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MacKenzie v. Jlg Industries, Inc.

United States District Court, W.D. Kentucky, Louisville Division

December 29, 2014

STEVEN MACKENZIE, et al., Plaintiffs,
JLG INDUSTRIES, INC., et al., Defendants.


THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Defendant JLG Industries, Inc.'s Motion to Exclude Expert Testimony of John Jendrzejewski and Mark Webster. (Docket #51). Plaintiff has responded. (Docket #61). These matters now are ripe for adjudication. For the foregoing reasons, Defendant's motion (Docket #51) is DENIED.


This action arises from Plaintiff Steven Mackenzie's fall from a vertical lift manufactured by Defendant JLG Industries, Inc. ("JLG"). Mackenzie was working for Axxis, Inc. ("Axxis") as Axxis dismantled the Kalightascope holiday tent at the Galt House Hotel in Louisville, Kentucky. The Kalightascope tent is a large tent with stage decking for the floor and black liners along the walls. Mackenzie and three Axxis employees were having trouble removing the liners because they were binding at the apex of the tent. (Docket #62). To ease the process, Mackenzie ascended a JLG 30AM Vertical Lift (the "Lift") to spray lubricant into the apex of the tent. (Docket #52). While the Lift was raised, it began to sway and then fell. Mackenzie fell approximately thirty feet, suffering injuries to his back, ribs, and legs. (Docket #62).

The Lift has four wheels and four outriggers. The outriggers extend diagonally from each corner of the Lift. The outrigger legs are first secured by removing a safety pin and pushing the leg into a locked position. The outrigger legs are then lowered by turning a jack screw until a footpad contacts the floor. (Docket #52). After the fallen Lift was inspected, it was discovered that one of the jack screws had broken near its base. (Docket #62). Each party has offered expert witnesses to explain why and how the jack screw fractured.

JLG asserts the jack screw broke under the stress of the Lift tilting and falling, but did not cause the fall. In support, JLG offers an expert who opines the jack screw broke because as the Lift fell it subjected the jack screw to excessive bending stress. (Docket #51, Ex. 7). JLG's metallurgy expert opines that the surface of the fractured jack screw is "consistent with a single-overload failure." (Docket #51).

Mackenzie asserts that the jack screw broke because it was worn. Mackenzie offers as support the expert opinion of John Jendrzejeski, who opines that the outrigger design caused metal on metal friction. (Docket #62). This friction caused wear and reduced the diameter of the jack screw by approximately half. Mackenzie also offers as support the expert opinion of Mark Webster, who opines that as the jack screw thinned, it changed the angle at which the jack screw and the footpad joined. This increasingly severe angle caused mounting stress on a thinning jackscrew, ultimately fracturing the jack screw at the thinnest point. (Docket #62). Jendrzejeski also opines the surface of the fractured jack screw showed three to four "curved bands" which are evidence the Lift swayed back and forth before the jack screw ultimately fractured. (Docket #61, Ex. 8).

JLG moves to exclude the expert testimony of both Jendrzejeski and Webster. (Docket #52). JLG argues both experts are unqualified to offer testimony and that both experts' opinions are unreliable.


The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

A trial court plays a "gatekeeper" role, excluding evidence that is "unreliable and irrelevant." Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). The inquiry is "a flexible one" and the focus "must be solely on [proposed expert's] principles and methodology, not on the conclusions they generate." Daubert v. Merrell Dow Pharms., 509 U.S. 579, 594-95 (1993). While there is no "definitive checklist or test, " some factors to consider include: (i) whether the theory or technique "can be (and has been) tested, " (ii) whether it "has been subjected to peer review and publication, " (iii) whether it has a "known or potential rate of error, " and (iv) whether the theory or technique enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 594 (1993). In general, a testifying expert is expected to "employ[] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

The Sixth Circuit has outlined "[r]ed flags that caution against certifying an expert." Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012) (citing Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009)). These include "reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity." Id. (citing Best, 563 F.3d at 177). Also, testimony prepared solely for ...

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