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McKerrow v. Buyers Products Co.

United States District Court, D. Maryland

March 22, 2016



Catherine C. Blake United States District Judge.

Defendant Buyers Products Company (“BPC”) filed a motion to exclude the testimony of Michael Leshner (“Leshner”), the expert witness retained by Plaintiff Stephen McKerrow (“McKerrow”) in this products liability case. (ECF No. 15). In the same motion, BPC also seeks summary judgment as to all claims. Id. The issues in this case have been fully briefed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, BPC’s motion to exclude the testimony of the expert witness and for summary judgment will be granted. Plaintiff’s motion for leave to file a second designation of expert witnesses, (ECF No. 13), which seeks to designate the medical examiner retained by the defense as the plaintiff’s own expert, will be denied as moot.


The facts viewed in the light most favorable to McKerrow, the non-moving party, are as follows. McKerrow owns and operates an estate sale business, and tows trailers in the course of that business. (McKerrow Dep., Pl.’s Opp. Ex. 1 at 8:1, 10:1, 11-17, ECF No. 19-2). On January 5, 2012, McKerrow purchased a swing-away trailer jack from Centreville Manufacturing, a store that sells trailer accessories. (Id. at 17:21-18:3). The jack was marked with BPC’s name and a BPC model number, though BPC did not manufacture or design the jack. Rather, BPC purchased the jack, fully designed and manufactured, from a vendor in China, and then labeled the jack with its own trade name for sale. (Def.’s Answers to Pl.’s Interrogatories, Pl.’s Opp. Ex. 2 at 6-7, ECF No. 19-3). The purpose of the BPC jack is to support the weight of the trailer, while a pivoting wheel on the bottom of the jack allows users to move the trailer and to align the tongue of the trailer with the ball hitch on the towing vehicle. (Pl.’s Opp. 5, ECF No. 19-1). McKerrow selected the BPC jack for its ease of use. (McKerrow Dep., Pl.’s Opp. Ex. 1 at 20:8-12). The parties concur that McKerrow installed and operated the jack correctly. (Def.’s Mot. Summ. J. 2, ECF No. 15-1).

On approximately April 25, 2012, McKerrow disconnected the trailer from his vehicle and parked it on the curb in front of his home. (Pl.’s Opp. 5). The jack’s pin remained engaged. (McKerrow Dep., Pl.’s Opp. Ex. 1 at 73:2-5, 13-18). On April 29, 2012, McKerrow attempted to hitch the trailer to his vehicle. He first began to crank the BPC jack up, and backed his vehicle down toward the trailer to “do the hitch process.” (McKerrow Dep., Def.’s Mot. Summ. J. Ex. A at 74:3-7, ECF No. 15-2). According to McKerrow, when he backed his vehicle up, he “got out of the car and looked and [he] probably saw that [he] was in the correct-more or less the correct position [to hitch the trailer to the vehicle] . . . [that he] might have been off an inch or two . . . but that was [his] goal because [he] had the wheel jack [so he] make the final adjustment by nudging the trailer back and forth.” (Id. at 74:14-22). He noticed that the tongue of the trailer was “slightly off to the left” of the ball hitch, which was “not at all uncommon, ” such that he was “going to have to move it slightly.” (Id. at 75:6-15). McKerrow “gave the trailer a little nudge with [his] knee, expecting it to move slightly like this so it would pop.” (Id. at 79:11-12). The jack collapsed and the tongue of the trailer “slammed down” on McKerrow’s hand, injuring him. (Id. at 79:13-22, 81:1-82:2).

This action ensued. McKerrow retained Leshner, who is a mechanical engineer, to opine as to the cause of the accident and to the alleged defects in the BPC jack. BPC seeks to exclude Leshner’s testimony. BPC further argues that because Leshner’s testimony is inadmissible, summary judgment is appropriate for McKerrow’s claims.


A. BPC’s Motion to Exclude Leshner’s Testimony

McKerrow alleges claims against BPC for defects in both design and manufacturing of the jack, and for failure to warn. (Compl. ¶¶ 4-7, 10, 12, ECF No. 1). It is unclear from his Complaint whether he pursues these claims through a theory of strict liability, a theory of negligence, or both. To prevail on his manufacturing defect claim, McKerrow must “offer evidence of some indication” that the jack “either was not manufactured in accordance with” the manufacturer’s design specifications, or that, during the manufacturing process, the jack was “assembled improperly or that some other error occurred.” Shreve v. Sears, Roebuck & Co., 166 F.Supp.2d 378, 411 (D. Md. 2001). As to design defect, he must show “(1) the existence of a defect; (2) the attribution of the defect to the seller; and (3) a causal relation between the defect and the injury.” Wood v. Toyota Motor Corp., 134 Md.App. 512, 517, 760 A.2d 315, 318 (2000). Similarly, McKerrow’s failure to warn claim requires a showing that the condition in the BPC jack that caused his injury was a latent defect not readily apparent to consumers, which BPC knew or should have known could be a substantial factor in causing injury during a reasonably foreseeable use. See Nicholson v. Yamaha Motor Co., Ltd., 80 Md.App. 695, 721, 566 A.2d 135, 148 (1989).

