United States District Court, Middle District of Pennsylvania
March 8, 2001
LARRY HAMILTON, PLAINTIFF
EMERSON ELECTRIC COMPANY, DEFENDANT.
The opinion of the court was delivered by: McCLURE, District Judge.
On December 22, 1999, plaintiff Larry Hamilton commenced this
products liability action with the filing of a complaint in the
Court of Common Pleas for Lycoming County. He alleged that he
sustained an injury to his left middle finger as a result of a
defective miter saw manufactured by defendant Emerson Electric
Company (Emerson). The action was removed to this court on
January 11, 2000.
Before the court is Emerson's motion for summary judgment.
Within the motion is a request that the court exclude Stephen A.
Wilcox, Ph.D. from testifying for Hamilton as an expert witness.
We will therefore treat Emerson's submission as two separate
motions — a motion to exclude the expert witness and a motion for
summary judgment. For the reasons stated below, we will grant
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if the "pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter off law." Fed. R. Civ. P. 56(c) (emphasis
. . . [T]he plain language of Rule 56(c) mandates
the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be `no
genuine issue as to any material fact,' since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is `entitled to judgment as a matter of law' because
the nonnoving party has failed to make a sufficient
showing on an essential element of her case with
respect to which she has the burden of proof.
Celotex Core. v. Catrett, 477 U.S. 317, 323 § 324 (1986).
The moving party bears the initial responsibility of stating
the basis for its motions and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. Id. at 323. It can discharge that burden by
"showing . . . that there is an absence of evidence to support
the nonmoving party's case."Id. at 325.
Issues of fact are genuine "only if a reasonable jury,
considering the evidence presented, could find for the non-moving
party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). Material facts are those which will affect the outcome
of the trial under governing law. Anderson, 477 U.S. at 248. The
court may not weigh the evidence or make credibility
determinations Boyle v. County of Allegheny, 139 Fi3d 386, 393
(3d Cir. 1998). In determining whether an. issue of material fact
exists, the court must consider all evidence and inferences drawn
therefrom in the light most favorable to the non-moving party.
Boyle, 139 F.3d at 393; White v. Westinghouse Electric Co.,
862 F.2d 56, 59 (3d Cir. 1938).
Once the moving party points to evidence demonstrating that no
issue of material fact exists, the non-moving party has the duty
to set forth specific facts showing that a genuine issue of
material fact exists and that a reasonable factfinder could rule
in its favor. Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252
(3d Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Groman v. Township of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)). "Speculation and
conclusory allegations do not satisfy this duty." Ridgewood, 172
F.3d at 252 (citing Groman, 47 F.3d at 637). A party opposing a
notion for summary judgment may not merely deny the assertions
made by the movant, but must identify specific facts in the
record that would contradict the facts identified by the movant.
Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988); First
Nat'l Bank of Pa v. Lincoln Nat'l Life Insurance, 824 F.2d 277,
282 (3d Cir. 1987).
II. STATEMENT OF FACTS
On July 10, 1999, Hamilton was at his residence operating a
Sears/Craftsman 10" compound miter saw, which is an electric saw
with a spinning blade mounted above a work table. Hamilton
purchased the saw in 1997. At some point during the operation of
the saw, Hamilton's hand came in contact with the saw's blade. As
a result, the top of his left middle finger was amputated.
In order to operate the miter saw, the operator must squeeze
and hold an on/off trigger switch. To stop the saw, the trigger
must be released. The saw contains a braking device designed to
stop the rotation of the blade within seconds after the operator
releases the trigger. Hamilton contends that the saw was
defective in that the brake malfunctioned and did not stop the
blade from rotating before his finger made contact with the
blade. Although Hamilton is not completely sure how his finger
was injured, the miter saw was examined twice after the accident
and the blade brake did not function properly.
Hamilton contends that the saw was defective because the brake
did not stop the blade from spinning. He claims that the saw was
defective in its manufacturing and/or design, and that Emerson
failed to warn users of the possibility that the saw would not
immediately stop. Although Hamilton alleges in his complaint that
the miter saw contained all three types of defects, he presents
no evidence of either a design defect or a failure-to-warn
defect. Our focus will therefore be on Hamilton's burden of
proving that the miter saw contained a manufacturing defect.
To prove Emerson's liability, Hamilton relies on the report of
an expert, Stephen A. Wilcox, Ph.D. Emerson moves to bar Dr.
Wilcox from testifying on the basis of both his qualifications
and the content of his report. Emerson then argues that without
Dr. Wilcox's testimony, Hamilton has not met his burden on
causation, which is an element of a products liability claim.
First, we will state the relevant Pennsylvania products liability
law. Second, we will determine whether Dr. Wilcox may testify
as an expert witness. Third, we will decide whether Hamilton has
produced sufficient evidence to reach the jury on his products
A. Relevant Products Liability Law.
In advancing a theory of strict product liability in
Pennsylvania, a plaintiff is required to prove (1) that the
product was defective; (2) that the defect existed when it left
the hands of the defendant; and (3) that the defect caused the
harm. Summers v. Giant Food Stores. Inc., 743 A.2d 498, 508 (
Pa. Super. 1999) (citing Riley v. Warren Manufacturing Inc.,
688 A.2d 221, 224 (Pa. Super. 1997)). "There are three different types of
defective conditions that can give rise to a strict liability
claim: design defect, manufacturing defect, and failure-to-warn
defect." Phillips v. A-Best Products Co., 665 A.2d 1167, 1170
A product contains a manufacturing defect "when the product
departs from its intended design even though all possible care
was exercised in the preparation and marketing of the product."
