Anderson v. Raymond Corporation

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ILLINOIS

ADELAIDA ANDERSON and JEFF

ANDERSON,

Plaintiffs,

v. Case No. 19-CV-00800-SPM

RAYMOND CORPORATION,

Defendant.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

INTRODUCTION

On July 29, 2017, Plaintiff Adelaida Anderson was operating a Raymond Model

425 Reach Forklift. During the course of operating the forklift she somehow found

herself outside of the operator’s compartment and not in control of the moving forklift

which tragically trapped and severed her leg. A jury will be called upon to determine

what happened, how it happened, and why it happened that Anderson was injured.

Neither party claims there to be an eyewitness to help us understand this tragic and

catastrophic event.

Both parties wish to present the opinions of engineers, accident

reconstructionists, scientists, and physicians to reconstruct and explain the events of

that day. The Andersons believe that it is Defendant Raymond Corporation’s fault

that this injury occurred and have presented witnesses that they believe are

sufficiently qualified to explain to the jury how this accident happened and how

certain defects in the design of the Raymond model forklift led to her injury. Raymond

advances their own phalanx of experts to explain to the jury why this incident

occurred; and while tragic, opine that it was due to no fault on Raymond’s part. A

jury sitting in judgment of this dispute would be greatly benefited from the insights

qualified experts could impart to them as they try to answer the questions posed to

them.

As part of the Court’s analysis, the Raymond’s Operator’s Manual was

reviewed. The Manual for this forklift dedicates a section to safety. It gives

instructions about how to use it safely and how to avoid serious injury. In multiple

places in that Manual the operator is warned to stay inside the operator’s

compartment at all times while in use. However, it contains this very important

caveat: “If your lift truck starts to tip . . . get off the truck immediately and move

quickly away. If the truck tips over with you inside, you could be seriously injured or

killed” (Doc. 112-6, p. 15). The Manual also covers stability issues. It cautions that

lift truck can tip or overturn if “driving, braking or turning too fast.” It can tip due to

poor floor conditions” (Id.). It can tip due to “rapid changes in speed, turns or

directions in travel” (Id.). Each warning regarding the risk of tipping shows an

operator exiting the lift truck by stepping outside of the operator area in a direction

away from the opposite end of the mast and forks (Id.).

The Raymond exerts a great deal of effort to explain the risk of harm to

operators should they find themselves in an accident scenario where the forklift is

about to run off a loading dock or similar raised area forks first. Alas, this is not an

accident scenario either party advances as a possible sequence of events leading to

Anderson’s injury.

Its only apparent relevance is to American National Standards Institute

(“ANSI”) standards that recommend against a locking or fixed door impeding the

quick and unobstructed emergency exit by an operator from the forklift in a scenario

where the forklift is about to go over or off a dock or elevated platform.

The Andersons advance as relevant to this accident, Clause 7.20.2 of ANSI

B56.1-2012 which states: “Means shall be provided to disconnect the travel circuit

automatically when the operator leaves the operating position.” Also, ISO 3691-

1:2011 standard indicates in clause 4.7.7.4 that, “Trucks with a side-facing seated or

standing operator shall be so built that when travelling, the operator cannot

unintentionally place his feet outside the confines of the truck; or, alternatively, the

truck shall be equipped with a traction cut off (e.g. dead-man switch), enabled

whenever an operator’s foot is not in the safeguarded position.” In addition, clause

4.2.2.4 states that, “Powered travel movement of the truck with a ride-on operator

shall be possible only if the operator is in the normal operating position.” These

standards are pertinent to contemplate when examining Ms. Anderson’s accident.

Before the Court are motions in limine filed by the parties seeking to bar the

testimony of certain expert witnesses as their opinions and methodology do not meet

the standards required in Daubert v. Merrell Dow Pharm. Inc., 509 U. S. 579 (1993)

and Federal Rule of Evidence 702. The Andersons also filed motions to secure pretrial

determinations that their tendered experts satisfy Daubert and Rule 702; a type of

preclearance if you will.

This Order addresses the following motions filed by the Andersons: Daubert

Motion regarding Meyer (Doc. 75), Daubert Motion regarding Kerrigan (Doc. 76),

Daubert Motion regarding Jeka (Doc. 77), motion seeking to exclude expert testimony

of Michael Rogers (Doc. 84), motion to exclude expert testimony of Kathleen Rodowicz

(Doc. 85) and motion to exclude expert testimony of Robert Kerla (Doc. 86).

