S.S. v. Peloton Interactive, Inc.

• Court: District Court, S.D. California
• Decided: April 17, 2023
• Docket: 3:21-cv-01367
• Status: Unknown

Opinion

APR 17 2023 | 5 x 5 ro CAL □□ 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |; 5-S., a minor, by and through his Guardian ) Case No.: 3:21-cv-01367-BEN-DEB ad Litem Eunjin Stern; EUNJIN STERN, _ ) 12 || an individual; WILLIAM STERN, an ) ORDER DENYING DEFENDANT’S 13 || individual,, ) MOTION TO EXCLUDE EXPERT 4 Plaintiff. ) TESTIMONY ) 15 Vv. ) 16 || PELOTON INTERACTIVE, INC., a "7 Delaware corporation; DOES | through ) 50, inclusive, ) [ECF No. 65] 18 Defendant. ) 19 20 || 1. INTRODUCTION 21 Plaintiff S.S., a minor, by and through his Guardian ad Litem Eunjin Stern (“S.S.”); 22 || Eunjin Stern, an individual (“Mrs. Stern”); and William Stern, an individual (“Mr. Stern”) || (collectively, “Plaintiffs”) bring this action against Defendant Peloton Interactive, Inc., a || Delaware corporation (“Defendant”) for injuries allegedly sustained in connection with || Defendant’s Tread+ treadmill (the “Tread+”). Before the Court is Defendant’s Motion to |} Exclude Expert Testimony. ECF No. 65. The Motion was submitted on the papers without || oral argument pursuant to Civil Local Rule 7.1(d)({1) and Rule 78(b) of the Federal Rules || of Civil Procedure. ECF No. 70. After considering the papers submitted, supporting -|-

1 |]documentation, and applicable law, the Court DENIES Defendant’s Motion to Exclude 2 Expert Testimony. BACKGROUND 4 A. Statement of Facts 5 According to the Complaint, around March 2020, while Mr. Stern was exercising on 6 Tread+, his three-year-old son, S.S., approached the rear of the Tread+ without Mr. 7 || Stern’s knowledge and was pulled under the 450-pound machine, with Mr. Stern’s added 8 || body weight of 150 pounds. ECF No. 1-2 (“Compl.”) at 3, 97 1, 5, 10. As soon as Mr. 9 |) Stern realized his child was stuck underneath the Tread+, he dismounted and attempted to 10 ||remove him, but S.S. was repeatedly sucked back under the Tread+. /d. at 3,91. Mrs. 11 came to help. /d. Both parents attempted to pull S.S. from underneath the Tread+ 12 |; by his hands, shoulders, and torso, but they were unable to successfully remove him. /d. 13 || at 3, 2. Mr. Stern attempted to lift the Tread+ but this failed as well. Ja Mr. Stern was 14 || able to remove S.S. when Mrs. Stern triggered the Tread+’s ripcord, which caused the 15 || Tread+ to come to a halt. fd. at 3-4, J 2. Plaintiffs allege that S.S. sustained injuries along 16 ||his arms and shoulders, including but not limited to contusions along his torso, stomach, 17 || and ribs, as well as a laceration and permanent scarring to his stomach. /d. 18 Around May 2021, Defendant issued a recall of its Tread+ Treadmills after the 19 || United States Consumer Product Safety Commission (the “CPSC”) cautioned parents || against the use of the machines due to the risk of injury and death. Jd. at 4,93. The CPSC || learned of numerous other incidents of children being sucked beneath the treadmills. Jd _ B. Procedural History On May 7, 2021, Plaintiffs filed suit against Defendant in state court, alleging six ||causes of action for: (1) negligence; (2) negligent infliction of emotional distress; (3) |{negligent infliction of emotional distress; (4) intentional misrepresentation; (5) negligent || misrepresentation; and (6) intentional concealment. See Compl. Defendant removed the || case to this Court. The parties engaged in discovery and on January 18, 2023, Defendant || filed the instant Motion to Exclude Expert Testimony. ECF No. 65 (“Motion”). Plaintiffs

