RATCLIFFE v. BRP US INC et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN J. RATCLIFFE, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:20-cv-00234-JAW
)
BRP U.S., INC., et al., 	)
)
Defendants. 	)
ORDER ON DEFENDANT BRP’S MOTION IN LIMINE TO EXCLUDE THE
OPINIONS OF DAVID LENOROVITZ
The court declines to bar the expert opinions of a human factors engineer and
ergonomist regarding the alleged inadequacy of the warning provided for a utility
terrain vehicle; however, based on a concession by the plaintiff, the court will not
allow the presentation of certain ancillary opinions that the plaintiff affirmed he does
not intend to seek to introduce into evidence.
I. 	BACKGROUND
With trial looming, on October 4, 2024, BRP U.S., Inc. (BRP) filed a motion in
limine to exclude the opinions of David R. Lenorovitz, Ph.D., an expert designated by
Stephen J. Ratcliffe, the plaintiff. Def. BRP’s Mot. in Lim. No. 3 and Supporting Br.
to Exclude the Ops. of David Lenorovitz (ECF No. 170) (Def.’s Mot.).1 On October 15,
2024, Mr. Ratcliffe filed his opposition to the exclusion of Dr. Lenorovitz as an expert
1 	For the reasons the Court described in its order on the Plaintiff’s motion to strike, the Court
has endeavored to resolve BRP’s Rule 702 motion in the brief interval before trial, now scheduled to
begin on November 12, 2023. The Court has done its level best, but counsel should understand that
BRP’s decision to file its Rule 702 motion as a motion in limine in the run-up to trial has necessarily
hampered the Court’s decision-making.
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 1 of 13 PageID #:
<pageID>

2
witness. 	Pl. Stephen J. Ratcliffe’s Obj. to Def. BRP’s Mot. in Lim. No. 3 and
Supporting Br. to Exclude the Ops. of David Lenorovitz (ECF No. 193) (Pl.’s Opp’n).
II. 	OVERVIEW
Mr. Ratcliffe has brought a lawsuit against BRP, the manufacturer, and Tidd’s
Sport Shop, Inc. (Tidd’s), the dealer, of a 2019 Can-Am Maverick X3, a utility terrain
vehicle (UTV), asserting negligence and strict liability claims arising out of an
incident in which Mr. Ratcliffe’s Maverick X3 rolled onto its side and crushed his arm.
The plaintiff is pursuing design defect and failure-to-warn theories of recovery.
During discovery, by report dated September 9, 2022, Mr. Ratcliffe designated Dr.
Lenorovitz, a human factors and warnings expert, as a Plaintiff expert. 	Def.’s Mot.,
Attach. 	1, 	Ratcliffe 	Human 	Factors 	Eng’g 	Analysis 	Report 	(ECF 	No. 	170-1)
(Lenorovitz Report). BRP deposed Dr. Lenorovitz on March 22, 2023. Id., Attach. 2,
Zoom Dep. of David R. Lenorovitz, Ph.D., CPE (ECF No. 170-2) (Lenorovitz Dep.). Mr.
Ratcliffe listed Dr. Lenorovitz as a witness in his pretrial memorandum. Pl. Stephen
J. Ratcliffe’s Pretrial Mem. at 7 (ECF No. 154).
In his September 9, 2022 report, Dr. Lenorovitz summarized his conclusions in
eleven bullet points at the end of the report. 	Lenorovitz Report at 44-45. 	Dr.
Lenorovitz wrote:
● 	There 	were 	differences 	in 	the 	product, 	sales, 	and 	marketing
information provided to Mr. Ratcliffe by the vehicle manufacturer and
its distributor.
● These differences resulted in Mr. Ratcliffe not receiving sufficiently
accurate or reliable information, and therefor[e] he:
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 2 of 13 PageID #:
<pageID>

