KUHAR et al v. PETZL COMPANY et al

Filing 325

MEMORANDUM OPINION AND ORDER Granting in part and Denying in part 280 Motion to Strike Defendant Porteous/Brighton Best's Experts. Signed by Magistrate Judge Joel Schneider on 9/12/2019. (dmr)

[Doc. No. 280]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Nicholas Kuhar et al.,
Plaintiffs,
v.

Civil No. 16-395 (RMB/JS)

Petzl Co. et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the “Motion to Strike
Defendant

Porteous/Brighton

Best’s

Experts”

[Doc.

No.

280]

(“motion”) filed by plaintiffs. The Court received the opposition
of defendants Brighton Best, Inc. (“Brighton Best”) [Doc. No. 292]
and Uintah Fastener & Supply, LLC (“Uintah”) [Doc. No. 293],
plaintiffs’ reply [Doc. No. 295], and the Court recently held a
Daubert hearing. 1 For the reasons to be discussed, plaintiffs’
motion is GRANTED in part and DENIED in part.
Background
Since the parties are familiar with the case, the Court
incorporates by reference its summary of the fact background and
procedural history of the case set forth in Kuhar v. Petzl Co.,

1

At the hearing, Brighton Best produced live testimony from its
two experts plaintiffs’ motion seeks to strike: John P. Gashinski,
P.E. and Kenneth M. Gardside, P.E. See Doc. No. 299.
1

C.A. No. 16-0395 (JBS/JS), 2018 WL 7571319, at *1 (D.N.J. Nov. 27,
2018). 2 By way of brief background, the present action is a products
liability case arising from plaintiff Nicholas Kuhar’s use of a
safety harness called a “micrograb” while working on the roof of
a barn. Mr. Kuhar was allegedly using the micrograb harness when
a component steel bolt broke in two, causing him to fall thirtyseven (37) feet and sustain serious injuries. Plaintiffs’ claim is
primarily focused on design and manufacturing defects associated
with the broken bolt. Brighton Best is alleged to have manufactured
the broken bolt. See id. at *1.
On or about March 30, 2018, Brighton Best produced an expert
report from its metallurgist expert, John P. Gashinski, P.E., and
its mechanical engineering expert, Kenneth M. Garside, P.E, of
Affiliated Engineering Laboratories, Inc. (“Affiliated Report”).
See Pls.’ Br. at 2 [Doc. No. 280-1]; see also Affiliated Report
[Doc. No. 280-2]. Gashinski is a professional engineer holding a
Bachelor’s and Master’s in Materials Science and Engineering. See
Doc. No. 280-4 at 8. Garside is a professional engineer holding a
Bachelor’s Degree in Mechanical Engineering and a Master’s Degree
in Engineering Science. See id. at 2. In the Affiliated Report,

2

In this Memorandum Opinion and Order the Court addressed whether
to exclude plaintiffs’ liability expert, Dr. Richard F. Lynch,
under Daubert. The Court Ordered the expert be stricken.
Plaintiffs’ appeal [Doc. No. 265] of the Order was recently denied
by the Honorable Renée Marie Bumb. See Doc. No. 322.
2

defendant’s experts opined the following to a reasonable degree of
engineering certainty:
(1)

The subject shoulder bolt failed within the thread
neck region by ductile overload fracture that
transitioned to shear overload condition. This area
of the assembled fastener is not significantly
loaded during intended use such that the subject
overload event could not have occurred in the
manner alleged.

(2)

There was no evidence of any design and/or
manufacturing defect that would have been causally
related to the subject shoulder bolt failing in the
reduced cross-section region of the thread neck. In
consideration of the design application of the
subject shoulder bolt to the involved Micrograb,
this region of the bolt would not be subjected to
any loading condition(s) to induce such a failure
during intended use.

(3)

The observed failure mode of the bolt is not
consistent with the testimony and plaintiff’s [sic]
allegations as described. Accordingly, any opinion
indicating the subject failure was due to any
impropriety or shortcoming on the part of a
distributor of the bolt fastener is devoid of
technical basis and should be viewed as speculation
at best.

Affiliated Report at 35. 3
Plaintiffs

move

to

strike

the

Affiliated

Report

in

its

entirety alleging that it fails to satisfy the requirements of
Fed. R. Civ. P. 702 and Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993). Plaintiffs generally allege the report and the
opinions contained therein must be excluded because they lack a

3

Plaintiffs do not object to the experts’ qualifications within
their fields of expertise.
3

reliable foundation and are not fit for the case. See Pls.’ Br. at
4-6.

