Perez v. Sunbeam Products, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-01915-PAB-KAS
GEORGINA PEREZ,
Plaintiff,
v.
SUNBEAM PRODUCTS, INC. d/b/a Jarden Solutions, and
NEWELL BRANDS, INC.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Motion to Strike the Proffered Expert
Testimony of Robert H. Miller [Docket No. 96]. The Court has jurisdiction pursuant to 28
U.S.C. § 1332.
I. 	BACKGROUND
On November 23, 2018, plaintiff Georgina Perez purchased a multi-cooker made
by defendants Sunbeam Products, Inc. (“Sunbeam”) and Newell Brands, Inc.
(“Newell”).1 Docket No. 96 at 5. The multi-cooker had a function that allowed it to be
used as a pressure cooker. Id. at 4. On June 3, 2019, Ms. Perez used the multi-
cooker’s pressure cooking function to prepare beans. Id. at 5. Ms. Perez alleges, that
when she touched the multi-cooker, it exploded, causing her serious injury. Id. In her
1 On September 29, 2023, the Court denied in part Newell’s motion for summary
judgment, finding that Ms. Perez has created a genuine issue of material fact as to
whether Newell is a “manufacturer” of Ms. Perez’s multi-cooker under Colo. Rev. Stat.
§ 13-21-401(1). Docket No. 84 at 8.
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amended complaint, Ms. Perez asserts eight claims against defendants, involving
design defect, manufacturing defect, failure to warn, negligence, breach of implied
warranty, breach of express warranty, and fraud, as well as a claim brought under the
Colorado Consumer Protection Act. Docket No. 78 at 8–10, ¶¶ 55–63 (design defect),
10–12, ¶¶ 64–72 (manufacturing defect), 13–15, ¶¶ 73–81 (failure to warn), 15–18,
¶¶ 82–87 (negligence), 18–19, ¶¶ 88–114 (breach of implied warranty), 19–21, ¶¶ 96–
107 (breach of implied warranty), 21–23, ¶¶ 108–114 (Colorado Consumer Protection
Act claim), 23–25, ¶¶ 115–22 (fraud).
Defendants have designated Robert Miller, a mechanical engineer, as an expert
in this case. Docket No. 96 at 2, 7. On July 29, 2022, Mr. Miller prepared an expert
report regarding the safety of the multi-cooker’s design. Docket No. 96-7. Ms. Perez
chose not to depose Mr. Miller in this matter. Docket No. 97 at 6.
Ms. Perez seeks to exclude three opinions of Mr. Miller at trial: (1) an incident like
the one Ms. Perez reports could not have occurred if the multi-cooker’s lid was properly
secured; (2) the multi-cooker has no design defects; and (3) when used properly, the
multi-cooker is safe for consumer use. Docket No. 96 at 7–15; see also Docket No. 96-
7 at 6–7.
II. 	LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence 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.
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Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590–91
(1993). If challenged by a party opposing the testimony of an expert witness, “[Rule]
702 imposes upon the trial judge an important ‘gate-keeping’ function with regard to the
admissibility of expert opinions.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297,
1307 (10th Cir. 2015) (citation omitted). However, “[t]he proponent of expert testimony
bears the burden of showing that its proffered expert’s testimony is admissible.” United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). “[T]he proponent has the
burden of establishing that the pertinent admissibility requirements are met by a
preponderance of the evidence.” Id. (quoting Fed. R. Evid. 702 advisory committee's
note (2000)).
To determine whether an expert opinion is admissible, the court must perform “a
two-step analysis.” Roe v. FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022); see also
103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). First, the
court must determine whether the expert is qualified by “knowledge, skill, experience,
training, or education” to render an opinion. Roe, 42 F.4th at 1180 (quoting Fed. R.
Evid. 702).