3
○ Was led to believe the vehicle was more stable and less prone
to a hazardous rollover than it really was.
○ 	Was led to believe that Can-Am did not offer window nets
designed for safety purposes, but instead Can-Am only offered
window nets intended “to keep dust and debris out . . . like a little
screen door.” 	And, he was told that Tidd’s did not have those
window nets in stock any[]way.
○ 	Was led to believe that the side-by-side vehicle design safely
afforded two-person operation, but was not made aware of trade-
offs or adjustments that might be needed when operating in
single-operator mode.
● There was conflicting information or misperceptions fostered by
differing 	safety 	and 	product 	usage 	information 	that 	had 	been
promulgated 	by 	different 	organizations 	within 	the 	parent
manufacturing company, namely:
○ Engineering
○ Sales
○ Marketing
● 	Some Safety and Warnings information was misleading in that it
failed to clearly convey aspects of directions and instructions that could
practically be performed or accomplished by normal people behaving in
a normally predictable and expected manner (e.g., telling people where
to “Put” or “Keep” their hands, but ignoring the natural tendency for
those unconstrained hands to freely “fly” around - - likely toward danger
zones - - during predictable and foreseeable roll-over crashes).
● 	Within company-provided instructions, there were contradictions as
to how to accomplish certain necessary actions (e.g., when, where and
how “firmly” to grip the steering wheel).
● 	The 	manufacturer did not 	sufficiently 	explore and incorporate
technically and economically feasible solutions to design out hazardous
conditions, or provide adequate means to guard, shield or protect users
from those hazards.
○ Specify and install types of (4 pt.) seat belts commensurate with
users performing the intended types and extent of vehicular
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 3 of 13 PageID #:
<pageID>

4
activities and tasks commensurate with traveling at fast speeds
across rugged off-road terrain.
○ 	Industry 	standard 	and 	historically 	demonstrated 	safety
solutions were overlooked, rejected, or considered “out of scope”,
including:
▪ NASCAR type safety mesh window netting
▪ Wrist safety restraining straps
● 	Failing to provide the customer with unambiguous, non-confusing
instructions and warnings - - or instructions/warnings that could not
practically be followed - - constitutes a design defect.
● Failing to adequately inform the customer of foreseeable hazards, and
failing to provide said customer with technically and economically
feasible means of avoiding those foreseeable hazards constitute design
defects.
● These various defects and deficiencies were “built-in” to the vehicle’s
design and were present at the time of the product’s manufacture,
design, marketing, and sale - - thereby rendering the product defective
and unreasonably dangerous.
● 	The UTV was sold to Mr. Ratcliffe in a defective and unreasonably
dangerous condition.
● Mr. Ratcliffe’s manner of using the vehicle was entirely foreseeable.
Id.
III. 	THE POSITIONS OF THE PARTIES
A. 	BRP’s Motion to Exclude the Opinions of Dr. Lenorovitz
BRP seeks to exclude Dr. Lenorovitz’s expert opinions on the ground that they
violate the constraints of Federal Rule of Evidence 702 and the caselaw implementing
Daubert2 and Kumho3, as well as the prohibition on cumulative evidence under
2 	Daubert v. Merrell Down Pharms., 509 U.S. 579 (1993).
3 	Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 4 of 13 PageID #:
<pageID>

5
Federal Rule of Evidence 403. Def.’s Mot. at 1-10. Of Dr. Lenorovitz’s eleven opinions,
BRP focuses its challenge specifically on his conclusions “(i) that the BRP-provided
warnings were inadequate, insufficient, or inconsistent, and (ii) that the Subject
Vehicle was defectively designed.” Id. at 10.
BRP argues that “Lenorovitz’s opinions . . . are neither the product of a reliable
methodology nor based on sufficient facts or data.” 	Id. at 1. 	BRP criticizes Dr.
Lenorovitz’s opinions on these issues by maintaining that “[h]is core opinions are ipse
dixit—he essentially reads the warnings and claims they are inadequate, solely
relying on the testimony of Plaintiff and ignoring all contrary evidence.” 	Id. 	BRP
stresses that Dr. Lenorovitz’s opinions “are not based on any testing, and he has no
experience with the Subject Vehicle or other similar vehicles.” Id. BRP says that Dr.
Lenorovitz’s 	“opinions 	on 	‘reactive’ 	arm 	movement 	and 	alternative 	design 	are
cumulative of Plaintiff’s other experts.” Id.
BRP objects to what it characterizes as Dr. Lenorovitz’s “ancillary opinions.”
Id. at 3. Specifically, BRP describes these opinions as “(i) criticizing the lack of clarity
on if and how the vehicle-handling could be affected by occupancy load placement;
and (ii) claiming that the Subject Vehicle’s 3-point seat belts are insufficient.” 	Id.
(citing Lenorovitz Report at 42-43).
BRP contrasts these with what it describes as Dr. Lenorovitz’s “core opinions,”
which include:
(i) 	the warning to keep your hands inside the vehicle was ineffective
to prevent a supposed reactive arm movement to brace oneself
during a rollover;
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 5 of 13 PageID #:
<pageID>

