Opinion
Civil Action No. 00-1366.
March 31, 2004
ORDER
AND NOW, this 31st day of March, 2004, upon consideration of Defendant's Motion to Exclude the Opinion Testimony of John Sevart and Gerald Harris (Doc. 38), Plaintiff's Response in Opposition (Doc. 48), and the Daubert hearing held in this matter on February 10, 2002, IT IS HEREBY ORDERED that the motion is DENIED. Mr. Sevart and Dr. Harris possess the educational and professional qualifications to serve as experts in this matter. Further, the evidence does not show that Sevart and Harris's methodology and opinions are unreliable under the Daubert standard, or that their testimony will not assist the factfinder. Accordingly, the Court finds that Plaintiff's proffer of Mr. Sevart and Dr. Harris satisfies the requirements of Fed.R.Civ.P. 702.
Mr. Sevart holds a Masters of Science in mechanical engineering from Wichita State University, awarded in June of 1962, and has completed all requirements for the PhD except writing and defending a dissertation. Mr. Sevart has been a license professional engineer for over 25 years, operated a design company since 1968, taught machine design for over 20 years, and is an elected-member of the B56.1 Technical Committee of the American Society of Technical Engineers T-2, in addition to other professional associations. Hearing Trans. at 11, 13-14. In developing his expert opinion in this matter, Mr. Sevart employed "design hierarchy" methodology "used in incorporating safety concepts in the design of a product before it goes to market." Id. at 23. Mr. Sevart has utilized and taught this methodology throughout his career, see id. at 24, and no evidence has been produced to show that this methodology is unreliable or not accepted within the scientific community.
Mr. Harris is a biomedical engineer with a specialty in biomechanics, which is "the application of engineering principles to biological systems." Hearing Trans. at 54. Mr. Harris holds a Masters of Science in biomedical engineering with a biomechanical specialty and a PhD in biomedical engineering from Marquette University, received in 1976 and 1981 respectively. Id. He is a licensed professional engineer, a professor in biomedical engineering at Marquette University and director of the Marquette's Orthopedic and Rehabilitative Engineering Center where he researches "impact biomechanics." Id. at 55-56, 58.
Dr. Hart's research includes studying "posture stability" which measures the ability of humans to remain in an upright position "in quiet standing and . . . in standing where you have perbutations," i.e., movement of the platform, which may properly inform his opinion. Id. at 57. Dr. Hart has many honors and professional associations, to include serving as president of two biomedical societies and receiving an appointment as a Clinical Research Mentor at the National Institutes of Health ("NIH"), where he served from 2000-02. Id. at 58-59. Dr. Harris has also been extensively published and peer reviewed, with over 300 publications in peer review literature and two books in his areas of specialty, and has served as a peer reviewer for over 14 journals. Id. at 60-61.
In addition, Dr. Harris has worked as a consultant in litigation and non-litigation matters since the 1980s, split 50-50 between defense and plaintiff work. Id. at 61. In the instant matter, Dr. Harris examined the pallet Plaintiff was using when she was injured and the warehouse accident site for over an 8-hour period, in addition to medical records, Defendant's accident data, and other evidence in developing his opinion. Id. at 61-63, 73-74. At the Daubert hearing, Dr. Harris provided a detailed analysis of the biomechanical analysis that he employed in forming his opinion and testified that his methodology is established and standardized in his field. See id. at 63-67. Dr. Harris also cited to studies published in peer review articles, in addition to his own research, as sources he relied upon in forming his opinion.
Defendant's argument that the fact Mr. Sevart and Dr. Harris do not have hands-on experience working with the PE jack disqualifies them as exp erts is unavailing. This is an argument more appropriately raised on cross-examination and argued to the jury. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.").
