Human Factors Expert Witness Improperly Relied on Studies Regarding the Climbing Abilities of Children
Posted on December 31, 2024 by Expert Witness Profiler
Plaintiffs Kyle and Annaleah Justice raised claims of negligence and strict liability against Defendants Bestway (USA), Inc. and Rural King under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.
On March 10, 2022, Bestway USA filed a Third-party Complaint against Thirdparty Defendants, Mary and Patrick Flake, E.M.J.’s grandparents and the owners of the pool in which E.M.J. drowned. Bestway USA raises two claims against the Flakes: Count I for Premises Liability and Count II for Negligence.
On August 25, 2023, Defendant Rural King filed a Third-party Complaint raising four total claims against the Bestway Entities: Count I – Negligence against Bestway Hong Kong; Count II – Negligence against Bestway Inflatable and Materials Corporation; Count III – Strict Liability against Bestway Hong Kong; and Count IV – Strict Liability against Bestway I&M.
Kevin Rider, PhD, is a human factors and engineering expert retained by Third-party Plaintiffs Mary and Patrick Flake. He was retained “to determine if the subject pool was safe for its intended use, particularly as it relates to other expert opinions that have been provided regarding the same.”
Rider explained that the Flakes and Justices had removed the ladder from the pool which should have provided an effective guard. He added that the effective height of the subject pool wall failed to provide the safety intended by relevant standards and created an unreasonable risk of harm to toddlers.
The Bestway Entities argued that Rider’s opinions should be excluded because they are not based on sufficient facts and data, are not the result of a reliable application of a methodology to the facts, and are speculative and unhelpful to the jury.
Human Factors Expert Witness
Kevin Rider holds a PhD in industrial and operations engineering from the University of Michigan and master’s and bachelor’s degrees in industrial engineering from the University of Tennessee. He has nearly thirty (30) years of experience in the fields of engineering and human factors.
Discussion by the Court
The Bestway Entities contended that Rider did not perform any of his own data collection or analysis, but rather accepted information and data provided to him by other experts in the case and opined on whether these other experts’ conclusions fit that data.
First, the Bestway Entities asserted that Rider failed to account for Mary Flake’s past experience babysitting and raising children in forming his conclusions about what dangers she was aware of regarding the pool. Second, the Bestway Entities also questioned the reliability of Rider’s opinion regarding what warnings the Flakes and the Justices were aware of given their testimony that they never read the pool’s warnings. Third, the Bestway Entities contended that Rider improperly relied on studies about the climbing abilities of three-year-old children rather than crediting results from those studies regarding two-year-old children. The Bestway Entities argued that because E.M.J. was two at the time of her death, Rider cannot reliably compare her alleged abilities to those of three-year-olds included on such studies.
Rider’s Testimony
Rider intended to offer the following opinions:
- The Flakes and Justices complied with the warning of which they
were aware – the ladder had been removed from the pool.
- Based on [E.M.J.]’s demonstrated climbing abilities, the removal of
the ladder should have provided an effective guard, which would have
prevented this incident from occurring.
3. The published literature is consistent with the conclusion of Detective
Jeffrey Doerr and others regarding how this incident occurred.
4. The nylon strap effectively created a wall that was approximately 37”
high, 11 inches shorter than the 48” barrier requirement, defeating the
performance criteria intended by standards.
5. The effective height of the subject pool wall failed to provide the
safety intended by relevant standards and created an unreasonable risk
of harm to toddlers, such as [E.M.J.].
Analysis
Opinion 1
While the Bestway Entities argued that Rider could not have reliably arrived at this opinion because the Flakes and the Justices testified that they did not read the pool’s included warnings, this opinion did not depend on whether the Flakes or the Justices read those warnings. The Flakes and the Justices testified that they knew leaving the ladder on the pool would create a danger to the children, and they ensured the pool ladder was removed when the pool was not in use.
The Court held that the Bestway Entities misrepresented Rider’s testimony when they argued that he failed to consider Flake’s experience with babysitting because the fact remains that Rider based his opinion on sufficient facts and data, and the Bestway Entities are free to cross-examine Rider regarding testimony that they believe conflicts with his conclusions.
Opinion 2
Opinion 2 about removing the pool’s ladder should have rendered the pool safe given E.M.J.’s known climbing abilities, is within Rider’s area of expertise, and the Court held that he relied on sufficient facts and data when forming this opinion. The fact that Rider himself did not conduct any studies or his own observations does not render Opinion 2 unreliable or inadmissible.
In fact, experts are not required to conduct independent testing nor are they required to conduct direct observations of the scene to offer opinions. Rider has been made aware of facts of this case through the testimony of witnesses and expert reports, which he personally reviewed. He then analyzed those facts and data to come to his conclusions.
Opinion 4 and 5
The Bestway Entities suggested that Rider cannot provide these opinions because he testified that he is not an expert in certain applicable standards for aboveground pools, but they again misrepresented Rider’s testimony. The Court held that Rider will be permitted to testify regarding his understanding of these industry standards as it relates to human factors and engineering in Opinions 4 and 5. These opinions will also be helpful to the jury as they are outside of the knowledge or experience of the average lay juror and will help the jury to determine the potential fault to attribute to the Flakes and/or the Bestway Entities.
Opinion 3
Rider relied on several studies regarding the climbing abilities of children. In one of these studies, 52% of three-year-old participants were able to climb a three-foot barrier while 22% of them were able to climb a four-foot barrier.
Rider did not sufficiently explain why study data regarding three-year-old participants’ climbing abilities is relevant here when E.M.J. was just over two-and-a-half years old. He admitted that study participants that were around the same age as E.M.J. or even one month shy of three-years-old would have been counted in the two-year-old data set in the study. His only explanation for why he’s not considering the two-year-old’s data set is E.M.J.’s height, but he also admitted that E.M.J. was one inch (1”) shorter than an average three-year-old.
The Court observed that while Rider factors in E.M.J.’s height, he failed to account for potential developmental and motor differences between two and three-year-olds.
Neither Rider nor the Flakes presented any evidence that height was a measured variable in the study he relied on or that the study’s conclusions relied upon the participants’ heights rather than their age. Given these gaps between the data Rider relies upon and the facts in this case, the Court found that the analytical leap necessary for Rider to arrive at his Opinion 3 is too great and will be excluded.
Held
The Court granted in part and denied in part the Bestway Entities’ motion to exclude the opinions of Dr. Kevin A. Rider, PhD.
Key Takeaway:
Rider’s opinion 3 reflects an unreliable application of a human factors methodology to the facts of this case.
To arrive at the conclusion that the published literature regarding children’s climbing abilities is consistent with Detective Doerr’s conclusions about how E.M.J. entered the pool, Rider made too great an analytical leap between the data he cites and the facts of this case.
Please refer to the blogs previously published about this case:
Case Details:
| Case Caption: | Kyle Justice V. Bestway USA, Inc. Bestway USA, Inc. |
| Docket Number: | 4:22cv50 |
| Court: | United States District Court, Missouri Eastern |
| Order Date: | December 30, 2024 |
