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Cusack v. Bendpak, Inc.

United States District Court, D. Idaho

August 15, 2018

COREY CUSACK, individually, Plaintiff,
BENDPAK, INC., a foreign corporation, Defendant.


          David C. Nye U.S. District Court Judge.


         Pending 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 Selznick.


         This 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 Rolling Jacks.

         On or 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 about it.

         This 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.


         The 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).

         Rule 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).

         Additionally, 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).

         Reliability 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).


         A. Cusack's Motion to Exclude Testimony of Joshua Yanes (Dkt. 68)

         Cusack 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.

         Joshua 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.

         Cusack 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.

         The 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.)

         Even 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.

         1. 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.

         The 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.

         Human 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.

         2. 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 runways.

         This 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.

         Mere 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).

         3. 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.

         This 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.

         Finally, 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.

         4. 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 lift.

         As 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.

         That 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.

         5. 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.

         Assuming 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.

         Second, 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 ...

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