6
(ii) 	the instruction to firmly grip the steering wheel conflicts with the
instruction to “brace for impact;” and
(iii) 	the warnings in the Operator’s Guide and on-product warnings to
“never do jumps, slides/skids (drifts), or doughnut type ‘tricks’ or
‘maneuvers” 	conflicts 	with 	BRP’s 	action 	of 	“engag[ing] 	the
services of professional drivers and celebrity brand ambassadors
that graphically perform. . . such maneuvers in widely accessible
on-line video clips and advertising promotions[.]”
Id. at 6 n.1 (internal citations omitted) (emphasis in original). 	BRP contends that
these core opinions “are neither the product of a reliable methodology nor based on
sufficient facts or data. 	He essentially offers ipse dixit opinions—he reads the
warnings and simply concludes that they are not adequate according to his self-
created standard.” 	Id. at 6. 	BRP argues that Dr. Lenorovitz “conducts no case-
specific testing, has no meaningful experience with side-by-sides, and ignores any
evidence that does not support his narrative.” Id.
B. 	Stephen J. Ratcliffe’s Opposition
Mr. Ratcliffe disagrees. Pl.’s Opp’n at 1-10. First, Mr. Ratcliffe observes that
BRP has not objected to Dr. Lenorovitz’s qualifications as a human factors expert. Id.
at 4.
Next, quoting Mizrahi v. Yamaha Motor Corp., U.S.A., No. 17-24484-CIV-
SCOLA/TORRES, 2019 U.S. Dist. LEXIS 125294, at *29-31 (S.D. Fl. July 19, 2019),
another challenge brought against Dr. Lenorovitz’s opinions for failure to conduct
testing, Mr. Ratcliffe says that the failure to conduct testing is not fatal to the
opinions of a warnings expert. 	Pl.’s Opp’n at 4-5. 	In fact, Mr. Ratcliffe notes that
BRP’s human factors expert, Steven Hall, also did not conduct any tests. Id. at 5-6.
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 6 of 13 PageID #:
<pageID>

7
Mr. Ratcliffe discounts BRP’s argument that Dr. Lenorovitz’s expert opinion
should be barred because he has never operated a UTV, again relying on the district
court in Mizrahi, which rejected a similar argument. Id. at 7 (quoting Mizrahi, 2019
U.S. Dist. LEXIS 124294, at *33-34).
Regarding BRP’s criticism that Dr. Lenorovitz offered no alternative warnings,
Mr. Ratcliffe turns again to Mizrahi, which described the argument as “flawed” and
indicated “[t]here is no requirement that an expert produce an alternative warning
for his testimony to be admissible.” 	Id. (quoting Mizrahi, 2019 U.S. Dist. LEXIS
124294, at *32-33).
Mr. Ratcliffe is unimpressed with BRP’s contention that Dr. Lenorovitz was
selective in the evidence that he relied upon. 	Id. at 8-9. Mr. Ratcliffe says that Dr.
Lenorovitz acted within his discretion in discounting outlier testimony and contends
that BRP failed to explore the foundation for Dr. Lenorovitz’s opinions on these points
during his deposition. Id. at 9.
Finally, Mr. Ratcliffe assures BRP that he does not intend to introduce Dr.
Lenorovitz’s ancillary opinions on the Maverick X3’s handling or seatbelts at trial.
Id. at 9-10.
IV. 	LEGAL STANDARDS
The admissibility of expert testimony is a question of law governed by Federal
Rule of Evidence 702 and by the United States Supreme Court in Daubert and its
progeny. Rule 702 provides:
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 7 of 13 PageID #:
<pageID>

