ORDER ON PENDING MOTIONS
THIS MATTER comes before the court on (1) Defendant Mountain Man, Inc.’s (“Mountain Man”) Motion for Summary Judgment on Plaintiffs Sixth, Seventh, Eighth and Ninth Claims for Relief (doc. # 58), filed on January 14, 2011; (2) Defendant Mountain Man, Ine.’s Motion to Exclude Plaintiffs Expert Testimony Pursuant to F.R.E. 702 (doc. # 87), filed on June 6, 2011; and (3) Defendant Breckenridge Outdoor Education Center’s (“BOEC”) Motion to Strike and/or Limit Plaintiffs Experts Bil Hawkins and Stanley Gale Under Fed.R.Evid. 702 and Daubert (doc. #88), filed on June 6, 2011.
Plaintiff Kimberly Squires filed her Response to Defendant Mountain Man, Inc.’s Motion for Summary Judgment (doc. # 68) on February 4, 2011, as well as a Supplemental Memorandum Brief in Response (doc. # 83) on May 26, 211. Ms. Squires responded (doc. # 102) to Defendant Mountain Man’s Motion to Exclude Plaintiff’s Expert Testimony ón June 30, 2011, and filed her Response to Defendant BOEC’s Motion to Strike and/or Limit (doc. # 97) on June 27, 2011. Defendant Mountain Man filed a Reply Brief (doc. # 71) in support of its Motion for Summary Judgment on February 18, 2011 and a further Supplemental Memorandum Brief (doc. # 78) on May 5, 2011. Defendant BOEC submitted a Reply to Motion to Strike and/or Limit (doc. # 105) on July 11, 2011.
On September 16, 2010, the above-captioned case was referred to this court to handle all dispositive matters including trial and entry of a final judgment in accordance with 28 U.S.C. § 636(c), Fed. R.Civ.P. 73, and D.C.COLO.LCivR 72.2. I have reviewed the instant motions, the related briefs and exhibits, the arguments presented during hearings on July 20, 2011 and October 20, 2011, and the entire case file.
PROCEDURAL BACKGROUND
This action arises out of a ski accident that occurred at Breckenridge Ski Resort, Colorado on February 13, 2008. The basic facts are not in dispute. At the time of the incident, Kimberly Squires was 17 years old, with disabilities that include legal blindness, cognitive developmental delay and cerebral palsy. Breckenridge Outdoor Education Center is a nonprofit Colorado corporation that provides outdoor experiences for people with disabilities. On the day in question, Jennifer Phillips was employed by BOEC as an adaptive ski instructor and paired-with Ms. Squires, and Jim Trisler, a BOEC volunteer who was assigned to assist Ms. Phillips as a “blocker.” Ms. Squires was placed in a bi-ski, the FFS Dual Ski, manufactured by Mountain Man, Inc., which Ms. Phillips controlled from behind using tethers attached to her wrist. Ms. Squires and Ms. Phillips started their day on Peak 9 at Breckenridge Ski Resort and skied without incident down Bonanza, a designated “blue” or intermediate ski trial. On their second run of the day, Ms. Squires and Ms. Phillips proceeded down Cashier trail, another “blue” ran. At some point, James Goodwin who also was skiing down Cashier lost control and crossed into the tethers linking Ms. Phillips and the bi-ski containing Ms. Squires. The force of the collision with Mr. Goodwin caused Ms. Phillips to lose control of the tethers and therefore con
Ms. Squires filed her initial Complaint (doc. # 1) on February 12, 2010, asserting diversity of citizenship jurisdiction and alleging four claims for relief against Defendant Goodwin and one claim against BOEC. She filed her First Amended Complaint (doc. # 5) on April 15, 2010, adding four claims against the newly joined Defendant Mountain Man. Ms. Squires refiled her First Amended Complaint (doc. # 11) on April 19, 2010 pursuant to a request from the Clerk of the Court. Plaintiffs Second Amended Complaint (doc. # 13), the current operative pleading, was filed on June 2, 2011. The First, Second, Third, and Fourth Claims for Relief against Defendant Goodwin allege negligence per se under the Ski Safety Act, Colo.Rev.Stat. § 33-44-109(2) and common law negligence. Ms. Squires’ Fifth Claim for Relief alleges willful and wanton, reckless, and/or gross negligence against Defendant BOEC. Ms. Squires’ Sixth, Seventh, Eighth, and Ninth Claims for Relief allege strict products liability, breach of implied warranty of fitness and/or merchantability, common law negligence, and breach of express warranty against Defendant Mountain Man. Mountain Man has moved for summary judgment as to Plaintiffs Sixth, Seventh, Eighth and Ninth Claims for Relief.