This Order addresses the following motions filed by Raymond: Motion to

preclude testimony of John Meyer (Doc. 81), motion to preclude testimony of Jason

Kerrigan (Doc. 82) and motion to preclude testimony of John Jeka (Doc. 83).

LEGAL STANDARD FOR THE ADMISSION OF EXPERT TESTIMONY

The admissibility of expert opinion evidence is governed by Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

An excellent synthesis of the law that followed Daubert and animates Rule 702

appears in Kirk v. Clark Equipment Company, 991 F. 3d 865 (7th Cir. 2021). The Kirk

Court started with the Daubert standard:

In Daubert, the Supreme Court explained that Rule 702 confides to the

district court a gatekeeping responsibility to ensure that the proposed

expert testimony “is not only relevant, but reliable.” In performing this

role, the district court must engage in a three-step analysis, evaluating:

“(1) the proffered expert’s qualifications; (2) the reliability of the expert’s

methodology; and (3) the relevance of the expert’s testimony.”

Kirk, 991 F. 3d at 872 (citations omitted). The Kirk Court then expanded on the

reliability of expert methodology:

When evaluating the reliability of expert testimony, the district court

must make “a preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid.” A court

may consider the following non-exhaustive list of factors:

(1) [W]hether the particular scientific theory “can be (and has been)

tested”; (2) whether the theory “has been subjected to peer review and

publication”; (3) the “known or potential rate of error”; (4) the “existence

and maintenance of standards controlling the technique’s operation”;

and (5) whether the technique has achieved “general acceptance” in the

relevant scientific or expert community.

“No one factor is dispositive, however, and ‘the Supreme Court has

repeatedly emphasized [that] the Rule 702 text is a flexible one.’” In

addition, “the correct inquiry focuses not on ‘the ultimate correctness of

the expert’s conclusions,’ but rather on ‘the soundness and care with

which the expert arrived at her opinion.’”

A court’s determination that an expert possesses the requisite

qualifications does not, without more, provide a sufficient basis for

admissibility. We have underscored that “[e]ven ‘[a] supremely qualified

expert cannot waltz into the courtroom and render opinions unless those

opinions are based upon some recognized scientific method.’”

Id. at 873 (citations omitted).

The Kirk Court next stated:

“The purpose of Daubert . . . was to require courts to serve as gatekeepers

so that unreliable expert testimony does not carry too much weight with

the jury.” At the Daubert phase, then, “[t]he ultimate question is

whether the expert’s approach is scientifically valid.” “The focus is on

the expert’s methodology, not his ultimate conclusions.”

Id. at 877 (citations omitted). The Kirk Court said that a “key question to be answered

in determining whether a theory or technique is scientific knowledge that will assist

the trier of fact will be whether it can be (and has been) tested.” Id. at 877-78 (quoting

Daubert, 509 U.S. at 593; citing McCloud ex rel. Hall v. Goodyear Dunlop Tires N.

Am., Ltd., 479 F. Supp. 2d 882, 892 (C.D. Ill. 2007) (“To meet the testing factor

required by Daubert an expert does not need to perform the best conceivable test.

Instead, the question is whether valid scientific testing was performed.”).

ANALYSIS

The Court will address the objections to the Andersons’ proposed experts, then

examine the objections to Raymond’s proposed experts.

I. John Meyer

The Court has reviewed the education, background, experience and training of

John Meyer, PhD, and find him qualified to offer opinions relating to mechanical

engineering, accident reconstruction, and failure analysis. He earned a PhD in

Mechanical Engineering from Massachusetts Institute of Technology. He has taught

engineering at the college level. He has many years of experience in accident

reconstruction and failure analysis.

Much is made of the fact that this forklift was not equipped with a

compartment door. Of great significance to the debate is applicable ANSI standards

that recommend against making a locking and latching compartment door standard

equipment on a stand-up lift truck. While the evidence shows that a compartment

door can feasibly be designed for inclusion in this particular forklift, as a door is an

available option, the applicable standards propounded by ANSI advise against it. The

reason is that there should be no impediment to the operator being able to make a

quick exit in an accident scenario.