Second, if the expert is sufficiently qualified, the proffered opinions must be
assessed for reliability. Id. at 1180–81; Fed. R. Evid. 702(b)–(d) (requiring that the
testimony be “based on sufficient facts or data,” be the “product of reliable principles
and methods,” and reflect a reliable application of “the principles and methods to the
facts of the case”). To perform that function, a court must “assess the reasoning and
methodology underlying the expert’s opinion, and determine whether it is both
scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328
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F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592–93). In assessing
whether a methodology is reliable, a court may consider several non-dispositive factors,
including “(1) whether the theory can be tested; (2) whether it is subject to peer review
and publication; (3) the known or potential error rate; (4) the existence and maintenance
of standards; and (5) the general acceptance in the relevant scientific community.”
United States v. Foust, 989 F.3d 842, 845 (10th Cir. 2021) (citing Daubert, 508 U.S. at
593-94). However, courts have “broad discretion to consider a variety of other factors.”
Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016).
Next, the court must assess whether the expert used sufficient facts and data as
required by the methodology and whether the expert reliably applied the methodology to
the facts of the case. United States v. Crabbe, 556 F. Supp. 2d 1217, 1223 (D. Colo.
2008); see also Roe, 42 F.4th at 1181. To demonstrate the reliability of an opinion that
is based solely on an expert’s experience, the expert “must explain how that experience
leads to the conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the facts.” United States v.
Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed. R. Evid. 702,
advisory committee notes). Establishing reliability does not require showing that the
expert’s testimony is indisputably correct. United States v. Pehrson, 65 F.4th 526, 540
(10th Cir. 2023); see also Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987,
991 (10th Cir. 2003) (discussing how the opinion is tested against the standard of
reliability, not correctness). However, “nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert. A court may conclude that there is simply too
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great an analytical gap between the data and the opinion proffered.” Roe, 42 F.4th at
1181. “[T]he trial judge must have considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable.” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
III. 	ANALYSIS
A. Mr. Miller’s Qualifications
Ms. Perez challenges Mr. Miller’s qualifications to provide the expert opinions in
his report. Docket No. 96 at 7. The entirety of her argument is that, “[w]hile Mr. Miller’s
background is as a mechanical engineer, his expertise is focused on electrical and
wiring failures in home appliances, such as electrical heaters, electrical fans,
humidifiers, and coffee makers”; “[h]is education and training is primarily on fire and
arson investigations”; and “Mr. Miller has no education or training on pressure cookers
or appliance explosions.” Id. Defendants respond that he is qualified because “Mr.
Miller is a mechanical engineer with more than thirty years of engineering experience in
electrical and mechanical products and components” and that “[h]e has more than
twenty-five years of experience in the development, design, manufacture and marketing
of consumer electrical products.” Docket No. 97 at 3.
In his expert report, Mr. Miller states that he has “thirty years of project and
managerial engineering experience in the field of electrical and mechanical products
and components.” Docket No. 96-7 at 1. He received a Bachelor of Science degree in
mechanical engineering from the University of Illinois in 1980 and has spent the last
twenty-five years “in the development, design, manufacture and marketing of consumer
electrical products.” Id. Mr. Miller also claims to have “extensive experience in the
investigation of fires, shocks, burns, explosions, lacerations and other types of incidents
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involving electrical appliances and components.” Id. For twenty-three years, Mr. Miller
worked at Lakewood Engineering & Manufacturing Co. (“Lakewood”), which was a large
volume manufacturer of portable electric fans, portable electric heaters of various types,
as well as fluorescent lights, and humidifiers. Id. In his capacity as an engineer, Mr.
Miller “worked closely with the entire line of products produced by Lakewood in order to
develop and ensure the safety and integrity of the designs, as well as the quality of the
products throughout the entire manufacturing process.” Id. As part of that work, Mr.
Miller assisted in developing operating instructions and warning manuals for products.
Id. Mr. Miller also worked for twenty years as Lakewood’s liaison with Underwriter’s
Laboratories (“UL”) and gained knowledge and experience with UL safety standards, as
well as with the testing and evaluation of products and components to those standards.
Id. at 1–2.