1 {| filed an Opposition, see ECF No. 68 (“Oppo.”), and Defendant replied, see ECF No. 69. LEGAL STANDARD 3 Rule 702 of the Federal Rules of Evidence set forth the following requirements to 4 establish admissibility of expert opinion evidence: (1) the witness must be sufficiently 5 || “qualified as an expert by knowledge, skill, experience, training, or education;” (2) the 6 || scientific, technical, or other specialized knowledge must assist the trier of fact” either “to 7 || understand the evidence” or “to determine a fact in issue;” (3) the testimony must be “based 8 || on sufficient facts and data;” (4) the testimony must be “the product of reliable principles 9 || and methods;” and (5) the expert must reliably apply the principles and methods to the facts 10 |, of the case. “District courts have broad discretion under Rule 702... . concerning the 11 }/admissibility of expert testimony.” Shore v. Mohave Cnty., State of Ariz., 644 F.2d 1320, 12 || 1322 (9th Cir. 1981) (citations omitted). 13 When evaluating expert testimony, the trial court is “a gatekeeper, not a fact finder.” 14 || Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quoting United States v. Sandoval- [5 || Mendoza, 472 F.3d 645, 654 (9th Cir. 2006)). “Shaky but admissible evidence is to be 16 || attacked by cross examination, contrary evidence, and attention to the burden of proof, not 17 |fexclusion.” Primiano, 598 F.3d at 564 (citation omitted). The district judge is “supposed 18 ||to screen the jury from unreliable nonsense opinions, but not exclude opinions merely 19 || because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 | F.3d 960, 969 (9th Cir. 2013). Simply put, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it |} would be helpful to a jury.” Jd at 969-70. “When an expert meets the threshold established by Rule 702 as explained by the Supreme Court in Daubert and its progeny, the may testify and the jury decides how much weight to give that testimony.” || Primiano, 598 F.3d at 565. “Trial courts have ‘broad discretion’ in this analysis,” see || Mathis v. Milgard Mfg., Inc., No. 3:16-cv-02914-BEN-JLB, 2019 WL 482490, at *1 (S.D. || Cal. Feb. 7, 2019) (quoting United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000)), || and the tests for admissibility in general, and reliability, are flexible. Primiano, 598 F.3d -3-

1 at 564. DISCUSSION 3 Defendant seeks to exclude the expert testimony of Dr. Miele, arguing it is 4 || inadmissible under Federal Rule of Evidence 702. Motion at 7. Defendant argues that Dr. S || Miele’s testimony is: “(1) irrelevant and would not help the trier of fact; (2) not based on 6 || sufficient facts or data; (3) not based on reliable principles and methods; and (4) not based 7}/on a reliable application of the principles and methods to the facts of the case.” Jd. 8 ||Defendant further states that the testimony “improperly states legal conclusions and 9 || extends to issues outside |Dr. Miele’s] limited expertise.” /d. at 7-8. 10 Plaintiffs counter that Dr. Miele was retained to serve as a “standard of care expert . . for the purpose of opining [] [on] whether Defendant breached the applicable fitness 12 |/industry standard of care by selling treadmills to consumers that have the proclivity of 13 || pulling and entrapping children underneath treadmills.” Oppo. at 1~2. Plaintiffs argue that 14 || Defendant “missed the mark in terms of the purpose of a standard of care expert by 15 |j emphasizing warnings in its briefing, for example.” /d. at 2. Instead, Plaintiffs assert they 16 utilizing Dr. Miele based on her more than 30 years of experience in the fitness 17 ||equipment, sports recreation, and fitness industries to address whether the applicable 18 || standard of care was breached in this case. Id. 19 A. Qualifications 20 Defendant argues that Dr. Miele’s opinions extend beyond her qualifications and 21 |}area of expertise. Motion at 17. Defendant contends that “Dr. Miele is not qualified to 22 || opine on the adequacy of the Tread+ warnings because she lacks necessary human factors || qualifications.” /d. Defendant then draws a distinction between an expert qualified to || provide an opinion on whether a warning is necessary versus an expert qualified to provide || an opinion on whether a warning is adequate. /d. Finally, Defendant argues that Dr. Miele || opines on various subjects that she herself admits are not within her expertise, including: ||(1) the Tread+ rear guard prototype in her Report; (2) that Defendant’s marketing “provides || a false sense of security” and misleads consumers; and (3) the purported effect Defendant’s a -4-

