United States District Court, D. New Jersey, Camden Vicinage
MEMORANDUM OPINION AND ORDER [DOC. NO. 271]
SCHNEIDER UNITED STATES MAGISTRATE JUDGE.
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. 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. 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.
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].
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
(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
(7) Therefore, the bolt did not fracture during normal use of
(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
Report at 16.
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
(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
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,  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
Id. at 6-7.
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.
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.
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
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
Report at 3.
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 ...