The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Plaintiffs' Motion to Exclude Portions of the Report and Testimony of Defendant's Chemical Expert A. Brent Strong, Ph.D. (Docket No. 159). The Court has reviewed the submissions of the parties, and for the reasons set forth below, Plaintiffs' Motion is granted in part and denied in part.
Viking Yacht Company ("Viking") and Post Marine Co., Inc. ("Post") (collectively, "Plaintiffs") are luxury yacht manufacturers. They brought suit against Defendant Cook Composites and Polymers, Co. ("CCP") to recover damages resulting from the cracking of gel coats on yachts Plaintiffs manufactured using CCP's 953 Series gel. The Court has extensively discussed the facts and history of this case in its previously issued opinions on cross Motions for Summary Judgment, Motions for Reconsideration, the more recent Motion to Bifurcate the Trial of Liability and Damages.*fn1 As a result of this Court's previous holdings, Plaintiffs' surviving claims are: (1) breach of express warranty, (2) fraudulent misrepresentation, and (3) violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2.
CCP retained Dr. Strong, who holds a Ph.D. in chemistry and is a professor of mechanical engineering technology at Brigham Young University, as a liability expert. He was asked to do the following:
(1) examine the chemical natures of the 952 Series and 953 Series gel coats and to determine, from the basic chemical principles, which of the gel coats is more likely to have a higher elongation; (2) examine the proprietary test for elongation used by CCP (called the PE-210 test) to determine if the test procedures are appropriate for such determinations, and to use the test in conducting a study using statistical methods to verify the elongations of the 952 Series and 953 Series gel coats; and (3) comment on the opinion given by Professor Caruthers who has been retained by the Plaintiffs and their counsel as a scientific liability expert in this case. (Strong Rep. ¶ 3.) In preparing his report, Dr. Strong visited both of Plaintiffs' facilities, visually inspected several boats at a marina on the New Jersey shore, performed a statistical analysis of the PE-210 test, consulted other scholars' works, and reviewed other evidence in this case.
Dr. Strong's report is divided into several sections: an "Introduction" (Id. ¶¶ 1-6), "Chemical Theory Related to Gel Coats and Composite Materials" (Id. ¶¶ 7-37), "Chemical Formulation Analysis for Elongation" (Id. ¶¶ 38-50), "Elongation Testing" (Id. ¶¶ 51-72), "Weathering, UV Degradation, and Thermooxidative Degradation" (Id. ¶¶ 73-88), and a "Summary of Conclusions" (Id. ¶¶ 89-93).
In the instant Motion, Plaintiffs object to the majority of the "Chemical Theory" section as well as two of Dr. Strong's overall "Conclusions." Specifically, they seek to exclude (1) paragraphs 12, 17-32, 34, 36-37, 91, and 92 in their entirety, (2) all but the first three sentences of paragraph 33, (3) all but the first sentence of paragraph 35, and (4) the first phrase of paragraph 38.
For the foregoing reasons, Plaintiffs' Motion will be granted in part and denied in part.
"Under the Federal Rules of Evidence, it is the role of the trial judge to act as a 'gatekeeper' to ensure that any and all expert testimony or evidence is not only relevant, but also reliable." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). Federal Rule of Evidence 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).*fn2 Admissibility under the third requirement, the "fit" requirement, "depends in part on 'the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case.'" In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir. 1994) (quoting United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985)). "The burden is on the proponent of the testimony to prove its admissibility by a preponderance of proof." NN&R, Inc. v. One Beacon Ins. Group, No. 03-5011, 2006 WL 2845703, at *2 (D.N.J. Sept. 29, 2006).
"An expert opinion is not admissible if the court concludes that an opinion based upon particular facts cannot be grounded upon those facts." Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996). Further, "if an expert opinion is based on speculation or conjecture, it may be stricken." Id.; see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.").