John Meyer opines that the applicable ANSI is wrong and that the better

reasoned engineering decision is to equip the forklift with a door. Raymond argues

that this opinion is simply not embraced by the engineering community and John

Meyer’s analysis and efforts in this case are not sufficiently exhaustive or thorough

to green light a jury to consider rejecting the engineering consensus on this specific

matter. Indeed, other courts have concluded that witnesses opining that a

compartment door should be affixed to a standup, counterbalanced, lift truck lacked

sufficient reliability and sufficient support by a scientific methodology to allow their

presentment for a jury’s consideration. See, e.g., Lawrence v. Raymond Corp., 501

Fed. App’x 515, 518 (6th Cir. 2012) (affirming Lawrence v. Raymond Corp., 2011 WL

3418324 (N.D. Ohio Aug. 4, 2011)); Newell Rubbermaid, Inc. v. Raymond Corp., 2010

WL 2643417, at *6 (N.D. Ohio July 1, 2010), aff’d 676 F.3d 521, 528-29 (6th Cir. 2012);

Brown v. Raymond Corp., 318 F. Supp. 2d 591, 599 (W.D. Tenn. 2004), aff’d 432 F.3d

640, 646 (6th Cir. 2005) (citing Dancy v. Hyster Company, 127 F.3d 649 (8th Cir.

1997)); Dhillon v. Crown Controls Corp., 269 F.3d 865, 869-70 (7th Cir. 2001).

This Court finds that John Meyer’s opinion that Raymond was negligent or

that its forklift is dangerously and defectively designed because it does not come

standard with a compartment door, especially one that locks or latches, simply does

not pass the Daubert test.

While the ANSI standard recommends against a locking or latching

compartment door to protect against operator departure from the operating

compartment, it is reasonable to inquire about the safeguards against serious injury

in the event, as here, the operator departs from the operating compartment while the

vehicle is tipping or moving. It is this inquiry that exposes the true questions about

the safety of the forklift in question.

It is in this realm of analysis that the Andersons’ experts, including John

Meyer, offer expert insights worthy of presentation to the jury for their consideration.

The Court has reviewed the 138-page report of John Meyer as well as the

lengthy attachments (Doc. 75-3). The 57-page Attachment C is particularly

compelling in documenting the scientific and engineering data he reviewed and

claims to have replead upon in formulating his opinions (Id. at 151-207). The Court

finds the opinions set out in that report are relevant to this case. Those opinions

reflect his considered judgment after reviewing the pertinent scientific and

engineering data.

Raymond claims that much of what John Meyer did was review the deposition

testimony and opinions of others who have previously been barred by other courts

from offering such opinions or whose opinions had been rejected by other juries. That

assertion belies the substantially more exhaustive analysis engaged in by John Meyer

as demonstrated in his report. It also ignores his review of OSHA records, lift truck

accident reports, engineering standards, and other standup, counterbalanced lift

trucks available on the market. Many of his opinions are based upon such other

vehicles and how those vehicles, as designed and manufactured, adequately

addressed the very safety deficiencies he opines that the Raymond model forklift is

plagued by and relate to Anderson’s injuries.

The Court has reviewed Judge Whittemore’s January 28, 2021 Order in the

case of McHale, et al v. Crown Equipment Corp., 8:19-CV-00707 (U.S. Dist. Ct. Middle

Fla., Tampa Div.). That case is similar in important respects to this case, and the

admissibility of expert testimony of John Meyer, John Jeka, and Jason Kerrigan was

the subject of that Order. Judge Whittemore found Meyer, Jeka, and Kerrigan

possessed sufficient expertise to offer their opinions and that their methodology in

reaching those opinions was sound. This Court finds Judge Whittemore’s analysis of

these witnesses, their opinions, and the application of Daubert, sound and persuasive.

II. Jason Kerrigan

The Court has reviewed the education, background, experience, and training of

Dr. Jason Kerrigan, with respect to the fields of injury biomechanics, kinematics, and

anthropomorphic test devices (“ATDs”). He holds a Ph.D. and M.E. in Mechanical and

Aerospace Engineering and is an Associate Professor in the Department of

Mechanical and Aerospace Engineering at the University of Virginia and the

University’s Center for Applied Biomechanics. The research conducted by the

Center’s members focuses on impact biomechanics for injury prevention. He regularly

studies various motorized vehicles to determine safety optimization. Additionally, he

is well versed in human body modeling and testing, specializing in active musculature

and tensed response to impacts. As well, he has extensive experience determining

injury countermeasures using human computational models and ATDs.

