UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TERRANCE WYMAN, ) Plaintiff, ) v. ) YATES-AMERICAN MACHINE ) COMPANY, and/or ) YATES-AMERICAN MACHINE) CO., INC.. ) AND ) 1:13-cv-00300-JAW DK-SPEC INC. d/b/a GUÉRETTE, ) INDUSTRIE GUÉRETTE, ) INDUSTRIE GUÉRETTE ) (DIVISION DE DK-SPEC INC. ) and/orINDUSTRIE GUÉRETTE INC. ) d/b/a QUEBEC INC., ) Defendants. )
ORDER ON DAUBERT MOTION TO EXCLUDE EXPERT TESTIMONY
In this personal injury and product liability action, Yates-American Machine Company filed a Daubert motion seeking to exclude the proposed testimony of The Court denies the motion, concluding that any inadequacies posed testimony do not require wholesale exclusion and are best tested through the traditional tools of trial work: v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993).
I. BACKGROUND
A. Procedural History On May 14, 2013, Terrance Wyman filed a complaint against Yates-American Machine Company (Yates-American) and DK-Spec Inc. in the Somerset County Superior Court alleging one count of negligence and one count of strict liability against each of the Defendants. Notice of Removal Attach. 1 Compl. (ECF No. 1) (Compl.). On August 6, 2013, Yates-American removed the case to federal court. Id.
On July 14, 2015, the Court held a Rule 56 Pre-Filing Conference and ordered Yates-American to notify the Court if a Daubert hearing was necessary. Min. Entry (ECF No. 85). On July 31, 2015, Yates-American requested a Daubert hearing on Mr. Yates- Letter Req. for Daubert (ECF No. 88). 1
On October 15, 2015, Yates- American summarized its preliminary objections to the proposed testimony of Mr. Orlowski and Mr. Cyr. Prelim. Daubert Objs. to the Proposed Test. of John Orlowski and Paul Cyr (ECF No. 104) ( Prelim. Objs.). Mr. Wyman responded to the preliminary objections on October 23, 2015. Resp. Prelim. Daubert Objs. to the Proposed Test. of John Orlowski and Paul Cyr (ECF No. 111) ( Resp.). The Court held an evidentiary hearing that began on October 26, 2015 and continued on December 16 and 17, 2015. Min. Entry (ECF No. 114); Min. Entry (ECF No. 119); Min. Entry (ECF No. 121).
1 DK-Spec Inc. also requested a Daubert DK- Req. for Daubert (ECF No. 89). However, on October 15, 2015, the parties stipulated to the dismissal of DK-Spec Inc. from the case. Stipulation of Dismissal (ECF No. 103).
On February 17, 2016, Yates-American supplemented its preliminary objections and moved to exclude the expert testimony. Suppl. Br. to Exclude Experts (ECF No. 133) ( ). Mr. Wyman opposed the motion on February 26, 2016. Suppl. Br. to Exclude Experts (ECF No. 138) ( ). Yates-American replied on March 11, 2016. Yates American Daubert Challenges for Paul Cyr (ECF No. 139) ( ).
B. The Disputed Experts
1. Paul A. Cyr Mr. Wyman designated Paul A. Cyr as an expert. Mr. Cyr spent two years at Engineer in the state of Maine. Resp. Attach. 2 Resume of Paul A. Cyr at 4 (Cyr
Resume). He spent over 22 years working for OSHA before retiring and developing an expert consulting business. Id. at 3. During his time at OSHA, Mr. Cyr conducted physical inspections of workplaces for OSHA compliance and was considered an expert on logging, sawmill, paper mill, and arborist safety and health issues. Id. at 2. Mr. Cyr has participated in, as well as developed and delivered, numerous training and safety courses. Id. at 4, 7-8.
Mr. Cyr prepared an initial report for this case on January 13, 2014. Resp. Attach. 3 Paul Cyr Report (Jan. 13, 2014) (Cyr Report). In this report, Mr. Cyr opined that 1) the Yates-American planer should have and could have feasibly been guarded; 2) the lack of guard caused injuries; 3) the planer did not meet industry standards; and 4) Yates-American and Industrie Guerrete knew, or should have
known, that the planer did not meet industry standards. Id. at 2-3. Mr. Cyr supplemented this report on May 14, 2015 in response to one of Yates- expert reports. Resp. Attach. 5 Suppl. Report of Paul A. Cyr (May 14, 2015) (Cyr
Suppl. Report). In this report, Mr. Cyr opines that, s ex conclusions, Yates-American did in fact manufacture the base and hood on the planer and that any changes to the planer and technology. Id. at 2-3. In addition to testifying about the information contained
in these reports, Mr. Cyr plans to rebut the opinions of Yates- experts. Resp. Attach. 4 Suppl. of Orlowski and Cyr Expert Ops. and Rebuttal of Expert Ops. ( Suppl. Ops.).
