FLORIO v. RYOBI TECHNOLOGIES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BRENDA FLORIO et al. :

Plaintiffs, :

:

v. : Civ. No. 17-5518

:

RYOBI TECHS., INC. et al. :

Defendants. :

Diamond, J. September 2, 2020

MEMORANDUM

Plaintiff Brenda Florio injured her left hand while using an electric saw manufactured and

sold by Defendants. In support of her defective design claim, she and her co-Plaintiff husband

offer the opinions of Professor Gordon D. Moskowitz. The Parties agree that this case may not

proceed unless I permit Dr. Moskowitz to testify as a design expert. Unfortunately, Moskowitz’s

professional experience has little to do with the issues in this case. His unreliable methodology

reflects that lack of specialized knowledge. Accordingly, I will grant Defendants’ Motion to bar

his testimony, grant Defendants’ Motion for Summary Judgment, and dismiss this case.

I. BACKGROUND

I have construed the record and resolved all factual disputes in Plaintiffs’ favor.

Ms. Florio attempted to saw a “workpiece”—a six-feet by one-foot pine board—in half,

using a Ryobi CSB135L circular saw, which she had bought at Home Depot for $35. (See

Moskowitz Dep. 79:21–23, Ex. A to Defs.’ Mot. in limine, Doc. No. 45-1.) A circular saw is a

handheld power tool used to cut lumber, plywood, and the like. Above the blade and motor, the

Ryobi Saw has a large rear handle (containing the Saw’s trigger switch), which the user grips with

her right hand. The Saw also has a front handle, which the user grasps with her left hand to guide

the saw along the cutting path. Before her accident, Plaintiff had used the Saw once without

incident. (Moskowitz Rep. 3, Ex. B to Pls.’ Opp’n, Doc. No. 50-5.)

Florio’s injuries likely resulted from a “kickback” that occurred after she had sawed four

inches into the board. (See id. 5–7.) A kickback can occur when the divided halves of the

workpiece converge around the saw blade, pinching the blade at its interior. (Id. 5.) Such

narrowing of the “kerf” (the slit cut by a saw) can have many causes, including knots in the wood,

improper saw setup, improper use, or a warped or dull blade. When the kerf collapses on the blade,

the saw’s forward movement is obstructed. Because the motor continues to apply an upward

rotational force at the blade’s lead edge where the teeth have caught, the saw blade suddenly

releases with an equal force up from the wood and opposite the cutting direction. (Id.) This force

apparently broke Florio’s grip on the left handle, pulling her hand into the Saw’s backward

trajectory. The moving blade lacerated three of her fingers before the Saw fell to the ground. (See

id. 15–16.)

On July 28, 2017, Ms. Florio and her husband, Thomas Florio, Jr., filed a Complaint against

Ryobi Technologies, One World Technologies, and Techtronic Industries (the entities that design,

manufacture, and distribute the Saw), and Home Depot (the Saw’s seller), alleging: (1) strict

products liability based on defective design and failure to warn; (2) negligence; (3) breach of

express and implied warranties; and (4) loss of consortium. (Compl. ¶¶ 53–115.) The case was

assigned to Judge Simandle, late of this Court. After Defendants moved to dismiss the negligence

and breach of warranty claims, Judge Simandle dismissed those Counts on consent. (Doc. Nos. 7,

10, 17.) Plaintiffs then filed the instant Amended Complaint, alleging only products liability and

loss of consortium. (Am. Compl. ¶¶ 53–90, Doc. No. 22.)

In August 2019, after the Parties completed discovery, Third Circuit Chief Judge Smith

designated Judge Padova (of the Eastern District of Pennsylvania) to preside over this matter.

(Doc. No. 43); see 28 U.S.C. § 292(b). On October 10, 2019, Defendants moved for summary

judgment and to preclude Moskowitz’s testimony. (Doc. Nos. 44, 45.) Chief Judge Smith then

reassigned the case to me. (Doc. No. 49.) Plaintiffs, who are represented by counsel, opposed

both Motions. In their two-page response to Defendants’ summary judgment Motion, Plaintiffs

withdraw their warning claims, leaving only the defective design and derivative loss of consortium

claims. (Pls.’ Opp’n to Defs.’ Mot. Summ. J 2, Doc. No. 51.) In their laconic opposition to

summary judgment, Plaintiffs focus exclusively on Moskowitz. (Id. 2 (“[I]t is respectfully

submitted that should Moving Defendants’ Motion to Bar Dr. Moskowitz be denied that Moving

Defendants’ Motion [for Summary Judgment] must be denied as to Plaintiffs’ design claims

because Moving Defendants entire basis is that Plaintiff’s (sic) claims should be dismissed if

Plaintiff does not have expert testimony to support the same.”) The Parties thus agree that

summary judgment as to defective design turns on Defendants’ expert testimony challenge. (See

id.; Defs.’ Reply Br. 1.)