Further, the Court notes that Defendant relies heavily on the decisions of other courts concerning the admissibility of Mr. Sevart and Dr. Harris's testimony. This focus leads Defendant to miss Plaintiff's contention that the safer alternative design that she identifies is Defendant's PC model, which has been on the market and tested under real world cond itions. See Def. Mot. at 17 (claiming Plaintiff's experts should be rejected for failing to "design or test their allegedly `safer alternative design.'"). Defendant cannot meet its burden on this motion by merely citing to other cases, involving different facts and litigants. Further, it is notewo rthy that while Defendant identifies four to six cases where the reliability of Mr. Sevart's opinion was challenged, Defendant concedes that in at least "a couple of situations" the trial court was reversed for excluding his testimony. Hearing Trans. at 90-91.
ORDER
AND NOW, this 31st day of March, 2004, upon consideration of Defendant's Motion for Summary Judgment (Doc. 51), Plaintiff's Response in Opposition (Doc. 52), and Defendant's Reply Brief (Doc. 53), IT IS HEREBY ORDERED that the motion is GRANTED IN PART and DENIED IN PART as follows:1. Defendant's motion for summary judgment as to Plaintiff's failure to warn claims is GRANTED. Plaintiff does not contest Defendant's contention that these claims are insufficient as a matter of law.
2. Defendant's motion for summary judgment as to Plaintiff's strict liability claim is DENIED. Sufficient evidence has not been produce to support a finding that the 60PE pallet jack ("PE Jack" or "PE Model"), the jack Plaintiff was using when she was injured, is not unreasonably dangerous.
(a) Defendant's main argument is that the alternative design proffered by Plaintiff is not a safer alternative to the PE Jack based on its erroneous belief that Plaintiff's alternative design would require enclosure of the operator's compartment of the PE Jack. Def. Mot. at 4. Plaintiff's claim is that the 60PC pallet jack ("PC Jack" or "PC Model"), also manufactured by Defendant, is the safer alternative, a design which is (I) unquestionably feasible (it has been in production and on the market for several years), (ii) has been tested under real world conditions, (iii) has both a lower accident rate and lower rate of severe injury than the PE Model, and (iv) at minimum, possesses the same utility as the PE Model. In its reply, Defendant contends that the accident rate of both models is de minimus, and on this basis urges that the PE Model be found not unreasonable dangerous. No evidence, such as expert opinion, is cited in support of this assertion, nor does it answer the question of whether the seriousness of the injuries suffered by operators using the PE Model is a socially acceptable risk for which Defendant should not be held strictly liable. Compare Surace, 111 F.3d at 1048 (holding seriousness of injury precluded finding machine not unreasonably dangerous).
(b) "In a strict liability case, the court must balance the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury." Surace v. Caterpillar, Inc., 111 F.3d 1039, 1049-50 (3d Cir. 1997) (first emphasis added; original emphasis omitted). There is evidence of a death, multiple head and back injuries, concussions, a punctured lung, severed foot, an amputated foot, an amputated ring finger, fractured pelvises, and a possible fractured skull, among the many broken bones (to include compound fractures) and lacerations suffered by operators involved in accidents using the PE Model. See Pl. Exh. K [hereinafter "PE Model Accident Summary"]. Comparable injuries were not documented for the PC Model. See Pl. Exh. L [hereinafter "PC Model Accident Summary"].
The Court recognizes use of equipment such as the PE Jack carries with it some inherent danger. Notwithstanding, Defendant may not simply rely on its contention that the accident rate for the PE Model is de minimus in this case, in light of Plaintiff's evidence. See Surace, 111 F.3d at 1048. To find for Defendant, this Court must conclude that "the evidence is sufficient . . . to conclude as a matter of law that the [PE Model] was not unreasonably dangerous." Id. at 1049 n. 10. Defendant has not produced sufficient evidence in this case to support such a finding given the level of severe injury associated with the PE Model.
Under Pennsylvania law, "[t]o establish a case under the strict liability doctrine, a plaintiff must prove that the product was defective, and that the defect proximately caused the plaintiff's injuries." Surace v. Caterpillar, Inc., 111 F.3d 1039, 1044 (3d Cir. 1997) (citation om itted). Upon defense motion, the court must conduct a risk-utility analysis and determine whether the product at issue is "unreasonably dangerous" as a matter of law. Id. "[T]he question for the court to determine is whether the evidence is sufficient, for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous."Id. at 1049 n. 10. This inquiry is governed by the "Wade factors," seven factors that the court may take into consideration in "weighing a product's harms against its social utility." Id. at 1046 (citing Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 502 (1981)).
