Landis et al v. Jarden Corporation et al

Filing 717

ORDER denying 492 HEARTHMARK, LLC AND WAL-MART STORES, INC.S MOTION TO LIMIT THE TESTIMONY OF PACKAGING SERVICE COMPANY, INCS EXPERT, JOHN L. SCHUMACHER. Signed by Chief Judge John Preston Bailey on 1/15/14. (njz)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

KIMBERLY LANDIS and ALVA NELSON,
as parents and guardians of A.N., a minor,
Plaintiffs,
v.

Civil Action No. 2:11-CV-101
(BAILEY)

HEARTHMARK, LLC, d/b/a Jarden Home
Brands, WAL-MART STORES, INC.,
C.K.S. PACKAGING, INC., PACKAGING
SERVICE COMPANY, INC., and
STULL TECHNOLOGIES, INC.,
Defendants/Third Party Plaintiffs,
v.
KIMBERLY LANDIS and ALVA NELSON,
in their individual capacities,
Third Party Defendants.

ORDER DENYING HEARTHMARK, LLC AND WAL-MART
STORES, INC.’S MOTION TO LIMIT THE TESTIMONY OF
PACKAGING SERVICE COMPANY, INC’S EXPERT, JOHN L. SCHUMACHER
Pending before this Court are defendants Hearthmark, LLC and Wal-Mart Stores,
Inc.’s Motion to Limit the Testimony of Packaging Service Company, Inc.’s Expert, John L.
Schumacher [Doc. 492]. The Motion has been fully briefed and is ripe for decision.
In the above Motion, the parties seek to limit the testimony of the defendant’s expert,
John L. Schumacher, under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
1

The admissibility of expert opinion testimony is governed by Federal Rule of
Evidence 702, which 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: (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.
The rules applicable to determining whether expert testimony should be admitted
are set forth in Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999):
Expert testimony is admissible under Rule 702, then, if it concerns (1)
scientific, technical, or other specialized knowledge that (2) will aid the jury
or other trier of fact to understand or resolve a fact at issue. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). The first prong of this
inquiry necessitates an examination of whether the reasoning or methodology
underlying the expert's proffered opinion is reliable - that is, whether it is
supported by adequate validation to render it trustworthy. See id. at 590 &
n. 9. The second prong of the inquiry requires an analysis of whether the
opinion is relevant to the facts at issue. See id. at 591-92. Thus, an expert's
testimony is admissible under Rule 702 if it “rests on a reliable foundation

2

and is relevant.” Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)
(internal quotation marks omitted).
A district court considering the admissibility of expert testimony
exercises a gate keeping function to assess whether the proffered evidence
is sufficiently reliable and relevant. See id. at 1174. The inquiry to be
undertaken by the district court is “a flexible one” focusing on the “principles
and methodology” employed by the expert, not on the conclusions reached.
Daubert, 509 U.S. at 594-95. In making its initial determination of whether
proffered testimony is sufficiently reliable, the court has broad latitude to
consider whatever factors bearing on validity that the court finds to be useful;
the particular factors will depend upon the unique circumstances of the
expert testimony involved. See Kumho Tire Co., 119 S.Ct. at 1175-76
(footnote omitted). The court, however, should be conscious of two guiding,
and sometimes competing, principles. On the one hand, the court should be
mindful that Rule 702 was intended to liberalize the introduction of relevant
expert evidence. See Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th
Cir. 1996). And, the court need not determine that the expert testimony a
litigant seeks to offer into evidence is irrefutable or certainly correct. See id.
As with all other admissible evidence, expert testimony is subject to being
tested by “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596. On
the other hand, the court must recognize that due to the difficulty of

3

evaluating their testimony, expert witnesses have the potential to “be both
powerful and quite misleading.” Id. at 595 (internal quotation marks omitted).
And, given the potential persuasiveness of expert testimony, proffered
evidence that has a greater potential to mislead than to enlighten should be
excluded. See United States v. Dorsey, 45 F.3d 809, 815-16 (4th Cir.
1995).
178 F.3d at 260-61.
The first issue which must be addressed is whether Mr. Schumacher is “qualified as
an expert by knowledge, skill, experience, training, or education” to render the opinions
which he has proffered. “Under Rule 702, to be ‘qualified’ as an expert, a witness must
have ‘knowledge, skill, experience, training, or education’ in the subject area in which he
intends to testify. Fed.R.Evid. 702. An expert's qualification depends on ‘the nature of the
opinion he offers.’ See Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir.
1984).” Foster v. Legal Sea Foods, Inc., 2008 WL 2945561 (D. Md. July 25, 2008).
This Court has no quarrel with Mr. Schumacher’s qualifications. Mr. Schumacher
has a BS in Chemical Engineering from the University of Illinois and a Masters of Chemical
Engineering from the Illinois Institute of Technology. He is a licensed chemical engineer,
an IAAI Certified Fire Investigator, and a National Fire Protection Association (“NFPA”)
Certified Fire Protection Specialist who specializes in determining the origin and causes of
fires and explosions, analyzing flammable and combustible liquid-related accidents, and
others. He has investigated hundreds of fires and explosions ans has evaluated the
flammability characteristics of numerous materials.

4

In Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378 (4th Cir. 1995), the court first
reviewed the basic holdings of Daubert, and then stressed that Daubert has not imposed
a “rigid test or checklist” of factors:
In offering these guidelines, the court emphasized that it was not formulating
a rigid test or checklist, relying instead on the ability of federal judges to
properly determine admissibility. In conclusion, the Court held that the
Federal Rules of Evidence, especially Rule 702, assign to the trial judge the
task of ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.
66 F.3d at 1384 (internal citation and quotation omitted).
In Harris v. Norfolk Southern Ry. Co., 2013 WL 1136644, *3 (S.D. W.Va. March
18, 2013), Judge Goodwin stated that “As stated in Westberry, ‘The inquiry to be
undertaken by the district court is “a flexible one” focusing on the “principles and
methodology” employed by the expert, not on the conclusions reached.’ Westberry, 178
F.3d at 261 (quoting Daubert, 509 U.S. at 594-95).”
Judge Goodwin added, “I ‘need not determine that the proffered expert testimony
is irrefutable or certainly correct’ - ‘[a]s with all other admissible evidence, expert testimony
is subject to testing by “[v]igorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof.”’ United States v. Moreland, 437 F.3d 424,
431 (4th Cir. 2006) (quoting Daubert, 509 U.S. at 596 (alteration in original); see also Md.
Cas. Co. [v. Therm-O-Disc, Inc.], 137 F.3d at 783 (noting that ‘[a]ll Daubert demands is
that the trial judge make a “preliminary assessment” of whether the proffered testimony is

5

both reliable ... and helpful’).” Id.
This Court has carefully reviewed the 211 pages of materials submitted in
connection with this Motion and finds that the criticisms of Mr. Schumacher’s testing and
opinions are fodder for cross-examination rather than a basis to exclude the testimony and
opinions of Mr. Scumacher.
Accordingly, defendants Hearthmark, LLC and Wal-Mart Stores, Inc.’s Motion to
Limit the Testimony of Packaging Service Company, Inc.’s Expert, John L. Schumacher
[Doc. 492] is DENIED.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: January 15, 2014.

6