United States District Court, W.D. Pennsylvania
TERRENCE F. McVERRY, Senior District Judge.
Pending before the Court is the MOTION TO EXCLUDE OPINION TESTIMONY OF MICHAEL M. ELLIS AND FOR SUMMARY JUDGMENT PURSUANT TO F.R.C.P. 56 (ECF No. 24) filed by Saint-Gobain Universal Abrasives, Inc. ("Defendant"). Defendant filed a BRIEF IN SUPPORT (ECF No. 26), accompanied by a concise statement of material facts ("CSMF") (ECF No. 27). Ryan Wilson and Kasandra Wilson ("Plaintiffs") filed a BRIEF IN OPPOSITION (ECF No. 34) to Defendant's motion, accompanied by a responsive CSMF (ECF No. 35). Defendant filed a REPLY BRIEF (ECF No. 36). The motion is ripe for disposition.
This would be a relatively straightforward product liability case, were it not for the fact that the product at issue - a grinding wheel manufactured by Defendant - has been destroyed, leading both sides to cry "spoliation." Wilson was employed as a flash grinder at TMK IPSCO's ("TMK") facility in Ambridge, Pennsylvania. His job was to grind imperfections, or flash, from pipes manufactured by TMK, using an air powered grinding machine ("grinder") onto which the subject grinding wheel was mounted. On February 27, 2012, Wilson was allegedly injured when the wheel attached to his grinder suddenly broke, causing the grinder to recoil into his midsection.
The grinding wheel at issue - a 6 inch, Norzon Type 11 wheel - is an abrasive, resin-bonded, tapered cup wheel with threaded bushing, which is the piece that allows the wheel to be mounted onto the grinder. This type of wheel has been specifically made by Defendant for TMK since 2003. The wheel was designed to be used at up to 6, 000 RPM, though the grinders used by TMK's employees experienced air pressure problems and operated at about half that rate.
Defendant manufactures millions of grinding wheels each year, thousands of which are purchased by TMK. The wheels are manufactured in batches of about 250 wheels, which are known as "lots." According to Defendant, each wheel is speed tested at 1.5 times the maximum operating speed (i.e., 9, 000 RPM) prior to shipment to customers.
TMK purchases the wheels through a distributor, Huston Group ("Huston"), based in New Castle, Pennsylvania. During shipment, the wheels are packed in boxes, each of which contains five wheels separated by cardboard inserts. The boxes are stacked on pallets and then shrink-wrapped in plastic. Upon arrival at Huston's facility, the boxes are removed from the pallets, inspected, re-stacked on pallets, re-wrapped in plastic, and then stored until TMK places an order. Once an order comes in, the wheels are shipped on the shrink-wrapped pallets from Huston's facility to TMK's plant, where they are kept in a storage room until needed. At that point, the wheels are taken out of their boxes in small quantities - 15 to 20 wheels at a time - and stored on a table near the area where the grinding is performed. The wheels are removed from their boxes by TMK's employees, who are told to inspect them before putting them to use and to discard any with cracks, deformities, or other issues.
On the date of the incident, Wilson was wearing a protective hood, gloves, chest protector, leg protectors, and safety glasses. He had been grinding for several hours with the same wheel whenever he decided it had become worn and needed to be changed. To that end, he left his workstation, took the used wheel off the grinder, and discarded it. Next, he inspected the subject wheel for cracks and, without incident, threaded it onto the grinder. Wilson also tested the subject wheel in a test box, revving it up to full RPMs. Then, he went back to grinding, and as soon as the subject wheel made contact with the pipe, he felt the grinder kick back and hit him near the stomach. The force of the blow caused him to bend over. The wheel had broken into two pieces, and a piece came off and struck plaintiff in the wrist, though it did not pierce through Plaintiff's protective gloves. That same piece or another piece severed the chain of the harness Plaintiff was wearing to hold the grinder in place while in use. After the incident, Plaintiff pulled a "whistle" to alert his supervisor about what had occurred, and then lay down on a nearby table. At some point thereafter, he was taken to the emergency room at Allegheny General Hospital, where he was diagnosed with an abdominal and lower back injury. He has since been diagnosed with a herniated disc and aggravation of stenosis in his lumber spine, allegedly as a result of the incident.
