The opinion of the court was delivered by: Ambrose, Chief District Judge
Before the Court are four motions, all of which concern the testimony of Plaintiffs' engineering expert, Christopher Ferrone: (1) Plaintiffs filed a motion to amend an admission made in a supplemental response to Defendant-Bobcat's request for admissions; (2-3) Bobcat has filed two separate motions to exclude the expert testimony of Christopher Ferrone; and (4) Defendant-Leppo filed a motion to exclude the expert testimony of Christopher Ferrone. I am denying all four for the reasons set forth in my Opinion below.*fn1
Plaintiffs' motion to amend or withdraw their prior admission (docket entry no. 140), involves the same admission that Bobcat currently relies upon as one of its bases to exclude Mr. Ferrone's testimony. Plaintiffs' argue that Bobcat will not be prejudiced by a withdrawal of this admission.
In one of its motions to exclude Mr. Ferrone's testimony (docket entry no. 136), Bobcat claims that during Mr. Ferrone's January 10, 2008 deposition, Mr. Ferrone discussed various industry standards and opined Bobcat did not comply with some of them when designing the machine at issue. Bobcat claims Mr. Ferrone's testimony contradicts Plaintiffs' previous admission wherein Plaintiffs admitted they had no evidence that the design of the machine at issue was contrary to any industry standard. Bobcat claims it relied on this admission. Additionally, Bobcat asserts that Mr. Ferrone's testimony should be excluded because his deposition testimony referencing the various industry standards exceeded the scope of his two reports which did not reference any industry standards.
In a separate motion to exclude Mr. Ferrone's testimony, Bobcat filed an "amended Daubert motion" (docket entry no. 134), suggesting: (1) that Mr. Ferrone's investigation of the machine at issue was unreliable under Daubert; and (2) his conclusions are nothing more than mere speculation.
Leppo's motion (docket entry no. 142) seeks to exclude Mr. Ferrone's expert testimony on the basis that he testified beyond the scope of his report.
Currently, the only pending claims against Defendants sound in negligence. Plaintiffs assert Bobcat negligently designed the machine at issue and Leppo failed to adequately warn and train First Energy employees.
On June 8, 2006, in response to one of Bobcat's requests for admissions, Plaintiffs refused to admit they had no evidence that the machine's design was contrary to industry standards. However, instead of identifying one or more industry standards that ran contrary to the design, Plaintiffs explained their denial by stating discovery was on-going. In response to a motion filed by Bobcat, I ordered Plaintiffs to submit a more definite response. On July 7, 2006, Plaintiffs submitted a supplemental response admitting they had "no evidence at this time" that the machine's design was contrary to any industry standard.
In between their initial denial and their subsequent qualified admission, Plaintiffs submitted Mr. Ferrone's first report, dated June 27, 2006. Later they proffered his supplemental report dated September 7, 2006. Neither report referenced any industry standard nor indicated whether the machine's design was contrary to any industry standard.
Over a year later, on January 10, 2008, Defendants took Mr. Ferrone's deposition. During his deposition, Mr. Ferrone testified that he relied on some "other things" that he failed to list in his reports. Bobcat's counsel asked Mr. Ferrone to specify what "other things" he reviewed and/or relied upon when reaching his conclusions. The exchange reads as follows:
Q: Is everything that you have reviewed and relied upon listed in the two reports, Exhibits 3 and 4, or are there others?
A: There's other things that -- because I've done this for so long that were in my head, and I just now have in the file that's not listed on the report.
Q: Can you tell me, for instance, you're saying they're in the file but --
Q: -- they're not listed on the report?
A: Right. In other words, there was a big file of standards that I just pulled together for today's benefit. That would be an example.
Q: When did you pull this together? This was for ...