United States District Court, E.D. Missouri, Northern Division
DENNIS D. PITMAN, Plaintiff,
AMERISTEP CORPORATION, et al., Defendants.
MEMORANDUM AND ORDER
\ E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion in
Limine to Exclude, or in the Alternative, Limit the Testimony
of Plaintiff's Expert, Christopher Ferrone [ECF No. 34].
August 8, 2014, Plaintiff Dennis Pitman
(“Plaintiff”) filed a petition in the Circuit
Court of Montgomery County, Missouri, asserting two counts
against Defendant Ameristep Corporation
(“Ameristep”) for negligence and strict
liability, two counts against Defendant Wal-Mart Stores,
Incorporated (“Wal-Mart”) for negligence failure
to warn and strict liability. ECF No. 5. Plaintiff's
petition alleged Plaintiff was injured when the ratchet
straps securing his tree stand to a tree broke causing him to
fall and injure his arm. Defendants Ameristep and Wal-Mart
removed the matter to this Court. ECF No. 1. On June 8, 2016,
Plaintiff filed an Amended Petition adding two counts against
Defendant Tahsin Industrial Corp. U.S.A.
(“Tahsin”) for negligence and strict liability.
ECF No. 32. On July 22, 2016, Wal-Mart was dismissed from
this action. Defendants Ameristep and Tahsin
(“Defendants”) filed this Motion in Limine to
Exclude, or in the Alternative, Limit the Testimony of
Plaintiff's Expert, Christopher Ferrone. ECF No. 34.
702 mandates a policy of liberal admissibility, and expert
testimony is permitted if it will assist the trier of fact in
understanding the evidence or to determine a fact in issue.
Fed.R.Evid. 702; Lauzon v. Senco Prods., Inc., 270
F.3d 681, 686 (8th Cir. 2001). To be admitted under Rule 702,
proposed expert testimony must meet three prerequisites: 1)
any evidence based on scientific, technical or other
specialized knowledge must be useful to the fact finder in
determining a fact in issue; 2) the proposed witness must be
qualified to assist the fact finder; and 3) the proposed
evidence must be reliable or trustworthy in an evidentiary
sense. Id.; Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 590-93 (1993).
district court's goal in assessing expert testimony is to
ensure that “all scientific testimony is both reliable
and relevant.” Barrett v. Rhodia, Inc., 606
F.3d 975, 980 (8th Cir. 2010) (quoting Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir. 2006)).
The reliability requirement means “the party offering
the expert testimony must show by a preponderance of the
evidence both that the expert is qualified to render the
opinion and that the methodology underlying his conclusions
is scientifically valid, ” while the relevance
requirement demands “the proponent must show that the
expert's reasoning or methodology was applied properly to
the facts at issue.” Id. (internal quotations
and citations omitted).
702's requirements notwithstanding, “[c]ourts
should resolve doubts regarding the usefulness of an
expert's testimony in favor of admissibility.”
Marmo, 457 F.3d at 758. This is because the Rule
“only requires that an expert possess ‘knowledge,
skill, experience, training, or education' sufficient to
‘assist' the trier of fact, which is
‘satisfied where expert testimony advances the trier of
fact's understanding to any degree.'”
Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100
(8th Cir. 2006) (internal citation omitted). As such,
“[g]aps in an expert witness's qualifications or
knowledge generally go to the weight of the witness's
testimony, not its admissibility.” Id. at
ask the Court to exclude or limit the testimony of
Plaintiff's expert, Christopher Ferrone. Defendants
assert Mr. Ferrone has no background in the design of tree
stands or the ratchet straps used with tree stands and his
opinions are inadmissible because they are based on
speculation, ignore testimony and evidence, and are not based
on reliable tests. The Court heard oral argument from the
parties and testimony from Mr. Ferrone on August 31, 2016,
regarding this Motion.
Ferrone has extensive experience in in analyzing products and
determining what to do to make products safe. He has designed
his own products. He testified he applied the safety
hierarchy and used the same methodology in testing and
analyzing the straps in this matter as he has when testing
and analyzing other products. He is not an expert in
polymers, but it is not necessary for him to be because his
opinions do not focus on the changing the material of the
strap. In the past, he has done testing on other types of
straps for use with cranes and tie downs, all of which had
tensile failures similar to the straps in this matter.
Ferrone also testified he analyzes warnings and efficacies on
a regular basis. He has developed warnings for two different
products and has continuously evaluated warnings throughout
his career. He looks at the standards for warnings and
applies them to the case at issue. He also used his past
education, experience, and training and applied them.
Court is satisfied Mr. Ferrone is sufficiently qualified to
testify as an expert in this matter. Defendants' concerns
about his qualifications and lack of experience with tree
stand straps and polymers may be addressed on
cross-examination. Defendants' arguments regarding the
reliability of Mr. Ferrone's testing are also appropriate
for cross-examination rather than exclusion. Mr. Ferrone
testified his testing did not meet the tensile testing
standards for webbing material produced by the American
Society of Testing Materials, but nothing in his testimony
caused the Court to believe his testing was unreliable so as
to require its exclusion from trial.
Court will limit the scope of Mr. Ferrone's testimony.
Because he does not have experience in polymers, he will not
be permitted to testify regarding why the strap material is
insufficient. His testimony should be limited to the testing
he conducted, the ...