Specifically,

plaintiffs

object

to

the

report’s

use

of

undefined terms, alleging that it improperly opines as to the
“intended” or “normal use” of the micrograb. Id. at 4. Plaintiffs
further allege that, had the report attempted to define these
terms, defendant’s experts are unqualified to offer them. Id. In
addition, plaintiffs contend the report omits, in large part, any
scientific method or basis used by the experts to render the
opinions they reach. Id. at 5-7.
Brighton Best opposes plaintiffs’ motion, contending that the
Affiliated Report “clearly conforms to the standards set forth in
Daubert.” Opp. at 3. [Doc. No. 292]. Brighton Best alleges that
plaintiffs’

“arguments

fail

to

consider

the

entirety

of

the

report,” and instead, “cite[s] in piecemeal fashion” to just three
pages of the thirty-five-page report. Id. Brighton Best also
alleges plaintiffs offer no legal support for their proposition
that the report must define “such common terms,” and further argue
plaintiffs misconstrue the “plain meaning” of the terms. Id. at 36. Brighton Best opposes plaintiffs’ allegation that its experts
fail to provide any reliable scientific support for the conclusions
they reach. Id. 6-7. Brighton Best also asserts “[a]n examination
of the entire report reveals that [it] painstakingly analyzes the
cause of the fracture through the use of physical inspection and
testing, metallurgical analysis and evaluation,” and reviews of
4

files, photographs, charts, and drawings. Id. at 8. As such,
Brighton Best contends the report is reliable and fit for the
issues in dispute. Id. at 10-11. In its opposition, Brighton Best
requested that the Court conduct an in limine hearing if it
intended to entertain oral argument on plaintiffs’ motion. 4
Discussion
The Court incorporates by reference its discussion of the
Daubert standard and Rule 702 set forth in Kuhar, 2018 WL 7571319,
at *2-3.
At the outset, the Court will address plaintiffs’ objection
stated on the record at the close of the Court’s Daubert hearing.
Plaintiffs objected on the ground that the definitions of certain
technical terms were not contained in defendants’ expert report.
For example, plaintiffs take issue with Gashinski and Garside’s
failure to define the terms “normal (or intended use),” “ductile
overload,” and “microvoid coalescence.” However, an expert is not
required to define every technical term contained in his or her
report. See Crowley v. Chait, 322 F. Supp. 2d 530, 540 (D.N.J.
2004) (“[O]ne of the very purposes of a Daubert hearing . . . is
to give experts a chance to explain and even correct errors that
they made in their reports.”). At the Daubert hearing, Gashinski

4

Defendant Uintah also wrote in opposition to plaintiffs’ motion,
largely reiterating the arguments set forth by Brighton Best, and
requesting the Court conduct an in limine hearing if it intended
to hold oral argument on the motion. See Uintah Opp. at 15.
5

testified the terms objected to are “germane terms” and generally
accepted as defined within his field of expertise. See Tr., Aug.
19, 2019 at 54:18-22. As for “intended” or “normal use,” both
experts testified that this does not refer to the intended use of
arborist equipment as plaintiffs contend. See Pls.’ Br. at 4.
Rather, these references are specific to the shoulder bolt and the
typical forces known to mechanically engage the bolt by experts in
their

See

fields.

Tr.,

Aug.

19,

2019

at

78:17-79:10.

Thus,

Gashinski and Garside are qualified to render the opinions in their
respect, and as such, the opinions fit the issues in dispute. See
Daubert, 509 U.S. at 591; see also Oddi, 234 F.3d at 145 (noting
“that an expert’s ‘qualifications’ are interpreted liberally”).
Accordingly,

the

Court

finds

plaintiffs’

first

objection

is

without merit.
The Court will now address each of the Affiliated Report’s
three ultimate opinions in sequence.
1. Opinion No. 1
Affiliated Report’s first opinion states as follows:
The subject shoulder bolt failed within the thread neck
region by ductile overload fracture that transitioned to
shear overload condition. This area of the assembled
fastener is not significantly loaded during intended use
such that the subject overload event could not have
occurred in the manner alleged.
Affiliated Report at 35.