The Tenth Circuit has held that “as long as an expert stays within the reasonable
confines of his subject area, . . . a lack of specialization does not affect the admissibility
of the expert opinion, but only its weight.” Ralston v. Smith & Nephew Richards, Inc.,
275 F.3d 965, 970 (10th Cir. 2001) (quoting Compton v. Subaru of America, Inc., 82
F.3d 1513, 1520 (10th Cir. 1996) (alterations and internal quotation omitted)).
Accordingly, the question is whether the issues that Mr. Miller discusses in his report
are “within the reasonable confines” of his expertise. See id.
The Court is satisfied that Mr. Miller is qualified to provide the expert opinions in
his report. Mr. Miller has a Bachelor of Science in mechanical engineering and over
twenty-five years of practical experience in the design and manufacture of household
consumer products. This includes experience with pressurized oil-filled heaters,
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humidifiers, coffee makers, and steam irons, all of which involve products that use
heated fluids. Docket No. 96-7 at 1–2. As a liaison with UL, Mr. Miller has extensive
experience with the relevant industry standards that he relies upon in his report. That
Mr. Miller does not appear to have direct experience designing pressure cookers does
not disqualify him as an expert. Ms. Perez does not explain why Mr. Miller’s training
and experience in the design and manufacture of various household appliances does
not carry over to pressure cookers. Furthermore, although Mr. Miller may have greater
expertise in electrical and wiring failures in home appliances, this does not disqualify
him from opining on household product design and compliance more generally.
Because Mr. Miller’s opinions regarding the multi-cooker’s design and its compliance
with applicable safety standards are within the reasonable confines of his expertise, he
is qualified to opine on them. See Ralston, 275 F.3d at 970.
B. Mr. Miller’s Opinions
In his report, Mr. Miller asserts three opinions, each of which Ms. Perez seeks to
exclude. See Docket No. 96 at 7–15. Mr. Miller’s first opinion is that:
1. When the instructions contained in the Owner’s Manual, on the lid label, on
the lid markings and in the Recipe Book are followed, an incident as described by
Georgina Perez cannot occur. Once the Bobber Valve moves up due to an
increase in pressure in the vessel and engages the metal locking plate, no
amount of force that can reasonably be applied by hand will rotate the lid in order
to allow it to open and detach from the base until that internal pressure has
decreased enough to allow the Bobber Valve to move to its retracted position.
Further, if the lid was properly installed, it would require a twisting motion to
rotate and move the lid thirty-five angular degrees in order to release the locking
pin and open the multi-cooker.
Docket No. 96-7 at 6. Mr. Miller’s second opinion is that:
2. The Sunbeam Crockpot Multi-Cooker, Model SCCPPC600V-1 is safe for
consumer use and contains no design defects. Its design meets or exceeds all
of the requirements and tests specified in the Standard for Safety for Household
Electric Cooking and Food Serving Appliances, UL1026 and the Standard for
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Safety for Pressure Cookers, UL136 which are the industry standards for the
design and manufacture of pressure cookers such as the Sunbeam Crockpot
Multi-Cooker Model SCCPPC600-V1. This model was tested, evaluated and
listed with Underwriters’ Laboratories Inc[.], under Listing File E189458.
Id. at 6–7. Mr. Miller’s third opinion is that:
3. When used as intended per the instructions included with each unit, the
Sunbeam Crockpot Multi-Cooker, Model SCCPPC600-V1 is safe for consumer
use. The instructions provide the user with adequate information to advise to the
condition of pressure and high temperature and with clear and concise directions:
for properly preparing the food/liquid: for attaching and securely locking the lid:
for operating the controls to obtain the desired cooking cycle: for allowing for the
cool down and de-pressurization once the cooking cycle is completed.
Id. at 7.
1. 	Mr. Miller’s First and Third Opinions
Ms. Perez seeks to exclude Mr. Miller’s first and third opinions, which she
characterizes as “Mr. Miller’s opinions that compliance with the Multi-Cooker’s
instructions and warnings render the Multi-Cooker safe for consumer use,” on the
grounds that they lack foundation and are unreliable. Docket No. 96 at 7.
a. 	Contradictory Evidence
Ms. Perez claims that these opinions lack a foundation because they are
contradicted by three pieces of evidence – namely, the recall notice, the report of a firm
hired by defendants to investigate incidents of malfunctioning multi-cookers, and the
deposition testimony of Daniel Sumser, Sunbeam’s manager for product development.
