Young v. Pleasant Valley School Dist., No. 07-cv-854 (M.D. Pa. Aug. 20, 2011)

The Court denied Plaintiff’s motion to compel Defendants’ expert Dr. Edward Dragan to answer questions regarding his annual earnings for testifying as an expert. Defendants had disclosed the amount of Dr. Dragan’s compensation for testifying in the case, a list of cases in which Dr. Dragan had testified in the past several years, and Dr. Dragan testified that approximately fifty percent of his expert testimony is provided on behalf of plaintiffs and fifty percent is provided on behalf of defendants. The Court found that Plaintiffs had not shown that an answer to their question would support a finding of bias. The Court noted that Dr. Dragan does not testify primarily on behalf of one type of litigant. The Court also found that the question at issue was needlessly intrusive, especially in light of the information’s marginal relevance.

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Northwest Savings Bank and Financial Services v. NS First Street, LLC, No. 09-cv-1416 (M.D. Pa. Dec. 13, 2011)

Nine days before trial was set to begin, Defendants NS First Street LLC and 2200 South Atherton Street LLC submitted a “trial memorandum” arguing that the testimony of Plaintiff’s proposed expert, Kelly Besaw, was inadmissible under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The memorandum was devoted exclusively to a challenge to the testimony of Plaintiff’s expert. Thus, the Court construed the trial memorandum as a motion in limine. Because Plaintiff had provided Defendants with Mr. Besaw’s expert report more than a year earlier, and because Defendants did not file a motion in limine within the deadline for filing such motions, the Court struck the memorandum as an untimely motion in limine.

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Nationwide Mut. Ins. Co. v. National RV Holdings, Inc., No. 05-cv-2509 (M.D. Pa. March 28, 2007)

The Court denied Defendant Freightliner Custom Chassis Corp.’s (“FCCC”) motion to exclude the expert opinion of Dr. Mignogno, pursuant to Federal Rule of Evidence 702 and in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and denied Plaintiff Nationwide’s motion to exclude the expert testimony of W.L. Davison, pursaunt to Rule 702 and Daubert. The dispute arose out of a fire in a motor home, and the key issue in dispute was the cause of the fire.

First, the Court considered FCCC’s motion to exclude the testimony of Nationwide’s origin-and-cause expert witness, Dr. Mignogno. In his expert report, Mignogno drew several major conclusions: (1) that the fire originated in the right rear corner of the vehicle; (2) that the vehicle’s components (including electrical, heating, and refrigeration components) did not cause the fire; (3) that a hole existed in the flexible exhaust pipe before the fire occurred; (4) that “[t]he hole in the flexible exhaust pipe . . . allowed hot exhaust gasses to contact combustibles in the area, which ignited the combustibles, causing this event”; and (5) that a “flexible exhaust pipe should not have been used in this area. Instead a pre-bent exhaust pipe should have been used.” FCCC objected on various grounds to Mignogno’s third, fourth, and fifth conclusions.

The Court held that Mignogno was qualified to testify that a hole existed in the flexible exhaust pipe before the fire occurred, as the relevant field was fire investigation, rather than metallurgy and material science. However, with respect to Mignogno’s opinion that a pre-bent pipe should have been used, the Court reserved ruling, finding that Mignogno’s qualifications with respect to comparing rigid tubing to flexible tubing were unclear. Next, the Court held that Mignogno’s opinion that the hole in the flexible exhaust pipe allowed hot gasses to contact combustible in the area was sufficiently reliable, as the opinion was based on the methodology set forth in NFPA 921, which is widely accepted as reliable.

Next, the Court considered Nationwide’s motion to exclude testimony offered by National RV Holdings’ expert witness, W.L. Davison. Nationwide’s argument rested primarily on its assertion that Davison did not conduct a sufficiently thorough investigation of the motor home before reaching his conclusions. Nationwide also suggested that Davison’s testimony was unreliable because he neither conducted a complete investigation pursuant to the guidelines set forth in NFPA 921 nor attempted to determine the cause of the fire himself. However, the Court held that, because National RV Holdings intended to call Davison for the sole purpose of rebutting Mignogno’s testimony, not to advance a different causation theory, Nationwide bore the burden of proof to identify the cause of the fire, and that Davison’s methodology was sufficiently reliable.

