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Finke v. Hunter's View, Ltd.: US District Court : TORT | PRODUCTS LIABILITY - product liability claims; expert witness scope of testimony limited; non-manufacturer questions

husband and wife,
Civil File No. 07]4267 (MJD/RLE)
Blake W. Duerre, Mark S. Brown, Paul E. D. Darsow, and Christopher D.
Newkirk, Arthur Chapman Kettering Smetak & Pikala, PA, Counsel for Plaintiffs.
Aaron M. Ponce and Thomas A. Harder, Foley & Mansfield, PLLP, Counsel for
Defendant Hunterfs View, Ltd.
Lawrence M. Rocheford, Leonard J. Schweich, and Elisa M. Hatlevig, Jardine
Logan & OfBrien, PLLP, Counsel for Defendant Wal]Mart Stores, Incorporated.
This matter is before the Court on Plaintiffsf Motion to Exclude Experts L.J.
Smith and Nathan Dorris and for Partial Summary Judgment [Docket No. 35];
Defendant Wal]Mart Stores, Incorporatedfs Motion for Summary Judgment
[Docket No. 39]; and Defendant Hunterfs View, Ltd.fs Motion to Exclude Certain
Expert Testimony and for Summary Judgment [Docket No. 46]. The Court heard
oral argument on November 24, 2008.
A. Factual Background
1. The Parties
Plaintiffs D.J. (Darus) Finke (gFinkeh) and his wife, Shea Finke, are citizens
of Minnesota, and residents of Marble, Minnesota.
Defendant Hunterfs View, Ltd., (gHunterfs Viewh) was a company that
sold deer stands. Hunterfs View filed for bankruptcy in 2005 and was subject to a
Chapter 7 liquidation. According to David Raymond Smith, CEO, owner, and
sole shareholder of Hunterfs View, the liquidation is complete.
Defendant Wal]Mart Stores, Incorporated (gWal]Marth) is in the retail
business and, among other things, sells hunting accessories such as deer stands.
2. Hunterfs View Eagle Climbing Stand
Finke claims that he was injured due to defects in the Hunterfs View Eagle
Climbing Stand (Model HV ATC]4000) (gthe Tree Standh). The Tree Stand is
portable and permits a hunter to climb a tree with the stand. The Tree Stand is
composed of a seat, a platform, and a safety harness, along with a series of quick
clip pins, straps, and adjustment arms designed to allow its user to attach the
stand to a tree and then begin a process of moving up the tree to the desired
height. The connection cables loop around the tree and attach the seat and the
platform to the tree. The braided wire connection cables are sheathed in rubber.
The end of each connection cable contains a loop, which is formed by a swage
fitting. A quick clip pin attaches the cable to the seat and platform sections,
holding the stand against the tree.
The user connects the platform section or the seat section of the Tree Stand
to the tree by inserting the connection cable into either tube of the platform or
seat section. The user inserts the quick clip pin into one of the pre]drilled holes
on the top of the adjustment arm tube of the platform section, through the
connection cable loop, and out of the corresponding hole on the bottom of the
adjustment arm tube. The user then wraps the cable around the tree and secures
the other adjustment arm tube of the platform or seat section in the same manner.
According to the product manual for the Tree Stand, the user then attaches
a safety harness to the tree above the userfs head and steps onto the platform
section. Facing the tree, the user inserts his feet into the nylon bootstraps
attached to the platform section. The user sits on the seat section and lifts his feet
to raise the platform section. The user next stands on the platform section and
raises the seat section. The user repeats this process until he reaches his desired
height. Then, he adjusts the seat section to a comfortable sitting level.
3. The Accident
On November 12, 2005, Finke was hunting in Itasca County, Minnesota,
while using the Tree Stand. According to Finke, he purchased the Tree Stand
from a Wal]Mart Store in Grand Rapids, Minnesota in July or August of 2002.
While it was still dark, Finke used the Tree Stand to climb 30 feet up a tree. He
had not tethered the Tree Standfs safety harness to the tree. According to Finke,
while he was adjusting the seat section, standing on the platform, the cable
disengaged from the left adjustment arm tube of the seat section. He lost his
balance and fell to the ground.
Finke fired distress shots and his brother, Justin Finke, came to his aid.
Justin Finke testified that he saw both quick clip pins still correctly inserted
through the adjustment arms of the seat section with the safety clips engaged.
Finke testified that the connection cable on the left side of the seat section was not
1Although, at some points, the parties and experts express this scenario by
stating that the pin was wedged behind the swage, both manners of wording are
attempting to express the same scenario: the loop and the swage were in the tube,
the pin was not through the loop, but the swage and loop were blocked from
sliding out of the tube by the inserted pin. For clarity and consistency, the Court
will describe this scenario as the scenario in which the swage was wedged behind
the pin.
attached and the cable loop was intact.
Finke suffered serious and permanent injuries as a result of the fall. He
sustained a C6]7 fracture and C6 burst fracture with complete transverse cord
injury and paraplegia from the sternum down.
4. Theories Regarding Causation of the Accident
The deposition testimony and expert opinions currently before the Court
present two main theories as to how the accident occurred. According to Finke,
he did not remove the quick clip pin once he reached his desired height in the
tree. Instead, Finke believes that he had placed the swage behind the quick clip
pin so that the swage was wedged by the pin.1 The wedged swage held Finkefs
weight as he ascended the tree, until it released once he reached the top of his
climb, leaving the pin still inserted through the holes in the seat rail.
None of the experts could reproduce the wedged]swage scenario in testing.
The experts for both Plaintiffs and Defendants agree that the probable scenario is
that Finke correctly inserted the quick clip pins through the loops before climbing
the tree. Upon reaching the top of his climb, Finke removed one quick clip pin
from the seat portion to readjust the length of the cable. He reinserted the quick
clip pin, but did not place the pin through the cable loop . he did not insert the
loop far enough into the tube . and the seat section released from the tree.
