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Randy E. Rager et al v. General Electric Company

December 22, 2010


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are Defendant General Electric Company's ("GE") motions in limine to exclude the expert testimony of Dr. Wayne K. Ross, M.D., Ronald Parsons, and Scott Jones under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Doc. Nos. 32, 34, 36.) The Court heard oral argument on the motions on November 4, 2010. For the reasons that follow, the Court will deny GE's motions.


Plaintiffs*fn1 Randy E. Rager, Tammy Rager, and State Farm Fire and Casualty Co., as subrogee of Randy and Tammy Rager, have instituted this action against GE for a fire that occurred on July 30, 2006, and resulted in the death of two children. (Doc. No. 1 ¶¶ 15, 21.) Plaintiffs have asserted causes of action sounding in negligence; strict liability; wrongful death; the Survival Act, 42 Pa. C.S.A. § 8302; and negligent infliction of emotional distress. Plaintiffs allege that the electric clothes dryer manufactured by GE had a design defect and caused a fire in the Ragers' home. (Id. ¶21.)


A trial court has a special obligation to ensure that expert testimony is relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Accordingly, the admission of scientific, technical, or other specialized knowledge is within the trial court's discretion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146-47 (1997). A court's inquiry is controlled by Rule 702 of the Federal Rules of Evidence, which provides:

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. As the Third Circuit has explained, these requirements represent a "trilogy of restrictions on expert testimony: qualification, reliability and fit." Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

When considering the reliability requirement, the Supreme Court has held that the gatekeeping function requires the trial court to "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S at 152. To meet this requirement, "a litigant has to make more than a prima facie showing that his expert's methodology is reliable . . . [but] the evidentiary requirement of reliability is lower than the merits standard of correctness." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). When evaluating the reliability of a witness's methodology, a court is guided by several familiar factors drawn from Daubert:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject 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.

Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994)). These factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire, 526 U.S. at 150. Accordingly, the Rule 702 inquiry is a flexible one, and the court should also take into account any other relevant factors. Calhoun, 350 F.3d at 321. "[T]rial courts should focus 'solely on principles and methodology, not on the conclusions they generate.'" Montgomery Cnty. v. Microvote Corp., 320 F.3d 440, 448 (3d Cir. 2003) (quoting Daubert, 509 U.S. at 595).

The final requirement is fit, which means "the expert's testimony must be relevant for the purposes of the case and must assist the trier of fact." Id. (quoting Schneider, 320 F.3d at 405). "Rule 702's helpfulness standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 591-92. This inquiry goes primarily to relevance because expert opinion which does not relate to a disputed issue is not relevant and cannot assist the trier of fact as required by Rule 702. Id. As the Supreme Court has explained, The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night.

Id. Like the typical relevance inquiry, the standard for analyzing the fit of an expert's analysis to the case at hand is "not that high." United States v. Ford, 481 F.3d 215, 219-20 (3d Cir. 2007) (quoting Paoli, 35 F.3d at 745). But, expert testimony can be powerful and misleading because of the difficulty in evaluating it, and the Third Circuit has cautioned that district courts should tread carefully when evaluating proffered expert testimony, paying special attention to the relevance prong of Daubert. Ford, 481 F.3d at 219 n.6.


A. Dr. Wayne K. Ross, M.D.

1. Report

Dr. Wayne K. Ross's report concludes that the cause of death for both Camren Rager, age 6, and Damen Rager, age 2, was smoke inhalation and thermal burns. (Doc. No. 32-1, Ex. A at 3.) Dr. Ross's expert report also concludes that both Camren and Damen "suffered severe conscious pain and suffering for a number of minutes before they expired." (Id.) In his report, Dr. Ross notes that Camren and Damen's carboxyhemoglobin ("CO") levels indicate that they were conscious and that they inhaled superheated fumes and smoke, which would have awakened them. (Id. at 3, 4.) The report further states that the soot found in the boys' nasal passages indicate that they were alive and breathing during the fire. (Id. at 4.) Dr. Ross's report also notes that the boys were found in the bedroom, with Camren on the floor by the open bedroom door, and Damen on the top bed of the bunk bed. (Id. at 2.) At his deposition and at the hearing, Dr. Ross testified that his methodology consisted of reviewing "baseline information" including medical records, autopsy reports, witness statements, and photographs of the scene and of Camren and Damen.(Doc. No. 41-2, Ex. A at 25-27; Hr'g. Tr. at 13:7-25; 14:1-2.) Dr. Ross then applied his education and experience in investigating scenes and fire-related deaths, as well as relevant medical literature, to this baseline information in order to form his opinion. (Doc. No. 41-2, Ex. A at 25-27; Hr'g. Tr. at 13:16-19.)