II. LEGAL STANDARDS

I must serve as a “gatekeeper” and ensure that “any and all expert testimony or evidence is

not only relevant, but is also reliable.” Kannankeril v. Terminix Int’l,128 F.3d 802, 806 (3d Cir.

1997). Rule 702 thus provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods,

and (3) the witness has applied the principles and methods reliably to the facts in

the case.

Fed. R. Evid. 702. The Third Circuit has held that the Rule requires a three-part analysis:

(1) qualifications—whether the expert is qualified to speak with authority on the

subject at 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.”

Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 530–31 (D.N.J. 2001) (quoting In re Paoli

R.R. Yard PCB Litig., 35 F.3d 717, 741–43 (3d Cir. 1994) (Paoli II). “Plaintiffs must establish by

a preponderance of the evidence that an expert is qualified and that the expert’s testimony is

admissible.” Diaz v. Johnson Matthey, Inc., 893 F. Supp. 358, 372 (D.N.J. 1995); see Paoli II, 35

F.3d at 744 (“This does not mean that plaintiffs have 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.”).

Rule 702 demands a “flexible” inquiry. Daubert v. Merrell Dow Pharms., Inc. 509 U.S.

579, 594 (1993). Because the “overarching subject is the scientific validity and thus the

evidentiary relevance and reliability,” I must focus on the proposed expert’s “principles and

methodology, not on the conclusions they generate.” Id. at 594–95. “The ‘ultimate touchstone is

helpfulness to the trier of fact, and with regard to reliability, helpfulness turns on whether the

expert’s technique or principle [is] sufficiently reliable so that it will aid the jury in reaching

accurate results.’” Paoli II, 35 F.3d at 744 (quoting DeLuca v. Merrell Dow Pharms., Inc., 911

F.2d 941, 956 (3d Cir. 1990) (alteration in original)). Although expert testimony “can be both

powerful and quite misleading because of the difficulty in evaluating it,” I must apply apply Rule

702’s requirements in accordance with the Federal Rules’ “liberal thrust,” erring on the side of

admission. Daubert, 509 U.S. at 595, 588 (quoting Weinstein, Rule 702 of the Federal Rules of

Evidence Is Sound; It Should Not Be Amended, 138 F.3d 631, 632 (1991)); see Paoli II, 35 F.3d

at 739.

Summary judgment is appropriate where “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party must first show the absence of any genuine issue of material fact. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). An issue is material only if it could affect the suit’s result under

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). I “must view the

facts in the light most favorable to the non-moving party” and make every reasonable inference in

that party’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The

opposing party must support each essential element with concrete evidence in the record. See

Celotex, 477 U.S. at 322–23. I may grant summary judgment if I then determine that there is no

genuine issue of material fact. See id. at 322.

III. DISCUSSION

Plaintiffs concede that to survive summary judgment, they must produce supporting expert

evidence of the Saw’s defective design, as “the subject matter ‘falls outside of the common

knowledge of the factfinder and depends on scientific, technical, or other specialized knowledge.’”

Mykolaitis v. Home Depot U.S.A., Inc., Civ. No. 13-1868, 2016 WL 590213, at *3 (D.N.J. Feb.

11, 2016) (quoting Jerista v. Murray, 883 A.2d 350, 364 (N.J. 2005)); Diluizio-Gulino v. Daimler

Chrysler Corp., 897 A.2d 438, 441 (N.J. Super. Ct. 2006); (see Pls.’ Opp’n to Defs.’ Mot. Summ.

J.) Accordingly, I will begin by addressing Defendants’ threshold Daubert challenge to Dr.

Moskowitz. See Dymnioski v. Crown Equip. Corp., Civ. No. 11-3696, 2013 WL 2297035, at *2

(D.N.J. May 24, 2013) (in a design defect case the defendant’s “motion for summary judgment

[wa]s contingent upon the exclusion of” plaintiff’s proposed expert testimony).