B. Procedural Background
According to Hunterfs View, on July 25, 2007, D.J. Finke and his wife, Shea
Finke, commenced this lawsuit against Hunterfs View in Minnesota state court.
This original Complaint has not been provided to the Court. Based on the
evidence in the record before this Court, this action was commenced in
Minnesota state court in September 2007 when Plaintiffs filed an Amended
Complaint against both Defendants. On October 16, 2007, Wal]Mart removed
this case to federal court. On October 24, 2007, Hunterfs View joined the
The Amended Complaint alleges Count One: Strict Liability; Count Two:
Negligence; and Count Three: Breach of Warranty, all against both Defendants.
All three parties have now filed motions before this Court seeking to
exclude experts and seeking full or partial summary judgment. The Court first
addresses the partiesf arguments regarding expert witnesses. The Court then
addresses the requests for summary judgment.
A. Motions to Exclude Expert Testimony
1. Standard
a. Rule 702
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702. The proponent of the testimony has the burden to show by a
preponderance of the evidence that the testimony is admissible under Rule 702.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). Under the Rule:
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
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702.
gUnder the framework developed in Daubert, trial courts must serve as
gatekeepers to insure that proffered expert testimony is both relevant and
reliable. Trial courts are given broad discretion in fulfilling this gatekeeping role
. . . .h Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006) (citations
omitted). The proposed testimony must be useful to the factfinder in deciding
the ultimate fact issue; the expert witness must be qualified; and the proposed
evidence must be reliable. Lauzon, 270 F.3d at 686.
When considering the reliability and relevance of expert testimony, the
Court may examine gwhether the theory or technique is subject to testing,
whether it has been tested, whether it has been subjected to peer review and
publication, whether there is a high known or potential rate of error associated
with it, and whether it is generally accepted within the relevant community.h
Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005) (citation omitted).
The Courtfs inquiry is gflexible and fact specific.h Id.
As a general rule, the factual basis of an expert opinion goes to
the credibility of the testimony, not the admissibility, and it is up to
the opposing party to examine the factual basis for the opinion in
cross]examination. Only if the expertfs opinion is so fundamentally
unsupported that it can offer no assistance to the jury must such
testimony be excluded.
Bonner v. ISP Techs., Inc., 259 F.3d 924, 929]30 (8th Cir. 2001) (citation omitted).
b. Cumulative Testimony
Federal Rule of Evidence 403 states: gAlthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.h Under Rule 403, ga Court may limit or exclude expert
testimony which is cumulative.h Upsher]Smith Labs. Inc. v. Mylan Labs, Inc.,
944 F. Supp. 1411, 1440 (D. Minn. 1996) (citations omitted).
c. Reasonable Alternative Design
Minnesota . . . maintains the requirement in a strict liability
products case that a plaintiff must establish not only that the product
was in a defective condition, but also that it was unreasonably
dangerous. Obviously, a factor bearing upon the latter requirement
will be the existence or nonexistence of a feasible alternative design.
To satisfy that requirement, the plaintiff ordinarily has the burden of
showing the existence of an alternative design that was safer.
Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minn. 1987) (citations and footnote
omitted). gAlthough normally evidence of a safer alternative design will be
presented initially by the plaintiff, it is not necessarily required in all cases. Such
evidence is relevant to, and certainly may be an important factor in, the
determination of whether the product was unreasonably defective. However,
existence of a safer, practical alternative design is not an element of an alleged
defective product design prima facie case.h Id. at 96]97 (footnote omitted).
While Minnesota substantive design]defect law does not require proof of a
feasible alternative design in all cases, the Court also examines whether, under
Daubert, an expertfs opinion regarding proposed safety modifications is reliable
and relevant. Daubert does not require that an expert manufacture a new
prototype to test a suggested alternative design. Unrein, 394 F.3d at 1012.
However, an expert who proposes safety modifications should at least prepare a
drawing of how the modification could be integrated into the product at issue or
gpresent photographs showing its use with similar machines.h Id. (citation
omitted). Moreover, g[a]n expert proposing safety modifications must
demonstrate by some means that they would work to protect the machine
operators but would not interfere with the machinefs utility.h Id. (citing Jaurequi
v. Carter Mfg. Co., 173 F.3d 1076, 1084 (8th Cir.1999); Peitzmeier v. Hennessy
Indus., Inc., 97 F.3d 293, 297 (8th Cir. 1996)). When an expert is proposing that
the product should be taken off the market entirely, not modified, then
gfeasibility or compatibilityh are not concerns and the expert need not
demonstrate a reasonable alternative design. Id.
2. Gary M. Bakken
Defense expert, Gary M. Bakken, Ph.D., C.P.E., has a B.S.E. in mechanical
engineering (astronautical), a M.S. in safety, and a doctorate in industrial
engineering (human factors/ergonomics). He has varied educational and work
experience, including providing design recommendations in the areas of
products and warnings and conducting incident causation analysis.
Bakken tested an exemplar climbing tree stand and concluded that, if the
swage was wedged behind the quick clip pin, the cable loop would not have
passed through the quick clip pin causing the accident. In fact, during testing,
the cable broke before the swage and cable loop passed the pin, at a weight much
larger than the weight involved in the accident. Bakken opines that Finke
attempted to adjust the seat of the Tree Stand after he was 30 feet up the tree by
removing the quick clip pin from the armrest adjustment tube. Bakken concludes
that Finke mistakenly thought that he had properly re]engaged the pin through
the cable loop, but, instead, the loop was not around the pin. He concludes that
Finke released the seat platform, it dropped, and Finke lost his balance and fell
off of the foot platform to the ground.
