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Jackson v. E-Z-GO Division of Textron, Inc.

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

July 23, 2018

LORA MADONNA JACKSON, et al., PLAINTIFFS
v.
E-Z-GO Division of TEXTRON, INC., et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         Currently pending before the Court are four motions by Plaintiffs and three motions by Defendant to exclude testimony of various witnesses pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [DN 130; DN 131; DN 132; DN 133; DN 134; DN 135; DN 136.] All motions have been responded to and replied to. Fully briefed, these matters are now ripe for adjudication. For the reasons explained in detail below, Defendant E-Z-GO's Motion to Exclude Opinion Testimony of Andrew Lawyer II is GRANTED IN PART AND DENIED IN PART; its Motion to Exclude Proposed Opinion Testimony of William Kitzes is GRANTED IN PART AND DENIED IN PART; and its Motion to Exclude Opinion Testimony of Kristopher Seluga is GRANTED IN PART AND DENIED IN PART.

         Plaintiffs' Motion to Exclude Testimony of Richard L. Stern is DENIED; their Motion to Exclude David J. Bizzak, H. Frank Entwisle, and Graeme F. Fowler is GRANTED IN PART AND DENIED IN PART; their Motion to Exclude Testimony About the Law by Fact Witnesses & Textron's Expert Witnesses is GRANTED; and their Motion to Exclude Nathan T. Dorris is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         This lawsuit arises out of a rollover accident involving an electric personnel carrier vehicle that led to the tragic death of one of the passengers, fifteen year-old Jordan Kori Jackson, on July 25, 2010 in Grayson County, Kentucky. [See DN 1-2 (Complaint).] The personnel carrier vehicle (the “Vehicle”) was a 1993 E-Z-GO PC-4X manufactured and sold by Defendant E-Z-GO (“Defendant” or “E-Z-GO”).[1] Jordan Jackson was a passenger in the front right seat of the Vehicle. Three other teenage passengers were also present: Molly Kyle, who was driving, Andrew O'Neill, whose parents owned the Vehicle, and Samantha Compton. Both Andrew O'Neill and Samantha Compton were sitting in the back of the Vehicle at the time of the incident.

         Lora Madonna Jackson, Jordan's mother and the administratrix of her estate, and Carmine T. Jackson, administratrix of the estate of Charles T. Jackson Jr., Jordan's father, brought the instant lawsuit against Defendant E-Z-GO Division of Textron, Inc. Herein, Plaintiffs allege that the Vehicle's design was defective, that E-Z-GO failed to provide adequate warnings regarding its safe operation, and that E-Z-GO breached express and implied warranties. [See DN 1-2 at 4-7.] Plaintiffs also bring negligence and gross negligence claims against Keith and Dianna O'Neill, Andrew O'Neill's parents, alleging that the O'Neills wrongly allowed their then-underage son and others to operate the Vehicle on the day of the incident. [DN 1-2 at 7-8.]

         This matter is scheduled for a jury trial beginning on August 1, 2018. Presently, both parties make motions to exclude the testimony of several witnesses expected to testify at trial.

         STANDARD

         When a party challenges an opponent's expert witness, this Court must assume “a gatekeeping role” to ensure the relevance and reliability of the expert's testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert to nonscientific expert testimony). Federal Rule of Evidence 702 guides the Court through this inquiry. The plain language of Rule 702 says, first, that an expert must be qualified to testify on account of his “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702; see also Bradley v. Ameristep, Inc., 800 F.3d 205, 208 (6th Cir. 2015). The Court does “not consider ‘the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.' ” Burgett v. Troy-Bilt LLC, 579 Fed.Appx. 372, 376 (6th Cir. 2014) (quoting Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994)). A qualified expert may then testify so long as his opinions will aid the factfinder and are reliable, meaning the opinions are based on sufficient data, reliable methods, and the facts of the case. Fed.R.Evid. 702(a)-(d); see also Clark v. W & M Kraft, Inc., 476 Fed.Appx. 612, 616 (6th Cir. 2012); Adler v. Elk Glenn, LLC, 986 F.Supp.2d 851, 854 (E.D. Ky. 2013).

         There are a number of factors typically considered to resolve questions concerning the reliability (and admissibility) of expert testimony, but no list is exhaustive. See Daubert, 509 U.S. at 593-94; see also Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527 (6th Cir. 2012); Powell v. Tosh, 942 F.Supp.2d 678, 686-88 (W.D. Ky. 2013). Such factors may include “(1) whether the theory or method in question ‘can be (and has been tested)'; (2) whether it ‘has been subjected to peer review and publication'; (3) whether it has a ‘known or potential rate of error'; and (4) whether the theory or technique enjoys ‘general acceptance' in the ‘relevant scientific community.'” Sierra Enterprises Inc. v. SWO & ISM, LLC, 264 F.Supp.3d 826, 834 (W.D. Ky. 2017) (quoting Daubert, 509 U.S. at 593-94).

         Where a party challenges the testimony of a proffered expert for insufficient “factual basis, data, principles, methods, or their application . . . the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of [his or her] discipline.” Kumho Tire, 526 U.S. at 149 (quoting Daubert, 509 U.S. at 592). Although a Daubert hearing is not a prerequisite, the court must ensure that the disputed testimony is both relevant and reliable. See Clay v. Ford Motor Co. 215 F.3d 663, 667 (6th Cir. 2000). In any case, the Court has considerable leeway over where to draw the line. Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671-72 (6th Cir. 2010) (“[W]here one person sees speculation, we acknowledge, another may see knowledge, which is why the district court enjoys broad discretion over where to draw the line.” (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997))). The proponent of the expert testimony must establish its admissibility by a preponderance of the evidence. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir. 2008).

         DISCUSSION

         Neither party has been shy about filing Daubert and numerous other motions in this matter. This case has been ongoing for several years, and much of the delay can be attributed to hotly contested discovery issues. However, counsel for both parties have been strong advocates for their clients and, despite differences of opinion, counsel have been professional and served their clients well. The Court is confident that this degree of professionalism will carry forward during the trial of this matter.

         There are currently seven Daubert motions pending before the Court. The Court will address each in turn.

