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DiPaolo v. Black and Decker Inc.

December 15, 2009


The opinion of the court was delivered by: Pollak, J.


On November 15, 2005, plaintiff Gregory DiPaolo was using a miter saw to cut molding when he suffered an accident resulting in the loss of his right index finger. DiPaolo and his wife have sued the manufacturer, designer, and seller of the saw (collectively, "defendants") for damages arising from this accident. Plaintiffs' expert witness, Fredric M. Blum, wrote a report opining that the accident occurred because DiPaolo was using a bowed piece of wood, which caused the saw to kick back, drawing DiPaolo's hand into the blade. Defendants have deposed Blum and now move (docket no. 22) to exclude Blum from testifying either that the molding was bowed or that the accident occurred because DiPaolo was using bowed wood. Defendants further contend that, with that testimony excluded, they are entitled to summary judgment (docket no. 21).

Plaintiffs have filed oppositions to both motions (docket nos. 23 and 24). For the reasons below, the court will grant defendants' motion in limine and grant in part and deny in part defendants' motion for summary judgment.



Defendants' motion in limine challenges both Blum's qualifications and the reliability of his testimony. "[A] broad range of knowledge, skills, and training qualify an expert as such," and "exclusion [is] not the proper remedy simply because the experts did not have the degree or training which the . . . court th[inks] would be most appropriate." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (internal quotation marks omitted). In particular, "[s]pecific experience with respect to a particular product . . . is not a sine qua non of qualification to testify." Fisher v. Clark Aiken Matik, Inc., No. 99-cv-1976, 2006 WL 140424, at *3 (M.D. Pa. Jan. 18, 2006); see also Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) (rejecting the "requirement that the witness practice a particular specialty to testify concerning certain matters"). The court of appeals has, for instance, found that a district court did not abuse its discretion in allowing an individual with experience "selling automotive and mechanical equipment" who had "taught automobile repair and maintenance at a high school" to testify as an expert in a case involving an allegedly defective tractor. Hammond v. Int'l Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982); see also Holbrook, 80 F.3d at 781 (citing to Hammond after the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).

When faced with a challenge to expert testimony, meanwhile, this court must "determine . . . whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592. The same gatekeeping function applies where a witness proposes to testify to "technical or other specialized knowledge." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (internal quotation marks omitted). "Reliability [is] the polestar" of the Daubert inquiry, United States v. Mitchell, 365 F.3d 215, 244 (3d Cir. 2004), and while the "inquiry . . . is a flexible one," In re Paoli, 35 F.3d at 742, "the factors that are relevant" to a reliability analysis include the following:

"(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put."

Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000) (quoting In re Paoli, 35 F.3d at 742 n.8). Courts have, in the products liability context, also considered "federal design or performance standards"; "standards published by independent standards organizations"; "discussion of the relevant literature" by the expert, including "general design manuals or industry-specific journals"; "industry practice"; "product or design history"; the presence of "charts, diagrams, and other visual aids"; "scientific testing"; "whether [a] proposed alternative design . . . is feasible"; and "the risk-utility of [any] suggested modification." Milanowicz v. The Raymond Corp., 148 F. Supp. 2d 525, 533-36 (D.N.J. 2001).

The reliability standard "is not that high." In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999). In particular, "'Daubert does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's assessment of the situation is correct,'" but only that the "'testimony rests upon good grounds, based on what is known.'" Mitchell, 365 F.3d at 244 (quoting Ruiz-Troche v. Pepsi Cola Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998)) (internal quotation marks omitted). Nevertheless, "[a] court 'must examine the expert's conclusions in order to determine whether they could reliably flow from the facts known to the expert and the methodology used,'" Oddi, 234 F.3d at 146 (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999)), and"nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert," Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).


As revealed in his deposition, Blum's qualifications include a bachelor's degree in mechanical engineering and over thirty years' experience as a forensic mechanical engineer. Blum dep. at 6-7. During those thirty years, Blum has "investigated accidents, failures, and fires involving all sorts of mechanical equipment, including various kinds of saws," such as "[t]able saws, portable circular saws, and miter saws." Id. at 15-16, 22. In sum, Blum has been involved in "[p]robably two or three dozen" investigations concerning table saws and an equal number concerning circular saws, but no more than "two or three" cases dealing with miter saws -- including the present controversy. Id. at 22-23. Blum has also been an avocational woodworker, and in performing home maintenance projects, he has occasionally used a miter saw. Id. at 12-15, 49-53.

Defendants argue that Blum is unqualified to serve as an expert in this case, because he (1) "has no education or training in accident reconstruction," (2) "has never designed, installed, or serviced any type of power equipment," (3) has never worked as a woodworker "or in any other position that would give him expertise to determine under what conditions a kickback occurs or whether a bowed piece of [wood] is [a] necessary" prerequisite for DiPaolo's accident, and (4) has no "specialized knowledge or experience relating to the operation of miter saws, kickbacks, or working with bowed wood." Defs.' Mem. in Supp. of Mot. in Limine ("Defs.' Mem.") at 4.

I find that Blum is qualified to testify as an expert in this case. His degree in mechanical engineering and extensive experience in reconstructing various types of accidents -- including accidents involving saws and other power tools -- are sufficient credentials, standing alone, to render Blum's opinion much more informed than that of "the average layman." Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (internal quotation marks omitted). In particular, Blum's experience as a forensic mechanical engineer surmounts any objection based on either (1) his lack of "training in accident reconstruction," or (2) the fact that he has not designed, installed, or serviced power tools or worked as a professional woodworker. Meanwhile, the contention that Blum lacks "specialized knowledge or experience relating to the operation of miter saws, kickbacks, or working with bowed wood" takes a much too narrow view of the expertise potentially relevant to this case. Put another way, an expert in miter saws and ...

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