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Myers v. Gwin Dredging & Dock

December 20, 2005


The opinion of the court was delivered by: Rodriguez, Senior District Judge



This matter has come before the Court on Defendants Gwin Dredging & Dock, Inc.'s ("Gwin Dredging") and David Gwin's ("Gwin") Motion in Limine [12] to exclude that portion of the expert testimony of Dr. Roger Farber ("Farber") that relates to the causal link between trauma and the onset of ALS. For the following reasons, the motion will be granted.


This litigation arose as a result of an accident which occurred on January 17, 2002. Plaintiff David Meyers ("Meyers") was developing a property, and retained Defendant Gwin Dredging to dredge a lagoon. Defendant Gwin, the President of Gwin Dredging, was operating the dredge on the lagoon, and invited Meyers to it. He waited inside the pilot house when Meyers came onboard. Meyers climbed onto the dredge, walked to the pilot house, opened the door, and fell through an open hatch, sustaining serious injuries. The two foot by two foot hatch and cover had been installed by Defendants after they purchased the dredge.

Meyers intends at trial to present Farber as an expert who will testify that there is a causal relationship between the trauma Meyers suffered as a result of the accident and his development of amyotrophic lateral sclerosis ("ALS").*fn1 (Pl. Opp., p. 7.) Defendants argue that Farber's causation theory should be excluded because it does not satisfy the reliability requirement dictated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in that it has not been tested; is unsupported by peer review and publication; and is not generally accepted. (Def. Br., pp. 8-11.) Meyers, on the other hand, argues that the opinion is reliable because it is "founded and based upon: [Farber's] own personal account of [Meyers's] symptoms and onset of ALS as documented in this matter, not only by [him], but also by Doctor Zager and Doctor Wolf;[his] treatment of [Meyers]; [his] thirty years of experience as an outstanding medical doctor; and readings, general medical knowledge, text books (sic) and other references." (Pl. Opp., p. 9.)

On November 20, 2005, the Court held a Daubert hearing. Both experts agreed that no study has been published that suggests ALS is caused by trauma. During Farber's testimony, he conceded that none of the studies on which he relies conclude that trauma causes ALS. (Def. Concluding Arg., Exh. A, 86:17-20.) Similarly, Dr. Belsh ("Belsh") testified that none of the studies that he reviewed suggested that trauma causes ALS. (Def. Concluding Arg., Exh. A, 30:10-12.)


The admissibility of expert testimony is governed by Fed. R. Evid. 702. The Rule provides:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702 (2000). In applying this Rule, the Court has held that the district courts are "gatekeepers" responsible for excluding unreliable evidence. Daubert, 509 U.S. at 597. The Court has stated that "the trial judge must have considerable leeway in deciding . . . whether particular expert testimony is reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). However, the Court has also emphasized that the "inquiry envisioned by Rule 702 is a . . . flexible one," and noted that the "focus must be solely on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595. The Third Circuit has described the factors as a trilogy, requiring qualification, reliability, and fit. Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003). Only the reliability of McCue's expert testimony is at issue here.

In order to show that an expert's opinion is reliable, "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 R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (quoting Daubert, 509 U.S. at 590). See also Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000) (citing Paoli, 35 F.3d at 744 (stating that the "test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct[, but that] the test is whether the 'particular opinion is based on valid reasoning and reliable methodology")).

To assist the district courts in determining whether an expert's opinion is reliable, the Third Court has provided a list of factors to consider to begin the inquiry. These include:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert ...

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