         1. Defendant's Motion to Exclude Opinion Testimony of Andrew Lawyer II

         Defendant first moves to exclude the testimony of Plaintiffs' expert Andrew Lawyer II, who, according to his Curriculum Vitae, is a “[c]onsulting engineer specializing in accident reconstruction and safety analysis in electrical design safety and failure analysis, fire cause and origin, and vehicular traffic accidents. He has been qualified as an expert in trial litigation in Florida, Louisiana and Mississippi.” [DN 112-2 at 2 (Lawyer Curriculum Vitae).] Lawyer is registered professional engineer in Florida and Alabama. [Id.] He is a certified fire and explosion investigator, a certified crash data retrieval operator, and a certified accident reconstructionist. [Id.] Since 1999, Lawyer has run his own reconstruction services company. [Id.] Before doing so, he worked as an engineer for the Florida Department of Transportation and before that, for Benedict Engineering Company in Tallahassee, FL. [Id.] Lawyer testified that, at Benedict Engineering, “we did everything from research and development to classical engineering design to forensic accident reconstruction, and safety consulting.” [DN 130-7 at 5 (Lawyer Deposition).] Lawyer is also a member of the American Society of Safety Engineers, the Institute of Electrical and Electronic Engineers, the National Society of Professional Engineers, and the Society of Automotive Engineers, to name a few. [DN 112-2 at 1-2.]

         In preparation for his testimony, Lawyer reviewed numerous documents and information, including, for example, police reports from the incident, U.S. Patents, photographs taken at the scene of the accident, E-Z-GO Textron operation manuals and laboratory engineering tests, Engineering Design Specifications and Drawings, an article containing an interview with a former E-Z-GO engineer, National Highway Traffic Safety Administration statistics, deposition testimony, discovery responses, and the expert disclosures of other expert witnesses expected to testify in the case. [DN 119-1 at 2-4 (Lawyer Supplemental Report).]

         In his Supplemental Expert Report, Lawyer offers six main opinions which he explains in greater detail in his Report:

1. There were available electronic technologies, in the form of dynamic braking/plug braking and regenerative braking, available to E-Z-GO Textron at the time of manufacture of the incident 1993-94 E-Z-GO PC4X electric personnel carrier vehicle to have limited the maximum operating speed of the incident personnel carrier vehicle to less than 15 mph.
2. E-Z-GO Textron knew or should have known of this technology and implemented it on all their personnel carrier vehicles as a non-optional safety measure to protect its consumers and users from personnel carrier vehicle that could attain speeds greater than its maximum allowable speed. A prudent company engaged in the design or manufacture of similar products being fully aware of the risk should not have put it on the market.
3. E-Z-GO Textron knew or should have known of the inherent dangers of the electric personnel carrier vehicle attaining speeds greater than its maximum allowable speed, potential for rollover and implemented these speed retarding technologies to protect its consumers and users. The subject E-Z-GO electric personnel carrier vehicle designed without these electronic technologies was defective and unreasonable dangerous.
4. Had E-Z-GO Textron equipped the incident electric personnel carrier vehicle with the proper speed limiting mechanism(s) then the subject 1993-94 E-Z-GO electric personnel carrier vehicle would not have been able to attain speeds significant enough to cause the vehicle to rollover.
5. Had E-Z-GO Textron equipped the incident 1993-94 E-Z-GO electric personnel carrier vehicle with the proper speed limiting mechanism(s) to limit the speed of the cart to less than 15 mph then the subject accident and Miss Jackson's unfortunate and untimely death would have been avoided.
6. The defective and unreasonably dangerous condition of the subject personnel carrier vehicle was a substantial factor in causing the incident, the injuries and the subsequent death of Jordan Jackson.

[DN 119-1 at 5-7.]

         In its motion to exclude Lawyer's report and testimony, Defendant argues both that Lawyer is not qualified to offer the opinions included in his report and that he did not use sufficiently reliable principles and methods in reaching those opinions. [See DN 130-1 at 25.] The Court will address these issues in turn.

         a) Qualified to Offer Opinions

         With regard to Lawyer's professional background, training, and experience, Defendant alleges that “Lawyer has no education, training or experience in the area of regenerative braking, the precise subject about which he seeks to testify at trial.” [DN 130-1 at 8.] According to Defendant, “[a]lthough Mr. Lawyer's testimony is aimed at the commercial feasibility of an alternative design for the 1993 PC-4X personnel carrier employing an electric motor with separately excited winding fields and an electronic controller to produce regenerative retarding forces in a layout suitable for use in golf cars and personnel carriers, he expresses no background in that area.” [Id. at 10.] Defendant further contends that Lawyer “has completed no study, much less any scientific study, in the design, manufacture or testing of electronic controllers or electric motors that would be used to control the speed of an electric powered vehicle, such as the personnel carrier involved in this case.” [Id.] Rather, Defendant stresses that “[t]he vast majority of Mr. Lawyer's work and consultations have been in the area of accident reconstruction, electrical distribution systems in buildings, and fire investigation, none of which are contained in his report.” [Id. at 9.]

         The Court does not find the mere fact that Lawyer does not have specific experience with regenerative braking or electronic controllers to be dispositive, however. Our sister district courts have often held that “to be qualified as an expert witness under Rule 702, an expert need not be a ‘blue-ribbon practitioner [ ] with optimal qualifications' or have ‘an intimate level of familiarity with every component of a [product] as a prerequisite to offering expert testimony.'” Ashland Hosp. Corp. v. Affiliated FM Ins. Co., No. CIV.A. 11-16-DLB-EBA, 2013 WL 3213051, at *2 (E.D. Ky. June 24, 2013) (citing Bartlett v. Mutual Pharmaceutical Company, Inc., 760 F.Supp.2d 220, 222 (D.N.H. 2011)). In other words, “[e]xperts need not even have direct experience with the precise subject matter or product at issue.” Id. For instance, in Burke ex rel. Burke v. U-Haul International, Inc., Judge Heyburn explained:

U-Haul explains that Anderson cannot qualify because he has no professional experience in the design or manufacture of tow dollies and trailers. He is not a member of any towable equipment professional association of industry committee, has never authored any scholarly articles on towable equipment and apparently has no prior testing experience involving tow dollies.
Anderson's professional qualifications appear more than ample to permit him to testify on the subject of vehicle dynamics and accident reconstruction. The only question is whether this and his credentials transfer from the general field of vehicle accident reconstruction to the subject of vehicle accidents involving a tow dolly combination. The federal courts in a number of product liability cases involving engineering experts have permitted an expert witness with general knowledge to give expert testimony where the subject of that testimony related to such general knowledge but the expert had no specialized knowledge of the particular product. For example, in DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st Cir. 1988), the trial court properly permitted an expert qualified as a mechanical engineer to give an opinion on the safety of the design of an industrial mixing machine even though the witness had no design experience with the particular machine at issue. Anderson's qualifications appear similarly appropriate here.

