DAVID ODDI; ERIN ODDI, HIS WIFE v. FORD MOTOR COMPANY; GRUMMAN ALLIED INDUSTRIES INC.; GRUMMAN OLSON BODIES, INC.; OLSON BODIES, INC. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, THIRD PARTY DEFENDANT DAVID ODDI, APPELLANT
No. 99-3406
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued: May 9, 2000 Filed October 13, 2000
234 F.3d 136
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Attorneys for Appellant: Paul A. Tershel, Esq. (Argued) Mary Chmura Conn, Esq. Tershel & Associates Helena Professional Building 55 South Main Street Washington, PA 15301
Attorneys for Appellee Ford Motor Company: John E. Wall, Esq. (Argued) Michael F. Nerone, Esq. Dickie, McCamey & Chilcote, P.C. Two Ppg Place, Suite 400 Pittsburgh, PA 15222-5402
Attorneys for Appellee Grumman Allied Ind., et al.: John H. Williams, Esq. (Argued) Gorr, Moser, Dell & Loughney 437 Grant Street 1300 Frick Building Pittsburgh, PA 15219
Before: Greenberg and McKee, Circuit Judges, and Garth, Senior Circuit Judge
OPINION FOR THE COURT
McKee, Circuit Judge.
David Oddi was catastrophically injured in a one-vehicle accident when the truck he was driving struck a guardrail and a bridge abutment. Thereafter, he filed two separate product liability actions in state court. He sued Ford Motor Company, which designed and manufactured the chassis of the truck, and he brought a separate action against Grumman Allied Industries, Inc. (then known as Olson Bodies, Inc), which designed and manufactured the finished truck. Ford and Grumman removed the actions to the district court where they were consolidated.1 Ford and Grumman eventually moved for summary judgment based upon their contention that Oddi could not establish a prima facie case because his proposed expert testimony failed to satisfy the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). The district court agreed and granted summary judgment in fаvor of Ford and Grumman, and against Oddi. The district court subsequently denied Oddi‘s motion for reconsideration, and this appeal followed. For the reasons that follow, we will affirm.
On June 21, 1993, Oddi was driving a bread truck owned and maintained by Continental Baking Company. He was proceeding northbound at exit 14 of Interstate 79 near Pittsburgh, Pennsylvania, at approximately 55 to 60 miles an hour when the truck struck a guardrail and bridge abutment. Oddi‘s legs were crushed so badly by the force of the accident that they both had to be amputated. Oddi‘s left arm was also permanently injured.
The truck was a 1976 special order Ford M-5000 Stripped Chassis that Continental had ordered through a Ford dealership for use as a bread delivery truck. When the truck left Ford‘s possession and control it was comprised only of basic component parts such as frame rails, axles, engine, drive train, wheels and a front bumper. Continental took delivery of the Stripped Chassis and delivered it to Grumman for the design and manufacture of the finished vehicle. Grumman designed and manufactured all necessary aspects of the vehicle pursuant to Continental‘s specifications. This included modifications to the occupant compartment (“cab“) and floor boards. Continental had used the truck as a bread delivery truck from 1976 through 1993, and it had been driven for hundreds of thousands of miles in that capаcity before this accident occurred.2
The suits that Oddi filed after his accident asserted claims against Ford and Grumman under theories of strict liability, negligence, breach of warranty and failure to warn.3 Oddi claimed Ford‘s defective design of the front bumper of the bread truck allowed the underside of the truck to ride up or “ramp” onto the guardrail and strike the bridge abutment.4 He also claimed that after the truck ramped onto the guardrail, the left front wheel of the truck hooked over the rail preventing him from steering away from the bridge abutment. He alleged that defects in the cab (designed and manufactured by Grumman) had caused the flooring to bend upon impact with the bridge abutment and apply such force as to crush both his legs. He also alleged that the truck rolled over and down an adjacent embankment after it struck the bridge abutment.
Ford denied any design defects and also denied that the truck ramped the guardrail. According to Ford, the truck simply struck the guardrail and rolled over it. Similarly, Grumman denied that the flooring was deficient or that it caused any injury at all.5
Oddi retained two experts to support his contention that his injuries were caused by defects in the manufacture and design of the truck. John N. Noettl, an engineer, was retained to testify about the defective design, and Leon Kazarian, a bio-mechanist, was rеtained to testify about the process by which Oddi received his injuries.
After deposing both of Oddi‘s experts, Ford and Grumman moved for summary judgment. Ford argued that all of Oddi‘s claims should be dismissed because Oddi‘s proposed expert testimony could not survive the threshold inquiry required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), and, therefore, Oddi could not establish a prima facie case. Grumman did not initially make a specific challenge under Daubert. Instead, Grumman initially argued only that Oddi‘s evidence was either inadmissible or failed to satisfy Oddi‘s burden of proof.
Oddi responded to the summary judgment motions by filing a brief in opposition, an affidavit of Noettl, and excerpts of Noettl‘s deposition testimony. Oddi did not request an evidentiary hearing or oral argument, nor did he submit anything else in response to Ford‘s Daubert challenge.
On March 31, 1999, the district court entered a Memorandum Opinion in which it ruled that Oddi‘s experts did not meet Daubert‘s admissibility standards. Absent the testimony of those experts, Oddi could not establish a prima facie case of liability, and the district court therefore granted summary judgment in favor of Ford and Grumman.
Oddi filed a motion for reconsideration in which his major argument was that the district court should have held a hearing on the Daubert challenge before granting summary judgment. However, the district court disagreed and on September 2, 1999, denied his motion for reconsideration. Oddi then sent a letter to the district court enclosing a copy of our August 2, 1999 decision in Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi argued that Padillas required that an evidentiary hearing be held so that he could meet the defendants’ Daubert challenges. However, the district court disagreed and issued a supplemental Memorandum Opinion in which it held that Oddi was not entitled to an evidentiary hearing.
This appeal followed.
II. THEORIES OF LIABILITY.
Although Oddi based his suits upon several different theories of liability, he only appeals the district court‘s grant of summary judgment on his crashworthiness and negligent failure to test claims. We will begin our inquiry by discussing each of those theories.
A. Crashworthiness.
“The term crashworthiness means the protection that a motor vehicle affords its passenger against personal injury or death as a result of a motor vehicle accident.” Kupetz v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. Super. 1994). The doctrine “imposes liability on the manufacturer not for causing the accident, but rather for failing to minimize the injuries or even increasing the severity of the injuries sustained in an accident brought about by a cause other than the alleged defect.” Habecker v. Clark Equipment Co., 36 F.3d 278, 283 (3d Cir. 1994) (“Habecker III“). “[T]he crashworthiness doctrine рermits a plaintiff to recover for enhanced injuries, i. e., only for those injuries he can prove he would not have sustained if he had been riding in a crashworthy vehicle.” Carrasquilla v. Mazda Motor Corp., 963 F. Supp. 455, 458 (M. D. Pa. 1997) (citations and internal quotations omitted). “[I]f enhanced injuries cannot be shown, then no liability exists as to the manufacturer.” Id.
Crashworthiness is a subset of products liability law.6 Although the Pennsylvania Supreme Court has not yet adopted the crashworthiness doctrine for products liability cases,7 we have predicted that it would do so in an appropriate case. See Habecker v. Clark Equipment Co., 942 F.2d 210 (3d Cir. 1991) (“Habecker II“).8 To establish a cause of action on a theory of crashworthiness, a plaintiff must show: (1) the design9 of the product was defective; (2) an alternative, safer design that was practical existed; (3) what injuries, if any, the plaintiff would have received had the alternative design been used; and (4) the defective design caused or exacerbated specific injuries.10 Barker v. Deere and Co., 60 F.3d 158, 161 n.3 (3d Cir. 1995) (citation omitted).
Oddi alleged that Ford and Grumman were negligent for “[f]ailing to do adequate, necessary and proper testing of the vehicle prior to the sale which would have revealed the dangerous condition of the product.” Complaint, at P 4r. Oddi refers to this theory of recovery as the tort of “negligent failure to test.” Oddi‘s Br. at 26. He claims that its elements are as set forth in 1836 Callowhill Street v. Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993). Oddi argues that under 1836 Callowhill Street he can recover under this theory if he establishes that: (1) the manufacturer has a duty to test its product; (2) the manufacturer breached that duty, i. e., the manufacturer did not test; and (3) the breach or the failure to test was the proximate cause of the plaintiff‘s injury. Oddi‘s Br. at 26.
In 1836 Callowhill, the court made several assumptions for purposes of ruling on a motion for summary judgment. The court assumed that defendant‘s product was defective, that the defect caused the alleged damage, and that the defendant had a duty to adequately test the defective product to discover the defect. Nevertheless, the court granted summary judgment to the defendant as to plaintiff‘s negligence claim. The court concluded that plaintiff did not “offer[ ] sufficient evidence of a breach of that duty [to] create a genuine dispute of fact.” Id. at 465. Consequently, although the court stated, that “[n]egligent failure to test is cognizable as a common law negligence theory,” 819 F. Supp. at 464-65, that decision cannot fairly be said to support the proposition that a manufacturer has a general duty to test a product to determine if it is defective.
Therefore, even if 1836 Callowhill were precedential and correctly stated the law of Pennsylvania, we would still be compelled to conclude that Oddi has cited no authority that establishes the principle that a manufacturer has a general duty to test its product. We have found no authority to support Oddi‘s contention that Pennsylvania recognizes an independent tort for “negligent failure to test,” and Oddi has offered none.
Rather, it appears that Oddi‘s “negligent failure to test” claim is, at bottom, nothing more than a routine products liability case based on negligence, and that the claimed negligence is the failure to test. Under Pennsylvania law, in order for an injured party to establish a cause of action against a manufacturer based upon the latter‘s breach of a duty, “the plaintiff must prove, not only that the product was defective and that the defect caused his[/her] injury, but in addition, [the plaintiff must prove] that in manufacturing or supplying the product the defendant failed to exercise due care.” Dambacher v. Malis, 485 A.2d 408, 424 (Pa. Super. 1984). Thus, Oddi must first establish that the vehicle was defective.
Thus, whether we view Oddi‘s theory as crashworthiness or negligence arising from a failure to test, he must establish a defect in the design of the truck in order to recover, and he must then show that that defect caused his injuries. As noted above, he attempted to do this through the proffered expert testimony of John N. Noettl and Leon Kazarian, but the district court refused to admit their expert testimony.
III. STANDARDS FOR ADMISSIBILITY OF EXPERT TESTIMONY.
Federal Rule of Evidence 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 expеrt by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Supreme Court amplified the operation and scope of Rule 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. There, the Court held that scientific knowledge requires
an inference or assertion... derived by the scientific method. Proposed testimony must be supported by appropriate validation -- i.e., “good grounds,” based on what is known. In short, the requirement that an expert‘s testimony pertain to “scientific knowledge” establishes a standard of evidentiary reliability.
[T]he trial judge must determine at the outset, pursuant to Rule 104(a),11 whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.
Id. at 592-93. The proponent must satisfy this burden “by a preponderance of proof.” Id. at 593 n.10.
Although “[m]any factors will bear on the inquiry,” the Court has set out some “general observations,” Id. at 593, that serve as guideposts in determining if proffered expert testimony is sufficiently relevant and reliable to be admissible.12 First, “a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Id. Second, the court should consider “whether the theory or technique has been subjected to peer review and publication.” Id. Publication, which is an element of peer review, “is not a sine qua non of admissibility: it does not equate with reliability.” Id. It may, however, suggest “good science.” Id. “The fact of publication (or lack thereof) in a peer reviewed journal will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology upon which an opinion is premised.” Id. at 594. Third, “in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, and the existence and maintenance of standards controlling the technique‘s operation.” Id. Fourth, and finally, “general acceptance” can have bearing on the inquiry. Id. “Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support with the community may properly be viewed with skepticism.” Id. However, “general acceptance” is “not a necessary precondition to the admissibility of scientific evidence.” Id. at 597. The Court also emphasized that the “inquiry envisioned by Rule 702 is... a flexible one,” and noted that the “focus... must be solely on principles and methodology, not on the conclusions they generate.” Id. at 595.
Shortly after the Supreme Court decided Daubert, we applied its teachings in In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994) (“Paoli II“). There, we concluded that Rule 702 has two major requirements; “qualifications” and “reliability,” and noted that an expert‘s “qualifications” are interpreted liberally. In discussing “Reliability” we listed the factors enunciated in Daubert but noted the continued vitality of our prior analysis in United States v. Downing, 753 F.2d 1224 (3d Cir. 1985). We held that a “district court should take into account all of the factors listed by either Daubert or Downing as well as any others that are relevant,” Paoli II, at 742, in conducting an inquiry into the reliability of proposed expert testimony. The factors that are relevant under Daubert and Downing include: “(1) whether a method consists of a testable hypothesis; (2) whether the method has been subjected 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 thе method has been put.” Paoli II, at 742 n. 8.
In Paoli II, we also stated that the expert‘s testimony must “fit,” in that it must assist the trier of fact. Id. at 743. Admissibility thus depends in part upon “the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case.” Id. This standard is not intended to be a high one, nor is it to be applied in a manner that requires the plaintiffs “to prove their case twice -- they do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.” Id. at 744. This is a very important distinction. The test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether the “particular opinion is based on valid reasoning and reliable methodology.” Kannankeril v. Terminix International Inc., 128 F.3d 802, 806 (3d Cir. 1997). “The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination.” Id.
Although Daubert was decided in the context of scientific knowledge (whether evidence established a connection between the defendant‘s drug and birth defects), Daubert has since been extended to the kind of “technical or other specialized knowledge,” at issue here. See Kumho Tire Co., Ltd. v. Carmichael, 526 U. S. 137, 141 (1999) (“We conclude that Daubert‘s general holding--setting forth the trial judge‘s general `gatekeeping’ obligation--applies not only to testimony based on `scientific’ knowledge, but also to testimony based on `technical’ and `other specialized’ knowledge.“). The expert in Kumho Tire was an engineer and the Court there framed the issue before it as “how Daubert applies to the testimony of engineers and other experts who are not scientists.” Id. at 141.
We examine the specific testimony that was excluded here against this background. “We afford a district court‘s application and interpretation of Rule 702 plenary review, Paoli II at 749, but we review the court‘s decision to admit or reject testimony under an abuse of discretion standard. Joiner, at 143. An abuse of discretion arises when the district court‘s decision “rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 127 (3d Cir. 1993). An abuse of discretion can also occur “when no reasonable person would adopt the district court‘s view.” Id. We will not interfere with the district court‘s exercise of discretion “unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Id.
IV. THE CHALLENGED EXPERT TESTIMONY.
A. John N. Noettl.
Noettl, the accident reconstruction/design engineer, was to testify that the truck was defectively designed.13 Noettl‘s proffered testimony is contained in a preliminary report dated June 16, 1997; an amended report dated December 4,1997; an affidavit dated September 23, 1998; and two depositions.
In his preliminary report, Noettl opined that the truck Oddi was driving
rode up on the guard rail because of the failure of the left side of the front bumper.... Had the bumper not significantly deformed back and inward the vehicle would have been deflected by the guard rail.
It is also my opinion that the floor board allowed intrusion by the guard rail and possibly the concrete barrier into the occupant compartment in the area near the brake pedal and where the driver‘s feet and legs would be located. This intrusion was a direct cause of the injuries to Mr. Oddi.
Had the bumper and the floor board been properly structurally designed the vehicle would not have gone over the guard rail and the occupant compartment would not have been intruded by the guard rail and concrete barrier. App. at 104-105.
After he reviewed the deposition of defense expert Donald Edelen, Noettl submitted an amended report, dated December 4, 1997. In it he stated:
It is my opinion that [Ford] should have warned [Grumman] of the fact that the front bumper on their chassis is for decorative trim only and will not offer protection to the body and occupant in a collision. As a result of the design of the chassis and bumper, the front wheels of the vehicle become exposed in foreseeable accident situations. Ford should have specifically warned that the bumper was extremely weak due to the fact that it had no backing plate or brackets for reinforcement and because it had holes in the bumper placed immediately adjacent to the outside where the bumper mounted to the chassis.
* * * * *
Neither Ford nor Grumman conducted any testing that involved the vehicle impacting with guardrails. Neither Ford nor Grumman incorporated any design(s) into the chassis or body of the vehicle that would prevent or reduce the likelihood of the vehicle going ovеr a guardrail in the event of an impact with a guardrail. Due to the vehicle‘s height, weight, and design the vehicle as a propensity to ramp up onto the guardrail in foreseeable collision situations.14.. This design defect caused or contributed to the cause of the accident and to Mr. Oddi‘s injuries.
In response to summary judgment motions, in which Ford and Grumman noted certain deficiencies in Noettl‘s submissions, Noettl prepared an affidavit which Oddi‘s counsel attached to Oddi‘s response to the summary judgment motions. That affidavit is dated September 23, 1998, and reads, in relevant part:
1. Given the basic design of this vehicle, the following is a description of alternative designs that in my opinion, would have (1) prevented the Oddi vehicle from ramping the guard rail and (2) prevented the intrusion which occurred of structural components into the occupant compartment.
A. A reinforced bumper. The bumper on the subject vehicle had a measured 3.5 X 6.5 inches holes at critical stress points next to the frame rails to which the bumper is attached. The holes were designed and manufactured by the bumper manufacturer. The bumper should have been reinforced at these points by eliminating the holes and/or welding inch to inch steel reinforcement wedges between the frame rails and the upper and lower edges of the back side of the bumper.
B. Steel brackets should have been welded to the... back side of the upper and lower edges of the back of the bumper.
C. The bending and tensile properties and or metal thickness of the bumper should have been increased in addition to A or B as described above.
D. Various bumper configurations such as tubular or cylinder designs should have been manufactured and tested in addition to A, B, and C above. These bumper configurations are stronger than flat bumpers with similar metal characteristics.
E. The occupant compartment should be reinforced by increasing the bending and tensile properties and metal thickness (by.125 inch increments) in the area of the floorboard and fire wall and\or by welding or forming ribbing to the metal in this area. Safety factors of fifty or hundred percent are common in products.
2. I have observed bracket and wedge bumper reinforcements on similar vehicles. As to metal thickness -- the steering components on the subject vehicle were protected by a measured.35 inch (approximately) thick steel enclosure while the bumper on this vehicle was designed to be.208 inch thick-- a difference of approximately .142 inch.
3. Guard rails of this type are common in road way design and vehicle encounters of the type that happened with the Oddi vehiclе should be expected by manufacturers.
4. The design changes I have described were capable of being incorporated into the design and manufacture of this truck in 1976 using basic engineering design and manufacturing techniques.
5. The design changes I have described would not interfere with the function or intended use of the truck.
6. In my opinion the above design changes would have greatly increased bumper strength and occupant compartment protection with very little total incremental vehicle manufacturing cost.
7. It is my opinion that if the design changes described above were incorporated into the manufacturing process of the Oddi vehicle it would not have ramped on to the guard rail and would not have experiences sudden deceleration from striking the bridge abutment. This would have prevented the intrusions into the occupant compartment and the significant injury which Mr. Oddi sustained.
App. at 123-24.
In one of his depositions, Noettl testified that he based the opinions contained in his June 16, 1997 preliminary report in part on a review of accident reports, photographs, witnesses’ statements, Oddi‘s medical records, and Oddi‘s deposition testimony; and in part on his own [Noettl‘s] “experience,” “academic training,” and “research that [he does] almost on a continuous basis, reviewing technical literature.” Apр. at 138-139. However, Noettl was unable to identify any particular literature that he relied upon to form any of the opinions contained in his preliminary report. Id. Noettl testified that he did view films of crash tests in forming his opinions, Id. and he insisted that the alternative designs he suggested could be found in “any machine design book.” Id. at 48-49. Noettl did list a number of accepted authorities and textbooks in a document Oddi‘s counsel refers to as an “offer of proof.” Id. at 201.
However, when Noettl was asked to elaborate upon his belief that the bumper was defectively designed because it bent backward upon striking the guardrail the following exchange occurred:
Q: Now, have you determined what force was inflicted on the guardrail at the time of initial impact with the truck?
A: No, I haven‘t. No.
Q: Have you determined what force the truck inflicted on the bridge abutment and the rail on top of the bridge abutment when it made contact with that?
A: No, the reason for answering both those questions, you would have a range of variables, also, but guardrails are designed to absorb energy and deflect vehicles. You would have to make an awful lot of assumptions.
Q: Have you determined or measured the strength or rigidity of the guardrail?
A: No.
Q: You haven‘t ascertained how much force it could hold, is that correct?
A: That‘s correct. App. at 43-44.
Later in the deposition, Noettl testified as follows:
Q: Do you know how much force it took to bend that bumper to the point where it‘s bent?
A: No, I don‘t.
Q: Do you know how much force that bumper was capable of sustaining without bending? Have you determined that?
A: I haven‘t determined that, right. Id. at 46-47.
When Noettl was questioned about his proposed designs for the bumper, and design changes that would have been necessary to remedy the suggested defect, he offered several possibilities, but he conceded that he had not attempted to test or substantiate the modifications he was suggesting.
Q: What type of metal should the wedge be constructed from?
A: It could be the same as the bumper, if you wanted to, but you just turn it on end. You could have many, many choices on that.
Q: What if you used a brace? What type of metal should that brace be constructed from?
A: Again, you could use the same as the bumper. Again you would have a lot of choices on that. The bracketry would probably not be as strong as the wedge. Probably not. Test it and maybe you would achieve a strength that would far exceed anything you could expect.
Q: What would be the tensile strength or the gauge of the metal have to be on both of those options?
A: The way you go through is look up in books and you say, “Here. We got some metal here and let‘s try this.” Certain gauge, certain strength, something that is readily available. It‘s not a big thing, is what I‘m trying to say. You certainly would not cut holes in it right at one of the most critical points of where you major bending force is going to occur, which is at your railing.
Q: So this would be something relatively simple to look up in a book, and you could determine from the computations in some engineering book what you should be using. What would the name of the book be?
A: Any machine design book.
Q: Is that a particular book or is that a type of a book, machine design book?
A: That‘s a type of book.
Q: Could you give me an authority?
A: There are machine design books that give you all types of metal gauges. If you go through the design process for any of these things on a bumper, frame rails, exactly what they do -- they don‘t sit down. They don‘t do finitе element analysis. They look up in books what metal thickness, what‘s our yield strength, what‘s our tensile properties of this metal, bang, bang, bang. We‘re going to use this.
Q: Have you done that?
A: No. I haven‘t done that, no.
Q: So you don‘t know what the thickness would have to be, what the metal gauge, what the tensile strength --
A: Right.
Q: -- what type of material you would need to use; is that correct?
A: I told you I would use -- probably start with the same material that you have in the bumper. Take a piece of metal, turn it on its edge, put it in back of it, weld it on there for a test, see what strength you do gain out of this as far as impact, as far as bending moments and as far as shearing. You sure hope it won‘t shear off. You would do that. You would say, “I want it a little bit stronger.” The easiest way, by far, is to thicken the metal. That‘s all you have to do. Get a lower gauge metal and put that on there and try it again.
Q: How thick would the metal have to have been to have not deformed in this impact?
A: I would say, in my opinion, half inch to an inch and a half range would be more than adequate to withstand the force on edge. That‘s the thickness, not the width.
Q: What would the width be?
A: I don‘t know. Three inches or so, four inches.
Kazarian, the biomechanical engineering consultant, was retained to explain how Oddi received his injuries. Kazarian authored a preliminary report, dated June 18, 1997, in which he opined: “On impact, the end of the bridge pierced and penetrated the driver‘s occupant compartment impaling, cutting and crushing Mr. Oddi‘s extremities.” The report noted that Oddi “was found outside the vehicle on the grassy slope next to the bridge.” App. at 113. Though Oddi had been thrown from the truck, Kazarian concluded that Oddi had “sustained his primary injuries at the time he was in the driver‘s seated position,” and that his injuries occurred “as a result of the bridge piercing, penetrating and crushing his extremities while he was in the driver‘s compartment.” Id.
The following exchange occurred during Kazarian‘s deposition:
Q: Have you considered what would have happened to Mr. Oddi in the event that there was no compromise to the floor of the vehicle and he still had the same accident? Are you able to tell us what would have happened to him physically?
A: No, not as I sit here.
Q: It could have been worse, it could have been better?
A: I don‘t know.
*****
Q: And you hold no opinion on whether or not the vehicle mounted the guardrail, correct?
A: That‘s correct.
Q: Given that, have you considered what injuries, if any, Mr. Oddi would have sustained if the vehicle didn‘t mount the guardrail or ramp the guardrail?
A: No.
Q: So I take it that since you haven‘t considered that aspect, that you hold no opinions as to what injuries, if any, Mr. Oddi would have sustained had the vehicle not mounted or ramped the guard rail.
A: Yes. As I sit here, I haven‘t thought about that.
Grumman‘s Br. at 32. Therefore, although Kazarian testified about how Oddi received his injuries, he was unable to offer an opinion on the key aspect of Oddi‘s crashworthiness claim, i.e., whether Oddi‘s injuries were exacerbated by the design of the bread truck.
V. DISCUSSION.
Oddi argues that the district court erred in denying his motion for an in limine hearing on the Daubert challenge, and in granting summary judgment. We will address each argument separately.
A. Necessity for an in limine Hearing under Daubert.
Oddi bases his contention that a hearing was required upon Kumho Tire (decided just one week before the district court granted summary judgment here), and our holding in Padillas.15 We decided Padillas one month after the district court granted summary judgment.
Oddi submits that his case had been pending for four years before the Supreme Court decided Kumho Tire, and that Kumho Tire was not decided until after each of the following occurred in his case: (1) he filed his experts’ reports; (2) his experts had been deposed; (3) defendants had filed their summary judgment motions; and (4) he had filed his papers in opposition to the summary judgment motions. Oddi‘s Br. at 15. Moreover, he claims that from the time he started his lawsuit until Kumho Tire was decided, the law did not assess nonscientific expert testimony under Daubert. Id. Nonetheless, the district court expressly subjected Noettl‘s testimony to Daubert scrutiny under Kumho Tire. See 3.31.99 Dist. Ct. Op. at 3, 7.
Thus, though not clearly articulated, Oddi is arguing that Kumho Tire worked a substantial change in the law and that the district court blind-sided him by subjecting his experts’ testimony to a Daubert analysis. He contends that the district court‘s failure to hold an evidentiary hearing “precluded [him] from ever having the opportunity to present [his] expert testimony in accordance with the Kumho decision.” Oddi‘s Br. at 15.
Nevertheless, we do not think that Oddi‘s reliance on Kumho Tire establishes that the district court erred in granting summary judgment here without an in limine hearing. Oddi was surely alerted to this problem when Ford raised a Daubert challenge in its summary judgment motion. In his brief in opposition to the defendants’ summary judgment motions, Oddi specifically discussed Daubert, and argued that his experts’ testimony satisfied Daubert. App. at 70-94. Despite the uncertain scope of Daubert, he never argued that Daubert did not apply to nonscientific expert testimony. Moreover, Oddi now reads far too much into our decision in Padillas.
It is not clear whether Oddi is arguing that Padillas always requires a hearing or that the procedural posture of his case is so like Padillas that the district court abused its discretion by not holding an in limine hearing. In Padillas, we focused upon the process by which the district court there determined that proffered expert testimony was inadmissible under Daubert. 186 F.3d at 417 (“We do not reach the question whether the district court abused its discretion in holding the [expert‘s] Report inadmissible under Rule 702. Our concern is with the process by which the court arrived at its ruling.“).
Padillas had been injured while hosing down a chicken cutting machine manufactured by Stork-Gamco. The cutting machine had an exposed cutting blade. He sued Stork-Gamco alleging strict products liability, negligence, breach of warranty and failure to warn. To establish liability, Padillas retained an engineering expert (Lambert) who opined in a written report that Stork-Gamco‘s failure to provide a guard that would prevent the snagging of the hose during wash-down and its failure to protect workers from the cutting blade resulted in a defective machine that caused his injury. Id. at 416.
Stork-Gamco filed a motion for summary judgment, arguing that Lambert‘s report did not meet the Daubert standards for admissibility. The district court agreed, excluded the report, and then granted summary judgment to Stork-Gamco. In reversing and remanding for an in limine hearing on Lambert‘s proffered testimony we criticized the process used by the district court. We noted at the outset that we have “long stressed the importance of in limine hearings under Rule 104(a) in making the reliability determination under Rule 702 and Daubert.” Id. at 417 (internal quotations and citations omitted). We also reiterated the importance of an in limine hearing in ruling upon Daubert challenges even in the absence of a request for such a hearing. We stated that the district court has an “independent responsibility for the proper management of complex litigation” and emphasized that the plaintiff “need[s] an opportunity to be heard” on the critical issues of scientific reliability and validity. Id. The opportunity to be heard is important because it allows a plaintiff “a chance to have his or her expert demonstrate and explain the `good grounds’ upon which the expert evidence rests.” Id. at 418.
However, our analysis in Padillas cannot be divorced from the record that was before us. In commenting upon the district court‘s Daubert analysis of Lambert‘s report, we noted that it “does not establish that Lambert may not have `good grounds’ for his opinions, but rather, that they are insufficiently explained and the reasons and foundations for them inadequately and perhaps confusingly explicated.” Id. Lambert‘s report was quite conclusory and did not adequately explain the basis for his opinion, or the methodology employed in reaching his conclusions. It was in that context that we held that if the district court “was concerned with the factual dimensions of [Lambert‘s] evidence... it should have had an in limine hearing to assess the admissibility of the report giving the plaintiff an opportunity to respond to the court‘s concerns.” Id. (citation and internal quotations omitted). We stated, “when the ruling on admissibility turns on factual issues,..., at least in the summary judgment context, failure to hold [an in limine] hearing may be an abuse of discretion.” Id. (emphasis added).
Initially, we suspect that Oddi is being disingenuous in stating that the district court found that the basis of Noettl‘s conclusions was “confusing.” The district court‘s reference to “сonfusion” had nothing to do with its decision to exclude Noettl‘s testimony. Rather, the “confusion” stemmed from a statement Noettl made in his December 4, 1997 amended report. He there referred to an alleged defect based upon the height, weight and design of the truck. He said those factors created a propensity to ramp. In his motion for reconsideration, Oddi claimed that he was entitled to reconsideration because the district court “disregarded his defect claim regarding the vehicle‘s `propensity to ramp’ ” because of the size of the vehicle. 9/2/99 Dist. Ct. Op. at 9-10. The district court‘s “confusion” was nothing more than a reference to the fact that neither the court nor the defendants could have interpreted Noettl‘s testimony about the truck‘s “propensity to ramp” as advancing an additional design defect apart from the defective bumper and flooring. To alleviate its “confusion,” the district court reviewed Noettl‘s deposition testimony on that issue and quite correctly concluded that Noettl was not raising an alternative or additional design defect theory. 9/2/99 Op. at 13. See n.15, supra. Thus, the district court did not disregard any of Noettl‘s theories and was not confused about the basis of Noettl‘s opinions.
More to the point however, Oddi‘s attempt to equate his circumstances with thоse in Padillas ignores the record here. As noted above, the record in Padillas was scant, and the district court therefore had no way of determining how Lambert had arrived at his conclusions about the chicken cutting machine. Accordingly, we held that the court had an independent obligation to reach a decision upon a record that had been adequately developed to allow for a meaningful evidentiary determination. We based that holding upon two separate considerations. “First,... the court has an independent responsibility for the proper management of complex litigation. Second, because plaintiff could not have known in advance the direction the district court‘s opinion might take and thus needed an opportunity to be heard on the critical issues before having his[/her] case dismissed.” Id. at 417 (citations omitted).
Here, however, the evidentiary record pertaining to Oddi‘s expert was far from scant. As noted, it consisted of: (1) a preliminary report; (2) an amended report, prepared after Noettl reviewed the deposition testimony of a defense expert; (3) an affidavit specifically prepared to meet the defendants’ Daubert challenge contained in their summary judgment motions; and (4) Noettl‘s two depositions. The district court therefore apparently saw no need to conduct a hearing before ruling on the Daubert challenges. This is consistent with Padillas and perfectly appropriate under Kumho Tire.
In Kumho Tire the expert‘s proffered testimony was taken from deposition testimony. 526 U. S. at 142 (“The plaintiffs rested their case in significant part upon deposition testimony provided by an expert in tire failure analysis,..., who intended to testify in support of their conclusion.“). In the district court, the defendants requested an in limine hearing to challenge the plaintiff‘s expert‘s proffered testimony. However, the district court refused that request, finding that two depositions submitted to it (one from the case before it and one from an unrelated case involving similar issues) were sufficient to allow an inquiry under Daubert. See Carmichael v. Sanyang Tires, Inc., 923 F. Supp. 1514, 1518 (S. C. Ala. 1996). In approving the process the district court used to conduct its Daubert inquiry the Court wrote:
The trial court must have the same kind of latitude in deciding how to test an expert‘s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert‘s relevant testimony is reliable. Our opinion in Joiner makes clear that a court of appeals is to apply an abuse-of-discretion standard when it reviews a trial court‘s decision to admit or exclude expert testimony. That standard applies as much to the trial court‘s decision about how to determine reliability as to its ultimate conclusions.
The same situation obtains here. Although Oddi strenuously claims that he was entitled to an in limine hearing, he does not even begin to suggest how such a hearing would have advanced his position, and we can not begin to imagine that it would have. He does not claim that he has any new or additional information to present, and he does not claim that the factual record before the district court was somehow incomplete insofar as Noettl‘s testimony is concerned.17 Rather, he merely insists that he is entitled to a hearing under Padillas. However, “Padillas certainly does not establish that a District Court must provide a plaintiff with an open-ended and never-ending opportunity to meet a Daubert challenge until plaintiff `gets it right.’ ” In re TMI Litigation, 199 F.3d at 159. Yet, that is where Oddi‘s argument would take us.
Moreover, Oddi‘s reliance upon a denial of an in limine hearing also reflects a basic misperception about the nature of the hearing the court might have conducted even if it had afforded Oddi such a hearing. In Downing, we reiterated that trial courts retain significant discretion to determine in each instance “the procedure [it] should follow in making preliminary determinations regarding admissibility of evidence.” 753 F.2d at 1241. We said that “we will not prescribe any mandatory procedures that district courts must follow in every case involving proffers of scientific evidence,” and then noted “[a] few general observations...” as to how thе preliminary evidentiary issues might be decided under Rule 702. We stated:
It would appear that the most efficient procedure that the district court can use in making the reliability determination is an in limine hearing. Such a hearing need not unduly burden the trial courts; in many cases, it will be only a brief foundational hearing either before trial or at trial but out of the hearing of the jury. In the course of the in limine proceeding, the trial court may consider, inter alia, offers of proof, affidavits, stipulations, or learned treatises, in addition to testimonial or other documentary evidence (and, of course, legal argument).
Id. Here, the district court already had before it the depositions and affidavits of the plaintiff‘s experts. Nothing more was required.
This conclusion is not inconsistent with our recent holding in Elcock v. Kmart Corp., 2000 WL 1486489 (3d Cir. Oct. 10, 2000). There, we reversed an award of damages and remanded for an in limine hearing as to the admissibility of the testimony of plaintiff‘s economic loss expert. The witness in question, Dr. Chester Copemann, testified as an expert in vocational rehabilitation, and his testimony “substantially informed the large award for loss of future earnings and earning capacity.” Id. at * 1. We reversed based upon our conclusion that “there should have been a Daubert hearing prior to the receipt of Copemann‘s testimony....” Id. The defendant there had “repeatedly requested that the District Court conduct a Daubert hearing regarding Copemann‘s methods as a vocational rehabilitationist.” Id. at *7. The case was litigated before the Supreme Court‘s holding in Kumho Tire, and the district court did not view the admissibility of the testimony of plaintiff‘s nonscientific expert as a Daubert issue.
[A] review of Copemann‘s vocational rehabilitation testimony demonstrates the significant reliability questions raised by his methodology and compels the conclusion that a Daubert hearing would have permitted a fuller assessment of Copemann‘s analytical processes and thus was a necessary predicate for a proper determination as to the reliability of Copemann‘s methods.
Because “the evidentiary requirement of reliability is lower than the merits standard of correctness,” the standard for determining scientific reliability “is not that high.” Paoli II, at 744-45. The test is not “[w]hether the... expert might have done a better job.” Kannankeril, 128 F.3d at 809. Nonetheless, even though the
(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.
Noettl posited two hypotheses. His first hypothesis was that the front bumper‘s design should have included either bracketry or a brace system that would have increased the bumper‘s rigidity, prevented the truck from ramping, and deflected the vehicle back onto the roadway after impact with the guard rail. His second hypothesis was that thicker and/or ribbed metal on the flooring of the cab would have retained the integrity of the cab. However, Noettl quite candidly testified that he never tested either hypothesis. Consequently, he has not satisfied the first of the Daubert factors. The Supreme Court has explicitly instructed, “[o]rdinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert, at 593 (emphasis added).
Q: What type of vehicles [did you examine]?
A: Bread trucks.
Q: Whose bread trucks? Who made them?
A: They were in front of a grocery store and I walked up and looked at them. I didn‘t record anything off of them. I seen them [i.e., bracketry or wedge supports] on them [i.e., front bumpers].
*****
Q: You didn‘t make a note of what the bread truck was so you could go back and say, “Here‘s the design I‘m proposing and somebody is already using this.”
A: I said that in my mind, and I had groceries and I didn‘t have a camera and nothing else.
Q: You don‘t remember the name of the bread company?
A: No, I don‘t. It might come to me. I can‘t tell you, no.
*****
Q: You don‘t know whether or not those trucks would have sustained a bending of the bumper the same as this truck because we don‘t know what the forces are, right?
A: I would say that they have a better chance, but I can‘t tell you more than that, no. That‘s correct.
*****
Q: But, what you‘ve seen, you don‘t know whether or not that would have changed the scenario in this accident one way or the other?
A: I haven‘t evaluated that.
App. at 53.
Q: What if the guardrail was deformed and bent back by the force of the impact so it was bent to the point where it was lower than the bumper? Could a ride-up occur then?
A: It if was bent back further than the bumper‘s height.
Q: If it was bent back and, therefore, it was lower than the height of the bumper, could it ride up?
A: It‘s possible. I haven‘t thought of it, and how long. I would have to look at that. If you, your tire is exposed to ramping --
Q: If you have the bumper and the guardrail here and the guardrail bends down to a point lower than the bumper, the tire could ride up on it, isn‘t that correct?
A: That is a possibility, yes.
App. at 46.
Noettl also conceded that strengthening the bumper as he proposed could result in even greater injury because the increased rigidity could transmit more force to the driver of the truck than the defendants’ design.
Q: To get back to my question, would the energy-- if you had a rigid bumper, on impact, the energy of the impact and the force of the impact would be transferred to the occupants, right?
A: Some of it would, yes.
Q: More of it would than if you had a bumper that had give to it?
A: Right.
Noettl‘s explanation of the purported defеct in the floor of the truck was undermined by the same laws of physics that undermined his testimony that the bumper design was defective.
Q: What was wrong with [the floor]?
A: It wasn‘t strong enough to prevent intrusion in this type of an accident into the occupant compartment, exposing the driver to the dangers of that intrusion.
Q: What should have been done?
A: The metal could have been made thicker. It could have been ribbed.
3/31/99 Op. at 12-3. However‘s Noettl‘s own logic clearly suggests that any such alteration may well have been less able to absorb impact itself, and therefore it may have simply transferred even more force to the occupant than the defendants’ design did. Although it may well be that there is an ideal thickness that would have been able to absorb far greater force than the defendants’ design yet still protect the truck‘s occupant, Noettl was not able to identify that point. He was asked “How thick should it have been?” He responded: “Well, the way I would do that is to thicken the metal and rib it and then do a test to see, if under these types of foreseeable accidents, it would really retain the integrity of the occupant compartment.” 3/31/99 Op. at 12-13. However, he never did that. Id.
Essentially, Noettl‘s expert opinion that the front bumper would have sustained the impact with the guard rail and not ramped had it been strengthened with either bracketry or wedge supports and that the flooring in the occupant compartment should have been thicker or ribbed is based on nothing more than his training and years of experience as an engineer. Although there may be some circumstances where one‘s training and experience will provide an adequate foundation to admit an opinion and furnish the necessary reliability to allow a jury to consider it, this is not such a case. See e.g., Lauria, at 599 (former Conrail foreman‘s many years of experience with railroad track equipment, maintenance and safety equipment, qualified him as an expert to testify about Amtrak‘s responsibility to inspect and maintain railroad track in a safe condition). Noettl‘s ipse dixit does not withstand Daubert‘s scrutiny. An “expert‘s opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.” Paoli II, at 742 (citations and internal quotations omitted).
We also note an obvious gap in Oddi‘s argument. As recited earlier, Oddi retained two experts, Noettl and Kazarian. The district court also found that Kazarian‘s expert opinion testimony did not satisfy Daubert. 3/31/99 Dist. Ct. Op. at 15-16. Kazarian‘s expert opinion went to the “enhanced injuries” element of the crashworthiness claims. Unless Oddi can establish that the defendants’ design and/or manufacture enhanced injuries he would not have otherwise sustained, or caused him to sustain injuries that he would not have sustained otherwise, there can be no recovery under a theory of crashworthiness. Carrasquilla, 963 F. Supp. at 458. Consequently, even assuming arguendo that Oddi convinced us that Noettl‘s testimony was improperly excluded, his failure to address the admissibility of Kazarian‘s testimony means that Oddi has no admissible evidence to demonstrate the “enhanced injuries” elements of a crashworthiness claim.21
Finally, Oddi argues that the district court erred by granting summary judgment to Ford and Grumman on his negligent failure to test claim. As noted, Oddi claims that a manufacturer has an affirmative duty to test its product to see if it is defective. He then contends that “it is within the comprehension of lay jurors to understand that if the Defendants had tested this truck, they would have been aware that, in an accident, its design would defeat the purpose of a guardrail.” Oddi‘s Br. at 27. Accordingly, Oddi argues that even if his expert testimony was properly excluded, his negligence claim still survives because he does not need expert testimony to establish that claim.
As a general principle, “[e]xpert evidence is not necеssary... if all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training of the subject under investigation.” Padillas, at 415-16 (citation omitted); see also Cipriani v. Sun Pipe Line Co., 574 A.2d 706, 710 (Pa. Super. 1990) (“However, expert testimony is not required when the matter under consideration is simple and lack of ordinary care is obvious and within the range of comprehension of the average juror.“)(citations omitted). Although expert evidence is generally required in a products liability case where a defect is alleged, we have never foreclosed the possibility that a defective condition may be established through non-expert evidence. In Padillas we opined that since the case was at the summary judgment stage, it was “premature to rule out that testimony and pictures may enable the jury to clearly see the construction of the machine and the manner of its use, rendering expert testimony unnecessary.” Padillas, at 416. Consequently, we held that it was entirely possible that Padillas’ non-expert testimony may be “sufficient to submit his claim of defect to the jury.” Id.
We do not believe that a juror could look at the front bumper and the flooring of the cab of the truck Oddi was driving and reasonably conclude, not only that its design was defective, but also that testing would have disclosed the defect and that it could have been remedied. Such conclusions are within the peculiar competence of experts. Inasmuch as Oddi‘s “defect expert” does not survive Daubert scrutiny, the district court properly granted summary judgment to Ford and Grumman on Oddi‘s negligent failure to test claim.22
We are not unsympathetic to Oddi. He suffered horrific and catastrophic injuries while driving the truck that had been designed and/or manufactured by the defendants. That does not, of course, establish that either defendant is necessarily liable for any of those injuries or that Oddi‘s proffered proof was sufficient to prove liability on their part. Nor does our holding suggest that every plaintiff must engage in such sophisticated and refined testing (inсluding crash-testing) as to preclude a successful suit for damages for all but the wealthiest of plaintiffs or a group of plaintiffs sufficiently large to allow the economies and practicalities of class certification. The inquiry required under Daubert ought not to become an impenetrable barrier for plaintiffs with limited resources or restricted circumstances. As noted above, the Supreme Court reminds us that the “inquiry envisioned by