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rejecting Kumho challenge that expert had relied on improper edition of book in the absence of any evidence that the edition utilized by expert was inaccurate in any way
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CIVIL ACTION NO. 01-1555 (JEI)
May 6, 2003
Cherry Hill, New Jersey, GERARD J. JACKSON, Esq., Attorney for Plaintiffs.
MONICA E. O'NEILL, Esq., JENNIFER L. CORRY, Esq., POST SCHELL, Philadelphia, Pennsylvania, Attorney for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO PRECLUDE THE TRIAL TESTIMONY OF IRVING FRUCHTMAN
This matter having appeared before the Court upon the Defendant's motion to preclude the trial testimony of Irving Fruchtman, the Court having reviewed the submissions of the parties, and it appearing that:
1. The individual Plaintiffs are the sole members of the Holly Beach Condominium Association, which consists of one two — family structure located in Wildwood, New Jersey. According to the Plaintiffs, in September 1999 they discovered, through an inspection by engineer Irving Fruchtman, that there was significant damage to the pilings supporting their structure. At issue in this motion is Fruchtman's proffered trial testimony.
2. In an order dated December 19, 2002, this Court made a series of rulings on various summary judgment motions of the Plaintiffs and Defendant. In addition, the Court ordered a hearing on the issue of the admissibility of Irving Fruchtman's testimony at trial. At that hearing, held on February 11, 2003, the Court asked for supplemental briefs from both parties. These supplemental briefs have been filed and the Court will now rule on the issue of whether Fruchtman's trial testimony should be precluded.
3. The admissibility of expert testimony under the standard set forth in Rule 702 is a question of law for the district court. When faced with a proffer of expert scientific testimony, the trial judge must make a preliminary determination, pursuant to Rule 104(a), whether the expert testimony satisfies the standard of "evidentiary reliability" established by the rule and will assist the trier of fact to understand or determine a fact in issue. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993). Proper exercise of this "gatekeeping" role, as it has been further clarified by subsequent decisions of the Third Circuit Court of Appeals, entails the consideration of three basic requirements: (1) qualifications — whether the expert is qualified to speak with authority on a particular subject or issue; (2) reliability — whether the expert's methodology is sound and whether his or her opinion is supported by "good grounds;" and (3) fit — whether there is a relevant "connection between the scientific research or test result to be presented and particular disputed factual issues in the case." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-743 (3d Cir. 1994) (" Paoli II") (citations omitted); see also, Oddi v. Ford Motor Co., 234 F.3d 136, 144-46 (3d Cir. 2000).
4. The first step in the Rule 702 inquiry directs the Court's attention to whether the proposed expert witness has sufficient knowledge, skill, training, education, or experience to testify with authority on the particular subject matter or issue on which he or she proposes to opine. Paoli II, 35 F.3d at 741. The Third Circuit has "held that a broad range of knowledge, skills, and training" will qualify a witness as an expert and has, therefore, expressly "eschewed imposing overly rigorous requirements of expertise and [has] been satisfied with more general qualifications." Id. As such, the qualifications requirement has generally been liberally construed by courts in this district. Id.; Holbrook v. Lykes Bros. Steamship Co., Inc., 80 F.3d 777, 781 (3d Cir. 1996); Hammond v. International Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982). Exclusion is, therefore, "improper simply because an expert does not have the most appropriate degree or training." Diaz v. Johnson Matthey, Inc., 893 F. Supp. 358, 372 (D.N.J. 1995) (Irenas, J.).
5. Irving Fruchtman is a qualified engineer who had been working in the field of structural engineering for at least two years, as well as working as an engineer in other fields for over forty years, at the time of his inspection of the pilings. There is no question that he had conducted similar inspections before conducting the one at issue in this case. Fruchtman has no problem meeting the minimal level of qualifications required to testify as an expert witness.
6. The linchpin of the Daubert/ Paoli analysis is an evaluation of the "relevance and reliability" of the proposed expert testimony. See Daubert, 509 U.S. at 595. The inquiry into reliability requires a court to ensure that an expert's opinion is "based on the `methods and procedures of science' rather than on `subjective belief or unsupported speculation." Paoli II, 35 F.3d at 742 (citing Daubert, 509 U.S. at 590). The Supreme Court, and the Third Circuit, have identified several factors to assist the court in determining whether a particular expert opinion is based on valid reasoning or methodology, and these factors have been cited by the Defendant in its briefs. See Paoli II, 35 F.3d at 742 n. 8. These factors are intended to serve only as "useful guideposts, not dispositive hurdles that a party must overcome in order to have expert testimony admitted." Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999); see also, Daubert, 509 U.S. at 594 (emphasizing that the inquiry into the evidentiary reliability of expert testimony under Rule 702 is intended to be a "a flexible one" and that the list of enumerated factors is neither exclusive nor dispositive).
