Nicholas Kuhar v. Petzl Co ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-3900
________________
NICHOLAS KUHAR; JULIE KUHAR,
Appellants
v.
PETZL COMPANY d/b/a Petzl; PETZL AMERICA, INC d/b/a Petzl;
BAILEY'S CORPORATION; UNLIMITED XYZ CORPORATIONS (fictitious entities);
UNLIMTED JOHN DOES (fictitious entities; UINTAH FASTENER & SUPPLY;
THOMPSON MANUFACTURING; PORTEOUS FASTENER COMPANY;
BRIGHTON–BEST; QUALITY PLATING
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-16-cv-00395)
District Court Judge: Honorable Renee M. Bumb
________________
Submitted Pursuant to L.A.R. 34.1(a) on
October 25, 2021
Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges
(Opinion filed: April 13, 2022)
________________
OPINION*
________________
GREENAWAY, JR., Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
I. INTRODUCTION
This appeal presents the question of whether, under the New Jersey Product Liability
Act (“NJPLA”), a plaintiff must produce expert testimony to support a product defect
case. Plaintiffs Nicholas Kuhar and Julie Kuhar (collectively, “Plaintiffs”) filed suit
against Defendant–companies alleging that a defective bolt broke while using a device
incorporating the bolt.1 The Magistrate Judge determined that Plaintiffs’ expert failed to
meet the requirements of Daubert and struck the report. The District Judge later affirmed
this ruling before also adopting the Magistrate Judge’s Report and Recommendations
granting summary judgment. We agree and will affirm the District Court’s grant of
summary judgment.
II. BACKGROUND
Plaintiff Nicholas Kuhar (“Kuhar”) fell from a thirty-seven-foot-high barn onto
crushed concrete in December 2013. Appx. I, 53–54; see also District Court ECF No.
102 (Second Amended Complaint) at 6. He was severely injured. Appx. I, 53. While
working on the barn, Kuhar had been using a safety harness that he had purchased as part
1
Plaintiffs in this case are husband and wife. The Second Amended Complaint lists three
causes of action: strict liability, breach of warranty, and loss of consortium. District
Court ECF No. 102 at 6-7. Only the loss of consortium cause of action individually
identifies the relevant plaintiff, Julie Kuhar. Id. Because Plaintiff Nicholas Kuhar was
the only plaintiff who used and was allegedly injured by the product, he is the relevant
plaintiff for the strict liability and breach of warranty causes of action. See Myrlak v.
Port Auth. of New York and New Jersey, 723 A.2d 45, 56 (N.J. 1999) (citations omitted)
(explaining the requirement that, inter alia, the alleged defect have “proximately caused
injuries to the plaintiff”). Unless otherwise noted in the text, “Plaintiffs” in this opinion
refers to both Nicholas Kuhar (the device user) and Julie Kuhar (who holds the derivative
claim).
2
of a “flip-line kit” seven years earlier. Appx. I, 53–54. The “flip-line kit” contained a
carabiner, a rope, and a micrograb. Plaintiffs allege that this micrograb contained a
defective bolt. Id. at 53. Between the purchase of the product in 2006 and the accident
in 2013, Kuhar had used the device four to five times per month, and admitted to having
disassembled and reassembled the device. Appx. I, 56, 68; Supplemental Appendix
(“S.A.”) I, Kuhar Dep. 191:4–20. Kuhar was wearing the rope wrapped around a safety
line and attached to the micrograb when he alleges that “‘the bolt attached to the
carabiner of the safety harness snapped.’” App. I, 39. His son found the bolt outside
near the barn three months after the accident. S.A. at 234:10–235:12, 237:12–22.
Plaintiffs initially filed suit in New Jersey Superior Court. Appx. I, 10–11; see also
Appellant’s Br. at 3 and District Court ECF No. 1. Defendant-Petzl America, Inc.
timely removed the action to the U.S. District Court for the District of New Jersey. 2
Appx. I, 10–11. Their amended complaint asserted state-law claims under strict liability,
breach of warranty, and loss of consortium.3 District Court ECF No. 102 at 6–7. After
2
Plaintiffs initially filed this lawsuit against Petzl Company, d/b/a Petzl America, Inc.
d/b/a/ Petzl, and Bailey’s Corp., et al. District Court ECF No. 1-1 (Exhibits to Notice
of Removal). Plaintiffs subsequently amended their complaint to add defendants
Thompson Manufacturing, Inc., Uintah, as well as fictitious corporations, and John Does.