The next day, Dave Cindrich, TMK's plant supervisor, contacted Tom Jacobs, Huston's representative for Defendant, and told him about the incident. Either that same day or the following day, Cindrich also contacted Bernard Curran, Defendant's regional sales representative, to tell him what had occurred. Cindrich told Curran that there was an employee involved in the incident, but he did not tell him that there was a personal injury because TMK was not sure at the time whether Plaintiff had, in fact, been injured. Subsequent conversations between Cindrich and Curran confirmed that TMK did not believe there was personal injury at the time. TMK did, however, complete an "Employee Medical Report" following the incident. See Pls.' Ex. 4, ECF No. 35-4. It was also generally known around TMK's plant that Plaintiff had been injured.
After consulting with Curran, TMK isolated the remaining wheels in the lot from which the subject wheel had originated. Curran eventually came to TMK's plant, took possession of the remaining pieces of the subject wheel, and returned it to Huston's New Castle facility, where it was repackaged and sent back to Defendant's facility in Massachusetts. Curran also sent photographs of the broken wheel to Defendant's safety engineer, who suggested to Curran that it looked like the failure had resulted from an "insert problem." The 15 remaining wheels from the lot from which the broken wheel originated, along with 250 wheels from a separate lot, were also returned to Defendant.
Once the broken wheel was returned to Defendant, it was tested and presented to a wheel jury, comprised of a quality technician, a product manager and a product safety engineer, which reviewed the test results and attempted to determine a probable cause of the breakage. Based on the results of the testing, the wheel jury concluded that the failure was "likely" caused by mishandling before it was mounted to the grinder. After 60 days, the wheel was destroyed in accordance with Defendant's retention policies. The other 15 wheels from the same lot as the subject wheel were also destroyed.
B. Procedural History
Plaintiffs initiated this action by filing a Complaint in the Court of Common Pleas of Allegheny County on August 14, 2013. In the Complaint, Wilson alleges claims for strict product liability; negligence; and breach of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. His wife, Kasandra, alleges a claim for the expenses incurred in caring for her husband, loss of her husband's earnings and services, and loss of consortium. On September 11, 2013, Defendant removed the action to the Federal District Court for the Western District of Pennsylvania, invoking this Court's diversity-of-citizenship jurisdiction. This motion was filed following the close of discovery.
II. Defendant's Motion to Exclude Opinion Testimony of Michael M. Ellis
A. Legal Standard
"Under the Federal Rules of Evidence, a trial judge acts as a gatekeeper' to ensure that any and all expert testimony or evidence is not only relevant, but also reliable." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citing Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997)). Thus, whenever a party seeks to admit expert testimony at trial, the district court must make an initial preliminary determination "that the requirements of Fed.R.Evid. 702 have been met." Magistrini v. One Hour Martinizing Dry Cleaning, 68 F.Appx. 356, 356 (3d Cir. 2003) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)). Rule 702 has three requirements: (1) the proffered expert must be qualified; (2) the process or technique used in formulating the expert's opinions must be reliable; "and (3) the expert's testimony must assist the trier of fact." Pineda, 520 F.3d at 244 (citing Kannankeril, 128 F.3d at 806). When considering these requirements, the district court must be mindful that "Rule 702... has a liberal policy of admissibility.'" Id. (quoting Kannankeril, 128 F.3d at 806).
In moving to preclude Plaintiffs' expert witness, Michael M. Ellis ("Ellis"), from testifying, Defendant argues that Ellis is not qualified and that his methodology is not reliable. Defendant also argues that the opinions of Ellis do not fit the facts of this case. The Court will address each of these arguments in turn.
