Evans et al v. Alfa Laval Inc. et al
Filing
325
MEMORANDUM ORDER re 294 MOTION in Limine to Preclude References to Evidence of Post-Exposure Documents, 295 MOTION in Limine to Exclude Evidence of Survival Damages, 291 MOTION in Limine re Collateral Sources, 293 MOTION in Limine to Exclude Evidence of Wrongful Death Nonpecuniary Damages, 308 Objections. Signed by Judge Maryellen Noreika on 10/24/2019. (dlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHANNA ELAINE EVANS, Individually,
and As Personal Representative of the Estate
of ICOM HENRY EVANS, Deceased, and
on Behalf of All Wrongful Death
Beneficiaries,
Plaintiff,
v.
JOHN CRANE, INC.,
Defendant.
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C.A. No. 15-681 (MN)
MEMORANDUM ORDER
At Wilmington this 24th day of October 2019, the Court having considered the parties’
motions in limine (D.I. 291, 293, 294, 295), 1 IT IS HEREBY ORDERED that: (1) plaintiff
Johanna Evans’ (“Plaintiff”) motion in limine to exclude discussion or reference to collateral
sources (D.I. 291) is granted-in-part; (2) defendant John Crane, Inc.’s (“JCI”) motion in limine to
preclude references to evidence of post-exposure documents (D.I. 294) is denied without prejudice
to renew; (3) JCI’s motion in limine to exclude evidence of survival damages (D.I. 295) is denied;
and (4) JCI’s motion in limine to exclude evidence of wrongful death nonpecuniary damages
(D.I. 293) is granted-in-part. IT IS FURTHER ORDERED that JCI’s request for a bifurcated trial
(D.I. 282 at 108) is denied. Additionally, having considered JCI’s Objections (D.I. 308) to
Magistrate Judge Fallon’s Memorandum Opinion (“the Memorandum Opinion”) regarding the
1
Plaintiff filed an additional motion in limine to Exclude Evidence of Smoking (D.I. 290).
The parties have informed that the Court that they have resolved the issues in that motion.
(D.I. 312). Thus, that motion is denied as moot.
testimony of Plaintiff’s proffered expert, Captain Arnold Moore (“Captain Moore”) (D.I. 284), IT
IS STILL FURTHER ORDERED that JCI’s Objections are overruled.
I.
MOTIONS IN LIMINE
A.
Plaintiff’s Motion in Limine to Exclude Discussion or Reference to
Collateral Sources
Plaintiff’s motion in limine to exclude discussion of or reference to collateral sources is
granted-in-part and denied-in-part. Plaintiff moves to exclude evidence of the following collateral
sources: (1) Social Security and pensions; (2) life insurance proceeds; (3) claims or awards of
disability benefits by any federal, state, or other governmental agency; (4) services furnished
without charge; (5) benefits from hospitalization, medical or other collateral insurance coverage;
and (6) other settlements in this case or any other form of compensation paid as a result of
Mr. Evans’ mesothelioma cause of action, as well as previous settlements. (D.I. 291 at 2). Plaintiff
contends that providing a jury with information regarding these collateral benefits would allow the
jury to draw an improper inference that Plaintiff was previously compensated for the injuries.
(Id. at 2-3).
In response, JCI argues that the collateral source rule does not apply to settlements with
joint tortfeasors or collateral insurance coverage where the injured party did not bargain for the
benefit conferred. (D.I. 291 at 5-7). JCI further contends that the collateral source rule cannot be
applied to preclude evidence regarding alternative sources of exposure to asbestos, such as that
involving previously-dismissed co-defendants. (Id.).
The collateral source rule is “designed to strike a balance between two competing
principles of tort law: (1) a plaintiff is entitled to compensation sufficient to make him whole, but
no more; and (2) a defendant is liable for all damages that proximately result from his wrong.”
