Justice v. Safeway (USA), Inc.

[[COURTLISTENER_SUBOPINION {"id":"10772425","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT                             
               EASTERN DISTRICT OF MISSOURI                             
                      EASTERN DIVISION                                  

KYLE JUSTICE and ANNALEAH       )                                         
JUSTICE,                        )                                         
                              )                                         
   Plaintiffs,                )                                         
                              )                                         
v.                            )       No. 4:22-cv-00050-AGF             
                              )                                         
BESTWAY (USA), INC., and RURAL  )                                         
KING HOLDINGS, LLP,             )                                         
                              )                                         
   Defendants,                )                                         
                              )                                         
and                             )                                         
                              )                                         
BESTWAY (USA), INC.,            )                                         
                              )                                         
   Third-Party Plaintiff,     )                                         
                              )                                         
v.                            )                                         
                              )                                         
MARY FLAKE and PATRICK FLAKE,   )                                         
                              )                                         
   Third-Party Defendants,    )                                         
                              )                                         
and                             )                                         
                              )                                         
RURAL KING HOLDINGS, LLP,       )                                         
                              )                                         
   Cross Claimant,            )                                         
                              )                                         
v.                            )                                         
                              )                                         
MARY FLAKE and PATRICK FLAKE,   )                                         
                              )                                         
   Cross Defendants,          )                                         
                              )                                         
and                             )                                         
                              )                                         
RURAL KING HOLDINGS, LLP,       )                                         
                              )                                         
   Third-Party Plaintiff,     )                                         
                              )                                         
v.                            )                                         
                              )                                         
BESTWAY (HONG KONG)             )                                         
INTERNATIONAL LIMITED and       )                                         
BESTWAY INFLATABLES &           )                                         
MATERIALS CORPORATION,          )                                         
                              )                                         
   Third-Party Defendants.    )                                         

                 MEMORANDUM AND ORDER                                   

   This matter is before the Court on Third-party Defendants Bestway (Hong Kong) 
International Limited’s and Bestway Inflatables & Materials Corporation’s (collectively, 
the “Bestway Entities”) Motion to Exclude the expert reports, testimony, and opinions of 
Dr. Kevin A. Rider, PhD.  ECF No. 119.  Dr. Rider was designated as an expert witness 
by Third-party Defendants Mary and Patrick Flake.  The Flakes filed a response (ECF 
No. 131), and the Bestway Entities filed a reply (ECF No. 145).  This matter is now fully 
briefed and ripe for disposition.  For the reasons set forth below, the Court will grant in 
part and deny in part the Bestway Entities’ Motion.                       
                         Background                                     
   This case involves claims raised by Plaintiffs Kyle and Annaleah Justice against 
Defendants Bestway USA and Rural King Holdings, Inc. under the Missouri Wrongful 
Death Statute,
Mo. Rev. Stat. § 537.080
.  Plaintiffs’ claims arise from the drowning death 
of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.  Plaintiffs 
filed their Complaint against Bestway USA and Rural King on January 18, 2022.  ECF 
No. 5.                                                                    

   On March 10, 2022, Bestway USA filed a Third-party Complaint against Third-
party Defendants, Mary and Patrick Flake, E.M.J.’s grandparents and the owners of the 
pool in which E.M.J. drowned.  Bestway USA raises two claims against the Flakes: 
Count I for Premises Liability and Count II for Negligence.  ECF No. 10.  
   On August 25, 2023, Defendant Rural King filed a Third-party Complaint raising 
four total claims against the Bestway Entities: Count I – Negligence against Bestway 

Hong Kong; Count II – Negligence against Bestway Inflatable and Materials 
Corporation; Count III – Strict Liability against Bestway Hong Kong; and Count IV – 
Strict Liability against Bestway I&M.  ECF No. 76.                        
   Dr. Kevin Rider, PhD, is a human factors and engineering expert retained by 
Third-party Plaintiffs Mary and Patrick Flake.  ECF No. 119-1 at 2.  He was retained “to 

determine if the subject pool was safe for its intended use, particularly as it relates to 
other expert opinions that have been provided regarding the same.”
Id.
Dr. Rider holds a 
PhD in industrial and operations engineering from the University of Michigan and 
master’s and bachelor’s degrees in industrial engineering from the University of 
Tennessee.
Id.
He has nearly thirty (30) years of experience in the fields of engineering 