He has reviewed seven events like this one involving substantially similar, if not

identical forklifts and injuries to the operator’s left foot. While Kerrigan is not a

medical doctor, he is a professor at the University of Virginia School of Medicine in

the Orthopedic Surgery department and has training and experience reviewing

medical records to evaluate injuries (Doc. 76-7, pp. 1-3, 38). I find the witness

qualified to render biomechanical engineering opinions regarding what caused

Anderson’s injuries, how the design of the forklift may have contributed to her

injuries, and the use of data obtained from ATD devices.

Kerrigan analyzes the likely interactions Anderson would have with the

forklift during the accident. Based on Anderson’s testimony, he opines that the

instability of the forklift caused her to move her left foot which led to her loss of

balance and falling into the path of the moving forklift. This led to her left foot and

leg being run over by the steered wheel of the forklift.

In addition to reviewing the testimony of Mrs. Anderson, he reviewed all the

available witness statements and testimony about the accident (Doc. 76-7, pp. 4-6).

Kerrigan reviewed Anderson’s medical records to ascertain exactly how and where

her foot was injured (Id. at 6-9). Kerrigan inspected the shoe Mrs. Anderson was

wearing at the time she was injured (Id. at 9-11). He considered the design of the

forklift and how, from a biomechanical point of view, she likely would have interacted

with forklift – including how she would exit in an emergency (Id. at 10-16).

Based on his analysis, he identifies multiple safety precautions and designs

which may have eliminated or reduced the likelihood of Anderson’s injury. Kerrigan

opines that Anderson’s injuries would have been prevented if the forklift incorporated

a door or other guard across the occupant entry doorway. To reach this position, in

addition to the steps previously outlined, Kerrigan utilizes his previous experience

with numerous other forklift accident cases in which operators suffered left leg

amputations, as well as previous inspections of an exemplar truck (Doc. 76-7, pp. 17-

19). He applies his expertise in biomechanics and kinematics to evaluate the forklift

design.

Additionally, he opines that a guard over the steered wheel would have reduced

the likelihood that Mrs. Anderson would have been injured. He uses a diagram to

show how a guard would have reduced the likelihood of injury (Doc. 76-7, pp. 19-20).

Similarly, Kerrigan opines that if the current joystick configuration was

modified, or if a deadman pedal was placed under the left foot of the operator

compartment, it would have reduced the likelihood that Anderson would have been

injured. He also opines that the use of a backrest sensor would have encouraged the

operator to remain in a stable operator position and would have reduced the

likelihood of injury. Raymond’s claim that Kerrigan’s testimony is unreliable and

unqualified is unfounded. Kerrigan is qualified to render his expert opinion on the

biomechanical aspects of the interaction of Anderson with the forklift based on his

credentials and methodologies. Kerrigan’s biomechanical analysis is reliable and is

based on witness’ statements, forklift design, testimony, and medical records. (Doc.

76-7, pp. 4-9).

III. John Jeka

The Court has reviewed the education, background, and training of John Jeka

PhD and find him qualified to offer testimony on matters regarding human balance.

Dr. Jeka received a PhD in Neuroscience from Florida Atlantic University, an MA in

psychology from Tufts University, and is a professor and Chair of the Department of

Kinesiology and Applied Physiology in the Department of Health Services at the

University of Delaware. In addition to teaching at the University of Delaware, Dr.

Jeka directs the Control of Balance and Locomotion Laboratory at the University

which focuses on understanding the neural and biomechanical basis of human

upright balance. Dr. Jeka has authored or co-authored a number of academic articles

discussing balance as well as having served as the Executive Editor of the Journal of

Motor Behavior.

The Andersons tender the opinions of John Jeka, PhD., a renowned expert in

his own field. His area of expertise is the study of human balance, what we reflexively

do to maintain our balance when instability is induced, and what causes humans to

lose their balance. The Andersons’ theory of the accident is that something caused

instability in Anderson’s stance while operating this forklift. John Jeka, PhD. will

offer opinions about what movements Anderson would have made instinctively in

reaction to the sudden instability she was experiencing, one of which was widening

her gait. In widening her gate, she may have moved her foot outside the forklift

platform.

