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Karavitis v. Makita U.S.A., Inc.

United States District Court, D. Connecticut

March 20, 2017

MAKITA U.S.A., INC. Defendant.


          Hon. Vanessa L. Bryant, United States District Judge

         I. Introduction

         Plaintiff Eustathios Karavitis (“Karavitis” or “Plaintiff”) brings this products liability action against Defendant Makita U.S.A., Inc. (“Defendant” or “Makita”) under Connecticut's Product Liability Act (“CPLA”), Conn. Gen. Stat. f 52-572n(a). The Defendant moved for summary judgment and to exclude Plaintiff's expert in December 2015. [Dkt. 42 (Motion to Exclude), 43 (Motion for Summary Judgment).] The Court denied both motions without prejudice to re-filing addressing legal issues recently addressed by the Connecticut Supreme Court. [Dkt. 63.] Defendant filed a supplemental Motion for Summary Judgment [Dkt. 64] and renewed Motion to Exclude Plaintiff's Expert [Dkt. 66], incorporating exhibits from his prior filings. Plaintiff responded to each motion also incorporating exhibits from its prior filings. [Dkt. 65 (Supplemental Summary Judgment Opposition), 70 (Renewed Opposition to Motion to Exclude Expert)]. For the reasons that follow, Defendant's motions are GRANTED.

         II. Factual Background

         Makita is an international corporation with ten factories worldwide which assemble and manufacture, among other products, handheld circular saws. [Dkt. 43-9, Deposition Transcript of David Haefner (“Haefner Tr.”) at 26-27]. Plaintiff is a Connecticut resident who graduated from the University of Connecticut at Storrs in 1992 with a degree in Business Administration and completed a Master of Business Administration in 2002. [Dkt. 43-4, Deposition Transcript of Karavitis (“Karavitis Tr.”) at 10-11]. He has done home renovation work throughout his life, including a full year spent working for a construction company in 1995 building homes “from the ground up” and recreational projects for himself and others including building decks, stairways, railings, window trim, and installing doors and cabinets. Id. at 19-20, 23. Plaintiff has owned and used a variety of power tools for his renovations, including circular saws. Id. at 22.

         In around 1998, Plaintiff purchased a Makita Circular Model Saw 5007 NBA (the “Circular Saw”) from a store (he recalls the store was “most likely” Home Depot). Karavitis Tr. at 30-31. The Circular Saw came with an instruction manual which Plaintiff kept “as long as [he] can recall.” Id. at 33. Plaintiff “perused” the manual when he purchased the Circular Saw, “read the highlights, read the important information, ” understood the manual, and had no questions about saw safety upon reading the manual. Id. at 35. He did not re-read the manual after his first year of Circular Saw ownership. Id. at 34.

         The Circular Saw manual states: “Use clamps or other practical way to secure and support the work piece to a stable platform. Holding the work by hand or against your body is unstable and may lead to loss of control.” [Dkt. 43-10 (Manual) at 3]. The manual also states: “Danger! Keep hands away from cutting area and blade. Keep your second hand on auxiliary handle or motor housing. If both hands are holding the saw, they cannot be cut by the blade.” Karavitis Tr. at 82; Manual at 4. The manual further instructs to “[k]eep your body position to either side of the saw blade but not in line with the saw blade. KICKBACK could cause the saw to jump backwards.” Karavitis Tr. at 83; Manual at 4. In a section titled “Causes and operator prevention of kickback, ” the manual explains that kickback occurs when “the blade becomes twisted or misaligned in the cut, ” and causes “the blade to climb out of the kerf and jump back toward the operator.” Manual at 5. To prevent kickback, the manual instructs: “Maintain a firm grip with both hands on the saw and position your body and arm to allow you to resist kickback forces.” Karavitis Tr. at 84; Manual at 5. The manual also instructs: “ALWAYS hold the tool firmly with both hands. NEVER place your hand or fingers behind the saw. If kickback occurs, the saw could easily jump backwards over your hand, leading to serious personal injury.” Karavitis at 85; Manual at 6.

         Plaintiff could not recall at the time of his deposition whether there were any warnings on the Circular Saw itself. Karavitis Tr. at 42. In fact, there was a label on the Circular Saw which warned users in relevant part: “DANGER: Keep hands away from blade.” [Dkt. No. 43-13 (Photo of Warning Label) at 3.] The warning is written in metallic silver on a blue background with the word “Makita” in red above the warning and the words “Makita Electric Works Ltd.” in red below the warning. Id.