Restatement (Third) of Torts: Prod. Liab. § 2 (1997 Main
Hamilton proceeds under the malfunction theory of products
liability, which is methodically explained in the Pennsylvania
Superior Court case of Dansak v. Cameron Coca-Cola Botthng Co.,
Inc., 703 A.2d 489 (Pa. Super. 1997):
In certain cases of alleged manufacturing defects
. . . the plaintiff need not present direct evidence
of the defect. When proceeding on a malfunction
theory, a plaintiff may present a case-in-chief
evidencing the occurrence of a malfunction and
eliminating abnormal use or reasonable, secondary
causes for the malfunction. From this circumstantial
evidence, a jury may be permitted to infer that the
product was defective at the time of sale.
Id. at 495 (citing O'Neill v. Checker Motors Corp., 389
567 A.2d 680, 682 (Pa. Super. 1989)). "The malfunction theory . . . does
not relieve the burden of establishing a defect. However, the
malfunction itself is circumstantial evidence of a defective
condition." Id. at 496 (citing D'Antona v. Hampton Grinding Wheel
Co., Inc., 310 A.2d 307, 309 (Pa. Super. 1973)).
The Third Circuit has articulated that in order for plaintiff
to meet its burden under the malfunction theory, he must present
sufficient evidence: (1) that the product malfunctioned; (2) that
plaintiffs used the product as intended or reasonably expected by
the manufacturer; and (3) the absence of other reasonable
secondary causes. Altronics of Bethlehem, Inc. v. Repco, Inc.
957 F.2d 1102, 1105 (3d Cir. 1992).
A prima facie case under the malfunction theory does not
require expert testimony explaining how the product was defective
or how the defect arose from the manufacturer or seller. Dansak,
703 A.2d at 496. Even without articulating a specific defect, a
plaintiff may sustain his burden by producing circumstantial
evidence of the defect. Such circumstantial evidence may include:
(1) The malfunction of the product.
(2) Expert testimony as to a variety of possible
(3) The timing of the malfunction in relation to
when the plaintiff first obtained the product.
(4) Similar accidents involving the same product.
(5) Elimination of other possible causes of the
(6) Proof tending to establish that the accident does
not occur absent a manufacturing defect.
Id. (citing Litvin and McHugh, Pennsylvania Torts: Law and
Advocacy (1996) § 9.33).
As noted above, a plaintiff suing under the malfunction theory
must negate evidence of reasonable secondary causes of the
malfunction. The Supreme Court of
Pennsylvania has interpreted
this concept liberally, allowing a plaintiff to reach the jury if
he presents "a case-in-chief free of secondary causes." Rogers v.
Johnson § Johnson Products, Inc., 565 A.2d 751, 755 (Pa.
1989). This principle was summarized in Dansak:
[I]n plaintiff's case-in-chief, plaintiff [need not]
negate theoretically conceivable secondary cause for
the malfunction. Rather . . . the plaintiff fails to
establish a prima facie case only if the plaintiff
does not negate evidence of other reasonable,
secondary causes or abnormal use that is actually
introduced during the plaintiff's case-in-chief. In
other words, the plaintiff fails to establish a
prima facie case if, based upon his own proof, more
than one cause could account for the accident.
Dansak, 703 A.2d at 497 (quoting Schher v. Milwaukee Electrical
Tool Corp., 835 F. Supp. 839, 841 (E.D. Pa. 1993)) (emphasis
added). As such, "[s]ummary judgment is not warranted simply
because the defendant hypothesizes (or even presents evidence of)
reasonable secondary causes." Id. Thus, a plaintiff need not look
to actively "eliminate" the possibility of reasonable secondary
causes. He is me rely required to present a case-in-chief that
either contains no evidence of reasonable secondary causes or
negates any such evidence that was initially present.
B. Dr. Wilcox's Expert Testimony.
1. General Law of Expert Testimony.
In attempting to exclude Dr. Wilcox as an expert witness,
Hamilton challenges both his qualifications and the reliability
of his testimony. Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Pursuant to Rule 702, the trial judge should act as a
gatekeeper to make sure that all expert testimony or evidence is
both relevant and reliable. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Kannankeril v.
Terminix Int'l, Inc., 128 F.3d 802
, 806 (3d Cir. 1997). The
Daubert gatekeeping function applies not only to scientific
testimony, but to all expert testimony. Kuhmo Tire Co., Ltd. v.
Carmichael, 526 U.S. 137
, 147 (1999). "[Rule 702] makes no
relevant distinction between `scientific' knowledge and
`technical' or `other specialized' knowledge. It makes clear that
any such knowledge may become the subject of expert testimony."
Rule 702 has three major requirements: (1) the proffered
witness must be an expert; (2) the expert must testify about
matters requiring scientific, technical, or specialized
knowledge; and (3) the expert's testimony must assist the trier
of fact. Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806
(3d Cir. 1997 (citing In re Paoli R.R. Yard PCB Litig.,
35 F.3d 717, 741-42 (3d Cir. 1994)).
2. Summary of the Testimony.
Dr. Wilcox's testimony is encompassed in a report to Hamilton's
attorney. Dr. Wilcox states that, in preparing the report, he
reviewed the depositions of Hamilton and defense witness Michael
Gililland, and the operator's manual for the miter saw.
First, Dr. Wilcox describes the type of cut that Hamilton was
making. He then states that "Although [Mr. Hamilton] has no
recollection of the accident, it appears that upon release of the
trigger, the blade brake did not engage as it should have in
order to stop the rotation of the blade. Therefore, as the blade
was coming up, it continued spinning for several seconds, at
which time Mr. Hamilton's left hand was apparently caught by the
moving blade." (Wilcox report at 1-2, Emerson's Exhibit
G.) He opines that the failure of the brake made the saw "defective".
Id. at 3.
Dr. Wilcox then remarks on the cause of the accident. He lists
six reasons why, in his opinion, the defective saw caused
Hamilton's injuries. He frames the causation testimony in terms
of the "foreseeability" of Hamilton's injuries as a result of the
defective saw. The reasons are as follows:
(1) Hamilton expected the blade to be stopped. Dr. Wilcox
explains that "[i]f people expect something to be a certain way,
they are at risk of misperceiving it in line with their
(2) The guard was not completely transparent, and thus Hamilton
could not fully see the blade as it was spinning.
