Gholar v. A O Safety

39 F. Supp. 3d 856, 95 Fed. R. Serv. 226, 2014 U.S. Dist. LEXIS 118898, 2014 WL 4179910
CourtDistrict Court, S.D. Mississippi
DecidedAugust 19, 2014
DocketCause No. 1:12CV387-LG-JCG
StatusPublished
Cited by1 cases

This text of 39 F. Supp. 3d 856 (Gholar v. A O Safety) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gholar v. A O Safety, 39 F. Supp. 3d 856, 95 Fed. R. Serv. 226, 2014 U.S. Dist. LEXIS 118898, 2014 WL 4179910 (S.D. Miss. 2014).

Opinion

ORDER GRANTING DEFENDANTS’ MOTION TO EXCLUDE TESTIMONY OF MR. JOHN RYAN

LOUIS GUIROLA, JR., Chief Judge.

BEFORE THE COURT is the Defendants’ Motion [104] to Exclude the Testimony of Mr.-John Ryan. The issues were fully briefed by the parties, and the Court conducted a hearing. After the hearing, the parties were given additional time in which to file supplemental briefs. After due consideration of the arguments of counsel, testimony and evidence produced at hearing, and the relevant law, it is the Court’s opinion that Mr. John Ryan is not qualified to provide expert opinion testimony in this case. Accordingly, the defendants’ motion will be granted and Mr. John Ryan’s testimony excluded.

Background

Marcus Gholar alleges that he was wearing safety goggles manufactured and/or distributed by the defendants while drilling holes in a piece of metal. He alleges that a shard of metal struck him through the goggles “and hit his left eye and put it out.” (Am. Compl. 2 (¶ 9), ECF No. 27). He testified that he was wearing eyeglasses underneath the goggles at the time of the accident. (Def. Mot. Summ. J. Ex. A 74, ECF No. 102-1). When the metal shard hit the goggles it either knocked them off or he threw them off. (Id. at 100). The metal shard also broke out the left lens of his eyeglasses. (Id. at 102-03). He testified to a hole on the left side bottom of the goggles where the metal [859]*859shard entered the goggles. (Id. at 104-05, 130). The lens remained connected to the frame. (Id. at 104-05). After the accident, Gholar returned the goggles to the workstation. He later retrieved what he thought were the same goggles, and kept them in storage until he filed this lawsuit and gave the goggles to his counsel.

Gholar’s employer told him that the business did not have insurance, (id. at 131-32), and Gholar could not afford to go to the hospital (id. at 133), and so he did not get medical attention for his eye until a few days after the accident. (Id.). The clinic he visited referred him to an ophthalmologist, who removed “some kind of object” from Gholar’s eye. (Id. at 137).. Gholar has lost vision in his left eye and can no longer perform his work. He alleges that either A O Safety or 3M manufactured and/or distributed the safety goggles with a design defect, that the goggles were unreasonably dangerous, and that the defendants knew about the dangerous nature of the goggles and failed to provide warnings to consumers.

Plaintiff’s Expert, John Ryan

Gholar engaged John Ryan, P.E., to analyze the goggles and provide expert opinions about their design. Ryan testified in his deposition that he believed the lens was polycarbonate and the frame was “a type of PVC, plastic frame.” (Ryan Dep. 49, ECF No. 102-7). He did not know specifically if these materials were used in the subject goggles, but “[tjypically, these— the lenses are made out of polycarbonate.” (Id. at 50). He conducted online research to determine what materials safety goggles are generally made of. (Id. at 50-51). He understood that the subject goggles were manufactured sometime in the 2003 to 2010 timeframe, although he was not sure why he had that understanding. (Id. at 61).

The lens of the subject goggles was rated Z87 plus and the frame was rated Z87. (Id. at 53). Z87 plus indicates a higher impact rating than Z87, although Ryan could not state what the manufacturer did differently to obtain the different ratings. (Id. at 54, 57-58). In order to conduct his tests, Ryan purchased ten pair of Z87 goggles and used two pairs of Z87 plus goggles that he either purchased or already owned and had been using. (Id. at 56, 71). He also conducted tests on the subject goggles. When Ryan received the subject goggles, the frame and lens were no longer connected along the bottom edge. (Id. at 45-46, 47).

Ryan conducted hardness, ball drop and penetration tests on the subject goggle lens, finding that it met the ANSI standards as to all three. However, it failed a high-mass penetration test, as the lens separated from the frame more than allowed by the ANSI standard. Ryan testified that he concluded the goggles were defectively designed, because, over time, the frame became too stiff, resulting in a tendency of the frame and lens to separate from one another when impacted.

When questioned at the hearing, Ryan could not state what the industry standard was for retaining flexibility in a safety goggle frame. He thought that the frame should remain flexible for longer than it had though, because the lenses were removable and the frames might house any number of lenses over the years they were in service. He testified that the manufacturer should use a frame material “that doesn’t degrade in the manner that this [frame] material degrades in over time.”

When questioned about a possible manufacturing defect claim, Ryan stated that he did not know what the manufacturing specifications were for any of the goggles he tested, and therefore he did not know if [860]*860the subject goggles were manufactured without a defect.

A.Daubert Standard

Federal Rule of Evidence 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.Evid. 702. Expert testimony “serves to inform the jury about affairs not within the understanding of the average man.” United States v. Moore, 997 F.2d 55, 57 (5th Cir.1993) (quoting United States v. Webb, 625 F.2d 709, 711 (5th Cir.1980)). Therefore, “[a] district court should refuse to allow an expert witness to testify if it finds that the witness is not qualified to testify in a particular field or on a given subject.” Wilson v. Woods, 163 F.3d 935, 937 (5th Cir.1999) (citing Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 781 (3d Cir.1996)). The issue is whether a particular expert has “sufficient specialized knowledge to assist the jurors in deciding the particular issues [in the case].” Tanner v. Westbrook, 174 F.3d 542, 548 (5th Cir.1999) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). “Whether a witness is qualified to testify as an expert is left to the sound discretion of the trial judge, who is in the best position to determine both the claimed expertise of the witness and the helpfulness of his testimony.” Sullivan v.

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39 F. Supp. 3d 856, 95 Fed. R. Serv. 226, 2014 U.S. Dist. LEXIS 118898, 2014 WL 4179910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gholar-v-a-o-safety-mssd-2014.