Judge Denies Defendants’ Bid to Exclude Expert in Products Liability Case

Nov 22, 2019

A federal judge from the District of South Carolina has denied a motion from a sporting goods manufacturer and the retail store, which sold the manufacturer’s product, to exclude the expert witness of a plaintiff who suffered an injury while using the product and subsequently sued. In so ruling, the court found that the expert was qualified, and his testing methods were sufficient.
The impetus for the products liability case was an injury sustained by the plaintiff, Hunter Patenaude, when using a CORE Bioflex athletic cup manufactured by defendant Shock Doctor, Inc. and sold by defendant Dick’s Sporting Goods, Inc. In brief, Patenaude alleged that while wearing the Bioflex cup during a lacrosse match, he was struck by a lacrosse ball on the bottom left side of the cup. Ultimately, it was determined that Patenaude suffered a fractured left testicle, which was removed.
The plaintiff sued, alleging products liability claims for strict liability, negligence and breach of warranty.
The defendants moved for summary judgment. In conjunction with that motion, they also moved to exclude Patenaude’s expert, John Lloyd, Ph.D, CPE. The defendants argued generally that Dr. Lloyd’s opinions are unreliable as his testing inaccurately approximated real-world conditions, failed to make a causal connection between his testing and the plaintiff’s injury, and did not apply the “risk utility test” applied by South Carolina to products liability cases.
The court noted that under Rules 104(a) and 702 of the Federal Rules of Evidence, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In other words, the methodology and subsequent testing are just as important as the credentials of the expert.
In the instant case, the defendants do not challenge Dr. Lloyd’s qualifications, or that he was qualified to give an opinion on the Bioflex cup, and other athletic cups, and assess whether they provide adequate protection from injury.
As to “the content and reliability of his opinions,” the court noted that Dr. Lloyd assessed six different models of athletic cups. “For each athletic cup, Dr. Lloyd attached the cup to a male mannequin. Eight feet away, Dr. Lloyd set up a BATA-2 baseball pitching machine, and shot baseballs at 70 miles per hour at the athletic cup. Dr. Lloyd also set up a high-speed camera to capture the impacts. Dr. Lloyd noted he used baseballs as the pitching machine would not accommodate lacrosse balls, though he noted that baseballs are identical in weight to lacrosse balls. Dr. Lloyd stated he used 70 miles per hour based on an article noting that the speed is the average shooting speed of a high-school lacrosse player. Each athletic cup was tested five times unless the cup ‘failed’ during testing. For each model of athletic cup, the report contains a variety of pictures of the cup, and then includes pictures of the impacts of the baseballs, with Dr. Lloyd noting whether there was ‘deformation.’ Notably, the CORE Bioflex cup at issue here compressed significantly when struck by a baseball. Other athletic cups, such as the Shock Doctor Titan, Nutshellz Level 2 Armor and Martin athletic cup did not noticeably deform or have major damage to the cup. For the cups that did not deform or showed minimal damage, Dr. Lloyd concluded that they would ‘protect the male genitalia from injury.’ Therefore, based on these tests, Dr. Lloyd concluded to a ‘reasonable degree of scientific certainty’ that the CORE Bioflex cup provided inadequate protection from injury from a ‘moderate speed ball,’ and had Defendant Shock Doctor evaluated the CORE Bioflex cup in this manner it would have learned the product ‘provides inadequate protection against injury to the male genitalia’ and that the CORE Bioflex cup should have been designed to ‘similar specifications’ as other athletic cups which did not deform, including their own stainless-steel Titan cup.”
The defendants faulted Dr. Lloyd for failing to include the “quantifiable information” regarding each athletic cup (eg, length, width, height). The court found such information would only be relevant for cross-examination.
Next, they challenged the setup of the testing. “Namely, the defendants argued that Dr. Lloyd should not have used a baseball, that 70 miles per hour was an incorrect speed to use, that the baseballs struck the athletic cups in the center rather than on the side, that the report fails to include information regarding the mannequin, and that the athletic cups were affixed by an elastic band rather than in compression shorts. Importantly, the defendants cited no case-law to support these grounds for exclusion, and instead rely almost entirely on the report of their own expert, Dr, Scotty G. Piland, Ph.D, a seven-page report without independent testing.
“… The court will not weigh the evidence between two sparring experts, and instead these disagreements may be addressed through testimony and cross-examination and must be resolved by a fact-finder, not the court on summary judgment. More fundamentally, each of these arguments goes to the factual basis of the report, namely, whether the testing was structured in such a way to reasonably assess the athletic cup at issue here, and it is well settled that the factual basis for an expert opinion generally goes to weight, not admissibility. Synergetics, Inc. v. Hurst, 477 F.3d 949, 955 (8th Cir. 2007).”
The defendants also argued that Dr. Lloyd failed to draw a “causal connection” between his testing and the injury suffered by the plaintiff. “Again, the defendants have identified no cases indicating that quantification is required in order for a human factors or ergonomic expert to testify regarding causation, and instead his report contains close-up photographs of the CORE Bioflex athletic cup significantly compressing when struck by a baseball. Indeed, contrary to the defendants’ position, Dr. Lloyd does opine regarding a causal connection, relying on the clear photographs to conclude that the compression ‘would result in transfer of the impact energy to the male genitalia, with injury-producing consequences.’”
Finally, they argued that “Dr. Lloyd’s report and testimony must be excluded as he fails to present evidence to support the risk-utility test, as required under South Carolina law to demonstrate a design defect. Specifically, the defendants argued that Dr. Lloyd was required to produce evidence of a reasonable alternative design, as required to demonstrate a design defect under South Carolina law. See Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010)”
The court disagreed. The defendants “misstate who this burden of proof applies to. It is a plaintiff’s burden to present evidence of an alternative design not the expert’s burden. While expert testimony, from some source, may be required to present evidence of an alternative design, the failure to include evidence of ‘costs, safety and functionality’ in any given expert’s report is not a basis for excluding that specific expert.”
Hunter J. Patenaude v. Dick’s Sporting Goods, Inc., and Shock Doctor, Inc.: D.S.C.; Civil Action No. 9:18-cv-3151-RMG, 2019 U.S. Dist. LEXIS 180380; 10/18/19
Attorneys of Record: For Hunter J Patenaude, Plaintiff: Bakari Sellers, LEAD ATTORNEY, Strom Law Firm, Columbia, SC; David Moffett, LEAD ATTORNEY, PRO HAC VICE, Morgan and Morgan PA (ORL), Orlando, FL; Dylan James Hooper, LEAD ATTORNEY, PRO HAC VICE, Morgan and Morgan Atlanta PLLC, Atlanta, GA; Joshua Dustin Moore, LEAD ATTORNEY, PRO HAC VICE, Morgan and Morgan, Orlando, FL. For Dick’s Sporting Goods Inc, Shock Doctor Inc, Defendants: Andrew Marshall Rawl, Clarke W DuBose, LEAD ATTORNEYS, Haynsworth Sinkler Boyd PA, Columbia, SC.


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