The opinion of the court was delivered by: (Judge Munley)
Before the court are motions in limine filed by the parties to this case. Having been fully briefed, the matters are ripe for disposition.
This case arises from Plaintiff Velma Laplant's slip and fall while working in the Millford, PA Walmart deli freezer on March 3, 2006. Plaintiff, who Walmart employed as a "deli associate," alleges that an accumulation of ice inside the door threshold of the deli freezer caused her to fall, leading to serious injuries. Plaintiff alleges, under theories of strict liability and breach of warranty, that Defendant Welbilt Walk-ins, LP t/a Kysor Panel Systems (hereinafter "Defendant Welbilt") is liable for defectively designing the freezer door so as to contribute to the icy conditions that caused her fall. Additionally, Plaintiff claims that Defendant Cleveland Construction, Inc. (hereinafter "Defendant Cleveland") negligently constructed and inspected the cement floor and drainage system surrounding the deli freezer.
After the court granted in part and denied in part Defendant Welbilt's motion for summary judgment, the parties filed motions in limine in anticipation of the pre-trial conference. The parties then briefed the issues, bringing the case to its present posture.
This court has jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332. Plaintiff is a citizen of Pennsylvania. Defendants are business entities with citizenships and principal places of business in other states. The amount in controversy exceeds $75,000. The substantive law of Pennsylvania shall apply because the court is sitting in diversity. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Discussion
Plaintiff has filed one motion in limine to seek the admission of evidence of a subsequent remedial measure. (Doc. 96). Defendant Cleveland has filed two motions in limine (Docs. 90 and 93) -- the former to preclude Plaintiff's proposed expert, Robert J. Illo, and the latter to preclude Defendant's proposed expert, Kenneth L. Fry. Defendant Welbilt filed one motion in limine to preclude a portion of Plaintiff's proposed expert's testimony. (Doc. 98). The court will address each motion in turn.
In her motion in limine, Plaintiff seeks the introduction of evidence of the installation of a "diamond plate" to the threshold of the deli freezer door. (Pl.'s Mot. in Limine (Doc. 96) at ¶ 17). Plaintiff contends that subsequent to the accident, ABC Refrigeration, a Walmart vendor, installed the diamond plate to the threshold of the freezer door. (Id. at 5, 18). This diamond plate serves to raise the level of the threshold of the freezer door. (Id. at 6). This plate has successfully stemmed the flow of water into the deli freezer. (Id. at 7).
Federal Rule of Evidence 407 typically prohibits the admission of subsequent remedial measures "to prove negligence, culpabale conduct, a defect in a product, or a need for a warning or instruction." However, Rule 407 and its policy underpinnings are not implicated when the subsequent remedial measure is undertaken by a non-party to the action. See Diehl v. Blaw-Knox, 360 F.3d 426, 430 (3d Cir. 2004) ("[Rule 407] is not implicated where the evidence concerns remedial measures taken by an individual or entity that is not a party to the lawsuit").
No party opposes Plaintiff's motion in limine. Additionally, it appears that ABC Refrigeration will no longer be a party to this action at trial. Therefore, the court will grant Plaintiff's unopposed motion to permit the admission of evidence of the diamond plate installation.
Defendant Cleveland has filed two motions in limine seeking to preclude the testimony of Plaintiff's proposed expert witness, Robert J. Illo and Defendant Welbilt's proposed expert witness, Kenneth L. Fry. (Docs. 90, 93). Defedant Welbilt has also filed a motion in limine to preclude a portion of Illo's testimony. (Doc. 98). All three motions contend that the proposed expert witnesses fail to meet the standards of Federal Rule of Evidence 702. For the foregoing reasons, the court will deny all three of Defendants' motions in limine.
i. Standard of Review for Expert Testimony
Federal Rule of Evidence 702 provides that "a witness qualified as an expert by knowledge, skill, experience, training, or education" may provide opinion testimony "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. Courts have described the function of the district court in determining whether to admit expert testimony as a "gatekeeping" one. The trial judge has "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). Thus, "[t]he objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is 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 a particular field." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). There are three major requirements of a Rule 702 analysis of proposed expert testimony: "'(1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge [, i.e., reliability]; and (3) the expert's testimony must assist the trier of fact [, i.e., fit].'" United States v. Schiff, 602 F.3d 152, 172 (3D Cir. 2010) (quoting Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008)).
First, in deciding whether an expert is qualified, courts are required to assess whether the expert has specialized knowledge in his or her testimony, which may be based in practical experience as well as academic training and credentials. See Elcock v. Kmart Corp., 733 F.3d 734, 741 (3d Cir. 2000). The specialized knowledge requirement has been interpreted liberally in the substantive as well as the formal qualification of experts; "'at a minimum, a proffered expert witness . . . must possess ...