Bakken opines that it was reasonable to expect that Finke was aware of the
danger he created by not using the tether; that it was reasonably foreseeable that
Finke was aware of the risk from not using the tether and removing the pin while
up the tree; and that Finke failed to use the care that a reasonably prudent and
careful person would in a similar situation.
Bakken also provides criticism of the opinions of Plaintiffsf expert
witnesses. Among other things, Bakken criticizes the opinion of Plaintiffsf expert
Carol Pollack]Nelson, that the on]product warning label is defective because of
its placement and small print.
3. Nathan Dorris
a. Summary of Dorrisfs Opinion
Defense expert witness Nathan Dorris, Ph.D., C.P.E., has a B.S. in
management, an M.S. in industrial and systems engineering, and Ph.D. in
industrial and systems engineering. His areas of expertise include product safety
and the evaluation of instructions and warnings.
In his report, Dorris opines, among other things, that the Tree Stand is a
reasonably safe design and that the Tree Stand quick clip locking mechanism
provides appropriate user feedback regarding its proper use. He also opines
regarding the safety of the chest harness. Dorris spends a substantial portion of
his report analyzing the warnings associated with the Tree Stand and the
necessity of additional warnings. He concludes that the warning system
included with the Tree Stand was reasonable, appropriate, and adequate. Unlike
Bakken, Dorris analyzes the adequacy of the written instruction manual that
accompanied the Tree Stand.
b. Whether Dorrisfs Opinions Are Cumulative
Plaintiffs argue that Dorris should be excluded because his testimony
duplicates that of Bakken. In support of their argument for exclusion, Plaintiffs
note that Bakken and Dorris have similar educational backgrounds. Both
expertsf fields of studies include warnings and product safety. In their reports,
both experts offer overlapping opinions, such as overlapping causation opinions
and the safety of the Tree Standfs design. Both experts also opine that the
warnings were adequate. Plaintiffs posit that, given Bakkenfs background,
Bakken could have offered in]depth testimony on the product warnings instead
of Dorris.
Defendants assert that the undergraduate degrees and work experience of
Bakken and Dorris differ significantly. They argue that Bakken and Dorris are
specialized in different fields within the discipline of industrial engineering.
Defendants contend that Bakken will testify about testing he performed on
an exemplar stand to refute Finkefs testimony of how the accident occurred.
Additionally, Bakken will testify about the force and manipulation necessary to
improperly wedge the swage behind the pin, Finkefs danger awareness while
using the product, and Finkefs interaction with the stand cable attachment.
Defendants claim that, in contrast, Dorris will testify about the adequacy
and effectiveness of the warnings as well as the behavioral responses to the
warnings. Defendants assert that the overlap between the expertsf reports
resulted from the expertsf attempt to provide the broadest base for their opinions
so Plaintiffs would be aware of all information they considered to render their
respective opinions. Defendants represent that at trial, however, the expertsf
opinions will be narrowly tailored to avoid cumulative testimony.
Furthermore, Defendants argue that although Bakken might otherwise be
qualified to offer opinions on the warnings, he did not fully review the warnings.
Defendants conclude that Plaintiffs cannot dictate the manner in which
Defendants decide to present their evidence. Defendants do not wish to have
Bakken testify on the topic of warnings.
c. Conclusion
Bakkenfs report does contain a cursory analysis of the Tree Standfs
on]product warnings. Dorris provides a more in]depth analysis of the
on]product warnings and also provides an analysis of the instruction manual
warnings, which are referenced in the on]product warning. There is overlap
between Bakkenfs report and Dorrisfs report regarding warnings. However,
Defendants represent that Dorris, not Bakken, is the warnings expert. In
accordance with the Courtfs power to limit cumulative testimony under Rule 403,
the Court holds that, during trial, only Dorris may opine on the adequacy of the
Tree Standfs on]product and manual warnings. Bakken may not opine regarding
the adequacy of the warnings.
Dorrisfs report contains analysis and opinions regarding other features of
the Tree Stand, such as the safety of the chest harness and the design of the quick
clip locking mechanism. These matters are also contained in Bakkenfs report.
Defendants represent that only Bakken will opine on these matters. Based on the
Courtfs power to limit cumulative testimony under Rule 403, the Court holds
that, during trial, Dorris may only opine regarding the adequacy of the Tree
Standfs warnings. He may not express an expert opinion regarding other issues,
such as the design of the quick clip mechanism, the causation of the accident, or
the chest safety harness. Of course, in order to opine on the warnings, where
necessary, Dorris may state that he relies upon Bakkenfs opinions. However,
Dorris may not, himself, issue any opinions beyond those related to the adequacy
of the Tree Standfs warnings.
4. Larry Hanke
Defense expert, Larry D. Hanke, P.E., is a metallurgical engineer. Hanke
examined the Tree Stand in order to determine if the physical condition of the
Tree Stand was consistent with Plaintiffsf theory of the accident. He opined that
the cables and frame of the Tree Stand were in good condition. He also opined
that if the swage had been wedged behind the pin and then pulled out past a
properly inserted pin, the swage and the frame would be deformed. Hanke
concluded that there was no physical evidence that the accident occurred by the
swage being wedged behind the pin.
5. Lorne (gL.J.h) Smith, Jr.
a. Summary of Smithfs Opinion
Defense expert, Lorne (gL.J.h) Smith, Jr , has an A.A. in police science and a
B.S. in criminal justice. He has extensive experience in hunter training and was
the Hunter Safety Administrator for the Mississippi Department of Wildlife,
Fisheries and Parks for ten years.