2. John M. Orlowski Mr. Wyman also designated John M. Orlowski as an expert in this case. Mr. Orlowski is a Licensed Professional Engineer in the states of Maine, Massachusetts, and New York. Aff. of John Orlowski (ECF No. 112) (Orlowski Aff.) Attach. 1 John M. Orlowski Curriculum Vitae at 1 (Orlowski Resume). He has over 45 years of drafting, design engineering, and consulting experience and he co-authored a chapter Engineering Aspects of Guarding of Machinery and Equipment. Id. at 2-4.
Mr. Orlowski prepared a report for this case on January 13, 2014. Orlowski Aff. Attach. 2 John Orlowski Report (Jan. 13, 2014) (Orlowski Report). He also prepared a technical report on May 2, 2014. Id. Attach. 3 John Orlowski Technical Report (May 2, 2014) (Orlowski Technical Report). In these reports, Mr. Orlowski states that, in his opinion: 1) the Yates-American planer was defective and
unreasonably dangerous because it lacked guards, emergency stop controls, and suitable warnings; 2) Yates-American and Industrie Guerette did not act as reasonable manufacturers by failing to adequately guard the planer and warn of such conditions; and 3) s injuries. Orlowski Report at 3; Orlowski Technical Report at 9. In addition to testifying about the information contained in these reports, Mr. Orlowski plans to rebut the opinions of Yates- experts. Suppl. Ops. at 1. II.
A. Yates- Daubert Objections -American summarized its challenges to the proposed Orlowski. Prelim. Objs. at 1. Yates- testimony that Yates-American manufactured, designed, and sold the planer and
Id. at 2. Yates-American provides contrary -American planer. Id. Additionally, Yates-American states that Mr. Cyr admitted that he has no knowledge or experience with the manufacturing process of Yates-American planers, nor any knowledge of the aftermarket parts manufacturing industry, and that he has no information about the particular parts used for the planer in this accident. Id. at 2-3. Yates-American
planers and Yates parts for sale in the a Id. at 3. It then cites
testimony by DK-Spec Inc. to the copycat nature in the Id.
Yates-American also it did not have a guard over the outfeed rolls, and that the failure to provide a guard
Id. at 4. According to Yates-American, Mr. Cyr admitted that he has no information or evidence as to whether a guard was installed on the planer. Id. It claims that this testimony is significant because Yates-American d that Cyr claims should have been provided on the planer to the owner of the Yates A-20- Id.
Yates- general testimony on these issues pursuant to Federal Rule of Evidence 702. Id. First, it argues that Mr. Cyr is not qualified to provide expert testimony on whether Yates-American designed, manufactured and sold the planer or any of its components. Id. Next, Yates- in understanding the evidence or in making factual determinations on this issue or on whether there was ever a guard installed on the planer. Id. Additionally, Yates-American argues testimony is not based on sufficient facts or data, his testimony is not the product of reliable principles and methods, and that Mr. Cyr has not reliably applied the principles and methods to the facts of the case. Id.
