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Vorhes v. Mittal Steel USA

April 6, 2009


The opinion of the court was delivered by: Judge Nora Barry Fischer



Presently before the Court is a series of motions related to Plaintiff Dennis Vorhes' proffer of David Kassekert, P.E., to testify as an expert witness in the trial of this matter currently scheduled for April 13, 2009. Plaintiff filed a motion for leave to file an amended pretrial statement to include Kassekert as a witness on March 9, 2009. (Docket No. 63). Also, on March 9, 2009, Defendants Mittal Steel USA, Inc., International Steel Group, Inc. and Pristine Resources, Inc. ("Defendants") filed two motions in limine to preclude Kassekert's testimony at trial. The first motion is a Daubert motion arguing that Kassekert is not qualified to offer an expert opinion in this case and the second argues that Plaintiff's disclosure of Kassekert as an expert witness was untimely and in violation of Rules 26 and 37 of the Federal Rules of Civil Procedure. (Docket Nos. 64, 70). The motions have been fully briefed*fn1 and the Court heard argument regarding the same during a motion/Daubert hearing on April 2, 2009. For the following reasons, the Court will preclude Kassekert from testifying at trial.


By way of background, Plaintiff seeks damages in this action resulting from injuries he suffered after he drove a dirtbike over a blind cliff on an abandoned mine site owned by Defendants on April 9, 2005. See Vorhes v. Mittal Steel USA, Inc., Civ. A. No. 06-1130, 2008 WL 794460, at *1 (W.D.Pa. March 24, 2008).*fn2 A related action, Creek v. Mittal Steel USA, Inc., Civ. A. No. 06-701, 2008 WL 1752236 (W.D.Pa. Apr. 14, 2008), arose from an accident at the same site on May 8, 2005. In that case, David and Lori Creek were killed after they drove an ATV over the same cliff as Vorhes and their estates sought damages for the deaths from Defendants.*fn3 Id. Kassekert produced an expert report for the plaintiffs in the Creek matter. In his report, Kassekert reconstructs the accident and opines as to how the accident occurred and the necessary causes, including that no signs were posted near the cliff to warn of its existence. (Docket No. 64-3). Kassekert was not deposed in the Creek action.


The Court first turns to Defendants' Daubert motion. The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides that:

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.

FED.R.EVID. 702. The United States Court of Appeals for the Third Circuit has held that "Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)(citations omitted). "Qualification requires 'that the witness possess specialized expertise.'" Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (quoting Schneider, 320 F.3d at 404). There is a liberal policy of admissibility and the Court of Appeals has held that a "broad range of knowledge, skills, and training qualify an expert." Id. (quoting Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir.1994)). Further, "it is an abuse of discretion to exclude testimony simply because the trial court does not deem the proposed expert to be the best qualified or because the proposed expert does not have the specialization that the court considers most appropriate." Id. (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir.1996)).

Kassekert's 2001 curricula vitae*fn4 demonstrates that he is a mechanical engineer with an M.B.A. and has considerable experience in vehicle engineering and accident reconstruction. (Docket No. 64-4). His C.V. does not identify that he possesses any specific training or expertise in the area of property management or knowledge of the duties owed by property managers to persons on their property. (Id.). However, Kassekert's expert report, opines, in part, the following:

4. The owners of the property and their employees knew of the dangerous condition at least by the year 2000 and knew simple inexpensive measures could prevent further accidents.

5. The defendants were grossly negligent in that they chose not to continue to post and maintain warning signs at the property edge, and particularly at the edge of the dangerous cliff, even though MineVironment's experience showed that this was effective in minimizing the dangerous conditions.

6. In reckless disregard for the safety of the recreational users of the property, the defendants willfully failed to guard against a non-obvious dangerous cliff.

(Docket No. 64-3 at 6-7). In this Court's estimation, Kassekert is not qualified, even under the liberal standard applied by the Court of Appeals, to testify as to these opinions regarding a property owner's duties. He is simply not an expert with respect to the appropriate ...

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