United States District Court, M.D. Pennsylvania
December 15, 2005.
FELICIA REICHNER, a minor, by MAYNA SWINEHART, guardian, Plaintiffs
K-MART CORPORATION AND SISTER SISTER, INC., Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition are several motions in limine
regarding expert witness testimony filed by the defendants in the
instant action. The matters have been fully briefed and
argued.*fn1 For the reasons that follow, the motions will be
The minor plaintiff, Mayna Swinehart, was injured when her
clothing caught fire. The instant lawsuit was filed to recover
for her injuries. The plaintiff asserts that the clothing was
unreasonably dangerous in its flammability and its lack of
Plaintiff intends to call two expert witnesses in the trial of
this case, Jeffrey O. Stull and Kenneth Laughery. The defendants
have moved to preclude these witnesses from testifying,
challenging their qualifications and the reliability of their
opinions. Defendant Kmart also seeks to preclude a supplemental
report authored by Stull. We shall address this motion first.
This Court has jurisdiction pursuant to the diversity
jurisdiction statute, 28 U.S.C. § 1332. The plaintiffs are
citizens of the Commonwealth of Pennsylvania. Defendant Kmart is
a Michigan corporation with a principal place of business in
Michigan, and Defendant Sister-Sister is a New York Corporation with a
principal place of business in New York. Because we are sitting
in diversity, the substantive law of Pennsylvania shall apply to
the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158
(3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78
I. Motion to exclude supplemental report
Before addressing the merits of the motions to exclude the
witness's testimony, we will address Kmart's motion to exclude
the supplemental report of Jeffrey O. Stull. Kmart asserts that
this report was submitted prejudicially late in November of 2005,
approximately a year and a half past the deadline for submitting
expert reports. We will deny the defendant's motion.
Although, the deadline for submitting expert reports was May
15, 2004 (Doc. 44), the defendants will not be prejudiced by the
supplemental report. The new report merely expands upon or
provides support for the first report. For instance, the first
report indicated that loose dangling fabric ties will ignite when
exposed to open flame. The supplemental report provides the
results of testing to support that finding.
Moreover, Stull explains in the supplemental report that it was
submitted late, at least partially, because he has been suffering
from advanced esophegeal cancer and had undergone extensive
chemotherapy, radiation therapy and surgery. (Stull's
Supplemental Report, Ex. A, to Kmart's motion (Doc. 120)). In
light of the reason for the last submission, and the fact that
the supplemental report merely expands upon the first report, we
find that it need not be precluded and will deny Kmart's motion.
II. Motion to exclude Jeffrey Stull's testimony
Plaintiff intends to call Jeffrey O. Stull as an expert in the
field of combustible fabrics, their degree of flame spread and
extinguishment, and appropriate label practices for apparel.
(Stull's Report, Ex. A, to Kmart's Motion in Limine to Exclude
Stull's Testimony (Doc. 94)).
According to his report, Stull's conclusions are as follows:
The clothing at issue was unreasonably dangerous
because of the ease at [sic] which the cotton fabric
would ignite when momentarily contacted by flame of a
disposable butane lighter. The specific design of
this clothing was further hazardous since the
clothing items was [sic] not snug fitting because of
the loose ties in the madras style clothing provided
at the bottom of the blouse. The loose ends of these
ties will more readily ignite with flame contact when
compared to the same contact of flame on the surface
of blouse material. The ease of ignition for the
clothing worn [sic]Felicia Reichner in combinaton
with the rapid spread of the flame once ignited
contributed the extent and severity of her burn
(Id. at 4). He further concludes that if the clothing had been
treated to be flame resistant or been made from intrinsically
flame resistant material, the minor plaintiff would not have
suffered any injuries. (Id. at 4-5). Additionally, he opines
that the absence of warnings rendered the clothing unreasonably
dangerous. (Id. at 5). The defendants seek to preclude this
With regard to the admission of expert testimony, the Federal
Rules of Evidence provide as follows:
Testimony by Experts
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training or education, may testify
thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
FED. R. EVID. 702.
Both defendants first attack the qualification of Stull to be
an expert in the proffered fields, and then they attack the
reliability of Stull's methods and principles. We will address
each issue separately.
1) Qualifications In order to qualify a witness to testify as an expert under
Rule 702, that witness must have "specialized knowledge" in the
area of his proposed testimony. That knowledge can come from
practical experience, academic training and credentials. Waldorf
v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998). The Third Circuit
Court of Appeals interprets the "specialized knowledge"
requirement liberally, with respect to both the substantive and
formal qualifications of experts. Id.
