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Kolokowski v. Crown Equipment Corp.

August 27, 2009

RAYMOND AND DEBORAH KOLOKOWSKI PLAINTIFFS
v.
CROWN EQUIPMENT CORPORATION, AND ABC CORPS, LMN CORPS, JANE DOES, JOHN DOES, AND DEF CORPORATIONS (FICTITIOUS DEFENDANTS) DEFENDANT



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

Opinion

This matter comes before the Court on motions in limine filed by Plaintiffs and Defendant pursuant to Federal Rule of Evidence 702. On October 17, 2008, Plaintiffs Raymond and Deborah Kolokowski*fn1 filed a motion in limine [47] to exclude the expert testimony of John Johnson, PE, and Dan Dunlap, PE on behalf of Defendant Crown Equipment Corporation ("Crown Equipment"). Plaintiffs therein requested a Rule 104 hearing in the alternative, and an Order granting summary judgment based on the exclusion of Defendant's putative experts. Additionally, Plaintiffs move for summary judgment on his failure to warn claim. Defendant Crown Equipment filed its own motion in limine [45] on October 20, 2008, moving to exclude the expert testimony of Richard McLay, Ph.D. Defendant therein requested a Rule 104 hearing in the alternative, and summary judgment based on the exclusion of Plaintiffs' putative expert.

For the reasons expressed below, the proposed expert testimony of Dr. McLay is inadmissible. Therefore, Plaintiffs' claim against Defendant fails, and Plaintiffs' motion in limine to bar Defendant's experts is rendered moot. Plaintiffs' failure to warn claim is similarly unavailing.

I. Factual Background & Procedural History

On August 29, 2003, Plaintiff Raymond Kolokowski was operating a Crown PE 3540-60 walkie rider pallet truck.*fn2 (Pl. Ex. A.) This particular pallet truck operates in two modes; it can be driven while riding on its platform or it can be driven while walking alongside it. (Pl. Ex. C.) At all relevant times, Plaintiff drove the truck while walking alongside it. (Pl. Statement of Undisputed Facts 3.) The key events are as follows. Plaintiff was driving the pallet truck passed an isle in his employer's warehouse when he suddenly heard from his right side the sound of a back-up warning device from a material mover. (Id.) This sound startled Plaintiff. Given its intensity, Plaintiff believed he was about to be hit. (Id.) As a result, Plaintiff sharply turned his pallet truck to the left, and captured the heel of his right foot on the bottom of the platform of the pallet truck. (Id.) The forward movement of the pallet truck pushed the ball of his foot into the concrete floor, which thereby resulted in a lisfranc injury to his foot. (Pl. Ex. H.)

Plaintiffs' expert acknowledges that Kolokowski stepped into the path of the pallet truck when he made this maneuver. (Daubert Hr'g Tr. 54:12-14, hereinafter "Tr.", July 7, 2009.) Plaintiffs' primary contention is that this maneuver was foreseeable, and that his injury could have been prevented were it not for certain design defects in the pallet truck.

The first alleged defect concerns the length of the pallet truck operating handle.*fn3

According to Plaintiffs, "[T]he length of the T bar was too short by 9 inches." (Pl. Br. 2-3.) As a result of this alleged design defect, Plaintiffs contend the heel of an operator's foot can come into contact with the underside of the pallet truck platform when the operator turns the vehicle in walking mode. (Id. at 3.) To correct this defect, Plaintiffs' expert-- Dr. Richard McLay--proposes an alternative design. Dr. McLay contends the Tbar handle should be lengthened by nine or nine and one-half inches. This lengthening could be accomplished by either permanently lengthening the handle or by manufacturing the handle so that it telescopes nine inches upon putting the truck in walking mode. (Tr. 26:12-23.) The truck would include new membrane electronic switches which could detect whether the operator was walking or riding. (Id.) In any event, it is alleged that lengthening the handle would put enough space between the operator and the machine to reduce the probability of this accident from occurring again. (Tr. 23:21-25.)

