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Godelia v. Zoll Services, LLC

United States District Court, S.D. Florida

August 13, 2019




         THIS CAUSE comes before the Court upon Defendant's Motion to Exclude Opinions of Plaintiffs' Expert Witness, Richard J. Daken, Jr., P.E. [ECF No. 63]. The Court has reviewed the Motion and the record and is otherwise fully advised. For the reasons set forth below, the Motion is denied.


         Defendant Zoll Services, Inc. (“Zoll”) designs, manufactures, and markets the LifeVest, a wearable defibrillator for patients at risk for sudden cardiac arrest. The LifeVest is made to detect life-threatening heart rhythms and automatically deliver a shock to restore the rhythm. The LifeVest is a Class III medical device, initially approved for sale in 2001 by the Food and Drug Administration (“FDA”).

         In November 2013, after recovering from a cardiac operation, Debra Godelia began using the LifeVest. On November 18, 2013, Mrs. Godelia experienced a defibrillation event[1] and lost consciousness. Although the parties dispute why, Mrs. Godelia's LifeVest did not administer a shock. Mrs. Godelia remained unconscious until she died in the hospital on November 20, 2013. Plaintiffs then filed this action against Defendant asserting claims for strict products liability, negligence, fraudulent misrepresentation, fraudulent marketing and promotion, breach of express warranty, negligent misrepresentation, and negligent infliction of emotional distress arising out of Mrs. Godelia's use of the LifeVest.[2]

         Defendant has now moved to exclude the opinions of Plaintiffs' expert witness, Richard J. Daken, Jr. In his Report, Mr. Daken opines that “the cable connecting the rear therapy electrode set to the distribution network (DN) was separated from the circuit board within the DN. This separation was the result of defective soldering.” Daken Rpt. 2, ¶ 2. In addition, Mr. Daken opines that “Zoll failed to implement regulatory-required processes to ensure that its manufacturing of the subject LifeVest, and in particular, the soldering at issue, was non-defective, ” and “[t]he defect . . . was a direct result of Zoll's failure to implement such manufacturing processes.” Id. at ¶ 3.[3]Defendant contends that Mr. Daken's Report and testimony must be excluded because (1) he is not qualified to render such opinions; (2) his opinions are not reliable; and (3) his opinions will not assist the trier of fact. The Court disagrees and finds that Defendant's primary arguments go to the credibility of Mr. Daken's opinions and the weight the jury should afford them rather than their admissibility.


         Federal Rule of Evidence 702, amended in 2000 in response to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), states that an expert witness may testify if: “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence 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.” Fed.R.Evid. 702(a)-(d). “As the Supreme Court made abundantly clear in Daubert, Rule 702 compels the district courts to perform the critical ‘gatekeeping' function concerning the admissibility of expert scientific evidence.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. 589 n.7).

         To perform it's gatekeeping duty, the Court must conduct a “rigorous three-part inquiry” under Rule 702, considering whether:

(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Frazier, 387 F.3d at 1260. The proponent of the expert bears the burden of showing, by a preponderance of the evidence, that each of these requirements is met. Id.

         While the Court's gatekeeping function ensures that unreliable testimony does not reach the jury, the Court must not make determinations on the credibility or persuasiveness of the proffered opinions; “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.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).

         I. Mr. Daken is Qualified

         “[A] witness who possesses general knowledge of a subject may qualify as an expert despite lacking specialized training or experience, so long as his testimony would likely assist a trier of fact.” Whelan v. Royal Caribbean Cruises Ltd., 976 F.Supp.2d 1328, 1331 (S.D. Fla. 2013). This is not a stringent standard. If the expert is “minimally qualified, objections to the level of the expert's expertise go to credibility and weight, not admissibility.” Nat'l Union Fire Ins. Co. of Pittsburgh v. Tyco Integrated Sec., LLC, No. ...

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