Id. at 7–11.
Ms. Perez argues that “[t]he recall notice alone invalidates Mr. Miller’s opinions,
given that it contradicts the representations and assurances in the product user
manual.” Id. at 8. The recall notice states that “[t]he recalled Crock-Pot multi-cooker
can pressurize when the lid is not fully locked. This can cause the lid to suddenly
detach while the product is in use, posing burn risks to consumers from hot food and
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liquids ejected from the product.” Docket No. 96-3 at 2. The remedy section of the
recall notice further provides that:
Consumers should immediately stop using the recalled Crock-Pot in pressure
cooker mode, but may continue to use for slow cooking and sautéing.
Consumers should contact Crock-Pot immediately to obtain a free replacement
lid. Consumers who continue using the multi-cooker in pressure cooker mode
while waiting for the replacement lid should be certain the lid is securely turned to
the fully locked position by aligning the arrow on the lid with the lock symbol on
the base.
Id. at 4. Ms. Perez maintains that the recall notice indicates that Mr. Miller’s opinions
lack foundation and “directly contradict Defendants’ stated reason for recalling the Multi-
Cooker.”2 Docket No. 96 at 8.
Ms. Perez cites no cases that stand for the proposition that a recall notice
precludes an expert retained by the company subject to the recall notice from
expressing opinions contrary to the notice. As the advisory committee notes to Rule
702 make clear, “[w]hen facts are in dispute, experts sometimes reach different
conclusions based on competing versions of the facts. The emphasis in the
amendment on ‘sufficient facts or data’ is not intended to authorize a trial court to
exclude an expert’s testimony on the ground that the court believes one version of the
facts and not the other.” Fed. R. Evid. 702 advisory committee’s note to 2000
amendment. However, courts exclude expert opinions when these opinions are based
on a record that is so incomplete that the opinion is not based on “sufficient facts and
data.” See, e.g., Smith v. Illinois Dep’t of Transportation, 936 F.3d 554, 558–59 (7th Cir.
2 The parties debate the admissibility of the recall notice as a remedial measure
under Federal Rule of Evidence 403. See Docket No. 97 at 8, Docket No. 100 at 6–8.
The admissibility of the recall notice is immaterial to the Court’s ruling on the present
motion, and the Court declines to resolve the issue through this order.
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2019) (defendant’s expert’s failure to interview the defendant or his supervisor or to
review any deposition testimony resulted in her “reliance on an anemic and one-sided
set of facts [which] casts significant doubt on the soundness of her opinion, and the
court did not abuse its discretion by excluding it”); Wells v. Kawasaki Motors Corp.,
U.S.A., 854 F. App’x 242, 248–49 (10th Cir. 2021) (unpublished) (“Even though Ms. Gill
has relevant experience with warnings and cites some general studies of warning
labels, we discern no abuse of discretion in the district court’s decision to exclude her
testimony because of insufficient factual support. Ms. Gill cites merely a few deponents’
testimony and one article on PWC warnings to support her point that consumers would
not locate and read the on-product label, and cites no research or data to support her
other points.” (citations omitted)).
Here, the recall notice states that the “multi-cooker can pressurize when the lid is
not fully locked” and that “[c]onsumers who continue using the multi-cooker in pressure
cooker mode while waiting for the replacement lid should be certain the lid is securely
turned to the fully locked position by aligning the arrow on the lid with the lock symbol
on the base.” Docket No. 96-3 at 2, 4. Even if the statements in the recall notice are
inconsistent with Mr. Miller’s opinions, Ms. Perez has not shown why Mr. Miller is
precluded from expressing an opinion that is inconsistent with the recall notice. In his
report, Mr. Miller states that he reviewed the “[r]ecall kit with replacement lid and written
materials, warning labels,” in addition to other materials and the results of his
independent product testing. Docket No. 96-7 at 2–3, ¶¶ 1–18. Based on these
materials and the results of his testing, Mr. Miller concluded that the multi-cooker is safe
and does not have a design defect. Id. at 6–7. That the results of Mr. Miller’s product
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testing appear to be contrary to defendants’ decision to issue a recall notice does not
mean that the results of his independent testing are wrong or that he lacked sufficient
facts and data in forming his opinions. As such, any inconsistency between Mr. Miller’s
opinions and the recall notice is not a sufficient reason to exclude his opinions under
Rule 702.
