Dodson et al v. Beijing Capital Tire Company, Ltd. et al

Filing 68

MEMORANDUM (Order to follow as separate docket entry) re 38 MOTION in Limine to Preclude the Expert Testimony of Allan J. Kam filed by World Wide Distribution, Inc., 40 MOTION in Limine to Preclude the Expert Testimony of Willia m J. Woehrle filed by World Wide Distribution, Inc., 43 MOTION in Limine to Preclude Defendants from Raising the Alleged Negligence or Recklessness of Plaintiff as a Defense to Liability or Causation filed by Vincent Dodson, 45 MOTION in Limine to Preclude Evidence, Testimony or Argument Concerning Alleged Negligence of Plaintiff's Employer or Third Party in Causing the Subject Accident filed by Vincent Dodson, 47 MOTION in Limine to Preclude the Test imony of Defendants' Expert, Alfred Cipriani filed by Vincent Dodson, 49 MOTION in Limine to Preclude Evidence, Testimony or Argument Regarding Alleged Lack of Prior Similar Accidents filed by Vincent Dodson Signed by Magistrate Judge Karoline Mehalchick on 9/27/2017. (cw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
VINCENT DODSON, et al.,
Plaintiffs,

CIVIL ACTION NO. 3:14-CV-01358

v.

(MEHALCHICK, M.J.)

BEIJING CAPITAL TIRE COMPANY,
LTD, et al.,
Defendants.
MEMORANDUM
Before the Court are six motions in limine; four filed by the Plaintiffs, Vincent Dodson
and Rosalin Davis-Dodson, and two by Defendant, World Wide Distribution, Inc. Three
motions seek to preclude testimony from expert witnesses. The remainder seek to bar the
introduction of evidence on contributory negligence by Vincent Dodson or his employer, and
evidence on a lack of prior similar incidents to the one that caused Dodson’s injuries. For the
reasons articulated below, all six motions are DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY
As the Court writes primarily for the parties, the background and history are limited to

the immediately relevant circumstances of the pending motions.
This case stems from injuries suffered by Plaintiff Vincent Dodson, when a Beijing
Capital Tire Company (“BCT”) tire ruptured while Dodson mounted and inflated the tire
during his employment as a tire technician at Kost Tire and Auto Service. (Doc. 1). On July 15,
2014, Dodson filed suit against Defendants BCT and World Wide Distribution, Inc. (Doc. 1).
A separate action against Defendant Reemo Resources International, LTD was consolidated
with this action on January 6, 2016. (Doc. 16). To date, only World Wide Distribution has

appeared, and default judgment was entered against Reemo Resources on February 9, 2016.
(Doc. 19).
Two causes of action remain for adjudication: one for strict products liability predicated
on a defective design and negligence on the part of World Wide Distribution, Inc. for failing to
adhere to NHTSA guidelines on inquiry into the safety of the product and in allowing an unsafe
product to enter the market. Dodson asserts that an outdated “weftless” bead design caused the
tire to rupture during the mounting process, causing multiple injuries, numerous surgeries, and
essentially the loss of the use of his dominant arm. A weftless bead design relies on a cluster of
thinner metal wires wrapped around the tire to maintain structural integrity. Dodson asserts
that modern tires have long since abandoned such a design, with manufacturers instead relying
upon a single, thicker wire.
The parties have each filed motions in limine in anticipation of trial. In addition to
briefing, the Court held oral argument on each motion during the September 25, 2017 pretrial
conference. Defendant World Wide Distribution, Inc. seeks to bar the testimony of Plaintiff’s
experts Allan J. Kam and William J. Woehrle pursuant to Rule 702 of the Federal Rules of
Evidence. It argues that Kam’s testimony does not speak to causation and will only confuse the
jury. (Doc. 38; Doc. 39). It further submits that Plaintiff’s causation expert, William Woehrle, is
not qualified to render the expert opinion anticipated. (Doc. 40; Doc. 41).
Plaintiffs seek to preclude testimony from Defendant’s expert, Alfred Cipriani, on the
grounds that Cipriani’s opinion lacks a proper foundation and engages in improper speculation.
(Doc. 47; Doc. 48). Further, Plaintiffs ask the Court to restrict any testimony relating to
contributory negligence on the part of Dodson (Doc. 43; Doc. 44), Kost Tire and Auto Service
(Doc. 45; Doc. 46), and on a lack of prior, similar incidents. (Doc. 49; Doc. 50).
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II.

