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Marisol Maldonado, Individually and As Administratrix of the Estate of Jonathan Delgado v. Walmart Store #2141

May 9, 2011


The opinion of the court was delivered by: L.FELIPE Restrepo United States Magistrate Judge


Plaintiff, Marisol Maldonado, individually and as the Administratrix of the estate of Jonathan Delgado, deceased, brings this products liability and negligence action against Defendants, Walmart Store #2141 and Walmart Stores East, Inc. (hereinafter collectively referred to as "Wal-Mart" or "Defendant").*fn1 (See Pl.'s Compl.) The action arises out of the near-drowning and subsequent death of Plaintiff's son Jonathan Delgado in an above-ground, inflatable swimming pool sold by Defendant. Presently before the Court are Defendant's Daubert motions to preclude the testimony at trial of Plaintiff's experts, Alison Osinski (Doc. No. 38) (hereinafter "Def.'s Mot. No. 38"), and Erika Taylor (Doc. No. 39) (hereinafter "Def.'s Mot. No. 39"), as well as Defendant's Motion for Summary Judgment (Doc. No. 40).*fn2

In deciding said motions, the Court has also considered Plaintiff's responses (Doc. Nos. 42, 43) (hereinafter "Pl.'s Resp. No. 42" and "Pl.'s Resp. No. 43") and Defendant's reply briefs (Doc. Nos. 46, 47, 48). Oral argument was held before the Court on January 5, 2011, and with the Court's permission, Plaintiff thereafter submitted a Supplemental Brief (Doc. No. 51) in support of her position. For the reasons that follow, Defendant's motions will be granted.


The facts of this case are unquestionably tragic. Plaintiff, Marisol Maldonado (hereinafter "Ms. Maldonado"), is the mother of the decedent, Jonathan Delgado (hereinafter "Jonathan"). In July 2006, Ms. Maldonado lived in the Northeast section of Philadelphia and had five children, including a son Danny, who was four years old and suffered from autism, and Jonathan, who was her youngest at fifteen months old. (Pl.'s Dep. 10-12; Pl.'s Resp. No. 42, Ex. H "Child Drowning Update.") Jonathan and Danny both resided with Ms. Maldonado. (Pl.'s Dep. 10-11.)

The July 28, 2006 event that gave rise to the instant case took place at the home of Ms. Maldonado's sister, Diane Maldonado (hereinafter "Diane"), and her husband, Robert "Bob" Yeager (hereinafter "Mr. Yeager"). (Pl.'s Resp. No. 42 at 3 ¶ 10; Diane Dep. 10, Sept. 4, 2009.) Diane and Mr. Yeager also resided in Northeast Philadelphia with their five children. (Diane Dep. 10-11.) Their home had a backyard that was approximately twenty feet wide by thirty-six to thirty-eight feet long. (Yeager Dep. 32, Jan. 29, 2009.) The kitchen, located in the rear of the house, had a back door with two locks. (Yeager Dep. 33, Sept. 4, 2009; Pl.'s Dep. 35, Sept. 4, 2009.) From the back door, a set of four concrete stairs led down to the yard. (Yeager Dep. 11, 9/4/2009; Diane Dep. 32-33.) A concrete landing pad stood at the bottom of the stairs. (Diane Dep. 33.) Wooden decking lay beyond the landing pad, followed by one step up to a lawn area. (Diane Dep. 33-34.) On the lawn, approximately twenty feet from the back door, Diane and Mr. Yeager had an inflatable, above-ground swimming pool that they purchased in 2005. (Diane Dep. 12, 34-35; Yeager Dep. 11, 9/4/2009.)

The backyard also had a fence, which was installed by Mr. Yeager around the time of the pool purchase. (See Diane Dep. 55-58.) Mr. Yeager believed he was familiar with Philadelphia's building codes for fencing around pools, based on his training and experience in construction, so he did not conduct research into those requirements. (Yeager Dep. 12-14, 9/4/2009.) As of July 2006, Mr. Yeager understood the City of Philadelphia to require a six-foot fence around the perimeter of the pool. (Id. at 14.) An engineering report prepared in August 2010 at the request of Defendant confirms that the fence complied with Philadelphia's requirements. (Pl.'s Resp. No. 42, Ex. U at 5.)