Interestingly, while urging the Court to find that the PE Jack is not unreasonably dangerous as a matter of law, Defendant devo tes considerable space to contending that the risk-utility question is one for the jury to decide. Defendant also advo cates the position that "there is no great risk that the outcome [in this case] will be any different if this issue is decided by the jury in this case, and in any event such risk is outweighed by Crown's interest in jury resolution of the issue." Def. Mot. at 6. This is an incorrect statement of the law. See Surace, 111 F.3d at 1049 n. 10 ("[T]he question for the court to determine . . . as a matter of law that the product was not unreasonably dangerous."). In any case, it is unclear how the claim that this issue should be heard by a jury serves Defendant's interests on a motion for summary judgment.
Defendant has sold over 97,000 units of the PE Jack since 1970. Since 1978, Defendant has documented the PE Jack as being involved in 591 accidents. See PE Model Accident Summary. The evidence indicates that of the 591 accidents, 307 accidents (or 52%) were similar to Plaintiff's accident. Pl. Resp. at 4. Of the 307 comparable accidents, the injuries in 114 cases were classified as minor or as having no injuries. Id. "Severe" accidents are those which required the employee to be away from work three (3) or more days. PE Model Accident Summary at 1. The remaining 193 accidents (or 62%) comparable to Plaintiff's accident resulted in injuries which were classified as "severe." Pl. Resp. at 4. In contrast, the PC Model (of which approximately 12,000 have been sold) is documented as being involved in only 34 accidents, with 15 involved in accidents comparable to Plaintiff's and only 2 of the 15 comp arable accidents resulting in severe injuries. Id. Plaintiff also asserts that warning labels and instructions accompanying the PE Model "exacerbates th[e] problem . . . [by] demand[ing] that operators keep their bodies within the `running lines' of the unit, but never defin[ing] the term `running lines.'" Id. at 16 (citing Pl. Exh. D). Defendant does not respond to these arguments except to state, without citation to evidence or case law, that the accident rate of the PE Model is de minimus. Def. Reply at 1.
In absence of producing evidence demonstrating that the severity of the injury associated with the PE Model should not expose it to strict liability, Defendant relies heavily on decision of other courts concerning its product. While such decisions may, in appropriate situations, be persuasive, that is not the case in this matter. Defendant relies particularly onShetterly v. Crown Controls Corp., 719 F. Supp. 385 (W.D . Pa. 1989). In Shetterly, the plaintiffs' expert conceded that (1) "he knew of no alternative product that was as productive [as the PE60 Model]," and (2) he "did not know whether or not his suggestive alternative was feasible or practicable." Shetterly, 719 F. Supp. at 392. That is not the case here. Plaintiff's experts have identified Defendant's PC Model as a safer feasible alternative. Further, Shetterly was decided based on (1) the court's determination that the plaintiff expert's alternative design was not feasible and would likely expo se the operator to more danger, (2) accident data covering only the years from 1979 to 1987, and (3) the court's determ ination that the plaintiffs offered "no credible evidence on risk-utility issues." Id. at 393, 398. In addition, contrary to Defendant's assertion otherwise, see Def. Reply at 3, the Shetterly court's decision was also predicated in part on its conclusion that the plaintiffs were negligent in operating the PE 60 pallet. Id. at 402 ("Each plaintiff put himself in a position of obvious danger[.]") (emphasis in original). For these reasons, among others, Shetterly is not dispositive of the instant matter.
3. Defendant's motion for summary judgment on grounds of federal preemption is DENIED. This argument is predicated on Defendant's incorrect assertion that Plaintiff's safer alternative design would require enclosure of the operator's compartment of PE Model, rather the PC Model. The parties do not contest that the PC Model complies with federal standards, rendering this ground for summary judgment moot.