The opinion of the court was delivered by: Schiller, J.
This case is about an injured child and the allegedly defective Cosco Grand Explorer-model child seat that Plaintiff claims caused his injuries when his mother drove the family minivan into a tree. Following rounds of supplemental briefing and conferences with the parties, it has become clear that this lawsuit must go into suspense - for the second time in four years - due to uncertainty in the governing law arising from a conflict between the Third Circuit and Pennsylvania Supreme Court. This uncertainty precludes resolution of any motion that implicates the differences between the Second and Third Restatements of Torts. Six of the parties' Daubert motions also require additional hearings. However, as discussed below, the Court will takes up the balance of the twenty-eight motions in limine currently pending in this case.
On March 4, 2006, Kimberly Waltman was driving her two-year-old son, Ethan Waltman, in the back seat of her minivan. (See, e.g., Pl.'s Mem. in Supp. of Mot. re: Removal from Vehicle 1-2.) Ethan was badly hurt when Kimberly drove the minivan into a tree. (Id.) Plaintiff alleges that Ethan was strapped into a Cosco Grand Explorer booster seat.*fn1 Due to the seat's alleged defects, Plaintiff claims Ethan's torso flexed forward during the crash, causing his face to strike the seat's plastic booster shield. (See id. at 2.)
Ethan's father, Benjamin Waltman, commenced this litigation on Ethan's behalf in the Philadelphia Court of Common Pleas. Defendant removed the case to this Court on September 25, 2007. The late Judge Thomas Golden, to whom this matter was initially assigned, placed the lawsuit in suspense in 2009 pending resolution of a related case in state court. Judge Golden denied the parties' pretrial motions without prejudice at that time.
This Court lifted the stay on May 4, 2011, upon notice that the Pennsylvania Supreme Court had declined Dorel's leave to appeal in the related state-court litigation. Two weeks later, the parties filed thirty motions in limine, including defense requests for spoliation sanctions and to strike certain negligence and warranty claims. After a hearing and a series of teleconferences with counsel, the Court granted Dorel's motion for spoliation sanctions and denied the motion to strike.
In deciding the motion to strike, the Court observed that the Third Circuit had triggered an intra-district split with its opinion in Berrier v. Simplicity Manufacturing, 563 F.3d 38 (3d Cir. 2009). Although the Third Circuit predicted in Berrier that Pennsylvania would apply the Third Restatement of Torts to products liability cases, the Pennsylvania Supreme Court and a number of courts in this District subsequently observed that the Second Restatement of Torts continues to apply. This Court thus held that it was bound to apply the Second Restatement.
The day the Court issued its order addressing the Restatement issue, another Third Circuit panel applied the Third Restatement to a Pennsylvania products liability case - apparently due to that tribunal's internal operating procedures. Covell v. Bell Sports, Inc., App. A. No. 10-3860, 2011 WL 2690396, at *6 (3d Cir. July 12, 2011). A petition for review en banc is currently pending in Covell. Meanwhile, the Pennsylvania Supreme Court has indicated that it may take up the question again. See Lance v. Wyeth, 15 A.3d 429 (Pa. 2011). The parties in this action have also been unable to reach agreement as to the appropriate standard for this products liability action. (Position Statement of the Parties on Applicable Law Governing the Case at Trial.) The Court has determined that the best course, to avoid wasting the parties' efforts and resources, will be to place the case in suspense pending resolution of this conflict.
This uncertainty in the substantive law precludes resolution of some of the parties' motions in limine, as the Court's decision regarding which Restatement governs would prove dispositive with respect to arguments grounded in the underlying legal standard. (See Position Statement of the Parties on Applicability of Restatement (Third) of Torts to Outstanding Motions [Parties' Position Statement] 3.) Rulings on many of the parties' Daubert motions must also be deferred pending a Daubert hearing. The Court will address the remaining motions on the merits.
A. Relevance and Prejudice
All relevant evidence is admissible; irrelevant evidence is inadmissible. Fed. R. Evid. 402. Evidence is relevant if it has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable than it would be without the evidence. Fed. R. Evid. 401. Regardless, the Court may exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect. Fed. R. Evid. 403; see also United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 664 (3d Cir. 2000).
