UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
May 12, 2009
VIKING YACHT COMPANY, A NEW JERSEY CORPORATION; AND POST MARINE CO., INC., A NEW JERSEY: CORPORATION, PLAINTIFFS,
COMPOSITES ONE LLC, A FOREIGN LIMITED LIABILITY COMPANY; CURRAN COMPOSITES, INC., A MISSOURI CORPORATION; C TWO LLC, A FOREIGN LIMITED LIABILITY COMPANY; AND TOTAL COMPOSITES, INC., A DELAWARE CORPORATION JOINT D/B/A/ COOK COMPOSITES AND POLYMERS, A FICTITIOUSLY NAMED DELAWARE PARTNERSHIP, DEFENDANTS.
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 . . . are inaccurate or false, right?
A: No. I believe they ---- the numbers they measured were the numbers that went with that particular test and that material. Whether that was relevant is the key question.
Q: But you don't believe that the numbers recorded in any of the test results that have been produced or published in this case in product literature by CCP or otherwise are false or inaccurate?
A: I don't believe so. I have no evidence to the contrary.
Q: You have no evidence that they're inaccurate?
A: That's correct. (Caruthers Dep. at 221:22-222:19).
Caruthers did not perform flexibility testing on 953 Series gel, either in an attempt to replicate CCP's results, or to test flexibility of the gel under Plaintiffs' use conditions. (See Caruthers Dep. at 222:20-223:14).
CCP moves to exclude Caruthers's expert report and attendant testimony at trial.
Federal Rule of Evidence 702 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 an 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.
"Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (Irenas, S.D.J., sitting by designation) (internal citations omitted). As to the second requirement, the Third Circuit has stated that "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Id. (internal citations and quotations omitted). The third element requires the expert's testimony to "'fit' the factual dispute at issue so that it will assist the jury." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), instructs that the district court must act as a gatekeeper, "'ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'" Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert). "Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admissibility." Pineda, 520 F.3d at 243.
The parties parse Caruthers's opinions into two distinct categories: (1) those regarding the laboratory testing of 953 Series gel and (2) his opinion pertaining to the chemical composition of the gel. The Court is not persuaded that drawing such a distinction is proper. Whether styled as three opinions or one, the entirety of Caruthers's proposed testimony rests on a single determination - that the chemical composition of 953 Series gel renders it susceptible to thermo-oxidative and ultraviolet degradation over time. When such degradation occurs, reduced flexibility results.*fn10 Caruthers's opinions concerning CCP's laboratory testing are simply a logical extension of that determination; if 953 Series gel loses flexibility over time, a laboratory test that does not account for long-term performance under Plaintiffs' use conditions would not measure that change.
Therefore, the analysis that follows proceeds from the premise that Caruthers's findings are, in essence, one opinion.
Plaintiffs propose to introduce Caruthers's opinions to demonstrate the "causal relationship between the 953 formula and its premature cracking[.]" (Pls. Br. 37). In addition, Plaintiffs intend to offer his testimony to establish that the flexibility test results published by CCP are meaningless once the gel is used for a period of time.*fn11 (Pls. Br. 39). CCP assails Caruthers's proposed testimony as unreliable and irrelevant to disputed factual issues.
The Court will address CCP's challenges to the reliability of the data and methodology underlying Caruthers's opinion in sections A and B, respectively. In Section C, the Court will consider the "fit" of Caruthers's testimony to disputed issues of fact.
CCP argues that Caruthers was not justified in relying on the representations of Plaintiffs' personnel as the source of data essential to his analysis.*fn12 Thus, CCP maintains that Caruthers's opinion is unreliable because he incorporated unreliable data into his methodology when he accepted Plaintiffs' representations that the design, manufacturing processes, and consumer use of the yachts remained constant over the relevant time period.
CCP's challenge to the reliability of the data underlying Caruthers's opinion implicates Federal Rule of Evidence 703. Rule 703 provides, in relevant part:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.
To determine whether "an expert's data is of a type reasonably relied on by experts in the field," the Court must "assess whether there are good grounds to rely on this data to draw the conclusion reached by the expert." Montgomery County v. Microvote Corp., 320 F.3d 440, 448 (3d Cir. 2003) (internal quotation marks and citation omitted). "If the data underlying the expert's opinion are so unreliable that no reasonable expert could base an opinion on them, the opinion resting on that data must be excluded." Id. (internal quotation marks omitted).
In this case, it is undisputed that Caruthers eliminated a number of possible causes of gel coat cracking by soliciting information from Plaintiffs' personnel. That underlying data was gleaned from sources with knowledge of the answers to Caruthers's questions. In all likelihood, Viking and Post personnel were the only sources both available to Caruthers and familiar with the information he was seeking. Thus, the Court concludes that the representations by Plaintiffs' personnel were sufficiently reliable to permit Caruthers to incorporate that data into his analysis. CCP, of course, will have an opportunity to explore these issues via cross-examination.