         No. CIVA 3:03CV32 H, 2006 WL 3043421, at *3-4 (W.D. Ky. Oct. 20, 2006). In 2016, in reliance on Burke, Judge McKinley held that “the fact that Boutaugh [the expert] never personally designed a roof bolter or a Caterpillar RB220 Roof Bolter prior to his opinions rendered in this case does not disqualify him as an expert.” Brooks v. Caterpillar Glob. Mining Am., LLC, No. 4:14CV-00022-JHM, 2016 WL 276126, at *3 (W.D. Ky. Jan. 21, 2016). Rather, the Brooks court held:

The Court finds that Boutaugh's knowledge as an engineer and his experience as both a mining and a project engineer qualify him to be able to offer opinions about whether the location of the operator handle on the Caterpillar RB220 Roof Bolter rendered it a defective and unreasonably dangerous piece of equipment. Boutaugh's lack of practical experience designing safety features on roof bolters is an issue of weight best suited for cross-examination.

Id.

         Similarly, here, though Lawyer does not have extensive experience with regenerative braking specifically, his experience in the field of electrical engineering in general is extensive. During his work in forensic consulting, he “worked on everything from automobile accidents, fire-causing origin, electrical failures, construction, industrial accidents, plant operations, product failures, slip, trip, and falls.” [DN 130-7 at 5.] Importantly, Lawyer also testified that he did some work with separately excited fields in electrical motors, a concept involved in regenerative braking, during his time at Benedict Engineering. [Id. at 5.] Lawyer explained that “we did testing and evaluation of various types of electronic equipment, and motorized equipment, vehicles, so we had opportunities to test those types of motors, see how they work, see how they run, do failure modes and effects analysis with respect to those -- but that -- and that was back when I was with Benedict Engineering, and that would have been between 1993 and '97, '98.” [Id. at 11.] Additionally, in the realm of accident reconstruction, Lawyer has been “[r]esponsible for analysis of electronic products regarding design and electrical-failure safeguards” and he has “[p]erform[ed] testing and evaluation of components based on ANSI, UL, IEEE and other national recognized standards.” [DN 1121-2 at 6.] He also “[i]nvestigates failures in products including compressors, kitchen appliances, treadmills, service meters, and telecommunications systems, analyzing them for evidence of damage from lightning contact and/or electrical surge.” [Id.] The Court finds that that Lawyer's knowledge and experience qualify him to be able to offer opinions on regenerative braking in this case despite the fact that Lawyer does not have specific experience with that type of technology.

         b) Opinions Based on CPSC NEISS Data

         Second, Defendant argues that Lawyer should not be permitted to testify about his analysis data from Consumer Product Safety Commission (CPSC) National Electronic Injury Surveillance System (NEISS) reports on golf car and personnell carrier incidents because “his proffered testimony merely is an attempt to present irrelevant extrapolated reports of projected accidents without any demonstrated relationship to the accident before the court in this case.” [DN 130-1 at 22-24.] As the Court noted above, Lawyer opines in his report that

E-Z-GO Textron knew or should have known of the inherent dangers of the electric personnel carrier vehicle attaining speeds greater than its maximum allowable speed, potential for rollover and implemented these speed retarding technologies to protect its consumers and users. The subject E-Z-GO electric personnel carrier vehicle designed without these electronic technologies was defective and unreasonable dangerous.

[DN 119-1 at 6.] Lawyer identified three grounds in support of this opinion:

a. Consumer Product Safety Commission (CPSC) National Electronic Injury Surveillance System (NEISS) injury databases depict an annual average of approximately 6, 000 personnel carrier vehicle type related injuries requiring emergency room treatment in the U.S. from 1991 to 1993. (See 1991 - 1993 CPSC NEISS Data for Golf Carts, Code: 1213)
b. Of these 6, 000 personnel carrier vehicle type related injuries, 8.9% were because of rollovers. (See American Journal of Preventive Medicine, Volume 35, Number 1: Golf Cart - Related Injuries in the U.S., pp. 55-59)
c. Having such a large share of the market industry, E-Z-GO Textron would have been involved in many of these rollover accidents.

[Id.]

         In its motion to exclude, Defendant argues that, though Lawyer identified 8.9% of incidents as having involved rollovers, “Lawyer[‘s] testimony made clear he had not examined the underlying accident reports from which the NEISS data projections were extrapolated to determine any circumstances of the reported accidents, the manufacturer of the vehicles involved, and whether any actual accident, or the extrapolated projected number of accidents, involved any of the ‘four areas of concern' that the Plaintiffs use as the foundation for their case.” [DN 130-1 at 14.] During his deposition, Defendant asked Lawyer whether he investigated “the NEISS data to determine how it's collected, ” and Lawyer responded that he tried to do so, however he explained that “[a] lot of . . . the data that I specifically notated did not give me the ability to look at anything other than the data that they had provided -- the numbers that they had provided.” [DN 130-7 at 18.] Lawyer further testified that he was not “able to obtain from the NEISS data how the rollovers occurred, ” nor did he “look up every single last one of them, and determine how each one was occurred.” [Id. at 19.] Rather, Lawyer simply opines that, because E-Z-GO had “a large share of the market industry” from 1991 to 1993, it “would have been involved in many of these rollover accidents.” [DN 119-1 at 6.]

         In their response, Plaintiffs assert that Lawyer demonstrated “a detailed understanding of the NEISS data, the methods employed by the CPSC to collect the data, and the CPSC's statistical adjustment of the data in order to reliably make national estimates.” [DN 149 at 18.] Plaintiffs further argue that the existence of the publicly available NEISS information on golf cart and personnel carrier incidents “is not only relevant but at the heart of this litigation” because, “under the strict [products] liability theory, a supplier or manufacturer is in effect charged with hindsight. That is, it is legally responsible for risks which could not have been known or appreciated at the time of manufacture, but came to light later....” [Id. at 19 (quoting Sadler v. Advanced Bionics, Inc., 929 F.Supp.2d 670, 684 (W.D. Ky. 2013)).]

         However, the Sixth Circuit has made clear that, when used for the purpose of “show[ing] [that] Defendant had been on notice of incidents likely to lead to the kind of injury suffered by Plaintiff, ” “[o]nly prior incidents that are ‘substantially similar' to the one at issue will be admissible in evidence.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 297 (6th Cir. 2007) (citing Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989)). “Substantial similarity means that the accidents must have occurred under similar circumstances or share the same cause.” Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 518 (6th Cir. 2008) (citing Brooks v. Chrysler Corp., 786 F.2d 1191, 1195 (D.C. Cir. 1986)). The purpose of the substantial similarity requirement is to “insure[ ] that the evidence meets the relevancy requirements of Rules 401 and 403.” Surles, 474 F.3d at 297. “The plaintiff has the burden of showing the substantial similarity between prior accidents and his own.” Croskey, 532 F.3d at 518 (citing Lewy v. Remington Arms Co., 836 F.2d 1104, 1109 (8th Cir. 1988)).

