Burrows v. 3M Company

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE [8] GRACE BURROWS, et al., Case No. C19-1649-RSL [9] 10 Plaintiffs, EXPERT TESTIMONY 11 v. ORDER 12 3M COMPANY, 13 Defendant. [14] 15 This matter comes before the Court defendant’s: (i) “Motion to Exclude the Expert 16 Testimony of Dr. Anthony Haftel” (Dkt. # 62) and (ii) “Motion to Exclude the Expert 17 Testimony of Larry Steven Londre” (Dkt. # 64). Having reviewed the submissions of the parties 18 and the remainder of the record, and considering the oral arguments conducted on August 2, 19 2022, the Court finds as follows: 20 This matter arises from a fatal construction accident. Walter Burrows was employed by 21 Kiewit-Hoffman East Link Constructors as a foreman on the E360 project in King County, 22 Washington. While working atop a “pier cap” column approximately 35 feet off the ground, 23 Mr. Burrows lost his balance and fell over the edge. Mr. Burrows was wearing a 3M Nano-Lok 24 Self-Retracting Lifeline (“Nano-Lok”), but the Nano-Lok severed after contacting the pier cap’s 25 concrete edge. Mr. Burrows fell to the ground and died due to his resulting injuries. 26 Plaintiffs bring failure-to-warn claims under Washington law, alleging that the warnings 27 did not cover the type of edge that severed Mr. Burrows’ Nano-Lok. Defendant moves the [28] 1 Court to exclude the testimony of plaintiffs’ experts, Dr. Anthony Haftel and Larry Steven 2 Londre. 3 Federal Rule of Evidence 702 provides that expert opinion evidence is admissible if: 4 (1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or 5 education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact 6 to understand the evidence or to determine a fact in issue; (3) the testimony is based on 7 sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and 8 (5) the expert has reliably applied the relevant principles and methods to the facts of the case. 9 Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th Cir. 2014) (citing Fed. R. 10 Evid. 702). 11 In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court 12 charged trial judges with the responsibility of acting as gatekeepers to prevent unreliable expert 13 testimony from reaching the jury. The gatekeeping function applies to all expert testimony, not 14 just testimony based on the hard sciences. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 15 To be admissible, expert testimony must be both reliable and helpful. The reliability of expert 16 testimony is judged not on the substance of the opinions offered, but on the methods employed 17 in developing those opinions. Daubert, 509 U.S. at 594-95 . In general, the expert’s opinion 18 must be based on principles, techniques, or theories that are generally accepted in his or her 19 profession and must reflect something more than subjective belief and/or unsupported 20 speculation. Daubert, 509 U.S. at 590 . The testimony must also be “helpful” in that it must go 21 “beyond the common knowledge of the average layperson,” United States v. Finley, 301 F.3d 22 1000, 1007 (9th Cir. 2002), and it must have a valid connection between the opinion offered and 23 the issues of the case, Daubert, 509 U.S. at 591-92 . “The district court is not tasked with 24 deciding whether the expert is right or wrong, just whether his testimony has substance such that 25 it would be helpful to the jury.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 26 960, 969 (9th Cir. 2013). “Shaky but admissible evidence is to be attacked by cross 27 examination, contrary evidence, and attention to the burden of proof, not exclusion.” Daubert, [28] 509 U.S. at 564 (citation omitted). When an expert meets the threshold established by Federal 1 Rule of Evidence 702, “the expert may testify and the jury decides how much weight to give that 2 testimony.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010). Plaintiffs, as the parties 3 offering Dr. Haftel and Mr. Londre as experts, have the burden of proving both the reliability 4 and helpfulness of their testimony. Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007). 5 The Court considers defendant’s objections to each expert’s testimony in this context. 