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KERRIGAN v. MAXON IND.
April 16, 2002
JAMES KERRIGAN, PLAINTIFF
MAXON INDUSTRIES, INC., DEFENDANT AND STOWELL INDUSTRIES, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Van Antwerpen, District Judge.
This Memorandum considers 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
Federal Rule of Evidence 702, which governs the use of expert
testimony in federal courts, reads:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
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,
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
This rule on expert testimony essentially codifies the
principles enunciated in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993) and its progeny of cases. Daubert charges
trial judges with the responsibility of acting as gatekeepers to
exclude unreliable proffered expert testimony. Daubert, 509
U.S. at 589, 113 S.Ct. 2786; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999) (extending Daubert's framework for evaluating
scientific expert testimony to technical and other expert
testimony). Courts must determine whether (1) the proposed
witness is a qualified expert in the area in which he or she is
being offered as an expert; (2) the proposed expert's testimony
is reliable and (3) the expert's testimony will assist the trier
of fact. In re Paoli Railroad Yard PCB Litig., 35 F.3d 717,
741-43 (3d Cir. 1994) (quoting Daubert, 509 U.S. at 595, 113
S.Ct. 2786). A plaintiff must establish the expert's
qualifications and the reliability and fit of the proposed
testimony by a "preponderance of proof." In re TMI Litig.,
193 F.3d 613, 663 (3d Cir. 1999). The trial court's inquiry is a
flexible one, and its decision to admit or exclude expert
testimony is reviewed under an "abuse of discretion" standard.
Kumho Tire, 526 U.S. at 138-39, 119 S.Ct. 1167; In re Paoli,
35 F.3d at 777-78.
III. FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 1997, Plaintiff James Kerrigan ("Kerrigan") was
involved in an accident while driving a truck for his employer,
Number One Contracting Company, Inc., which had a contract to
pour cement for a state highway cement project. Kerrigan's
duties included driving a truck mounted with a cement pouring
device called an agitator and transporting cement from the batch
mixing plant to the pour site. Kerrigan alleges that as he was
returning from the paving site to the company plant, the barrel
portion of the cement mixer inadvertently rose and struck a
bridge overpass on Route 30 near Lancaster, Pennsylvania.
Kerrigan was injured, and brought suit against Maxon Industries,
Inc. ("Maxon") and later against Stowell Industries ("Stowell").
2. Composition of Agitator and Chassis
A division of Stowell, the Seaman Company, manufactured the
cement mixer bowl and sold it to Maxon. Maxon mounted the mixer
bowl on a truck cab and chassis manufactured by Kenworth and
supplied to Maxon by Daniel Construction Company ("Daniel").
Maxon sold the agitator in question to Daniel. At some point
after the sale to Daniel, a subsequent purchaser removed the
agitator that was involved in Kerrigan's accident from the
Kenworth cab and chassis and mounted it on the Ford cab and
chassis that Kerrigan was driving when the accident occurred.
3. Plaintiff's Proposed Expert
On December 14, 2001, Defendant Maxon filed a motion to
exclude and/or limit the testimony of Novicelli. In this motion,
Maxon argued under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993) that Novicelli is not qualified to
offer an expert opinion in this case and that Novicelli's
opinions are unsupported and not reliable and lack the necessary
fit to the issues in this case. Maxon alternatively requested
this Court (1) to bar Novicelli from testifying that Maxon
should have anticipated that the barrel would inadvertently rise
during transit and accordingly should have designed the agitator
with backup safety designs; (2) to bar Novicelli from testifying
that the previous owners of a sister, exemplar agitator modified
the hydraulic control valve and hoist lever because of concerns
about the safety of the system; (3) to prohibit Novicelli from
testifying that the agitator barrel, when fully raised, was
unreasonably high and (4) to bar Plaintiff from showing a
videotape of the exemplar agitator because plaintiffs cannot lay
the proper foundation showing that the subject agitator and the
exemplar agitator were sufficiently similar to permit a
comparison between the two.
Plaintiff failed to file a timely response to Defendant's
Motion, and by order dated January 17, 2002 and docketed January
22, 2002, this Court granted Defendant's Motion to exclude the
testimony of Novicelli and entered judgment in Defendant's favor
on all claims. On January 23, 2002, Plaintiff filed a response
to Defendant's motion, and on January 29, 2002, filed a Motion
for Reconsideration of this Court's order entering judgment in
Defendant's favor. This court held oral argument and, by order
dated February 13, 2002 and docketed February 15, 2002, granted
Plaintiffs Motion for Reconsideration; vacated this Court's
prior order dated January 17, 2002; and deemed Defendant Maxon's
motion to exclude and/or limit the testimony of Novicelli an
active motion before this Court. This Court also noted that
Plaintiff had filed a response to Defendant's motion on January
23, 2002 and gave Plaintiffs counsel until February 22, 2002 to
file any depositions or affidavits necessary to oppose
Defendant's motion. In that order, we noted that, consistent
with Plaintiffs counsel's representations at oral argument, this
authorization for additional depositions or affidavits
eliminated the need for a hearing with regard to Defendant's
motion. This Court also allowed Defendant fourteen days from the
filing of any depositions or affidavits to file a reply brief.
