Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : HEATHER SHANNON, : CIVIL ACTION : Plaintiff, : : v. : No. 09-5220 : HOBART, et al., : : Defendants. : : MEMORANDUM ROBERT F. KELLY, Sr. J. FEBRUARY 8, 2011 Presently before the Court is Defendants Hobart and Hobart Corporation’s (collectively, “Hobert”) Motion for Summary Judgment against Plaintiff Heather Shannon (“Shannon”). Hobert has also filed Motions In Limine to Exclude the Testimony and Opinions of John Bassini and to Exclude the Testimony and Opinions of Carolyn C. Uveges, Lorraine E. Buchanan, and David L. Hopkins For the reasons set forth below, the Motions for Summary Judgment and In Limine to Exclude the Testimony and Opinions of John Bassani will be granted, and the remaining Motion In Limine denied as moot. I. BACKGROUND Shannon filed the instant action in the Philadelphia Court of Common Pleas alleging claims of negligence, product liability, and breach of warranty against Hobart. (Compl. ¶¶ 7- 40.) This action was removed to this Court on November 10, 2009, and Shannon’s Motion to Remand back to state court was denied on December 2, 2009. This action arises out of an incident on April 4, 2007 when Shannon was working with a Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 2 of 21 commercial food mixer1 in the kitchen at a Chuck E. Cheese restaurant in Allentown, Pennsylvania. Shannon asserts that she was training a co-worker, Arlene Rodriguez (“Rodriguez”), on how to use the mixer. She states that after they mixed the ingredients to make pizza dough in the bowl of the machine, she watched Rodriguez press the stop button, move the clutch to the off position, and turn off the timer as she had trained her to do.2 (Def.’s Mot. Summ. J., Ex. D at 77-79.) Shannon testified that she trained Rodriguez to never touch any of the buttons or levers when someone was removing dough from the mixer. (Id. at 79.) She asserts that she then put her entire upper body, including her head, inside the mixer’s bowl to remove the dough. (Id. at 86.) Shannon asserts that while head-first inside the bowl, Rodriguez turned on the mixer causing the agitator to begin rotating and strike her in the jaw and shoulders causing her serious injuries (Id. 61, 79-80.) Shannon claims that the mixer’s design was defective at the time it was manufactured in 1982, and was to blame for the accident. (Pl.’s Resp. Mot. Summ. J., at 1.) II. MOTION TO EXCLUDE EXPERT TESTIMONY Hobert has challenged the admissibility of the opinion of Shannon’s expert, Dr. John Bassani (“Dr. Bassani”.) The admissibility of expert evidence is governed by Rule 702 of the 1The mixer was a Hobart model M-802. (Pl.’s Resp. Mot. Summ. J., Ex. A at 1.) It stood approximately 65 inches tall and 27 inches wide with an 80-quart bowl. (Id. at Ex. D, p.7.) Shannon claims that Hobart engaged in the selling, marketing, manufacturing, and design of the mixer. (Compl. ¶ 5.) 2The mixer’s basic parts include a stand, an agitator, and a bowl. The operating controls include a start button, a clutch lever, and a timer. (Defs.’ Mot. Summ. J., Ex. B at 5-6.) In order for the agitator to rotate, the start button must be pressed, the clutch lever moved to the run position, and the timer set. (Id. at Ex. C, p.7.) 2 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 3 of 21 Federal Rules of Evidence.3 In order for expert evidence to be admissible, it must satisfy three requirements. Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). First, the proffered witness must be qualified as an expert. Id. Second, the expert must testify about matters requiring scientific, technical, or specialized knowledge. Id. And third, the expert’s testimony must assist the trier of fact. Id. In assessing these three requirements, “a trial judge acts as a gatekeeper to ensure that any and all expert testimony or evidence is not only relevant, but also reliable.” Pineda, at 520 F.3d 243 (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993)). There is a strong preference under the Rules of Evidence for admitting any evidence that may be relevant and assist the trier of fact in reaching a decision. See Fed.R.Evid. 401 (defining “relevant evidence” as any evidence which has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). Indeed, “Rule 702, which governs the admissibility of expert testimony, has a liberal policy of admissibility.” Kannankeril v. Terminix Int'l, 128 F.3d 802, 806 (3d Cir. 1997). 3Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. (Fed.R.Evid. 702.) 3 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 4 of 21 A. Qualification In order for an individual to be qualified as an expert, the person must “possess specialized expertise.” Pineda, 520 F.3d at 244. The Third Circuit has construed “special expertise” liberally and has held that a broad range of knowledge, skills, and training can qualify an individual as an expert. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). Indeed, the Third Circuit has “eschewed imposing overly rigorous requirements of expertise and [has] been satisfied with more generalized qualifications.” Id. In this case, Hobert challenges Dr. Bassani’s qualifications on the basis that he possesses no experience in the area of designing or manufacturing commercial food mixers. However, Dr. Bassani’s curriculum vitae indicates that he qualifies as an expert in the field of mechanical engineering. Dr. Bassani holds a Ph.D. in engineering from Harvard University, and currently serves as a Professor of Mechanical Engineering at the University of Pennsylvania. (Pl.’s Resp. Mot. Summ. J., Ex. B.) Dr. Bassani has also been a professor in the University’s Mechanical Engineering and Applied Mechanics department for the last thirty years. (Id.). On the basis of these credentials, we find that Dr. Bassani is qualified as an expert in the field of mechanical engineering. However, as will be discussed infra, we find his methodology to be unreliable. B. Reliable Methodology The second consideration, whether the expert will testify about matters requiring scientific, technical, or specialized knowledge, has been interpreted to mean that “an expert’s testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable.” Pineda, 520 F.3d at 244. An expert’s opinion can be deemed reliable if it is “based on the methods and procedures of science rather than on subjective belief or unsupported 4 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 5 of 21 speculation,” thereby giving an expert “good grounds” for his belief. Paoli, 35 F.3d at 742. Here, Hobert asserts that there is “absolutely no methodology underlying Bassini’s opinion.” (Defs.’ Mot. Limine to Exclude Opinion of John Bassini, at 3.) Hobert argues that Dr. Bassani’s lack of methodology and experience render his opinion unreliable in that he simply looked at the mixer and concluded that the mixer was defectively designed because it was not equipped with an interlocked bowl guard when it was manufactured in 1982. The interlocked guard was designed and manufactured twelve years later in 1994 and was, subsequently, added to the mixer after this accident. (Id.) Shannon asserts that Dr. Bassani’s opinions are adequately based on scientific and technical methodology. Shannon states that Dr. Bassani spent 1 to 1 ½ hours inspecting and operating the mixer. He turned it off and on 15 to 20 times, moved the various levers, raised and lowered the bowl, and changed the speed. (Bassani Dep. at 25-26.) Shannon states further that Dr. Bassani reviewed the Complaint and other Court documents including depositions and answers to interrogatories in arriving at his conclusions. (Pl.’s Resp. Mot. Summ. J., Ex. A at 1.) In addition, Shannon argues that in his report, Dr. Bassani called upon his own knowledge and experience, and drew upon resources such as the American Society of Mechanical Engineers (“ASME”) Code of Ethics of Engineers which dictates that safety be the “first and foremost consideration for any engineering design.” (Id.) Shannon adds that Dr. Bassani then applied the engineering principles found in the Accident Prevention Manual of the National Safety Council and other “related books and peer reviewed publications” to arrive at five priorities of 5 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 6 of 21 requirements for an engineering design.4 (Id.) Dr. Bassani stated in his report that he applied these criteria to the facts before him and arrived at the conclusion that the danger of someone being hurt in this case was not eliminated through the basic design of the machine. (Id.) He opined that a “guard with an interlocking device to stop the agitator from moving when the guard was open” was required to eliminate the defect. (Id. at 2.) Dr. Bassani also noted that such a guard was installed on the mixer after Shannon was injured and that “without such a bowl guard, the [M] –802 mixer was an unsafe 4Dr. Bassani stated in his report that these priories are: 1. The highest priority in safe product design is to eliminate the hazard. If the hazard is completely eliminated through design, there is no need to address lower priorities; 2. The second best solution to problems associated with a potentially dangerous product is to neutralize the hazard with fixed guards, automatic-stop devices, or other protective safety devices. The hazard remains, but user behavior modification is not required; 3. Warnings are the third priority. If the hazard cannot be completely designed away or guarded against, warnings are the next option; 4. Next in the hierarchy of hazard removal is the development and implementation of operational procedures and employee training programs; and 5. When all else fails, product users are given protective equipment, clothing, and shielding to increase safety in certain situations. (Id. at 2.) 6 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 7 of 21 design and posed hazards to the user.”5 (Id. at 1.) Dr. Bassani also expressed the opinion that the mixer was defective since “it did not have the proper warning and instruction concerning its use.” (Id. at 3.) The Third Circuit has suggested the following list of factors that the trial judge may consider in determining reliability: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Pineda, 520 F.3d at 248 (citing Paoli, 35 F.3d at 742 n. 8). These factors, however, are not exclusive, nor do they 5Dr. Bassani stated in his report: Guards and interlocking switches are a generally recognized method of restricting machine movements and possible injury to operators. Designs with such components are not a new concept and, in fact, have been recognized for years prior to the manufacture and design of the subject mixer. The subject mixer, at the time of the design and manufacture, should have had a safety interlock bowl guard that would have prevented operation when the guard was in an open position. The guard could have been easily designed and fabricated to add protection to the mixing operation. One obvious design, given the configuration of the Hobert M-802 agitator and bowl, is a two-piece guard with a front portion that rotates inside the rear portion and with an interlocking switch that requires the guard to be in a closed position before the mixer can operate. Such a guard could have been readily designed for ease in use to add or remove ingredients and to connect or remove agitators. The front portion could easily be detached for cleaning and the rear portion could be easily cleaned in position. (Id.at 2.) 7 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 8 of 21 apply to all cases. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). Rather, the test of reliability is flexible, it “grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142. To the extent applicable, these factors will guide our consideration of whether Dr. Bassani’s proposed testimony is reliable and would assist the fact-finder. Pineda, 520 F.3d at 244. Since an expert’s “conclusions and methodology are not entirely distinct from one another,” Montgomery County v. Microvote Corp., 320 F.3d 440, 448 (3d Cir. 2003), a “court may conclude that there is simply too great a gap between the data and the opinion proffered,” General Electric v. Joiner, 522 U.S. 136, 146 (1997). Such is the case here. In considering several of the factors above, we find that Dr. Bassani’s methodology was not reliable and will exclude his opinion from evidence. As noted, an expert’s opinion cannot be based on unsupported speculation. Paoli, 35 F.3d at 742. The case of Oddi v. Ford Motor Company is instructive. See 234 F.3d 136 (3d Cir. 2000). In Oddi, the Court of Appeals in finding the expert’s methodology unreliable placed great emphasis on the fact that the expert never tested his hypotheses, never calculated the force inflicted on the truck that had been involved in the crash, and never measured the strength of the guardrail involved. 234 F.3d at 158. Instead, the expert simply examined the damaged truck and concluded it could have been designed more safely. The Court noted that the expert’s opinion was “based on nothing more than his training and years of experience as an engineer,” and was therefore “ipse dixit.”6 Id. The Court added that there was nothing in the expert’s opinion to 6Ipse dixit is defined as “a bare assertion resting on the authority of an individual.” Black’s Law Dictionary 828 (6th ed.1990). 8 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 9 of 21 submit to peer review, and it was impossible to ascertain any rate of error for the expert’s assumptions. Id. The Court further stated that no standards controlled the expert’s analysis, and no “gatekeeper” could assess the relationship of the expert’s method to other methods known to be reliable and the non-judicial uses to which they had been put. Id.; see also Meadows v. Anchor Longwall and Rebuild, Inc., 306 Fed. Appx. 781 (3d Cir. 2009) (affirming the exclusion of testimony where the expert not only “did not attempt to replicate the conditions . . . at the time of the accident” but also gave “no reference to material, publication or literature describing the failure scenario,” presented “no evidence that his methodology was subjected to peer review or that it is generally accepted,” cited to “no outside documentary evidence,” and presented the court with “no evidence concerning any known or potential error rates in his testing[ ] and no control standards”); Johnson v. SJP Mgmt. LLC, No. 07-5545, 2009 WL 367539, at * 13 (E.D. Pa. Feb.12, 2009) (rejecting an opinion that “appear[ed] to be based more on an instinctive reaction to the materials . . . provided than on any testable hypothesis”); Booth v. Black & Decker, Inc., 166 F. Supp. 2d 215, 221 (E.D. Pa. 2001) (excluding the testimony of an expert who “performed no tests of his own to determine whether his hypotheses were indeed true” but rather “merely examined the [allegedly defective] toaster oven and concluded it could have been safer”); Hamilton v. Emerson Elec. Co., 133 F. Supp. 2d 360, 372 (M.D. Pa. 2001) (rejecting the testimony of an expert who reached the “conclusion that the [miter] saw was defective . . . based only on his own authority”). As noted above, Dr. Bassani spent time physically examining the mixer. In his report, he states that his opinion that the mixer was defective as designed was based on such examination, his own knowledge and experience, resources such as the ASME, and applied engineering 9 Case 2:09-cv-05220-RK Document 20 Filed 02/08/11 Page 10 of 21 principles found in the Accident Prevention Manual of the National Safety Council. However, just as with the expert in Oddi, it is apparent that Dr. Bassani merely examined the mixer and concluded it could have been safer because a guard could have been designed and fabricated back in 1982. Having carefully reviewed Dr. Bassani’s expert report and deposition transcript, we find his inquiry into whether the mixer was defective to be speculative and haphazard, his methodology to be unreliable, and, consequently, his conclusions to be suspect. Dr. Bassani produced no persuasive, objective evidence that his method was subject to peer review, had a known or potential rate of error, could be measured against existing standards, or was generally accepted, as required by Rule 702. Dr. Bassini’s opinion is simply not based on any reliable methodology, but rather based on his own speculation that a guard could have been designed and fabricated back in 1982. He offers no publications or any other evidence from the food industry or elsewhere that such a guard was feasible or used on other similar machines back in 1982. His deposition testimony indicates that he had never designed any commercial food equipment, manufactured any commercial food equipment, worked for a commercial food manufacturer, or published any articles on the design or manufacture of commercial food equipment. (Bassani Dep. 32-34.) In addition, Dr. Bassini has never even been involved in a case involving commercial food equipment and had no prior opinions regarding commercial mixers prior to this case. (Id. at 21, 65.) Moreover, Dr. Bassani had never even operated a commercial food mixer before the day he inspected the mixer involved in this litigation, nor did he even attempt to familiarize himself with commercial mixers or food equipment. (Id. at 24, 27.) Dr. Bassini testified at his deposition: 10