A. The Proposed Expert Testimony

Plaintiffs retained Dr. Moskowitz to evaluate Ms. Florio’s “incident and the design of the

subject Ryobi saw.” (Pls.’ Opp’n 3.) Moskowitz received a PhD in Mechanical Engineering from

Princeton University in 1964. (Moskowitz CV, Ex. C to Pls.’ Opp’n.) He started as a Professor

in Drexel University’s Mechanical Engineering and Mechanics Department in 1977, and assumed

emeritus status in 1998. At Drexel, Moskowitz developed an Engineering Design course, and

taught courses bearing on human interaction with tools. (Id.) Professor Moskowitz has published

numerous academic papers, most recently in the 1990s and 1980s on “bipedal locomotion” and

lower-extremity electromyography. (Id.) He has never written about circular saws or power saws.

(Moskowitz Dep. 18:10–15.) In the 1980s and earlier, Moskowitz presented at technical

conferences, mostly on issues relating to prosthetics, but addressed other topics, such as evaluating

head trauma. (Id.) He does not recall ever attending a conference at which power saw design or

safety was discussed. (Id. 19:16–22.) In the 1970s, he once assisted a manufacturer of

pneumatically operated power saws with “noise reduction.” (Id. 16:13–23.) Otherwise, he has no

experience in power saw standard setting or design, and has never set foot in a plant where such

tools are made. (Id. 18:16–19:15.) Moskowitz’s power saw experience is limited to testifying in

lawsuits. He acknowledged that this is the “first case [he has] been involved in [concerning] a

circular saw.” (Id. 39:1–3.)

Dr. Moskowitz has provided expert trial or deposition testimony on twenty occasions over

the past twenty-seven years. (Pls.’ July 31, 2020 Letter 2, Doc. No. 57.) Although Moskowitz

represents in his Report that he has served as an expert in cases concerning “portable hand saw[s],

miter saw[s,] and table saw[s],” counsel identifies just one case in which: Moskowitz opined on

the design of a miter saw, more than twenty years ago. (Id.); see Mamatuck v. Black & Decker,

Civ. No. 96-6807 (E.D. Pa.). His expert witness work has otherwise involved patent infringement,

slip-and-fall personal injuries, and equipment-related injuries. (Ex. A to Defs.’ July 31, 2020

Letter, Doc. No. 56.)

Professor Moskowitz prepared a Report concerning all aspects of the instant case,

reconstructing Ms. Florio’s accident and opining that Defendants should have: incorporated certain

safety features, drafted a less “cluttered” and better “illustrated” Operator’s Manual, and included

an instructional CD with the Saw. (Moskowitz Rep. 29.) He describes Plaintiff’s accident,

providing an “injury sequence.” (See id. 15–16.) He concludes that Ms. Florio experienced a

kickback, as I have described. He then briefly discusses nine possible design alternatives to

remedy what he views as a defective product:

(1) blade braking; (2) blade clutch; (3) tissue-saw blade contact detection; (4) faster

lower blade guard closure; (5) double handle switches; (6) riving knife; (7) riving

ring; (8) spring loaded riving rings; and (9) riving ring with outrigger.

(Id. 18–19.) He did not purport to test any of these alternatives, calculate the cost of incorporating

them, or assess their effects on the Saw’s functioning. Indeed, he never even operated the Saw.

B. The Proposed Testimony Is Not Admissible

Dr. Moskowitz fails to meet any of the Third Circuit’s expert criteria: qualifications,

reliability, and fit. Although any one failure is fatal, I will, in an abundance of caution, address all

three.

1. Moskowitz Has No Expertise in Circular Saw Design

To qualify as an expert, Dr. Moskowitz must have “specialized knowledge” concerning the

subject he will address. Ortiz v. Yale Materials Handling Corp., Civ. No. 03-3657, 2005 WL

2044923, at *3 (D.N.J. Aug. 24, 2005). The foundation for his “specialized knowledge ‘can be

practical experience as well as academic training and credentials.’” Elcock v. Kmart Corp., 233

F.3d 734, 741 (3d Cir. 2000) (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998)).