STANDARD OF REVIEW
The court is vested with broad inherent authority to manage its cases, which carries with

it the discretion to rule on motions in limine prior to trial. See Luce v. United States, 469 U.S. 38,
41 n.4 (1984); In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on
other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)
(noting that the court exercises its discretion to rule in limine on evidentiary issues “in
appropriate cases”). Courts may exercise this discretion in order to ensure that juries are not
exposed to unfairly prejudicial, confusing or irrelevant evidence. United States v. Romano, 849
F.2d 812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the evidentiary issues
for trial and to eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913
F.2d 1064, 1069 (3d Cir. 1990) (citation omitted). In considering motions in limine, which call
upon the court to engage in preliminary evidentiary rulings under Rule 403 of the Federal Rules
of Evidence, the Court begins by recognizing that these “evidentiary rulings [on motions in
limine] are subject to the trial judge's discretion and are therefore reviewed only for abuse of
discretion . . . . Additionally, application of the balancing test under Federal Rule of Evidence
403 will not be disturbed unless it is ‘arbitrary and irrational.’” Ely v. Cabot Oil & Gas Corp., No.
3:09-CV-2284, 2016 WL 454817, at *2 (M.D. Pa. Feb. 5, 2016) (citing Abrams v. Lightolier Inc.,
50 F.3d 1204, 1213 (3d Cir. 1995) (citations omitted)); see Bernardsville Bd. of Educ. v. J.H., 42
F.3d 149, 161 (3d Cir. 1994) (reviewing in limine rulings for abuse of discretion).

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The Federal Rules of Evidence provide that relevant evidence is generally admissible. 1
FED. R. EVID. 402. Evidence is “relevant” if its existence simply has “any tendency to make a
fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401(a)-(b). However, relevant evidence
may be excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice.” FED. R. EVID. 403. The balancing test under Rule 403 provides as follows:
[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
FED. R. EVID. 403.
Federal Rule of Evidence 702 governs the admissibility of expert testimony and requires
an expert witness to have "specialized knowledge" regarding the area of testimony. Rule 702
provides:
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:

1

The Federal Rules of Evidence can aptly be characterized as evidentiary rules of
inclusion, which are designed to broadly permit fact-finders to consider pertinent factual
information while searching for the truth. Ely v. Cabot Oil & Gas Corp., No. 3:09-CV-2284, 2016
WL 454817, at *3 (M.D. Pa. Feb. 5, 2016). The grounds for exclusion of evidence under Rule
403 are described as an exception to the general rule favoring admission of relevant evidence,
and by permitting the exclusion of relevant evidence only when its probative value is
“substantially outweighed” by other prejudicial factors, the Court’s discretion in considering
evidentiary rulings should consistently be exercised in a fashion which resolves all doubts in
favor of the admission of relevant proof in a proceeding, unless the relevance of that proof is
substantially outweighed by some other factors which caution against admission. Ely, 2016 WL
454817, at *3.
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(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.
“Rule 702 has three major requirements: (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 [, i.e., reliability]; and (3) the expert's testimony must assist the trier of
fact [, i.e., fit].” United States v. Schiff, 602 F.3d 152, 172 (3d Cir. 2010) (alterations in original)
(quoting Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008)).
In general, the Federal Rules of Evidence embody a strong preference for admitting any
evidence that may assist the trier of fact. FED. R. EVID. 402. Moreover, Rule 702 in particular
"has a liberal policy of admissibility." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d
Cir. 1997).
First, an expert is qualified if “the witness possess[es] specialized expertise.” Schneider ex
rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The United States Court of
Appeals for the Third Circuit interprets the qualifications requirement liberally, and notes that
“a broad range of knowledge, skills, and training qualify an expert as such.” In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994); Betterbox Commc'ns Ltd. v. BB Techs., Inc., 300
F.3d 325, 327-28 (3d Cir. 2002) ("[T]his specialized knowledge can be practical experience as
well as academic training and credentials . . . ."). Thus, “it is an abuse of discretion to exclude
testimony simply because the trial court does not deem the proposed expert to be the best
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qualified or because the proposed expert does not have the specialization that the court
considers most appropriate.” Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996); see
Pineda, 520 F.3d at 244 & n.11 (collecting cases that illustrate the permissive nature of
qualifications requirement). “However, at a minimum, a proffered expert witness must possess
skill or knowledge greater than the average layman.” Betterbox, 300 F.3d at 328 (quotation
omitted).
The second requirement under Rule 702 is that “the process or technique the expert used
in formulating the opinion is reliable.” Paoli, 35 F.3d at 742. Therefore, “the expert's opinion
must be based on the ‘methods and procedures of science’ rather than on ‘subjective belief or
unsupported speculation’; the expert must have ‘good grounds’ for his or her belief.” Paoli, 35
F.3d at 742 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)). The Daubert
court noted that the assessment of whether testimony is based on a reliable foundation is
“flexible.” Daubert, 509 U.S. at 594.
The third and last requirement under Rule 702 is “that the expert testimony must fit the
issues in the case.” Schneider, 320 F.3d at 404. This requirement is satisfied where the “expert
testimony proffered . . . is sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute.” Downing, 753 F.2d at 1242; “Rule 702's ‘helpfulness’ standard
requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.”
Daubert, 509 U.S. at 591-92. Although the applicable standard for determining “fit” is “not that
high,” it is nonetheless “higher than bare relevance.” Paoli, 35 F.3d at 745.
As a final note, in performing its gatekeeping function to determine whether an expert’s
proffer is reliable and relevant under Daubert and Rule 702, the trial court “is not to weigh the
evidence relied upon or determine whether it agrees with the conclusions reached therein."
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Walker v. Gordon, 46 F. App'x 691, 695 (3d Cir. 2002) (not precedential) (citing Breidor v. Sears,
Roebuck & Co., 722 F.2d 1134, 1138-39 (3d Cir. 1983) ("Where there is a logical basis for an
expert's opinion testimony, the credibility and weight of that testimony is to be determined by
the jury, not the trial judge.")).
In keeping with this framework, the Court turns to each of the motions in limine filed by
the parties.
III.

DISCUSSION
Because a determination in favor of the Plaintiff on the introduction of evidence