7. When making a preliminary determination with respect to the admissibility of expert testimony, a court must engage in limited review of an expert's conclusions "in order to determine whether they could reliably flow from the facts known to the expert and the methodology used." Heller, 167 F.3d at 153 (3d Cir. 1999). The Federal Rules of Civil procedure "embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact." Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 806 (3d Cir. 1997). As the Supreme Court observed in Daubert, "vigorous cross — examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence" Daubert, 509 U.S. at 596; see also, Paoli II, 35 F.3d at 750 n. 21. A district court's gatekeeping role under Rule 702 should be exercised consistent with this "liberal policy of admissibility." Id.; Holbrook, 80 F.3d at 780; Paoli II, 35 F.3d at 741.
8. In this case, Mr. Fruchtman is not being offered as a scientific expert but as more of a technical expert. Therefore, the Paoli II factors are not as relevant. As this Court has noted in a previous decision, "technical fields such as engineering often involve more idiosyncratic methods of design and testing." Milanowicz v. The Raymond Corp., 148 F. Supp.2d 525, 532 (D.N.J. 2001) (Irenas, J.). That being the case, the Supreme Court has still held that the district court's role under Rule 702 does not change simply because the expert is testifying based on "technical" or "other specialized knowledge" rather than based on "scientific" knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). However, the Supreme Court has noted that there is a need for "flexibility" when dealing with this type of expert testimony and that the Paoli II factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. at 142, 150.
9. The Defendant argues that Fruchtman's measuring technique is unreliable and untested and so therefore his expert testimony should not be allowed at trial. Defendant urges the use of the Paoli II factors as a means of excluding his testimony. Fruchtman's testimony, however, is not appropriate for analysis under the Paoli II factors, as it is not scientific in nature. The Court is convinced, based on his testimony, that Fruchtman's methods are appropriate considering the relatively basic analysis he was required to perform. Based on the video taken at the scene it is clear that there is nothing scientifically challenging about measuring the depth of decay in each piling. Fruchtman's method of measurement, using a screwdriver to determine who much decayed wood exists on each piling and then measuring the remaining amount of good wood, is a reasonable method for determining the extent of decay of the pilings. He then used these figures to determine mathematically the amount of strength left in each piling. The Defendant has not challenged this mathematical method of determining the strength of each piling once Fruchtman had determined how much good wood was left. The only challenge from the Defendant to this part of his analysis is an argument that he used a 1991 edition of the National Design Specification for Wood Construction book rather than an earlier edition from when the house was built. Yet the Defendant has not produced any evidence that the edition of the book used by Fruchtman was in any way inaccurate. The Court is satisfied that the method used by Fruchtman is reliable under the standards set forth in Kumho.
10. The Court notes that while the Defendant argues that Fruchtman did not determine whether the pilings were actually made of southern pine, the Defendant has not produced any evidence that the pilings were made of anything but southern pine. In addition, the Defendant argues that there is no record of where on each piling Fruchtman took his measurements. Fruchtman testified that he took his measurements at the point of the greatest amount of decay, which varied from piling to piling. Based on his testimony and on common sense, it is obvious that where the measurements were taken is irrelevant to determining how strong each piling was. Fruchtman's method of measuring from the weakest point can be the only relevant marker of how strong each piling was, as each piling is only as strong as its weakest point.
11. Rule 702's final requirement is that proffered expert testimony must "fit" within the facts of the case. "`Fit' requires that the proffered testimony must in fact assist the jury, by providing it with relevant information, necessary to a reasoned decision of the case." Magistrini, 180 F. Supp.2d at 595; see, e.g., Habecker v. Clark Equipment Co., 36 F.3d 278, 290 (3d Cir. 1994) (holding that an accident simulation failed to satisfy the "fit" requirement because the conditions of the simulation were far different from those existing at the time of the accident), cert. denied, 514 U.S. 1003 (1995). Whether expert testimony satisfies this requirement depends upon "the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case." Paoli II, 35 F.3d at 743.
12. Defendant argues that under New Jersey law and the insurance policy itself the house must be in danger of imminent collapse in order for the collapse section of the insurance policy to apply. Taking this argument at face value, the Court notes that Fruchtman's testimony is that the house would have collapsed had wind speeds ever reached 90 miles per hour. The Court will take judicial notice that the Wildwood, New Jersey region is sometimes hit by hurricanes with wind speeds exceeding 90 m.p.h. While it is impossible to predict when such a hurricane will occur, there is no doubt that at some point in the future there will be a hurricane with such wind speeds. This Court has already held that the risk of such a hurricane constitutes an imminent risk. Buczek, et al. v. Transportation Ins. Co., Civ. No. 00-4274 (D.N.J February 28, 2002). Fruchtman's testimony clearly "fits" this case and is relevant in determining whether the collapse clause of the agreement should be applied.
And for good cause shown,
IT IS on this 6th day of May, 2003,
ORDERED THAT Defendant's motion to preclude the trial testimony of Irving Fruchtman is DENIED.