6

The Court finds the first opinion in the Affiliated Report
satisfies Rule 702 and Daubert, supra, up and until the experts
opine as to “such that the subject overload event could not have
occurred in the manner alleged.” The Court finds the initial
portion of the opinion is based upon reliable scientific principles
and methodologies, and reasonably flows from the facts known to
defendant’s experts and the methods they employed. In their report
and at the Daubert hearing, Gashinski and Garside detailed the
extensive laboratory testing, visual inspections, and scientific
analyses

they

performed

in

rendering

their

conclusion.

As

discussed above, the experts’ reference to “intended use” refers
to the typical forces known to mechanically engage the bolt by
experts in their fields, a subject both experts are qualified to
opine on. See Tr., Aug. 19, 2019 at 78:17-79:10. Nonetheless, the
Court finds the last fourteen (14) words of the opinion, stating
“such that the subject overload event could not have occurred in
the manner alleged,” involve a fact question the jury must decide.
Therefore, the Court will strike this portion from opinion one.
2. Opinion No. 2
Affiliated Report’s second opinion states as follows:
There was no evidence of any design and/or manufacturing
defect that would have been causally related to the
subject shoulder bolt failing in the reduced crosssection region of the thread neck. In consideration of
the design application of the subject shoulder bolt to
the involved Micrograb, this region of the bolt would

7

not be subjected to any loading condition(s) to induce
such a failure during intended use.
Affiliated Report at 35.
The Court finds the second opinion in the Affiliated Report
satisfies Rule 702 and the Daubert standard for the reasons stated
above, in that: the experts are qualified to render the opinion in
their capacities as engineers; the opinion is based upon reliable
scientific principles and methods, including extensive laboratory
testing, visual inspections, chemical and failure analyses, and
mathematical formulas utilizing the bolt’s specification standard,
see Tr., Aug. 19, 2019 at 61:16-65:2; the opinion reasonably flows
from the facts known to the experts and the methodologies used;
and the conclusions drawn therein clearly fit the issues in dispute
in the case. Therefore, the Court finds the Affiliated Report’s
second opinion satisfies Daubert’s admissibility standard.
3. Opinion No. 3
Affiliated Report’s third opinion states as follows:
The observed failure mode of the bolt is not consistent
with the testimony and plaintiff’s [sic] allegations as
described. Accordingly, any opinion indicating the
subject failure was due to any impropriety or
shortcoming on the part of a distributor of the bolt
fastener is devoid of technical basis and should be
viewed as speculation at best.
Affiliated Report at 35.
The third opinion contained in the Affiliated Report is a
product of Gashinski and/or Garside’s own subjective beliefs and

8

speculation without any supporting analysis or evidence. As such,
the opinion fails to satisfy Rule 702’s fit requirement. See Holman
Enters. V. Fidelity and Guar, Ins., 563 F Supp. 2d 467, 472-73
(D.N.J. 2008) (striking the report because it was replete with
speculations and “blanket conclusions” that did “nothing to assist
the factfinder”). Further, the subject of opinion three is a fact
question for the jury and not a proper subject of expert testimony.
See

Krys

v.

Aaron,

112

F.

Supp.

3d

181,

203

(D.N.J.

2015)

(“[E]xperts may not provide testimony concerning ‘the state of
mind’ or ‘culpability’ of [a party].”). The jury will decide, not
Gashinski or Garside, as to whether testimony or descriptions
regarding plaintiffs’ fall incident are credible. Therefore, for
the reasons previously discussed, the Court strikes opinion three.
Conclusion
For all the reasons discussed above, the Court finds opinion
one, in part, and opinion two contained in the Affiliated Report
satisfy Daubert’s admissibility standard. However, the Court finds
that the last fourteen (14) words of opinion one, and opinion three
in full, do not meet the standard and must be stricken.

9

O R D E R
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED this 12th day of September 2019, that
plaintiffs’ “Motion to Strike Defendant Porteous/Brighton Best’s
Experts” [Doc. No. 280] is GRANTED in part and DENIED in part; and
it is further
ORDERED that plaintiffs’ motion is GRANTED as to opinion three
contained in the Affiliated Report, which is hereby STRICKEN; and
it is further
ORDERED that plaintiffs’ motion is GRANTED as to the last
fourteen (14) words of opinion one contained in the Affiliated
Report, which are hereby STRICKEN; and it is further
ORDERED that plaintiffs’ motion is DENIED as to the remaining
portion of opinion one contained in the Affiliated Report; and it
is further
ORDERED that plaintiffs’ motion is DENIED as to opinion two
contained in the Affiliated Report.

s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge

10