Pursuant to the second requirement of Rule 702, "an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Pineda, 520 F.3d at 247 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994)) (internal quotation marks omitted). The proponent of expert testimony must "make more than a prima facie showing that his expert's methodology is reliable," id., but "[t]he evidentiary requirement of reliability is lower than the merits standard of correctness." Id. (quoting Paoli, 35 F.3d at 744) (alteration in original) (internal quotation marks omitted).
Factors relevant to whether an expert's methodology is sufficiently reliable include, but are not limited to:
(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 witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.
Id. at 247-48 (citing Paoli, 35 F.3d at 742 n.8). These factors, however, "are neither exhaustive nor applicable in every case." Id. at 248.
Plaintiffs argue that Caruthers employed "a reliable method of analysis known as 'differential diagnosis[,]'" which, according to Plaintiffs, "qualifies as 'generally accepted' under the Paoli standards." (Pls. Br. 19). Although Caruthers does not explicitly refer to his method as "differential diagnosis," the Court recognizes that Caruthers's method generally involved "ruling out" potential causes of gel coat cracking and "ruling in" the chemical composition of 953 Series gel as the culprit-resembling how a differential diagnosis is performed to determine the cause of an illness in the medical context. See Feit v. Great West Life and Annuity Ins. Co., 271 F.App'x 246, 254 (3d Cir. 2008).
CCP argues that Caruthers's testimony must be excluded because he did not conduct any laboratory tests in support of his findings. Caruthers confronted this criticism during his deposition; he explained that some experiments are conducted in laboratories, but an experiment "can be done outside of the laboratory[,]" (Caruthers Dep. at 190:10-11), as was done in this case. Clearly, Caruthers's conception of an experiment does not comport with that of CCP. At the same time, the Court can discern no reason that an experiment cannot begin by identifying a result of uncertain origin and work backwards to determine its cause.
In a related argument, CCP contends that the record is devoid of a basis for Caruthers to assume that 953 Series gel exhibited greater degradation in flexibility than 952 Series gel. Caruthers, however, did not ground his analysis on such an assumption. Caruthers began his study from the proposition that the yachts experienced gel coat cracking due to an unknown cause, which he was asked to identify.
By consulting with Viking and Post personnel, Caruthers determined that there had been no systemic change in the design, manufacturing processes, or customer use of the yachts. The lone identifiable difference between yachts experiencing gel coat cracking, and those that did not, was the use of 953 Series gel rather than 952 Series gel. This suggested the cracking might be related to the change in gel coat formula.*fn13
Based on his specialized scientific knowledge, Caruthers recognized that the chemical composition of 953 Series gel rendered it susceptible to degradation in flexibility, thereby explaining the gel coat cracking. Thus, it is Caruthers's conclusion, not his assumption, that 953 Series gel was the cause of the cracking.*fn14
CCP also challenges Caruthers's methodology for failing to satisfy the various indicia of reliability under Rule 702, most recently articulated in Pineda. In considering this argument, the Court is mindful that the Rule 702 inquiry is "a flexible one[,]" and the factors identified in Daubert "do not constitute a definitive checklist or test." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (quoting Daubert, 509 U.S. at 593-94) (internal quotation marks omitted).
The method employed by Caruthers is testable, and his findings are replicable. An expert familiar with the propensities of chemicals could analyze whether the substitution of gel coating with adipic acid and without UV stabilizer for one without adipic acid and with UV stabilizer is the cause of gel coat cracking on yachts, assuming no changes in the design, manufacturing processes, or consumer use of those yachts. Caruthers thought it unnecessary to demonstrate what he deemed a self-evident proposition via laboratory testing. That does not preclude another scientist, less convinced that the result of such a test is a foregone conclusion, from performing it. Although Caruthers did not identify a hypothesis as such, his analysis had an articulable goal - to identify the cause of the gel coat cracking experienced by Plaintiffs' yachts.
Caruthers did not reach his conclusions haphazardly or unbounded by standards. He was asked to determine the cause of a result; he employed a process of elimination to isolate the likely cause of that result; and then applied elementary principles of chemistry to confirm that the likely cause of the result was, in fact, the actual cause. Such a method of problem solving is not novel or confined to use for the purposes of litigation. Moreover, Caruthers's familiarity with the propensities of adipic acid and UV stabilizers was not obtained for use in this litigation - it is specialized knowledge about a factual issue presented by the current litigation.
In sum, the Court is satisfied that Caruthers's testimony should be admitted, based on the liberal policy of admissibility embodied by Rule 702, and the good, although not flawless, grounds for his conclusions. Cross-examination will suffice to test Caruthers's opinion before the jury.