Defendants have separately moved to strike and/or limit at trial the expert opinions proffered by Ms. Squires’ retained experts, Bil Hawkins
I. Defendants’Motions to Strike
In its motion to strike, Defendant Mountain Man argues that Plaintiffs expert, Stanley Gale, is not qualified to render any opinions regarding the design or manufacture of the FFS Dual Ski. Mountain Man further contends that Mr. Gale’s proposed opinions regarding design defects and deficient product warnings or instructions do not rest on a reliable foundation or the application of a valid methodology as required by Fed.R.Evid. 702 and the Supreme Court’s analysis in Daubert.
Plaintiff Squires argues in opposition that Rule 702 must be applied liberally and that Mr. Gale’s opinions should be permitted because they would be “helpful to the trier of fact.” According to Plaintiff, Mr. Gale is “qualified to proffer his opinions” based upon his “knowledge, skill, experience and training as a ski patrol officer of
BOEC’s motion raises very similar arguments, suggesting that Mr. Gale’s background in ski safety and ski accident reconstruction is limited to alpine skiing and does not qualify him to offer expert opinions relating to adaptive skiing standards or practices. While acknowledging Mr. Gale’s “Level I Alpine Certification,” Defendant BOEC contends that Mr. Gale’s lack of “specialized knowledge in the area of adaptive skiing” leaves him wholly unqualified and calls into question any opinions he might offer regarding Ms. Phillips, Mr. Trisler, and BOEC. See BOEC’s Motion to Strike and/or Limit Plaintiffs Experts (doc. # 88), at 25.
In response, Plaintiff insists that Mr. Gale’s opinions will assist the jury. Plaintiff argues that Mr. Gale’s accumulated experience as a ski instructor and ski patrol member, coupled with his Level I Alpine certification, qualifies him to offer expert opinions on ski terrain selection, methods for guiding incapacitated individuals down off a mountain using a sled, and the use of knots in context of skiing-related activities. See Plaintiffs Response to Defendant BOEC’s Motion to Strike and/or Limit Plaintiffs Experts (doc. # 97), at 12-13.
This court held a Daubert hearing on October 20, 2011, at which time the court received testimony from Mr. Gale ¡and Ruth Ann DeMuth, an expert in the field of .adaptive skiing proffered by Defendant BOEC, as well as related exhibits. In discharging its obligations under Fed. R.Evid. 702, the court has considered this information, as well as the legal arguments presented in the parties’ briefs and during the October 20 hearing.
Rule 702 of the Federal Rules of Evidence provides that:
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.
