Strobert Tree Servies, Inc. v. Kenneth Lilly Fasteners, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STROBERT TREE SERVICES, INC, )
)
Plaintiff, )
)
v. )
) C.A. No. N14C-09-081 CLS
KENNETH LILLY FASTENERS, )
INC., )
)
Defendant. )
)
)
Date Submitted: July 19, 2018
Date Decided: October 16, 2018
On Defendant Kenneth Lilly Fastener’s
Motion in Limine to Strike Plaintiff’s Expert Report.
Granted.
George T. Lees,III, Esquire, Logan & Petrone, LLC, 100 West Commons Blvd.,
Suite 435, New Castle, Delaware, 19720. Attorney for Plaintiff.
David Baumberger, Esquire, Chrissinger & Baumberger, 3 Mill Road, Suite 301,
Wilmington, Delaware, 19806. Attorney for Defendant.
Scott, J.
Facts
Strobert Tree Services, Inc. (“Plaintiff”) claims breach of contract, breach of
express warranty, and breach of implied warranty of merchantability against
Kenneth Lilly Fasteners, Inc. (“Defendant”). Plaintiff and Defendant entered into an
agreement where the Defendant was to supply 1,000 locknuts and bolts to Plaintiff
for use in Plaintiff’s Peterson 6710B Grinder (hereinafter “grinder”).
Plaintiff uses this stump grinder during land clearing operations. Plaintiff
contends that due to the high temperatures generated by the grinder and severe
vibrations, a lock nut and bolt system must be used as opposed to a normal nut and
bolt system. Plaintiff purchased the nuts in batches of 1000 from Defendant in a prior
exchange. Plaintiff claims that the 2013 batch is at issue in the case sub judice.
Plaintiff plead that the locknuts and bolts were repeatedly re-installed due to
the locknuts continuously failing and shearing off of the old bolts. Plaintiff contacted
Defendant regarding this failure. Subsequently Defendant sent out a representative
to inspect the materials. Plaintiff alleges that the Defendant’s representative
determined that the locknuts were defective. Subsequently Defendant replaced the
1,000 locknuts and bolts at no charge. Defendant’s personnel told Plaintiff that that
they should not be using an impact wrench to install the nuts because this application
method destroys the waxy lubricant on the nut.1 Prior to this conversation the teeth
1
See Dr. Pope’s Expert Report, page 1.
2
on the grinder were installed using an air driven impact wrench. The fasteners
allegedly always held and the teeth never detached from the drum when Plaintiff
used this method.2 Plaintiff’s personnel subsequently installed all nuts on the teeth
using a torque wrench, but the problem allegedly still existed.
Plaintiff had the mill drum assembly on the grinder removed and upon
inspection Plaintiff alleges that the drum was damaged beyond repair. Mr. Strobert
in his deposition stated that the 2013 batch was different than the previous batch
purchased from Defendant. In the 2013 batch he “could actually see the metal from
the nut just shearing off the threads.” Plaintiff alleges that Defendant distributed
defective locknuts and bolts (“2013 batch”) to Plaintiff which resulted in damage to
Plaintiff’s Peterson 6710B Grinder. Plaintiff claims that it purchased a new mill
drum rotor and expended $89, 481.15 in labor and materials to remove and replace
the drum rotor.
Dr. David Pope’s Report
Plaintiff retained David P. Pope, Ph.D. as an expert witness. Dr. Pope opined
that the failure of the locknuts and bolts resulted in irreparable damage to the drum
on the grinder. The drum of the grinder is a large rotating device that is 46 ½ inches
in diameter and 69 3/8 inches long. It weighs 16,000 pounds and has 24 replaceable
grinding teeth. Each of these teeth are attached to the perimeter of the drum with
2
See Dr. Pope’s Expert Report, page 2.
3
7/8” diameter and 7” long grade 8 bolts with washers and grade C prevailing torque
nuts. This drum rotates at 840 to 900 rpm and grinds large diameter logs. Dr. Pope
opined that the drum was damaged when fasteners failed; releasing grinding teeth,
which then damaged other parts of the drum.
Dr. Pope performed multiple tests on the batches provided by Plaintiff. His
goal was to determine if an impact wrench destroyed the lubricant which damaged
the threads. Only one unused nut from the 2013 batch was provided to Dr. Pope for
testing. Dr. Pope did not test the one unused nut in the formulation of his report.