| advertising had on the Sterns. /d. at 18. However, Defendant asserts that Dr. Miele 2 admitted she does not have experience in engineering, or the effect advertisements have on 3 person’s perception. /d, 4 Plaintiffs argue that “Dr. Miele is qualified to testify regarding the applicable 5 || standard of care in the fitness industry that extends to a treadmill manufacturer (and has 6 || been qualified to testify at trial).” Oppo. at 7. Plaintiffs contend that “outside of serving 7 |/as a forensic consultant for sporting equipment, sport fitness and recreation safety, [Dr. 8 || Miele] holds a Doctorate in Psychology with an emphasis on Sport and Exercise and an 9 || undergraduate degree in Exercise Science and Physical Education.” Jd. Plaintiffs further 10 || argue that “Dr. Miele has worked with numerous sports, fitness and recreational facilities It ||around the country performing risk analysis involving sports fitness/exercise and sports 12 |jequipment.” Jd. Plaintiffs also cite Dr. Miele’s experience as an adjunct professor, her 13 || certification as a Life Fitness Equipment Technician (among others), that she sits on two 14 ||committees through the American College of Sports Medicine, and prior experience in 15 || which she worked to prevent sports injuries and perform risk analysis involving fitness 16 ||}equipment. /d. at 7-8. 17 The Court finds that Dr. Miele’s experience in the field qualifies her to opine on 18 || standards of care as they relate to fitness equipment. In this case, Dr. Miele’s experience 19}/in risk management and working with treadmills specifically, qualifies her to provide 20 || opinions as to the Tread+ warnings or lack thereof. Dr. Miele has been in the forensic 21 |} consulting industry—as it relates to fitness, injury prevention, and more—since 2007. See 22 || Ex. 5 to Motion at 10-11. Dr. Miele also has experience teaching risk management and |; articulating standards of care. Dr. Miele’s testimony on a potential rear guard does not || require expertise in mechanical engineering or design. The opinions to be offered are based |}on Dr. Miele’s experience working on and with treadmills and general concepts of safety the industry. Whether her opinions should be afforded evidentiary weight and how weight, is for the jury to decide. Defendant may cross-examine Dr. Miele as to her || credibility and qualifications, including any lack of experience, at trial. For purposes of -5-

1 || Defendant’s Motion to Exclude, however, Dr. Miele has sufficient experience and skill in 2 || the industry to qualify as an expert witness. See Stone Brewing Co., LLC v. MillerCoors 3 || LEC, No. 3:18-cv-00331-BEN-LL, 2020 WL 907060, at *7 (S.D. Cal. Feb. 25, 2020) ; see 4 || also infra Part TV.C. 5 B. Relevance 6 “The requirement that expert testimony ‘assist the trier of fact’ either ‘to understand 7 || the evidence’ or “to determine a fact in issue’ goes primarily to relevance.” Stone Brewing 8 || Co., No. 3:18-cv-00331-BEN-LL, 2020 WL 907060, at *7 (quoting Daubert v. Merrell 9 || Dow Pharms., Inc., 509 U.S. 579, 591 (1993)). “Expert opinion testimony is relevant if 10 knowledge underlying it has a valid connection to the pertinent inquiry.” Stone 11 || Brewing Co., No. 3:18-cv-00331-BEN-LL, 2020 WL 907060, at *7 (quoting Primiano, 12 || 598 F.3d at 565). {3 Defendant argues Dr. Miele admitted “that different warnings—including warnings 14 || that directly addressed the risk of pull-under—would not have prevented the incident.” 15 Motion at 8. Essentially, Defendant argues that because Dr. Miele’s testimony on the 16 || adequacy of the warning cannot show that the alleged failure to warn caused the incident, 17 || her testimony is irrelevant and should be excluded. Jd. at 9. Defendant also claims, “Mr. 18 || Stern testified that he did not read the warnings located on the treadmill and if he had 19 }|received the user manual or safety card, he would not have read them.” Jd. As such, || Defendant argues “that any change to the warnings would have been futile because Mr. did not read [Defendant]’s warnings.” /d. at 10. Plaintiffs counter that “[u}nless the ||jury is aware of the applicable standard of care in the fitness industry that extends to treadmill manufacturers and sellers, the trier of fact will ... benefit from Dr. Miele’s |\testimony.” Oppo. at 8. The conclusions cited in Dr. Miele’s expert report are that || Defendant:

1. [FJailed to properly inform and warn the public regarding specific hazards of its Treadmill+, such as children, pets, and objects potentially being pulled and trapped beneath the equipment. This violated the fitness -6-

1 industry’s standard of care, created a dangerous condition, and increased the risk of S.S.’s emotional and physical injuries[;] [and]

3 2. [F]ailed to properly instruct the public about its safe and proper uses. By failing to do so, [Defendant] created a dangerous condition increasing the 4 risk of $.S.’s emotional and physical injuries. 5 6 || Ex. 5 to Motion at 8. However, Dr. Miele testified that a specific reference to the risk of 7||pull-under would not have prevented this accident, “because there was nothing 8 ||safeguarding and preventing a child from being pulled under and becoming entrapped 9 || under the treadmill.” Ex. 6 to Motion at 50. As to Mr. Stern, he apparently did not testify 10 || that he would not have read the warning if it had been provided. Instead, he indicated that might not have, but “couldn’t say.” See Ex. 4 to Motion at 9-10. Although Dr. 12 || Miele’s—and to some extent, Mr. Stern’s—testimony appear to undercut Dr. Miele’s 13 {;conclusions regarding the adequacy of Defendant’s Tread+ warnings and whether the 14 Tread+ failed to meet the standard of care/best practices, the deposition testimony goes 15 more to the strength of the evidence than it does to the relevance. 16 Defendant’s arguments may be persuasive but do not require exclusion of Dr. 17 || Miele’s testimony based on lack of relevance. Defendant may cross-examine and attempt 18 || to impeach Dr. Miele at trial. Despite the alleged admissions by Dr. Miele and Mr. Stern 19 ||in deposition testimony, Dr. Miele’s opinions may assist the trier of fact in determining 20 |; whether Defendant met the standard of care in the industry for marketing and supplying 21 instructions/warnings for the Tread+. Accordingly, the Court exercises its broad discretion 22 |!under Rule 702 and finds the proposed opinion testimony at issue sufficiently relevant 23 ||under Rule 702. See Rosenberg v. Renal Advantage, Inc., No. 11-cv-02152-GPC-KSC, 24 WL 3205426, at *3 (S.D. Cal. June 24, 2013) (citing United States v. Alatorre, 222 25 F.3d 1098, 1100 (9th Cir. 2000), aff'd, 649 F. App’x 580 (9th Cir. 2016) (explaining that || a district court has broad discretion in assessing relevance)). C. Reliability The test for reliability under Rule 702 is flexible. Primiano, 598 F.3d at 564. The