By its very terms, Rule 702 imposes three requirements for the admission of expert testimony. First, the expert must be qualified by specialized knowledge, skill, experience, training or education to testify on the subject matter of his or her testimony. Second, the testimony must be “ ‘based upon sufficient facts or data,’ ‘the product of reliable . principles and methods;’ and the product of the reliable application of these principles and methods to the facts of the case.” Cook v. Rockwell International Corp.,
The proponent of expert testimony has the burden of establishing the admissibility of the expert’s opinions under Rule 702 by a preponderance of the evidence. In re Breast Implant Litigation,
Rule 702 does not impose an “overly rigorous” requirement of expertise, recognizing that specialized knowledge may be acquired through a broad range of experience, skills or training. See United States v. Velasquez,
However, the “qualification” element of Rule 702 is not insignificant and must be satisfied as an essential prerequisite for the admissibility of the expert’s opinions. “[T]he witness is ‘required to possess’ such skill, experience or knowledge in that particular field as to make it appear that his opinion would rest on substantial foundation and would aid the trier of fact in his search for truth.’ ” Markham v. BTM Corp.,
The court understands that Mr. Gale has been accepted as an expert witness in other cases. However, “[t]he fact that a person spends substantially all of [his] time consulting with attorneys and testifying at trials is not a disqualification, but it is not an automatic qualification guaranteeing admission of expert testimony.” Tokio Marine & Fire Insurance Co. v. Grove Manufacturing Co.,
This is because “when assessing expert testimony, ‘the question before the trial court [i]s specific, not general.’ ” “The issue with regard to expert testimony is not the qualifications of a witness in the abstract, but whether those qualifications provide a foundation for a witness to answer a specific question.”
Id. (quoting Berry v. City of Detroit,
A. Mr. Gale’s Opinions Regarding Defendant Mountain Man
After carefully reviewing Mr. Gale’s expert report and his professional background, I conclude that Mr. Gale lacks sufficient knowledge, skill, experience, training or education to qualify as an expert in the areas of product design and manufacture, and product warnings and labeling. Cf. Magoffe v. JLG Industries, Inc.,
Mr. Gale has never been employed by a company that designs or manufactures ski equipment for disabled skiers, and apparently has never designed an adaptive ski himself. Mr. Gale’s curriculum vita does not list any formal training in the areas of product design, manufacture or risk assessment. There is no indication that Mr. Gale has ever written or designed product warning labels or instructions. To the extent this witness’ proffered opinions on product design, manufacture and warnings fall well outside his area of expertise, those unqualified opinions could not assist the jury as required by Rule 702. As one court has noted
[T]o testify that a challenged product is defectively designed ... [t]he expert [must] be qualified to testify that the utility of the alternative design outweighs the utility of the challenged design, and that use of an alternative design would have eliminated or reduced the injuries suffered. To be qualified to evaluate the utility of a design, the witness must be proficient at evaluating such factors as the intended use of the product, its styling, cost, and desirability, its safety aspects, the foreseeability of the particular accident, the likelihood of injury, and the probable seriousness of the injury if that accident occurred, the obviousness of the defect, and the manufacturer’s ability to eliminate the defect.
Beam v. McNeilus Truck and Manufacturing, Inc.,
The lack of appropriate qualifications necessitates the granting of Defendant Mountain Man’s motion to exclude. However, as an alternative ground for granting the requested relief, I also find that Mr. Gale’s challenged opinions fail to satisfy Rule 702’s “reliability” requirement.,
Although an expert witness is permitted wide latitude in offering opinions, including those. which are not based on first-hand knowledge or observation, the opinions must have a reliable basis. Under Rule 702, admissible expert testimony must be based on “actual knowledge and not ‘subjective belief or unsupported speculation.’ ” Mitchell v. Gencorp, Inc.,
In addressing the principles enunciated in Daubert, the Tenth Circuit has recognized proposed expert testimony must be supported by “appropriate validation — ie., ‘good grounds,’ based on what is known,” ... The plaintiff need not prove that the expert is indisputably correct or that the expert’s theory is “generally accepted” in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.
Mitchell,
No single factor should be considered dispositive in weighing the reliability of an expert’s opinions. Ruiz-Troche v. Pepsi Cola of Puerto Rico,
4.1 With regards to Mountain Man:
• Without any safety warning, instructional booklet, video, or onsite safety training or on snow demonstration workshop, BOEC was apparently left to establish its own safety procedures for using the bi-ski. It was feasible and practical for Mountain Man to provide the aforementioned.
• There was no “dead man’s” safety breaking device such as found on ski patrol toboggans and other equipment used as ski areas.