Plaintiffs response to Defendant's motion argues that
Novicelli is qualified to offer his opinion regarding the two
proposed safety features. Plaintiff further argues that
Novicelli's opinions are supported, reliable and possess the
requisite fit to the issues in this case. Additionally,
plaintiff argues that this Court should deny each of plaintiffs'
claims for alternative relief.
d. Defendant's Reply Brief
Defendant reiterates in its reply brief, filed on March 19,
2002, the arguments made in its original motion to exclude
and/or limit Novicelli's testimony. Defendants argues that
Novicelli is not qualified to testify as an expert and that
Novicelli's opinions are not based upon sufficient facts and
data or reliable principles and methods.
Defendant Maxon's motion to exclude and/or limit Novicelli's
testimony, Plaintiffs response thereto and Defendant's reply
brief are active, and are properly before this Court. We first
address Novicelli's qualifications, the reliability of his
opinions and the fit of his opinions to the issues in this case
and then Maxon's requests for alternative relief.
Plaintiffs January 23, 2002 response to Defendant's motion to
exclude Novicelli's testimony contends that it would be error
for this court to grant Defendant's motion without holding an
evidentiary hearing regarding Novicelli's qualifications and the
reliability of his methodology and results. (Pls.' Response to
Defs.' Mot. to Exclude Testimony of Expert Witness Novicelli at
15.) Plaintiff suggests therein that the Court may decline to
hold a hearing on the motion only if this Court decides the
motion in Plaintiffs favor by finding that the Daubert
requirements are met and that Novicelli is allowed to testify as
an expert. (Id.)
2. Criteria for Determining Necessity of Daubert Hearing
Subsequent to the filing of Plaintiff's response, this Court
issued an order, dated February 13, 2002 and docketed February
15, 2002, that specified that "[c]onsistent with Plaintiffs
counsel's statements at oral argument [on Plaintiffs Motion for
Reconsideration], . . . this authorization for additional
depositions or affidavits as eliminating the need for a hearing
with regard to Defendant's motion." Based on representations
made by Plaintiffs counsel at oral argument and consistent with
this portion of the Court's February 13, 2002 order, we hold
that a hearing on Defendant's motion to exclude is not required.
We also decline to hold a Daubert hearing on alternate
grounds. Although a hearing is sometimes required in order for
the Court to properly exercise its gatekeeping function, such a
hearing is not necessary in all cases, even where the court
decides the motion in the movant's favor and excludes the
proposed expert testimony. Plaintiffs Memorandum of Law in
support of his response to Defendant's motion to exclude
misstates the law. Padillas v. Stork-Gamco, Incorporated,
186 F.3d 412 (3d Cir. 1999), the case relied upon by Plaintiff, does
not, as Plaintiff suggests, stand for the proposition that the
trial court must always hold a hearing when the court is going
to grant a motion to exclude expert testimony. Rather, the
thrust of the Padillas opinion is that "when the ruling on
admissibility turns on factual issues [as it did in Padillas],
at least in the summary judgment context,
failure to hold such a hearing may be an abuse of discretion."
Padillas, 186 F.3d at 418. In Padillas, the court in fact
decided that because the expert's opinions were insufficiently
explained and the reasons and foundations for them were
inadequately and confusingly explicated, the trial court could
not reach an informed decision as to the reliability of his
opinions and, accordingly, should have held a hearing. See id.
The court held that the trial court's failure to do so
constituted an abuse of discretion. See id.
However, the Padillas court stressed that a Daubert
hearing is not always required. See id. Although the court
recognized the importance of in limine hearings in making the
reliability determination under Rule 702 and Daubert, the
court also explained that "[a]n in limine hearing will obviously
not be required whenever a Daubert objection is raised to a
proffer of expert evidence" and emphasized that "[w]hether to
hold one rests in the sound discretion of the district court."
Thus, we read Padillas to require an in limine hearing on a
Daubert motion not in every case, but before granting a motion
to exclude the proffered expert testimony when the record does
not clearly explicate the basis of the proffered expert ...