In the instant case, the record reveals that Stull is qualified
to testify as an expert in the field of combustible fabrics,
their degree of flame spread and extinguishment, and appropriate
label practices for apparel. Stull has a B.S. degree in Physical
Sciences from the U.S. Coast Guard Academy, and he graduated with
high honors. (See Stull's Curriculum Vitae, Doc. 94-3). He also
has an M.S. degree in Chemical Engineering from the Georgia
Institute of Technology, and an M.S. degree in Engineering
Management from Catholic University. (Id.).
Additionally, Stull is the current chairman of the American
Society for Testing and Materials Committee on Protective
Clothing. He has been responsible for the development and
promulgation of several test methods and other standards related
to protective clothing. He is the lead representative for the
United States for ISO Technical Committee 94, Subcommittee 13 on
Protective Clothing and chairs Working Group 2 on Flame and Heat
Protection. He has authored numerous articles and other
publications related to material or clothing flammability.
(Stull's Report, Ex. A, to Kmart's Motion in Limine to Exclude
Stull's Testimony (Doc. 94) report, page 5, see also Curriculum
The defendants do not attack Stull's qualifications generally;
rather, they claim his expertise is in protective, industrial use
clothing, not consumer apparel. While it does appear that the
majority of Stull's expertise relates to protective apparel, we
find that the distinction is irrelevant in the instant action. As
set forth above, Stull opines that the clothing was hazardous because it was not snug fitting and had
dangling ties. Nothing in the record indicates that there would
be a distinction between protective clothing and consumer
clothing with respect to the factors that Stull highlights, that
is the presence of dangling ties and the fit of the clothing.
They appear to be factors applicable to clothing generally and
not specifically to any particular type of apparel. Moreover,
application of flame retardants would be applicable to all types
of clothing also. It is apparent that Stull's conclusions are
applicable to clothing generally and do not apply specifically to
protective clothing or consumer apparel. Perhaps these are
subjects of cross-examination for the defendants, but they
certainly do not render this highly qualified expert's testimony
inadmissible or irrelevant.
2) Reliability of Stull's methods and principles/Daubert
Both defendants also attack the reliability of the methods and
prinicples used by Stull, and hence, his conclusions. Under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), an expert's opinion can be considered reliable where it
is based upon methods and procedures of science as opposed to
being the expert's subjective belief or unsupported speculation.
Id. at 589. There must be "good grounds" for the expert's
Court's utilize the following list of non-exclusive "Daubert
factors" to evaluate whether an expert's methodology is reliable:
(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subject
to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards
controlling the technique's operation; (5) whether
the method is generally accepted; (6) the
relationship of the technique to methods which have
been established to be reliable; (7) the
qualifications of the expert witness testifying based
on the methodology; and (8) the non-judicial uses to
which the method has been put.
Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir. 2000).
The method that Stull used to establish his hypothesis is
actual testing. As such, it is by definition a testable
hypothesis. Stull's conclusion that treated fabrics or intrinsically flame resistant fabric would have prevented the
incident, is based upon his expertise in the area of fabric
flammability and would need no testing to establish. Finally,
Stull's opinion regarding a warning or labeling is based upon a
survey of consumers entitled "The Rhode Island Report." The use
of surveys comports with Daubert's requirements.*fn2
Accordingly, we find that no reason exists to preclude
plaintiff from presenting the testimony
III. Motion to exclude Kenneth Laughery's testimony
The defendants also challenge the testimony of Kenneth R.
Laughery, the plaintiff's proposed expert in human factors and
warnings. Laughery opines that the defendants' failure to provide
adequate warnings regarding the flammability hazards of the
clothing rendered it unreasonably dangerous. (Laughery's Report,
Ex. A, to Sister Sister's Motion to Exclude, (Doc. 103) at 4). As
with the other expert witness, the defendants' challenge both
Laughery's qualifications and the reliability of his
techniques.*fn3 Employing the same standard as set forth
above we will address these issues in seriatim.
Laughery attained the following academic degrees from
Carnegie-Mellon University: Bachelor of Science in Metallurgical
Engineering, Masters of Science in Psychology, and a PhD in
Psychology. (Id. at 1). He is a licensed psychologist in the
State of Texas and is a certified human factors professional.
(Id. at 2). He has been president of the national Human Factors
and Ergonomics Society. (Id.). His professional experience includes Research Psychologist at
the US Army Human Engineering Laboratories from 1963-1963. (Id.
at 1). He has also been a faculty member at the State University
of New York at Buffalo in the Psychology and Industrial
Engineering Departments. (Id.). He served as the chair of the
Industrial Engineering Department at this school. He also served
as a visiting professor at the University of Sussex England.
