Street Mortgage v. Main Street Bancorp, Inc., 158 F. Supp.2d 510,
518 (E.D.Pa. 2001).
Having found that Novicelli lacks the necessary qualifications
to testify to the proposed shut-off valve and that his
methodology with respect to the shut-off valve lacks
reliability, we find that the fit requirement is also not met.
Finding that Rule 702's qualifications, reliability and fit
requirements are not met, we hold that Novicelli may not testify
as to the proposed hydraulic shut-off valve.
3. Testimony Regarding Warning Alarm and Light
Defendant also objects that Novicelli is not qualified to
testify as to the proposed warning light and alarm. Defendant
raises the same arguments as it did with respect to the
hydraulic shut-off valve; it argues that Novicelli should not be
able to offer an expert opinion as to the light and alarm system
because Novicelli lacks product design experience and has never
worked with agitators.
With respect to the proposed light and alarm system, Plaintiff
responds that "[i]n his [Novicelli's] involvement with heavy
trucks, it has been imperative that he has an understanding of
warning devices, as they are invariably present." (Pls.'
Response to Def.'s. Mot. to Exclude Testimony of Expert Witness
Novicelli at 7.)
We find that Novicelli also lacks the necessary qualifications
to testify as to the proposed light and alarm safety feature. As
noted supra at Section IV.B.2.a., the criteria required to
qualify an expert turn upon the subject matter of the opinion to
be offered. Like the shut-off valve, the proposed warning light
and alarm would be integrated with the hydraulic system.*fn4
As with the proposed shut-off valve, we find that in order for
an expert to be qualified to testify as to the function and
design of the proposed warning system, the witness would have to
have hydraulic engineering and design experience. Without such
experience, the witness would not be qualified to explain how
the warning system would work in conjunction with the
hydraulically operated agitator.
We find that although Novicelli may testify generally about
the function of the hydraulic system, see infra at Section IV.
B.4., he lacks the necessary background, experience and training
to testify as to the proposed warning system. We reject
Plaintiffs argument that Novicelli is qualified to testify as to
this proposed safety device because he has acquired an
understanding of warning devices through his experience with the
warning devices that are "invariably present" in heavy trucks.
Novicelli's experience in heavy truck maintenance and repair
generally does not qualify him to testify about a proposed
safety design that would be connected to the truck's hydraulic
functions. Novicelli lacks the necessary experience in designing
and engineering hydraulic systems and safety devices intended to
check the hydraulic operation.
We also find that Novicelli's methodology with respect to the
warning light and alarm is not reliable. Although Plaintiff has
submitted a videotape showing a light and an alarm that appear
to activate upon increases in pressure, this system was tested
in isolation. To this Court's knowledge, Novicelli has not
connected the apparatus to an agitator to observe and test its
function in relation to the vehicle;
nor has Novicelli submitted any plans, drawings or designs
showing how this warning device would be integrated into the
entire system. Without performing tests on the integrated system
or making plans, drawings or designs to illustrate the entire
system, Novicelli, who lacks engineering and design experience,
has not engaged in a reliable methodology.
Having found that Rule 702's qualifications and reliability
requirements are not met, we find that Novicelli's testimony
regarding the proposed warning system does not satisfy the fit
requirement. Accordingly, Novicelli may not offer an expert
opinion as to the proposed warning design.
4. Conclusion Regarding Scope of Novicelli's Testimony
Given the foregoing, Novicelli may not offer an expert opinion
as to Plaintiffs two proposed safety features. Plaintiff, may,
however, proffer another expert to testify as to the proposed
safety mechanisms. Assuming that the proffered witness possesses
the requisite engineering and design experience, has employed a
reliably methodology in arriving at his/her conclusions and can
offer an opinion that will assist the jury, this Court will
qualify the witness to offer an expert opinion regarding how the
shut-off valve's and the warning system's design and function
would make the agitator safe.
Novicelli may testify in conjunction with this expert to help
to lay the foundation for the expert's opinion. Along these
lines, the parties have not squarely addressed in their papers
whether Novicelli is qualified to testify as to the overall
operation of the agitator and to the cause of Plaintiffs
accident. Nevertheless, for clarity's sake, we address it here.
We find that Novicelli is qualified to explain to the jury how
an agitator generally operates. Novicelli's experience with
truck mechanics and repair qualifies him to testify, for
example, as to how the agitator is mounted to the truck chassis
and to the fact that the agitator, by virtue of the hydraulic
system, is capable of rising. Novicelli's explanation will
assist the trier of fact. Although jurors may be familiar with
the overall appearance of a cement mixing truck, many will have
only a limited understanding of the agitator's function, and
Novicelli's testimony will aid their understanding.
