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Rowan v. Sunflower Electric Power Corp.

United States District Court, D. Kansas

August 21, 2017

Michael Rowan, Plaintiff,
Sunflower Electric Power Corporation and Mid-Kansas Electric Company, LLC; Defendants.


          John W. Lungstrum United States District Judge.

         On August 29, 2013, plaintiff sustained electrical injuries when he was installing a guard structure under an overhead power transmission line during a utility line construction project near Medicine Lodge, Kansas. Plaintiff asserts negligence claims against the owner of the transmission line, Mid-Kansas Electric Company, LLC, and the operator of the transmission line, Sunflower Electric Power Corporation. This matter is now before the court on plaintiff's motion to exclude the testimony of defendants' bioelectrical expert Mark Kroll. According to defendants' evidence, Mr. Kroll's scientific specialty is bioelectricity, which concerns the interaction of electricity and the human body and the effects of electricity on the body. Mr. Kroll's affidavit establishes that he has received advanced degrees in electrical engineering; that he is an adjunct professor of biomedical engineering at California Polytechnic University and the University of Minnesota; and that he is a regular lecturer on the issues of therapeutic and traumatic shocks, most commonly to physicians. He recently lectured at Stanford University Hospital and Cornell University Medical School. Mr. Kroll avers that he currently sits on the highest committee that debates and establishes electrical injury safety limits for the world and that he is one of three voting members from the United States. He has performed considerable research, authored numerous scientific articles and chapters, and is an inventor on over 300 issued U.S. patents in the field of bioelectricity. He has been retained as an expert witness in more than 140 criminal and civil cases involving real and alleged high-voltage electrical injury.[1]

         Mr. Kroll's expert report contains eleven opinions, including his opinions on the nature and extent of the electrical shock received by plaintiff; whether the shock received by plaintiff could have caused or contributed to certain injuries asserted by plaintiff; and whether plaintiff's injuries would have been reduced if he had been wearing rubber gloves at the time of the incident. In his motion, plaintiff challenges to some extent each of the opinions asserted by Mr. Kroll. In resolving plaintiff's motion, the court assumes familiarity with the court's memorandum and order resolving the parties' motions for summary judgment and the parties' factual showing on summary judgment. As will be explained, the motion is granted in part and denied in part. It is granted to the extent that Mr. Kroll may not testify that plaintiff suffered no brain damage as a result of the incident and is otherwise denied.


         In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court instructed that district courts are to perform a “gatekeeping” role concerning the admission of expert testimony. See Id. at 589-93; see also Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147-48 (1999). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.

         In order to determine that an expert's opinions are admissible, this court must undertake a two-part analysis: first, the court must determine that the witness is qualified by “knowledge, skill, experience, training, or education” to render the opinions; and second, the court must determine whether the witness's opinions are “reliable” under the principles set forth in Daubert and Kumho Tire. See Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001). The rejection of expert testimony is the exception rather than the rule. See Fed. R. Evid. 702 advisory committee notes. Under Rule 702, “[t]he proponent of expert testimony bears the burden of showing” that its proposed expert satisfies these requirements, and district courts have considerable latitude in determining whether the proponent has satisfied this burden. See Heer v. Costco Wholesale Corp., 589 Fed.Appx. 854, 861 (10th Cir. 2014) (quoting United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); Kumho Tire, 526 U.S. at 152).

         Opinions Regarding Amount and Duration of Current

         In Opinion 4, Mr. Kroll calculates the amount of current that entered plaintiff's body and the duration of time that plaintiff was exposed to the current. Plaintiff contends that this opinion must be excluded because it is speculative and unreliable. According to plaintiff, other experts-including one of defendants' experts-have opined that performing such calculations would be “almost impossible” and plaintiff's expert Mr. Johnson avers that there are simply too many unknown variables to reliably calculate those numbers. As defendants highlight, however, the fact that calculations are “almost impossible” for certain experts does not render those calculations impossible for every expert. Mr. Kroll has, in fact, performed those calculations and plaintiff can explore on cross-examination the specific variables utilized by Mr. Kroll.

         Plaintiff further asserts that Opinion 4 is unreliable because it is based on an incorrect assumption found in Opinion 2 of the expert report-that plaintiff was not in direct contact with the pole at the time the pole was energized but had his fist clenched as much as 1.4 inches away from the pole at that time. Plaintiff urges that eye-witness testimony demonstrates that plaintiff was holding the pole at the time the pole was energized. While this is certainly something about which plaintiff can inquire during cross-examination, Mr. Kroll has sufficiently explained his assumption (i.e., based on eye-witness testimony that there was an electrical “arc, ” some distance was required between plaintiff's fist and the pole) such that the opinion is not excludable on that basis. The court further rejects plaintiff's argument that Mr. Kroll “arbitrarily” selected “random” numbers to support his calculations. Mr. Kroll explained that he estimated the distance between plaintiff's fist and the pole (and other distances utilized in his calculations) based on his knowledge of the distance that electricity can “jump” or “arc” depending on the voltage.

         Finally, plaintiff contends that Mr. Kroll's calculation as to the duration of the shock that plaintiff received (between 2 and 8 milliseconds) lacks credibility because eye-witnesses would not have been able to observe an arc connection in such a short period of time. But plaintiff has not challenged the methodology used by Mr. Kroll in calculating the duration of the shock and the record reflects that Mr. Kroll is qualified to make those calculations. Plaintiff, then, may examine Mr. Kroll at trial about whether his calculations are consistent with a witness observing an arc connection but the court will not exclude those calculations.[2]

         Lack of Medical Training and Expertise

         In his report, Mr. Kroll opines that the electrical shock received by plaintiff did not pass near the brain and, accordingly, the shock could not have caused any memory deterioration, headaches or brain damage (Opinion 5); that the shock could not have caused any nerve damage to plaintiff's lower back or any permanent nerve damage elsewhere (Opinions 7 and 10); that the shock could not have caused or contributed to any depression or PTSD asserted by plaintiff (Opinion 9); and that the shock could not have caused any internal injuries or organ damage (Opinion 11). Plaintiff moves to exclude these opinions on the grounds that Mr. Kroll is not qualified to render medical, psychiatric or neuropsychological opinions because he ...

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