         Here, without any additional information or analysis, the Court cannot say that the 8.9% of personnel carrier and golf cart related injuries involving rollovers between 1991 and 1993, which Lawyer opines must have involved “many” E-Z-GO products, were substantially similar to the rollover accident that occurred in this case. It is unclear where these accidents occurred, what company manufactured the vehicles, what model of vehicles were involved, what the weather conditions were, what the speed was, who was driving, and so on. Accordingly, it is unclear whether those accidents have “similar circumstances” or “the same cause” as the accident in this case. Croskey, 532 F.3d at 518.

         Moreover, Lawyer offered no analysis for his opinion that E-Z-GO had a large share of the market and that, by extension, they must have been involved in many of the golf cart accidents in the 8.9%. Accordingly, the Court cannot say that Lawyer's principles and methods on this issue are reliable as to his opinion on this issue. See Newell Rubbermaid, Inc, 676 F.3d at 528 (quoting Newell Rubbermaid, Inc. v. Raymond Corp., No. 5:08-CV-2632, 2010 WL 2643417, at *6 (N.D. Ohio July 1, 2010)) (“Railsback's methods are clearly not scientifically sound. He merely counts accidents from accident reports relating to non-Raymond forklifts. Without questioning or verifying the data and without conducting any tests of his own ..., he reaches conclusions about the forklift involved in this case.”). Because Lawyer's analysis of the NEISS data for the purpose of opining that “E-Z-GO Textron knew or should have known of the inherent dangers of the electric personnel carrier vehicle attaining speeds greater than its maximum allowable speed [and the] potential for rollover” is unreliable, it will be excluded. Therefore, this portion of Defendant's motion is granted.

         c) Regenerative Braking as a Feasible Alternative Design

         Third, Defendant argues that Lawyer should not be permitted to testify regarding the availability of an alternative feasible design; specifically, of regenerative braking. [DN 130.] Under Kentucky law, “a plaintiff can bring a defective design claim under a theory of strict liability or negligence, the foundation of both theories being that the product is ‘unreasonably dangerous.'” Prather v. Abbott Labs., 960 F.Supp.2d 700, 712 (W.D. Ky. 2013) (citing Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 200 (Ky. 1976)). “[U]nder either theory, it is the legal duty of a manufacturer to use reasonable care to protect against foreseeable dangers. In a design defect case, courts use some form of risk-utility analysis to assess the decisions made by manufacturers with respect to the design of their products.” Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 535 (Ky. 2003) (citing Prentis v. Yale Mfg. Co., 421 Mich. 670, 365 N.W.2d 176, 183 (1984)). “Significantly, the risk-utility test examines what the manufacturer knew or should have known at the time the product was sold.” Id.

         Regardless of which theory a plaintiff chooses, “design defect liability requires proof of a feasible alternative design.” Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 42 (Ky. 2004), as amended (June 14, 2004). However, “[i]n establishing a defect in product design, a plaintiff must show something more than that it was ‘theoretically probable that a different design would have been feasible.'” Brock v. Caterpillar, Inc., 94 F.3d 220, 224 (6th Cir. 1996) (quoting Ingersoll- Rand Co. v. Rice, 775 S.W.2d 924, 929 (Ky. Ct. App. 1988)). Moreover, “[e]ven evidence or ‘proof that technology existed, which if implemented would feasibly have avoided a dangerous condition, does not alone establish a defect.'” Lambert v. G.A. Braun Int'l, Ltd., No. 3:14-CV-00390-JHM, 2016 WL 3406155, at *2 (W.D. Ky. June 17, 2016) (quoting Estate of Bigham v. DaimlerChrysler Corp., 462 F.Supp.2d 766, 776 (E.D. Ky. 2006)). Rather, a “plaintiff's proof in such cases must include competent evidence of some practicable, feasible, safer, alternative design.” Gray v. Gen. Motors Corp., 133 F.Supp.2d 530, 535 (E.D. Ky. 2001), aff'd, 312 F.3d 240 (6th Cir. 2002) (quoting O'Bryan v. Volkswagen of Am., 39 F.3d 1182 (6th Cir. 1994)). Finally, a plaintiff must prove that the “feasible alternative design . . . would have prevented the injury.” Dalton v. Animas Corp., 913 F.Supp.2d 370, 375 (W.D. Ky. 2012) (quoting Cummins v. BIC USA, Inc., 835 F.Supp.2d 322, 326 (W.D. Ky. 2011)).

         In his report, Lawyer opines that:

There were available electronic technologies, in the form of dynamic braking/plug braking and regenerative braking, available to E-Z-GO Textron at the time of manufacture of the incident 1993-94 E-Z-GO PC4X electric personnel carrier vehicle to have limited the maximum operating speed of the incident personnel carrier vehicle to less than 15 mph.

[DN 119-1 at 5.] Lawyer offers three primary reasons to support this opinion:

a. E-Z-GO Textron implemented speed governing mechanisms on its gas-fueled personnel carrier vehicles to limit maximum speeds on inclines.
b. The concept of speed limiting, and/or dynamic braking/plug braking/regenerative braking, has been a known concept in the electrical powered vehicle industry since at least 1980 (see U.S. Patents No. 4242617 & 4730151).
e. In a 2002 interview, Craig Journey, a former E-Z-GO electrical engineer, stated that “speed control went standard in 1990…Electronic Speed Controls (ESCs) had been used in industrial trucks for some time before this, but for golf car use it was a cost barrier.” (See February 19, 2002 Golf Cart Talk article). Mr. Journey indicates that E-Z-GO knew about this technology in in early 1990's, but chose not to use the technology due to the costs associated with the technology.

[Id.]

         With regard to Lawyer's first reason in support of his opinion, he testified in his deposition that the first E-Z-GO vehicle manufactured with regenerative braking “was the 1995 Medalist.” [DN 130-7 at 11.] Indeed, E-Z-GO acknowledges that it “stated in answer to interrogatory and in testimony that . . . the 1995 Medalist/TXT DCS golf car was the first E-Z-GO vehicle to incorporate a controller with regenerative braking capability.” [DN 150 at 11-12.] In his deposition, Lawyer testified that E-Z-GO “very well could have done it quicker, in my opinion.” [DN 130-7 at 17.] Lawyer explained:

Well, in my opinion right here, what I'm defining as commercially feasible is that concept. That concept that was designed through the patents, through the previous knowledge with respect to electronic speed control devices, knowledge of excited motor systems, and that you could use all of those to come to a technologically and commercially feasible design. And that E-Z-GO Textron, using its various . . . product producers and their contacts had the means by which to do that.”