1. Qualification Requirement
To begin, Defendant argues that Ellis is not qualified as an expert in grinding wheels. "At most, " Defendant contends, "Mr. Ellis possesses the academic credentials to speak about engineering generally, but he lacks the requisite background in grinding wheels... to be qualified as an expert in this case." Def.'s Br. at 11, ECF No. 25. The Court cannot agree.
The Court of Appeals for the Third Circuit has "interpreted Rule 702's qualification requirement liberally." Pineda, 520 F.3d at 244 (citing Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994)). It has explained that "a broad range of knowledge, skills, and training'" can suffice to "qualify an expert.'" Id. (quoting Paoli, 35 F.3d at 741). "This liberal policy of admissibility extends to the substantive as well as the formal qualifications of experts." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citing Paoli, 35 F.3d at 741). The Court of Appeals has repeatedly "stated that it 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.'" Kannankeril, 128 F.3d at 809 (quoting Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)). Consistent with that principle, [n]umerous cases within our circuit have held that an expert opining on a general matter is not required to have experience that is narrowly tailored to the specific industry in question." Geis v. Tricam Indus., Inc., No. CIV.A. 09-1396 MLC, 2010 WL 8591142, at *7 (D.N.J. Oct. 6, 2010) (citing Kannankeril, 128 F.3d at 809; Holbrook, 80 F.3d at 782; Hammond v. Int'l Harvester Co., 691 F.2d 646 (3d Cir. 1982); Smolow v. Hafer, 513 F.Supp.2d 418, 425-28 (E.D. Pa. June 25, 2007); Main St. Mortg., Inc. v. Main St. Bancorp., Inc., 158 F.Supp.2d 510 (E.D. Pa. 2001)).
In light of this flexible standard, the Court finds that Ellis is qualified to offer expert testimony as to why the grinding wheel failed. While Ellis might lack experience working with grinding wheels, he does have extensive formal qualifications and a specialty in fracture mechanics and materials failure analysis. Specifically, he has a Master of Science Degree in Mechanical Engineering, a Master of Science Degree in Ceramics Engineering, and has nearly completed all of the requirements of a Ph.D. in Mechanical Engineering. For the past 20 years, he has also worked for Advanced Materials Engineer, Inc., a company that, among other things, performs failure analysis and provides manufacturing and support services for companies and government entities in the United States and abroad. Furthermore, Ellis' opinion is based on his expert knowledge of brittle materials. As he explains in his report, a grinding wheel such as the one at issue here consists of abrasive grains, a phenolic binder, a wetting agent, and some type of filler. As such, it is considered a brittle material. When any brittle material cracks, it behaves in a certain manner. Accordingly, Ellis' education, training, and experience in studying the manner in which brittle materials fail is "more than sufficient" to permit him to testify regarding the possible causes of the grinding wheel's failure. Pineda, 520 F.3d at 245; see, e.g., Tormenia v. First Investors Realty Co., 251 F.3d 128, 136 (3d Cir. 2000) (holding that the "District Court was certainly within its discretion to admit [an engineering expert's] testimony, notwithstanding the fact that most of [the expert's] experience in mechanical engineering concerned areas other than revolving doors...").
2. Reliability Requirement
Next, Defendant challenges the reliability of Ellis' methodology, contending that (1) his report "lacks any discernable method or testable hypothesis;" (2) was "not the subject of peer review and he cannot point to any peer reviewed literature to support his opinions or show his method is generally accepted;" and (3) "[t]oo great an analytical gap exists between [his] conclusions and the data relied upon[.]" Def.'s Br. 12-15. Plaintiffs respond that Ellis' methodology, which consisted of reviewing the "wheel jury report, " the deposition testimony of the witnesses in this case, and photographs of the grinding wheel, is the "exact method" Defendant's own expert, George Reitmeyer, P.E., employed in rendering his opinions. The two experts reviewed the ...