         Plaintiff used the Circular Saw without any problem “over 50” times and “quite possibly” over 100 times for various home improvement projects before March 17, 2013. Id. at 40, 42. Plaintiff made no alterations to the Circular Saw, nor did anyone else to his knowledge, except replacing the blade when it became dull and reinforcing the electrical cord with electrical tape. Id. at 43.

         On March 17, 2013, approximately 15 years after he purchased it, Plaintiff went to his mother's house in Fairfield, Connecticut with the Circular Saw to cut trim for her front door. Id. at 47-51. Plaintiff used the Circular Saw to cut trim multiple times prior to March 17, 2013. Id. at 50. Plaintiff placed a piece of pine approximately eight feet long, three inches wide, and one inch thick “on a couple of small rectangular type tables.” Id. at 53, 62. Plaintiff secured the piece of wood with his left hand. Id. at 55. He was not wearing gloves or protective eye gear. Id. at 65, 69. Plaintiff did not clamp down the wood as the instructions directed; instead he supported the piece of wood by placing his left hand in front of the saw blade as he cut the majority of the piece of wood, then moved his hand to support the wood from behind the saw blade as he neared the end of the piece of wood. Id. at 67. When the Circular Saw was approximately one foot in front of Plaintiff's left hand, the saw “kicked back, ” meaning it “came back, jumped up . . . bounced out [of the wood] . . . enough to cut [Plaintiff's] finger.” Id. at 69. When Plaintiff felt the Circular Saw begin to kick back, he removed his right index finger from the trigger “instantaneously, ” but kept his right hand on the saw because “you have to hold onto the saw, because you don't know what's going to happen to it.” Id. at 72. The Circular Saw hit Plaintiff's left thumb above the first knuckle. Id. at 73.

         Plaintiff waited for the Circular Saw blade to stop spinning, set down the saw, rinsed his thumb with water, wrapped it in paper towels, and drove himself to Bridgeport Hospital. Id. at 80-81. Hospital staff sutured his severed blood vessel, closed the wound with approximately eight stitches, wrapped his thumb, and released him. Id. at 89-90.[1] Plaintiff underwent one additional surgery roughly one week later. Id. at 91-92. He saw his treating physician regularly through July 2013 for follow-up appointments after the accident and participated in physical therapy. Id. at 94. As of his deposition, Plaintiff experienced pain “all the time” and feels he cannot bend his left thumb as far as his right thumb. Id. at 96, 99.

         III. Standard of Review: Motion to Exclude Expert

         Plaintiff offers an expert report by Lewis Barbe (“Barbe”) in support of his products liability claims. The Court addresses Defendant's Motion to Exclude Plaintiff's Expert here.

         Motions to exclude evidence should “aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). The Federal Rules of Evidence charge the Court with the responsibility of deciding the preliminary question of whether a witness is qualified. Fed.R.Evid. 401(a). A motion to exclude evidence “calls on the Court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence.” Highland Cap. Mgmt., L.P. v. Schneider, 379 F.Supp.2d 461, 470 (S.D.N.Y. 2005). Evidence should be excluded “only when the evidence is clearly inadmissible on all potential grounds.” Id.

         Expert witness testimony is admissible only if: (1) “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;” (2) “the testimony is based upon sufficient facts or data;” (3) “the testimony is the product of reliable principles and methods;” and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. Although Rule 702 embodies a “liberal standard of admissibility for expert opinions, ” Nimely v. City of N.Y., 414 F.3d 381, 395 (2d Cir. 2005), it also “establishes a standard of evidentiary reliability” for “all scientific, technical, or other specialized matters within its scope.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 148 (1999). What constitutes a “reasonable measure[] of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine.” Id. at 153.

         “Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what results to reach.” Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d Cir. 1992). An expert may not “simply rehash otherwise admissible evidence about which he has no personal knowledge . . . While an expert must of course rely on facts or data in formulating an expert opinion, an expert cannot be presented to the jury solely for the purpose of constructing a factual narrative based upon record evidence. Schneider, 379 F.Supp.2d at 468-69 (citing Fed.R.Evid. 703).

         “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. “The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission." Notes of Advisory Committee on Proposed Rules. “Unfair prejudice” within this context means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. Rule 702 requires a valid scientific connection to the inquiry as a prerequisite to admission. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993).

         Analysis: Motion to Exclude Expert

         Defendant moves to exclude Barbe's testimony because Barbe lacks the qualifications required to testify as an expert on circular saws and because Barbe's conclusions are not supported by acceptable methodology. [Dkt. 66.] The Court addresses each challenge to Barbe's report below.