Appx. I, 53–54; see also District Court ECF Nos. 43 and 44. Uintah later impleaded
Porteous Fastener & Supply, LLC, Brighton-Best, Inc., and Quality Plating. Appx. I, 54-
55; see also District Court ECF Nos. 83.
3
By the point of summary judgment, Plaintiffs pursued only a design defect claim
against only Porteous Fastener & Supply, LLC, Brighton-Best, Inc., Uintah, and Petzl
Company, Appx. I, 56, and a failure to warn claim against only Petzl Company. Id. at
56–57. They had dropped their breach of warranty claim against all defendants. Id. at
56–57.
3
the parties exchanged expert witness reports during discovery, Defendants Uintah and
Bailey’s Corporation filed motions to strike Plaintiffs’ expert for reportedly failing to
satisfy requirements under Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). Appx. I, 10-34; see also District Court ECF Nos.
185, 196-3, 257, 338. The Magistrate Judge concluded that Plaintiffs’ expert report did
not meet admissibility standards and granted Defendants’ Daubert motions to strike.
Appx. I, 10–34. The District Court affirmed the order. Id. at 35–36.
Following the close of discovery, Defendants moved for summary judgment.4 Appx.
I, 37–51, 52–76. Defendants contended that without an expert witness, all of Plaintiffs’
products liability claims must fail as a matter of law. Appx. I, 57. Specifically,
Defendants asserted that: (1) Plaintiffs’ design defect claims must be accompanied by
expert testimony, and (2) in this situation, Plaintiffs could not rely on the indeterminate
4
Defendant Quality Plating moved for summary judgment on grounds distinct from
Defendants Brighton Best, Porteous Fastener, Uintah Fastener & Supply, Petzl
Corporation, Petzl America, and Bailey’s Corporation. District Court ECF No. 183
(Def. Quality Mot. for Summary Judgment); District ECF No. 326-19, 327, 328, 329,
336 (All Other Def. Mot. for Summary Judgment); see also Appx. I, 42 (discussing
Quality Plating seeking summary judgment because it was not a manufacturer,
seller, or distributor, in addition to a lack of expert testimony) and Appx. I, 57
(discussing the grounds above filed in motions for summary judgment from the
remaining defendants). Nevertheless, on appeal in this Court, Quality Plating adopted
the opposition briefs of all other Appellees and did not submit its own brief. ECF. No.
76 (Letter from Quality Plating). The briefs of all other Appellees do not address the
separate and distinct grounds for which the District Court granted summary judgment to
Quality Plating. District Court ECF No. 337 at 11 n.4; Appx. I, 47. As will be
discussed, at least one ground for which the District Court granted summary judgment—
the lack of an expert witness—applies to all Appellees. Therefore, although in substance
this opinion will discuss the relevant parts of the Brighton Best, Porteous Fastener,
Uintah Fastener & Supply, Petzl Corporation, Petzl America, and Bailey’s Corporation
filings, the analysis applies to all Defendants, including Quality Plating.
4
product defect test. Id. The Magistrate Judge and District Court agreed with Defendants.
Appx. I, 37, 51; 52–53; 75–76; 77–78; 79–85. The District Court granted summary
judgment. Appx. I, 77–85. This appeal followed. Appx. I, 88; see also District Court
ECF. No. 354.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1332.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a grant of summary judgment, and we apply the
same legal standards as the District Court. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir.
2019). A court may grant summary judgment when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A fact is material for Rule 56 purposes if its “existence or nonexistence might
impact the outcome of the suit” under the governing law. Santini v. Fuentes, 795 F.3d
410, 416 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). We “‘may affirm the District Court[’s order granting summary judgment] on
any grounds supported by the record.’” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir.
2009) (quoting Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000)).