More specifically, Yates-American makes Rule 702 objections to nineteen facts or opinions made by Mr. Cyr in his reports and deposition:
1. that there was no indication that a guard was ever installed for the out root feed rolls of the Yates American planer sold in 1973; 2. there was no indication that warnings or instructions had ever been placed on the Yates American planer sold in 1973; 3. the lack of a guard sold with the Yates American planer in 1973 resulted in the accident planer being unreasonably dangerous and was the cause of Mr. Wyman's injury; 4. if properly guarded Mr. Wyman's hand could not have been pulled into the outfeed rolls and his injury could not and would not have occurred; 5. the guard would not have affected the operation of the planer; 6. knowledge regarding the guarding of nip points such as the one on the planer causing Mr. Wyman's injury has been widely known and published since the early 1900s and Yates American knew or should have known of such guarding information; 7. the Yates American planer did not meet the standard of care for manufacturers at the time of manufacture because of its lack of guarding the nip point and moving parts of the outfeed rolls, 8. the lack of a guard is a violation of OSHA standards; 9. the name "American" appears to have been ground off casting on the base of the planer at Stratton lumber; 10. the letter "B" was in front of the serial number 28984 and was partially obliterated; 11. the measurements of the outfeed rolls stands and the outfeed rolls match Yates American drawings; 12. the right and left outfeed roll stands were manufactured by Yates American and the right outfeed roll stand has been modified, and the right and left in feed roll stands were manufactured by Yates American; 13. the hood observed by Mr. Cyr on the accident planer was identical to other hoods on other Yates American planers; 14. a Yates American 1973 or 1989 guard probably would have prevented several other hand injuries Mr. Borghi admitted to in his deposition; 15. other alleged injuries on Yates American planers led to Yates inability to obtain insurance; 16. other alleged injuries are the reason for Yates American designing the outfeed roll guard; 17. the outfeed rolls were manufactured by Yates American; 18. the "Yates" lettering on the planer involved in the plaint accident is consistent in size and appearance with lettering on other Yates American planers; and 19. rebuilding and modernizing of the Yates American planer allowed Stratton lumber to remain competitive and to get a leg up on the competition.
Id. at 5-6. Yates-American additionally objects to any proposed testimony by Mr. Cyr regarding issues of welding, manufacturing, forging, cutting, drilling, and machining by Yates-American on its parts and planers on the same grounds under Rule 702. Id. at 6.
Yates-American turns to its objections to Mr. Orlows and opinions. general testimony that Yates-
American manufactured the planer. Id. It opposes this testimony by providing contrary testimony from its own experts. Id. at 6-7. Additionally, Yates-American lists what it views as servicing, and designing a wood planer, as well as his lack of a degree in engineering
and lack of education beyond high school. Id. at 7-8. It also claims that Mr. Orlowski admitted that he has no knowledge about what occurred to the planer after it was sold in 1973. Id. at 8.
Yates-American further objects to the following specific facts and opinions made by Mr. Orlowski in his reports and deposition:
1. American planer; 2. his opi should have been extended toward the juncture of the 2 rolls and a similar guard could 3. 4. his opinion that the installation of a guard would not have affected his operation of the planer and would have prevented Mr. 5. been widely known and published since the early 1900s;
6. his statement that the Yates American planer did not meet the standard of care because it lacked a guard for the nip point and moving parts of the outfeed rolls; 7. ign and supply a machine that is safe and operates in accordance with accepted safe standards; 8. his proposed testimony and opinions that the planer was defective and unreasonably dangerous in that it was not furnished with suitable warnings; 9. his opinion that the planer was defective and unreasonably dangerous in that the machine was not supplied with necessary emergency stop controls; and 10. his opinion that the absence of warnings on the machine, additional guarding on the machine and the absence of emergency stops
Id. at 8-9.
Again, Yates-American makes these objections pursuant to Rule 702. Id. at 8. It claims that Mr. Orlowski is not qualified because he has no education, training, or experience in the planer industry that would enable him to assist the jury on any issue regarding the design and manufacture or sale of planers, and in particular, the planer involved in this case. Id. at 9. It asserts that Mr. Orlowski cannot assist the jury with respect to the standard of care and industry practices in the design and manufacture of planers in the 1972 or 1973 timeframe. Id. Yates-American also alleges that are based on insufficient facts or data and are the product of unreliable methods. Id. at 8.
B. Response In response to Yates- preliminary objections, Mr. Wyman provides affidavits from Mr. Cyr and Mr. Orlowski, as well as other supporting documentation, mes and reports, excerpts from their depositions, and certain
exhibits upon which they relied in forming their opinions. Resp. Attachs. 1-8; Orlowski Aff. Attachs. 1-6.
C. Yates- Supplemental Motion After the Court held a three-day evidentiary hearing on the Daubert issue, Yates-American supplemented its objections and moved experts. Mot. at 1-2. As Yates-American sees it, Mr. Wyman conceded at the
hearing that Mr. Orlowski would only testify to the issue of whether the machine was properly guarded and so Yates- Id. at 2.