(Id.). Subsequently, we was a professor and chair of the
psychology department at the University of Houston. (Id.).
After that position, he worked at Rice University as an Endowed
Chair Professor of Psychology. (Id. at 2). He retired from Rice
in 2001. (Id.).
He has participated in various research projects both with the
government and through private companies. His research has been
published in peer-reviewed journals, and he has authored and
co-authored over 130 articles. Moreover, he has edited/authored
three books on warnings and a book on information technology.
Defendant Sister Sister challenges Laughery's qualifications on
the basis that the nature of the product in this case requires
particular knowledge of consumer apparel including its
production, marketing and consumer concerns. They claim that
Laughery does not possess knowledge on the use and efficacy of
warnings that is specific to the consumer apparel industry.
We are not convinced that the consumer apparel industry is so
unique that it renders irrelevant Laughery's vast experience and
education in the human factors field and warnings. Laughery is
offered by the plaintiff's in the field of warnings and human
factors, not in the field of clothing and flammability.
At his deposition, Laughery explained the distinction between
an expert in warnings and an expert in the underlying product as
Let me just make another point here that, I guess, I
think is a clarification. We talked earlier about the
number of different products that have been involved
in warning cases in which I have given opinions and
testified. And, obviously, I'm not an expert on a hundred, plus or minus, something
different products in terms of their design, in terms
of engineering characteristics of them and so forth.
My expertise is warnings.
The point I make is the principals of warnings are
not product specific. There are not a set of
principals about warnings that apply to lawnmowers
and a different set that apply to automobiles and
another set that apply to clothes and another set
that apply to solvents. The principals of warnings
are general. And that's the sense in which I made the
point in response to your question that, well, I
haven't specifically studied warnings on clothing, I
have studied warnings in ways that are applicable to
warnings on clothing.
Laughery Depo. At 66-67.
Accordingly, we find that Laughery does not have to be an
expert in consumer apparel to be an expert in the warnings
applicable to such apparel, and he is qualified to testify as an
expert in the area of in human factors and warnings.
2) Scientific reliability Daubert
Defendant Sister Sister argues that whatever opinions Laughery
holds are unreliable because they have not been subject to any
scientific analysis, scrutiny or methodology. Kmart argues that
his findings lack scientific validity and are unreliable and
inadmissible. After a careful review, we disagree with the
Laughery described the method he used in developing his opinion
[S]cientific method is a knowledged discovery method
and it involves a lot of different kinds of
methodologies. In the context of psychology and human
factors, it can involve what in that discipline
we talked about, experimental research, where you
manipulate independent variables and you measure
dependent variables and you worry about control
variables and bias. That's one methodology that is
within the context of scientific method, but there
are others. It may be surveys, it may be interviews,
it may involve case studies. Those are all variations
on the scientific method.
Id. at 48-49
Laughery's opinion is based upon a survey prepared by Patricia
A. Helms entitled Rhode Island Survey of Consumer Knowledge of
Clothing Falmmability. Although the survey has not been peer
reviewed, Dr. Laughery, who has performed peer review of various
works, concluded that the survey meets with his approval. Id.
at 47. In addition, his opinion is based upon his experience and
knowledge in the area of warnings and human factors. As such we
find that his opinions are more than mere speculation and the
Daubert standard for admissibility is met. Accordingly, we will
deny the motions to preclude his testimony.
For the foregoing reasons, we will deny the motion to preclude
the supplemental report of Jeffrey O. Stull. The motions to
preclude the testimony of Stull and Kenneth Laughery will also be
denied as we find them to be qualified and their opinions are
reliable under Daubert. An appropriate order follows. ORDER
AND NOW, to wit, this 15th day of December 2005 it is
hereby ordered as follows:
1) Defendant Sister Sister's motion to exclude expert
testimony of Jeffrey O. Stull (Doc. 89) is hereby
2) Defendant Sister Sister's motion to exclude expert
testimony of Kenneth R. Laughery (Doc. 90) is hereby
3) Defendant Kmart's motion to preclude testimony of
Kenneth Laughery (Doc. 93) is hereby DENIED;
4) Defendant Kmart's motion to preclude testimony of
Jeffrey Stull (Doc. 94) is hereby DENIED; and
5) Defendant Kmart's motion to exclude/preclude the
supplemental expert witness report of Jeffrey O.
Stull dated Nocember 22, 2005 (Doc. 120) is hereby
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