6 I. Dr. Anthony Haftel 7 Defendant does not attack Dr. Haftel’s qualifications. Rather, defendant objects to Dr. 8 Haftel’s testimony on the grounds that (A) it is not based on sufficient facts or data and is not 9 the product of reliable principles and methods, and (B) its probative value is outweighed by the 10 danger of unfair prejudice. 11 A. Testimony Based on Sufficient Facts or Data and Product of Reliable 12 Principles and Methods 13 Defendant attacks Dr. Haftel’s testimony on various grounds relating to its base in facts 14 and data and the principles and methods employed in its production. For the reasons explained 15 below, the Court rejects these arguments. 16 First, defendant objects that “Dr. Haftel’s conclusion that Mr. Burrows suffered pain 17 before he died is not based on any facts or data, but instead on Dr. Haftel’s ‘experience’ and 18 anecdotal memories of patients he treated.” Dkt. # 62 at 6. In the same vein, defendant argues 19 that Dr. Haftel’s opinions are based not on objective methodology, but on his personal 20 recollections. See id. at 8-9. Defendant also argues that Dr. Haftel’s comparison of Mr. 21 Burrows to his previous patients is inappropriate because Dr. Haftel cannot state with certainty 22 that his patients were assigned a Glasgow Coma Scale1 score of three, which was the score 23 assigned to Mr. Burrows. See id. at 6-7. 24 The Court declines to exclude Dr. Haftel’s testimony on the ground that it based only on 25 his experience as a doctor. It is undisputed that Dr. Haftel is a qualified emergency room [26] 1 “Based on motor responsiveness, verbal performance, and eye opening to appropriate stimuli, [27] the Glascow Coma Scale was designed and should be used to assess the depth and duration [of] coma 28 and impaired consciousness.” Glasgow Coma Scale, Center for Disease Control, 1 physician. In Messick, the Ninth Circuit held that the district court abused its discretion where it 2 excluded a physician’s testimony on the ground that the physician did not explain the scientific 3 basis for his conclusion, but the physician had repeatedly stated that he relied on his own 4 “extensive clinic experience,” as well as his examination of the patient’s records, treatment, and 5 history. Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1198 (9th Cir. 2014). As the Ninth 6 Circuit explained, “Medicine partakes of art as well as science, and there is nothing wrong with 7 a doctor relying on extensive clinical experience.” Id. Here, Dr. Haftel’s report indicates that 8 his opinions are based on his thirty-five years of experience as an emergency department 9 physician working in high acuity trauma centers and his recollection of at least one academic 10 article, as well as his review of Mr. Burrows’ EMS run sheet, partial medical records, and 11 autopsy. See Dkt. # 63-1 at 3-4. The Court concludes that Dr. Haftel has presented a sufficient 12 factual and methodological basis for his conclusions. 13 Defendant argues that Dr. Haftel cannot state that his past patients were assigned a 14 Glasgow Coma Scale score of three because he did not go back and review their records. 15 However, Dr. Haftel explained in his deposition that he did not need to do this because he was 16 only considering patients that received CPR, and anyone receiving CPR would have a Glasgow 17 Coma Scale score of three. See Dkt. # 63-2 at 44. Dr. Haftel’s response that he could not say 18 with certainty that he assigned the patients a Glasgow Coma Scale score of three was because 19 sometimes nurses assign the score. See id. at 50-51. “Shaky but admissible evidence is to be 20 attacked by cross examination, contrary evidence, and attention to the burden of proof, not 21 exclusion.” Daubert, 509 U.S. at 564 . If defendant believes that Dr. Haftel’s opinions rest on a 22 shaky foundation, it may utilize these attacks. 