In case you missed it, a Colorado federal court recently held, in Lamoure v. Libbey that a materials scientist could testify as to what caused a piece of stemware to crack and severely injure a restaurant owner in a manufacturing defect suit. Okay, not as earth-shattering as the contemporaneous Supreme Court rulings (only wineglass-shattering), but highly consequential to the defense case and worth our analysis here for several reasons.
By way of background, restaurant owner Arielle Lamoure – a wine-drinker’s name if I ever heard one – brought a manufacturing defect suit against Libbey Glass, Inc. in Colorado federal court. Lamoure alleged that while she was detailing one of Libbey’s wineglasses – holding it by the foot and polishing the bowl – the stem snapped and the resulting fragments sliced into her hand and wrist, causing severe injury. Lamoure further alleged that the glass was new, fresh out of the packaging, and had just been run through a dishwasher.
The U.S. District Court for the District of Colorado found that the case turned largely on whether the wineglass had a manufacturing defect, or whether it was weakened by handling at the restaurant. The wineglass itself was not available for study because Lamoure’s safety-conscious employees immediately threw the fragments into the garbage.
Enter Plaintiff’s expert George Pecoraro, a materials scientist who has “been involved with the science of glass in the practice of glass technology for 50 years.” To render his opinions in Libbey, Pecoraro obtained eleven new Libbey wineglasses and, through an associate, tested their resistance to breakage at the stem from pressure applied by a hydraulic press. Five of the eleven wineglasses were tested “as received by the supplier” (apparently new out of the packaging), while the remaining six “were deliberately gently abraded or slighted damaged by rubbing two stems together,” apparently in an attempt to simulate what could happen when two or three glasses would be carried in one hand at the same time. According to Pecoraro, this “controlled damage” simulated normal handling of wineglasses at a restaurant.
After breaking each glass, Pecoraro’s associate measured the “mirror radius” at the point of failure of the stem. According to Pecoraro, this radius is an area of smooth glass that surrounds the fracture origin: the larger the radius, the lower the breaking force. Pecoraro then converted the mirror radius into a measurement of “tension stress at fail” in pounds per square inch (psi). He found that the five undamaged wineglasses had a tension stress at fail of between 25,170 and 42,250 psi, while the six damaged glasses failed at between 7,650 and 10,420 psi.
Pecoraro interpreted this data in light of a test he conducted in 2007 when retained as a glassware expert in a different case. For that case, he created a “spectrum of fracture strengths” supposedly measuring the force necessary to break different sorts of glassware at the stem. He then categorized that force as follows:
- Very Difficult = not possible for average man to break (22,500 psi)
- Difficult = hard for average man, not possible for average woman
- Moderate = easy for average man
- Easy = easy for average woman, very easy for average man
- Very easy = very easy for woman (900 psi)
Pecoraro’s spectrum showed that fully tempered safety glass breaks at a “Very Difficult” level of at least 22,500 psi, whereas a typical glass intentionally damaged at the stem breaks at a “Very Easy” 900 psi. He reasoned that, according to his spectrum, “an average size woman could deliberately break a stemware glass by bending the stem with as much strength as 10,665 psi. However, Ms. Lamoure is a petite size woman. She weighs only 115 pounds. She would not be able to break the glass stem with only minimal force exerted during the detailing of the glass.” Thus, Pecoraro concluded that the wineglass that injured Lamoure must have had some sort of manufacturing flaw bringing its failure force down to 900 psi, “where the most gentle of handling would break it.”
Stopping short of an explicit challenge to the sexist bent of Pecoraro’s methodology, Libbey chose to question the report based on its general lack of scientific rigor. The glass manufacturer objected to, for example, Pecoraro’s use of “subjective, qualitative measurements, such as light or heavy contact with another wine glass, the size of the ‘average’ man and woman, and descriptions that it was ‘very difficult’ or ‘very easy’ to break a glass.” In fact, at his deposition, Pecoraro explained that he created his “spectrum of fracture strengths” by having himself, his associate, and his wife try to break various types of glass by hand, even though he did not consider any of them to be an “average” man or woman. Libbey therefore argued that Pecoraro did not rely on accepted scientific standards or replicable experimental techniques, and that his opinion should be excluded on those grounds.
While noting that “the shortcomings of Pecoraro’s methods are evident,” the court nevertheless found that Pecoraro’s methods were not so inherently unreliable as to make his opinion inadmissible. The court relied on the advisory committee’s note to F.R.E. 702 stating that the rejection of expert testimony is the exception rather than the rule, and held that thorough cross-examination – not outright rejection – is the appropriate vehicle to test the expert’s methods and conclusions.
