The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge
In this products liability action, Plaintiffs James and Anne Czarnecki seek damages for injuries sustained when Mr. Czarnecki fell from a ladder purchased from Defendant, Home Depot USA, Inc. Presently before the Court are nine motions in limine -- two filed by Defendant (Docs. 51 & 52) and seven filed by Plaintiffs (Docs. 53-59). I will consider them seriatim.
I. DEFENDANT'S MOTIONS IN LIMINE
A. Defendant's Motion in Limine to Bar Norman Johanson's Contention That the "Clicking" Sounds... Constitute a Defect (Doc. 51)
In this motion, Defendant seeks to preclude Plaintiffs' expert, Norman Johanson, from testifying that hinge lock "clicking" constitutes a defect rendering the ladder unreasonably dangerous. See Doc. 51 at 3-4. Plaintiffs counter that the motion is moot in light of my Order of June 4, 2009 (Doc. 62), denying Defendant's Motion to Preclude Plaintiffs' Proposed Expert Testimony and for Summary Judgment. See Doc. 65 at 1.
The present motion does not contain any new arguments or citations to law, but instead rests entirely on those asserted in Defendant's earlier motion to preclude and for summary judgment. Therefore, I will deny this motion in limine as moot in light of my prior ruling.
B. Defendant's Motion in Limine to Bar Norman Johanson From Referring to Claims or Lawsuits Regarding Krause Multi-Matic Ladders (Doc. 52)
In this motion, Defendant seeks to bar Plaintiffs' expert, Mr. Johanson, from referring to prior claims or lawsuits involving Multi-Matic ladders manufactured by Krause. See Doc. 52 at 8-13.*fn1 In support of its motion, Defendant argues that Plaintiffs belatedly indicated that they "will/may" rely on Consumer Product Safety Commission (CPSC) documents regarding prior incidents after first indicating that they did not intend to do so, and that in any event there is no evidence the prior incidents involved the same or similar hinge lock mechanisms or analogous facts. See Doc. 52 at 8-13. Plaintiffs counter that Mr. Johanson should be permitted to rely on CPSC documents regarding Krause ladders because the documents are material and not overly prejudicial to Defendant, the records do not constitute impermissible hearsay, and the evidence was timely disclosed. See Doc. 66 at 2-14.
The admissibility of prior accidents turns on the question of whether its probative value outweighs its prejudicial effect. Forrest v. Beloit Corp., 424 F.3d 344, 354 (3d Cir. 2005). Generally, the party seeking admissibility must establish a foundation that shows "(1) similarity -- the [party] must show that the proferred testimony relates to substantially identical products used in similar circumstances; (b) breadth -- the [party] must provide the court with information concerning the number of prior units sold and the extent of prior use; and (c) awareness -- the [party] must show that it would likely have known of prior accidents had they occurred." Id. at 358.
Here, there is no indication that the documents in question relate to ladders with the same or similar hinge lock design or materials, or that the claims involved the same or similar facts as the present case. In addition, none of the claimants in the other cases has been disclosed as a witness in this case and none of the ladders involved in those cases has been disclosed as an exhibit. Under the circumstances, it is impossible for the court to ascertain whether and to what extent any of the prior claims and/or lawsuits are substantially the same or similar to the present case. Therefore, I will grant this motion in limine and bar Mr. Johanson from referring to prior claims or lawsuits involving MultiMatic ladders manufactured by Krause. If Mr. Johanson identifies claims involving the same ladder, the court will revisit the issue.