1 |} Supreme Court has provided several factors to determine reliability: (1) whether a theory 2 technique is testable; (2) whether it has been published in peer reviewed literature; (3) 3 || the error rate of the theory or technique; and (4) whether it has been generally accepted in 4 || the relevant scientific community. Mukjtar v. Cal. State Univ., 299 F.3d 1053, 1064 (9th 5 2002) (summarizing Daubert, 509 U.S. at 592-94), overruled on other grounds by 6 || Estate of Barabin v. Asten Johnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014). These factors 7 meant to be “helpful, not definitive.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 8 ||} 151 (1999). The court “has discretion to decide how to test an expert’s reliability as well 9 ||as whether the testimony is reliable, based on the particular circumstances of the particular 10 Primiano, 598 F.3d at 564 (citations and quotation marks omitted). Once the 11 || threshold established by Rule 702 is met, the expert may testify, and the fact finder decides 12 ||}how much weight to give that testimony. Primiano, 598 F.3d at 565; see also Pyramid 13 || Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014). 14 Defendant argues that “Dr. Miele failed to apply any methodology in forming her 15 |}opinions on warnings, which is grounds to exclude her testimony.” Motion at 13. 16 || Defendant contends that Dr. Miele explained the proper methodology but did not use that 17 || methodology, or any similar process and instead, “admitted she has never seen [Plaintiffs’] 18 Tread+ or ever used a Tread+.” /d. at 14. Defendant further argues that Dr. Miele’s expert 19 and deposition testimony show that she did not review or inspect: (1) the warnings 20 Plaintiffs’ Tread+; (2) the location where the incident occurred; (3) the Tread+ safety || card; (4) any of the five safety standards the Tread+ was certified to; or (5) the documents || certifying the Tread+ to the relevant safety standards. Motion at 10. Defendant argues that ||Dr. Miele’s failure to review and/or inspect the equipment and information “establishes || that her opinions are merely speculative and unreliable.” /d. at 11. Defendant argues based Dr. Miele’s lack of review, she does not have the foundation necessary to opine on || Defendant’s warnings. Jd. at 11-12. Defendant further argues that Dr. Miele ignored standards involving ||home/residential exercise equipment and instead, relied on standards applicable to -8-

1 commercial gyms. /d@. at 13. Defendant further argues that Dr. Miele sits on a committee 2 || that plays a role in developing these widely accepted standards, but she still ignored them. 3 Defendant argues that Dr. Miele’s opinions are also unreliable because she identified 4 ||no deficiencies with the Tread+ warnings, nor did she provide alternative warnings. /d. at 5 Defendant cites Dr. Miele’s deposition testimony, arguing she admitted to not having 6 || an opinion as to what the warnings should say, nor did she have an opinion on where the 7 warning sticker should be placed or the most effective way to convey the warning to 8 consumers. /d. Defendant also points out that Dr. Miele does not point to a single Tread+ 9 || warning and instead, provides broad opinions. /d. 10 Plaintiffs argue that Dr. Miele is a non-scientific expert and as such, scientific 11 || reliability of testing or peer review do not apply here. Oppo. at 8. Plaintiffs contend that 12 ||“Dr. Miele’s testimony is sufficiently reliable because it is based on over 30 years of 13 || personal knowledge and experience in sports fitness, recreation and sports equipment.” /d. 14 || Finally, Plaintiffs argue that “Dr. Miele has used, instructed others on the use of, tested, 15 ||inspected and performed risk analysis on fitness equipment, including treadmills ... . and 16 Defendant’s Motion fails to include expert opinions in support of their contention 17 ||regarding Dr. Miele’s methodology.” Jd The Court finds Dr. Miele’s opinions to be 18 || sufficiently reliable to be admissible. 19 “The Ninth Circuit has found opinions based on an expert’s experience in the 20 || industry to be proper: ‘When evaluating specialized or technical expert opinion testimony, 21 || the relevant reliability concerns may focus upon person knowledge or experience.’” GSJ 22 || Tech., Inc. v. Cypress Semiconductor Corp., No. 11-cv-03613-EJD, 2015 WL 364796, at 23 || *2 (N.D. Cal. Jan. 27, 2015) (quoting United States v. Sandoval-Mendoza, 472 F.3d 645, 24 (9th Cir. 2006)). “Subjective beliefs and opinions are proper expert testimony.” Jd. 25 || Here, Dr. Miele has extensive experience working in the fitness industry and with fitness 26 |}equipment, including treadmills. Her experience working with clients using fitness 27 \|}equipment, being certified as a Life Fitness Equipment Technician, and teaching risk 28 ||management with respect to fitness equipment, suffices for an expert opinion based on -9-