Via reply brief, CCP contends that Caruthers's testimony must be excluded because it is indistinguishable from that of an expert in Fuesting v. Zimmer, Inc., 421 F.3d 528 (7th Cir. 2005).*fn15 Fuesting involved the failure of an artificial knee, resulting in a lawsuit against its manufacturer. Fuesting, 421 F.3d at 531. Plaintiff's expert testified that the knee failed because it was sterilized via a process known as "gamma irradiation in an air environment[.]" Id. at 531-32. The expert attributed his opinion to basic polymer science principles. Id. at 536. The trial court failed to conduct any meaningful Daubert analysis, id. at 534-35, resulting in the Seventh Circuit panel assuming the responsibility of performing its own Daubert analysis. See id. at 536-37. In doing so, the panel criticized the expert for failing to conduct scientific testing to confirm his theory of causation, which was apparently without any published support in the scientific community. See id. at 536-37. Also, the panel found that the expert's opinion did not explain how general principles could result in his causation conclusions. Id. at 536. Less clear, in Fuesting, was whether the expert adequately accounted for alternative causes of the knee implant's failure. Id. at 537 ("[T]here is some genuine disagreement as to whether [the expert] has adequately accounted for alternative causes of the implant's failure . . . .").
Here, the Court has determined that Caruthers's method for ruling out alternative gel coat cracking causes was sufficiently reliable - namely, obtaining information from knowledgeable witnesses. Unlike the expert in Fuesting, Caruthers relies upon the existence of published support for the proposition that adipic acid is susceptible to thermo-oxidative and UV degradation.*fn16
During his deposition, Caruthers described, in scientific terms, the precise chemical process through which a compound such as adipic acid becomes more brittle, and hence less flexible. (See Caruthers Dep. at 250:13-253:5). Thus, the Court is satisfied that Caruthers has offered a sufficiently reliable explanation for how general principles of polymer science lead to his particular conclusions. In line with the Seventh Circuit, the Court agrees that Caruthers's opinion might be strengthened by conclusive confirmation in a laboratory setting. However, as discussed above, the reliability of his opinion is not substantially weakened by merely electing not to perform a laboratory experiment which he deemed redundant. The reliability inquiry in this case is therefore not controlled by Fuesting.
CCP contends that Caruthers's opinion identifying the 953 Series gel as the cause of cracking should not be admitted because it does not "fit" disputed factual issues. This position is somewhat perplexing insofar as CCP's opposition brief regarding the Motion to Exclude A. Brent Strong's testimony explains that "it is Plaintiffs' burden . . . to establish what caused the cracking in their yachts." (Dkt. No. 166, at 24).
Nevertheless, CCP contends that Caruthers's opinion does not fit disputed factual issues because he failed to isolate whether it was the presence of adipic acid, absence of UV stabilizer, or some combination thereof that accounted for the gel coat cracking. The Court disagrees. The factfinder may be called upon to determine whether 953 Series gel was the cause of cracking, but will not be asked to consider what aspect of the chemical composition of 953 Series gel was more or less at fault.
Also, CCP argues Caruthers's opinion is irrelevant because it pertains to the performance of 953 Series gel over time. Insofar as CCP is suggesting that events occurring after the date the 953 Series gel was delivered are wholly irrelevant in the wake of this Court's summary judgment opinion, they are mistaken. The Court previously explained that the express warranty for "improved flexibility" is vague, Viking Yacht, 496 F.Supp.2d at 470, and thus the determination of the warranty's contours, and whether it was breached, are issues for the jury.*fn17 See id. ("A reasonable jury could find that a warranty for improved flexibility does not include a warranty against cracking after use and/or storage in cold climates by the end purchaser of the yachts.").
Finally, CCP contends that Caruthers should be barred from testifying that CCP's flexibility tests are flawed. The Court disagrees. The flaw, according to Caruthers, is the tests' inability to predict the performance of the 953 Series gel once it is used for a period of time in field conditions. Caruthers's testimony on this point is particularly relevant in light of the anticipated testimony by A. Brent Strong, CCP's expert, that CCP's laboratory tests were a reliable means of measuring gel coat flexibility. It is therefore appropriate for Caruthers to explain to the jury that CCP's tests are not tailored to measure the long-term flexibility of 953 Series gel under Plaintiffs' use conditions. The testimony of both experts will provide the jury with a complete picture of both the significance and the limitations of CCP's testing procedure.
That said, Caruthers's description of CCP's flexibility testing as "flawed" is something of a misnomer. Likewise, his appraisal of the results of those tests as "without scientific basis" is misleading. Describing CCP's tests and data in such language would imply to the jury that the tests were performed improperly or yielded inaccurate results - neither of which Caruthers actually suggests. Therefore, the Court will preclude Caruthers from referring to CCP's laboratory tests, or the data gleaned therefrom, as "flawed," "defective," "without scientific basis," et cetera. Such terms are misleading, and obscure the true thrust of Caruthers's testimony - specifically, that CCP's tests were not designed to measure the long-term flexibility of gel coating in field conditions, and thus the data produced by those tests would not account for any diminished flexibility that occurs over time.
In light of the foregoing, CCP's Motion to Exclude the Opinions and Testimony of James M. Caruthers, Ph.D. will be granted in part and denied in part. The Court will issue an appropriate order.
JOSEPH E. IRENAS, S.U.S.D.J.