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Delevine Monell v. the Scooter Store

September 14, 2012




Plaintiff commenced this action on July 21, 2010. See Dkt. No. 1. On February 14, 2011, Plaintiff amended her complaint, alleging causes of action against Defendants in negligence, strict tort liability, and breach of express and implied warranties, "including but not limited to the breach of implied warranties as to merchantability and fitness." See Dkt. No. 20. Currently before the Court are Defendants' motions to exclude Plaintiff's expert and for summary judgment. See Dkt. No. 31.


A. The scooter and accident at issue

In March of 2010, Plaintiff was a ninety-three year old woman who had limited mobility. See Dkt. No. 31-11 at ¶¶ 3-4. Plaintiff lived alone in a trailer home she owned, which was located on the property of Chester and Darlene Craig. See id. at ¶ 3. Plaintiff relied on Mr. and Mrs. Craig for much of her care, including transportation outside of her home, meals, and general assistance with the activities of daily life.

In the winter of 2009/2010, Mr. Craig received a catalogue from Defendant The Scooter Store Ltd. ("the Scooter Store"), advertising the "Go-Go Ultra X Scooter" in both a four-wheel and three-wheel model. Because of her mobility issues, Plaintiff required a scooter to engage in activities such as going shopping with the Craigs. Before the Go-Go Scooter, Plaintiff had bought for herself a "Caddy" three-wheeled scooter from QVC to ride around the neighborhood. See id. at ¶ 31. The Caddy Scooter came with an owner's manual, which provided "Safety Instructions" about the "stability and slopes" on which the Caddy three-wheeled scooter could be safely operated. See id. at ¶ 32. There were several problems with the Caddy Scooter, however, so the Craigs decided to purchase Plaintiff a new scooter that they could use to take her shopping. See id. at ¶ 35. The Craigs wanted to buy Plaintiff a "travel scooter" that could be easily taken apart, put in a car and put back together for use when shopping. See id. at ¶ 37.

The Craigs reviewed both three and four-wheeled scooters and decided to purchase Plaintiff a three-wheeled scooter. See id. at ¶ 38. Although Plaintiff never spoke with anyone at the Scooter Store or Pride Mobility Products Corporation ("Pride Mobility") before Mr. Craig purchased the scooter, see id. at ¶ 41, Mr. Craig did explain to Plaintiff the differences between a three and four-wheel scooter, including that a three-wheel scooter is better for use in stores because it is capable of making tighter turns. See id. at ¶ 42. Eventually, Mr. Craig purchased the three-wheeled Go-Go Ultra X Scooter from the Scooter Store by telephone. See id. at ¶ 43. While purchasing the scooter for Plaintiff, Mr. Craig advised the Scooter Store's sales representative that Plaintiff was ninety-three years old, that she weighed about ninety-eight pounds, and that she would be using the scooter to "'get around'" and possibly to "'go shopping.'" See id. at ¶ 44. Mr. Craig did not tell the Scooter Store's sales representative about the terrain of his property or the driveway on which Plaintiff would be using the scooter, and the sales representative did not ask. See id. at ¶ 45; see also Dkt. No. 36 at ¶ 45. The catalog Mr. Craig received from the Scooter Store did not state anything about using the scooter on gravel or loose surfaces, and Mr. Craig did not ask if it could be used on such surfaces. See Dkt. No. 31-11 at ¶ 46. Plaintiff claims that although the Scooter Store made no oral warranties to Mr. Craig while he was on the telephone with its representative, warranties were made in Pride Mobility's literature and brochure. See Dkt. No. 36 at ¶ 48; see also Dkt. No. 31-11 at ¶ 48.

The Go-Go Scooter was delivered to the Craig's home in a large box and needed to be assembled. See Dkt. No. 31-11 at ¶ 49. According to Plaintiff, Mr. Craig's friend, Eugene Lowe, assisted in assembling the scooter. See id. at ¶ 55; Dkt. No. 36 at ¶ 55. The Owner's Manual for the scooter was located in a sealed plastic bag that also contained the scooter's keys and pins for the seat. See id. at ¶¶ 58-59. Neither Plaintiff nor Mr. Craig read the Owner's Manual prior to assembling and operating the scooter because they were unable to locate it at first. See id. at ¶ 62.