Although the Third Circuit has thus “interpreted the specialized knowledge requirement liberally,”

the proffered expert nonetheless “must possess skill or knowledge greater than the average

layman.” Id. (quoting Waldorf, 142 F.3d at 625). Moreover, the qualification question is “fact-

intensive”: the expert’s credentials and experience must be relevant to the subject of proffered

testimony. Poust v. Huntleigh Healthcare, 998 F. Supp. 478, 491 (D.N.J. 1998).

Although there are many kinds of saws, this case calls for expertise in the design of only

one kind: circular saws. Professor Moskowitz does not have “specialized knowledge” respecting

circular saw design. His academic training and professional experience have nothing to do with

the questions Plaintiffs ask him to address: whether the Saw was defective because it could have

been designed, without compromising its effectiveness or unreasonably increasing its cost, with

certain safety features; and whether those “defects” caused Ms. Florio’s injuries. These are not

abstract, academic questions, and instead require an intimate familiarity with the product and

relevant safety standards that Moskowitz lacks.

In his deposition testimony, Moskowitz himself well revealed the gap between this case’s

central questions and his expertise. For instance, when pressed on one of his recommended safety

features—the addition of a riving knife (a table saw device intended to prevent a cut board’s

separated parts from closing)—he testified that he believed a manufacturer called “Lestool has a

circular saw with a riving knife.” (Moskowitz Dep. 77:12–14.) There is no saw manufacturer

named “Lestool.” Moskowitz apparently meant “Festool,” which sells, among other power tools,

circular saws, including a model that has some sort of riving device. (Id. 78:1–6.) He thought, but

was “not certain,” that Festool has a circular saw with a riving ring. (Id. 77:22–25.) Yet,

Moskowitz testified that he has never seen—much less used—a Festool saw. (Id. 78:9–18.)

Rather, he learned about the product by “look[ing] online at various equipment places that [he]

deal[s] with.” (Id. 79:9–10.)

Similarly, Moskowitz testified that he believed that Bosch sells a circular saw with one of

his recommended security enhancements in the United States. (Id. 77:12–14.) He recanted when

pressed by counsel. (Id. 78:20–79:7.) Moskowitz acknowledged that one of his proposed safety

enhancements—flesh detection—is available on table saws, yet has never been used in circular

saws. Moskowitz apparently made no effort to determine why this was so, or why other safety

features common to table saws are unavailable or rarely used for circular saws. (Id. 104:9–105:20

(“Q. Why at the time this saw was purchased by Mrs. Florio at Home Depot did table saws have

riving knives, but circular saws sold in the United States did not have riving knives? A. For the

life of me, I don’t know. Q. Did you make any effort to find out? A. No.”).) Rather, he “opined,”

with no supporting evidence, that “[p]olitics” is the reason why no manufacturer has adopted his

proposals. (Id. 114:10–14.)

This slack familiarity with circular saw features is compounded by the Professor’s

ignorance of the safety standards governing these tools. Once again, Moskowitz has published no

papers relevant to the topics in this case, has never worked or consulted for power saw

manufacturers, and holds no power saw patents. Moskowitz testified that he has never been

involved in setting safety standards for power saws. (Id. 39:14–16.) He has never communicated

with standards-setting organizations or saw manufacturers, not even contacting any to determine

why his suggested designs have never been adopted. (Id. 20:5–21:9, 104:14–17.) Insofar as he

familiarized himself with relevant standards, it was only in preparing to testify in this lawsuit. (See

id. 76:17–20.)

Even under Rule 702’s forgiving standard, Moskowitz is unqualified to testify as a product

design expert. The Professor seeks to opine here on subjects well outside his wheelhouse, and

apparently has made little effort to become conversant in the relevant literature before preparing

his Report. (See, e.g., id. 119:8–14.) His casual literature review—like his incurious approach to

learning relevant safety standards—does not compensate for Moskowitz’s lack of experience. See

Diaz, 893 F. Supp. at 372 (physician barred from testifying on medical issue outside his expertise

even after he reviewed one relevant article); (see also Pls.’ Opp’n 16 (acknowledging that

Moskowitz consulted few resources, including two “relevant” standards and “a research paper”).)

2. Moskowitz’s Methods Are Not Reliable

I must consider several factors in evaluating whether the expert’s methodology is reliable:

(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.