and human factors.  He intends to offer the following opinions:           
   1.   The Flakes and Justices complied with the warning of which they 
        were aware – the ladder had been removed from the pool.         
   2.   Based on [E.M.J.]’s demonstrated climbing abilities, the removal of 
        the ladder should have provided an effective guard, which would have 
        prevented this incident from occurring.                         
   3.   The published literature is consistent with the conclusion of Detective 
        Doerr and others regarding how this incident occurred.          
   4.   The nylon strap effectively created a wall that was approximately 37” 
        high, 11 inches shorter than the 48” barrier requirement, defeating the 
        performance criteria intended by standards.                     
   5.   The effective height of the subject pool wall failed to provide the 
        safety intended by relevant standards and created an unreasonable risk 
        of harm to toddlers, such as [E.M.J.].
Id. at 9
.                                                                 
   The Bestway Entities argue that Dr. Rider’s opinions should be excluded because 
they are not based on sufficient facts and data, are not the result of a reliable application 
of a methodology to the facts, and are speculative and unhelpful to the jury.  Specifically, 
the Bestway Entities contend that Dr. Rider did not perform any of his own data 
collection or analysis, but rather accepted information and data provided to him by other 
experts in the case and opined on whether these other experts’ conclusions fit that data.  
The Bestway Entities argue that Dr. Rider’s failure to obtain data independently and to 
conduct his own testing render his conclusions inadmissible.  The Bestway Entities rely 
on Missouri case law1 on the admissibility of expert opinion, but do not explain why this 
case law is applicable in this Court, which is governed by the Federal Rules of Evidence. 

1    At one point in their brief, the Bestway Entities even describe a Missouri Court of 
Appeals case as an opinion from this Court.  ECF No. 119 at 9 (citing to Hargan v. Sears, 
Roebuck and Co.,
787 S.W.2d 766, 768
(Mo. Ct. App. 1990), but inaccurately 
representing it as a coming from E.D. Mo.).  This case, like the other cited opinions from 
Missouri courts regarding Missouri rules of evidence, is inapplicable here. 
   As to their argument that Dr. Rider did not reliably apply a methodology to the 
facts, the Bestway Entities present several related arguments.  First, the Bestway Entities 

assert that Dr. Rider failed to account for Mary Flake’s past experience babysitting and 
raising children in forming his conclusions about what dangers she was aware of 
regarding the pool.  Second, the Bestway Entities also question the reliability of Dr. 
Rider’s opinion regarding what warnings the Flakes and the Justices were aware of given 
their testimony that they never read the pool’s warnings.  Third, the Bestway Entities 
contend that Dr. Rider improperly relied on studies about the climbing abilities of three-

year-old children rather than crediting results from those studies regarding two-year-old 
children.  The Bestway Entities argue that because E.M.J. was two at the time of her 
death, Dr. Rider cannot reliably compare her alleged abilities to those of three-year-olds 
included on such studies.                                                 
   The Bestway Entities arguments that Dr. Rider’s testimony will not be helpful to 

the jury are a repeat of their previous arguments.  They contend that Dr. Rider’s opinions 
“should be excluded because they are so fundamentally unsupported that they can offer 
no assistance to the jury.”  ECF No. 119 at 14.  The Bestway Entities then argue that Dr. 
Rider is not qualified to testify regarding industry design standards and therefore should 
be precluded from offering any opinions on those issues.                  

   The Flakes provide a brief response to each of the Bestway Entities’ arguments.  
First, the Flakes argue that the issue of whether Dr. Rider’s conclusions are supported by 
sufficient facts or data is one of weight and not admissibility.  The Flakes emphasize that 
Dr. Rider’s is not required to rely exclusively on data and information he personally 
gathered, and instead he must only rely on sufficient, competent evidence. 

   Second, the Flakes argue that Dr. Rider’s opinions are the result of a reliable 
application of a human factors methodology to the facts of this case.  They state, without 
citation to the record, that he relied on peer-reviewed articles and published literature in 
the field of human factors analysis in forming his conclusions.  The Flakes then state that 
Dr. Rider’s testimony should be admitted because it is relevant.          
   Third, the Flakes argue that Dr. Rider’s opinions will be helpful to the jury 

because “his expertise and insight into human behavior . . . are beyond the 
comprehension of a layperson.”  ECF No. 131 at 7.  The Flakes explain that Dr. Rider’s 
testimony will help the jury to understand why the Flakes and the Justices acted as they 
did.                                                                      
   The Bestway Entities’ reply briefly repeats the arguments from the Motion and 

points out that the Flakes failed to respond to some of these arguments, particularly 
regarding Dr. Rider’s reliance on study results for three-year-olds rather than two-year-
olds’ abilities to climb various barriers.                                
                        Legal Standard                                  
   The admission of expert testimony in this Court is governed by Federal Rule of 