2. Challenge

GE contends that Dr. Ross's opinion as to the cause of death of Camren and Damen and the existence and duration of conscious pain and suffering is unreliable under Daubert and Rule 702.*fn2 (Doc. No. 33 at 16-20.) GE also asserts that Dr. Ross should be precluded from offering an opinion as to the location of the boys when found by rescuers because his opinion does not fit the facts of the case and the issue of the boys' locations is not the proper subject of expert testimony. (Doc. No. 33 at 20-21.) Plaintiffs dispute these contentions, arguing that GE's challenges to Dr. Ross's opinion as to cause of death and pain and suffering are attacks on the substance of his opinions, not his methodology, and thus are properly raised through cross-examination. (Doc. No. 41 at 8, 10-11.) As to Dr. Ross's opinion on the location of the boys, Plaintiffs' brief states that his "understanding . . . is not being offered as an expert opinion on the matter." (Id. at 12.) However, at the hearing, Plaintiffs' counsel appeared to argue that Dr. Ross was offering an expert opinion on the location and that he was qualified to do so. (Hr'g. Tr. at 24:23-25; 25:1.) In addition to its Daubert challenges, GE contends that Dr. Ross's opinions regarding cause of death and pain and suffering are unduly prejudicial. (Doc. No. 33 at 19; Doc. No. 53 at 6.) The Court will address GE's challenges in turn.

a. Unreliability

GE argues that Dr. Ross should be precluded from testifying that burns were a contributing cause of death of both Camren and Damen because his opinion is unreliable. (Doc. No. 33 at 16.) In support of its argument, GE contends that Dr. Ross's opinion is not supported by any evidence in the record and thus is "purely speculation," and his reliance on "anecdotal reports" of' agonal respirations "does not provide a reasonable or reliable support for his opinion." (Id. at 16, 17; Doc. No. 53 at 7.) GE similarly asserts that Dr. Ross's opinion that Camren and Damen suffered "conscious pain and suffering for a number of minutes" is unreliable because it is not supported by any methodology or the factual record. (Doc. No. 33 at17.)

GE's arguments are largely targeted at Dr. Ross's conclusions, not his methodology. Indeed, GE states that "[t]he problem with Dr. Ross's proposed opinion on pain and suffering is not that he failed to follow a methodology, but rather, that neither his professed methodology nor the factual record actually supports the conclusion he has drawn." (Doc. No. 53 at 3.) When considering expert testimony, "[t]he test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether the 'particular opinion is based on valid reason and reliable methodology. The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination.'" Oddi v. Ford Motor Co., 234 F.3d 136, 145-46 (3d Cir. 2000) (quoting Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 806 (3d Cir. 1997)). Despite this, a district court still must consider an expert's conclusions to assess whether they could reliably flow "from the facts known to the expert and the methodology used." Id. at 146 (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999)). "A court may conclude that there is simply too great a gap between the data and the opinion proffered." Id. However, even where the court believes that "there are better grounds for some alternative conclusion, and that there are some flaws in the scientist's methods, if there are 'good grounds' for the expert's conclusion, it should be admitted." Heller, 167 F.3d at 152-53 (citing Paoli, 35 F.3d at 744).

In this case, the Court finds that there is not such a great gap between the data and the conclusions reached to render Dr. Ross's opinion unreliable. At the hearing, Dr. Ross testified that "the medical records are replete with support" for his opinion that Camren died as a result of smoke inhalation and thermal burns. (Hr'g. Tr. at 14:12-13.) Dr. Ross stated that witnesses at the scene noted evidence of agonal respirations and second- and third-degree burns on Camren's body. (Id. at 14:13-19.) Dr. Ross pointed to coroner photographs of Camren and noted thermal burns on the outside of his body. (Pls.' Ex. 4; id. at 14:20-25; 17:7-10; 18:15-20.) The photographs also showed soot around Camren's nose, which Dr. Ross opined was evidence that Camren had inhaled superheated fumes that would cause thermal burns inside his throat and to his lungs. (Pls.' Ex. 4; Hr'g. Tr. at 14:22-24; 18:17-12.) Dr. Ross testified that, in his experience, when soot and smoke have been inhaled there is evidence of burns inside the neck and down to the lungs, and "what killed them in this case, is those burns." (Hr'g. Tr. at 15:17-25.) Dr. Ross then pointed to thermal burns evident in photographs of Damen. (Pls.' Ex. 5; id. at 23:8-12, 25; 24:1-3; 26:2-10.) Dr. Ross also noted evidence of soot in Damen's nostril airways. (Pls.' Ex. 5; Hr'g. Tr. at ...

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