1 || specialized experience. See Ex. 5 to Motion at 10-22; Ex. 6 to Motion at 11, 13-14, 2||17, 40. See Stone Brewing Co., No. 3:18-cv-0033!-BEN-LL, 2020 WL 907060, at *9 3 || (explaining that the expert’s experience in the field qualified testimony relating to that 4 || field). 5 The fact that: (1) Dr. Miele did not inspect the Sterns’ Tread+ and other documents 6 || specific to the device; or (2) that Dr. Miele’s experience is working with commercial fitness 7 || equipment rather than residential equipment, may well undercut the weight to be given her 8 |/opinions. Nevertheless, “[e]xperts are not required to have previous experience with the 9|/product at issue; rather, they must be qualified to testify by ‘by knowledge, skill, 10 ||experience, training or education.’” Czuchaj v. Conair Corp., No. 3:13-cv-01901-BEN- 11 ||RBB, 2016 WL 4414673, at *3 (S.D. Cal. Aug. 19, 2016) (quoting Myrick v. U.S. Saws, 12 No. C11-1837Z, 2013 WL 766192, at *4 (W.D. Wash. Feb. 28, 2013)). Here, Dr. 13 has experience with treadmills in general and has seen a Tread+ in person, even 14 || though it was not Plaintiffs’ Tread+. See Ex. 6 to Motion at 4-6. Dr. Miele’s expert report 15 || suggests she is somewhat familiar with the device at issue, listing 20 documents that she 16 j|reviewed, including Plaintiffs’ Complaint, discovery responses, deposition transcripts, 17 ||Defendant’s blog (classes and workouts), Defendant’s marketing materials, Tread+ 18 || verifications, the Tread+ User Manual (Pel Stern 000002), the Tread+ Recall Notice (Pel 19 || Stern 000044), and the Consumer Product Safety Commission’s warnings on using the 20 || Tread+ (Pel Stern 000034). Ex. 5 to Motion at 2-3. 21 Dr. Miele says she has taught a risk management class related to fitness equipment, 22 || which involved evaluating warnings to ensure proper use of equipment. Jd. at 13-14. 23 ||Furthermore, she says that some of her fitness and training certifications relate to 24 |jtreadmills. Jd at 17. Dr, Miele says she attended a five-day course learning about 25 treadmills, and the training included “how to properly maintain them.” /d. She says that 26 {| the training related to both commercial and consumer treadmills. /d. at 17-18. And while 27 |j the testimony is not entirely clear, Dr. Miele also appears to state that she has a Life Fitness 28 || Certification that relates to home fitness equipment. /d at 18. Dr. Miele’s opinion -10-

1 || distinguishes between the commercial standard and the standard for residential equipment, 2||opining that a heightened standard of care exists in the consumer context, because 3 |} consumers rely more on warnings and proper instructions. /d. at 43. Whether her opinions 4 |/are helpful are for a jury to determine. 5 As to the argument that Dr. Miele pointed to no deficiencies or alternative warnings 6 || Defendant could have used, the argument appears to be a misinterpretation. Dr. Miele’s 7 || deposition testimony records some discussion about a specific deficiency in the warning, 8 || stating that it only said to keep pets and children away from the treadmill! but that “[t]he 9 || general public and the consumer has the right to know what the danger could be if there is 10 something in terms of danger.” /d. at 48. Dr. Miele testified that the risk here was a pulling 11 || hazard at the back of the treadmill. Jd. Dr. Miele further opined that the Tread+ should 12 been removed from circulation when Defendant learned that objects and children 13 j| could be pulled under, similar to ina commercial gym. /d. at 50~-51, Dr. Miele explained 14 || the basis of her opinion mentioning Defendant’s supposed knowledge that anything could 15 come into contact with the Tread+ belt and set under the 450-pound machine. /d. at 55. 16 || The opinion is based at least in part on an email sent to Defendant about a child being 17 sucked under (in 2019) and reports Defendant received prior to Plaintiffs’ incident. /d. at 18 55-56. Dr. Miele also discussed the marketing materials, which include a picture of a 19 || parent and child working out together next to a Tread+. /d. at 54. Although Dr. Miele did perform a scientific test, her opinion appears to be one based on her experience and || knowledge in the industry and her understanding of operating a treadmill. Whether those || opinions are correct is not for the Court to decide. See Stone Brewing Co., No. 3:18-cv- 1}00331-BEN-LL, 2020 WL 907060, at *2 (quoting Daubert v. Merrell Dow || Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (“[T]he test under Daubert is

