Expert Witness Blog
Plaintiff sued defendant after she was injured after falling off a personal watercraft. Plaintiff hired a labels & warnings expert witness to assist in her case and defendant filed a motion to exclude. The court granted the motion.
Facts: This products liability case (Ruggiero v. Yamaha Motor Corporation – United States District Court – District of New Jersey – March 31st, 2017) involves in injury sustained by the plaintiff (Ruggiero) when she fell off a personal watercraft. The watercraft is manufactured by the defendant (Yamaha) and Ruggiero alleges that they failed to provide adequate warnings. Ruggiero hired William F. Kitzes, J.D. (labels & warnings expert witness) to provide testimony and Yamaha filed a motion to exclude this testimony.
Discussion: Mr. Kitzes testifies that he has provided expert testimony in eight other cases involving personal watercrafts (PWCs), including two that involve orifice injuries similar to the current case. In this case, he opined on the placement of the warning labels on the PWC at issue and maintains that a third warning label should have been placed on the seat in front of the passenger and that by not doing so creates a risk and catastrophic injury.
The defendants motion to exclude alleges that 1) Mr. Kitzes is not qualified to provide expert witness testimony in this case; 2) his opinion is not reliable; 3) the methods he used to come to his conclusions are unscientific; 4) his opinions about warnings are not helpful to the jury.
Mr. Kitzes is a lawyer who worked at the Consumer Product Safety Commission as well as the Institute for Safety Analysis and has owned a consulting business called Consumer Safety Associates for 34 years. He has spoken at numerous conferences and has written extensively on consumer product issues. Yamaha argues that Mr. Kitzes is not qualified to offer an opinion in this case because he doesn’t have a degree in engineering or industrial safety management nor has he ridden a PWC in over 10 years. The court opined that Mr. Kitzes employs at least the minimum of education, training, and experience to qualify about warning labels and the location of those labels. Thus, the court decided, Mr. Kitzes is qualified to offer an expert opinion in this case.
Yamaha argues that Mr. Kitzes did not utilize any methodology, sound principles, or evidence in producing his reports. They state that his third orifice injury warning does not have any support in authoritative scientific literature and he provides no evidence on the likelihood that a PWC rider will read a warning label on the seat of the craft. The court agreed with Yamaha, stating that Mr. Kitzes did not perform any tests or focus groups or rely on any articles on the location of warnings. In addition, the court continues, he did not conduct any reenactments or examine the PWC in question.
Last, the plaintiffs argue that Mr. Kitzes testimony will assist the trier of fact that the orifice warning needs to be put on the seat where a passenger would have the opportunity to see it. the court disagreed, stating that his testimony is not sufficiently tied to the facts of this case and, thus, does not pass the “fit” prong of Daubert.
Conclusion: The motion to exclude the expert opinion of William F. Kitzes, J.D is granted.