[Id.] However, Lawyer could identify no “manufacturer who had the separately excited motor available in 1993, ” when the Vehicle was manufactured. [Id.] In its motion to exclude, Defendant argues that it is improper for Lawyer to opine that regenerative braking was feasible in 1993 simply by virtue of the fact that E-Z-GO implemented it on a golf car in 1995, two years later. In detail, Defendant argues that Lawyer has not “performed any technical analysis or demonstrated prototype of a regenerative braking system that would have been a ‘feasible alternative design' constructed of components available in 1993 when this vehicle was manufactured.” [DN 130-1 at 21 (emphasis added).]

         Defendant additionally argues that it is unreasonable to assume that the regenerative braking implemented in 1995 was feasible in 1993 because “[t]he undisputed testimony is that the availability of a ‘separately excited field' electric motor suitable for golf car application was the catalyst for development of the Drive Control System early regenerative braking system that first was introduced by E-Z-GO in 1995.” [DN 150 at 12.] Defendant refers to the testimony of Craig Journey, a former lead electrical engineer at E-Z-GO who worked directly with the first separately excited systems there. During his deposition, Journey testified that when he began at E-Z-GO in “the late ‘80s, early ‘90s . . . up until the manufacture of the TXT, ” he had no knowledge that there was “any engineering capability to design regenerative braking prior to the separately excited motor becoming available.”[2] [Id. (quoting DN 130-6 at 36 (Journey Deposition)).] Journey also testified that he “doubt[ed] it very seriously” that regenerative braking was known to E-Z-GO before the late ‘80s and early 1990s. [DN 130-6 at 12.] Additionally, “[n]o other manufacturer produced a similar vehicle with regenerative braking system prior to E-Z-GO's introduction of the feature” in 1995. [DN 150 at 12 (citing DN 130-6 at 33).] When asked “was there any reason why separately excited systems could not have been used by E-Z-GO in models that were manufactured a year or two before the TXT?, ” Journey responded “To my knowledge, they didn't have them. I didn't have them until we developed them, ” which Journey testified it took “a couple [years] at least” to do. [DN 130-6 at 14.]

         Lawyer also relies on a 2002 interview Journey gave for a publication called Golf Cart Talk Magazine. That article, attached as an exhibit to Defendant's motion, states that “Craig Journey was the lead electrical engineer with E-Z-GO starting in the early 1990s and a pioneer in the development of Electronic Speed Controllers for Separately Excited Field DC Motors.” [DN 130-7 at 58.] The article quotes Journey as explaining that:

[t]he Speed Control went standard in 90, when I got there they had learned a lot about them. Soon after we did away with the 1204 [model] and went to the 1206 which had more ‘golf car features' than the 1204. The 2014 was a fork lift controller and had the reduced speed reverse in it and it was credible. ESCs (Electronic Speed Controls) had been used in industrial trucks for some time before this, but for golf car use it was a cost barrier.

[Id.] When asked “What brought ESCs down to a feasible introduction?”, Journey responded “The number of dollars generated in the volume. When E-Z-GO decided to make the commitment and go with the 1204, the Curtis volume of Controller manufactured increased greatly, which allowed for a lower cost.” [Id.] When asked if it was “about $100 to $150 increase, ” Journey responded “I'd say that would be a good number, but there was a trade off in that we didn't have to put so many resistor packs in and the reliability did rise. There are some failure modes associated with all these electronic systems and it took us a couple years to figure them out.” [Id.] Journey further explained that “based on the skill of the operator and the number of people doing reckless things on the golf course, we felt this [free wheeling speed] was an extremely important issue . . . We took most of those known things such as over-speed and rollaway kind of things and put them in the first DCS Controller.” [Id. at 59.]

         In reliance on Journey's statements recorded in this article, Lawyer stated in his report that “Mr. Journey indicates that E-Z-GO knew about this technology in in early 1990's, but chose not to use the technology due to the costs associated with the technology.” [DN 119-1 at 5.] In its motion to exclude, Defendant argues that Lawyer's reliance on this article is improper. First, Defendant contends that “[t]he article itself is not a peer review journal, and there is no showing of reliability as contemplated by Rule 702.” [DN 130-1 at 21.] However, during his deposition, Journey acknowledged that he made the statements in the article and he further “agree[d] that the article accurately reflects [his] understanding of the issues that are discussed in the article.” [DN 130-6 at 6.] Journey has personal knowledge of those statements and has personally testified in this case. Accordingly, the Court does not find the lack of peer review to be relevant here.

         Defendant next argues, however, that Lawyer “became confused over the generic name of ‘electronic speed controllers', since th[e] 1993 PC-4X personnel carrier [at issue in this case] was in fact equipped with an electronic speed controller at the time of its manufacture.” [DN 130-1 at 5.] Journey testified during his deposition that the term “electronic speed control” is “a very generic name . . . I mean, your phone might be controlled, your fan at home, that can be called an electronic speed control. So it's a very generic name.” [DN 130-6 at 19.] Journey went on to explain that E-Z-GO was using “electronic speed controllers” when he began work there in the late ‘80s, early ‘90s, but that “[t]hey were called . . . shunt motors and shunt controllers or series controllers, ” which “offer[ed] no ability to regulate speed or retard speed when going downhill on an incline.” [Id.] In his deposition, Lawyer, too, testified “[i]t's my understanding that [the PC-4X in this case] did have some type of electronic speed control.” [DN 130-7 at 11.]

         Finally, Defendant takes issue with Lawyer's reliance on pre-1993 patents related to regenerative braking concepts in support of his opinion that such technology was available at the time the Vehicle was manufactured. Specifically, Lawyer cites U.S. Patents 4, 242, 617 and 4, 730, 151. Patent No. 4, 242, 617 was issued on December 30, 1980 (the “1980 Patent”) and is for an “electric vehicle having dynamic braking and regeneration.” [DN 149-4.] Patent No. 4, 730, 151 was issued on March 8, 1988 (The “1988 Patent”) and is for “continuous field control of series wound motors.” [DN 149-5.] In his report, Lawyer cites to these two patents for the proposition that “[t]he concept of speed limiting, and/or dynamic braking/plug braking/regenerative braking, has been a known concept in the electrical powered vehicle industry since at least 1980.” [DN 119-1 at 5.] Defendant contends that:

[t]he sum and substance of Mr. Lawyer's ‘patent' testimony is that a ‘concept' of ‘regenerative braking' was protected in pre-1993 patents awarded to other companies. He has performed no evaluation nor research beyond citing to U.S.P.O. claims relating to regenerative braking. These patents were not awarded to E-Z-GO, and there is no research or showing by Mr. Lawyer that the patent disclosed any components that actually were available to E-Z-GO in 1993 or were demonstrated through industry testing as suitable for use in E-Z-GO electric vehicles.