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United States v. Williams, No. 05-cr-443 (M.D. Pa. Oct. 19, 2007)

The Court granted in part and denied in part Defendants Terrance Williams and Eric Hayes’ motion to exclude the expert testimony of Dr. Sharon W. Cooper pursuant to, inter alia, Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Defendants Terrance Williams and Eric Hayes and fourteen other individuals were named in a thirty-two count indictment alleging a multi-year, nationwide conspiracy to engage in the interstate sex trafficking of women, including juveniles. As part of its case-in-chief, the Government proposed to call Dr. Sharon W. Cooper as an expert witness to offer opinion testimony in three general areas: (1) the societal and criminal justice implications of prostitution and the sexual exploitation of women; (2) the medical and mental-health aspects of prostitution, including general testimony on victim risk and vulnerability factors and on common methods of grooming and deterrents to escape; (3) and the medical and mental-health impact that life as a prostitute had on certain women involved in this case.

First, the Court found that the first category of evidence that the Government intended to offer through Dr. Cooper – evidence about the societal and criminal justice implications of prostitution – was inadmissible as a matter of law, as it was irrelevant under Federal Rule of Evidence 401.

Next, the Court considered Dr. Cooper opinions regarding: (1) the medical and mental-health aspects of commercial sexual exploitation of women and juveniles; and (2) the specific risk factors, medical conditions, and mental-health issues, if any, that are present in the women allegedly exploited as part of the interstate conspiracy charged in the superseding indictment.

Based on the Court’s review of Dr. Cooper’s educational background, professional experience, and academic credentials, the Court found that Dr. Cooper possessed the specialized knowledge to qualify her as an expert on the commercial sexual exploitation of adults and juveniles, as well as the medical and mental-health aspects of prostitution. The Court also found that Dr. Cooper’s proffered testimony met the Daubert requirement of reliability regarding the health aspects of prostitution, as she reached her conclusions based on review of facts that were generally accepted in the field. Next, the Court held that Dr. Cooper’s opinions related to the health aspects of prostitution met the “fit” requirement, as it was both relevant and would assist the trier of fact. The Court found that the background information Dr. Cooper could provide would assist the jury to understand the dynamics of exploitation, to explain why the women did not leave their pimps, and to generally demystify the relationship between pimp and prostitute.

The Court also found that Dr. Cooper’s proffered testimony about the medical and mental-health effects specific to the women involved in the alleged prostitution conspiracy failed to meet the Daubert standards, finding that her methodology was unreliable, in that she diagnosed the various women with physical and mental-health ailments based upon telephone conversations lasting approximately one hour, without reviewing the victim’s medical records. The Court also found that the medical and mental-health effects on the individual women were relevant to the charges being brought against Defendants Williams and Hayes, and did not satisfy the “fit” requirement.

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Steffy v. Home Depot, Inc., No. 1:06-CV-02227 (M.D. Pa. Dec. 10, 2008)

The Court granted in part and denied in part Defendants Patriot Timber Products and The Home Depot’s motion in limine to exclude the expert opinion testimony of Edward Montz Jr. and Weinstein Realty Advisors under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Plaintiffs Darrel and Susanne Steffy’s motion in limine, to exclude the reports and testimony of defense experts William Wheatley and E. Mitchell Swan.

The dispute arose from the sale of plywood to the Plaintiffs for construction of a multi-purpose building on their property in 2004. During construction of the building, the Plaintiffs alleged that they had purchased 400 sheets of plywood from one of Defendant Home Depot’s stores, used it to panel most of the interior walls in the building. Thereafter, Plaintiffs claim that they experienced adverse health effects after using the building, and eventually a “pungent, unpleasant” odor was noticed in the building. After tests were performed, the Plaintiffs determined that the odor was formaldehyde, which allegedly rendered the Building uninhabitable.