Kannankeril, 128 F.3d at 806 n.6 (quoting Paoli II, 35 F.3d at 742 n.8). This reliability framework

governs both technical and scientific expertise. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151

(1999). Yet, the Supreme Court has admonished that reliability factors (like those enumerated

above) may not apply with equal force in every setting. See id. (Daubert’s reliability “factors do

not all necessarily apply even in every instance in which the reliability of scientific testimony is

challenged.”). Courts in this District have thus relied on related considerations in design defect

cases:

(1) federal design and performance standards, (2) standards established by

independent standards organizations, (3) relevant literature, (4) evidence of

industry practice, (5) product design and accident history, (6) illustrative charts and

diagrams, (7) data from scientific testing, (8) the feasibility of any suggested

modification, and (9) the risk-utility of any suggested modification.

Ebenhoech v. Koppers Indus. Inc., 239 F. Supp. 2d 455, 467 (D.N.J. 2002) (citing Milanowicz,

148 F. Supp. 2d at 536). Although all these factors may be helpful, I have “broad latitude to

determine” whether they are “reasonable measures of reliability” and will thus discuss only those

useful here. Kumho Tire, 526 U.S. at 153. Dr. Moskowitz’s lack of qualifications also weighs

against my finding his methods reliable. See Diaz, 893 F. Supp. at 373.

Moskowitz’s “Methodology” Is Untested

The Professor conducted no testing to inform his criticism of the Saw’s design or to

substantiate his design proposals. This methodological shortcoming alone is fatal for his

designation as an expert. See Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3d Cir. 2000) (“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.’”) (quoting Daubert, 509 U.S. at 595) (alteration

in original)); Paoli II, 35 F.3d at 764 (upholding district court’s exclusion of expert who offered

“only a hypothesis which he had yet to attempt to verify or disprove by subjecting it to the rigors

of scientific testing”). To support his design proposals (a list of safety features that either reduce

the risk of kickback or mitigate the risk of injury during a kickback event), Moskowitz provided a

brief narrative description of each. For instance, he wrote that “[i]ntroduction of a clutch between

the motor shaft and the blade shaft that slips at a limiting torque setting can result in elimination

of a kickback event.” (Moskowitz Rep. 19.) He identified a patent that discloses such a

mechanism, which Moskowitz believes “can be used on a circular saw,” although he offers no

examples of such use. (Id.) This conclusory discussion is illustrative of Moskowitz’s

“methodology”: unsubstantiated theories as to how Defendants could have created a safer product.

Plaintiffs thus seek to present “expert” design testimony from someone who has never

implemented his own recommended features or even operated the supposedly defective product.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal

Rules of Evidence requires a district court to admit opinion evidence that is connected to existing

data only by the ipse dixit of the expert.”); see Lara v. Delta Int’l Mach. Corp., 174 F. Supp. 3d

719, 737 (E.D.N.Y. 2016) (“Without properly testing his alternative theory, [the proposed

expert’s] ultimate conclusions are ‘bottomed upon nothing more than mere speculation and

guesswork,’ which are a less than adequate basis to support [the expert’s] position—especially

since performing detailed studies and tests represents the ‘touchstone of what an engineering

expert in a design defect case should do.’” (quoting Barban v. Rheem Textile Sys., Civ. No. 01-

8475, 2005 WL 387660, at *6 (E.D.N.Y. Feb. 11, 2005), aff’d, 147 F. App’x 222 (2d Cir. 2005)).

Moskowitz “never attempted to recreate” Ms. Florio’s accident, did not “produce an

example of” his alternatives, or “do any practical research into how [his alternatives] could be

incorporated into” the Saw. Booth v. Black & Decker, 166 F. Supp. 2d 215, 219, 221 (E.D. Pa.

2001). Moskowitz “essentially offered no methodology at all for his design defect theory.” Id.;

see also Oddi, 234 F.3d at 158 (upholding district court’s exclusion of expert who “conducted no

tests” and “used little, if any, methodology beyond his own intuition”). His decision not even to

operate the Ryobi Saw—let alone test his alternative designs—is further mystifying because

Moskowitz acknowledged during his deposition that Ms. Florio had not properly set up the board

to be cut. (Moskowitz Dep. 69:14–23 (“Q. In your opinion, had Mrs. Florio adequately supported

the piece of wood she was cutting at the time of the accident? A. I don’t believe no.”).)

