United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge.
before the Court is Plaintiff Corey Cusack's Motion to
exclude the expert testimony of Joshua Yanes-one of Defendant
BendPak, Inc.'s (“BendPak”) expert witnesses.
Dkt. 68. BendPak has also filed three Motions seeking to
exclude or limit the testimony of three of Cusack's
experts. Dkts. 69, 70, 71. After BendPak filed its motions,
Cusack filed a Motion to Strike (Dkt. 75), seeking to strike
Exhibit F (Dkt. 71-7) filed by BendPak in support of its
third Motion to exclude (Dkt. 71). Having reviewed the record
and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the
interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly
aided by oral argument, the Court will decide the Motion
without oral argument. Dist. Idaho Loc. Civ. R.
7.1(d)(2)(ii). For the reasons outlined below, the Court will
GRANT Cusack's Motion to Exclude the Testimony of Joshua
Yanes, GRANT in PART and DENY in PART BendPak's Motion to
Exclude the Testimony of Scott Kimbrough, DENY BendPak's
Motion to Exclude Certain Portions of Tyler Bowles'
Testimony, GRANT Cusack's Motion to Strike Exhibit F, and
DENY BendPak's Motion to Exclude the Testimony of Hugh
FACTUAL AND PROCEDURAL BACKGROUND
matter involves an allegedly defective car lift accessory
part that malfunctioned and injured Cusack. On or about
February 8, 2011, Corey's Auto Works, LLC, an automobile
service and mechanical shop, owned and operated by Corey
Cusack, purchased a BendPak Car Lift System and two RJ-7
about June 27, 2014, while Cusack was working at his garage,
he realized that one of the Rolling Jacks on the BendPak Car
Lift was out of proper position and went over to correct the
problem. It is unclear how, but one of the Rolling Jacks fell
off the Car Lift System and landed on Cusack's foot,
crushing it. Cusack asserts he sustained various injuries and
damages as a result. He further alleges that BendPak knew the
Rolling Jacks posed a risk of serious harm but did nothing
case is now approaching trial. The Court has made substantial
rulings on various matters. At the current junction, the
parties have filed Daubert Motions seeking to limit,
or altogether exclude, the testimony of experts who will
testify at trial. The Court will address each motion-and the
corresponding expert-in turn.
extent to which experts may render an opinion is addressed
under the well-known standard established in Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and its
progeny, and now set forth in Rule 702 of the Federal Rules
of Evidence. See Moore v. Deer Valley Trucking,
Inc., No. 4:13-CV-00046-BLW, 2014 WL 4956241, at *1 (D.
Idaho Oct. 2, 2014).
702 establishes several requirements for admitting an expert
opinion. First, the evidence offered by the expert must
assist the trier of fact either to understand the evidence or
to determine a fact in issue. Primiano v. Cook, 598
F.3d 558, 563 (9th Cir. 2010); Fed.R.Evid. 702. “The
requirement that the opinion testimony assist the trier of
fact goes primarily to relevance.” Id.
(internal quotation marks and citation omitted).
the witness must be sufficiently qualified to render the
opinion. Id. If specialized knowledge will assist
the trier of fact in understanding the evidence or
determining a fact in issue, a witness qualified by
knowledge, skill, experience, training or education may offer
expert testimony where: (1) the opinion is based upon
sufficient facts or data, (2) the opinion is the product of
reliable principles and methods; and (3) the witness has
applied those principles and methods reliably to the facts of
the case. Fed.R.Evid. 702; Daubert, 509 U.S. at
592-93; Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). The inquiry is a flexible one. Primiano,
598 F.3d at 564. Ultimately, a trial court must “assure
that the expert testimony both rests on a reliable foundation
and is relevant to the task at hand.” Id.
(internal quotation marks and citation omitted).
and relevance, however, must be distinguished from problems
with expert opinions that amount to impeachment and,
consequently, do not warrant exclusion. See City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th
Cir. 2014) (stating that, under Daubert,
“[t]he judge is ‘supposed to screen the jury from
unreliable nonsense opinions, but not exclude opinions merely
because they are impeachable.'” (quoting Alaska
Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d
960, 969 (9th Cir. 2013))). Thus, “[a]s
Daubert confirmed, ‘[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.'” United States v.