Evidence 702, which provides that:                                        
   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’s opinion reflects a reliable application of the principles 
        and methods to the facts of the case.                           
   The rule was amended in 2000 in response to Daubert v. Merrell Dow   
Pharmaceuticals, Inc., which charged trial judges with a “gatekeeping” role to screen 
expert testimony for relevance and reliability.
509 U.S. 579
, 590–93 (1993); see also 
Russell v. Whirlpool Corp.,
702 F.3d 450, 456
(8th Cir. 2012).  “To satisfy the relevance 
requirement, the proponent must show that the expert’s reasoning or methodology was 
applied properly to the facts at issue.”  Barrett v. Rhodia, Inc.,
606 F.3d 975, 980
(8th 
Cir. 2010) (citation omitted).  “To satisfy the reliability requirement, the party offering 
the expert testimony ‘must show by a preponderance of the evidence both that the expert 
is qualified to render the opinion and that the methodology underlying his conclusions is 

scientifically valid.’”
Id.
(quoting Marmo v. Tyson Fresh Meats, Inc.,
457 F.3d 748, 757
(8th Cir. 2006)); see also In re Paoli R.R. Yard PCB Litig.,
35 F.3d 717, 742
(3d Cir. 
1994) (“[A]n expert’s testimony is admissible so long as the process or technique the 
expert used in formulating the opinion is reliable.”) (citing Daubert,
509 U.S. at 589
).   
   In the most recent amendment to Rule 702, made effective on December 1, 2023,2 
the advisory committee’s note clarifies the Court’s initial gatekeeping function and 

emphasizes that proponents of expert testimony must establish admissibility of the 
proffered evidence by a preponderance of the evidence.  Fed. R. Evid. 702 advisory 
committee’s note to 2023 amendment; see also Word v. Mine Safety Appliances Co., No. 
5:14-CV-00445-BRW,
2016 WL 3034045
, at *2 (E.D. Ark. Mar. 25, 2016) (stating 
“[w]hen a party proffers an expert witness, deciding whether Rule 702 is satisfied is a 
preliminary issue governed by Federal Rule of Evidence 104(a)[, which] requires the 

proponent of evidence to establish its admissibility by a preponderance of the 
evidence.”); United States v. Martinez,
3 F.3d 1191, 1196
(8th Cir. 1993) (“Before 
admitting scientific expert testimony, the court must conclude, pursuant to Federal Rule 
of Evidence 104(a) that the proposed testimony constitutes (1) scientific knowledge that 
(2) will assist the trier of fact to understand or determine a fact in issue.”) (citing 

Daubert,
509 U.S. at 592
) (footnote omitted).  “The preponderance standard ensures that 
before admitting evidence, the court will have found it more likely than not that the 
technical issues and policy concerns addressed by the Federal Rules of Evidence have 
been afforded due consideration.”  Bourjaily v. United States,
483 U.S. 171, 175
(1987).  
The advisory committee’s note also states that “many courts have held that the critical 

questions of the sufficiency of an expert’s basis, and the application of the expert’s 

2    The advisory committee’s note clarifies that this amendment does not impose any 
new, specific procedures, but instead “is simply intended to clarify that Rule 104(a)’s 
requirement applies to expert opinions under Rule 702.”  Fed. R. Evid. 702 advisory 
committee’s note to 2023 amendment.                                       
methodology, are questions of weight and not admissibility.  These rulings are an 
incorrect application of Rules 702 and 104(a).”  Fed. R. Evid. 702 advisory committee’s 

note to 2023 amendment.                                                   
   “The inquiry envisioned by Rule 702 is a flexible one,” designed to exclude 
“vague theorizing based on general principles” or “unsupported speculation,” but not 
requiring an opinion to be “a scientific absolute in order to be admissible.”  Adams v. 
Toyota Motor Corp.,
867 F.3d 903
, 914–16 (8th Cir. 2017) (cleaned up); see also Kumho 
Tire Co. v. Carmichael,
526 U.S. 137
, 141–42 (1999) (“[T]he test of reliability is 

‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively 
applies to all experts or in every case.  Rather, the law grants a district court the same 
broad latitude when it decides how to determine reliability as it enjoys in respect to its 
ultimate reliability opinion.”); Unrein v. Timesavers, Inc.,
394 F.3d 1008, 1011
(8th Cir. 
2005) (stating that the “evidentiary inquiry is meant to be flexible and fact specific, and a 

court should use, adapt, or reject Daubert factors as the particular case demands.”) 
(citation omitted).  Further, Rule 702(d) has been amended to emphasize that the 
reliability analysis applies to each opinion offered.  Fed. R. Evid. 702 advisory 
committee’s note to 2023 amendment.                                       
                          Discussion                                    

