The opinion of the court was delivered by: Honorable Joseph E. Irenas Senior District Judge
Presently before the Court is the Motion by Defendant Cook Composites and Polymers ("CCP") to Exclude the Opinions and Testimony of James M. Caruthers, Ph.D. For the reasons set forth below, the Motion will be granted in part and denied in part.
The facts of this case have been set-out in several previous opinions*fn1 and need not be fully repeated here. At issue in this Motion are the expert report and testimony of James M. Caruthers, Ph.D.,*fn2 pertaining to the laboratory testing and chemical composition of 953 Series gel.
Caruthers offers three interrelated opinions, as follows:
1. The laboratory testing of the flexibility of the gel coat resins as reported in the CCP documents is flawed.
2. None of the laboratory testing of the CCP resins addressed the critical use condition, which included long term UV exposure, long term exposure to air and subambient deformation of the gel coat.
3. The formulation of the 953 gel coat is flawed due to the presence of the adipic acid and the absence of the UV stabilizer, leading to degradation over time of the flexibility of the 953 gel coat. (Jones Cert. Ex. 1---- Caruthers Report).
Caruthers views the field performance of Plaintiffs' yachts as an "experiment"-conducted in the real world.*fn3 (See Caruthers Dep. at 190:7-191:20). Asked to determine the cause of Plaintiffs' gel coat cracking, Caruthers began by ruling out possible causes. (See Caruthers Dep. at 94:18-95:3). Relying on information supplied by Viking and Post personnel, Caruthers learned that "there was no change in the design, manufacturing and use of the boats that were built during the time period prior to and during the appearance of the gel coat cracks."*fn4
(Caruthers Rpt. at p. 2; see Caruthers Dep. at 95:4-97:8, 115:12-116:4). Thereafter, Caruthers focused on the 953 Series gel as the likely source of the cracking, "[b]ased on the fact that all the other variables had been held constant." (Caruthers Dep. at 117:18-118:4; see Caruthers Rpt. at p. 2 ("The only difference [in the yachts] was the use of 953 in the boats that exhibited gel coat cracking [versus] 952 in the boats that did not exhibit gel coat cracking.")).
Caruthers then pinpointed two differences in chemical composition between the 953 Series and 952 Series gels as the cause of gel coat cracking on Plaintiffs' yachts. (See Caruthers Dep. at 186:21-187:3 ("My opinion is that the source of the cracking . . . was due to a change in the chemical composition of the 953 resin.")). First, the 953 Series gel included adipic acid, whereas the 952 Series did not. (Caruthers Rpt. at p. 3). Second, the 953 Series did not include a UV stabilizer; the 952 Series did. (Id.)
Adipic acid is an aliphatic diacid, a type of material generally recognized to suffer from thermo-oxidative and ultraviolet degradation, the ultimate result of which is less flexibility.*fn5 (Caruthers Rpt. at p. 3). Caruthers did not conduct a laboratory experiment to confirm that 953 Series gel experienced these forms of degradation. (Caruthers Dep. 252:6-11). Such testing was unnecessary, he testified, because it is a matter of general knowledge to practitioners in his field that "aliphatics are more susceptible to UV and thermo-oxidative degradation than aromatic groups." (Caruthers Dep. at 250:8-12).
Caruthers also concluded that the 953 Series gel is defective because it does not include a UV stabilizer.*fn6
(Caruthers Rpt. at p. 3). Caruthers did not test the effect of adding UV stabilizer to 953 Series gel, deeming such a test unnecessary in light of the field experience of Plaintiffs' yachts. (Caruthers Dep. at 275:17-276:5). Caruthers does not opine whether it is the presence of adipic acid, absence of UV stabilizer, or some combination thereof that ultimately caused the 953 Series gel to crack. (Caruthers Dep. at 276:6-18).
In addition, Caruthers criticized CCP's laboratory testing procedures, which were the means by which CCP measured the elongation of its gels. Elongation is a measure of flexibility; the greater the flexibility, the lower the risk of gel coat cracking. Viking Yacht, 496 F.Supp.2d at 467 n.11, 472.*fn7
As explained by Caruthers, CCP's elongation tests were performed on "a thin strip of material that was prepared without the laminate substructure[,]" meaning a material without the characteristics of the inner layers of Plaintiffs' yachts.*fn8
(Caruthers Rpt. at p. 2). A related shortcoming, according to Caruthers, is the lack of any testing by CCP to demonstrate that the results of its flexibility tests reflect how the gel will perform once bonded with a laminate. (Id.) For these reasons, Caruthers states that "the test data reported [by] CCP where they purport that 953 is more flexible is without scientific basis." (Id.)
As stated above, Caruthers believes that 953 Series gel becomes less flexible after exposure to the elements. In light of the absence of testing by CCP to measure the long-term flexibility of 953 Series gel in field conditions,*fn9 Caruthers opines that "[CCP's] claim that the gel coat had acceptable or improved weathering characteristics is without scientific basis." (Id.)
Importantly, Caruthers explained that his report should not be understood to suggest that there are inaccuracies in any of the flexibility data reported by CCP:
Q: And it's not your contention or your opinion in this case that any of the test results reported by CCP . . . ...