Plaintiffs’ expert Edward Montz Jr.’s expert report dealt with the formaldehyde concentrations in the Plaintiffs’ Building. After testing some of the sheets of plywood, Montz estimated a concentration of formaldehyde in the plywood when it was initially purchased. The Defendants challenged Montz’s conclusion that “[t]he chamber testing indicated that the 13-layer veneer plywood in the space was a potent source of formaldehyde.” Defendants secondly challenged Montz’s conclusion that the high concentrations of formaldehyde in the plywood “undoubtedly caused the elevated formaldehyde levels detected in the space.” Defendants challenged the methodology, arguing that Montz failed to account for potential alternative causes of formaldehyde in the air. The Court held that while the fact that Montz did not perform actual tests on other potential sources of formaldehyde might affect the weight of his conclusion, it did not make his methodology unreliable, and that Defendants could bring the potential weakness out on cross examination. The Court held that Montz’s methodology in reaching his conclusion that the plywood was a potent source of formaldehyde was reliable. With respect to Defendants second challenge, the Court held that Montz’s methodology in determining that the plywood was the cause of formaldehyde in the air was reliable, as Montz did consider other potential causes, though focusing on the plywood.

Next, Plaintiffs’ expert Elliot Weinstein offered an opinion on the value of the building. In order to determine the value of the building in the context of the property on which the building was situated, Weinstein used the cost approach and the sales comparison approach. Defendants admitted that Weinstein employed accepted models in reaching his valuation of the building, but argued that his appraisal did not satisfy the “fit” requirement of Rule 702 because he has not applied the methods reliably to the facts of the case. Because the building was apparently not zoned for commercial use, the Court found that Weinstein’s determination as to highest and best use, which was a commercial use, lacked adequate foundation and did not satisfy the “fit” requirement of admissibility. Because Weinstein’s highest and best use analysis was based on inadequate foundation, the Court also found that his sales comparison valuation was flawed. However, Weinstein’s cost approach did not rely on his “highest and best use as improved” determination or on his sales comparison valuation. The Court found that Weinstein’s use of the cost approach to value the premises was inappropriate.

Defendants’ expert William A. Wheatley’s report dealt with the design and construction of the building, concluding that residential use “was not the intent of the Building from its design and from its present configuration.” Wheatley ultimately concluded that the HVAC system provided for the building was inadequate to meet the building’s needs for fresh air, which in turn caused the formaldehyde released by the building materials to accumulate rather than to dissipate, and this in turn caused the symptoms experienced that were the subject of the complaint. Wheatley also identified several potential sources of formaldehyde beyond the plywood, such as the carpet, construction glues, and office furniture. The Plaintiffs contended that Wheatley’s opinions relied on faulty assumptions and were speculative and were therefore not helpful to the jury. The Court held that Wheatley’s assumption that the building was being used for commercial purposes did not invalidate Wheatley’s opinions or lack foundation in the record. The Court also approved of Wheatley’s opinion that “the fact that so much plywood and cement was used means that extra care should have been exercised in the design of the air handling system to ensure that fresh air was provided to dissipate the formaldehyde.” The Court held that this statement was based on an objective standard, rather than a subjective standard, and was not based on an assumption that Plaintiffs subjectively understood the standard of care that was required. With respect to reliability, the Court held that Wheatley’s reliance on another expert’s opinion with respect to the necessary HVAC system did not make his opinion unreliable. The Court held that Wheatley’s opinion that the building had more plywood than normal in it was not unreliable simply due to a lack of “scientific testing,” because Wheatley relied on his knowledge and experience as an architect. However, the Court agreed with the Plaintiffs’ reliability challenge as to Wheatley’s statement that construction glues were a substantial contributor to the formaldehyde levels in the building, because Wheatley did not determine whether the glues that were used give off a high level of formaldehyde gas.

Defendants’ expert E. Mitchell Swan’s report opined that the building was not residential and that the HVAC system should have been designed as a commercial grade system. The Court found that, given Swan’s expertise, the data he consulted, and his personal inspection with regard to the building, his opinion that the building should have been designed in accord with commercial codes was not so lacking in record support to make it unhelpful to the jury.

