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Dyvex Industries, Inc. v. Agilex Flavors & Fragrances, Inc.

United States District Court, M.D. Pennsylvania

March 22, 2018

DYVEX INDUSTRIES, INC., Plaintiff,
v.
AGILEX FLAVORS & FRAGRANCES, INC., et al., Defendants

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.

         This is a product liability case in which Dyvex alleges that Agilex's defective Perfectly Pomegranate Gras Oil (“PPG”) polymer fragrance oil caused a fire while it was being processed and significantly destroyed its facility. Pending before the court are Agilex's motion to preclude Dyvex's expert witness, namely, Alex Profka, from offering any opinions regarding the origin of the fire at the Dyvex facility, Doc. 98, and Agilex's motion to preclude Dyvex from offering its expert witness, namely, Christian Rauwendaal, on the origin and cause of the fire, Doc. 104. Agilex contends that the opinions of Dyvex's experts regarding the origin and cause of the fire are unqualified and unreliable and, it seeks to preclude both experts from offering their opinions at trial. Agilex also argues that since Profka and Rauwendaal should be precluded from testifying and since their expert opinions cannot, as a matter of law, support Dyvex's claims on the requisite issue of causation, it is entitled to summary judgment. Based upon the court's review of the instant motion and related materials, the court will DENY Agilex's motions to preclude Dyvex's expert witnesses from testifying at trial and, the court will DENY Agilex's motions seeking summary judgment in its favor as to Dyvex's remaining claims.

         I. BACKGROUND[1]

         The remaining claims raised by Dyvex in its complaint, (Doc. 1), against Agilex are for negligence, breach of warranty, and strict liability.[2] Dyvex essentially claims that Agilex's PPG fragrance oil was defective and created an unreasonable risk of fire, and that the June 3, 2010 fire at its facility was caused by Agilex's PPG that was being processed at the time in its Buss-Kneader machine. Dyvex also alleges that the PPG was unsafe and unsuitable for use in its Buss-Kneader machine, and that Agilex negligently failed to warn it of PPG's dangers, including its 93 degree flash point.

         On April 3, 2017, Agilex filed both of its motions to completely preclude Profka and Rauwendaal, Dyvex's main expert witnesses regarding the origin and cause of the fire, from testifying, (Docs. 98 & 104), and simultaneously filed its briefs in support of its motions, (Docs. 99 & 105). After an extension of time, Dyvex filed its briefs in opposition to both motions on April 21, 2017, (Docs. 116 & 117). Agilex filed its reply briefs on May 5, 2017, (Doc. 119), and on May 10, 2017, (Doc. 124). Dyvex was granted leave to file a surreply brief to Agilex's Doc. 98 motion and it did so on May 12, 2017, (Doc. 129). Both of Agilex's motions are fully briefed and both parties filed exhibits.

         II. STANDARD OF REVIEW

         Agilex's instant motions seek, in part, to exclude evidence as irrelevant. It is axiomatic that “irrelevant evidence is not admissible.” Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Even if evidence is relevant, the court can exclude it if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         Agilex's motions also seek to exclude expert testimony from Profka and Rauwendaal at trial. The admissibility of expert testimony is governed by under FRE 702, which requires an expert witness to have “specialized knowledge” regarding the area of testimony. The Third Circuit has explained, “[t]he basis of this specialized knowledge can be practical experience as well as academic training and credentials, ” and “[w]e have interpreted the specialized knowledge requirement liberally.” Betterbox Commc'ns Ltd. v. BB Techs., Inc., 300 F.3d 325, 327-28 (3d Cir. 2002) (internal citations omitted). The Federal Rules of Evidence embody a strong preference for admitting any evidence that may assist the trier of fact. Id. Moreover, Rule 702 “has a liberal policy of admissibility.” Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997).

         Federal Rules of Evidence 702 provides that:

         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 assist the trier of fact to understand the evidence or to determine a fact in issue;

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

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

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

Fed.R.Evid. 703 provides:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

         When faced with a proffer of expert testimony, the court must determine “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592. See also. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994) (“Rule 702's ‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”). The Daubert Court held that the Federal Rules of Evidence “assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597. The test of reliability is “flexible, ” and Daubert's list of specific factors - testing, peer review, error rates, and “acceptability” in the relevant scientific community - neither necessarily nor exclusively applies to all experts or in every case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).

         In performing its gatekeeping function to determine whether an expert's report is relevant and reliable under Daubert and Rule 702, “the court is not to weigh the evidence relied upon or determine whether it agrees with the conclusions reached therein. . . . Determinations regarding the weight to be accorded, and the sufficiency of, the evidence relied upon by the proffered expert are within the sole province of the jury.” Walker v. Gordon, 46 F. App'x 691, 695 (3d Cir. 2002) (citing Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) (“Where there is a logical basis for an expert's opinion testimony, the credibility and weight of that testimony is to be determined by the jury, not the trial judge.”)).