Smith opines, among other things, that the Tree Stand was altered; that the
Tree Standfs platform had been misused for years; that the tether of the safety
harness is of a length that, while tethered to the tree, it will not get in the way of
the user while climbing; that Finke would not have fallen if he had worn the
safety harness; that a common sense user would interpret the Tree Standfs
warnings to know that the harness must be attached to both the tree and the
userfs body; that Finkefs failure to follow product warnings caused the accident
and injuries; and that Thomas Cranefs and Pollack]Nelsonfs opinions are
deficient for various reasons.
b. Whether Smithfs Opinions Are Cumulative
Plaintiffs argue that Smith should be excluded because his proposed
testimony duplicates the proposed testimony of Bakken and Dorris. For
example, Smithfs opinions in the fields of industrial engineering, human factors,
human interaction, product warnings, and causation are duplicative of opinions
by Bakken and Dorris.
Defendants assert that Smith offers unique, non]cumulative testimony.
They claim that Smith will demonstrate the use and operation of the Tree Stand,
and his observations of the tree used by Finke and the surrounding area.
Defendants also assert that Smith will testify about hunter safety, hunting
product industry practices, and safety issues. According to Defendants, his
testimony will be limited to these areas at trial.
Smithfs report contains many opinions that repeat the opinions of Bakken
and Dorris. Defendants admit that Smith gives cumulative opinions that are
outside his area of expertise. The Court holds that Smithfs testimony regarding
causation, the design of the Tree Stand, the design of the safety harness, and the
adequacy of the warnings are all excluded as cumulative.
b. Whether Smith Is Qualified Under Rule 702 to Offer
Plaintiffs argue that Smith should be excluded because he is not a human
factors or engineering expert, but offers his opinion in these areas. The Court has
already held that Smith is not permitted to testify in the areas of human factors or
engineering because his testimony in those areas is cumulative. The Court also
holds that Smith is not qualified to testify in those areas.
Additionally, Plaintiffs contend that Smith should not be permitted to
testify because some of his opinions are based on common sense or are
unsubstantiated. The first example that Plaintiffs cite is Smithfs statement that it
is gcommon senseh for a hunter to wear a safety harness and attach it to the tree.
(Smith Reports at 6.) Plaintiffs argue that if it is common sense, then the jury
does not require the specialized knowledge of an expert witness. The Court
agrees that Smith is not allowed to testify regarding general common sense.
However, based on his extensive experience, Smith is qualified as an expert in
hunter safety. See Fed. Crop Ins. Corp. v. Hester, 765 F.2d 723, 728 (8th Cir. 1985)
(gA witnessfs practical experience can be the basis of qualification as an expert.h)
(citations omitted). If the purpose of Smithfs testimony is to explain what is
common practice and knowledge to a hunter and explain the issue from the point
of a hunter and hunting safety expert, this would constitute an expert opinion
which Smith is qualified to give.
The second example that Plaintiffs cite is Smithfs critique of Plaintiffsf
expert Pollack]Nelsonfs opinion in which Smith claims that g[i]t is well
documented that far more hunters have died from not wearing a harness,h yet
does not cite any basis for this assertion. This opinion is completely
unsubstantiated and, therefore, lacks reliability. The Court holds that Smith
cannot give this opinion at trial.
Finally, Plaintiffs argue that Smithfs criticism of the scientific methodology
employed by a survey from Deer and Deer Hunting relied upon by
Pollack]Nelson is unsupported and constitutes mere speculation. Smith asserts
that the survey is not scientific and that hunters who had accidents were more
likely to respond to the survey than hunters who had not had accidents.
Defendants note that Smith served on the Treestand Manufacturers Association
committee to evaluate the data supporting the petition which was submitted to
the Consumer Products Safety Commission by Pollack]Nelson. Smithfs report
confirms that he spent many days reviewing hunter accident data while on that
committee. While Smith does have some experience evaluating hunting stand
safety data, there is no evidence before the Court that he has any special
education, experience, or training to qualify him to evaluate the methodology of
the Deer and Deer Hunting survey. Smithfs testimony on that point is excluded.
The Court concludes that Smith is not qualified to testify regarding
engineering, product design, or the reliability of survey evidence. Smith is
qualified to testify about hunter safety, hunting product industry practices, and
safety issues. He will be allowed to demonstrate the use of the Tree Stand. Smith
will be permitted to testify regarding Finkefs assertion that he did not tether his
harness to the tree out of concern that the tether would become pinched in the
teeth of the tree stand. Based on his knowledge of the hunting stand market,
Smith will also be allowed to testify regarding when alleged alternative designs
became available on the market, as well as the alleged fact that designs similar to
Hunterfs Viewfs design remain on the market now. Smith is also permitted to
testify regarding his observations of the tree from which Finke fell. Overall, his
trial testimony will be limited to hunter safety, hunting product industry
practices, and safety issues.
6. Thomas Crane
a. Summary of Cranefs Expert Opinion
Plaintiffsf expert, Thomas R. Crane, P.E., is a mechanical engineer. Crane
examined the Tree Stand, other Hunterfs View deer stands, and other similar
deer stands. He also reviewed discovery evidence from this case and met with
Finke. Crane tested an exemplar Hunterfs View climbing tree stand to evaluate
what would occur if the swage was wedged behind the pin. Crane could not
replicate the type of failure Finke believes occurred. Crane opined that he could
not rule out the possibility that Finkefs scenario occurred, but testified that, based
on the physical evidence, he did not believe that the accident could have
happened that way.