(3) The spinning blade provides subtle visual cues; when the
saw blade is spinning, a saw operator cannot see the blade's
teeth because they virtually disappear at the high speed.
(4) The auditory cues were subtle; since the power was off
after Hamilton released the trigger, the saw made little sound,
and Hamilton did not notice that the blade was still spinning.
(5) "Hamilton's actions would have been largely unconscious."
In explaining this statement, he declares that "a manual task
such as the one in question is not typically done
`intellectually,'" meaning that "people naturally distribute
their attention on what they are doing and do not tend to focus
on what they already know (or think they know)," and thus
Hamilton, because he was concentrating on cutting the wood,
probably did not examine the blade afterwards to see if it was
(6) Because people naturally focus their attention on what they
are doing at the time and not on what they think they already
know, it would not have been typical for Hamilton to examine the
blade to see if it was still spinning, as Hamilton assumed that
the blade had stopped.
In a supplement to his report, Dr. Wilcox states that since
preparing the report, he has reviewed the videotape of Hamilton
describing the accident, videotapes by Emerson showing the miter
saw in question, and an expert report written by Gililland. While
he notes that his opinion that the brake failed is unchanged, he
states that the brake should have "failed safe" by either (1)
stopping the saw from working; or (2) providing a clear and
unambiguous indication that the brake had failed. (Letter from
Dr. Steven B. Wilcox to Attorney Joseph F. Orso III, Emerson's
We note that before rendering his opinion, Dr. Wilcox did not
personally examine or do any analysis on the miter saw in
question or, for that matter, any miter saw at all. (See Wilcox
Dep. at 97-98.)
3. Dr. Wilcox's Qualifications.
Emerson contends that Dr. Wilcox is not qualified to be an
expert on miter saw accidents. In Elcock v. Kmart Corp.,
233 F.3d 734, 741 (3d Cir. 2000), the Third Circuit articulated the
requirements a witness must meet to be deemed an expert:
Rule 702 requires the witness to have specialized
knowledge regarding the area of testimony. The basis
of this specialized knowledge can be practical
experience as well as academic training and
credentials. We have interpreted the specialized
knowledge requirement liberally, and have stated
that this policy of liberal admissibility of expert
testimony extends to the substantive as well as the
formal qualification of experts. However, at a
minimum, a proffered expert witness . . . must
possess skill or knowledge greater than the average
layman . . .
Id. (citing Waldorf v. Shuta, 142 601, 625 (3d Cir. 1998))
(citations and internal quotation marks admitted). To be sure,
witnesses can qualify as experts under Rule 702 on the basis of
practical experience alone, and a formal degree, title, or
educational speciality is not required. See Lauria v. Nat'l RR
Passenger Corp, 145 F.3d 593
, 599 (3d Cir 1998) (citing American
Tech. Resources v. United States, 893 F.2d 651
, 656 (3d Cir.
Dr. Wilcox is a psychologist with special training in the area
of "human factors." He defines human factors as "the application
of knowledge about human beings to design." (Wilcox Dep. at 29.)
In the late 1980s, he participated in the design of various power
woodworking equipment, such as a hand-held worm drive saw and
various orbital sanders. The record does not clearly show the
level of involvement Dr. Wilcox had in the design of these tools
other than that he made recommendations about the shape of the
drive saw's safety guard as it relates to the anatomy of a human
user. (Wilcox Dep. at 38.) It seems that he also had a role in
writing warnings and instructions. (Id. at 35.) From 1966 to
1973, Dr. Wilcox worked as a carpenter. (Id. at 43-44.) He is
unsure if he has ever used a miter saw, but is certain that if he
has used one, it has not been after 1973. (Id. at 50.)
Emerson argues that Dr. Wilcox is not qualified to give an
opinion about a defective miter saw because he does not possess a
degree in engineering, he has never designed a product by himself
nor led a design team, and he admittedly is unsure if he has ever
used a miter saw.
The fact that Dr. Wilcox does not have an engineering degree
does not automatically disqualify him from testifying as an
expert in this case. The controlling authority makes it clear
that a formal degree is not required. Additionally, even though
Dr. Wilcox may have never led a design team, he may still have
been exposed to design procedures.
The fact that Dr. Wilcox may have never used a miter saw is a
stronger argument in favor of his disqualification, but his lack
of firsthand experience is not fatal to his qualifications. See
Daubert, 509 U.S. at 592 ("[A]n expert is permitted wide latitude
to offer opinions, including those that are not based on
firsthand knowledge or observation."). See also Smith v.
Ingersoll-Rand Co., 214 F.3d 1235, 1244 (10th Cir. 2000) (finding
a safety consultant and a human factors expert qualified to
testify about design of a milling machine even though neither
witness had firsthand experience with milling machines).
Though Dr. Wilcox's qualifications are marginal at best, we
find him to be qualified under the Third Circuit's liberal
standard for qualifying experts. Judging by his curriculum vitae,
Dr. Wilcox has extensive experience and acclaim in the area of
human factors, and any testimony he might give about the
tendencies of human machine operators is clearly within his
expertise. Dr. Wilcox is certainly less qualified to make a
declaration that the miter saw was defective, as he is not
familiar with the design of a miter saw. He does, however, have
some experience in designing safety components of power
woodworking tools, and he was a carpenter for eight years. At a
minimum, he possesses knowledge greater than the average layman.
See In re Unisys Savings Plan Litigation, 173 F.3d 145, 170 (3d
Cir. 1999) (quoting Holbrook v. Lykes Bros. Steamship Co., Inc.,
80 F.3d 777, 782 (3d Cir. 1996) ("[I]t is an abuse of discretion
to exclude testimony simply because the trial court does not deem
the proposed expert to be the best qualified or because the
proposed expert does not have the specialization that the court
considers most appropriate.")).