[DN 150 at 11.]

         In response, Plaintiffs argue, in part, that, “[b]ecause Textron has manufactured, and continues to manufacture, golf cars and personnel carrier vehicles that utilize regenerative braking technology and separately excited field electric motors, it was not necessary for Lawyer to perform any testing to support his opinions regarding this safer alternative feasible design. The fact that this technology has been, and is currently, on the market is sufficient.” [DN 149 at 10.] Plaintiffs further argue that, “[u]nder Kentucky products liability law, the plaintiff is not required to prove that a safer alternative design was technologically and commercially available at the time of the incident. Kentucky law requires plaintiffs establish only that a safer alternative design was feasible at the time of the incident.” [Id. at 10-11.] However, the fact remains that the expert testimony must establish that the concept of regenerative braking “could have been practically adopted at the time of sale.” Johnson, 484 F.3d at 433 (quoting Martin, 92 F.Supp.2d at 753).

         Though a close call, the Court finds that Lawyer's reliance on the 1980 and 1988 patents is insufficient. Though Lawyer may be correct that the Patents demonstrate the existence of certain concepts as of 1980 and 1988, Lawyer has not applied his engineering expertise in any way to interpret the complex language of these patents and explain how those technological concepts could have been feasibly incorporated into the Vehicle in this case when it was manufactured in 1993. See, e.g., Hendricks v. Ford Motor Co., No. 4:12CV71, 2012 WL 7958760, at *1 (E.D. Tex. Oct. 15, 2012) (“Based on the information presently before the Court, the patents Plaintiff wishes to introduce have not been tested, examined, or analyzed by her, or any, expert. Plaintiff has presented no evidence that her expert has evaluated and tested the patents to determine whether they are feasible designs or whether they are in fact safer . . . For these reasons, the Court finds that the patents should not be admitted into evidence at this time.”); Brawn v. Fuji Heavy Indus., Ltd., 817 F.Supp. 184, 186 (D. Me. 1993) (“On the second part, his patent search evidence (proposed elsewhere) does not reveal whether his ‘design alternatives' are feasible or what their costs would be and is therefore inadmissible under both Rule 702 and Rule 403.”). Accordingly, the Court finds the 1980 and 1988 patents to be inadmissible.

         Next, with regard to Lawyer's reliance on the fact that E-Z-GO first manufactured a personnel carrier vehicle with alternative braking in 1995, two years after the Vehicle in this case was manufactured, the Court also finds this ground to be too tenuous. Again, it must be the case that the alternative design “could have been practically adopted at the time of sale.” Johnson, 484 F.3d at 433 (quoting Martin, 92 F.Supp.2d at 753). Here, though Lawyer opines that E-Z-GO “very well could have done it quicker, ” [DN 130-7 at 17], he does not apply any expertise or testing to explain how it could have been done sooner.

         Finally, with regard to Lawyer's reliance on the article interview in which Journey stated that speed control went standard in 1990 and that E-Z-GO was aware of issues with over-speed and rollovers, the Court finds Lawyer's opinion to be permissible. Unlike the other two grounds on which Lawyer relies for his opinions as to feasibility, the Journey article could suggest that E-Z-GO was aware of and knew of a need for the regenerative braking technology before the Vehicle was manufactured in 1993. Though Defendant argues that Lawyer misunderstands some of Journey's terminology, the Court finds that these issues should be directed toward cross-examination rather than admissibility. Of course, whether the jury believes that the ultimate opinion Lawyer renders based on this article is correct is a matter reserved for trial. See Powell v. Tosh, 942 F.Supp.2d at 690 (citing In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008) (“[T]he Court's role here is not to determine the correctness of Clay's opinion but instead simply whether it is based upon a reliable foundation.”)).

         d) Lawyer's Reliance on Seluga's Expert Opinions

         Finally, with regard to Lawyer's references to the findings of Plaintiffs' other expert, Kristopher Seluga, Defendant argues that “Plaintiffs propose to have Mr. Lawyer repeat the testimony and opinions of Seluga as his own expert opinion.” [DN 130-1 at 24.] Defendant argues that this would not be helpful to the trier of fact and that Lawyer seeks to “give testimony embracing the ultimate fact of an allegedly defective condition simply by repeating the report of Seluga.” [Id. at 25.]

         Here, because Lawyer acknowledged that he did not perform any accident reconstruction in this case, he relied on certain facts from the accident reconstruction work Plaintiffs' expert Kristopher Seluga performed. These include the following two statements in Lawyer's report: “The accident reconstruction performed by Kris Seluga identifies a speed range of 26-30 mph for the accident personnel carrier vehicle that Molly Kyle was operating” and “Based on the testing and analysis performed by Kris Seluga, he determined that the rollover would have been avoided if the vehicle's speed had been limited to approximately 15 mph of less.” [DN 119-1 at 5, 7.] In its motion to exclude, Defendant argues that “Plaintiffs seek to call Mr. Lawyer to give testimony embracing the ultimate fact of an allegedly defective condition simply by repeating the report of Seluga.” The Court disagrees.

         Although an expert “may not adopt another expert's opinions wholesale, ” Siegel v. Fisher & Paykel Appliances Holdings Ltd., No. 3:08CV-429-JDM, 2010 WL 4174629, at *2 (W.D. Ky. Oct. 19, 2010), pursuant to “Rule 703, an expert's testimony may be formulated by the use of the facts, data and conclusions of other experts.” Asad v. Cont'l Airlines, Inc., 314 F.Supp.2d 726, 740 (N.D. Ohio 2004) (citing Barris v. Bob's Drag Chutes & Safety Equipment, Inc., 685 F.2d 94, 102 n. 10 (3rd Cir. 1982)). Here, Seluga relied on certain conclusions made by Seluga regarding the speed of the Vehicle. He then used these conclusions in support of his own opinions in this case. This is permissible. Accordingly, the Court will not exclude Lawyer's testimony related to Seluga's testing. For the reasons explained in detail above, Defendant's motion to exclude Lawyer's testimony is granted in part and denied in part.