Crane opines that there are two possible explanations for the failure of the
Tree Stand. In the first scenario, based on Finkefs recollection, Finke put the
locking pin in front of the swage, instead of through the cable loop, during his
initial assembly before he climbed the tree. The swage was wedged by the pin
such that Finke was supported as he climbed the tree, but when he reached the
top of the tree, it released completely and the stand released, causing the
In the second scenario, which Crane opines is probable, Finke climbed to
the top of the tree and then chose to adjust the length of the seat cable by
releasing and resetting the cable. When he reset the cable, Finke thought that the
pin was locked through the cable loop. However, the pin was not placed through
the loop, and the seat cable released from the tree. Crane opines that it is
foreseeable that a hunter would choose to adjust the seat securing cable at the top
of the tree, and notes that there is no way to adjust the cable length to
accommodate a change in tree diameter without removing the pin and cable and
replacing the pin into different lock holes. Crane opines that the Tree Stand is
defective and unreasonably dangerous because the locking mechanism for the
quick clip pin is not visible to the user, as it is in multiple competing brands of
deer stands.
b. Admissibility of Opinion Regarding the First Scenario
Defendants assert that Cranefs opinion regarding the first scenario, which
comports with Finkefs theory of how the accident occurred, is so fundamentally
unsupported that it offers no assistance to the jury. Cranefs own testing
eliminates the first scenario as a plausible explanation. Crane testified that there
might be some way for the first scenario to have occurred, but has offered no
explanation. Cranefs testimony regarding the first scenario is, therefore, pure
speculation. The reasoning underlying Cranefs opinion regarding the first
scenario has no scientifically valid reasoning. Crane is relying upon the
testimony of Finke. Finke is permitted to testify regarding his recollection, but
Crane offers no helpful expertise by merely repeating Finkefs theory. The testing
performed by experts for both Plaintiffs and Defendants demonstrated that if the
cable loop was not properly engaged and the swage fitting was wedged behind
the pin, the cable would break before the swage became disengaged.
Furthermore, it is undisputed that the swage fittings and tube on the Tree Stand
were undamaged.
The Court concludes that any testimony by Crane that the first scenario
occurred is unreliable and unhelpful. Cranefs opinion regarding the first
scenario was tested, but was not supported by his testing. There is no evidence
of peer review or publication regarding the possibility of the first scenario. Nor is
there evidence of general acceptance in the relevant community of the possibility
of the first scenario. Finally, Crane has no explanation of how the first scenario
could have occurred.
c. Admissibility of Opinion Regarding the Second Scenario
Defendants argue that Cranefs opinion regarding the second scenario for
how the accident occurred is inadmissible because it disregards Finkefs
deposition testimony and relies on Cranefs own speculative theory about how
the accident could have happened. However, Cranefs own theory is not
speculative. It is based on his examination of the physical evidence and, in fact,
is in accord with the theory of the defense experts.
The Court holds that Cranefs expert opinion is not inadmissible simply
because his second scenario is in conflict with Finkefs personal belief about what
happened during a sudden and traumatic accident. There is no requirement that
Crane is bound by Finkefs testimony . particularly when experts on both sides
conclude that Finke is mistaken in his version of events. An expert need not
agree with the fact testimony of a party. Lauzon v. Senco Prods., Inc., 270 F.3d
681, 696 (8th Cir. 2001). In fact, gthe independence of [Cranefs] testimony is
demonstrated by its seeming contradiction with that of [Finke].h Id. at 692
(citation omitted). Crane arrived at his opinion through the careful use of his
unquestioned expertise, his examination of the Tree Stand, and his scientific
testing. The jury will address the accuracy of Finkefs recollection of the accident.
As in Lauzon, g[a] jury could readily find that [Finke]fs recollection may have
been clouded by the suddenness of the accident.h Id. at 695 n.8.
Having arrived at his well]supported causation opinion, that Finke
incorrectly thought that he had inserted the pin through the loop while at the top
of the tree, Crane was then legitimately able to opine that the Tree Stand was
defectively designed because it did not alert the user whether the quick clip pin
was properly inserted through the cablefs loop. Based on Cranefs second
scenario, he opines that the absence of a visual confirmation from the locking
system contributed to the accident. Thus, his opinion that the Tree Standfs
locking system was defectively designed is relevant and reliable.
d. Opinion Regarding Alternative Design for Cable
Defendants assert that Cranefs opinion that the Tree Stand was
unreasonably dangerous because it did not allow the user to adjust the cable
length without detaching the cable is inadmissible. He opines that g[a] safe and
efficacious method of adjusting the girth length of the cables would obviate the
need for the user to choose between climbing down and back up or disconnecting
the cable while elevated.h (Crane Report at 5.) Crane has not sketched, designed
or constructed a mechanism that would allow for adjustment of the cable while
up a tree without detaching the cable. There is no evidence that Crane tested
such a proposed alternative design. He has not identified any existing products
that use such an alternative design and cites no peer reviewed literature to
support his criticism of that aspect of the Tree Stand design. In contrast, Crane
testified regarding five exemplars from competing brands that contained the
visual locking mechanism that he recommends.
As previously noted, an expert who proposes safety modifications to a
product must demonstrate by some means, whether by a drawing, reference to
exemplars, or some other manner of explanation, that the proposed modification
would protect the user without interfering with the productfs utility. See, e.g.,
Unrein, 394 F.3d at 1012. Because Crane makes no attempt to explain how his
proposed modification of the cable system to allow adjustment without
unlocking would work, the Court excludes his testimony regarding that
proposed modification.
7. Carol Pollack]Nelson
a. Summary of Pollack]Nelsonfs Expert Opinion
Plaintiffsf expert Carol Pollack]Nelson, Ph.D., a human factors
psychologist, opines regarding the design of the Tree Stand, the foreseeability of
Finkefs failure to wear the safety harness, the adequacy of the design of the safety
harness, and the adequacy of the warnings. She opines that the Tree Stand was
defectively designed because it did not permit Finke to visually see whether the
quick clip pin was properly engaged, giving him a false sense of security. She
also opines that the on]product safety warnings were inadequate and improperly
placed so that it was difficult for someone in Finkefs position to read them.
