Case 7:07-cv-00135-WLS Document 36 Filed 09/30/2008 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ROBERT BELL, :
vs. : 7:07-CV-135 (WLS)
LOUISVILLE LADDER, INC., :
Before the Court is Defendant Louisville Ladder, Inc.’s (“Louisville”) motion in
limine in reference to Plaintiff’s expert. (Doc. No. 14). As the motion is essentially a motion
to exclude Plaintiff’s expert under Daubert, it will be treated as such. Also, pending is
Defendant’s motion for summary judgment. (Doc. No. 16). For the following reasons,
Defendant’s motion to exclude Plaintiff’s expert (Doc. No.14) is DENIED, and Defendant’s
motion for summary judgment (Doc. No. 16) is GRANTED-IN-PART and DENIED-IN-
This is a product liability case in which Plaintiff alleges that a defective attic ladder
designed by Defendant failed causing Plaintiff’s permanent injuries. Plaintiff alleges that he
fell from an attic stairway ladder on June 5, 2003. The ladder was manufactured by
Defendant Louisville Ladder, Inc. There were no witnesses to the fall. Several of Plaintiff’s
co-workers, however, arrived on the scene immediately. At the time, Plaintiff was a
subcontractor performing electrical work on the new home where the ladder was located.
As a result of the fall, Plaintiff suffered injuries to his head and back.
. Also pending is Plaintiff’s motion for a protective order. (Doc. No. 11). As a
subsequent protective order was entered into by the parties, Plaintiff’s motion (Doc. No. 11)
is DENIED as moot.
Case 7:07-cv-00135-WLS Document 36 Filed 09/30/2008 Page 2 of 6
Defendant’s Daubert Motion
Expert testimony is admissible if (1) the expert is qualified to testify regarding the
matter he intends to address; (2) the methodology he uses to reach his conclusion is
sufficiently reliable; and, (3) the testimony assists the trier of fact, through the application of
scientific, technical, or specialized expertise, to understand the evidence or to determine a
fact in issue. City of Tuscaloosa v. Harcros Chemical, Inc., 158 F.3d 548, 562 (11th Cir.
1998). The law places the burden of satisfying these elements on the party offering the
expert. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). The court of
appeals reviews a district court’s decision to admit or exclude expert testimony for an abuse
of discretion. City of Tuscaloosa, 158 F.3d at 556.
Defendant attacks Plaintiff’s expert Linda L. Weseman under the first, second and
third prongs of the above referenced test. Defendant argues that Weseman is not qualified to
render an opinion, that Weseman’s methodology is unreliable as mandated by Daubert and
as such, he testimony fails to assist the jury.
Rule 702 of the Federal Rules of Evidence provides in pertinent part that an expert
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 reliability to the facts of the case.
This Court is well aware of its obligation to ensure that scientific testimony is both
relevant and reliable. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). The Court
is also aware that the problem that the Supreme Court was trying to address in the Daubert
line of cases was the so called “junk science” that was too often being admitted at trial.
Essentially, new and novel, but untested, scientific theories were used by some litigants to
support their cases. As a result, the Supreme Court set forth the requirements that the
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expert’s opinion be supported by a scientifically valid theory, reasoning or methodology and
could be properly applied to the facts of the case. Daubert, 509 U.S. at 593.
In addition, the Daubert court set forth a guide of non-exclusive factors for the trial
courts to examine in making this determination. The district court should examine (1)
whether the expert’s theory is capable of being, and has been, tested; (2) whether the
methodology has been subject to peer review; (3) what the known rate of error is; and, (4)
whether the theory is generally accepted by the scientific community. Daubert, 509 U.S. at
If this Court adopts Defendant’s implicit position of Defendant’s interpretation of
these factors concerning whether Weseman’s opinion is admissible, then not only would
Weseman’s opinion be excluded, but so would Defendant’s expert, Erick H. Knox, Ph.D.,
Plaintiff’s expert Linda Weseman, P.E., has a Master’s Degree in Mechanical
Engineering with a concentration on Machine Design and Biomechanics. Weseman’s thesis
was focused on the kinematics of lower limbs during stair climbs and has previously been
qualified to testify in ladder, stair design cases and other accident cases. Defendant’s expert,
Erick Knox, Ph.D., P.E., has a Ph.D. in Biomedical Engineering, a Masters degree in
Biomechanical Engineering and a B.S. in Engineering. While it may be argued that Knox is
“more” academically qualified, it is hard to see that Weseman with similar training and
related credentials is not qualified. Both have mechanical engineering degrees with
concentrations in areas related to biology/human mechanics.