Stayton v. Del. Health Corp., 117 A.3d 521, 526 (Del. 2015) (quoting Mitchell v. Haldar, 883 A.2d
2
32, 38 (Del. 2005)). The rule favors the plaintiff over the tortfeasor by preventing a tortfeasor
from reducing its damages because of payments or compensation received by the injured plaintiff
from an independent source. Id. at 527. This rule is “predicated on the theory that a tortfeasor has
no interest in, and therefore no right to benefit from monies received by the injured person from
sources unconnected with the defendant.” Mitchell, 883 A.2d at 37-38. “Due to the potentially
prejudicial effect of such evidence, the collateral source rule generally prohibits the introduction
of evidence regarding payments made to an injured plaintiff from collateral sources.” Meals v.
Port Auth. Trans Hudson Corp., 622 F. App’x 121, 125 (3d Cir. 2015) (citing Gladden v.
P. Henderson & Co., 385 F.2d 480, 483 (3d Cir. 1967)).
Plaintiff’s requests to exclude evidence of the first four categories listed (Social Security
and pensions; life insurance proceeds; claims or awards of disability benefits by any federal, state,
or other governmental agency; and “services furnished without charge”) are denied as moot. JCI
claims that Plaintiff produced no collateral source evidence from such categories (D.I. 291 at 5
n.1) and Plaintiff has not disputed that. 2
Plaintiff’s motion to exclude evidence in the fifth category – i.e., benefits from
hospitalization, medical, or other collateral insurance coverage – is denied without prejudice. JCI
contends that the benefits received by Mr. Evans were largely paid by Medicare, and notes that
Medicare benefits are exempt from the collateral source rule and require a different analysis.
(D.I. 291 at 8). The Delaware Supreme Court has held that the collateral source rule does not
2
Although JCI contends that Plaintiff failed to produce collateral source evidence of
“services furnished without charge,” it also argues that the collateral source rule should not
apply to Medicare write-offs. (D.I. 291 at 6-7). To the extent “services furnished without
charge” encompasses Medicare write-offs, the merits of the parties’ arguments are
addressed infra. To the extent the category does not include Medicare write-offs,
Plaintiff’s motion to exclude such evidence is denied as moot.
3
apply to Medicare write-offs, which “are not payments made to or benefits conferred on the injured
party,” Stayton, 117 A.3d at 531 (reasoning that amounts written off were “paid by no one,” and
“[a]ny benefit . . . conferred in writing off [a percentage of the charges] was conferred on federal
taxpayers, as a consequence of Medicare’s purchasing power.”). Thus, evidence of Medicare
write-offs received by Mr. Evans would be relevant and admissible at trial. Because Plaintiff has
not specified whether the evidence of benefits from hospitalization, medical, or other collateral
insurance coverage includes Medicare write offs, the Court denies Plaintiff’s motion in limine on
this topic without prejudice to renew the motion with respect to specific documents during the
course of the trial.
Plaintiff’s motion to exclude previous settlements and other settlements in this case, or any
other form of compensation paid as a result of Mr. Evans’ mesothelioma cause of action is also
denied. The Delaware Code provides that a claim against a joint tortfeasor may be reduced in
accordance with the amount paid by another joint tortfeasor in settling a claim:
A release by the injured person of 1 joint tortfeasor, whether before
or after judgment, does not discharge the other tortfeasor unless the
release so provides; but reduces the claim against the other
tortfeasors in the amount of the consideration paid for the release, or
in any amount or proportion by which the release provides that the
total claim shall be reduced, if greater than the consideration paid.
10 Del. C. § 6304(a); see also Graham v. Keene Corp., 616 A.2d 827, 828 (Del. 1992)
(acknowledging the set-off of compensatory damages for asbestos-related injuries by the amounts
received from settling defendants, pursuant to 10 Del. C. § 6304). In accordance with 10 Del. C.
§ 6304(a), evidence of previous settlements with joint tortfeasors is necessary to determine the
amount by which Plaintiff’s claim against JCI should be reduced.
