Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kuhar v. Petzl Co.

United States District Court, D. New Jersey, Camden Vicinage

December 4, 2018

Nicholas Kuhar et al., Plaintiffs,
Petzl Co. et al., Defendants.



         This matter is before the Court on the “Motion in Limine to Exclude Defendant Bailey's Liability Expert Testimony and Report” [Doc. No. 188] (“motion”) filed by plaintiffs. The Court received the opposition of defendant Bailey's Corporation (“Bailey's”) [Doc. No. 200] and recently held oral argument. For the reasons to be set forth herein, plaintiffs' motion is GRANTED.[1]


         Since the parties are obviously familiar with the case and its fact and procedural background, the Court incorporates by reference the discussion in its Memorandum Opinion and Order granting the motions to strike plaintiffs' liability expert report filed by Bailey's and Uintah Fastener & Supply, LLC (“Uintah”). See Mem. Op. & Order, Nov. 27, 2018 [Doc. No. 257]. By way of brief background, the present action is a products liability case arising from plaintiff Nicholas Kuhar's use of defendants' safety harness while working on the roof of a barn.[2] Plaintiff was allegedly using the harness when a bolt broke in two, causing him to fall thirty-seven (37) feet and sustain serious injuries. Plaintiffs' claim is primarily focused on design and manufacturing defects associated with the bolt. However, as to Bailey's, plaintiffs claim Bailey's chose an improper rope. Bailey's did not design or manufacture the harness or the bolt. Rather, Bailey's purchased the harness and packaged it with a rope before retailing it to plaintiff in January 2006. See Def.'s Opp. at 1-2; Petzl Mot. Summ. J., Br. at 1 [Doc. No. 193-2].

         On or about March 27, 2018, Bailey's produced a four-page report from its liability expert, Dr. J. Nigel Ellis (“Ellis”). See Mot. at 1; Ellis Report [Doc. No. 188-1]. Ellis is a professional engineer and board-certified safety professional with a Ph.D. in photochemical processes. Mot. at 1. It has not been alleged that Ellis has any metallurgical expertise. In his report, Ellis opined as to “whether and to what extent the defendants, or others, acted in a negligent manner” and how “their conduct, if any, [contributed] to Mr. Kuhar's fall.” Ellis Report at 1; see Mot. at 1. Specifically, Ellis expressed the following opinions:

(1) Bailey's sold the Micrograb under the Petzl tradename and were [sic] generally marketing arborists supplies which was for Mr. Kuhar's primary tree business.
(2) Bailey's sale of the flipline used was not the cause of a fractured bolt in the Petzl rope grab product.
(3) Bailey's shipments included product instructions for Petzl and the Flipline with wire core and proper use was the responsibility of the user, Mr. Kuhar.
(4) The plaintiff has the responsibility to follow all instructions and labels.
. . . .
(7) There was a lack of clarity of the witnesses to describe Mr. Kuhar's fall.
(8) Bailey's made no changes to the Petzl product.
(9) The allegation of obscuration of the scratch marks on the B53 bolt by the rope is absurd based on my observation of the assembly at the plaintiff's attorney's offices.
(10) Proper fall protection devices are easily available through safety dealers nationwide with technical help on recommended applications.
(11) There was a failure of the chain of custody of the Petzl broken bolt/nut and any suggestion of a role played by Bailey in manufacturing or alteration or instructions for use with ropes regarding fliplines based solely on one section of Mr. Kurth's testimony is inappropriate and conflicts with other Petzl deponents. This is not a scientific finding.
(12) The M[i]crograb was sold by Bailey's in an unaltered state from the manufacturer and Bailey[']s played no part in the design or manufacturer [sic] of the product.
(13) The flipline used by the plaintiff is consistent with the instruction distributed with the product. The flipline was used in a damaged condition but the failure of the bolt was not related to the use of this flipline.

         Ellis Report at 3-4.[3]

         Plaintiffs now move to strike Ellis' report contending it fails to satisfy the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Plaintiffs generally allege Ellis' report and the opinions contained therein must be excluded because they do not result from reliable principles and methodologies. See Mot. at 4. More specifically, plaintiffs allege that “Dr. Ellis does not make reference to any tests or industry methods conducted on the bolt or any other evidence” and “never ties any reliable scientific information to his opinions.” Id. at 4, 7. Plaintiffs assert Ellis' opinions amount to “bare conclusions” that merely rely on his “word.” Id. at 7. In contrast, Bailey's argues Ellis' testimony is admissible in response to the nature and form of the allegations contained in plaintiffs' expert report. See Def.'s Opp. at 4. Bailey's “assumes” the scope of admissible expert testimony under Daubert must “encompass the right to rebut statements made by” an expert witness proffered by an adversary. Id. at 4. To this end, Bailey's contends Ellis' rebuttal to plaintiffs' expert's opinion that it “supplied the wrong rope” results from reliable methods. Id. As discussed herein, the Court will grant plaintiffs' motion and strike Ellis' report in full.


         Under the Federal Rules of Evidence a district court acts as a “gatekeeper” to “ensure that any and all expert testimony or evidence is not only relevant, but also reliable.” Daubert, 509 U.S. at 589; Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000). This basic obligation “applies to all expert testimony.” Kumho Tire Co., Ltd. v. Carmichael, 562 U.S. 137, 147 (1999). Thus, whenever a party seeks to admit expert testimony the judge must make an initial determination concerning its substance to assure “a standard of evidentiary reliability.” Id. (quoting Daubert, 509 U.S. at 589-90).

         Federal Rule of Evidence 702 governs the admissibility of expert testimony, permitting a witness “qualified as an expert by knowledge, skill, experience, training, or education” to testify in the form of an opinion, provided that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702; see generally Daubert, supra. The burden is on the party proffering expert testimony to prove its admissibility by a preponderance of the evidence. Daubert 509 U.S. at 592 n.10 (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)).

         As stated in Rule 702, in order to be admissible expert testimony must be helpful to the trier of fact. The Court has discretion to determine whether expert testimony is helpful. Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006). An expert's opinion is not helpful if it opines as to the governing law of the case. Id. In addition, expert testimony covering an area known and within the knowledge of a layperson is not helpful. Bryan v. Shah, 351 F.Supp.2d 295, 302 n.14 (D.N.J. 2005). Further, expert testimony is not helpful “when the untrained layman would be qualified to determine . . . the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Senese v. Liberty Mutual Ins. Co., 661 Fed.Appx. 771, 775 (3d Cir. 2016) (citation omitted).

         Rule 702 has been described by the Third Circuit as embodying a “trilogy of restrictions on expert testimony: [1] qualification, [2] reliability, and [3] fit.” Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)). First, the witness must be qualified to testify as an expert, which requires “the witness possess specialized expertise.” Id. Second, the testimony must be reliable, which demands that the expert's inferences or assertions “be derived by the scientific method” and not by “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590; Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3d Cir. 1996). Third, the testimony must “fit” the case, in that it “must be relevant for the purposes of the case and must assist the trier of fact.” Schneider, 320 F.3d at 404.

         Ellis' expert report will be stricken because it is replete with subjective beliefs and bare speculation that is of no assistance to the factfinder. Ellis also offers a number of inadmissible legal opinions that seek to instruct the jury on the result to reach. In addition, Ellis addresses fact issues that are the province of the jury. These deficiencies run afoul of the reliability and fit requirements of Rule 702 and Daubert, and demand that defendants' motion be granted. The Court will address each of Ellis' opinions in sequence.

         1. O ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.