Ms. Perez further contends that Mr. Miller’s opinions lack foundation because
they are contradicted by the report produced by the company Exponent. Id. She
alleges that defendants retained Exponent as a third-party engineering firm to evaluate
the multi-cooker’s design, an allegation which defendants do not refute. Id.; see
generally Docket No. 97. Ms. Perez avers that the report Exponent provided on the
issue hypothesizes that “(1) the lock pin was disengaging even when pressure
remained in the unit, or (2) the lid may not be locking correctly before the unit starts
pressurizing.” Docket No. 96 at 8 (citing Docket No. 96-4). First, the document Ms.
Perez attaches to her motion is ambiguous. The first page of the document lists several
safety mechanisms, but it is unclear whether these features were part of the multi-
cooker’s design at the time of Exponent’s review or were suggested as future changes
to the product’s design. Docket No. 96-4 at 1. The document then presents three
hypotheticals, which the Court presumes are hypothetical causes of the injuries
reported to defendants prior to Ms. Perez’s incident. See id. at 2–4. The document
identifies particular safety mechanisms and a “testing plan” to determine whether the
hypothesis is accurate. Id. The document does not discuss the results of any testing.
Id. As such, the Exponent report Ms. Perez relies on provides no facts or data that
contradict the results of Mr. Miller’s testing or that undermine the reliability of his
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opinions. Even if the report did contain such information, Ms. Perez has not shown why
Mr. Miller’s independent testing does not adequately support his opinions. There is no
indication that Mr. Miller was aware of the Exponent report, that the report contradicts
Mr. Miller’s opinions, or that experts in Mr. Miller’s field would have conducted a search
for documents at Sunbeam that would have uncovered the Exponent report. The
Exponent report does not serve as a basis for excluding Mr. Miller’s opinions.
Finally, Ms. Perez argues that Mr. Miller’s opinions lack foundation because they
are contradicted by the deposition testimony of Mr. Sumser, given in a different case
against defendants in the United States District Court for the Southern District of
Indiana. Id. at 10; Docket No. 96-12 at 1. Mr. Sumser, Sunbeam’s manager of product
development, testified that he was asked by Sunbeam to investigate complaints
regarding the Sunbeam Multi-Cooker “leaking” and burning customers in 2018, but
testified that he was never made aware of the Exponent report. Docket No. 96 at 9
(citing Docket No. 96-12). From this testimony, Ms. Perez extrapolates that, “[r]ather
than recalling a million Multi-Cooker units, Defendants hid the Exponent report from Mr.
Sumser.” Id. at 10. She maintains that, “[w]hile Mr. Miller acknowledges in his report
that the subject Multi-Cooker was sold with a modified lid,” id. at 9, – modifications
which Mr. Sumser helped design, see Docket No. 96-12 at 6, 24:9–15 – Mr. Miller’s
opinions are unsupported because they do not account for the fact that defendants
made modifications to the lid of the multi-cooker to avoid the kind of incident Ms. Perez
describes in her complaint. Docket No. 96 at 9. She claims that “Mr. Miller’s
understanding of the changes made to the Multi-Cooker further emphasizes Mr. Miller’s
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failure to review all evidence and facts relevant to this case.”3 Id. at 9. She insists that
“Mr. Miller clearly never spoke to or read the testimony of Mr. Sumser, nor did he make
any effort to actually investigate or understand the purpose of Sunbeam’s modifications
to the Multi-Cooker.” Id. at 10. In his report, Mr. Miller states that he reviewed Mr.