Relatedly, Plaintiff also requests that the Court exclude copies of pleadings which indicate
the names or number of the parties sued in this case. (D.I. 291 at 3). In response, JCI contends
4
that evidence of causation of Mr. Evans’ injuries by another party’s products is relevant to this
case. (D.I. 291 at 7). Plaintiff’s motion to exclude copies of the pleadings indicating the names
or number of parties sued in the case is granted. Plaintiff’s motion is narrowly tailored to exclude
only copies of pleadings showing the names and number of defendants sued in this case, and it
does not exclude evidence that the product of a party other than JCI may have caused Mr. Evans’
mesothelioma.
B.
JCI’s Motion in Limine to Preclude References to Evidence of PostExposure Documents
JCI moves to exclude evidence post-dating Mr. Evans’ last alleged work with a JCI product
on May 17, 1965. (D.I. 294 at 1-5). It argues that evidence post-dating May 17, 1965 is irrelevant
to Mr. Evans’ exposure to asbestos-containing JCI products. (Id. at 3-4). JCI limits the scope of
its motion to the exclusion of: (1) corporate documents or statements of JCI, including its corporate
representatives; and (2) materials related to the state-of-the-art of asbestos. (D.I. 294 at 3, 30).
Plaintiff asks the Court to defer ruling on JCI’s motion in limine, alleging that the motion
is premature and overbroad because it fails to identify the specific documents and information JCI
seeks to exclude. (D.I. 294 at 25). Plaintiff also contends that evidence post-dating Mr. Evans’
exposure may be relevant and admissible to establish causation and the dangers of JCI’s products,
to impeach JCI’s contentions regarding the safety of its products, to show the feasibility of
precautionary measures, and to show JCI’s intentional disregard of the dangers of asbestos. (Id.
at 26). Plaintiff suggests that a limiting jury instruction is a more appropriate remedy than
preemptively excluding all post-exposure evidence from the jury’s consideration. (Id. at 27).
The Court recognizes the general presumption that evidence post-dating a plaintiff’s
asbestos exposure should be excluded as irrelevant to the issue of liability. See Carroll v. John
Crane Inc., No. 15-CV-373-WMC, 2017 WL 2912720, at *11 (W.D. Wis. July 7, 2017).
5
Nonetheless, such documents may be relevant and admissible for the limited purposes identified
by Plaintiff. See, e.g., id.; Yates v. Ford Motor Co., No. 12-CV-752-FL, 2015 WL 2189774, at
*1-3 (E.D.N.C. May 11, 2015). In the present case, JCI has not specified particular documents it
seeks to exclude. Consequently, the Court denies JCI’s motion in limine on this topic without
prejudice to renew the motion with respect to specific documents during the course of the trial.
C.
JCI’s Motion in Limine to Exclude Evidence of Survival Damages
JCI contends that Plaintiff cannot simultaneously claim wrongful death damages and
survival damages because the United States Supreme Court has held that a cause of action for
personal injury cannot survive a seaman’s death under the Death on the High Seas Act
(“DOHSA”), 46 U.S.C. §§ 30301-08 (D.I. 295 at 2-4). Defendant argues that Mr. Evans suffered
an “indivisible” injury resulting from his exposure to asbestos-containing products on the high
seas, in foreign ports, and in United States territorial waters, and this cumulative exposure must be
analyzed under DOHSA exclusively. (Id. at 2-4). Plaintiff responds that JCI’s motion is untimely
and should have been raised as a dispositive motion. (D.I. 295 at 37-38). Plaintiff further alleges
that “the absence of a survival provision in DOHSA creates a legislative void that may be filled
by the courts without undermining the limitations set by DOHSA,” that void may be filled by state
law, and it is permissible under Delaware law to assert both wrongful death and survival claims.
