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KERRIGAN v. MAXON IND.

April 16, 2002

JAMES KERRIGAN, PLAINTIFF
V.
MAXON INDUSTRIES, INC., DEFENDANT AND STOWELL INDUSTRIES, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Van Antwerpen, District Judge.

    MEMORANDUM AND ORDER

I. INTRODUCTION

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 19, 2002.

II. STANDARD OF REVIEW

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, (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.

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

A. Factual Background

1. Kerrigan's Accident

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

Plaintiff Kerrigan alleges that the cement mixer was defective in design and proffer Robert A. Novicelli ("Novicelli") as an expert who will testify that the agitator was defectively designed because it lacked warning or safety devices to alert the driver to the fact that the agitator was rising while he was driving the truck. Novicelli opines that the vehicle should have had an in-cab warning light or buzzer to alert the driver that the agitator was rising and/or*fn1 a shut-off valve in the hydraulic line controlling the lifting function of the barrel that would enable the driver to close hydraulic fluid supply to the elevation control while operating the vehicle.*fn2

4. Procedural History

a. Defendant's Motion

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.

b. Court's Response

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.

c. Plaintiffs Response

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.

e. Court's Approach

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.

IV. DISCUSSION

A. Daubert Hearing

1. Plaintiffs Argument

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." Id.

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 ...


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