4. Scientific, Technical or Other Specialized Knowledge.
Emerson asserts that Dr. Wilcox's testimony is unreliable and
therefore inadmissible. "In interpreting [the requirement that an
expert testify about matters requiring scientific, technical, or
other specialized knowledge], we have concluded that an expert's
testimony is admissible so long as the process or technique the
expert used in formulating the opinion is reliable." Kannankeril,
128 F.3d at 806 (citing Paoli,
35 F.3d at 742) (internal quotation marks omitted).
"Daubert explains that the language of Rule 702 requiring the
expert to testify to scientific knowledge means that the expert's
opinion must be based on the `methods and procedures of science'
rather than on `subjective belief or unsupported speculation;'
the expert must have `good grounds' for his or her belief."
Paoli, 35 F.3d at 742 (citation omitted).
The trial judge must determine whether the testimony has "a
reliable basis in the knowledge and experience of [the relevant]
discipline." Daubert, 509 U.S. at 590. "[The gatekeeping
requirement] is to make certain that an expert, whether basing
testimony on professional studies or personal experience, employs
in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field."
Kuhmo Tire Co., 526 U.S. at 152.
In Paoli, the Third Circuit suggested a list of factors that
the trial judge may consider in determining reliability. These
(1) whether a method consists of a testable
(2) whether the method has been subject to peer
(3) the known or potential rate of error;
(4) the existence and maintenance of standards
controlling the technique's operation;
(5) whether the method is generally accepted;
(6) the relationship of the technique to methods
which have been established to be reliable;
(7) the qualifications of the expert witness
testifying based on the methodology; and
(8) the non-judicial uses to which the method has
Paoli, 35 F.3d at 742 n. 8 (citing Daubert, 509 U.S. at 593-94;
U.S. v. Downing, 753 F.2d 1224
, 1238-41 (3d Cir. 1985)). Factors
One, Two, Three, and Five were articulated in Daubert, and
Factors Four, Six, Seven, and Eight were introduced by the Third
Circuit in Paoli.
"The Daubert factors do not constitute a definitive checklist
or test, and the gatekeeping inquiry must be tied to the
particular facts." Kuhmo Tire Co., 526 U.S. at 138 (citations
omitted). The Supreme Court has recognized that in certain cases,
reliability concerns may focus more upon the expert's personal
knowledge or personal experience than on the Daubert factors. Id.
at 150. But even in these types of cases, "some of Daubert's
questions can help to evaluate the reliability even of
experience-based testimony." Id. at 151. "[The Daubert factors]
may or may not be pertinent in assessing reliability, depending
on the nature of the issue, the expert's particular expertise,
and the subject of his testimony. Id. at 150. "Thus, whether
Daubert's specific factors are, or are not, reasonable measures
of reliability in a particular case is a matter that the law
grants the trial judge broad latitude to determine." Id. at
Although Daubert stated that the focus of the admissibility
inquiry must be solely on principles and methodology and not on
conclusions, the Supreme Court subsequently modified that rule in
General Electric Co. v. Joiner, 522 U.S. 136 (1997). The Court
But conclusions and methodology are not entirely
distinct from one another. Trained experts commonly
extrapolate from existing data. But 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*fn2 of the expert. A court may conclude that
there is simply too great an analytical gap between
the data and the opinion proffered.
Id. at 146. "Consequently, although principles and methodology
remain the focus of a Daubert inquiry, this focus need not
completely pretermit judicial consideration of an expert's
conclusions." In re TMI Litigation, 193 F.3d 613
, 682 (3d Cir.
1999) (quoting Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling
Co., 161 F.3d 77
, 81 (1St Cir. 1998)) (internal quotation marks
Generally, the reliability threshold is a low one. "[A]n expert
opinion must be based on reliable methodology and must reliably
flow from that methodology and the facts at issue — but it need
not be so persuasive as to meet a party's burden of proof or even
necessarily its burden of production." Heller, 167 F.3d at 152
(3d Cir. 1999)
Dr. Wilcox's testimony can be divided into two relevant
sections. First, he testifies that the saw's brake contained a
defect. Second, he testifies that the defective brake caused
Hamilton's injuries. Emerson's objections to the testimony focus
primarily on the first portion. We will address these arguments
and then determine the admissibility of the subsequent
Emerson argues that Dr. Wilcox's "defect" testimony is not
reliable for four reasons:
(1) Dr. Wilcox did not examine the miter saw prior to making
his report; he only reviewed Hamilton's and Gililland's
depositions and read the saw's owner's manual.
(2) Dr. Wilcox performed no testing or evaluation and made no
measurements in furtherance of his analysis.
(3) Dr. Wilcox's opinion that the brake failed was pure
speculation based on Gililland's testimony that the brake did not
work when he operated the saw one year after the incident, and
his "general impression" that Hamilton had testified that the
brake did not work. (Wilcox Dep. at 68.)
(4) Dr. Wilcox did not rule out any secondary causes of the
saw's failure, making his testimony inherently unreliable.
To begin, we examine Emerson's first and second arguments. Dr.
Wilcox's lack of firsthand knowledge of miter saws does not make
his testimony per se unreliable. We are guided by the Tenth
Circuit in the above-mentioned Smith, which held not only that
the safety consultant and the human factors expert were each
qualified to give an opinion, but also that their opinions were
admissible notwithstanding their lack of firsthand experience
with milling machines. See Smith, 214 F.3d at 1244. The fact that
Dr. Wilcox did not do any independent examination or evaluation
of this particular miter saw does not automatically exclude his
testimony. The Third Circuit has recognized testimony by experts
who did not perform any independent analysis. See Kannankeril,
128 F.3d at 807 (stating that in the context of medical
testimony, "it is perfectly acceptable, in arriving at a
diagnosis, for a physician to rely on examinations and tests
performed by other medical practitioners."). See also Voilas v.
General Motors Corp., 73 F. Supp.2d 452, 461 (D.N.J. 1999)
(permitting an expert economist to summarize a corporation's
business plans for the jury). As long as the expert's methodology
is sound, he need not necessarily do any of his own analysis.