(Id. at 38-39 (modifications omitted). 3
3
In Miles v. Melrose, the Fifth Circuit explained the difference between wrongful death
claims and survival claims in the maritime context:
In a survival action, the estate or successors of a deceased person are
allowed to prosecute a claim for personal injury that the deceased
himself would have had but for his death. In a wrongful death
action, the victim’s dependents, not the victim, are allowed to
recover for the harms they personally suffered as a result of the
death, independent of any action the decedent may have had for his
own personal injuries. Neither cause of action was permitted at
6
Under the current circumstances, the Court does not view JCI’s motion to be untimely. JCI
could not have sought the relief requested at the dispositive motion stage. The dispositive motion
deadline was October 7, 2016, (D.I. 295 at 38 n.2; D.I. 138 ¶ 4), but Mr. Evans’ death did not
occur until March 30, 2018 (D.I. 295 at 42; D.I. 230) and the amended complaint adding the
wrongful death cause of action was not filed until August 17, 2018 (D.I. 235).
As to the merits, DOHSA provides that, “[w]hen the death of an individual is caused by
wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore
of the United States, the personal representative of the decedent may bring a civil action in
admiralty against the person or vessel responsible. The action shall be for the exclusive benefit of
the decedent’s spouse, parent, child, or dependent relative.” 46 U.S.C. § 30302. 4 Although
DOHSA does not create a survival claim, it “applies solely to deaths caused on the high seas.”
Hays v. John Crane, Inc., No. 09-81881-CIV-KAM, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10,
2014). The parties do not dispute that Mr. Evans suffered an “indivisible” injury resulting from
his exposure to asbestos-containing products not only on the high seas, but also in foreign ports
and United States territorial waters. (D.I. 295 at 36-40). Yet JCI cites no support for its position
that DOHSA provides the exclusive remedy in cases involving indivisible injury. (Id. at 2-4, 42).
It does cite a series of Supreme Court cases for the proposition that DOHSA precludes
common law, which followed the rule that personal tort actions died
with the plaintiff.
Miles v. Melrose, 882 F.2d 976, 985 (5th Cir. 1989).
4
DOHSA is often analyzed in conjunction with the Jones Act, which addresses survival
claims for seamen. The Jones Act, however, is limited to the context of claims brought by
a seaman against the employer. 46 U.S.C. § 30104. Consequently, the Jones Act does not
apply to the present case.
7
supplemental recovery for survival damages. 5 (D.I. 295 at 42). But none of those cases addressed
the application of DOHSA to indivisible injuries; each considered injury occurring on the high
seas and therefore falling exclusively within DOHSA’s ambit. See e.g. Dooley v. Korean Air Lines
Co., Ltd., 524 U.S. 116, 116 (1998) (holding that, “[b]ecause Congress has chosen not to authorize
a survival action for a decedent’s pre-death pain and suffering in a case of death on the high seas,
there can be no general maritime survival action for such damages.”); Mobil Oil Corp. v.
Higginbotham, 436 U.S. 618, 625 (1978) (concluding “Congress did not limit DOHSA
beneficiaries to recovery of their pecuniary losses in order to encourage the creation of
nonpecuniary supplements.”). 6
5
Plaintiff counters with analysis of the Third Circuit’s decision in Dugas v. National Aircraft
Corp., which provides that DOHSA does not preclude recovery under a state survival
statute, even though it is the exclusive remedy for wrongful death on the high seas and
supersedes any state wrongful death statute. Dugas v. Nat’l Aircraft Corp., 438 F.2d 1386,
1388-89, 1391 (3d Cir. 1971) (“Neither in the legislative history nor in the wording of
DOHSA itself is there any apparent congressional intent to exclude recovery under survival
statutes.”). The Third Circuit’s decision in Dugas involved deaths occurring exclusively
on the high seas and did not involve an indivisible injury. Dugas also predates the Supreme
Court decisions relied upon by JCI. Although Dugas remains good law, the Court focuses
its analysis on cases which are more recent and factually analogous.