We review a trial court’s decision to admit or exclude expert testimony for an
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997); see also
Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). A district
court abuses its discretion to admit or exclude expert testimony “only when the decision
‘rests upon a clearly erroneous finding of fact, an errant conclusion of law[,] or an
5
improper application of law to fact.’” Schneider, 320 F.3d at 404 (quoting Oddi v. Ford
Motor Co., 234 F.3d 136, 146 (3d Cir. 2000)).
IV. DISCUSSION
On appeal, although Plaintiffs raise several issues, the presence or absence of an
expert witness effectively narrows the issues we must resolve to two. 5 First, whether
Plaintiffs’ various products liability claims require expert testimony. Second, whether
the District Court abused its discretion when it excluded Plaintiffs’ expert witness.6
a. Plaintiffs’ Product Defect Theories Require Expert Testimony.
Plaintiffs asserted three theories of liability under the NJPLA—design defect,
indeterminate product defect, and failure to warn. Under the facts presented, each of
these theories requires expert testimony under New Jersey law.
i. Design Defect
In relevant part, the NJPLA provides that a product’s design can give rise to
liability for “[a] manufacturer or seller of a product . . . [if,] by a preponderance of the
evidence . . . the product causing the harm . . . was designed in a defective manner.” N.J.
5
Plaintiffs raise five issues covering: (1) the appropriateness of excluding their expert,
(2) whether res ipsa loquitor could apply to the broken bolt, (3) whether Defendants are
sellers, (4) whether the bolt is a complex instrumentality, and (5) whether the District
Court should have allowed them to pursue their failure to warn claim. Appellant’s Br.
at 1–2.
6
Because we dispose of the appeal based on the lack of expert testimony, we need not
address whether Defendants are sellers and therefore strictly liable under New Jersey law.
See Hector v. Watt, 235 F.3d 154, 161 (3d Cir. 2000) (explaining that because “we have
other, sufficient grounds for resolving this case, we will not reach” a particular issue also
on appeal).
6
Stat. Ann. 2A:58C–2. Proving a defect first entails establishing that the product was
defective (i.e., that a product was “not reasonably fit, suitable, or safe for the ordinary or
foreseeable purpose for which it [was] sold.”). Myrlak v. Port Authority of N.Y and N. J.,
723 A.2d 45, 52 (N.J. 1999) (citing Waterson v. Gen. Motors Co., 544 A.2d 357, 372
(N.J. 1988)); see also N.J. Stat. Ann. 2A:58C–2. Next, a plaintiff must show that the
defect existed when it left the control of the manufacturer; proximately caused the harm
alleged; and that the plaintiff was an intended or reasonably foreseeable user. Lauder v.
Teaneck Vol. Ambulance Corps, 845 A.2d 1271, 1277 (N.J. Super. Ct. App. Div. 2004).
To overcome the first hurdle, New Jersey law allows a party to employ direct or
circumstantial evidence. Scanlon v. Gen. Motors Corp., Chevrolet Motor Div., 326 A.2d
673, 677–78 (N.J. 1974). A party using direct evidence may rely on expert testimony.
Id. at 678. Circumstantial evidence, by contrast, can be acceptable when a plaintiff
shows that an accident occurred plus “proof of proper use, handling[,] or operation of the
product[,] and the nature of the malfunction . . . .” Id. at 677. Ordinarily, when a
plaintiff chooses to use circumstantial evidence “proof of proper use, handling or
operation of the product[,] and the nature of the malfunction, may be enough to satisfy
the requirement that something is wrong with [the product].” Id. But, where a factfinder
must employ “scientific, technical, or other specialized knowledge” use of expert
testimony is required. Jerista v. Murray, 883 A.2d 350, 364 (N.J. 2005).
Here, Plaintiffs initially secured the assistance of a metallurgical and material
sciences expert. Appx. I, 10–34; see also Appx. II, 155–63. This expert produced a
report that concluded, in part, that the bolt in question contained two design defects and
7
one manufacturing defect. Appx. I, 13; see also Appx. II, 162. Defendants moved to
strike Plaintiffs’ expert report, because it failed to satisfy Federal Rule of Evidence 702
and Daubert. Appx. I, at 14; see generally id. at 10–34. The Magistrate Judge granted
the motion, Appx. I, 10–34, and the District Judge affirmed the ruling, Appx. I, 35–36.