   The preponderance of the evidence supports the admissibility of most, but not all, 
of Dr. Rider’s opinions.  Dr. Rider is qualified to offer expert testimony regarding human 
factors and engineering, and he offers opinions relating to those fields of expertise.  The 
preponderance of the evidence shows that he has relied on sufficient facts and data and 
has reliably applied a human factors methodology to those facts and data in forming his 
Opinions 1, 2, 4, and 5.  The Court finds that these opinions are relevant and will be 

helpful to the jury.  But the preponderance of the evidence does not support the 
admissibility of Dr. Rider’s Opinion 3.                                   
   Dr. Rider’s Opinion 1 regarding the Flakes and the Justices’ actions regarding 
removing the ladder from the pool and their understanding of the ladder’s danger is 
admissible.  While the Bestway Entities argue that Dr. Rider cannot have reliably arrived 
at this opinion because the Flakes and Justices testified that they did not read the pool’s 

included warnings, this opinion does not require that the Flakes or the Justices read those 
warnings.  The Flakes and the Justices testified that they knew that leaving the ladder on 
the pool would create a danger to the children, and they made sure to remove the pool 
ladder when the pool was not in use.  Dr. Rider will therefore not be permitted to 
reference the Flakes’ or the Justices’ review and understanding of the pool’s included 

warnings, but, as a human factors expert, Dr. Rider is qualified to testify to the Flakes’ 
and Justices’ understanding of the danger presented by the pool and its ladder. 
   The Bestway Entities misrepresent Dr. Rider’s testimony when they argue that he 
failed to consider Mrs. Flake’s experience with babysitting.  Dr. Rider, in response to a 
question regarding Mrs. Flake’s background as a babysitter for local families, testified 

that he recalled her testimony generally but did not recall specifics regarding her 
babysitting experiences.  ECF No. 119-2 at 111:10–24.  Dr. Rider then testified that he 
does not have an opinion on whether Mrs. Flake’s background as a babysitter would have 
made her more aware of potential dangers of leaving a toddler unsupervised.
Id.
at 
111:25–113:1.  The Bestway Entities argue that Dr. Rider could not have properly 
formed an opinion based on sufficient facts and data when he ignored this testimony from 

Mrs. Flake.  But the fact remains that Dr. Rider based his opinion on sufficient facts and 
data, and the Bestway Entities are free to cross-examine Dr. Rider regarding testimony 
that they believe conflicts with his conclusions.                         
   Dr. Rider’s Opinion 2—that removing the pool’s ladder should have rendered the 
pool safe given E.M.J.’s known climbing abilities—is admissible.  Again, this opinion is 
within Dr. Rider’s area of expertise, and he relied on sufficient facts and data when 

forming this opinion.  The fact that Dr. Rider himself did not conduct any studies or his 
own observations does not render Opinion 2 unreliable or inadmissible.  The Bestway 
Entities have cited no caselaw from this Circuit or any federal court that supports 
excluding Dr. Rider’s testimony simply because he did not conduct independent testing 
or personally observe the scene of the drowning.  In fact, experts are not required to 

conduct independent testing nor are they required to conduct direct observations of the 
scene to offer opinions.  See Klingenberg v. Vulcan Ladder USA, LLC,
936 F.3d 824, 829
(8th Cir. 2019) (rejecting argument that expert’s testimony should have been excluded 
because expert failed to “test his theories on the damaged [product] or an exemplar 
model.”) (citing Shuck v. CNH Am., LLC,
498 F.3d 868, 875
(8th Cir. 2007) (rejecting the 

same)).  Under Federal Rule of Evidence 703, “[a]n expert may base an opinion on facts 
or data in the case that the expert has been made aware of or personally observed.” 
(emphasis added).  Dr. Rider has been made aware of facts of this case through the 
testimony of witnesses and expert reports, which he personally reviewed.  He then 
analyzed those facts and data to come to his conclusions.  The Bestway Entities have not 
shown that this information is not the type generally relied upon by human factors 

experts.  The Court finds no reason to exclude Dr. Rider’s testimony simply because he 
did not conduct his own studies or personally observe the scene, and Dr. Rider will 
therefore be permitted to testify to his Opinion 2.                       
   Dr. Rider’s Opinions 4 and 5 are admissible for many of the same reasons already 
discussed.  The Bestway Entities suggest that Dr. Rider cannot provide these opinions 
because he testified that he is not an expert in certain applicable standards for above-

ground pools, but they again misrepresent Dr. Rider’s testimony.  He testified that he is 
not an expert on the specific standards “in their entirety,” but rather that he is an expert 
on them “[a]s it relates to human factors.”  ECF No. 119-2 at 174:20–21.  He will be 
permitted to testify regarding his understanding of these industry standards as it relates to 
human factors and engineering in Opinions 4 and 5.  These opinions will also be helpful 

