Human Factors Expert Witness’ Ergonomics Analysis Not Fully Excluded Despite Alleged Lack of Testing
Posted on November 6, 2024 by Expert Witness Profiler
Stephen Ratcliffe has brought a lawsuit against BRP, the manufacturer, and Tidd’s Sport Shop, Inc. (Tidd’s), the dealer, of a 2019 Can-Am Maverick X3, a utility terrain vehicle (UTV), asserting negligence and strict liability claims arising out of an incident in which Ratcliffe’s Maverick X3 rolled onto its side and crushed his arm. The Plaintiff is pursuing design defect and failure-to-warn theories of recovery.
Ratcliffe designated Dr. David R. Lenorovitz, a human factors and warnings expert, as a Plaintiff expert.
Lenorovitz opined that the subject vehicle was not only defectively designed but also that the BRP-provided warnings were inadequate, insufficient, or inconsistent.
BRP objected to what it characterizes as Lenorovitz’s “ancillary opinions.” Specifically, BRP described these opinions as “(i) criticizing the lack of clarity on if and how the vehicle-handling could be affected by occupancy load placement; and (ii) claiming that the Subject Vehicle’s 3-point seat belts are insufficient.”
BRP contrasts these with what it describes as Lenorovitz’s “core opinions,” which include:
- the warning to keep your hands inside the vehicle was ineffective to prevent a supposed reactive arm movement to brace oneself during a rollover;
- the instruction to firmly grip the steering wheel conflicts with the instruction to “brace for impact;” and
- the warnings in the Operator’s Guide and on-product warnings to “never do jumps, slides/skids (drifts), or doughnut type ‘tricks’ or ‘maneuvers” conflicts with BRP’s action of “engag[ing] the services of professional drivers and celebrity brand ambassadors that graphically perform. . . such maneuvers in widely accessible on-line video clips and advertising promotions.”
BRP argued that Lenorovitz “conducts no case-specific testing, has no meaningful experience with side-by-sides, and ignores any
evidence that does not support his narrative.”
Human Factors Expert Witness
David R. Lenorovitz obtained both an M.S. and PhD in Human Factors Engineering within the Industrial Engineering Department of the State University of New York at Buffalo in 1972 and 1975, respectively. He is board certified in human factors / ergonomics by the Board of Certification in Professional Ergonomics (BCPE). Since January of 2005, he has engaged in providing professional ergonomic consulting and forensic human factors services through my own consulting company, LENPRO Services, Inc.
Discussion by the Court
Ratcliffe assured BRP that he does not intend to introduce Lenorovitz’s ancillary opinions on the Maverick X3’s handling or seatbelts at trial.
The Court noted that BRP has not questioned Lenorovitz’s qualifications as a human factors and warnings expert. Lenorovitz is well-qualified as a human factors and warnings expert.
In his report, Lenorovitz details the data and information he reviewed, including the transcripts of multiple depositions, his inspection of the actual Can-Am Maverick X3 in this case, his reference to American National Standards Institute (ANSI) standards, thirteen published articles, the documents and materials about the Can-Am Maverick X3 that were supplied to Ratcliffe, including the 2019 Operator’s Guide, his analysis of the “hazard control hierarchy” in this case, the sufficiency of the warnings, and his conclusions about deficiencies. From the Court’s perspective, Lenorovitz has satisfied his obligation to demonstrate that his expert opinions rest “on a reliable foundation” and are “relevant to the task at hand.”
In summary, the Court rejected BRP’s Daubert/Kumho challenge to the expert testimony of Lenorovitz as the Plaintiff’s ergonomics, human factors, and warnings expert. The Court concluded that Lenorovitz’s proposed testimony met the requisite “threshold of reliability,” and therefore it “should be presented to a jury and ‘tested by the adversary process—by competing expert testimony and active cross examination.”
In doing so, the Court has considered the 2023 amendments to Rule of Evidence 702 and makes this determination in accordance with the requirements of Rule 104(a).
Held
The Court grants Defendant BRP’ motion to the extent that it seeks to exclude so much of David Lenorovitz’s opinion testimony that constitutes ancillary opinions. The Court otherwise dismisses BRP’s motion in limine without prejudice.
Key Takeaway:
BRP complained that Lenorovitz did no testing. However, as the Plaintiff’s expert in ergonomics, human factors, and warnings, the Court concluded that Lenorovitz’s proposed testimony met the requisite “threshold of reliability.” In his report, Lenorovitz details the data and information he reviewed.
Case Details:
| Case Caption: | Ratcliffe v. BRP United States, Inc. |
| Docket Number: | 1:20cv234 |
| Court: | United States District Court, Maine |
| Order Date: | November 5, 2024 |