As for Emerson's third argument, we agree that Dr. Wilcox's
declaration that the saw was defective does not withstand any
kind of Daubert scrutiny. Recently, the Third Circuit twice found
testimony to be unreliable under Daubert. In Elcock v.
Kmart Corp., 233 F.3d 734 (3d Cir. 2000), the court vacated the
district court's decision to admit the testimony of Dr. Chester
Copemann, a vocational rehabilitation expert who testified that
plaintiff Elcock was 50% to 60% vocationally disabled. Based on
the trial record, the court was unclear as to Dr. Copemann's
methodology. Among the reasons for the court's decision was that
"because Copemann never explained his method in rigorous
detail . . . it would have been nearly impossible . . . to find
that his method consisted of a testable hypothesis for which
there are standards controlling the technique's operation." Id.
at 747 (citing Paoli, 35 F.3d at 742 n. 8) (internal quotation
marks omitted). Furthermore, the court found that exclusion was
warranted because Dr. Copemann did not produce evidence that his
method was generally accepted or that it related to methods that
had been established to be reliable. Id. at 748-49.*fn3
In Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000), the
Third Circuit upheld the district court's decision to exclude the
expert testimony of engineer John Noettl, who testified that
plaintiff Oddi had sustained injuries because the bumper of his
Ford truck was defectively designed. The Court of Appeals agreed
with the district court that because Noettl failed to test his
hypothesis regarding the design of the bumper or submit any
literature upon which he relied, he
used little, if any methodology beyond his own
intuition. There is nothing here to submit to peer
review, and it is impossible to ascertain any rate
of error for Noettl's assumptions about the forces
that caused Oddi's horrific injuries. Similarly, no
standards control his analysis, and no "gatekeeper"
can assess the relationship of Noettl's method to
other methods known to be reliable and the
nonjudicial uses to which it has been put.
Id. at 158. The court ultimately found that "Noettl's ipse dixit
does not withstand Daubert's scrutiny." Id.
As with the experts in Elcock and Oddi, Dr. Wilcox does not use
any discernible methodology to determine that the miter saw
contained a defect. This is demonstrated by an exchange at Dr.
Wilcox's deposition between Dr. Wilcox and Emerson's attorney,
DR. WILCOX: Given basic human capabilities and
limitations, the likelihood of an accident was high
in my opinion given that the brake failed.
ATTORNEY VOTER: How does the fact that the brake did
not work related [sic] to a conclusion that the saw
DR. WILCOX: The way I would define defectiveness as
being not containing what's necessary for the saw to
ATTORNEY VOTER: Okay. And what did the saw not
contain to make it safe?
DR. WILCOX: It didn't contain an adequate brake, an
adequately operating brake.
ATTORNEY VOTER: And what was inadequate about the
DR. WILCOX: That it didn't work [subsequent to the
ATTORNEY VOTER: That's it? That's the sole support
for your claim, that it was inadequate, the fact
that at some point in time it did not operate?
DR. WILCOX: Yes.
This conversation reveals that Dr. Wilcox makes two
assumptions. First, he assumes that because the brake did not
work at certain times after the accident, it did not work at the
time of the accident. Second, he assumes that because the brake
did not work at the time of the accident, it was defective. Dr.
Wilcox does not offer
any discernible methodology that might have
led to his conclusion that the brake did not work at the time of
the accident. His "method" consists only of the assumption that
because the brake failed subsequent to the accident, it must have
failed at the time of the accident. Therefore, he has not shown
that his hypothesis concerning the brake's malfunction could be
tested. He has completely disregarded any margin for error in
that he does not recognize the possibility that his assumption is
incorrect or imprecise. He offers no evidence that his process is
generally accepted or that it features any standards that control
its operation. In fact, he does not even explain his methodology
in sufficient detail such that we can competently apply any of
the Daubert factors to his analysis. His conclusion that the saw
was defective is based only on his own authority, which is a
violation of Rule 703. See Oddi, 234 F.3d at 158 (quoting Paoli,
35 F.3d at 742) (internal quotation marks omitted) ("An expert's
opinion must be based on the methods and procedures of science
rather than on subjective belief or unsupported speculation.").
Therefore, we will not allow Dr. Wilcox to testify as an expert
that the saw was defective.*fn4
In its brief, Emerson fails to comment on the remainder of Dr.
Wilcox's testimony, which apparently goes towards the issue of
causation. Dr. Wilcox explains that for a variety of reasons, it
was foreseeable that the malfunctioning brake would cause an
injury to Hamilton's hand.
Dr. Wilcox provides no assurance that his methodology here is
reliable either. Certainly, the Daubert factors are not as
pertinent in this context since his testimony is in the realm of
human tendencies rather than scientifically provable outcomes and
concrete scientific methods. Still, Dr. Wilcox's testimony fails
under even the most limited Daubert analysis.
As with the experts in Elcock and Oddi, Dr. Wilcox has failed
to explain sufficiently his methodology to survive a Daubert
inquiry. Dr. Wilcox proffers six reasons why the defective miter
saw caused Hamilton's injury. Three are psychological principles,
and three are observations about the miter saw in question.
i. Psychological Principles
Dr. Wilcox states that Hamilton expected the blade to be
stopped because "expectations have a powerful effect upon
perception. If people expect something to be a certain way, they
are at risk of misperceiving it in line with their expectations."
(Wilcox Report at 2.) Dr. Wilcox offers this assertion without
giving it any psychological background. He has not outlined the
method that experts in his field use to evaluate people's
expectations based on perception. Dr. Wilcox has not shown that
he or anyone else has tested this assertion in other studies of
human perception. There is no evidence that the "method" he uses
to make this claim is generally accepted by psychologists or
human factors authorities, or that it has been evaluated by Dr.