The second alleged defect concerns the gap or clearance between the bottom of the platform and the floor. As it currently exists, this gap is five and three-quarter inches. Dr. McLay contends this gap should be reduced from five and three-quarter to three and one-quarter inches. (Tr. 23:8-9.) It is alleged that this reduction would reduce the probability that an operator could wedge his or her foot between the platform and the ground. (Tr. 23:8-14.) It could be accomplished either by fitting the pallet truck with a polymer skirt that would wrap around the base of the platform, or by welding a new front face onto the platform. (Tr. 21:20-25; 22:4-10.)

A third alleged defect concerns the warnings and training attendant with the walkie rider pallet truck.

Plaintiff moves for summary judgment requesting that the Court determine that Crown's failure to provide training as part of the price of the vehicle, was a failure to provide a necessary warning and therefore a defect in the vehicle at the time it was placed into commerce. (Pl. Br. 27.) Thus, Plaintiffs essentially contend that Crown Equipment provided an inadequate warning because it failed to provide training, in addition to its already included user manual and warnings on the pallet truck.*fn4 (Pl. Ex. C & F.)

Defendant contests both claims. Defendant contends the walkie rider pallet truck "is safe for its intended use and complies with all applicable standards and codes." (Def. Br. 10.) Relatedly, Defendant vigorously contests the alternative designs submitted by Dr. McLay as baseless and speculative:

McLay's 'expert opinion' is nothing more than a hypothesis that a longer handle is safer because it keeps the operator farther away from the machine and a lower ground clearance is safer because there is less of a gap between the machine and the floor. How far away is safe? How much lower is safe? McLay doesn't know... McLay's is a strange and unreliable methodology that is not generally accepted by the scientific community and does nothing to validate and substantiate his opinions. (Def. Br. 30.) For the above reasons, inter alia, Defendant moves to exclude Dr. McLay from testifying.

As for Plaintiffs' alternative failure to warn theory, Defendant highlights the relevant OSHA regulations on powered industrial trucks. (Def. Br. 12.) The relevant regulation regarding training and operation provides:

The employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation specified in this paragraph (l).

29 C.F.R. 1910.178(1)(1) (emphasis added). Thus, Defendant contends "[t]he burden of training the employee falls solely on the employer and not on the manufacturer." (Def. Br. 12.) Defendant then turns this argument into one for preemption, contending the duty Plaintiffs seek to impose is preempted by OSHA. (Id. at 13.) Defendant alternatively contends that it provided adequate warnings with the walkie rider pallet truck--namely, warnings on the truck and its accompanying user manual. (Id. at 13 n.7.) Defendant therefore contends the issue of adequate warnings, if it is reached, is one for the jury. (Id.)

Some procedural history is appropriate. This case was originally filed by Plaintiffs in New Jersey Superior Court, Law Division, Camden County, but was thereafter removed to the District of New Jersey, Camden Vicinage, on the basis of diversity jurisdiction, see 28 U.S.C. § 1332, by Defendant Crown Equipment (Def. Not. of Removal, filed Aug. 30, 2005.) Plaintiffs subsequently filed a motion to remand, but that motion was denied in an unpublished Opinion by this Court on December 6, 2005. See generally Kolokowski v. Crown Equip. Corp., No. 05-4257, 2005 WL332077 (D.N.J. Dec. 6, 2005).

Currently, Raymond Kolokowski seeks compensatory and punitive damages, attorneys fees, costs of suit and such other and further relief as the Court may deem proper. (Id. at Ex. A.) Deborah Kolokowski also seeks to recover damages, interests, costs of suit, counsel fees and such other relief as the Court may deem equitable and just. (Id.) Suing per quod, she alleges that as a result of Kolokowski's injuries, she has lost the past, present and future values of his usual services and consortium. (Id.)

III. Summary Judgment Standard

Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or... vague statements...' " Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322.

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

When a plaintiff is required to submit expert testimony to establish an essential element of his or her case, the court may grant summary judgment if that testimony is excluded under Daubert. Perry v. Novartis Pharm. Corp., 564 F. Supp. 2d 452, 473 (E.D.Pa. 2008). Indeed, the Third Circuit affirmed a decision granting summary judgment after expert testimony was excluded as unreliable in a matter that required the assistance of an expert to establish the elements of the plaintiff's case. Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2001).

