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David Picariello and Melissa Picariello, H/W v. Safeway Services

August 27, 2012


The opinion of the court was delivered by: Buckwalter, S.J.


Currently pending before the Court are: (1) Defendant Safeway Services, LLC's ("Defendant") Motion to Preclude Expert Testimony; and (2) Defendant's Motion for Summary Judgment. For the following reasons, the Motions are denied.


On July 27, 2010, Plaintiff David Picariello was working as a welder at the Aker Philadelphia Shipyard ("Aker"). (Def.'s Mot. Summ. J., Ex. C, Dep. of David Picariello ("Picariello Dep.") 57:10-60:6, Dec. 5, 2011.) That morning, Mr. Picariello had two assignments in the cargo hull of a ship. (Id. at 59:7-14, 76:5-9.) For the first job, he worked on the second level of a scaffolding deck. (Id. at 92:20-93:17.) The scaffolding at issue was owned and supplied by Aker, and was erected by Defendant. (Id. at 77:13-16; Def.'s Mot. Summ. J., Ex. F, Aff. of Edward Rafferty ¶ 5, May 10, 2012.) After completing the first assignment, Mr. Picariello was required to walk across the scaffold planking and climb up to an intermediate location between the level he was on and the next main level of the scaffolding. (Picariello Dep. 104:19-106:9.) To do so, he used a vertical metal ladder. (Id. at 106:10-16.) When he reached the top rail, he slipped and fell. (Id. at 132:15-133:20.) When he landed, Mr. Picariello rolled his left ankle, sat down, and lost consciousness for an unspecified amount of time. (Id. at 133:13-135:2.)

On July 18, 2011, Mr. Picariello and his wife, Melissa Picariello, (collectively "Plaintiffs") filed suit against Defendant in the Court of Common Pleas for Philadelphia County. The Complaint sets forth two counts: (1) Mr. Picariello's negligence claim; and (2) Mrs. Picariello's loss of consortium claim. On August 11, 2011, Defendant successfully removed the case to this Court. It filed the present Motion to Preclude Expert Testimony and Motion for Summary Judgment on May 29, 2012. Plaintiffs filed their Responses in Opposition to the Motion for Summary Judgment on June 13, 2012 and to the Motion to Preclude Expert Testimony on June 20, 2012.


A. Standard of Review

The Supreme Court has explained that district court judges perform a "gatekeeping role" with respect to expert testimony by assessing whether such testimony is admissible under Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590-91, 597 (1993); see alsoKumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 146-47 (1999) (extending Daubert to testimony about "technical or other specialized knowledge") (internal quotations and citations omitted). Rule 702 provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. When the expert testimony at issue is not scientific, "the court must determine whether the expert is qualified to provide such an opinion, whether the testimony assists the fact-finder, whether the testimony is reliable and whether the testimony 'fits' the facts of the case." D & D Assoc., Inc. v. Bd. of Educ. of N. Plainfield, 411 F. Supp. 2d 483, 487-88 (D.N.J. 2006), aff'd, 2006 WL 755984 (D.N.J. Mar. 20, 2006).

The first requirement of qualification is interpreted liberally to encompass "a broad range of knowledge, skills, and training." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). At minimum, the expert "must possess skill or knowledge greater than the average layman." Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (quotations omitted). The second factor of reliability "means that the expert's opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation'; the expert must have 'good grounds' for his or her belief." In re Paoli, 35 F.3d at 742 (quoting Daubert, 509 U.S. at 589-90). Finally, the requirement of "fit" concerns relevancy. "'Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.'" In re Unisys Savings Plan Litig., 173 F.3d 145, 162 (3d Cir. 1999) (quoting Daubert, 509 U.S. at 591).

B. Discussion

Plaintiffs' expert is Matthew J. Burkart, P.E., the president of Aegis Corp. Engineering Consultants. (Def.'s Mot. Preclude Expert Test., Ex. A, Technical Report of Aegis Corp. Engineering Consultants, Apr. 2, 2012 ("Technical Report") 6.) He is a Graduate Civil-Structural Engineer, a Registered Structural Engineer, a Registered Land Surveyor, and has a Master's Degree in Safety Science. (Id. at 7.) In moving to preclude Mr. Burkart's expert testimony, Defendant makes four arguments: (1) the opinions of Mr. Burkart are not admissible; (2) the opinions of Mr. Burkart are not relevant; (3) the opinions of Mr. Burkart are not reliable; and (4) the methodology used by Mr. Burkart is not reliable. The Court considers each argument separately.

1. Admissibility of Mr. Burkart's Opinions

Defendant asserts that the opinions of Mr. Burkart fail to meet the legal standards of admissibility. (Def.'s Mem. Supp. Mot. Preclude Expert Test. ("Def.'s Mem. Mot. Preclude") 5.) While Defendant provides the Court with ample citations to case law from the United States Supreme Court and the Third Circuit Court of Appeals pertaining to admissibility, it does not apply this law to the facts of the current matter. (See id. at 5-8.) Of course, it is possible that this portion of Defendant's brief was merely intended to be a "standard of review" section. In any event, in the absence of any argument for the Court to analyze, it denies Defendant's Motion to Preclude to the extent it is based on the broad issue of admissibility.

2. Relevance of Mr. Burkart's Opinions

Pursuant to Federal Rule of Evidence 402, "[i]rrelevant evidence is not admissible." Fed. R. Evid. 402. Here, Defendant argues that Mr. Burkart's expert testimony is not relevant to the current matter, that it lacks any factual foundation, and "that there is a yawning gap between Mr. Burkart's beliefs, impressions, assumptions and opinions and the actual facts of record." (Def.'s Mem. Mot. Preclude 8.)

The essence of Mr. Burkart's opinion is that Defendant failed to have an adequately trained person supervise the erection of the scaffolding and did not comply with the scaffold manufacturer's recommendations regarding adequate or proper access. (Technical Report 6.) This evidence goes directly to the issue of whether Defendant breached a duty owed to Mr. Picariello and is therefore liable for the injuries he suffered. As such, it is unquestionably relevant to the case at bar. While Defendant's references to a "yawning gap" between Mr. Burkart's opinions and the ...

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