Once Mr. Craig and Mr. Lowe finished assembling the scooter, Mr. Craig test drove the scooter. See id. at ¶ 60. Mr. Craig is six-feet fall and weighs two-hundred and seventy-nine pounds. See id. at ¶ 61. While test driving the scooter, "he made a 'sharp turn,' turning the handlebars from the 12:00 o'clock position to the 9:00 [o']clock position; he did not feel any instability in the scooter whatsoever." See id. (quotation omitted).

Once Mr. Craig was finished test driving the scooter, Plaintiff took the scooter for a ride around block, which lasted for approximately thirty minutes. See id. at ¶ 69. While Plaintiff drove the scooter around the block, she was followed by Mrs. Craig, who was riding a bicycle. See id. at ¶ 70. Mrs. Craig came back to the house before Plaintiff and, therefore, did not see the accident occur. See id. at ¶ 71.

According to Plaintiff, the accident occurred in front of her house. See id. at ¶ 72. While she was driving on the right side of the road, she felt an "'impact'" after "'hitting a stone or something'" and was "'thrown' from the scooter." See id. at ¶ 73 (quotation omitted). Upon being "'thrown'" from the scooter, Mr. and Mrs. Craig heard Plaintiff scream and found her approximately six inches from the back of Mr. Craig's car with the scooter on top of her. See id. at ¶¶ 74-76 (citations omitted). After calling 911, Mr. Craig went to Plaintiff and noted that the scooter was already picked up off of her and was placed between the driver's side and rear passenger side door of his car. See id. at ¶ 77 (citation omitted).

B. The Pride Go-Go Scooter

The Go-Go Ultra X three-wheel scooter Mr. Craig purchased for Plaintiff is a Pride Mobility product. See id. at ¶ 12. The Go-Go Scooter is designed to the specifications of a Class-II Medical Device approved for use by the United States Food and Drug Administration ("FDA"). See id. at ¶ 13. The Go-Go Scooter has three wheels -- two in the back and one in the front -- a seat, and a tiller which is used to steer. See id. The Go-Go Scooter is also equipped with two additional anti-tip wheels in the back of the unit, and utilizes an electric motor and two, twenty- four volt batteries. See id. The parties agree that the Go-Go Scooter "meets the standards set forth by ISO and the American National Standard Institute/Rehabilitation Engineering and Assistive Technology Society of North America ('ANSI/RESNA'), Requirements for Test Methods For Wheelchairs (including Scooters) with Electrical Systems,' which apply to Class-II Medical Device electrical scooters." See id. at ¶ 14.

Pride Mobility performs the certification testing at its facility in Pennsylvania and the GoGo Scooter passed all of the dynamic and static stability tests under the ISO and ANSI/RESNA standards, as required by the FDA. See id. at ¶ 15. According to Defendants, "[a]s set forth in the testing documents, when Pride performs the testing of the GoGo Scooter, Pride puts the scooter in its worst possible configuration for each test, i.e., a configuration which would make the scooter prone to tipping by putting it in its least stable condition." See id. at ¶ 16. In addition to the ISO and ANSI/RESNA testing, Pride Mobility also performs supplemental testing on its products on a specially designed test tract on which the Go-Go Scooters (and other Pride Mobility products) are tested on several obstacles and uneven surfaces, "including uneven pavers and bricks, curbs and ADA curb cut-outs, just to make sure that the product is as safe and stable as possible in real world driving conditions." See id. at ¶ 17.

The Go-Go Scooter is a "travel scooter" which is designed to be light-weight and easy to disassemble, put in a car and quickly reassembled for use. See id. at ¶ 18. The Go-Go Scooter "is designed to perform admirably on packed soil, grass and gravel. Nevertheless, the customer is warned and instructed to read the Owner's Manual before using the GoGo Scooter, as it provides important information about how to operate the scooter outdoors and how to avoid potential tipping hazards." See id. at ¶ 19.