The parties have filed a number of Daubert motions seeking to exclude expert testimony. The Court will admit expert testimony that is: (1) based on sufficient facts or data; (2) the product of reliable principles and methods; and (3) the product of a reliable application of these principles and methods to the facts of the case. See Fed. R. Evid. 702. A putative expert must have "specialized knowledge" - which can be based on "practical experience as well as academic training and credentials" - on the topic to which he seeks to testify. Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (internal quotations omitted). "[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., Inc., 80 F.3d 777, 782 (3d Cir. 1996).
An expert's testimony must also "fit" the facts of the case. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742-43 (3d Cir. 1994). When an expert offers his opinion based on experience, "he must apply his experience reliably to the facts; his opinions must be well-reasoned, grounded in his experience, and not speculative." Roberson v. City of Phila., Civ. A. No. 99-3574, 2001 WL 210294, at *4 (E.D. Pa. Mar. 1, 2001). The proponent of the testimony bears the burden of establishing its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 n.10 (1993).
The parties' motions in limine fall into three categories: (1) Daubert motions; (2) motions focused solely on the relevance or prejudicial effect of particular evidence; and (3) miscellaneous motions turning on another rule or rules of evidence. As a threshold matter, the Court will also deny without prejudice four motions that cannot be resolved now because they implicate the differences between the Second and Third Restatements. The parties - and the Court - agree that resolution of Plaintiff's motions to exclude evidence of Kimberly Waltman's and Rebecca Polson's negligence and to preclude evidence of Dorel's compliance with Federal Motor Vehicle Safety Standards ("FMVSS") may turn on which Restatement the Court applies. (See Parties' Position Statement 3.) The Court will therefore deny these motions without prejudice.
In addition, Plaintiff seeks to preclude Dorel from introducing evidence that Ethan was removed from the minivan after the accident by an anonymous passerby, who subsequently left the scene and was never located. (Pl.'s Mem. in Supp. of Mot. re: Removal from Vehicle 2.) Dorel observes that there is expert testimony in the record that "Ethan's removal could have caused further damage, and an emergency services responder . . . at the crash site confirmed the bystander's removal of Ethan was problematic." (Def.'s Opp'n re: Removal from Vehicle 2.) It intends to present this evidence in support of its argument that Kimberly Waltman's negligence was the sole cause of Ethan's injuries. (Id. at 4.) Because it is not yet clear whether evidence of Kimberly Waltman's negligence will be admissible, the Court is not in a position to determine whether evidence of the bystander's actions will be relevant and otherwise admissible at trial. The Court will therefore deny this motion without prejudice.
The parties have requested Daubert hearings on any motions which the Court is inclined to grant based on the papers already filed. (Joint Statement of the Parties on Oral Argument and Hr'gs for Outstanding Mots. ¶ 3.) The Court has identified six motions for which additional hearings would be beneficial: (1) Plaintiff's motion to exclude Dr. Shavelle's testimony regarding life expectancy; (2) Dorel's motion to strike the testimony of Allan Kam; (3) Dorel's motion to strike the testimony of Edward Karnes; (4) Dorel's motion to strike the testimony of Richard Herman regarding life expectancy; (5) Dorel's motion to strike the testimony of Gary Whitman regarding child growth; and (6) Dorel's motion to strike certain Australian statistical evidence. The Court will schedule hearings on these motions at a later date. The parties' remaining Daubert motions are discussed below.
1. Testimony of William Van Arsdell (Document No. 124)
Plaintiff seeks to limit the testimony of Dorel's child safety seat expert, William Van Arsdell. Plaintiff argues Van Arsdell is not an expert in child seat design, as his "expertise . . . has been developed solely for litigation." (Pl.'s Van Arsdell Mot. ¶ 5.) Plaintiff's arguments implicate the "specialized knowledge" prong of the Daubert standard. Specifically, Plaintiff challenges Van Arsdell's competence to render six of the nine opinions referenced in his report due to his lack of "pre-litigation" experience in the field. (Pl.'s Van Arsdell Mem. 3-5.)