Wells, 879 F.3d 900, 933 (9th Cir. 2018) (quoting
Daubert, 509 U.S. at 596).
Cusack's Motion to Exclude Testimony of Joshua Yanes
seeks to exclude the testimony of BendPak's expert Joshua
Yanes on the basis that he is not qualified to testify.
Alternatively, if the Court determines that Yanes is
qualified, Cusack alleges that his opinions are nonetheless
irrelevant and unreliable.
Yanes is a staff engineer employed by Vollmer-Gray
Engineering Laboratories. Yanes has a bachelor's degree
in engineering. Yanes claims that his area of expertise
includes “fork lift, boom lift, [and] scissor lift
accident analysis.” Dkt 78-2, at 2. Yanes has
certifications associated with these types of lift systems.
Yanes has never testified at trial or in a deposition.
claims that Yanes is inexperienced and unqualified to render
an opinion on the equipment at issue in this case. Cusack
cites to Yanes' lack of an advanced degree or practical
experience with car lifts and jacks as reasons warranting
exclusion of his testimony. Furthermore, Cusack postures that
even if the Court were to entertain Yanes as an expert, his
opinions are severely lacking.
fact that Yanes has never testified as an expert before is of
little importance to the Court. Everyone must start
somewhere. His lack of experience in litigation may make him
impeachable but it does not make him unqualified. Of greater
concern, however, is the fact that although Yanes's field
of expertise is related to the subject matter of
this lawsuit, it is not clear whether this is enough to
qualify him as an expert on the technology at issue. The
closest experience Yanes has to car lifts is his assertion
that he specializes in fork lift, boom lift, and scissor lift
accident analysis. Yanes has not explained, however, how
being an expert in these areas qualifies him as an expert on
the topic of automobile lifts or-more critically-rolling
jacks. BendPak's assertions that the mechanism and
operations of these various lift systems are similar is not
sufficient to meet this burden. The Court understands that
they are both lift systems, but they utilize different
technology and ultimately have different specifications and
purposes. Without any evidence of the connection between
these two mechanisms, the Court concludes that Yanes's
testimony strays from the “reasonable confines of his
subject area.” Avila v. Willits Envtl. Remediation
Tr., 633 F.3d 828, 839 (9th Cir. 2011) (internal
quotation marks omitted). See also, Stewart
Title Ins. Co. v. Credit Suisse, No. 1:11-CV-227-BLW,
2015 WL 4250704, at *11 (D. Idaho July 13, 2015) (finding
that an attorney expert witness was not qualified to testify
regarding title insurance even though he had 30 years'
experience representing clients in casualty insurance and
general insurance bad faith.)
assuming, arguendo, that Yanes was qualified to testify, his
opinions lack relevant support, are speculative, or are
otherwise not true expert opinions. The Court will briefly
address each of Yanes's conclusions below and the reasons
the Court finds them unpersuasive.
Cusack understood that the BendPak RJ-7 rolling bridge jack
is heavy and that a cherry picker or crane is needed to lift
it on or off the rails.
first problem with this conclusion is it appears to be a mere
recitation of the facts as understood by Cusack, i.e., no
expert testimony is needed for this conclusion. Second, and
more importantly, this opinion strays into the human factors
field, i.e. what Cusack understood.
factors analysis is a scientific discipline that develops and
applies knowledge about how people use and interact with
machines, systems, and environments. See Goehring v.
Flying J, Inc., No. CV 99-007-S-MHW, 2005 WL 6190823, at
*2 (D. Idaho Apr. 23, 2005). Yanes has not identified himself
as a human factors expert nor does he give any support for
his conclusions interpreting Cusack's behavior or alleged
understanding. What Cusack may or may not have understood, or
how he may or may not have reacted under certain conditions,
are topics that Yanes is not qualified to speak to.