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Hoang v. Funai Corp., Inc., 652 F. Supp. 2d 564 (M.D. Pa. 2009)

The Court denied Defendants’ motion in limine to exclude the expert opinion testimony of Bradley A. Schriver and Ronald J. Panunto under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Plaintiffs’ experts opined that a fire at Plaintiffs’ residence was caused by a defect in a Sylvania combination television/video cassette recorder (“TV/VCR”) that was manufactured and sold by the Defendants. Defendants challenged the reliability of the methodology used by Plaintiffs’ experts in reaching that conclusion.

First, Defendants challenged Shriver’s opinion. Shriver based his opinion on interviews with city fire investigators, along with an analysis of the severity of damage and charring in different locations, tracing the origin of the fire to a table on which the TV/VCR unit was situated. After eliminating other sources, such as incense or candles, Schriver concluded that the only remaining ignition source was the TV/VCR, which he could not eliminate as a cause of the fire. The Court held that Shriver’s reliance, among other data sources, on city fire investigators did not render his methodology unreliable. Furthermore, the Court held that, despite the fact that Schriver did not reference the methodology he used in guiding his investigation, his investigation was based on the reliable methodology set forth in the NFPA 921 guidelines. The Court further held that there was not such a great gap between the data and the conclusion reached to render Schriver’s opinion – that an open flame did not cause the fire – unreliable.

Defendants next challenged Panunto’s opinion. Panunto based his opinion on X-rays of the TV/VCR unit, photographs of the fire scene, incident reports of the Harrisburg Police and Bureau of Fire, and statements of Nam Hoang and Kien Tran. He used the NFPA 921 guideline to arrive at his opinion that the TV/VCR was defective and that it caused the fire. The Court rejected Defendants’ arguments that Panunto’s opinion merely “piggy-backs” on the findings and conclusions of Schriver and city fire investigators, and that his opinion was unreliable as he had never physically visited the fire scene. The Court held that Panunto’s reliance on photographic evidence, X-Rays and other statements and opinions did not render his opinion unreliable. The Court further held that Panunto’s application of the NFPA 921 provision on process of elimination was sufficiently reliable.

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C.G. v. Pennsylvania Dept. of Educ., No. 1:06-cv-1523 (M.D. Pa. Nov. 8, 2010)

The Court granted Defendants’ motion to strike the expert report of Dr. Sharon O’Malley pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)). Dr. O’Malley’s expert report set forth a number of opinions regarding the education of special education students with limited English proficiency (“LEP”). The Court first examined Dr. O’Malley’s qualifications, and noted that while Dr. O’Malley was sufficiently qualified as an expert in education of LEP students, she was not an expert on special education. Thus, the Court found that her opinions related to special education must be stricken. The Court also found that Dr. O’Malley’s methodology was not reliable, as her findings were not supported by specific facts, and her opinions were not clearly expressed in such a way as to allow the fact finder to assess their credibility. Thus, the Court granted Defendants’ motion to strike Dr. O’Malley’s expert report.

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Rager v. General Elec. Co., No. 1:08-cv-1482 (M.D. Pa. Dec. 22, 2010)

Following a hearing, the Court evaluated the testimony of three experts who offered testimony in a case involving a fatal residential fire. The Court denied Defendant’s motions in limine to exclude the opinion testimony of Dr. Wayne K. Ross, M.D., Ronald Parsons, and Scott Jones pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).

Dr. Wayne K. Ross’ report concluded that the cause two young children”suffered severe conscious pain and suffering for a number of minutes before they expired” from smoke inhalation and thermal burns. The Court found that Dr. Ross’ reliance on witnesses on the scene and coroner photographs were sufficiently reliable to support his opinion that the children died from smoke inhalation and thermal burns. The Court found that Dr. Ross’ examination of, inter alia, the levels of CO found in the boys’ blood; the soot on one of the boy’s feet, hands, and knees; and photographic evidence of vomitous on a pillow were sufficiently reliable to support Dr. Ross’ conclusion that the boys experienced conscious pain and suffering. The Court also held that, based on his methodology and experience, Dr. Ross was able to state with a reasonable degree of medical certainty that the boys experienced conscious pain and suffering for a number of minutes.

