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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 Uintah's Experts” [Doc. No. 271] (“motion”) filed by plaintiffs. The Court received the opposition of defendant Uintah Fastener & Supply, LLC (“Uintah”) [Doc. No. 290], plaintiffs' reply [Doc. No. 291], 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. 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. Uintah is alleged to have supplied a component part of the micrograb or the broken bolt at some point in the supply chain. See id. at *1.

         On or about March 28, 2018, defendant Uintah produced two expert reports: a report co-authored by its metallurgist experts, Drs. David P. Pope and Mark W. Licurse (“Pope/Licurse”); and a report by its engineering expert, Daniel M. Honig, P.E. (“Honig”). See Pls.' Br. at 2 [Doc. No. 271-1]; see also Pope/Licurse Report [Doc. No. 271-2]; Honig Report [Doc. No. 271-4].[3]

         Drs. Pope and Licurse are metallurgists holding degrees in engineering and Ph.D.'s in material sciences. See Doc. No. 271-3. In their report, Drs. Pope and Licurse opined the following to a reasonable degree of engineering certainty:

(1) The bolt fractured in an area which is unstressed during normal use of the Micrograb;
(2) This area remains unstressed even when a 4mm gap exists between the shoulder face and nut;
(3) The fracture is entirely ductile - by microvoid coalescence over the entire fracture surface;
(4) Failure by microvoid coalescence is to be expected if this bolt, in its properly heat treated condition, is subjected to a gross overload;
(5) The bolt was somehow grossly overloaded in the region of the fracture, even though the fracture region is not stressed during normal use;
(6) No. evidence of fatigue damage was found anywhere on the fracture surface;
(7) Therefore, the bolt did not fracture during normal use of the Micrograb;
(8) A load of at least 1, 000 lbs. was somehow applied to the nut end of the bolt, and this very large load grossly bent and broke the bolt;
(9) The application of such a load to this location on the bolt is totally outside the realm of normal use of the device.

         Pope/Licurse Report at 16.

         Honig has a Bachelor of Science degree in civil engineering and specializes in structural engineering. See Doc. No. 271-5. In his report, Honig opines within a reasonable degree of engineering certainty that:

(1) Mr. Kuhar's familiarity during his eight to nine year usage history with this Micrograb device indicates that he had a general working knowledge of its use and operation.
According to Mr. Kuhar's deposition testimony, he had briefly read the Micrograb instructions, which state the need for proactive and periodic inspection during the course of the use of the Micrograb device.
On the date of the fall incident, Mr. Kuhar was not using the Micrograb as it was designed and intended to be operated;
(2) At the time of this fall incident, there was no evidence of multiple and redundant safety lines present within the jobsite work area.
In addition, there is no witness corroboration of the presence of redundant safety lines other than the single line that Mr. Kuhar testified he was using at the time of his fall;
(3) Mr. Lynch has not provided any reasonable expert engineering explanation for the presence of the 3/16” wide gap dimension between the outside face of the Micrograb and the lock nut, which was threaded onto the axle bolt end area.
Given this connection design detail, the reason for providing a steel and nylon-insert lock nut on the axle bolt is to maintain the lock nut in a fixed position, which must be manually adjusted by an external rotational force, such as that provided by an Allen wrench or similar mechanical tool;
(4) Based on my structural engineering experience with equipment that incorporates dissimilar materials, such as this Micrograb device, the order of magnitude of external forces required to fracture a high strength steel bolt far exceeds the expected normal use conditions for this type of device. Even the significant gravity forces generated by a personnel fall incident would not be sufficient to cause this bolt connection to fail.
In fact, if the threaded end of this type of bolt were to become so severely overloaded so as to cause bolt end fracture in the manner documented by Micron, [4] there would be related and obvious collateral damage to the Micrograb body. Note that this outcome assumes that the axle bolt has remained within the Micrograb device.
Expected collateral and adjacent metallurgical damage from such a severe bolt overload event would be clearly evident within the softer and larger cast aluminum body portion of the Micrograb device, however, no such damage was documented by Micron.

Id. at 6-7.

         Plaintiffs move to strike Uintah's experts and their reports in their entirety contending they fail 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 Pope/Licurse Report is unreliable and does not fit the issues in the case. Specifically, plaintiffs object to Drs. Pope and Licurse's use of undefined terms and allege they impermissibly opine as to the “normal use” of the micrograb. See Pls.' Br. at 4. As to the Honig Report, plaintiffs generally allege his opinions lack any reliable scientific foundation and are otherwise improper subjects for expert testimony. Id. at 6-9.

         Uintah opposes plaintiffs' motion contending it is “premised on faulty reasoning, a misapplication of the law and a failure to consider the entire report of [its] experts, instead, focusing on single sentences or statements taken out of context.” Opp. at 1 [Doc. No. 290]. Uintah alleges its experts' opinions are based upon scientifically valid reasoning and methodology, and that they “have properly applied [their] reasoning and methodology to the facts at issue in this case.” Id. Therefore, Uintah argues the reports and opinions of each of its experts satisfies the Daubert standard of admissibility. Id.


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

         A. Pope/Licurse Report

         The Court finds the Pope/Licurse Report and the opinions contained therein, in large part, satisfy Daubert's admissibility requirements. Prior to addressing each opinion in turn, the Court will discuss plaintiffs' objection to the following passage found in the body of the Report:

It is important to note that it is extremely unlikely that the two pieces of the bolt landed within inches of each other after the fracture. This is true for multiple reasons, including the fact that the two bolt pieces have very different and irregular shapes so their paths down and off the roof are expected to deviate substantially from each other. Furthermore, when a strong bolt fractures, the pieces fly apart.

         Pope/Licurse Report at 3.

         The Court finds the opinion as set forth above to be a fact question left for the jury to decide. The jury will decide, not Drs. Pope or Licurse, whether plaintiffs' account is credible as to when, where, and how the two bolt pieces were recovered. To aid the jury in making factual determinations, expert opinion testimony “must be predicated upon evidence, not speculation.” Worrell v. Elliot, 799 F.Supp.2d 343, 349 (D.N.J. 2011). At the Daubert hearing, Dr. Pope testified that he could not calculate where the bolt pieces would have landed. See Tr., Aug. 19, 2019 at 8:21-9:1. Thus, while Drs. Pope and Licurse may testify as to their expertise in metallurgy and what occurs when a steel bolt breaks (e.g., the forces exerted and direction of motion), they may not opine or speculate as to the likelihood of ...

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