United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, United States District Judge.
Here we consider Defendants’ Motion to Preclude the Report and Testimony of J. Pablo Ross Pursuant to the Daubert Standard (Doc. 13) filed with a supporting brief (Doc. 13-4) on March 5, 2015. Plaintiff filed her opposition brief on April 10, 2015. (Doc. 18.) Defendants did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.
A. Factual Background
Plaintiff alleges injury as a result of an incident related to her use of Defendants’ Lavender Spa Body Wax on January 22, 2012. (Doc. 1-2.) Plaintiff had used the product previously without incident. (Id.) Before she used the product on January 22nd, she avers that the product appeared as it had on previous occasions of use. (Doc. 1-2 ¶ 15.) The instructions stated that the product was to be initially heated for thirty seconds at medium heat until it was melted to a spreadable consistency and if the wax was not melted, it was to be heated for another ten seconds. (Doc. 13-4 at 3.) Plaintiff maintains that she followed the product’s instructions, heating it in the microwave for thirty seconds and then an additional ten seconds (two five second intervals (Doc. 13-4 at 4)) when she discovered that the product was not soft enough to spread. (Doc. 1-2 ¶¶ 18-19.) Plaintiff does not know the setting of the microwave on the day of the incident. (Id.)
When Plaintiff removed the product from the microwave, she placed it on the kitchen counter. (Doc. 1-2 ¶ 20.) She testified that it was not steaming, boiling or bubbling at the time, and it did not feel hot to her. (Doc. 13-4 at 4.) Leaving the jar on the counter, Plaintiff testified that she put the lid on, walked about eight feet to the garbage can and walked back to where the container was sitting on the counter. (Id.) She said that the jar began to sizzle five or six seconds later–-it was in her hand at the time. (Doc. 13-4 at 5.) Plaintiff further stated that the jar exploded about three seconds later, adding that she threw the jar after it burned her and was disintegrating in her hands. (Id.) Wax ultimately landed on Plaintiff’s right arm, right hand, and left hand as well as on the countertop, floor, trashcan and curtains. (Doc. 1-2 ¶ 22.) Plaintiff was rushed to Community Medical Center in Scranton and thereafter life-flighted to Lehigh Valley Hospital’s burn unit in Allentown where she was treated for third-degree burns. (Doc. 1-2 ¶¶ 24-25.)
Plaintiff’s Complaint contains four counts: Count One for Negligence; Count Two for Strict Liability; Count Three for Warranty; and Count Four for Negligent Infliction of Emotional Distress. (Doc. 1-2 at 7-10.)
As noted above, Defendants filed the motion under consideration here on March 5, 2015. (Doc. 13.) They seek to strike the report of Plaintiff’s expert, J. Pablo Ross. and to preclude his testimony at the time of trial pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
B. Expert Reports
1. Plaintiff’s Expert Report
Plaintiff’s expert, J. Pablo Ross, P.E., C.F.E.I., performed his tests with the microwave used by Plaintiff on the day of the incident after testing it and finding it operational. (Doc. 13-6 at 8.)
The wax kit used by Plaintiff was not available for inspection. (Doc. 13-6 at 4.) Mr. Ross was able to purchase identical exemplar kits for testing. (Id.) He also purchased updated kits (“new kit”) for testing. (Id.) The exemplar kit contains the following instructions:
• Remove lid from SPA WAX jar.
• Make sure jar is free of any metal or paper tags.
• Microwave jar of wax for 30 seconds at a medium setting until wax is melted to a spreadable consistency.
• If wax has not melted, additional heating time is required. Repeat at 10 second intervals until wax is warm and easily spreadable. DO NOT OVERHEAT.
(Doc. 13-6 at 5.) Mr. Ross observed that the exemplar wax exhibited a gray color on the surface and a purple color underneath and the gray wax surface exhibited signs of ...