Finally, she opines that the Tree Standfs chest safety harness was inadequate.
b. Opinion Regarding False Secure
Defendants dispute the relevancy of Pollack]Nelsonfs opinion that the Tree
Stand was defectively designed because it allowed a false secure when the swage
was wedged behind the pin. Pollack]Nelson could not recall if she was able to
wedge the swage behind the pin. She did not analyze the amount of weight that
the Tree Stand could bear if the swage was wedged in that position. She
admitted that Crane has the more appropriate credentials to do a mechanical test
to evaluate the load strength of the Tree Standfs cable.
Also, Pollack]Nelson opines that the Tree Stand should have been
designed differently so that the connection was visible, but does not have any
particular design in mind because she does not gdo designing of products.h
(Pollack]Nelson Dep. 96.)
Pollack]Nelson also opined that if Finke had not engaged the quick clip pin
at all in front of the swage or through the loop, then the Tree Stand would not
have stayed up in the tree and there would be no resistance. Defendants assert
that, therefore, the false secure theory is not tenable.
The Court agrees that, based on Pollack]Nelsonfs own testimony, she is not
qualified to give an opinion regarding whether this accident occurred on the
ground or up the tree. However, her opinion regarding the false secure that
could occur due to the lack of a visual locking system is relevant. Pollack]Nelson
testified that whether the user received a false secure while on the ground or
disengaged the quick clip while at the top of the tree, because the quick clip]loop
connection is a critical component, there should still be some sort of visual
confirmation that the connection has been correctly made. Additionally,
Defendantsf objection to her opinion that, based on Finkefs recollection of the
event, he received a false secure while climbing the tree, is an objection to the
factual basis for her opinion. Generally, the factual basis of an expertfs opinion
goes to the credibility of the expertfs testimony, not the admissibility of the
testimony. Any weaknesses or inconsistencies in her testimony on this matter
will be subject to vigorous cross examination.
As to Pollack]Nelsonfs lack of an alternative design for a locking
mechanism with a visual confirmation, the Court agrees that Pollack]Nelson
cannot suggest a safety modification without some sort of explanation as to how
it would work with the product at hand. In contrast, Crane has provided
exemplars of visually confirming locking mechanisms. However, as a human
factors psychologist, Pollack]Nelson is qualified to testify regarding a userfs
general need for confirmation by multiple senses, particularly vision, in a critical
c. Opinion Regarding Safety Harness
Pollack]Nelson opines that the chest harness that Hunterfs View provided
with the Tree Stand was inadequate and inconvenient and that Hunterfs View
should have provided a full body harness. She reasons that a chest harness
allows for asphyxiation if a user falls and hangs while wearing the chest harness,
while a full body harness substantially reduces the risk of asphyxiation.
Defendants argue that Pollack]Nelsonfs opinions regarding an alternative
harness design are irrelevant because Finke admitted that he did not tether the
harness. Defendants claim that whether or not there was an alternative design
would not have prevented the accident, so there is no causal connection between
any potential deficiency in the Tree Standfs harness and Finkefs injury.
Pollack]Nelsonfs recommendation for a full body harness is relevant
because her opinion directly responds to Bakkenfs opinion that Finke assumed a
risk of injury by not using the chest safety harness as directed by the product
manual. Pollack]Nelsonfs testimony supports Plaintiffsf argument that Finkefs
failure to use the harness as directed was a foreseeable misuse of the product.
Pollack]Nelsonfs opinion explains why a user in Finkefs position would choose to
ignore Hunterfs Viewfs warning and not use the chest safety harness.
d. Opinion Regarding Adequacy of the Warnings
Defendants note that Pollack]Nelsonfs report makes no reference to the
warnings in the Tree Standfs instruction manual. She testified that she offered no
opinions on the adequacy of those instructions because Finke did not have the
manual with him at the time of the accident and because he testified that he read
and understood the manual. She also testified that the manualfs warning to not
remove the quick clips while on the tree was clear. Finke testified that the Tree
Standfs warning regarding wearing the harness was clear.
Defendants also argue that Pollack]Nelsonfs opinions regarding
inadequate warnings fail because she fails to provide alternative warnings and
did not testify that other manufacturers use better warnings.
The Court holds that Pollack]Nelsonfs opinions regarding the adequacy of
the on]product warnings are admissible. Pollack]Nelson does specify where an
adequate label should be located and what information should be included in the
on]product warning . that the harness should be tethered during climbing,
hunting, and descending. Any weaknesses in her opinions based on her failure
to address the warnings in the Tree Standfs manual and on her lack of detail in
describing a more adequate warning can be addressed during cross examination.
e. Opinion Regarding Foreseeability of Finkefs Actions
Pollack]Nelson opines that, if Finke unlocked the pin to adjust the seat
cable while he was in the air, that was a foreseeable misuse of the Tree Stand.
Defendants argue that this opinion is speculative because Pollack]Nelson
testified that she was not aware of anyone sustaining an injury from intentionally
removing a locking pin from a hunting stand while up a tree.
Pollack]Nelsonfs opinion is not speculative. She based her opinion on her
own experience with portable tree stands and the fact that trees generally taper as
the user climbs. If the user does not correctly estimate the taper, the seat portion
of the stand may be unsafely sloped once the user reaches the desired height.
Pollack]Nelson reasons that it is foreseeable that a user will not then return to the
ground to readjust the cable and climb the tree again, but will, instead, stand on
the platform and detach the seat and attempt to readjust it while on the tree.
Defendants can test Pollack]Nelsonfs theory through cross examination.
B. Motions for Summary Judgment
1. Standard
Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non]moving party, there is no genuine issue as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322]23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. Summary judgment is only appropriate
when gthere is no dispute of fact and where there exists only one conclusion.h
Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (citation omitted).
