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George Worrell, et al v. Elliott & Frantz

April 16, 2013


The opinion of the court was delivered by: Hon. Joseph H. Rodriguez


Presently before the Court are Defendant's Motions to Preclude Plaintiff's Expert, Paul Stephens [Dkt. No. 68] , and to Bifurcate the trial [Dkt. No. 69]. The Court has considered the written submissions of the parties. In addition, the Court discussed the motions with the parties at a pre-trial conference on January 15, 2013. Oral argument on the motions was held on April 9, 2013. For the reasons that follow, as well as those set forth on the record on April 9, 2013, Defendant's Motion to Bifurcate is denied and Defendant's Motion to Preclude Plaintiff's Expert is granted in part.

I. Background

George Worrell was responsible for transporting a Hitachi EX450 LC-5 excavator, Winzinger No. 351 (the "excavator") from Voorhees, New Jersey to a job site in Pennsylvania on July 19, 2007. Ex. A, Compl.; Ex. B, Dep. of George Worrell, 8:11-13, 10:5-16; 14:9-24; 24:3-23; 30:4-32:5; 32:24-33:10. The parties agree that the excavator had been fitted with a "wet kit" or an auxiliary system subsequent to its original manufacture. The hoses on the wet kit were installed in a manner that caused them to protrude over the highest or tallest point of the boom arm of the excavator. The resulting additional height caused by arcing of the hoses presented transportation concerns for Worrell.

For the most part, Worrell transported the excavator for four years without incident. Ex. B, Dep. of George Worrell 98:15-102:11. However, on one occasion he transported the excavator on New Jersey State Route 73 and the hoses on the unit rubbed the undercarriage of a bridge. Id. at 26:8-29:14. Worrell also had an incident with the excavator while transporting it in Philadelphia, where he failed to clear an eleven foot overpass. Id. at 25:1-26:3. For his July 19, 2007 transport of the excavator, Worrell was planning to travel on State Route 73 in New Jersey. Id. at 20:19-21:4. Given his previous incident on this road, Worrell felt that he had to secure the hydraulic hoses of the wet kit and he climbed the arm of the boom, which is not a walkable surface, to reach them. Id. at 8:11-13, 10:5-16; 14:9-24; 24:3-23; 30:4-32:5; 32:24-33:10. However, Worrell fell off of the boom arm and was injured. Ex. D, Dep. of Kenneth Cockerill.

Worrell agrees that he alone decided to attempt to tie down the hydraulic hoses and that no one from Winzinger instructed or required that he do so. Ex B., Dep. of George Worrell, 28:10-14. Worrell further agrees that, to his knowledge, he is the only person who secures the hoses or has had a problem transporting the excavator in question. Id. at 29:9-30:3, 44:19-45:1, see also, Ex D., Cockerill Dep. 43:23-44:2.

B. Worrell's Expert Report

Paul Stephens is Plaintiffs' expert. He was commissioned to examine the excavator involved in Worrell's injury. Ex. I, Stephens' Report. Stephens claims he compared his measurements of the excavator with the State of New Jersey's statutory clearance minimum and the clearance of the anticipated hauling routes and concluded that the height of the excavator, including the installed wet kit, rendered the machine defective. Id. Stephens attributes the defect to the improperly installed wet kit, which not only caused regulatory height transportation violations, but also was "an integral part of the 'as manufactured' content of the machine." Id. at 11. "[T]he excavator, with an improperly installed wet kit that increased the excavator's transport height and potentially shortened wet kit hose life, had a manufacturing defect." Id.

Stephens' report, by implicit and explicit means, validates Worrell's transportation clearance concerns. Id. at 11-12. It also identifies the theory underscoring Worrell's products liability claim as a manufacturing defect. Defendant moves to preclude Mr. Stephens from testifying for the following reasons. First, it states that Stephens' opinions lack support and make impermissible credibility determinations. Second, it contends that Stephens did not use an acceptable methodology in forming his opinions and that the opinions are speculative and amount to conjecture. Finally, Defendant contends that Stephens' bare conclusions constitute an impermissible net opinion.

Defendant also moves to bifurcate the trial, arguing prejudice and efficiency. Defendant contends liability is tenuous, with a strng likelihood that Defendant will be found not responsible for Mr. Worrell's injuries, saving the Court's time should a verdict exonerate Defendant. It appears from the record and the discussion with the parties that most of the testimony related to damages would not exceed two days time. In addition, Plaintiff argues that Mr. Worrell's injuries need to be examined during the liability phase of the trial in order to assuage any credibility concerns. Mr. Worrell, because of the nature of his head injury, may present his testimony in a manner that is inconsistent with his prior statements and/or that gives the appearance that he is being evasive.*fn1 For these reasons, Plaintiff contends that Mr. Worrell's damages, and the impact of his injury on his life, need to be explored so that the jury does not unfairly impugn the authenticity of Mr. Worrell's statements. For the reasons stated during the parties pretrial conference, as well as those stated on the record, Defendant's motion to bifurcate is denied.*fn2

The Court will address the motion to Preclude Plaintiff's Expert, Paul Stephens.

II. Standard

The guiding principles that inform the Court's judgment are found in Federal Rule of Evidence 702 and Daubert, 509 U.S. 579. 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).*fn3 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 ...

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