When Defendants later sought summary judgment, the Magistrate Judge found that the
bolt in question was a “complex instrumentality,” which required Plaintiffs “to provide
expert testimony to assist the trier of fact.” App. I, 61; see generally id., 61–67. Because
the District Court had previously stricken Plaintiffs’ expert report, the Magistrate Judge
concluded that Plaintiffs, without the expert report, could not establish that the bolt was
defective. See generally Appx. I, 52–76. The District Court affirmed. Id. at 77–85.
On appeal, Plaintiffs argue that the decision below erroneously classified the bolt
as a complex instrumentality that would require the use of expert testimony. Appellant’s
Br. at 21–24. Plaintiffs appeal only the determination that the bolt was a complex
instrumentality. Id. They do not contest that “where the allegedly defective product
involves a complex instrumentality, a plaintiff is required to provide expert testimony to
assist the trier of fact.” 7 App. I, 61. However, this statement of the law—what New
Jersey law requires in complex instrumentality cases—is where we should start.
7
Because Plaintiffs do not challenge the statement that “where the allegedly defective
product involves a complex instrumentality, a plaintiff is required to provide expert
testimony to assist the trier of fact . . .,” App. I, 61, they apparently concede this
statement of law. See also App. I, 42 (“[P]laintiff’s counsel agreed with the Court’s
statement that, ‘without an expert, [he] can’t pursue that theory.’” (second alteration in
original)).
8
The Supreme Court of New Jersey has spoken definitively regarding the issue at
hand. In Jerista v. Murray, the state’s highest court explicitly overruled an earlier
Appellate Division ruling that improperly read prior state supreme court decisions as: (1)
requiring expert testimony in cases involving complex instrumentalities, and (2) making
res ipsa loquitor unavailable without such testimony. 883 A.2d 350, 363–64 (N.J. 2005)
(overruling Jimenez v. GNOC, Corp., 670 A.2d 24 (N.J. Super. Ct. App. Div. 1996)).
Instead, the Supreme Court of New Jersey explained that “[t]he question is not whether
the instrumentality at issue is complex or simple, but whether based on common
knowledge the balance of probabilities favors negligence, thus rendering fair the drawing
of a res ipsa inference.” Id. at 364 (citing Buckelew v. Grossbard, 435 A.2d 1150, 1157–
59 (N.J. 1981)). In other words, the Supreme Court of New Jersey has “reject[ed] any
reading of [its precedent] that imposes a categorical expert testimony requirement when a
complex instrumentality within the exclusive control of the defendant causes an injury.”
Id.On the other hand, the Supreme Court of New Jersey has specified a circumstance
that does require expert testimony: “Only when the res ipsa inference falls outside of the
common knowledge of the factfinder and depends on scientific, technical, or other
specialized knowledge is expert testimony required.” Id. at 364 (citing Buckelew, 435
A.2d 1157–59). Plaintiffs here contend that the bolt in question “is simple, not complex,”
because a juror can “understand the function of a bolt, or whether a bolt is supposed to
break.” Appellant’s Br. at 24. This contention, though, ignores important wrinkles that
the underlying facts add to the inquiry.
9
How a court is to determine what a factfinder can understand without the
assistance of expert testimony is based on what falls “within the common knowledge of
the average juror.” United States v. Davis, 397 F.3d 173, 179 (3d Cir. 2005); see also
McDaid v. Aztec W. Condo. Ass’n., 189 A.3d 321, 331 (N.J. 2018) (citing Jerista, 883
A.2d at 364–65) (stating likewise that what a factfinder can be expected to understand
without expert testimony that which is “common knowledge of judges and jurors”).