Further, neither Weseman nor Knox “tested” the ladder in question in the sense that
most non-scientists understand the word. Weseman and Knox reviewed essentially the same
material, including pictures, other ladders, government and engineering regulations and
standards, medical records and other reports in reaching their conclusions. Both have
presented materials or published in the general areas of biomechanics as it relates to human
injury. Knox is the more prolific publisher of the two. Apparently, Knox has not offered
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any testimony that Weseman should be disqualified based on her credentials or method of
analysis. Knox, however, disagrees with Weseman’s analysis and conclusions.
The fact that a trier of fact may believe one expert over the other, or one is more
persuasive than the other, or one is “more” qualified than the other, are not factors in
making a Daubert determination. If one remembers the purpose of Daubert, which is to
avoid the admissibility of “junk science,” the fact that Weseman’s and Knox’s methodology
does not fit squarely under the common, and non-exclusive, test set out as examples in
Daubert, does not mean that both or either is using “junk science.” The fact that both
individuals utilized the same methodology, but reached opposite conclusion, is a strong
factor that their methodology is sound and valid. There is no evidence that either failed to
apply accepted scientific methodology with regards to the evidence in reaching their
conclusions. Therefore, Defendant’s motion to exclude the testimony of Weseman (Doc.
No. 14) on the basis of Daubert is DENIED.
Defendant’s Motion for Summary Judgment2
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment “shall
be rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.”
The Court is required to “resolve all reasonable doubts about the facts in favor of the non-
movant, and draw all justifiable inferences in his or her favor.” Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quotations and citations omitted).
. Plaintiff had filed a motion to respond to Defendant’s Daubert motion and motion
for summary judgment. (Doc. No. 23). Plaintiff has since filed the appropriate responses
before the Court could rule on the motion for an extension of time. Accordingly, Plaintiff’s
motion for an extension (Doc. No. 23) is DENIED as moot.
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The moving party carries the initial burden of showing that there is an absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553 (1986). The substantive law governing the case determines which facts are material,
and “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is,
if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). For
issues on which the non-movant bears the burden of proof at trial, the moving party “simply
may show—that is, point out to the district court—that there is an absence of evidence to
support the non-moving party's case. Alternatively, the moving party may support its
motion for summary judgment with affirmative evidence demonstrating that the non-
moving party will be unable to prove its case.” Fitzpatrick, 2 F.3d at 1116 (quotations and
If the moving party fails to overcome this initial burden, the Court must deny the
motion for summary judgment without considering any evidence, if any, presented by the
non-moving party. Fitzpatrick, 2 F.3d at 1116. If, on the other hand, the moving party
overcomes this initial burden, then the non-moving party must show the existence of a
genuine issue of material fact that remains to be resolved at trial. Id. Moreover, the adverse
party may not respond to the motion for summary judgment by summarily denying the
allegations set forth by the moving party. Rather, the adverse party “must set forth specific
facts showing that there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.”
Fed. R. Civ. P. 56(e).
Defendant argues it is entitled to summary judgment, except on the breach of implied
warranty claim, based solely on the contention that Plaintiff’s experts’ testimony should be
excluded on the basis of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Without expert testimony, it is axiomatic under Georgia law that a claim for damages for
Case 7:07-cv-00135-WLS Document 36 Filed 09/30/2008 Page 6 of 6
products liability must fail as a matter of law. Smith v. Ortho Pharm. Corp., F. Supp. 1561
(N.D. Ga. 1991).
Defendant argues it is entitled to summary judgment on Plaintiff’s breach of implied
warrant claim as a matter of law. Plaintiff does not argue the points as they relate to this
particular claim. Defendant argues that Georgia law required privity of contract between the
manufacturer and the Plaintiff for breach of implied warranty. Bodymasters Sports Indus. v.
Wimberly, 232 Ga. App. 170 (1998). Plaintiff argues that privity is not required in products
liability claims. Center Chemical Co. v. Parzini, 234 Ga. 868 (1975). While Plaintiff is
correct as to the issue of privity in products liability claims, that is not the question before
the Court. Privity is required under Georgia law for breach of implied warranty claims, and
as no such privity exists in this case as shown by Plaintiff, Defendant is entitled to summary
judgment on this claim. Accordingly, Defendant’s motion for summary judgment on
Plaintiff’s breach of implied warranty3 (Doc. No. 16) is GRANTED.
Other than arguing that Plaintiff’s remaining claims fail because this Court should
exclude Plaintiff’s expert, Defendant offers no other arguments for summary judgment. As
this Court has declined to exclude Plaintiff’s expert under Daubert, there exists a genuine
issue of material fact concerning Plaintiff’s remaining claims, as such, Defendant is not
entitled to summary judgment as a matter of law. Accordingly, Defendant’s motion for
summary judgment on Plaintiff remaining claims4 (Doc. No. 16) is DENIED.
So ORDERED this 30th day of September, 2008.
/s/W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT
. Count III.
. Counts I and II are claims for the negligent design and manufacture of the ladder.