Raymond offers many criticisms of Jeka’s opinions that the jury may find

interesting, maybe compelling. However, Jeka’s training and experience are

sufficient to allow him past the Daubert gate to the witness stand. His opinions are

not the “unscientific speculation of a genuine scientist.” See Rosen v. Ciba-Geigy Corp.

78 F.3d 316, 318 (7th Cir. 1996). His methodology is scientifically sound.

IV. Michael W. Rogers

This court has considered the background, qualifications, and methodology of

Michael W. Rogers, P.E. to determine whether he should be allowed to provide expert

testimony on behalf of Raymond.

Michael W. Rogers, P.E. has a bachelor’s degree in mechanical engineering

from Iowa State University and a master’s degree in mechanical engineering from

the University of Illinois at Chicago. He is a Licensed Professional Engineer in four

states, including Illinois. He is licensed to operate different types of forklifts,

including the one involved in the accident. Additionally, Rogers has a background in

forklift design safety standards, as he is a member of the ANSI B56.1 safety

committee. Currently, he works as a Principal Engineer in Fusion Engineering’s

mechanical engineering group. His areas of expertise include design analysis,

machine design, lift truck analysis, and material handling equipment analysis, and

accident reconstruction. He has consulted in vehicular component testing, machine

design, and accident reconstruction for a number of vehicles, including forklifts.

Rogers offers several opinions regarding the accident and the design of the lift

truck involved in the accident. He believes that the forklift was not unreasonably

unsafe, did not possess any defects, was designed to be fit for its ordinary use, and

complied with all industry regulations, and did not malfunction over the course of the

accident. He contends that this model can be used in situations where a tipover event

is possible and that exiting the lift is the safest action to take when such an event

occurs, not staying inside the operator area.

Furthermore, Rogers asserts that an open-back model forklift is the safest

model and adding a rear operator guard would make the lift more unsafe. He states

that there should be no circumstance where a lift operator’s limb would be forced out

of the machine due to a lack of balance, as long as the operator is acting according to

their training. There is no evidence that greater safety warnings nor any alternative

design would have prevented Anderson’s injury. Moreover, a dual deadman pedal and

more aggressive stopping mechanisms would not have prevented the injuries and

present other hazards. Ultimately, Rogers believes that Anderson, by failing to follow

her training, lift manuals, and industry standards, is responsible for her injury; there

is nothing unsafe or defective about Raymond’s forklift model.

Rogers has considerable credentials and experience in the field of mechanical

engineering; he has the expertise to offer credible opinions regarding the design of

the forklift in question here as well as its basic mechanics. Thus, he is qualified to

offer an opinion regarding various forklift designs, their safety features, and their

risks. Rogers is also qualified to offer testimony on the ANSI B56.1 safety standards.

Though he does not have complete knowledge of how certain standards were reached,

his status as a member of the committee illustrates his working knowledge of the

history and progression of such safety standards. Daubert does not require an expert

to have an exhaustive understanding of the methodology of how such standards were

determined.

However, his credentials render him to be unqualified to offer several opinions

that are unrelated to the mechanics of the forklift itself. First, Rogers does not have

the expertise necessary to make judgments regarding Anderson’s actions. He does not

have the qualifications to credibly judge what a reasonable operator of a forklift would

voluntarily or involuntarily do; he is not an expert in kinesiology or biomechanics.

Second, Rogers is not qualified to provide testimony about the forces that caused

Anderson to move, as he is not an expert in human balance. Therefore, he is prevented

from offering opinions about the forces causing Anderson to exit the forklift as well

as Anderson’s decision to exit the forklift.

This court has determined that Rogers is qualified to present his opinions

about the mechanics and features of the forklift in question, forklift safety standards,

and the likelihood of a forklift accident, but is not qualified to testify about the various

factors that may have caused Anderson to exit the forklift and her ability to

voluntarily do so.