23 Second, defendant objects that Dr. Haftel’s classification of Mr. Burrows pain is deficient 24 because he uses descriptive words such as “excruciating,” “extreme,” “crushing,” and “intense,” 25 and these are subjective, non-clinical terms. See Dkt. # 62 at 7-8. Defendant further objects that 26 Dr. Haftel’s opinion is inconsistent because he recognizes that unconscious patients cannot 27 report their own subjective pain but nonetheless opines that Mr. Burrows experienced pain while [28] 1 unconscious. See id. at 7-8. Defendant also takes issue with Dr. Haftel’s statement that Mr. 2 Burrows suffered an eleven on a subjective pain scale of one to ten. See id at 1-2. 3 “‘A trial court should admit medical expert testimony if physicians would accept it as 4 useful and reliable,’ but it need not be conclusive because ‘medical knowledge is often 5 uncertain.’” Primiano, 598 F.3d at 565 (quoting United States v. Sandoval-Mendoza, 472 F.3d 6 645, 655 (9th Cir. 2006)). In particular, “[p]ain is subjective and cannot be described in precise 7 terms.” Bibeau v. Pac. Nw. Rsch. Found. Inc., 188 F.3d 1105 , 1108 (9th Cir. 1999), opinion 8 amended on denial of reh'g, 208 F.3d 831 (9th Cir. 2000). Perhaps Dr. Haftel’s terms are 9 neither clinical nor precise, but medicine involves a degree of uncertainty and pain lacks 10 objective precision. Defendant is welcome to cross-examine Dr. Haftel regarding the meaning 11 of his terms. Prohibiting Dr. Haftel from utilizing subjective pain descriptors would effectively 12 bar Dr. Haftel from offering any opinions regarding the severity of Mr. Burrows’ pain. The 13 Court declines to do so. 14 Regarding the ability of an unconscious person to experience pain, the Court disagrees 15 that Dr. Haftel’s opinion is inconsistent. Dr. Haftel made it clear in his deposition that he 16 recognized that unconscious patients cannot report their own subjective pain, but that in his 17 experience, people who have these injuries usually experience pain at these levels. See Dkt. 18 # 63-2 at 53-59, see also Dkt. # 63-1 at 3-4. Regarding defendant’s objections to Dr. Haftel’s 19 use of a subjective “one to ten” pain scale, the Court notes that Dr. Haftel’s report does not 20 utilize this scale. See generally Dkt. # 63-1. It was defendant’s counsel that prompted Dr. 21 Haftel to rank pain on this scale during his deposition. See Dkt. # 63-2 at 54-59. 22 To the extent that defendant argues that Dr. Haftel’s statement that Mr. Burrows suffered 23 an eleven on a subjective pain scale of one to ten “makes a mockery of evaluating patient pain 24 and has no foundation in science,” Dkt. # 62 at 1-2, 5, the Court disagrees. This statement was 25 made during Dr. Haftel’s deposition, and he clarified that the scale only goes up to ten, but that 26 he was “accentuating.” See Dkt. # 63-2 at 58, 62. The Court will not exclude Dr. Haftel’s 27 testimony for utilizing acknowledged hyperbole during a deposition. The Court, of course, [28] 1 assumes that Dr. Haftel will not repeat this statement before the jury, and prohibits plaintiff’s 2 counsel from eliciting this statement from Dr. Haftel. 3 The Court will conduct a brief Daubert hearing with Dr. Haftel prior to his testimony 4 before the jury to ensure that he understands the parameters of his opinion testimony. 5 Third, defendant argues that its expert, Dr. Odey Ukpo, concluded that Mr. Burrows 6 suffered a diffuse axonal injury,2 and therefore would have experienced no pain. Dkt. # 62 at 47 5. While it appears that Dr. Haftel agrees that a patient who has suffered a diffuse axonal injury 8 would likely not experience pain, Dr. Haftel disagrees with this diagnosis. See Dkt. # 71 at 9 ¶¶ 7-11. To the extent that defendant disagrees with Dr. Haftel’s characterization of the facts or 10 his conclusion that Mr. Burrows did not experience a diffuse axonal injury, “issues regarding the 11 correctness of his opinion, as opposed to its relevancy and reliability, are a matter of weight, not 12 admissibility.” Messick, 747 F.3d at 1199 (citing Kennedy v. Collagen Corp., 161 F.3d 1226 , 13 1229-30 (9th Cir. 1998)). The Court declines to exclude the testimony on this ground. 14 B. Balancing Probative Value to Risk of Unfair Prejudice 15 Defendant also argues that Dr. Haftel’s testimony should be excluded under Federal Rule 16 of Evidence 403 because its probative value is outweighed by the danger of unfair prejudice. In 17 particular, defendant again objects to Dr. Haftel’s use of the subjective terms “excruciating,” 18 “extreme,” “crushing,” and “intense” to describe Mr. Burrows pain, and analogizes to this 19 Court’s decision in Ilyia v. El Khoury, No. C11-1593RSL, 2013 WL 5441356 (W.D. Wash. 20 Sept. 27, 2013). 