Libbey also lodged an attack on Pecoraro’s spectrum based on the fact that the expert developed it through a sample size of three: namely, Pecoraro himself, his wife, and his associate. In making this argument, the defense pointed to a 2012 order from the Southern District of New York that excluded Pecoraro’s opinion in a similar product liability lawsuit based on a shattered coffee carafe. In that case, Karnauskas v. Columbia Sussex Corp., Pecoraro had attempted to simulate an alleged design defect in the carafe. The experiment repeatedly failed to break the glass in question, and only succeeded after Pecoraro applied force in an unrealistic manner. The New York court excluded Pecoraro’s testimony because his methodology had no connection to his conclusions regarding the alleged design defect.
Unfortunately for Libbey, the court did not reach the same conclusion here. The court found that Pecoraro’s experiment with Libbey’s wineglasses established that undamaged Libbey wineglass stems can withstand a fair amount of pressure, whereas damaged stems can break under much lower pressure. Pecoraro also concluded, using his “spectrum of fracture strengths,” that Lamoure could likely apply less pressure than even the average woman (given her size), leading Pecoraro to believe that the wineglass in question was particularly weak in the stem. Taking Lamoure’s story at face value (i.e., that the glass had never been handled before other than taking it from its original packaging and running it through the dishwasher), Pecoraro excluded the possibility that normal wear and tear caused the stem to weaken. He thus reached the conclusion that a manufacturing defect must have caused the break.
To be sure, the court pointed out that Pecoraro’s opinion turned on numerous assumptions, and that Libbey would have an opportunity at trial to attack all of those assumptions. Still, the court found that “assuming the assumptions hold up,” a clear connection existed between Pecoraro’s methodology and his conclusions. Thus the court found the S.D.N.Y. decision to be inapplicable in Libbey.
In a last-ditch attempt to exclude Pecoraro, Libbey argued that, absent analysis of the actual wineglass that injured Lamoure, Pecoraro’s conclusions “are of no relevance to the issue of whether the particular wine glass at issue actually contained a defect.” The court disagreed, finding that Pecoraro offered a sufficiently reliable means of concluding that, absent a manufacturing defect, a Libbey wineglass should not break at the stem under the minimal pressure allegedly applied by Lamoure at the time of her injury, and “[t]he fact that the original wineglass was immediately discarded does not change this.”
Interestingly enough, but not mentioned in the court’s opinion, earlier this year Pecoraro was excluded in another similar suit, one alleging that negligent design caused a bottle of Coors Light to explode. In Toomey v. MillerCoors, LLC, a bartender grabbed two bottles of Coors Light beer to stock an ice bin and one of the bottles exploded, causing severe injuries to his left index finger. Pecoraro stated in his expert report that during glass bottle formation, cracks form and when the glass isn’t thick enough, cracks can lengthen during the rest of the bottling process and ultimately fracture in a consumer’s hands. Pecoraro measured the bottles of six other brands of beer and found an average thickness of .091 inches, while the Coors Light bottles measured an average thickness of only .069 inches.
Judge Denis R. Hurley concluded that Pecoraro’s testimony was not based on reliable data and methodology: “Plaintiffs have not provided to the Court any indication that the methodology that Pecoraro employed has been tested or subjected to peer review and publication, let alone generally accepted by the scientific community. In fact, when asked where his methodology came from, Mr. Pecoraro responded, ‘[m]y head,'” Hurley said. The Eastern District of New York thus precluded Pecoraro as an expert and granted MillerCoors’ motion for summary judgment.
While the MillerCoors case did not involve an experiment similar to those in Libbey andKarnauskas, it is worth noting that an expert may be precluded from offering manufacturing defect testimony in one case (or multiple), but subsequently admitted in another with seemingly undifferentiated testimony. One can only assume that Lamoure’s attorneys got their hands on the 2012 S.D.N.Y. ruling and made sure that Pecoraro’s “experiment” in the Libbey case did not suffer the same fate as the coffee carafe gaffe. Likely they also found the MillerCoors decision and prepared their expert to give a response – any response – other than “my head” when questioned about his methodology. These tactics paid off for Lamoure, at least here in the Daubert stage.
If nothing else, the Libbey decision is a reminder that courts are typically loathe to exclude expert testimony entirely, preferring instead to let any suspect opinions fall apart on cross-examination. As the case law on admissibility of expert testimony continues to develop, judges seem far more interested in whether an expert’s methodology can be connected to the conclusion in a supportable way, not necessarily that the methodology itself is unassailable. Picking up on the nuances in these rulings can make or break an expert’s ability to testify, regardless of where they fall on the spectrum.