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 to Strike
Defendant Porteous/Brighton Best's Experts” [Doc.
No. 280] (“motion”) filed by plaintiffs. The
Court received the opposition of defendants Brighton Best,
Inc. (“Brighton Best”) [Doc. No. 292] and Uintah
Fastener & Supply, LLC (“Uintah”) [Doc. No.
293], plaintiffs' reply [Doc. No. 295], and the Court
recently held a Daubert hearing. For the reasons
to be discussed, plaintiffs' motion is GRANTED in part
and DENIED in part.
the parties are familiar with the case, the Court
incorporates by reference its summary of the fact background
and procedural history of the case set forth in Kuhar v.
Petzl Co., C.A. No. 16-0395 (JBS/JS), 2018 WL 7571319,
at *1 (D.N.J. Nov. 27, 2018). By way of brief background, the
present action is a products liability case arising from
plaintiff Nicholas Kuhar's use of a safety harness called
a “micrograb” while working on the roof of a
barn. Mr. Kuhar was allegedly using the micrograb harness
when a component steel 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 broken bolt.
Brighton Best is alleged to have manufactured the broken
bolt. See id. at *1.
about March 30, 2018, Brighton Best produced an expert report
from its metallurgist expert, John P. Gashinski, P.E., and
its mechanical engineering expert, Kenneth M. Garside, P.E,
of Affiliated Engineering Laboratories, Inc.
(“Affiliated Report”). See Pls.' Br.
at 2 [Doc. No. 280-1]; see also Affiliated Report
[Doc. No. 280-2]. Gashinski is a professional engineer
holding a Bachelor's and Master's in Materials
Science and Engineering. See Doc. No. 280-4 at 8.
Garside is a professional engineer holding a Bachelor's
Degree in Mechanical Engineering and a Master's Degree in
Engineering Science. See id. at 2. In the Affiliated
Report, defendant's experts opined the following to a
reasonable degree of engineering certainty:
(1) The subject shoulder bolt failed within the thread neck
region by ductile overload fracture that transitioned to
shear overload condition. This area of the assembled fastener
is not significantly loaded during intended use such that the
subject overload event could not have occurred in the manner
(2) There was no evidence of any design and/or manufacturing
defect that would have been causally related to the subject
shoulder bolt failing in the reduced cross-section region of
the thread neck. In consideration of the design application
of the subject shoulder bolt to the involved Micrograb, this
region of the bolt would not be subjected to any loading
condition(s) to induce such a failure during intended use.
(3) The observed failure mode of the bolt is not consistent
with the testimony and plaintiff's [sic] allegations as
described. Accordingly, any opinion indicating the subject
failure was due to any impropriety or shortcoming on the part
of a distributor of the bolt fastener is devoid of technical
basis and should be viewed as speculation at best.
Report at 35.
move to strike the Affiliated Report in its entirety alleging
that it fails to satisfy the requirements of Fed.R.Civ.P. 702
and Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993). Plaintiffs generally allege the report and the
opinions contained therein must be excluded because they lack
a reliable foundation and are not fit for the case.
See Pls.' Br. at 4-6. Specifically, plaintiffs
object to the report's use of undefined terms, alleging
that it improperly opines as to the “intended” or
“normal use” of the micrograb. Id. at 4.
Plaintiffs further allege that, had the report attempted to
define these terms, defendant's experts are unqualified
to offer them. Id. In addition, plaintiffs contend
the report omits, in large part, any scientific method or
basis used by the experts to render the opinions they reach.
Id. at 5-7.
Best opposes plaintiffs' motion, contending that the
Affiliated Report “clearly conforms to the standards
set forth in Daubert.” Opp. at 3. [Doc. No.
292]. Brighton Best alleges that plaintiffs'
“arguments fail to consider the entirety of the report,
” and instead, “cite[s] in piecemeal
fashion” to just three pages of the thirty-five-page
report. Id. Brighton Best also alleges plaintiffs
offer no legal support for their proposition that the report
must define “such common terms, ” and further
argue plaintiffs misconstrue the “plain meaning”
of the terms. Id. at 3-6. Brighton Best opposes
plaintiffs' allegation that its experts fail to provide
any reliable scientific support for the conclusions they
reach. Id. 6-7. Brighton Best also asserts
“[a]n examination of the entire report reveals that
[it] painstakingly analyzes the cause of the fracture through
the use of physical inspection and testing, metallurgical
analysis and evaluation, ” and reviews of files,
photographs, charts, and drawings. Id. at 8. As
such, Brighton Best contends the report is reliable and fit
for the issues in dispute. Id. at 10-11. In its
opposition, Brighton Best requested that the Court conduct an
in limine hearing if it intended to entertain oral
argument on plaintiffs' motion.
Court incorporates by reference its discussion of the
Daubert standard and Rule 702 set forth in
Kuhar, 2018 WL 7571319, at *2-3.
outset, the Court will address plaintiffs' objection
stated on the record at the close of the Court's
Daubert hearing. Plaintiffs objected on the ground
that the definitions of certain technical terms were not
contained in defendants' expert report. For example,
plaintiffs take issue with Gashinski and Garside's
failure to define the terms “normal (or intended use),
” “ductile overload, ” and “microvoid
coalescence.” However, an expert is not required to
define every technical term contained in his or her report.
See Crowley v. Chait, 322 F.Supp.2d 530, 540 (D.N.J.
2004) (“[O]ne of the very purposes of a
Daubert hearing . . . is to give experts a chance to
explain and even correct errors that they made in their
reports.”). At the Daubert hearing, Gashinski
testified the terms objected to are “germane
terms” and generally accepted as defined within his
field of expertise. See Tr., Aug. 19, 2019 at
54:18-22. As for “intended” or “normal use,
” both experts testified that this does not refer to
the intended use of arborist equipment as plaintiffs contend.
See Pls.' Br. at 4. Rather, these references are
specific to the shoulder bolt and the typical forces known to
mechanically engage the bolt by experts in their fields.
See Tr., Aug. 19, 2019 at 78:17-79:10. Thus,