8
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 	otherwise 	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.
F ED. R. EVID. 702.
The 	First 	Circuit 	has 	“long 	entrusted federal 	trial 	judges 	to 	be 	‘gate-
keeper[s],’ empowered by Rule 702 and Daubert to ‘ensure that an expert’s testimony
“both rests on a reliable foundation and is relevant to the task at hand.”’” United
States v. Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting Daubert, 509 U.S. at 597).
“[T]he overarching concern is on the ‘evidentiary relevance and reliability’ of the
proposed testimony,” with speculative expert testimony often satisfying neither
criterion. Seahorse Marine Supplies, Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 81 (1 st Cir.
2002) (quoting Daubert, 509 U.S. at 595); see also Boucher v. U.S. Suzuki Motor Corp.,
73 F.3d 18, 22 (2d Cir. 1996) (“Admission of expert testimony based on speculative
assumptions is an abuse of discretion”).
In general, “[e]xpert testimony is admissible if ‘scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue’ and if the proposed witness is qualified as an expert by some
specialized ‘knowledge, skill, experience, training, or education.’” 	Liberty Mut. Ins.
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 8 of 13 PageID #:
<pageID>

9
Co. v. Broan-NuTone LLC, No. 21-cv-11986-DLC, 2024 U.S. Dist. LEXIS 76408, at *6
(D. Mass. Apr. 26, 2024) (quoting Daubert, 509 U.S. at 588).
Both Mr. Ratcliffe and BRP have referred to the 2023 amendments to Federal
Rule of Evidence 702.4 	The advisory committee on evidence rules explained the
purposes of the amendment: “[f]irst, the rule has been amended to clarify and
emphasize 	that 	expert 	testimony 	may 	not 	be 	admitted 	unless 	the 	proponent
demonstrates to the court that it is more likely than not that the proffered testimony
meets the admissibility requirements set forth in the rule.” 	F ED. R. EVID. 702
advisory committee’s note to 2023 amendment. The committee cited Federal Rule of
Evidence 104(a) to explain “[t]his is the preponderance of the evidence standard that
applies to most of the admissibility requirements set forth in the evidence rules.” Id.
(citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). The committee continued
to say “Rule 702(d) has also been amended to emphasize that each expert opinion
must stay within the bounds of what can be concluded from a reliable application of
the expert’s basis and methodology.” Id. The committee concluded that “[n]othing in
the amendment imposes any new, specific procedures. 	Rather, the amendment is
4 	In 2023, Federal Rule of Evidence 702 was amended as follows:
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 the proponent
demonstrates to the court that it is more likely than not that:
(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 expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.
FED. R. E VID. 702, 2023 amends.
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 9 of 13 PageID #:
<pageID>

10
simply intended to clarify that Rule 104(a)’s requirement applies to expert opinions
under Rule 702.” Id.
V. 	DISCUSSION
First, although BRP criticizes Dr. Lenorovitz’s opinions in this case, it has not
questioned his expert qualifications as a human factors and warnings expert. Rightly
so. 	Dr. Lenorovitz is well-qualified as a human factors and warnings expert. 	See
Lenorovitz Report at 1-3; Mizrahi, 2019 U.S. Dist. LEXIS 125294, at *28-35 (accepting
Dr. Lenorovitz’s testimony as a human factors and warnings expert).
Next, 	BRP 	incorporates 	into 	its 	motion 	the 	catchphrases 	for 	expert
disqualification. 	Def.’s Mot. at 1-10 (“ipse dixit opinions,” “no presumption of
admissibility”, “neither the product of a reliable methodology nor based on sufficient
facts or data,” “copy-and-paste opinions,” “no evidence that Lenorovitz conducted any
physical testing for this case,” “methodology is flawed”). 	Underlying each of these
assertions, however, is the fundamental critique that Dr. Lenorovitz’s testimony is
unreliable because “[h]is opinions are not based on testing or experience.” 	Id. at 8.
In other words, his expert opinions “are tethered to the facts only by his say so.” Id.
BRP complains that Dr. Lenorovitz did no testing. It is true that in Daubert,
the Supreme Court listed testing among the factors a district court should weigh in
determining whether expert testimony is reliable:
(1) whether the scientific theory or technique can be (and has been)
tested; (2) whether it has been subjected to peer review and publication;
(3) whether it has a known rate of error; (4) whether there are standards
controlling its application or operation; and (5) whether it is generally
accepted in the relevant scientific community.
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 10 of 13 PageID #:
<pageID>