Worse still, Moskowitz admitted that some of his alternatives are beyond untested: they

are untestable because they are merely “conceptual designs.” (Id. 112:23–25.) Moskowitz

acknowledged that the authors of the Seiden study—the only source he cites in the section of his

Report discussing his riving device proposals—did not create a circular saw using the variations

Moskowitz now urges. (See id. 112:10–113:2.) Moskowitz’s preposterous recommendation of

designs that exist only in the imagination of two academics belies any notion that his Report is

indeed the product of any objective methodology. See Barban, 2005 WL 387660, at *6–7; see

also Cavanaugh v. Skil Corp., 751 A.2d 518, 521 (N.J. 2000) (“[B]oth the New Jersey statute and

the Restatement (Third) require that the alternative design be feasible, not merely theoretically

possible.”).

Moskowitz’s Alternatives Have Not Withstood Risk-Utility Analysis

The Professor did not submit his suggested alternatives to any “risk-utility analysis,” nor

did he determine whether any was feasible. See Diluzio-Gulino, 897 A.2d at 441 (“A plaintiff

asserting a design defect in a products liability action ‘must prove under a risk-utility analysis the

existence of an alternate design that is both practical and feasible,’ and ‘safer’ than that used by

the manufacturer.”) (quoting Lewis v. Am. Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998)); see

also Lara, 174 F. Supp. 3d at 736 (“In a products liability action, ‘the touchstone of an expert’s

report should be a comparison of the utility and cost of the product’s design and alternative

designs.”) (quoting Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 233 (E.D.N.Y. 2016)).

Moskowitz never analyzed how his alternatives would affect the “usefulness and desirability” of

the Saw, and only conclusorily stated—without any supporting calculation or evidence—that his

suggested safety features could be incorporated without unreasonably increasing the Saw’s cost.

See Smith v. Keller Ladder Co., 645 A.2d 1269, 1270–1271 (N.J. Super. Ct. 1994). Because most

of Moskowitz’s alternative designs are not available, or do not actually exist, testing and rigorous

analysis is especially necessary. See Hilaire, 54 F. Supp. 3d at 244 (excluding expert testimony

that omitted “comparisons and testing”); see also Milanowicz, 148 F. Supp. 2d at 533 (“[T]he

absence of industry practice—or the expert’s failure to include such evidence—may undermine

the proposed alternative.”).

The feasibility of Moskowitz’s alternatives is doubtful. For instance, he acknowledged

that only one manufacturer offers a circular saw with a riving knife at a price of $500—well over

10 times the cost of the Ryobi Saw. See id. at 536 (noting that without, inter alia, a relative cost-

analysis of the alternative design, “courts are hard-pressed to find reliable an expert’s conclusions

regarding the defectiveness of the product and the appropriateness of the proposed alternative

design”); (Moskowitz Dep. 80:5–20.) Moskowitz’s testimony thus refutes Plaintiffs’ suggestion

that a riving knife comprises simply an inexpensive piece of metal and some screws. (See Pls.’

Opp’n 17.)

Safety Standards and Industry Practices

The Professor’s Report and proposed testimony contradict applicable governmental and

industry standards. See Ebenhoech, 239 F. Supp. 2d at 467. Although Moskowitz cites

Occupational Safety and Health Administration and Consumer Product Safety Commission

standards, “he fails to link his conclusions to those standards.” Id. This is unsurprising because,

as he acknowledged during his deposition, no standards-setting organization has ever required any

of Moskowitz’s suggested circular saw safety enhancements. (See Moskowitz Dep. 77:6–8

(OSHA has never required Moskowitz’s alternatives); id. 77:2–5 (CPSC has never required

Moskowitz’s alternatives); id. 109:6–10 (identifying no state that has required any of Moskowitz’s

alternative designs).) To the contrary, the Ryobi Saw complied with applicable safety standards.

(See id. 149:6–8 (the Saw complied with circular saw standards issued by Underwriter

Laboratories, American National Standards Institute, and Canadian Standards Institute)); cf.

Redman v. John D. Brush & Co., 111 F.3d 1174, 1178 (4th Cir. 1997) (“When deciding whether

a product’s design meets those standards, a court should consider whether the product fails to

satisfy applicable industry standards, applicable government standards, or reasonable consumer

expectations.”).

Moskowitz’s “Methodology” Is for Litigation-Purposes Only

Moskowitz has never applied his methodology to a “non-judicial” purpose, further

undermining the reliability of his proposed expert testimony. Kannankeril, 128 F.3d at 806 n.6;

Reiff v. Convergent Techs., 957 F. Supp. 573, 584 n.16 (D.N.J. 1997). As I have discussed, the

Professor’s sole experience respecting circular saw safety is his engagement in this lawsuit. This

“weighs against [the] admissibility” of his Report and proposed testimony. DeLuca by DeLuca v.