Van Arsdell is a licensed professional engineer with three degrees in mechanical engineering: a B.S. from the University of Arizona, a master's from the University of Illinois, and a Ph.D. from the Massachusetts Institute of Technology ("MIT"). (Def.'s Van Arsdell Opp'n Ex. 1, Van Arsdell Decl. ¶¶ 1, 4.) He is also a certified Child Passenger Safety Technician and has had training in accident reconstruction at Northwestern University. (Pl.'s Van Arsdell Mem. Ex. B, Van Arsdell CV.) Van Arsdell has run hundreds of crash tests during his career as a test engineer and litigation consultant, although it appears all of these tests were performed for use in litigation. (See Van Arsdell Decl. ¶ 14.)
The fact that Van Arsdell has gained experience through litigation speaks to his credibility, not to his qualifications. See In re Paoli, 35 F.3d at 753-54; see also McGee v. Evenflo Co., Civ. A. No. 02-259, 2003 WL 23350439, at *3 (M.D. Ga. Dec. 11, 2003). Indeed, other courts have rejected substantially identical challenges to Van Arsdell's expertise on this ground. See, e.g., Hendrix v. Evenflo Co., 255 F.R.D. 568, 587 (N.D. Fla. 2009) (permitting Van Arsdell to offer expert opinion regarding biomechanics of car seat-related injury and compliance with Federal Motor Vehicle Safety Standard 213); Mommsen v. Toyota Motor Corp., Civ. A. No. 07-455, 2008 WL 5427734, at *2 (W.D. Wis. Oct. 27, 2008) (denying motion to exclude Van Arsdell's seatbelt design opinions as "Van Arsdell is a professional engineer who has performed hundreds of tests on seatbelts."). This Court likewise concludes that Van Arsdell's practical experience in evaluating restraint systems, coupled with his academic training as a mechanical engineer, qualifies Van Arsdell to offer an expert opinion on the child seat's design.
Plaintiff also argues that Van Arsdell may not testify that the Cosco satisfies FMVSS 213's requirements because such testimony would constitute an impermissible legal conclusion. Engineers are qualified to opine as to whether restraint systems comply with FMVSS. Hendrix, 255 F.R.D. at 590 (permitting engineering testimony regarding compliance with FMVSS 213); cf. Raley v. Hyundai Motor Co., Civ. A. No. 08-376, 2010 WL 199976, at *4 (W.D. Okla. Jan. 14, 2010) (barring testimony that compliance with FMVSS does not render products "safe" as an opinion constituting "in substance, the arguments of counsel") The Court will therefore permit Van Arsdell to offer this opinion.
Finally, Plaintiff argues that Van Arsdell should not testify as to the relative severity of the crash, because his report merely parrots one of Dorel's other experts on this point. (Pl.'s Van Arsdell Mem. 3 n.2.) Plaintiff does not identify the other expert or develop this argument further, although it appears Plaintiff is referring to Jeya Padmanaban, a defense statistician. To the extent Van Arsdell's testimony is cumulative of another expert's testimony, Plaintiff is free to raise this objection at trial. Presently, however, the Court declines to exclude Van Arsdell's testimony regarding the severity of the crash on this ground.
2. Testimony of Catherine Corrigan (Document No. 126)
Dorel has retained Catherine Ford Corrigan as an expert. Plaintiff argues that Corrigan is not qualified or competent to offer an opinion as to the cause of Ethan Waltman's hydrocephalus and brain injury because she is not a medical doctor. (See Pl.'s Corrigan Mot. ¶¶ 3-4.) Plaintiff also states that Corrigan's opinion on this subject lacks foundation and is unreliable. (Pl.'s Corrigan Mem. 3, 5.) Neither of these arguments carries the day.
The basis for Plaintiff's argument that Corrigan has not laid a proper foundation for her opinions appears to be Corrigan's alleged failure to mention the brain injury in her expert report. (Id. at 8.) However, Corrigan's report and deposition testimony demonstrate that she has consistently attributed all of Ethan's injuries, including his brain injuries, to the energy created by the minivan crashing. (See Pl.'s Corrigan Mem. Ex. B, Corrigan Dep. 21.) Indeed, Corrigan's opinion is consistent with the conclusion of Plaintiff's medical expert, Dr. Joseph Burton, who concluded that Ethan may have suffered "some initial concussive injury to the brain simply because of the stretching of the brain stem from the tension injury" to ...