2. Whether Wal]Mart Sold the Deer Stand
Wal]Mart claims that Plaintiffs cannot prove that Wal]Mart sold the Tree
Stand at issue in this case. Wal]Mart notes that g[a] plaintiff may not merely
point to unsupported self]serving allegations, but must substantiate his
allegations with sufficient probative evidence that would permit a finding in his
favor.h Bass v. SBC Commcfns, Inc., 418 F.3d 870, 872]73 (8th Cir. 2005) (citation
omitted). Wal]Mart claims that the evidence presented by Plaintiffs consists
merely of Finkefs unsupported allegation that he bought the Tree Stand at
Finke claims that he bought the Tree Stand at the Wal]Mart located in
Grand Rapids, Minnesota sometime in July or August 2002. According to Finke,
he paid approximately 0 for the deer stand. He admits that he no longer has a
receipt of his purchase. Finke does claim to have in his possession check registers
from the relevant time period written out to Wal]Mart for approximately 0.
Justin Finke testified that he bought his Hunterfs View tree stand, which is
a different model than the Tree Stand in this case, at Wal]Mart because, before the
accident occurred, D.J. Finke told him that he bought his Tree Stand at Wal]Mart.
Wal]Mart asserts that it never sold, marketed or distributed the HV
ATC]4000 Eagle model tree stands manufactured by Hunterfs View. Wal]Mart
relies upon the affidavit Jim Scantlin, Wal]Martfs Senior Director of Enterprise
Information Management. Scantlin avers that he reviewed Wal]Martfs business
records and the records reflect that Hunterfs View did not supply the HV ATC]
4000 Eagle tree stand to Wal]Mart. The records do reveal that Hunterfs View did
supply a number of other tree stand models to Wal]Mart. Hunterfs View does
not dispute Wal]Martfs assertion that Hunterfs View did not sell the Eagle model
tree stand to Wal]Mart. From this evidence Wal]Mart concludes that it is
impossible for Finke to have purchased the Tree Stand from Wal]Mart.
The Court denies summary judgment on the issue of whether Wal]Mart
sold the Tree Stand to Finke. Plaintiffs have submitted admissible evidence that
Finke purchased the stand from Wal]Mart . Finkefs own testimony and the
corroborating testimony of his brother regarding Finkefs prior consistent
statement that Finke purchased the Tree Stand at Wal]Mart, made before he had
an incentive to be untruthful about the source of the Tree Stand. Moreover,
Wal]Mart admittedly sold some Hunterfs View products and the testimony from
Hunterfs View representatives regarding their sales to Wal]Mart are far from
certain. Plaintiffs have submitted more than unsupported, self]serving
allegations to support their claim that Finke purchased the Tree Stand from Wal]
Mart. Either Wal]Mart is mistaken or Finke is mistaken. The dispute between
Plaintiffs and Wal]Mart is precisely the type of genuine issue of material fact that
must be decided by the factfinder.
3. Non]Manufacturer Liability for Strict Liability Claim
Wal]Mart argues that, even if Finke purchased the Tree Stand at its store,
his strict liability claims fail as a matter of law because Hunterfs View is able to
satisfy any judgment against it and Wal]Mart did not participate in the design or
manufacture of the stand.
a. Standard
Under Minnesota law, non]manufacturers are generally not held strictly
liable for the sale of defective products. As applicable in this case, in order to
maintain a strict liability claim against a non]manufacturer seller of a defective
product, a plaintiff must establish gthat the manufacturer is unable to satisfy any
judgment as determined by the court.h Minn. Stat. 544.41, subd. 2(d). gThe
sellerfs]exception statute, Minn. Stat. 544.41, tempers the harsh effect of strict
liability as it applies to passive sellers, while ensuring that a person injured by a
defective product can recover from a viable source.h In re Shigellosis Litig., 647
N.W.2d 1, 6 (Minn. Ct. App. 2002). However, g[d]ismissal is not appropriate if
the plaintifffs action cannot reach a manufacturer or the manufacturer is
insolvent.h Id. at 7 (citation omitted).
Even if the plaintiff is unable to show that the manufacturer cannot satisfy
any judgment, the Court still cannot dismiss the non]manufacturer if the plaintiff
a) that the defendant has exercised some significant control over the
design or manufacture of the product, or has provided instructions
or warnings to the manufacturer relative to the alleged defect in the
product which caused the injury, death or damage;
(b) that the defendant had actual knowledge of the defect in the
product which caused the injury, death or damage; or
(c) that the defendant created the defect in the product which caused
the injury, death or damage.
Minn Stat. 544.41, subd. 3.
b. Hunterfs Viewfs Insolvency
Wal]Mart claims that Plaintiffs have failed to show that Hunterfs View is
unable to satisfy a judgment or potential settlement. Wal]Mart argues that,
because Hunterfs View possess an insurance policy providing liability coverage,
the company is still able to satisfy any judgment against it. Wal]Mart provides
no evidence of the details of this liability coverage or proof that the insurance
coverage would apply in this case.
