Thompson Coburn continues to exclude plaintiffs’ expert witnesses in personal watercraft products liability litigation

Rick Mueller

Heather Counts

Late last week the Thompson Coburn Products Liability team of Rick Mueller, Heather Counts and Jeaniene Dickey secured yet another win for Yamaha, continuing a series of victories on the critical issue of excluding plaintiffs’ expert witnesses. 

In the most recent case, Ruggerio v. Yamaha Motor Corporation, U.S.A., pending in the U.S. District Court for the District of New Jersey, the Thompson Coburn team succeeded in excluding the plaintiff’s expert in product safety management, William Kitzes, a former employee of the U.S. Consumer Product Safety Commission. Kitzes, who has testified more than 500 times, intended to tell the jury in this case that the plaintiff’s injuries were caused by allegedly inadequate warning labels on a Yamaha FZR WaveRunner personal watercraft. The plaintiff, however, testified that she had not read the Yamaha warnings. 

Yamaha filed a motion to exclude Kitzes, which was argued by Rick Mueller. On March 31, 2017, the federal district court granted Yamaha’s motion and issued a 35-page opinion agreeing that the expert’s testimony was inadmissible. Although the federal court found Kitzes “has at least the minimum of education, training and experience to testify about warning labels generally,” it held that Kitzes’ warnings opinions were unreliable for a number of reasons outlined in Thompson Coburn’s briefs, including the absence of testing. 

Ruling that Kitzes’ warnings testimony was unreliable and, thus, inadmissible, the Federal Court cited another recent case handled by the same Thompson Coburn team (with assistance from Allison Manger), Hickerson v. Yamaha Motor Corp., U.S.A., 2016 WL 4367141 (D.S.C. Aug. 16, 2016). In the Hickerson case, where another plaintiff’s expert — Dr. Anand Kasbekar, an engineer — sought to opine that Yamaha’s warnings system was inadequate (and the plaintiff, again, had not read or followed the relevant warnings), a federal district court granted Yamaha’s motion that made clear that the expert failed to support his warnings opinions with testing, relevant research or studies. The federal court in Ruggerio described the Hickerson ruling as “persuasive” authority, and excluded Kitzes, stating that Kitzes also lacked the testing and other support necessary to testify regarding Yamaha’s warnings. 

This decision in Ruggerio is one in a series of successful efforts by this Thompson Coburn Products Liability team to exclude plaintiffs’ expert witnesses pre-trial, regarding both warnings and design defect theories.