Despite Plaintiffs arguing that the alleged defect involved a simple bolt, the bolt was a
component part of the micrograb. The average juror, even assuming some familiarity
with micrograbs, is unlikely to understand, among other things, the engineering design
considerations; metallurgical aspects of plating the bolt; or the principles of physics at
work on the bolt when in use. Thus, understanding the functions of the bolt and
micrograb—both in general and surrounding the incident—“fall[] outside of the common
knowledge of [a] factfinder,” and would necessitate “depend[ence] on scientific,
technical, or other specialized knowledge.” Jerista, 883 A.2d at 364.
Accordingly, the District Court properly concluded that expert testimony was
required.
ii. Indeterminate Product Defect
In support of their design defect claims, Plaintiffs next contend that the
indeterminate product defect test—a res ipsa loquitor–type inference—permits the case
10
to continue without the use of an expert.8 Here, the nature of the micrograb at issue and
the underlying facts also bar the application of this alternative test.
Although a traditional res ipsa loquitor jury charge cannot be used in a strict
products liability case, the Supreme Court of New Jersey has made available an
indeterminate product defect test in its stead. Myrlak, 723 A.2d at 48. The indeterminate
product defect test “is limited to those product liability cases in which the plaintiff cannot
prove a specific defect.” Id. at 56. Under this test, adopted from the Restatement (Third)
of Torts:
It may be inferred that the harm sustained by the plaintiff was
caused by a product defect existing at the time of sale or
distribution, without proof of a specific defect, when the
incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of a
product defect; and
(b) was not, in the particular case, solely the result of causes
other than product defect existing at the time of sale or
distribution.
Id. at 55 (quoting Restatement (Third) of Torts § 3 (Am. L. Inst. 1998)). Generally, when
a plaintiff relies on such a test, the use of expert testimony is not required. Jerista, 883
8
Traditional res ipsa loquitor requires there to be: (1) an accident that would not
ordinarily occur without negligence, (2) the instrumentality causing the harm to have
been in the exclusive control of the defendant, and (3) the injured person to have not
caused any part of the accident. Tormenia v. First Invs. Realty Co., 251 F.3d 128, 136
(3d Cir. 2000) (quoting Eaton v. Eaton, 575 A.2d 858, 863 (N.J. 1990)). New Jersey’s
indeterminate product defect test resembles res ipsa loquitor. The test allows for the
inference of liability to be drawn when, among other requirements, the type of harm
suffered would ordinarily occur as a result of a product defect, and the alleged defect
could have been the only cause of the harm. Myrlak, 723 A.2d at 56 (citing Jonathan M.
Hoffman, Res Ipsa Loquitur and Indeterminate Product Defects: If They Speak for
Themselves, What Are They Saying?, 36 S. TEX. L. REV., 353, 356 (1995)).
11
A.2d at 364. But, “when the res ipsa inference falls outside of the common knowledge of
the factfinder and depends on scientific, technical, or other specialized knowledge . . .
expert testimony [is] required.” Id.
For the same reasons that Plaintiffs’ design defect theory fails, their indeterminate
product defect theory also fails. Because of the particular facts in this situation, the
knowledge needed to understand the function of the bolt and micrograb falls outside of a
factfinder’s common knowledge. Thus, the necessary understanding would require
“depend[ence] on scientific, technical, or other specialized knowledge” (i.e., expert
testimony) to determine whether the device was defective and caused the harm alleged.
Id. at 364.
The District Court likewise did not err when it granted summary judgment for lack
of an expert witness as to this theory.
iii. Failure to Warn
In briefs in opposition to the motions for summary judgment, Plaintiffs raised for
the first time a failure to warn claim. Appx. I, 68; see also District Court ECF No. 209
at 5, District Court ECF. No. 331 at 5. They asserted that misuse of the device was
foreseeable. See generally District Court ECF No. 331. Further, because Defendants
failed to warn of the dangers of disassembling the device and provided an Allen wrench
with the flip-line kit, Plaintiff Kuhar disassembled the micrograb and incorrectly
reassembled it. Appx. I, 68; see also District Court ECF No. 331 at 4-5.
Consequently, doing so subjected the bolt to large amounts of stress where it was not
12
intended to sustain such stress. Appx. I, 68; see also District Court ECF No. 331 at 4-
5.
As a threshold matter, Plaintiffs forfeited their failure to warn argument. Barna v.
Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146–47 (3d Cir. 2017)
(citations omitted). The Magistrate Judge’s Report and Recommendation noted that
Plaintiffs conceded that they raised the failure to warn argument for the first time in their
brief in opposition to the motion for summary judgment. Appx. I, 57, 69. On appeal,
Plaintiffs argue that the District Court erred when it failed to consider this claim because
of its late entry. Appellant’s Br. at 24-25. There is no error. Garza v. Citigroup, Inc.,
881 F.3d 277, 284–85 (3d Cir. 2018) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993)) (“‘[W]here an issue is raised for the first time in a reply brief, we deem it
insufficiently preserved for review before this [C]ourt.” (first alteration in original)).
Because Plaintiffs raised it solely in their brief in opposition, they “[f]ail[ed] to make the
timely assertion of a right.” Barna, 877 F.3d at 147 (quoting United States v. Olano, 507
U.S. 725, 733 (1993)). Therefore, the District Court did not err when it declined to
consider the failure to warn argument.
b. The District Court Did Not Abuse Its Discretion When It Excluded
Plaintiffs’ Expert.
Plaintiffs retained an expert to “determine the probable cause of the [alleged]
failure of the bolt in the micrograb device.” App. II, 156. Plaintiffs’ expert produced a
report, but Defendants successfully challenged this report based on its lack of reliability
13
and fit. Appx. I, 17; see generally id. at 10–34. We now review the critical decision to
strike Plaintiffs’ expert report.
A trial court’s decision to admit or exclude evidence is a matter of discretion;
review of the decision is “narrow” and we will deem a decision to be an abuse of
discretion “only when the decision rests upon a clearly erroneous finding of fact, an
errant conclusion of law[,] or an improper application of law to fact.” UGI Sunbury LLC
v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 831 (3d Cir. 2020) (quoting
Schneider, 320 F.3d at 404). Here, Defendants moved to strike Plaintiffs’ expert report
based on Federal Rule of Evidence 702 and Daubert, which impose “gatekeeping
obligation[s]” on trial courts. Appx. I, 14; UGI Sunbury, 949 F.3d at 832.
Under Federal Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(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 methods; and (d) the
expert has reliably applied the principles and methods to the facts of the
case.
We have described Rule 702 as a “‘trilogy of restrictions on expert testimony:
qualification, reliability[,] and fit.’” Calhoun v. Yamaha Motor Corp., USA, 350 F.3d
316, 321 (3d Cir. 2003) (quoting Schneider, 320 F.3d at 404). Because Defendants
challenged Plaintiffs’ expert report based on reliability and fit, we turn our analysis to
these requirements.
14
i. Reliability
Under Daubert, reliability compels “the expert’s opinion . . . [to] be based on the
‘methods and procedures of science’ rather than on ‘subjective belief or unsupported
speculation’; [sic] the expert must have ‘good grounds’ for his or her belief.” In re Paoli
R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) (quoting Daubert, 509 U.S. at
590). Reliability also ensures that there is a sufficient connection between “‘conclusions
and methodology.’” Oddi, 234 F.3d at 146 (quoting Joiner, 522 U.S. at 146). To that
end, the standard prohibits “‘too great a gap between the data and the opinion proffered.’”
Id. (quoting Joiner, 522 U.S. at 146).
Courts, nonetheless, do not look for whether “‘a particular scientific opinion has
the best foundation, or even whether the opinion is supported by the best methodology or
unassailable research.’” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 81 (3d Cir.
2017) (quoting In re TMI Litig., 193 F.3d 613, 665 (3d Cir. 1999), amended, 199 F.3d
158 (3d Cir. 2000)). Instead, courts “look[] to whether the expert’s testimony is
supported by ‘good grounds.’” Id. (quoting In re TMI Litig., 193 F.3d at 665). We have
clarified that “good grounds” may include:
(1) whether a method consists of a testable hypothesis; (2) whether the
method has been subject to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally accepted; (6) the
relationship of the technique to methods which have been established to be
reliable; (7) the qualifications of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which the method has been
put.
UGI Sunbury, 949 F.3d at 834 (citations omitted).