Sumser’s deposition and exhibits. Docket No. 96-7 at 2, ¶ 9. He also reviewed the
“[r]ecall kit with replacement lid and written materials.” Id. at 3, ¶ 18. Mr. Miller’s report
discusses the specific modifications defendants made to the lid of the multi-cooker that
Ms. Perez bought. Id. at 5, ¶ 5. The Court finds Ms. Perez’s assertion that Mr. Miller
“clearly never . . . read the testimony of Mr. Sumser” is contradicted by Mr. Miller’s
report and concludes that the fact that Mr. Miller may not have talked to Mr. Sumser
does not render Mr. Miller’s report so deficient as to be “unsupported.” That defendants
chose to modify the lid of the multi-cooker does not necessarily show that the modified
multi-cooker had a design defect if the lid was attached according to the directions or
that the results of Mr. Miller’s testing were wrong. Ms. Perez has not shown how
defendants’ failure to provide the Exponent report to Mr. Sumser during his investigation
into reports of injuries from the multi-cooker has any bearing on the results of Mr.
Miller’s testing or undermines Mr. Miller’s opinions based on these results.
Considering collectively the recall notice and the deposition testimony of Mr.
Sumser, which Mr. Miller reviewed, and the Exponent report, which Mr. Miller did not
review, Ms. Perez has not shown that the foundation for Mr. Miller’s opinions is so
3 Rule 702 does not require an expert to review “all” evidence, but rather
“sufficient facts and data.” Fed. R. Evid. 702(b).
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lacking that his test results should be excluded as not being based on sufficient facts or
data pursuant to Rule 702.
b. Reliability of Mr. Miller’s Opinions
Although Ms. Perez’s motion is primarily focused on the arguments just
discussed, her motion also asserts that Mr. Miller’s first and third opinions should be
excluded because they are based on unreliable test results. See Docket 96 at 6. As
such, Ms. Perez claims that such opinions should be precluded. Id.
Mr. Miller states that he reviewed photographs of Ms. Perez’s multi-cooker,
relevant UL standards, UL records concerning testing and listing of the multi-cooker,
various litigation filings and exhibits, and “design and manufacturing/quality documents
produced by Sunbeam,” among other documents. Docket No. 96-7 at 2. Mr. Miller also
asserts that he relied on “[e]xamination, testing and evaluation of Sunbeam Crockpot
Multi-Cooker exemplar units and re-fit lids.” Id. His report begins by reviewing the facts
and circumstances surrounding the incident as described by Ms. Perez. Id. at 3. The
report continues by making several findings and observations. Id. at 3–6. The
observations include a general description of the multi-cooker and the purported
operation of the locking mechanism used while the pressure-cooking function is active.
Id. at 4, ¶¶ 2–4. The report further details specific modifications made to the model Ms.
Perez purchased from the original design and discusses how Mr. Miller knew that these
modifications had been made. See, e.g., id. at 5, ¶ 5 (“This is evident by the inclusion
of the red bobber valve.”). The report’s findings include the fact that UL evaluated and
listed the multi-cooker, Model SCCPPC6000V-1, and that such a listing required the
multi-cooker to comply with UL standards, including the standard for safety for
household electrical cooking and food serving appliances, UL1026, and the standard for
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safety for pressure cookers, UL136. Id. at 3–4, ¶ 1. The report states that, as part of
the testing required for UL listing, a one-hundred-pound load was applied to the
outermost point of the multi-cooker’s lid during its operation. Id.
The report also describes two tests performed on an exemplar multi-cooker. Id.
at 6, ¶¶ 6–7. During one test, one cup of pinto beans was pressure-cooked and allowed
to rest and depressurize for twenty minutes without opening the steam release valve.
Id., ¶ 6. The results of the test were that a small amount of steam remained in the multi-
cooker, but that the device and its contents did not explode when the lid was removed.
Id., ¶ 6. In a separate test, three cups of beans were pressure-cooked. Id., ¶ 7. Soon
after the cooking finished, an attempt was made to open the lid. Id. Steam was
released from the release valve for several minutes, but the lid could not be opened
until the majority of the steam was released and no explosion occurred when the lid was
removed. Id.
