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

United States District Court, M.D. Pennsylvania

March 22, 2018




         Pending before the court is Dyvex's motion to completely preclude one of Agilex's expert witnesses, Wendell D. Rust, of OSHA Safety Expert, Inc., from testifying at trial, including rendering any opinions regarding the alleged duties and standards of care Dyvex owed to Agilex. (Doc. 94). 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 destroyed its facility. On February 28, 2018, the court granted Dyvex's motion for partial summary judgment and found that Dyvex did not owe Agilex a duty of care to comply with Occupational Safety and Health Administration (“OSHA”) regulations and with any other industry safety standards, that Agilex could not assert violations of the building and fire codes by Dyvex as defenses to its claims, and that Agilex could not assert any defense based on the contractual relationship between Dyvex and its insurer Nationwide. (Docs. 156 & 157). Based upon the court's Doc. 156 Memorandum and upon review of the instant motion and related materials, the court will GRANT IN PART and DENY IN PART Dyvex's motion to preclude Rust from testifying at trial.

         I. BACKGROUND[1]

         The remaining claims raised by Dyvex in its complaint, (Doc. 1), against Agilex are for negligence, breach of contract, breach of warrant, and strict liability.[2] Agilex formulates fragrance oils that are used in products such as air fresheners and personal care products. Agilex supplied fragrance oil to Dyvex for use in Dyvex's polymer fragrance concentrate products. Specifically, Dyvex used a Buss-Kneader machine which “compounds two raw materials - unscented polymer plastic pellets and a fragrance oil - into fragrant plastic pellets.” After Dyvex compounded the plastic pellets with the fragrance oil, it would send the resulting fragrant plastic pellets to Agilex for use in various products. Agilex in turn would pay Dyvex for the compounding process and for the polymer. Dyvex alleges that Agilex supplied the fragrance oil that was being processed at the time of the fire. Dyvex basically 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. Dyvex also alleges that the PPG was unsafe and unsuitable for use in its Buss-Kneader machine, and that Agilex failed to warn it of PPG's dangers, including its 93 degree flash point.

         On, March 31, 2017, Dyvex filed its motion to completely preclude Rust, Agilex's main expert on OSHA and safety regulation defenses, from testifying, (Doc. 94), and simultaneously filed its brief in support of its motion, (Doc. 97). After an extension of time, Agilex filed its brief in opposition on June 26, 2017, (Doc. 146), and a statement of material facts regarding its response to Dyvex's motion, (Doc. 147).[3] Dyvex then filed its reply brief on July 7, 2017. (Doc. 150).


         Dyvex's instant motion seeks, 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.

         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) .

         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. 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 Fed.Appx. 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.”)).


         Initially, by way of 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).

         In its present motion, Dyvex seeks to preclude Rust from testifying for Agilex at trial pertaining to its defenses based, in part, on alleged duties which Dyvex owed to Agilex. Dyvex seeks to preclude Rust from testifying as to his opinions regarding Dyvex's non-compliance with OSHA, American National Standards Institute (“ANSI”) and BOCA standards, as well as other safety regulations, based on lack of qualifications, foundation, fit and relevance. Agilex argues that if Dyvex had complied with OSHA and building code requirements along with other safety standards, such as a sprinkler system, it would have prevented the fire at its building or reduced Dyvex's property damage allegedly caused by Agilex's PPG.[4]

         Agilex has been precluded from offering evidence at trial regarding its affirmative defenses to the extent it showed that Dyvex's conduct in failing to adhere to the industry safety standards and building codes either caused the fire or greatly increased its damages. The court has found that Dyvex owed no duty of care to Agilex to comply with OSHA and the other industry safety standards, with state or local building codes, and with any recommendations made by Nationwide. The court found that the issue of whether Dyvex owed a duty to Agilex was a legal issue for the court to decide and the court found that Dyvex did not owe Agilex a duty of care. See Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1366 (3d Cir. 1993) (Third Circuit held that in Pennsylvania the issue of whether a defendant owes a duty of care to a plaintiff is a question of law.). In short, the court found that in a product liability case such as the present one, the issue is whether there was a defect in Agilex's PPG, and that the product is on trial, and not conduct of Dyvex.

         There is no evidence that Dyvex was actually found to have violated any OSHA regulations by OSHA itself. Rather, Agilex relies upon the expert report of Rust and his deposition testimony to support its contention that Dyvex was not in compliance with several OSHA provisions and regulations as well as other industry safety standards and building codes. Since the court has granted Dyvex's partial summary judgment motion and precluded Agilex from asserting any of its defenses to Dyvex's claims based on the stated alleged safety violations and based on any conduct of Dyvex in terms of its compliance with safety provisions and standards, it will also grant Dyvex's motion to preclude Rust from testifying regarding any and all of his opinions pertaining to Dyvex's non-compliance with OSHA and industry safety standards as well as building codes. Nor will Rust be permitted to testify regarding any aspect of Dyvex's relationship with Nationwide. Rust will also be precluded from rendering his opinions at trial that Dyvex violated the stated safety provisions, regulations and codes and, from rendering his opinions that Dyvex's violations lead to the fire and greatly increased the amount of fire damage in Dyvex's building.[5]

         As such, Rust will be precluded from opining that “dangerous work procedures and unsafe work practices at the Dyvex facility lead to this fire and contributed to the needless destruction of [its] facility.” Nor will Rust be permitted to opine that if Dyvex had the proper fire safety prevention standards in place as required by the stated provisions and codes, it would have been able to put out the fire and minimize any damages to its building.

         The court now turns to the other opinions of Rust which Dyvex also seeks to preclude from being presented at trial based on his lack of qualifications, reliable methodology, factual basis and fit. Rust issued an expert report on March 27, 2015. (Doc. 97, Ex. A, Doc. 146, Ex. C). Rust was deposed on June 10, 2016 and on December 22, 2016. (Doc. 97, Ex. B, Doc. 146, Exs. D & E). The relevant opinions of Rust are summarized in Dyvex's brief and in Agilex's brief in opposition, and shall not be repeated herein.

         Dyvex states that Rust's expertise is as a safety inspector. Dyvex contends that Rust has never inspected or consulted at a plastic compounding company like the Dyvex facility, and that “he offers no support for his claim to have specialized knowledge regarding compounding, fire investigation, evidence preservation, insurance, kneaders, customer retention, financial considerations for whether to rebuild, the re-usability of building components, and many other subjects on which he offers opinions.”

         Specifically, Dyvex states that Rust rendered opinions on several subjects, including the following:

1. Dyvex's compliance with OSHA and other workplace safety standards
2. Fire Suppression-Need for and Comparative Effectiveness of Extinguishers, Large and Small, ...

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