15
Here, The Magistrate Judge identified ten opinions expressed by Plaintiffs’
expert.9 Appx. I, 13–14. The Magistrate Judge determined that these opinions were
either net opinions or otherwise unreliable, and provided detailed explanations for each of
these findings. Id. at 10–34.
The “net opinion rule” prohibits expert testimony “if the court concludes that an
opinion based upon particular facts cannot be grounded upon those facts . . . [or] is based
on speculation or conjecture.” Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75
(3d Cir. 1996). The Magistrate Judge determined that opinions 1, 3, 5, and 7 were
9
The District Court later affirmed the Magistrate Judge’s order striking Plaintiffs’ expert.
Appx. I, 35–36; see also District Court ECF No. 322. For purposes of this section, we
will refer to only the Magistrate Judge’s decision, although technically our review is of
the District Court’s order. The opinions listed in the report and identified by the
Magistrate Judge were:
1. The bolt failed by high cycle low stress fatigue failure, followed by final
overload failure.
2. The failure location was at a notch in the bolt shank profile created by a
sharp reduction in the bolt diameter.
3. The sharp profile change at the failure initiation site was a design defect.
4. Sharp threads on the bolt at the crack initiation site were a design defect.
5. Machining grooves on the bolt further concentrating the stress at the failure
initiation site.
6. Machining grooves were a manufacturing defect.
7. The bolt would not have failed on December 24, 2013 if the design and/or
manufacturing defects were not present.
8. Bailey’s choose [sic] an improper rope to include in the micrograb kit.
9. I hold the above opinions to a reliable degree of metallurgical and
engineering certainty.
10. I reserve the right to modify, change or supplement my opinions if
additional information becomes available to me.
App. I, 13–14.
16
impermissible “net opinion[s]” and provided reasoning to support these conclusions.
Appx. I, 19, 22, 27, 28, and 30. For instance, the Magistrate Judge explained that
opinions 1 and 5 were impermissible net opinions about the stress on the bolt, because
there were “no quantitative data or quantifiable testing results to support the [opinions].”
App. I, 19. This conclusion is well grounded. As the Magistrate Judge explained,
Plaintiffs’ expert report stated that “low stress fatigue failure” and “final overload
fracture” caused the bolt to break. App. I, 20. But the report failed to define those terms
or provide quantitative analysis elucidating how the expert reached these conclusions.
App. I, 20–21. Similarly, for opinion 3, the expert’s opinion “omit[ted] the ‘why and
wherefore,’” App. I, 22, and contained “an inherent conflict between [the expert]’s
examination of the bolt and his ultimate conclusions relating to design defects,” id. at 25.
Therefore, because the report lacked coherent detail about how the expert arrived
at his opinions, it was not error to conclude that opinions such as these were
impermissible “net opinions.”10
The Magistrate Judge also had reason to conclude that opinions 2, 3, 4, 6, and 8
were “not reliable.”11 Appx. I, 21, 22, 28–29, and 30–31. For instance, the Magistrate
10
The Magistrate Judge held that opinion 7 was an improper net opinion because it
“incorporate[d] by reference the previously stricken opinions.” App. I, 30.
11
The Magistrate Judge noted that opinions 9 and 10 were not relevant to the Daubert
analysis. Appx. I, 33. Opinions 9 and 10, as republished in footnote 9, supra, state only
that the expert believed opinions 1-8 were reliable to a “reasonable degree of
metallurgical and engineering certainty,” and that he “reserved the right to modify,
change or supplement [his] opinions if additional information becomes available to
[him].” App. I, 13-14. We agree that these statements have no bearing on the analysis,
17
Judge explained that although in opinion 2 the expert concluded that “the failure location
was at a notch in the bold shank created by a sharp reduction in the bolt diameter,” his
opinion similarly failed to define key terms (i.e., “‘notch,’” “’shank,’” and “what
constitutes a ‘sharp reduction.’”). App. I, 21–22. Further, when comparing the bolt from
the allegedly defective device to an exemplar bolt, the expert did not measure the location
of the fracture on the subject bolt. Appx. I, 22. Instead, he simply stated that the subject
bolt “‘appears to have a similar reduced cross section at this location.’” App. I, 22. For
this and other opinions, the Magistrate Judge did not incorrectly conclude that the
expert’s opinions were more akin to “‘subjective belief or unsupported speculation” than
to determinations fully “based on the [expert’s use of] ‘methods and procedures of
science’.”12 In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742 (quoting Daubert, 509 U.S.
at 590); see also App. I, 22. Finally, in large measure, the indicators we recently
because they do not assert a specific viewpoint as to the cause of the alleged defect.
