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Mary Elizabeth Jordan Flickinger et al v. Toys R Us

April 29, 2011


The opinion of the court was delivered by: (judge Caputo)


The issue before the Court is whether or not to exclude the expert reports and testimony of Dr. Robert J. Nobilini. For the reasons set forth below, they will be excluded.


An extensive factual background to this suit need not be rehearsed here. Suffice to say, this personal injury case was filed against Toys "R" Us, Inc. and related corporations (collectively, Toys "R" Us). One of the plaintiffs, Mary Elizabeth Jordan Flickinger, alleges she was severely injured at Toys "R" Us' flagship store in Times Square when a plastic bin from a bulk candy dispenser detached from a display carousel, striking and injuring her. Mrs. Flickinger brought a negligence claim, her spouse brought a loss of consortium claim, and her children brought negligent infliction of emotional distress claims against Toys "R" Us.

As part of their Omnibus Motion in Limine (Doc. 87), Plaintiffs' moved to exclude Dr. Nobilini's testimony and reports under Federal Rule of Evidence 702. Dr. Nobilini, a biomechanical engineer, has prepared three reports for the Defendants. These reports address two distinct issues: (1) how the accident occurred, i.e. who and\or what caused the bin to come out of the display, and (2) if the impact was sufficient to generate the injuries Plaintiff is alleging. Dr. Nobilini concluded that the bin dislodged essentially as the result of defective design combined with excessive force being applied to the lever that dispensed the candy, and that the impact Mrs. Flickinger sustained could not have created the injuries she claims she sustained. The motion has been fully briefed and a Daubert hearing has been held.


I. Evaluating Expert Testimony

Dr. Nobilini's expert testimony as to the causes of the accident and the impact sustained by Mrs. Flickinger will be excluded for failing to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 709 (1993).

A. Fed. R. Evid. 702 and Daubert

Rule 702 of the Federal Rules of Evidence, consistent with Daubert, 509 U.S. at 579, 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.

The trial judge is to act as a gatekeeper to make sure that all expert testimony or evidence is both relevant and reliable. Id. at 589. Expert testimony "must be supported by appropriate validation -- i.e., 'good grounds,' based on what is known." Id. at 592. "Put differently, an expert opinion must be based on reliable methodology and must reliably flow from that methodology and the facts at issue-but it need not be so persuasive as to meet a party's burden of proof or even necessarily its burden of production." Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir.1999).

The Third Circuit has explained that, under Fed. R. Evid. 702, expert testimony "(1) must be based on sufficient facts and data; (2) must be the product of a reliable methodology; and (3) must demonstrate a relevant connection between that methodology and the facts of the case." Jaasma v. Shell Oil Co., 412 F. 3d 501, 513 (3d Cir. 2005).

In evaluating the reliability of a particular scientific methodology, a district court should take into account the following non-exclusive factors:

(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.

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3d Cir.1994); Daubert, 509 U.S. at 593-94. In assessing reliability, "[t]he 'ultimate touchstone is helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the expert's technique or principle [is] sufficiently reliable so that it will aid ...

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