Turning to Mr. Cyr, Yates-American maintains that Mr. C s proposed testimony and expert disclosures are inadmissible under Rule 702, arguing that he is not qualified, his testimony will not assist the jury, and his opinions are not based on sufficient facts or data, nor are they the product of reliable methods. Id. at 3-4. Yates- under Rule 701 and their probative value is outweighed by unfair prejudice to [Yates-
American] Id. at 4.
Yates-American begins by putting forth its own version of the facts related to the Yates American A-20-12 planer sold in 1973, the Stratton Lumber planer sold in 2000, the infeed and outfeed roll stands of the Stratton planer, and Industrie cture of its own parts and planers. Id. at 4-9.
It then argues that Mr. Cyr lacks the knowledge and qualifications to offer either lay or expert opinion testimony. Id. at 10. It states that Mr. Cyr is a high school graduate who studied engineering at Northeastern for two years in the 1960s
and was employed as a steam plant boiler operator at a mill for nine years before going to OSHA in 1980. Id. It points out that Mr. Cyr inspected approximately 25 planers, about half of which were Yates-American planers, and that he documented the size of the nip point and its opening, but Yates-American states that he never measured or analyzed how a particular component was built on a particular planer. Id. Yates-American emphasizes that Mr. Cyr is not a licensed professional engineer and has never worked as a welder. Id. It goes on to detail a number of specific areas in which Mr. Cyr lacks experience related to the design, manufacture, and sale of planers. Id. at 11-12. Yates- generally, alleging that he does not have the relevant information, documentation, knowledge, or evidence to form his opinions. Id. at 12-16.
Next, Yates-American begins its discussion of the applicable law. Id. at 16. It provides the language for Rule 701, which governs lay testimony. Id. It explains that Id. at 16-17. In Yates-
American Mr. Wyman failed to introduce sufficient foundational evidence for Mr. Cyr to offer lay testimony regarding the manufacturer of a particular part or component of a planer. Id. at 18-19.
Yates-American also discusses Rule 702, which governs expert testimony. Id. at 17-18. It outlines factors that courts have found relevant to determine whether expert testimony is sufficiently reliable, including whether the opinions were
developed expressly for the purpose of testifying or were conducted independent of litigation; whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion; and whether the expert has adequately accounted for obvious alternative explanations. Id.
conclusion reached, why that experience is a sufficient basis for the opinion and how Id. at 18 (citing FED. R. EVID. 702 s note to 2000 amendment). Yates-American also asserts that ert opinion testimony regarding changes to a machine are inadmissible if the Id. (citing Hochen v. Bobst Grp., Inc., 290 F.3d 446 (1st Cir. 2002)).
Yates-American then argues that Mr. Wyman failed to introduce sufficient evidence to prove that Mr. Cyr is qualified as an expert on any subject other than OSHA regulations. Id. at 19.
Finally, Yates-American explains why it contends specific portions of testimony are inadmissible under Rules 701, 702, 401, 402, and 403. Id. at 19-29.
The Defendant generally repeats and applies the arguments it previously made under Rules 701 and 702 to these particular pieces of testimony, stating specifically that these conclusions are speculative, conclusory, and not well-grounded. See id. Yates- American adds that these opinions are irrelevant and any probative value they do have is outweighed by the unfair prejudice it would cause to Yates-American by confusing and misleading the jury. Id.
D. Mr. Wyman opposes Yates- expert testimony and states that Daubert Yates-American it did not design and manufacture the planer at Stratton Lumber that injured
- experts, in particular Paul Cyr, the court should entirely exclude the expert
Id. Daubert experience to offer the proposed opinions, [Yates-
Id.
Mr. Wyman turns to Mr. Cyr, whose testimony was the focus of Yates- Americ motion the industry well qualifies him to testify to the proffered opinions. Id. at 2. Mr.
eriences, including two- years of study in mechanical engineering at Northeastern University, his work in the engineering department and on a construction project at Fraser Paper, and his career at OSHA evaluating engineering drawings and schematics and performing inspections of various types of machinery, including Yates-American planers. Id. at 5-7. courses, which covered aspects of sawmill safety including planers and planer-
matchers. Id. at 7-8. Finally, Mr. Wyman discusses Mr. Cyr training with welding. Id. at 9.
Mr. Wyman then proceeds to lay out the basis for each of Mr. specific opinions objected to by Yates-American. Id. at 9-21. According to Mr. Wyman, the pinions includes, among other things, personal observation , review of the invoices, manuals, and with planer inspections, and his familiarity with ANSI and OSHA standards. Id.