Ms. Perez argues that Mr. Miller’s opinions are unreliable because (1) it is
unclear who conducted the tests Mr. Miller relies on, and (2) the tests appear to use a
different model of multi-cooker than the one Ms. Perez purchased. Docket No. 96 at 6;
Docket No. 100 at 5. Ms. Perez maintains that it is necessary to know who conducted
these tests and that “[o]ne would think that if Mr. Miller personally conducted the tests
described in his report, he would explicitly say he conducted such tests.” Docket No.
100 at 5. It is true that Mr. Miller’s report does not state that he conducted the tests he
describes, and which Ms. Perez attaches photographs of. However, defendant’s
response to the motion states that Mr. Miller performed the tests. See, e.g., Docket No.
97 at 5 (“Mr. Miller’s report further includes a comprehensive description of his testing of
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various exemplar Multi-Cookers, including a test recreating the recipe and facts as
described by Plaintiff.”). The Court will accept defendants’ representation that Mr. Miller
conducted these tests.4
Ms. Perez claims that the photographs of the testing suggest that the tests used
different models of the multi-cooker than Ms. Perez used. Docket No. 96 at 6 n.1. This
argument is insufficient to undermine the reliability of these tests or the applicability of
these results to the facts of this case. Despite the photographs showing the control
panel of the units tested, Ms. Perez does not identify which units differed from the multi-
cooker that Ms. Perez used in any relevant way and therefore why the results of Mr.
Miller’s testing would be inapplicable to this case. Mr. Miller’s report referred to tested
multicookers as “exemplars,” which indicates that they are, for the purposes he tested
them, comparable. Courts have found that a perfect identity between a testing
exemplar and the object of an accident is not necessary. See Jackson v. E-Z-GO Div.
of Textron, Inc., 326 F. Supp. 3d 375, 405–06 (W.D. Ky. 2018) (“Defendant cites no
case stating that an expert’s exemplar testing must be ‘identical’ to the incident in
question.”). Rather, “to be relevant, an accident reconstruction must be substantially
similar to the original accident.” Id. (citation and alterations omitted); Thompson v. Ford
Motor Co., No. 22-cv-00541-MDB, 2023 WL 9422974, at *9 (D. Colo. Dec. 11, 2023)
(“Courts have held that experimental evidence must be ‘made under conditions which
are substantially similar to those which are the subject of the litigation.’” (quoting Four
Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1443 (10th Cir. 1992))).
4 If defendants representation that Mr. Miller conducted these tests is inaccurate,
Ms. Perez will have the opportunity to seek appropriate remedies.
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Ms. Perez identifies no characteristics of her multi-cooker that are not substantially
similar to those of the exemplar. Furthermore, the conditions of the testing are
substantially similar to the facts Ms. Perez alleges in her complaint or which may have
occurred. Compare 96-7 at 6, ¶¶ 6–7, with Docket No. 78 at 3, ¶ 15. 	As such, to the
extent Mr. Miller’s opinions are based on these test results, they are sufficiently reliable
to be admissible.
2. 	Mr. Miller’s Second Opinion
Mr. Miller opines that “[t]he Sunbeam Crockpot Multi-Cooker, Model
SCCPPC600V-1 is safe for consumer use and contains no design defects” and that its
“design meets or exceeds all of the requirements and tests specified in the Standard for
Safety for Household Electric Cooking and Food Serving Appliances, UL1026 and the
Standard for Safety for Pressure Cookers, UL136 which are the industry standards for
the design and manufacture of pressure cookers such as the Sunbeam Crockpot Multi-
Cooker Model SCCPPC600-V1.” Docket No. 96-7 at 6–7, ¶ 2.
Ms. Perez argues that this opinion is based on unsupported and unreliable
principles. Docket No. 96 at 11. She states that UL standards are voluntary, that
voluntary standards are, in many cases, drafted by the corporations that design and
manufacture the product, and that defendants had to pay to obtain the UL listing. Id.
