United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. 64] AND MOTION TO EXCLUDE
EXPERT TESTIMONY [DKT. 66]
Vanessa L. Bryant, United States District Judge
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.
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.
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.
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.
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.
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.
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.
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. 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.
Standard of Review: Motion to Exclude Expert
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
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
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.
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).
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
Motion to Exclude Expert
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.
Plaintiff's Expert's Credentials
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
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).
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.
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.
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.
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.
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.
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.
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).
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.
Plaintiff's Expert's Design Defect Analysis
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.
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 ...