Diane and Mr. Yeager originally purchased the inflatable pool at a Wal-Mart store located on Columbus Boulevard in May 2005. (Diane Dep. 12, 15; Def.'s Mot. Summ. J. 5 ¶ 24.) Diane went to Wal-Mart with the intent of purchasing a specific size of inflatable pool at a specific price of $200, but without a particular brand of pool in mind. (Diane Dep. 12-13, 16.) She found a pool on clearance that fit her criteria and purchased the pool that day. (Id. at 16-21.) Diane did not ask anyone at Wal-Mart about the pool before the purchase, (id. at 17), and no Wal-Mart employee made any representations to Diane about what was included in the pool box or what might be needed to use the pool aside from what was included in the box. (Id. at 19-21.)

The pool was sold in a large white box, which included on a side of the box a picture of a family playing in and around the pool. (Yeager Dep. 7, 1/29/09.) In addition to the inflatable pool itself, the pool box contained a filter pump system, filter cartridge, ladder, ground cover, debris cover, maintenance kit, and instructions. (Pl.'s Resp. No. 42, Ex. P.) A number of warnings were printed on the ladder, on the pool itself, and in the pool instructions.*fn3 (See id.)

When Mr. Yeager first assembled the pool in 2005, he believed the set-up process was self-explanatory. (Yeager Dep. 20, 25, 9/4/2009.) He did not read the instructions as to how to inflate the pool; he only read the instructions on how to assemble and install the ladder. (Id.) Mr. Yeager remembered the instructions contained a warning to check local building codes, but he believed he was familiar with the codes in Philadelphia. (Id. at 21, 24.) Mr. Yeager took the pool down at the end of the season in 2005 and then assembled it again himself the following year. (See id. at 18-19.)

On July 28, 2006, at around 4:00 p.m., Diane arrived at Ms. Maldonado's home with Ms. Maldonado's son Jonathan and picked up Ms. Maldonado, a friend Tania Garcia*fn4 , and two more of Ms. Maldonado's children: Danny and Gabriel. (Pl.'s Dep. 30-32.) Diane brought them all to her home in Northeast Philadelphia. (Pl.'s Dep. 31.) Diane's husband, Mr. Yeager, was also at the home. (Pl.'s Dep. 32.) At some point after everyone arrived at the house, Diane and Mr.

Yeager took their nephew Gabriel with them to pick up pizza for the family. (Pl.'s Dep. 33; see also Yeager Dep. 26-29, 9/4/2009.)

After they left, Ms. Maldonado went from the living room into the kitchen where her children, Danny and Jonathan, and her friend, Ms. Garcia, were already located, (Pl.'s Dep. 34); Jonathan was drinking a bottle in the kitchen, (Pl.'s Dep. 34, 36). Ms. Maldonado then told Ms. Garcia that she had to use the bathroom and asked Ms. Garcia to watch the children. (Pl.'s Dep. 34.) Ms. Garcia was sitting at the kitchen table talking on the phone, so Ms. Maldonado repeated her request three times. (Pl.'s Dep. 34-35.) Ms. Garcia later reported to police that she did not know whom Ms. Maldonado had asked to supervise the children when Ms. Maldonado went to the bathroom because Ms. Garcia was on the phone. (Pl.'s Resp. No. 42, Ex. H "Investigation Interview Record: Tania Garcia.") By the time Ms. Maldonado went up to the bathroom, Danny had left the kitchen and was in the backyard. (Pl.'s Dep. 35-36.)

When Ms. Maldonado left to go upstairs, the back door was closed. (Pl.'s Dep. 38.) Ms. Maldonado was on the second floor of the house using the bathroom when she heard a splash. (Pl.'s Dep. 40.) She looked out the bathroom window, which faced the backyard, but saw nothing. (Pl.'s Dep. 40-42.) Ms. Maldonado ran downstairs and asked Ms. Garcia about Jonathan, but Ms. Garcia was unresponsive, (Pl.'s Dep. 40, 48), so Ms. Maldonado began searching for Jonathan, (Pl.'s Dep. 48).