Based on the facts in the record, the Court concludes that Plaintiffs have
shown that Hunterfs View is unable to satisfy any judgment against it. As the
Shigellosis court noted, g[d]ismissal is not appropriate if . . . the manufacturer is
insolvent.h 647 N.W.2d at 7. Hunterfs Viewfs is in Chapter 7 bankruptcy: it is
insolvent and, unlike a Chapter 11 bankruptcy, a Chapter 7 bankruptcy results in
liquidation. See Marcon v. Kmart Corp., 573 N.W.2d 728, 731 (Minn. 1998)
(holding non]manufacturer strictly liable for injuries caused by the sale of a
defective product because manufacturer declared bankruptcy before the lawsuit
was brought). Moreover, even if liability coverage were sufficient to satisfy the
statute, Wal]Mart has provided the Court no evidence from which the Court
could make a determination regarding whether any insurance coverage would
satisfy a judgment against Hunterfs View. Wal]Martfs motion for summary
judgment based on 544.41, subd. 2, is denied.
c. Wal]Martfs Role in the Design
Wal]Mart also asserts that none of the three exceptions in subdivision 3
apply because there is no evidence that it was anything other than a passive
Viewing the facts in the light most favorable to Plaintiffs, there is evidence
that Wal]Mart had a role in the manufacture of the Tree Stand in that Wal]Mart
conducted quality control checks at Hunterfs Viewfs Chinese plant. For example,
Wal]Mart would check the gauge and hardness of the materials being used and
check whether all of the parts were placed into the boxes for shipping. However,
Plaintiffs have not asserted a manufacturing defect in this case. Instead, Plaintiffs
claim that the Tree Stand was defectively designed. There is no evidence that
Wal]Mart was involved in the design of the Tree Stand. In fact, the evidence
shows that Hunterfs View merely copied other companiesf tree stands and used
unidentified Chinese engineers to complete its designs. Because, at most, Wal39
Mart had some control over the manufacturing of the Tree Stand, but only a
design defect is alleged, Minnesota Statute 544.41, subdivision 3(a) does not
apply. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 731 (Minn. 1990) (holding
that, even if the seller had gexercise[d] . . . significant control over the
manufacture of the [product],h there was no liability under 544.41, subdivision
3, when the sellerfs gmodifications did not create the defect causing injuryh)
(citation omitted); see also Leedahl v. Rayco Mfg., Inc., Civil No. 06]310
(JNE/JJG), 2006 WL 1662959, at *2 (D. Minn. May 15, 2006) (gBecause [the seller]
did not participate in the design of the stump cutter, the only defects for which
[the seller] may be potentially liable are manufacturing flaw and failure to
warn.h), adopted by Civil No. 06]310 (JNE/JJG), 2006 WL 1698645 (D. Minn. June
14, 2006).
There is no evidence that Wal]Mart provided instructions or warnings
relative to the alleged defects in the Tree Stand. Nor is there evidence that Wal]
Mart had actual knowledge of the Tree Standfs alleged defects. Finally, there is
no evidence that Wal]Mart created the alleged defects. None of the factors under
544.41, subdivision 3, apply to Wal]Mart.
4. Negligence
As the Court has noted, there is no evidence that Wal]Mart had any control
over the design of the Tree Stand or provided instructions or warnings related to
the alleged defect. There is no allegation of a manufacturing defect in this case.
Therefore, Plaintiffsf negligence claim against Wal]Mart fails.
5. Breach of Warranty Against Wal]Mart
Wal]Mart argues that Plaintiffs have failed to introduce any evidence of
express or implied warranties supplied by Wal]Mart regarding the Tree Stand.
There is no evidence of any express statements or representations by Wal]
Mart regarding the Tree Stand, and g[s]trict products liability has effectively
preempted implied warranty claims where personal injury is involved.h
Masepohl v. Am. Tobacco Co., Inc., 974 F. Supp. 1245, 1253 (D. Minn. 1997)
(citations omitted). Plaintiffsf breach of warranty claim against Wal]Mart is
6. Statute of Limitations for Breach of Warranty
Hunterfs View argues that Plaintiffsf breach of warranty claim is
time]barred. Minnesota Statute 336.2]725, subdivision 1, provides that g[a]n
action for breach of contract for sale must be commenced within four years after
the cause of action has accrued.h gA cause of action accrues when the breach
occurs, regardless of the aggrieved partyfs lack of knowledge of the breach. A
breach of warranty occurs when tender of delivery is made . . .h Minn. Stat.
336.2]725, subd. 2.
Finke testified that he bought the Tree Stand in July or August of 2002.
Based on the record before the Court, this lawsuit commenced in September 2007.
According to Hunterfs View, the original lawsuit commenced in July 2007.
Plaintiffs have not addressed the statute of limitations issue. However, even
taking the earlier date set forth by Hunterfs View, this lawsuit began more than
four years after August 2002, and Plaintiffsf breach of warranty claim must be
7. Remaining Motions for Summary Judgment
The Court has limited some of the testimony of the proposed expert
witnesses, but it has not wholly excluded any of the proposed witnesses. None
of the parties are entitled to summary judgment based on the Courtfs resolution
of their various Daubert motions.
Accordingly, based upon the files, records, and proceedings herein, IT IS
1. Plaintiffsf Motion to Exclude Experts L.J. Smith and Nathan Dorris
and for Partial Summary Judgment [Docket No. 35] is GRANTED
IN PART and DENIED IN PART as follows: The expert testimony
of Nathan Dorris, Gary Bakken, and Lorne Smith, Jr., is limited as set
forth above in the Memorandum of Law.
2. Defendant Wal]Mart Stores, Incorporatedfs Motion for Summary
Judgment [Docket No. 39] is GRANTED IN PART and DENIED IN
PART as follows:
a. Count One: Strict Liability, as to Wal]Mart, REMAINS.
b. Count Two: Negligence, as to Wal]Mart, is DISMISSED.
c. Count Three: Breach of Warranty, as to Wal]Mart, is
d. The expert testimony of Thomas Crane and Carol Pollack]
Nelson is limited as set forth above in the Memorandum of
3. Defendant Hunterfs View, Ltd.fs Motion to Exclude Certain Expert
Testimony and for Summary Judgment [Docket No. 46] is
a. The expert testimony of Thomas Crane and Carol Pollack]
Nelson is limited as set forth above in the Memorandum of
b. Count Three: Breach of Warranty, as to Hunterfs View, is
Dated: February 3, 2009 s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court


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