regarding contributory negligence necessarily may render Cipriani’s opinion irrelevant, the
Court addresses the motions on the scope of evidence to be offered first.
A. EVIDENCE ON THE CONTRIBUTORY NEGLIGENCE OF DODSON IS ADMISSIBLE.
Plaintiffs argue that evidence of misconduct, negligence, or recklessness on the part of
Vincent Dodson should not be admitted, as Pennsylvania law “precludes a defendant in a strict
liability case from raising the plaintiff’s negligence as a defense to liability or causation.” (Doc.
44, at 4).
Pennsylvania adheres to the definition of strict liability provided by the Second
Restatement of Torts having declined to embrace the revised definition provided by the Third
Restatement. See Gilmore v. Ford Motor Co., Nos. 2:12-CV-00547; 2:12-CV-00548, 2013 WL
869382 (W.D. Pa. Mar. 7, 2013); Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014). Under
the Restatement (Second):
(1) [o]ne who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
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(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of
his product, and
(b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
Restatement (Second) of Torts § 402A (1965).
Plaintiffs point to the comments appended to § 402A, which read, in part:
[s]ince the liability with which this Section deals is not based upon negligence of
the seller, but is strict liability, the rule applied to strict liability cases (see § 524)
applies. Contributory negligence of the plaintiff is not a defense when such
negligence consists merely in a failure to discover the defect in the product, or to
guard against the possibility of its existence. On the other hand the form of
contributory negligence which consists in voluntarily and unreasonably
proceeding to encounter a known danger, and commonly passes under the name
of assumption of risk, is a defense under this Section as in other cases of strict
liability. If the user or consumer discovers the defect and is aware of the danger,
and nevertheless proceeds unreasonably to make use of the product and is
injured by it, he is barred from recovery.
Restatement (Second) of Torts § 402A cmt. N (1965).
Defendant counters that strict liability is not the only cause of action, as the Plaintiffs
also have a claim for negligence pending. (Doc. 52, at 5). As consideration of Plaintiff’s
negligence claim would require consideration of contributory negligence, Defendant argues that
preventing the admission of such evidence due to strict liability would prevent defense on the
negligence action.
The Court finds that a properly instructed jury should be able to separate the issue of any
evidence on contributory negligence by the Plaintiff from consideration of a theory premised
upon strict liability. The question then becomes whether evidence of Plaintiff’s negligence is
relevant to the strict liability action. Defendant submits that evidence of negligence is relevant
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to the causation element of a strict liability claim, as manufacturers must anticipate the
expected use of a product.
“Although evidence of a user's negligence cannot be introduced at trial to excuse a
defective product or to reduce recovery by comparing fault, a plaintiff's conduct in a strict
products liability action may be relevant as it relates to causation.” Wright v. Ryobi Technologies,
Inc., 175 F.Supp.3d 439, 447 (E.D. Pa. 2016) (citing Madonna v. Harley Davidson, Inc., 708 A.2d
507, 508 (Pa. Super. Ct. 1998)). The plaintiff must establish that the product was defective and
that the defect was the proximate cause of the injury suffered. See Wright, 175 F.Supp.3d at 448
(citing Madonna, 708 A.2d at 508). Once a defect causing harm is established, negligence of the
user is irrelevant. Wright, 175 F.Supp.3d at 448.
“Although in a strict products liability case the plaintiff's negligence or contributory
negligence is not at issue, such evidence does bear on causation.” Wright, 175 F.Supp.3d at 449.
Evidence of misuse, including unforeseeable, outrageous, and extraordinary use of a product, is
admissible in considering the causation element of a strict products liability design defect claim.
See Wright, 175 F.Supp.3d at 448 (citing Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542
(3d Cir. 2007); Nathan v. Techtronic Indus. N. Am., Inc., 92 F.Supp.3d 264, 275 (M.D. Pa. 2015)).
The defendant bears the burden of proving the misuse of a product. Reott v. Asia Trend, Inc., 55
A.3d 1088, 1092 (Pa. 2012).
Where the proximate cause is at issue and reasonable minds may differ on the cause,
even in an action for strict liability, evidence bearing on causation is relevant. Where that
evidence is of negligence on the part of the user, the evidence remains nonetheless relevant.
Thus, evidence on Dodson’s negligence is relevant in considering causation. Accordingly, the