After looking in the front, on either side, and inside of the house for a second time, Ms. Maldonado looked for Jonathan in the backyard. (Pl.'s Dep. 48-49.) She first discovered her son, Danny, playing in the dirt. (Pl.'s Dep. 49.) Then, upon passing the pool, Ms. Maldonado noticed Jonathan floating sideways with his head to the side, stuck under the rim of the pool. (Pl.'s Dep. 49, 52, 54-55.) Ms. Maldonado went over to the pool, took him out, and began to administer mouth-to-mouth resuscitation. (Pl.'s Dep. 49.) Ms. Maldonado's neighbor, John Caldwell, heard her screaming, came into the backyard, and resumed mouth-to-mouth and CPR. (Pl.'s Resp. No. 42, Ex. H "Investigation Interview Record: John Caldwell.") Jonathan was rushed to St. Christopher's Hospital where he spent five days; he was pronounced dead on August 2, 2006. (Pl.'s Dep. 57-58; Pl.'s Resp. No. 42 at 6 ¶ 19.)

No adult observed how Jonathan was able to leave the house or traverse the backyard; moreover, no adult observed how Jonathan was able to enter the pool or what happened before Ms. Maldonado discovered him in distress.*fn5 (See Pl.'s Resp. No. 42 at 8 ¶ 23.) Mr. Yeager recalled that when he left the house, the pool ladder was in the pool. (Yeager Dep. 36, 9/4/2009.) Diane believed the ladder was not in the pool, but rather laying down in the backyard.*fn6 (Diane Dep. 70, 9/4/2009.) Prior to the incident, Ms. Maldonado had not allowed Jonathan to play in the pool or enter the backyard alone. (Pl.'s Dep. 24; Pl.'s Resp. No. 42 at 8 ¶ 22.)

Ms. Maldonado brought this action on June 19, 2008, alleging, among other claims, strict products liability, negligence and negligent product design against Wal-Mart for its design, marketing, and sale of its inflatable, above-ground pool product. (Pl. Resp. No. 42 at 22; see also Pl.'s Compl.) Plaintiff contends, inter alia, that the pool design made it "highly probable" that a toddler would "get into the pool unnoticed and drown," that the labels, instructions, and packaging contained inadequate warnings, and that the marketing and advertising misled customers into believing the pool was safe. (Pl.'s Compl. 5-6.) Defendant argues that summary judgment is warranted with respect to Plaintiff's claims because Plaintiff has failed to produce evidence that: (1) Jonathan Delgado was an intended user of the pool; (2) any alleged defect was the proximate cause of Jonathan Delgado's death; and (3) any additional warnings or instructions would have prevented Jonathan's death and/or unobvious risk existed. (Defs. Mot. Summ. J. 8.) Defendant further argues summary judgment is warranted as to Plaintiff's negligence claims because Plaintiff has produced inadequate evidence that the alleged defects caused Jonathan's injuries. (Id. at 11.)

Ultimately, Defendant's motion for summary judgment hinges on whether Plaintiff can prove that the inflatable pool was defective and actually caused Jonathan's injuries. Plaintiff proffers two experts, Dr. Alison Osinski and Ms. Erika Taylor, who are prepared to testify to both the defective condition of the pool and the cause of Plaintiff's injuries. (See Pl.'s Resp. No. 43.) Defendant Wal-Mart contends that the testimony of both experts, which would be based on the expert reports provided by each, is inadmissible. (See Def.'s Mot. No. 38; Def.'s Mot. No. 39.) The experts' respective reports are discussed in more detail below.


A. Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue" is one in which "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it could impact the holding of the case under the governing law. Id.

When deciding a motion for summary judgment, a court must draw all reasonable inferences and view all facts in the light most favorable to the non-moving party. Id. at 255; Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citations omitted); see also United States v. Diebold, Inc., 369 U.S. 654 (1962). A Court may grant summary judgment if it determines that, after reviewing the evidence and making all inferences in favor of the non-moving party, there is no genuine issue of material fact to warrant a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden to demonstrate that there are no facts on record that support the non-moving party's position. Id. at 322-24. If the moving party successfully carries this burden, the non-moving party must then set forth specific facts showing the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts, Matsushita, 475 U.S. at 586-87; she must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324.