         2. Defendant's Motion to Exclude Proposed Opinion Testimony of William Kitzes

         Defendant also moves to exclude the report and testimony of Plaintiffs' expert William Kitzes. [DN 131.] Kitzes has a B.A. from the University of Wisconsin and a J.D. from Washington College of Law. [DN 111-2 at 2 (Kitzes Curriculum Vitae).] He further explains his qualifications as follows:

I am a Board Certified Product Safety Manager and Hazard Control Manager. I hold an Executive Certificate in Safety Management from the American Society of Safety Engineers, and I am a member of the Human Factors and Ergonomics Society. I hold a Certificate in Risk Communication from the Harvard School of Public Health. For the past 30 years, I have provided risk assessment and product safety management services to attorneys, corporations and government organizations.
From 1974 to 1981, I worked at the U.S. Consumer Product Safety Commission (CPSC), part of which time I served as Legal Advisor to the Director, Office of Product Defect Identification, and was responsible for identifying products which contained a defect which could create a substantial product hazard, developing voluntary corrective action plans under Section 15 of the Consumer Product Safety Act including the recall of substantially hazardous consumer products, and notification to the public of the danger through warnings and other media. (See attached Curriculum Vitae).
As CPSC Program Manager for Sports, Recreation and Power Equipment (1977-1980), I supervised a team of engineers, epidemiologists, human factors specialists, and technical communication staff in the evaluation of injury statistics, engineering data, and product use information to achieve a reduction in consumer products injuries. Injury prevention tools combined mandatory and voluntary standards, on-product warnings, and safety education campaigns resulting in publication of the Federal Safety Standard for Walk-Behind Power Lawn Mowers 16 CFR 1205 (1979). I served as Commission representative to various industry groups and standards development committees, including American National Standards Institute (ANSI), American Society for Testing & Materials (ASTM), the Outdoor Power Equipment Institute and the Sporting Goods Manufacturers Association.

         Kitzes has consulted for numerous companies, manufacturers, and distributors regarding product safety issues and “on-product warnings and instructions.” [DN 111 at 7-8.] He also “lectured at the National Safety Council Annual Congress and Exposition” in 1996, 1997, and 1998 regarding product safety, recalls, and warnings. [Id. at 8-9.]

         Kitzes reviewed several materials in preparation for his work in this case, including pleadings, depositions, accident scene photographs, warning label photographs, multiple E-Z-GO owner's manuals for different years, the ASME B56.8-1993 safety standard, the police report from the accident, discovery responses, and certain academic literature regarding product safety and warning labels. [DN 111-1 at 20-21.] Kitzes began his report by summarizing various product safety management information, procedures, and sources. [Id. at 3-6.] In reliance on these materials and his knowledge and experience, Kitzes first offers the following opinion in his report:

Based on the information available to date, E-Z-GO clearly failed to advise or warn operators of the dangers associated with the foreseeable an intended use of the PC4X as clearly described in the ASME B56.8. The Standard and all available E-Z-GO documents are silent on the issue of operator age, and the Standard clearly foresees and describes the intended use of the PC4X in traffic conditions on public roads.

[DN 111-1 at 15.] Next, after a lengthy discussion of the relevant safety standards and academic literature, Kitzes summarizes his additional opinions as follows:

1. No where [sic] in the material produced by E-Z, -GO is there any warning about or identification of an age limitation for the operation of the vehicle.
2. The owner's manual, as well as the ASME standard that they “strongly endorse, ” fully recognizes and supports the intended use of the vehicle on a public road.
3. The on-product warning failed to adequately communicate the hazards, the risks, the injury consequences to users and failed to comply with the ANSI Z535.4 Standard for Product Safety Signs and Labels as well as the independently published criteria for warnings by other industry members and companies such as FMC, Westinghouse, and as further described by the National Safety Council chartered by Congress in the mid-1800's to provide safety services to industrial corporations.
It is clear from the above that E-Z-GO did not adequately warn users of the dangers associates with the foreseeable and intended use of the PC4X personnel carrier. As a result of E-Z-GO's failure to adequately warn users of the danger associated with the foreseeable and intended use of the PC4X personnel carrier, and the foreseeable misuse of the vehicle, the PC4X personnel carrier was defective and unreasonably dangerous to the consumer and user. The inadequate warnings and defective and unreasonably dangerous condition of the PC4X personnel carrier were a substantial factor in causing the incident and the resulting injuries and death of Jordan Jackson.

[DN 111-1 at 19.]

         In its motion to exclude Kitzes's report and testimony, Defendant makes three primary arguments, which the Court will address in turn.

         a) Reliance on CPSC NEISS Data

         Like Plaintiffs' other experts, Kitzes discussed other golf cart-related injuries in his report and during his deposition. In his report, Kitzes wrote:

According to an article published in the Journal of Trauma Injury, Infection, and Critical Care (2008) by McGwin, et al., entitled “Incidence of Golf Cart-Related Injury in the United States, ” there are approximately 12, 000 estimated hospital emergency room treatments for golf cart injuries each year. The article states that injuries in golf carts to those under 20 occur in higher proportion at home, suggesting they are ridden on terrain other than a golf course.
Although we do not know whether those injured were operators or passengers, it is likely that some younger individuals were indeed operating the golf cart at the time of injury. The lack of driving experience among younger individuals may also therefore contribute to their increased rate.
Based on the information available to date, E-Z-GO clearly failed to advise or warn operators of the dangers associated with the foreseeable and intended use of the PC4X as clearly described in the ASME B56.8. The Standard and all available E-Z-GO documents are silent on the issue of operator age, and the Standard clearly foresees and describes the intended use of the PC4X in traffic conditions on public roads.

[DN 111-1 at 15.] During his deposition, Kitzes explained that the article he cited in his report was based off of NEISS data. Kitzes explained that the NEISS collects this data using “a scientifically developed algorithm to represent all hospital emergency rooms. They're weighted by size, by location to, again, replicate the national estimate.” [DN 131-6 at 9 (Kitzes Deposition).] However, Kitzes testified that he did not personally review the NEISS reports and that he is unaware “[w]hat percentage involve rollover.” [Id. at 9-10.] Kitzes explained that “the NEISS system does not address causation. It addresses facts.” [Id. at 10.]

         Defendant argues that “Mr. Kitzes has made no study of the collected NEISS data, the manner in which the underlying accidents occurred, the projection of the underlying lay reports to any overall accident rates, nor shown any relationship whatsoever to the claimed defect ‘areas of concern' upon which Plaintiffs base their case, ” and therefore that this portion of his report and testimony must be excluded. [DN 131-1 at 19.] In response, Plaintiff argues that “the fact that there is publicly available information, such as the NEISS data, which the federal government has compiled over the years regarding incidents involving its golf cars and personal transport vehicles is not only relevant but at the heart of this litigation” because Kentucky law holds manufacturers strictly liable even for product defects “which could not have been known or appreciated at the time of manufacture, but came to light later.” [DN 143 at 15 (quoting Sadler, 2013 WL 898152, *10).]