Merrell Dow Pharms., 791 F. Supp. 1042, 1057 (D.N.J.).

* * *

Plaintiffs’ responses to these criticisms serve only to underscore their validity. Plaintiffs

concede that Moskowitz never tested his proposed alternative designs, relying instead on

inapplicable safety-standards, various incident data (which have no bearing on risk-utility), and a

1995 “conceptual” study. (Pls.’ Opp’n 16.) Plaintiffs identify no decisions endorsing such a half-

baked analysis.

In sum, there are no “good grounds” for Dr. Moskowitz’s methodology, which I am

compelled to find is unreliable.

3. Dr. Moskowitz’s Proposed Testimony Does Not “Fit”

Under Rule 702, the proposed expert testimony “must assist the trier of fact.” Paoli II, 35

F.3d at 742–43; see id. at 743 (“[A]dmissibility depends in part on ‘the proffered connection

between the scientific research or test result to be presented and particular disputed factual issues

in the case.’”) (quoting United States v. Downing, 753 F.2d 1224, 1237 (3d Cir. 1985)). Once

again, Plaintiffs offer Dr. Moskowitz’s expert opinions to show that the Ryobi Saw was not suited

or safe “for its intended purpose because it . . . was designed in a defective manner.” Smith, 645

A.2d at 1270 (quoting Products Liability Act, N.J.S.A. 2A:58C-2(c)). As there is no “connection”

between Moskowitz’s analysis and design safety, his testimony would not aid the jury and so fails

Rule 702’s “fit” requirement.

Once again, Moskowitz’s proposals are entirely abstract. Nothing in his Report shows that

Defendants could reasonably have incorporated his proposals or that Moskowitz even tried to

create them. Moreover, none is required by the organizations that regulate design and fabrication

of circular saws. Plaintiffs do not meaningfully explain how Moskowitz’s opinions would assist

the jury, arguing only that “the testimony and opinions of a mechanical engineering expert in a

product liability case clearly meet the Daubert fit requirement.” (Pls.’ Opp’n 18.) This bald

assertion misapprehends the standard and could not be further from the truth here, where a

mechanical engineer seeks to offer little more than abstraction and untested suggestions. In these

circumstances, Dr. Moskowitz’s testimony would be “unhelpful” for Rule 702 purposes. See Paoli

II, 35 F.3d at 743 (“[T]he requirement of reliability, or ‘good grounds,’ extends to each step in an

expert's analysis all the way through the step that connects the work of the expert to the particular

case.”).

C. Defendants Are Entitled to Summary Judgment

I will bar Dr. Moskowitz’s proposed testimony, which flunks all three Rule 702 elements.

The Parties agree that without expert testimony, Plaintiffs cannot prevail. “Inasmuch as

[Plaintiffs’] ‘defect expert’ does not survive Daubert scrutiny,” Defendants are entitled to

summary judgment on Plaintiffs’ defective design claim. Oddi, 234 F.3d at 159; see Milanowicz,

148 F. Supp. 2d at 541–42 (dismissing design defect claim at summary judgment because

plaintiffs’ expert did not satisfy Rule 702).

I must also enter judgment for Defendants on Plaintiffs’ loss of consortium claim, which

is “derivative” of Plaintiffs’ ability to recover for products liability. McKinnon v. Gonzales, Civ.

No. 07-1694, 2008 WL 305590, at *1 (D.N.J. Jan. 30, 2008).

IV. CONCLUSION

I well understand that the Rules of Evidence favor the admission of expert testimony. See,

e.g., Kannankeril, 128 F.3d at 806. Although Professor Moskowitz is competent to opine as an

expert on many subjects, circular saw design is not one of them. He has virtually no relevant

experience; never operated the Ryobi Saw; tested none of his proposed alternatives—not one of

which is used on circular saws sold in the United States; and did not even attempt to estimate the

cost of utilizing those untested alternatives. Even under the liberal Federal Rules admission

standard, his proposed “expert” testimony is little more than inadmissible wool gathering. I will

thus grant both Defendants’ Motions and enter summary judgment in their favor.

An appropriate Judgment follows.

/s/ Paul S. Diamond

__________________

September 2, 2020 Paul S. Diamond, J.