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Kuhar v. Petzl Co.

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

September 12, 2019

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



         This 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.[1] For the reasons to be discussed, plaintiffs' motion is GRANTED in part and DENIED in part.


         Since 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).[2] 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.

         On or 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 alleged.
(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.

         Affiliated Report at 35.[3]

         Plaintiffs 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.

         Brighton 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.[4]


          The Court incorporates by reference its discussion of the Daubert standard and Rule 702 set forth in Kuhar, 2018 WL 7571319, at *2-3.

         At the 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, ...

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