11
Id., 509 U.S. at 593-94. 	But the absence of testing does not necessarily require
exclusion. See Haley v. Exec. Off. of HHS, No. 23-11691-RGS, 2024 U.S. Dist. LEXIS
76414, at *3 n.1 (D. Mass. Apr. 26, 2024) (“[A]n expert is not required to rely only on
his own primary research in forming an opinion”); Costa v. FCA US LLC, No. 20-cv-
11810-ADB, 2022 U.S. Dist. LEXIS 239194, at *9 (D. Mass. Sept. 30, 2022).
In Costa, addressing the admissibility of an ergonomics expert’s opinion, the
district court wrote that “[t]his type of ergonomics analysis is well-established.” 	Id.
In ruling the ergonomics expert’s testimony admissible, the district court observed
that the expert’s “expertise in this area is unquestioned” and that the expert
“reviewed the relevant literature and applied his knowledge to the facts in the case
to form his conclusions.” Id. at *10. Other courts have admitted ergonomics expert
testimony on the same basis. 	See, e.g., Hewitt v. Metro-N. Commuter R.R., 244 F.
Supp. 3d 379, 388 (S.D.N.Y. 2017) (“[T]he evidence before the Court suggests that the
science of ergonomics is sufficiently well-established so as to justify admitting expert
testimony on the topic, even when the expert has not personally observed the
allegedly unsafe job environment”); Rowley v. Union Pac. R.R. Co., No. 11-cv-46, 2016
U.S. Dist. LEXIS 153391, at *7-8 (E.D. Wis. Nov. 3, 2016); Michaels v. Mr. Heater,
Inc., 411 F. Supp. 3d 992, 999-1000 (W.D. Wis. 2006).
Here, in his report, Dr. Lenorovitz details the data and information he
reviewed, including the transcripts of multiple depositions, his inspection of the
actual Can-Am Maverick X3 in this case, his reference to American National
Standards Institute (ANSI) standards, thirteen published articles, the documents
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 11 of 13 PageID #:
<pageID>

12
and materials about the Can-Am Maverick X3 that were supplied to Mr. Ratcliffe,
including the 2019 Operator’s Guide, his analysis of the “hazard control hierarchy”
in this case, the sufficiency of the warnings, and his conclusions about deficiencies.
Lenorovitz Report at 1-49. From the Court’s perspective, Dr. Lenorovitz has satisfied
his obligation to demonstrate that his expert opinions rest “on a reliable foundation”
and are “relevant to the task at hand.” Daubert, 509 U.S. at 597.
In summary, the Court rejects BRP’s Daubert/Kumho challenge to the expert
testimony of Dr. Lenorovitz as the Plaintiff’s ergonomics, human factors, and
warnings expert. 	The Court concludes that Dr. Lenorovitz’s proposed testimony
meets the requisite “threshold of reliability,” and therefore it “should be presented to
a jury and ‘tested by the adversary process—[by] competing expert testimony and
active cross examination.’” United States v. Santana-Vasquez, 2022 U.S. Dist. LEXIS
199196, at *5 (D. Me. Nov. 2, 2022) (quoting Vargas, 471. F.3d at 265); see also
Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence”). 	In doing so, the
Court has considered the 2023 amendments to Rule of Evidence 702 and makes this
determination in accordance with the requirements of Rule 104(a).
VI. 	CONCLUSION
The Court GRANTS in part and DISMISSES in part without prejudice
Defendant BRP’s Motion in Limine No. 3 and Supporting Brief to Exclude the
Opinions of David Lenorovitz (ECF No. 170). The Court GRANTS Defendant BRP’s
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 12 of 13 PageID #:
<pageID>

13
motion to the extent that it seeks to exclude so much of Dr. Lenorovitz’s opinion
testimony that constitutes ancillary opinions. 	The Court otherwise DISMISSES
BRP’s motion in limine without prejudice.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 5th day of November, 2024
Case 1:20-cv-00234-JAW Document 255 Filed 11/05/24 Page 13 of 13 PageID #:
<pageID>