Next, Mr. Wyman expands on years of engineering experience, professional engineer licenses in three states, and
certifications as a Safety Professional in Engineering Aspects and as a Forensic Examiner. Id. at 21. Mr. Wyman also lists Mr. Orlow Id. He then training, knowledge, and experience, as well as his own personal observations of the
Stratton Lumber planer. Id. at 22-23.
Mr. Wyman argues that his proposed testimony as outlined in their designations, developed through the
discovery process, and explained during the expert hearings meets the requirements of F.R. Evid. 702 and the factors set forth in Daubert Id. at 23. Citing caselaw, Mr. Wyman that in that capacity, the court must determine whether an expert is
qualified and whether the testimony rests on a reliable foundation and is relevant.
Id. at 23-24. Mr. Wyman claims that Yates-American Id. at 24. It argues that Yates-American asks
Id. He then submits that
[t]hese are not issues for the court at Id. court must merely decide whether Plaintiff has met his minimal
burden of establishing by a preponderance of evidence that the proposed expert states that he has made this foundational showing. Id. at 24-25.
Mr. Wyman cites Rule 702 for the proposition that experts may be qualified by Id. at 25. He points out that the Advisory Committee explained that Id. experience is the
Id.
Mr. Wyman states that Yates- and testimony are ned in the rule
Id. at 26. He argues that Mr. Cyr is to testify as an expert in this case on the basis of his very specialized skill, experience,
knowledge, and training in the factual issues surrounding the Stratton Lumber Id. at 26- made it clear that professional experience alone is adequate to support expert
Id. at 27 (citing Correa v. Cruisers, A Div. of KCS Intern. Inc., 298 F.3d 13 (1st Cir. 2002)). He methodology Mr. Cyr used to analyze the issues. Id. at 29. Further, Mr. Wyman
indicates that Yates-American is entitled to cross-examine Mr. Cyr and to introduce its own expert testimony to expose any flaws. Id. at 29-30.
Mr. Wyman turns to s specific opinions, although Mr. Wyman claims that these are really factual disputes masquerading as challenges to Id. at 31. Mr. Wyman argues that Mr. Cyr is qualified to forming his conclusions. Id. at 31-36. For example, he contends that Mr. Cyr has
extensive experience investigating planers, including the one in this case, and that he used this knowledge to make comparisons between his measurements and the blueprints of other Yates-American planers. Id. at 32.
and relevant to the claims. Id. at 36. He explains that the discussion of the Stratton Id. Id.
Additionally, Mr. Wyman maintains standards Id.
Finally, Mr. Wyman contends that Yates- briefing challenging the expert testimony of Mr. Orlowski, stating that it relies upon
Id. at 36.
E. Yates- Reply In its reply, Yates- as an expert witness on any issues other than the enforcement of OSHA regulations
at 1. It states that Mr. Cyr never offered any testimony during the hearings to suggest that he ever looked at the parts on a Yates American planer to analyze the parts including how they were manufactured and processed or that he had any background in looking at the interior parts of the Id. at 2. Yates- observations of welding and his two- Id. at 3.
Yates-American distinguishes the experts in this case from the experts in the cases cited by Mr. Wyman, explaining that Mr. Cyr is neither a mechanic, who repairs and maintains machines, nor a trained or professional engineer. Id. at 4. Yates- American does not believe working as an OSHA inspector allows an individual to offer opinions regarding the manufacturing process. Id.
Id. at 5. It states that Guerette made its own
parts for Yates-American planers and manufactured its own Yates-American planers. Id. It also claims that Mr. Cyr could only establish that a couple of the parts on the
planer were from Yates-American, but that there are over 1,000 parts total on the machine. Id. in the record to suggest that the Stratton lumber planer was manufactured by Yates- Id. It then argues that Mr. Cyr ignored these facts and the well within its discretion to exclude the testimony of an expert when the expert has
Id. (collecting cases). III. DISCUSSION
A. Legal Standard Federal Rule of Evidence 702 governs the admissibility of expert testimony: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. FED. R. EVID. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court designated trial judges as gatekeepers responsible for any given case. Id. at 597. A judge exercising the gatekeeper role must both rests on a reliable foundation and is relevant to the task at hand. United States v. Vargas, 471 F.3d 255, 261 (1st Cir. 2006) (quoting Daubert, 509 U.S. at 597); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999) (extending Case 1:13-cv-00300-JAW Document 140 Filed 10/31/16 Page 18 of 29 PageID #: 2462 holding to technical and other specialized expert testimony). The inquiry under Rule Vargas, 471 F.3d at 261 (quoting Daubert, 509 U.S. at 594).