Wilcox's peers. Dr. Wilcox makes the blanket assertion that this
danger of misperception applies to "people." He does not explain
the types of the people or what percentage of the general
population are at risk of this type of misperception, and thus
ignores any possible margin for error. Dr. Wilcox fails to offer
any psychological standards that may guide this assertion, and he
does not demonstrate that his type of analysis is used outside
the context of the judicial system. Too little is known about his
"methodology" to allow him to include it in his expert testimony.
Similar problems abound in Dr. Wilcox's other two explanations
of psychological principles. He asserts that (1) "Mr. Hamilton's
actions would have been largely unconscious" because "[a] manual
task such as the one in question is not typically done
`intellectually;'" and (2) "Mr. Hamilton's attention would have
been on the task at hand" because "[p]eople naturally distribute
their attention toward what they are doing and do not tend to
focus on what they already know (or think they know)." Dr. Wilcox
again fails to give a background of the methods he uses to come
up with these statements. There is no evidence that any of his
methodology has attained general acceptance or has been subject
to peer review. By making these two general proclamations, he
ignores any potential rate of error. He does not incorporate any
standards that may govern either principle's existence, and there
is no evidence of the utility of his type of analysis outside of
the courtroom. These two statements are similarly unreliable
under the Daubert line of cases.
ii. Statements Regarding the Miter Saw.
The three remaining reasons for Dr. Wilcox's opinion concern
the miter saw itself. They are that (1) since the guard was not
completely transparent, Hamilton did not see the spinning blade;
(2) because the blade was spinning too quickly, Hamilton did not
see the blade's teeth and did not realize that the blade was
moving; and (3) because the power was off when Hamilton released
the trigger, the saw made little sound.
These statements are not reliable because Dr. Wilcox has done
nothing to explain or validate his methodology. All of these
declarations concern the operation of the miter saw, but Dr.
Wilcox admittedly did not inspect the miter saw prior to writing
his report, and he in no way shows that his methodology is
reliable. While we noted above that a lack of firsthand
experience with a miter saw does not necessarily mean that Dr.
Wilcox is not qualified to offer an opinion on miter saws, we
find that it adds to the unreliability of his testimony when he
does not offer any independent validation of his methodology.
Accordingly, even if we were to overlook Dr. Wilcox's lack of
experience with any miter saw, we would still find his testimony
unreliable because he has not demonstrated that his methodology
passes any of the Daubert tests. He provides no evidence that he
tested his hypotheses regarding the saw's inadequate visual and
auditory cues or the "transparency" of the guard, and he does not
show that these hypotheses were even testable. Furthermore, he
offers no other reports on miter saws that demonstrate that his
studies of the spinning blade or the machine's sound are
generally accepted or have been subject to peer review. He fails
to offer evidence that his methodology concerning miter saws
carries even an indicia of reliability; thus the testimony
outlining his final three reasons for the accident must be
Dr. Wilcox's supplemental report must also be excluded. Dr.
Wilcox's proclamation that the saw should have "failed safe" by
either stopping the blade or alerting Hamilton that the blade was
still spinning is another statement based on pure speculation. As
with his bald assertion that the saw was defective, he has not
demonstrated that this conclusion was supported by any
discernible methodology, a fact adverse to its reliability under
Daubert. In addition, Dr. Wilcox's lack of experience with and
knowledge of miter saws persuade us to conclude that this piece
of testimony is unreliable.*fn5*" NAME="S*fn5*">*fn5*fn6 We therefore hold that Dr.
Wilcox may not testify as an expert in this action.
5. In Limine Hearing.
In making our admissibility determination, we are cognizant of
the Third Circuit case of Padillas v. Stork-Ganco. Inc.,
186 F.3d 412 (3d Cir. 1999), which emphasized "the importance of in limine
hearings . . . in making the reliability determination required
under Rule 702 and Daubert." Id. at 417. In Padillas, plaintiff
Padillas's expert submitted a conclusory report stating that
Padillas was injured by the defendant's Drum and Thigh Cutter.
With language comparable to that in the instant case, the
district court excluded the report because "[the expert] provides
no basis for the conclusions and observations that he makes,
[and] . . . [h]e does not set forth in the report the methodology
by which he made his determinations in this case." Id. at 416,
417 (citing the opinion of the trial court). The Third Circuit
reversed and remanded, finding that the district court abused its
discretion for not holding an in limine hearing to determine the
expert's methodology. The court found that
[t]he district court's analysis of the [expert
report] does not establish that [the expert] may not
have `good grounds' for his opinions, but rather,
that they are insufficiently explained and the
reasons and foundations for them inadequately and
perhaps confusingly explicated. But if the court was
concerned with the factual dimensions of the expert
evidence . . . it should have held an in limine
hearing to assess the admissibility of the [report],
giving plaintiff an opportunity to respond to the
Id. at 418. We will not hold an in limine hearing for two
reasons. First, our case is distinguishable from Padillas in that
we have before us enough evidence to determine the reliability of
Dr. Wilcox's testimony under Daubert. In addition to Dr. Wilcox's
report and its supplement, we examined his deposition, at which
he admitted that he has very possibly never used a miter saw and
certainly did not examine Hamilton's saw in making his report.
These deficiencies are primary justifications for our
determination that his testimony is unreliable under Daubert. Our
second reason for not holding an in limine hearing is that we
have cited independent, non-Daubert reasons to both exclude Dr.
Wilcox's testimony and grant summary judgment to Emerson. These
reasons are discussed below.
6. Common Understanding.
Although Emerson successfully argues that Dr. Wilcox's
testimony is unreliable under Daubert, it fails to raise the most
compelling argument against its admission. Dr. Wilcox's testimony
should be excluded because it would not assist the jurors in
determining anything that they could not determine themselves.
"As a general principle, expert evidence is not necessary if all
the primary facts can be accurately and intelligibly described to
the jury, and if they, as persons of common understanding, are as
capable of comprehending the primary facts and of drawing correct
conclusions from them as are witnesses possessed of special or
peculiar training of the subject under investigation." Oddi, 234
F.3d at 159 (citations and internal quotation marks omitted).
