Koger v. Costco Wholesale Corporation

Background

The order resolves the parties’ motions to exclude expert testimony under Federal Rule of Evidence 702. That rule requires expert opinions to be relevant and reliable and gives the judge a gatekeeping role in deciding whether the opinions will assist the fact finder. The court emphasized that Rule 702 focuses on the reliability of an expert’s methods, not simply whether the judge agrees with the expert’s conclusions.

Plaintiffs’ motions

- Jon B. Ver Halen: The court did not exclude Ver Halen’s opinions merely because he had not reviewed every item the plaintiffs considered relevant. But it excluded his opinions based on SGS testing because he repeated the testing conclusions without discussing the underlying data or methods. The court also excluded his independent testing because his report did not provide enough information to reproduce or fairly evaluate the results. The court further ruled that Ver Halen could not introduce new evidence or arguments at trial that were not previously disclosed or relied on in his report. - Eric J. Drabkin: The plaintiffs argued that Drabkin improperly relied on gender-based information when estimating Valerie Koger’s lost earnings. The court denied the request to exclude his opinions, finding that the underlying estimates relied on age and education rather than gender alone. - Stephen D. Forner: The plaintiffs sought to prevent Forner from suggesting that functional neurologic disorder or benign positional vertigo might partly explain Koger’s symptoms. The court found his level of confidence reasonable given the incomplete medical records and did not bar that testimony. Forner had not expressly diagnosed Koger with either condition. - Sealing request: The court granted the request to seal Exhibits 2, 4, and 5 filed with the defendants’ response because they contained sensitive medical records and discussed Koger’s medical history. The court cautioned the defendants that they could be sanctioned if similar filing errors occurred again.

Defendants’ motions

- Zachary M. Moore: The court excluded Moore’s opinion that the chair was unsafe and that Koger acted reasonably and foreseeably because those opinions were presented as legal conclusions, and Moore was not an expert in product design or consumer safety. The court also ruled that Moore could not present his opinion that the location violated codes and industry standards because the opinion was inadequately supported. Moore’s opinion that Costco knew or should have known about the unsafe condition could be presented to the extent it stayed grounded in the facts and did not become a purely legal conclusion. The court also found that Moore’s opinion about the cost of eliminating the unsafe condition lacked supporting analysis and could not be presented at trial. - Leonard J. Backer: The court excluded Backer from testifying about Costco’s safety, inspection, and remedial procedures. Although Backer had expertise in the design, manufacture, and sale of chairs, the record did not show expertise in premises safety or retail-store inspection and risk-management standards. - Mark D’Esposito: The court declined to exclude D’Esposito altogether based on his use of neurological tests that defendants characterized as a vestibular/ocular motor screening test. The court stated that such testing was not limited to athletic-event injuries and that any dispute about whether the methods fit Koger’s particular circumstances could be addressed through cross-examination rather than exclusion.

Disposition and classification

This was an evidence-related pretrial order addressing expert testimony and sealing, rather than a decision on the parties’ underlying claims. The order granted, denied, or otherwise resolved the specific requests as described above. Judge James Donato entered the order on November 27, 2023.