Additionally, Novicelli may testify as to the cause of
Plaintiffs accident. Novicelli's curriculum vitae indicates that
he has significant experience with accident reconstruction and
repair of damaged vehicles. Accordingly, Novicelli is qualified
to explain to the jury that the accident occurred when the
cement mixing barrel rose and struck the underside of a bridge
overpass. These conclusions are based on reliable methodology,
which included examining the subject vehicle and an exemplar
vehicle and receiving information from eye witnesses to the
accident. His explanation will assist the jury in assessing the
cause of the accident and the existence of any design defect.
C. Alternate Relief
1. Exclusion of Testimony by Novicelli that Maxon Should
Have Anticipated Unwanted Rising of Agitator
Defendant seeks to prevent Novicelli from testifying that
Maxon should have anticipated that the agitator would
inadvertently rise during transit and therefore should have
installed a safety feature. Defendant contends that Novicelli
has not offered studies, reports, surveys or other statistical
analyses concerning instances in which agitator barrels
unexpectedly rise during transit and therefore objects that
the necessary foundation for him to offer such an opinion is
We decline to issue a ruling on this objection at this time.
Plaintiff may provide the necessary foundation for this opinion
through other witnesses and evidence at trial, in which case
Novicelli or another expert offered by Plaintiff would be
permitted to testify as to whether the manufacturer should have
anticipated the unwanted rising of the barrel.
2. Exclusion of Testimony by Novicelli that Previous Owners
of Sister Agitator Modified Hydraulic Valve Because of
Defendant seeks to prevent Novicelli from testifying that the
previous owners of the exemplar, sister agitator that Novicelli
examined had made modifications to its hydraulic control valves
because of safety concerns.
We hold that Novicelli lacks the necessary foundation to
testify that these modifications were made for safety reasons.
Novicelli must have some reason for making the leap from the
fact that modifications to the valves were discovered on the
exemplar vehicle to the conclusion that they were made due to
safety concerns. Plaintiff has failed to put forth any such
basis. First, Plaintiff has not established that Novicelli has
experience with features designed to control the operation of
hydraulic systems that would enable him to draw this inference.
Novicelli has not indicated any experience that would, for
example, allow him to argue that modifications like the switch
attached to the exemplar vehicle are commonly attached for the
purpose of addressing safety concerns such that it would be
reasonable for him to opine that in this instance, the
modifications were installed for such safety reasons. Nor has
Novicelli alleged any personal knowledge (e.g., through speaking
with the owner of the exemplar vehicle) that would enable him to
conclude that the changes were made for safety reasons.
Novicelli has not shown that he has any reason to think that
these changes were made for safety reasons rather than, as
Defendant alleges they were, to hold the levers in place so that
repairs to the hydraulic line could be performed.
Nor may Novicelli testify to the existence of these
modifications in order to show the feasibility of a shut-off
system that would control the raise-lower line. Having decided
in this Memorandum that Plaintiffs expert may not offer an
expert opinion as to the proposed shut-off valve, the
feasibility of such a design is irrelevant. Moreover, even had
we not excluded testimony by Novicelli as to the proposed
shut-off valve, this evidence would have minimal, if any,
relevance. Lacking any basis for concluding that the
modifications were made for safety reasons or in fact
effectuated a more safe operation of the agitator, Plaintiff
would be hard pressed to show, by reference to these
modifications, the feasibility of Novicelli's proposed shut-off
valve. Such testimony would also present concerns under Federal
Rule of Evidence 403; whatever minimal relevance such testimony
possesses would be substantially outweighed by the risk of
confusion of the issues.
3. Exclusion of Testimony by Novicelli that Barrel Was
Defendant seeks to exclude testimony by Novicelli that when
fully raised, the agitator barrel was unreasonably high. It is
unclear what Defendant means by "unreasonably high." Insofar as
Defendant is referring to the fact that when fully extended, the
barrel was too high to clear the underside of the bridge,
Defendant's request is denied. As stated supra at Section
IV.B.4., Novicelli may testify about the cause of the accident
(i.e., that the
barrel rose and struck the underside of the overpass). Novicelli
has measured the height capability of the sister agitator and
may testify as to its measured height capability in relation to
the overpass clearance of the bridge involved. Novicelli may
also testify as to the height capability of the agitator insofar
as this evidence relates to the need for the proposed light and
alarm safety feature.
4. Exclusion of Videotape Depicting Exemplar Agitator
Defendant seeks to preclude Novicelli from showing a videotape
that he made of the exemplar agitator and from comparing it to
the subject agitator. Defendant appears to raise two separate
grounds for exclusion: spoliation and lack of foundation.
Defendant first argues that "[p]ermitting Mr. Novicelli to
testify in such a manner is wholly unfair to the Defendants as
the subject hydraulic control valve assembly is missing, and
this is integral to the operation of the subject agitator. No
Defendant had the opportunity to examine same [sic], as it was
spoliated." (Defs.' Mot. To Exclude and/or Limit Testimony of
Robert A. Novicelli at 9-12.) We addressed the alleged
spoliation of this piece of evidence in our order dated June 30,
2000 denying Defendant Stowell's motion for summary judgment.