B. Motion to Exclude Expert Testimony
1. Paul Cyr Yates- primary objection is to the proposed testimony of Paul Cyr. First, it argues that Mr. Cyr is not qualified to testify about whether Yates-American designed, manufactured or sold the planer and its parts or about the cause of Mr. Def. Prelim. Objs. at 4; at 10. Specifically, Yates-
wor Yates-American planers in particular. at 10-12.
The Court disagrees. In Santos v. Posadas de Puerto Rico Associates, Inc., 452 F.3d 59 (1st Cir. 2006), the Fi shapes and sizes; there is no mechanical checklist for measuring whether an expert
Id. at 63; cf. United States v. Hoffman, 832 F.2d 1299, necessarily synonymous with a string of academic degrees or multiple memberships
At the same time, a testifying should have achieved a meaningful threshold of expertise Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 372 (D. Me. 2011) (internal citation omitted). totality of the circumstances, the witness can be said to be qualified as an expert in a
particular field through any one or more of the five bases enumerated in Rule 702 Case 1:13-cv-00300-JAW Document 140 Filed 10/31/16 Page 19 of 29 PageID #: 2463 knowledge, skill, experience, training, Santos, 452 F.3d at 64 (citing United States v. Shay, 57 F.3d 126, 132 (1st Cir. 1995) and United States v. Paiva, 892 F.2d 148, 160 (1st Cir. 1989)). determining the qualification, and thus, admissibility, of expert Vargas,
471 F.3d at 262.
Mr. Cyr graduated from Madawaska High School in Maine and attended Cyr Resume at 4. He is a Licensed Stationary Engineer in the state of Maine and has completed over 50 training programs, including numerous courses related to logging, welding, and health and safety standards. Id. at 4, 7-8. Mr. Cyr worked as an engineer at Fraser and Health Administration (OSHA), where he worked for over 22 years. Id. at 1-3;
Transcript of Motion Hearing on December 16, 2015 at 130-34 (ECF No. 125) (12/16/15 Transcript). At OSHA, in addition to providing technical assistance and safety trainings, luded performing inspections of various types of machinery, such as the kind of Yates-American planer at issue in this case. 12/16/15 Transcript at 134-35. The Court concludes that this background provides Mr. Cyr with sufficient experience, knowledge, training, and skill to qualify as an expert in this case under Rule 702.
Next, Yates- making factual determi Case 1:13-cv-00300-JAW Document 140 Filed 10/31/16 Page 20 of 29 PageID #: 2464 Prelim. Objs. at 4 in the sense that all evidence must be relevant [pursuant to Federal Rule of Evidence
402], but also i Ruiz-
Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir. 1988). In other words:
The fundamental question that a court must answer in determining whether a proposed expert's testimony will assist the trier of fact is intelligently and to the best degree, the particular issue without enlightenment from those having a specialized understanding of the
Shay, 57 F.3d at 132 (quoting United States v. Montas, 41 F.3d 775, 783 (1st Cir. 1994)).
The Court concludes that the subject matter in this case lends itself sufficiently to expert testimony. Mr. Cyr will be testifying about, among other things, the different components of a planer, such as the guard, hood, and infeed and outfeed rolls, as well as the industry standards of safety for these planers. This kind of technical discussion is not a matter with which lay jurors can be expected to be familiar. Thus,
Finally, Yates-American objects to the reliability Def. Prelim. Objs. at 4. Yates- opinions, claiming, in effect, that he has no knowledge of the history or facts on which
he bases these decisions and that his opinions are conclusory and speculative. Def s Mot. at 19-29.
