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Lael v. Six Flags Theme Parks, Inc.

United States District Court, E.D. Missouri, Eastern Division

December 12, 2014

SHANNON T. LAEL, Plaintiff,



This case is before the Court on Defendant Six Flags Theme Parks, Inc.'s ("Six Flags'") Motion to Exclude Testimony and Opinions of William Avery, an expert offered by Plaintiff Shannon T. Lael ("Plaintiff"). (Doc. 49). For the reasons stated below, the motion will be granted in part and denied in part.


On July 8, 2006, Plaintiff suffered injuries while boarding the Highland Fling, an amusement park ride owned and operated by Defendant. Passengers on the Highland Fling sit in gondola-style cars, each of which has a lid that is held open by two gas shocks during the loading process. After a passenger enters the car, the lid is closed manually. Plaintiff claims that after she entered a car, one or both of the gas shocks on the car failed, causing the car's lid to fall and injure her. She has brought negligence claims against Defendant.

Plaintiff has retained an expert, William Avery ("Avery") to provide opinions regarding what caused her injuries and what Six Flags should have done to prevent her injuries. Avery is a safety consultant who has 37 years of experience working on amusement park ride safety issues. In his report, Avery summarized his opinion as follows:

It is my opinion within a reasonable degree of certainty the incident involving Shannon Lael on Jul[y] 9, 2006 was foreseeable and preventable and but for the failures of Six Flags operations and maintenance personnel this incident would not have occurred. Six Flags had control of operations, inspections and maintenance. Six Flags knew there were recurring failures with the gas shocks and essentially waited for it to happen and be reported by a ride operator or discovered during pre-opening inspections.

At his deposition, Avery testified that deposition testimony of Six Flags maintenance personnel revealed that Six Flags had knowledge of ongoing gas shock failures on the Highland Fling over a period of years. Six Flags addressed these failures by keeping a backup supply of shocks for the Highland Fling on hand and placing a sign on a gondola with a failed gas shock to prevent its use. Avery testified that because of the history of known gas shock failures, it was foreseeable that a gas shock would fail and a gondola lid would fall while a person was under it. He opined, in essence, that Six Flags' procedure of addressing gas shock failures only after they occur places its guests at unnecessary risk.

Avery opined that instead of waiting for a shock to fail and then taking the gondola out of service, Defendant's maintenance personnel should have conducted preventative maintenance of the gondolas using a method he calls a "life history summary." In this method, maintenance personnel would keep track of gas shock failures over a period of months or years, use those data to determine the life expectancy of the gas shocks, and then replace the gas shocks on a schedule based on that life expectancy. Avery opines that this would permit Six Flags personnel to establish a reasonably predictable timeline about the failure rate of the gas shocks and would permit them to replace the shocks before they break. He acknowledged that although this method would significantly reduce the potential for a gas shock failure, there is always some chance that a gas shock could fail and cause an accident even if the method were being used.

Avery testified that at the last park where he worked, the life history summary technique was used on all parts known to fail so that they could be replaced according to their known failure timeline. He also testified that the life history summary method is or has been used at Disney World and the Disney properties, at Universal Studios, and at Busch Gardens. Avery acknowledges that the life history summary method is not described in written standards or regulations, and he is not aware of the life history summary method being subject to a vote by the American Society of Testing and Materials ("ASTM"). He is not aware of it being addressed in any trade publication, industry bulletin, or government regulation. He has not tested the method and testified that it does not have a known or potential rate of error. He has not inspected the Highland Fling ride.

Defendant now moves to exclude Avery's opinions under Federal Rule of Evidence 702.


The admissibility of expert testimony in federal court is governed by Federal Rule of Evidence 702. Rule 702 states, "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) 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; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." This rule imposes a gatekeeping responsibility on the district court, in which the court must ensure that expert testimony is both relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). "The proponent of the expert testimony bears the burden to prove its admissibility." Menz v. New Holland N. Am., Inc., 507 F.3d 1107, 1114 (8th Cir. 2007). "Decisions concerning the admission of expert testimony lie within the broad discretion of the trial court." Anderson v. Raymond Corp., 340 F.3d 520, 523 (8th Cir. 2003) (quotation marks omitted).

"Rule 702 favors admissibility if the testimony will assist the trier of fact, and doubts regarding whether an expert's testimony will be useful should generally be resolved in favor of admissibility." Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir. 1998) (quotation marks and citations omitted). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'" Kudabeck v. Kroger Co., 338 F.3d 856, 862 (8th Cir. 2003) (quoting Daubert, 509 U.S. at 596). However, "[w]here opinion evidence... is connected to existing data only by the ipse dixit of the expert, ' a district court may conclude that there is simply ...

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