In the “Summary” portion of his report, Mr. Gale concluded, in pertinent part, that
5.1 Mountain Main, as a national supplier for adaptive sports centers, was in a position that it knew or should have known that if the bi-ski with fixed outriggers became free and detached from the instructor, there was a serious and dangerous potential for injury to the skier and the public. There was no justifiable excuse to sell and distribute the bi-ski without instructions for safe tethering or without some sort of braking device which would be controlled by the person strapped into the bi-ski. The plastic buckle system was inherently unsafe and not designed for powerful forces. These were the “quick release” type and not suitable safety buckles such as the standard metal restraints used in vehicles. It did not provide training for its unique and multi-faceted product.
The January 3, 2011 report is devoid of any analysis or methodology that would link the pertinent materials reviewed to the opinions and conclusions directed toward Defendant Mountain Man. Under Rule 702, admissible expert testimony must be based on “actual knowledge and not ‘subjective belief or unsupported speculation.’ ” For example, Mr. Gale’s report notes that “all of the plastic buckles on the bi-ski seat broke” upon impact with the tree and then summarily concludes, without any explanation or testing, that “the plastic buckle system was inherently unsafe and not designed for powerful forces.” But see In re Trasylol Products Liability Litigation,
Similarly, Mr. Gale alludes to the possibility of “some sort of braking device which could be controlled by the person strapped into the bi-ski,” without further elaboration or technical analysis. Yet, “[i]f a plaintiff proposes an alternative design or an alternative warning, ... he may not merely rest on the expert’s proposal. Plaintiff must show that the alternative design or warning is feasible, adequate and effective.” McHenry,
Testing an alternative design can assist a proposed expert in considering (1) the alternative’s compatibility with existing systems, (2) relative efficiency of the current versus alternative design, (3) short and long term maintenance costs for the alternative design, (4) ability of the proposed purchaser to service and maintain the alternative design, (5) cost of installing the alternative design, and (6) change in cost of the machine.
Id. at *21.
Mr. Gale’s report does not set out the specifications for his alternative braking system, demonstrate how an alternative braking system would be feasible from a manufacturing or cost perspective, or explain how that braking system could have been employed by a passenger with Ms. Squires’ physical impairments. Cf. Early v. Toyota Motor Corp.,
Mr. Gale’s lack of any reliable basis for his “alternative braking design” opinion is apparent in the following exchange that occurred during his deposition on April 1, 2011, approximately three months after Mr. Gale unequivocally found “no justifiable excuse to sell and distribute the bi-ski ... without some sort of braking device which would be controlled by the person strapped into the bi-ski.”
Q. So you would have no idea how feasible such an idea might be to incorporate it on a bi-ski such as the Mountain Man FFS dual ski, do you?
A. Well, I do have an idea. I think that a design team of product specialists could come up with something to incorporate that existing technology into the skis that are already there.
Q. And how could they do that?
A. Well, I’m telling you that we have technology to stop and retard skis. We already possess that. There are pneumatic devices, there are buttons, there are cables such as hand brakes of cars— excuse me, of bicycles. I’m saying thatthe — something that a design team could look at and go forward with that.
A. ... I think that would be best left up to design teams to research, develop and testing, to explore that possibility. I do know there are other type of adaptive skis that have braking systems.
Q. And what type of adaptive skis that have braking systems are you aware of?
A. Let’s see if I have—
Q. Let’s talk about the Tessier tandem. That’s the only one I’m aware of.
A. There is that, then there is in— apparently, according to the Adaptive Sports Manual, fixed outriggers — pardon me, nonfixed outriggers have a bolt in part of the outrigger that is not fixed to retard the velocity of the skier using the outrigger. So I would think that the scientists and designers could come up with something to bridge that gap.
* * *
Q. And before I move on to •the next area, do you have any opinion with respect to how a braking device such as contained on the Tessier tandem device would operate on an FFS dual ski?
A. No.
Q. Because that is a pretty completely different device, isn’t it, the Tessier tandem?
A. It looks to be a different device. See Deposition Testimony of Stanley Gale, dated April 1, 2011, attached as Exhibit L to BOEC’s Motion to Strike Untimely Opinions by Plaintiffs Experts Bill Hawkins and Stanley Gale (doc. 106).