6
JCI also relies on the Supreme Court’s decision in Offshore Logistics, Inc. v. Tallentire,
477 U.S. 207 (1986). That decision, however, does not support JCI’s position because the
Supreme Court declined to reach the issue, explaining that “[w]e do not address the issue
whether the DOHSA recovery for the beneficiaries’ pecuniary loss may be ‘supplemented’
by a recovery for the decedent’s pain and suffering before death under the survival
provision of some conceivably applicable state statute that is intended to apply on the high
seas.” Id. at 215 n.1. JCI also cites the Supreme Court’s recent decision in The Dutra
Group v. Batterton, 139 S. Ct. 2275 (2019), which held that a plaintiff may not recover
punitive damages on a claim of unseaworthiness, id. at 2278. (D.I. 295 at 42). The facts
of the present case do not involve a claim of unseaworthiness, and the Supreme Court
expressly acknowledged that punitive damages are permitted for other maritime torts,
including maintenance and cure. The Dutra Grp., 139 S. Ct. at 2283 (citing Atlantic
Sounding Co. v. Townsend, 557 U.S. 404, 411-14 (2009)).
8
Subsequent District Court cases addressing indivisible injuries have distinguished the
aforementioned Supreme Court cases on this basis and concluded general maritime law – not
DOHSA – applies to survival claims arising from an indivisible injury. See Bell v. Foster Wheeler
Energy Corp., No. 15-CV-6394, 2017 WL 889074, at *3 (E.D. La. Mar. 6, 2017) (“[W]here a
seaman dies from an indivisible injury which occurred both in territorial waters and on the high
seas, Dooley’s prohibition on survival actions in DOHSA cases does not apply and the plaintiff
may pursue a survival action under general maritime law.”); Hays, 2014 WL 10658453, at *2
(“The Court is unaware of any case that has held that DOHSA restricts the recoverable damages
for an indivisible injury in a case where some of the exposure to asbestos-containing products
occurred on the high seas and some occurred in territorial waters.”); John Crane, Inc. v. Hardick,
732 S.E.2d 1, 3 (Va. 2012), cert. denied, 568 U.S. 1161 (2013) (observing that the Supreme Court
in Dooley did not decide “whether general maritime law ever provides a survival action,” and
instead “explicitly recognized that a survival action is still available, apart from DOHSA, when
the decedent is a seaman.”); see also Smith v. Ithaca Corp., 612 F.2d 215, 226 (5th Cir. 1980),
abrogated on other grounds by Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) (concluding
“when a seaman dies from an indivisible injury caused in part by unseaworthiness and inflicted
over a period during which the vessel of which he is a member of the crew cruised coastal waters
and high seas, the seaman’s survivors may recover damages for loss of society under general
maritime law in addition to any damages recoverable under the Jones Act or DOHSA.”).
Further, it is well-established that a court may “rely on state laws primarily to ‘fill gaps’ in
the general maritime law or provide ‘additional avenues for recovery.’” Morrow v. MarineMax,
Inc., 731 F. Supp. 2d 390, 394 (D.N.J. 2010) (citing Matheny v. Tennessee Valley Auth., 503 F.
Supp. 2d 917, 923 (M.D. Tenn. 2007) (citing Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
9
199, 215 (1996))). The Delaware survival statute for personal injury actions provides that “[n]o
action brought to recover damages for injuries to the person by negligence or default shall abate
by reason of the death of the plaintiff, but the personal representatives of the deceased may be
substituted as plaintiff and prosecute the suit to final judgment and satisfaction.” 10 Del. C.
§ 3704; see also id. § 3701 (“All causes of action . . . shall survive to and against the executors or
administrators of the person to, or against whom, the cause of action accrued.”). In accordance
with the Delaware state survival statute, damages for pain and suffering and punitive damages are
recoverable. See, e.g., Sterner v. Wesley College, Inc., 747 F. Supp. 263, 269-70 (D. Del. Sep. 14,
1990) (punitive damages); Magee v. Rose, 405 A.2d 143, 146 (Del. Super. Ct. 1979) (pain and
suffering). Consequently, JCI’s motion to exclude evidence of survival damages is denied.
D.
