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Burgett v. Troy-Bilt LLC

United States District Court, Sixth Circuit

July 11, 2013

ROBERT BURGETT, et al., Plaintiffs,
TROY-BILT LLC, et al., Defendants.


AMUL R. THAPER, District Judge.

The witness stand is not a circus-there is no "Come One, Come All" sign inviting anyone who wishes to speak to step right up. Instead, witnesses and their proposed testimony must meet certain requirements. The Federal Rules of Evidence set out different rules for different types of witnesses. Expert witnesses, the type of witness at issue in this case, must have expertise in the subject on which they plan to offer an opinion. Because the plaintiffs' expert witness, Jay Nogan, lacks the required expertise, the defendants' motion in limine to exclude his testimony must be granted.


The Burgetts live in Belfry, a town in the undulating hills of eastern Kentucky. See R. 96-1 at 6 ¶ 20; R. 102 at 6 ¶ 20. Like all good neighbors, they keep their yard tidy. For years, Robert Burgett used a riding mower to cut his grass; never once did he encounter a problem. R. 96-1 at 7 ¶ 22; R. 102 at 6 ¶ 22, 7 ¶ 32. Just over a year ago, this changed. Burgett was cutting his grass when the mower allegedly tipped back and threw him from his seat. R. 1-3 at 7 ¶ 17; R. 96-1 at 7-8 ¶¶ 21-28; R. 102 at 6-7 ¶¶ 21-28. Burgett claims that the driverless mower turned 180 degrees and charged downhill toward him. R. 1-3 at 7 ¶ 17; R. 96-1 at 7-8 ¶ 25; R. 102 at 6 ¶ 25. Sadly, the mower's blades sliced through his foot, nearly amputating at least one toe. R. 1-3 at 7 ¶ 17, 136; R. 96-1 at 8 ¶ 27; R. 102 at 7 ¶ 27.

After the accident, the Burgetts filed this suit. They allege, among other things, that the defendants' negligence in manufacturing or designing the mower caused Robert Burgett's injury. R. 1-3 at 8 ¶ 21. They believe that an electrical defect caused one of the mower's critical safety features, the operator presence control switch, to fail. Id. at 7 ¶ 17. Under normal circumstances, the switch prevents the mower from running if no one is in the driver's seat. R. 96-1 at 5 ¶ 13. According to the Burgetts, the switch's failure allowed the mower to run amok without a driver at its helm-and ultimately to run over Robert Burgett's foot. R. 1-3 at 7 ¶ 17.

To prove their defective design claim, the Burgetts have retained an expert, Jay Nogan. R. 96-1 at 1. The Burgetts asked Nogan to opine on whether design or manufacturing defects in the mower caused Robert Burgett's accident and injuries. R. 95-9 at 2. Nogan came to three conclusions: (1) that the mower was "defective" and that the defect was located somewhere in the mower's seat switch or the ground circuit in its chassis wiring harness, R. 97-11 at 6; (2) that the warnings in the mower's operating manual and on the mower itself would not have prevented the average person from mowing the Burgetts' yard on the day of the incident, see R. 95-9 at 3-5; and (3) that Robert Burgett's injuries were consistent with his description of the events, see id. at 6.

The defendants have filed a motion in limine to exclude Nogan's testimony. R. 96. They make two arguments: (1) that Nogan is not qualified to testify as an expert in this case, and (2) that Nogan's opinions are not reliable. R. 96-1 at 23-31. As the parties seeking to admit Nogan's testimony, the Burgetts bear the burden of proving, by a preponderance of the evidence, that his testimony is admissible. See Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001).


When a party's expert witness is challenged, the Court assumes the role of a gatekeeper to ensure that the expert's testimony is reliable and relevant. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). Federal Rule of Evidence 702 guides the Court through this inquiry. Rule 702 specifies, first, that an expert must be qualified to testify through knowledge, skill, experience, training, or education. Fed.R.Evid. 702. A qualified expert may then testify so long as his opinions will aid the fact finder and are reliable, meaning they are based on sufficient data, reliable methods, and the facts of the case. Fed.R.Evid. 702(a)-(d); see In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008). The Supreme Court in Daubert provided a list of factors for trial courts to consider as they evaluate the reliability of scientific expert testimony. See In re Scrap Metal Antitrust Litig., 527 F.3d at 529. These factors are nonexclusive, however, and a district court has "considerable leeway" in making its determination under Rule 702 and Daubert. See Meridia Prods. Liab. Litig. v. Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

A hearing to decide these issues is unnecessary in this case. Under normal circumstances, a district court may resolve a Daubert motion without holding a hearing. Nelson, 243 F.3d at 249. A hearing is required only if the record is inadequate to decide the motion. See Jahn v. Equine Servs., PSC, 233 F.3d 382, 393 (6th Cir. 2000). In this case, the parties fully briefed the admissibility of Nogan's testimony under Daubert and developed an extensive record that includes depositions. Cf. Nelson, 243 F.3d at 249; Barnette v. Grizzly Processing, LLC, No. 10-cv-77, 2012 WL 293305, at *2 (E.D. Ky. Jan. 31, 2012). Moreover, the Burgetts prefer a resolution without oral argument. R. 102 at 2. During a June 13, 2013, telephone conference, R. 105, the Burgetts informed the Court that Nogan's lengthy deposition transcript, his resume, and the parties' briefs were all the information the Court needed to make a decision. The Court concurs. No hearing is necessary.

I. Nogan Is Not Qualified As an Expert Under Federal Rule of Evidence 702

The defendants contend that Nogan's mechanical engineering qualifications do not equip him to testify about the mower's electrical system, biomechanical issues, or human factors.[1] R. 96-1 at 23-26. They are correct.

Nogan is an experienced mechanical engineer. He graduated from the University of Delaware with a degree in mechanical engineering in 1979. R. 97-1 at 17; R. 99-8 at 2. While Nogan is not licensed as an engineer in any state and never sat for a professional engineer exam, he spent twenty-three years working as an engineer on products like submarines, locomotives, trucks, and heavy machinery. See R. 97-1 at 17-18; R. 99-8 at 1-2. In 2002, Nogan transitioned from practicing as a mechanical engineer to working as a forensic engineer. R. 97-1 at 18; R. 99-8 at 1. Since then, he has received training in accident reconstruction and has examined trucks, motorcycles, mobile equipment, and other machinery. R. 99-8 at 1, 3. Nogan has never designed a lawn mower or otherwise worked for a manufacturer of lawn mowers, R. 97-1 at 20, but he has inspected riding mowers on two ...

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