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Galoski v. Stanley Black & Decker, Inc.

United States District Court, N.D. Ohio, Eastern Division

May 24, 2017

STANLEY BLACK & DECKER, INC., et al., Defendants.


          DONALD C. NUGENT United States District Judge

         The matter is currently before the Court on Defendant, Applica Consumer Products, Inc.'s (“Applica”) Motion to Exclude the Testimony of Dr. Roger Gold (ECF #99), and Motion for Summary Judgment (ECF # 100). Plaintiff filed Briefs in Opposition to both motions, and Defendant filed Replies in support of its motions. (ECF #103, 106, 105, 107). The issues are now fully briefed and ripe for disposition. Applica contends that the testimony of Dr. Gold, the expert proffered by Plaintiff to provide opinion evidence on the efficacy of ultrasonic pest repellers in general, is not grounded in any reliable methodology and does not address the efficacy of the actual product at issue in this case. Therefore, it seeks to have his testimony excluded. If Dr. Gold's testimony is excluded, Applica argues that the case should be dismissed because Plaintiff has produced no other evidence that could support her contention that Applica's ultrasonic pest repellers do not and cannot perform as warranted on the product packaging. Plaintiff claims that Dr. Gold is an expert in the area of entomology and has conducted, supervised, and reviewed a multitude of studies relating to the general efficacy of ultrasonic and other types of pest controls on repelling certain insects, and rodents. Further, Plaintiff argues that even if Dr. Gold's testimony is excluded, she has provided other evidence, by way of her own testimony and other customer complaints, that the Applica pest repeller did not perform as warranted.

         I. Motion to Exclude Expert Testimony

         A. Standard

         The admission of expert testimony is governed by Fed.R.Evid. 702 and 703. Federal Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. This rule is to be broadly interpreted. Mannino v. Int'l Mfg. Co., F.2d 846, 849 (6th Cir. 1981). “Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The Court considers the following factors when determining reliability: “(1) whether the theory or technique has been tested and subjected to peer review and publication, (2) whether the potential rate of error is known, and (3) its general acceptance.'” Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002).

         Pursuant to Fed.R.Evid. 703, “[a]n expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” The facts and data upon which the expert's opinion is based need not necessarily be admissible on their own. Fed.R.Evid. 703. “Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Presumably, this relaxation of the usual requirement of firsthand knowledge -- a rule which represents ‘a “most pervasive manifestation” of the common law insistence upon “the most reliable sources of information, ”'-- is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline.” Daubert, 509 U.S. at 592 (citations omitted). Plaintiffs bear the burden of showing by a preponderance of the evidence that the experts' testimony is admissible. Daubert, 509 U.S. at 579 & n.10.

         B. Analysis

         Dr. Gold has opined that ultrasonic devices “would not, ” “cannot and do not, ” and “will not be effective to” drive out pests, and that they “actually can attract cockroaches due to the heat generated by the electric commercial devices.” (ECF #99-1, PageID 1809-10). He has also stated his opinion that the studies Defendant relied on to determine efficacy of its product are not scientifically sound. Dr. Gold is unquestionably an accomplished entomologist, and has extensive experience in various aspects of the pest control industry. There is also no question that he has formed strong opinions as to the potential efficacy of ultrasonic pest repellers, in that he appears to firmly believe that they, as a class of devices, are not and cannot be effective in “driving out” pests of any kind. Unfortunately for the Plaintiff, however, there has been no evidence presented in this case that provides a well-grounded scientific basis to elevate his opinion on this particular question to the level of reliability required for expert testimony. ...

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