All three of McKerrow’s claims must be supported by admissible expert testimony because they involve subject matter that is “beyond the ken of the average layman.” Wood, 134 Md.App. at 518, 760 A.2d at 319 (2000) (quoting Hartford Acc. & Indem. Co. v. Scarlett Harbor Associates Ltd. P’ship, 109 Md.App. 217, 257, 674 A.2d 106, 126 (1996), aff’d. 346 Md. 122, 692 A.2d 153 (1997)) (citations omitted). In specific support of McKerrow’s claims, Leshner opines that BPC’s product, when side-loaded, suffers from a “false-lock condition” and has poor spring force, poor surface finish, and too wide a groove in its snap ring (which, according to Leshner, is a form of retaining ring, see (Leshner Dep. 1, Def.’s Mot. Summ. J. Ex. C at 131:11, ECF No. 15-4))[1], which allows “excessive motion between the jack and mounting plate.” See (Leshner Report, Pl.’s Opp. Ex. 5 at 14, 20-21, ECF No. 19-6). Those issues are not within the scope of most jurors’ knowledge. Because the claims involve highly technical inferences, McKerrow is required to introduce testimony from an expert well-versed in the issues before the Court.

Federal Rule of Evidence 702 governs the admissibility of expert testimony. Fed.R.Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587-88 (1993). In determining whether expert testimony is admissible, the court must consider the following four factors: (1) whether the method upon which the expert relied is based on a testable hypothesis; (2) the known or potential rate of error associated with the method; (3) whether the method has been subject to peer review; and (4) whether the expert’s method of testing is accepted within the relevant scientific community. Id. at 593-95. The party seeking to introduce an expert’s opinions bears a burden of establishing, by a preponderance of the evidence, that these “pertinent admissibility requirements are met by a preponderance of the evidence.” Fed.R.Evid. 702 advisory committee notes (2000) (citing Bourjaily v. United States, 483 U.S. 171 (1987)). A trial judge, acting as gatekeeper, must keep in mind two sometimes competing principles when deciding whether to admit an expert’s conclusions. First, Rule 702 was intended to liberalize the introduction of relevant expert testimony and thus encourages courts to rely on vigorous cross-examination and presentation of contrary evidence to counterbalance expert opinions of uncertain veracity. See Daubert, 509 U.S. at 588, 596; Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). Simultaneously, however, a trial court must mind the high potential for expert opinions to mislead, rather than enlighten, a jury. Westberry, 178 F.3d at 261.

Under Rule 702, to be “qualified” as an expert, a witness must have “knowledge, skill, experience, training, or education” in the subject area in which he intends to testify. Fed.R.Evid. 702. An expert’s qualification depends on “the nature of the opinion he offers.” See Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984). While an expert’s specialized knowledge and experience need not align perfectly with the issues before the court, an expert’s opinion is admissible under Rule 702 “only to the extent the expert draws on some special skill, knowledge or experience to formulate that opinion; the opinion must be an expert opinion (that is, an opinion informed by the witness’ expertise) rather than simply an opinion broached by a purported expert.” Shreve, 166 F.Supp.2d at 392-93 (citations and internal quotation marks omitted). The Court will assume without deciding that Leshner, as a mechanical engineer, is qualified to testify about the subject of trailer jacks, despite the fact that he has no specific experience with the product. See (Leshner C.V., Pl.’s Opp. Ex. 3, ECF No. 19-4; Leshner Dep. 1, Def.’s Mot. Summ. J. Ex. C at 63:4-8).

Even where an expert is qualified to provide an opinion on a particular subject, however, his testimony is not admissible if its underlying methodology does not satisfy Rule 702. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 153 (1999) (upholding the trial court’s finding that the expert’s qualifications were sufficient, but his methodology was unreliable). Moreover, “[t]he inquiry underlying the Daubert factors involves not only whether the methodology that the expert used is generally accepted within the relevant scientific or professional community, but also whether it was reasonable for the expert to use that methodology to draw a conclusion regarding the particular matter to which the expert testimony is directly relevant.” Shreve, 166 F.Supp.2d at 395 (citing Kumho Tire Co., 526 U.S. at 154). Courts interpret Rule 702 as requiring trial judges to only admit expert testimony where the underlying methodology satisfies a two-prong test for (1) reliability and (2) relevance. See Daubert, 509 U.S. at 589; Adams v. NVR Homes, Inc., 141 F.Supp.2d 554, 565 (D. Md. 2001). “A reliable expert opinion must be based on scientific, technical or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.” Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (emphasis omitted). In the instant case, BPC challenges the first prong-the reliability-of the proffered expert testimony.

To satisfy Rule 702’s “reliability” prong, expert testimony “must be supported by appropriate validation.” Daubert, 509 U.S. at 590; Kumho Tire Co., 526 U.S. at 149. A court will not “credit an expert witness who ‘testified to no customs of the trade, referred to no literature in the field, and did not identify [relevant principles], ’ but merely gave ‘his own subjective opinion.’” Freeman v. Case Corp., 118 F.3d 1011, 1016 (4th Cir. 1997) (quoting Alevromagiros v. Hechinger, 993 F.2d 417, 421 (4th Cir. 1993)). Although the four Daubert factors guide a court’s reliability determination, the reliability analysis is a flexible inquiry tailored to the specific facts and opinions before the court. See Kumho Tire Co., 526 U.S. at 142 (“[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.”) (emphasis in original); Oglesby, 190 F.3d at 250 ...

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