         However, as the Court explained above, when used for the purpose of “show[ing] [that] Defendant had been on notice of incidents likely to lead to the kind of injury suffered by Plaintiff, ” “[o]nly prior incidents that are ‘substantially similar' to the one at issue will be admissible in evidence.” Surles, 474 F.3d at 297 (citing Rye, 889 F.2d at 102). “Substantial similarity means that the accidents must have occurred under similar circumstances or share the same cause.” Croskey, 532 F.3d at 518 (citing Brooks, 786 F.2d at 119). The purpose of the substantial similarity requirement is to “insure[ ] that the evidence meets the relevancy requirements of Rules 401 and 403.” Surles, 474 F.3d at 297. “The plaintiff has the burden of showing the substantial similarity between prior accidents and his own.” Croskey, 532 F.3d at 518 (citing Lewy v. Remington Arms Co., 836 F.2d 1104, 1109 (8th Cir. 1988)).

         Here, Kitzes acknowledges that the NEISS data “does not address causation. It addresses facts.” [DN 131-6 at 10.] Accordingly, it is not possible to analyze the data to compare it to the facts of the instant case in order to determine whether those accidents occurred under similar circumstances or due to the same cause as the accident in this case. Croskey, 532 F.3d at 518. Therefore, the Court agrees that Kitzes testimony about the NEISS data must be excluded. See Newell Rubbermaid, 676 F.3d at 528 (quoting Newell Rubbermaid, 2010 WL 2643417, at *6) (“Railsback's methods are clearly not scientifically sound. He merely counts accidents from accident reports relating to non-Raymond forklifts. Without questioning or verifying the data and without conducting any tests of his own ..., he reaches conclusions about the forklift involved in this case.”); contrast Moore v. Kawasaki Motors Corp., U.S.A., 703 So.2d 990, 993 (Ala. Civ. App. 1997) (Discussing NEISS data after “Kawasaki [the manufacturer] had received substantial information from the Consumer Product Safety Commission and other sources that the sale and distribution of three-wheeled ATVs for use by 9-year-old children created an unreasonably dangerous condition. The CPSC had held hearings on the subject, and had informed Kawasaki of over 200, 000 hospital emergency room-treated injuries and over 500 deaths; 40% of these were children under 16, and 20% to children under 12).

         b) Reliance on Seluga's Conclusions

         Next, Defendant argues that “Plaintiffs seek to call Mr. Kitzes to give testimony embracing the ultimate fact of an allegedly defective condition simply by repeating the report of Seluga.” [DN 131-1 at 22.] However, Defendant does not identify which of Seluga's opinions Kitzes allegedly repeats, and the Court cannot find where Kitzes mentions Seluga once in his report or deposition testimony. [See DN 111; DN 111-1.] In their response, Plaintiffs similarly argue that Defendant “fails to point to a single fact to support its supposition that Kitzes . . . merely repeated Seluga's opinions.” [DN 143 at 14.] Accordingly, the Court will deny this portion of Defendant's motion at this time, but Defendant will be permitted to raise it again should the issue arise at trial.

         c) Testimony Regarding Adequacy of Warnings

         Finally, Defendant argues that Kitzes's proposed testimony regarding the adequacy of the Vehicle's warnings and the condition of the Vehicle are inadmissible. First, Defendant cites cases in which other courts have excluded Kitzes's proposed opinions regarding warnings on the basis that the opinions were not based on a sufficient methodology. [DN 131-1 at 22-25]; see, e.g., Ruggiero v. Yamaha Motor Corp., U.S.A., No. CV 15-49 (JBS/KMW), 2017 WL 1197755, at *7 (D.N.J. Mar. 31, 2017) (“The Court finds that Mr. Kitzes' conclusion regarding the location of the warning is not based upon any sufficiently reliable methodology under Rule 702. The problem with his conclusion is that in developing it, he failed to perform any tests or focus groups, take any measurements, rely on any articles on location of warnings (besides the very generalized ANSI standard itself), conduct any reenactments or even examine the PWC itself, leaving his conclusion to be, at best, an educated guess. Speculation is not methodology.”).

         Next, Defendant argues that, “[i]n the case at bar, Mr. Kitzes states only that the PC-4X is unreasonably dangerous due to lack of ‘warning', yet he has performed no analysis of what warning would have prevented this accident.” [DN 131-1 at 25.] However, courts in the Western District have previously held, regarding Kitzes in particular, that the formulation of alternative warnings is not an absolute prerequisite to admissibility. See In re Yamaha Motor Corp. Rhino ATV Prod. Liab. Litig., 816 F.Supp.2d 442, 458 (W.D. Ky. 2011) (“Here, Kitzes did not formulate alternative warnings; however, he compared the Rhino's actual warnings to the general ANSI guidelines. Based on this comparison, Kitzes concludes that the warnings were deficient. Contrary to Yamaha's contention, he does not simply formulate an off-the-cuff conclusion about the warnings that any juror could make. Rather, he explains why the particular characteristics of the Rhino make the specific warnings used insufficient in light of industry standards and academic research.”). Accordingly, the Court does not find Kitzes's decision not to propose alternative warnings to be dispositive here.

         Defendant further argues that Kitzes's opinion that “[t]he inadequate warnings and defective and unreasonably dangerous condition of the PC4X personnel carrier were a substantial factor in causing the incident and the resulting injuries and death of Jordan Jackson” is “legal conclusion” testimony that goes beyond the scope of Federal Rule of Evidence 704. [DN 131-1 at 25.] Under Kentucky failure to warn law, “[a] plaintiff can show that a manufacturer failed to apprise him of dangers inherent in the design of the product, rendering it unreasonably dangerous.” Low v. Lowe's Home Centers, Inc., 771 F.Supp.2d 739, 742 (E.D. Ky. 2011) (citing Tipton v. Michelin Tire Co., 101 F.3d 1145, 1149 (6th Cir. 1996). In Kentucky, “the duty to warn extends to the dangers likely to result from foreseeable misuse of a product.” Morales v. Am. Honda Motor Co., 71 F.3d 531, 537 (6th Cir. 1995). The Sixth Circuit has further explained that, “under Kentucky law, causation or proximate cause is defined by the substantial factor test: was the defendant's conduct a substantial factor in bringing about plaintiff's harm?” Id. (citing Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky. 1980)).

         Pursuant to Rule 704, an expert's testimony can “embrace[] an ultimate issue, ” Fed.R.Evid. 704(a), however, “the issue embraced must be a factual one, ” not a legal one. Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994) (“The expert can testify, if a proper foundation is laid, that the discipline in the Detroit Police Department was lax. He also could testify regarding what he believed to be the consequences of lax discipline. He may not testify, however, that the lax ...


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