Motion in Limine to Exclude Evidence of Wrongful Death NonPecuniary Damages
JCI’s motion in limine to exclude evidence of wrongful death nonpecuniary damages is
granted-in-part and denied-in-part. JCI contends that evidence of wrongful death nonpecuniary
damages should be excluded in the present case because damages for loss of society or loss of
consortium are not available in a wrongful death case under general maritime law. (D.I. 293 at 23). JCI further argues that evidence of Plaintiff’s claim for punitive damages should be excluded
because such damages are not permitted under either DOHSA or the Jones Act, nor are they
recoverable under a general maritime law wrongful death action. (Id. at 4). In response, Plaintiff
argues that JCI’s motion is an untimely attempt to obtain a judgment on Plaintiff’s loss of
consortium, pain and suffering, and punitive damages claims, and the motion fails to identify
specific documents or testimony it contends should be excluded. (D.I. 293 at 28-29). Plaintiff
concedes that DOHSA limits the recovery of wrongful death claims to pecuniary damages but
contends that DOHSA claims may be supplemented by a state survival action. (Id. at 29). Plaintiff
10
further argues that the recovery of pre-death loss of consortium damages is permissible under
general maritime law and is not precluded by DOHSA. (Id. at 30).
Plaintiff’s wrongful death claim falls under the scope of DOHSA, and Plaintiff “concedes
that . . . DOHSA limits the recovery of Plaintiff’s wrongful death claim to pecuniary damages.”
(D.I. 293 at 29) Consequently, evidence relating to nonpecuniary wrongful death damages is not
admissible. For the reasons stated supra, however, evidence of nonpecuniary survival damages is
permitted. Accordingly, evidence of nonpecuniary wrongful death damages shall be excluded to
the extent that it diverges from the evidence to be admitted in support of Plaintiff’s claim for
survival damages.
II.
JCI’S REQUEST FOR A BIFURCATED TRIAL
The Court has “broad discretion in reaching its decision whether to separate the issues of
liability and damages.” Idzojtic v. Pa. R.R. Co., 456 F.2d 1228, 1230 (3d Cir. 1972). In exercising
that discretion, it must weigh “the various considerations of convenience, prejudice to the parties,
expedition, and economy of resources,” Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22
(3d Cir. 1984), while keeping in mind the need to “preserve any federal right to a jury trial,”
Fed. R. Civ. P. 42(b). See id. (“For convenience, to avoid prejudice, or to expedite and economize,
the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal
right to a jury trial.”). Here, bifurcation will likely delay resolution of this case – which was filed
on or about June 11, 2015 and transferred to this Court on August 4, 2015 (D.I. 1 ¶ 1); require both
the Court and the parties to spend substantial additional resources; be less convenient for the Court,
jurors, and the parties; and not substantively impact the prejudice faced by either side. Thus, JCI’s
request for a bifurcated trial on punitive damages is denied.
11
III.
JCI’S OBJECTIONS TO THE MAGISTRATE JUDGE’S MEMORANDUM
OPINION REGARDING THE TESTIMONY OF CAPTAIN MOORE
On July 19, 2019, the Magistrate Judge issued the Memorandum Opinion on JCI’s partial
motion to exclude the testimony of Plaintiff’s proffered expert, Captain Moore (D.I. 274).
(D.I. 284). JCI’s motion was granted-in-part and denied-in-part. (Id.). Pursuant to Rule 72(a) of
the Federal Rules of Civil Procedure and Local Rule 72.1(a), Defendant timely objected (“JCI’s
Objections”). (D.I. 308). Defendant limits its objections, however, to the Memorandum Opinion’s
“finding that [Captain Moore] is qualified to testify as an expert as to the United States Navy’s
purchase and procurement of the products at issue in this matter.” (Id. at 1). The Court reviews
the filings and objections pursuant to Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b)(1)(A).
A.
Legal Standard for Review of JCI’s Objections to the Magistrate
Judge’s Memorandum Opinion Regarding the Testimony of Captain
Moore
“A Daubert motion to exclude testimony presents a non-dispositive matter, and objections
to a Magistrate Judge’s recommendation on a non-dispositive motion are subject to a ‘clearly
erroneous and contrary to law’ standard of review, pursuant to 28 U.S.C. 636(b)(1)(A) and
Fed. R. Civ. P. 72(a).” Masimo Corp. v. Philips Elec. N. Am. Corp., 62 F. Supp. 3d 368, 388
(D. Del. 2014). Under a “clearly erroneous” standard, the Court will only set aside findings when
it is “left with the definite and firm conviction that a mistake has been committed.” Green v.
