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Somerlott v. McNeilus Truck And Manufacturing, Inc.

United States District Court, W.D. Washington, Seattle

December 18, 2017

BENJAMIN SOMERLOTT, Plaintiff,
v.
MCNEILUS TRUCK AND MANUFACTURING INC, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT STEVEN M. TIPTON;ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO STRIKE

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Motion to Exclude Testimony of Plaintiff's Expert Steven M. Tipton (Dkt. No. 86); Plaintiff's Motion to Strike the Motion to Exclude and Motion to Strike the Declaration of Stephen Andrew (Dkt. No. 91); and Defendant's Motions to Strike the Declarations of Steven Tipton and Vern Goodwin (Dkt. No. 101). The Court has reviewed the Motions, the Response (Dkt. Nos. 91), the Reply (Dkt. No. 101) and all related papers. The Court declines to hear oral argument on this matter.

         Background

         This is a products liability case brought by Plaintiff Benjamin Somerlott against Defendant McNeilus Truck and Manufacturing, Inc. (Dkt. No. 3.) Plaintiff was injured while operating a McNeilus side-loading commercial refuse truck manufactured and sold by Defendant (the “Side Loader”). (Id.) The Court is familiar with the remaining facts of the case, and will not repeat them here.

         Plaintiff retained as its expert Dr. Steven M. Tipton, a Professor in the Mechanical Engineering Department at the University of Tulsa with a Ph.D. in mechanical design. (Dkt. No. 87-4 at 15.) Dr. Tipton submitted an expert report on July 20, 2017 (Id. at 2-13) and was deposed by counsel for Defendant on August 31, 2017 (Dkt. No. 87-3).

         In his expert report, Dr. Tipton opined that the Side Loader was not reasonably safe as designed, did not comply with applicable safety standards, and did not come with adequate warnings. (See Dkt. No. 87-4.) Dr. Tipton certified that his opinions were “based on sound engineering design principles, the analyses [he] conducted and the resources named [in the report].” (Id. at 13.) When asked about his methodology at deposition, Dr. Tipton testified that “[t]here was no formal analysis that was necessary” and that he didn't “have the information available” to conduct a risk benefit analysis for each of his proposed alternative designs. (Dkt. No. 87-3 at 27, 41-42.)

         Defendant claims Dr. Tipton is not qualified and did not employ reliable methodology in his analysis of the Side Loader, and moves to exclude his testimony under Daubert. (Dkt. No. 86.)

         Discussion

         I. Motions to Strike

         Each of the parties has moved to strike various pleadings and declarations filed in connection with this matter.

         a. Plaintiff's Motion to Strike the Motion to Exclude Steven M. Tipton

         Plaintiff moves to strike Defendant's Motion to Exclude Steven M. Tipton (Dkt. No. 86) for failure to comply with the applicable page limits. (See Dkt. No. 91 at 2.) The Court notes that the motion is 18 pages, and is clearly in violation of the 12-page limit imposed by the Local Rules. See LR(e)(4). While this is improper, the Court observes that striking the motion at this stage in the proceedings, when trial is fast approaching and when both parties have invested substantial time in preparing responsive pleadings, would not further judicial efficiency or the interests of either party.[1]

         b. Plaintiff's Motion to Strike the Declaration of Stephen P. Andrew

         Plaintiff moves to strike the Declaration of Stephen P. Andrew (“Andrew Declaration”) (Dkt. No. 88), filed with Defendant's Motion to Exclude. (Dkt. No. 91 at 11.) The Andrew Declaration claims that Dr. Tipton failed to follow the “generally accepted engineering and scientific analysis techniques” in his analysis of the Side Loader, and identifies alleged shortcomings in his methodology and conclusions. (Dkt. No. 88 at 3-4.) While Plaintiff claims the declaration is improper under Rule 702 and Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), he offers no explanation for this ...


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