United States District Court, D. New Jersey, Camden Vicinage
MEMORANDUM OPINION AND ORDER
SCHNEIDER, UNITED STATES MAGISTRATE JUDGE.
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
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. 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].
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
(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.
Report at 3-4.
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.
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).
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,
(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
(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
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).
702 has been described by the Third Circuit as embodying a
“trilogy of restrictions on expert testimony: 
qualification,  reliability, and  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
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