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Plaintiff’s motion in limine to preclude the Defendants from raising the alleged negligence or
recklessness of Plaintiff as a defense to liability or causation is DENIED.
B. EVIDENCE OF EMPLOYER OR THIRD-PARTY NEGLIGENCE IS ADMISSIBLE.
Plaintiffs have also challenged the admissibility of evidence regarding the negligence of
Dodson’s employer, Kost Tire and Auto Service. (Doc. 45; Doc. 46). Citing Tsarnas v. Jones &
Laughlin Steel Corp., 412 A.2d 1094, 1096 (Pa. 1980), Plaintiffs assert that Pennsylvania law
clearly states the negligence of an employer is not relevant in consideration of a claim brought
by an employee for injuries sustained as a result of the actions of a third-party tortfeasor. (Doc.
46, at 6). In Tsarnas, the plaintiff challenged the constitutionality of § 303(b) of the Workmen’s
Compensation Act, which read:
“(b) [i]n the event injury or death to an employee is caused by a third party, then
such employee, his legal representative, husband or wife, parents, dependents,
next of kin, and anyone otherwise entitled to receive damages by reason thereof,
may bring their action at law against such third party, but the employer, his
insurance carrier, their servants and agents, employees, representatives acting on
their behalf or at their request shall not be liable to a third party for damages,
contribution, or indemnity in any action at law, or otherwise, unless liability for
such damages, contributions or indemnity shall be expressly provided for in a
written contract entered into by the party alleged to be liable prior to the date of
the occurrence which gave rise to the action.”
Tsarnas, 412 A.2d at 1096.
In upholding the statute, the Pennsylvania Supreme Court summarized that:
a third party whose negligence is responsible, in part, for an injury suffered by an
employee protected by the Workmen's Compensation Act, may not, in the suit
brought by the employee against him, join the employer as an additional
defendant. Nor may the third party otherwise seek contribution or indemnity
from the employer, even though the employer's own negligence may have been
the primary cause of the injury.
Tsarnas, 412 A.2d at 1096.

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As noted by the Defendant, Kost is not a party, nor is there any intention that they be
joined. Thus, the takeaway from Tsarnas barring joinder of the employer is not at issue. The
introduction of evidence strictly on causation remains relevant to a strict products liability
determination. To wit, the Workmen’s Compensation Act provision cited by Plaintiffs and
discussed in Tsarnas opens with “[i]n the event injury or death to an employee is caused by a
third party . . .” See Tsarnas, 412 A.2d at 1096 (emphasis added). Causation remains a barrier to
negligence consideration. Once causation is proven attributable to the third party, then
employer negligence considerations are irrelevant. Until such a time, however, evidence bearing
on causation should not be discounted. Post-Tincher, the Pennsylvania Supreme Court
summarized the holding as eliminating the firm division between negligence and strict liability,
reflecting the difficulty in separating strict liability from negligence partially because the riskutility standard contained in Tincher invokes negligence considerations. See Webb v. Volvo Cars of
N. Am., LLC., 148 A.3d 473, 482 (Pa. 2016).
As with consideration of Dodson’s own alleged negligence, causation is a question to be
resolved by the jury. Where causation remains at issue, contributory negligence remains an
issue of material fact to for the jury to consider. See Bailey v. B.S. Quarries, Inc., No. 3:13-CV03006, 2016 WL 1271381, at *16 (M.D. Pa. Mar. 31, 2016). The risk of confusion remains
upon presentation of incongruent theories of negligence and strict products liability. However,
the Court believes proper jury instructions mitigate this risk of confusion. With the foregoing in
mind, the Court will permit the introduction of evidence on employer negligence to the extent