It seems quite apparent that Mr. Gale’s design opinions reflect nothing more than his subjective belief that unknown individuals with actual qualifications could “come up with something.” But see Cf. Dodge v. Cotter Corp.,
Mr. Gale also opines that Defendant Mountain Man should have provided some “safety warnings, instructional booklet, video, or onsite safety training or on snow demonstration workshop,” as well as “instructions for safe tethering.” Notably, however, Mr. Gale’s report does not speci
The cursory nature of Mr. Gale’s January 3, 2011 report, at least as it relates to the Mountain Man bi-ski, leads this court to the inescapable conclusion that the opinions directed to Defendant Mountain Man were prepared solely for purposes of this litigation and without any thought to the required elements under Rule 702. Cf. Wehling v. Sandoz Pharmaceuticals Corp.,
B. Mr. Gale’s Opinions Regarding Defendant BOEC
Defendant BOEC’s challenge to Mr. Gale’s expert testimony stands on a different footing. Distilled to its essence, Defendant’s motion argues that Mr. Gale’s qualifications are limited to alpine skiing and fall well below the level of experience with adaptive skiing attained by BOEC’s own retained expert, Ruth DeMuth. To the extent that Mr. Gale’s opinions regarding adaptive skiing protocols and teaching techniques extrapolate from his experience as an alpine skiing instructor and his ski patrol service, BOEC suggests those opinions are inherently unreliable because they are squarely at odds with Ms. DeMuth’s own assessment. Cf. Milne v. USA Cycling Inc.,
Plaintiff argues, to the contrary, that Rule 702 does not establish a particularly rigorous standard for establish an expert’s qualifications, and that Mr. Gale’s years of experience (albeit in alpine rather than adaptive skiing) qualify him to render opinions on skiing safety and the selection of appropriate terrain for ski instruction.
One example illustrates the parties’ divergent positions. In his January 3, 2011 report, Mr. Gale concluded that Ms. Phillips intentionally violated teaching protocols established by the Professional Ski Instructors of America (PSIA) when she started Ms. Squires’ bi-ski instruction on more difficult blue ski trails. According to Mr. Gale, Ms. Phillips
willfully and recklessly compromised the safety of Miss Squires by selecting more difficult ski terrain rather than a proper beginner trail and by doing so created the risk to the first time skier, Miss Squires. She intentionally elected to ski the bi-ski into a more dangerous area.... Proper terrain choice is absolutely fundamental to providing reasonably safe instruction to all skiers in lessons. Skiing techniques and the progression of the development building blocks are always taught and introduced on easy trails before they are applied to more challenging more difficult terrain.... To practice otherwise is a reckless disregard for the safety of the ski student.
Unlike his ipse dixit opinions directed toward Defendant Mountain Man, Mr. Gale’s anticipated testimony regarding BOEC draws upon his first-hand knowledge of all the ski trails at Breckenridge Ski Area, his experience as a Level I Alpine Ski instructor, and his background as a ski patrol member. Based on this experience and his review of pertinent publications, Mr. Gale concludes that alpine and adaptive skiing share an incremental approach to instruction linked to the capabilities of a particular student. As further support for his opinions, Mr. Gale cites the Adaptive Information Guide for bi-ski instruction prepared by PSIA-Rocky Mountain Region, which purports to be “based on the PSIA Alpine National Standards” and speaks of starting a novice bi-skier on “Green Terrain.” As part of his investigation in this case, Mr. Gale claims that he personally observed BOEC instructors with bi-skiers on the gentler inclines that characterize green runs near the Quicksilver Lift at the Breckenridge Ski Area. Finally, Mr. Gale notes the deposition testimony of Paul Gamber, BOEC’s Director of Operations, who acknowledged that a first-time student with Ms. Squire’s physical limitations “would start on a beginning run” and would “have to take a green run.” It is undisputed that on February 13, 2008, Ms. Squires never received any experience on a green run before being taken down the Bonanza and later the Cashier blue trails.
