Opinion
C.A. PC 2011-1544
07-18-2013
ROSIE K. SWEREDOSKI, as Personal Representative of the Estate of DOUGLAS A. SWEREDOSKI, and Individually Recognized as Surviving Spouse v. ALFA LAVAL, INC., et al.
For Plaintiff Robert J. Sweeney, Esq. For Defendant David A. Goldman, Esq.; Kendra A. Christensen, Esq.
Providence County Superior Court PC 2011-1544
For Plaintiff Robert J. Sweeney, Esq.
For Defendant David A. Goldman, Esq.; Kendra A. Christensen, Esq.
DECISION
GIBNEY, P.J.
In this asbestos action, Crane Co. (Defendant), Individually and as Successor to Chempump, Jenkins Bros., Weinman Pump Manufacturing Company, Pacific Steel Boiler Corporation, Thatcher Boiler, Chapman Valve Company, and Cochrane, brings a Motion in Limine (the Motion), seeking to exclude testimony of the Plaintiff's expert, Captain Arnold Moore (Moore), regarding military procurement and specifications relating to asbestos-containing products and warnings. Defendant argues that this testimony should be excluded because Moore is not qualified by his knowledge or experience to opine on such topics, and his testimony is based on pure speculation.
This Court's jurisdiction is pursuant to G.L. 1956 § 8-2-14.
Rosie K. Sweredoski (Plaintiff), as Personal Representative of the Estate of Douglas A. Sweredoski (Sweredoski), and Individually Recognized as Surviving Spouse, opposes the Motion. She contends that Moore is well-qualified to testify concerning the topics identified by Defendant because he has extensive training, education, and experience with United States Naval shipbuilding and repair and professional engineering. Plaintiff asserts that Moore's opinions are not based on speculation but are derived from facts and data in evidence in accordance with R.I. R. Evid. 703. Plaintiff avers that, in the alternative, this Court should hold a hearing to determine Moore's qualifications as an expert.
Rule 703 provides that:
"An expert's opinion may be based on a hypothetical question, facts or data perceived by the expert at or before the hearing, or facts or data in evidence. If of a type reasonably and customarily relied upon by experts in the particular field in forming opinions upon the subject, the underlying facts or data shall be admissible without testimony from the primary source."
In Rhode Island, a witness may not testify as an expert unless he or she is so qualified to testify. See R.I. R. Evid. 702 (mandating that a witness must be qualified by his or her "knowledge, skill, experience, training, or education" to testify as an expert witness); Neri v. Nationwide Mutual Fire Ins. Co., 719 A.2d 1150, 1153 (R.I. 1998). "The determination of „whether a given expert is qualified to testify on a particular subject' rests within the sound discretion of the trial justice, and . . . [such determination] will not [be] disturb[ed] . . . absent an abuse of that discretion." State v. Rodriguez, 798 A.2d 435, 438 (R.I. 2002) (quoting State v. Collins, 679 A.2d 862, 867 (R.I. 1996)); see Owens v. Silvia, 838 A.2d 881, 890 (R.I. 2003).
"When a party seeks to introduce, through expert testimony, novel scientific or complex technical evidence, it is proper for the trial justice to exercise a gatekeeping function" and hold a pre-trial hearing to determine the proffered expert's qualifications. Silvia, 838 A.2d at 891 (citing DiPetrillo v. Dow Chemical Co., 729 A.2d 677, 685-86 (R.I. 1999)). Such a hearing is conducted pursuant to R.I. R. Evid. 104. DiPetrillo, 729 A.2d at 686. Accordingly, the trial justice should permit the witness to testify as an expert at trial only when it is shown that his or her testimony will contain "(1) scientific knowledge that (2) will assist the trier of fact." Id. at 687. "Helpfulness to the trier of fact is the most critical consideration for the trial justice in determining whether to admit proposed expert testimony." Silvia, 838 A.2d at 891 (citing State v. Wheeler, 496 A.2d 1382, 1388 (R.I. 1985)).
Rule 104 provides in pertinent part that:
"(a) Preliminary questions concerning the qualification of a person to be a witness . . . shall be determined by the court subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition."
Here, Defendant seeks to exclude Moore's testimony concerning military procurement and specifications relating to asbestos-containing products and warnings. Because such topics involve "complex technical evidence, " Moore may not testify about them unless he is qualified by his "knowledge, skill, experience, training, or education" to so testify. See R.I. R. Evid. 702; Neri, 719 A.2d at 1153. Thus, this Court must hold a pre-trial hearing to determine Moore's qualifications to opine on the topics identified by Defendant. See Silvia, 838 A.2d at 891-92; DiPetrillo, 729 A.2d at 685-690. Decision regarding the instant Motion is stayed pending the outcome of said hearing.
Counsel shall submit the appropriate orders for entry.