         A. Plaintiff's Expert's Credentials

         The trial judge must ensure that any and all scientific evidence is not only relevant but also reliable based on its scientific validity, meaning that the expert opinion is based on scientific principles which support what they profess to show. Daubert, 509 U.S. at 589-90. “District courts are accorded considerable discretion to determine an expert's qualifications.” United States v. Diallo, 40 F.3d 32, 34 (2d Cir.1994). A witness is qualified where he or she has “superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.” Vale v. U.S., No. 15-3265, 2016 WL 7435909, at *1 (2d Cir. Dec. 21, 2016) (summary order) (finding an expert unqualified to testify as to plaintiff's medical diagnosis where expert was trained in a different medical discipline, had no a valid license to practice medicine, and had not practiced medicine in 16 years).

         “The expert's qualifications . . . must be relevant to the opinions she offers. Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Diallo, 40 F.3d at 34 (finding expert qualified who had never been to Benin but had advised neighboring African countries about their gold export policies relying on their gold export regulations, reasoning that experience meant the expert was able to evaluate the effect Benin's regulations had on exporting gold from Benin); see also Duchimaza v. U.S., 2016 WL 5799295, *5 (D. Conn. Sept. 30, 2016) (finding expert's 22 years of experience in retailer compliance before the EBT program was implemented insufficient to qualify him as an expert in identifying EBT fraud).

         In this case, Barbe states he obtained a Bachelor of Science in Fire Protection and Safety Engineering from Illinois Institute of Technology (“IIT”) in 1954. [Dkt. No. 66-6 (Report) at BARBE00888.] He states his coursework included “mechanical, electrical, and safety engineering” courses; however, he does not describe the titles of the courses he took or their curriculum. Id. He provided insufficient information to enable the Court to find that his degree qualifies him to offer credible expert testimony on the safe design of circular power saws. Id.

         Moreover, the title of the degree he professes to have earned suggests that he may be an expert in fire safety as opposed to power tool design safety, much less circular saw design safety which is at issue here. IIT no longer offers a Bachelor of Science in Fire Protection and Safety Engineering, but does offer a Graduate Certificate by the same name. programs/graduate-certificate/graduate-certificate-fire-protection-and-safety-engineering. The Graduate Certificate requires students to complete four out of six courses: (1) risk assessment engineering; (2) sprinklers, standpipes, fire pumps and special suppression and detection systems; (3) introduction to fire dynamics; (4) fire protection and life safety in building design; (5) probability concepts in civil engineering design; and (6) special problems in fire protection and safety engineering. Id. The course concentration is decidedly in the area of fire safety and not mechanical engineering or another discipline relevant to circular saw design safety. The Court cannot determine the course requirements of the Bachelor of Science Barbe received, but cannot conclude from the information available that it lent Barbe “superior knowledge . . . or education” in the “subject matter of the witness's testimony, ” which is the safety of circular saws with and without riving knives and the adequacy of circular saw warnings. Diallo, 40 F.3d at 34.

         Nor can the Court conclude Barbe has relevant “superior knowledge, skill, [or] experience” from his other credentials. Barbe's curriculum vitae (“CV”) states he holds multiple certifications and organization memberships, but also does not indicate what is required to obtain those credentials or what he does as a member of the listed groups. [Dkt. 54 at Ex. A (CV).] For example, Barbe's report indicates he is a registered professional engineer in safety engineering in Massachusetts and California and a registered products safety engineer with Board of Products Safety Management, but gives no information regarding what those registrations entail or whether they involve circular saw safety. [Dkt. 66-6 (Report) at BARBE00888.] The most specific credential Barbe lists in his report is his past membership in the Fraternal Order of Foresters, where he states he specialized in evaluating saws. Id. However, Barbe does not state whether he ever evaluated circular saws with or without riving knives or explain the content of his evaluations. Id. Regardless, he was last involved with the Fraternal Order of Foresters approximately ten years before his July 2015 deposition. [Id.; Dkt. 66-4 (Deposition Transcript of Lewis Barbe (“Barbe Tr.”) at 49.] The Court cannot determine from Barbe's report or deposition testimony whether his certifications or memberships are relevant or support his qualification as an expert in circular saws, riving knives, or warning labels.