B. Expert Testimony

Federal Rule of Evidence 702, which governs the admissibility of expert testimony, 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.

According to the mandate of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), it is the responsibility of the trial judge to serve as a "gatekeeper" to ensure that "any and all expert testimony or evidence is not only relevant, but also reliable."*fn7 Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997). A District Court is granted wide discretion when determining whether to admit or exclude expert testimony. Hamling v. United States, 418 U.S. 87, 108 (1974). The proponent of the expert testimony must meet this burden "by a preponderance of proof." Oddi, 234 F.3d at 144; Daubert, 509 U.S. at 593.

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). A trial court must exclude expert testimony that does not meet these three requirements. Id. at 404 (citing Daubert, 509 U.S. at 592).

In order for a court to deem a witness "qualified," he or she must possess specialized expertise. Schneider, 320 F.3d at 404. The Third Circuit interprets this requirement liberally, finding that "a broad range of knowledge, skills, and training qualify an expert as such." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). This "liberal policy of admissibility extends to the substantive as well as the formal qualification of experts." Id. More generalized qualifications will often satisfy this requirement, and the court should not impose overly rigorous requirements of expertise. Id. "[I]t 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." Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996). At minimum, however, "a proffered expert witness . . . must possess skill or knowledge greater than the average layman." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)).

Under the second requirement of Rule 702, "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Paoli, 35 F.3d at 742. To be "reliable," the testimony must be based on the "methods and procedures of science," rather than on "subjective belief or unsupported speculation." Paoli, 35 F.3d at 744 (citing Daubert, 509 U.S. at 590). "The evidentiary requirement of reliability is lower than the merits standard of correctness." Id. In other words, a litigant need not prove that an expert's opinions are correct, she need only prove that they are reliable. Nevertheless, the litigant must make more than a prima facie showing that her expert's methodology is reliable in order to meet the "reliability" requirement of Rule 702. Id. at 743.

When assessing the "reliability" of an expert's testimony under Rule 702, a court should consider the following: (1) whether the expert's methods consist of a testable hypothesis -- whether it can be and has been tested; (2) whether the method has been subject to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the expert's method is generally accepted; (6) the relationship of the technique used to methods already established to be reliable;

(7) the expert's qualifications based on the methodology; and (8) the non-judicial uses to which the method has been put. Paoli, 35 F.3d at 742 n.8; Pineda, 520 F.3d at 247-48. This list of factors is "neither exhaustive nor applicable in every case." Pineda, 520 F.3d at 248 (quoting Kannankeril, 128 F.3d at 806-07). A court has discretion to consider any other relevant factors as well. See Elcock, 233 F.3d at 746.

Finally, under Rule 702, an "expert's testimony must be relevant for the purposes of the case and must assist the trier of fact," Schneider, 320 F.3d at 404; in other words, the testimony "must fit the issues in the case." Id. "[E]ven if an expert's proposed testimony constitutes scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge for purposes of the case." Paoli, 35 F.3d at 743 (emphasis in original). To determine if evidence meets this "fit" requirement, a court "must examine the expert's conclusions in order to determine whether they could reliably follow from the facts known to the expert and the methodology used." Heller v. Shaw Indust., Inc., 167 F.3d 146, 153 (3d Cir. 1999). "A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." General Elec. v. Joiner, 522 U.S. 136, 146 (1997).

In general, the Federal Rules of Evidence "embody a strong preference for admitting any evidence that may assist the trier of fact." Johnson v. SJP Mgt. LLC, No. 07-5545, 2009 WL 367539, at *5 (E.D. Pa. Feb. 12, 2009) (citing Kannankeril, 128 F.3d at 806). Nevertheless, the Third Circuit has excluded expert testimony when it does not meet the factors outlined in Daubert. For example, in Oddi v. Ford Motor Co., Mr. Oddi suffered serious injuries when the bread truck he was driving struck a guardrail and bridge abutment, piercing the floor of the truck's cab. Oddi, 234 F.3d at 140. Mr. Oddi sued Ford Motor Company, which manufactured the truck, alleging ...

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