to the jury as they are outside of the knowledge or experience of the average lay juror and 
will help the jury to determine the potential fault to attribute to the Flakes and/or the 
Bestway Entities.                                                         
   Dr. Rider’s Opinion 3, however, is inadmissible because it reflects an unreliable 
application of the data to the facts of this case.  To arrive at the conclusion that the 

published literature regarding children’s climbing abilities is consistent with Detective 
Doerr’s conclusions about how E.M.J. entered the pool Dr. Rider must make too great an 
analytical leap between the data he cites and the facts of this case.     
   To arrive at Opinion 3, Dr. Rider relies on several studies regarding the climbing 
abilities of children.  In one of these studies, 52% of three-year-old participants were able 

to climb a three-foot barrier while 22% of them were able to climb a four-foot barrier.  
ECF No. 119-1 at 5.  Dr. Rider admits that E.M.J. was approximately thirty-one and a 
half (31.5) months old at the time of her death and was between thirty-five inches (35”) 
and thirty-six- and one-half inches (36.5”) tall.  Dr. Rider then states that twenty-four 
(24) month old children are, on average, thirty-three- and three-quarters inches (33.75”) 
tall.  Dr. Rider then cites to another study that found that 13% of toddlers ranging from 

twenty-four (24) to thirty-six (36) months old were able to climb a four-foot chain link 
fence.  He then concludes that this literature is consistent with Detective Doerr’s 
conclusions that E.M.J. was able to enter the pool by climbing the pool’s wall using the 
nylon support strap as a foothold.
Id.
at 5–6.                           
   Dr. Rider does not sufficiently explain why study data regarding three-year-old 

participants’ climbing abilities is relevant here when E.M.J. was just over two-and-a-half 
years old.  Dr. Rider references E.M.J.’s height and asserts that “she’s closer to three and 
taller than average [height] of a 24 month old . . . .”  ECF No. 119-2 at 159:7–8.  He 
admits that study participants that were around the same age as E.M.J. or even one month 
shy of three-years old would have been counted in the two-year old data set in the study.
Id.
at 156:20–157:20.  His only explanation for why he’s not considering the two-year 
old’s data set is E.M.J.’s height, but he also admits that E.M.J. was one inch (1”) shorter 
than an average three-year old.
Id.
at 165:14–166:17.  While Dr. Rider factors in 
E.M.J.’s height, he fails to account for potential developmental and motor differences 
between two and three-year olds.  Neither Dr. Rider nor the Flakes have presented any 
evidence that height was a measured variable in the study he relies on or that the study’s 

conclusions relied upon the participants’ heights rather than their age.  Dr. Rider also fails 
to explain why data regarding twenty-four (24) to thirty-six (36) month old’s ability to 
climb a four-foot chain link fence is applicable to this case, which does not involve a 
chain-link fence but instead involves a solid barrier.  Given these gaps between the data 
Dr. Rider relies upon and the facts in this case, the Court finds that the analytical leap 
necessary for Dr. Rider to arrive at his Opinion 3 is too great and will be excluded.  Gen. 

Elec. Co. v. Joiner,
522 U.S. 136, 146
(1997) (“A court may conclude that there is simply 
too great an analytical gap between the data and the opinion proffered.”) (citation 
omitted).                                                                 
   Dr. Rider’s Opinions 1, 2, 4, and 5, expect as noted herein, are based on sufficient 
facts and data, are reliable, are within Dr. Rider’s areas of expertise, and will help the 

jury to decide outstanding issues in this case.  But Dr. Rider’s Opinion 3 reflects an 
unreliable application of a human factors methodology to the facts of this case, and it will 
therefore be excluded.  The Court will thus grant in part and deny in part the Bestway 
Entities’ Motion to Exclude Dr. Rider’s opinions, report, and testimony.  
                               Conclusion 
    Accordingly, 
    IT IS HEREBY ORDERED that Bestway (Hong Kong) International Limited’s 
and Bestway Inflatables & Materials Corporation’s Motion to Exclude the expert reports, 
testimony, and opinions of Dr. Kevin A. Rider, PhD, is GRANTED in part and 
DENIED in part.  ECF No. 119.  Dr. Rider will be permitted to testify to his Opinions 1, 
2, 4, and 5, subject to the limitations discussed above.  Dr. Rider’s Opinion 3 will be 
excluded. 
    Dated this 30th day of December, 2024. 

                                     UNITED STATES DISTRICT JUDG 

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