Plaintiffs’ second expert, Ronald Parsons, investigated the cause and origin of the fire. Parsons testified that his cause and origin investigation was guided by NFPA 921, Guide for Fire and Explosion Investigations, published by the National Fire Protection Association. In determining the origin of the fire, Parsons reviewed various sources, including fire patterns, witness information, fire dynamics, and arc mapping. Based on this information, Parsons concluded that the fire originated within the family’s clothes dryer. Parsons also opined that the fire was caused by lint that ignited at the electric heating element, which ignited secondary fuels in the dryer. Parson’s concluded that this lint ignition occurred due to a design defect, as the dryer’s design promotes the build-up of lint in close proximity to the heating element. The Court held that, despite the fact that Parson’s lint ignition theory was not generally accepted in the field of engineering or in the appliance design community, on balance, the Daubert factors favored admission of Parsons’ expert testimony. The Court noted that Parsons’ theory consisted of a testable hypothesis; that his thoery was based on the NFPA 921 methodology, a methodology that is sufficiently reliable for purposes of admissibility; and that Parsons’ qualifications weighed in favor of admissibility, as he had been a fire cause and origin analyst for over thirty years conducted at least 3,000 fire investigations, and is certified as a fire and explosion investigator. The Court also held that Parsons’ practice of putting lint balls into contact with the heating element of the dryer for the purposes of testing did not render his methodology unreliable.

Plaintiff’s third expert, Scott Jones, a registered professional mechanical and electrical engineer, offered opinions on the cause and origin of the fire, and on the safety of the dryer’s design. Specifically, Jones analyzed evidence of electrical arcs, and noted the existence of charred remnants of lint, to conclude that lint ignited in the rear of the dryer and spread to the drum. Jones also opined that GE should have applied the accepted standard for product design analysis, known as Failure Modes Effects Analysis, to identify and address “the present concern for lint build-up in the heater system.” Jones offered his opinion that two design changes to the dryer would eliminate the potential for fire: addition of a heat shield and use of an axial heater. His expert report also discussed the feasibility of this alternative design. The Court held that Jones’ reliance on Parsons’ lint ignition theory was acceptable, as Parsons’ lint igition theory was sufficiently reliable. In response to GE’s argument that Jones’ opinion is unreliable because it relied on Parsons’ opinion and lacks an independent basis, the Court held that Jones conducted an independent review of the remains of the Rager dryer in accordance with NFPA 921 guidelines and that he reached his own admissible conclusions based upon his own independent analysis. The Court also rejected GE’s argument that Jones’ opinion was unreliable because his alternative design had not been life tested or commercially developed. The Court noted that the alternative designs presented by Jones had been incorporated into prototypes and tested. The Court concluded that Jones’ experience, prototype testing, and evidence of industry practice supported a finding that his opinion on alternative design is reliable.

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C.G. v. Pennsylvania Dept. of Educ., No. 1:06-cv-1523 (M.D. Pa. Aug. 16, 2011)

On August 16, 2011, the Court granted Plaintiff’s motion to exclude the testimony of Dr. Jay Gottlieb pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). After hearing testimony from Dr. Gottlieb, the Court determined that while he is an expert in the field of special education, his experience as a member of a local school board did not qualify him to opine on the subject of systemic effects of the Commonwealth’s “census-based” funding model. The Court also found that even if Dr. Gottlieb were qualified as an expert on the issue of school funding, his report did not satisfy Daubert’s reliability requirement. Rather than generalize from a random probability sample or representative sample, Dr. Gottlieb selected and compared eight school districts, which represented the “extremes” of the funding level and were thus most likely to support the conclusion in the report on which he was commenting. He reasoned that if the extremes failed to support the conclusions in the report, then those districts in which the funding gap was less pronounced would also not support the conclusion. The Court found that the methodology did not meet the standards for reliability, as it made generalizations about a statewide funding formula based on comparisons of only eight out of five hundred school districts, where those eight districts were purposefully nonrepresentative and clustered in Southeastern Pennsylvania. The Court also held that Dr. Gottlieb’s application of the methodology was deeply flawed.

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Judge Kane’s Trial Calendar

Judge Kane’s Trial Calendar may be found on her official website.

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