| Defendant argues that Dr. Miele did not review Tread+ warnings, but Dr. Miele || appears to quote them in her deposition testimony. Foundation must be established at trial but for purposes of this Motion to Exclude, the Court cannot say that Dr. Miele did not || review the applicable warnings. -|1-

1 the correctness of [experts’] conclusions but the soundness of [their] methodology.”)). 2 A finding that Dr. Miele may testify as an expert provides no opinion as to the 3 || strength or credibility that should be afforded the testimony. Those questions are for the 4 ||jury, and the Court reserves the right to respond to objections made during any trial 5 || testimony. 6 Legal Conclusions 7 Defendant argues that Dr. Miele’s opinions and testimony are inadmissible because 8 ||she provides only legal conclusions to be decided by the trier of fact. Motion at 16-17. 9 || Defendant also argues that “[t]o the extent Dr. Miele offers an opinion on [Defendant]’s 10 || knowledge or state of mind,” those opinions are inappropriate expert testimony. /d. at 17. 11 Based on the deposition testimony and expert report provided, at this point, the Court finds 12 || Dr. Miele’s findings and explanations to be opinions of the Tread+ and its warnings, and 13 ||not legal conclusions. Dr. Miele provided reasoning for these opinions in her testimony 14 |/and that reasoning will be subject to cross-examination at trial. But her opinions are not 15 || legal conclusions just because they to go to the adequacy of the warnings. See Vasquez v. 16 || Leprino Foods Co., No. 1:17-cv-00796-A WI-BAM, 2023 WL 2167245, at *27 (E.D. Cal. 17 || Feb. 22, 2023) (“Boedeker’s opinions are not legal conclusions just because they embrace 18 ultimate issue in the case.”); Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 19 |}998, 1017 (9th Cir. 2004) (quoting Specht v. Jensen, 853 F.2d 805, 809 (10th Cir.1988) 20 ||(“[A] witness may refer to the law in expressing an opinion without that reference 21 rendering the testimony inadmissible. Indeed, a witness may properly be called upon to aid 22 ||the jury in understanding the facts in evidence even though reference to those facts is 23 || couched in legal terms.”). The Court reserves the right to hear objections during Dr. 24 || Miele’s trial testimony but for purposes of the instant Motion, Defendants have not shown 25 ||that Dr. Miele’s opinions are subject to exclusion. 26||V. CONCLUSION The Court exercises its broad discretion under Rule 702 and denies Defendant’s | {|| Motion to Exclude Expert Testimony. See Leeds LP v. United States, No. 08-cv-00100- -12-

1 || BTM-BLM, 2010 WL 3911429, at *2 (S.D. Cal. Oct. 5, 2010) (citing Hangarter v. 2 || Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004)) (“[T]rial judges are 3 |lentitled to broad discretion in determining both whether an expert’s non-scientific 4 || testimony is reliable and how to measure reliability.”) 5 IT ISSO ORDERED.

DATED: April 17, 2023 7 ~ ROGER T. ITEZ United States Distryét Judge 9 10 11 12 13 14 1S 16 17 18 19 20

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