         The Third Circuit stated in Walker v. Gordon, 46 Fed.Appx. 691, 694 (3d Cir. 2002), “[t]he District Court has broad discretion in determining the admissibility of evidence, and ‘considerable leeway' in determining the reliability of particular expert testimony under Daubert.” (citing Kumho Tire, 526 U.S. at 152-53.” The Walker Court also stated that “Daubert requires that, when faced with a proffer of expert testimony, a trial judge determines ‘whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.'” Id. (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786). “These gatekeeping requirements have been extended to apply to all expert testimony.” Id. (citing Kumho Tire, 526 U.S. at 147.).

         Further, the Court in Walker, 46 Fed.Appx. at 694, stated:

In accordance with Daubert, trial courts are required to apply a reliability analysis to an expert's opinion; that opinion is “reliable” if it is based on the “methods and procedures of science” rather than on “subjective belief or unsupported speculation.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (1994) (quoting Daubert, 509 U.S. at 590). In other words, the expert must have “good grounds” for his belief. Id. at 741-42 (explaining how Rule 702, which governs the use of expert testimony in the federal courts, embodies three distinct substantive restraints on the admission of expert testimony: qualifications, reliability and fit).

         The Court in Walker provided guidance on the role of the trial court with respect to its gatekeeping requirements. The Court in Walker, 46 Fed.Appx. at 695, explained:

In performing its gatekeeping function and, in particular, in deciding whether an expert's report meets the reliability factor of a Daubert and Rule 702 analysis, the District Court is not to weigh the evidence relied upon or determine whether it agrees with the conclusions reached therein. To the contrary, the role of the District Court is simply to evaluate whether the methodology utilized by the expert is reliable, i.e., whether, when correctly employed, that methodology leads to testimony helpful to the trier of fact. See Daubert, 509 U.S. at 591-93 (noting that the testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue” and that the trial court's determination “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”). [FN7] Determinations regarding the weight to be accorded, and the sufficiency of, the evidence relied upon by the proffered expert, are within the sole province of the jury. Cf. Breidor v. Sears, Roebuck and Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) (“Where there is a logical basis for an expert's opinion testimony, the credibility and weight of that testimony is to be determined by the jury, not the trial judge.”).

         An expert need only have “good” grounds for his opinion. The basis might be imperfect to such a degree that the court would find there is some different conclusion that has stronger evidentiary support, but that does not justify exclusion. In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994).

         III. DISCUSSION

         By way of relevant background, Dyvex's partial summary judgment motion was granted and the court basically precluded Agilex from asserting any of its defenses to Dyvex's claims which rely upon industry safety rules and regulations found in OSHA and in various other safety provisions and building codes, such as ANSI and BOCA. (Docs. 156 & 157). As such, any of Agilex's arguments with respect to its Doc. 98 and Doc. 104 motions seeking to preclude Profka and Rauwendaal from testifying as to their fire origin and causation opinions which rely upon any of the stated safety rules, regulations and codes will not be considered.

         A. Doc. 98 Motion, Dyvex's Expert Origin Witness, Profka

         In its Doc. 98 motion, Agilex seeks to preclude Profka from testifying for Dyvex at trial pertaining to his opinions arguing that they are unreliable, speculative and unsupported by the evidence as to the origin of the fire and, that he cannot establish a causal nexus between the PPG and the fire. Agilex contends that Profka should be precluded from testifying and, that it should be granted summary judgment because Profka's expert reports and opinions cannot support Dyvex's claims with respect to the required elements Dyvex must prove.

         Profka is a fire origin expert witness for Dyvex. Dyvex submitted an expert report, dated July 1, 2014, from Profka and a supplemental expert report from Profka, dated on July 1, 2015. (Doc. 99, Ex. C). Profka was also deposed in this case. (Doc. 99, Ex. D). On June 4, 2010, Profka investigated the fire at Dyvex on behalf of its insurance company, Nationwide. Agilex argues that Profka was not able to determine the origin and cause of the fire, and that his opinions are not based on sound scientific principles and generally accepted methodology in violation of FRE 702 and Daubert.

         No doubt that if Dyvex has failed to present facts sufficient to establish the existence of an element essential to its case on which it would bear the burden of proof at trial, i.e., that Agilex's PPG caused the fire in its building, then Agilex is entitled to summary judgment in its favor on Dyvex's two remaining claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548 (1986) (“Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”).

         Profka has investigated the origin and cause of fires since 1976, including many years as a PSP fire investigator, and he has authored over 4, 000 reports during his career. He has also testified as an expert witness in both state and federal courts. In his initial report, ...


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