2 testing, to evaluate the efficacy and safety of his proposed alternative design. 3 Mot. at 8, 17–18. 4 b. Unreliable because Mr. King visually compares the Blender to the 5 KitchenAid Chopper, which is unsuitable for comparison. Id. 18–20.5 6 c. Irrelevant because there is no scenario where the blade falls out when the lid 7 is properly locked. Id. at 18. 8 As explained below, Mr. King’s opinion that there is a safer alternative design is 9 admissible because it is relevant and reliable. See King Report at 15 ¶ 1; Daubert, 509 10 U.S. at 589. 11 a. Lack of Testing 12 The absence of testing does not preclude a finding of reliable expert testimony. See 13 Scantlin v. Gen. Elec. Co., 510 F. App’x 543, 545 (9th Cir. 2013) (holding that a lack of 14 testing was a proper subject for cross-examination but did not warrant exclusion because 15 the trial court’s gatekeeping function is not “a replacement for the adversary system”) 16 (citations omitted); Klingenberg v. Vulcan Ladder USA, LLC, 936 F.3d 824, 829–30 (8th 17 Cir. 2019) (holding that physical testing impacts the credibility but not the admissibility of 18 expert testimony; expert testimony can be admitted based on observation and expertise 19 alone if it is relevant and reliable); Watkins v. Telsmith, Inc., 121 F.3d 984, 992 (5th Cir. 20 1997) (holding that a district does not exceed its bounds by emphasizing a lack of testing 21 in deciding to exclude expert testimony, but that testing is not an absolute requirement) 22 (citations omitted). 23 Similar to Klingenberg, Mr. King’s opinions were based on his experience and 24 expertise in blender investigations, general engineering principles, information about 25 Plaintiff’s incident, and his examination of the Blender. See 936 F.3d at 829; King Report 26 at 3–14. Mr. King provided substantial detail on his proposed alternative design: a locking 27 1 mechanism for the blade assembly. See King Report at 8–9. Although SharkNinja asserts 2 that Mr. King has failed to consider whether his alternative design would make the product 3 more dangerous, SharkNinja does not provide case law requiring that Mr. King do so. See 4 Mot. at 18. Mr. King has done “more than just conceptualiz[e] possibilities.” See 5 Watkins, 121 F.3d at 992 (holding that expert testimony was properly excluded when it 6 lacked any empirical support or specificity). 7 Furthermore, in Klingenberg, the court found the expert’s testimony was admissible 8 despite a lack of testing because the expert had previously tested products with the same 9 features at issue in other cases. See 936 F.3d at 829. BEAR previously tested a locking 10 mechanism for the blade assembly of a similar SharkNinja product and found that it had 11 “adequate retention to prevent laceration accidents similar to the subject accident with little 12 additional cost.” See id.; Welch Report at 7. 13 Therefore, the lack of testing in Mr. King’s report is a proper subject for cross- 14 examination but does not warrant exclusion. See Scantlin, 510 F. App’x at 545. 15 b. Comparison to KitchenAid Chopper 16 SharkNinja claims that Opinion No. 1 is unreliable because Mr. King only visually 17 compares the KitchenAid Chopper and the Blender, and because the KitchenAid Chopper 18 has different specifications and a different intended use. Mot. at 18–20. SharkNinja does 19 not provide case law requiring the comparison product to have the same specifications and 20 intended use. See id. Some district courts in the Second Circuit hold that expert testimony 21 can be excluded if the expert’s reasonable alternative design is “an entirely different 22 product” than the one at issue. See Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 23 248–49 (E.D.N.Y. 2014) (excluding expert testimony proposing a feature used on a 24 stationary table saw as an alternative design for a portable table saw) (collecting cases). In 25 Hilaire, the court did not require the comparison product to have the same specifications as 26 the product at issue; it merely noted that the expert failed to provide any information 27 regarding the specifications and purpose of the alternative design and it was therefore not 1 Mr. King notes that the designs of the KitchenAid Chopper and the Blender are 2 visually similar and, most importantly, that they both have a blade assembly that slides 3 over a fixture in the pitcher. See King Report at 8. The KitchenAid Chopper and the 4 Blender are also similar in purpose; although the KitchenAid Chopper is not intended for 5 crushing ice or making smoothies, both products blend and process food. See Rimkus 6 Report at 30. The two products are similar enough in design and purpose such that the 7 comparison does not render Mr. King’s report unreliable. See Daubert, 509 U.S. at 580. 