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July 23, 2001


The opinion of the court was delivered by: Dubois, J.



This case arises out of an automobile accident which occurred in the early morning hours of March 10, 1996 at the intersection of 7th and Spruce Streets in Philadelphia, Pennsylvania. At that time, plaintiff, Thomas J. Bowersfield, Jr., and two companions were traveling west on Spruce Street in a 1992 Suzuki Samurai (the "Samurai"). Another vehicle traveling north on 7th Street collided with the Samurai and sped away.

The Samurai was designed and manufactured by defendant Suzuki Motor Corporation ("SMC"), a Japanese auto manufacturer. In the United States, it was distributed by defendant American Suzuki Motor Corporation ("ASMC"), a California corporation.

By Order and Memorandum dated August 28, 2000, the Court denied the defendants' joint motion for summary judgment. See Bowersfield v. Suzuki Motor Corp., 111 F. Supp.2d 612 (E.D.Pa. 2000). The facts and legal theories advanced by the parties are set forth in detail in that Memorandum, and will not be repeated in this Memorandum.

On September 21, 2000, defendants SMC and ASMC filed a Motion in Limine to Preclude the Testimony of Plaintiff's Expert, Alan Cantor. By Order dated April 5, 2001, the Court ordered a hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) to address the issues raised in that motion. See Oddi v. Ford Motor Co., 234 F.3d 136, 155 (3d Cir. 2000) (explaining that a Daubert hearing is necessary where a court can "not determine what methodology the expert used, and the reliability of the expert's conclusion could therefore not be established"); see generally Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999) (stressing the importance of in limine hearings under Rule 104(a) in making the reliability determination required under Rule 702) (citing United States v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985)). The hearing was held on July 11 and 12, 2001.

At the Daubert hearing, defendants frequently objected that the testimony of Mr. Cantor went beyond the scope of his expert report. The Court will address both those objections and the Daubert issues in this Memorandum.


A. Expert Testimony Under Daubert

Federal Rule of Evidence 702, as amended December 1, 2000, provides as follows:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Under Rule 702, when "[f]aced with a proffer of expert scientific testimony . . . the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796 (footnotes omitted). It is well settled that the gatekeeping role established in Daubert under Rule 702 is not limited to scientific testimony — the Daubert approach applies to all cases where the "testimony reflects scientific, technical, or other specialized knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. Id. This approach helps to ensure the reliability of expert testimony, which "can be both powerful and quite misleading because of the difficulty in evaluating it." Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

Under Daubert, the Court must engage in a two-step inquiry. "First of all, the proffered `expert' must be qualified to express an expert opinion. . . . Secondly, the proffered expert opinion must be reliable." In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999). With respect to this inquiry, a number of criteria to guide the courts in making reliability determinations have been identified, including:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (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 he reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir. 2000) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3d Cir. 1994) ("Paoli")). This list is not exhaustive — the inquiry under Daubert should remain a flexible one. See, e.g., Elcock, 233 F.3d at 746 (writing that "Kumho Tire makes clear that this list is non-exclusive and that each factor need not be applied in every case"); Schieber v. City of Philadelphia, 2000 WL 1843246, at *2 (E.D.Pa. Dec. 13, 2000) ("These factors are non-exclusive and no one of the factors weighs more heavily than another; the approach to determining the admissibility of expert testimony is a flexible one.") (citing Daubert, 509 U.S. at 594). As a general rule, the ...

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