It is likely that the grooved rollers for the jack were off
track while the lift was previously on the ground and
possibly before the Subaru was driven on the lift
conclusion is pure speculation. Yanes does not identify any
tests, measurements, or other research he conducted
specifically concerning the RJ-7 Rolling Jacks that would aid
the jury in understanding when, and how, the RJ-7 jack came
off the tracks. “Likely” and
“possibly” are not enough. It appears that Yanes
visited Cusack's business, inspected the car lift and
rolling jacks, and then opined as to certain possible
outcomes. Without further testing or experimentation as to
how and why rolling jacks come off track, this conclusion is
speculative and not the proper basis for expert testimony.
speculation is insufficient to support an expert opinion.
Pierson v. Ford Motor Co., 445 Fed.Appx.
966, 968 (9th Cir. 2011) (finding that “an expert's
opinions and conclusions which are based on nothing more than
speculation cannot constitute substantial evidence”);
see also Daubert, 509 U.S. at 590 (noting that
expert testimony based on mere “subjective belief or
unsupported speculation” is inadmissible).
Cusack understood the caution decal found on the front of the
subject rolling bridge jack and should have lowered the lift
before attempting to align the jack rollers back on the
utility rail to avoid serious bodily harm.
assertion is very similar to Yanes' first conclusion and
suffers from the same flaws. Cusack does not dispute that he
was aware of the caution decals and was aware of the
recommendation that he lower the jack before trying to adjust
it. As before, this recitation of Cusack's testimony does
not require expert witness testimony. Second, Yanes is not a
human factors expert and his opinion as to what Cusack
understood about the caution decals or how he acted based
upon that knowledge is outside the scope of his expertise.
there appears to be some misunderstanding concerning the
facts of the case. Cusack never actually touched the front
rolling jack that ultimately fell on his foot. Although
Cusack testified that he intended to adjust the
front rolling jack to get it back on track, he never actually
got to that point. When Cusack noticed that the front rolling
jack was off track he went over to the Car Lift System to
investigate. He rolled the rear rolling jack backwards on the
track to gain access to the displaced front rolling jack.
While thus engaged, the front rolling jack fell on his foot.
In other words, Cusack never actually tried to lift, align,
adjust, move, or push the front rolling jack back in place-it
fell on his foot before he even had the chance. Thus, phrases
like “attempting to align” are inapposite to the
facts. Cusack never attempted anything. He intended
to, but never actually did, therefore, this conclusion
appears to be based upon a false premise.
The unknown employee failed to follow the manual and decal
instructions of checking to make sure the jack was positioned
correctly on the runway rail assembly before raising the
Cusack notes, this conclusion is shrouded in speculation.
Because the unknown employee's identity is not known, it
is impossible to know whether he “failed to follow the
manual and decal instructions, ” or “check[ed] to
make sure the jack was positioned correctly.” Yanes
further assumes that the jack was off the track in the first
place, i.e., when the lift was still on the ground, adding
yet another layer of speculation. The unknown employee may
very well have done all that was required of him-followed the
manual and checked the rolling jack-and finding nothing
wrong, raised the car on the lift. The dislodging of the jack
could have happened despite these efforts. There is
simply no way of knowing.
being said, it is not a complete stretch to see why Yanes
reached this conclusion-it appears to be a logical inference
derived from the known facts- however, without additional
facts, a reliable methodology, or some type of evidence in
support of this argument, it remains mere speculation, which
the Court cannot accept as expert testimony.
Cusack created an unsafe situation by failing to follow the
manual and decals and positioning himself near the underside
of an unstable extremely heavy object.
the “extremely heavy object” is the rolling
jack-rather than the vehicle itself-this conclusion is
speculative and again appears to misapply the facts. At this
point, there is no indication that Cusack failed to follow
the manuals and decals up to the point the rolling jack
fell. Granted, Cusack has testified that he
intended to try to move it himself-the implication
being he would have tried to do this in the air rather than
on the ground-but frankly, this remains unknown.
to say Cusack “position[ed] himself near the underside
of [the] . . . heavy object” is slightly misleading. At
no point was Cusack physically underneath the rolling jack.
His foot presumably was-as it was crushed-but saying someone
is “near” the underside of something is extremely
vague. In the car repair business, a person is frequently
near the underside of unstable, heavy ...