(citing Pfeiffer v. Eagle Mfg. Co., 771 F. Supp. 1133, 1137 (D. Kan. 1991)). In
particular, Ms. Perez argues that compliance with UL standards is not a guarantee that
a product is safe for consumer use and free of design defects. Id. She contends that
Mr. Miller previously testified in a different case against defendants in United States
District Court in the Eastern District of Texas that a UL listing is not a guarantee of
safety. Id.; Docket No. 96-13 at 1. Based on this testimony, she contends that his
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opinion is not reliable because UL standards are not consistent with the standard of
care within the fields of product design and manufacture. Docket No. 96 at 12.
Defendants respond that, in addition to the the multi-cooker’s compliance with UL
standards, Mr. Miller relied on “his knowledge of the product, the newly designed lid,
and his own testing of the product” to form his opinions. Docket No. 100 at 11.
Defendants state that Mr. Miller’s report does not claim that compliance with UL
standards is a guarantee of safety, which is consistent with his prior testimony, but that
his opinion that the multi-cooker has no design defects is not inconsistent with the fact
that the UL listing is not a guarantee of safety. Id. at 11–12.
“Federal courts have consistently held that compliance with industry standards is
relevant to a reliability determination under Rule 702.” Heer v. Costco Wholesale Corp.,
589 F. App’x 854, 862 (10th Cir. 2014) (unpublished) (citing Sappington v. Skyjack, Inc.,
512 F.3d 440, 454 (8th Cir. 2008)). Furthermore, in design defect cases, while “industry
standards are not conclusive as to ordinary care in design,” they “are admissible
evidence.” Fabian v. E. W. Bliss Co., 582 F.2d 1257, 1261 (10th Cir. 1978) (applying
New Mexico law); see also Yampa Valley Elec. Ass’n, Inc. v. Telecky, 862 P.2d 252,
257 (Colo. 1993) (en banc) (“Evidence of a defendant’s compliance with applicable
industry standards in a tort case is both relevant and admissible for purposes of
determining whether the defendant either breached, or satisfied, the duty of care it owed
to an injured plaintiff. Even though evidence of compliance with industry standards is
admissible, such evidence is not conclusive on the issue of due care.” (citations
omitted)); Tucker v. Wright Med. Tech., Inc., 2013 WL 1149717, at *9 n.11 (N.D. Cal.
Mar. 19, 2013) (“Expert evidence about compliance with industry standards can be
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considered on the issue of defective design, in light of all other relevant circumstances,
even if such compliance is not a complete defense.” (applying California law)).
To the extent that Ms. Perez argues that Mr. Miller should not be permitted to
opine on UL standards because Mr. Miller has testified that they do not guarantee
safety, the Court disagrees. That defendants may have helped develop UL standards
or that they may have paid for UL to test and list their products does not refute Mr.
Miller’s assertion that UL standards represent industry standards. Compliance with
industry standards is both relevant and admissible evidence. Because Ms. Perez has
presented no evidence or made any non-conclusory arguments that UL standards do
not represent industry standards, Mr. Miller will be permitted to opine on the multi-
cooker’s compliance with these standards. To the extent Ms. Perez argues that Mr.
Miller’s opinion lacks foundation because he relies on these standards, Ms. Perez has
not shown these are inappropriate standards for an expert in Mr. Miller’s field to rely on
and ignores the other materials Mr. Miller reviewed to reach his conclusions. Finally,
Mr. Miller’s prior testimony that compliance with UL standards is not a guarantee of
safety is not inconsistent with the fact that compliance with these standards is an
indication that the multi-cooker does not have a design defect. As such, Ms. Perez’s
challenge to Mr. Miller’s third opinion that the multi-cooker does not have a design
defect is denied.
Because Mr. Miller’s expert report establishes his expertise and the reliability of
his opinions, and because Ms. Perez has failed to show that Mr. Miller’s opinions lack
foundation, the Court will deny Ms. Perez’s motion.
IV. 	CONCLUSION
It is therefore
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ORDERED that Plaintiff’s Motion to Strike the Proffered Expert Testimony of
Robert H. Miller [Docket No. 96] is DENIED.
DATED June 13, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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