In order for the testimony to be accepted, the expert must engage in reliable

scientific methodology to reach their conclusions. Mr. Rogers has performed several

field tests over his career to analyze the safety of various forklift designs. Recently,

he conducted several off-dock tests using ATDs to make conclusions about the safety

of rear doors on forklifts. The use of ATDs to conduct vehicle accident studies is well-

documented as a reliable methodology within the scientific community, given the

implausibility of using human subjects to conduct such testing. Requiring experts to

conduct accident field tests to have reliable opinions is an impractically high bar to

clear.

Rogers analyzed forklift accidents that did occur and conducted the most

ethically plausible method of simulating forklift accidents by using ATDs. Though

the field tests are imperfect, ATDs are the most reliable substitute for humans.

Finally, Rogers was personally involved in surveys that determined the

frequency of accidents based on the type of forklift involved. He surveyed numerous

companies in the greater Chicago area regarding forklift-related accidents. The

survey was identical for each incident, and only accidents with first-hand

confirmation were analyzed. Though the conclusions that Rogers reached can be

subject to scrutiny during cross-examination, his qualifications and methodology

undertaken in analyzing lift truck design and safety render his testimony admissible.

Rogers’s opinions regarding the design and safety of the particular type of

forklift are clearly relevant to this case. His analysis of the prototype as well as

forklift safety features and standards will assist the jury in determining whether

Raymond’s product is unreasonably unsafe in some manner. Further, his use of

statistics and survey data regarding forklift accidents will provide the jury with

important context for the accident in question.

V. Robert Kerla

The Andersons seek to exclude the expert testimony of Robert Kerila (Doc. 86).

The Court’s scheduling order required Raymond to disclose all experts by February

1, 2021 (Doc. 49). Because Kerila was not disclosed as an expert witness by Raymond

in a timely manner, he will not be permitted to testify as an expert witness at trial

pursuant to Federal Rule of Evidence 702. However, because Kerila works as an

engineer at Raymond and has personal knowledge related to the design issues in this

case he will be permitted to testify as to factual matters within his personal

knowledge pursuant to Federal Rule of Evidence 602.

Additionally, to the extent any of Kerila’s testimony is deemed an opinion, his

personal knowledge of the design of the forklift at issue qualifies him to give opinion

testimony as a lay witness pursuant to Federal Rule of Evidence 701. Rule 701

provides: “If a witness is not testifying as an expert, testimony in the form of opinion

is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful

to clearly understanding the witness’s testimony or to determining a fact in issue;

and (c) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Kerila’s personal knowledge of the design of the forklift qualifies

him to offer opinion testimony that is “rationally based on his perception” and “helpful

to clearly understanding [his] testimony or to determining a fact in issue.” Id.

However, Kerila’s opinion testimony will not be allowed to be “based on scientific or

technical knowledge that is within the scope of Rule 702.” Id.

VI. Kathleen Rodowicz

This Court has reviewed the education, background, and training of Dr.

Kathleen Rodowicz and find her qualified to offer opinions in relation to

biomechanical engineering including on matters involving balance, accident

reconstruction and analysis, and risk of injury during off deck events involving

forklifts. The Andersons do not challenge Dr. Rodowicz’s expertise but rather

challenge the relevancy of her conclusions and her methodology in coming to her

conclusions in regard to the nature of the accident, her opinion on the effectiveness

of a door to prevent the injury, and the risk of serious injuries if a person stays inside

a forklift during an off-dock event.

Dr. Rodowicz’s report provided nine primary conclusions that speak to three

major subjects. First, that Anderson’s accident could not have occurred as described

and that therefore she must have voluntarily placed her foot outside of the forklift

prior to the accident. Second, that there is no data to support the conclusion that Dr.

Kerrigan’s safety designs would have prevented Anderson’s accident. Third, that if

an operator stays in the forklift during an off-dock event, the risk of serious injury is

high.

The Andersons have two objections about Dr. Rodowicz’s conclusions regarding

the accident. First, they object to Dr. Rodowicz testifying about the forces and

movements that are present when the model forklift is in operation. As part of Dr.

Rodowicz’s investigation she went to the accident site and utilized an exemplar

model, along with Rogers, to take physical measurements of the model as well as

utilizing Vicon Blue Trident IMU’s to measure the accelerations of both the forklift

and the operator during normal operation within the warehouse, including a similar

path Anderson took prior to the accident. Dr. Rodowicz’s methodology in coming to

this conclusion is based on sound scientific standards. The Andersons disagree with

Dr. Rodowicz’s conclusion. However, she is qualified to render her opinion on the

matter.