Expert testimony is more likely to be inadmissible if the
inferences drawn by the expert are ones that can be, and
typically are, made from common observation. 31A Am.Jur.2d Expert
and Opinion Evidence § 43.
Courts have been prone to exclude the testimony of "human
factors" experts when the facts and inferences to which they
testified were within the common knowledge of jurors. In Scott v.
Sears Roebuck § Co., 789 F.2d 1052, 1054 (4th Cir. 1986), the
Fourth Circuit, in reviewing a motion for a new trial on a
personal injury action involving a defective curb, found that the
district court improperly admitted statistical evidence that
persons wearing high heels tend to avoid walking on grates. The
court explained that the evidence was excluded because "the
was simply repeating what is common knowledge and common
sense." Id. Other courts have reached similar results. See
Persinger v. Norfolk § W. Ry. Co., 920 F.2d 1185, 1186. 1188
(4th Cir. 1990) (finding that human factors expert "did no more
than state the obvious" where his testimony, "[w]hen stripped of
its technical gloss," was that it was more difficult to lift an
object from a seated position); Christopher v. Madison Hotel
Corp., 875 F.2d 314 (4th Cir. 1989) (upholding the district
court's exclusion of plaintiff's expert testimony explaining
friction tests on a bathroom floor because "[i]t is common
knowledge that shiny bathroom floors are slippery"); United
States v. Affleck, 776 F.2d 1451, 1458 (10th Cir. 1985)
(affirming the district court's exclusion of the testimony of a
"memory expert" because "the average person is able to understand
that people forget.").
Dr. Wilcox's psychological testimony purportedly would help a
jury to understand Hamilton's thought processes while operating
the miter saw. This testimony is not necessary to assist an
ordinary jury. Hamilton could describe (and has described in his
deposition) the scene of the accident such that a jury could
understand the requisite facts. A jury needs to understand how a
woodworker uses a miter saw, the process that Hamilton utilized
when cutting the wood, the occurrence of the accident §
itself, Hamilton's state of mind, and any environmental
conditions that were present on the day in question. Hamilton's
lay testimony alone could be sufficient for the jury to
understand the necessary facts of the case.
Moreover, an ordinary jury could draw reasonable conclusions
from these facts. Based on Hamilton's testimony, Dr. Wilcox
theorizes that the accident occurred for these reasons: (1)
Hamilton expected the brake to work properly; (2) he did not see
the spinning blade through the guard; (3) the blade was spinning
too quickly to see the teeth; (4) the saw was not loud enough to
signal danger; (5) he was using the saw with little conscious
awareness of anything that was going on around him; and (6) he
did not take into account that something might go wrong with the
saw. In his supplemental report, Dr. Wilcox states only that if
the brake failed, it should have "failed safe" by either stopping
the saw from working or alerting Hamilton that the blade was
still spinning. These inferences can be and typically are made
from common observation; a jury exercising ordinary common sense
could correctly make any of these inferences without Dr. Wilcox's
opinion. Accordingly, we will not allow this portion of Dr.
Wilcox's testimony at trial.
C. Products Liability Application
After applying the relevant products liability law to
Hamilton's evidence, we find that summary judgment should be
granted in favor of Emerson. Without Dr. Wilcox's testimony,
Hamilton must rely on his own testimony to meet his burden. As
stated, Hamilton is proceeding under the malfunction theory,
under which a plaintiff may get to the jury by providing
sufficient evidence that the product malfunctioned and raising an
inference of a defect from that malfunction.
Emerson vigorously argues that because Hamilton is not sure
that the brake malfunctioned on the day he was injured, he cannot
establish that there was a defect. In Agostino v. Rockwell
Maufacturing Co., 345 A.2d 735 (Pa. Super. 1974), plaintiff
Agostino cut his leg while using a power saw. The saw contained a
guard that was to cover the blade when the cut was complete.
Agostino admitted that he did not know where the guard was when
his leg was cut, but he claimed that the guard was "jammed" after
he was injured. The court found that, based on evidence of his
injury and the jammed guard, a jury could have properly inferred
that the guard malfunctioned. The court went on to state that "it
would be most unreasonable to bar recovery because appellant did
not observe the location of the
guard the moment his leg was
being lacerated." Id. at 740.
The instant facts bear a resemblance to the facts of Agostino
in that both saws malfunctioned after their respective accidents.
Approximately a week after he was injured and before anyone else
used his miter saw, Hamilton inspected it. He claims that before
the accident, the saw's blade always stopped in three to five
seconds after the trigger was released. He found that after the
accident, the blade took ten to fifteen seconds to come to a
halt. (Hamilton Dep. at 67-69.) Additionally, Gililland claims
that he tested the saw after Hamilton did, and that the blade
required a longer time than usual to stop. (Gililland Dep. at
23.) While Hamilton's case would certainly be bolstered if the
brake malfunctioned before as opposed to after the accident, the
failure of the brake after the accident may give rise to an
inference that it failed during the accident. As in Agostino,
where the court found evidence of the saw guard's malfunction
from the fact that the guard was "jammed" immediately after the
accident, we find that evidence that the brake failed after the
accident a sufficient basis for a reasonable jury to infer that
the saw malfunctioned at the time of the accident.
Hamilton must next show that a jury could reasonably infer the
existence of a manufacturing defect from the miter saw's
malfunction at the time of the accident. Although Hamilton has
presented sufficient evidence of the malfunction, he has not
satisfied his burden under the malfunction theory because he has
not provided evidence such that a reasonable jury could find that
a defect existed when the miter saw left Emerson's control.
Hamilton testifies that he made at least 1,000 and as many as
3,000 cuts with the saw before he was injured, (Hamilton Dep. at
58.) Also, he does not recall that the saw ever malfunctioned
before the day of his injury. (Id. at 66.) Although Emerson does
not specifically argue that Hamilton's continued successful use
precludes the finding of a defect when the saw left the hands of
the manufacturer, we will address the issue independently.