Ms. DeMuth, on the other hand, takes the position that Ms. Phillip’s actions on February 13, 2009 were wholly consistent with established adaptive skiing instruction protocols. Based on her 22 years of experience teaching alpine and adaptive skiing and the ten years she spent as the ski-school program manager for the Vail Adaptive Ski Program, Ms. De Muth opines that “[d]ue to the individual needs of each adaptive skier and the various types of special equipment used, the adaptive skiing progression or skiing ability does not necessarily follow the standard step-by-step progression from Level 1 to Level 7 as is true with alpine skiers.... In the case of a bi-ski, the progression moves rapidly because the bi-ski with fixed outriggers is designed to ski parallel and work with gravity.” See Affidavit of Ruth DeMuth, at ¶ 22, attached as Exhibit D (doc. # 88-3) to Defendant BOEC’s Motion to Strike and/or Limit Plaintiffs Experts. According to BOEC’s expert, Ms. Phillips’ decision to take her student down the Cashier blue trail did not compromise Ms. Squires’ safety. Ms. DeMuth insists that Mr. Gale’s contrary opinions reflect his lack of “the most basic understanding of the adaptive ski equipment that was being used at the time of the subject accident” and a misapplication of his alpine skiing experience to the facts of this case. Id. at ¶ 25.
For purposes of the instant Order, I am not required to choose between Mr. Gale’s and Ms. DeMuth’s conflicting opinions regarding terrain selection, for the court’s “gatekeeping” responsibilities under Rule 702 do not turn on the “correctness” of an expert’s opinions. See Cook,
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 expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.
Bonner,
While BOEC is disinclined to place any weight on Mr. Gale’s anticipated opinions, any perceived weaknesses in that testimony are better explored through cross-examination and during counsel’s closing argument at trial. See Daubert,
Accordingly, for the foregoing reasons, Defendant Mountain Man, Inc.’s Motion to Exclude Plaintiffs Expert Testimony Pursuant to F.R.E 702 (doc. # 87) is GRANTED, and Mr. Gale will be precluded from offering at trial any expert opinions relating to the design or manufacture of the FFS Dual Ski, or any opinions relating to warning labels or instructions pertaining to that same product. Defendant BOEC’s Motion to Strike and/or Limit (doc. # 88) Mr. Gale’s opinions is DENIED.
II. Mountain Man’s Motion for Summary Judgment
In moving for summary judgment, Defendant Mountain Man presents two alternative arguments: first, that Plaintiffs claims are barred by the two-year statute of limitations set forth in C.R.S § 13-80-106(1) and second, that Ms. Squires cannot present sufficient evidence to establish a prima facie case of product liability, particularly given the statutory presumption
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” See Fed.R.Civ.P. 56(c)(2). See also Devery Implement Company v. J.I. Case Company,
While the moving party bears the initial burden of showing that there is an absence of any issues of material fact, Hicks v. City of Watonga,
The court must construe the factual record and reasonable inferences therefrom in the light most favorable to the non-moving party. Kidd v. Taos Ski Valley, Inc.,
A. Statute of Limitations
While Mountain Man concedes that Ms. Squires’ original Complaint was timely filed, it argues that the newly added claims in the Amended Complaint were barred by the two-year statute of limitations established in C.R.S. § 13-80-106(1). That statute provides, in pertinent part, that “notwithstanding any other statutory provisions to the contrary,” actions brought against a manufacturer or seller of a product “shall be brought within two years after the claim for relief arises and not thereafter.” Here, it is undisputed that the incident involving Ms. Squires
At the time she sustained her injuries, Ms. Squires was a developmentally-delayed seventeen year old with her parents serving as her natural guardians.