A. Defendants' motion to exclude Mr. Chen's testimony

1. Defendants' position

Defendants argue that Plaintiff's proffered expert, Peter Chen, "must be excluded from testifying because not only is he unqualified to offer any opinions in this case, the opinions he offered are admittedly based on speculation, are untested and are just plain wrong." See Dkt. No. 31-10 at 6.*fn1 Mr. Chen's report opines that the Go-Go Scooter tipped over when Plaintiff allegedly drove over a localized 6.9° lump in the driveway. See id. at 7. Defendants claim that, "[p]utting aside that the Pride GoGo Scooter is designed, tested and able to proceed over such a grade . . . , Mr. Chen admitted during his deposition that: i) he has no evidence to offer a jury that Ms. Monell actually drove her scooter over the lump . . . ; ii) he cannot offer any evidence to a reasonable degree of engineering certainty as to where Ms. Monell encountered the lump . . . ; and iii) Ms. Monell may not have even encountered the lump." See id. (internal citations omitted). Therefore, Defendants assert that all of Mr. Chen's opinions regarding the "lump and its alleged interaction with the GoGo Scooter are unsupported conjecture." See id.

Moreover, Defendants argue that Mr. Chen did not measure the length, width, or height of the alleged lump, did not photograph the lump, and "admittedly has no information from which he can determine where the lump is located." See id. at 7-8. Further, Defendants assert that Mr. Chen's opinion about the Go-Go Scooter's interaction with the alleged 6.9° lump is misleading because he failed to place any part of the scooter on the lump so that he could measure the angle of the scooter on the lump. See id. at 8. Defendants continue by claiming that Mr. Chen never performed any testing of the scooter on or off of the lump, "and while he claims to have operated the scooter, that alleged fact is not disclosed in his expert report, and the Craigs actually denied that Mr. Chen test drove the scooter." See id. Even assuming, arguendo, that Mr. Chen did drive the scooter, Defendants argue that he failed to perform any "tip-testing of the scooter." See id.

Finally, Defendants argue that there is no basis for Mr. Chen's opinion that a cause of the accident was the failure to provide adequate information and warnings about the Go-Go Scooter, both pre and post sale. Defendants claim that Mr. Chen has failed to offer an opinion as to what additional warning or instructions should have been provided with the Go-Go Scooter, or whether any additional warnings/instructions would have altered the behavior of the Craigs or Plaintiff. See id. at 9.

2. Plaintiff's position

First, Plaintiff argues that Mr. Chen should be allowed to testify and directs the Court's attention to a case it claims is factually similar in which the court denied the defendant's motion to preclude the plaintiff's expert witnesses from testifying. See Dkt. No. 34 at 8 (citing Floyd v. Pride Mobility Products Corp., 2007 WL 4404049 (S.D. Ohio 2007)). Next, Plaintiff claims that Mr. Chen is sufficiently qualified to be permitted to testify pursuant to Rule 702 of the Federal Rules of Evidence. See id. at 9-10. Plaintiff asserts that Mr. Chen has extensive training and education in mechanical engineering, and that "he possesses expertise in the areas of Mechanical Engineering, machine Analysis and Guarding, Human Factor Analysis, Product Liability, Analysis and Testing, Accident Reconstruction and Mechanical Equipment Evaluations." See id. at 9. Moreover, Plaintiff argues that Mr. Chen is employed by an investigative engineering company, which employs accident analysis experts who provide skilled forensic engineering to determine the origin and cause of product failures and accidents, and that he has experience investigating and testifying in at least three prior scooter cases. See id. Plaintiff claims that Defendants are mistaken in their assertion that Mr. Chen cannot offer an expert opinion in this case because he is not an expert in FDA regulations or an expert in the sale of mobility products. See id.

Next, Plaintiff argues that Mr. Chen's opinion that the Go-Go Scooter was defectively designed for use on outdoor surfaces, such as Plaintiff's driveway, is supported by sufficient evidence, testing and analysis to be admissible. See id. at 11. Plaintiff claims that "Mr. Chen did a thorough site inspection of the accident location, spoke to Mr. Craig, . . . inspected the scooter in question, measured the slope of the lump, compression tested and observed the surface of the driveway, measured the scooter, reviewed deposition testimony of witnesses, defendants' own materials and other relevant information." See id. Moreover, according to Plaintiff, Mr. Chen used generally accepted engineering principles of physics, lateral stability and the stability triangle to render an opinion as to how the accident at issue occurred and to identify the design defects of the Go-Go Scooter. See id.

Finally, Plaintiff argues that Mr. Chen's opinions are not "unsupported conjecture" and inconsistent with evidence. See id. To the extent that Defendants take fault with his use of methodologies or lack of authority for his opinion, Plaintiff asserts that such arguments go to the weight of the evidence, not the admissibility of his testimony. See id. at 12-13.

3. Analysis

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. That Rule provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles ...

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