consistent with Pennsylvania law. Plaintiffs’ motion in limine to preclude evidence, testimony,
or argument concerning alleged negligence of Plaintiff’s employer or third party in causing the
subject accident is DENIED.
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C. EVIDENCE OF A LACK OF PRIOR, SIMILAR ACCIDENTS IS ADMISSIBLE.
Next, the Plaintiffs argue that evidence regarding the alleged lack of similar incidents
should be barred, as the demonstrated lack of a formal reporting system or knowledge of
reporting requirements shows there is not an adequate foundation for introduction of such
evidence. (Doc. 49; Doc. 50). Defendant responds that WWD designee Frank Lee was in
constant communication with buyers that would have informed him of incidents, as well as
constantly review safety recall postings. (Doc. 55).
As an initial matter, the parties disagree with the relevant guidance for inclusion. The
Plaintiffs argue that introduction of this type of evidence is governed by Spino v. John S. Tilley
Ladder Co., 696 A.2d 1169 (Pa. 1997). Defendant counters that Spino is not controlling as a state
case, citing Forrest v. Beloit Corp., 424 F.3d 344, 354 (3d Cir. 2005). Under either, the Court finds
that evidence of an alleged lack of prior similar incidents should be admitted.
First, the Court finds that the Federal Rules of Evidence are indeed the relevant
considerations for evidentiary matters. In federal actions based on diversity, the merits of the
case are to be resolved by the substantive law of the state in which the Court sits, while
procedural matters are governed by federal law. As such, the substantive law of Pennsylvania
law is utilized. See Dorshimer v. Zonar Sys., Inc., 145 F.Supp.3d 339, 351 (M.D. Pa. 2015); Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Guaranty Trust Co. v. York, 326 U.S. 99, 108
(1945).
As identified by Defendant, Forrest reiterates that the introduction of evidence regarding
a lack of prior, similar accidents is procedural in nature and thus governed by federal law. This
is a low bar, as the Court considers evidence relevant if it has any tendency to make a fact more
or less probable than it would be without the evidence and the fact is of consequence in
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determining the action. FED. R. EVID. 401. Defendant has made an initial showing on why it
would have known of any prior, similar incidents. “Regular conversations with buyers” has a
tendency to make the fact that WWD would have known of incidents more probable. Its
knowledge of incidents may be considered in a risk-utility analysis for strict liability. Thus, both
prongs are met. The extent to which this evidence is instructive is to be weighed by the jury.
Further, Spino does not stand for the overarching preclusion of a lack of prior incidents
in products liability cases—nor do Plaintiffs argue as much. The Spino Court was mindful that
“there is little logic in allowing the admission of evidence of prior similar accidents but never
admitting their absence.” Spino, 696 A.2d at 1174. In order to present such evidence however,
the defendant must establish a foundation that they would have known about them. See Spino,
696 A.2d at 1173. This gateway is inherently fact specific and varies on a case-by-case basis.
Spino, 696 A.2d at 1173. The Spino Court noted that prior claims testimony can and should be
addressed through cross-examination, which was not done at trial. However, the court did not
find the initial introduction of the reporting system to be in error. Likewise, while Defendant’s
reporting system may be challenged, an initial foundation describing the methods or lack
thereof for collecting information on incidents has been offered.
Accordingly, Plaintiffs’ motion in limine to preclude evidence, testimony, or argument
regarding alleged lack of prior similar accidents is DENIED.
D. THE OPINION OF DEFENDANT’S EXPERT WITNESS, ALFRED CIPRIANI,
SUFFICIENTLY CONCRETE AND RELEVANT TO BE ADMISSIBLE.