21 “The court may exclude relevant evidence if its probative value is substantially 22 outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, 23 misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 24 Fed. R. Evid. 403. [26] 2 “Diffuse axonal injury is the shearing (tearing) of the brain’s long connecting nerve fibers [27] (axons) that happens when the brain is injured as it shifts and rotates inside the bony skull.” Traumatic 28 Brain Injury, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and1 First, as explained above, the Court will not exclude Dr. Haftel’s testimony because he 2 used subjective descriptions of pain. Dr. Haftel’s terminology is undoubtedly strong, but the 3 parties agree that Mr. Burrows’ pain is at issue, and these terms may assist the jury to 4 understand his alleged pain. Federal Rule of Evidence 403’s concern is “unfair” prejudice, and 5 any prejudice that may result from Dr. Haftel’s testimony does not rise to this level. Defendant 6 is welcome to offer Dr. Ukpo’s contrary testimony. 7 Second, defendant’s analogy to Ilyia does not hold up. First, Ilyia was decided under 8 Federal Rule of Evidence 702, not 403. Ilyia, 2013 WL 5441356 at *1. Second, in Ilyia, this 9 Court concluded that a psychiatrist’s expert testimony regarding a diagnosis of impairment was 10 not reliable because it was based on a few anecdotal stories about the individual in question and 11 the offering party provided no evidence that this was a sufficient ground for a forensic 12 psychiatrist to make a diagnosis. Id. at *1-2. The Court further concluded the testimony was 13 not helpful because it was overly vague regarding the nature of the impairment and lacked basis 14 in medical examination and expertise. Id. at *2. Here, as explained above, Dr. Haftel’s opinion 15 is based on sufficient facts and data, and it is based on his expertise. To the extent that 16 defendant argues that Dr. Haftel’s testimony is equivalent to that of the psychiatrist in Ilyia 17 because both assume the role of telling the factfinder what outcome to reach, there is nothing 18 inherently wrong with offering such an opinion. See Fed. R. Evid. 704(a) (“An opinion is not 19 objectionable just because it embraces an ultimate issue.”). 20 II. Larry Steven Londre 21 Defendant objects to Mr. Londre’s testimony on the grounds that (A) he is unqualified to 22 offer expert testimony on the adequacy of the Nano-Lok’s warnings, (B) his opinions have no 23 methodology, and (C) his opinions are not relevant or helpful to the jury. 24 A. Expert Qualification 25 Mr. Londre is a business, marketing, and advertising professional. He holds a Master of 26 Business Administration, with an emphasis in marketing, from the University of Southern 27 California, and has extensive teaching and business experience. See Dkt. # 65-3 at 4-5, 21-42. 28 Defendant argues Mr. Londre’s expertise fails to qualify him to testify on whether a product’s 1 warnings adequately warn against potential hazards. Defendant’s objections to Mr. Londre’s 2 expertise are largely focused on his lack of technical expertise in the development of product 3 warnings, the use of warnings for fall protection equipment, and the degree to which warnings 4 mitigate potential hazards under industry standards. See Dkt. # 64 at 7-9. These objections are 5 misplaced. Mr. Londre does not purport to opine on technical matters. Rather, Mr. Londre’s 6 opinions go to defendant’s promotion of the Nano-Lok, the marketplace for the Nano-Lok, and 7 the lack of communications indicating that the Nano-Lok should not be used near a beveled 8 edge, which he equates to a failure to warn a reasonable buyer or consumer. See Dkt. # 65-3 at 9 6-7, 11, 14, 15, 16, 18. Mr. Londre’s marketing and advertising background sufficiently 10 qualifies him as an expert in these matters. 