Hence, we shall not consider opinions 9 and 10 in our analysis.
12
A summary of reasons that opinions 3, 4, 6, and 8 were unreliable include:
1. Opinion 3 – The expert did not provide a reasonable alternative design, conduct a
risk-utility analysis of the bolt’s design, or negate other causes of the facture.
App. I, 24.
2. Opinion 4 – The expert “critique[d] the bolt’s ‘sharp profile change,’” but he did
not measure that area. App. I, 28. He also did not explain why the “‘sharp
threads’” were a design defect. Id.
3. Opinion 6 – The expert failed to lay the proper foundation for his opinion. App. I,
29.
4. Opinion 8 – The expert provided only a “terse account of the harness’[s]
assembly.” App. I, 31. The expert also did not explain “what constitutes an
‘improper rope,’” or “‘an alternative rope.’” Id.
18
espoused in UGI Sunbury are not present in the expert’s report.13 UGI Sunbury, 949 F.3d
at 834 (citations omitted) (explaining what courts look for to support “good grounds” for
a conclusion).
In sum, the report lacked evidence of the necessary “good grounds” for reaching
the conclusions expressed, and it was not improper for the court to determine that the
opinions were unreliable. Daubert, 509 U.S. at 590 (internal quotation marks omitted).
ii. Fit
Next, we turn to whether Plaintiffs’ expert report fit, that is, whether the expert’s
opinions would “help the trier of fact to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702(a); see also Karlo, 849 F.3d at 81. This requirement “goes
primarily to relevance.” Daubert, 509 U.S. at 591.
Manufacturing and design defect claims require showing that the allegedly
defective item “deviated from the design specifications, formulae, or performance
standards of the manufacturer or from otherwise identical units manufactured to the same
manufacturing specifications or formulae . . . [or] was designed in a defective manner.”
N.J. Stat. Ann. 2A:58C–2. The Magistrate Judge concluded that the expert’s “report and
the opinions contained therein leave too large a gap between the data presented and the
conclusions rendered, and consequently, it fails to satisfy Daubert’s . . . fit requirements.”
13
The expert’s qualifications are generally not contested. App. I, 14 (“For the most part,
defendants do not challenge [the expert’s] qualifications . . . .”). UGI Sunbury lists “the
qualifications of the expert witness testifying based on the methodology” as a factor that
courts are to consider when determining whether an expert’s testimony rests on good
grounds. UGI Sunbury, 949 F.3d at 834 (citation omitted). However, “no one [factor] is
dispositive.” Id. (citations omitted).
19
App. I, 19. Without coherent evidence and definitive judgments, it is difficult for us to
conclude that the expert’s opinions could help a trier fact “to determine a fact in issue.”
Fed. R. Evid. 702(a).
For instance, the expert report discusses an “apparent” “extreme deformation
during final shear fracture” of the bolt (i.e., a manufacturing defect). App. II, 159. Yet,
the report also states that grooves were “virtually identical” to an “exemplar bolt.” Id.
Moreover, even though “these measurements are close to specification values” the expert
was “unclear” about the “specified tolerance” of the bolt. Id. If, after his examinations,
the expert was “unclear” about the tolerance level of the bolt, then the reported
information would not “help the trier of fact to understand the evidence.” Fed. R. Evid.
702(a).
Taken together, given the gaps in the expert’s report, we cannot say that the
decision to exclude the report “rest[ed] upon a clearly erroneous finding of fact, an errant
conclusion of law[,] or an improper application of law to fact.” UGI Sunbury LLC, 949
F.3d at 831. Therefore, Plaintiffs’ expert report was properly excluded.
V. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment.
20