IV. Discussion

The Court now turns to the contentions raised by both parties. In doing so, particular emphasis is placed on Defendant's motion in limine to exclude Plaintiffs' putative expert, Dr. Richard McLay. Significantly, "[w]here the allegedly defective product involves a complex instrumentality, a plaintiff is required to provide expert testimony." Ortiz v. Yale Materials Handling Corp., No. 03-3657, 2005 WL 2044923, *11 (D.N.J. Aug. 24, 2005) (quoting Lauder v. Teaneck Volunteer Ambulance Corps., 368 N.J. Super. 320, 331, 845 A.2d 1271 (App. Div. 2004)). Expert testimony is needed in such cases to present evidence and thereby assist the trier of fact. See Ebenhoech v. Koppers Indus., Inc., 239 F. Supp. 2d 455, 468 (D.N.J. 2002). Without it, Plaintiffs' case will lack the necessary proofs for trial. This issue consequently becomes a threshold issue.

A. Federal Rule of Evidence 702 and Daubert

The guiding principles that inform the Court's judgment are found in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Federal Rule of Evidence 702 provides:

If 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.

Fed. R. Evid. 702. Consistent with that Rule, Daubert established a "trilogy of restrictions" on the admissibility of expert testimony relating to scientific knowledge. See Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003).*fn5 This "trilogy" consists of "qualification, reliability and fit." Id. The Third Circuit liberally construes the qualifications of an expert, noting that "a broad range of knowledge, skills, and training will qualify a witness as an expert..." See Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 495 (D.N.J. 2002) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) ("Paoli II")) (internal quotations omitted). As such, exclusion of an expert witness is "improper simply because an expert does not have the most appropriate degree of training." Yarchak, 208 F. Supp. 2d at 495 (quoting Diaz v. Johnson Matthey, Inc., 893 F. Supp. 358, 372 (D.N.J. 1995)).

With respect to reliability, the focus is on the "principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595. Four benchmarks help determine whether a theory or technique qualifies as "scientific knowledge" such that it will assist the trier of fact. See Daubert, 509 U.S. at 593. The Court considers: (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and/or publication; (3) the rate of error; and (4) whether the theory or technique has been generally accepted within the putative expert's respective community. Id. at 593-94. The Third Circuit adds other factors, including:

(5) the existence and maintenance of standards controlling the technique's operation; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Paoli II, 35 F.3d at 742 n. 8. When considering these factors, the Court's inquiry must be a "flexible one." Id.

As for the third prong, Rule 702 requires that the "proffered expert testimony must 'fit' within the facts of the case." Yarchak, at 208 F. Supp. 2d at 496. The fit requirement mandates that the testimony "in fact assist the jury, by providing it with relevant information, necessary for a reasoned decision of the case." Id. (citing Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584, 595 (D.N.J. 2002)). Thus, even if an expert is qualified and relies on sound methodology, he must still "apply this expertise to the matter at hand." See Calhoun, 350 F.3d at 324.

These factors are not exclusive. They "are intended to serve only as 'useful guideposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted.' " Yarchak, 208 F. Supp. 2d at 495 (quoting Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999)). With the help of these guideposts, the Court performs its essential gatekeeper role under Federal Rules of Evidence 702.

B. Daubert Hearing

Rule 104(a) permits a preliminary inquiry in the form of a Daubert hearing, wherein the burden of proof on admissibility of an expert is set at a preponderance of the evidence. See Fed. R. Evid. 104(a); and Daubert, 509 U.S. at 592 n.10 (referring to Rule 104(a) and holding that such preliminary "matters should be established by a preponderance of proof."). The Third Circuit stresses "the importance of in limine hearings under Rule 104(a) in making the reliability determination required under Rule 702 and Daubert." See In re TMI Litigation, 199 F.3d 158, 159 (3d Cir. 2000) (quoting Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999)). The importance of such a hearing is heightened when either party advances a Daubert challenge "in the context of a summary judgment motion or where summary judgment will inevitably be granted if the proffered evidence is excluded." In re TMI Litigation, 199 F.3d at 159. Fully aware that a "failure to hold [an in limine] hearing" ...


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