II. PLAINTIFFS' MOTIONS IN LIMINE
A. Plaintiffs' Motion in Limine to Preclude Cumulative Expert Testimony (Doc. 53)
Plaintiffs seek to preclude cumulative expert testimony by Defendant's experts, Mack A. Quan, Ph.D., P.E., and John B. Ver Halen, P.E., arguing that such testimony would be overly prejudicial and would constitute undue delay and waste of time pursuant to Federal Rule of Evidence 403. See Doc. 53 at 2-5. Defendant counters that the experts have different theories of causation, and that in any event Defendant has the right to present defect and causation evidence from the perspective of different experts. See Doc. 68 at 6-7.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed. R. Civ. P. 403. Here, Dr. Quan and Mr. Ver Halen both examined the ladder at issue and agreed that the failure of the center hinge lock was due to a weight overload. See Quan Report, attached to Doc. 53 at Ex. B, 1-2; Ver Halen Report, attached to Doc. 53 at Ex. C, 3. However, the experts conducted separate analyses and tests focused on different aspects of the ladder, and presented somewhat different theories of causation. See Quan Report at 6 ("In my opinion, the accident likely occurred due to Mr. Czarnecki erecting the ladder backwards with only one of the two middle hinges engaged."); Ver Halen Report at 3-4 ("The cause of the accident was Mr. Czarnecki's mis-use of the ladder," including setting it up "at an improper angle."). Moreover, only Mr. Ver Halen explicitly responded to the "clicking" theory of causation offered by Plaintiffs' expert, Mr. Johanson. See Ver Halen Suppl. Report dated 03/27/09, attached to Doc. 53 at Ex. C., at 2.
For these reasons, I conclude that the testimony of Dr. Quan and Mr. Ver Halen is not merely cumulative and will not unfairly prejudice Plaintiffs or cause undue delay. Therefore, I will deny this motion.
B. Plaintiffs' Motion in Limine to Exclude Defendant From Introducing Any and All Evidence That the Opinion of Plaintiffs' Expert... Had Been Rejected in Mirchandani v. Home Depot, Inc., or Any Other Case (Doc. 54)
Plaintiffs also seek to preclude Defendant from introducing evidence that Mr. Johanson's theory of causation was rejected in other cases, including Mirchandani v. Home Depot, Inc., a 2007 case in the United States District Court for the District of Maryland. This motion was prompted by defense counsel's questioning at Mr. Johanson's deposition, in particular a reference to Mr. Johanson's theory about the "clicking sounds" being rejected in that case. Doc. 54 at 3. Plaintiffs argue that any prior rejection of the expert's theory was for entirely case-specific reasons, and that in any event Defendant has not provided any documentary evidence of the rejection of the theory in Mirchandani. See Doc. 54 at 3-6. In its response, Defendant states that it does not intend to introduce evidence that the jury in the Mirchandani case rejected Mr. Johanson's "clicking" theory, although it will seek to impeach Mr. Johanson with this information if he refers to Mirchandani in support of his opinions in this case. See Doc. 69 at 3.
I agree that another factfinder's acceptance or rejection of an expert's opinion in another case is not relevant to this case, and that such evidence is likely to confuse or mislead the jury. Nevertheless, if Mr. Johanson were to refer to other specific suits in which he has testified in support of his opinions in this case, in fairness it would be appropriate to allow Mr. Johnason to be questioned about the factfinder's rejection of his opinions for purposes of impeachment. For these reasons, I will grant this motion in limine to preclude Defendant from introducing evidence that Mr. Johanson's theory of causation had been rejected in Mirchandani, or other prior cases. However, Defendant will be permitted to raise the fact-finder's conclusion in a prior case in rebuttal in the event Plaintiffs' expert raises the case first.*fn2
C. Plaintiffs' Motion in Limine to Exclude Any and All Biomechanical Testimony of Defendant's Expert Mack A. Quan (Doc. 55)
Plaintiffs next seek to exclude all biomechanical testimony of Defendant's expert, Dr. Quan, arguing that Dr. Quan is not qualified to offer biomechanical testimony under the standards set forth in Federal Rule of Evidence 702. See Doc. 55 at 2-3. In particular, Plaintiffs seek to exclude Dr. Quan's testimony that Mr. Czarnecki failed to use "safe ladder practice" and that his weight was the proximate cause of the ladder's failure. Defendant counters that Dr. Quan's opinions fall within the scope of mechanical engineering, and that Plaintiffs have failed to define what they mean by "biomechanical engineering expertise." See Doc. 67 at 2-3. In the alternative, Defendant ...