         Barbe's explanation of his experience also fails to qualify him as a relevant expert. Barbe states he has spent his career as a safety engineer “concerned with the safe performance of products, processes, operations, and services.” Report at BARBE00888. This broad description does not indicate with which products, processes, operations, and services Barbe has professional safety experience. He also states he has been “in full professional practice as a private consulting engineer for over 25 years, ” and has “taught courses that involved saw safety.” Id. Once again, this vague statement does not indicate when or where he taught the courses, the curriculum for the courses, or whether they related to fire safety or circular saw design safety. Nor does he assert any experience with riving knives or analyzing warning labels. Id. Barb's professional affiliations are either clearly irrelevant (for example, membership in the American Industrial Hygiene Association and National Fire Protection Committee 505) or so vaguely described that they either appear irrelevant or the Court cannot discern their relevance (for example, membership in the American Society of Safety Engineers and registration as a Safety Engineer in the Commonwealth of Massachusetts). [Dkt. 54 at Ex. A (CV).] The Plaintiff has failed to establish that Barbe's education, training and experience give him the requisite “superior knowledge, skill, experience, or education” to offer credible expert opinions on the safe design of handheld circular saws, riving knives, and warning labels. Diallo, 40 F.3d at 34.

         Barbe's lack of education, training and experience and his inability to offer credible expert opinions on the safe design of handheld circular saws, riving knives, and warning labels is exemplified by his proffered expert report and deposition testimony. Barbe states he spends roughly one third of his professional time serving on various safety committees that promulgate safety standards applicable to the circular saw. Id. at BARBE00889; Barbe Tr. at 53. Yet, his deposition testimony made clear that his education, training and experience, including his involvement in safety standard organizations, has not qualified him as an expert in the relevant safety standards. Barbe's expert report was permeated with critical errors. Specifically, he applied inapplicable standards in reaching his conclusion. For instance, Barbe admitted he considered a 2013 safety standard for woodworking machinery which specifically excludes handheld power tools. Barbe Tr. at 154-55. Barbe also considered a safety standard applicable to stationary and fixed electric tools rather than handheld power tools like the Circular Saw in question. Id. at 156-57. He also considered a safety standard that did not go into effect until 2012, approximately 15 years after Plaintiff purchased the Circular Saw. Id. at 160; see also Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 184 (2016) (to establish a products liability claim, the plaintiff must show the “defect existed at the time of the sale”). Even if these errors were explained and the jury told to disregard them, Barbe's report has great potential to confuse a jury. While the Court has no doubt that Barbe may be qualified to offer expert testimony on some subject, Plaintiff has failed to show that Barb has the education, training and experience to offer credible relevant expert testimony in this case.

         Plaintiff's Expert's Analysis

         Barbe's analyses regarding the Circular Saw's alleged design defect and deficient warning label are also insufficient to constitute admissible expert testimony. Under Daubert, Courts determine the reliability of an expert's analysis by considering “the theory's testability, the extent to which it ‘has been subjected to peer review and publication, ' the extent to which a technique is subject to ‘standards controlling the technique's operation, ' the ‘known or potential rate of error, ' and the ‘degree of acceptance' within the ‘relevant scientific community.'” Restivo v. Hessemann, 846 F.3d 547, 575-76 (2d Cir. 2017) (citing U.S. v. Romano, 794 F.3d 317, 330 (2d Cir. 2015); Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786).

         If an expert “wants to testify to an opinion or conclusion that has not been established to a degree of scientific certainty . . . the court must still assess whether the expert employs “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field, ” and may consider the Daubert factors in making this determination or other relevant factors. Kumho Tire Co., 526 U.S. at 152. Whether expert analysis is based on experience or training as opposed to a methodology or technique, “trial judge should exclude expert testimony if it is speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.” Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir. 2009); Duchimaza v. United States, No. 3:14-CV-00887, 2016 WL 5799295, at *5 (D. Conn. Sept. 30, 2016). Expert opinions must likewise be excluded where the court “conclude[s] that there is simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); see also Restivo, 846 F.3d at 546.

         i. Plaintiff's Expert's Design Defect Analysis

         Barbe's report states he analyzed the Circular Saw using “generally accepted safety engineering principles, theories, and methodology.” Report at BARBE00889. He asserts the “generally accepted methodology entails reviewing the design performance to identify hazards with a risk of serious injury or death, ” establishing “control barriers to show what could have been done or should have been done to prevent injury, ” and, if possible, eliminating the hazard without impairing product function. Id. at BARBE00889-90.

         Barbe's report indicates that in evaluating the Circular Saw, he interviewed Plaintiff, inspected and otherwise operated the Circular Saw, performed a “trap guard” test on the Circular Saw, attended the defense expert's inspection of the Circular Saw, reviewed Plaintiff's deposition testimony, the Circular Saw manual, various pictures, and ...

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