Pertinent case law calls Defendant’s analysis into question. Colorado law does not impose upon a natural parent a legal duty to prosecute any personal injury claim on behalf of their minor child, “and consequently, ... the knowledge of such parent cannot be imputed to that child.” Cintron v. City of Colorado Springs,
Alternatively, Ms. Squires mental impairment (which continues to the present) qualifies as an independent disability for purposes of the statute of limitations. For a brief period of time, from April 19, 2008 to May 14, 2008, Ms. Squires was a mentally disabled adult without a spouse, natural or legal guardian and, therefore, subject to the tolling provision in C.R.S. § 13-80-106(2). Plaintiffs parents became their daughter’s legal guardian on May 14, 2008 (well within the two-year statute of limitations) and continue to serve as her legal guardians today. C.R.S.
[I]f a legal representative is appointed for [a] person under disability at any time after the right [of action] accrues and prior to the termination of such disability, the applicable statute of limitations shall run against such person under disability in the same manner, for the same period, and with the same effect as it runs against persons not under disability. Such legal representative ... in any event shall be allowed not less than two years after his appointment within which to take action on behalf of such person under disability, even though the two-year period expires after the expiration of the period fixed by the applicable statute of limitations.
In Elgin v. Bartlett,
B. Plaintiff’s Prima Facie Case
For purposes of Defendant Mountain Man’s pending motion, the following facts are material and apparently undisputed.
On February 13, 2008, Ms. Squires was riding in an FFS Dual Ski designed and manufactured by Defendant Mountain Man, Inc. See Plaintiffs Response to Defendant Mountain Man’s Motion for Summary Judgment (doc. # 68), at 4. This bi-ski was sold by Mountain Man to BOEC in 1994, some fourteen years before the incident involving Ms. Squires. See Exhibit F attached to Defendant Mountain Man’s Supplemental Memorandum Brief (doc. # 78). The FFS Dual Ski was warranted as fit for use by quadriplegics and people with cerebral palsy, and marketed by Mountain Man as a “Full Featured System” Dual Ski for the Physically Challenged. See Plaintiffs Response to Defendant Mountain Man’s Motion for Summary Judgment (doc. # 68), at 4. Mountain Man sold the FFS Dual Ski with a pledge to repair or replace any broken components, but without any express warranty. See Defendant Mountain Man’s Supplemental Memorandum Brief (doc. # 78), at 4. The FFS Dual Ski with fixed outriggers utilized safety straps with plastic buckles, but was designed without a safety brake or mechanical braking system. See Plaintiffs Response to Defendant Mountain Man’s Motion for Summary Judgment (doc. # 68), at 5. The adaptive ski instructor was linked to the bi-ski with tethers. See Plaintiffs Response to Defendant Mountain Man’s Motion for Summary Judgment (doc. # 68), at 3. It also appears to be undisputed that since 2000, a bi-ski with a safety brake manufactured by Tessier (the
To establish her claims against Mountain Man for strict liability and negligence, Ms. Squires has the burden of proving by a preponderance of the evidence that the FFS Dual Ski involved in the February 13, 2008 incident was defective. Cf. Mile Hi Concrete, Inc. v. Matz,
“Strict liability is not absolute liability and a manufacturer is not required to be the virtual insurer of its products.” The mere occurrence of an accident in connection with the use of a product does not necessarily make the product defective and unreasonably dangerous. “[A] manufacturer has, no duty to produce the safest product possible, but rather has a duty merely to avoid placing on the market a product which presents an unreasonable risk of harm to others.”
Shaw v. Play Dirty Colorado ATV Tours, LLC,
If summary judgment can be avoided merely by presenting the unsupported opinion of an expert witness, it would be virtually impossible for a court to grant summary judgment as long as the non-moving party could locate a sole expert who was willing to create a genuine issue of material fact for a price.
