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Gholar v. A O Safety

United States District Court, S.D. Mississippi, Southern Division

August 19, 2014

MARCUS GHOLAR, PLAINTIFF
v.
A O SAFETY and 3M-AEARO TECHNOLOGIES, LLC, DEFENDANTS

Page 857

For Marcus Gholar, Plaintiff: James L. Davis, III, LEAD ATTORNEY, LAW OFFICES OF JIM DAVIS, Gulfport, MS.

For 3M-Aearo Technologies, LLC, Defendant: J. William Manuel, LEAD ATTORNEY, John Alexander Purvis, Simon T. Bailey, BRADLEY ARANT BOULT CUMMINGS LLP - Jackson, Jackson, MS.

Page 858

ORDER GRANTING DEFENDANTS' MOTION TO EXCLUDE TESTIMONY OF MR. JOHN RYAN

LOUIS GUIROLA, JR., CHIEF UNITED STATES DISTRICT JUDGE.

BEFORE THE COURT is the Defendants' Motion [104] to Exclude the Testimony of Mr. John Ryan. The issues were fully briefed by the parties, and the Court conducted a hearing. After the hearing, the parties were given additional time in which to file supplemental briefs. After due consideration of the arguments of counsel, testimony and evidence produced at hearing, and the relevant law, it is the Court's opinion that Mr. John Ryan is not qualified to provide expert opinion testimony in this case. Accordingly, the defendants' motion will be granted and Mr. John Ryan's testimony excluded.

Background

Marcus Gholar alleges that he was wearing safety goggles manufactured and/or distributed by the defendants while drilling holes in a piece of metal. He alleges that a shard of metal struck him through the goggles " and hit his left eye and put it out." (Am. Compl. 2 (¶ 9), ECF No. 27). He testified that he was wearing eyeglasses underneath the goggles at the time of the accident. (Def. Mot. Summ. J. Ex. A 74, ECF No. 102-1). When the metal shard hit the goggles it either knocked them off or he threw them off. ( Id. at 100). The metal shard also broke out the left lens of his eyeglasses. ( Id. at 102-03). He testified to a hole on the left side bottom of the goggles where the metal

Page 859

shard entered the goggles. ( Id. at 104-05, 130). The lens remained connected to the frame. ( Id. at 104-05). After the accident, Gholar returned the goggles to the workstation. He later retrieved what he thought were the same goggles, and kept them in storage until he filed this lawsuit and gave the goggles to his counsel.

Gholar's employer told him that the business did not have insurance, ( id. at 131-32), and Gholar could not afford to go to the hospital ( id. at 133), and so he did not get medical attention for his eye until a few days after the accident. ( Id.). The clinic he visited referred him to an opthamologist, who removed " some kind of object" from Gholar's eye. ( Id. at 137). Gholar has lost vision in his left eye and can no longer perform his work. He alleges that either A O Safety or 3M manufactured and/or distributed the safety goggles with a design defect, that the goggles were unreasonably dangerous, and that the defendants knew about the dangerous nature of the goggles and failed to provide warnings to consumers.

Plaintiff's Expert, John Ryan

Gholar engaged John Ryan, P.E., to analyze the goggles and provide expert opinions about their design. Ryan testified in his deposition that he believed the lens was polycarbonate and the frame was " a type of PVC, plastic frame." (Ryan Dep. 49, ECF No. 102-7). He did not know specifically if these materials were used in the subject goggles, but " [t]ypically, these -- the lenses are made out of polycarbonate." ( Id. at 50). He conducted online research to determine what materials safety goggles are generally made of. ( Id. at 50-51). He understood that the subject goggles were manufactured sometime in the 2003 to 2010 timeframe, although he was not sure why he had that understanding. ( Id. at 61).

The lens of the subject goggles was rated Z87 plus and the frame was rated Z87. ( Id. at 53). Z87 plus indicates a higher impact rating than Z87, although Ryan could not state what the manufacturer did differently to obtain the different ratings. ( Id. at 54, 57-58). In order to conduct his tests, Ryan purchased ten pair of Z87 goggles and used two pairs of Z87 plus goggles that he either purchased or already owned and had been using. ( Id. at 56, 71). He also conducted tests on the subject ...


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