Second, the Andersons object to Dr. Rodowicz’s conclusion that Anderson

voluntarily left the compartment. As part of Dr. Rodowicz’s investigation she went to

the accident site and utilized an exemplar model in addition to a surrogate of similar

height and weight to Anderson. Dr. Rodowicz had the surrogate stand in a five point

of contact position within the forklift and then try and place her left foot in front of

the guide wheel in a manner consistent with Dr. Kerrigan’s injury position. Dr.

Rodowicz also had the surrogate widen her stance by placing her left foot outside of

the truck to simulate her widening her base in response to a postural disturbance.

Dr. Rodowicz also took calculations of the forces applied during operation of an

exemplar model by using Vicon Blue Trident IMU’s. In Dr. Rodowicz’s deposition

testimony, she makes no claims as to why Anderson may have placed her foot outside

of the operator area. Dr. Rodowicz came to her conclusion using an acceptable

scientific method, and while the Andersons may disagree with Dr. Rodowicz’s

conclusions, she is qualified to render her opinion on the matter.

The Andersons also object to Dr. Rodowicz’s opinions that an operator

compartment safety guard door on the model forklift will make the forklift less safe.

Reviewing Dr. Rodowicz’s report she made two comments regarding a door. First,

countering Dr. Kerrigan’s assertion that a door would have prevented Anderson’s

injury: “there are no data to indicate that the presence of a rear door would prevent

an operator from voluntarily placing a lower extremity outside of the running lines of

a lift truck” (Doc. 85-2, p. 21). Dr. Rodowicz’s second comment about a door was

describing the nature of the off-dock event that was being tested by ATDs “where the

operator is forced to remain inside the occupant compartment of the lift truck due to

the presence of a rear door” (Doc. 85-2, p. 22). Dr. Rodowicz does not appear to make

any express claims that a rear door on the model forklift would make it inherently

less safe, but rather in the context of when an operator is forced to stay inside the

forklift during an off-dock event. Her testing and methodology are scientifically

sound, so Dr. Rodowicz is qualified to express that conclusion.

The Andersons additionally object to Dr. Rodowicz’s opinion that if a person

remains in a forklift during an off-dock event they are likely to experience significant

injuries. This conclusion by Dr. Rodowicz is drawn from various tests done over the

years utilizing ATDs in which they are placed within the operator area of a forklift

and dropped off a dock in several ways. From those tests, data is collected on forces

applied and likely impact areas and is used to create an understanding of injuries

that may occur and their severity. The Andersons contend that since ATDs do not act

as humans would in an accident, any data collected from ATD testing is not reliable.

While it is accepted that ATDs do not act as humans would in an accident, their use

is widely accepted in the scientific community as it would be inappropriate to subject

humans to the risk of serious injury in testing off-dock accidents with actual human

occupants and numerous peer reviewed studies have validated the ability of ATDs to

assess injury potential. Therefore, Dr. Rodowicz’s methodology, including relying on

ATD testing, is based on sound scientific standards.

As to relevancy, the Court finds that Dr. Rodowicz’s opinions are relevant to

this case. Her testimony and opinions relate to the incident at issue and go to

Raymond’s defense to the elements that must be proven at trial.

CONCLUSION

The Court GRANTS in part and DENIES in part the Andersons’ Motion to

exclude expert testimony of Michael Rogers (Doc. 84). The Court DENIES the

Andersons’ Motion to exclude expert testimony of Kathleen Rodowicz (Doc. 85). The

Court GRANTS in part and DENIES in part the Andersons’ Motion to exclude

opinion testimony of Robert Kerla (Doc. 86).

The Court GRANTS in part and DENIES in part Raymond’s Motion to

preclude testimony of John Meyer (Doc. 81). The court DENIES Raymond’s Motions

to preclude testimony of Jason Kerrigan (Doc. 82) and John Jeka (Doc. 83).

The Andersons’ Motions regarding their own experts’ opinions (Docs. 75, 76,

and 77) are DENIED as MOOT.

IT IS SO ORDERED.

DATED: July 27, 2021

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge