United States Court of Appeals
For the First Circuit
No. 05-2685
RAYMOND BEAUDETTE and LISA BEAUDETTE,
Plaintiffs, Appellants,
v.
LOUISVILLE LADDER, INC.
(formerly known as LOUISVILLE LADDER GROUP, LLC),
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Daniel C. Federico, with whom Rainer & O'Connor LLP was on
brief, for appellants.
Harrison L. Richardson, with whom Paul R. Johnson, and
Richardson, Whitman, Large & Badger were on brief, for appellee.
September 6, 2006
TORRUELLA, Circuit Judge. Plaintiffs-appellants Raymond
Beaudette ("Beaudette") and Lisa Beaudette (collectively, "the
Beaudettes") filed suit against defendant-appellee Louisville
Ladder, Inc. ("Louisville Ladder") in the United States District
Court for the District of New Hampshire, seeking damages for
injuries arising from an accident where a ladder, manufactured by
Louisville Ladder, collapsed. The district court excluded the
testimony of the Beaudettes' expert witness and entered summary
judgment in favor of Louisville Ladder. The Beaudettes appeal.
After careful consideration, we affirm.
I.
On May 4, 2001, Beaudette, a building contractor, was
working at a residential home under construction in Exeter, New
Hampshire. At the time of the accident, Beaudette was standing
somewhere between eight and ten feet above the ground on
scaffolding that he and his employees had constructed. The
scaffolding consisted of two twenty-four-foot aluminum planks,
supported in the middle by the ladder in question and supported on
each end by two additional extension ladders. The aluminum planks
were attached to the ladder in question by a ladder jack.1 When
the middle ladder collapsed, Beaudette fell approximately seven or
1
A ladder jack is a triangular metal bracket that attaches to the
rungs of an extension ladder.
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eight feet to the ground, breaking his right tibia and dislocating
his right knee.
The Beaudettes filed suit against Louisville Ladder in
the United States District Court for the District of New Hampshire,
seeking damages on five counts: negligence, failure to warn,
failure to give adequate instruction, breach of implied warranty,
and negligent infliction of emotional distress.
The district court fixed a deadline of April 15, 2005 for
the Beaudettes to designate expert witnesses. By the deadline, the
Beaudettes designated Wilson Dobson ("Dobson") as an expert on the
existence of manufacturing defects in the ladder. Dobson holds a
Masters of Science in Materials Engineering, a Bachelors of Science
in Mechanical Engineering, and has nearly thirty years of
experience as a practicing and consulting engineer. Dobson filed
a report on April 14, and Louisville Ladder deposed him in June.
Louisville Ladder filed a combined motion to exclude Dobson's
expert testimony and for summary judgment on or about August 12.
The Beaudettes moved on or about August 29 to designate Dobson as
an expert on the inadequacy of the warnings attached to the ladder.
At this time, the trial was set to begin on October 4, but on
September 26 the district court changed the trial date to
November 1, 2005.
In his report, Dobson concluded that there was a
manufacturing defect in the ladder and described his methodology.
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He first conducted a visual examination of the ladder and noted
that the fiberglass rails of the base section of the ladder had
broken. Dobson then cut samples from the ladder and examined the
samples under a microscope. He observed that there were "resin
pockets and fiber free regions, folds in the fibers, [and] cracking
following the resin rich pockets." In conjunction with his
observations, Dobson considered a standard promulgated by the
American National Standards Institute ("ANSI"), an independent
entity made up of representatives of industry, labor, government,
and academics. ANSI Standard 14.5 describes standards for
manufacturing fiberglass ladders:
The material shall be smooth, clean, uniform
in color and reasonable [sic] free from
conducting particles, foreign materials, pits,
cracks, voids, chips, sink marks,
delaminations, blisters, and scratches, in
accordance with good commercial practice. The
distribution of filler, additives, or glass
fiber shall be free of resin-rich and resin-
starved areas, and there shall be no evidence
of significant reenforcement shifting,
wrinkles, bunching up, or density variation
within a length, all in accordance with good
commercial practice.
The ANSI Standard does not define the terms "resin-rich" and
"resin-starved" and provides no objective criteria to measure how
a variation in the resin will affect the strength of the fiberglass
material. The standard also does not define what constitutes "good
commercial practice." Dobson stated that, because of the resin-
rich pockets in the fiberglass ladder, the ladder did not meet the
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ANSI Standard and was therefore defective. Dobson did not conduct
any testing, refer to any technical literature, or consult with any
other experts.
On October 6, the district court conducted a Daubert
hearing on the motion to exclude Dobson's expert testimony. At the
hearing, Dobson testified that he knew of no testing or literature
that supported his opinion. The district court attempted to
discern whether the language of the ANSI standard provided a
sufficient basis for Dobson's opinion. Dobson stated that in order
for a ladder to be safe it must be entirely free of resin-rich
pockets but had no support for his opinion. Although the ANSI
standard states that fiberglass ladders must be "free of resin-rich
and resin-starved areas," the requirement is qualified by the
phrase "in accordance with good commercial practice." Dobson
stated that he had no information as to what constituted "good
commercial practice" in the ladder manufacturing business. Dobson
also stated that he was "not an expert in the pultrusion process,"
the process by which the ladder was manufactured.
The district court found that Dobson's expert testimony
was inadmissible because he did not have a sufficient basis for his
expert opinion. The district court also denied the Beaudettes'
untimely motion to designate Dobson as an expert on the inadequacy
of the warning labels attached to the ladder and granted summary
judgment in favor of Louisville Ladder.
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II.
The Beaudettes present three arguments on appeal. First,
they challenge the exclusion of Dobson's expert testimony on
material defects in the ladder. Second, they contest the district
court's refusal to allow the late designation of Dobson as a
warnings expert. Third, they argue that the district court erred
in requiring expert testimony on the failure to warn claim. We
examine each argument in turn.
A. Expert Testimony on Manufacturing Defects
Under Rule 702 of the Federal Rules of Evidence, it is
the responsibility of the trial judge to ensure that an expert is
sufficiently qualified to provide expert testimony that is relevant
to the task at hand and to ensure that the testimony rests on a
reliable basis. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993); United States v. Díaz, 300 F.3d 66, 73 (1st Cir. 2002).
We review a district court's decision to admit or exclude expert
testimony for abuse of discretion, giving broad deference to the
determination made by the district court as to the reliability and
relevance of expert testimony. Gen. Elec. Co. v. Joiner, 522 U.S.
136, 143 (1997); Hochen v. Bobst Group, Inc., 290 F.3d 446, 452
(1st Cir. 2002).
In Daubert, the Supreme Court set forth four general
guidelines for a trial judge to evaluate in considering whether
expert testimony rests on an adequate foundation: "(1) whether the
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theory or technique can be and has been tested; (2) whether the
technique has been subject to peer review and publication; (3) the
technique's known or potential rate of error; and (4) the level of
the theory or technique's acceptance within the relevant
discipline." United States v. Mooney, 315 F.3d 54, 62 (1st Cir.
2002) (citing Daubert, 509 U.S. at 593-94). However, these factors
do not "constitute a definitive checklist or test," and the
question of admissibility "must be tied to the facts of a
particular case." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999) (internal quotation marks omitted).
The Beaudettes make several arguments to support their
contention that the district court erred in excluding Dobson's
expert testimony. Each of these arguments is meritless, and we
address them briefly. The Beaudettes first argue that the district
court applied the wrong legal standard by requiring that expert
witness testimony be based upon "generally-accepted" scientific
methods. See Daubert, 509 U.S. at 589 (stating that a general
acceptance requirement is incompatible with the Federal Rules of
Evidence). However, the district court clearly based its decision
upon a Daubert analysis, and the district court's order does not
even mention the general acceptance test.
The second argument is that the district court improperly
turned the Daubert hearing into a mini-trial on the issue of
causation. In support of their argument, the Beaudettes cite only
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one case for the proposition that "the Daubert regime should be
employed only with great care and circumspection at the summary
judgment stage." Cortés-Irizarry v. Corporación Insular de
Seguros, 111 F.3d 184, 188 (1st Cir. 1997). We have reviewed the
record and found no error in the proceedings.
Third, the Beaudettes argue that even without the
application of the ANSI standard, Dobson's expert opinion was
"bolstered by the basic principles of physics, engineering, and
material science." Again, we see no error by the district court.
The Beaudettes also claim that Louisville Ladder is
judicially estopped from arguing that Dobson is unqualified to
testify as an expert due to his inability to define what
constitutes "good commercial practice" under the ANSI Standard.
The doctrine of judicial estoppel "generally prevents a party from
prevailing in one phase of a case on an argument and then relying
on a contradictory argument to prevail in another phase." See New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Pegram v.
Herdrich, 530 U.S. 211, 227, n.8 (2000)). This Court has held that
a claim of judicial estoppel requires the proponent to "show that
the party to be estopped succeeded previously with a position
directly inconsistent with the one it currently espouses." SEC v.
Happ, 392 F.3d 12, 20 (1st Cir. 2004) (internal quotation marks and
brackets omitted). The Beaudettes, however, have not shown that
Louisville Ladder has ever taken contradictory positions in this
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proceeding. Although Louisville Ladder may have participated in
the creation of the relevant ANSI standard, the ANSI standard is
not contradictory to their current position, and its creation was
nevertheless not a prior phase of this case.
The Beaudettes have not shown any error in the district
court's decision to exclude Dobson's expert testimony, and we find
no abuse of discretion by the district court.
B. Late Disclosure of Expert Testimony
The Beaudettes next challenge the district court's
refusal to accept the late disclosure of Dobson as an expert on the
inadequacy of the warning labels attached to the ladder. To
support this claim, the Beaudettes cite two cases. The first is
not relevant. Licciardi v. TIG Ins. Group, 140 F.3d 357, 363 (1st
Cir. 1998) (noting that Fed. R. Civ. P. 26(e) "requires a party to
inform another party of a material change in or addition to
information contained in an expert's pre-trial report"). The
second, Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., is
relevant, but the Beaudettes incorrectly state the crucial facts.
240 F.3d 1 (1st Cir. 2001). In Ferrara, we approved the late
disclosure of an expert witness where it occurred three months
prior to trial and a previously disclosed expert had died prior to
the trial. Id. at 8, 9-10. The Beaudettes incorrectly state that
in Ferrara we approved the late disclosure of an expert two weeks
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prior to trial.2 Moreover, at the time of the Beaudettes' late
disclosure, trial was scheduled for only five weeks away. Given
the short time until the scheduled trial date, we find that the
district court did not abuse its discretion by refusing to accept
the plaintiffs' late designation.
C. Necessity of Expert Testimony
Finally, the Beaudettes challenge the district court's
finding that expert testimony is required for their claim of
inadequate warnings. In a diversity action, whether expert
testimony is required is a matter of state law. See Hochen v.
Bobst Group, Inc., 290 F.3d 446, 451 (1st Cir. 2002) (applying
Massachusetts state law to determine whether expert testimony was
required to prove a design or manufacturing defect). The New
Hampshire Supreme Court has held that "[e]xpert testimony is
required . . . to aid the jury whenever the matter to be determined
is so distinctly related to some science, profession, business or
occupation as to be beyond the ken of the average layman." Estate
of Joshua T. v. State, 840 A.2d 768, 771 (N.H. 2003) (internal
quotation marks omitted).
Under New Hampshire law, the question of whether it would
be prudent to include specific warnings regarding the use of a
common household object may be beyond the ken of the average
2
In Ferrara, we did allude to a late disclosure of expert
testimony occurring two weeks before trial, but this was clearly
not the issue on appeal. See 240 F.3d at 10.
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person. For example, in Lemay v. Burnett, the New Hampshire
Supreme Court affirmed the trial court's dismissal of a failure to
warn case where the plaintiff had failed to designate an expert on
swimming pools. 660 A.2d 1116 (N.H. 1995). In that case, the
plaintiff was injured while diving into a backyard swimming pool
and claimed that the homeowner should have provided warnings as to
the risk of diving into a pool. The New Hampshire Supreme Court
affirmed the case, noting that while a juror may be generally
familiar with swimming pools, the average juror could not know what
particular combination of conditions -- including water depth,
height of the diving board, or the stiffness of the diving board --
could lead to reasonably safe diving conditions for a man of the
plaintiff's size. Id. at 1116-18.
We find it clear that, under New Hampshire law, expert
testimony is required for the Beaudettes' failure to warn claim.
Although the average juror may have experience with ladders, the
average juror will not have knowledge as to the use of a ladder
jack, the construction of scaffolding out of ladders, and the
combination of factors that would make such a situation safe or
unsafe. Consequently, the district court did not err in requiring
expert testimony to sustain the Beaudettes' claims for failure to
warn.
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III.
For the reasons stated above, we affirm the grant of
summary judgment in favor of Louisville Ladder.
Affirmed.
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