Fornario, 486 F.3d 100, 104 (3d Cir. 2007). A Magistrate Judge’s order is contrary to law only
“when the magistrate judge has misinterpreted or misapplied the applicable law.” Doe v. Hartford
Life & Accident Ins. Co., 237 F.R.D. 545, 548 (D.N.J. 2006); see also Eisai Co., Ltd. v. Teva
Pharms. USA, Inc., 629 F. Supp. 2d 416, 424 (D.N.J. 2009) (“[A] magistrate judge’s decision
typically is entitled to deference . . . [while] a magistrate judge’s legal conclusions on a nondispositive motion will be reviewed de novo . . . .” (internal citations omitted)).
12
B.
JCI’s Objections to the Magistrate Judge’s Memorandum Opinion
Regarding the Testimony of Captain Moore
As noted, JCI’s Objections are limited to the Memorandum Opinion’s finding that that
Captain Moore “is qualified to testify as an expert as to the United States Navy’s purchase and
procurement of the products at issue in this matter.” (D.I. 308 at 1). After carefully reviewing the
parties’ filings underlying the original motion, the Memorandum Opinion, and JCI’s Objections,
JCI’s Objections are overruled.
JCI argues that Captain Moore is not an expert on the supply procedures of the United
States Navy because “his training, education, and experience do not render him an expert on the
matter” and “he lacks the expertise to interpret the documents – specifically the QPL – that would
enable him to offer the opinions here.” (D.I. 308 at 3). Defendant further contends that the
Memorandum Opinion’s conclusion that Captain Moore’s lack of experience should go to the
weight rather than admissibility of his testimony contravenes “clearly established threshold
requirements for the admissibility of expert testimony.” (D.I. 308 at 5).
Rule 702, which governs the admissibility of expert testimony, states:
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.
Fed. R. Evid. 702. As the Third Circuit has explained, there are three requirements under Rule 702:
“(1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify
about matters requiring scientific, technical or specialized knowledge; and (3) the expert’s
testimony must assist the trier of fact.” Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir.
2008). These requirements serve a gatekeeping function, “ensuring that an expert’s testimony both
13
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993). The “qualification” element – the one JCI challenges – must be
construed “liberally.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). “[A]
broad range of knowledge, skills, and training qualify an expert as such.” Id. Moreover, an expert
need not have “practical experience in a given industry in order to qualify as an expert in litigation
involving its products.” Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825, 829 n.9
(3d Cir. 1951).
As an initial matter, the Court detects no clear error in the facts stated in the Memorandum
Opinion and therefore adopts them in full. See EEOC v. City of Long Branch, 866 F.3d 93, 99
(3d Cir. 2017); Haines v. Liggett Grp. Inc., 975 F.2d 81, 92 (3d. Cir. 1992). Captain Moore is an
engineer who entered the United States Navy in 1968 after graduating from the U.S. Naval
Academy with a major in Naval Science and a minor in Naval Architecture. (D.I. 284 at 2). He
studied Naval Ship Design and Construction at the Massachusetts Institute of Technology, during
which he coordinated overhauls of vessels at the Charleston Naval Shipyard. (Id. at 2-3). He
resigned his active Navy commission in 1979 and entered the Naval Reserve as an Engineering
Duty Officer. (Id. at 3). He then worked for Ingalls Shipbuilding and Northrup Grumman as an
engineering executive for all aspects of naval ship design. (Id.). He retired in 2007 and
subsequently began consulting as an expert witness in marine engineering in asbestos litigation.