The Court disagrees. A court must determine whether the testimony has a reliable basis Crowe v. Marchand, 506 F.3d 13, 17 (1st Cir. 2007) (internal citation omitted). An
expert is permitted to testify on the basis of his experience. Brown v. Wal-Mart Stores, Inc., 402 F. Supp. 2d 303, 308 (1st Cir. 2005) (citing Kumho Tire Co., 526 U.S. ying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that Id. The gatekeeper role requires the judge ipse dixit Knowlton v. Bankers Life & Cas. Co., 882 F. Supp. 2d 129, 131 (D. Me. 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
In his affidavit, Mr. Cyr lays out the basis for each of his opinions. Specifically, he states that he formed his opinions based on his knowledge and experience from his 22 years working at OSHA, which included the inspection and observation of many Yates-American planers; his four physical inspections of the planer located at Stratton Lumber, which s injuries and is the subject of this case; his meetings with Mr. Wyman and observation of the injured hand; and his review of photographs, blueprints, and manuals for this, and other, Yates-American planers. Mr. Cyr further explains how his observations, knowledge, and experience led him to arrive at his opinions, detailing his process for forming his conclusions. The First Circuit has held that the kinds of visual inspections that Mr. Cyr performed can be
an acceptable way for an expert to detect a problem. See Correa v. Cruisers, A Div. of , 298 F.3d 13, 26 (1st Cir. 2002) sense that a visual inspection . . . would be one acceptable way for a mechanic or
.
Yates-American, citing Hochen, claims at
18. However, in that case, the First Circuit found th exclusion of expert testimony was not an abuse of discretion because the voir dire
ith substantial challenges
Hochen, 290 F.3d at 452. By contrast, Mr. Cyr has spent 22 years at OSHA, during which time he inspected and observed many Yates-American planers, including the specific type of planer at issue in this case. Moreover, the First Circuit has expressly rejected the proposition that an expert providing testimony regarding the safety design of a machine must have experiences with that particular machine. DaSilva v. Am. Brands, Inc. would often mean that the only experts who could testify regarding a machine are
made on cross- Case 1:13-cv-00300-JAW Document 140 Filed 10/31/16 Page 23 of 29 PageID #: 2467 expert testimony. See Zuckerman v. Coastal Camps, Inc., 716 F. Supp. 2d 23, 28 (D. Me. 2010) the foundation for expert testimony is at issue, the law favors vigorous cross-examination over exclusion (quoting Carmichael v. Verso Paper, LLC, 679 F. Supp. 2d 109, 119 (D. Me. 2010)); see Payton v. Abbott Labs., opinions [are] in fact weak, that [is] a matter affecting the weight and credibility of
; Brown, 402 F. Supp. 2d at of an expert opinion goes to the credibility of the testimony, not the admissibility, and
it is up to the opposing party to examine the factual basis for the opinion in cross- . testimony are jury issues.
On this record, the Court does not conclude fundamentally unsupported that it can offer no See Brown,
402 F. Supp. 2d at 308. Even though Yates-American strenuously contends that Mr. Cyr does not have a sufficient foundational basis to express his opinions, its position is bottomed on a disagreement about facts, and the resolution of facts may only be done by a factfinder. Daubert does not require that testimony carry the burden of proving to the judge that the expert's assessment of
United States v. Mooney, 315 F.3d 54, 63 (1st Cir. 2002) (quoting Ruiz Troche, 161 F.3d at 85). methodology is reliable and his reasoning valid, he is permitted to testify as to
inferences and conclusions he draws from it. See id. If Yates-American believes there
again, it is free to expose those flaws using the traditional tools of trial work.
Lastly, Defendant argues that opinions should be kept out under Rule 403 because they would confuse and mislead the jury. at 4. However, opinions have special relevance the trier related to the liability and causation issues. See First Marblehead Corp. v. House, 541 F.3d 36, 42 (1st Cir. 2008); Ruiz-Troche, 161 F.3d at 81. Accordingly, Yates- opinions misleading the jury are outweighed by the relevance of his testimony and are safeguarded by Yates- ability to engage in vigorous cross-examination, present contrary evidence, and provide careful instructions on the burden of proof at trial. See FED. R. EVID. 403; Daubert, 509 U.S. at 596.
2. John Orlowski, P.E., CSP, BCFE Yates-American first grounds that he is not qualified to provide expert testimony on the planer industry or
on whether the planer or any of its parts are from the 1973 Yates-American A-20-12 planer. Prelim. Objs. at 9-10. Specifically, Yates-American states that Mr. Orlowski cannot assist the jury on the issues in this case because he engineering degree and no education with respect to product warnings other than
through litigation and has no experience in designing any products that were sold to Id. at 9.