8 Therefore, the propriety of Mr. King’s comparison is an appropriate topic for cross- 9 examination but is not grounds for exclusion. See Primiano, 598 F.3d at 564. 10 c. Properly Locked Lid 11 SharkNinja argues that Mr. King’s proposed alternative design is irrelevant because 12 the blade assembly of the Blender does not “unintentionally separate[]” when the pitcher is 13 tilted with a properly locked lid. Mot. at 18. As discussed in Section II.B.1.b.i supra, 14 whether Mr. King’s analysis of the Blender with the lid off can be properly analogized to 15 this case, where the lid appears to have been on but not locked, is an issue for cross- 16 examination. See Primiano, 598 F.3d at 564; King Report at 5; Pl.’s Dep. Vol. II at 28:5– 17 15; Rimkus Report at 16. 18 3. Loose Blade Warnings Show SharkNinja’s Knowledge of Defect 19 SharkNinja also argues that Opinion No. 2 is irrelevant because the blade assembly 20 warnings simply state that a risk exists and do not indicate that the product is defective or 21 dangerous. Mot. at 8. This Court disagrees: Mr. King’s opinion that the warnings are 22 evidence of SharkNinja’s awareness of the hazard is admissible because it is relevant and 23 reliable. See King Report at 15 ¶ 2; Daubert, 509 U.S. at 589. 24 SharkNinja does not challenge the reliability of Opinion No. 2. See Mot. at 21. 25 SharkNinja argues only that Opinion No. 2 is irrelevant because warnings are not 26 indicative of a defective or unreasonably dangerous product. Id. (citing Restatement 27 (Second) of Torts § 420A cmt. j (1965)). Evidence is relevant if it has “any tendency to 1 more probable or less probable than it would be without the evidence.” Daubert, 509 U.S. 2 at 587. Although the warnings alone do not establish liability, they do suggest that 3 SharkNinja was aware that separation of the blade assembly posed a potential risk to the 4 user. Therefore, Opinion No. 2 is relevant. See id. 5 4. SharkNinja’s Design Failure Modes and Effects Analysis (DFMEA) 6 SharkNinja additionally argues that Opinion Nos. 3 and 4 are: 7 a. Unreliable because Mr. King considered neither information that SharkNinja 8 provided to him regarding SharkNinja’s testing and analysis of the Blender 9 nor the fact that SharkNinja provided warnings. Mot. at 9. 10 b. Unreliable because Mr. King did not provide evidence that SharkNinja did 11 not consider alternatives or that it rejected alternatives based on other 12 negative consequences. Id. 13 As explained below, Mr. King’s opinions that SharkNinja did not address loose 14 blades in its DFMEA and that, if it had, it would have implemented a locking mechanism, 15 are not admissible because they are speculative and therefore unreliable. See King Report 16 at 15 ¶¶ 3–4. Mr. King offers no evidence in support of Opinion No. 3, that, in generating 17 its DFMEA, SharkNinja failed to consider the hazard of falling blades. See id. Mr. King’s 18 assertion in Opinion No. 4, that SharkNinja would have implemented a locking mechanism 19 if it had considered the hazard of loose blades, is based on a “hypothetical sequence of 20 events.” See Banga v. Kanios, 16-cv-04270-RS, 2023 WL 1934484, at *2 (N.D. Cal. Jan. 21 24, 2023). Opinion Nos. 3 and 4 are therefore both based on “unsupported speculation” 22 and not admissible. See Daubert, 509 U.S. at 590. 23 5. Alternative Design Would Have Prevented Plaintiff’s Injury 24 Finally, SharkNinja argues that Opinion No. 5 is unreliable because the facts of Mr. 25 King’s report are inconsistent with Plaintiff’s deposition. Mot. at 9. Mr. King’s opinion 26 that the Blender tipping over “without the lid” and without a locking mechanism likely 27 caused Plaintiff’s injury is not admissible because it is not based on accurate facts. See 1 || King Report at 15 9]5; Fed. R. Evid. 702(b). 2 Mr. King testified that the injury was caused by “the pitcher being tipped over 3 || without the lid.” King Report at 15 95. This conflicts with Plaintiff’s deposition; she 4 || testified that she tilted the pitcher with the lid on, and that the lid then fell off. See Pl.’s 5 || Dep. Vol. II at 28:5-15. Mr. King’s statement that the pitcher tipping over without the lid 6 || caused Plaintiffs injury is based on facts that are “indisputably wrong.” See In re MyFord 7 || Touch, 291 F. Supp. 3d at 967. Therefore, Opinion No. 5 is not based on “a body of 8 || known facts or [. . .] ideas inferred from such facts or accepted as true” and is unreliable. 9 || See Daubert, 509 U.S. at 580. 10 || Iv. CONCLUSION 11 For the foregoing reasons, the Court DENIES the motion as to Opinion Nos. 1 and 12 2, and GRANTS the motion as to Opinion Nos. 3, 4, and 5.

13 || ISSO ORDERED. TK

14 Dated: June 2° , 2024 CHARLES R. BREYER 2 15 United States District Judge

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