There, we noted that there was a material dispute as to whether
spoliation by Plaintiff actually occurred. This dispute still
exists. Without certain evidence that Plaintiff caused the
spoliation of the hydraulic valve control system, we decline to
exclude the videotape on spoliation grounds.
Moreover, we reject any argument by Defendant that an adequate
comparison of the two agitators is impossible since the subject
valve system is missing and, accordingly, that the videotape
should be excluded on spoliation grounds. As we noted in our
June 30, 2000 order addressing Defendant Stowell's motion, "even
assuming spoliation of evidence, given that a design defect is
common to all products of the same model, . . . the prejudice to
Defendant would be slim at best." As we explained there, "in a
case alleging design defect, one need only examine other samples
from the same product line in order to determine whether the
alleged defect exists . . . and was capable of causing the
injury alleged. Presumably, if similar valves are examined in
the context of the entire machinery, and the machinery is
determined not to be defective, the claim of design defect would
fail." The same reasoning applies to Defendant's request here.
Defendant also argues that Novicelli has not established any
foundation that would permit a fair comparison between the two
agitators. (Defs.' Mot. To Exclude and/or Limit Testimony of
Robert A. Novicelli at 9-12.) We reject this argument. We
believe that Novicelli's report lays an adequate foundation for
a comparison between the two agitators. Novicelli's report
indicates that the subject and sister agitators were
manufactured with the same specifications such that the height
and other dimensions of the two agitators can be expected to be
comparable. With respect to the hydraulic control valve bank and
lever assembly, Novicelli's report indicates that the pivot and
attachment points were similar in design and function to the
subject vehicle. Assuming that Novicelli can recollect the
subject and exemplar control valves and can elaborate on his
report by testifying as to the similarities and as to any
differences between the agitators, the necessary foundation for
a comparison between the two will be laid. Contrary to
Defendant's assertions, the fact that the subject control valve
assembly was in a different condition, whether due to poor
maintenance or to the accident or
otherwise, than the exemplar assembly does not preclude the
showing of this tape. As we have noted, this is a design defect
case and not a manufacturing defect case and, accordingly,
"[w]hether the specific valve involved in Plaintiffs accident
was improperly maintained or altered has no bearing on th[e
design defect] issue." (Order Dated June 30, 2000.) We decline
to preclude the showing of the tape on these grounds at this
time; we will allow Novicelli an opportunity to lay this
D. Defendant's Renewal of Motion for Summary Judgment
Defendant also renews its April 14, 2000 motion for summary
judgment. Our order dated June 20, 2000 and docketed June 21,
2000 denied Defendant's April 14, 2000 and April 21, 2000
motions for summary judgment on the basis that outstanding
issues of material fact existed precluding us from granting
summary judgment. We continue to adhere to this determination.
We grant Defendant's Motion to Exclude and/or Limit the
testimony of Robert A. Novicelli. Novicelli may not offer an
expert opinion as to the proposed hydraulic shut-off valve or as
to the proposed warning light and alarm system. However,
Novicelli may testify as to the overall operation of the
agitator and in general about the cause of Plaintiff's accident.
We decline to rule at this time that Novicelli may not testify
that Maxon should have anticipated the unwanted rising of the
agitator; Plaintiff may provide the necessary foundation for
testimony by Novicelli on this issue.
We grant Defendant's objection as to testimony by Novicelli
regarding modifications made to the sister agitator. Novicelli
may not testify that the previous owners of the sister agitator
modified the hydraulic valve system because of safety concerns;
nor may he testify as to the modifications in order to show the
feasibility of the proposed shut-off valve.
We deny Defendant's objection that Novicelli may not testify
that the agitator barrel was unreasonably high insofar as
Defendant objects to any testimony by Novicelli that the
agitator barrel was too high to clear the bridge overpass.
We deny Defendant's motion to exclude the videotape showing
the subject and sister agitators; assuming that Plaintiff can
lay the necessary foundation to permit a fair and useful
comparison between the two, Plaintiff may show the videotape.
AND NOW, this 15th day of April, 2002, upon consideration of
Defendant Maxon Industries, Inc.'s motion to exclude and/or
limit the testimony of Plaintiff James Kerrigan's proffered
expert witness, Robert A. Novicelli, filed on December 14, 2001;
Plaintiffs response thereto, filed on January 23, 2002; and
Defendant's Reply Brief, filed on March 19, 2002, it is hereby
ORDERED, consistent with the foregoing Memorandum, as follows:
A. Defendant Maxon's Motion to Exclude the
Testimony of Robert A. Novicelli is GRANTED
1. Robert A. Novicelli may not offer an expert
opinion as to the design and function of Plaintiffs
proposed shutoff valve and warning light and alarm
2. However, Robert A. Novicelli may testify as to
the overall operation of
the agitator and the cause of Plaintiff's accident.
B. Defendant's Motion to Further Limit the
Testimony of Robert A. Novicelli is GRANTED IN
PART and DENIED IN PART, consistent with Section
V. of the foregoing memorandum.