The Court disagrees. Although Mr. Orlowski may not have an engineering - Case 1:13-cv-00300-JAW Document 140 Filed 10/31/16 Page 25 of 29 PageID #: 2469 Vargas, 471 F.3d at 262 (quoting United States v. Mahone, 453 F.3d 68, 71 (1st Cir. 2006)). All that is required is that, under the totality of the circumstances, the witness can be said to be qualified as an expert through his knowledge, skill, experience, training, or education. Correa, 298 F.3d at 25 (emphasis in original); see FED. R. EVID. 702.
Mr. Orlowski is a licensed Professional Engineer in Maine, Massachusetts and New York. Orlowski Aff. ¶ 7. He is a Certified Safety Professional in Engineering Aspects as well as a Board Certified Forensic Examiner. Orlowski Resume at 1. He has taken a number of engineering-related courses and belongs to numerous professional engineering organizations. Id. at 1-2. Mr. Orlowski co-authored a chapter of Products Liability entitled Engineering Aspects of Guarding of Machinery and Equipment. Id. at 2. He has considerable experience in engineering, having worked as a forensic consulting engineer for the past 34 years and as an engineer for 15 years before that. Id. at 2-4. Mr. Orlowski has also been qualified to testify as an expert in several courts. Id. at 5. Given this professional background, the Court concludes that Mr. Orlowski has sufficient knowledge, skill, experience, and training to qualify as an expert in this case under Rule 702.
Yates- ll not assist the jury in understanding the evidence or
Prelim. Objs. at 8. Expert opinions must have special relevance, that is, opinion likely would assist the trier of fact to understand or determine a fact in issue.
Ruiz-Troche, 161 F.3d at 81 a court must determine [w]hether the untrained layman would be qualified to
determine intelligently and to the best degree, the particular issue without enlightenment from those having a specialized understanding of the subject matter involved. Shay, 57 F.3d at 132 (quoting Montas, 41 F.3d at 783).
The Court concludes that the subject matter in this case lends itself sufficiently to expert testimony. testimony includes the opinions that the planer was defective and unreasonably dangerous because it lacked guards, emergency stop controls, and suitable warnings, that Yates-American and Industrie Guerette failed to act reasonably by failing to provide adequate warnings, and that Again, this technical discussion regarding the machine manufacturing industry is not a matter with which lay jurors can be expected to be familiar. The Court concludes that
Finally, Yates-American objects to the reliability of certain parts of Mr. . Def. Prelim. Objs. at 8. The Court disagrees with this objection. An expert is permitted to testify on the basis of his experience. Brown, 402 F. Supp. 2d at 308 (citing Kumho Tire Co., witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the Id. to ensure that expert opinions are
ipse dixit Knowlton, 882 F. Supp. 2d at 131 (quoting Gen. Elec. Co., 522 U.S. at 146).
In his affidavit, Mr. Orlowski lays out the basis for each of his opinions. Specifically, he states that he based his opinion that Yates-American designed, manufactured, and sold the planer on the physical inspections of the planer at Stratton Lumber, the serial number on the planer, photographs, and other documents, such as Yates-American manuals and invoices for the planer at Stratton Lumber. He also explains that he has extensive experience designing machinery and guards for machinery, that he has a patent on a unique type of machine guard, and that he co-authored a chapter that discusses general guarding principles and specific principles relating to the guarding of nip-points, which is the issue in this case. Mr. Orlowski also explains that his training and the knowledge he garnered from literature in this area helped him to form his opinion that the planer could have been guarded. knowledge of the industry combined with his physical inspections of the machinery
in this case provide a sufficient foundation for his testimony.
Of course, Yates- opinions to the test on cross-examination and to offer countervailing expert opinions.
See Hinton, 828 F. Supp. 2d at 372. At the close of trial, the standard jury instructions within this Circuit each expert in evaluating how much weight to give t See id.;
Draft Civil Jury Instructions, Opinion Test., Expert Witnesses at 5
any other testimony. You may accept it or reject it, and give it as much weight as you think it d education and experience, the reasons given for the opinion, and all the other
Nevertheless, because it concludes that Mr. Orlowski is qualified to express the expert opinions for which he has been designated and because those opinions would be helpful to the jury and are reliable, the Court declines to exclude his expert testimony under Rule 702.
In sum, the Court finds that the proposed testimony of both Mr. Cyr and Mr. Orlowski is admissible under Rule 702. IV. CONCLUSION
The Court DENIES Yates- Supplemental Brief to Exclude .
SO ORDERED.
/s/ John A. Woodcock, Jr. JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE Dated this 31st day of October, 2016