Consumer Product Safety Expert Witness’ Testimony About the Availability of Pop-up Warning Technology Excluded
Posted on September 9, 2024 by Expert Witness Profiler
On June 20, 2015 at approximately 1:00 am, Thomas Power was using the Elitebook while at a 24-hour gym with the computer balanced directly on his lap. After using the computer for approximately 20-60 minutes, the laptop exploded into flame, burning Power’s legs. He sustained serious injuries, including burns requiring a skin graft, hydrotherapy, catheterization, and intravenous antibiotics. After the accident, Power claims that he began to experience urinary and bowel incontinence.
Plaintiff Power, via counsel, brought this suit against Defendant, the Hewlett-Packard Company (“HP”), seeking monetary relief for injuries he suffered as a result of his HP-brand laptop catching fire while on his lap. The Defendant filed a motion to exclude the remaining testimony of Plaintiff’s only remaining proffered expert, William F. Kitzes.
Consumer Product Safety Expert Witness
William F. Kitzes has over 35 years of safety management experience at the U. S. Consumer Product Safety Commission, the Institute for Safety Analysis and Consumer Safety Associates, where he currently serves as Principal Safety Analyst and Product Safety Manager. He is a Board Certified Product Safety Manager and Hazard Control Manager, and holds a Certificate in Safety Management from the American Society of Safety Engineers. He has testified in over 100 trials in 28 states, Canada and Australia.
Discussion by the Court
Kitzes prepared an expert report opining, among other things, that HP had, by late 2007, developed a battery authentication system for certain laptops to identify ‘counterfeit’ battery packs, yet the HP EliteBook that Power had been using on the day of the fire did not include such a system.
According to the Defendant, Kitzes'”sole source” of methodology for that opinion was “a document [that] Kitzes claimed to have found on HP.com… published on September 29, 2020—over ten years after the manufacture” of the at-issue laptop computer.
In attacking the notion that the referenced document existed at the time of the laptop’s explosion, the Defendant submitted an affidavit signed by an HP representative averring that the at-issue document had in fact been created on or about September 29, 2020, and therefore could not have been in existence when the fire occurred. The Court concluded at that time that the affidavit offered by the Defendant failed to comply with the requirements of Fed. R. Civ. P. 56(c)(4).
At the same time, the Court held that,
“if the sole source of Kitzes’ opinion about the existence of pop-up technology was a document whose contents, as relevant here and as indicated by uncontroverted evidence, postdates the manufacture of the at-issue computer by twelve years,” “then the Court would likely determine that the methodology underlying [Kitzes’ proffered opinion testimony] was unreliable and prevent him from testifying as to it.”
Availability of Pop-up Warning Technology
After being granted leave to file a supplemental brief reaffirming its Motion for Summary Judgment and supplementing its Motion in Limine seeking to exclude Kitzes’ testimony, Defendant filed such supplemental brief which included a new affidavit, this time sworn by Wesley Dale, a Computing Operations Lead at HP with personal knowledge of the availability of pop-up warning technology for HP laptop computers and of the existence of the referenced document on HP.com.
Within the affidavit, the affiant swore upon personal knowledge and expertise that the pop-up technology and documentation did not exist prior to September 29, 2020. As such, the Dale affidavit met the personal knowledge requirement under Fed. R. Civ. P. 56(c)(4).
The Court concluded that the Dale affidavit sufficiently proved that the document upon which Kitzes relied in stating his conclusion that the pop-up warning technology was available to HP in 2007 is unreliable, as that “HP.com” page and content did not exist until 2020, far after Power’s laptop exploded.
Neither party disputed that the sole source of Kitzes’ belief that the pop-up authentication technology existed at the time of the at-issue computer’s manufacture was one document that Kitzes referenced. And HP has provided uncontroverted evidence, in the form of a Rule-compliant affidavit supported by multiple exhibits, demonstrating that the document relied upon by Kitzes did not exist on the HP.com webpage until September 2020. The Plaintiff failed to make a convincing argument as to why, despite the evidence provided by the Defendant, the document would have been created in late 2007, then deleted, then reposted in 2020.
Amendment to Federal Rule of Evidence 702
The Court would have come to the above conclusion in any event but does so especially in light of the amendment to FRE 702 that became effective on December 1, 2023. The amendment to the Rule does two things: first, it clarifies that expert testimony is not to be considered presumably admissible, but is instead subject to a preponderance of the evidence standard; and second, it emphasizes that a court must evaluate the reliability of an expert’s conclusions drawn from his or her methodology, not just the methodology itself.
Held
The Court granted Defendant’s motion to exclude the testimony of William F. Kitzes, J.D. as to the existence of pop-up warning technology at the time that Power’s laptop exploded.
Key Takeaway:
After evaluating Kitzes’ conclusion drawn from his methodology—i.e., his conclusion that the pop-up authentication technology existed at the time of the explosion because a document could have existed on a website in 2015, even though there is no evidence that it existed prior to 2020—the Court concludes that that conclusion is speculative at best, and legally and factually unreliable.
Case Details:
| Case Caption: | Power V. Hewlett-Packard Company |
| Docket Number: | 2:17cv154 |
| Court: | United States District Court for the Western District of Pennsylvania |
| Order Date: | July 19, 2024 |