Defendant states they are still in possession of the remainder of the 2013 batch, and
have offered Plaintiff the opportunity to test the remaining pieces. Plaintiff however,
has not done so.
The Parties’ Contentions Regarding the Motion in Limine
Defendant filed a motion in limine to strike Plaintiff’s Expert Report by Dr.
Pope. Defendant argues that Dr. Pope’s report is not relevant, reliable, and it would
mislead the jury. Defendant argues that Dr. Pope’s report is not relevant for a few
reasons. First, Defendant contends that Dr. Pope’s findings are not directly related
to the damages alleged in the complaint. Second, Defendant alleges that the bolts
Dr. Pope tested were plain finish bolts, while Plaintiff used plated parts. They argue
that because Dr. Pope was unable to reproduce thread failures alleged by Plaintiff,
and because he did not test the 2013 batch, his report is not relevant. Defendant also
4
argues that the report is unreliable because his conclusions are based on the 2013
batch even though he did not test the 2013 batch. Finally, Defendants argue that if
the report is admitted it will confuse the jury due to Dr. Pope’s expert status.
Plaintiff argues that Defendant’s Motion is incorrect for two reasons. First,
Plaintiff contends that Dr. Pope did in fact perform tests on the 2012 and the 2013
shipment in Test Series III. Plaintiff contends that the nuts performed as required in
both batches. Plaintiff claims that Defendant did not request nor conduct a deposition
of Dr. Pope, nor the inspection of materials tested by Dr. Pope. Plaintiff claims that
this would have cured the error in Defendant’s brief, and they would have noticed
that the cap screws from 2013, as well as 2012, were tested without failure.
Relevant Law
Expert opinion testimony is governed by Delaware Rule of Evidence 702
which states that:
If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of
the case.3
3
Tumlinson v. Advanced Micro Devices, Inc., 2013 WL 7084888, at *2 (Del. Super.
2013), aff'd, 81 A.3d 1264 (Del. 2013)(citing D.R.E. 702).
5
The trial judge acts as a “gatekeeper” to determine “whether the proffered evidence
is both relevant and reliable.”4 The relevancy prong requires that “the evidence
relates to an issue and it will aid the fact finder.”5 For evidence to be reliable, the
“testimony must be supported by appropriate validation—i.e., ‘good grounds,’ based
on what is known.”6 An “inference or assertion must be derived by the scientific
method.”7 The “nonexclusive criteria for determining reliability include: (1) whether
the expert's theory has or can be tested; (2) whether the theory has been subject to
peer review; (3) the known or potential error rate associated with the theory; and (4)
the extent to which the theory has been generally accepted in the scientific
community.”8
Analysis
Dr. Pope’s report is not relevant. The relevancy prong requires that the
evidence relates to an issue to aid the fact finder. However, Dr. Pope’s report will
not aid the fact finder. Dr. Pope did not perform a test related to the type of damage
alleged in the Complaint. Rather, he tested the locknuts to see if damage from driving
the nuts on the bolts from an impact or torque wrench would destroy the lubricant
4
Tumlinson, 2013 WL 7084888 at *2 (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)).
5
Id.
6
Id.
7
Id.
8
Id.
6
and damage the threads. Because he was unable to recreate the damage seen by the
Plaintiff, Dr. Pope concluded that the damage was probably due to defective nuts in
the 2013 batch. However, this conclusion is more speculative than scientific as Dr.
Pope states none of his tests involved nuts from the 2013 batch alleged to be
defective.9
Dr. Pope’s conclusion, that the nuts failed because they were defective, is not
based on his testing and observations. This conclusion fails to meet the first test for
reliability that expert's theory has or can be tested. Defendant states the 2013 batch
of nuts has been available to Plaintiff for further examination and testing. Dr. Pope
completed no further testing on the remaining nuts. Dr. Pope cannot reach the
conclusion that the batch of nuts is defective without having tested any of the batch.
Admitting Dr. Pope’s report could mislead the jury into believing that the 2013 batch
was defective. The report will not be admitted.
For the forgoing reasons, Defendant’s Motion in Limine to Strike Plaintiff’s
Expert Report is GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
9
See Dr. Pope’s Expert Report, page 5
7