Pennsylvania courts have been somewhat inconsistent as to how
to analyze at summary judgment a plaintiff's continued successful
use of a product. In considering lapse of time and continued use,
we keep in mind that "[t]he questions when and where [sic] a
defect originated should be left to the finder of fact so long as
reasonable and well balanced minds (could) be satisfied from the
evidence adduced that the defective condition existed when the
(product) was delivered." Sochanski v. Sears, Roebuck and Co.,
621 F.2d 67, 70 (3d Cir. 1980) (citing Greco v. Bucciconi
Engineering Co., 407 F.2d 87, 90 (3rd Cir. 1969)) (internal
quotation marks omitted).
In Woodin v. J.C. Penney Co. Inc., 629 A.2d 974 (Pa. Super.
1993), a case in which the plaintiff proceeded under the
malfunction theory, the Pennsylvania Superior Court found that
where a freezer had functioned "flawlessly" for more than eight
years prior to its malfunction, a jury could not reasonably infer
the presence of a defect from the malfunction of the freezer
alone. The court cited a previous Pennsylvania Supreme Court case
We recognize that, as a general rule, "prolonged
use of a manufactured article is but one factor,
albeit an important one, in the determination of the
factual issue whether [a defect in design or]
manufacture proximately caused the harm." The age of
an allegedly defective product must be considered in
light of its expected useful life and the stress to
which it has been subjected. In most cases, the
weighing of these factors should be left to the
finder of fact. But in certain situations the
prolonged use factor may loom so large as to obscure
all others in a case. Professor Prosser has
summarized the position generally taken by the
courts on this question: "[Lapse of time and long
continued use] in itself is not enough, even when it
extended over a good many years, to defeat the
recovery where there is satisfactory proof of an
original defect; but when there is no definite
evidence, and it is only a matter of inference from
the fact that something broke or gave way, the
continued use usually prevents the inference that
the thing was more probably than not defective when
it was sold."
Id. at 976 (citing Kuisis v. Baldwin-Lima-Hamilton Corp.,
319 A.2d 914, 923 (Pa. 1974)). The court seemed to suggest that in
many cases involving the malfunction theory (that is, when a jury
must infer a defect from a malfunction and a plaintiff has no
other evidence of the defect), the plaintiff cannot survive
summary judgment if he has successfully used the product for a
long time before his accident. By taking this position, the
Kuisis and Woodin courts effectively stated that in such cases,
the plaintiff does not present a case-in-chief free of reasonable
secondary causes, as lapse of time and continued successful use
of the product are automatically fatal evidence of normal wear
The Eastern District of Pennsylvania has interpreted continued
use differently. In Harley v. Makita USA, Inc., 1997 WL 197936,
*1 (E.D. Pa. April 22, 1997), a case in which plaintiff Harley
alleged injuries resulting from a defective table saw, the court
denied summary judgment to the manufacturer in part because there
was no evidence as to the condition of the saw when it left
Makita, the manufacturer. Makita argued that it was entitled to
summary judgment because there was no evidence that the saw was
defective when it left its control. The court rejected this
While [there may be no evidence that the saw was
defective when it left the hands of the
manufacturer], and this aspect may be part of
plaintiff's prima facie case, at this stage in order
for the defendant to be entitled to summary judgment
on this issue as a matter of law, it must come
forward with proof that the saw was not defective
when it left its hands, or some evidence that would
preclude plaintiff from proving that the blade brake
was defective when it left Makita's hands . . .
Accordingly, defendant is not entitled to summary
judgment on this basis.
Id. at *4. The court also stated that "[l]apse of time and
continued use may preclude a jury inference of a defect, but are
not sufficient proof of absence of defect on which to rest
summary judgment in favor of defendant." Id. at *4 n. 3. The
court in effect shifted the burden to the defendant manufacturer
to prove that its product was not defective when it left its
In light of the above discussion, we are faced with conflicting
propositions. Kuisis and Woodin stated that summary judgment for
lack of defect is often warranted in cases under the malfunction
theory in which there has been prolonged use of the product and
there exists no independent evidence of the product's defect
other than its malfunction. Harley stated that prolonged use may
never be a sufficient reason to find an absence of a defect and
grant summary judgment to the manufacturer. Harley also puts a
burden on the manufacturer to produce evidence that the product
was not defective when it left its hands.
We adopt the teachings of Kuisis and Woodin, and find that
Hamilton has not met his burden. The only evidence of the miter
saw's defect is its possible malfunction. Prior to the accident,
Hamilton used the saw without incident for more than a year and
for a great number of cuts. He admits that he is unaware of any
previous malfunction of the miter saw. Consistent with Kuisis and
Woodin, we find that Hamilton's continued use of the miter saw
precludes a reasonable inference that the saw was defective when
Emerson's control.*fn7 This is particularly true here,
where plaintiff has failed to produce any evidence from which a
jury might determine a reasonable life-span or usage limit for
this particular product. It may be that usage of the saw over a
period of one to two years and for 1 to 3 thousand cuts would be
well within design norms, but it would be speculative for the
jury so to determine on this record. Hamilton's products
liability claim must therefore fail.*fn8
Based on the foregoing reasons, Emerson's motion to exclude Dr.
Wilcox as an expert witness will be granted. Its motion for
summary judgment will also be granted. An order consistent with
this memorandum will be issued.
For the reasons stated in the accompanying memorandum,
IT IS ORDERED THAT:
1. The motion to exclude Steven A. Wilcox, Ph.D., filed by defendant
Emerson Electric Co. (rec. doc. no. 19), is granted.
2. Emerson's motion for summary judgment (rec. doc. no. 19) is
3. The clerk is directed to enter judgment in favor of defendant and
against plaintiff, and to close the file.
4. The clerk is directed to fax a copy of this order only to counsel