IS

Related to the motions to bar evidence of negligence by Dodson or Kost Tire and Auto,
as well as of a lack of prior, similar accidents, Plaintiffs also seek to bar the introduction of
opinions offered by Defendant’s expert witness, Alfred Cipriani. (Doc. 47; Doc. 48). Plaintiffs
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assert Cipriani’s testimony is speculative, lacking in adequate foundation, and does not reflect
the necessary degree of certainty to be admitted. (Doc. 48). They further argue that he is not
qualified to offer an opinion, because he admittedly is not a tire design expert. Defendant
responds that Cipriani is not an expert in tire design, he is an expert in accident reconstruction
and offers a firm opinion that the design of the tire is not the cause of the rupture. (Doc. 54).
First, the Court does not find the scope of Cipriani’s expertise bars the introduction of
his testimony. While he is not a tire design expert, Cipriani has created a report detailing the
cause of the rupture in this particular instance. (Doc. 48-3). The intent of his report is not to
declare the adequacy of the tire design, but to offer opinion on what caused the tire explosion.
(Doc. 48-3). The defective design is but one element in proving a claim for strict liability. A
plaintiff must still establish that the design defect is not unrelated and indeed caused the injuries
alleged. See Spino, 696 A.2d at 1172. As Cipriani is expected to testify that the cause of the
rupture is not attributable to the bead, his testimony remains relevant and his tire design
expertise will not preclude his introduction.
Thus, the Court turns to the contents of Cipriani’s opinion, which Plaintiffs describe as
speculative and without the necessary degree of certainty contemplated in McMahon v. Young,
276 A.2d 534 (Pa. 1971). In McMahon, the Pennsylvania Supreme Court reversed a jury verdict
where a physician’s testimony regarding the injuries of a party involved in a car accident was
couched in probability instead of certainty. McMahon, 276 A.2d at 535. The physician opined
that the injuries were “probably” caused by the accident. The Court summarized that “if the
plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a
medical judgment, there is nothing on the record with which a jury can make a decision with
sufficient certainty so as to make a legal judgment.” McMahon, 276 A.2d at 535.
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Plaintiffs argue that the language in Cipriani’s report is indistinguishable from the above,
and specifically point to Cipriani’s conclusion that the “[t]ire-changing machine condition,
machine operating procedures, tire mounting and demounting procedures, effects of prior
mounting and demounting of the Tire, and Tire history between time of manufacture,
installation, and the accident cannot be discounted as probable causal factors in this accident.”
(Doc. 48, at 9-10). Defendant argues that this statement does not stand alone, but is the
continuation of a conclusion that the weftless bead design was not the cause of the rupture.
(Doc. 54, at 7).
The critical consideration in evaluating Cipriani’s opinion is whether or not he
affirmatively and supportably finds that the design of the tire was not the cause of the accident.
“Speculative testimony or testimony made without reasonable certainty does not aid the trier of
fact and should be stricken.” Glencannon Homes Ass’n, Inc., v. N. Strabane Twp., 116 A.3d 706,
721 (Pa. Commw. Ct. 2015) (quoting Duquesne Light Co. v. Woodland Hills Sch. Dist., 700 A.2d
1038, 1047 (Pa. Commw. Ct. 1997)). However, “[a]n opinion of an expert based upon an
adequate factual foundation is neither speculative nor conjecture, but a legitimate inference and
as such has evidentiary value in determining disputed questions of fact.” Glencannon, 116 A.3d
at 721 (quoting Albig v. Mun. Auth. of Westmoreland Cnty., 502 A.2d 658, 667 (Pa. Super. Ct.
1985)).
The Court finds that Cipriani’s opinion indeed says that. Cipriani’s opinion directly
addresses the opinion offered by Plaintiffs’ expert William J. Woehrle, including making
specific judgments that the bead bundle did not rupture as indicated by Woehrle. (Doc. 48-3, at
32). Cipriani affirmatively states that Woehrle’s conclusions are not supported by a scientific

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examination of the tire, which shows that the rupture did not occur as described. (Doc. 48-3, at
32).
While not a tire design expert, his offered and unchallenged expertise in accident
reconstruction is relevant to evaluation of the circumstances at hand. Further, while including
inclusive language in places that by itself may not be permissible as expert testimony, Cipriani’s
conclusions as a whole contain affirmative declarations that refute the cause of the rupture as
alleged by Plaintiffs and their expert. Given this, the Court finds that Cipriani’s testimony is
relevant and meets the standard of certainty necessary for its admissibility. Thus, Plaintiffs’
motion in limine to preclude the testimony of Defendant’s expert, Alfred Cipriani, is DENIED.
E. EXPERT TESTIMONY FROM ALLAN J. KAM WILL ASSIST THE TRIER OF FACT
IN UNDERSTANDING THE EVIDENCE OR DETERMINING A FACT IN ISSUE.
Next, the Court turns to Defendant’s motions to preclude introduction of testimony by
Plaintiffs’ experts Allan Kam. (Doc. 38; Doc. 39). The Defendant argues that Kam’s testimony
will not assist the trier of fact as required by FED. R. EVID. 702, as Kam cannot offer opinion on
the design defect and his testimony on the “best practices” of importers would only confuse the
jury. (Doc. 39). The Plaintiffs respond that Kam will testify on the duties and expectations of an
importer before placing its product into the market. (Doc. 61). Further, they note Kam’s
testimony does not stand alone but is intended to work in conjunction with the testimony of
William J. Woehrle, who will testify to the defective design of the tire.
Testimony of expert witnesses is governed by Rule 702 of the Federal Rules of Evidence.
The Defendant has challenged Kam’s admission citing 702(a). Under Rule 702(a):
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:
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(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 . . .
FED. R. EVID. 702(a).
Thus, the Court is tasked with considering whether or not Kam’s testimony will assist
the jury in understanding the evidence or determining a fact in issue. Further, as Kam is offered
to address solely the concerns on due care and not causation, the Court need only consider
whether his testimony will assist in resolving standards of care expected of an importer. The
Defendant argues that Kam’s opinion will not assist in resolving the issues because “Kam fails
to address how WWD’s failure to have knowledge of or comply with the [sic] listed regulations
caused Plaintiff’s injury.” (Doc. 39, at 7). However, this argument blurs the line between the
duty owed and the legal cause of an injury.
Both duty and causation are necessary findings in resolving a claim for negligence,
however an expert need not testify to every element of a claim. The relevant inquiry again is
whether or not the testimony will assist the trier of fact in resolving a fact in issue. One fact in
issue is the standard of care expected of importers and the alleged breach thereof by WWD.
Kam’s opinion is offered in conjunction with the opinion of William J. Woehrle, who is
expected to testify to causation. The mere fact that Kam does not address causation is not
enough to bar his testimony, as his testimony still addresses a fact at issue.
Accordingly, the Court finds that the expert testimony offered by Allan J. Kam will
assist the trier of fact in understanding the evidence or determining a fact in issue. Having met
the bar for admission under Rule 702, Defendant’s motion in limine to preclude the expert
testimony of Allan J. Kam is DENIED.