State Farm Fire and Casualty Co. v. Miles,
The deficiencies in Plaintiffs proof are exacerbated by the rebuttal presumption created by C.R.S. § 13-21-403(3), which provides that “ten years after a product is first sold for use or consumption, it shall be rebuttably presumed that the product was not defective and that the manufacturer or seller thereof was not negligent and that all warnings and instructions were proper an adequate.” This statute creates a rebuttable presumption that will prevail in the absence of evidence to the contrary. See Mile Hi Concrete,
In the absence of any evidence, save for the inadmissible opinions of Mr. Gale, Plaintiff has failed to raise a genuine issue of material fact that would warrant proceeding to trial on her Sixth, Seventh, Eighth and Ninth Claims for Relief. Cf. Truck Insurance Exchange v. MagneTek, Inc.,
CONCLUSION
Accordingly, for the foregoing reasons, the Court ORDERS that:
(1) Defendant Breckenridge Outdoor Education Center’s Motion to Strike and/or Limit Plaintiffs Experts Bil Hawkins and Stanley Gale Under Fed.R.Evid. 702 and Daubert (doc. # 88) is DENIED. The court will allow Mr. Gale to offer expert opinions pursuant to Rule 702, to the extent those opinions are relevant to any claims remaining against BOEC in the wake of the court’s decision on BOEC’s pending Motion for Summary Judgment. Mr. Gale may also offer opinion testimony against Defendant James Michael Goodwin, to the extent those opinions are relevant to Plaintiff Squires’ pending claims against Defendant Goodwin. Defendant BOEC’s motion also is denied to the extent that it seeks to exclude Mr. Hawkins from offering opinions on knots, knot tying and rope safety practices. Defendant BOEC may file appropriate motions in limine in advance of trial to the extent it anticipates Mr. Hawkins’s opinions may stray beyond these specific parameters.
(2) Defendant Mountain Man, Inc.’s Motion to Exclude Plaintiffs Expert Testimony Pursuant to F.R.E. 702 (doc. # 87) is GRANTED.
(3) Defendant Mountain Man, Inc.’s Motion for Summary Judgment on Plaintiffs Sixth, Seventh, Eighth and Nine Claims for Relief (doc. #58) is GRANTED and judgment shall be entered in favor of Defendant Mountain Man, Inc. and against
Notes
. Defendant BOEC also has filed a Motion for Summary Judgment (doc. # 52) which will be addressed by a separate order.
. During the hearing on October 20, 2011, counsel for Defendant BOEC advised the court that his client was not challenging Mr. Hawkins's qualifications or opinions regarding knots, but would object to the extent Plaintiff's counsel seeks to elicit or Mr. Hawkins' attempts to offer opinions at trial regarding adaptive skiing and the adaptive skiing industry. Certainly, nothing in Mr. Hawkins' background would suggest he is qualified to opine on the latter subjects. I suggested, with counsels’ concurrence, that the scope of Mr. Hawkins' trial testimony might better be addressed through a motion in limine in advance of trial.
. In performing its "gatekeeper” function under Daubert,
. In assessing the reliability of a proffered opinion, the trial court may consider, inter alia: (1) whether the opinion is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community. Hollander,
. Apparently, Mr. Gale also reviewed unidentified materials on "Wikipedia.” But see Jones v. Synthes USA, LLC,
. This court may take judicial notice of documents in the public record, including the court’s own docket. See, e.g., State Farm Mutual Automobile Insurance Co. v. Boellstorff,
. Ms. Squires and her parents were in 2008 and continue to be Kansas residents. Section 59-3051(Z) of the Kansas Statutes Annotated defines "natural guardian” to include "both the biological or adoptive mother and father of a minor.” Rule 17(c) of the Federal Rules of Civil Procedure recognizes that a natural guardian has the right to sue on behalf of their minor child. See, e.g., Mulready v. Mulready,
. The Tenth Circuit noted in Chuchuru v. Chutchurru,
It is the settled law in Colorado that courts look with favor upon statutes of limitation and construe them liberally. On the other hand, it is the well established general rule that exceptions to the operation of a statute of limitation which toll its running in favor of persons under disability are to be strictly construed and never extended beyond their plain import.
. I note that the Eighth Claim for Relief alleges negligence on the part of Mountain Man in the design and manufacture of the bi-ski involved in events of February 13, 2008. Under Colorado law, "expert testimony is required in negligence cases to establish the standard of care when the standard is outside the common knowledge and experience of ordinary persons.” Xtreme Coil Drilling Corp. v. Encana Oil Gas (USA), Inc.,