11 B. Testimony Product of Reliable Principles and Methods 12 Defendant next argues that Mr. Londre’s methodology for reaching his opinions is 13 nonexistent. Mr. Londre’s report does not clearly explain his methodology, although it provides 14 a long list of documents and materials that he reviewed in forming his opinions. See Dkt. # 65-3 15 at 39-41. Mr. Londre’s declaration submitted with plaintiffs’ response states, “My methodology 16 applies marketing, sales, promotion, communication and advertising standards such as the 17 requirement that all statements and representations are true, ethical and not deceptive.” Dkt. 18 # 70 at 11. 19 “[T]he trial court has discretion to decide how to test an expert’s reliability as well as 20 whether the testimony is reliable, based on ‘the particular circumstances of the particular case.’” 21 Primiano, 598 F.3d at 564 (quoting Kumho Tire Co., 526 U.S. at 150, 152 ). Simply put, it is 22 unclear what principles and methods Mr. Londre purports to have employed. To the extent that 23 Mr. Londre identified a marketing standard and applied it to the facts of the case to reach his 24 opinions, he did not engage in a transparent process. The Court therefore concludes that Mr. 25 Londre’s testimony is not the product of reliable principles and methods and excludes Mr. 26 Londre’s testimony on this ground. [28] 1 C. Testimony Relevant and Helpful to Jury 2 Defendant’s final objection is that Mr. Londre’s testimony is neither relevant nor helpful 3 to the jury. The Court agrees. The relevance of Mr. Londre’s opinions that (1) defendant 4 promotes the Nano-Lok with the ultimate goal of making sales, Dkt. # 65-3 at 6-7, and 5 (2) defendant makes and sells the Nano-Lok in a competitive marketplace, id. at 11, is unclear to 6 the Court. Neither defendant’s commercial goals nor the state of the market would assist the 7 jury in determining the key issue – i.e., whether the Nano-Lok’s warnings were sufficient. See 8 RCW 7.72.030(1). 9 In addition to his ultimate opinion that defendant failed to adequately warn that the Nano10 Lok should not be used near a beveled edge, Mr. Londre offers three other opinions: 11 (1) defendant’s promotion materials describe the Nano-Lok as “the ultimate in fall protection for 12 any work environment,” and the word “ultimate” means to a reasonable consumer “the best 13 achievable or imaginable of its kind” and “incapable of further analysis, division, or separation,” 14 (2) defendant promotes and advertises the Nano-Lok with the line, “A complete safety solution 15 in the palm of your hand,” and (3) defendant failed to warn that the Nano-Lok is not to be used 16 near a beveled edge because Mr. Londre was unable to find drawings or illustrations 17 demonstrating this limitation. Dkt. # 65-3 at 14, 15, 16, 18. Even assuming these opinions are 18 relevant, they are not helpful as required under Daubert and its progeny because they do not 19 appear to be based on any sort of expertise. Mr. Londre’s conclusion regarding the meaning of 20 the word “ultimate” to the “reasonable consumer” is based on Google and Merriam-Webster’s 21 definitions of “ultimate.” See id. at 14 n.10. Mr. Londre’s opinion that defendant uses the line, 22 “A complete safety solution in the palm of your hand,” is supported only by descriptions of 23 defendant’s brochures. See id. at 15-16. Finally, Mr. Londre’s statement that defendant failed 24 to warn that the Nano-Lok should not be used near a beveled edge is supported by his review of 25 the Nano-Lok device and relevant brochures and instruction manuals, as well as testimony of 26 Kiewit-Hoffman personnel to the effect that the Nano-Lok was approved for use on the pier cap 27 from which Mr. Burrows fell. See id. at 16-17. The jury is equally capable of examining the 28 evidence that Mr. Londre relies upon, and his conclusions invade its province. 1 The Court therefore excludes Mr. Londre’s testimony because it is both unreliable and 2 unhelpful. 3 III. Conclusion 4 For all of the foregoing reasons, IT IS HEREBY ORDERED that: 5 1. Defendant’s Motion to Exclude the Expert Testimony of Dr. Anthony Haftel (Dkt. # 62) 6 is DENIED. 7 2. Defendant’s Motion to Exclude the Expert Testimony of Larry Steven Londre (Dkt. # 64) 8 is GRANTED. 9 DATED this 12th day of August, 2022. 10 A [11] Robert S. Lasnik 12 United States District Judge