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F. PLAINTIFFS’ EXPERT, WILLIAM J. WOEHRLE, IS QUALIFIED
OPINION ON THE DEFECTIVE DESIGN OF THE TIRE.

TO

OFFER

Lastly, the Court addresses the Defendant’s motion to preclude the testimony of
Plaintiffs’ expert William J. Woehrle (Doc. 40; Doc. 41). As with Kam, the Defendant’s basis
for challenge stems come the language of Rule 702. They argue that Woehrle does not have the
requisite expertise in tire design to render an opinion on the tire’s design as cause for the
rupture. (Doc. 41, at 5). They further point to the fact that Woehrle has no familiarity with BCT
tires, has never tested single strand bead tires to failure, and is not an accident reconstructionist.
(Doc. 41, at 5-6). The Plaintiffs argue that Woehrle has demonstrated automotive component
expertise acquired by over 50 years of relevant testing, including tire testing. (Doc. 58).
Experts must have specialized knowledge in the area they are expected to testify in. The
specialized knowledge expected of experts may be acquired through practical experience as well
as academic training and credentials. Elock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000)
(quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)). Guided by a policy of liberal
admissibility of expert testimony, Third Circuit Courts require that “at a minimum, a proffered
expert witness . . . must possess skill or knowledge greater than the average layman.” Elock, 233
F.3d at 741 (quoting Waldorf, 142 F.3d at 625).
Without engaging in a lengthy recitation of Woehrle’s CV, he has plainly engaged in
sufficient practical experience on automotive component testing to possess skill or knowledge
“greater than the average layman,” including directly relevant testing. He has offered a sworn
affidavit attesting to participating in testing for bead breaks in tires, examining tire failures
based on bead defects, the development of the single strand bead, studies in simulating bead

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stress capacity, as well as extensive professional experience in collateral but still related testing.
(Doc. 58-3).
Plaintiffs and Woehrle have made a satisfactory initial showing on Woehrle’s
qualifications. At a minimum, the Court finds Woehrle qualified to offer his opinion into
consideration. Thus, the Defendant’s motion in limine to preclude the expert testimony of
William J. Woehrle is DENIED.
IV.

CONCLUSION
For the foregoing reasons, the motions in limine in this matter (Doc. 38; Doc. 40; Doc.

43; Doc. 45; Doc. 47; Doc. 49) are DENIED. An appropriate Order follows.

s/ Karoline Mehalchick

Dated: September 27, 2017

KAROLINE MEHALCHICK
United States Magistrate Judge

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