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March 8, 2001


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 both motions.



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 added).

. . . [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).


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 liability claim.

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 (Pa. 1995).

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 Vol.).

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 causes.
(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 accident.
(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).

[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." Id.

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 ...

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