(Id.). Although he lacks direct experience in ordering parts for Navy ships, he is familiar with the
process as a result of participating in “hundreds of meetings to discuss procurement issues.” (Id.
at 5). He previously thought a product must be listed on the Qualified Product List (“QPL”) for
the Navy to purchase the product but changed his assessment after reviewing an interrogatory
response from the United States Government in asbestos litigation which stated the opposite. (Id. at
14
5-6 & n.2). This change of assessment, however, did not substantively impact the opinion set forth
in Captain Moore’s November 3, 2017 expert report regarding the use of JCI’s gaskets on Navy
ships – both before and after changing his assessment regarding the QPL, Captain Moore
maintained the opinion that JCI’s gaskets could be sold to the U.S. Navy and used on Navy ships.
(Id. at 6).
Based on these facts, Captain Moore is qualified to testify as an expert on Navy
procurement procedures. He is a naval engineer who has direct, personal experience in all aspects
of naval ship design, who has coordinated the overhaul of multiple naval vessels, and who has
participated in hundreds of meetings to discuss procurement issues for such vessels. The Third
Circuit’s admonition in Trowbridge against requiring “practical experience in a given industry”
was not limited, as JCI argues, to “‘small and tightly knit’ industries.” (D.I. 308 at 6 (quoting
Trowbridge, 190 F.2d at 829 n.9)). The relevant passage states that requiring “practical experience
in a given industry in order to qualify as an expert in litigation involving its products . . . might
very well place an onerous burden on plaintiffs in some cases.” Trowbridge, 190 F.2d at 829 n.9
(emphasis added). “Where the industry is small and tightly knit” was an example the Third Circuit
cited as such a case, but there is no indication it was limiting. Id.; see also Knight v. Otis Elevator
Co., 596 F.2d 84, 88 (3d Cir. 1979) (applying Trowbridge and finding expert testimony improperly
excluded because district court effectively “require[d] highly particularized, sub-specialization on
the part of experts,” not because industry was “small and tightly knit.”). Additionally, in Knight,
the Third Circuit instructed that an expert’s inexperience in a particularized area should impact the
weight of the expert’s opinion, not is admissibility. Knight, 596 F.2d at 88. Although JCI argues
that it is “not asking the Court to require Captain Moore to have a ‘highly particularized, subspecialization’ or be ‘intimately familiar with every aspect of the Navy rather than the products at
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issue’” (D.I. 308 at 7), Defendant is requesting that the Court require Captain Moore have
particularized, practical experience procuring specific products at issue in this case and using
specific documents at issue in this case (e.g., the QPL). (D.I. 308 at 7). Under the Third Circuit’s
liberal approach to expert testimony, that is more than is required. See, e.g., Habecker v.
Copperloy Corp., 893 F.2d 49, 51-52 (3d Cir. 1990) (“[I]n Knight, we established a liberal policy
of admitting expert testimony which will aid the trier of fact.”). Captain Moore has experience
that qualifies him to testify on Navy product procurement procedures; to the extent he lacks direct
experience ordering or otherwise procuring the specific products at issue, his inexperience “should
go to the weight, and not the admissibility, of his opinion.” Knight, 596 F.2d at 88. 7
Consequently, JCI’s Objections to the Magistrate Judge Memorandum Opinion (D.I. 284)
regarding the testimony of Plaintiff’s proffered expert, Captain Moore, (D.I. 308) are overruled.
The Honorable Maryellen Noreika
United States District Judge
7
JCI also argues that Captain Moore’s lack of qualifications is exhibited by his reference to
an incorrect gasket alteration in his expert opinion, “seeming[] misunderstand[ing of] the
uses to which products can be put in various systems,” and his reliance on the testimony of
others. (D.I. 308 at 4-5, 7). These purported errors or mistakes, however, are issues to be
addressed on cross-examination; based on his qualifications and the extent of these
purported errors, they are insufficient to bar Captain Moore’s testimony on this entire
subject. JCI further argues that Plaintiff has proffered Captain Moore solely to “lend an
‘expert’ imprimatur to the testimony of Mr. Evans and JCI’s corporate representative” and
that “Captain Moore cannot testify about documents . . . which are plainly irrelevant . . .
(e.g. the B-153 chart).” (Id. at 7-8). These arguments are not directed to the limited point
of contention in JCI’s Objections.
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